text
stringlengths 11
196k
| embeddings
listlengths 1.02k
1.02k
|
|---|---|
MR. CHIEF JUSTICE ADAIR:
This is a suit in equity seeking to quiet title to certain described lands embracing 271 acres located in Cascade County.
The record title to the lands stood in the name of Thomas Prewett, Sr., for many years during which time he resided thereon, reared nine children, and engaged in raising cattle and ranching.
By warranty deed filed for record May 5, 1938, in the office of the clerk and recorder of Cascade County, Thomas Prewett, Sr., widower and owner of the lands conveyed same together with two milk cows, five head of horses, fourteen head of stock cattle and all his household goods unto Philemon John Prewett, one of his sons, who thereby acquired the record title thereto subject to the liens of two duly recorded mortgages on the property given by Thomas Prewett, Sr., the grantor, to secure the payment of substantial sums of money owing by him and also subject to certain past due taxes assessed and levied against the property which liens and obligations the grantee, Philemon, assumed and agreed to pay.
Immediately upon the delivery to him of the above deed, Philemon went into possession of all the lands and other described property and with his wife, Ruby Prewett, resided and made their home thereon until in the late spring or summer of 1940 when Ruby’s health failed, whereupon she and Philemon drove to the home of Ruby’s parents near Ovando, Montana, taking with them only a few of their personal belongings and leaving one Harold A. Hardy on and in charge of all the described lands as well as the cattle and other property thereon. At the trial Harold A. Hardy testified that he continued to stay on the lands and that he cared for same and the personal property thereon until in March of the year 1941, at which time he left the premises.
While staying at the home of her parents near Ovando, Ruby was enabled to obtain the required medical attention and treatment from her family’s physician who resided in Missoula and this she did.
In September 1940, Philemon and his wife upon leaving the lands in question and returning to Ovando took with them a bed and a pig, leaving the remainder of their personal property including their household furniture and livestock on the premises.
On October 7, 1940, Philemon and his wife again drove from Ovando to the described lands and premises where they remained until October 14, 1940.
- At this time Thomas Prewett, Jr., also called Tom Prewett, and his wife Lola Prewett, were residing on the E. D. Smock farm which adjoins the described lands here involved, which farm Tom Prewett was then operating under a lease from Mr. Smock the owner.
Tom Prewett and Philemon Prewett are brothers.
There is testimony in the record that between the 7th and 14th of October 1940, Tom Prewett and his wife Lola came to the home of Philemon and his wife Ruby on the described lands at which time Tom informed his brother Philemon that he, Tom, was going to give up his lease on the Smock farm at which time he would require a place in which to live and that if agreeable with Philemon he would like to move on the described lands here involved, whereupon Philemon told Tom that if he latter would pay the taxes to accrue on the lands each year and also take care of the taxes then standing against the lands, he could move thereon and use the lands as he, Philemon, would rather have Tom there than some stranger.
On or about November 4,1940, Tom Prewett and his wife Lola, with the knowledge and verbal consent of his brother Philemon moved on the described lands where they have since continuously resided.
There is evidence in the record that in November 1940 when Tom and his wife moved thereon, the lands were then of the value of between five and six thousand dollars.
It is conceded that on November 4, 1940, and for a number of years prior thereto as well as at all times since, the record title to all the described lands stood and now stands in the name of Philemon John Prewett.
On December 10, 1950, being exactly ten years and thirty-six days from the day on which, with his brother’s knowledge and permission, lie moved on the described lands, Tom Prewett, as plaintiff, commenced this suit in equity against his brother Philemon and the latter’s wife, Ruby, as named defendants, seeking a decree adjudging Tom to be the owner based on claimed “adverse possession” by the plaintiff Tom of the described lands so standing of record in the name of the defendant Philemon.
Complaint. The complaint contains four separately numbered paragraphs. In the first, second and third paragraphs the plaintiff Tom alleges ownership and actual possession by plaintiff and that defendants without right, claim some interest adverse to plaintiff. Plaintiff did not rest upon his allegation of ownership but in the fourth and concluding paragraph went ahead and attempted to allege adverse possession as the means of obtaining ownership.
The fourth paragraph of the complaint reads: “IV. That plaintiff has been in open, exclusive and notorious possession of said land and premises under claim of title for more than ten years, and has paid all taxes levied thereon for each year beginning with the taxes for the year 1938. ”
Answer. In their answer the defendants admit that plaintiff is in possession of the lands but allege that such possession has been and now is under and by virtue of a parol year-to-year lease from defendants to plaintiff as is set forth in the answer; deny that plaintiff was or is the owner or entitled to possession of the property; admit that defendants' claim an estate and interest in the lands adverse to the claim of plaintiff and deny all other allegations of the complaint.
As a further answer defendants allege “that the defendant, Phil Prewett, also known as Phillip Prewett, is now and at all times mentioned in said complaint was the sole owner in fee simple and entitled to the possession of the lands described in plaintiff’s complaint, and the whole thereof; that on or about the 14th day of October, 1940, the plaintiff took possession of said lands under and by virtue of a verbal lease for a period of one year; that plaintiff agreed to pay for the occupancy of said premises for said time all the taxes assessed and unpaid upon said lands in the name of the defendant Phil Prewett, and to keep said taxes paid, and to pasture, feed and eare for the cattle belonging- to the defendant, Phil Prewett, and to keep in good repair all of the buildings and fences located and situated upon said described lands.
“That the plaintiff ever since said time has been and is now in possession of said property under and by virtue of a year to year lease from the defendants to the plaintiff, under the same terms and conditions as said lease hereinabove set out; that said lands during all of the times mentioned in plaintiff’s complaint have been and they are now assessed in the name of the defendant Phil Prewett; that the plaintiff has during each year of all of said time paid said taxes for and on behalf of the defendant Phil Prewett under said year to year leases, and the plaintiff has during each year mentioned in said complaint looked after and cared for the cattle belonging to the defendant Phil Prewett, and kept said buildings and fences on said lands in repair, as the plaintiff agreed to do in said year to year leases;
‘ ‘ That the plaintiff knew the exact address of the defendants and at no time did the plaintiff notify the defendants or either of them that he claimed any ownership whatsoever in said lands.” The prayer is that plaintiff take nothing; that plaintiff’s complaint be dismissed; that the defendant Philemon Prewett be adjudged to be the owner in fee simple of the lands and for defendants’ costs of suit.
Second Amended Reply. The plaintiff Tom Prewett filed a second amended reply wherein he denies all the allegations of defendants’ answer and as a first separate affirmative defense alleges that “more than ten years prior to the date of the institution, by the plaintiff, of the within actions, and at a time when the premises * * * had been sold for delinquent taxes thereon to Cascade County * * * the defendants * * * relinquished and abandoned possession of said premises to the plaintiff, and requested plaintiff to move thereon and to occupy the same and redeem it from tax sale, if possible, in consideration of which the defendants, nor would either of them, ever make or assert any claim or claims whatever to said premises or any part thereof * * *”
As a second and separate defense the plaintiff Tom Prewett alleges that, “the supposed lease, mentioned in defendants’ joint answer, was and is for a longer period than one year, and the same was never in any writing subscribed by the plaintiff or by any agent on his behalf,' thereunto authorized; that there never was, and is not now, any note or memorandum thereof, in writing, subscribed by the plaintiff or by plaintiff’s agent, and that said claimed lease from year to year, or whatever it may be, as pleaded in defendants’ joint answer, was at all times and is void and a nullity under and pursuant to the provisions of Subdivisions numbered 1 and 5 of Section 13-606, Revised Codes of Montana for the year 1947.”
As a third and separate defense the plaintiff Tom Prewett alleges that, “the supposed lease and agreement for the leasing of the lands involved * * * is void under and pursuant to the provisions of Subdivisions 1 and 5, respectively, of Section 93-1401-7, Revised Codes of Montana, for the year 1947.”
Upon the issues so presented the cause was tried before the court sitting without a jury. Ten witnesses testified on behalf of plaintiff and six on behalf of defendants and while some of the testimony is undisputed yet much of it is conflicting.
After hearing and considering all the evidence and the conflicting claims of the parties, the trial court made and filed written findings of fact, conclusions of law and gave and entered a decree in conformity therewith for the defendant Philemon John Prewett and against the plaintiff from which decree the plaintiff has appealed.
Findings of Fact. The plaintiff Tom challenges and assigns as error the making of certain of the court’s findings, wherein it found that in the month of October 1940, Philemon verbally told his brother Tom that Philemon intended to move from the described lands and that if Tom cared to, he could move on and use the land if he would pay the taxes each year and pick up the delinquent taxes against the lands; that in connection with such matter Tom testified that Philemon told Tom 1 ‘ the place is yours, move on and do as you like with it; ” that Philemon denied making the last quoted statement and testified that when he Philemon moved from the land he left his cattle there and that Tom cared for such cattle until they were sold by Philemon; that Tom knew that after Tom moved on the described lands, his brother Philemon paid off a mortgage on the lands; that most of the money which Tom claimed he had expended for improvements on the lands was in reality spent for repairs on the property; that each year Tom sent the assessment list for the land to his brother Philemon at Missoula and that while Tom paid the taxes each year the tax receipts were issued to and in the name of his brother Philemon; that while living upon the property Tom has accepted from Philemon one-half of the money that was received from time to time from gravel which was sold and removed from the lands; that Tom claims and Philemon denies that Tom verbally demanded any deed from Philemon; that the plaintiff Tom did not prove by a preponderance of the evidence that he acquired title to the lands by virtue of a parol gift as was claimed by Tom at the trial although not averred in any of his pleadings. Compare Flathead Lumber Corp. v. Everett, 127 Mont. 291, 263 Pac. (2d) 376, 385; that the plaintiff Tom did not prove the allegations of his complaint by a preponderance of the evidence; that the plaintiff Tom is not the owner of the lands and that he has no right, title or interest in or to such property or any part thereof.
In our opinion there is ample evidence in the record herein to sustain the findings so made by the trial court.
At the trial the plaintiff Tom sought to show by the witness Ben Brown the value, in the year 1940, of certain lands located near the property in question and owned by the witness Brown but not described in plaintiff’s complaint nor involved in this law suit. The trial court, sustaining defendants’ objections thereto rejected such offered evidence and plaintiff assigns such ruling as error. We fail to see the materiality of the excluded evidence and find no error in the trial court’s ruling.
There is ample substantial evidence in the record which, if believed, sustains and warrants the decree entered. The decree should be amended to also order, adjudge and decree the defendant Philemon John Prewett to be the owner in fee simple of the lands described in plaintiff’s complaint and to adjudge that the plaintiff Thomas Prewett has no estate or interest whatever therein and it is so ordered. As so amended, the decree is affirmed and defendants shall have their costs.'
MR. JUSTICE BOTTOMRY, ANGSTMAN, FREEBOURN, and ANDERSON, concur.
|
[
28,
23,
28,
20,
43,
-20,
1,
19,
25,
-6,
-29,
-60,
-9,
35,
10,
62,
-55,
-69,
-59,
-13,
-74,
-32,
-95,
-21,
54,
-14,
-38,
-9,
-28,
-10,
4,
51,
-11,
-9,
24,
18,
-21,
9,
-19,
-4,
4,
52,
60,
-9,
36,
-8,
-40,
-9,
-9,
14,
-23,
-39,
74,
-9,
-17,
-23,
28,
-4,
-9,
-11,
-16,
-14,
6,
17,
33,
0,
52,
-33,
11,
-57,
38,
9,
-31,
7,
-2,
-61,
4,
-47,
-9,
15,
17,
29,
47,
-27,
-35,
-44,
-40,
-6,
26,
61,
14,
18,
0,
37,
-22,
-43,
-10,
27,
-13,
41,
-7,
-79,
26,
2,
9,
-23,
-28,
-8,
41,
28,
-19,
-13,
4,
-1,
54,
-7,
-44,
-13,
-39,
-10,
0,
-31,
6,
-15,
-16,
-16,
-47,
61,
-14,
-17,
21,
-34,
-18,
28,
21,
-27,
4,
-71,
-35,
-57,
51,
-5,
-50,
-16,
-27,
-5,
22,
-22,
-27,
-20,
-33,
48,
-27,
18,
12,
-10,
55,
5,
-7,
-21,
49,
-18,
16,
-39,
-31,
11,
1,
8,
4,
12,
17,
15,
-55,
30,
21,
24,
66,
43,
-31,
30,
-1,
-11,
-10,
-64,
-48,
-16,
-4,
6,
-44,
-13,
25,
-42,
41,
-1,
-4,
-58,
18,
-23,
-30,
-31,
34,
-18,
-8,
38,
30,
62,
56,
31,
25,
-24,
-32,
-57,
30,
-4,
-21,
6,
0,
38,
27,
-43,
40,
44,
-10,
-42,
6,
10,
31,
-25,
16,
-7,
-54,
-36,
0,
15,
4,
-30,
-29,
-40,
-31,
20,
-32,
-72,
-25,
23,
-19,
5,
-7,
-45,
-31,
17,
8,
-5,
-59,
34,
-7,
26,
38,
-16,
-9,
-4,
-26,
-26,
16,
40,
47,
-33,
-28,
14,
26,
0,
39,
21,
50,
-25,
-37,
6,
48,
-28,
-29,
4,
77,
-33,
-22,
52,
35,
0,
-10,
2,
-59,
-34,
-25,
-9,
-46,
-59,
12,
22,
-17,
-39,
59,
7,
-32,
9,
-24,
19,
-4,
-13,
-16,
-12,
20,
-3,
-33,
21,
2,
-17,
15,
-1,
-3,
-42,
-23,
5,
22,
1,
-35,
4,
-14,
27,
34,
-6,
-27,
55,
12,
-21,
-38,
-1,
-24,
-35,
-8,
1,
-10,
-13,
22,
16,
37,
63,
0,
18,
5,
45,
-46,
39,
-20,
18,
10,
10,
-100,
-13,
3,
20,
-5,
1,
-11,
-42,
4,
33,
-71,
11,
-23,
-47,
0,
-45,
-22,
38,
50,
-5,
27,
45,
-12,
7,
-6,
35,
-43,
-6,
-32,
66,
4,
32,
2,
14,
-2,
-38,
16,
7,
22,
63,
61,
3,
23,
-16,
-67,
-4,
20,
-2,
23,
29,
2,
-19,
3,
-27,
11,
15,
12,
-27,
-71,
-59,
50,
-7,
-17,
0,
-28,
85,
30,
28,
-31,
-36,
25,
-43,
58,
-11,
-19,
9,
-9,
6,
7,
108,
80,
-6,
-63,
89,
-19,
41,
69,
17,
46,
0,
7,
-11,
44,
-17,
28,
-43,
-5,
-1,
-79,
3,
-67,
-1,
54,
2,
-47,
2,
17,
9,
46,
-11,
20,
25,
57,
-60,
49,
11,
38,
31,
-36,
18,
-17,
16,
-13,
-1,
20,
-30,
-29,
-16,
-39,
15,
36,
-32,
-60,
34,
34,
85,
61,
-50,
-3,
-19,
-13,
7,
-21,
-24,
95,
8,
-30,
-8,
26,
-6,
2,
19,
15,
-8,
-45,
57,
-1,
-93,
14,
-8,
-22,
63,
118,
-32,
-5,
-23,
41,
20,
-28,
-33,
40,
-29,
16,
14,
32,
-10,
-57,
-2,
-20,
-8,
-32,
1,
26,
46,
-3,
-46,
27,
-40,
68,
31,
-41,
27,
16,
-57,
-28,
-23,
13,
25,
2,
4,
-20,
75,
-15,
-26,
-15,
26,
14,
-44,
-36,
-69,
-15,
5,
-47,
18,
-44,
61,
-42,
0,
29,
-5,
47,
38,
-61,
23,
16,
42,
17,
-57,
29,
33,
-2,
12,
-7,
-7,
20,
13,
-21,
26,
-44,
38,
-41,
14,
16,
40,
-76,
5,
-30,
-33,
17,
12,
-13,
24,
-22,
-32,
31,
20,
-27,
47,
23,
0,
-14,
44,
-2,
-48,
27,
31,
-12,
-68,
22,
5,
-29,
-9,
-17,
-10,
-50,
13,
8,
1,
41,
19,
19,
-38,
5,
20,
-4,
-39,
21,
-1,
-57,
20,
12,
-25,
8,
-79,
25,
-18,
-28,
12,
-65,
-4,
18,
50,
10,
-26,
9,
1,
42,
-12,
-21,
-23,
-8,
-47,
15,
15,
7,
50,
25,
-20,
-32,
-44,
-28,
-20,
26,
25,
69,
-32,
-5,
25,
21,
-10,
63,
9,
48,
22,
1,
84,
-18,
-21,
16,
66,
-16,
-32,
30,
-36,
4,
-13,
8,
-4,
-16,
52,
5,
-1,
8,
-26,
-26,
-48,
0,
-3,
-3,
-44,
-53,
21,
18,
31,
20,
-49,
-8,
-41,
-34,
-11,
36,
-9,
-24,
11,
-20,
-25,
61,
45,
-29,
-3,
29,
53,
-13,
47,
-64,
-13,
16,
-81,
-13,
32,
-26,
46,
27,
-32,
19,
-42,
12,
13,
31,
4,
40,
-60,
-52,
6,
52,
3,
60,
14,
-37,
-25,
-33,
-2,
5,
-46,
5,
-40,
22,
6,
-62,
-12,
26,
-10,
18,
30,
81,
2,
11,
-20,
-24,
3,
31,
0,
43,
10,
10,
8,
-16,
0,
38,
-50,
-54,
11,
-11,
-8,
-72,
5,
28,
16,
15,
73,
73,
-16,
-13,
30,
-65,
49,
-36,
6,
4,
-28,
-23,
-15,
10,
59,
-4,
25,
0,
-34,
-2,
25,
19,
11,
-3,
-7,
-29,
-4,
49,
-12,
30,
-14,
-7,
-32,
14,
45,
-51,
3,
-45,
25,
-29,
-37,
26,
-77,
-17,
40,
34,
6,
-20,
2,
3,
18,
-53,
-28,
-21,
-50,
-12,
29,
-14,
-67,
-24,
-8,
-4,
3,
60,
-6,
-46,
37,
33,
12,
-30,
10,
29,
-21,
14,
47,
46,
41,
3,
38,
-80,
41,
-30,
1,
30,
4,
10,
27,
-68,
-83,
-22,
11,
18,
-11,
-32,
0,
-20,
-14,
12,
39,
-9,
8,
-19,
-17,
39,
16,
61,
43,
-3,
-50,
-23,
-39,
-25,
-21,
17,
16,
0,
11,
12,
-11,
-94,
-34,
-52,
15,
15,
11,
3,
87,
-36,
57,
-50,
-43,
-10,
42,
22,
11,
-16,
28,
43,
-1,
-2,
-14,
-5,
32,
58,
-29,
6,
4,
41,
33,
29,
63,
8,
56,
-10,
-34,
68,
-20,
-26,
50,
-4,
-27,
-2,
-56,
15,
50,
-36,
-6,
-42,
-43,
-2,
-20,
41,
15,
-19,
29,
101,
0,
17,
26,
-26,
52,
7,
31,
19,
-52,
-30,
-75,
16,
33,
-43,
20,
49,
13,
1,
1,
-65,
-8,
43,
-48,
-28,
-17,
8,
3,
74,
-17,
4,
-31,
-56,
-16,
-22,
-53,
0,
-21,
43,
-7,
28,
46,
14,
-36,
0,
36
] |
MR. JUSTICE FREEBOURN:
Frank R. Dryman, also known as Frank R. Valentine, charged by information in Toole County, Montana, with the crime of murder, was by a jury on January 11, 1953, found “guilty of murder in the first degree,” which jury left “his punishment to be fixed by the court. ’ ’ By judgment of the trial court, pronounced on January 13, 1953, it was “ordered, adjudged and decreed that the said Frank R. Dryman, also known as Frank R. Valentine, be * * * hanged by the neck until dead.” From this judgment the defendant has appealed.
The crime with which defendant was charged was alleged to have been committed on April 4, 1951, according to the allegations of the information filed April 11, 1951. On April 12, 1951, without benefit of counsel, the defendant, then nineteen years of age, entered a plea of guilty to the charge of murder.
• After taking evidence to determine the degree of murder, the trial court found defendant guilty of murder in the first degree and by its judgment of April 12, 1951, sentenced defendant to be, on June 1, 1951, “hanged by the neck until dead.”
Thereafter the defendant having secured counsel moved to set aside the judgment of April 12, 1951, and be allowed to enter a plea of not guilty, which motion was denied. Upon appeal from the denial of such motion, this court by its decision of February 15, 1952, in the case of State v. Dryman, 125 Mont. 500, 241 Pac. (2d) 821, remanded the cause to the lower court with directions to withdraw the plea of guilty and enter a plea of not guilty. The lower court did this and the plea of not guilty was entered on July 25, 1952. Defendant’s trial by a jury followed, resulting in the verdict of guilty, on January 11, 1953, and the judgment of January 13, 1953.
In August of 1952, and before trial to a jury, defendant petitioned and moved the trial court for a change of venue and to change the place of his trial, on the grounds: ‘ ‘ That the people of the County of Toole, State of Montana, are so prejudiced against the said defendant that he cannot have a fair trial; [and] that it is impossible to obtain a jury in the County of Toole, State of Montana, that has not formed an opinion, as to the guilt or innocence of the said defendant, such as would disqualify them as jurors. ’ ’
By order of the trial court dated October 30, 1952, it appears that “a hearing on the defendant’s request for change of place of trial was had on October 29, 1952, at which hearing evidence, both documentary and oral, was introduced by plaintiff and defendant, and * * * it is ordered that defendant’s petition for change of place of trial be denied, and that the trial * * * be held in Toole County, Montana.”
Defendant in his appeal to this court asserts that the refusal of the trial court to grant a change of venue and his petition for change of place of trial was error, and that such change of. place of trial should have been granted.
At the hearing on the petition and motion for change of place of trial, held October 29, 1952, defendant’s exhibit 1 went into evidence. It consisted of one sheet of white paper 10 inches in width and 15 inches in length, blank on one side and with printing and two pictures in red ink on the other side, several hundred copies of which were circulated in Shelby, Montana. At the top appeared the word “Extra” which was 8 inches in length with the letters 1% inches in height. Under the word “Extra” ap peared “The Shelby Promoter and Tribune of Shelby” after which appeared the printing and pictures. Stamped on the sheet in blue ink appeared the words ‘ ‘ Compliments The Shelby Promoter.” The Shelby Promoter is a newspaper published at Shelby, Montana, with a circulation, as appears from the evidence, as of April 4, 1951, to July 1, 1952, of: 1655 in Toole County; 75 in Glacier County; 80 in Pondera County; and 115 in Liberty County.
Space will not permit setting out the entire “Extra” here. It suffices to say that one of the pictures is that of the presiding judge and the other that of the defendant with “Killer” over defendant’s picture. Four columns, 8% inches of small print, purport to detail the story of the crime and of what took place in the courtroom when the defendant was first sentenced to death following his plea of guilty. The article states: “The unemotional Dryman, cold blooded killer of Clarence C. Pellett # * * took eight shots at Pellett when the begging Four Corner oilman attempted to run away from the angry hitch-hiker. * * * all of the bullets entered from the back side. Six of the seven bullet wounds were fatal * * *.
“Court Room Packed. People began milling into the Toole County District Courtroom about a half hour before the testimony [taken to determine what degree of murder defendant was guilty of] which got under way at 2:00 p. m. By 1:55 all seats were taken and there was standing room only * * *. Many high school students took seats bn the floor for the hearing. Cars lined from the bowling alley to the hospital, a distance of about a block and a half and were parked in every available spot around the court house. Inside spectators were quiet until the passing of the sentence, when they rapidly filed out of the court room to gather and talk in groups in muted or excited tones, depending on their reactions. * * *
‘1 Justice is Done. In one brief week a killer has been tracked down and captured, a confession and complete evidence obtained and sentence of death pronounced.
“It was almost like the swift and terrible justice of the old Vigilante Days except this was within the formality of the law, with the prisoner being accorded council and also full access to a jury trial or change of venue — if he had asked for it. But he did not. He must have pre-judged in his own heart the black guilt in which he perpetrated the most dastardly deed in the history of Toole County. Either that, or as it appeared he was so steeped in criminal tendencies that nothing could appeal to his warped and stony mind.
“Killer had been in Trouble Before. Frank Dryman, alias Frank Valentine, was sentenced to juvenile court * * ® at the age of 16 for robbing a liquor store * * * the Nevadan was given an undesirable discharge, and while in service his family moved to Vallejo, California * * *.
“It’s bitterly ironical that the slayer was a former neighbor and friend of Mrs. C. J. Sharp (a sister of the deceased), a kind woman who was his friend on many troublesome occasions.
“County officials were undecided following the sentencing-whether to keep Dryman in custody at the Toole County jail or remove him to the state penitentiary at Deer Lodge. ’ ’
The county officials may have been “undecided following the sentencing” as to where to keep the defendant, but such indecision appears to have crystallized into action after the appearance of the red “Extra” and resulted in a written request made by the Toole County sheriff, and approved by the trial judge, to the Montana state board of prison commissioners, at the state capitol, in Helena, Montana. This written request in the form of an affidavit and petition, signed by the sheriff of Toole County on June 5, 1951, was presented to the Montana state board of prison commissioners and is as follows: ‘ ‘ The facilities of Toole County jail are not adequate to afford proper protection for the above-named defendant [Dryman] during the period of time before the above captioned case can be concluded * * *.
“The undersigned, C. 0. Dunstall, sheriff of Toole County, Montana, respectfully requests that your honorable Board authorize the removal of the above-named defendant to the state penitentiary at Deer Lodge, Montana * * *”.
It appears that the sheriff' and one other witness appeared and testified before the prison board. Referring to such appearance before the board, the sheriff testified: “I told them at the time o-f the murder there was high feeling” against the defendant.
As a result of such request, as shown by the record, the state prison board on June 6, 1951, passed the following resolution: “Whereas: In view of the feeling in Toole County and adjacent counties against the defendant [Dryman], the Board was of the opinion that the only safe place for the defendant until the Supreme Court has acted on the appeal for a stay of execution would be the Montana State Prison.
“Now, Therefore: Be it resolved that the Board of Prison Commissioners for the State of Montana authorize and direct the Warden of the Montana State Prison to accept custody of the defendant, Frank R. Dryman, until such a time as the State Supreme Court has acted on his appeal and he is either required to suffer the penalty given him in the District Court, or is required to appear again for further court proceedings. In either instance, he is to be delivered to the sheriff of Toole County only.”
The record discloses the following discussion between the trial judge and one of counsel for defendant. ‘ ‘ Mr. 0 ’Connell: If it please the Court, I find that the record does not contain any copy of the petition for removal to Deer Lodge. The Court: Well, I signed or endorsed the original which went down to the State Board of Pardons at Helena, and there is no copy in the record. I checked that myself. However, your copy has been offered and received by the court in evidence. I was familiar with it before because I endorsed or signed it when it was first made. Go ahead.”
It appears that the defendant is still being kept in the state penitentiary.
Placed in evidence also was an article which appeared “in the issue of the Shelby Promoter dated November 22, 1951,” which appears to be comments on proceedings of and matters filed in the first appeal to the Supreme Court of Montana, before such appeal was argued or decided by this court. In part such article reads: “After three postponements attorneys W. M. Black and Jerry J. O’Connell finally presented their briefs before the high bench while County Attorney Hoyt remained in complete darkness as to what was going on. Only through the newspaper columns could he learn about the strange case in which a 20 year old hitchhiker from California killed the father of six children when he ‘begged for mercy.’
“Hoyt will now have an opportunity to file his briefs after he receives a copy of the arguments submitted to the court by Black and 0 ’Connell. It may be early in 1952 before the hearing-on the appeal will be heard by members of the high bench who have been lenient with the defense in allowing them extra time to prepare their case.
‘ ‘ History of the case is well known to Toole County residents although several have been wondering- about the shenanigans [ trickery, foolery, eArasion | down at Helena. “ i:= *
“Attorney Black and O’Connell Avent as far as to say that Dryman’s trial [the taking of'eAddence to determine the degree of murder after the plea of guilty] ‘was but briefly removed from mob A’iolence. ’ * * They continued in their charge that the case Avas permeated with an ‘atmosphere of lynch action, vindictiveness and hot-blooded disregard of the rights guaranteed every defendant. ’ * * #
“Dryman’s request for a new trial, turned down by Judge R. M. Hattersley, .came after Governor John W. Bonner twice refused to grant clemency or suspend or stay execution of the death sentence including an examination of the youth by three state psychiatrists and a psychologist who said Dryman was sane at the time of the brutal killing. Said the examining psychiatrists and psychologists, ‘There is no question about the guilt of the defendant or the brutality of his crime. ’ * * *
“It’s up to County Attorney'Hoyt to file his answer to the. strong-tongued statements of the defense counsel.
“‘Whether he’ll receive as lenient treatment as the defense has from the high bench will be told only through time. Why they keep the county attorney in the dark as to what goes on, must have some sort of a significance.
‘ ‘ It may come to light in the months to come.
“Meanwhile, the slaying of an innocent cafe operator who befriended a hitchhiker by giving him a ride in his comfortable automobile and ‘begged for mercy’ before the youth pulled his .45 calibre automatic and pumped seven shots into his lifeless body receives plenty of laxity, newspaper space, but no definite action for the atonement of the hideous crime.”
At the hearing upon the request for a change of place of trial witnesses were sworn and testified. Those called by the defendant testified he could not have a fair trial in Toole County while the state’s witnesses testified he could.
It is significant to note, however, that many of the state’s witnesses testified that they thought the defendant was guilty. As one state’s witness put it: “I think the general opinion is that the man confessed the crime and the court passed judgment on him and they went along with the court. * * *
“Q. In other words, do you believe that the same feeling exists today that existed a year and a half ago? A. I would say so.” Another state’s witness expressed himself this way: “I didn’t form any opinion until the judge passed sentence that he was guilty. I took it for granted that he was. ’ ’ Another state’s witness, speaking of discussions with other people, said: “I think they believed in the opinion of the court.
“Q. They felt the man was guilty and ought to be hung? A. They believed he was guilty.” Another state’s witness, speaking of other persons he had talked to, said:
‘ ‘ Q. When you discussed with them did they say the defendant was guilty or not? A. Before or after the trial?
“Q. Before he was sentenced to hang, what did they say? A. I believe all of them expressed the opinion that he was guilty.
“Q. And after he was sentenced? A. Believed that he was sentenced correctly.”
One of the jurors who sat in judgment of the defendant, after challenge denied, when examined as to his qualifications to sit as such juror, testified:
‘ ‘ Q. When you and your wife discussed the case for instance, did you express any opinion at that time as to the guilt or innocence of the defendant? A. We thought the judge had the right idea.
“Q. You thought the judge had the right idea? A. Yes, sir.
“Q. What do you mean by that? A. Well, he found him guilty.
“Q. And sentenced him to hang. Is that what you mean? A. Yes, sir.”
R. C. M. 1947, sec. 94-6901, provides in part that: “A defendant * * * may be awarded a change of place of trial upon his petition, on oath * * setting forth that he has reason to believe that he will not receive a fair trial in the court in which | his case is pending] * * * which petition shall state the facts upon which the same is based, * * *
“4. That the people of the county are so prejudiced against the defendant that he cannot have a fair trial; or,
“5. That it is impossible to obtain a jury in the county that has not formed an opinion, as to the guilt or innocence of the defendant, such as would disqualify them as jurors.”
Article III, sec. 16, Montana Constitution, guarantees that: “In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, subject to the right of the state to have a change of venue for any of the causes for which the defendant may obtain the same.”
R. C. M. 1947, sec. 94-4806, provides: “In all criminal prosecutions the accused shall have the right—
“1. To appear and defend in person and by counsel;
“2. To demand the nature and cause of the action;
“3. To meet the witnesses against him face to face;
“4. To have process to compel the attendance of witnesses in his behalf;
“5. A speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, subject to the right of the state to have a change of venue for any of the causes for which the defendant may obtain the same.”
It can be seen by reading the foregoing sections of our statutes and Constitution that, upon a proper showing, in order to secure an impartial jury or a jury that has not formed an opinion, as to the guilt or innocence of the defendant, such as would disqualify them as jurors, or for any other cause stated in section 94-6901, either the state or the defendant is entitled to a change of venue or change of place of trial.
To deny a defendant in any criminal ease the right to a change of venue or place of trial from a county where he cannot be tried by an impartial jury is to deny such defendant the fair trial guaranteed by Article III, sec. 27, of our State Constitution which provides that: “No person shall be deprived of life, liberty, or property without due process of law.”
The action of the trial judge and sheriff in having the defendant kept in the state xoenitentiary, and not in the Toole County jail, followed by the finding of the state prison commission, consisting of the governor, secretary of state and attorney general, in its resolution granting the request of such judge and sheriff that, “In view of the feeling in Toole County and adjacent counties against the defendant, the Board was of the opinion that the only safe place for the defendant " * * would be the Montana State Prison,” leads to the conclusion that there was such a feeling and prejudice in Toole County that defendant might have been lynched if he had been kept in Toole County.
No one in a county, speaking generally, has a better opportunity than the sheriff, with his ears, and those of his deputies, to the ground, coupled with their many personal contacts, so- daily, politically and in the line of duty, to finger the pulse of its people and determine their sentiments and feelings on any matter of great or public interest. It was after reading the sheriff’s affidavit and request, and hearing him and another witness from Toole County, that the state prison commissioners concluded that “the feeling in Toole County and adjacent counties against defendant” was such “that the only safe place for the defendant " * " would be the Montana State Prison. ’ ’
Nor can one lose sight of the fact that the trial judge, a jurist of long experience and discerning judgment, who acts, not hastily but only after calm and deliberate consideration also recognized the danger to defendant and approved the removal of defendant to the state penitentiary for safe keeping.
In seeing that defendant was kept in the state penitentiary thus preventing possible mob violence, the sheriff and trial judge did the right and proper thing.
The red “Extra” and the news article of November 22, 1951, go beyond the mere printing of news and the dissemination thereof. The conclusions and thoughts of the author tended to fan the flame of high feeling against the defendant rather than to quench it. The November 22nd article tended to give its readers the impression that the law and its procedures were deliberately, by trickery, delay and favoritism, defeating justice. It sought quicker action in bringing about the hanging of the defendant than the law could in due course provide.
The general morality of the law is higher than many good people suppose. Such good people are not without conscience but without sufficient light. Left to such writings as that of November 22nd such light would be entirely extinguished.
Our government is one of law which is no mere empty formality to be followed in one case and overlooked in another. Courts are sworn to see that our laws and the provisions of our Constitution are carried out, and that every right accorded thereby to a defendant be given him, regardless of expediency, dissatisfaction of others, or benefit to be gained or lost. If this were not so, the will of man would prevail. Then, like the seasons of tlie year one following the other, as the wheel of time turned and men changed, what would be just today would be unjust tomorrow. No rule to guide or measure man’s conduct would exist.
True, the law moves slowly and deliberately in its desire to see justice done. 'It may seem to delay, but it does not stop or prevent justice. It does justice. Like pure gold it needs no gilding. Men, whomever or wherever, must abide by it. If dissatisfied with a law, man should change it, not violate it or encourage its violation.
The question of insanity, as shown by the record, is a serious one and none but an impartial jury should pass upon it.
One who reads the record in this case must come to the conclusion that the wide-spread and deep-seated opinion in Toole County is that defendant is guilty and should be hanged and that such opinion largely arises from defendant’s plea of guilty first made, followed by the trial court’s first sentence of death.
Under the circumstances here existing, it seems natural that such opinion should exist in Toole County. However, the existence of such opinion, as shown by the laws and Constitution heretofore set out, entitles the defendant to a change of venue and place of trial.
For the reasons staetd the judgment of conviction is reversed and set aside, and the cause is remanded to the district court for a new trial, with directions that the change of venue and place of trial be granted from Toole County to some other county not adjacent thereto.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICE BOTTOMLY, concur.
|
[
34,
-16,
35,
-53,
-32,
-88,
49,
-4,
-48,
30,
-6,
-20,
-27,
-61,
-1,
-32,
32,
-35,
51,
21,
-93,
-34,
-8,
-50,
36,
-5,
-85,
6,
-42,
-28,
46,
11,
9,
-26,
12,
19,
-8,
-22,
-5,
-15,
14,
-29,
6,
-30,
84,
40,
-5,
1,
-53,
-61,
47,
-3,
33,
3,
-38,
-13,
78,
11,
-14,
33,
-14,
19,
-18,
3,
-31,
11,
-37,
-20,
-20,
-52,
39,
-103,
27,
21,
-5,
-21,
-33,
4,
5,
0,
-6,
91,
24,
-31,
-12,
-52,
-45,
-6,
23,
-8,
80,
-29,
44,
25,
-25,
-61,
24,
-14,
-71,
-32,
17,
-39,
-62,
-49,
-6,
-24,
-64,
1,
26,
42,
-57,
30,
62,
86,
-30,
-79,
-14,
-8,
34,
20,
-33,
-37,
24,
17,
-38,
50,
22,
4,
6,
0,
30,
-12,
76,
-13,
17,
-9,
-53,
-6,
-7,
-7,
-1,
14,
-12,
-29,
0,
-11,
-2,
19,
36,
70,
-41,
-18,
20,
35,
26,
-12,
14,
-57,
-44,
14,
-51,
-54,
25,
-5,
31,
-19,
-65,
-14,
-60,
-51,
-49,
29,
27,
23,
-13,
43,
-40,
-23,
-1,
22,
-31,
23,
-2,
-76,
-3,
27,
59,
28,
-31,
42,
5,
-48,
25,
-9,
15,
-26,
-20,
-48,
37,
33,
25,
-14,
5,
6,
-66,
2,
25,
-28,
94,
54,
-16,
-46,
-28,
28,
-54,
0,
-15,
22,
-5,
-4,
-41,
45,
48,
42,
16,
-13,
23,
79,
-11,
10,
1,
67,
3,
-2,
27,
-11,
-74,
29,
-29,
0,
-63,
-102,
59,
-2,
-1,
76,
-14,
-31,
-99,
-26,
23,
11,
18,
50,
-46,
2,
-3,
-28,
-13,
0,
22,
-33,
40,
-8,
-12,
40,
-5,
3,
18,
-55,
34,
7,
48,
1,
49,
17,
13,
4,
50,
-34,
41,
-15,
-32,
-82,
58,
-1,
-8,
29,
-89,
-32,
-30,
11,
15,
-38,
51,
0,
43,
-33,
40,
-82,
25,
26,
-42,
0,
12,
24,
-55,
-10,
-28,
-21,
-36,
-66,
40,
5,
22,
-23,
7,
-37,
73,
4,
-15,
-22,
-20,
1,
-21,
29,
-26,
78,
-30,
105,
-28,
-4,
-50,
-31,
-18,
-50,
-48,
50,
-11,
10,
-6,
-33,
-23,
-14,
-30,
20,
66,
71,
-67,
-27,
-25,
-33,
34,
-7,
-110,
-4,
13,
2,
64,
-65,
15,
-25,
-65,
34,
11,
-33,
-35,
-40,
-46,
24,
17,
15,
15,
-56,
-13,
76,
-4,
5,
-36,
10,
-18,
38,
52,
42,
9,
32,
0,
-75,
-15,
33,
-20,
92,
-36,
-50,
74,
95,
64,
-35,
33,
-10,
13,
19,
30,
-47,
-40,
42,
-58,
19,
-31,
9,
78,
-4,
48,
-34,
17,
-71,
-56,
-41,
-20,
-37,
62,
31,
51,
-20,
14,
-6,
43,
15,
-7,
-8,
107,
44,
-17,
-26,
9,
26,
-8,
75,
2,
12,
-66,
-49,
65,
-33,
61,
-23,
28,
0,
96,
-1,
-31,
39,
-57,
-29,
4,
36,
-26,
41,
33,
14,
-2,
8,
16,
-90,
33,
-50,
0,
-29,
-16,
56,
-3,
13,
-26,
57,
-53,
-10,
51,
-55,
-6,
-9,
0,
-39,
0,
42,
30,
21,
-55,
-2,
-3,
24,
-35,
9,
-24,
-5,
-61,
60,
-22,
-22,
23,
-4,
-69,
-10,
-47,
12,
7,
12,
53,
4,
-28,
-17,
-28,
62,
21,
-26,
3,
-37,
33,
17,
-3,
52,
-88,
34,
25,
-14,
-44,
-9,
-49,
2,
1,
11,
-9,
-43,
-44,
-52,
14,
-5,
-26,
-61,
19,
-45,
106,
-18,
97,
46,
-14,
12,
68,
40,
-2,
0,
0,
-19,
35,
-5,
-24,
12,
-28,
-54,
27,
5,
98,
-18,
19,
69,
-32,
-10,
-86,
-16,
55,
-9,
47,
60,
-37,
29,
34,
7,
-28,
47,
6,
66,
21,
-23,
53,
43,
11,
-11,
-17,
23,
14,
57,
-59,
27,
3,
-2,
13,
12,
-2,
22,
-19,
-57,
-63,
34,
29,
63,
36,
-9,
4,
29,
44,
-25,
-5,
-18,
37,
32,
-28,
30,
2,
-37,
-35,
-13,
1,
-48,
-3,
14,
56,
-34,
10,
-25,
33,
-21,
-57,
-8,
22,
17,
-43,
-85,
5,
-5,
4,
17,
-38,
-26,
21,
20,
-40,
0,
-46,
-38,
-9,
25,
14,
-33,
-67,
-23,
-12,
-74,
-36,
3,
1,
70,
-3,
49,
-78,
20,
-20,
59,
28,
-39,
-22,
-9,
90,
-43,
-91,
-88,
-53,
-45,
32,
13,
33,
-9,
64,
43,
40,
6,
9,
50,
27,
22,
14,
27,
-44,
55,
21,
62,
-24,
72,
75,
-51,
-16,
-13,
36,
-19,
-27,
48,
-54,
-15,
36,
-52,
-55,
-19,
-50,
-1,
-24,
27,
-36,
22,
-70,
-10,
13,
42,
-91,
-20,
-67,
0,
59,
-57,
-28,
42,
-15,
0,
49,
-14,
-71,
13,
30,
47,
-10,
23,
-22,
-11,
-5,
-82,
-15,
-51,
-53,
-19,
6,
-79,
4,
0,
41,
61,
8,
-9,
30,
-6,
57,
75,
-39,
-11,
71,
36,
37,
20,
-56,
7,
35,
-20,
27,
46,
-2,
1,
-52,
-48,
-15,
31,
-43,
-45,
17,
-24,
56,
32,
-29,
-4,
7,
59,
-35,
51,
21,
-57,
3,
-30,
-44,
-3,
-5,
26,
-98,
-6,
-53,
90,
-34,
17,
-72,
12,
14,
-49,
70,
50,
-28,
18,
6,
91,
30,
-21,
-1,
-21,
20,
55,
-8,
28,
35,
-56,
14,
0,
2,
-38,
16,
8,
-1,
21,
1,
60,
-3,
0,
-21,
-2,
-19,
2,
-17,
23,
12,
-12,
24,
-22,
42,
-46,
49,
43,
39,
-6,
66,
14,
-23,
20,
-94,
4,
20,
-41,
-58,
43,
-14,
-58,
2,
-20,
26,
27,
58,
-27,
-45,
-35,
9,
-60,
22,
35,
-36,
7,
20,
0,
37,
-35,
10,
16,
33,
29,
-37,
-48,
1,
18,
0,
-5,
-38,
16,
-18,
4,
41,
-33,
-32,
-18,
0,
-24,
-2,
-21,
37,
-29,
42,
-96,
12,
17,
-16,
64,
46,
-44,
-56,
4,
4,
-30,
-27,
-6,
36,
7,
-49,
46,
26,
49,
-19,
34,
5,
-8,
-17,
53,
-25,
56,
37,
-47,
7,
19,
59,
-34,
-8,
-14,
53,
54,
10,
-45,
60,
53,
34,
-52,
47,
13,
10,
28,
-3,
68,
33,
-20,
27,
8,
77,
49,
-1,
27,
-3,
25,
-40,
85,
-3,
0,
77,
46,
20,
34,
24,
7,
58,
-19,
26,
-21,
42,
10,
-60,
24,
2,
-16,
49,
-47,
12,
-27,
-28,
-30,
28,
-56,
-61,
48,
-18,
15,
-7,
-89,
-71,
-48,
49,
29,
13,
-25,
30,
-16,
82,
-26,
4,
48,
-49,
5,
-20,
-34,
-1,
55,
-13,
-2,
-15,
33,
-90,
-24,
-39,
52
] |
MR. JUSTICE ANGSTMAN:
Defendant was accused by information of the crime of running and conducting a punch board whereby the players for a consideration might win a two-pound box of candy by chance.
Defendant’s demurrer to the information was sustained. Judgment in favor of defendant dismissing the information was entered and plaintiff has appealed.
The information charges that defendant on April 10, 1953, “did wilfully, unlawfully, wrongfully, knowingly and intentionally keep, permit, run or conduct, or caused to be run or conducted, for money one punch board, such punch board being a device where the player pulls or punches a tab out of a card and pays the amount so indicated under each tab by number up to a maximum amount of 39^ and a minimum of one cent per tab, * * * for the purpose of obtaining a chance to win a two-pound box of chocolate candy, of value unknown, at a certain place of business in the city of East Helena, Montana, to-wit: at the Y. F. 'W'. Club, in the City of East Helena, Montana. ’ ’
The demurrer was on the following three grounds:
1. That the facts do not constitute a public offense;
2. That the information contains matters which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution;
3. “That the defendant has, at all times, been willing, and is now willing, to abide by tbe laws of the State of Montana to pay for the operation of punch boards, but the responsible officials of the State of Montana have refused, and still refuse to accept payment of tax or otherwise for the operation of punch boards as provided for by the laws of the State of Montana. ’ ’
The judgment of the court was that the demurrer be sustained in all particulars.
The state contends that the information charges defendant with a violation of our statute defining lotteries, R. C. M. 1947, sec. 94-3001, as construed by this court-in State v. Hahn, 105 Mont. 270, 72 Pac. (2d) 459, and State ex rel. Harrison v. Deniff, 127 Mont. 109, 245 Pac. (2d) 140, and therefore the contention that the information contains facts which constitute a legal justification or excuse and that defendant is willing to pay the tax for the operation of punch boards is not well taken, because it is not competent for the legislature to authorize lotteries in view of Article XIX, see. 2, of our Constitution, and the case of State ex rel. Harrison v. Deniff, supra.
Defendant contends that the ease is not ruled by R. C. M. 1947, sec. 94-3001, relating to lotteries, but is governed by R. C. M. 1947, see. 94-2401, which purports to authorize the use of pull boards or ticket boards upon the payment of a license fee for the disposal of goods constituting the stock in trade of the operator, and that R. C. M. 1947, sec. 94-2403, exempts certain organizations from the provisions of the Act. It is his contention that he is exempted from the licensing feature of section 94-2401 because he runs the V. F. W. Club in East Helena and relies on the case of State ex rel. Replogle v. Joyland Club, 124 Mont. 122, 220 Pac. (2d) 988.
Defendant also relies on Chapter 201, Laws of 1951, R. C. M. 1947, see. 84-5703 et seq., which on its face purports to authorize the use of punch boards as trade stimulators upon the purchase of a use tax stamp. He attempts to escape the ruling in State ex rel. Harrison v. Deniff upon the ground that what this court said in that case was dictum so far as it held R. C. M. 1947, sees. 84-5701 and 84-5702, unconstitutional because they had already been repealed by the 1951 legislature by Chapter 201. The difficulty with that contention is that sections 84-5701 and 84-5702 had not been repealed at the time the Deniff action arose and at the time the acts relied on in the Deniff case took place and at the time the judgment appealed from was entered. The acts in the Deniff case were alleged to have been committed on January 9, 1951. Judgment was rendered February 28, 1951. Chapter 201, Laws of 1951, which repealed E. C. M. 1947, secs. 84-5701 and 84-5702, was approved March 5, 1951, and because of E. C. M. 1947, sec. 43-507, was not effective until July 1, 1951. Likewise Chapter 201, Laws of 1951, while repealing E. C. M. 1947, secs. 84-5701 and 84-5702, re-enacted many of the repealed provisions and the rule is that the re-enacted provisions continued in force without interruption. It is stated in 50 Am. Jur., Statutes, sec. 576, p. 573, as follows: “The general rule that where a statute is repealed, and all or some of its provisions are at the same time re-enacted, the reenactment neutralizes the repeal, and the provisions of the repealed act which are thus re-enacted continue in force without interruption so that all rights and liabilities which have accrued thereunder are preserved and may be enforced, is applicable to legislation relating to crimes. Hence, where the statute repealed is re-enacted in substantially the same terms by an act which takes effect at the same time as the repealing act, it is continued in uninterrupted operation, and judgment may be rendered upon a conviction under it, though the offense was committed and prosecution commenced before the repeal.” Our statute recognizes this rule. E. C. M. 1947, secs. 43-510 and 43-514.
Defendants in the Deniff case were relying on Chapter 298, Laws of 1947, being E. C. M. 1947, sees. 84-5701 and 84-5702, and the fact that those sections were repealed after defendants performed the acts complained of and after the judgment appealed from was entered, but before the decision by this court, does not render the decision of this court mere dictum. What was said in the Deniff case regarding Chapter 298, Laws of 1947, has equal application to Chapter 201, Laws of 1951. It is unconstitutional as an attempt to authorize lotteries. Compare also the recent case of State ex rel. Anderson v. Village of Garden City, Idaho, 265 Pac. (2d) 328. Likewise the absence of specifications of error in the Deniff ease, as required by subsections c and d of subdivision 3 of Rule X of this court, does not make the court’s opinion dictum. That rule is simply for the convenience and aid of the court in facilitating the labors of the court. It may be waived by the court in its discretion. That was done in the Deniff case.
In the Deniff case counsel in their brief did raise and argue the points of law discussed in the court’s opinion, but through apparent inadvertence appellants’ counsel omitted to make a formal statement of the specifications of error. The alleged errors however, were raised and discussed in the brief. The omission of specifications in the brief was a mark against the author but does not serve to characterize the court’s opinion as dictum. The points of law there ruled on were involved, argued and discussed in the briefs and carefully considered by the court, and hence were not dictum. Helena Power Transmission Co. v. Spratt, 37 Mont. 60, 94 Pac. 631; Montana Horse Products Co. v. Great Northern R. Co., 91 Mont. 194, 7 Pac. (2d) 919; First National Bank of Kalispell v. Perrine, 97 Mont. 262, 33 Pac. (2d) 997; Bottomly v. Ford, 117 Mont. 160, 157 Pac. (2d) 108.
The ruling in the Deniff case likewise applies to R. C. M. 1947, sec. 94-2401, so far as that statute attempts to authorize pull boards and ticket boards as a means of distributing property by chance for a consideration as here. It is true that in the Deniff case mention was made of the existence of a “widespread pestilence” which is not shown to exist here. So far as that feature of the case is concerned, the better view is to condemn the lottery as such regardless of its widespread distribution or pestilence as did the Idaho Supreme Court in State ex rel. Anderson v. Village of Garden City, supra, and the other courts in the cases therein cited. Hence defendant’s position would be no better were the information expressly based on section 94-2401, supra.
We agree, however, with the contention of the state that the information is sufficient to state an offense under R. C. M. 1947, sec. 94-3001, when the information is considered in the light of the requirements of R. C. M. 1947, sec. 94-6412, and R. C. M. 1947, see. 94-6403.
In 27 Am. Jur., Indictments & Informations, sec. 99, p. 659, it is said: “An indictment which properly charges an offense under a statute is good, although the offense charged is not the one which the prosecuting attorney had in mind when he drew the indictment * * To the same effect is Capone v. United States, 7 Cir., 51 F. (2d) 609, 76 A. L. R. 1534.
The court erred in sustaining the demurrer to the information.
Finally defendant contends that the State of Montana through the attorney general has no right to question the constitutionality of the statute here in question. He relies principally upon the Florida case of State ex rel. Atlantic Coast Line R. Co. v. State Board of Equalizers, 84 Fla. 592, 94 So. 681, 30 A. L. R. 362. We are not impressed with the reasoning employed in the opinion in that case. It is, of course, fundamental that only those who are adversely affected by a statute will be heard to question its validity. That rule is well established. Chovanak v. Matthews, 120 Mont. 520, 188 Pac. (2d) 582, and cases cited therein.
The attorney general is the chief law enforcement officer of the state. He and the several county attorneys represent the state in all criminal prosecutions. The State of Montana is the party questioning the validity of the statute in question here and the attorney general and the county attorney are the attorneys representing the state. This is not a case where the attorney general is declaring an act unconstitutional, but he is the one representing the state in placing the question before the court for determination.
We hold that the state has a sufficient interest in laws relating to crimes and in a statute purporting to authorize lotteries to question its validity and that the attorney general and the county attorney are the proper persons to represent the state in such proceedings. Compare State v. Watkins, 176 La. 837, 147 So. 8, and State ex rel. Evans v. Brotherhood of Friends, 41 Wash. (2d) 133, 247 Pac. (2d) 787.
The judgment is reversed and the cause remanded with directions to set aside the order sustaining and to enter an order overruling the demurrer to the information and to further proceed in accordance with the views herein stated.
MR. JUSTICE BOTTOMLY, concurs.
|
[
33,
10,
15,
4,
14,
-65,
17,
-31,
-80,
57,
-2,
31,
-15,
27,
15,
-54,
-50,
-38,
19,
-5,
16,
-12,
-11,
-30,
29,
8,
-22,
13,
-30,
-16,
18,
16,
29,
-5,
-1,
75,
2,
-55,
30,
17,
4,
15,
-7,
15,
-14,
17,
-46,
-10,
62,
-58,
8,
19,
12,
9,
-19,
28,
11,
-4,
-44,
28,
-7,
-45,
28,
-17,
29,
-26,
-14,
-45,
-29,
-35,
12,
-18,
-23,
-41,
-45,
-21,
-50,
14,
-20,
39,
8,
-7,
-38,
-13,
-5,
-15,
76,
-36,
64,
-60,
-7,
-20,
6,
40,
78,
10,
7,
37,
13,
-23,
13,
-31,
-77,
0,
58,
7,
54,
3,
-38,
52,
-19,
-13,
-2,
-8,
-34,
50,
9,
13,
12,
-11,
-15,
-36,
-54,
3,
-45,
37,
16,
9,
-34,
-1,
25,
35,
5,
14,
-56,
22,
-33,
5,
37,
-8,
54,
-24,
49,
22,
19,
-59,
13,
84,
-9,
-11,
-64,
-23,
59,
15,
2,
-48,
-30,
-27,
1,
-17,
6,
-4,
-1,
19,
57,
19,
8,
-30,
10,
-52,
-70,
-28,
44,
17,
2,
63,
0,
-46,
16,
-10,
-35,
46,
13,
8,
5,
18,
0,
-75,
-12,
0,
43,
-38,
2,
3,
38,
-26,
13,
0,
-9,
-85,
12,
3,
33,
14,
29,
19,
20,
-4,
-24,
-47,
-46,
-32,
25,
-39,
-39,
-5,
-23,
-31,
24,
3,
-84,
-30,
-37,
40,
-13,
-42,
31,
3,
45,
13,
-65,
83,
19,
-26,
26,
-63,
-4,
-58,
-24,
0,
-30,
-25,
-28,
2,
57,
32,
-38,
-14,
-53,
12,
-22,
15,
-30,
3,
-28,
-23,
16,
-20,
-17,
-43,
-15,
-4,
27,
34,
-11,
-13,
18,
6,
-39,
-9,
-12,
-7,
4,
-7,
-13,
-47,
-44,
-9,
37,
-56,
15,
-8,
64,
19,
-18,
33,
-80,
22,
-16,
8,
38,
2,
18,
-8,
44,
56,
85,
-10,
52,
19,
-42,
38,
58,
37,
-2,
-13,
28,
13,
-17,
2,
18,
-39,
-55,
-33,
36,
-17,
-13,
-9,
26,
24,
66,
-4,
-17,
9,
24,
5,
21,
-37,
-28,
26,
66,
21,
-27,
-3,
-24,
-33,
19,
-37,
42,
-26,
-8,
-14,
15,
-34,
24,
52,
-36,
39,
-33,
-52,
-26,
4,
55,
-7,
23,
-16,
-31,
-15,
44,
36,
28,
39,
25,
-24,
-35,
-22,
-29,
1,
22,
40,
-30,
-19,
11,
10,
22,
30,
7,
-32,
24,
65,
-10,
14,
4,
-25,
46,
21,
45,
-59,
15,
-12,
-43,
10,
-40,
38,
65,
18,
-44,
-38,
75,
-39,
-4,
-5,
44,
-29,
40,
-68,
5,
-8,
-46,
1,
5,
10,
-32,
-34,
47,
-9,
-59,
24,
-59,
23,
46,
7,
27,
19,
43,
-56,
-39,
31,
-15,
-7,
2,
19,
-76,
-25,
-61,
13,
-34,
29,
42,
-19,
30,
0,
-30,
-12,
71,
-8,
-6,
20,
41,
-8,
15,
43,
-30,
-9,
4,
55,
15,
-26,
-9,
-38,
8,
43,
34,
7,
27,
-9,
-15,
-28,
-13,
41,
-19,
25,
-43,
6,
-1,
102,
-12,
-54,
69,
-29,
-32,
11,
19,
-24,
-32,
9,
-2,
18,
-34,
41,
-4,
-30,
-36,
-18,
-20,
32,
-23,
59,
22,
56,
-79,
-13,
17,
2,
9,
-9,
46,
-24,
-1,
16,
16,
69,
44,
-17,
72,
0,
17,
-3,
-82,
52,
18,
-17,
-77,
27,
-6,
11,
-3,
-12,
17,
-11,
-3,
-20,
18,
-72,
28,
-25,
54,
-32,
-17,
30,
9,
0,
65,
29,
-12,
0,
46,
-29,
52,
2,
-5,
11,
14,
18,
-45,
8,
-34,
-21,
8,
23,
-16,
70,
-54,
-13,
5,
1,
-67,
-21,
-15,
-2,
21,
-32,
-13,
25,
3,
1,
22,
-34,
-14,
-10,
40,
11,
-15,
-16,
-4,
17,
24,
49,
57,
0,
47,
-7,
47,
-7,
21,
27,
-50,
-19,
-43,
-13,
-25,
0,
-2,
-25,
-23,
-84,
-44,
0,
15,
-18,
29,
52,
23,
11,
-13,
83,
-37,
-67,
-22,
-12,
64,
-19,
-4,
22,
31,
-25,
-30,
-41,
-57,
-55,
-11,
-62,
29,
26,
-50,
-32,
-23,
14,
-47,
4,
-33,
74,
23,
-19,
44,
-51,
-16,
0,
15,
-4,
27,
31,
1,
-34,
-70,
-25,
9,
25,
-34,
-59,
-19,
29,
-32,
20,
-21,
29,
50,
-38,
28,
-29,
31,
-87,
-16,
-49,
40,
-2,
-76,
-44,
67,
-53,
-10,
-13,
11,
20,
-15,
12,
5,
-35,
-2,
-12,
-3,
-22,
21,
12,
8,
43,
1,
-75,
7,
-19,
-13,
4,
-24,
8,
-33,
-7,
-10,
14,
-32,
40,
8,
3,
-42,
-28,
-33,
-26,
16,
6,
-32,
12,
-16,
-46,
29,
7,
52,
6,
61,
41,
-11,
33,
11,
-4,
-97,
7,
35,
83,
-18,
-39,
-28,
56,
25,
-30,
3,
-5,
-88,
-1,
-16,
-31,
14,
33,
47,
0,
-34,
54,
11,
11,
-8,
39,
-15,
-45,
22,
29,
-11,
-1,
-55,
0,
11,
7,
54,
-18,
-38,
-16,
-31,
23,
41,
25,
-46,
-44,
41,
15,
79,
38,
4,
-14,
0,
-21,
14,
30,
32,
29,
-35,
-17,
-1,
11,
-59,
-3,
-44,
12,
-14,
-33,
24,
-8,
46,
43,
-38,
0,
30,
39,
32,
4,
-69,
0,
12,
0,
21,
4,
-47,
-10,
-16,
-19,
23,
-27,
-47,
-4,
15,
-13,
-43,
-30,
31,
0,
37,
6,
41,
-19,
-29,
41,
3,
-28,
-16,
-25,
45,
-43,
-14,
14,
-16,
14,
19,
38,
-30,
-18,
17,
6,
-18,
-1,
-26,
-3,
61,
5,
28,
42,
8,
3,
-14,
37,
9,
-70,
23,
-46,
37,
-50,
46,
12,
34,
29,
5,
3,
-15,
-8,
-1,
-65,
-1,
3,
36,
-1,
7,
-41,
-41,
-9,
-16,
-27,
-16,
-3,
-18,
-2,
-24,
-47,
-33,
-48,
48,
-29,
72,
3,
6,
-39,
10,
-19,
7,
1,
-14,
70,
60,
-37,
33,
10,
-13,
-20,
-24,
91,
24,
-26,
-20,
56,
40,
40,
-2,
47,
11,
-4,
-65,
76,
-57,
-3,
15,
-4,
-8,
40,
5,
9,
30,
38,
20,
3,
62,
5,
-13,
-4,
-26,
-37,
0,
-15,
7,
16,
22,
56,
0,
6,
-8,
-25,
40,
51,
10,
0,
22,
3,
23,
-43,
-28,
-25,
32,
-17,
-58,
-20,
4,
19,
45,
35,
18,
-25,
-5,
-39,
28,
63,
27,
-5,
6,
-25,
-14,
22,
22,
12,
13,
-16,
-56,
-38,
25,
-4,
4,
16,
14,
-80,
41,
-26,
-14,
-57,
-20,
-7,
0,
25,
1,
19,
-21,
-17,
-3,
-23,
-19,
30,
42,
76,
-34,
11,
-53,
57,
-25,
39
] |
Per Curiam.
On written motion of counsel for respondent herein and proof of due service of such motion on counsel for appellants and no objections having been interposed thereto by appellants, and it appearing on the record before us that this court is without jurisdiction to hear or determine the appeal on its merits;
It is therefore ordered that the motion be granted and that the appeal be and it is dismissed.
|
[
-49,
-26,
19,
-12,
36,
-17,
59,
-18,
-10,
-15,
-70,
1,
-90,
-29,
-57,
8,
-29,
5,
6,
-58,
-5,
42,
45,
7,
-17,
-8,
-6,
35,
47,
-1,
7,
41,
-62,
25,
-18,
-45,
48,
-16,
2,
-21,
8,
44,
43,
69,
-19,
-11,
26,
11,
4,
26,
45,
76,
-36,
-23,
-94,
-37,
-8,
-3,
48,
8,
37,
39,
15,
-17,
-31,
-39,
31,
-36,
22,
2,
-27,
13,
75,
55,
35,
-26,
36,
-11,
-4,
34,
54,
46,
22,
16,
-5,
15,
28,
17,
7,
29,
5,
-21,
-21,
-39,
-98,
79,
49,
-19,
21,
36,
2,
9,
47,
-1,
12,
-85,
8,
49,
4,
-15,
-23,
14,
-76,
-7,
-12,
58,
-8,
-13,
49,
17,
-43,
22,
0,
28,
-15,
9,
0,
-8,
8,
-26,
-5,
33,
-30,
-8,
48,
-8,
22,
-1,
49,
-33,
-10,
-48,
7,
1,
39,
-47,
-9,
36,
-34,
12,
69,
44,
-47,
51,
-9,
44,
-78,
-26,
33,
54,
39,
-36,
-47,
-11,
16,
43,
-68,
-35,
2,
13,
16,
-30,
64,
9,
-60,
31,
-26,
56,
15,
17,
18,
36,
33,
-44,
-45,
56,
-87,
23,
-6,
-86,
-41,
66,
-18,
-41,
8,
-21,
23,
-11,
0,
-24,
-61,
8,
-24,
-65,
-42,
57,
-66,
-32,
24,
-65,
53,
-24,
-32,
-8,
73,
28,
16,
2,
-11,
39,
-3,
-4,
6,
-42,
23,
-37,
-31,
36,
4,
63,
-16,
8,
-97,
-12,
85,
5,
-6,
-8,
10,
1,
-40,
17,
79,
-51,
-23,
-18,
89,
88,
50,
-15,
10,
11,
48,
-31,
35,
0,
21,
79,
-39,
-62,
19,
79,
2,
-13,
-60,
67,
42,
10,
-16,
24,
-38,
12,
-4,
17,
29,
10,
0,
-14,
32,
8,
-72,
-25,
-13,
-31,
-61,
17,
-29,
-92,
34,
3,
-40,
-3,
8,
32,
2,
40,
-63,
58,
-66,
0,
-4,
0,
-16,
17,
-20,
21,
-13,
-57,
-17,
-22,
-23,
101,
34,
-31,
-30,
68,
-25,
-56,
6,
-11,
-28,
-29,
-32,
-2,
28,
-49,
17,
-23,
23,
14,
28,
24,
43,
-10,
-38,
75,
0,
56,
55,
50,
13,
20,
-31,
14,
-20,
-45,
47,
-29,
49,
38,
-74,
-7,
-18,
-47,
42,
-17,
1,
-17,
-36,
1,
-25,
12,
71,
-39,
36,
35,
-1,
72,
-28,
-25,
14,
9,
-2,
-86,
-67,
10,
16,
-26,
39,
6,
-64,
-15,
63,
4,
20,
26,
19,
52,
-3,
-26,
-35,
-43,
16,
-8,
-54,
63,
39,
48,
13,
11,
33,
-46,
1,
45,
18,
-13,
18,
25,
26,
86,
-27,
35,
-16,
22,
68,
49,
52,
23,
47,
-16,
29,
-2,
-32,
32,
-17,
41,
-1,
3,
10,
2,
-12,
-76,
30,
64,
-21,
32,
16,
-16,
11,
67,
21,
2,
-2,
-35,
-80,
-5,
-6,
10,
-55,
-39,
6,
-1,
34,
-37,
18,
-12,
19,
81,
-50,
-24,
-8,
7,
-19,
-57,
-1,
43,
4,
9,
29,
-2,
-62,
-3,
-19,
17,
-63,
-46,
-46,
-4,
-37,
-14,
31,
20,
-3,
-26,
-37,
-10,
27,
6,
7,
-21,
-41,
-30,
-11,
-9,
-39,
-47,
-34,
3,
-65,
-2,
11,
10,
-40,
26,
-20,
-22,
-2,
-15,
79,
-80,
66,
-47,
7,
19,
44,
43,
-19,
-1,
9,
-39,
-15,
-29,
-20,
-5,
54,
-49,
-27,
23,
2,
29,
-44,
-23,
-7,
25,
-25,
-30,
-21,
-8,
27,
-12,
-41,
-8,
0,
47,
30,
33,
20,
57,
30,
25,
4,
42,
-41,
41,
23,
1,
-64,
-16,
56,
-75,
7,
-2,
-13,
2,
-28,
41,
-34,
-9,
18,
18,
8,
2,
0,
-42,
-8,
-51,
70,
-9,
-26,
-58,
-8,
-7,
-8,
-56,
-32,
-22,
-29,
-17,
56,
-20,
-61,
5,
55,
-40,
-19,
-4,
-40,
-24,
34,
51,
-26,
11,
-6,
33,
-29,
13,
-5,
40,
4,
-45,
70,
29,
-22,
31,
-59,
-63,
-35,
82,
11,
16,
-26,
39,
-27,
59,
44,
4,
-31,
-10,
-42,
18,
34,
79,
-18,
-70,
-51,
51,
13,
0,
27,
-36,
-29,
18,
-8,
-72,
26,
24,
69,
-37,
75,
42,
56,
45,
-36,
-48,
-22,
11,
21,
-8,
1,
-28,
-95,
-116,
-45,
-23,
16,
26,
-90,
-4,
2,
-7,
-31,
39,
-35,
-2,
-4,
51,
24,
39,
-53,
-48,
-6,
-32,
-6,
34,
13,
-65,
24,
23,
-67,
55,
-4,
15,
14,
-29,
23,
-50,
15,
34,
34,
-3,
25,
-59,
59,
62,
-12,
-66,
-38,
5,
-53,
-8,
-32,
-38,
-74,
6,
5,
-30,
-37,
-29,
48,
-18,
57,
23,
-5,
4,
-35,
-24,
-16,
41,
73,
-1,
-29,
-55,
36,
20,
-25,
-69,
-25,
-23,
-32,
-38,
-17,
8,
17,
19,
-9,
13,
-57,
44,
-5,
40,
66,
-66,
4,
44,
0,
-7,
63,
-30,
26,
33,
-9,
-22,
14,
17,
-9,
49,
-12,
12,
-23,
34,
-13,
1,
68,
-47,
-53,
9,
-4,
4,
65,
43,
-56,
-23,
30,
12,
68,
46,
-26,
-71,
-41,
-26,
45,
15,
-76,
17,
39,
-15,
2,
-40,
15,
-5,
-9,
9,
30,
-5,
15,
42,
-31,
49,
2,
-6,
44,
-29,
-29,
-15,
-38,
37,
66,
-40,
16,
-51,
29,
37,
12,
24,
45,
12,
20,
-15,
-16,
27,
32,
-24,
-14,
40,
-17,
-9,
0,
-24,
7,
-5,
-55,
56,
-39,
31,
37,
13,
-82,
107,
24,
-26,
-15,
43,
21,
27,
35,
-21,
37,
-43,
15,
-70,
12,
33,
33,
-26,
-27,
-22,
-83,
-8,
48,
-6,
-3,
-4,
26,
-1,
14,
-22,
78,
-6,
-18,
60,
34,
7,
-22,
-50,
23,
-48,
-31,
-38,
-76,
-38,
57,
-31,
-15,
38,
34,
33,
13,
-26,
-31,
33,
-14,
24,
82,
42,
26,
41,
-21,
16,
27,
-11,
-31,
42,
-19,
43,
67,
43,
2,
-15,
69,
-13,
51,
56,
-60,
-84,
23,
14,
32,
-40,
20,
-39,
37,
-22,
-18,
-25,
18,
-59,
-11,
-14,
-52,
60,
-69,
-23,
-33,
-23,
10,
4,
-55,
-30,
-8,
-5,
36,
-54,
-73,
2,
-30,
24,
48,
81,
38,
-14,
-51,
-17,
-33,
13,
-73,
-36,
-25,
-20,
49,
64,
-23,
78,
93,
44,
10,
-14,
-51,
-28,
21,
77,
-3,
-67,
18,
-38,
-66,
67,
-20,
-8,
39,
-53,
48,
-12,
-4,
-78,
-10,
0,
42,
0,
42,
20,
-44,
32,
-37,
-62,
-21,
53,
-4,
-11,
-98,
1,
0,
6,
76,
-5,
12,
-35,
-15,
-68,
19,
-21,
11,
-21,
8,
-27
] |
Per Curiam.
Application for writ of supervisory control. The writ is denied and the proceeding dismissed.
|
[
-14,
-85,
46,
-20,
54,
-15,
10,
-34,
-27,
0,
-67,
-16,
-33,
36,
-50,
49,
30,
3,
0,
-53,
60,
90,
42,
-4,
-40,
-1,
24,
7,
9,
9,
-77,
-67,
-37,
36,
-49,
-18,
17,
-26,
6,
-64,
24,
-1,
12,
27,
-30,
-47,
-9,
38,
-33,
33,
-27,
58,
-10,
-71,
-50,
-15,
12,
-77,
13,
-20,
-45,
52,
16,
-19,
0,
38,
-37,
-63,
18,
-3,
-7,
17,
37,
-11,
27,
-17,
33,
-20,
16,
4,
29,
36,
-19,
49,
-35,
22,
15,
33,
-3,
-9,
32,
-34,
-71,
-15,
-95,
67,
4,
-4,
-32,
50,
1,
36,
41,
-74,
-34,
-75,
76,
35,
-22,
3,
-22,
-35,
-8,
14,
26,
27,
-2,
7,
40,
42,
-33,
-2,
-20,
-31,
-3,
52,
-22,
67,
11,
1,
25,
32,
-14,
55,
16,
-25,
46,
47,
-26,
-97,
-17,
-55,
14,
37,
-21,
-56,
-4,
18,
-52,
20,
22,
-2,
-32,
54,
46,
82,
-18,
-14,
-15,
78,
-21,
-10,
6,
-12,
56,
-6,
0,
-16,
-34,
-1,
-43,
5,
-12,
-39,
-53,
-77,
-52,
31,
35,
55,
0,
36,
-23,
29,
-40,
36,
-30,
5,
-25,
-19,
-40,
70,
51,
52,
57,
-11,
83,
-70,
28,
35,
-54,
54,
-38,
-51,
-7,
-24,
-26,
-86,
23,
40,
-39,
17,
-14,
10,
61,
-14,
6,
18,
77,
31,
30,
6,
-31,
-11,
40,
-37,
-46,
5,
12,
32,
36,
-1,
-27,
45,
85,
-32,
50,
2,
29,
20,
-38,
57,
0,
24,
9,
-3,
-25,
63,
76,
-11,
-42,
16,
23,
-65,
-1,
-60,
-73,
45,
32,
-75,
5,
0,
-45,
-20,
-10,
36,
58,
45,
47,
-27,
-13,
24,
-51,
23,
39,
27,
9,
-36,
-12,
15,
-57,
-32,
-29,
-16,
-47,
-38,
42,
-89,
-12,
-16,
-22,
35,
8,
-31,
21,
-17,
-35,
-37,
-57,
-4,
-80,
-20,
-32,
32,
16,
-5,
-35,
-46,
63,
-77,
-6,
62,
9,
-16,
-65,
48,
0,
-74,
-21,
-44,
41,
-44,
-73,
30,
-16,
-4,
25,
12,
50,
48,
53,
19,
-7,
4,
-2,
62,
-6,
21,
6,
36,
-20,
66,
-29,
45,
-54,
-75,
34,
32,
13,
36,
-31,
8,
10,
-65,
84,
0,
-4,
7,
-95,
0,
25,
-23,
0,
45,
41,
0,
8,
70,
29,
26,
32,
-25,
49,
-43,
14,
-16,
9,
17,
71,
-18,
-34,
-29,
75,
60,
-14,
51,
17,
44,
17,
-7,
-44,
-36,
-71,
3,
-49,
16,
25,
76,
29,
24,
39,
-98,
-70,
27,
39,
-67,
43,
27,
8,
-25,
-83,
65,
8,
11,
-15,
22,
5,
12,
78,
-24,
-8,
16,
-43,
66,
-58,
33,
-46,
-26,
7,
40,
-34,
16,
8,
15,
-27,
-25,
25,
-36,
16,
69,
30,
-41,
44,
-22,
-17,
-19,
-53,
-50,
-50,
-25,
-43,
-16,
-64,
-74,
-1,
-26,
10,
77,
-15,
51,
-45,
-26,
14,
-24,
-10,
3,
23,
2,
36,
15,
-46,
-12,
-65,
4,
-72,
-41,
-58,
23,
-17,
32,
-1,
46,
2,
-59,
-34,
61,
51,
20,
8,
-8,
-12,
-21,
77,
34,
-47,
-30,
-16,
10,
-60,
29,
25,
19,
-23,
16,
65,
-9,
-29,
27,
-34,
-56,
23,
-10,
46,
60,
14,
66,
-1,
-18,
48,
32,
-33,
-45,
-19,
40,
-15,
0,
14,
-19,
29,
45,
-35,
12,
-33,
-4,
2,
-32,
-5,
46,
3,
29,
-7,
27,
4,
45,
28,
81,
-28,
40,
4,
0,
-11,
-23,
16,
39,
-36,
-64,
32,
-25,
36,
-46,
-7,
-41,
-44,
16,
-19,
34,
-15,
60,
5,
37,
52,
-43,
14,
33,
59,
-26,
69,
-19,
23,
-32,
12,
42,
0,
-19,
-27,
-29,
-27,
-56,
20,
5,
-24,
-46,
49,
-64,
32,
19,
-64,
38,
-7,
45,
-72,
24,
-2,
26,
-34,
-16,
50,
47,
-22,
-16,
82,
17,
-43,
-2,
-28,
-41,
-39,
47,
5,
71,
75,
40,
-37,
17,
0,
-12,
-55,
-57,
58,
38,
13,
42,
5,
-29,
-15,
16,
-60,
12,
-19,
-17,
-33,
-11,
98,
-84,
-3,
-45,
80,
-80,
32,
46,
53,
63,
-19,
-38,
39,
-40,
-5,
-4,
32,
-72,
-29,
-1,
-45,
-32,
-59,
16,
-36,
22,
-25,
33,
8,
5,
65,
-31,
-15,
-41,
58,
-18,
-21,
-29,
25,
0,
-17,
7,
28,
-51,
57,
14,
-55,
53,
20,
-48,
18,
13,
30,
-7,
-32,
41,
-21,
-13,
22,
-26,
9,
51,
-53,
-40,
-52,
-36,
-36,
-29,
-60,
-77,
-15,
-12,
53,
-61,
-8,
18,
29,
-57,
-28,
-8,
36,
41,
-36,
-67,
17,
-74,
35,
-1,
-12,
-1,
45,
20,
-25,
-33,
-11,
-17,
11,
-53,
22,
10,
28,
-70,
-36,
-22,
-20,
48,
33,
28,
47,
-7,
-60,
7,
-45,
-42,
50,
-54,
104,
39,
0,
-14,
10,
32,
0,
87,
-47,
-19,
-1,
32,
-1,
-27,
50,
-32,
-4,
55,
-51,
12,
51,
34,
-31,
-61,
9,
31,
49,
24,
-50,
-30,
-9,
-75,
46,
-1,
-21,
32,
34,
20,
27,
0,
30,
-55,
11,
-10,
10,
26,
-16,
17,
-72,
13,
-44,
20,
21,
5,
-44,
45,
0,
68,
43,
-20,
-7,
-22,
49,
29,
33,
38,
11,
0,
46,
0,
-33,
92,
-5,
-8,
22,
47,
-38,
-65,
42,
-15,
-2,
-40,
-16,
-15,
-34,
24,
15,
-39,
-49,
22,
8,
24,
29,
-17,
4,
71,
64,
8,
81,
-42,
39,
-56,
-11,
50,
29,
-55,
-21,
-8,
-14,
-29,
7,
21,
36,
-10,
1,
12,
28,
-27,
50,
-15,
1,
34,
2,
40,
-22,
5,
29,
13,
-19,
-64,
-42,
-13,
46,
-25,
-13,
39,
95,
23,
29,
-15,
-18,
5,
2,
31,
15,
10,
43,
13,
-5,
-8,
49,
25,
-35,
33,
-36,
-10,
11,
-8,
11,
64,
-49,
-69,
26,
-3,
19,
-13,
40,
19,
-12,
5,
8,
-80,
22,
-42,
7,
-16,
-20,
-48,
-17,
1,
3,
72,
-30,
-29,
24,
-33,
35,
-41,
-10,
-15,
23,
-44,
-1,
-31,
-15,
-84,
-24,
-12,
41,
76,
81,
-23,
-20,
-28,
-17,
41,
-27,
-8,
31,
25,
-10,
-27,
3,
46,
40,
-3,
-55,
5,
-60,
6,
34,
28,
4,
-12,
22,
-33,
-63,
-79,
-5,
17,
9,
-17,
17,
26,
5,
-34,
26,
-18,
-23,
-20,
-1,
93,
15,
34,
37,
-52,
27,
36,
17,
-54,
-25,
24,
52,
55,
18,
16,
37,
-92,
-20,
-32,
-35,
-65,
-18,
14,
36,
-55
] |
MR. JUSTICE ANGSTMAN:
Defendant has appealed from a judgment following the verdict of the jury finding him guilty of the infamous crime against nature and from an order denying his motion for a new trial.
By several specifications of error defendant contends that the information states more than one offense. The question was raised by demurrer, objection to the introduction of testimony, motion to elect and by motion in arrest of judgment. If the information charges more than one offense it is ground for demurrer. R. C. M. 1947, sec. 94-6703, subd. 3.
The information charges that defendant is accused “by this information, of the crime of a felony, to-wit: The infamous crime against nature, committed as follows, to-wit: That at the County of Deer Lodge, State of Montana, on or about the 11th day of July, A. D., 1952, and before the filing of this information, the said defendant did wilfully, unlawfully, wrongfully, knowingly, intentionally, lewdly, forcibly and feloniously assault one James Connors, then and there, a male human being of the age of ten (10) years, and did then and there, commit the infamous crime against nature upon the person and body of the said James Connors, by then and there [here follows description of the means of committing the infamous crime against nature which was alleged to be per anus and per os]. ”
It is to be noted that the information characterizes the offense as the infamous crime against nature and then in describing the manner in which the crime was committed it alleged the assault.
The information here is not open to the charge that it is duplicitous. Allegations with respect to the assault are merely descriptive of the means of accomplishing the infamous crime against nature which never could be perpetrated against an unwilling participant without an assault.
The suggestion that there was a violation of sec. 16 of Article III of the Montana Constitution for not advising defendant of the nature and cause of the accusation against him is likewise without merit. He was charged with and conviction was sought for but one crime, that of the infamous crime against nature. The balance of the information concerning which defendant complains was merely descriptive of the method by which the crime was committed. The difference between this case and that of Dunn v. State, 50 Ariz. 473, 73 Pac. (2d) 107, relied on by defendant is patent. In that case the court had before it two different statutes. One defined assault with a deadly weapon and the other aggravated assault. The information was so drawn that it would appear both statutes had been violated. Defendant had no means of knowing on which charge the state sought conviction. Here defendant was not left in the dark as to the nature and cause of the accusation. In plain and concise language he was accused of the infamous crime against nature, which of necessity, like the crime of rape, involved an assault as a part of the act. Such an information is not duplicitious. 42 C. J. S., Indictments and Informations, see. 170, p. 1127; 27 Am. Jur., Indictments and Informations, sec. 125, p. 685; Peters v. State, 177 Ga. 772, 371 S. E. 266; Bevel v. State, 213 Miss. 208, 56 So. (2d) 500; People v. Pond, 390 Ill. 237, 61 N. E. (2d) 37; State v. Horton, 209 S. E. 151, 39 S. E. (2d) 222; Whitley v. State, 188 Ga. 177, 3 S. E. (2d) 588. And compare State v. Rees, 40 Mont. 571, 107 Pac. 893.
Defendant contends that he was unduly restricted in the right of cross-examination of some of the state’s witnesses. The principal question in the case was that of identifying the person who committed the offense. To show how this question arose it is necessary to give a brief summary of the facts.
Defendant resides at Missoula. On July 11th he left Missoula by automobile and according to his own testimony was going to Butte to secure a part for an automobile. Near Racetrack one of his tires went flat and he hitch-hiked a ride to Anaconda. He went to the Harlem Club in Anaconda and the owner of the club drove him back to his ear. The tire was removed and taken to Opportunity where it was repaired; they then returned to the car and placed it on the wheel and returned to Anaconda. Defendant testified that he then returned to the Harlem Club at about 7:30 or 8:00 o’clock p. m. and remained there until after 10:00 p. m., but other witnesses testified that he did not return to the club until after 10:00 p. m. and he himself gave a different version of his whereabouts between 8:00 and 10:00 p. m. to policeman Derzay shortly after his arrest.
James Connors, the victim of the crime, testified that after he finished eating his evening meal he went to a nearby store for some candy. When returning he saw Freddie, known as Sonny, Martz talking to a man in a car on the street in Anaconda. He rode his bicycle beside the car on the driver’s side and was asked by the driver if he would like a job tying knots. He asked where the job was and was advised by the driver that it was west of town and would take only about a half hour. The witness accepted the job and got in the car, first leaving his bicycle in Junior Dahl’s back yard. The driver who was identified by the witness as defendant, drove west of town, took a side road, choosing a secluded spot in the woods, and committed the act charged. The car was a Dodge bearing a Colorado license and the fly-window on the driver’s side was broken. In accomplishing the act the boy was tied with a rope by having his hands tied to his ankles. After he was untied the boy ran to the home of Miss Hatcher, six and a half miles west of Anaconda, and she brought him to Anaconda.
Freddie Martz was with James Connors when defendant propositioned Connors to accept the job of tying knots. He saw James Connors enter defendant’s automobile. He identified defendant as the one who drove away in the car with James Connors. On cross-examination he testified that his identification was based on the fact that defendant wore a blue shirt. The police report indicated that the person who committed the act wore a maroon shirt; the report showed that the word “maroon” had been stricken out and the word “blue” inserted. This correction was made at the request of Mr. Connors, father of James. Policeman Derzay who had the custody of the report explained how the correction came to be made, which was as follows: He said when he was questioning James Connors about the crime James was nervqus and upset and it was hard to get the facts from him. When it came to the color of the shirt the witness testified: “His father and I tried to prompt him and asked him if it was a white shirt or medium colored or a dark shirt. Finally I said to the boy ‘Was it this color?’ and I thought he laid his hand on his dad’s sweater, which was maroon color, but he had a blue shirt on underneath, a blue work shirt — then I said, ‘Was it this color?’ and Jimmy Connors said ‘Yes.’ I wrote down the color maroon for the shirt because I thought he was pointing to his dad’s maroon sweater, but actually he was referring to his dad’s blue shirt underneath.” Freddie Martz was positive that defendant wore a blue shirt; he also testified that the left fly-window of the automobile was broken.
The identification of defendant was sufficient to make the question one for the jury notwithstanding some discrepancy in the evidence bearing upon his description.
But defendant contends that he was unduly restricted in the cross-examination of Freddie Martz. On direct examination Freddie testified that defendant was the man who picked up James Connors in his automobile; he identified him in the court room and testified that he picked him out of five men who were seated in the sheriff’s office shortly after the commission of the crime. On cross-examination Freddie Martz testified that defendant had on a blue shirt but he did not notice anything else about his clothing; he said that the only reason he picked out the man at the sheriff’s office was because he was wearing a blue shirt. On redirect examination the following testimony was given by Freddie Martz:
“Q. Will you explain that answer, Sonny, when he asked you, ‘ Is the only way that you identified this defendant was by his blue shirt,’ and you answered, ‘Yes,’ and now you answered that you didn’t know what he meant. Now Sonny, will you explain that — in other words. Sonny, is the only way that you could identify the defendant over there was by his blue shirt— is that the only way, Sonny? A. No.
“Q. That’s not the only way? A. No.
“Q. In what other way could you identify the defendant, Sonny? A. By his face.
“Q. By his face? A. Yes.
“Q. Anything else? A. His hair.
“Q. And his hair? A. Yes.
“Q. Now, he doesn’t have a blue shirt on now, does he? Look at him now? A. I know it.
“Q. Do you recognize him as the man who talked to you from the automobile on July 11, 1953 — 1952? A. Yes.
,“Q. Then by his blue shirt wasn’t the only way that you could identify this defendant, was it? You recognized the blue shirt, is that true? A. Yes.
“Q. And you also recognized that he had black, curly hair, isn’t that true? A. Yes.”
Defendant thereupon sought to further interrogate the witness but the court made the following statement: “Now just a moment. We have a rule in this court and I think that it is the rule in the State of Montana that you have a direct, cross and redirect examination and that is meant for the examination of all witnesses in this Court in the trial of cases. The court sees no purpose in further going into the examination of this witness. That is the rule in this Court. ’ ’ The record shows that defendant was permitted to examine the witness on cross-examination at great length. It is the right to re-cross-examination that he complains of here.
It. C. M. 1947, sec. 93-1901-10, in part provides: “A witness once examined cannot be re-examined as to the same matter without leave of the court, but he may be re-examined as to any new matter upon which he has been examined by the adverse party.” And R. C. M. 1947, sec. 93-1901-3, provides: “The court must exercise a reasonable control over the mode of interrogation, so as to make it as rapid, as distinct, as little annoying to the witness, and as effective for the extraction of the truth as may be; but, subject to this rule, the parties may put such pertinent and legal questions as they see fit. The court, however, may stop the production of further evidence upon a particular point when the evidence upon it is already so full as to preclude reasonable doubt.”
The record shows that defendant was permitted to ask all questions which he desired on cross-examination of the witness Martz relating to the question of the identification of defendant. In fact, repetition of many questions in that field of examination was quite common. We would be required to indulge in much speculation to conclude that defendant was in any way prejudiced by being denied the right to press the witness further on this subject of identifying the defendant.
There comes a time when examination on a given subject must close. Here the state on redirect examination did not bring out something new and on which defendant had not already fully examined the witness. While the court should not by a rule prohibit re-cross-examination of a witness as to new matters brought out on redirect examination, here there was no new matter developed on the redirect examination of the witness and re-cross-examination was properly denied. Compare State v. McConville, 64 Mont. 302, 209 Pac. 987, and State v. Biggs, 45 Mont. 400, 123 Pac. 410.
In the McConville Case, supra [64 Mont. 302, 209 Pac. 988], the court gave expression to views which are decisive of the question here as follows: “This court has announced the rule repeatedly that the widest latitude, compatible with well-settled principles of the law of evidence, should be allowed in cross-examination; but no court has ever stamped with approval the theory that even in a criminal case of this character, no limit can be set upon the cross-examination of the prosecuting witness, save only such as is dictated by the whim or caprice of the examining counsel.
“Speaking strictly, the alleged errors now under review do not raise the question of undue restriction of cross-examination. There is not any complaint made that defendant’s counsel were not permitted to interrogate the witness as to any facts stated in her direct examination or connected therewith; on the contrary, they did examine her at great length upon every proper subject. Reduced to its simplest terms, the complaint amounts to nothing more than this that they were not permitted to have the same questions answered over and over again. In this form the bare statement of the proposition is its own refutation. The court did not err in its rulings.”
Defendant contends that he was denied the right to further examine the prosecuting witness James Connors after the state had examined him on redirect examination. The court pointed out that the redirect examination did not elicit any new matter requiring re-cross-examination.
What we have already said in connection with the right to recross-examination of the witness Freddie Martz has equal application here and the court did not abuse its discretion in denying the right to re-eross-examine the prosecuting witness, where, as here, no new matter was developed on which the witness had not already been fully examined by counsel for defendant.
Defendant contends that the court erred in not permitting him to impeach the witness Mrs. Jackie Harris by showing that she had made a statement inconsistent with what she testified to on the witness stand. The court did not err in its ruling. Proper foundation had not been made for the impeachment. The witness Mrs. Jackie Harris was not asked whether at a given time and place and with certain persons present she had made the statement sought to be shown. She was not confronted with the so-called impeaching statement and hence the foundation for impeachment was not laid.
Defendant assigns error in limiting cross-examination of the prosecuting witness relative to a juvenile charge and in the following statement of the court in connection therewith: “The Court will make this statement. There is no record of a juvenile charge being filed in the District Court of this District that shows that the Complaining Witness has been charged with any offense or that he made complaint. ’ ’
Defendant’s counsel opened the door for the statement made by the court by the type of questions propounded to the witness Jimmy Connors implying that there had been such proceedings instituted.
This court is committed to the view that evidence of similar offenses claimed to have been committed by defendant is inadmissible. State v. Searle, 125 Mont. 467, 239 Pac. (2d) 995. Whether the prosecuting witness had been victimized by another at a different time and place, or whether he made complaint against another person is incompetent and inadmissible.
Error is assigned in permitting Pat Connors, the father of prosecuting witness, to testify as to what he observed when the witness Martz identified defendant in the sheriff’s office. He testified: “Mr. Derzay called Sonny Martz into the office where .they placed various men in a line-up around the office— men in plain clothes, and these men were mostly dressed for the rodeo — it was about the time of the rodeo here in Anaconda and they were dressed up in western outfits, plaid shirts, etc., and they asked Sonny Martz if he saw the man in here that had offered him the job and the ride, and the boy said, ‘That’s the man, ’ and the door to the office was open a little and Mr. Derzay told Sonny to go over and touch the man. ’ ’
The eases bearing upon this method of proving the identification of defendant are in conflict but the trend of recent cases is to admit such evidence.
In the note in 70 A. L. R. 911 it is said: “There is a wide split of authority on the question of the competency of the evidence of extrajudicial identification in a trial where the identity of the accused as the person guilty of the crime is in dispute. Formerly the rule excluding such testimony was applied by far the greater number of courts. In recent years, however, the tendency has been towards the admission of such testimony both' as substantive and corroborative evidence, so that now there exists a fairly balanced weight of authority on the question, with a slight preponderance of jurisdictions favoring admission.” See 20 Am. Jur., Evidence, see. 353, p. 326.
Mr. Wigmore in his work on Evidence discusses this question as follows: “Ordinarily, when a witness is asked to identify the assailant, or thief, or other person who is the subject of his testimony, the witness’ act of pointing out the accused (or other person), then and there in the court-room, is of little testimonial force. After all that has intervened, it would seldom happen that the witness would not have come to believe in the person’s identity. The failure to recognize would tell for the accused; but the affirmative recognition might mean little against him.
“The psychology of the situation is practically the-same as when Becent Contrivance is alleged. To corroborate the witness, therefore, it is entirely proper (on the principle of sec. 1129, ante) to prove that at a former time, when the suggestions of others could not have intervened to create a fancied recognition in the witness’ mind, he recognized and declared the present accused to be the person. If, moreover (as sometimes is done) the person was then so placed among others that all probability of suggestion (by seeing him handcuffed, for example) is still further removed, the evidence becomes stronger. The typical illustration is that of the identification of an accused person at the time of arrest * * Y
“This is a simple dictate of common sense, and was never doubted in orthodox practice. That some modern Courts are on record for rejecting such evidence is a telling illustration of the power of a technical rule of thumb to paralyze the judicial nerves of natural reasoning.” IV Wigmore on Evidence, 3d ed., sec. 1130, pp. 208, 210. Many cases are there cited, some taking the one view and some the other. In the note on page 214 the author in criticizing an Oklahoma case excluding such testimony said, ‘1 Courts are lamentably blind to the error of this doctrine, which flies in the face of common experience.”
The court did not err in permitting the witness to testify as to what he saw and observed regarding the identification. The only effect of the corroborating evidence is to show that the prosecuting witness identified the accused at a time when there had been no opportunity for the witness to be swayed by any suggestion of others. Defendant’s counsel was still privileged to argue to the jury that the witness was mistaken in the identification, and this is so whether one or a dozen persons witnessed the identification. In other words, the correctness of the identification still depends upon the accuracy of the recollections of the one person making the identification.
Finding no reversible error in the record, the judgment is affirmed.
MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICES BOTTOMLY, FREEBOURN and ANDERSON, concur.
|
[
12,
11,
-26,
-37,
9,
6,
4,
-22,
-16,
64,
24,
-15,
-36,
10,
0,
-63,
-52,
-60,
31,
-14,
58,
-26,
7,
-3,
25,
-46,
-1,
33,
-21,
-12,
51,
13,
-15,
-45,
14,
0,
-11,
-20,
2,
11,
-15,
18,
27,
-8,
3,
47,
-46,
41,
-42,
-12,
94,
-34,
16,
1,
-21,
-62,
17,
61,
56,
48,
-56,
14,
37,
-29,
-3,
-64,
-1,
-70,
-36,
-9,
-46,
4,
23,
-20,
-57,
1,
-34,
-7,
-12,
30,
-39,
42,
-6,
48,
13,
-35,
-35,
-40,
29,
-34,
52,
-23,
-24,
10,
45,
-54,
-31,
-1,
-29,
-29,
37,
0,
31,
28,
-22,
7,
-73,
-7,
20,
35,
5,
13,
58,
-45,
-7,
-26,
19,
-8,
-14,
-33,
6,
-65,
15,
-15,
-35,
8,
13,
-10,
-17,
43,
-37,
9,
35,
-33,
-54,
-20,
-61,
0,
20,
-13,
62,
-35,
47,
77,
40,
7,
11,
54,
62,
46,
-31,
3,
1,
-24,
14,
-57,
-16,
-54,
8,
-3,
0,
31,
-55,
-25,
24,
46,
-44,
-17,
4,
-53,
-9,
-26,
17,
31,
15,
19,
-24,
-17,
50,
40,
35,
-5,
37,
25,
-30,
-15,
-38,
-39,
-69,
58,
13,
-14,
58,
-68,
30,
22,
-16,
9,
52,
-63,
15,
-13,
36,
3,
0,
11,
33,
15,
74,
-7,
-17,
-39,
8,
-6,
-5,
-21,
-2,
-25,
22,
26,
-107,
-25,
-9,
-5,
47,
-28,
-10,
53,
-12,
13,
-33,
42,
39,
-50,
-27,
-84,
31,
6,
-2,
0,
-43,
-11,
26,
-25,
56,
73,
12,
-3,
-63,
23,
32,
-8,
0,
-17,
-47,
4,
78,
-104,
-44,
-10,
-79,
-8,
69,
46,
-98,
11,
-23,
23,
-74,
0,
-55,
17,
25,
9,
-34,
0,
-10,
12,
39,
-32,
38,
23,
56,
6,
-14,
10,
-73,
82,
-34,
-15,
21,
-15,
-14,
-15,
21,
88,
36,
-87,
-20,
7,
21,
-3,
-6,
-8,
1,
-10,
38,
6,
-18,
-11,
-5,
33,
-52,
6,
15,
10,
12,
27,
42,
-2,
-7,
-39,
-3,
-21,
-4,
-17,
-21,
-26,
-30,
14,
0,
-1,
7,
-19,
2,
-21,
-3,
-47,
6,
25,
-15,
-31,
-10,
-8,
-3,
47,
-24,
67,
-41,
17,
0,
21,
-14,
-11,
-8,
-27,
-38,
-46,
14,
-3,
26,
65,
2,
-40,
-4,
9,
-43,
-14,
28,
47,
-25,
-15,
21,
3,
-14,
-2,
22,
-26,
-48,
4,
-12,
-3,
14,
35,
57,
8,
-11,
-23,
48,
1,
-27,
-10,
-19,
14,
32,
1,
-2,
-32,
14,
-35,
2,
-25,
78,
-3,
-21,
-42,
5,
-27,
27,
-5,
42,
20,
6,
14,
33,
-39,
-49,
-26,
17,
11,
86,
-11,
69,
-45,
38,
-17,
4,
7,
27,
-51,
44,
-3,
-37,
18,
-37,
17,
-24,
3,
34,
-6,
24,
15,
-37,
-20,
11,
-23,
0,
5,
61,
-8,
-28,
60,
-40,
-86,
-21,
69,
16,
30,
2,
-17,
24,
38,
12,
-29,
27,
36,
4,
-51,
0,
26,
43,
18,
-53,
-36,
4,
50,
40,
73,
24,
-22,
32,
-2,
37,
0,
0,
1,
34,
-4,
4,
-1,
-44,
18,
-59,
41,
-30,
33,
-14,
-21,
23,
32,
-27,
-40,
-19,
58,
54,
25,
70,
0,
62,
56,
-19,
23,
0,
-47,
30,
-13,
54,
-36,
-14,
-1,
25,
-2,
15,
56,
-43,
-18,
6,
-68,
10,
16,
21,
-29,
0,
4,
46,
-2,
30,
-24,
4,
23,
14,
5,
81,
25,
17,
-35,
21,
-10,
34,
-15,
-12,
22,
33,
-10,
-28,
24,
-19,
-50,
-15,
2,
44,
18,
-62,
-25,
20,
32,
-56,
-2,
6,
10,
-4,
-2,
-36,
6,
-16,
27,
-21,
-26,
-15,
54,
4,
-47,
-14,
-5,
13,
26,
19,
-22,
62,
-32,
6,
4,
52,
-39,
-54,
20,
-72,
-9,
-8,
2,
0,
-31,
-9,
7,
-11,
-4,
-30,
-26,
-9,
11,
18,
47,
-15,
55,
1,
60,
-37,
-79,
-37,
1,
47,
-80,
-16,
51,
27,
-36,
-49,
-33,
-35,
-4,
-49,
-4,
-17,
38,
-3,
-18,
8,
40,
-35,
-1,
-3,
30,
-22,
-13,
50,
-18,
0,
-1,
28,
-19,
-51,
23,
-30,
-61,
-49,
-32,
-10,
73,
-11,
-15,
-15,
12,
-15,
-44,
27,
-13,
-32,
-36,
-15,
-52,
49,
-67,
-68,
-22,
-27,
-2,
-51,
-3,
47,
-22,
26,
-20,
32,
-32,
5,
-15,
8,
5,
21,
31,
5,
10,
35,
43,
31,
-19,
78,
-61,
-46,
24,
1,
15,
37,
24,
45,
-16,
29,
-13,
-23,
0,
-7,
45,
10,
5,
-33,
-32,
-11,
-27,
-39,
45,
-47,
21,
0,
-17,
47,
-6,
36,
17,
12,
2,
30,
-7,
12,
39,
-18,
32,
-10,
-19,
-23,
44,
53,
-89,
18,
-36,
-6,
-47,
-18,
-84,
88,
-2,
37,
5,
-3,
37,
13,
15,
63,
-47,
-36,
-24,
67,
-17,
-14,
-51,
-100,
-17,
47,
-22,
43,
19,
-22,
3,
39,
35,
2,
48,
-39,
-39,
85,
56,
16,
7,
-52,
-22,
-4,
5,
-45,
12,
2,
-15,
53,
-4,
8,
12,
-23,
-19,
-15,
-15,
-13,
24,
-15,
19,
9,
38,
-22,
-24,
25,
26,
-14,
63,
-34,
17,
-6,
-18,
24,
31,
4,
-30,
23,
-42,
-5,
57,
-36,
43,
25,
31,
2,
-65,
25,
-38,
-7,
-2,
-3,
26,
16,
18,
-23,
0,
-58,
0,
-1,
2,
-2,
-32,
25,
40,
1,
2,
-11,
-23,
-18,
31,
-41,
25,
-43,
-11,
-25,
35,
-2,
20,
-3,
-40,
7,
-1,
8,
19,
29,
-31,
22,
-67,
42,
43,
21,
45,
18,
32,
-71,
-40,
18,
15,
20,
-45,
17,
0,
-37,
-40,
-9,
-10,
-14,
-36,
30,
19,
16,
-14,
1,
-4,
-41,
17,
-11,
-23,
58,
-39,
19,
30,
-44,
-72,
-14,
-11,
-8,
46,
-16,
-37,
24,
30,
-15,
38,
-12,
66,
25,
12,
-15,
43,
72,
66,
-17,
5,
-39,
30,
-50,
62,
-10,
33,
-58,
-43,
-10,
24,
2,
-9,
24,
0,
28,
-14,
35,
-15,
-5,
21,
-13,
-57,
7,
-31,
-1,
27,
4,
-8,
20,
53,
31,
-9,
20,
5,
8,
28,
-37,
24,
-14,
13,
-34,
42,
-1,
47,
-65,
-88,
-30,
6,
9,
9,
-33,
-4,
26,
9,
-13,
-9,
-1,
-27,
5,
20,
-16,
7,
0,
3,
-22,
1,
-16,
20,
37,
3,
-9,
-13,
9,
-72,
0,
19,
8,
-9,
33,
39,
17,
43,
72,
-88,
-31,
-19,
-12,
5,
-57,
24,
49,
29,
-34,
22,
-82,
51,
-60,
47
] |
MR. CHIEF JUSTICE ADAIR:
On application of the attorneys of record for both the appellant and respondents, and stipulation filed;
It is ordered that the appeal in the above entitled and numbered cause be and it is hereby dismissed with prejudice.
|
[
-57,
-15,
11,
-42,
77,
-24,
-47,
-56,
-14,
-35,
-50,
-50,
-97,
48,
-51,
-21,
-82,
-61,
17,
-33,
61,
30,
26,
8,
-12,
-16,
18,
-9,
37,
-63,
-8,
-18,
-60,
-11,
28,
-20,
53,
5,
-46,
22,
-23,
-10,
24,
-56,
-18,
-56,
-59,
-16,
-38,
65,
10,
5,
-70,
-9,
-57,
16,
-39,
7,
31,
-5,
-22,
75,
10,
0,
35,
41,
32,
-98,
-1,
12,
-40,
3,
6,
-33,
-14,
-26,
3,
-73,
7,
11,
28,
50,
0,
75,
26,
63,
54,
50,
-27,
33,
-60,
9,
35,
-16,
12,
48,
4,
29,
-25,
29,
50,
60,
20,
-47,
-1,
0,
-53,
34,
41,
29,
63,
12,
-29,
-5,
-17,
7,
-8,
59,
45,
19,
-6,
27,
25,
11,
-24,
62,
2,
0,
-5,
3,
-3,
43,
5,
18,
28,
61,
56,
43,
-24,
7,
41,
-35,
-14,
23,
-27,
-27,
-7,
7,
-33,
10,
54,
-36,
-56,
11,
-21,
8,
59,
-77,
70,
24,
22,
16,
9,
14,
6,
25,
-30,
4,
14,
46,
43,
-12,
57,
24,
-17,
-26,
-5,
18,
44,
40,
49,
0,
26,
3,
-22,
-16,
-42,
1,
-1,
-24,
-48,
-59,
36,
6,
15,
-4,
-36,
-12,
-6,
-20,
-4,
-10,
-11,
-17,
70,
-3,
-90,
-29,
-28,
28,
-77,
40,
25,
12,
50,
61,
33,
-13,
34,
42,
6,
-28,
-17,
-12,
58,
16,
-67,
2,
79,
37,
-12,
-14,
-53,
9,
0,
-43,
-1,
18,
7,
-3,
-35,
58,
48,
-50,
-107,
56,
74,
26,
6,
-41,
127,
0,
68,
-24,
-12,
-8,
-11,
25,
-9,
-54,
0,
6,
-13,
-48,
-65,
43,
31,
-1,
-5,
-40,
-16,
22,
67,
45,
15,
24,
7,
-13,
1,
16,
17,
16,
-41,
-51,
-30,
-12,
37,
-45,
7,
20,
-7,
0,
-41,
18,
5,
-13,
-50,
49,
-12,
-43,
-35,
11,
-24,
-6,
17,
-16,
1,
-65,
25,
-11,
-21,
10,
38,
14,
6,
30,
-28,
-21,
-14,
23,
9,
-18,
-107,
0,
28,
25,
34,
45,
-13,
23,
23,
-49,
23,
-28,
-47,
22,
13,
73,
24,
19,
-41,
-18,
-31,
0,
39,
-38,
-38,
-13,
10,
31,
-42,
0,
-32,
-3,
28,
-29,
-18,
-53,
-10,
-16,
-4,
16,
51,
3,
61,
22,
-27,
14,
7,
-12,
-21,
-48,
-10,
-52,
51,
-3,
4,
-17,
-8,
32,
32,
4,
39,
-26,
-27,
49,
7,
57,
-13,
1,
19,
-9,
-8,
5,
-9,
-16,
-18,
0,
-5,
-4,
61,
-8,
-25,
-2,
-44,
21,
-35,
0,
5,
-41,
-10,
9,
-50,
26,
82,
16,
-12,
91,
-19,
-26,
60,
-14,
53,
27,
-18,
26,
21,
-32,
56,
41,
-24,
-18,
34,
21,
5,
36,
33,
30,
25,
30,
-27,
-46,
-36,
47,
-39,
-36,
-45,
16,
-18,
77,
-32,
-5,
66,
-1,
-7,
-45,
-3,
29,
5,
-4,
-15,
10,
-67,
-41,
-75,
5,
-9,
-14,
-13,
-25,
-2,
-42,
18,
-1,
6,
2,
42,
-23,
-5,
-33,
42,
-21,
70,
8,
-23,
-2,
-43,
34,
14,
-1,
-60,
-50,
-65,
-25,
-25,
-21,
3,
-54,
-84,
-55,
27,
-33,
15,
-30,
49,
-45,
-3,
-22,
13,
18,
23,
-23,
54,
3,
-40,
78,
-18,
52,
-23,
-26,
-12,
24,
37,
22,
58,
-76,
-19,
-16,
46,
46,
6,
57,
-24,
26,
15,
65,
-1,
-10,
77,
-65,
-23,
1,
50,
-6,
-5,
66,
32,
14,
1,
-6,
46,
36,
9,
13,
-27,
-35,
-70,
-52,
32,
-5,
24,
-67,
-45,
-6,
0,
48,
0,
-54,
17,
-7,
40,
-2,
-45,
36,
60,
-5,
21,
-41,
14,
-46,
-15,
-22,
-50,
-24,
-14,
-26,
-49,
-46,
26,
5,
-19,
-19,
-21,
-20,
-26,
-48,
-34,
20,
2,
76,
-22,
-3,
14,
34,
-30,
31,
12,
3,
61,
-5,
8,
57,
-85,
7,
-6,
-40,
17,
0,
6,
-3,
-7,
49,
-34,
0,
46,
-5,
-65,
-11,
-4,
-8,
36,
34,
-12,
-29,
2,
83,
-6,
-2,
-7,
-47,
-28,
10,
-1,
-39,
86,
-38,
18,
-65,
73,
20,
26,
77,
-18,
-31,
-2,
22,
-33,
-46,
23,
-33,
-61,
-17,
49,
18,
3,
23,
33,
27,
-25,
-2,
66,
68,
0,
5,
3,
21,
23,
0,
-65,
-32,
21,
-19,
-17,
10,
-4,
-22,
38,
21,
-55,
26,
-17,
-11,
-20,
-42,
3,
37,
-15,
57,
16,
-41,
-7,
-38,
43,
5,
-25,
-60,
18,
-4,
-37,
-5,
8,
-14,
-33,
24,
70,
-39,
7,
-45,
24,
-14,
16,
-31,
15,
-17,
-14,
-26,
-5,
-37,
66,
35,
-48,
-27,
-1,
-9,
-56,
-25,
24,
-6,
-30,
65,
7,
0,
47,
-1,
22,
54,
-42,
-33,
5,
-11,
37,
-37,
-24,
-12,
2,
29,
-10,
-53,
6,
21,
33,
-45,
4,
33,
26,
70,
59,
16,
-61,
11,
-13,
-32,
56,
-27,
-84,
-26,
-54,
-18,
54,
37,
0,
-61,
-90,
49,
36,
44,
-51,
-25,
18,
-52,
45,
-16,
-42,
-8,
-13,
-4,
-43,
-51,
-31,
56,
29,
73,
23,
-20,
60,
49,
-47,
73,
-32,
-14,
-40,
0,
-50,
-52,
20,
72,
5,
-11,
13,
-20,
-10,
-15,
-15,
98,
-28,
14,
25,
26,
6,
33,
76,
-50,
-11,
61,
-21,
-7,
-1,
-5,
-21,
-21,
-29,
34,
-25,
3,
19,
24,
-47,
14,
-6,
1,
-47,
10,
1,
53,
-11,
-64,
40,
-62,
-9,
0,
19,
6,
65,
-55,
-28,
32,
10,
13,
36,
-2,
-37,
-29,
-4,
7,
11,
-14,
14,
-7,
47,
-17,
-12,
0,
-34,
55,
-17,
-19,
10,
-69,
3,
-2,
62,
16,
46,
87,
-12,
38,
-38,
21,
7,
43,
-11,
-41,
34,
-2,
-19,
27,
-95,
59,
-22,
20,
38,
11,
59,
16,
27,
10,
-34,
-51,
53,
16,
56,
33,
-19,
-16,
39,
-42,
68,
39,
33,
-20,
0,
-34,
40,
-2,
2,
-28,
-81,
9,
-54,
5,
-40,
14,
10,
-47,
-1,
36,
11,
-30,
-15,
44,
27,
-36,
-37,
48,
29,
35,
-5,
2,
24,
20,
12,
-20,
-69,
37,
-59,
-22,
-58,
28,
-1,
17,
-2,
30,
39,
24,
-51,
-15,
7,
-83,
-44,
17,
-38,
-22,
46,
-24,
-29,
5,
-15,
-17,
-5,
0,
-25,
24,
-15,
-89,
-15,
57,
-85,
56,
40,
0,
27,
24,
24,
-34,
-34,
36,
-27,
21,
20,
-23,
60,
46,
-14,
28,
-32,
-122,
31,
-5,
-50,
-17,
-4,
31,
-26,
-38
] |
MR. CHIEF JUSTICE ADAIR:
On application of Rognlien and Murray and stipulation of respective counsel duly filed herein, it is ordered that this appeal be and it is dismissed on the merits and that each party to the appeal shall stand his own costs on the appeal.
|
[
-48,
-23,
12,
-55,
57,
17,
24,
-71,
-5,
-28,
-5,
-15,
-69,
-9,
-24,
-24,
-71,
-16,
-9,
-34,
56,
27,
-4,
-7,
-1,
-15,
-57,
-1,
29,
-71,
4,
-47,
-51,
30,
-5,
-11,
-10,
-19,
-3,
27,
73,
63,
11,
10,
-4,
-56,
10,
-1,
-10,
54,
-19,
-5,
-17,
-29,
-24,
72,
-14,
51,
17,
27,
-17,
9,
11,
38,
83,
-11,
66,
-58,
12,
23,
-34,
10,
56,
-23,
-4,
47,
0,
-53,
-29,
32,
13,
72,
-15,
50,
-3,
30,
19,
78,
-22,
64,
-38,
19,
0,
-33,
-41,
40,
-1,
18,
-13,
48,
34,
-13,
21,
-10,
11,
-6,
-56,
35,
2,
50,
5,
18,
0,
15,
-18,
-25,
-54,
-16,
18,
1,
61,
65,
40,
-17,
-58,
39,
11,
6,
-12,
-46,
-20,
-19,
-4,
-23,
16,
46,
42,
16,
-43,
31,
61,
8,
-18,
1,
-16,
-26,
-20,
-33,
-50,
1,
28,
-23,
12,
5,
-36,
-67,
46,
-71,
81,
-4,
43,
11,
43,
41,
54,
13,
-5,
24,
0,
15,
16,
-9,
25,
4,
26,
9,
9,
22,
-1,
11,
77,
16,
-7,
-32,
-28,
29,
-47,
52,
24,
-27,
-47,
-50,
16,
-47,
23,
-50,
7,
2,
-8,
-11,
4,
-7,
-10,
8,
52,
-52,
-59,
-20,
-19,
11,
-60,
19,
-3,
21,
5,
126,
-24,
-51,
40,
-38,
-7,
-72,
-7,
-19,
-21,
-15,
-12,
-12,
60,
-9,
-48,
10,
-55,
42,
0,
-24,
-10,
5,
11,
-24,
-37,
-34,
-16,
-64,
-31,
1,
39,
45,
51,
-23,
82,
-7,
48,
25,
-26,
17,
-5,
29,
-15,
-18,
9,
6,
-25,
-5,
-83,
29,
-1,
0,
22,
-3,
42,
46,
62,
33,
43,
-6,
30,
-14,
35,
21,
23,
-14,
-35,
25,
68,
-14,
16,
-62,
8,
4,
25,
5,
14,
16,
25,
4,
-45,
40,
36,
-16,
-64,
27,
16,
6,
46,
-1,
-18,
-29,
27,
-18,
-19,
17,
-61,
26,
13,
21,
-49,
5,
-51,
-58,
7,
-46,
-30,
22,
-23,
35,
30,
7,
69,
-20,
44,
-15,
53,
-22,
-66,
22,
15,
94,
21,
25,
-50,
-21,
-45,
-24,
23,
-43,
-43,
-15,
-14,
41,
-52,
54,
-16,
60,
28,
-42,
-29,
-32,
-22,
28,
13,
26,
47,
-6,
-35,
50,
-29,
7,
-14,
-9,
50,
-32,
-50,
-20,
28,
9,
-15,
21,
-22,
14,
11,
-1,
-6,
12,
6,
-6,
-39,
46,
-55,
21,
23,
10,
-6,
15,
30,
-33,
9,
-21,
15,
-8,
53,
-15,
-29,
26,
-61,
9,
-44,
-25,
-28,
-51,
-6,
25,
-56,
34,
55,
12,
-43,
76,
1,
-15,
85,
18,
81,
22,
-2,
3,
44,
-16,
45,
0,
-18,
-6,
12,
40,
17,
13,
37,
22,
-30,
62,
-31,
-11,
42,
75,
-29,
-25,
-66,
-22,
-26,
8,
-64,
17,
18,
-46,
-21,
-52,
-37,
16,
33,
-29,
45,
16,
-59,
-71,
-31,
-26,
0,
7,
-16,
-31,
-40,
-10,
35,
19,
7,
4,
14,
-13,
-30,
-5,
43,
-29,
-11,
-5,
-3,
-6,
0,
17,
23,
-10,
-46,
8,
-88,
-24,
-35,
-36,
7,
-50,
-83,
-62,
9,
-15,
17,
-46,
49,
-14,
42,
-30,
38,
3,
42,
-21,
0,
2,
-20,
27,
-46,
53,
-28,
-57,
5,
-45,
-4,
34,
58,
-51,
-60,
-1,
9,
59,
-80,
30,
-34,
-7,
3,
36,
-39,
-4,
60,
-84,
-53,
31,
23,
-23,
9,
55,
9,
32,
5,
-62,
73,
18,
-7,
69,
19,
-52,
-73,
-55,
-19,
-30,
75,
-9,
-59,
-17,
-32,
58,
2,
0,
28,
-19,
49,
-45,
-9,
25,
5,
-64,
-41,
1,
6,
-25,
3,
-37,
-38,
-56,
-47,
-3,
-29,
-82,
61,
-16,
-23,
25,
32,
-14,
-76,
-17,
21,
56,
-12,
106,
-83,
-11,
10,
3,
-31,
4,
15,
15,
30,
-25,
26,
72,
-39,
12,
-28,
-42,
0,
7,
-2,
-10,
-4,
-46,
-30,
-22,
54,
-13,
-66,
-57,
-28,
51,
15,
-4,
-15,
-14,
-19,
60,
-42,
16,
25,
-7,
-25,
-12,
35,
-1,
60,
-7,
41,
-55,
59,
13,
36,
85,
-4,
-46,
6,
45,
-18,
-22,
-8,
-50,
7,
-11,
50,
36,
-10,
0,
35,
36,
27,
0,
34,
19,
33,
12,
18,
-18,
28,
-36,
-88,
0,
-15,
18,
-44,
-2,
-66,
5,
-19,
-31,
-27,
35,
19,
21,
-21,
-8,
24,
-11,
6,
27,
-31,
-14,
16,
-57,
75,
14,
-50,
-63,
-23,
-5,
15,
-5,
23,
27,
-75,
45,
84,
-51,
-21,
-30,
38,
-26,
30,
-18,
23,
37,
-2,
-61,
-8,
-33,
47,
55,
-6,
-32,
-25,
-29,
-12,
0,
9,
-1,
-8,
113,
-25,
23,
52,
15,
-19,
65,
-39,
-41,
-4,
20,
11,
-37,
20,
-49,
-32,
22,
6,
-22,
53,
39,
65,
-62,
-9,
49,
64,
0,
35,
20,
-80,
-10,
20,
-18,
11,
-16,
-50,
18,
8,
15,
70,
57,
11,
-45,
-57,
22,
10,
60,
-15,
-29,
-49,
-1,
-9,
-2,
13,
-11,
30,
-2,
-12,
-88,
15,
48,
14,
30,
31,
-2,
85,
76,
4,
47,
-8,
4,
-8,
40,
-19,
-14,
-17,
50,
7,
-15,
35,
-5,
0,
-37,
31,
98,
-37,
21,
14,
41,
-72,
42,
-3,
-20,
-24,
32,
-2,
11,
-3,
-6,
2,
-17,
-84,
-12,
-17,
6,
39,
32,
-30,
1,
-28,
-4,
-28,
37,
-48,
35,
-9,
-28,
60,
-46,
30,
5,
79,
-16,
53,
13,
-32,
-10,
26,
5,
-23,
-1,
-11,
-1,
41,
35,
-19,
14,
21,
-1,
42,
33,
-6,
23,
-45,
3,
24,
-20,
62,
4,
-18,
3,
15,
0,
-16,
25,
27,
32,
-51,
-46,
-35,
29,
-17,
-49,
53,
35,
23,
29,
-58,
47,
28,
0,
-14,
9,
19,
37,
-33,
22,
-20,
17,
89,
-6,
36,
42,
-66,
8,
32,
-31,
10,
10,
-1,
-8,
-87,
-27,
12,
7,
1,
-29,
-58,
31,
-98,
-16,
-33,
26,
-25,
-18,
21,
78,
44,
9,
-41,
-3,
-22,
-35,
-34,
39,
4,
-66,
13,
-33,
18,
50,
8,
-18,
-19,
-16,
-14,
-49,
-48,
11,
45,
-28,
-50,
30,
34,
4,
-79,
-35,
1,
-91,
-34,
3,
6,
6,
31,
-39,
-50,
1,
-47,
39,
1,
19,
-16,
5,
-13,
-60,
-4,
39,
-36,
35,
31,
-16,
42,
53,
-1,
-33,
-4,
31,
6,
23,
51,
-42,
-5,
46,
-13,
-13,
-6,
-89,
59,
-27,
-34,
-51,
44,
-56,
29,
8
] |
MR. JUSTICE PREEBOURN:
Plaintiff appeals from the order of the Honorable George W. Padbury, Jr., district judge of Lewis and Clark County, which set aside defendant’s default and a decree of divorce made in plaintiff’s favor and permitted defendant to file an answer to plaintiff’s complaint in a divorce action.
The record discloses that plaintiff and defendant have been husband and wife since December 24, 1942, when they were married at "Wickenberg, Arizona. Two boys, age 7 and 10 years, are the issue of the marriage. Plaintiff has been a member of the United States armed forces since February 1944, and was stationed in California from November 1944 to January 1947, in which place the family made its home, and where defendant and the children now reside.
According to plaintiff’s complaint he was stationed in Alaska in 1947, coming to the Great Falls U. S. air force base in May 1949. Thereafter he was stationed for a time at Dayton, Ohio and again “came to Great Falls before the middle of July, 1950.”
On July 26, 1951, he filed an action for divorce in Great Falls, serving defendant with summons and complaint by publication and mailing. Defendant made no appearance in the action and her default was entered on October 13, 1951, which was followed by a decree of divorce, filed October 15, 1951, wherein plaintiff was granted a decree of divorce; defendant was given custody of the children, and plaintiff was ordered to pay defendant $75 monthly for the siipport and maintenance of the children. Motion by defendant to set aside her default and the decree of divorce granted plaintiff was filed December 1, 1951.
The record further shows that when plaintiff instituted his action for divorce in Montana, an action for divorce, instituted by Nona F. Petrol, as plaintiff, against Stanley J. Petrol, as defendant, was then pending in California, such action having-been filed November 9, 1950, wherein Stanley Petrol had filed a cross complaint on February 3, 1951.
It appears from the record that the California action was set for trial on October 2, 1951, bixt that Stanley’s attorneys “moved for a continuance based upon the attorney’s affidavit that Stanley J. Petrol had stated to him that the said Stanley J. Petrol would be unable to be present for the trial since he was an officer of the Air Force station at Great Falls Air Base, but that he would be on a special mission for 30 to 45 days; that over the objections of the said attorney for Nona F. Petrol the court granted a continuance to October 16, 1951.” The California case went to trial on October 16, 1951, which was three days after Nona’s default 'had been entered and one day after the decree had been filed in the Montana ease, of which Nona and her attorneys had no notice. The California court awarded Nona an interlocutory decree of divorce, custody of the children, and directed Stanley to pay $250 per month for alimony, support and maintenance. This amount per month had been paid by Stanley since November 14, 1950, under California court order.
When Nona received copies of the summons and complaint in the Montana case, she took them to her California attorneys who then wrote Stanley’s Montana lawyers, under date of September 15, 1951, asking: “* * * that you hold up any proceedings there until there can be a determination by Mrs. Petrol as to her ability to appear in the State of Montana in defense of your action. I do not desire to make a general appearance in behalf of my client at the present time for these reasons. I should appreciate hearing from you with reference to what I have set forth herein. ’ ’
Under date of September 21, 1951, Stanley’s Montana attorneys replied as follows: “We attempted to contact our client to discuss the matter you referred to in your letter but were unable to locate him at the base. We were advised that he is not there at present but we left word for him to call and as soon as we have an opportunity to talk with him we will write you. ’ ’
The record discloses no other correspondence between such California and Montana lawyers until December 17, 1951, after the Montana default and. decree were entered.
Defendant’s motion, filed December 1, 1951, to relieve her from the defaxilt and divorce decree, was made upon the grounds set out in R. C. M. 1947, sec. 93-3905, namely: “* * * from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; * * * When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such .defendant * * * at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action.”.
As said in Brothers v. Brothers, 71 Mont. 378, 230 Pac. 60, 61: “This section was enacted for the very purpose of giving to the courts the power to relieve parties from judgments obtained against them by reason of mistake, inadvertence or excusable neglect, and in interpreting it courts should in furtherance of justice, maintain the same liberal spirit which prompted its enactment. The rule is concisely stated by this court in Nash v. Treat, 45 Mont. 250, 122 Pac. 745, Ann. Cas. 1913E, 751: ‘Each ease must be determined upon its own facts; and, when the motion is made promptly and is supported by a showing which leaves the court in doubt, or upon which reasonable minds might reach different conclusions, the doubt should be resolved in favor of the motion.’ No great abuse of discretion by the trial court in refusing to set aside a default need be shown to warrant a reiersal, for the courts universally favor a trial on the merits.
“No two cases will be found which present the same circumstances * * *, for each depends upon its own facts, [citing authorities] and therefore applications of this character are addressed to the legal discretion of the court and should be disposed of as substantial justice may seem to require. Watson v. San Francisco & H. B. R. Co., 41 Cal. 17.”
Under the facts as shown by the record the district court properly “ordered and adjixdged that the default and decree heretofore entered in this action, against the said defendant, Nona F. Petrol, and in favor of the plaintiff, Stanley J. Petrol, for an unconditional divorce be, and the same are hereby opened and set aside, and that the answer already on file may stand as the answer to the case. ’ ’
For the reasons stated the judgment of the district court is affirmed.
MR. CHIEF JUSTICE ADAIR and ASSOCIATE JUSTICES BOTTOMLY, ANGSTMAN and ANDERSON, concur.
|
[
12,
-3,
-11,
39,
-1,
-63,
-23,
-18,
34,
-53,
9,
-12,
35,
-31,
-9,
30,
2,
26,
68,
-69,
-64,
-30,
-39,
6,
94,
16,
-11,
-23,
-38,
2,
43,
7,
-24,
-13,
12,
26,
19,
-65,
21,
54,
50,
-20,
13,
-12,
-22,
10,
-39,
-1,
2,
-6,
1,
9,
79,
38,
11,
-24,
-7,
29,
36,
-49,
-5,
4,
-22,
-12,
21,
-45,
49,
31,
28,
12,
-3,
-73,
23,
-2,
36,
-13,
-2,
1,
11,
45,
33,
21,
-2,
-38,
-17,
0,
-13,
100,
-61,
76,
5,
61,
-13,
-18,
-41,
-37,
-41,
18,
11,
25,
-23,
-19,
-14,
18,
15,
20,
-35,
-33,
28,
11,
49,
77,
10,
-53,
42,
-12,
13,
-10,
-15,
-21,
-8,
-2,
36,
40,
21,
-29,
-53,
19,
59,
-17,
-2,
34,
25,
-16,
-9,
-41,
24,
-28,
-25,
-65,
26,
-28,
39,
54,
63,
6,
16,
-52,
-5,
26,
-12,
4,
10,
61,
58,
-2,
7,
52,
4,
-38,
-1,
-34,
-41,
-11,
15,
-27,
-20,
57,
-60,
-48,
26,
22,
-10,
27,
15,
42,
7,
5,
-28,
28,
5,
3,
5,
-78,
10,
5,
-61,
3,
-59,
7,
-30,
-60,
62,
28,
23,
-5,
17,
15,
33,
-5,
5,
-36,
36,
11,
-9,
6,
21,
63,
23,
-31,
11,
13,
69,
-57,
-99,
-3,
-17,
-1,
-2,
3,
2,
-43,
-9,
-52,
-6,
-17,
30,
0,
-38,
-10,
-42,
17,
-5,
11,
15,
-8,
-9,
22,
-22,
34,
-35,
-26,
28,
-8,
10,
20,
-59,
32,
-42,
16,
41,
44,
-74,
4,
-10,
-6,
-4,
-27,
47,
10,
-23,
-9,
33,
-4,
-11,
12,
2,
-33,
32,
15,
39,
-8,
1,
-56,
-22,
-16,
-6,
-9,
-12,
30,
15,
29,
-43,
38,
23,
-23,
61,
8,
44,
-53,
-38,
-12,
-36,
-59,
31,
-4,
3,
-2,
-21,
22,
-15,
-52,
28,
13,
3,
-23,
2,
-71,
-27,
0,
34,
27,
34,
-50,
-8,
15,
0,
21,
-29,
-72,
-10,
43,
-25,
40,
-17,
102,
-54,
12,
-10,
14,
4,
-38,
-50,
7,
-9,
-58,
-4,
46,
57,
-7,
-28,
13,
46,
78,
-15,
45,
32,
-4,
-8,
16,
-21,
-23,
30,
-8,
-88,
28,
15,
-38,
-34,
4,
-5,
-20,
-30,
-62,
-12,
66,
67,
10,
-9,
11,
26,
6,
6,
-25,
2,
13,
16,
12,
-15,
28,
-32,
-22,
-31,
-3,
-20,
17,
10,
-7,
50,
-70,
1,
35,
24,
-26,
10,
12,
49,
5,
-25,
14,
16,
5,
3,
-10,
14,
-26,
26,
-5,
-69,
-25,
21,
-36,
-26,
62,
68,
-12,
-39,
27,
30,
24,
29,
21,
-7,
7,
41,
-22,
-29,
-64,
25,
7,
23,
35,
-78,
-6,
21,
11,
-29,
8,
0,
9,
-9,
62,
60,
26,
-15,
6,
20,
3,
47,
14,
-25,
-26,
11,
29,
-29,
-29,
28,
-7,
-43,
-26,
17,
76,
42,
-59,
46,
-26,
-7,
-16,
-8,
40,
-13,
33,
24,
31,
-20,
8,
13,
-21,
21,
-86,
-50,
-6,
-106,
-29,
18,
-12,
-16,
12,
56,
18,
7,
-44,
-21,
21,
-10,
-7,
-31,
2,
28,
-49,
-20,
12,
33,
20,
37,
15,
19,
6,
-8,
23,
28,
-66,
21,
-35,
16,
-16,
72,
0,
-31,
29,
-36,
47,
16,
-8,
33,
5,
63,
0,
-32,
-28,
-32,
19,
-61,
-32,
-26,
-7,
-2,
23,
-5,
-67,
64,
4,
17,
-1,
9,
12,
-51,
11,
-18,
12,
26,
43,
24,
12,
21,
5,
-12,
-1,
-38,
-12,
45,
-5,
-27,
1,
1,
15,
-60,
-16,
-25,
-10,
-28,
59,
-13,
3,
41,
35,
-19,
-22,
-53,
8,
-23,
-11,
-32,
2,
-52,
-23,
3,
67,
-6,
-29,
-78,
-34,
1,
30,
79,
-7,
31,
-5,
-33,
10,
-9,
-17,
17,
13,
-23,
-19,
-9,
33,
-17,
-50,
16,
32,
39,
-1,
0,
-30,
-30,
-47,
21,
3,
21,
-25,
9,
24,
-5,
-2,
-13,
-16,
-46,
-15,
-21,
-22,
12,
11,
61,
-28,
10,
-35,
-24,
-21,
48,
26,
13,
21,
-68,
-36,
67,
-28,
18,
14,
31,
30,
1,
0,
15,
-26,
-27,
-42,
-12,
14,
-61,
-56,
9,
24,
32,
-1,
-36,
0,
3,
2,
-85,
-7,
3,
45,
15,
10,
-2,
2,
26,
-23,
32,
-5,
-6,
-32,
-10,
14,
60,
3,
-10,
-9,
10,
5,
-35,
33,
-19,
-22,
-5,
-9,
-3,
34,
-4,
-24,
-69,
20,
-21,
35,
-19,
18,
7,
-22,
-41,
20,
30,
4,
-10,
-74,
51,
-46,
-26,
5,
-9,
23,
-52,
9,
31,
22,
-14,
-6,
6,
-13,
45,
23,
-2,
-15,
-30,
-37,
20,
-27,
-13,
-9,
-1,
-33,
20,
40,
19,
58,
55,
-29,
0,
10,
-14,
9,
14,
8,
22,
0,
-13,
-7,
-7,
14,
9,
5,
13,
-18,
-91,
-27,
-17,
-41,
30,
10,
-7,
-16,
6,
-23,
-64,
-3,
34,
16,
69,
0,
-12,
5,
4,
0,
-9,
30,
58,
-1,
41,
54,
12,
-64,
29,
-55,
-27,
3,
-68,
-31,
-33,
-19,
22,
7,
51,
32,
6,
-33,
9,
58,
-15,
34,
-46,
-24,
22,
-26,
-17,
8,
23,
24,
8,
9,
17,
-35,
11,
-4,
29,
-22,
-14,
23,
-14,
-21,
38,
-35,
77,
20,
-59,
5,
71,
-18,
-39,
0,
41,
0,
-21,
-35,
59,
18,
-2,
28,
71,
16,
29,
40,
36,
57,
-10,
-39,
-41,
-19,
-41,
9,
-35,
-9,
-27,
-36,
-13,
-23,
39,
-16,
2,
2,
49,
-9,
8,
36,
14,
-21,
48,
10,
6,
-36,
-35,
-8,
-24,
-30,
-12,
-1,
-4,
61,
-63,
6,
2,
24,
-24,
1,
-1,
37,
-4,
-4,
-45,
15,
6,
25,
-10,
-46,
-23,
-2,
-41,
-3,
19,
-7,
-2,
0,
-55,
23,
32,
35,
17,
9,
-3,
-9,
11,
-40,
-61,
10,
-42,
-23,
-45,
-39,
-4,
68,
42,
-79,
-9,
-35,
16,
65,
-20,
24,
18,
-10,
-17,
-5,
4,
7,
29,
14,
2,
-27,
-8,
43,
5,
26,
-21,
59,
-11,
-1,
20,
-13,
46,
-18,
-32,
67,
-14,
-6,
-9,
-80,
5,
59,
-44,
-40,
22,
-13,
1,
34,
3,
-50,
-33,
28,
0,
80,
18,
4,
-31,
18,
-4,
-21,
-23,
-45,
-35,
1,
12,
-40,
-14,
16,
56,
0,
34,
-29,
-19,
5,
-42,
-23,
0,
-15,
11,
-4,
-30,
-14,
11,
24,
6,
3,
-15,
-29,
-56,
45,
-11,
-16,
39,
-1,
-33,
-3,
40,
-59
] |
MR. JUSTICE GALEN
delivered the opinion of the court.
By complaint in this action, filed on February 13, 1925, the plaintiff sought to recover from the defendant the balance due on a promissory note executed by the defendant April 20, 1923, for the principal sum of $10,000, with interest, payable September 20, 1923; such balance alleged amounting to $2,511.95. In addition plaintiff asked the allowance of a reasonable attorney’s fee and costs incurred in the action. On February 15, 1925, the defendant filed its answer consisting of a general denial, and thus issue was joined. The cause was brought on for trial on June 3, 1925, before the- court sitting with a jury. At the conclusion of all of the evidence adduced by both parties, each moved the court for a directed verdict, as a result of which the cause was by the court taken from the consideration of the jury. Subsequently thereto, on June 25, 1926, the defendant moved th<¿ court for leave to amend its answer to conform to the proof, which motion was by the court granted on June 22, 1926. The amendment, so far as pertinent here, reads: “The defendant alleges that the promissory note described in the complaint herein was, long prior to the institution of this action, pledged to plaintiff, or its predecessor in interest, the National City Bank of Chicago, as security for an obligation of Stanton Trust & Savings Bank, represented by a promissory note of Geo. H. Stanton. The defendant alleges that on or about the 14th day of March, 1925, the said obligation of Stanton Trust & Savings Bank and of Geo. IT. Stanton was paid in full, and that then and there the said promissory note described in the complaint, and also the said principal obligation of Stanton Trust & Savings Bank and of Geo. H. Stanton,. were each canceled by plaintiff as fully paid, and then and there delivered and surrendered to the Stanton Trust & Savings Bank, and that at no time since has the plaintiff had possession of either of said notes, nor has the plaintiff at any time since had, nor now has any right, title, or interest in or to either of said notes.”
In substance the proof had shown the facts to be as stated in such amendment to the answer, and it comprises a sufficiently fair statement of the facts shown to exist at the time of the trial in order to understand the questions presented for decision on this appeal. On November 19, 1926, judgment was entered in favor of the plaintiff in accordance with the prayer of its complaint for the sum of $2,953.41, together with the sum of $250 allowed as a reasonable attorney’s fee, and costs incurred; the total judgment entered being for the sum of $3,313.81. The pledge contract was originally made with the National City Bank of Chicago, but the plaintiff herein is the successor in interest of that bank as a result of regular consolidation and assignments properly executed.
The only question presented for decision is whether the court erred in entering such judgment. Appellant’s specific assignments of alleged error are four in number, substantially as follows: (1) That the court erred in holding that the plaintiff was authorized to prosecute the action in view of the con tract under which, the securities in pledge were held; (2) that the court erred in holding that a suit may be maintained to enforce a pledge after the payment of the principal obligation for which the pledge was security; (3) that the court erred in not giving judgment for costs to the defendant upon the uneontroverted facts adduced at the trial, showing full payment of the principal obligation for the payment of which the note in suit was pledged; and (4) that the court erred in rendering judgment for the plaintiff in the absence of proof that the plaintiff was the owner or holder of the note sued upon, the proof affirmatively disclosing that the plaintiff at the time of the trial was neither the owner nor holder of the note, and that it had no interest in the same whatsoever. We will consider and determine the questions presented based on the merits of the alleged errors assigned.
1. By a contract executed between the National City Bank of Chicago and the Stanton Trust & Savings Bank and George H. Stanton, respecting collateral securities pledged to the National City Bank of Chicago, it is provided that: “All notes held by the second party [Chicago bank] as collateral to the Stanton obligation, are to be lodged with first party [Stanton bank] or its cashier under trust receipt, for collection and remittance to the holder of such collateral.”
It is further therein provided that none of the collateral notes are to be renewed or the time of payment extended without the written consent of the Chicago bank, but that the Stanton bank “may take additional security, and may sue in the name of the second party bank holding any of said notes to enforce payment, but at the expense of first party [Stanton bank].” In consequence of such agreement it is earnestly contended by the defendant’s learned counsel that exclusive authority to sue on any of the securities pledged was vested in the Stanton bank, and that accordingly the plaintiff is not a proper party plaintiff.
There is no merit whatsoever in this contention. We see nothing in the provisions of the contract which under any possible construction gives to the Stanton bank exclusive authority to sue upon the notes held in pledge. The mere fact that the notes were deposited with the Stanton bank for collection did not confer upon the latter the exclusive right of action. The right granted is permissive, and did not serve to deprive the pledgee of its independent right of action. As was correctly stated in the case of National Park Bank of New York v. American Brewing Co., ante, p. 542, 257 Pac. 436: “While contract provisions gave the Stanton bank the right to hold, collect, and sue upon such notes in pledge, yet thereby the pledgee did not surrender its legal rights in this respect. It could maintain action independently as pledgee, although during the existence of the contract under which the collateral securities were held, the depository was authorized to sue in the pledgee’s name.”
2, 3. What was the effect of the payment of the amount of the principal obligation after the action had been commenced by the pledgee to recover the balance due on the defendant’s note held in pledge? There can be no question respecting the legal right conferred upon the pledgee to maintain action on the note in its own name after the maturity of the pledged note, the principal indebtedness not having been paid. (Sec. 8312, Rev. Codes 1921; National Park Bank of New York v. American Brewing Go., supra.) But did the payment of the principal obligation by the pledgor during the pendency of the action in and of itself have the effect of abating the action against the maker of the pledged note? We think not.
The authorities to be found on this question are not numerous, but such as have been called to our attention are all in accord with our own view of the law; i. e., that where the debt to secure which a promissory note has been pledged is paid after action has been commenced by the pledgee against the maker to enforce payment, such subsequent payment of the principal obligation does not ipso facto operate to defeat the pledgee’s right to prosecute the action to judgment. (McNary v. Farmers’ National Bank, 33 Okl. 1, Ann. Cas. 1914B, 248, 41 L. R. A. (n. s.) 1009, 124 Pac. 286; Coats v. Mutual Alliance Trust Co., 174 Ala. 565, 56 South. 915; Houser v. Houser, 43 Ga. 415; Johnson City First Nat. Bank v. Mann, 94 Tenn. 17, 27 L. R. A. 565, 27 S. W. 1015; Logan v. Cassell, 88 Pa. 288, 32 Am. Rep. 453; National Park Bank v. American Brewing Co., supra; 21 R. C. L. 669.)
In this case the plaintiff’s right to collect on the pledged note existed at the time the action was commenced, for admittedly at that time neither the principal obligation nor the amount due on the pledged note then past maturity had been paid. Its right in this respect was conferred by reason of the default of the maker of the note, and the plaintiff because thereof became entitled to recover a judgment on the pledged note for the amount remaining unpaid. The subsequent payment of the principal obligation did not of itself dispose of the action lawfully pending on the collateral. Under such circumstances, the pledgee may proceed, as was done in this case, to judgment in the action so commenced, as trustee for those legally or equitably entitled to the amount recovered. Any other holding would create much confusion and disturbance of legal rights and procedure. The maker of the note in suit owed the debt, and it is of no concern to it, nor is it a defense, that the principal indebtedness for which the note in suit was by the plaintiff held has been paid by the pledgor. As between the parties to the action the pledgor is a stranger to the litigation.
4. The note in suit was regularly indorsed by the payee, Stanton Bank & Trust Company, to the National City Bank of Chicago, and was merely held by the Stanton bank as a depositary for the Chicago bank. This is shown conclusively by the trust receipt which was issued for it by the Stanton bank, reading in part as follows:
“Received from the National City Bank of Chicago the following described negotiable instrument, which is their property, viz.: Note of the American Brewing Company, dated April 20, 1923, numbered 8,094, for a face amount, of $10,000. This note is held by the said The National City Bank of Chicago as collateral to the note of Geo. H. Stanton, dated June 18, 1923, due October 18, 1923, for an original face value of $50,163.38, and to any note or notes in renewal of the whole or any part of such note, and in consideration thereof the undersigned Stanton Trust & Savings Bank in liquidation hereby agrees to hold this said note of the American Brewing Company in trust for the National City Bank of Chicago, as the property of said bank, with liberty to collect the said note for account of said the National City Bank of Chicago, and the undersigned further agrees, in case of the collection of said note, to hand or remit the proceeds of said collection to said the National City Bank of Chicago to apply on account of the indebtedness of Geo. H. Stanton to said The National City Bank of Chicago above mentioned, or on account of any other indebtedness due and owing to said the National City Bank of Chicago by Geo. IT. Stanton. The said the National City Bank of Chicago may at any time cancel this trust and take possession of said note, or of the proceeds of any collection, wherever the said note, or the proceeds of any sale or collection of same, may be found.”
The mere fact that the note in suit was by the plaintiff held in pledge is sufficient to establish that the plaintiff was the owner and holder of the note, for the purpose of maintaining action to recover upon it after its maturity and before the payment of the principal obligation. The transfer before maturity of a negotiable promissory note in pledge vests an absolute title in the pledgee, irrevocable except upon the payment of the principal indebtedness. (Yellowstone National Bank v. Gagnon, 19 Mont. 402, 61 Am. St. Rep. 520, 44 L. R. A. 243, 48 Pac. 762; First National Bank of Lewistown v. Wilson, 57 Mont. 384, 188 Pac. 371; French & Co. v. Haltenhoff, 73 Or. 249, 144 Pac. 480.)
“The transfer before maturity of a negotiable promissory note, so as to make the pledgee a party, although as collateral security for a principal indebtedness less in amount than the notes held as collateral, vests an absolute title in the pledgee in such collateral, irrevocable except upon payment of the principal debt. The pledgee is entitled to recover of the parties to such collateral note the whole amount of its face, holding any surplus for the benefit of persons who are entitled to it. It is immaterial to the maker of such collateral paper what the pledgee advanced upon the note, or upon what terms the pledgor and pledgee may settle. His obligation, as expressed in the collateral security, is an independent undertaking, and may be enforced by a pledgee advancing value in good faith, without notice, free from antecedent equities.” (Colebrooke on Collateral Securities, sec. 91.)
The plaintiff was the owner of the note in suit by reason of its indorsement to it by the payee, Stanton Bank & Trust Company. Its ownership was subject to be defeated only by the payment of the principal obligation, although the legal title in the. pledged note remained in the pledgor. And the possession of the note by the Stanton Bank & Trust Company was clearly the possession of the plaintiff and its predecessor. (National Park Bank v. American Brewing Co., supra.) Therefore, in our opinion, there is no merit in the contention that the plaintiff was not shown to be the owner and holder of the note in suit.
5. The record does not indicate any excuse whatsoever for the long delay of the court in passing judgment in this case. As noted, it was taken from the jury upon the completion of all of the evidence, June 3, 1925; both parties having moved for a directed verdict. The case presents a simple action to recover a balance due on a promissory note, yet the court did not decide it and enter judgment until the lapse of a period of one year, five months and sixteen days. Excuse may, and doubtless did, exist in this case, but it would be well for all district judges to keep in mind the require meuts of section 8815 of the Revised Codes of 1921, whereby the legislature intended to expedite the disposition of the causes of litigation before the courts. Such procrastination is never justified, for, if the judge himself cannot act, he may easily call another to take his place. Effort should be made to avoid justifiable complaint of the law’s delays by our citizens.
The judgment is affirmed.'
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Myers, Stark and Matthews concur.
|
[
-12,
-14,
64,
7,
-31,
11,
34,
-32,
58,
-22,
19,
23,
10,
9,
-41,
25,
47,
-59,
77,
-15,
-15,
-15,
24,
-7,
-12,
30,
38,
69,
17,
-38,
28,
23,
17,
32,
-37,
-5,
10,
-5,
9,
-12,
30,
-27,
26,
-2,
-10,
28,
8,
-84,
9,
-61,
64,
-29,
15,
-9,
-21,
18,
-24,
-10,
-33,
-25,
-16,
-28,
26,
16,
0,
-52,
28,
19,
-31,
4,
-18,
-33,
35,
-36,
-33,
-72,
5,
13,
-64,
-26,
-2,
-49,
-26,
13,
-40,
-27,
35,
-10,
-7,
21,
38,
38,
22,
-22,
10,
33,
16,
20,
23,
29,
6,
-69,
-36,
36,
42,
36,
-1,
-27,
8,
-19,
-3,
48,
-7,
11,
-40,
-2,
-42,
-19,
-1,
-31,
-27,
34,
9,
3,
-21,
25,
-83,
12,
33,
4,
-7,
56,
-29,
26,
-20,
-41,
16,
-50,
55,
18,
-4,
-35,
3,
-18,
33,
24,
-21,
28,
-6,
-12,
-48,
9,
60,
50,
18,
-31,
-56,
-70,
41,
-10,
47,
-28,
-16,
-1,
-8,
64,
8,
-14,
51,
44,
-10,
19,
-24,
-21,
-32,
-18,
-12,
-42,
26,
-17,
-7,
52,
42,
-16,
64,
14,
-14,
0,
68,
-28,
37,
6,
-40,
29,
-14,
3,
-25,
-35,
60,
-13,
12,
-30,
15,
13,
-32,
-6,
37,
-17,
4,
73,
36,
41,
-2,
-23,
-51,
-15,
54,
-29,
-18,
38,
26,
13,
-77,
32,
-25,
-1,
6,
-14,
-25,
14,
-74,
-11,
-9,
40,
15,
68,
48,
0,
-30,
6,
-68,
12,
22,
-74,
-17,
-9,
-21,
16,
7,
2,
-7,
43,
-6,
15,
13,
12,
17,
2,
-13,
-51,
30,
47,
-39,
2,
-23,
-63,
-3,
14,
20,
24,
-28,
-63,
2,
48,
56,
-47,
13,
-23,
27,
-5,
-23,
-31,
23,
46,
20,
-10,
28,
15,
0,
32,
-18,
18,
68,
-10,
32,
39,
-18,
46,
34,
32,
-10,
-16,
-15,
13,
-58,
6,
-8,
28,
-60,
-47,
44,
50,
22,
-27,
58,
31,
-26,
-16,
46,
16,
53,
21,
-26,
3,
32,
-9,
31,
-27,
31,
-9,
-3,
14,
-1,
15,
-44,
0,
56,
-65,
-9,
7,
29,
17,
14,
-30,
-15,
-20,
-9,
-16,
-47,
26,
-56,
8,
-26,
21,
-9,
93,
27,
6,
-6,
34,
14,
24,
18,
-40,
33,
24,
-71,
-9,
-4,
84,
-8,
21,
-52,
-50,
14,
-8,
-13,
-48,
-19,
52,
-18,
-41,
21,
-4,
-32,
36,
-17,
-11,
-20,
-13,
-16,
73,
40,
73,
-67,
-1,
18,
-41,
-73,
-6,
-21,
16,
-31,
-49,
2,
10,
-19,
15,
6,
19,
-6,
-34,
-22,
-4,
14,
-12,
3,
38,
48,
-29,
29,
-11,
4,
-17,
0,
1,
27,
6,
-59,
-12,
-14,
15,
-24,
25,
-4,
17,
39,
-11,
50,
-20,
77,
111,
-50,
32,
37,
48,
-41,
1,
55,
43,
20,
-32,
40,
13,
-11,
14,
36,
18,
32,
-60,
24,
1,
-1,
60,
4,
34,
13,
-2,
-10,
34,
14,
2,
-37,
-11,
-12,
55,
-10,
-19,
9,
53,
-48,
33,
24,
1,
-40,
-20,
-64,
-65,
-49,
6,
6,
-21,
-6,
-6,
-13,
-46,
-36,
-78,
-22,
24,
-30,
21,
-25,
8,
-10,
-11,
0,
-57,
28,
24,
21,
37,
28,
0,
13,
9,
-29,
4,
30,
40,
22,
-6,
-11,
30,
-31,
-15,
32,
18,
9,
0,
4,
28,
-31,
-23,
10,
-19,
14,
6,
-11,
-38,
-8,
-1,
20,
33,
-16,
16,
6,
-7,
42,
24,
15,
-74,
18,
46,
-34,
-10,
34,
14,
-22,
-63,
-1,
31,
-38,
-12,
2,
7,
47,
-16,
-24,
-42,
-43,
-12,
-28,
-18,
-10,
-35,
6,
-49,
-11,
-51,
14,
-24,
-23,
-46,
-13,
22,
25,
-11,
-27,
13,
17,
-20,
-22,
-18,
11,
14,
-43,
-13,
31,
75,
-24,
-11,
-32,
-2,
-27,
0,
-44,
80,
14,
-18,
47,
-7,
-10,
21,
-52,
-40,
-24,
-5,
21,
18,
-5,
81,
20,
34,
27,
-8,
-61,
-28,
-11,
51,
36,
-53,
1,
-17,
-19,
-1,
-16,
-10,
0,
-22,
-6,
27,
29,
-43,
-33,
-22,
-14,
4,
23,
-27,
-5,
17,
89,
-31,
-19,
-32,
50,
-48,
10,
5,
-30,
-42,
-65,
25,
0,
34,
2,
3,
-17,
2,
42,
-43,
27,
-27,
58,
-3,
9,
56,
-6,
1,
-46,
-46,
1,
52,
-22,
-77,
8,
-6,
-5,
12,
23,
20,
7,
6,
-12,
18,
60,
21,
-9,
-5,
-3,
-47,
48,
-3,
-48,
19,
-23,
13,
-48,
-6,
52,
-61,
-66,
-26,
-9,
-70,
47,
30,
-13,
6,
-29,
18,
53,
6,
-7,
26,
4,
13,
-52,
6,
14,
37,
-28,
55,
-44,
-6,
2,
-65,
9,
0,
-20,
49,
19,
-21,
-38,
-45,
-10,
15,
-18,
-13,
36,
-37,
14,
-23,
-23,
29,
-47,
-32,
-9,
15,
-41,
77,
12,
-18,
-28,
45,
12,
-42,
-35,
-10,
-17,
-62,
25,
29,
-7,
15,
-24,
-47,
17,
-20,
-2,
24,
-32,
3,
24,
27,
41,
63,
19,
63,
-20,
-53,
-30,
-21,
-15,
27,
36,
2,
-10,
-5,
14,
-2,
9,
-3,
-6,
15,
36,
-5,
19,
10,
-28,
-21,
36,
-46,
-36,
3,
-44,
-18,
6,
-55,
-65,
17,
16,
6,
24,
16,
-44,
21,
-19,
18,
31,
-62,
-30,
17,
-13,
26,
8,
-19,
0,
29,
8,
-44,
-51,
40,
22,
4,
37,
19,
7,
-30,
18,
37,
0,
-37,
-59,
-21,
-4,
-34,
13,
-29,
21,
67,
-31,
-9,
84,
4,
-31,
6,
0,
-2,
-10,
37,
12,
20,
-27,
16,
82,
-26,
56,
-5,
-59,
7,
1,
-19,
6,
10,
43,
-3,
-40,
24,
-38,
5,
-12,
-28,
-9,
-41,
6,
-41,
77,
13,
-1,
-25,
17,
-41,
33,
4,
-15,
18,
-42,
33,
46,
-42,
-7,
-44,
-18,
41,
2,
-18,
22,
8,
34,
-15,
24,
0,
24,
-36,
-8,
3,
-28,
21,
19,
32,
45,
1,
31,
20,
-24,
0,
-30,
-12,
53,
-61,
49,
-4,
-50,
-34,
-35,
-35,
38,
49,
-13,
17,
9,
29,
25,
-5,
-46,
-29,
34,
-25,
-18,
2,
-26,
-51,
-19,
-3,
8,
-18,
77,
30,
2,
9,
-25,
-28,
-55,
11,
77,
-20,
-33,
-8,
34,
-8,
-51,
43,
-12,
0,
18,
10,
-19,
12,
29,
28,
-22,
-29,
-3,
-15,
69,
-39,
18,
5,
-56,
-9,
24,
14,
-94,
-76,
-32,
28,
-3,
18,
0,
8,
11,
21,
-7,
12,
-18,
0,
-11,
-15,
-46,
33,
-20,
91
] |
ME. JUSTICE STAEK
delivered the opinion of the court.
The defendant bank, a corporation under the laws of this state, at all the times involved down to January 25, 1924, was engaged in a general banking business at Missoula. On the date above mentioned, being in an insolvent condition, it closed its doors and ceased transacting business. Thereafter the defendant Dick was duly appointed receiver of the bank, qualified, and has at all times since been acting as such, having complete possession and control of all its assets and business affairs. This action was brought for the purpose of establishing and enforcing a preferred claim against the assets of the bank.
It is alleged and admitted by all the parties that on September 4, 1923, the plaintiff left with the bank, which was then a going institution, a certain note for the principal sum of $6,000 and a mortgage securing the same, of which the plaintiff was then the owner, for collection; that the same was collected in full by the bank on September 6, 1923, and that no portion of the amount collected was paid to plaintiff, except it is conceded that on the morning the bank closed the sum of $185 was paid to her. The real dispute between the parties is as to what was to be done with the proceeds of the collection made by the bank.
Plaintiff contends that the note was left with the bank for collection, under express directions that the proceeds, when collected, should not be deposited, but that she should be notified and the money turned over to her. Defendants, on the other hand, claim it was agreed that, when the' money was collected, it was to be deposited in the bank, and a certificate of deposit therefor issued to the plaintiff. It is admitted that the money collected was mingled with and increased the general assets of the bank, and that prior to the bringing of this suit plaintiff presented to the defendant receiver a duly verified claim for preference, setting forth the facts on which it was based as above outlined, and that the same was refused.
The cause was tried before the court without a jury, and resulted in findings and judgment in favor of plaintiff, adjudging that she had a valid claim against the bank for the sum of $6,000, with interest thereon at the rate of eight per cent from January 26, 1924, amounting at the date of the judgment to $1,080; that the same was a preferred claim against the assets of the bank in the hands of the receiver for the full amount thereof, and that the same should be paid by him out of the funds and assets of the bank “in due course of the administration of said receiver’s trust, said payment to be made prior to the claims of the general creditors of said bank.” From this judgment the defendant appealed.
Defendants’ first contention is that the evidence is not sufficient to support the findings of the court and the judgment to the effect that plaintiff has a preferred claim.
It is well settled in this state that, to entitle one to a preference claim where an item is left with a bank for collection, which makes the collection and later goes into the hands of a receiver without turning over the proceeds of the collection. to the one entitled to receive the same, the claimant for the preference must establish three coexisting conditions: (a) That the transaction created the relation of principal and agent— not creditor and debtor — between himself and the bank, so that the bank would be deemed to hold the amount collected in trust for the plaintiff as beneficiary; (b) that by the transaction the assets of the bank were augmented; (e) ability to trace the trust funds into the possession of the bank. (California Packing Corp. v. McClintock, 75 Mont. 72, 241 Pac. 1077; Hawaiian Pineapple Co. v. Browne, 69 Mont. 140, 220 Pac. 1114; State ex rel. Kelly v. Farmers’ State Bank, 54 Mont. 515, 172 Pac. 130; Guignon v. First Nat. Bank, 22 Mont. 140, 55 Pac. 1051, 1097.)
It is admitted in this case that the proceeds of the collection of plaintiff’s noté were mingled with and augmented the general assets of the bank, and it was established at the trial without dispute that the least amount of cash on hand in the bank between the date of the collection of the note and the time of closing the bank was $12,022.60, and thereby the last two conditions above mentioned were fully met. In order to establish the first of the named conditions, the plaintiff testified that, when she left the note with the bank for collection, the transaction was carried on with Mr. Dahlgren, its president, and that she instructed him not to place the sum collected on deposit in the bank, but to give it to her, because she wanted the money. Dahlgren, for the bank, gave her a receipt for the note, dated September 4, 1923, reciting that it was received “for collection.” She further testified that it was the understanding that when the money was collected she was ¡to be notified, but that she was never notified that the collection had been made until the day the bank closed its doors.
On behalf of the plaintiff, the defendant George K. Dick testified that she had presented her claim for preference to him and that it had been denied; also that the records of the bank disclosed that the $6,000, proceeds of collection of the note originally owned by plaintiff was received by the bank on September 6, 1923.
On behalf of defendants, the 'deposition of John Dahlgren, who was president of the defendant bank during all the times involved in this controversy, was read in evidence, and in it he testified that plaintiff asked the bank to sell the note and mortgage in question for her,- that the bank did so, and received $6,000 therefor two or three days after plaintiff left the same with it; that it was the understanding between plaintiff and the bank that the money collected on the note was to be deposited until the plaintiff decided how much of it she was to use to buy a rooming-house, if any; that the same was to draw interest at eight per cent until she decided either to use the money for the rooming-house or buy other paper from the bank drawing the same rate of interest.
Other testimony was introduced on behalf of both plaintiff and defendants, tending to substantiate their respective contentions with reference to the third of the named conditions for preference, which we do not deem it necessary to recite. It is sufficient to state that the evidence with reference to the instructions given to the bank by the plaintiff when she left the note for collection was in substantial conflict. We cannot say that it preponderates against the findings of the trial court. Under the rule frequently announced by this court, the findings will not be set aside under such circumstances. (Kelly v. Gullickson, 75 Mont. 66, 241 Pac. 623; Huffine v. Miller, 74 Mont. 50, 237 Pac. 1103.)
There was considerable controversy at the trial over the effect of the payment of $185 made to plaintiff on the day the bank closed. Upon this matter the court made a finding that plaintiff first learned that her note had been collected by the bank on January 25, 1924, and that it was her belief that said $185 so paid to her was interest paid by the maker of the note down to January 25, 1924, and the same was accepted by her upon that assumption. This finding was warranted under the testimony.
We hold the evidence sufficient to sustain the court’s findings that plaintiff had a preferred claim against the funds in the bank at the time it closed its doors.
The next point raised by defendants is that the court erred in awarding plaintiff interest on the amount of her claim from the date the bank closed to the date of the judgment.
The plaintiff’s preference claim was for the specific amount which defendant bank had collected for her use. This was a fund which the bank held in trust for her. Her preference thereto was established, not on the theory that she had a lien thereon, or upon any of the assets of the bank, but because this specific money belonged to her, and was held in trust for her by the receiver after he took charge.
It is the established rule that, “where a trustee has mingled with his own funds money held in trust, and then dipped into the common store and taken out and used a part, so long as a balance equal to the trust fund remains, it will be presumed that the money drawn out and used was the trustee’s own money, and that the money left undrawn was the trust money.” (Hawaiian Pineapple Co. v. Browne, supra.) So the presumption is that the specific money which the bank collected for the plaintiff was retained by it, and constituted an integral part of its funds which passed into the hands of the receiver, and it is this specific money to which the plaintiff’s preference claim attached.
This is not a case involving the distribution of the proceeds of a common security between liens or claims of different priorities. As between the plaintiff and the bank, the amount collected was no part of a common fund, for it always belonged to the plaintiff, and neither the bank nor its depositors or creditors ever had any interest or ownership therein. The receiver, from the time he took charge of the bank, simply held it as trustee for the benefit of the plaintiff.
As to this fund the relationship of debtor and creditor never existed between the bank and the plaintiff; it was that of trustee and beneficiary. If tbe relation of debtor and creditor between the bank and the plaintiff had been established, the plaintiff would not have been entitled to preference, under our cases above cited.
These facts distinguish this ease from those cited by counsel, which have to do with instances where the relationship of debtor and creditor existed, and involved the distribution of the funds of an insolvent corporation among creditors.
Thus we have the simple fact that the receiver was in possession of a specific sum of money belonging to the plaintiff, which he withheld from her, after demand, when she was entitled to it. Section 7725, Revised Codes of 1921, provides: “Unless there is an express contract” to the contrary “in writing fixing a different rate, interest is payable on all moneys at the rate of eight per cent per annum * * * on moneys received to the use of another and detained from him,” etc.
Does the fact that in this case the money was withheld from plaintiff by the receiver of an insolvent bank remove it from the operation of the statute? Counsel for defendants rely upon two Montana cases to sustain their position, the first of which is Guignon v. First National Bank, cited above. It is true that in that case this court held, under circumstances not differing in principle from those in the instant case, that interest should not be allowed. But an examination of the opinion in that ease, as well as the briefs of counsel filed therein, discloses the fact that the matter did not receive full consideration. In the opinion the court said: “The court below rendered judgment for the full amount of the sum collected, but allowed no interest. This we think correct. We have no statutory provision strictly applicable to such cases, and we think it inequitable that the assets in the hands of the receiver to which the general creditors must resort should be taken to pay interest on the sum so withheld by the receiver until he could be advised as to his duty in the premises. The discretion of the lower court was wisely exercised in this particular, and we shall not interfere.”
It seems that section 2585 of the Civil Code of 1895, which had been in effect since July 1, 1895, and which, except as to the rate of interest, is identical with section 7725, supra, was overlooked, and the refusal to allow interest was grounded on the fact that its allowance or disallowance rested in the discretion of the court, and that the lower court wisely exercised its discretion in not allowing it in that case. A memorandum appended to that opinion discloses that after it was handed down the court was not fully satisfied with its conclusion touching the question of interest, and of its own motion suggested that an application be made for rehearing upon that question, but that such application was not made for the reason that the parties reached a settlement out of court. These circumstances greatly weaken the value of that case as a precedent.
The other Montana case relied upon is that of State ex rel. Rankin v. Banking Corporation, 74 Mont. 491, 241 Pac. 626. In that case the court refused to allow interest, but the situation there was wholly different. There the defendant Federal Reserve Bank had in its possession certain money in which it disclaimed any interest, and asked that the real claimant be substituted as a party defendant. That was done, and the court directed that the money should be paid over to the receiver therein involved, to be held by him in a special fund until it could be determined who was entitled to it. There were none of the elements of a case where money belonging to one person was wrongfully withheld by another. There the receiver was a mere stakeholder, so constituted by the court, making the situation the same in effect as if the money had been deposited with the clerk of the court.
We now pass to a consideration of the question whether, under the circumstances; the receiver was justified in refusing to turn the money over to the plaintiff when she presented her claim therefor as a preference. We have given the entire record careful consideration, and from it conclude that the receiver was justified in the position which he assumed. "We think it was not only his right, but his duty, to require the plaintiff to establish her preference by action in court.
In Chemical National Bank v. Armstrong (C. C. A.), 59 Fed. 372, 28 L. R. A. 231, it appeared that a controversy arose between the plaintiff bank and the defendant Armstrong, who was receiver of the Fidelity National Bank of Cincinnati, over the payment to plaintiff of $100,000 in dividends. The receiver resisted the payment, but the plaintiff eventually prevailed, and then the question whether the plaintiff was entitled to 'interest on the amount of the dividends after demand had been made for the same, and refused, was considered by the court. The decision in that ease was rendered by Judge Taft, then a Circuit Judge, and in the course of the opinion he said: “It remains only to consider the interest on the dividends to be paid on the $100,000, which should have been allowed by the receiver in accordance with the opinion of this court at the time that he rejected the claim. The question at issue between the receiver and the Chemical Bank was one of such doubt that it would have been quite improper for him not to try it in court. The chance of his sustaining his view was sufficiently great to make any reasonable expense in seeking to maintain it in court a fair charge against the other creditors, because of the possible benefit they might derive by a successful issue of the litigation. Now, a part of the reasonable expense of refusing to pay what is believed to be an unjust claim, but which is held thereafter to be a just one, is the damage from the delay to the person to whom the payment should have been made, a damage which is measured by interest on the amount due and unpaid during such delay. It is equitable and just, therefore, that the share of the other creditors in the assets of the bank should be reduced by enough to pay the interest on the delayed dividends on the $100,000 from the date of the rejection of the claim until such dividends are paid. ' This conclusion is fully sustained by the decision of the supreme court in the ease of Armstrong v. Bank, 133 U. S. 433, 10 S. Ct. 450 [33 L. Ed. 747]. In that case— which also grew-out of the failure of the Fidelity Bank — the creditor bank had presented its claim to the receiver, in September, 1887, and it was rejected. The circuit court held that the claim should have been allowed, and adjudged that interest must also be allowed on the dividend declared October 31, 1887, until the dividend should be paid. The supreme court affirmed the circuit court, both in regard to the validity of the claim and also as to the interest.” The amount of the dividends involved in the above case did not constitute a trust fund such as we are considering, but was money which the receiver held for the use of the Chemical Bank and had detained from it. The rule there announced, and which had theretofore received the sanction of the supreme court of the United States, is directly applicable to the facts in the instant case.
In view of the provisions of section 7725, supra, and in the light of the decision above quoted, it appears that the court did not err in allowing plaintiff interest on her preference claim. So far as the case of Guignon v. First Nat. Bank, supra, conflicts with this holding, it is overruled.
The amount of the preference claim is, of course, limited to the funds available for its payment under the rule laid down in the Hawaiian Pineapple Case, cited above, and the interest would only be computed on that amount, since that is the sum “detained” from the claimant. If different preferred claims should be established upon a fund in the hands of a receiver which was not sufficient to pay all in full, and it should have to be prorated amongst the several claimants, the same rule would, of course, prevail, and the interest be computed upon each claimant’s portion of the fund. In any case, when the receiver has become liable for the payment of interest on a trust fund, the interest must necessarily be paid out of the general assets of the bank in his hands, since on payment of the principal the trust fund is exhausted.
It is finally contended by the defendants that the court erred in directing the receiver to pay the plaintiff’s preference claim “in due course of administration,” without limiting the same to the amount of the trust fund. As indicated in what has just been said, this contention is well taken as to the amount of the principal. The judgment entered herein should be modified, so as to limit the payment of the principal from the amount of the trust fund held by the receiver.
The cause is remanded, with direction to modify the judgment in the manner above indicated, and, when so modified, it will stand affirmed. The plaintiff is entitled to her costs on this appeal.
Modified and affirmed.
Mr. Chief Justice Callaway and Associate Justices Myers, Matthews and Galen concur.
|
[
-12,
20,
8,
13,
-33,
-30,
4,
-2,
-10,
-5,
0,
30,
38,
23,
-13,
-25,
-29,
-26,
4,
-14,
-13,
-67,
-32,
-12,
-15,
11,
5,
-9,
12,
8,
27,
-7,
-7,
7,
-9,
15,
-17,
-19,
13,
-40,
29,
19,
22,
9,
16,
41,
5,
-56,
23,
-1,
71,
-48,
3,
27,
16,
-8,
-31,
4,
-31,
47,
36,
-54,
71,
-16,
54,
-38,
28,
2,
-8,
-10,
-17,
29,
-21,
-42,
-29,
-20,
-22,
-4,
-78,
-28,
-30,
-41,
25,
-2,
-24,
-30,
-55,
-6,
-37,
9,
18,
25,
26,
-10,
13,
7,
14,
17,
-3,
43,
4,
-94,
-29,
9,
47,
18,
-21,
-32,
50,
13,
-22,
27,
-21,
6,
-22,
34,
-35,
26,
-18,
-27,
8,
52,
-39,
-9,
-16,
13,
-49,
12,
48,
9,
-49,
26,
-25,
64,
0,
1,
-35,
-50,
-10,
4,
-3,
-30,
-10,
-7,
-51,
-10,
17,
-8,
45,
-29,
-68,
-14,
51,
44,
17,
-39,
-32,
-67,
15,
-49,
16,
-32,
1,
19,
5,
36,
8,
-17,
18,
-9,
11,
0,
-50,
34,
35,
16,
33,
-75,
23,
28,
-8,
52,
37,
32,
2,
-22,
6,
-16,
71,
1,
22,
-34,
5,
7,
-50,
1,
12,
-15,
51,
8,
27,
-14,
0,
35,
0,
9,
30,
-19,
31,
-1,
30,
18,
1,
-6,
-62,
-10,
-30,
-40,
-35,
-39,
34,
25,
-48,
1,
-48,
-34,
44,
-32,
20,
-12,
-44,
-30,
-11,
26,
-8,
11,
77,
-3,
2,
-26,
-20,
-33,
-22,
-34,
-21,
5,
-49,
-29,
0,
4,
-31,
-53,
-3,
71,
-2,
13,
26,
-23,
-45,
-31,
11,
13,
-13,
-2,
9,
-54,
-36,
-19,
4,
-36,
33,
-8,
46,
-4,
-24,
-72,
8,
-18,
5,
-23,
24,
-20,
13,
48,
12,
-23,
11,
4,
-7,
32,
30,
12,
28,
-2,
45,
8,
-21,
8,
31,
19,
-25,
-3,
-28,
-8,
-15,
26,
-59,
-2,
-31,
-22,
25,
4,
-20,
-24,
82,
33,
-31,
23,
24,
38,
62,
21,
-12,
-8,
19,
20,
7,
-22,
-25,
-26,
-5,
18,
-21,
26,
-26,
-40,
65,
-25,
50,
13,
21,
-50,
24,
-34,
4,
-5,
-26,
19,
-43,
8,
-39,
11,
-15,
56,
3,
32,
22,
27,
0,
10,
23,
-20,
44,
-28,
23,
-31,
-11,
-12,
8,
34,
8,
15,
-8,
-2,
-2,
5,
-32,
-2,
-35,
8,
6,
-15,
1,
-6,
7,
43,
60,
-52,
-62,
-29,
-9,
19,
27,
54,
-13,
-49,
-16,
-23,
-54,
-11,
-50,
19,
-3,
-22,
-54,
-22,
36,
-23,
-3,
19,
-8,
-41,
-11,
-14,
-24,
31,
36,
17,
0,
9,
1,
-23,
19,
-6,
-4,
-27,
13,
19,
-60,
-35,
-38,
50,
-43,
35,
0,
-24,
3,
20,
10,
25,
44,
25,
-41,
25,
-9,
31,
-16,
-46,
50,
48,
0,
-2,
11,
-2,
13,
57,
37,
-29,
-8,
-12,
41,
30,
46,
56,
19,
-9,
21,
-17,
36,
13,
14,
14,
-1,
18,
37,
49,
-47,
12,
-44,
-32,
16,
10,
45,
37,
-60,
-47,
-6,
-43,
-26,
43,
30,
12,
-15,
-2,
-36,
-34,
-12,
-22,
0,
-41,
-35,
-25,
-7,
-5,
-28,
19,
22,
-22,
-67,
37,
-2,
42,
39,
57,
-9,
32,
-18,
70,
-3,
71,
-4,
-4,
-23,
24,
-37,
-23,
16,
28,
12,
-39,
-48,
10,
-58,
-36,
0,
21,
30,
-21,
-30,
-28,
-35,
-30,
4,
-5,
-16,
11,
0,
-24,
24,
9,
-19,
-44,
57,
22,
49,
8,
-15,
-13,
-38,
-5,
-20,
59,
-59,
-25,
17,
-4,
-10,
-46,
-27,
-49,
-24,
4,
-4,
7,
2,
-22,
-24,
20,
-2,
-31,
20,
-43,
-30,
-26,
-52,
43,
37,
19,
-7,
21,
102,
-31,
13,
3,
8,
-13,
22,
7,
4,
39,
-60,
-41,
5,
25,
13,
-23,
-22,
32,
14,
-18,
22,
35,
19,
39,
-38,
-14,
-16,
-9,
29,
0,
21,
39,
42,
16,
-7,
-2,
-44,
-41,
-6,
43,
18,
-37,
10,
-3,
-22,
30,
-30,
23,
-31,
-16,
-23,
15,
37,
-1,
6,
28,
23,
29,
52,
-21,
5,
46,
73,
-28,
2,
-28,
22,
-51,
21,
-34,
8,
-18,
-39,
27,
-36,
15,
36,
43,
29,
25,
25,
-22,
86,
-11,
52,
3,
-24,
-7,
-7,
-5,
-5,
5,
-6,
35,
-9,
-19,
68,
-21,
5,
-4,
47,
1,
-38,
24,
2,
-11,
15,
44,
-39,
-29,
61,
-36,
34,
-9,
-57,
14,
-43,
-12,
-29,
71,
30,
-24,
-30,
-32,
-32,
11,
-7,
-7,
-63,
-8,
-34,
-59,
14,
6,
-9,
-12,
44,
-27,
-59,
22,
13,
35,
-11,
29,
-18,
4,
-43,
-8,
17,
-8,
20,
56,
22,
44,
-53,
17,
1,
2,
-9,
-25,
17,
-8,
12,
-43,
-42,
15,
-46,
21,
-37,
-28,
-8,
27,
-29,
-2,
-17,
-12,
16,
-27,
-67,
-47,
-8,
-63,
-16,
-6,
-7,
-9,
31,
-16,
44,
51,
18,
26,
-20,
31,
34,
-31,
54,
59,
9,
70,
-23,
-7,
51,
-59,
-39,
48,
27,
5,
-4,
0,
-47,
11,
8,
10,
52,
15,
9,
39,
14,
22,
-53,
-37,
37,
-20,
11,
35,
-19,
10,
-31,
-40,
-51,
-14,
52,
-7,
6,
11,
-13,
-10,
-2,
16,
-15,
-22,
-10,
3,
5,
4,
38,
16,
41,
0,
-11,
-29,
-57,
20,
44,
-4,
-2,
-14,
11,
-25,
6,
2,
-2,
20,
-9,
10,
-42,
1,
65,
26,
12,
58,
-73,
-2,
56,
2,
-29,
17,
20,
46,
-47,
66,
17,
21,
-20,
46,
47,
-25,
59,
-16,
-42,
23,
-3,
23,
-28,
5,
62,
7,
25,
19,
-28,
27,
-15,
-39,
21,
-26,
-16,
-36,
17,
-32,
13,
13,
13,
26,
43,
-9,
-11,
33,
6,
30,
18,
0,
17,
-30,
-25,
24,
5,
10,
23,
23,
-9,
-19,
-9,
34,
28,
2,
-3,
42,
-25,
25,
-32,
44,
-5,
5,
-16,
33,
-58,
0,
-33,
9,
-31,
-58,
46,
26,
18,
6,
14,
-27,
-4,
-4,
21,
15,
14,
38,
56,
-4,
-47,
-19,
18,
-7,
-22,
-40,
-12,
-34,
-7,
-52,
2,
-34,
57,
-2,
-39,
-39,
-37,
-46,
-32,
17,
29,
-30,
0,
-40,
49,
-15,
-10,
29,
-22,
-26,
-46,
50,
-37,
-12,
30,
18,
-2,
18,
37,
-11,
66,
-13,
25,
-40,
4,
-9,
2,
-22,
-17,
-69,
-30,
0,
6,
-9,
1,
0,
16,
-3,
37,
-7,
25,
39,
10,
48,
-26,
7,
-2,
65
] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
Defendant, D. A. Hollowell, was convicted of murder in the second degree for the killing of Emma Kirckel. The jury fixed his punishment at not less than twenty years nor more than forty years in the state prison. Judgment was entered on the verdict. Defendant appeals from the judgment and an order denying him a new trial. His counsel have assigned eight specifications of error. The first six relate to alleged misconduct on part of counsel for the state in the opening statement to the jury, and in propounding questions to witnesses. These six are discussed by counsel for defendant under one head and we shall so consider them.
At the time of the homicide the defendant was a man forty-four years of age, the girl seventeen. The state charged defendant with murder in the first degree. The defendant admitted killing the girl, asserting that he had done so in self-defense.
In the opening statement counsel for the state told the jury, over the repeated objections of counsel for the defendant, among other things, that the state would offer evidence tending to show that meretricious relations had existed between the defendant and Emma Kirekel; that as a result of such relations at some time during the months of September and October, 1925, she became pregnant, and the defendant took her to Billings, where an operation for abortion was performed; that after the operation she returned home and the defendant continued to pay attentions to her; that she went to defendant’s ranch where she remained overnight; that the defendant went to the girl’s mother some time before Christmas and asked the mother to use her influence with the girl in order that a marriage between himself and the girl might result; that the defendant went to a friend of his, a Mr. Lowe, who lives near Fromberg, and told of his confidential relations with the girl with particular reference to an occurrence at Fromberg on October 17; that, during the latter part of January the defendant and the girl left in defendant’s car for Butte, registering at Hunter’s Hot Springs on the night of January 31, he in room 130 and she is room 131; that a few days before the girl was killed, the defendant, then in a highly excited and nervous state of mind, told Mr. Lowe that he was in trouble with the girl and did not know what to do and asked for advice, and Lowe told him that he had wronged the girl and the only thing for him to do was to treat her as a man should “and some time maybe she would think something of him.”
While the court permitted counsel for the state to tell the jury what the state proposed to prove in the particulars mentioned, when evidence was offered in confirmation of the statement, the court excluded it altogether.
When Emma Kirekel Gee, the mother of the deceased girl, was upon the stand, she testified that the defendant hired her to work for him about the 25th of June, 1925, upon his ranch west of Bridger, and she worked for him about a month. Defendant’s wife was not there; she was not living with him. While Mrs. Gee was working for defendant, Emma came to live upon the ranch. The witness was asked concerning the relations between the defendant and Emma Kirekel, to which objection was.made. The state then made an offer to prove by the witness the relationship which existed between the defendant and the girl from the time the defendant met her, about the last of June, 1925, until the tragedy. It was represented to the court that the evidence would show the relations between the defendant and the girl at the ranch, that sexual relations existed between the two, as a result of which the girl became pregnant, and an abolition was performed at the city of Billings some time before the 6th and 10th of December, 1925, at the instance of the defendant. The offered evidence, asserted Mr. Crippen, counsel for the state, would establish, incidentally, the crime of statutory rape and, incidentally, the crime of abortion procured by the defendant. The evidence was offered “to show and establish malice, premeditation and motive, and the state of mind of the defendant.” Counsel for the defendant objected to the evidence upon the ground that it was incompetent, irrelevant and immaterial; that it would serve the purpose merely of bringing in collateral issues and collateral evidences of crimes not in any way connected with the crime charged, which would prejudice the defendant, and require him to meet charges which he had had no opportunity to prepare to meet. It was also urged that the state had shown by its proof and by the opening statement of counsel that the defendant, in firing the shot which killed Emma Kirckel, had done so in necessary self-defense. The court sustained the objection and then refused to permit the witness to answer the question: “Did you have a conversation with the defendant with regard to his relations with Emma, in December, 1925?” Whereupon Mr. Eowan, of counsel for the state, said: “I take it the court will not permit any of the relations to be shown,” to which the court replied: “Not along the line offered. If there are any others of bodily injury or anything of that sort, they will be admissible but not as to the two matters that have been mentioned, that is, the two offenses, the statutory offenses.”
In these rulings the court erred but the error was in favor of the defendant and at his instance. The rule stated by Mr. Wharton in his work on Criminal Evidence, section 895, is that “when proof has been made of the corpus delicti in a homicide prosecution, all facts and circumstances that tend to show motive on the part of the accused are relevant, and equally relevant are the relations between the accused and the deceased, and all feeling that existed between them.” The text is supported by a multitude of authority. Upon a trial for murder facts and circumstances are relevant to show that the motive for the homicide was the concealment of a prior crime committed by the defendant, of which the deceased had knowledge. (Wharton, Crim. Evid., sec. 899.) Mr. Wigmore, in section 390 of his great work on Evidence, observes that the circumstances which might excite a desire to kill are innumerable. “The expediency of preventing the discovery of a former crime or of evading an arrest or a prosecution for it, may lead to the desire to kill.” “It is relevant to inquire into all of the personal relations between the accused and the deceased as to whether or not the same are a burden upon, or oppressive to, or an obstacle in the way of, one or the other.” (Wharton, Crim. Evid., sec. 901.)
In every criminal trial it is competent for the prosecution to prove both an intent and a motive (People v. Martin, 50 Cal. App. 71, 194 Pac. 522), and considerable latitude in the proof is always allowed. (People v. Sutherland, 154 N. Y. 345, 48 N. E. 518.) In the last ease cited it is held that on a trial for the murder of a woman by a man, proof of meretricious relations between them and of the facts leading up to such relations is competent where it tends to show a motive for the act.
Miller v. State, 90 Okl. Cr. 255, 131 Pac. 717, was a ease in which a man was on trial for the murder of a girl. It was held competent for the state to show all the relations existing between the deceased and the defendant, and that the defendant had entertained illicit sexual relations with the deceased by which the deceased had become pregnant, and that the defendant had attempted -to have an abortion performed upon the deceased, and that the defendant, being a married man, had become estranged from his wife. “Upon a trial for murder, the motive, or want of motive, upon the part of the defendant for the commission of the crime is always a material question to be considered by the jury.” (And see People v. Kline, 54 Iowa, 183, 6 N. W. 184; Jackson v. Commonwealth, 100 Ky. 239, 38 S. W. 422.)
What is the situation here? The state offered to show that the defendant, a married man, forty-four years old, had been carrying on sexual relations with a girl seventeen years of age; that he had got her with child and had brought about an abortion to destroy the fruit of his amour. If this be true he was guilty of the crime of rape, for which, upon being found guilty, he might have been sentenced to imprisonment for not less than two nor more than ninety-nine years. And as a principal in the abortion he was guilty of a felony. The offered testimony tended to show that he was in deep trouble over his relations with the girl, and it is clear from the testimony which was admitted that a serious break in their relations, whatever those relations were, had occurred before the transactions between the parties on March 25, 1926, ended in the girl’s death.
He would be a poor judge of human nature who would say that a situation like this, if it existed, was not ripe with mischief, or that it was not sufficient to impel an emotion which might result in murder. The defendant, if the offered evidence be true, was guilty of rape, abortion too, and liable to prosecution. If Emma Xirckel were not living he would have little fear of prosecution for these crimes. She therefore was an obstacle in his way, a menace to his happiness, a constant threat to his liberty. Furthermore, it is common knowledge that the emotions engendered by illicit love have manifested themselves in violence, often to the extent of taking human life, throughout recorded history.
What, then, was the motive of the defendant when he fired the fatal shot! In order to determine that question the tribunal sitting in judgment was entitled to know, so far as evidence was available, all the facts and circumstances tending to throw light upon the acts of the parties, and their relations and feelings toward each other. (State v. O’Brien, 18 Mont. 1, 43 Pac. 1091, 44 Pac. 399; State v. Felker, 27 Mont. 451, 71 Pac. 668.)
But it is argued that proof of the other crimes alleged to have been committed by defendant was not admissible. The general rule is that evidence of crimes other than the one for which a defendant is on trial is not admissible, but to this rule there are exceptions, and one is where evidence is material as tending to show the intent or motive of the defendant in the commission of the offense for which he is on trial, notwithstanding the fact that it also tends to prove the commission by him of another offense. (People v. Hendrix, 192 Cal. 441, 221 Pac. 349; People v. Martin, supra; Lawrence v. State (Ariz.), 240 Pac. 863; Miller v. State, supra; and see State v. Geddes, 22 Mont. 68, 89, 55 Pac. 919.)
The last argument of counsel for defendant on this feature of the case seems to be that because the defendant ad jnitted the killing, which he claims was in self-defense, the, state was not permitted to introduce proof of motive, and they rely upon People v. Wright, 144 Cal. 161, 77 Pac. 877, which followed People v. Gress, 107 Cal. 461, 40 Pac. 752. People v. Gress "seems erroneous” in the language of Mr. Wigmore (note to sec. 390, supra), and upon that point the case is expressly discredited in People v. Cook, 148 Cal. 334, 83 Pac. 43. While People v. Wright is mentioned in the opinion in People v. Cook, it is not condemned, and probably for the reason that unquestionably it was correctly decided upon the facts, which are different from those in the case at bar. In People v. Cook, the court having under consideration a point similar to the one before us, declared it to be untenable (page 340), and further on (page 344) declared that the court in People v. Gress had pot given due consideration to "the fact that in cases of homicide the presence or absence of motive to kill is always material, whether the killing is admitted or denied, not only in determining the degree of murder, if murder, but also upon the question of malice, where the plea is self-defense, as in this case, or provocation and sudden passion.” (And see Wigmore on Evidence, sec. 118(4).)
The evidence should have been admitted. But counsel for defendant say their client was prejudiced because in the opening statement he was charged with misconduct with the girl, which must have prejudiced the jury against him, and he was placed in "an unenviable and embarrassing situation” when he could not explain his relations with her. This may be true, but counsel for the state was within his rights in making the statement and the court was right in permitting him to do so. Counsel for the state was within his rights in asking the questions designed to elicit the testimony and the court was wrong in sustaining the objection interposed by defendant’s counsel thereto. The defendant will not be heard to complain of the situation which he brought about himself. If the court fell into error through the persuasive eloquence of his counsel, defendant must abide the consequences.
Specification No. 7 is to the effect that the court erred in overruling the defendant’s motion to withdraw from the jury the charge of murder in the first degree. As the defendant was not found guilty of murder in the first, but in the second, degree we fail to see how he was prejudiced by the court’s ruling. The point is not well taken. (Territory v. Manton, 7 Mont. 162, 14 Pac. 637; State v. Felker, supra.)
Specification No. 8 is to the effect that the evidence is insufficient to justify the verdict. We have examined the evidence with great care.
The victim of the tragedy, Emma Kirckel, upon the after-noon of the day she was killed, obtained a 32'-caliber automatic pistol from a table drawer in the house of J. J. Lowe, where the Kirckel family was then living, and then went to a store in Fromberg where she purchased a box of cartridges for the pistol. She then proceeded to the Hollowell ranch, arriving there about 5 o ’clock. She was well acquainted with the ranch and with those living there. What happened after she reached the ranch we know only from the attendant circumstances and the testimony of the defendant and Anthony Sancomb, an aged man who was cooking and attending to the chores upon the ranch. According to defendant’s testimony, when he first saw the girl she was fifteen or sixteen feet distant from him. At the time he was attempting to repair a mowing-machine and was on his knees looking through the drive-shaft housing of the mower. The girl did not approach nearer than twelve feet. After some conversation, during which she appeared in ill humor, defendant said he would have to go to the blacksmith-shop for an iron but would be back in a minute, and started away rapidly. He did not know the girl was following, but coming up behind him she said, “Hollowell, I want that banjo.” Considerable conversation on the subject ensued. The banjo belonged to defendant and finally he told her he did not want her to take it. She said: “You will see whether I will take it or not. ’ ’ At this point Sancomb came out upon the porch of the house some distance away. She said, “Wait a minute, Sane, I want to ask you something,” and “Come over here, Hollowell,” and walked rapidly to Saneomb. Instead of heeding her request the defendant picked up the iron he needed and started back to the mowing-machine, whereupon the girl spoke roughly to him saying, “Come over here, I want you to hear this.” As the defendant stepped toward her, she said, “Sane, didn’t you tell me Hollowell told you he didn’t like me?” And Sancomb replied, “No, I told you I thought he loved you.” At this the defendant went to the mower and began working upon it. The girl and San-comb continued their conversation, but in a short time walked slowly toward the mowing-machine, the girl stopping about twelve feet from the machine and Sancomb a few feet to her left. The girl then accused the defendant of having made statements to Sancomb derogatory to her character. When Sancomb denied that defendant had done so the girl turned to defendant and inquired, “How in hell does he know it?” to which the defendant replied, “I guess Jim knows; I guess your mother and Jack Gee knows; and Sam Gee knows it. I guess someone else could have told him. Anyhow I didn’t.” Sancomb then left and the conversation between the girl and the defendant continued. She accused the defendant of having told someone in Bridger that she had been intimate with twenty-two different men. The defendant offered to go to Bridger, face her informant, and deny it. After further talk the defendant said, “You told me you had been with three different men last summer and you are supposed to have admitted that to Sam, and he, later, told me. I told them I had spoken to nobody, recently, at Bridger about it. You admit it and you come here and try to raise a row.” The girl replied, “I am going to raise more than a row.” The defendant then, according to his testimony, got upon his knees again and resumed work about the mower, while the girl stood there “five or six or seven minutes.” Then, calling him a name, she told him to get up or she would kill him, saying she had a gun to do it with. She was then twelve or fourteen feet from the defendant. With the gun in her hand she ordered him to get into the house or she would shoot. Defendant walked ahead of her. Having a hammer in his hand he went in the direction of the blacksmith-shop with the intention of leaving it there; he said the girl knew his custom of putting his tools where he could find them, but his real purpose was to get away from her. However, she told him to throw the hammer down, which he did. They were then twenty-five or thirty feet from the door of the house, and at this point they met Sancomb coming to meet them. The girl told Sancomb to go into the house or she would shoot, and he obeyed. The defendant walked past Sancomb rapidly, entering the house some distance ahead of him.
The house was of concrete, with a screened-in porch. The defendant went through the porch, the kitchen and through a bedroom to a closet where he kept three guns, all of which were loaded. He seized the double-barreled shotgun, returned through the two rooms and on to the porch, arriving there just as Sancomb was coming through the screen door. The girl was standing on the ground holding the screen door open with her left hand, with her pistol in her right. The defendant, so he testified, held the shotgun between his arm and his right side, with the safety-catch on; he never did place the butt of the gun against his shoulder. As he came to the kitchen door he directed Sancomb to take the gun away from the girl, saying, “She is not going to shoot you,” and as San-comb attempted to do so the girl told him to get into the house or she would kill him. She then said to the defendant, “You put that gun down; you put that gun down, and I will throw this one down,” but the defendant did not do so. She did not again ask him to put the gun down. According to the defendant’s testimony the two faced each other for fully ten minutes, and during that entire time he was begging her to put the gun down. He did most of the talking. She spoke in monosyllables or in short sentences. At one time, he thought, she showed signs of relaxing, as she appeared to be getting tired and the pistol was pointed at his feet; he said to her, “Emma, please put that gun down, that isn’t anything to be playing with,” and she said, “Maybe you think this ain’t loaded,” and fired (undoubtedly in the air). She always had her finger on the trigger. He continued to beg her to put the gun down but she said she came there to kill him and she was going to do it. "When she said that she put her left foot on the step which blocked the screen door, and at that the defendant rdeased the safety on the shotgun and told her not to shoot the gun again — not to pull the trigger, to which she replied that she was going to kill him. Then he fired. The gun was under his arm when he shot. He intended to shoot at her hand or a little to the left of it with the idea of shooting the gun out of her hand. The shot struck the girl in the right side of the neck. The main charge severed the jugular vein, the carotid artery, and the vagus nerve. Death was practically instantaneous. The principal wound was about three inches above the collar-bone. There were shots in the chin, one immediately under the left eye and two above the collar-bone on the left side. There were no wounds upon the arms or hands. After the girl had fallen to the ground the defendant knelt over her saying, “Emma, are you hurt? I will get the ear and take you to the doctor right away.” The next thing he did was to pick up the pistol which he gave to Sancomb, telling him to hide it. He did not carry the girl into the house, nor place anything under her, but permitted her to lie upon the ground where she fell. The body remained there while defendant and Sancomb prepared to go to Bridger. It was now about dark. After the automobile was made ready they put the girl in the car seat between them, and drove to Bridger, a distance of eight miles. Both testified that they did not know the girl was dead.
The defendant, after having conveyed the body of the girl to Bridger and called a surgeon, telephoned the sheriff at Bed Lodge, saying, “We had a little trouble out at the ranch this evening,” the Kirckel girl “came out there with a revolver and ordered me and Sancomb in the house, and she shot at me, and I shot, trying to shoot the gun out of her hand, and incidentally shot her in the neck and hurt her.” He did not know how badly she was hurt, the doctor was then examining her. (When the surgeon first saw the girl in the automobile at Bridger her body was cold.) The sheriff directed the defendant to proceed to Ked Lodge immediately but instead he went to his ranch, — he said for the purpose of getting the pistol for use in evidence.
The defendant’s testimony respecting what took place from the time the girl arrived until he fired the fatal shot is somewhat lengthy. We have given but a sketch of it. The testimony of Sancomb generally corroborated that of defendant, but he was contradicted in many important particulars. For instance, witnesses testified that, prior to the trial, Sancomb had told them that when the defendant fired the shot he placed the butt of the gun against his shoulder and aimed at the girl. It is clear from the record that Sancomb intended to shield the defendant to the utmost.
The next day several persons went to the Hollowell ranch and examined the premises. They found evidences of the tragedy. Where the girl fell was plain from the pool of blood. About fourteen feet from the screen door and to the right they found an empty shell from the pistol. Loaded pistol shells were from three to ten feet from the screen door to the left, some in the box and some upon the ground. Two witnesses examined the mowing-machine and the ground thereabout carefully. According to their testimony there was old snow under the mowing-machine which had not been disturbed and there were no foot tracks within a radius of twelve feet of the mowing-machine, and there was no evidence that any work had been done upon the mower recently.
It would be impossible to determine from the dead record whether the defendant was actually in danger from the girl or whether he thought he was. If she went to the ranch with the intention of killing him she had ample opportunity to carry her purpose into effect long before he armed himself with the shotgun, after which she was as much in peril as was he. It is clear that her act in firing the pistol was one of sheer bravado. It is not at all clear that she was not bluffing throughout. This áppears to have been the jury’s view; it is quite certain the jury was of the opinion that the defendant fired the shot in malice, with the intention of killing his victim. Was the defendant in actual danger? Did he, as a reasonable man, believe he was in actual danger? Did he really shoot in self-defense? Or did he, with an abandoned and malignant heart, seize the opportunity to take away the life of a fellow creature ? The jury adopted the latter view, and we cannot say that it was not fully warranted in so doing. There is an indefinable something running through defendant’s testimony which continually raises doubts as to his truthfulness; his story is far from convincing. As between those who sit in judgment, this case presents a striking illustration of how much more advantageous is the situation of the one who sees and hears the witness testify, — who observes the demeanor of the witness upon the stand, with all that implies, — over the one who sits in review with naught before him but cold type. The testimony of the living witnesses, given as it was, must have convinced the jury that the defendant was indeed guilty of murder in the second degree. The jury was entitled to draw the inference that the killing was done in malice from all the facts and circumstances surrounding the tragedy which were disclosed by the evidence, and the failure of the defendant to sustain his plea of self-defense. The court so held in State v. Smith, 26 N. M. 482, 194 Pac. 869, saying: “This malice the jury could infer from the evidence or absence of evidence, or it could have been implied in this case as a matter of law if the jury, as an inference of fact, found the essential conditions under the statute for the implication; that is, that no considerable provocation appeared, or that all the circumstances of the killing show a wicked and malignant heart. We are unable to point to any specific evidence, or say that particular evidence is evidence of murder in the second degree, bnt the inferences drawn from the facts and circumstances or the absence of facts and circumstances tending to prove deliberation justified the jury in taking the view that the homicide was one with malice, as above defined, and without deliberation, but with all the other elements of murder present.”
As this court said in State v. Byrd, 41 Mont. 585, 111 Pac. 407, “unless we can say that the evidence was insufficient to justify the verdict we have no power to interfere. We cannot say that. We may not substitute our judgment for that of the jury.”
It follows that the judgment and order must be affirmed, and it is so ordered.
Affirmed.
Associate Justices Myers, Stark, Matthews and Galen concur.
|
[
-18,
8,
35,
-20,
-42,
-42,
-30,
-20,
-20,
12,
29,
6,
20,
-35,
5,
-2,
-34,
-23,
6,
43,
-10,
-23,
-13,
-2,
-47,
-18,
-23,
10,
-33,
-24,
29,
38,
6,
-4,
-7,
64,
32,
8,
-34,
-2,
40,
10,
22,
10,
36,
51,
27,
-57,
-27,
-1,
-4,
-67,
5,
12,
21,
-20,
13,
29,
-33,
15,
19,
-13,
-24,
-13,
33,
-51,
15,
35,
-21,
0,
4,
-6,
-54,
-9,
-30,
12,
41,
-35,
1,
-24,
-28,
7,
28,
12,
-18,
-66,
-28,
-21,
-37,
25,
0,
53,
27,
-10,
61,
6,
0,
-34,
-28,
-38,
45,
-46,
-20,
1,
-29,
-28,
-15,
23,
90,
23,
45,
75,
-25,
35,
-40,
-33,
-6,
-63,
-69,
-22,
15,
50,
-26,
25,
-22,
0,
-43,
24,
88,
-57,
-23,
24,
0,
-6,
14,
-45,
-68,
-41,
12,
11,
11,
-5,
-3,
30,
8,
52,
-42,
62,
-27,
32,
-3,
-64,
22,
41,
53,
-67,
-3,
-90,
-45,
-10,
6,
-50,
43,
-25,
-21,
0,
-63,
2,
-13,
1,
-24,
8,
-2,
26,
31,
-2,
-31,
-51,
21,
21,
-2,
38,
13,
-56,
0,
25,
15,
-5,
30,
-34,
-64,
17,
8,
-66,
-6,
7,
21,
2,
40,
-35,
36,
13,
12,
47,
-5,
-1,
-58,
17,
42,
-23,
3,
-8,
23,
-11,
-23,
-14,
-39,
-19,
-48,
16,
-16,
-22,
-8,
-12,
-7,
-61,
-7,
34,
-7,
0,
18,
29,
-14,
-23,
11,
-8,
11,
-36,
-26,
-33,
-29,
-19,
56,
-7,
13,
36,
-17,
-4,
-28,
-6,
-2,
-15,
20,
47,
10,
36,
38,
24,
-3,
-15,
10,
-27,
64,
20,
-31,
27,
-3,
-27,
-18,
-14,
52,
-37,
41,
24,
-30,
-31,
44,
47,
15,
27,
34,
-33,
18,
15,
4,
-18,
-55,
54,
-37,
-13,
5,
-25,
30,
-14,
79,
23,
46,
0,
8,
16,
-27,
-29,
-7,
-30,
13,
14,
-44,
25,
-29,
-60,
2,
13,
39,
1,
18,
49,
-14,
-39,
35,
2,
-40,
12,
11,
-21,
-13,
-24,
17,
-2,
-25,
5,
54,
67,
21,
22,
-13,
-29,
-52,
27,
-9,
-19,
19,
-35,
39,
-13,
-69,
10,
19,
13,
-47,
-35,
-14,
-58,
9,
14,
-65,
-6,
18,
-62,
46,
-65,
0,
-1,
6,
6,
-35,
13,
18,
-46,
5,
6,
20,
-1,
-32,
-2,
45,
30,
41,
26,
0,
108,
8,
-3,
-33,
12,
-2,
40,
5,
-21,
-14,
26,
3,
26,
11,
19,
-8,
-33,
-23,
-10,
10,
-58,
-49,
3,
18,
-82,
-43,
47,
-53,
22,
-16,
-11,
15,
-30,
57,
0,
42,
-19,
-34,
16,
-9,
0,
41,
-31,
111,
54,
-5,
21,
24,
-1,
-36,
-91,
22,
44,
-10,
32,
-8,
-39,
-6,
53,
79,
-27,
-5,
16,
-5,
50,
-7,
26,
0,
53,
29,
-11,
15,
-6,
26,
13,
29,
46,
13,
-13,
-6,
-25,
19,
20,
-58,
-8,
9,
4,
-52,
-16,
26,
-6,
72,
-24,
43,
-2,
23,
43,
7,
24,
51,
-39,
-12,
-61,
33,
12,
-40,
18,
-22,
-48,
19,
-21,
-20,
8,
-47,
-60,
-47,
-18,
11,
-16,
4,
-18,
-23,
-12,
-32,
2,
-41,
-58,
41,
-3,
9,
49,
25,
0,
-19,
-29,
-36,
-24,
76,
4,
-9,
8,
69,
15,
-1,
85,
-39,
-18,
24,
-37,
-4,
-36,
-7,
3,
-76,
9,
39,
28,
-40,
-42,
-5,
-89,
55,
-37,
59,
32,
-50,
2,
28,
-8,
17,
-7,
36,
19,
-16,
-53,
32,
-1,
-45,
7,
-11,
-13,
1,
8,
-35,
0,
15,
7,
-34,
-27,
15,
-3,
26,
50,
-28,
-2,
22,
-7,
-4,
33,
8,
9,
5,
-5,
-50,
25,
-45,
50,
28,
27,
41,
60,
-21,
27,
12,
-20,
-34,
-3,
21,
-22,
-13,
-8,
-41,
37,
23,
89,
35,
49,
23,
-29,
19,
-5,
-7,
-55,
20,
-15,
7,
47,
-11,
-43,
-47,
-7,
-31,
-24,
-25,
25,
46,
-3,
-43,
-2,
-28,
-17,
-18,
-4,
29,
65,
-33,
33,
35,
16,
-27,
0,
41,
58,
19,
-3,
-6,
39,
9,
44,
39,
-30,
2,
-34,
28,
-36,
-19,
-21,
3,
4,
27,
8,
2,
80,
-42,
-23,
25,
42,
19,
11,
12,
30,
41,
-18,
9,
-51,
-14,
0,
25,
15,
45,
-21,
25,
-15,
24,
-8,
-1,
29,
-59,
34,
43,
24,
11,
-30,
7,
35,
14,
-19,
68,
1,
-47,
-53,
17,
-69,
-18,
-41,
16,
-6,
66,
-53,
-24,
-55,
6,
-26,
1,
-10,
-40,
-16,
-13,
-14,
-43,
42,
7,
13,
-9,
13,
13,
31,
-18,
21,
28,
17,
50,
12,
-28,
47,
18,
33,
-39,
-11,
-38,
-7,
1,
-2,
-55,
21,
-12,
11,
43,
-27,
29,
-6,
52,
37,
33,
-86,
-51,
27,
56,
3,
-25,
-34,
12,
32,
-23,
-19,
-62,
0,
16,
-5,
-12,
4,
-2,
-46,
-32,
31,
-8,
3,
-6,
11,
-21,
-24,
30,
22,
-23,
-29,
16,
38,
7,
37,
21,
35,
-4,
-5,
-8,
41,
-13,
2,
7,
5,
-17,
73,
21,
-34,
21,
23,
42,
0,
18,
-14,
4,
34,
40,
76,
7,
15,
-1,
-36,
-30,
-6,
-12,
-11,
-11,
-33,
-13,
15,
38,
19,
-30,
-11,
-39,
24,
24,
24,
-2,
-18,
-36,
30,
-34,
41,
-4,
55,
-12,
45,
-8,
-1,
34,
-17,
24,
-9,
18,
53,
12,
4,
-12,
-13,
-62,
-17,
8,
16,
4,
8,
-62,
11,
-35,
-43,
-12,
5,
56,
-20,
5,
-25,
-73,
-2,
57,
-4,
-55,
54,
-20,
-38,
26,
43,
-41,
-35,
11,
-4,
32,
-33,
-10,
-52,
31,
29,
-35,
-10,
23,
-13,
-5,
-21,
-34,
30,
1,
-7,
11,
18,
12,
8,
49,
-29,
33,
5,
11,
-10,
44,
-13,
-30,
75,
-23,
51,
-27,
-11,
34,
-50,
-24,
-5,
21,
-6,
42,
-33,
-27,
-26,
-55,
37,
-20,
26,
-11,
-46,
13,
26,
-29,
-6,
-15,
-33,
8,
39,
10,
16,
30,
24,
5,
-46,
-35,
48,
32,
63,
-6,
23,
45,
-22,
5,
15,
-25,
2,
-52,
-7,
-7,
0,
14,
-29,
11,
-35,
22,
48,
1,
-25,
-22,
3,
-8,
-37,
-21,
18,
4,
-49,
-52,
15,
-26,
-10,
29,
60,
-18,
-9,
-47,
13,
-41,
-4,
-77,
48,
-32,
34,
35,
-19,
-24,
-37,
38,
7,
-7,
11,
-44,
-18,
-23,
10,
4,
-27,
18,
-8,
23,
-58,
-12,
19,
-17,
50,
23,
-4,
-40,
-9,
10,
-16
] |
MR. JUSTICE WEBER
delivered the opinion of the Court.
Plaintiff Malan F. Johnston (Johnston) appeals from the decision of the District Court of the Thirteenth Judicial District, Yellowstone County, denying his claim for wages, penalties, attorney fees and costs. We affirm the decision of the District Court.
Johnston entered into an oral contract of employment with K & T Manufacturing, Inc. (K & T), a Wyoming-based corporation, on November 7, 1978. Johnston was hired to fly K & T’s executive jet airplane. There was no express term of employment. Incidental expenses incurred by Johnston in the performance of his duties were paid by Johnston, and he was reimbursed by K & T after he submitted expense receipts. Johnston submitted a set of periodic expense receipts totaling $349.52 just prior to the termination of his employment. Johnston was fired on September 14, 1979. On September 15, 1979, he received a check for the full amount of wages owed him by K & T. Five days later, September 20, Johnston filed suit against K & T. Johnston sued for $500 for unused vacation time, $720.67 for employment expenses, $1,000 in severance pay, $2,063.77 in statutory penalties for K & T’s failure to pay money due, $2,167 in attorney fees, and costs of suit. On July 22, 1980, the District Court, sitting without a jury, found that Johnston’s allegations were unsupported by sufficient credible evidence, and that neither party was entitled to attorney fees or costs. (K & T had counterclaimed for damages for Johnston’s withholding of the keys to the airplane after his discharge.) The Court also found that at the time of his discharge Johnston was paid all sums due him from K & T except for the disputed expense claims which were paid on December 18, 1979. K & T paid Johnston $ 171.46 on that date. This was the portion of the expense receipts submitted by Johnston that K & T found to be reasonable. Johnston argues that as a result of the payment of the $ 171.46, K & T should be required to pay statutory penalties and attorney fees.
Johnston’s first issue is whether the District Court erred in not holding K & T liable for statutory penalties as a result of K & T’s failure to pay wages and monies due. The evidence showed that on the day of Johnston’s discharge K & T owed a then undetermined sum for expenses incurred and paid by Johnston. The evidence further showed that K & T paid $ 171.46 to Johnston with a December 18, 1979, check. The check bore the notation “full expenses due.” Johnson claims that this payment was for “wages” as that term is defined by section 39-3-201(5), MCA, which states:
“ ‘Wages’ includes any money due an employee from the employer or employers, whether to be paid by the hour, day, week, semimonthly, monthly or yearly and shall include bonus, piecework, tips and gratuities of any kind.”
Johnston argues that reimbursement was not made to him within six days as required under section 39-3-205, MCA, which establishes when wages are to be paid if an employee is separated from employment prior to payday. Johnston further contends that because reimbursement was not made within six days, the penalty of section 39-3-206, MCA, should have been imposed. That section in pertinent part provides:
“Penalty for failure to pay wages at times specified in law ... A penalty shall also be assessed against and paid by such employer and become due such employee as follows: a sum equivalent to the fixed amount of 5% of the wages due and unpaid shall be assessed for each day, except Sundays and legal holidays, upon which such failure continues after the day upon which such wages were due, except that such failure shall not be deemed to continue more than 20 days after the date such wages were due.”
We find that the $171.46 payment was not wages under section 39-3-201(5), MCA, or section 39-3-206, MCA. Such payment was an “indemnification of employee” referred to in section 39-2-701(1), MCA. There is no statutory penalty for the failure to indemnify an employee for expenditures covered by that section. We hold that the penalty for failure to pay wages under section 39-3-206, MCA, does not apply to the $171.46 payment.
The next issue presented by Johnston is whether the trial court erred in not finding K & T liable for Johnston’s attorney fees and costs under section 39-3-214, MCA:
“Court costs and attorneys’ fees. (1) Whenever it is necessary for the employee to enter or maintain a suit at law for the recovery or collection of wages due as provided for by this part, a resulting judgment must include a reasonable attorney’s fee in favor of the successful party, to be taxed as part of the costs in the case.
“(2) Any judgment for the plaintiff in a proceeding pursuant to this part must include all costs reasonably incurred in connection with the proceeding, including attorneys’ fees.”
As previously stated, the $171.46 payment was not a payment for wages. In addition, Johnston did not obtain a judgment for wages due so as to trigger the statutory requirement for an award of reasonable attorney fees and costs. In fact there was no judgment for the plaintiff as required under the above code section. Johnston has failed to meet the statutory requirements for attorney fees or costs.
The District Court decided against Johnston on both issues. The decision of the District Court is affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, HARRISON and MORRISON concur.
|
[
18,
-19,
-51,
31,
34,
-51,
-5,
-42,
-22,
-1,
-2,
9,
37,
-42,
33,
22,
-3,
11,
65,
-34,
13,
-44,
-4,
-25,
-9,
0,
-25,
-13,
3,
24,
32,
-3,
-11,
-48,
-17,
30,
13,
21,
-37,
23,
43,
0,
35,
-40,
30,
37,
33,
-30,
24,
-5,
46,
34,
-7,
-2,
-13,
31,
36,
-16,
-29,
8,
-10,
-14,
63,
-17,
47,
-49,
35,
87,
2,
10,
-44,
33,
34,
6,
18,
-45,
-28,
22,
-56,
6,
15,
0,
-41,
2,
-32,
0,
-24,
1,
-4,
60,
-47,
39,
17,
-30,
-27,
27,
-22,
26,
-47,
8,
-37,
-34,
8,
24,
3,
-40,
3,
-36,
40,
56,
41,
51,
-23,
48,
-27,
-22,
61,
19,
3,
19,
29,
25,
15,
41,
-4,
-37,
-33,
25,
31,
25,
3,
0,
-6,
3,
-13,
-17,
7,
-27,
-76,
0,
-8,
10,
-14,
21,
36,
39,
30,
3,
-38,
-82,
-25,
-27,
28,
79,
71,
-42,
22,
-9,
23,
-58,
45,
-8,
9,
4,
8,
19,
40,
33,
11,
-71,
32,
-8,
-31,
-36,
40,
61,
30,
-13,
12,
6,
-5,
-4,
-18,
-22,
-15,
4,
40,
30,
13,
19,
3,
-67,
1,
-9,
-34,
-22,
70,
51,
-22,
-2,
36,
-14,
-15,
9,
47,
-3,
42,
30,
9,
81,
-5,
-34,
65,
-47,
-78,
-2,
8,
-8,
0,
-41,
30,
-33,
-33,
-42,
-66,
-26,
-18,
29,
13,
-26,
-63,
17,
58,
11,
-14,
-48,
4,
-11,
92,
1,
-47,
-45,
-18,
-17,
28,
-9,
-77,
-42,
-8,
1,
-8,
32,
-16,
33,
-15,
-7,
-18,
4,
-13,
-9,
8,
2,
-33,
10,
-54,
2,
-57,
37,
-1,
-9,
-31,
-10,
22,
-10,
-31,
-48,
32,
-2,
-12,
-7,
-11,
47,
9,
0,
-4,
54,
50,
40,
9,
-46,
30,
-49,
-5,
2,
60,
2,
22,
20,
-31,
28,
-35,
-57,
34,
31,
30,
-27,
-44,
0,
-8,
18,
-33,
-46,
-25,
-3,
-1,
-10,
-38,
-8,
24,
-49,
17,
55,
6,
11,
30,
-29,
-38,
-12,
17,
-38,
24,
8,
-46,
62,
17,
-74,
41,
31,
71,
45,
8,
32,
33,
51,
-16,
36,
7,
43,
-5,
3,
2,
21,
10,
38,
15,
40,
50,
-15,
-3,
32,
17,
-43,
-15,
-57,
-44,
27,
7,
-5,
-8,
-29,
20,
21,
12,
-1,
0,
-11,
-21,
-16,
-24,
14,
-19,
-21,
-7,
-20,
-18,
7,
53,
-22,
-25,
-1,
1,
-21,
35,
42,
-20,
21,
8,
20,
-3,
-1,
-12,
26,
-4,
25,
17,
-27,
33,
17,
-48,
-4,
19,
-34,
15,
-28,
0,
-7,
28,
46,
19,
9,
52,
10,
15,
5,
32,
-48,
-12,
57,
-4,
-78,
9,
24,
21,
-25,
5,
-13,
2,
8,
-8,
38,
-26,
30,
-41,
7,
-26,
-6,
1,
22,
18,
32,
-22,
-27,
-12,
70,
-3,
-26,
23,
-43,
-33,
15,
26,
4,
43,
-11,
12,
-32,
37,
0,
-10,
38,
-2,
-6,
-4,
34,
-4,
-42,
-10,
-20,
26,
-27,
-64,
-44,
-35,
-4,
-32,
17,
8,
35,
-1,
45,
3,
6,
-82,
-22,
-36,
10,
-52,
-17,
8,
-12,
-11,
-20,
63,
-26,
-22,
-47,
5,
-70,
-40,
16,
-16,
-7,
42,
-14,
16,
37,
9,
62,
21,
-4,
12,
40,
-49,
14,
28,
-9,
-22,
-13,
-9,
9,
-63,
47,
20,
-58,
23,
-60,
9,
1,
1,
-44,
52,
8,
-2,
0,
-9,
12,
-46,
1,
66,
-11,
26,
-7,
4,
19,
-9,
-41,
26,
21,
-6,
26,
31,
19,
-60,
40,
10,
80,
-73,
22,
31,
4,
-8,
-1,
-1,
20,
9,
7,
-5,
0,
-27,
-23,
-36,
-14,
22,
-25,
-47,
-78,
38,
49,
8,
-15,
-37,
-38,
-31,
-32,
54,
-21,
26,
-15,
-32,
-11,
-14,
10,
-46,
-15,
-13,
3,
-22,
-30,
35,
12,
-22,
50,
-9,
-39,
-21,
-41,
-6,
-57,
29,
-25,
19,
5,
0,
-23,
3,
53,
-38,
0,
-26,
-29,
35,
0,
-5,
-17,
16,
-45,
71,
20,
-1,
-47,
69,
-47,
25,
-24,
-55,
-50,
13,
28,
-6,
-4,
11,
6,
41,
-16,
10,
29,
-5,
28,
3,
-50,
-34,
-15,
17,
18,
12,
-41,
-42,
13,
27,
4,
12,
-11,
1,
9,
34,
5,
-64,
-35,
-2,
-40,
37,
-3,
55,
-27,
-17,
21,
23,
-65,
-36,
-28,
20,
65,
1,
20,
49,
-8,
-43,
-12,
-28,
-9,
-22,
-57,
-19,
36,
20,
49,
-20,
24,
18,
80,
-22,
-7,
-10,
-17,
-30,
12,
-11,
-45,
-70,
3,
8,
-10,
-48,
-23,
-19,
23,
22,
-74,
-33,
19,
-12,
46,
-25,
-3,
4,
-34,
1,
-31,
-11,
35,
70,
35,
50,
19,
-39,
59,
38,
24,
2,
2,
-42,
14,
15,
-3,
-42,
23,
45,
-2,
-16,
8,
19,
11,
-18,
18,
10,
3,
-21,
-27,
15,
-38,
11,
32,
7,
1,
12,
4,
18,
42,
-34,
20,
52,
-11,
-32,
25,
-45,
20,
0,
11,
2,
49,
-33,
-73,
57,
-30,
-13,
-37,
-4,
41,
-18,
-8,
-17,
36,
16,
44,
28,
22,
54,
-12,
49,
-23,
-18,
-15,
-2,
25,
40,
27,
32,
-15,
-18,
-37,
16,
6,
-46,
23,
35,
-9,
-29,
1,
-34,
48,
-9,
-49,
-11,
40,
-38,
20,
-5,
-5,
-43,
-10,
34,
4,
-83,
-12,
-7,
-14,
-24,
1,
-52,
-49,
-24,
-14,
10,
78,
2,
-16,
10,
-19,
28,
5,
4,
12,
-12,
27,
-19,
39,
-46,
5,
15,
-29,
38,
-8,
73,
28,
-44,
2,
13,
-38,
54,
-17,
-26,
64,
23,
-7,
43,
-12,
-56,
-23,
41,
38,
37,
-26,
-22,
-7,
6,
-3,
0,
4,
-19,
-14,
17,
63,
19,
97,
8,
17,
18,
-38,
-50,
69,
-29,
46,
-27,
-23,
-48,
-29,
-2,
37,
50,
-1,
17,
-1,
-31,
0,
25,
0,
8,
-8,
-9,
23,
0,
-49,
24,
41,
-4,
13,
5,
2,
33,
-1,
-24,
-22,
-16,
-26,
-58,
-28,
-51,
-47,
-30,
20,
5,
46,
-29,
69,
-40,
-51,
-30,
-43,
33,
-22,
-65,
-17,
7,
-10,
-31,
-10,
11,
-13,
-14,
-49,
19,
-27,
-17,
-22,
6,
13,
4,
57,
11,
-24,
53,
-8,
-4,
30,
-26,
-26,
-12,
18,
-22,
-21,
16,
20,
9,
-11,
53,
-32,
-18,
-16,
35,
-8,
35,
-65,
-65,
-27,
-2,
41,
33,
10,
-13,
20,
38,
60,
-41,
-47,
-11,
62,
-40,
-45,
-21,
30,
48,
-26,
-22,
-47
] |
MR. JUSTICE DALY
delivered the opinion of the Court.
This appeal arises from an order appointing respondent’s attorney lead counsel and providing for reasonable compensation and an order fixing that compensation entered by the District Court for the Fourth Judicial District, Missoula County, the Honorable John S. Henson presiding.
There occurred on July 16, 1977, a fire in the Pattee Canyon area of Missoula County, Montana. The fire caused extensive damage to both homes and land in the area. The Montana Department of Natural Resources and Conservation (DNRC) fought the blaze and made arrangements for an investigation into the causes of the fire. It was later determined that power lines of the Montana Power Company could have been the cause of the Pattee Canyon fire.
A complaint for damages to their property caused by the fire was filed by John and Mary Means on March 14, 1978. Filing of the complaint had followed extensive discovery by Shelton C. Williams, attorney for Mr. and Mrs. Means.
On December 21, 1978, DNRC filed its own complaint seeking approximately $532,000 for damages to state land and costs for extinguishing the fire.
On March 30, 1979, the Means case and the DNRC case were consolidated by stipulation. Subsequently, other parties who had suffered losses caused by the fire filed additional complaints against the Montana Power Company. Altogether there were thirty-one cases filed in the Fourth Judicial District Court, Missoula County, except for one which Williams filed in the Federal District Court for Montana. There were approximately ten attorneys or firms who ultimately became involved in the litigation for the various plaintiffs.
The Montana Power Company, by motion on May 23, 1979, sought consolidation of all cases pending in District Court. Shortly afterwards, on July 27, 1979, Williams filed a motion seeking an appointment of lead counsel.
The motion for consolidation for the purpose of determining liability was granted on August 8, 1979. The order provided, however, that the damage aspect of the actions be bifurcated with separate trials being envisioned, if necessary, in this regard.
On October 30, 1979, Williams filed a stipulation whereby counsel for all parties, except DNRC, agreed to his being lead counsel and to his compensation therefor. As a result of the stipula tion, Williams represented thirty of thirty-one parties for claims totaling $2,242,875.75. On November 1, 1979, the District Court, without a hearing, ordered the appointment of Williams as lead counsel in all consolidated cases, including the action filed by DNRC. The order also provided that the Williams Law Firm be reasonably compensated for services heretofore or hereafter rendered. The amount of compensation was to be determined by agreement of the parties or by the court after termination of lead counsel’s responsibilities.
The matter proceeded toward the scheduled trial date of December 3, 1979, with discovery proceeding and numerous preliminary motions with Williams as lead counsel. Prior to trial settlement negotiations began with DNRC and various home owners settling their claims for $1,215,000 of which $425,000 was for DNRC. A group referred to as the raw landowners failed to reach a settlement and preparation on their behalf continued for the scheduled trial date.
On December 3, 1979, the presiding judge withdrew from the case, and the trial date was vacated. A new judge and trial date were subsequently set, and the raw landowners proceeded to trial.
On December 28, 1979, Williams, as lead counsel, after failing to reach an agreement with DNRC, moved for a determination of compensation. After a series of hearings the District Court entered an order on March 14, 1980, granting the Williams Law Firm $47,222.22 to be paid by DNRC.
DNRC appeals both the order of November 1, 1979, appointing lead counsel and the order of March 14, 1980, determining compensation.
The following issues have been presented to this Court for review:
1. Did the District Court err in failing to hold an evidentiary hearing prior to entering its findings of fact, conclusions of law and order appointing lead counsel?
2. Did the District Court err in appointing a lead counsel?
3. Did the District Court err in ordering DNRC to pay compensation to lead counsel?
4. Did the District Court abuse its discretion in awarding compensation in the amount of $47,222.22?
As to the first issue on appeal, DNRC would have this Court remand this action to the District Court due to its failure to hold an evidentiary hearing prior to entering the November 1, 1979, order appointing lead counsel. The basis of this contention is that since there is no record to review, this Court is unable to determine if there is sufficient evidence to support the findings made. We must disagree.
The order of November 1, 1979, was entered in response to a motion under Rule 42(a), M.R.Civ.P. (consolidation). Rule 52(a), M.R.Civ.P., in pertinent part, provides that, “[f]indings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion. . . ” Findings of fact being unnecessary for a ruling on said motions, the District Court is under no obligation to provide an evidentiary hearing.
The District Court in this instance, however, though under no obligation to do so, chose to make findings of fact upon which it based its conclusions of law and order. This Court now being presented with the order for examination, it is incumbent upon this Court to review the findings as well as the applicable law. See Timmerman v. Gabriel (1970), 155 Mont. 294, 470 P.2d 528; section 3-2-204(5), MCA; Upper Missouri G & T Electric Cooperative, Inc. v. McCone Electric Cooperative, Inc., (1971), 157 Mont. 239, 484 P.2d 741. It is not necessary, however, that this action be remanded for an evidentiary hearing.
Here, the findings in dispute are: (1) that the size and complexity of the case demands the appointment of a lead counsel; and (2) that almost all of the discovery and trial preparation has been done by Williams with the implied consent of DNRC. An examination of the submitted District Court file (as to the complexity of the case) and a review of the hearings held in regard to the order setting compensation (as to the work done by Williams with the implied consent of DNRC) provides a sufficient basis for review.
The second issue on appeal involves a determination of whether or not this action was an appropriate one for a lead counsel to be appointed.
As the cases cited by both DNRC and Williams indicate, the appointment of lead counsel is made in conjunction with a motion and order for consolidation and has been primarily used in federal court proceedings involving multi-party litigation. See In re Air Crash Disaster at Florida Everglades (5th Cir. 1977), 549 F.2d 1006; Vincent v. Hughes Air West, Inc. (9th Cir. 1977), 557 F.2d 759.
In the present case, thirty-one separate plaintiffs all brought suit against the Montana Power Company claiming damages occasioned by a single disaster. The thiry-one plaintiffs were represented by ten different attorneys. Clearly, this case does not appear as complex as that seen in Vincent (sixty separate actions brought in state and federal courts in Washington, Utah and California) or in Florida Everglades (150 claims in both federal and state courts). However, it cannot be said that the trial court, in exercising its managerial power over this proceeding, clearly abused its discretion as a matter of law in providing for the appointment of a lead counsel.
The purpose of consolidation and appointment of lead counsel is to permit trial convenience and economy in administration by avoiding unnecessary costs or delay. MacAlister v. Guterma (2nd Cir. 1958), 263 F.2d 65. Absent a lead counsel there was no guarantee presented to the court that all the parties to this proceeding would not become actively involved in the litigation. Consequently, had the District Court failed to formally order appointment of lead counsel, it could have been faced with the possibility of ten different attorneys pursing ten different theories of attack. It is obvious that such an arrangement would foster undue delay, cost and inconvenience.
Furthermore, and most importantly, in light of DNRC’s past conduct, this Court seriously questions the propriety of allowing DNRC to avoid the application of the lead counsel order. After the order was entered at no time did DNRC move for a reconsideration, nor did it seek an appeal or writ to have the order reviewed by this Court prior to the scheduled trial date. Moreover, during the initial settlement negotiations, DNRC failed to accept a proposal made by the Montana Power Company to segregate the claims of DNRC, which would have allowed the Department to proceed on its own and to avoid further application of the lead counsel order. Even prior to the lead counsel order, during extensive discovery engaged in by the parties, DNRC allowed Williams to act as lead counsel, having him take a great bulk of the deposition needed for trial, while choosing not to attend and merely paying its own pro rata share of the costs. DNRC also allowed Williams to do the majority of the work in preparing interrogatories.
DNRC contends it was bound by the lead counsel order and unable to appeal until the March 14, 1980, order was entered allowing Williams compensation. A final determination of the parties’ rights, argues DNRC, only occurred when the court ordered it to pay compensation and the matter was deemed concluded. DNRC bases this argument on language in the lead counsel order that the court was to retain continuing jurisdiction over the matter to review the acts of lead counsel to enforce and interpret the court as entered.”
We disagree with DNRC’s position in failing to see why the language noted should make the order appointing lead counsel any less final than the March 14, 1980, order setting compensation. The November 1, 1979, order specifically appointed Williams lead counsel, subject to reasonable compensation. The only reason the court was retaining a “continuing jurisdiction over the matter” was to assure that Williams acted in the best interest of the plaintiffs and to set the already ordered reasonable compensation. If DNRC disputed this appointment and the terms thereunder, it should have made its feelings known.
It is apparent that DNRC was more than willing to allow Williams to act as lead counsel; to accept his appointment as such; and to accept the benefits of the $425,000 settlement acquired under the order. DNRC having already consented to an application of the lead counsel order, it should not be allowed to avoid the same on appeal to this Court.
As to the order determining compensation for Williams as lead counsel, DNRC first argues that due to the absence of any contractual agreement between the parties or any statutory authority, attorney fees are not recoverable. See Winer v. Jonal Corp. (1976), 169 Mont. 247, 545 P.2d 1094. Williams acknowledges this general rule but contends that in situations where attorney fees are paid from a “common fund,” it is accepted that these fees can be awarded even in absence of statute or an express agreement.
The “common fund” concept provides that when a party through active litigation creates, reserves or increases a fund, others sharing in the fund must bear a portion of the litigation costs including reasonable attorney fees. The doctrine is employed to spread the cost of litigation among all beneficiaries so that the active beneficiary is not forced to bear the burden alone and the “stranger” (i. e., passive) beneficiaries do not receive their benefits at no cost to themselves. See Vincent, supra, 557 F.2d at 769.
The doctrine is well recognized and has been quoted in several Montana cases. See In Re Baxter’s Estate (1933), 94 Mont. 257, 22 P.2d 182; Hardware Mutual Casualty Co. v. Butler (1944), 116 Mont. 73, 148 P.2d 563; Tuttle v. Morrison-Knudsen Co., Inc. (1978), 177 Mont. 166, 580 P.2d 1379. See also City of Klawock v. Gustafson (9th Cir. 1978), 585 F.2d 428. The basis of the doctrine being rooted in the equitable concepts of quasi-contract, restitution and recapture of unjust enrichment, the common fund theory of awarding compensation to a lead counsel must be allowed as an expansion of the general rule provided in Winer.
DNRC argues that even if the common fund concept is recognized in Montana it should not be applied in this instance. DNRC bases this contention on an active litigant versus passive litigant distinction.
It is stated that only inactive or passive beneficiaries should be forced to bear the costs of litigation under the common fund doctrine. An inactive member in this regard has been defined as a beneficiary who merely fails to retain counsel or one who retains legal counsel but said counsel fails, in any degree, to participate in any labors leading to the creation of the fund. See In Re Estate of Korthe (1970), 88 Cal.Rptr. 465, 9 Cal.App.3d 572; See also plumbing fixture anti-trust cases: Philadelphia Housing Authority v. American Radiator and Standard Sanitary Corp. (E.D.Pa.1971), 322 F.Supp. 834, modified sub nom., Ace Heating and Plumbing Co. v. Crane Co. (3rd Cir. 1971), 453 F.2d 30; Philadelphia Housing Authority v. American Radiator and Standard Sanitary Corp. (E.D.Pa.1970), 323 F.Supp. 364; Note, Reimbursement for Attorneys’ Fees from Beneficiaries of Representative Litigation, 58 Minn.L.R. at 947-948 (1974).
Nevertheless, the courts have recognized an exception to this general rule. See Vincent, 557 F.2d at 772. The exception provides that so long as contributions of active counsel were unequal (i. e., greater) when compared with those of a less active counsel, compensation can still be ordered paid under the common fund doctrine by the less active party. See also Doherty v. Bress (D.C.Cir.1958), 262 F.2d 20, cert. denied 359 U.S. 934, 79 S.Ct. 649, 3 L.Ed.2d 636. The purpose of this exception is similar to that of the common fund doctrine itself — to avoid unjust enrichment.
Here the record indicates that DNRC accrued 1,680 hours in legal services. This total included the services of DNRC’s legal staff, legal interns and nonlegal personnel. Williams Law Firm’s time records reflected 3,909.25 hours on the case to the time of settlement. This total also included work by attorneys, interns and secretaries. Williams also testified that his time records understated the actual time spent on the case by 10 to 20 percent. The disparity in efforts between lead counsel and DNRC being evident, the District Court was proper in ordering compensation.
DNRC’s final arguments concerning its efforts to avoid paying lead counsel are twofold. First, DNRC maintains that as a state agency, it should be treated differently with respect to an obligation to compensate lead counsel in that it can only retain counsel by an exclusive procedure set forth in Executive Order No. 15-78. Second, DNRC contends that DR 2-107, “Division of Fees Among Lawyers,” of the Canons of Professional Ethics, will be violated should this Court grant Williams the ordered compensation.
In rejecting DNRC’s contention that it should be treated different from other beneficiaries to a common fund, we need only note that payment for litigation costs by the various beneficiaries is founded upon principles of equity. In enforcing this doctrine, equity demands that all parties receiving a benefit from the common fund be included in its application.
Furthermore, there is no basis for applying DR 2-107 of the Canons of Professional Ethics as submitted by DNRC. This rule is concerned solely with the question of two lawyers dividing fees. It has no application to a situation where there is a court-appointed lead counsel to whom others may be required to pay compensation, all under the strict supervision and authority of the court.
In regard to the final issue on appeal, in determining a reasonable fee in a given case, this Court has established the following guidelines:
“. . . The circumstances to be considered in determining compensation to be recovered are the amount and the character of the services rendered, the labor, time and trouble involved, the character and importance of the litigation in which services are rendered, the amount of money or the value of 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.” First Security Bank v. Tholkes (1976), 169 Mont. 422, 429-430, 547 P.2d 1328, 1332; accord, Carkeek v. Ayer (1980), 188 Mont. 345, 613 P.2d 1013, 1015, 37 St.Rep 1274, 1275-1276.
The fee awarded in this instance was 11.1 percent of DNRC’s recovery under the lead counsel order. This amount was granted only after extensive testimony relating to the above factors. It is true that this award exceeds the compensation paid by the other plaintiffs represented by lead counsel; but, it should be noted that these other parties agreed to a set amount without having to invoke the aid of the trial court. We can find no abuse of discretion.
The judgment of the District Court appointing Williams as lead counsel and granting compensation is affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES HARRISON and SHEEHY concur.
MR. JUSTICE SHEA dissents and will file a written dissent later.
|
[
-35,
25,
5,
56,
20,
12,
-22,
0,
-8,
-4,
-35,
-5,
34,
10,
-4,
-39,
-43,
21,
15,
11,
20,
-8,
21,
-21,
22,
-24,
15,
-15,
-28,
-16,
-2,
0,
-7,
10,
-26,
-6,
-22,
45,
-58,
19,
15,
4,
63,
-49,
-2,
5,
49,
21,
48,
44,
8,
32,
49,
-14,
-59,
-28,
-23,
25,
20,
14,
-22,
-18,
17,
75,
14,
-8,
11,
-12,
2,
21,
-20,
13,
-15,
-10,
56,
6,
9,
-70,
-18,
27,
-70,
23,
17,
7,
11,
-45,
-51,
-9,
-7,
14,
-64,
-10,
11,
10,
19,
-27,
-36,
-20,
-12,
17,
0,
-21,
17,
12,
-3,
-49,
-9,
-38,
34,
34,
-6,
23,
-32,
-8,
1,
29,
32,
-46,
27,
51,
12,
-21,
-42,
-13,
-24,
-8,
16,
9,
-9,
17,
-44,
30,
-34,
-11,
12,
3,
-28,
-29,
-23,
29,
8,
9,
18,
1,
-33,
-29,
-40,
-2,
-37,
-2,
9,
50,
47,
20,
-1,
-7,
21,
-34,
48,
-34,
42,
-57,
-23,
3,
-12,
-3,
33,
-34,
3,
-4,
11,
-37,
-4,
27,
38,
7,
30,
-30,
-13,
16,
-1,
-10,
24,
-36,
-6,
26,
7,
-2,
-8,
27,
1,
-58,
-16,
-58,
-21,
-16,
23,
25,
-41,
-19,
10,
-31,
23,
-5,
-2,
33,
-38,
11,
111,
6,
19,
28,
26,
13,
-48,
36,
0,
-17,
-15,
-64,
-7,
37,
-14,
-1,
-18,
-17,
-9,
-1,
18,
-32,
-34,
14,
40,
-21,
2,
18,
7,
-9,
-17,
-42,
17,
-11,
-15,
-14,
15,
16,
-8,
-43,
-44,
1,
-55,
-11,
32,
7,
69,
23,
19,
18,
-13,
-17,
-2,
-92,
21,
0,
15,
-18,
-6,
-19,
6,
20,
-6,
41,
49,
18,
-62,
-24,
34,
-3,
-12,
-30,
2,
-27,
-73,
-12,
6,
21,
-9,
11,
-32,
-17,
-40,
-11,
31,
-32,
37,
18,
-31,
-58,
3,
-40,
-25,
17,
-39,
-33,
-50,
46,
-84,
-16,
6,
59,
26,
40,
-10,
25,
39,
-19,
-41,
22,
-9,
-25,
77,
51,
14,
18,
0,
56,
-14,
63,
19,
13,
11,
32,
21,
11,
-6,
33,
54,
14,
-21,
-14,
-7,
-38,
35,
63,
-30,
14,
62,
36,
-30,
-16,
-36,
50,
1,
-3,
-10,
-36,
38,
-11,
-88,
48,
3,
3,
-20,
20,
3,
2,
-7,
-6,
4,
-41,
-53,
3,
44,
3,
22,
-6,
-22,
33,
-43,
30,
-68,
-19,
6,
-4,
0,
-7,
20,
72,
-68,
0,
36,
-50,
14,
42,
0,
-8,
-2,
-7,
0,
54,
52,
49,
-12,
37,
-77,
-29,
-33,
-44,
30,
-24,
13,
13,
-28,
-31,
-30,
-6,
26,
12,
-10,
43,
28,
-22,
-11,
-60,
36,
-50,
22,
50,
-9,
8,
-29,
-29,
25,
19,
3,
62,
-29,
1,
-80,
12,
26,
-12,
-11,
0,
22,
-32,
-17,
4,
42,
59,
-3,
66,
26,
13,
-18,
34,
14,
-69,
15,
-19,
-34,
30,
4,
12,
32,
14,
45,
0,
57,
20,
27,
51,
-27,
-30,
-15,
-7,
-12,
-83,
7,
-13,
13,
14,
-36,
9,
33,
4,
42,
18,
39,
-27,
35,
38,
17,
-27,
-35,
36,
-25,
-20,
35,
-48,
-24,
-36,
-31,
9,
3,
-4,
44,
4,
-47,
66,
-16,
-19,
57,
-15,
-20,
127,
52,
-9,
-21,
9,
-11,
-24,
-4,
24,
-3,
-38,
-55,
-10,
65,
7,
-38,
0,
45,
5,
-57,
77,
-13,
42,
0,
-64,
2,
-28,
19,
31,
32,
9,
3,
16,
28,
0,
86,
-8,
41,
22,
-32,
74,
4,
-24,
-4,
17,
18,
8,
-13,
-29,
-3,
71,
-52,
-31,
1,
-5,
-10,
-4,
3,
-13,
58,
8,
-77,
2,
-33,
35,
-9,
-60,
-34,
-14,
-19,
-37,
57,
-11,
-3,
10,
-8,
6,
-20,
19,
-53,
8,
-21,
-50,
-37,
-48,
-81,
-12,
-16,
-1,
41,
25,
-1,
1,
42,
-2,
-13,
-39,
-32,
-7,
20,
27,
-9,
-29,
80,
-11,
49,
-79,
-16,
3,
0,
-3,
-26,
-15,
34,
34,
14,
9,
-21,
-15,
73,
-27,
12,
7,
-30,
38,
-38,
-1,
-17,
-13,
-33,
20,
-18,
44,
-9,
-36,
16,
-7,
3,
-32,
-42,
17,
22,
53,
25,
-18,
-21,
20,
-8,
-16,
-83,
34,
22,
0,
35,
60,
0,
-11,
-35,
4,
-34,
-57,
-12,
-9,
10,
-26,
74,
-26,
13,
-28,
55,
5,
15,
-10,
15,
26,
-5,
4,
0,
50,
60,
-28,
12,
15,
16,
-66,
-3,
11,
12,
11,
-35,
30,
0,
-77,
-36,
9,
21,
-19,
-15,
-32,
2,
-22,
-39,
-32,
-9,
-56,
-5,
-52,
-15,
4,
0,
-19,
18,
-14,
-17,
-34,
-27,
26,
1,
2,
-42,
3,
-31,
9,
3,
2,
37,
-73,
15,
12,
-43,
59,
22,
-49,
5,
-48,
13,
-37,
14,
11,
15,
3,
-45,
21,
7,
12,
63,
-52,
-7,
21,
-12,
-72,
32,
-9,
-28,
-43,
5,
53,
34,
-43,
3,
-48,
42,
30,
14,
34,
7,
-52,
-25,
-4,
23,
-30,
-15,
63,
20,
-23,
6,
27,
31,
-39,
20,
0,
-50,
-20,
-30,
26,
-22,
42,
34,
27,
6,
41,
-37,
51,
-23,
58,
-19,
0,
23,
-11,
4,
4,
-28,
33,
-34,
6,
-27,
2,
8,
39,
51,
-3,
63,
31,
-48,
14,
23,
-11,
-22,
-6,
25,
-15,
1,
-13,
20,
25,
0,
0,
-5,
-12,
-2,
-66,
8,
-11,
13,
29,
-32,
65,
-34,
27,
17,
-22,
-9,
-18,
-11,
-28,
33,
32,
7,
-23,
-25,
35,
0,
-8,
-40,
14,
-26,
10,
-23,
18,
2,
5,
-50,
-36,
43,
-25,
5,
-28,
-26,
-17,
5,
-26,
41,
-14,
61,
94,
20,
-28,
-13,
39,
14,
-24,
-40,
3,
-28,
-28,
27,
-11,
5,
5,
37,
22,
24,
-18,
-10,
47,
-36,
-17,
-13,
7,
-43,
27,
-22,
48,
0,
76,
-28,
23,
-30,
20,
-32,
-10,
-2,
17,
8,
58,
-35,
2,
-14,
-54,
32,
-24,
-19,
-29,
-24,
-25,
47,
-27,
51,
-6,
28,
24,
11,
-58,
-30,
48,
25,
-18,
10,
11,
26,
28,
-45,
32,
20,
-29,
-99,
39,
30,
45,
-44,
-60,
-27,
-36,
7,
1,
23,
-18,
-18,
-39,
1,
29,
-24,
-33,
-24,
4,
3,
-30,
1,
-23,
16,
41,
2,
-45,
28,
-34,
34,
1,
7,
1,
39,
24,
-33,
-21,
18,
-16,
14,
32,
-61,
-19,
23,
47,
10,
18,
37,
63,
-33,
-14,
17,
-6,
6,
-6,
1,
33,
-49,
-43,
0,
13,
47,
17
] |
MR. JUSTICE DALY
delivered the opinion of the Court.
Claimant and appellant, Rita Harmon, appeals from a judgment of the Workers’ Compensation Court denying her petition for temporary total disability benefits under the Workers’ Compensation Act for injuries allegedly suffered during her employment with the Deaconess Hospital in Billings, Montana.
Claimant was an employee of Deaconess Hospital on August 6, 1978. She was employed as a nurse’s aide in the pediatrics ward and was working the 6:00 a. m. to 3:00 p. m. shift that day. As a nurse’s aide, claimant’s duties included, among other things, assisting in the transfer of patients from surgical gurneys to hospital beds. Claimant alleges that at about 1:00 p. m., while lifting a patient weighing approximately fifty pounds, she “felt a snap” in her back and “felt a sharp pain as it snapped.”
Claimant went to the nurses at the desk and told them she had felt her back snap and that it was giving her pain. A registered nurse at the desk, Nevada Hellmer, recalled claimant’s complaint of lower back pain but could not remember whether claimant had stated she hurt her back lifting a patient. The nurses advised claim ant to go to the emergency room to have the pain checked out, which she did immediately.
Claimant was admitted to the emergency room at Deaconess Hospital at approximately 1:15 p. m. on August 6, 1978. She filled out all necessary papers and forms. Claimant testified she informed at least one or more persons that she hurt her back while lifting a patient. Dr. Mark Larsen examined claimant in the emergency room and took X-rays. He diagnosed claimant as having an arthritic condition and prescribed pain killers and bed rest from August 6 to August 8, or until the pain decreased.
Claimant left the emergency room at 3:00 p. m. and was given a ride home by a licensed practical nurse, Linda Gillispie. Gillispie testified that claimant told her that she had hurt her back on the floor while lifting a patient.
The treatment record of the emergency room examination states the patient had pain from her low back to her coccyx, that she had the same problem a year ago, and that there is no history of trauma. The registered nurse noted “no history of trauma” testified that the note indicated that claimant gave no statement that any unusual activity could have caused the lower back pain.
Claimant’s husband testified that he called the house supervisor at the hospital at about 10:00 p. m. on the night of August 6, 1978, to inform her that his wife would miss work and that she injured her back while lifting a patient. Nancy Bates made a note of his call but testified she did not recall if she was advised that claimant had been injured in an industrial accident. The absentee record states the claimant was absent due to low back pain.
Claimant returned to work on or about August 13, 1978, and continued to work until approximately February 3, 1979. During this period, claimant suffered increasing difficulty and pain with respect to her back. It was not until February 1979 that claimant next saw a doctor, at which time she learned she was pregnant. Claimant’s obstetrician, Dr. Lee Raitz, suggested that the medication she was taking for her back might affect her pregnancy and that she should see Dr. Phillip Griffin.
Claimant testified that Dr. Griffin would not take any X-rays because of her pregnancy, but that he did review the X-rays taken by Dr. Larsen in August. Dr. Griffin told claimant she had a slipped disk and recommended more bed rest and medication. The doctor’s records indicate that the low back pain was not due to pregnancy.
On Feburary 17, 1979, Dr. Griffin hospitalized claimant for severe back pain. An orthopedic surgeon, Dr. James Schwarten, was called in for consultation. Upon reviewing the X-rays taken August 6, 1978, Dr. Schwarten confirmed Dr. Griffin’s opinion by diagnosing claimant as having a “herniated lumbar disk.” Both doctors concurred in their treatment, recommending bed rest, therapy and the use of a corset. Dr. Schwartzen suggested that surgery might be necessary.
Claimant was released from the hospital on February 22, 1979, and advised not to return to work. On September 22, 1979, claimant’s child was born. She testified that since September 22, 1979, she has continued to suffer problems with her back which have prevented her from returning to work prior to the time of trial.
Claimant admits that no written notice of her claim for compensation was made until February 1979. She maintains, however, that the employer or a supervisor in charge was given verbal notice of her injury and had actual knowledge of her accident and injury within the required sixty days.
The issues raised on appeal are whether respondent-employer had notice or actual knowledge of the industrial injury as defined in section 39-71-603, MCA; and, if so, whether claimant suffered a compensable industrial injury as defined in section 39-71-119, MCA.
Claimant contends she suffered a compensable injury and that the actions taken by her shortly thereafter gave her employer actual notice in accordance with the statute.
Respondent’s position is that neither the Deaconess Hospital nor its managing agent in charge had actual knowledge of the accident allegedly suffered by claimant. Even though the supervisor knew claimant had low back pain, respondent argues that this is not equivalent to the knowledge that claimant was injured in an accident.
If the Workers’ Compensation Court’s findings are based on conflicting evidence, as they are in this case, this Court’s function on review is confined to determining whether there is substantial evidence on the whole record supporting such findings. Hume v. St. Regis Paper Company (1980) 187 Mont. 53, 608 P.2d 1063, 37 St.Rep. 378. If there is substantial evidence to support the findings of the Workers’ Compensation Court, we cannot overturn that decision. Jensen v. Zook Bros. Const. Co. (1978), 178 Mont. 59, 582 P.2d 1191, 1193, 35 St.Rep. 1066, 1068; Steffes v. 93 Leasing Co., Inc. (U.S.F. & G.) (1978), 177 Mont. 83, 580 P.2d 450, 452, 35 St.Rep. 816, 818.
A review of the record indicates claimant testified that on August 6, 1978, she advised one or more of the emergency room personnel that she was hurt on the job. Claimant’s husband testified he told a registered nurse that his wife was injured while lifting a patient. Claimant’s testimony was corroborated by Linda Gillispie, but the Workers’ Compensation Court dismissed Gillispie’s testimony because she was not a managing agent or supervisor in charge. Two registered nurses testified they had no recollection if either claimant or her husband had advised them of an industrial accident on August 6, 1978.
This Court has previously held that the testimony of a witness that he does not remember whether a certain event or conversation took place does not contradict positive testimony that such event or conversation did take place. Lasby v. Burgess (1930), 88 Mont. 49, 289 P. 1028; Lindbolm v. Employers’ Liability Assurance Corp. (1930), 88 Mont. 488, 295 P. 1007; Blaser v. Clinton Irrig. Dist. (1935), 100 Mont. 459, 53 P.2d 1141; In re Nelson (1936), 103 Mont. 43, 60 P.2d 365. Thus, we have here the uncontradicted positive testimony of claimant and her husband that the employer or its agent had actual knowledge of claimant’s accident and injury on August 6, 1978, the day it is claimed to have happened.
The Workers’ Compensation Court also relied on the absence of any notation of an industrial accident in the treatment records of the emergency room or in claimant’s absentee records. An emergency room nurse testified that normally the treating physician would fill out an Industrial Accident Board sheet; however, a new group of doctors had taken over emergency room services in July 1978, and they were having problems with the forms. In fact, there was established no automatic procedure for reporting industrial accidents until at least two months after claimant was seen in the emergency room. Also, the absentee record dated August 6, 1978, stated the reason for claimant’s absence was low back pain. The nurse who filled out the record testified that she would not distinguish between regular pain and an industrial accident in making the note.
As stated previously, our function is to determine whether the Workers’ Compensation Court findings are supported by substantial evidence. Substantial evidence is such as will convince reasonable men and on which such men may not reasonably differ as to whether it establishes the party’s case, and, if all reasonable men must conclude that the evidence does not establish such case, then it is not substantial evidence. Adami v. Murphy (1945), 118 Mont. 172, 164 P.2d 150; Grand Trunk Railway Co. v. Ives (1892), 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485.
We hold the court’s finding of fact that the employer did not have actual knowledge of claimant’s injury within the statutorily required time is not supported by substantial evidence on the whole record.
While still on shift duty and wearing the uniform of a nurse’s aide, claimant reported to emergency room personnel that her back hurt. Dr. Larsen authorized X-rays to be taken. It is at that point that an agent of Deaconess Hospital had actual knowledge of claimant’s alleged industrial accident.
Dr. Larsen was the emergency room physician on duty for Deaconess Hospital. Section 28-10-103, MCA, provides: “. . . An agency is actual when the agent is really employed by the principal . . .” Section 28-10-604, MCA, provides: “As against a principal, both principal and agent are deemed to have notice of whatever either has notice of and ought, in good faith and the exercise of ordinary care and diligence, to communicate to the other.” Thus, Deaconess Hospital had notice of claimant’s alleged industrial accident on the day it occurred through Dr. Larsen, its managing agent.
The purpose of the notice requirement or actual knowledge in lieu thereof is to enable the employer to protect himself by prompt investigation of the claimed accident and prompt treatment of the injury involved with a view toward minimizing its effects by proper medical care. See 2 Larson, Workmen’s Compensation Law, § § 78.00 et seq. In the instant case, within two hours of the alleged accident, the employer had notice, a diagnosis and prescribed medical treatment for the injury. Thus, the purpose of the statute was fulfilled, and the employer was protected.
The second issue is whether the finding of the Workers’ Compensation Court that claimant did not suffer a compensable injury is supported by substantial evidence.
In Stamatis v. Bechtel Power Co. (1979), 184 Mont. 64, 601 P.2d 403, 406, 36 St.Rep. 1866, 1870, we stated:
“The Act in pertinent part defines an injury in this language:
“Injury” or “injured” means:
“ ‘(1) a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm and such physical condition as a result therefrom . . .’ Section 39-71-119(1), MCA.
“We have previously interpreted this language to mean that a claimant can recover if the physical harm suffered is unusual either from the standpoint of cause or effect. Love v. Ralph’s Food Store (1973), 163 Mont. 234, 242, 516 P.2d 598, 602; Robins v. Ogle (1971), 157 Mont. 328, 333, 485 P.2d 692, 695; Jones v. Bair’s Cafe (1968), 152 Mont. 13, 19, 445 P.2d 923, 926. However, claimant must still prove a tangible happening of a traumatic nature. Dumont v. Wickens Bros. Construction Co., supra, 598 P.2d at 1108; Erhart v. Great Western Sugar Company (1976), 169 Mont. 375, 380-381, 546 P.2d 1055, 1058; Hurlbut v. Vollstedt Kerr Company (1975), 167 Mont. 303, 306-307, 538 P.2d 344, 346. We have explained the meaning of a tangible happening of a traumatic nature in these words:
“ ‘A tangible happening must be a perceptible happening. [Citations omitted.] Some action or incident, or chain of actions or incidents, must be shown which may be perceived as a contributing cause of the resulting injury. This court has found neurosis compensable, but a tangible, real happening must be the cause of the condition. [Citations omitted.]...In the recent case of Love where a gradual buildup of back pain was found compensable, this Court emphasized two specific incidents of strain were perceptible from the record.’ Erhart, supra, 169 Mont. at 381, 546 P.2d at 1058.”
In the court’s findings there exists no evidence that claimant did not suffer a tangible happening of a traumatic nature causing the physical pain. In the record, there is evidence that claimant “felt a snap” while lifting a patient weighing approximately fifty pounds. This is a tangible, perceptible happening.
The X-rays taken in the emergency room were viewed by three doctors. The first doctor diagnosed claimant as having an arthritic condition while the other two were of the opinion that she had a slipped disk. We must conclude there is not substantial evidence that claimant did not suffer a compensable injury. The facts in the whole record indicate the contrary to be true.
The judgment of the Workers’ Compensation Court is vacated and set aside. The cause is remanded to the Workers’ Compensation Court to enter judgment to conform to this opinion.
MR. CHIEF JUSTICE HASWELL and JUSTICES SHEA, HARRISON and SHEEHY concur.
|
[
19,
2,
-45,
56,
48,
-19,
0,
-32,
20,
14,
-8,
19,
50,
-29,
31,
-30,
34,
-18,
-36,
-12,
4,
3,
-34,
50,
-43,
-4,
27,
-40,
-47,
21,
-23,
-28,
30,
-30,
-23,
5,
43,
14,
32,
27,
-23,
55,
-44,
-40,
-2,
12,
30,
111,
20,
-15,
52,
6,
-41,
-6,
-45,
-6,
5,
-13,
4,
-31,
-53,
-11,
99,
-34,
2,
-53,
68,
-1,
-13,
-11,
-5,
39,
-49,
-46,
-37,
-4,
-43,
31,
2,
-30,
0,
-5,
7,
-1,
-25,
24,
-46,
37,
50,
-54,
-4,
-38,
11,
31,
-21,
36,
-47,
-25,
26,
22,
9,
19,
-20,
-3,
29,
-22,
35,
23,
31,
54,
-38,
11,
-24,
27,
19,
15,
27,
20,
-21,
65,
-4,
-2,
-38,
6,
14,
4,
48,
3,
30,
39,
3,
-9,
12,
0,
-24,
21,
-13,
-11,
-9,
15,
-22,
54,
-6,
-14,
-1,
34,
-29,
-46,
-10,
-63,
19,
28,
19,
-12,
-32,
-38,
-25,
89,
-4,
53,
36,
-23,
13,
89,
19,
-16,
23,
17,
93,
-31,
28,
25,
14,
-46,
-20,
68,
62,
-8,
-53,
26,
-56,
-15,
-19,
-33,
-13,
-27,
36,
-39,
82,
-13,
-12,
-14,
-44,
32,
-19,
-31,
11,
-19,
3,
0,
23,
35,
-14,
-8,
0,
53,
-6,
-48,
62,
-43,
61,
-16,
9,
-18,
-1,
-18,
22,
-24,
-64,
-28,
-32,
11,
15,
-64,
-3,
23,
-1,
-24,
37,
-61,
-34,
-21,
29,
6,
24,
-63,
7,
14,
83,
-7,
0,
-31,
-8,
-5,
-62,
-12,
-30,
-55,
-32,
-44,
18,
11,
14,
-1,
-36,
8,
21,
60,
-17,
-18,
-13,
44,
-1,
81,
95,
-40,
-3,
4,
61,
-44,
-10,
9,
62,
-44,
-1,
-60,
2,
38,
81,
30,
-7,
-4,
-34,
-32,
-59,
-15,
-28,
-24,
-80,
36,
29,
-43,
22,
14,
0,
-9,
23,
-14,
-52,
29,
37,
14,
15,
22,
-47,
68,
-34,
43,
18,
32,
20,
9,
56,
-26,
5,
-40,
-35,
-36,
-14,
14,
-9,
40,
-14,
30,
-24,
-26,
-79,
0,
-17,
-35,
34,
72,
0,
77,
0,
-4,
-28,
26,
-4,
-45,
25,
34,
6,
-19,
-79,
35,
4,
4,
33,
10,
-3,
2,
36,
-19,
-7,
45,
59,
-46,
-38,
47,
9,
-23,
-27,
-40,
-60,
-23,
-6,
-18,
18,
47,
-40,
-2,
64,
-70,
-75,
-38,
1,
-34,
17,
49,
20,
13,
43,
-33,
-63,
29,
-6,
-44,
55,
-15,
-27,
-69,
67,
55,
15,
-17,
-11,
12,
-16,
37,
-28,
-6,
29,
47,
53,
-32,
16,
-53,
-4,
41,
-16,
-36,
-20,
-43,
29,
-18,
77,
-40,
-69,
-20,
59,
-51,
-42,
-39,
14,
0,
15,
-2,
-16,
-3,
-52,
-9,
11,
-29,
14,
-54,
0,
-19,
-33,
-21,
12,
-10,
-9,
-33,
27,
47,
13,
27,
67,
-18,
16,
35,
63,
5,
13,
3,
-16,
27,
-30,
-75,
-2,
-4,
12,
14,
90,
8,
48,
-34,
25,
12,
16,
-8,
38,
-5,
104,
21,
-58,
-25,
-29,
-39,
-20,
-31,
5,
-34,
-2,
34,
-12,
-24,
-18,
21,
54,
-30,
-6,
29,
-22,
26,
-4,
13,
-18,
-26,
-49,
-39,
-7,
32,
30,
-65,
13,
-78,
4,
-11,
-127,
31,
-16,
11,
12,
12,
-1,
3,
23,
35,
5,
4,
5,
-10,
-28,
-32,
-15,
20,
16,
-15,
-32,
-37,
60,
25,
46,
-24,
41,
-20,
-34,
-61,
18,
23,
0,
-3,
35,
-30,
-15,
27,
75,
55,
66,
-54,
29,
27,
18,
2,
43,
-44,
5,
1,
6,
20,
-18,
64,
-5,
50,
-12,
11,
35,
-3,
-63,
93,
-50,
-17,
8,
21,
-40,
45,
-24,
-12,
22,
-6,
37,
1,
-54,
-75,
19,
-52,
-41,
-52,
24,
-87,
42,
36,
47,
36,
-8,
-46,
-30,
14,
-12,
-50,
-42,
-7,
-28,
43,
-1,
0,
77,
-46,
-54,
71,
0,
-52,
-62,
-48,
-32,
12,
18,
34,
22,
-2,
25,
-3,
-33,
6,
-44,
-34,
25,
-60,
37,
26,
33,
-65,
11,
29,
-32,
25,
3,
10,
7,
44,
63,
77,
-50,
-35,
73,
-12,
-37,
-66,
27,
44,
-60,
-16,
-32,
2,
41,
31,
-76,
17,
-93,
76,
-1,
-12,
14,
-25,
4,
-14,
-57,
4,
-4,
69,
35,
0,
70,
-41,
-6,
-29,
2,
-10,
-35,
10,
36,
12,
-54,
-36,
-13,
1,
-25,
-11,
-44,
1,
12,
46,
30,
6,
17,
-12,
-3,
60,
7,
32,
-12,
19,
54,
33,
16,
-9,
-22,
-28,
16,
-26,
-10,
-25,
74,
69,
-4,
13,
-13,
-78,
-26,
-6,
-35,
16,
3,
-7,
11,
6,
21,
-21,
2,
0,
-38,
50,
5,
-9,
-8,
35,
5,
38,
83,
30,
-30,
5,
8,
-38,
-15,
5,
2,
8,
-9,
-31,
-10,
13,
11,
-97,
-12,
-69,
40,
17,
35,
-22,
6,
34,
15,
-18,
-17,
-2,
-51,
5,
28,
108,
36,
-33,
23,
-7,
12,
-23,
-40,
8,
18,
-11,
40,
42,
-68,
-43,
-44,
5,
-47,
-21,
-48,
23,
11,
-53,
55,
-18,
-45,
-32,
-93,
-24,
3,
19,
-6,
38,
40,
4,
13,
11,
-37,
9,
-58,
-73,
18,
43,
-48,
-60,
55,
25,
-24,
7,
42,
-4,
-79,
-71,
84,
-58,
-48,
-3,
53,
21,
-47,
56,
3,
-18,
33,
51,
20,
-29,
-15,
24,
23,
37,
-42,
21,
73,
-68,
-6,
49,
35,
27,
-49,
-78,
35,
4,
-4,
-16,
48,
-18,
8,
-5,
-17,
9,
-12,
8,
-48,
14,
-21,
-12,
14,
46,
-25,
-2,
-12,
6,
-27,
10,
-33,
-4,
84,
-6,
24,
-12,
-58,
9,
34,
-9,
-13,
74,
-48,
2,
14,
18,
25,
-36,
-34,
-31,
-7,
27,
-23,
-27,
26,
-6,
32,
33,
7,
12,
33,
-52,
-31,
8,
-69,
26,
1,
28,
15,
66,
30,
34,
6,
35,
-80,
-4,
60,
-24,
27,
23,
3,
26,
-14,
7,
-15,
-31,
-45,
10,
10,
16,
-5,
-48,
-3,
0,
21,
4,
24,
38,
-28,
-30,
-14,
-15,
8,
7,
40,
32,
13,
-20,
-25,
-36,
45,
14,
-23,
75,
-18,
11,
-16,
52,
-16,
-31,
-17,
-43,
-9,
-46,
-15,
1,
-34,
-25,
-9,
39,
-28,
-16,
18,
35,
-21,
-16,
-30,
21,
-27,
-21,
-2,
-32,
-9,
-68,
-15,
6,
3,
-2,
53,
-27,
-45,
-57,
92,
0,
13,
3,
12,
42,
-31,
19,
16,
-28,
43,
1,
71,
38,
11,
-64,
63,
-4,
-27,
-53,
-29,
23,
22,
-10,
43,
-49
] |
MR. JUSTICE SHEA
delivered the opinion of the Court.
State Farm Mutual Automobile Insurance Company sued by its insured under an uninsured motorist provision, appeal from an order of the Missoula County District Court dismissing its third-party complaint which sought indemnity from the uninsured motorist for any liability the insurance company might be adjudged to owe the plaintiff. We hold that the District Court erred in not allowing State Farm to implead the third-party defendant.
Cindy J. Solem as plaintiff filed a complaint against State Farm alleging that Solem was a passenger in a car driven by William J. Schultz which collided with a car driven by Helen G. Buckingham, an uninsured motorist. The complaint alleged that the negligence of the uninsured motorist was a proximate cause of the collision and personal injury to Solem. It further alleged that both Solem and Schultz were insured at the time of the collision under separate policies of insurance with State Farm, each of which provided uninsured motorist coverage in the amount of $25,000/$50,000. Solem has filed suit under the uninsured motorist provisions of both policies and prays for judgment against State Farm in the amount of $50,000 or such lesser amount as a jury might determine.
State Farm filed its answer to the complaint admitting that the collision occurred, but denying the negligence of the uninsured motorist. State Farm’s answer raises as affirmative defenses: (1) that the suit against State Farm is premature unless it is first determined that the plaintiff is legally entitled to recover damages from the uninsured motorist, and (2) that the uninsured motorist is an indispensable party under Rule 19, M.R.Civ.P.
State Farm then filed a third-party complaint recites the fact that Solem has sued State Farm under the uninsured provisions of the policy and then alleges that Buckingham is the uninsured motorist involved in the collision mentioned in Solem’s complaint. State Farm then seeks indemnity from Buckingham for “such sums as may be adjudged against it in favor of Cindy J. Solem, and for their costs.”
Buckingham moved to dismiss the third-party complaint against her on the grounds it failed to state a claim against her on which relief could be granted. Buckingham and State Farm filed briefs. The District Court, originally denied the motion to dismiss, but then reversed itself and dismissed the claim against Buckingham. State Farm moved for reconsideration of the order of dismissal and, after argument, the District Court declined to change its decision. Plaintiff, Solem, has not submitted a brief with this Court in support of or in opposition to State Farm’s appeal.
The sole issue before us is whether an insurer, sued by its insured for recovery of uninsured motorist benefits may implead the uninsured motorist under Rule 14(a), M.R.Civ.P.
If plaintiff establishes that Buckingham was negligent and caused the accident resulting in plaintiff’s injuries, State Farm then is responsible under uninsured motorist coverage, to pay the amount of the judgment to the extent of the applicable coverage. Upon payment, State Farm would then be subrogated to the rights of plaintiff Solem and may seek to establish that amount from Buckingham. See, Skauge v. Mountain States Tel. & Tel. (1977), 172 Mont. 521, 565 P.2d 628. We hold that State Farm doesn’t have to wait until it pays a judgment obtained before it has a right to bring Buckingham into the lawsuit. Rule 14(a), M.R.Civ.P., expressly grants a defendant the procedural right to bring into the lawsuit as a third-party defendant, anyone who “may be” liable to him. This can be done under the principle of subrogation even if the liability of the third party is contingent and cannot be established until the original defendant has been held liable. 1A Barron and Holtzoff, § 426 at 664-73 (I960); 3 Moore’s Federal Practice, § 14.08, at 243-46; Moore’s Federal Practice, § 14.10, at 281-88. Also see, Crosby v. Billings Deaconess Hospital (1967), 149 Mont. 314, 426 P.2d 217 (holding that defendant shold have been allowed to implead a third party under a theory of indemnity). Under a theory of subrogation to the insured’s rights of recovery against the third party, federal courts have regularly permitted the insurer to implead that party as a third-party defendant. See, King v. State Farm Mutual Insurance Co. (W.D.Ark.1967), 274 F.Supp. 824; St. Paul Fire & Marine Insurance Co. v. United State Lines Co. (2d Cir. 1958), 258 F.2d 374, cert. den. 359 U.S. 910, 79 S.Ct. 587, 3 L.Ed.2d 574; Concordia College Corp. v. Great American Ins. Co. (D.Minn. 1953), 14 F.R.D. 403; Glens Falls Indemnity Co. v. Atlantic Bldg. Corp. (4th Cir. 1952), 199 F.2d 60.
In King v. State Farm Mutual Insurance Co., supra, the court specifically held that an insurer sued by its insured under an uninsured motorist provision, may bring the uninsured tortfeasor into the lawsuit. The court rejected the argument (which is the same argument Buckingham makes here) that the insurance company has no right of action until it has actually paid the judgment to its insured, and therefore that impleader of the uninsured motorist should not be permitted until payment is made. 274 F.Supp. at 826. We also reject this argument.
We are persuaded that the better practice is to permit impleader in such practices, and therefore that the trial court erred in granting Buckingham’s motion to dismiss. We find no authority supporting Buckingham’s position, and we further note that the trial court granted the motion under the mistaken belief that Consolidated Freightways Corp. v. Osier (1979), 185 Mont. 439, 605 P.2d 1076, 36 St.Rep. 1810, mandated that result. But that case held only that impleading parties not sued by the plaintiff, for purposes of contribution, is not proper. This is a subrogation case based cm contract, and Osier has no application. 605 P.2d at 1081. Here, State Farm is not a tortfeasor and obviously isn’t in pari delicto with Buckingham: Solem’s action against State Farm isn’t a tort action; rather, it is a contract action.
We hold that State Farm may implead Buckingham under a theory of contingent liability based on subrogation. Liberally allowing impleader of contingently liable parties is consistent with the underlying purposes of Rule 14. The rule is designed to reduce multiplicity of litigation by settling all disputes arising from one occurrence in one suit, to spare an unsuccessful defendant the burden of bearing a judgment against him while he brings suit against someone liable to him for plaintiff’s claim, to prevent inconsistent judgments on the same facts, and to settle the ultimate liability for a claim with a minimum of effort and expense. See, C. Wright and A. Miller, 6 Federal Practice and Procedure, § 1442 (1971); see also, Glens Falls Indemnity Co. v. Atlantic Building Corp., supra, 199 F.2d at 63; St. Paul Fire & Marine Insurance v. United State Lines Co., supra.
There is no good reason to afford Buckingham the procedural protection of being able to postpone being sued until the action between Solem and State Farm is concluded.
In fact, a contrary holding would not eliminate Buckingham from being at least indirectly involved in the suit between Solem and State Farm. Plaintiff Solem must establish that Buckingham negligently caused any injuries she received and therefore, it is unlikely that Buckingham could avoid an appearance in court to testify.
The order of the District Court dismissing the third-party complaint is vacated. The case is remanded with instructions that the District Court require Buckingham to answer State Farm’s third-party complaint.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY and HARRISON concur.
|
[
-22,
41,
29,
-28,
40,
8,
2,
-22,
-31,
-2,
28,
51,
17,
0,
-22,
23,
41,
25,
17,
-14,
-20,
-16,
-42,
-20,
-3,
-9,
27,
-41,
-18,
35,
31,
30,
12,
-10,
-50,
-1,
-8,
29,
-54,
35,
40,
-1,
44,
-25,
29,
-7,
16,
8,
12,
15,
24,
-27,
-54,
-45,
29,
-6,
24,
2,
-44,
2,
9,
5,
55,
15,
6,
19,
34,
53,
20,
33,
2,
-23,
-22,
7,
8,
-44,
-5,
28,
-54,
-29,
43,
0,
67,
-46,
24,
45,
-22,
-37,
-9,
-12,
-27,
-10,
-28,
-43,
35,
-5,
-12,
-16,
20,
19,
-29,
-37,
26,
23,
-45,
61,
11,
-10,
21,
27,
-23,
-3,
-48,
29,
38,
16,
-35,
6,
26,
42,
8,
-34,
-1,
11,
-32,
53,
-38,
33,
-24,
28,
34,
17,
38,
33,
-25,
5,
-14,
-74,
20,
27,
6,
-36,
-29,
-9,
-2,
41,
28,
-84,
31,
-25,
12,
6,
-21,
-64,
6,
-49,
-3,
-29,
72,
-41,
34,
9,
42,
34,
4,
15,
11,
24,
21,
0,
21,
-61,
-5,
-1,
33,
19,
9,
-14,
-46,
18,
-12,
35,
19,
-7,
-25,
-23,
16,
7,
-9,
0,
12,
-54,
3,
-7,
-10,
10,
16,
37,
32,
0,
22,
-60,
-27,
6,
41,
11,
13,
-46,
7,
5,
15,
-3,
-41,
-50,
-20,
3,
19,
-35,
-42,
-48,
-16,
1,
-20,
-40,
-58,
-27,
-78,
-75,
17,
-46,
-55,
-11,
-19,
60,
-22,
-3,
-4,
-62,
23,
22,
2,
26,
-29,
-8,
53,
45,
16,
17,
14,
-3,
94,
-35,
103,
3,
2,
-44,
15,
0,
-51,
-29,
-1,
26,
16,
20,
26,
-60,
-22,
-13,
21,
-2,
-10,
41,
28,
-80,
6,
-62,
29,
24,
46,
7,
11,
22,
-23,
-14,
13,
32,
75,
-8,
-3,
4,
-12,
-65,
24,
-4,
-27,
-12,
27,
-7,
-32,
47,
1,
70,
-16,
17,
27,
-45,
-42,
-44,
-9,
-3,
-43,
16,
-60,
-48,
16,
-8,
-10,
6,
40,
-13,
39,
17,
-13,
20,
-28,
-36,
19,
-32,
29,
-14,
-57,
18,
15,
-17,
19,
-90,
6,
53,
2,
35,
28,
14,
4,
36,
-32,
21,
33,
64,
7,
27,
-62,
-2,
-16,
10,
-43,
-34,
68,
-32,
-48,
20,
-31,
33,
-14,
8,
-26,
10,
9,
47,
-48,
71,
-11,
-21,
-1,
0,
-38,
-50,
-20,
20,
-39,
24,
52,
-54,
-9,
-22,
29,
29,
-85,
-40,
-73,
26,
-21,
-26,
26,
67,
36,
-3,
-40,
-14,
-67,
50,
59,
11,
-9,
-45,
-5,
-2,
73,
-19,
-41,
-9,
-36,
-67,
-52,
0,
22,
36,
-9,
-11,
-53,
-43,
-28,
10,
11,
-57,
20,
12,
28,
40,
-33,
13,
-11,
16,
-78,
-8,
59,
-14,
-10,
-42,
15,
48,
47,
63,
1,
-20,
-10,
3,
-4,
2,
46,
-19,
12,
-29,
65,
1,
-15,
12,
44,
-10,
-25,
-90,
-23,
-61,
-7,
-4,
2,
5,
1,
-11,
56,
-14,
-20,
40,
-18,
23,
68,
26,
-36,
-23,
-54,
64,
-54,
29,
31,
-21,
1,
-2,
13,
37,
-26,
9,
-26,
15,
-10,
-13,
-27,
-31,
0,
6,
-44,
-30,
-14,
6,
-29,
27,
-9,
-11,
-3,
-25,
1,
-49,
25,
29,
63,
4,
30,
26,
-36,
0,
51,
-21,
-48,
46,
-35,
-38,
24,
-50,
4,
-11,
45,
-37,
34,
34,
47,
-14,
-14,
16,
24,
-14,
13,
-27,
9,
16,
-21,
-69,
13,
-48,
36,
1,
61,
4,
10,
-2,
-3,
-33,
58,
-5,
-22,
9,
5,
22,
23,
40,
-37,
20,
23,
-10,
22,
-26,
46,
-9,
-42,
2,
-1,
-25,
-13,
-6,
-22,
-50,
-70,
-33,
-20,
19,
-22,
3,
-95,
-13,
29,
-31,
6,
-32,
5,
-27,
32,
49,
49,
40,
25,
-40,
-58,
-12,
-45,
11,
-8,
40,
8,
1,
19,
39,
47,
6,
-43,
29,
-23,
6,
-14,
-56,
-28,
5,
36,
-47,
29,
33,
58,
14,
-1,
-18,
-9,
-16,
-23,
-24,
-16,
-41,
-9,
-89,
-21,
-34,
0,
56,
-48,
-35,
25,
-7,
13,
3,
20,
4,
71,
-13,
-8,
-50,
-82,
69,
-15,
-90,
-43,
1,
9,
-27,
-17,
45,
-8,
-58,
1,
11,
-58,
-20,
21,
-9,
-21,
53,
81,
-37,
38,
24,
70,
33,
58,
59,
-19,
40,
21,
-19,
5,
66,
-43,
3,
40,
-24,
22,
-71,
-2,
68,
-52,
-20,
-50,
2,
59,
-11,
-44,
-39,
32,
-7,
-46,
-11,
-38,
33,
-29,
-46,
38,
72,
76,
-20,
-44,
-54,
-10,
29,
-4,
22,
-8,
-5,
-12,
-60,
-1,
-11,
-55,
-39,
29,
0,
-16,
10,
6,
2,
-2,
42,
-51,
24,
99,
-21,
-10,
29,
14,
69,
53,
22,
-11,
-11,
-64,
-11,
40,
-29,
-16,
-47,
-10,
-17,
-1,
-48,
0,
16,
-7,
-62,
15,
25,
1,
-6,
17,
-19,
-4,
18,
-56,
-50,
-5,
26,
1,
-70,
5,
-2,
22,
-55,
-27,
-6,
5,
5,
2,
-48,
9,
12,
38,
4,
2,
0,
24,
58,
43,
-55,
-17,
19,
28,
11,
5,
62,
-4,
43,
31,
11,
10,
-9,
28,
9,
68,
12,
-17,
-29,
41,
-6,
5,
-6,
-50,
38,
-13,
-16,
-40,
-44,
-3,
3,
39,
-7,
-37,
-38,
12,
-14,
-20,
-57,
-62,
28,
-33,
47,
52,
17,
-31,
16,
63,
-4,
-42,
33,
55,
16,
24,
9,
20,
2,
-41,
-1,
46,
27,
37,
-6,
-70,
-29,
12,
46,
39,
1,
-74,
35,
38,
-40,
66,
35,
-80,
-45,
-11,
72,
17,
-6,
5,
-45,
25,
-37,
68,
-30,
-24,
-22,
-29,
57,
-52,
-39,
3,
40,
-49,
37,
27,
-33,
-3,
-27,
-34,
-28,
-19,
35,
41,
-57,
-18,
37,
0,
15,
-2,
8,
-2,
36,
-60,
3,
39,
-14,
63,
-43,
-5,
46,
-27,
21,
17,
51,
-3,
14,
47,
9,
-16,
40,
-13,
8,
15,
26,
34,
-8,
-16,
49,
-12,
-12,
-3,
33,
-78,
6,
59,
54,
69,
-40,
-51,
-17,
58,
-22,
-61,
35,
79,
-28,
6,
51,
-6,
27,
-5,
-8,
78,
34,
-38,
0,
-21,
-28,
-14,
-65,
59,
-21,
-16,
27,
4,
1,
-14,
-13,
-50,
-4,
3,
-5,
-17,
22,
-14,
-30,
-6,
24,
-41,
10,
-16,
4,
-80,
4,
-20,
62,
13,
17,
30,
-17,
-4,
38,
59,
-39,
1,
8,
26,
40,
-56,
31,
-7,
-1,
74,
62,
-20,
11,
-56,
-55,
24,
32,
-18,
-40,
-26,
-40,
-12,
80,
25,
14
] |
MR. CHIEF JUSTICE HASWELL
delivered the opinion of the Court.
This is an appeal by Mountain States Telephone & Telegraph Company (Mountain Bell) from a judgment of the District Court in a utility rate case. The Montana Public Service Commission (PSC) granted Mountain Bell an annual rate increase totalling $3,097,000 as compared to the $ 11.83 million sought. The District Court concurred. We affirm.
Mountain Bell petitioned the PSC for utility rate increases that would generate $11.83 million additional yearly revenues from its Montana customers. PSC granted interim rate increases of $2,326,000 pending its final decision which are not at issue in this appeal. PSC’s final order granted Mountain Bell an annual revenue increase of $3,097,000 in increased charges for its services to its Montana customers.
Mountain Bell petitioned the District Court of Lewis and Clark County for judicial review of PSC’s final order pursuant to the Montana Administrative Procedures Act. Subsequently Mountain Bell elected to proceed under Montana Public Utilities Act (Section 69-3-401, MCA et seq). The District Court’s pretrial order narrowed the issues to two: (1) PSC’s application of the “double leverage” adjustment in determining the cost of capital in Mountain Bell’s rate base, (2) PSC’s “NARUC” tax adjustment.
The District Court received the transcript of proceedings before the PSC, heard additional evidence, and remanded the case to the PSC for reconsideration on the basis of the additional evidence. The PSC reconsidered, affirmed its previous final order, and returned the case to the District Court. The District Court affirmed PSC’s final order holding (1) that the “double leverage” concept was lawful, was applied within the statutory authority of the PSC, and was supported by substantial evidence, and (2) that the “NARUC” tax adjustment was within the statutory authority of the PSC and was supported by substantial evidence.
Mountain Bell appealed from the judgment of the District Court, abandoning the issue of the “NARUC” tax adjustment.
The sole issue on appeal is the legality of PSC’s “double leverage” adjustment in determining the cost of capital in Mountain Bell’s rate base.
Before considering the arguments of Mountain Bell, an understanding of the capital structure of Mountain Bell and its parent company, AT&T is necessary. The “double leverage” adjustment, as applied here, is premised on the PSC’s consideration of the parent-subsidiary financial relationship and its effect on the cost of capital in Mountain Bell’s rate base.
It is a basic principle of utility regulation that a utility is entitled to receive a fair and reasonable rate of return on its investment in plant and equipment used to provide its services to the public. In determining a fair and reasonable rate of return, it is necessary to determine what it costs the utility to secure the required capital to finance its operations. This “cost of capital” approach to utility ratemaking involves determining the composite cost of the several types of the utility’s capital, properly weighted on the basis of an appropriate capital structure. New England Telephone & Telegraph Co. v. Public Utility Commission (1978), Me., 390 A.2d 8, 32. The “cost of capital” involves not only the interest the utility must pay on its borrowed capital (debt), but also the cost of attracting purchasers of its common stock (equity). A regulatory commission such as the PSC must authorize utility rates sufficient to cover the utility’s cost of debt and cost of equity, but no more, or the utility’s customers will be paying excessive rates for the services the utility provides.
In this case Mountain Bell’s capital structure as reflected in its books indicates that it is funded 44,65% by borrowed funds (debt) and 55.35% by sale of its common stock (equity). Because Mountain Bell is partially financed by debt and partially financed by equity, Mountain Bell’s common stockholders are said to be “leveraged” to the extent that the cost of its debt is less than the (weighted) cost of its capital. In other words, Mountain Bell’s common stockholders are “leveraged” because Mountain Bell is paying less interest on its borrowed funds than the return it makes on the use of its borrowed funds. This is leverage # 1.
But in this case there is a second or “double leverage” enjoyed by the common stockholders of AT&T arising out of the parent-subsidiary relationship between AT&T and Mountain Bell. When this case was heard by the PSC, AT&T owned 88.55% of the common stock of Mountain Bell, with the balance being held by minority stockholders. Thus the common stockholders of AT&T are “double leveraged”: first, because the cost of debt in AT&T’s capital structure is less than the return it makes on the use of its borrowed funds; and second because it derives the benefit of similar leverage in Mountain Bell’s own capital structure by reason of its 88.55% ownership of Mountain Bell’s common stock.
The PSC found that if the “cost of capital” in Mountain Bell’s rate base was considered in isolation without regard to the “double leverage” enjoyed by AT&T’s common stockholders, it would result in an excessive return to AT&T’s common stockholders at the expense of Montana utility ratepayers. To correct this inequity, the PSC applied a “double leverage” adjustment in determining the “cost of capital” in Mountain Bell’s rate base.
In summary form, the PSC applied the ‘double leverage” adjustment in this manner:
(1) PSC determined that the capital structure of Mountain Bell was composed of 45.65% debt (borrowed funds) and 55.35% equity (common stock) as reflected in its books.
(2) PSC determined that an 11.25% return on the capital invested in Mountain Bell was a fair and reasonable rate of return.
(3) PSC determined that if Mountain Bell had been funded in the open market the weighted cost of Mountain Bell’s capital would have been 9.47%, figured as follows:
% of Weighted
Type of Capital Capitalization Cost Cost
Debt 44.65% X 7.26% = 3.24%
Common Stock 55.35% XI 1.25% = 6.23%
100.00% 9.47%
(4) PSC determined that 88.55% of Mountain Bell’s equity is owned by AT&T whose weighted cost of capital is 9.86% figured as follows:
% of Weighted
Type of Capital Capitalization Cost Cost
Debt 23.1% X 6.47% = 1.49%
Preferred Stock 8.0% X 7.82% = .63%
Common Stock 68.8% X 11.25%= 7.74%
9.86%
(5) PSC determined that 88.55% of Mountain Bell’s equity should be sourced to AT&T because it owned 88.55% of Mountain Bell’s stock; and AT&T’s cost of capital of 9.86% should be applied to such 88.55%. The remaining 11.45% of Mountain Bell’s equity held by minority stockholders was allowed a capital cost of 11.25%.
(6) PSC determined that the composite weighted cost of capital to Mountain Bell was 8.78% based on the following computation:
% of Weighted
Type of Capital Capitalization Cost Cost
Debt 44.65 X 7.26% = 3.24%
Equity supplied by AT&T (88.55% x 55.35%) 49.01 X 9.86% = 4.83%
Equity supplied by minority stockholders 6.34 X 11.25%= 0.71!
(11.45% x 55.35%) 8.78%
The use of 8.78% as the weighted cost of capital of Mountain Bell will result in a return of 10.01% to its minority stockholders rather than the 11.25% found to be a fair and reasonable return by the PSC. The District Court held this inequity was the result of the capital structure of AT&T and Mountain Bell rather than the PSC’s rate order. The District Court pointed out that the PSC’s function was fulfilled when it established a fair and reasonable rate of return on the utility’s investment regardless of how the utility’s management distributed that return among its stockholders.
Mountain Bell advances three principal arguments against the PSC’s application of the “double leverage” adjustment in determining the cost of capital in Mountain Bell’s rate base: (1) that it is not supported by substantial evidence, (2) that the “double leverage” adjustment as applied by the PSC is inconsistent within itself, ignoring the very principles on which it is based, and (3) it is premised on a disregard of applicable law in that the minority stockholders will not receive the return on their investment found to be fair and reasonable by the PSC.
At the outset we note that Mountain Bell’s third argument is now moot. The minority stockholder’s interests in Mountain Bell have been purchased by AT&T. Mountain Bell is now a wholly-owned subsidiary of AT&T.
Mountain Bell contends first that PSC’s use of the “double leverage” adjustment must be set aside as unsupported by substantial evidence. Mountain Bell urges that the uncontradicted evidence shows that Mountain Bell’s capital structure appropriately consists of 44.65% debt, but by use of the “double leverage” adjustment, the PSC raised Mountain Bell’s debt ratio to 55.99%, without an analysis of the effect on the cost of equity. The addition of 11.34% debt into the capital structure must be accompanied by a change in the cost of equity, in order to provide a return to equity reflecting the increased risk. The result is a substantial understatement of Mountain Bell’s revenue requirements — a result which is contrary to the financial principles relied on by the parties, according to Mountain Bell.
The evidence presented by the PSC established to the satisfaction of the district judge that the “double leverage” adjustment was based on substantial evidence. The District Court found that the double leverage adjustment simply established the true cost of that portion of Mountain Bell’s equity (common stock) attributable to AT&T’s financing (88.55%). The PSC established 9.86% as the true cost by weighing the three associated costs making up AT&T’s capital structure — debt, preferred stock and common stock. Contrary to what Mountain Bell asserted, this adjustment did not infuse additional debt into Mountain Bell’s capital structure. The earnings of Mountain Bell will be subject to the same debt obligations regardless of the source of the equity investment. There is no increase in the financial risk nor any change in the priority of the Mountain Bell stockholders’ claim to the assets or income of Mountain Bell. Therefore, the Mountain Bell stockholders are not entitled to a greater rate of return because the risk of the stockholders has not been increased. Here the return to the stockholders of Mountain Bell capital is influenced because the capital structure of the consolidated Bell System has varying amounts of debt in the capital structure of both AT&T and Mountain Bell, not because the “double' leverage” adjustment has increased the risk to stockholders in Mountain Bell.
We note that the “double leverage” adjustment has previously been recognized by regulatory commissions in situations involving a parent and a wholly-owned subsidiary: Re General Telephone Company of Wisconsin (1960), 34 PUR3d 497, 515-519; Re Hawkeye State Telephone Co. (1974), 2 PUR4th 166, 180-181; Re United Telephone Co. of New Jersey (1974), 2 PUR4th 299, 307-310; Re Midstate Telephone Co., Inc. (1975), 10 PUR4th 88, 95-96; Re Continental Telephone Co. of Minnesota, Inc. (1976), 14 PUR4th 310, 315-317; Re Blackstone Valley Electric Company (1978), 24 PUR4th 309, 321-323. It has been recognized but denied application in the only appellate decision cited involving a parent corporation owning 86% of the stock of the subsidiary. New England Telephone & Telegraph Co. v. Public Utilities Commission, supra, Me., 389 A.2d at 39-43. That case is clearly distinguishable, in that the Maine Commission failed to adequately consider the effect of “double leverage” on both the majority and minority shareholders so as to enable the court to determine the reasonableness of the result; additionally the method of applying double leverage by the Main Commission was not supported by substantial evidence and was inconsistent with the Commission’s own declaration concerning the “double leverage” concept. None of these factors is present in the instant case.
The District Court found that “the application of ‘double leverage’ does not cause an increase in financial risk and there is, therefore, no increase in the cost of equity” and “there being no change in priorities [the priority of claims of Mountain Bell stockholders to the assets and income of Mountain Bell] there is no change in financial risk and no change in the cost of equity.” (Bracketed material inserted.)
We hold that the PSC’s order was lawful and was supported by substantial evidence. Accordingly, we affirm the District Court on this issue mindful of our role in reviewing cases under the Montana Public Utilities Act (sections 69-3-401, MCA et seq.).
Our review in utility rate cases is limited to determining whether the PSC order (1) exceeds the constitutional or statutory powers of the PSC or (2) is based upon a mistake of law. Cascade County Consumer’s Ass’n v. PSC (1964), 144 Mont. 169, 192, 394 P.2d 856, 868. The Commission is the judge of the facts and the court only decides questions of law. New England Telephone & Telegraph Co. v. Public Utilities Commission, supra, Me., 390 A.2d at 15. In deciding questions of law, this Court may determine whether the PSC acted arbitrarily and unreasonably without sufficient evidence to support its findings, or exercised its authority unreasonably, or set the utility rates so low that they are confiscatory and deprive the utility of its property without due process of law. Cascade County Consumers Ass’n v. PSC, supra. This Court on appeal cannot substitute its judgment for that of the PSC. State v. Public Service Comm. (1957), 131 Mont. 272, 280-281, 309 P.2d 1035, 1040.
Mountain Bell next contends that the “double leverage” adjustment applied by the PSC is inconsistent with itself and understates Mountain Bell’s revenue requirements in part by ignoring the principles on which the “double leverage” adjustment is based. Mountain Bell argues that the principle on which the “double leverage” adjustment is based is that the source of funds determines its cost; that the PSC applied its “double leverage” adjustment to retained earnings as well as to paid-in capital of Mountain Bell; that PSC misapplied the principle on which the “double leverage” adjustment is based because the source of the retained earnings is not AT&T but the assets, income, and capital structure of Mountain Bell; in so doing PSC sourced 88.55% of Mountain Bell’s retained earnings to AT&T and applied AT&T’s overall cost of capital to those retained earnings. This is inconsistent with the principle that the source of funds determines its cost, is unsupported by any evidence, and is totally arbitrary and illogical, according to Mountain Bell.
The PSC argued to the District Court that the true source and ultimate destination of 88.55% of Mountain Bell’s retained earnings is 9.86% (the cost of capital to AT&T) because that is the cost of capital associated with that portion of Mountain Bell’s operating assets that generated those retained earnings. If Mountain Bell retains a portion of its earnings these are no less the capital of AT&T than paid-in capital. PSC further emphasized that no court or commission has accepted Mountain Bell’s argument that the source of retained earnings is the subsidiary and not the parent which controls its stock, or that a distinction should be made between cost of capital attributable to paid-in capital and that attributable to retained earnings.
Consumer Counsel agreed that the retained earnings are a reinvestment by the stockholders of Mountain Bell in the company. Consumer Counsel pointed out that before Mountain Bell’s board of directors (controlled by AT&T by reason of its majority stock ownership) ever retained part of its earnings they were available to Mountain Bell’s stockholders as dividends. Thus the source of 88.55% of Mountain Bell’s retained earnings is AT&T which has complete control over Mountain Bell’s board of directors and thus complete control over whether its earnings are retained by Mountain Bell or paid out as dividends. Accordingly, the PSC properly included retained earnings in the equity investment of AT&T in Mountain Bell and applied AT&T’s cost of capital to its entire equity investment in Mountain Bell.
The District Court adopted the reasoning of Basil L. Copeland, Jr., in his article “Double Leverage One More Time,” 100 Public Utilities Fortnightly 19, in finding in favor of the PSC:
“. . . the cost of equity is the same whether the equity was raised in the capital market or exists in the form of retained earnings. If a subsidiary retains a portion of its earnings, the earnings it retains are no less the capital of the parent than the capital recorded on its accounts as ‘paid in’!”
The District Court held that because retained earnings are the property of the equity owner (AT&T to the extent of its 88.55% ownership of Mountain Bell’s common stock) it had a claim against 88.55% of Mountain Bell’s retained earnings. Therefore the PSC correctly applied its “double leverage” adjustment in order to reflect the true cost of capital associated with that portion of Mountain Bell’s retained earnings attributable to the parent AT&T.
The record in this case shows substantial, though conflicting, evidence supporting the PSC’s application of the “double leverage” adjustment. The district judge based his findings on that evidence, and we will not overturn him.
In sum, the District Court held that PSC’s concern was to determine a rate base which represents the total investment in property used and useful in rendering utility services and to multiply that by a rate of return sufficient to generate enough earnings to make the return on investment fair and reasonable. The District Court further held that PSC’s function is fulfilled when it determines such total investment and a rate of return which will afford a reasonable return on that investment.
This is a correct statement and the evidence shows that the PSC acted reasonably and within the bounds of the law. It would appear that the PSC applied the “double leverage” adjustment in order to protect Montana ratepayers from paying excessive utility rates. A fair overall rate of return to all stockholders on their investment was fixed and determined, but because the capital structure of AT&T afforded double leverage to the common stockholders of AT&T their rate of return on their investment in Mountain Bell would always be greater than the minority stockholders in Mountain Bell regardless of what rate of return might be adopted by the PSC. This discrepancy is inherent in the capital structure of the parent AT&T vis-a-vis the capital structure of the subsidiary Mountain Bell. This capital structure was determined by the management of the two companies, not by the rate order of the PSC. The PSC’s function was fulfilled when it established a fair and reasonable return on Mountain Bell’s investment in plant and equipment used and useful in furnishing its services to the public. It is a function of management to distribute that return to its stockholders and if Mountain Bell’s capital structure prevents an equitable distribution, this is not the fault of the PSC. To guarantee the minority stockholders the 11.25% return found to be fair and reasonable by the PSC would result in an unconscionable and excessive return of 14.26% to AT&T common stockholders at the expense of Montana ratepayers, all because of the capital structure of the two companies. This inequity will not recur in the future as Mountain Bell is now a wholly-owned subsidiary of AT&T with no minority stockholders in Mountain Bell.
Affirmed.
MR. JUSTICES MORRISON, HARRISON, SHEEHY, DALY and WEBER and MARK P. SULLIVAN, District Judge, sitting in place of MR. JUSTICE SHEA, concur.
|
[
18,
24,
-62,
13,
62,
18,
-17,
-17,
49,
35,
50,
42,
49,
-69,
31,
-28,
-4,
-30,
88,
24,
-26,
-8,
15,
-19,
-37,
41,
-19,
6,
-11,
25,
22,
3,
-21,
-2,
-44,
-4,
-64,
67,
-42,
-31,
29,
13,
44,
-19,
-6,
-5,
-22,
-11,
6,
11,
-44,
31,
-18,
-41,
9,
-26,
31,
-9,
-12,
58,
-41,
-10,
24,
-15,
58,
13,
32,
-7,
70,
-46,
4,
24,
-5,
-8,
68,
21,
-40,
-65,
-64,
-2,
-53,
23,
-20,
-37,
-19,
9,
0,
-21,
15,
34,
-25,
-9,
8,
19,
19,
23,
-22,
-15,
-20,
44,
-24,
-56,
-7,
25,
-3,
-1,
15,
-23,
2,
25,
-15,
7,
-57,
-90,
-16,
29,
2,
-10,
54,
9,
9,
11,
-12,
56,
-46,
-28,
24,
39,
-37,
-50,
-55,
-1,
-22,
-3,
3,
7,
-35,
-1,
-21,
1,
0,
-38,
65,
5,
-5,
-11,
-31,
-45,
-48,
-23,
70,
18,
-6,
48,
6,
-41,
-55,
4,
-20,
-41,
38,
-1,
-36,
1,
-37,
-6,
-13,
13,
-28,
-5,
-10,
-5,
-12,
-17,
27,
13,
-15,
-16,
9,
-46,
10,
-8,
12,
-5,
19,
79,
88,
-20,
12,
-58,
-70,
-18,
7,
-9,
-62,
-28,
80,
20,
-56,
13,
-56,
3,
22,
83,
35,
1,
-15,
3,
54,
-6,
32,
27,
-7,
-15,
-12,
65,
-24,
-28,
-5,
-14,
43,
38,
21,
17,
-65,
-27,
0,
-20,
8,
-39,
-35,
15,
5,
-22,
1,
58,
-27,
13,
27,
-26,
-34,
-20,
-23,
-20,
-16,
46,
-40,
-35,
-27,
13,
-1,
-65,
32,
79,
-10,
-21,
33,
-47,
14,
-43,
49,
-36,
38,
6,
16,
-55,
-29,
-31,
10,
-20,
26,
44,
-2,
25,
-58,
0,
23,
-35,
5,
-38,
74,
-23,
-10,
16,
-6,
23,
21,
-11,
-20,
-19,
-38,
11,
61,
0,
-12,
-3,
34,
18,
-93,
32,
-32,
-4,
21,
-1,
-25,
43,
-6,
16,
46,
56,
13,
0,
-13,
13,
40,
-23,
-17,
0,
14,
-27,
50,
14,
49,
23,
-28,
-10,
51,
5,
-9,
2,
7,
-8,
25,
-2,
32,
-24,
8,
16,
-63,
9,
-9,
20,
45,
39,
-16,
18,
-39,
56,
-65,
-14,
-54,
29,
18,
14,
16,
-38,
23,
-15,
-32,
30,
10,
19,
-9,
-42,
-71,
31,
22,
11,
15,
10,
-12,
-33,
-12,
84,
20,
52,
4,
33,
-41,
18,
39,
27,
-46,
-9,
17,
32,
6,
58,
-86,
-30,
46,
-17,
-64,
52,
18,
-16,
-27,
-48,
-3,
-7,
46,
12,
-8,
18,
-5,
-21,
2,
5,
-29,
37,
5,
-73,
-9,
-33,
-67,
82,
-7,
13,
28,
105,
-3,
18,
-9,
-61,
18,
-19,
-7,
30,
-64,
9,
-91,
-26,
-7,
16,
-40,
8,
1,
-6,
-23,
-48,
-7,
24,
19,
-30,
14,
-22,
24,
-26,
53,
41,
0,
22,
27,
-45,
-26,
12,
6,
-54,
-22,
15,
27,
-22,
3,
-7,
55,
-18,
15,
21,
49,
13,
-23,
22,
45,
57,
21,
32,
-12,
-37,
14,
-19,
-4,
-19,
-39,
4,
-22,
21,
-15,
3,
34,
81,
34,
24,
26,
-97,
37,
-11,
4,
62,
30,
-19,
-48,
-48,
23,
-36,
-44,
-50,
-15,
24,
-41,
-12,
20,
-42,
60,
2,
-47,
36,
75,
37,
0,
43,
24,
-7,
-60,
-5,
-1,
33,
-20,
-16,
73,
-55,
-47,
-1,
17,
-10,
-58,
26,
33,
6,
31,
-48,
39,
16,
-81,
15,
3,
25,
-16,
39,
23,
-12,
26,
10,
-12,
40,
-76,
14,
-4,
18,
11,
-8,
33,
24,
7,
-3,
-38,
52,
-39,
3,
34,
-19,
-24,
35,
8,
-14,
33,
-16,
27,
-37,
2,
10,
-6,
-22,
50,
4,
-44,
-14,
30,
-26,
43,
1,
-32,
2,
-1,
-1,
-38,
-58,
38,
-11,
-29,
-93,
-15,
-18,
-55,
0,
19,
34,
45,
5,
-10,
16,
10,
57,
16,
18,
27,
10,
1,
-40,
60,
-32,
26,
-31,
22,
-17,
6,
-29,
-35,
-47,
-51,
-16,
-43,
-30,
9,
-31,
-3,
-40,
-13,
-15,
-37,
-5,
8,
-13,
-32,
0,
41,
-9,
14,
44,
3,
3,
88,
29,
0,
8,
-13,
47,
-43,
16,
29,
-51,
50,
46,
42,
29,
-66,
-11,
40,
-10,
19,
23,
-17,
-20,
-18,
-51,
31,
-63,
39,
-31,
22,
-28,
-29,
0,
-11,
-34,
-1,
-7,
20,
56,
-2,
-18,
10,
-1,
-52,
10,
-15,
-4,
25,
-17,
-36,
18,
38,
-1,
40,
20,
-10,
37,
-1,
-36,
-43,
57,
30,
-64,
4,
26,
34,
-72,
2,
13,
5,
-12,
25,
-22,
-11,
36,
-24,
1,
-5,
-37,
-66,
22,
-114,
29,
21,
12,
-32,
-3,
-4,
-25,
-19,
50,
-60,
-36,
12,
7,
-20,
50,
16,
-38,
-20,
0,
12,
-63,
43,
-22,
9,
-44,
-72,
4,
-12,
-44,
23,
-19,
9,
19,
62,
-34,
37,
-21,
28,
-43,
6,
-23,
-56,
44,
37,
-53,
28,
-60,
15,
10,
7,
10,
-12,
2,
-2,
-26,
-1,
23,
-54,
17,
-1,
26,
78,
-51,
-4,
25,
-30,
35,
18,
-42,
-71,
42,
24,
-35,
0,
51,
8,
-29,
-21,
23,
-1,
-38,
45,
14,
34,
-42,
-34,
41,
-89,
-1,
-29,
6,
3,
40,
-9,
-29,
-35,
68,
-25,
76,
18,
41,
-32,
-21,
-43,
30,
3,
46,
12,
33,
-38,
-71,
28,
-14,
14,
15,
29,
-28,
4,
46,
-44,
44,
-55,
33,
60,
32,
-23,
16,
0,
14,
37,
61,
-40,
53,
15,
-52,
-5,
19,
-44,
14,
-12,
23,
18,
45,
10,
-6,
-38,
26,
23,
-47,
-29,
-39,
25,
-13,
16,
-18,
29,
52,
56,
51,
-15,
-38,
-18,
-26,
48,
-22,
-15,
-30,
3,
41,
-49,
71,
-21,
-43,
3,
59,
50,
-58,
-37,
16,
19,
1,
23,
-47,
-36,
37,
-30,
3,
49,
30,
0,
8,
-13,
45,
-25,
8,
-18,
-33,
-20,
0,
8,
40,
-35,
3,
30,
13,
-16,
36,
-11,
22,
-4,
-23,
32,
-46,
-12,
37,
-11,
-26,
-7,
33,
-2,
-2,
15,
32,
64,
-28,
-34,
10,
13,
-29,
-67,
28,
26,
-34,
33,
-72,
28,
-47,
-33,
2,
-1,
-23,
-2,
-98,
28,
18,
-1,
-26,
45,
62,
-52,
14,
27,
-13,
-39,
37,
-28,
3,
-11,
46,
74,
12,
-17,
-9,
45,
-21,
9,
6,
44,
-38,
-33,
-27,
-17,
-62,
3,
-4,
43,
-30,
67,
-11,
29,
-5,
-35,
-20,
35,
-35,
17,
15,
17,
16,
42,
24,
0,
24
] |
MR. JUSTICE MYERS
delivered the opinion of the court.
With others, defendant was indicted jointly for the alleged offense of making to the state superintendent of banks a false report of the condition of a state bank.
With others, defendant was engaged, at Nashua, in Valley county, in conducting the State Bank of Nashua, a banking corporation, incorporated under the laws of Montana. Defendant was a director and the cashier of the bank. January 3, 1924, the superintendent of banks issued and mailed to defendant a call for a report, to show the condition of the State Bank of Nashua, at the close of business, December 31, 1923, and to be made on a blank form furnished by the superintendent. The call and the form were received by defendant. In response, a report of the condition of the bank, at the close of business on December 31, 1923, was made and sent to the superintendent.
The report was subscribed and sworn to by defendant, as cashier, and was signed, in attestation, by J. E. Arnot and A. M. Sheldon, as directors. The report contained the statement that at the close of business, December 31, 1923, there was due from the First National Bank of Minneapolis, a bank ing corporation at Minneapolis, Minnesota, and an approved reserve agent, to the State Bank of Nashua the sum of $4,196.03 and listed such alleged indebtedness as a part of the resources of the reporting bank. Later, a grand jury found the indictment upon which the prosecution of this case was based. The indictment, in addition to alleging the foundational facts, as well as the issuance of the call and the making of the report and the statement in the report of the alleged indebtedness, in the sum of #4,196.03, of the First National Bank of Minneapolis to the State Bank of Nashua, alleged that such statement was false and that at the close of business, December 31, 1923, there was not due from the First National Bank of Minneapolis to the State Bank of Nashua the sum of $4,196.03 or any other sum, but that, at that time, the account of the State Bank of Nashua with the First National Bank of Minneapolis was overdrawn in the sum of $971.79 and that such false statement in the report of the State Bank of Nashua was made wilfully, wrongfully, unlawfully, knowingly and feloniously, with intent to deceive the superintendent of banks and his duly authorized agents and any and all other persons duly authorized to examine the reporting bank.
The defendant had a separate trial. He was found guilty and judgment was pronounced. He moved for a new trial. The motion was denied. Defendant appealed from the judgment and from the order denying his motion for a new trial and he assigns a large number of specifications of error.
The indictment is based upon section 6077, Revised Codes of 1921. That section is divided into and composed of three inhibitions and the second thereof is subdivided into two parts. As so divided, it provides as follows:
(1) “Every officer or other person authorized by this act who wilfully and knowingly makes any false statement of facts, statement of account or report;
“(2) And every officer, agent or clerk of any bank who (1) wilfully and knowingly makes any false entries in the books of such bank or (2) knowingly subscribes or exhibits false papers, with intent to deceive any person authorized to examine such bank;
“(3) And every person authorized by the provisions of this act to make statements or reports, who wilfully and knowingly subscribes or makes any false statement or report, shall be deemed guilty of a felony.”
At the outset, let us say counsel for the state now contend that the prosecution of the case was based upon the third division of that section and that the state did not and does not have to prove defendant guilty of making a false report “with the intent to deceive any person authorized to examine such bank.” We do not agree with that contention.
It is manifest and we hold that the indictment is based upon, and the case was tried below under, the second subdivision of division numbered 2 of the section, viz.: “Every officer, agent or clerk of any bank who * * * knowingly subscribes or exhibits false papers, with the intent to deceive any person authorized to examine such bank * * * shall be deemed guilty of a felony.”
The defendant was an officer of the bank, the cashier, and, in making the report, he acted as such officer. The bank was a state bank. The superintendent of banks and his examiners are authorized to examine state banks. (Sec. 6083, Rev. Codes 1921.) The indictment charges that defendant and others made a false report, “with the intent in the said defendants to deceive the superintendent of banks and his duly authorized agents and any and aE other persons duly authorized to examine said bank.” At the trial, evidence was offered by the state and admitted, over objection, for the avowed purpose of showing in defendant an intent to deceive the superintendent of banks. We find in the brief of counsel for the state argument that certain evidence offered and admitted over the objection of defendant was competent because it was offered for the purpose of showing and tended to show in defendant such an intent. The trial court instructed the jury that specific intent to deceive the superintendent of banks was ,an essential ingredient of the offense charged and that it must be proven beyond reasonable doubt or the defendant should be acquitted. The ease was tried below on the theory that intent to deceive the superintendent of banks was a part of the crime charged and had to be proven; evidently it was tried under the provisions of the second subdivision of division numbered 2 of' section 6077, supra, and counsel may not now be allowed to change the theory of the case. Counsel for the state may not be allowed to take inconsistent attitudes — argue in one portion of their brief that evidence was competent because it showed an intent to deceive and, in another portion, argue that such an intent was not necessary to be proven. We hold, as did the trial court, that the intent to deceive, as charged, is an essential ingredient of the crime charged and, as such, had to be proven beyond reasonable doubt, in order to justify conviction.'
Counsel for defendant contend the indictment is fatally defective and by specification of error challenge its sufficiency. One of the objections urged is that the indictment does not show that the past day specified by the call of the superintendent of banks as the day as of which and at the close of which the condition of the bank was to be reported, viz., December 31, 1923, was a day designated by the comptroller of currency of the United States for reports of national banking associations.
The statutes of Montana provide for regular and special reports of state banks. Section 6074, Revised Codes of 1921, as amended, Chapter 84, Session Laws of 1923, calls for at least three reports, each year, to the superintendent of banks. They are called regular call reports. (Sec. 6071, Rev. Codes, 1921, as amended, Chap. 84, Sess. Laws 1923.) Other reports, designated by statute as special reports, are provided for. (Sec. 6073, Rev. Codes 1921.) According to section 6074, Revised Codes of 1921, as so amended, regular call reports shall be made upon the call of the superintendent of banks and “the ‘past day specified’ by the superintendent of banks” as the day as of which and at the close of which the condition of a bank shall be reported shall be “the day designated by the comptroller of currency of the United States for reports of national banking associations. ’ ’ The indictment alleges that the superintendent of banks called for “a regular call report.” It is a presumption of law “that official duty has been regularly performed.” (Sec. 10606, Rev. Codes 1921.) The law presumes that the superintendent of banks made his call in conformity with law. We hold it was not necessary for the indictment to allege that December 31, 1923, had been designated by the comptroller of currency of the United States as a day for reports of national banking associations.
Another objection made to the indictment is that the statute providing for and requiring reports of the condition of state banks to be made to the superintendent of banks, upon his call, is unconstitutional, in that it delegates to the superintendent legislative power. A careful reading of the several sections of the statute and of the authorities cited convinces us that the objection is unfounded. Other objections to the indictment we deem equally without merit. Upon the authority of In re Lockhart, 72 Mont. 136, 232 Pac. 183, and other authorities examined, we hold the indictment impervious to attack.
Counsel for defendant earnestly contend that the evidence is insufficient to support the verdict or judgment; that there is no evidence of guilt; and that not only should the judgment be reversed but that we should order the case dismissed. We cannot see our way clear to agree with those contentions.
It is plain that, in respect to the item alleged by the indictment to be false, the report was incorrect. The report contained the statement that at the close of business, December 31, 1923, there was due from the First National Bank of Minneapolis to the State Bank of Nashua the sum of $4,196.03. That statement was not true. Giving the Nashua bank credit for remittances made directly to' the Minneapolis bank, December 31, 1923, and theretofore, which, on December 31, 1923, had not reached the latter bank and had not been credited to the former, and charging the former with drafts drawn against its account in the Minneapolis bank and which were in transit or in circulation, we think the Nashua bank, in the eyes of the law, on December 31, 1923, at the close of business, had, in the Minneapolis bank, a credit of #1,196.03 and no more. Counsel for the state contend there was an overdraft and the indictment charges an overdraft of $971.79 but we consider the law would say, a credit of $1,196.03. Defendant subscribed and swore to the report, containing the statement that there was a credit of $4,196.03. Therefore, he subscribed and swore to an untrue report; but falsity is not all that is required. Subscribing the report was a part of making it. The trial court instructed the jury that, to justify conviction, it had to be proven, beyond reasonable doubt, not only that the report was false in the particular specified but that defendant knew it to be false, when he made it, and that he made it wilfully and knowingly, with intent to deceive the superintendent of banks. In that the court was correct. (State v. Dahlgren, 74 Mont. 217, 239 Pac. 775.)
Counsel for defendant contend that, even though there was a discrepancy of $3,000 between the amount reported to be due from the Minneapolis bank and the amount actually due, it was immaterial, inasmuch as it did not affect the sum total due from banks, there being, in that event, simply $3,000 less due from the Minneapolis Bank and #3,000 more due from Sheldon Brothers Company, hereafter referred to, than reported. We do not agree. The Minneapolis bank was an approved reserve agent. There is no evidence that Sheldon Brothers Company was, nor, in this case, even that it was a bank. We think the superintendent of banks had a right to know where the Nashua bank’s cash reserve was kept. The statute requires a report in detail, under appropriate schedules. It has been held that overdrafts may not be reported as loans, although the mistake of classification does not alter the sum total of resources. (United States v. Graves, 53 Fed. 634.) Counsel for defendant contend that, as the sum total due from banks was not altered, claiming Sheldon Brothers Company was a bank, no harm was done. That is an argument that may be applied to the question of intent to deceive.
The question of defendant’s good faith was a question for the jury. There is not much substantial or material conflict in the evidence but, in some respects, the evidence is such that different inferences therefrom might be drawn by different minds.
Certain facts are established beyond dispute. A. M. Sheldon was a director of and the vice-president of the State Bank of Nashua. He lived in Minneapolis. There he conducted a business institution known as Sheldon Brothers Company, designated as bankers and investors. It was incorporated. It did much business with and for the State Bank of Nashua. It had business quarters in the same building as did the First National Bank of Minneapolis, with which it did business. December 22, 1923, the State Bank of Nashua, issued two certificates of deposit in the sum of $5,000 each, both payable to the order of Sheldon Brothers Company. December 24, 1923, defendant, as cashier, mailed them to Sheldon Brothers Company, with a letter directing that company to place the amount thereof, $10,000, to the credit of the State Bank of Nashua, with the First National Bank of Minneapolis. Testimony shows that the letter and the certificates should have reached their destination several days before December 31 and they did. At the time of the mailing of that letter and the certificates, there was entered on the books of the Nashua- bank a charge of $10,000 against the Minneapolis bank. The testimony shows that it long had been the custom of the Nashua bank to transact such business in that manner with those parties; that it was and long had been a frequent occurrence for the Nashua bank to issue certificates or other evidence of indebtedness and to send such or send securities or collateral to Sheldon Brothers Company and to request it to place them with the First National Bank of Minneapolis and have the Nashua bank given credit therefor.
The Minneapolis bank was the twin-cities correspondent of the Nashua bank. The latter kept there a continuous, active, fluctuating account; made remittances, to be put to its credit; drew drafts on its account. In the matter of obtaining credit by certificates or other evidence of indebtedness, securities or collateral, Sheldon Brothers Company acted as the agent or go-between for the Nashua bank. Testimony shows that it was and long had been the custom of the Nashua bank, either when making remittances direct to the Minneapolis bank or when sending to Sheldon Brothers Company papers to be used as a basis for additional credit at the Minneapolis bank, to make a charge therefor, on the books of the Nashua bank, against the Minneapolis bank, upon the day the remittance was made to the Minneapolis bank or the papers forwarded to Sheldon Brothers Company.
December 27, 1923, Sheldon Brothers Company wrote the State Bank of Nashua a letter, acknowledging receipt of defendant’s letter of December 24 and the two certificates of deposit for $10,000 and saying “we are crediting the amount to your account.” Defendant received the letter, in due course, and he testified that he understood and supposed from it that Sheldon Brothers Company had indorsed the certificates and turned them over to the Minneapolis bank, as requested, and that the crediting mentioned in the letter was with the Minneapolis bank, as intended; that that is what he supposed was meant. That is the way the matter stood until near the time of making the report called for.
Testimony shows the call for the report was received at the Nashua bank, January 4. The report, testimony shows, was prepared by Mr. Wick, the assistant cashier, that day, and, the same day, was subscribed and sworn to by defendant. Defendant and Wick testified that until near to that time they supposed the whole of the $10,000 represented, by the certificates of deposit had been put to the Nashua bank’s credit, in the Minneapolis bank; but that a short time before January 4 they learned or, at least, understood (just how was not explained) that Sheldon Brothers Company had deposited in the Minneapolis bank, to the credit of the Nashua bank, only $3,000 of the proceeds of the certificates of deposit and had retained the remaining $7,000 thereof. Thereafter, the testimony shows, in order to make correct the books of the Nashua bank and make them show the correct condition of affairs, as understood, the bookkeeper of the Nashua bank changed the entry theretofore made, when the Minneapolis bank was charged with $10,000, and made corrected entries, as of the original date, December 24, 1923, charging the Minneapolis bank with $3,000 and Sheldon Brothers Company with $7,000. That charge of $3,000 against the Minneapolis bank, as of December 24, 1923, in accordance with what defendant and others in the Nashua bank understood to be the facts and in addition to a balance of $1,196.03 which its books showed it already had in the Minneapolis bank, gave the Nashua bank, on its books, a credit of $4,196.03 in the Minneapolis bank, as of December 31, 1923. Thus, the testimony shows, matters stood when the report was subscribed and sworn to, January 4, 1924, by defendant. The report showed a credit of $4,196.03 with the Minneapolis bank and a credit of $7,000 with Sheldon Brothers Company. It was a correct report, according to the books of the Nashua bank.
The report had to be attested by the signatures of two directors, J. E. Arnot, of Glasgow, Montana, and A. M. Sheldon, of Minneapolis. Defendant testified that, on January 4, he mailed the report (subscribed and sworn to by him) to Arnot, at Glasgow, and, by letter to Arnot, requested him to sign it and then to transmit it, by mail, to Sheldon, at Minneapolis, with directions (prepared by defendant and sent to Arnot) to him to sign it and that he, Sheldon, then mail it back to the Nashua bank. That was the original report.
It appears from the evidence that a tentative or preliminary report of the same nature and to the same effect was mailed at Nashua, January 16, to the superintendent of banks, accompanied by a letter, written by the assistant cashier, saying it was sent' because the original report had not been completed and that it would be followed soon by the original. ¥e take it the original was not complete because it had not been signed by the attesting directors and received back from them. The rules of the superintendent of banks provide that a tentative report may be sent in, if the original report may not be completed and sent in, within the required number of days, to be followed by the original report, when completed. Apparently, the tentative report was sent in because it was known or feared the original report would not complete its round and reach the superintendent in the required time. The original report, fully signed, the evidence shows, was mailed at Nashua to the superintendent, January 23. The prosecution of this case is based upon the original report.
Meantime, events had intervened. It appears that Sheldon Brothers Company kept the two certificates for the aggregate sum of #10,000 and deposited no part of the proceeds thereof (neither $3,000 nor any other sum) with the Minneapolis bank. However, January 3, 1924, A. M. Sheldon obtained from the Nashua bank a credit of $2,953.90, with the Minneapolis bank, by executing, in the name of the State Bank of Nashua, by himself, as vice-president, and delivering to the Minneapolis bank the promissory note of the State Bank of Nashua to the First National Bank of Minneapolis, for the sum of $3,000, due three months after date, without interest. The Minneapolis bank accepted the note, discounted it and gave the Nashua bank credit for the sum of $2,953.90. Thus, it is seen the Nashua bank was not given credit by the Minneapolis bank for $3,000, less discount (actually $2,953.90), until January 3, and then not from any proceeds of the certificates of deposit but on account of the note so executed and delivered by A. M. Sheldon. A sum of $3,000 was relied upon by defendant, in making the report, to make up a credit of $4,196.03 with the Minneapolis bank, at the close of business, December 31, 1923. Manifestly, it was not there at that time.
The record shows that on the day of the execution of the note, January 3, 1924, Sheldon Brothers Company wrote and sent defendant a letter, informing him that, instead of depositing with the Minneapolis bank the certificates for $10,000, it had given the Nashua bank credit with Sheldon Brothers Company for the whole of the sum of $10,000 represented by the certificates and that A. M. Sheldon, as vice-president of the State Bank of Nashua, had that day executed and delivered to the Minneapolis bank the note of the Nashua bank for $3,000, due in three months, for which the Minneapolis bank had that day, January 3, given the Nashua bank credit (saying nothing about the discount). That letter was received by defendant, in due course. Testimony showed it required two days for mail to be conveyed between Minneapolis and Nashua; also, that the report had been subscribed and sworn to and started on its round, for attesting signatures, before that letter was received by defendant.
The indictment against defendant is denominated therein an indictment for making a false report but the provisions of the statute under which he was indicted and tried is an inhibition against knowingly subscribing or exhibiting false papers, with intent to deceive. Defendant admitted signing the report. We consider the mailing of it, by whomsoever done or by whose authority done, if any, exhibiting it. (3 Words and Phrases; Bouvier’s Law Dictionary; Standard Dictionary.) Two compound questions of fact, in our view, under the evidence, as to which different inferences might be drawn, arose for decision by the jury. They are: (1) When defendant signed the report, did he know it to be false and thereby intend to deceive the superintendent; (2) If not, did he exhibit it (mail or allow it to be mailed) to the superintendent, knowing it to be false, with intent to deceive that official? Even if defendant, when he signed the report, believed it to be true, if he learned thereafter that it was false and then sent or knowingly permitted it to be sent to the superintendent, with ont change and with intent to deceive, he thereby became guilty.
Even though defendant’s contention that, when he signed the report and started it on its round for attestation, he believed it to be true be conceded, the fact remains that when he received A. M. Sheldon’s letter of January 3 he learned and thereafter knew the report was not true as to the item of $3,000 theretofore supposed and reported to be to the credit of his bank, in the Minneapolis bank, at the close of business, December 31, 1923. The report came back to the Nashua bank after receipt of that letter and thereafter was forwarded to the superintendent. Undoubtedly an untrue report went to the superintendent. The evidence shows it was sent by the assistant cashier, accompanied by a letter, dated January 23, from him (without his autograph signature), saying the report is transmitted and asking for the return of the tentative report. Did defendant allow it to be sent, with his knowledge and approval? If so, did he thereby intend to. deceive the superintendent? Those are questions that were wholly for the jury.
Defendant testified he never again saw the report after it was started, January 4, on its round for attesting signatures and thereafter did not have anything to do with it. There is no direct contradiction of that testimony. Counsel for the state claim circumstances and presumption contradict it. They contend that, when the original report, duly attested, came back to the Nashua bank, before January 23, 1924, as it must have, defendant- must have known of its return and that it was his duty, before it went to the superintendent, to correct it in accordance with the facts that had come to his knowledge, after the report was subscribed and sworn to by him, so as to reduce by $3,000 the credit claimed in the Minneapolis bank and show $3,000 more on credit with Sheldon Brothers Company. Whether or not he knew of the return and forwarding of the report, he did not correct it. If he knew, the question then involved was one of intent. Of course, for de fendant to have made the change would have required sending the report around again, after the change, to Amot and Sheldon, for their assent to the change, or would have required obtaining, in some way, their ratification. He had no right to change it without their assent or ratification.
The whole matter was properly submitted to the jury and the jury found against the defendant. We may not disturb the verdict unless reversible error of law occurred during the trial. We turn now to the record, to see if there may be found any prejudicial error, assigned as error.
Counsel for defendant contend first that the trial court erred in its rulings regarding the selection and impaneling of the jury. We do not think there is merit in the contention. The court inadvertently made a mistake but corrected it at first opportunity and in ample time. After it had been corrected and counsel for defendant had objected and excepted, defendant had left, unexercised, one peremptory challenge; and, after the court had had another venireman called into the jury-box, defendant failed to exercise his remaining peremptory challenge. Having failed to exercise it, he may not complain. We do not consider defendant was prejudiced.
Counsel for defendant assign as error the rulings of the court in sustaining objections to testimony sought to be elicited by defendant and offers of proof made by defendant to show an established custom in vogue among Montana banks, known to and sanctioned by the superintendent of banks, of charging on their books (the day remittances are made or credit arrangements are made) to correspondent banks the amounts of remittances or the sums for which credit is procured. Several questions intended to elicit such testimony were asked by counsel for defendant and, upon objection, were held incompetent. Furthermore, counsel for defendant offered to prove by a number of qualified witnesses the existence for many years of such a custom and, each time, there being objection, the objection was sustained.
The principal contention of counsel for the state in arguing against the competency of the testimony so offered and sought to be elicited is that no foundation for it was laid. Counsel for the state contend that the offers of proof referred solely to remittances and that the evidence shows the credit the Nashua bank claimed did not arise from a remittance to the Minneapolis bank; hence, it is claimed, the lack of foundation. In that, counsel are not wholly correct. There is some confusion in the record, in that respect.
True, witness Eleve, a deputy bank examiner, witness for the state, whose testimony state’s counsel cite in argument, testified: “My idea is those C. Ds. do not come under the class of remittances.” He qualified that by saying: “If you made up one to-night and sent it to some bank where you were doing business, it would be a remittance.” Impliedly, he drew a distinction between a certificate of deposit going directly from one bank to another and going through an intermediary or go-between, as Sheldon Brothers Company, in this instance, holding the one to be a remittance and the other not; yet, on cross-examination, he said: “Well, no; that isn’t very much of a distinction.” He said his department had no criticism of the certificates for $10,000. Then he referred to the certificatés as remittances and said: “They didn’t get the credits for these remittances in time to show it on that statement but they are entitled to show that, because it was in the course of being allowed.” He said further: “It would have been perfectly agreeable if arrangements had been made to get credit. ’ ’ He did not give entire assent to the theory that it was proper to charge the Minneapolis bank with the certificates, the day they went to Sheldon Brothers Company, for deposit in the Minneapolis bank, but seemed to hinge the matter on whether or not arrangements had been made to get credit for them.
Other witnesses referred to the disposition of the certificates of deposit as a remittance. The certificates were frequently referred to, in testimony, as remittances to the Minneapolis bank; the idea seeming to be, remittances through an intermediary. The books of the Nashua bank, in a number of places, had the amount of the certificates or some portion thereof charged as a remittance. State’s counsel claim the sending of the certificates was a transfer but the distinction between remittance and transfer we think entirely too technical to serve as an objection to the proffered evidence.
Besides, the offers of evidence were not confined to offers to prove Custom with regard to remittances, in a restricted sense. Offer was made to prove by witness Kleve that “the forwarding of C. Ds. such as exhibits Nos. 20 and 29 in this case, with which he is familiar, to Sheldon Brothers Company by the State Bank of Nashua, for credit in the First National Bank of Minneapolis, and taking credit for such an amount on the day when such items went forward” constituted an item in due course of business of the State Bank of Nashua. State’s counsel object that the witness was not acquainted with the due course of business of the Nashua bank. We do not think that is the proper construction. We think the language means an item, in the due course of banking business, transacted by the Nashua bank.
Other offers of proof related to the custom in remitting money or “evidence of money”; the custom as to “arrangements for obtaining credit”; the custom in regard to “remittances or credits”; the attitude of the superintendent of banks in regard to certain customs; the custom when loans had been arranged for; the due course of banking business. We think untenable the objection that no foundation had been laid for| these offers of proof. Furthermore, Mr. Kleve, in his testimony, did testify that it was customary for banks to charge to correspondents, on the day of mailing, the amounts of remittances made to correspondents. Such line of testimony was entered upon and the offers to enlarge upon it, we think, should have been allowed.
In this connection, counsel for the state argue there is nothing in the evidence to show any arrangement between the Nashua bank and the Minneapolis bank upon which defendant had a right to rely. A similar question was largely determinative in State v. Dahlgren, supra. Whether or not such an arrangement had been made in the case at bar is a close question and was one for the jury. With relation to the certificates and his act in sending them to Sheldon Brothers Company, to be placed in the Minneapolis bank, defendant testified: “It was the regular course of business with us; they were sent according to an agreement the State Bank of Nashua had with Sheldon Brothers; had been in effect quite a few years; there had been a considerable number of other items preceding this.” He said further: “The First National Bank of Minneapolis was our principal correspondent; by correspondent, I mean it was the bank we did business with; it was the custom or practice to remit money and other matters of credit to the First National Bank of Minneapolis, frequently, practically daily and many times more than one, and these items sent out were charged to their account; that had always been customary.” Mr. Wick, the late assistant cashier of the Nashua bank testified: “There was a sort of understanding with Sheldon Brothers Company to send in C. Ds. to them and they would in turn arrange for credit for us with the First National Bank of Minneapolis.” He said further: “There was an account in the State Bank of Nashua with the First National Bank of Minneapolis during all of the time I was employed in any capacity in that bank; the State Bank of Nashua, during all of the time I was there, had arrangements with Sheldon Brothers Company to take over transactions for the bank with the First National Bank of Minneapolis; whenever the State Bank of Nashua requested-Sheldon Brothers-Company to place credit in the First National Bank of Minneapolis for us they always did it; it was largely a matter of routine.”
If it may be said the testimony is vague as to whether or not there was any arrangement or understanding with the Minneapolis bank and, if so, what it was, there was almost, if not quite, as much vagueness and uncertainty about any arrangement between tbe defendant’s bank and another bank in the case of State v. Dahlgren, supra, in which this court held the evidence insufficient to convict. In that case, witnesses “disclaimed any personal knowledge” as to whether there was cash available in another bank to meet cashier’s cheeks when issued; witnesses said “by some arrangements made” money was obtained from another bank; witnesses “did not know the particular arrangements made for the advancement of cash.” In the case at bar, it may be noted that, while it was testified that it was and long had been the custom for the Nashua bank to request Sheldon Brothers Company to place or arrange credit for it with the Minneapolis bank and that, when requested, “they always did it,” there is no evidence that Sheldon Brothers Company, in one instance, ever had failed to do it or that, in one instance, the Nashua bank had been disappointed. That is a matter to be considered in determining whether or not defendant had a right to rely and did rely in good faith upon his directions being carried out in the instance at hand.
There is involved not only the question if there was any express or implied understanding with the Minneapolis bank but if defendant had reason to believe and did believe there was and relied on such belief. It should be remembered that when A. M. Sheldon, of Sheldon Brothers Company, transacted business, for the Nashua bank, with the Minneapolis bank it was substantially the same as the Nashua bank doing it. He was vice-president of that bank. For the Nashua bank to send to A. M. Sheldon or Sheldon Brothers Company matters to be taken up with the Minneapolis bank was somewhat different from entrusting the mission to an outsider, a party not connected with the Nashua bank. We cannot, see much difference between the Nashua bank doing business directly with the Minneapolis bank and doing it through Sheldon Brothers Company.
We think the trial court erred in ruling out defendant’s offers. We think they were competent as shedding light upon his intent and his good or bad faith at the beginning of the transaction involved. Intent is generally a necessary ^element in a felony; it is particularly made so in this instance. When intent is involved, a defendant in a criminal case may always testify to his intent. (State v. Smith, 57 Mont. 563, 190 Pac. 107; State v. Calongue, 111 Kan. 332, 206 Pac. 1112; State v. Givens, 28 Idaho, 253, 152 Pac. 1054; People v. Martel, 21 Cal. App. 573, 132 Pac. 600.) Of course, if the defendant may testify in his own behalf as to his intent or lack of intent, the same may be proven by any other relevant evidence.’ Any evidence tending to shed light on intent or lack of intent is competent. (State v. Hanson, 49 Mont. 361, 141 Pac. 669; United States v. Graves, supra; State v. Givens, supra; People v. Martel, supra.) The case last cited was a prosecution for making a false, report of the condition of a bank. In its opinion, the court said: “In all cases where, as in this charge, a specific intent to deceive is an essential ingredient in the offense, the defendant should be allowed, to prove any fact tending to show that he had no such intent or that he did not knowingly make a false statement.” The proffered testimony, had it been admitted, certainly would have shed some light upon the intent of defendant at the beginning of this matter.
Counsel for the state cite State v. Cassill, 70 Mont. 433, 227 Pac. 49, as authority for the ruling of the trial court in rejecting defendant’s offers. The two cases are not analogous; in that respect, they are totally dissimilar. In the Cassill Case, the defendant offered to prove that, some sixteen or seventeen months before the date upon which the report of his bank (upon which he was tried) was based, one Montgomery, an Iowa banker, had made a vague, indefinite offer to lend defendant’s bank $10,000, at any time, for reserve purposes. If true, it was only a bare offer. It was not followed, ever, by any negotiations, correspondence or application for a loan in such sum. No effort was made to get a loan of that am mint.. No note, certificate, evidence of indebtedness, security, col lateral, was forwarded. Apparently, the matter of a loan of that amount was never referred to again between the parties. The Iowa bank was not a correspondent of the defendant’s’' bank. The latter kept no account with the former; they had no constant or even occasional interchange of dealings. Apparently, not one item of real business between the two banks had ever occurred. Yet, the defendant in the Cassill Case made his report include, as a part of the resources of his bank, a fictitious sum of $10,000, listed as due from the Iowa bank. He seemed to rely, in justification, upon the assumption that he could borrow it, any time he might desire, from the Iowa bank. Yet, after the alleged promise of a loan of $10,000 and before the call for a report of the condition of his bank, the defendant applied to the Iowa banker for a loan of a less sum, $6,500, and it was refused. The two cases are far apart.
Counsel for the state contend that the rulings of the court in rejecting the offers, even if error, were not prejudicial. We do not agree. Defendant was entitled to show, by any competent evidence, that, from the beginning, he was actuated by good faith. He was entitled to show that, from beginning to end, at any stage and all stages of the matter, he acted in good faith. It was highly essential to a fair trial for defendant that he be allowed to show, if he could, that he was acting in good faith when he subscribed and swore to the report. The language of the section of the statutes under which defendant was tried is a double, disjunctive inhibition against knowingly subscribing or exhibiting false papers, with intent to deceive. Defendant was charged with both so subscribing and exhibiting a false paper. If he did either, he was guilty. The offered proof, if it had been admitted, would have tended to prove that defendant did not knowingly subscribe or swear to a false paper (and he was entitled to prove that), whatever he may have done or may not have done, thereafter. If the jury decided defendant knowingly subscribed a false report, that settled it; he was found guilty, then and there. On the other hand, if shown to the satisfaction of the jury that defend ant was acting in good faith at the beginning, believing he had a right to do as he did; believed he had arranged for credit; that would not only absolve him from the first element of guilt but it seems natural it would weigh in his favor all the way through. We hold the court erred in overruling the offers of proof and that the error prejudiced defendant.
Counsel for defendant urge as error the admission in evidence, as exhibits, over objection, of a number of sheets of paper purporting to be copies of or papers made up from pages of the ledger and other bank books and records of the First National Bank of Minneapolis; reconcilement statements, statements of account, balances and the like. We think the admission thereof, in each instance, was error. Not one of them was sufficiently authenticated or vouched for. They only purported on the faces thereof to be one thing or another. Nobody who knew testified what they were or that they were genuine or correct. They were simply found among the papers and effects of the Nashua bank, after it had closed, and shown to be in the same condition as when the bank closed. We know of no rule of evidence admitting such papers, under such circumstances. We do not think the proper foundation was laid. State v. Yegen, 74 Mont. 126, 238 Pac. 603, is authority for our views; likewise, Silver v. Eakins, 55 Mont. 210, 175 Pac. 876. That point arose in State v. Cassül, supra. There the original sheets (not copies) from the loose-leaf ledger of an Iowa bank were introduced in evidence, over objection, and, upon appeal, it was held proper; but Mr. Montgomery, the banker, was there in person as a witness, and he identified the ledger sheets and testified to their genuineness and correctness. There was no such thing here. There was no official or employee of the Minneapolis bank present as a witness. The documents were not self-proving. In State v. O’Neil, 24 Idaho, 582, 135 Pac. 60, it is held that, when voluminous and numerous original records and books have already been introduced and received in evidence and are before the jury, it is competent for expert accountants who have examined them to make tabulated and condensed statements, on separate sheets, in summarized form, of essential and salient facts and figures gleaned from the originals and to testify to the correctness thereof and that such sheets may be received in evidence; but the expert accountants who made the tabulated statements were there, testifying orally to the authenticity and correctness thereof. The opinion in that case cites a number of supporting cases but in each one some witness who knew and was competent was there in person to vouch for the documents.
Counsel for the state say Mr. Wick, the assistant cashier, used some of the papers in such manner as to show he regarded them as authentic and correct and in others, which he considered incorrect, he made corrections. He said they were from the First National Bank of Minneapolis and he filed them as records of the Nashua bank but he knew only that they came in the mail. He did not make them. He did not know if they were genuine or correct. He did not say they were true copies. It must be remembered that defendant was on trial on a criminal charge and that he was not responsible for nor bound by the acts of another unless the acts were shown to have been done in his presence or with his knowledge and by his authority or with his approval or consent. No such showing was made. True, after the sheets had been admitted (improperly, we hold), defendant, on cross-examination, answered some questions in regard to them, as to whether or not correct, in comparison with the books of the Nashua bank; but that did not make them competent. Had they been ruled out, as we hold they should have, defendant could not have been cross-examined as to them. We hold the court erred in such rulings and that the error was prejudicial.
Quite a number of specifications of error are based on other rulings of the court in admitting or excluding evidence. Some we deem without merit; in others, if there be error in the rulings complained of we do not consider it prejudicial. We do not deem it necessary to discuss any of them.
Counsel for defendant assign as error the rulings of the court in refusing to give a number of proposed instructions offered by defendant. We will not say we find reversible error in any of such rulings. Some of the offered instructions we think not correct; others, not applicable; others still were substantially covered by instruction given. We think, in fairness to defendant, defendant’s offered instruction No. 4 should have been given and that the court erred in not giving it. It declared that if defendant made an honest mistake and believed the report to be true, though, in fact, false, he should be acquitted. The spirit of the proposed instruction is fairly covered, perhaps, by instructions given but no instruction given mentions specifically an honest mistake or belief that the report was true. We do not say the refusal to give this offered instruction, alone and of itself, constitutes reversible error (were there no other error in the record) but the offered instruction is correct (In re Lockhart, supra; State v. Jackson, 20 S. D. 305, 105 N. W. 742), and we think defendant was entitled to it. We think, too, the court should have given, as modified, defendant’s offered instruction No. 15.
Some of defendant’s several offered instructions as to the right of defendant to charge to its correspondent, on the day of mailing for transmission, remittances to the correspondent, or money or its equivalent or what is regarded as equivalent, might have been proper and it may be should have been given had evidence of banking custom in support of the propriety thereof (which was excluded) been admitted and had the offered instructions been somewhat more carefully drawn to conform to the evidence that was admitted and evidence which, according to this opinion, should have been admitted, in the event it were favorable to the custom sought to be proven. As it is, the most of evidence of such character was excluded (erroneously we hold) and there was little on which to base such offered instructions and they were not, we think, so guarded as to fit altogether such evidence as was admitted.
'Subject to these observations, we think the instructions given, taken as a whole, substantially correct and think they fairly well covered the evidence admitted and the issues submitted to the jury; at least no objection was made to any of them and no error therein is called to our attention.
The indictment charges there was, December 31, 1923, an overdraft of $971.79 in the account of the Nashua bank, in the Minneapolis bank, while the report claimed a credit of $4,196.03. In fact, as shown by the proof, there was no overdraft but a credit of $1,196.03, being $3,000 less than claimed by the report. Counsel for defendant contend that discrepancy between the allegation and the proof is a fatal variance; we do not, however, so consider it. Even though the difference between the amount of the credit claimed by the report and that existing ($3,000) is not so great as the difference charged in the indictment, still it rendered the report incorrect and an untrue report was made, nevertheless, and that is the gist of the offense charged and, if made knowingly, with intent to deceive, it was a crime. According to Underhill on Criminal Evidence, second edition, paragraph 31, the test of the materiality of a variance in proof is, “does the indictment so far fully and correctly inform the defendant of the criminal act with which he is charged that, taking into consideration the proof which is introduced against him, he is not misled in making his defense or placed in danger of being twice put in jeopardy for the same offense?” According to that test, the variance in question, in this case, was not material and we so hold.
For the errors committed, as we have held, in rulings of the trial court, herein pointed out, upon admission or exclusion of evidence, and because of the ruling of the court in denying defendant a new trial, the judgment is reversed and the cause, remanded for a new trial.
Reversed md remanded.
Mr. Chief Justice Callaway and Associate Justices Stark, Galen and Matthews concur.
|
[
-46,
-13,
46,
-20,
-4,
-31,
17,
-49,
19,
-60,
-13,
33,
24,
15,
-3,
14,
-18,
-19,
60,
-17,
42,
-70,
0,
-37,
-47,
-5,
-67,
0,
1,
-26,
54,
-16,
-2,
3,
2,
49,
-14,
21,
13,
-74,
14,
79,
-22,
22,
41,
33,
31,
-51,
29,
28,
12,
-52,
9,
31,
-10,
-9,
13,
28,
-16,
57,
64,
-41,
79,
-29,
28,
-69,
30,
15,
45,
24,
6,
22,
-22,
-23,
14,
-20,
-62,
-34,
-38,
-32,
-67,
-59,
30,
-14,
-25,
-10,
-51,
-13,
-24,
24,
82,
2,
11,
-8,
70,
29,
27,
30,
11,
36,
13,
-36,
-5,
34,
16,
29,
-20,
-7,
26,
35,
0,
10,
4,
-45,
-48,
7,
-43,
-18,
5,
32,
-17,
71,
-54,
-5,
-35,
12,
4,
32,
13,
-5,
-20,
43,
-10,
32,
-46,
6,
-40,
-74,
5,
21,
35,
-36,
-16,
41,
-3,
44,
-17,
42,
45,
0,
-49,
-5,
46,
41,
-16,
-60,
-45,
-35,
-43,
-38,
27,
9,
-26,
-33,
-28,
49,
-20,
25,
-1,
-37,
13,
69,
-30,
34,
0,
13,
-14,
-54,
9,
33,
-9,
37,
32,
15,
-8,
10,
66,
2,
42,
-8,
28,
11,
-9,
4,
-125,
-21,
46,
-6,
17,
-44,
28,
-8,
6,
-33,
-8,
-32,
-10,
-21,
42,
22,
-2,
-6,
70,
22,
-41,
-18,
-1,
-7,
15,
-32,
28,
47,
-6,
37,
-78,
-58,
74,
31,
17,
-16,
-34,
-14,
26,
-4,
-2,
36,
58,
-33,
-5,
-31,
-62,
-37,
-2,
-24,
-20,
46,
-5,
-27,
-43,
-28,
-9,
-19,
12,
73,
-10,
0,
30,
-52,
-31,
-27,
-3,
2,
-6,
45,
-30,
-20,
9,
-2,
-15,
6,
-45,
-42,
34,
-6,
-14,
-30,
12,
2,
-8,
-6,
-6,
-74,
32,
81,
69,
-7,
4,
15,
-15,
0,
5,
1,
6,
59,
28,
29,
19,
6,
8,
13,
-9,
-23,
-11,
4,
-13,
40,
-42,
20,
-62,
-60,
102,
6,
-49,
2,
127,
-26,
-6,
30,
-12,
22,
12,
2,
-19,
-16,
41,
26,
21,
-16,
-45,
-54,
48,
29,
-18,
33,
-46,
-9,
22,
20,
52,
-83,
20,
-20,
9,
-26,
-29,
-12,
-11,
23,
-24,
-22,
-46,
19,
0,
37,
-48,
87,
-1,
34,
14,
-21,
17,
51,
24,
6,
-16,
11,
-44,
-17,
-10,
23,
-10,
-32,
2,
-6,
26,
14,
-49,
-25,
-29,
6,
-25,
35,
11,
21,
-23,
66,
48,
-50,
-23,
6,
-6,
31,
-33,
67,
-26,
-79,
16,
-7,
-38,
-45,
-15,
-32,
-3,
-24,
-41,
33,
10,
-23,
40,
23,
45,
-9,
-10,
-26,
-28,
9,
1,
1,
48,
71,
6,
66,
9,
11,
10,
-5,
-6,
100,
-2,
-27,
-24,
41,
-36,
43,
-28,
6,
11,
35,
16,
0,
35,
38,
-35,
7,
11,
-7,
18,
-58,
78,
87,
9,
0,
-5,
-20,
26,
12,
34,
-20,
20,
-45,
-1,
-41,
42,
41,
10,
37,
-4,
-45,
19,
17,
-33,
20,
3,
-2,
36,
17,
-2,
-31,
23,
-16,
19,
-51,
-4,
13,
-27,
-10,
-13,
-37,
-73,
52,
17,
36,
-44,
36,
-27,
24,
-29,
-69,
-16,
-23,
-28,
-20,
-19,
-47,
-65,
15,
10,
7,
5,
27,
-1,
49,
56,
7,
-33,
3,
-65,
49,
-66,
26,
60,
76,
-35,
35,
-22,
9,
-31,
7,
27,
-40,
-45,
9,
-16,
-34,
12,
21,
41,
4,
47,
-14,
6,
-38,
-9,
17,
-38,
-17,
-42,
-59,
15,
19,
-12,
-9,
63,
-34,
0,
3,
-40,
-27,
-10,
11,
13,
8,
-37,
-31,
-5,
-20,
-65,
-9,
14,
-67,
-4,
17,
-53,
31,
-32,
-2,
-50,
16,
7,
0,
1,
-48,
28,
-26,
-2,
48,
44,
3,
-6,
12,
66,
15,
-4,
24,
9,
13,
-7,
51,
-30,
-14,
-23,
-27,
-37,
46,
-15,
27,
-5,
37,
-33,
-16,
-5,
21,
61,
33,
-39,
-6,
5,
-19,
-11,
3,
2,
-16,
-17,
-15,
27,
-11,
-4,
2,
-17,
-11,
-35,
-39,
-40,
-18,
-23,
-7,
-58,
17,
0,
8,
-33,
52,
35,
-9,
44,
40,
29,
28,
67,
28,
-1,
16,
49,
-30,
-43,
-4,
79,
-42,
12,
-35,
64,
29,
-27,
40,
-2,
-26,
42,
46,
60,
25,
3,
-49,
52,
-57,
23,
-40,
-26,
-16,
24,
-11,
-4,
47,
-34,
6,
-18,
-51,
40,
6,
-49,
19,
37,
17,
-16,
10,
22,
25,
-25,
-13,
-28,
-21,
31,
-32,
49,
-17,
2,
5,
-5,
-15,
-53,
71,
38,
-30,
-29,
27,
-13,
12,
41,
8,
-23,
-11,
-29,
-41,
-10,
19,
-30,
27,
15,
-19,
-16,
31,
-29,
29,
10,
43,
31,
-17,
-19,
18,
11,
-5,
19,
40,
0,
28,
-65,
7,
-3,
4,
8,
-91,
35,
-2,
0,
-37,
-25,
20,
-20,
-63,
-51,
-47,
21,
17,
-4,
-14,
-34,
-17,
43,
27,
-33,
-10,
10,
-42,
-47,
27,
5,
36,
17,
-43,
0,
36,
29,
6,
-36,
-38,
33,
-99,
46,
91,
50,
34,
-38,
1,
31,
-25,
-37,
39,
21,
7,
-50,
33,
-57,
35,
13,
37,
-34,
32,
30,
-6,
35,
39,
-38,
8,
14,
-24,
54,
-37,
5,
-10,
-46,
-41,
-11,
-3,
-5,
-44,
-7,
-33,
-25,
15,
-13,
21,
-34,
-9,
10,
-29,
65,
-7,
16,
-7,
22,
19,
2,
0,
5,
-41,
-21,
-28,
59,
-47,
-18,
9,
-14,
42,
-29,
-39,
-26,
-9,
52,
23,
45,
-2,
-13,
8,
-41,
-29,
-6,
-26,
-41,
-30,
12,
16,
-55,
58,
-34,
16,
-40,
35,
57,
-36,
63,
8,
-18,
-41,
31,
-11,
-2,
-35,
-6,
-36,
13,
61,
-27,
-18,
6,
9,
-22,
-11,
-40,
-6,
-35,
-13,
-6,
-3,
-19,
53,
-14,
-16,
58,
24,
-2,
61,
3,
19,
4,
-79,
-30,
72,
-4,
-26,
94,
50,
17,
-14,
15,
30,
54,
-34,
-36,
30,
-20,
52,
3,
76,
-34,
-5,
-33,
6,
-9,
34,
13,
-6,
1,
-34,
42,
-13,
-3,
-14,
-2,
-33,
-14,
-36,
69,
12,
-15,
6,
20,
-6,
-29,
-26,
1,
16,
-55,
-34,
20,
-20,
-30,
-4,
10,
-41,
35,
-37,
-32,
-32,
6,
-48,
-50,
2,
-3,
-23,
22,
19,
17,
-2,
-37,
37,
-62,
-57,
5,
1,
5,
22,
16,
-15,
25,
-4,
42,
-27,
9,
-9,
0,
-76,
71,
32,
7,
-70,
-19,
-79,
-25,
26,
42,
-16,
26,
22,
-19,
-21,
26,
-23,
-1,
-2,
-26,
5,
-10,
2,
-34,
67
] |
MR. JUSTICE MYERS
delivered the opinion of the court.
This is an action in conversion. Plaintiff sued for the value of 480 bushels of wheat.
The complaint alleges that plaintiff is and was at, all times mentioned trustee in bankruptcy of the estate of one Berry Mackey, a bankrupt; that Frary & Burlingame, defendants^ are partners; that, during 1924, defendant Fuller cultivated land belonging to said estate and threshed and harvested, on said land, and delivered to an elevator 480 bushels of wheat, of the value of $624, belonging to plaintiff; that on November 19, 1924, defendants wrongfully took and carried away the wheat, then owned by plaintiff and he being entitled to the possession thereof, and converted.it to their own use, to plaintiff’s damage in the sum of $624; that plaintiff made demand of defendants for the storage tickets for the wheat or the value thereof and defendants failed to comply. Judgment for the value is asked.
The answer admits the allegations as to the character of the litigation. It then admits that Fuller cultivated the land, threshed and harvested the wheat and delivered it to 'an elevator; admits the value; admits the demand of plaintiff and the failure of defendants to comply; denies all other allegations of the complaint.
Further pleading, for an affirmative defense, the answer alleges that Frary & Burlingame, partners and defendants, are agents of the Phoenix Mutual Life Insurance Company, a corporation, and, as such, have charge of its mortgage loans in Montana; that, on August 2, 1919, Berry Mackey and Emma M. Mackey, his wife, executed and delivered to that corporation their promissory note for the sum of $6,000 and, to secure it, executed and delivered to the corporation, a mortgage of the land on which the wheat was harvested; that the mortgage was recorded; that, on October 31, 1921, Berry Mackey was adjudged a bankrupt and, on December 9, 1921, F. A. Flanagan, plaintiff, was appointed trustee in bankruptcy of his estate and qualified and has been since and is such trustee; that thereafter Berry Mackey died and, on October 22, 1923, Emma M. Mackey was appointed executrix; that the mortgagors failed to pay the interest due on the mortgage on December 1, 1923, amounting to $360, and that, thereupon, under the terms of the mortgage, the principal became due and on October 13, 1923, the Phoenix Mutual Life Insurance Company commenced an action to foreclose the mortgage; that because of the failure of the mortgagors to pay, December 1, 1923, interest or principal, due that day, the insurance company, on September 12, 1924, demanded of Defendant Fuller, tenant in possession of the mortgaged land, the rents and profits of the land for 1924 and he agreed to deliver to it such rents and profits and Emma M. Mackey consented thereto; that thereafter Defendant Fuller did deliver to Defendants Frary & Burlingame, as agents, such rents and profits, being 480 bushels of wheat, of the value of $624, which they accepted as such rents and profits.
A copy of the mortgage was attached to and made a part of the answer. It contains a default provision, providing that in the event of the failure of the mortgagors to pay principal or interest, when due, or any taxes, assessments or insurance, as required, or to comply with any of the requirements of the mortgage then all of the debt secured should become due and collectible and the mortgagee could pay all such taxes and the like and the mortgage could be foreclosed for the full amount, with disbursements; and all rents and profits of the property should then immediately accrue to the benefit of the mortgagee and a receiver might be appointed to collect 1he rents, issues and profits pending the foreclosure suit and until the expiration of the time for redemption. There is in the mortgage no provision, such as often found, for immediate entry upon and possession of the premises, by the mortgagee, upon any default of the mortgagors; nor is there any provision, as is common, for summary sale of the premises, without foreclosure, in the event of a default.
The ease was tried to the court, without a jury. Judgment for plaintiff was rendered. Defendants appealed and assign as specifications of error that the judgment is contrary to the law and the evidence is insufficient to justify the judgment.
The issue is wholly one of law. The facts are few. There is substantially no conflict in what little evidence there is.
Mackey and wife executed their note and mortgage to the insurance company, August 2, 1919. The mortgage was recorded. October 31, 1921, Mackey was adjudged a bankrupt. December 9, 1921, Flanagan, plaintiff, was appointed trustee in bankruptcy of his estate and qualified and took charge. Thereafter (not shown when) Mackey died. October 22, 1923, the widow was appointed executrix but we do not see that that is any factor in the case. December 1, 1923, interest, in the sum of $360, on the note became due. It was not paid then nor thereafter but remained unpaid. In 1924, Fuller, a defendant, was on the land, as he had been theretofore. Flanagan, as trustee, leased the land to Fuller, to farm, for the year 1924. The terms of the lease provided that Fuller should receive two-thirds of the crop, the remaining one-third to be hauled to an elevator at Loma and the tickets representing such third to be delivered to Flanagan, as trustee. Fuller raised a crop of wheat in 1924. He harvested and threshed it, in August, of that year, and the grain was put in the granary on the premises. One-third of it amounted to 480 bushels, of the value of $624. September 12, 1924, Frary & Burlingame, defendants and agents, demanded - of Fuller the landlord’s share of the crop. At that time he did not act on the demand. Later, he hanled the landlord’s one-third to the elevator and there stored it, as required by the lease given Mm by plaintiff, and took storage tickets therefor. Demand was made of him, by plaintiff’s counsel, for the storage tickets but the demand was not complied with. October 13, 1924, the insurance company instituted an action to foreclose its mortgage. About November 19, 1924, Fuller delivered to Frary & Burlingame the storage tickets for the one-third of the grain claimed by both them and plaintiff and Frary & Burlingame got the value thereof. Hence, this action.
We deem the decision of this court in the case of Sharp Bros., Inc., v. Bartlett, 76 Mont. 415, 248 Pac. 199, decisive of this case. The two are quite analogous. That case was in claim and delivery and this case is in conversion but on principle we see no difference. In the Sharp-Bartlett Case, the mortgage contained, verbatim, the same default provision as is contained in the mortgage in this case. In neither case did the mortgage give the mortgagee the right to enter and take possession of the mortgaged premises. In that respect, both cases differ from the case of Union Central Life Ins. Co. v. Jensen, 74 Mont. 70, 237 Pac. 518.
True, as counsel for defendants say, the decision of the Sharp-Bartlett Case is predicated in part upon the rule, stated in the opinion, that in claim and delivery the defendant can defeat the plaintiff’s right of recovery by showing that the right to the possession of the property is in a third party, with the qualification that the rule has no application unless the third party’s right of possession is absolute and that the mere fact that property is mortgaged to another does not, of itself, defeat the plaintiff’s right of action, and the opinion cites Conrad Merc. Co. v. Siler, 75 Mont. 36, 241 Pac. 617. However, the decision in the Sharp-Bartlett Case goes further than that. The opinion says: “Seemingly, the court accepted Olson’s version that he had not agreed to turn over to Frary, for the mortgagee, the crop rentals of the land for 1924, to apply on the mortgage, and, therefore, he had not divested himself of the right of possession in the same.” Thus, in that ease, this court held that the right of possession of the landlord’s share of the crop was in Olson, the landlord. Under similar conditions, in this case, it was in plaintiff. If the mortgage provision as to rents and profits, in that case, in the event of default, did not divest Olson of the right to the possession of the landlord’s share of the crop, it did not in this case.
Clearly, at the time of the alleged conversion, plaintiff, as trustee in bankruptcy, standing in the shoes of the mortgagors and being in fact the landlord, was the owner of the wheat in the elevator and which, it is claimed, was converted and he was entitled to the possession thereof. He had a proprietary interest in the crop while it was grow ng and he became entitled to one-third of it, immediately upon the harvesting and threshing of the crop. Power Merc. Co. v. Moore Merc. Co., 55 Mont. 401, 177 Pac. 406, is authority for that assertion. Let it be remembered, too, that Frary & Burlingame did not make a demand on Fuller for the landlord’s share until after the crop had b§en harvested and threshed.
This case is a stronger case, in favor of the plaintiff, than was the Sharp-Bartlett Case. In that case, the landlord’s share was seized immediately upon the threshing of it, while in possession of the tenant and before it had been delivered to the landlord; while in this case the wheat had been not only harvested and threshed but it had been segregated and the landlord’s share had been stored, delivered, in an elevator, as provided by the terms of the lease, before defendants, through Fuller’s action, obtained possession thereof. When the landlord’s share was stored in the elevator, it was plaintiff’s property and it was Fuller’s duty to give plaintiff the storage tickets but he did not do it and, instead, he and the other defendants converted the property.
This view is supported not only by the Montana cases we have cited but by Freeman v. Campbell, 109 Cal. 360, 42 Pac. 35; Moncrieff v. Hare, 38 Colo. 221, 87 Pac. 1082; Mc Gahan v. First Nat. Bank, 156 U. S. 218, 39 L. Ed. 403, 15 Sup. Ct. Rep. 347 [see, also, Rose’s U. S. Notes]; Jones on Mortgages, 5th. ed., sec. 670; and other authorities..
Fuller, in his testimony, made some reference to a dispute of Mrs. Mackey’s as to who was entitled to the rental and, also, to a verbal understanding with Mrs. Mackey but he testified to nothing that would relieve him of his duty to put in the elevator, for plaintiff, one-third of the wheat. He operated under a written lease from plaintiff, which required him to put the third in the elevator, for plaintiff. He had solicited the written lease; he obtained and accepted it and proceeded under it; he was bound by it. The estate being in bankruptcy and in charge of plaintiff, as trustee in bankruptcy, there is nothing in the record to show that Mrs. Mackey had any authority in the premises. There is nothing in the record to justify Fuller in turning over to Frary & Burlingame the landlord’s share of the crop.
To the doctrine declared by the supreme court of the United States in Freedman’s Savings & Trust Co. v. Shepherd, 127 U. S. 494, 32 L. Ed. 163, 8 Sup. Ct. Rep. 1250, cited by counsel for defendants, to the effect that it is competent for the parties to provide in the mortgage for the payment of the rents and profits to the mortgagee, while the mortgagor remains in possession, we assent but that agreement is not found in the mortgage in this case. Stripped of parenthetical words and clauses, not necessary to the point in question, the default provision in the Mackey mortgage says: “It is agreed that if the mortgagor or the maker or makers of the obligation secured in this indenture shall fail to pay the principal or any interest as the same becomes due, * * * then all of the debt secured hereby shall become due and collectible * * * and this mortgage may be foreclosed for the full amount * * * and all rents and profits of said property shall then immediately accrue to the benefit of the said mortgagee; and that a receiver may be appointed to collect the rents, issues and profits pending the foreclosure suit and until the time for redemption expires.”
We hold that, under a plain construction of that language, .taken at its ordinary meaning, it means that, upon default in payment of principal or interest, when due, foreclosure proceedings may be instituted and then the rents and profits shall accrue to the mortgagee and a receiver may be appointed to collect the rents, issues and profits pending the foreclosure suit. Pending the foreclosure suit undoubtedly means while the suit is pending; after its institution. Taken together, undoubtedly the words of the default provision mean that the rents and profits shall accrue to the mortgagee only after suit is brought and the mortgagee may have appointed a receiver to collect the same while the suit is pending and during the further period of redemption. The word “issues,” injected into the latter part of the provision, means nothing more than is denoted by “rents and profits.” To our minds, it is intended that a receiver must be appointed, to collect the rents and profits, if the mortgagee shall claim them. That was not done. This conversion took place November 19. Foreclosure suit was started October 13. When a decree was obtained, if at all, is not shown. There is nothing to show it was obtained before November 19 and we may not assume it was.
Counsel for defendants cite a number of authorities in support of their contentions. We have examined all of them and we do not consider any of them applicable. One of the chief cases upon which counsel rely is that of In re Jarmulowsky, 224 Fed. 141. The mortgage in that case was not the same as in this case. In that case, the mortgage provided that, upon default in payment of principal or interest, the mortgagee would have the right to enter upon and take possession of the premises and to let the same and to receive the rents, issues and profits thereof, “hereby assigned to the mortgagee.” No such sweeping provision is in the Mackey mortgage; no provision for entering or taking possession of the premises or letting the same; no assignment of the rents, issues and profits. In re Israelson, 230 Fed. 1000, cited by .counsel, is a case in which the mortgage contained the same provisions as did that in the case last mentioned. Other cases cited by counsel we deem equally inapplicable.
"We hold that the trial court did not err in rendering its judgment. The judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Stark, Matthews and Galen concur.
|
[
11,
-10,
41,
-7,
-36,
-29,
46,
-19,
18,
-19,
4,
-14,
45,
2,
-4,
-6,
2,
-40,
23,
27,
61,
-44,
-58,
3,
-11,
-26,
4,
-59,
6,
42,
8,
0,
-2,
-4,
-53,
1,
-25,
-22,
32,
-37,
8,
-35,
20,
-4,
12,
51,
29,
-75,
41,
-18,
2,
-50,
38,
31,
4,
18,
-6,
46,
-75,
30,
49,
-9,
49,
-19,
50,
18,
4,
-23,
0,
-7,
19,
-44,
-8,
-30,
33,
-62,
-34,
-15,
-35,
-56,
-28,
-4,
56,
-22,
-34,
5,
21,
-35,
-13,
19,
-41,
9,
35,
-7,
7,
25,
-33,
24,
-8,
11,
38,
-43,
-54,
6,
71,
22,
-21,
4,
0,
42,
-5,
44,
18,
23,
-16,
15,
-43,
20,
-9,
-10,
-50,
-15,
-30,
-42,
-2,
11,
-42,
30,
15,
35,
63,
23,
-13,
16,
-27,
-38,
18,
-60,
-25,
-14,
-11,
-14,
-66,
-7,
13,
-6,
-33,
-43,
8,
-50,
7,
-2,
-9,
-22,
16,
-28,
-7,
15,
17,
-61,
31,
-49,
24,
56,
-3,
48,
-28,
-9,
12,
9,
3,
-35,
-53,
10,
10,
0,
22,
-27,
-40,
0,
-44,
-12,
8,
-20,
-42,
2,
5,
15,
40,
9,
16,
-22,
-17,
-13,
-65,
-4,
-7,
-36,
36,
8,
18,
11,
36,
-22,
-4,
-7,
31,
-3,
2,
2,
-7,
-47,
2,
-14,
-25,
26,
-14,
7,
1,
0,
40,
-16,
-2,
-1,
37,
-21,
-4,
13,
49,
-25,
-76,
-39,
26,
57,
-40,
46,
17,
16,
6,
-2,
-19,
12,
11,
-73,
-4,
19,
18,
19,
-12,
25,
-12,
-20,
16,
11,
13,
9,
-25,
66,
-15,
-63,
60,
16,
-15,
46,
-14,
-12,
-34,
-16,
23,
21,
21,
-37,
57,
-15,
-4,
-24,
-21,
-6,
30,
11,
6,
-4,
8,
33,
26,
0,
13,
-5,
-52,
4,
36,
-49,
15,
-29,
40,
16,
-72,
4,
13,
23,
-14,
0,
-23,
8,
28,
14,
-60,
-4,
-10,
-3,
20,
2,
18,
-46,
46,
-26,
31,
6,
24,
-39,
-13,
24,
-7,
16,
44,
8,
7,
-22,
-13,
38,
7,
-16,
15,
28,
-18,
-26,
27,
26,
19,
-12,
11,
57,
1,
-1,
-3,
28,
5,
3,
0,
-12,
-15,
-13,
-28,
7,
-15,
25,
43,
62,
26,
-4,
45,
-12,
23,
18,
-33,
25,
-32,
-57,
-62,
17,
0,
52,
-26,
-30,
8,
-13,
0,
-7,
-12,
12,
59,
-33,
18,
19,
38,
-9,
-2,
-10,
-22,
2,
-25,
19,
52,
45,
-32,
14,
21,
-27,
-21,
-32,
-25,
41,
-31,
-40,
-6,
17,
-28,
0,
-2,
-38,
22,
-5,
22,
-2,
4,
8,
23,
-18,
13,
29,
10,
3,
24,
0,
16,
1,
34,
-13,
-100,
-16,
-22,
39,
-47,
0,
12,
-6,
11,
17,
20,
44,
-3,
67,
-1,
4,
-22,
59,
-10,
25,
58,
10,
3,
-40,
7,
20,
-10,
43,
84,
-29,
10,
-36,
10,
-19,
21,
4,
-35,
-29,
32,
-21,
44,
8,
9,
44,
43,
5,
43,
39,
10,
-12,
-53,
24,
1,
-7,
40,
24,
-45,
-20,
-37,
20,
17,
46,
35,
17,
1,
12,
-41,
-32,
31,
-29,
8,
-36,
-13,
-38,
4,
-56,
-17,
-8,
13,
-29,
39,
58,
26,
-14,
38,
22,
10,
-18,
-20,
14,
26,
60,
-33,
-23,
-40,
11,
-9,
-7,
14,
7,
29,
-32,
-64,
-2,
-65,
-27,
-17,
-59,
23,
1,
8,
-69,
-6,
-38,
6,
9,
-86,
23,
20,
-28,
-1,
-3,
6,
-34,
17,
53,
0,
-18,
-41,
-28,
-17,
9,
-3,
22,
-32,
0,
3,
-16,
13,
-45,
28,
6,
23,
2,
-1,
14,
23,
-44,
2,
-34,
11,
-5,
23,
4,
-17,
-77,
-64,
63,
0,
24,
-43,
0,
27,
6,
10,
-26,
4,
-14,
-19,
-18,
-37,
29,
-17,
-12,
-14,
-12,
-48,
-12,
1,
2,
18,
37,
-16,
-10,
7,
18,
36,
-1,
-6,
-35,
-14,
-40,
27,
13,
-18,
-36,
13,
-22,
-51,
-23,
0,
57,
0,
-52,
-8,
21,
-40,
10,
-17,
28,
-30,
-64,
-1,
-12,
20,
12,
13,
4,
39,
0,
-22,
-50,
-19,
7,
1,
25,
-46,
-49,
37,
12,
-36,
-16,
43,
17,
-9,
-5,
14,
-43,
45,
29,
6,
27,
45,
-63,
15,
14,
56,
-24,
28,
57,
49,
-26,
-7,
-62,
-1,
50,
-31,
-12,
-42,
9,
0,
-7,
1,
-46,
-17,
-6,
0,
17,
51,
-14,
15,
-20,
-6,
9,
8,
-24,
-27,
26,
-19,
-28,
-31,
-26,
58,
-3,
-25,
-23,
0,
-18,
28,
-23,
-11,
-22,
11,
-23,
2,
-56,
0,
9,
3,
22,
1,
35,
11,
0,
-6,
45,
-44,
33,
23,
-17,
30,
3,
3,
29,
-3,
36,
-25,
-32,
18,
29,
12,
35,
37,
5,
8,
11,
-1,
-37,
-53,
81,
-31,
-15,
22,
7,
-64,
-28,
-17,
37,
39,
-46,
-26,
-10,
-24,
23,
-8,
42,
-11,
27,
24,
48,
1,
3,
-18,
26,
-39,
-45,
-14,
-10,
50,
51,
62,
29,
-50,
7,
11,
-17,
-48,
22,
11,
16,
0,
-29,
13,
-6,
19,
-7,
16,
16,
19,
-5,
43,
12,
-26,
-40,
27,
-16,
5,
28,
-38,
-47,
-36,
24,
-16,
-14,
19,
1,
2,
-11,
14,
45,
1,
0,
-35,
-44,
-22,
31,
-24,
51,
15,
-21,
-62,
28,
-2,
-4,
-9,
10,
6,
35,
11,
11,
-15,
-21,
-2,
-36,
11,
29,
-37,
-26,
4,
-24,
48,
17,
25,
9,
-54,
25,
50,
-3,
48,
-24,
-25,
11,
-24,
52,
-7,
-2,
-1,
10,
32,
-45,
72,
-9,
-24,
74,
-23,
17,
10,
37,
8,
2,
-2,
-1,
-6,
-1,
-79,
44,
-9,
-36,
-45,
-27,
29,
-26,
-9,
-63,
-20,
-21,
22,
8,
-2,
50,
1,
34,
60,
-30,
-63,
-19,
-64,
72,
4,
-39,
-27,
-36,
39,
-13,
-53,
17,
45,
-23,
-14,
41,
-35,
75,
4,
-3,
7,
-8,
31,
7,
-1,
-20,
-14,
-25,
-17,
1,
46,
24,
-38,
-29,
-15,
-35,
31,
0,
15,
54,
5,
62,
19,
-32,
-29,
-27,
-4,
23,
-59,
6,
-18,
-57,
50,
-16,
0,
6,
26,
-49,
33,
13,
19,
-2,
37,
-17,
60,
9,
4,
-24,
5,
-18,
-74,
63,
6,
-29,
10,
-21,
-66,
19,
53,
17,
16,
17,
20,
16,
52,
32,
-24,
-79,
-28,
44,
-10,
26,
-25,
-9,
-14,
51,
16,
23,
-16,
29,
0,
17,
-11,
33,
-10,
11,
-8,
-7,
-25,
34,
-23,
2
] |
MR. JUSTICE MYERS
delivered the opinion of the court.
This is an action to enjoin the allowance of a salary claim for services rendered the state.
Grant Reed is and, at the time of the commencement of this action, was a representative in the Montana legislature. His term of office as representative will expire, at noon, the first Monday in January, 1929. By appointment of the Board of Railroad Commissioners of Montana, made while he was a representative in the legislature, Reed is and, at the time of the commencement of this action, was holding a position designated as auditor for the Board of Railroad Commissioners and its ex-officio commissions, at a salary, fixed by the board, of $225 per month, which he is and has been and, at the time of the commencement of this action, was drawing from the state of Montana, for his services as such auditor; except that he did not fill such position of auditor or draw the salary thereof while sitting and serving as a representative during the recent session of the legislature but resumed his position of auditor at the end thereof.
The complaint alleges the facts in relation to the foregoing statement. It further alleges that relator is a resident, citizen and taxpayer of Lewis and Clark county and brings the action in behalf of himself and other taxpayers; that the appointment of Reed as auditor was void under section 7 of Article Y of the Constitution of Montana and, also, under Artele IY of the Constitution; that ever since Reed’s appointment as auditor, except during the recent session of the legislature, defendants, as and constituting the State Board of Examiners, have allowed his salary of $225 per month as auditor and they threaten to continue so to do and will continue so to do, unless therefrom enjoined by the court. The comulaint prays that, during the remainder of Reed’s legislative term, defendants be enjoined from approving, for payment to him, as such auditor, any claim of compensation.
To the complaint defendants interposed a general demurrer. The demurrer was sustained and plaintiff declined to amend or plead further. Whereupon, judgment was rendered against plaintiff. Plaintiff appealed and assigns as error the rulings of the trial court in sustaining the demurrer, rendering judgment against plaintiff and" dismissing the action. The issue on appeal is': Was Reed’s appointment as auditor violative of the state Constitution?
Section 7 of Article V of the Constitution is as follows: “No senator or representative shall, during the term for which he shall have been elected, be appointed to any civil office under the state; and no member of Congress, or other person holding an office (except notary public or in the militia) under the United States or this state, shall be a member of either house during his continuance .in office.”
Article IV of the Constitution is as follows: “The powers of the government of this state are divided into three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.”
The only question for us to decide is — is the position of auditor, held by Grant Reed, a civil office (?); for, if it be a civil office, he is holding it unlawfully; and, if it be not a civil office, he is not an officer but only an employee, subject to the direction of others, and has no power in connection with -his position and is not exercising any powers belonging to the executive or judicial department of the state government. In the latter event, Article IV of the Constitution is not involved. What, then, is a civil office?
In one form or another, the Constitutions of all of the states, we believe, contain substantially the same inhibition as that involved in this case. In many of them the words “civil office” are used. There are a number of judicial decisions defining “civil office.”
“A civil office has the characteristics of tenure; of definite term; of general duties as a part of the regular administration of the government; of right to emoluments; and of qualification by oath.” (State ex rel. Cummings v. Crawford, 17 R. I. 292, 21 Atl. 546.)
“The words ‘civil office under the state’ * * * import an office in which is reposed some portion of the sovereign power of the state.” (Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169.)
“A civil office is a grant and possession of the sovereign power; and the exercise of such power, within the limits prescribed by the law which creates the office, constitutes the discharge of the duties of the office; and it is distinguished in this respect from a mere employment.” (State ex rel. Attorney General v. Valle, 41 Mo. 29.)
In United States v. Hatch, 1 Pinn. (Wis.) 182, the term “civil officers” is said to embrace only those in whom a portion of the sovereignty is vested or to whom the enforcement of municipal regulations for the control of the general interest of society is confided.
In South Carolina, it has been held that the words “civil officers” simply mean and are synonymous with public officers who hold offices of a civil nature. (The State v. O’Driscoll, 3 Brev. (S. C.) 526.)
In Nevada, it has been held substantially to the same effect, i. e., that civil offices mean all public offices not of a military character. (State ex rel. Summerfield v. Clarke, 21 Nev. 333, 37 Am. St. Rep. 517, 18 L. R. A. 313, 31 Pac. 545.)
We hold, likewise, that the words “civil office” in our Constitution mean any public office not of a military character. It is the obvious meaning. What, then, is a public office?
In some states the decisions simply assume that civil offices áre public offices of a civil nature and proceed to decide what is a public office. In other states the Constitutions use the words “public office.” Hence, judicial definitions of office or public office are much more numerous than are decisions confined to defining civil office.
There are a great many judicial decisions defining the word “office” or the words “public office.” The subject is an old one and decisions extend far back. Some of the decisions stress one test; others, some other. However, in nearly all are found certain common features that stand out prominently. To quote from all examined would extend this opinion much beyond rea sonable length. However, we shall quote here from some decisions and definitions which illustrate, to some extent, the various essentials of public office, emphasized by the courts and other authorities, and which state some of the things that have been held requisite.
“An ‘office’ is defined by good authority as involving a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public, by which it is distinguished from employment. ” (State ex rel. Barnhill v. Thompson, 122 N. C. 493, 29 S. E. 720.)
“It embraces the ideas of tenure, duration, emoluments and duties and these ideas or elements cannot be separated and each considered abstractly. All, taken together, constitute the office.” (Kendall v. Raybould, 13 Utah, 226, 44 Pac. 1034.)
“There must be some fixed term prescribed for his continuance in office; he must give a bond and take an oath faithfully to discharge the duties of his office; a commission must issue, investing him with authority to enter upon the office.” (Lindsey v. Attorney General, 33 Miss. 508.)
“Where the legislature creates the position, prescribes the duties and fixes the compensation and these duties pertain to the public and are continuing and permanent, not occasional or temporary, such position or employment is an office.” (Patton v. Board of Health, 127 Cal. 388, 78 Am. St. Rep. 66, 59 Pac. 702.)
“Where the officer exercises important public duties and has delegated to him some of the functions of government and his office is for a fixed term and the powers, duties and emoluments become vested in a successor when the office becomes vacant, such an official may properly be called a public officer.” (Richie v. Philadelphia, 225 Pa. 511, 26 L. R. A. (n. s.) 289, 74 Atl. 430.)
“His duties must not be merely clerical or those only of an agent or servant but must be performed in the execution or administration of the law, in the exercise of power and authority bestowed by law.” (Attorney General v. Tillinghast, 203 Mass. 539, 17 Ann. Cas. 449, 89 N. E. 1058, 1060.)
“An individual who has been appointed or elected in a manner prescribed by law and exercises functions concerning the public, assigned to him by law, must be regarded as a public officer.” (Bradford v. Justices of Inferior Court, 33 Ga. 332.)
“The most general distinction of a public office is that it embraces the performance, by the incumbent, of a public function, delegated to him as a part of the sovereignty of the state.” (State v. Jennings, 57 Ohio, 415, 63 Am. St. Rep. 723, 49 N. E. 404.)
“Every office under the Constitution implies an authority to exercise some portion of the sovereign power of the state, either in making, executing or administering the laws.” (Olmstead v. Mayor, 42 N. Y. Super. Ct. 481.)
“The idea of an officer clearly embraces the idea of tenure, duration, fees or emoluments, rights and powers, as well as that of duty.” (Burrill’s Law Dictionary.)
“The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involve a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.” (Mechem on Public Offices, par. 4.)
“An office * * ° may be defined as a public position, to which a portion of the sovereignty of the country, either legislative, executive or judicial, attaches, for the time being, and which is exercised for the benefit of the public.” (High on Extra. Rem., par. 625.)
Many more definitions to like effect might be quoted. From the foregoing and many other authorities examined, it ap pears that various elements are considered requisite to a public office. Some decisions hold that the taking of an official oath is necessary to constitute a position an office; others hold that the giving of an official bond is necessary; still others hold that the issuance of a commission or certificate of appointment is necessary; some decisions hold all three requisite. The Constitution (Art. XIX, sec. 1) and statutes (sec. 430, Rev. Codes, 1921) of Montana provide that all officers must take and subscribe an oath or affirmation and, the statutes say, file it. (Sec. 431, Rev. Codes, 1921.) The statutes provide for the issuance to all officers of commissions or written evidence of appointment. (Secs. 426-429, Rev. Codes, 1921.) The record does not disclose that either of these things was done in the ease of Grant Beed, in connection with his appointment as auditor. We may not presume they were done. In order to do that, we would first have to presume he is an officer and we may not presume he is an officer, — it must be shown, therefore, we may not presume anything was done by him or for him as an officer. It must appear in the record. (Trainor v. Board of County Auditors, 89 Mich. 162, 15 L. R. A. 95, 50 N. W. 809; State v. Cole, 38 Nev. 215, 148 Pac. 551; Commonwealth ex rel. Bache v. Binns, 17 Serg. & R. - Pa.- 219; State ex rel. Walker v. Bus, 135 Mo. 325, 33 L. R. A. 616, 36 S. W. 636; Mayor v. Lyman, 92 Md. 591, 84 Am. St. Rep. 524, 52 L. R. A. 406, 48 Atl. 145.)
Some decisions hold that, in an office, there must be tenure, duration, a definite term of service; others, that the character of the service does much to determine if a position is an office. Not all'employment constitutes an office and, the employee an officer. (Farley v. Board of Education, 62 Okl. 181, 162 Pac. 797; United States v. Maurice, 2 Brock. 102, Fed. Cas. No. 15,747.)
Practically all of the authorities, however, hold that to an officer are granted some of the sovereign powers of the government, to be exercised for the benefit of the public. They hold, also, quite generally that an officer’s duties must be prescribed by law and that he must be independent in the exercise of them and not subject to orders from a superior as to the nature or discharge of his duties, with the exception of some assistants, such as assistant' attorneys general, secretaries, and the like, created by law, with salaries fixed by law. Some authorities hold deputies to be officers; others, not. Those two rules, stated above, delegation of sovereign power and independent exercise of it, with the stated exception in the latter, appear to be general.
In accordance therewith, in Robertson v. Ellis County, 38 Tex. Civ. App. 146, 84 S. W. 1097, it is stated that a statute creating the position of court stenographer called the incumbent an officer of the court but it is held that the incumbent was not an officer because no sovereign functions of government devolved upon him; in other words, his duties were merely routine and subject to the direction of the judge of the court. On the other hand a prison guard whose duties were described by statute, so that he was independent in the discharge thereof, has been held to be a public officer. (Page v. O’Sullivan, 159 Ky. 703, 169 S. W. 542.)
“The powers of all officers are defined and conferred by law.” (Georgia Penitentiary Co. No. 2 v. Gordon, 85 Ga. 159, 11 S. E. 584.)
“It also appears from an examination of the charter that all the executive power relating to educational matters is vested in a department known as the ‘Department of Education’ and this department is composed of the Board of School Commissioners. The superintendent of public instruction exercises no power except what is derived from and through this board.” (Mayor v. Lyman, supra.) He was held, therefore, not to be an officer.
‘ ‘ The act in question makes it incumbent upon the legislature to fix compensation of all officers and, as this term, ‘officers,’ is used in the Constitution, we are satisfied that deputies, assistants, bookkeepers, clerks and other employees are not officers. * * * The officer in question is the individual who tabes the oath of office and is responsible for his official acts, as well as those of his various employees.” (Theobald v. State ex rel. Hall, 20 Ohio Cir. Dec. 414.)
“The term ‘office’ implies a delegation of a portion of the sovereign power and the possession of it by the person filling the office. This definition carries with it ex vi termini the further idea that the power delegated must be exercised by the person in his own and not in another’s right.” (State ex rel. Brown v. Christman, 126 Miss. 358, 88 South. 881.)
“The duties of an officer are fixed by law and an employment arising out of a contract, whereby the person employed acts under the direction or control of others and which employment depends for its duration and extent upon the terms of such contract, is not an office. * * * While an officer may be appointed by constituted authority, yet, in the discharge of his duties, he knows no guide but the established law and cannot be lawfully directed by others in the conduct of his office.” (Farley v. Board of Education, supra.)
Darley v. Reg., 12 Clark & F. (Eng.) 520, is an English case of long standing, much quoted and relied upon in this country, which holds to the same effect.
A leading case in point is that of People ex rel. Throop v. Langdon, 40 Mich. 673, in which that eminent jurist, Judge Cooley, speaking for the court, said: “The officer is distinguished from the employee in the greater importance, dignity and independence of his position; in being required to take an official oath and, perhaps, to give an official bond; in the liability to be called to account as a public offender and for misfeasance or nonfeasance in office and, usually, though not necessarily, in the tenure of his position. In this case, the facts are stipulated. We find among them no evidence that an office known as chief clerk in the office of the assessor has been created. A person has been appointed and has acted under the designation of chief clerk but no statute or ordinance has given him that title and, if he were now to be called and to style himself, in the discharge of his duties, head clerk or leading clerk or assistant to the assessor or assessor’s amanuensis, it would, for aught we can discover, be equally well, for nothing whatever depends upon the name. * * * Nor do we find in the facts stipulated or in any law or ordinance the requirement of an official oath. It is said that the usual oath of office has, sometimes and perhaps always, been administered but why administered we do not understand. The fact of it being taken cannot prove that the clerk is an officer. * * ® It was, we think, a needless ceremony. Nor do the duties usually performed by the chief clerk indicate an office, rather than an employment. Nothing but custom has defined them. * * * He is wholly subordinate to the assessor, having no independent functions. * * The duties, such as they are, can be changed at the will of the superior, since no rule of law or well defined custom forbids it.” The chief clerk was held to be only an employee, not an officer.
An early case in this country is that of In re Opinion of Judges, 3 Greenl. (Me.) 481. The legislature empowered the governor to appoint an agent for the preservation of timber on the public lands and he did so. Of the agent the court said: “He is to be clothed with no powers but those of superintending the public lands and performing certain acts in relation to them, under the discretionary -regulations of the governor.” He was held to be merely an employee of the state, not an officer.
A case much in point is State v. Spaulding, 102 Iowa, 639, 72 N. W. 288. The Commissioners of Pharmacy of the state of Iowa, constituting a commission created by law and having the custody of considerable funds, chose a treasurer of the commission, a position undefined and unregulated by law, as in the ease at bar. His only duties were those placed upon him by the commission and he held the position at the will of the commission, as in the case at bar. The court said: “A position, the duties of which can be changed at the will of the superior, * * * is not an office but a mere employment and the incumbent is not an officer but a mere employee.” The treasurer was held to be only an employee, not an officer.
An outstanding ease, much in point, is Olmstead v. Mayor, supra (New York). The department of public parks was a department of the state government of. New York. It was conducted by officials known as Commissioners of Public Parks. The department appointed Olmstead to a position, known as landscape architect, in the department, at a salary of $6,000 per year, and he served therein a number of years. Of him the court said: “The plaintiff * * * had no term or tenure of office, discharged no duties and exercised no powers depending directly upon the authority of law. He was simply the servant of the commissioners of the park and responsible only to them. His responsibility was'limited to them. * * * The distinction is plainly taken between a person acting as a servant or employee, who does not discharge independent duties but acts by direction of others, and an officer empowered to act in the discharge of a duty or trust, under obligations imposed by the sanctions and restraints of legal authority in official life.” Olmstead was held to be only an employee, not a public officer. That case cites many cases in support of the position taken and it has been followed by a number of New York cases, citing it and holding to the same effect.
A completely analogous case, in which the subject is exhaustively treated and a vast number of cases are cited in support of the court’s decision, is that of State v. Cole, 38 Nev. 215, 148 Pac. 551. The Nevada legislature enacted an Act providing for exhibits at the San Diego and San Francisco expositions. It provided for the appointment of an exposition commissioner. It created a Board of Exposition Directors and empowered the board to employ superintendents, directors clerks and other persons, upon such terms as might be deemed just and equitable. Money was appropriated for such purpose. The board employed Cole as a superintendent (note, particularly, one of such as the Board was empowered to employ and designated by name in the Act) and fixed his salary at $300 per month. At the time, Cole was a state senator. The Nevada Constitution has the same inhibition against appointment of legislators to office as has ours, except that in the Nevada Constitution the words used are “any civil office of profit,” merely adding to our inhibition the words “of profit.” The court held Cole was not filling an office. It said: “None of the sovereign power of the state is entrusted to him. ' His compensation, period of employment and the details of his duties are all matters of contract with the Board of Directors.” It would be hard, we think, to find two cases more analogous on principle than that case and the case at bar.
Other eases to the same effect and to quote from which we cannot afford the space are: State ex rel. Attorney General v. Brennan, 49 Ohio, 33, 29 N. E. 593; Hall v. Wisconsin, 103 U. S. 5, 26 L. Ed. 302; McArthur v. Nelson, 81 Ky. 67; Rhodes v. Johnston, 121 Ark. 317, 181 S. W. 128; State v. Brethauer, 83 Conn. 143, 75 Atl. 705; Fergus v. Russell, 270 Ill. 304, Ann. Cas. 1916B, 1120, 110 N. E. 130; Eliason v. Coleman, 86 N. C. 241; Jones v. Botkin, 92 Kan. 242, 139 Pac. 1196; McAvoy v. Trenton, 82 N. J. L. 101, 80 Atl. 950; State v. Hocker, 39 Fla. 477, 63 Am. St. Rep. 174, 22 South. 721; Commonwealth v. Bush, 131 Ky. 384, 115 S. W. 249; Worcester v. Goldsborough, 90 Md. 193, 44 Atl. 1055. Many other supporting cases are available. This list could be greatly extended but it is not necessary to cite more.
Applying to the case at bar the doctrines of the foregoing cases quoted from, what do we find? Do we find Reed’s position a delegation of the power of sovereignty and his services the exercise thereof? Are his duties prescribed by law? Are they fixed and definite? In the discharge thereof, is he independent of any superior will or power, save that of the law ? Has he any of the attributes of an officer? Does he fill an office? If so, who created the office? We must turn to the record for enlightenment.
We are not informed if he took an oath of office and, sharing the views of Judge Cooley, above quoted, we hold it is not decisive if he did. Taking an official oath cannot make a position an office; although an office cannot be held legally in this state without the taking of the oath; but we look for other tests.
There is but one section of the Montana Codes authorizing the Board of Railroad Commissioners to employ anyone. It is section 3783, Revised Codes, 1921, and is as follows: “The board shall, immediately after its members have qualified, organize by electing one of its members as chairman and shall appoint a secretary, who shall possess the same qualifications as members of said board, to serve during the pleasure of the board. Said board shall also have the power to appoint stenographers, inspectors, experts and other persons whenever deemed expedient or necessary by said board to the proper performance of its duties.”
After the Board of Railroad Commissioners had been in existence for some time, it was made, by law, ex officio the Public Service Commission of Montana. There is but one section of the Montana Codes authorizing that body to employ anyone. It is section 3896, Revised Codes, 1921, and is as follows: “The commission is authorized to employ an engineer at a salary of four thousand dollars per annum, also examiners, experts, clerks, accountants or other assistants as it may deem necessary, at such rates of compensation as it may determine upon; and it is further provided that the secretary of the public service commission shall receive an annual salary of six hundred dollars, such salary to be in addition to the salary now provided by law to be paid to the secretary of the board of railroad commissioners of the state of Montana.”
The Board of Railroad Commissioners has also been made, by law, ex officio the Montana Trade Commission. There is but one section of the Montana Codes authorizing the last named body to employ anyone. It is section 3983, Revised Codes, 1921, and is as. follows: ‘' The commission is authorized to employ an accountant, at a salary of not to exceed three thousand dollars per annum, also examiners, experts, clerks and accountants or other assistants, as it may deem necessary, at such rates of compensation as may be determined upon.”
There is no provision in any of the foregoing sections for employment of an auditor but we do not consider that particularly material. It is what Reed does, not what he is called, that counts. “The character of an office cannot be attached to a position by a name merely; whether it be an office or not will depend upon the nature and character of the duties attached to it by law. ” (State v. Jennings, supra.) The record sheds no light on the nature of Reed’s duties. There is no showing that they are fixed by law or that they are made definite and regular even by the Board of Railroad Commissioners or one of the ex officio commissions. We are left to surmise. An auditor not being specifically mentioned in any of the foregoing sections, we assume Reed was employed under the provision, found in those sections, for “other assistants,” or “other persons.” He is called an auditor. We may surmise, and can only surmise, he does the work of an auditor; but, if so, it is merely clerical work and we cannot see that it involves any administrative, executive or judicial power, such as must come from delegation of power of sovereignty. (Attorney General v. Tillinghast, supra.)
However, be his duties what they may, they are subject absolutely to the control of the board; so there is no certainty, nothing fixed or definite, about them. The complaint says he discharges them “under the directions and orders of said board.” The board can change them as it may see fit. The board can tell him, any time, his sole duty is to do the work of a janitor or a messenger. If he should not be pleased, in such event, his only recourse would be to quit. The board can put him to bookkeeping; if a stenographer, at stenographic work. The board can do with him as it will. As an employee, he is the creature of the board; it can discharge him or abolish his position, any day, without cause or previous notice. The complaint says he receives a salary “at the pleasure of the board.” The complaint says the board “fixed the salary”; then, of course, the board can reduce it or stop it. Do those conditions show in Reed the possession of a part of the sovereign power of the state? "We cannot see it.
If Reed holds an office, who created the office? “An office does not spring into existence, spontaneously. It is brought into existence either under the terms of the Constitution, by legislative enactment or by some municipal body, pursuant to authority delegated to it.” (State v. Cole, supra.) In the complaint, no authority for creation of an office is shown nor is it shown that one was created. An office must be created before it can be filled. (White v. City of Alameda, 124 Cal. 95, 56 Pac. 795.) Neither the Constitution nor the legislature of Montana has created any such office as auditor of the Board of Railroad Commissioners or of any of its ex-officio commissions. The board of railroad commissioners manifestly created the position held by Reed. It can create positions but it cannot create an office. Reed was employed by the board but that falls far short of creation of an office. “When a position is created, not by force of law but by contract of employment, the employment does not rise to the dignity of an office.” (Martin v. United States, 168 Fed. 198, 93 C. C. A. 484.) We see in Reed’s position nothing but employment; the record shows nothing more.
Counsel for plaintiff urges we should extend the language of the Constitution so as to include in the inhibition employment of members of the legislature, as well as appointment to civil office; but we may not extend the language of the Constitution. That is beyond our legitimate power. (State v. Cole, supra.) Formerly, the Constitution of California, in a similar inhibition, used the words ‘‘any civil office of profit.’’ Not satisfied with that, the people of California, apparently to render impossible such a condition as that presented in the case at bar, amended their Constitution so as to change those words to “any office, trust or employment.” (Chenoweth v. Chambers, 33 Cal. App. 104, 164 Pac. 428.) The change may be wholesome. The people of Montana can do likewise, and may when they shall so wish, bnt we may not do it for them.
There are a few isolated cases which, at first glance and until analyzed, appear to lend some color to plaintiff’s contention, but the only case we have found which is well in point and favorable to plaintiff is that of Vaughn v. English, 8 Cal. 40. In that case the California court, in an opinion of less than one page; citing as authority only one definition of a very general nature, held a clerk in the office of the secretary of state to be an officer. However, the opinion was based on an Act of the legislature to fix- the salaries of state officers, in which the clerk in the office of the secretary of state was specifically named and his salary fixed; thus including him in the term “officers.” Of course, the court could do nothing else than hold that the statute applied to him. It then indulged in some obiter when it said: “The term ‘officer,’ in its common acceptation, is sufficiently comprehensive to include all persons in any public station or employment conferred by government”; a very broad statement, which would include every clerk and janitor and every employee of any nature. However, that obiter has been modified repeatedly in McDaniel v. Yuba County, 14 Cal. 144; White v. City of Alameda, 124 Cal. 95, 56 Pac. 795; Patton v. Board of Health, 127 Cal. 388, 78 Am. St. Rep. 66, 59 Pac. 702; and in Spreckels v. Graham, 194 Cal. 516, 228 Pac. 1040, it is expressly repudiated. Hence, Vaughn v. English, supra, is not authority.
In Lacey v. State, 13 Ala. App. 212, 68 South. 706, a certain clerk in a department of the state government was held to be an officer but the position held by him had been created, specifically and by name, by an Act of the legislature, which defined the duties of the incumbent and fixed his salary. The court said: “The incumbent derives his authority directly from the state, by legislative enactment, and the duties imposed by the enactment are of a public character and the terms and compensation are definitely fixed.” It will be found generally that clerks and others employed in subordinate positions, if held to be officers, fill positions created by the legislature and the duties and emoluments of which are fixed by legislative enactment. It is not so in the case at bar.
The term “officer” or the term “office” does not appear to have been defined heretofore by this court nor is there, in this state, any statutory general definition of either. Apparently there are only two Montana cases bearing upon the question of whether or not certain public servants are officers. In State ex rel. Driffill v. City of Anaconda, 41 Mont. 577, 111 Pac. 345, it is held that, under a statute, “firemen are servants or employees of the city but are not officers.” In State ex rel. Quintin v. Edwards, 38 Mont. 250, 99 Pac. 940, it is held that a policeman is a “public officer,” in the sense that, by provision of municipal ordinances, as well as of statute, he has to perform certain prescribed, definite duties to the public, but that he is not a state officer nor a municipal officer. Other than those eases, we find nothing, bearing on the subject, in the decisions of this court.
With the policy of making such appointments as that here involved we have nothing to do. That belongs to another department of the state government. We are only to decide the law and we must declare it as we find it. After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity and not be only temporary or occasional. In addition, in this state, an officer must take and file an official oath, hold a commission or other written authority and give an official bond, if the latter be required by proper authority.
In conclusion, we hold that Grant Reed does not hold a civil office under the state; that the position he holds does not possess a delegation of a portion of the sovereign power of government. In our opinion, he is only an employee; holding a position of employment, terminable at the pleasure of the employing power, the Board of Railroad Commissioners. We hold his appointment not violative of section 7 of Article Y of the Constitution. That being the case, he has, in himself, by virtue of his appointment, no powers properly belonging to the judicial or executive department of the state government, for he is wholly subject to the power of the board, and, having no powers, he can exercise none; and, therefore, his appointment was not violative of Article IY of the Constitution.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Stark, Matthews and Galen concur.
|
[
2,
-23,
-34,
-16,
7,
13,
6,
-31,
-17,
33,
17,
7,
67,
-14,
17,
-24,
-55,
-25,
6,
-7,
-30,
9,
-37,
-15,
-4,
0,
-18,
1,
-53,
-23,
6,
23,
-13,
16,
30,
-23,
-51,
26,
13,
-8,
53,
14,
-25,
2,
6,
-1,
15,
0,
15,
-42,
19,
21,
-6,
-6,
38,
-5,
26,
-47,
-62,
16,
-28,
-38,
4,
5,
37,
-49,
34,
21,
75,
-6,
-26,
39,
-21,
-24,
28,
-29,
-14,
-71,
-37,
9,
-41,
-27,
-38,
-40,
34,
3,
-15,
-11,
10,
64,
11,
-13,
35,
-23,
15,
4,
10,
22,
18,
13,
-26,
-54,
-84,
-5,
81,
-38,
-40,
21,
32,
16,
10,
32,
-26,
-43,
0,
8,
-76,
50,
-11,
-28,
32,
2,
-30,
62,
-52,
-23,
-25,
40,
-4,
23,
-6,
41,
-7,
20,
5,
33,
-36,
-30,
-45,
-12,
19,
-5,
-28,
-18,
-27,
30,
24,
34,
1,
-34,
-37,
44,
62,
-1,
-5,
-33,
61,
-106,
96,
-28,
57,
5,
-70,
-28,
-15,
67,
-13,
-35,
26,
40,
-17,
8,
-60,
9,
35,
28,
-21,
-1,
0,
-23,
-49,
22,
20,
-65,
-6,
32,
53,
-15,
11,
-41,
7,
4,
20,
-15,
-48,
17,
14,
-26,
-7,
5,
29,
-55,
-11,
53,
-13,
31,
36,
-22,
17,
7,
9,
-3,
40,
-18,
6,
24,
-26,
-8,
1,
-46,
10,
-11,
5,
15,
-34,
-19,
-7,
25,
-1,
-10,
-40,
-6,
10,
0,
17,
-14,
-23,
-13,
21,
-36,
-59,
-53,
-14,
-39,
27,
-24,
-19,
-55,
-7,
15,
10,
7,
17,
27,
7,
-9,
27,
-3,
-18,
-40,
5,
25,
3,
0,
21,
-70,
13,
13,
69,
1,
43,
0,
62,
43,
-4,
-41,
8,
-43,
20,
17,
-17,
-20,
-78,
17,
0,
9,
-39,
-14,
22,
-13,
30,
-84,
4,
54,
20,
52,
25,
47,
48,
-13,
4,
-4,
-1,
20,
-3,
21,
-49,
40,
-7,
7,
9,
-16,
-37,
2,
64,
-34,
-2,
-24,
-5,
-42,
24,
3,
49,
-13,
-2,
19,
35,
0,
-81,
7,
36,
-29,
0,
20,
26,
-29,
69,
-8,
-3,
-63,
-8,
15,
10,
10,
-41,
11,
-6,
-34,
5,
26,
-8,
-19,
13,
54,
-11,
47,
25,
-57,
-31,
-5,
0,
42,
-26,
-24,
2,
-27,
-36,
-5,
7,
-20,
9,
29,
46,
-17,
27,
20,
-9,
6,
-55,
23,
-20,
47,
-13,
-20,
2,
42,
22,
5,
-24,
-17,
-6,
-1,
31,
62,
25,
5,
62,
1,
-19,
35,
0,
5,
45,
-14,
-20,
-22,
4,
37,
-46,
66,
26,
58,
-39,
-60,
46,
-2,
11,
16,
11,
55,
59,
0,
23,
-12,
28,
-67,
17,
43,
14,
-20,
-15,
-45,
3,
-44,
-27,
-12,
-14,
-31,
-60,
20,
24,
-7,
-12,
-16,
-25,
-2,
-2,
19,
0,
34,
-26,
14,
15,
47,
0,
12,
23,
-23,
29,
-39,
-8,
32,
20,
4,
18,
9,
26,
21,
13,
36,
-27,
13,
-3,
8,
-1,
19,
-18,
-45,
2,
2,
-22,
-66,
6,
24,
8,
-29,
50,
-43,
-29,
51,
30,
30,
3,
-18,
0,
43,
21,
-62,
3,
-35,
-2,
-6,
36,
-53,
-38,
-7,
-27,
-21,
-22,
13,
-3,
6,
42,
10,
-31,
19,
2,
-53,
9,
-11,
28,
61,
-28,
-15,
-8,
-6,
-21,
6,
68,
-20,
-7,
33,
0,
-36,
0,
-2,
18,
40,
-25,
-19,
39,
-18,
29,
51,
-7,
30,
16,
-13,
35,
12,
2,
-26,
-1,
-8,
-46,
43,
1,
-8,
32,
-17,
10,
3,
-36,
-36,
-14,
26,
-47,
-9,
34,
11,
-26,
15,
-7,
10,
36,
-23,
-15,
-41,
1,
17,
29,
-47,
0,
-32,
-33,
-34,
4,
33,
10,
17,
17,
-2,
-28,
33,
8,
21,
11,
5,
-10,
46,
-19,
31,
-19,
51,
22,
14,
-22,
8,
14,
26,
1,
25,
56,
9,
15,
30,
-46,
-24,
56,
-29,
35,
1,
37,
-50,
3,
-45,
-19,
-10,
-19,
-28,
-29,
-38,
-54,
-15,
-38,
2,
-1,
-12,
-7,
16,
15,
18,
11,
-25,
-16,
14,
40,
27,
24,
-17,
14,
31,
34,
-59,
-53,
41,
64,
-24,
-19,
-10,
41,
-17,
-9,
12,
-33,
24,
77,
26,
42,
25,
62,
-37,
44,
-23,
74,
-57,
-16,
-32,
-27,
14,
-28,
0,
44,
26,
-9,
-10,
16,
1,
-56,
34,
61,
35,
-27,
61,
-26,
19,
49,
-50,
-17,
-40,
-27,
-27,
-32,
17,
-14,
-16,
-12,
-37,
-7,
44,
1,
-33,
11,
2,
-34,
-15,
0,
0,
-13,
-29,
13,
-41,
-1,
15,
3,
-13,
7,
-9,
12,
-6,
7,
29,
-9,
-26,
-1,
12,
5,
10,
-1,
19,
16,
18,
4,
14,
-28,
34,
47,
4,
-29,
35,
13,
-5,
-11,
40,
-8,
18,
-58,
1,
21,
4,
30,
18,
-11,
50,
23,
-12,
-36,
21,
4,
-22,
22,
-6,
2,
-33,
50,
-9,
35,
17,
-12,
-6,
45,
-21,
-33,
19,
-25,
-17,
-1,
12,
-9,
-1,
-23,
0,
36,
-47,
-25,
34,
8,
-26,
-55,
25,
-5,
-20,
17,
48,
24,
-2,
4,
-3,
-20,
20,
-16,
-27,
4,
-5,
10,
-46,
-10,
27,
-35,
-51,
13,
0,
-1,
0,
18,
-25,
11,
-12,
-30,
29,
5,
40,
-42,
2,
71,
-33,
-36,
3,
-49,
10,
-2,
-33,
-38,
-2,
30,
20,
-23,
15,
-12,
39,
-46,
30,
-19,
6,
3,
32,
16,
-65,
14,
47,
-32,
64,
-10,
-2,
16,
-56,
27,
-31,
-25,
1,
0,
-37,
22,
-13,
-53,
-22,
43,
-9,
73,
-21,
-13,
17,
-2,
-41,
-5,
7,
13,
-26,
45,
61,
2,
-25,
-25,
32,
20,
-36,
-21,
-70,
19,
6,
-21,
-3,
23,
-27,
-13,
-36,
63,
-14,
-17,
66,
15,
-2,
-52,
-24,
-10,
16,
-20,
19,
68,
63,
35,
8,
-71,
20,
-2,
-29,
23,
-4,
-20,
39,
-36,
15,
-48,
13,
39,
7,
-12,
36,
17,
-28,
39,
-35,
1,
-3,
4,
33,
-39,
-54,
-41,
-44,
5,
6,
60,
51,
8,
-34,
-27,
33,
-16,
-12,
7,
-6,
20,
32,
-45,
-18,
-11,
-82,
-8,
-3,
-3,
-34,
-20,
11,
-35,
35,
-7,
-34,
-14,
-21,
29,
-9,
3,
19,
8,
-29,
20,
-30,
33,
5,
34,
66,
-22,
-21,
25,
-21,
-15,
-11,
21,
-56,
31,
-23,
-71,
-53,
22,
-12,
-25,
23,
7,
-15,
9,
7,
-8,
-50,
-33,
43,
-15,
47,
-38,
8,
20,
27,
-24,
-9
] |
MR. JUSTICE COOPER
delivered the opinion of the court.
This action was brought to recover from the defendant the Farmers’ Elevator & Milling Company damages for its failure to deliver to the Globe Construction Company a certificate of deposit on the Montana State Bank of Geraldine in the sum of $3,000. One J. B. Hogg was a member • of what was known as the “building committee” of the elevator company. The contract between the two companies provided for payments on stated occasions, as the work progressed. Among other things, it was provided therein that, when the construction should reach the point “when the cribbing for the elevator was up” to where the roof was to begin, the construction company, in the place of cash, should accept interest-bearing certificates of deposit of the Montana State Bank of Geraldine in payment of the second installment of $3,000. On October 10 the cribbing was completed to the point mentioned in accordance with the terms of the contract. On October 6, 1917, Mr. Napper and Mr. Hosch, president and secretary of the construction company, respectively, applied to the plaintiff bank for a loan of $3,000. For the purpose of assisting the construction company to procure the loan, J. B. Hogg, who, besides being’ a “member of the building committee” of the elevator company, was also cashier of the Montana State Bank of Geraldine, represented to the plaintiff bank that he was authorized to speak for the elevator company and stated to Mr. Reckard, the president of the bank, that the construction company had theretofore agreed with the elevator company that it would accept interest-bearing certificates of deposit on the Montana State Bank of Geraldine, instead of cash; that the construction company agreed that it would assign and deliver to plaintiff, as security for the loan, the certificates of deposit that were to be delivered to it as a second payment on the building contract. Upon assurance of Mr. Hogg that the certificates of deposit would be delivered to the bank by mail upon the following order and acceptance, the loan was made: “When the next payment of $3,000 is dne on our contract (which will be when the cribbing for the elevator is up), please issue the certificate of deposit payable to the American Bank & Trust Company of Great Falls, Montana, and charge same to our account. Globe Construction Company.” Indorsed thereon was the following: “Accepted Oct. 6, 1917. J. B. Hogg, Member of Building Committee.”
On December 12, 1917, a petition was filed by certain creditors of the construction company alleging that it was insolvent. On March 8, 1918, it was adjudged a bankrupt. In an agreement entered into on September 1, 1917, between the elevator and the construction companies there was this provision: “The contractor shall furnish a good and sufficient bond to the amount of fifty per cent of the contract price.! Said bond to be in force until all lien rights on the buildings or equipment have expired and the building has been found to be of good workmanship and free from defects. Said bond to be furnished before the second payment has been made on the building to protect the owners from any loss.” This bond was not given, nor was its exaction ever waived by the elevator company.
Upon the issues thus made, the case was tried by the court without a jury, its findings being that the plaintiff agreed to accept as security for the loan the certificates of deposit upon the representations made by Mr. Hogg, but for which the loan would not have been made; that the construction company used the proceeds of the loan upon different of its jobs, including the building of the elevator and mill, but what amount the testimony does not disclose; that demand for the certificate was made and delivery refused; that the cribbing was completed on October 10, 1917; that Hogg in the transaction was acting without any authority from the elevator company, and that October 6, 1917, the date of the acceptance by him of the order, Hogg told the president and secretary-treasurer of the elevator company of its signing and ac eeptance; that on November 12, 1917, the acceptance by Hogg of the order was discussed by the board of directors of the elevator company, by the president of the plaintiff and its attorney, John McKenzie, Sr., who then and there demanded payment of plaintiff’s claim, and the board “neither paid the said claim nor disavowed the acceptance” of Hogg. As conclusions of law, the court found that the plaintiff is entitled to have the order reformed as prayed for in the complaint because omitted therefrom by mutual mistake; that the assumption of Hogg to act for the elevator company was in excess of his authority and his acceptance of the order not binding upon it; that the notice imparted to the president and the secretary' of the elevator company was notice to it; that the elevator company has committed no act or been guilty of any inaction which can be construed as a ratification of the act of Hogg in assuming to accept the order; that the plaintiff is npt entitled to recover; but that the defendant the elevator company is entitled to a dismissal of the action. From the judgment upon the findings and an order denying a new trial the plaintiff has appealed.
Counsel in their brief admit that plaintiff failed to prove that Hogg had authority to make the acceptance for the elevator company, but rely upon the ratification of Hogg’s acceptance by the board of directors at its meeting on November 12. Their argument is that the elevator company’s failure to pass a resolution disavowing acceptance at the meeting amounted to ratification by silence. They argue that, when the president and secretary, or one of them, at a board meeting stated in the presence of the other members of the board that they raised no question on the acceptance, stating “that it was all right and not to sue Hogg,” it amounted to an express ratification of Hogg’s action in accepting the order to deliver the certificate of deposit, and that it was not necessary for the plaintiff to make out a ease from which the elevator company would be estopped to deny the acceptance.
Rehearing denied September 11, 1922.
Ratification, being purely a voluntary act upon tbe part of tbe principal, ordinarily requires some positive act. No duty rests upon him to adopt it or to make inquiries concerning it. (Pew v. McLeish, 62 Mont. 437, 205 Pac. 235.) In order that acquiescence alone should become ratification, the delay must be so long continued that it can be accounted for only on the theory that there has been some affirmative act. (Evans v. Smallcombe, L. R. 3 H. L. 249; Town of Derby v. Alling, 40 Conn. 410.) The evidence does not preponderate against the findings.
Judgment and order affirmed.
'Affirmed.
Associate Justices Farr, Holloway and Galen and Honorable Roy E. Ayers, District Judge, sitting in place of Mr. Chief Justice Brantly, disqualified, concur.
|
[
9,
16,
12,
-3,
18,
-3,
1,
15,
35,
-26,
-5,
16,
12,
-46,
9,
-13,
-18,
-40,
43,
0,
-22,
-56,
-33,
-31,
6,
38,
-13,
-8,
-18,
82,
-5,
22,
-19,
21,
3,
24,
-43,
14,
45,
-79,
0,
30,
-3,
3,
51,
9,
47,
-58,
51,
-8,
14,
-24,
19,
13,
5,
-43,
-32,
-17,
-26,
78,
45,
-36,
71,
0,
25,
-53,
14,
-1,
11,
32,
-4,
12,
-10,
-54,
0,
-59,
-42,
-8,
-96,
-80,
-28,
-83,
36,
-22,
-31,
6,
-22,
-23,
16,
51,
-51,
-4,
-5,
39,
-14,
7,
-51,
23,
-27,
51,
5,
-81,
6,
17,
36,
28,
-30,
-7,
20,
33,
-36,
30,
32,
10,
12,
30,
-3,
44,
-14,
-30,
-10,
70,
-35,
-18,
-62,
13,
-28,
-51,
8,
20,
-49,
0,
-48,
38,
-69,
-29,
27,
-4,
1,
9,
2,
-11,
-28,
19,
-31,
5,
-32,
-10,
-13,
4,
-26,
-13,
64,
32,
12,
-31,
-54,
0,
20,
-65,
34,
-28,
16,
-3,
-1,
27,
-6,
-24,
-18,
-3,
-41,
12,
-73,
-21,
77,
28,
30,
-51,
44,
24,
-11,
27,
32,
13,
-9,
11,
29,
37,
124,
23,
-8,
-17,
-56,
21,
-116,
9,
-15,
-41,
17,
22,
7,
11,
29,
-13,
-54,
8,
26,
-17,
25,
0,
22,
12,
-43,
5,
-26,
14,
-33,
-64,
21,
-61,
-1,
-17,
-34,
14,
-10,
-29,
15,
-40,
-4,
-16,
-38,
31,
56,
-3,
54,
-20,
10,
-15,
2,
32,
-4,
-33,
-40,
-48,
-32,
24,
-60,
-26,
23,
-9,
-12,
-28,
-41,
67,
35,
3,
29,
-9,
-15,
-32,
4,
11,
33,
-33,
62,
-38,
-35,
13,
14,
35,
63,
8,
46,
17,
-58,
-75,
27,
-4,
-18,
-75,
7,
-32,
-51,
17,
39,
-27,
-33,
-14,
-72,
-36,
35,
-18,
33,
-33,
49,
-20,
-25,
-23,
5,
-8,
-74,
5,
1,
-8,
34,
31,
-64,
-33,
-25,
-69,
9,
-18,
-8,
-38,
36,
15,
-1,
30,
6,
-3,
59,
3,
-22,
10,
36,
-9,
-9,
-8,
-24,
14,
10,
-19,
-24,
26,
-35,
-40,
31,
27,
31,
-36,
29,
63,
32,
-48,
-60,
26,
15,
-11,
-24,
23,
-13,
-39,
11,
30,
13,
41,
33,
45,
-17,
7,
0,
20,
33,
-19,
-1,
1,
-40,
-12,
1,
14,
-8,
34,
4,
-3,
-23,
1,
-28,
34,
-8,
39,
4,
-38,
-19,
-23,
41,
-15,
18,
-24,
-50,
13,
-50,
-23,
-21,
68,
-2,
-42,
17,
-32,
-20,
-41,
3,
9,
-18,
-7,
-23,
-4,
24,
-14,
2,
23,
2,
-36,
-55,
-11,
-16,
17,
8,
12,
-15,
39,
12,
-39,
38,
13,
31,
-13,
64,
9,
-81,
-24,
-57,
0,
-18,
32,
-5,
-35,
5,
48,
14,
22,
33,
37,
-22,
-9,
2,
12,
40,
20,
20,
-7,
19,
26,
5,
19,
25,
24,
2,
-46,
-4,
-51,
41,
11,
43,
2,
30,
0,
32,
-45,
36,
49,
17,
-22,
6,
16,
4,
30,
35,
-35,
-65,
1,
18,
56,
20,
47,
-57,
-92,
-16,
-11,
-52,
47,
23,
12,
-21,
-21,
-62,
4,
24,
5,
-24,
-52,
-25,
-45,
-5,
3,
-21,
-15,
-5,
-18,
-53,
90,
-32,
-45,
22,
45,
-2,
40,
12,
35,
9,
16,
40,
30,
-11,
15,
2,
14,
-23,
63,
38,
-13,
-12,
-29,
-7,
11,
-25,
14,
51,
52,
16,
-25,
47,
-19,
30,
-1,
-21,
-18,
-50,
18,
-2,
20,
16,
-8,
34,
38,
-21,
41,
0,
-3,
-51,
1,
-25,
54,
-17,
-5,
3,
-35,
-5,
7,
-10,
-54,
-32,
15,
8,
40,
-68,
-30,
-48,
2,
12,
15,
46,
-21,
2,
-6,
-70,
28,
16,
28,
-45,
66,
-15,
-23,
42,
25,
14,
-5,
-20,
67,
-21,
4,
-22,
-40,
-15,
27,
-35,
-7,
-28,
31,
19,
9,
-60,
15,
-3,
39,
-32,
-14,
-29,
3,
47,
-8,
11,
2,
-16,
-5,
-44,
-14,
-67,
10,
-22,
34,
-38,
5,
-2,
-28,
-10,
-10,
2,
24,
32,
-53,
15,
42,
35,
13,
-12,
-42,
36,
18,
47,
27,
-6,
14,
31,
-15,
-3,
-19,
25,
-12,
7,
-31,
17,
6,
10,
0,
4,
1,
27,
42,
34,
38,
18,
-35,
38,
4,
28,
-51,
-16,
8,
54,
-24,
4,
0,
-11,
27,
16,
-67,
16,
-9,
-54,
-5,
-19,
-12,
-32,
38,
-28,
4,
-3,
-19,
-47,
-26,
48,
-23,
24,
-9,
11,
19,
-58,
-8,
-23,
12,
13,
8,
1,
0,
-22,
40,
0,
16,
-32,
-54,
6,
-22,
-5,
6,
-24,
11,
28,
17,
-79,
4,
6,
-5,
-32,
55,
21,
-21,
-17,
17,
19,
-23,
25,
-2,
-15,
50,
-45,
-3,
-13,
-12,
-64,
6,
38,
36,
-4,
-30,
-14,
-15,
-40,
15,
35,
8,
12,
-2,
-14,
-3,
-4,
9,
6,
-35,
-15,
-57,
9,
47,
-42,
-4,
11,
-5,
47,
1,
18,
8,
-10,
19,
51,
15,
5,
-19,
77,
31,
73,
73,
-15,
49,
43,
-27,
-57,
1,
-18,
58,
-10,
13,
-48,
15,
-17,
11,
37,
-42,
25,
-24,
6,
3,
-29,
-17,
21,
-21,
-4,
17,
-44,
12,
-24,
0,
-31,
42,
6,
-47,
30,
-44,
-10,
17,
-12,
55,
20,
6,
-33,
-42,
42,
27,
1,
11,
27,
19,
0,
-12,
-19,
17,
76,
-35,
0,
27,
-9,
-5,
-35,
23,
-10,
-3,
-2,
26,
-7,
-28,
63,
27,
16,
26,
-50,
31,
40,
-47,
-19,
-9,
-43,
2,
-1,
61,
31,
8,
-39,
5,
13,
15,
73,
17,
-20,
46,
28,
-2,
6,
-15,
6,
24,
54,
86,
-2,
-4,
-37,
-44,
47,
-37,
-6,
-51,
28,
-52,
-13,
11,
23,
42,
-23,
7,
11,
1,
43,
23,
63,
-9,
14,
-22,
-39,
60,
11,
5,
24,
74,
-33,
-5,
-40,
9,
-22,
14,
-35,
40,
-25,
56,
-33,
7,
38,
15,
-21,
41,
-26,
-13,
-39,
-39,
40,
-30,
43,
22,
2,
-55,
12,
-35,
25,
-41,
17,
7,
33,
5,
28,
-50,
-28,
-4,
27,
-23,
-28,
46,
-2,
-70,
15,
-22,
35,
-21,
15,
-30,
12,
6,
-17,
-6,
-47,
14,
28,
20,
20,
-55,
88,
-39,
0,
39,
-14,
-8,
-7,
-7,
30,
3,
20,
-16,
-38,
8,
26,
-10,
53,
-42,
26,
-2,
6,
-47,
8,
-26,
32,
-10,
-16,
0,
17,
-24,
19,
-29,
-3,
11,
19,
19,
-15,
-3,
30,
-12,
-1,
-6,
0,
0
] |
MR. JUSTICE1 HOLLOWAY
delivered tbe opinion of tbe court.
This is an appeal by plaintiff from an order granting a new trial in an action in claim and delivery to recover possession of specific personal property—horses, cattle and farm machinery—or, in case return thereof cannot be had, then for the value, alleged to be $2,195. The order granting the new trial is general in terms, and, under the rule uniformly observed in this state, it must be sustained, if it can be upon any ground specified in the notice of intention and urged upon the trial court. The notice of intention enumerates all the statutory grounds, but, according to counsel for defendant, reliance was had upon four of them only: (1) Insufficiency of the evidence to justify the verdict; (2) errors in the refusal of offered instructions; (3) misconduct of a juror; and (4) excessive damages appearing to have been given under the influence of passion and prejudice. Consideration will be given to the last one only.
In the complaint the property is described minutely and a value is affixed to every item, the total value for all the property claimed being $2,195. The evidence introduced by plaintiff, considered in the light most favorable to her, fixed the total value at $1,983, and that is the utmost for which a verdict could be justified, but notwithstanding the value claimed in the complaint, or the lower value as shown by the evidence, the jury fixed the value of the property at $2,686.20, and judgment was entered accordingly. Counsel for plaintiff-does not attempt to justify the verdict, and apparently it is indefensible.
The value of the property, as stated in the complaint, was put in issue by the answer, and it became necessary for the jury to find the value, and it was permissible to assess the damages sustained by plaintiff, but the value and damages are stated separately in the verdict, as they should be. (Sec. 9363, Rev. Codes 1921.) The excess cannot be accounted for upon the theory that the jury determined the value to be a less am mint, and added interest thereon from thetime the property was taken by defendant. Interest may be allowed as damages for the wrongful detention of property (Webster v. Sherman, 33 Mont. 448, 84 Pac. 878), but the successful party is not entitled to interest and to damages for wrongful detention in addition thereto (Garcia v. Gunn, 119 Cal. 315, 51 Pac. 684). If the jury included interest as damages, then they made a double award, for they found specifically by the. verdict that plaintiff was entitled to $50 damages for the wrongful detention of the property. It is impossible to determine upon what theory the jury arrived at the value as fixed in their verdict; indeed, there does not appear to be any theory upon which it can be sustained, and for this reason alone a new trial is necessary, and the order granting it is affirmed.
Affirmed.
Associate Justices Fare, Cooper and Galen and Honorable Roy E. Ayers, District Judge, sitting in place of Mr. Chief Justice Brantly, disqualified, concur.
|
[
-20,
27,
33,
-42,
-41,
-54,
26,
-24,
-14,
18,
53,
-25,
-1,
66,
35,
-36,
-27,
-51,
22,
3,
-6,
-16,
-9,
17,
12,
-32,
12,
-25,
-23,
6,
0,
37,
-5,
33,
8,
10,
-30,
-3,
-6,
16,
17,
14,
4,
-16,
11,
8,
80,
-46,
18,
-43,
-13,
-60,
-6,
-21,
-14,
-19,
4,
36,
-21,
8,
28,
1,
4,
0,
0,
-10,
-8,
-32,
-65,
2,
-50,
11,
25,
-21,
0,
-71,
-6,
-16,
-53,
-36,
4,
-12,
12,
18,
-19,
30,
40,
-66,
6,
-25,
-28,
36,
5,
5,
-14,
10,
55,
-26,
-21,
17,
-12,
9,
-19,
37,
-51,
44,
-30,
-14,
-1,
3,
19,
4,
6,
-2,
-61,
-2,
-48,
-42,
-15,
-4,
34,
-11,
16,
-48,
5,
3,
31,
8,
21,
28,
26,
40,
0,
46,
-48,
-52,
-19,
-26,
-9,
34,
37,
-41,
-24,
-32,
1,
23,
0,
7,
-58,
7,
41,
36,
-12,
33,
48,
-54,
12,
-7,
23,
-18,
44,
8,
-86,
-5,
41,
4,
21,
-52,
13,
-19,
-6,
-20,
19,
-1,
26,
13,
-33,
5,
8,
-31,
-24,
17,
-18,
-37,
-13,
-8,
1,
46,
-26,
-3,
24,
22,
-48,
-1,
-1,
-29,
35,
-4,
40,
2,
-13,
-14,
-2,
5,
11,
14,
4,
-34,
72,
-41,
-47,
-23,
-9,
11,
-4,
5,
32,
-37,
-21,
16,
-7,
-11,
-30,
-12,
15,
-11,
-1,
3,
44,
19,
-34,
65,
2,
-13,
-16,
-39,
22,
-15,
-23,
28,
-46,
-15,
2,
-92,
-13,
0,
19,
30,
11,
58,
8,
26,
-10,
15,
10,
11,
26,
-19,
-37,
-37,
15,
48,
16,
52,
-2,
-11,
6,
5,
-23,
48,
-3,
-41,
-15,
33,
23,
-33,
29,
9,
16,
22,
-1,
0,
46,
32,
-3,
41,
13,
41,
10,
0,
-19,
-43,
26,
2,
1,
34,
27,
16,
23,
18,
-16,
9,
24,
47,
14,
-28,
1,
14,
-37,
-24,
-4,
8,
32,
25,
43,
-4,
-51,
4,
5,
-31,
5,
3,
-13,
32,
36,
-38,
26,
-90,
0,
14,
-1,
28,
40,
7,
2,
-3,
-22,
12,
12,
-8,
51,
-8,
31,
4,
20,
29,
-3,
-33,
-19,
49,
-43,
17,
-28,
4,
-11,
-30,
29,
-13,
-17,
1,
57,
37,
57,
-31,
30,
-18,
-4,
-67,
-32,
-19,
22,
0,
1,
-44,
-6,
-12,
-5,
-9,
-13,
2,
14,
-24,
5,
15,
84,
36,
27,
-41,
-2,
29,
-20,
26,
60,
50,
-15,
39,
-30,
-15,
2,
-24,
-28,
-4,
-17,
-13,
-38,
-36,
6,
-6,
-20,
8,
-20,
-38,
20,
22,
-4,
66,
-1,
12,
13,
-48,
91,
-4,
27,
13,
33,
-43,
38,
-6,
-17,
8,
12,
0,
-19,
-11,
-4,
21,
34,
-22,
-11,
28,
-27,
33,
-21,
45,
-31,
-30,
-19,
13,
13,
18,
31,
-53,
8,
-2,
-7,
17,
65,
-29,
-8,
-56,
44,
-19,
-46,
-21,
4,
-17,
9,
-20,
26,
18,
31,
21,
47,
-39,
19,
35,
-44,
-20,
-12,
38,
-4,
-3,
-58,
3,
38,
39,
-38,
-25,
-25,
19,
-11,
15,
-11,
15,
-35,
12,
-31,
8,
30,
8,
-11,
-23,
1,
-5,
7,
-35,
32,
-55,
59,
23,
45,
19,
6,
-25,
0,
17,
24,
-1,
24,
18,
24,
-40,
-35,
-43,
-29,
2,
19,
0,
21,
-92,
-26,
1,
-26,
-28,
-27,
-41,
3,
9,
9,
-45,
-36,
10,
25,
1,
-25,
26,
17,
-5,
42,
24,
25,
-2,
-12,
47,
23,
6,
-27,
-21,
41,
-15,
21,
29,
-30,
0,
30,
-17,
39,
-7,
-3,
18,
24,
-47,
1,
-5,
-9,
-30,
11,
-15,
-10,
-20,
-71,
0,
-15,
10,
18,
-17,
8,
55,
19,
7,
0,
0,
27,
-22,
-3,
-33,
-33,
-75,
-3,
26,
-23,
20,
-39,
34,
19,
-53,
0,
1,
-20,
36,
20,
48,
-4,
-10,
24,
12,
10,
-12,
7,
11,
-5,
-35,
-19,
26,
27,
-70,
-45,
2,
-45,
-2,
21,
-7,
59,
67,
-51,
31,
26,
7,
-67,
-43,
24,
16,
4,
-9,
-9,
2,
-5,
28,
-2,
-27,
-24,
18,
4,
-47,
32,
4,
10,
1,
-30,
7,
1,
9,
-34,
-3,
-12,
2,
-11,
-17,
-26,
9,
11,
-31,
9,
25,
-7,
0,
24,
-14,
28,
8,
30,
-25,
-27,
14,
0,
-32,
-37,
49,
11,
9,
4,
-30,
36,
41,
4,
28,
37,
3,
-28,
-63,
40,
-36,
-8,
-25,
22,
70,
0,
33,
0,
-22,
16,
-2,
-22,
-22,
-25,
-25,
25,
4,
-51,
-21,
58,
-21,
39,
-23,
9,
33,
23,
35,
57,
22,
18,
21,
-46,
39,
-75,
-4,
-30,
-32,
-32,
-71,
-34,
25,
24,
-42,
-2,
3,
17,
10,
-9,
32,
69,
7,
10,
-17,
-32,
8,
-13,
-45,
-25,
-66,
17,
-2,
-50,
14,
-7,
35,
12,
-13,
-25,
17,
-43,
-6,
-14,
-36,
15,
11,
40,
45,
22,
-32,
-27,
-1,
-30,
4,
-18,
33,
-20,
14,
-5,
35,
-19,
-3,
-28,
-14,
-34,
-34,
-5,
41,
19,
-9,
27,
-5,
43,
19,
10,
16,
18,
-10,
-5,
7,
12,
-20,
6,
-9,
48,
-39,
-10,
-13,
9,
-11,
-15,
39,
-14,
45,
25,
-17,
22,
-17,
-32,
63,
28,
-77,
-43,
39,
-9,
26,
9,
7,
-7,
47,
11,
-26,
-72,
65,
26,
4,
-43,
0,
-55,
3,
1,
36,
6,
15,
-28,
-60,
-1,
0,
19,
7,
6,
16,
-1,
16,
27,
24,
-4,
18,
-39,
31,
17,
56,
-33,
3,
-21,
35,
-16,
50,
48,
36,
-27,
-53,
-63,
29,
-21,
12,
23,
-77,
-32,
9,
14,
11,
0,
28,
40,
-11,
-8,
0,
89,
-70,
14,
0,
30,
26,
15,
-29,
-8,
-55,
-7,
7,
28,
-30,
-19,
-11,
7,
27,
-14,
-28,
34,
-50,
14,
35,
-25,
11,
25,
-23,
-22,
-24,
7,
29,
-52,
20,
-46,
-10,
-15,
-8,
-18,
-52,
-6,
-1,
-16,
-31,
-1,
47,
17,
-36,
-69,
9,
9,
9,
-9,
67,
51,
41,
0,
-18,
-49,
-14,
43,
11,
-62,
14,
19,
-21,
28,
23,
-10,
-12,
-53,
-11,
-26,
-29,
44,
-74,
14,
1,
78,
-9,
-44,
4,
-4,
-26,
-33,
32,
62,
-13,
13,
-8,
-27,
-4,
-27,
-6,
35,
20,
-27,
18,
14,
36,
-1,
-22,
-30,
15,
-21,
-6,
40,
-63,
33,
22,
-36,
-58,
-15,
-32,
16,
18,
-66,
34,
-4,
5,
-53,
-10,
8,
61,
42,
20
] |
ME. JUSTICE HOLLOWAY
delivered the opinion of the court.
This is an action in claim and delivery to recover possession of a Chalmers automobile. Plaintiff alleges that he is the owner and entitled to the immediate possession of the car (particularly describing it); that its value is $975; that about July 5, 1919, defendant wrongfully and without plaintiff’s consent obtained possession of the car; that about July 19, 1919, plaintiff made demand upon defendant for possession; that the demand was refused; and that defendant still wrongfully detains the property. The answer admits that defendant obtained possession of the ear about July 5, 1919, and retained possession thereafter, but dénies that the possession was at any time wrongful; admits that the car is of the value of $975; admits the demand made by plaintiff and refusal by defendant; and otherwise puts in issue all the allegations of the complaint. The trial of the cause resulted in a verdict and judgment for plaintiff, but on defendant’s motion a new trial was granted, and this appeal is from the order.
By a memorandum opinion the trial court indicated that the motion was granted solely upon the theory that the verdict will not support the judgment. The verdict is as follows: “We, the jury in the above-entitled action, do find that the plaintiff is entitled to the possession of the automobile in controversy in tbis action, and do find for the plaintiff and against the defendant. ’ ’
The trial court assumed to justify its conclusion upon tho authority of Woods v. Latta, 35 Mont. 9, 88 Pac. 402, and Hickey v. Breen, 40 Mont. 368, 20 Ann. Cas. 429, 106 Pac. 881. In each of those cases a special verdict only was returned, and in each instance the verdict failed to find upon all of the issues submitted to the jury. This court did not go further in its decision of either case, upon the question of the sufficiency of "the verdict, than to state the most elementary rule that a special verdict must find upon all the issues presented to the jury—a rule, that is incorporated in substance in the last sentence of section 9360, Revised Codes of 1921.
The pleadings and the evidence in this case presented to the jury the question of ownership of the car and the right of possession as an incident of that ownership. Each party claimed to be the absolute owner, and neither claimed any right of possession.independently of his claim of absolute ownership. The verdict quoted above is a general verdict. It finds for the plaintiff and against the defendant, and disposes of every issue presented. It determines that plaintiff is the owner of the car and entitled to the immediate possession of it, and that the defendant’s retention was wrongful. (O’Farrel. v. McClure, 5 Kan. App. 880, 47 Pac. 160; Kluse v. Sparks, 10 Ind. App. 444, 36 N. E. 914, 37 N. E. 1047.)
In addition to the general finding, the jury found specially that plaintiff is entitled to the possession of the car, but since this finding is not inconsistent with the general verdict it may be disregarded. It does not' impair the verdict in the least. (Washburn v. Roberts, 72 Ind. 213.)
That a general verdict alone is sufficient in an action in claim and delivery, if the issues warrant it, is determined by our statute. (Sec. 9361, Rev. Codes 1921; Wheeler v. Jones, 16 Mont. 87, 40 Pac. 77.)
Section 9363 provides that in an action in claim and delivery the jury “shall find the value of the property,” but this means only that the value shall be found whenever it is in issue (Frank v. Symons, 35 Mont. 56, 88 Pac. 561), and the reason for the requirement is that the judgment must be in the alternative (sec. 9406, Rev. Codes 1921), which requires that the value be determined by the pleadings or by the jury. In this instance the value of the car was conceded by both parties to he $975, and there was therefore nothing for the jury to find upon the question of value.
Section 9363 provides also that the jury may assess the damages which the prevailing party sustained. Plaintiff claimed $150 damages in his complaint, but did not offer any evidence to support the allegation; hence there was not anything upon which a verdict for damages in favor of the prevailing party could be sustained. Furthermore, the section declares: “But failure to find all the facts mentioned in this section shall not invalidate the verdict.” (Chestnut v. Sales, 44 Mont. 534, 121 Pac. 481.)
It is not controverted in the evidence that plaintiff Avas, at one time, the. owner of the ear and entitled to its possession. The defense interposed was that defendant had purchased the car in good faith for value from one W. B. Shelly, and Shelly testified that he had purchased it from plaintiff. Plaintiff denied that he had ever sold the car to Shelly or had authorized him to dispose of it; indeed, the evidence concerning the entire transaction betAveen plaintiff and Shelly is in sharp conflict, but the jury resolved the conflict in favor of plaintiff, and it is made manifest that the trial court did not grant a new trial upon the ground of insufficiency of the evidence.
It is suggested by counsel for defendant that certain in- struetions given by the court are erroneous, and that if the court reached the right conclusion upon the motion, the particular reason assigned will not be controlling. Instructions 1 and 3 are correct so far as they go, and if defendant desired a more complete statement of the law in either instance, it was incumbent upon him to tender a proper instruction, and the record fails to disclose that he did so.
Instructions 2 and 4 are attacked upon the ground that each of them omits to inform the jury that if plaintiff held Shelly out as the owner of the car, he would be estopped to deny such OAvnership as against anyone who purchased from Shelly relying upon his ostensible ownership, but the defense of estoppel Avas not pleaded, and for this reason neither instruction is open to the objection now made.
Tbe court erred in granting a new trial, reversed. and the order is
Reversed.
Associate Justices Cooper, Farr and Galen and Honorable Roy E. Ayers, District Judge, sitting in place of Mr. Chief Justice Brantly, disqualified, concur.
|
[
-8,
28,
30,
-23,
19,
-49,
19,
-47,
26,
-14,
24,
-1,
-16,
8,
22,
-5,
25,
-3,
35,
-39,
18,
-63,
13,
-17,
31,
-42,
-3,
-13,
-12,
20,
33,
11,
1,
22,
48,
3,
-6,
-19,
13,
19,
19,
30,
15,
19,
14,
31,
34,
-30,
59,
-34,
-6,
-84,
-26,
12,
0,
-18,
10,
40,
-16,
45,
38,
-43,
20,
11,
-25,
-3,
22,
-7,
-44,
-12,
-51,
-6,
38,
-38,
-13,
-25,
-11,
31,
-35,
-27,
13,
-17,
44,
-11,
-18,
19,
-3,
-68,
-49,
-67,
-26,
41,
9,
6,
18,
13,
30,
-65,
6,
-8,
-38,
-21,
0,
42,
-25,
66,
-35,
-21,
12,
1,
-3,
23,
13,
6,
-29,
-28,
-26,
2,
20,
8,
11,
-14,
30,
-34,
-32,
9,
-31,
8,
45,
41,
0,
41,
27,
70,
-47,
-31,
-18,
-17,
9,
68,
4,
-27,
8,
0,
1,
40,
28,
40,
-26,
-19,
13,
43,
-12,
9,
7,
-42,
-36,
-23,
10,
-14,
-3,
-56,
11,
8,
33,
45,
12,
0,
9,
-16,
-42,
-44,
-6,
-2,
29,
23,
-53,
-23,
-34,
-54,
0,
3,
12,
-29,
-34,
-20,
0,
90,
-11,
-15,
9,
40,
-37,
5,
-86,
2,
15,
-16,
13,
0,
16,
-26,
-15,
-40,
0,
11,
31,
-3,
43,
9,
-13,
-9,
34,
-16,
-6,
4,
42,
5,
-24,
-4,
1,
-24,
-53,
-9,
28,
-2,
0,
-34,
32,
4,
-30,
59,
-5,
0,
-31,
-46,
-17,
-72,
-17,
7,
15,
-8,
-24,
-56,
8,
6,
24,
7,
45,
31,
30,
25,
3,
-13,
-25,
-5,
0,
-33,
38,
-19,
25,
59,
3,
23,
-25,
-1,
24,
-20,
-12,
38,
-60,
-41,
-57,
30,
1,
-55,
7,
24,
22,
1,
-25,
-7,
38,
13,
42,
22,
2,
46,
1,
15,
2,
-4,
4,
9,
-53,
48,
51,
16,
-8,
63,
-52,
4,
1,
64,
29,
-45,
-28,
17,
-25,
14,
-26,
2,
25,
-11,
74,
29,
-4,
12,
42,
-6,
-17,
31,
-37,
41,
30,
-5,
-12,
-59,
-17,
-44,
28,
31,
32,
11,
-27,
-13,
-17,
4,
44,
29,
6,
9,
2,
-11,
36,
14,
6,
-16,
-23,
4,
-10,
-21,
-33,
-31,
-27,
0,
56,
-14,
-25,
8,
37,
6,
69,
70,
21,
18,
-15,
-62,
-44,
-1,
16,
0,
-10,
25,
-17,
-42,
1,
-24,
-34,
28,
18,
-20,
-32,
-28,
36,
54,
-6,
-68,
-7,
-3,
-59,
47,
5,
44,
-47,
-35,
-1,
-6,
13,
12,
-14,
48,
-78,
-22,
-44,
-61,
40,
59,
-57,
-33,
-29,
-22,
22,
-9,
6,
61,
-20,
25,
-16,
-85,
5,
25,
-9,
-28,
13,
-32,
51,
7,
-20,
13,
53,
-27,
13,
-13,
-13,
-24,
26,
-31,
31,
21,
17,
33,
-45,
60,
-9,
2,
-10,
28,
24,
87,
58,
-36,
36,
13,
-2,
47,
84,
-19,
-10,
-2,
-1,
-62,
-12,
36,
-54,
-17,
37,
-6,
-6,
-11,
17,
23,
14,
-43,
8,
50,
-63,
-53,
0,
-5,
-43,
20,
3,
-5,
-37,
16,
-51,
-14,
0,
32,
-1,
-7,
8,
1,
-28,
-35,
-41,
-2,
7,
-45,
11,
6,
-17,
16,
1,
0,
44,
-26,
0,
50,
53,
37,
-16,
6,
33,
-22,
-2,
40,
44,
15,
3,
18,
-30,
6,
-2,
-16,
34,
-22,
15,
-117,
-9,
-5,
-12,
-41,
5,
-24,
-7,
21,
40,
-60,
25,
1,
-18,
-19,
-54,
-8,
-31,
-21,
36,
14,
11,
-22,
-41,
-26,
53,
4,
-1,
-4,
-24,
22,
14,
42,
6,
11,
36,
-11,
16,
-4,
44,
-11,
-10,
-7,
-6,
-23,
-71,
-29,
17,
-15,
-42,
-29,
-47,
43,
5,
18,
-9,
-5,
6,
44,
-2,
-29,
37,
3,
29,
1,
29,
1,
-19,
-9,
-27,
-3,
-12,
0,
-27,
66,
-2,
-11,
-15,
0,
-30,
0,
51,
33,
-25,
-34,
-2,
43,
-25,
2,
25,
14,
12,
0,
-23,
9,
44,
-58,
-81,
11,
-30,
2,
23,
9,
-10,
64,
-47,
35,
23,
31,
-59,
-26,
-34,
-3,
25,
-17,
3,
12,
-21,
34,
-16,
-44,
-48,
29,
-37,
-30,
-16,
33,
-11,
-28,
-28,
7,
-12,
-8,
-51,
-27,
-5,
-4,
-23,
-15,
-46,
23,
-4,
-22,
48,
49,
19,
27,
-19,
44,
37,
37,
-17,
-29,
-31,
40,
-26,
-23,
3,
2,
49,
3,
18,
-1,
17,
26,
-27,
16,
37,
20,
5,
-71,
10,
-63,
-28,
-5,
-41,
83,
28,
55,
-3,
-15,
26,
-26,
-33,
-42,
-19,
17,
15,
-25,
-40,
-16,
28,
-19,
12,
-37,
-2,
52,
23,
6,
8,
-15,
55,
0,
-38,
16,
-49,
13,
-45,
-25,
-5,
-70,
-39,
77,
28,
0,
-13,
-47,
-45,
18,
22,
18,
25,
-3,
53,
12,
-27,
17,
38,
8,
-32,
-65,
-4,
14,
-9,
-1,
-9,
48,
-15,
0,
-16,
-19,
-58,
-65,
3,
-26,
-41,
12,
9,
41,
-1,
-23,
-46,
0,
-33,
8,
-25,
31,
-24,
44,
13,
45,
-33,
4,
11,
-4,
-23,
-23,
26,
25,
29,
-6,
9,
16,
46,
10,
40,
2,
73,
-3,
61,
-5,
-34,
-12,
10,
-60,
39,
39,
13,
-9,
19,
-17,
22,
8,
-49,
19,
34,
-29,
9,
2,
-33,
37,
28,
-50,
-45,
27,
-51,
37,
43,
-2,
9,
7,
14,
20,
-86,
88,
21,
24,
-32,
8,
-8,
12,
2,
-10,
-54,
54,
-40,
-20,
-15,
-17,
47,
25,
-10,
-9,
-16,
33,
69,
8,
1,
-6,
-33,
35,
8,
73,
30,
-21,
-42,
-10,
15,
35,
41,
41,
-20,
-66,
-21,
41,
-43,
17,
22,
-68,
-13,
-8,
-3,
9,
13,
-12,
9,
-42,
43,
4,
93,
-88,
1,
6,
4,
29,
0,
-17,
36,
-26,
-16,
-21,
46,
-53,
12,
-6,
-9,
16,
-17,
-24,
67,
-15,
37,
1,
-7,
-10,
37,
-74,
-30,
-2,
-11,
46,
-47,
32,
8,
-27,
19,
5,
-18,
-27,
29,
-24,
-13,
-46,
30,
95,
35,
-59,
7,
-10,
-25,
23,
19,
34,
41,
31,
14,
22,
-93,
-20,
22,
23,
-43,
-3,
30,
13,
53,
-2,
11,
-7,
-4,
5,
-9,
36,
25,
-25,
-22,
-12,
28,
15,
-35,
21,
-16,
-14,
-68,
43,
78,
-54,
-6,
27,
-73,
19,
-23,
-18,
-7,
47,
-56,
14,
60,
40,
30,
-3,
-35,
-57,
8,
12,
-15,
-87,
0,
-33,
-21,
-23,
-11,
30,
-35,
6,
-8,
55,
-7,
25,
-83,
-2,
-5,
41,
14,
-8
] |
CHIEF JUSTICE GRAY
delivered the Opinion of the Court.
¶1 Brandon Killam (Killam) appeals from the judgment entered by the Eighth Judicial District Court, Cascade County, on his conviction and sentence for the offense of aggravated assault. We affirm.
¶2 The sole issue on appeal is whether Killam’s right to due process was violated at the sentencing hearing when the prosecution recommended the imposition of the maximum sentence allowed by statute.
BACKGROUND
¶3 In December of2003, the State of Montana (State) charged Killam by information with the felony offense of aggravated assault. Killam appeared for arraignment, at which time the District Court informed him of the charge against him, that the maximum penalty for aggravated assault was 20 years in the Montana State Prison (MSP) and a $50,000 fine, and that, because he allegedly used a dangerous weapon in committing the offense, the sentence was subject to a sentence enhancement of up to 10 years in the MSP. Killam pleaded not guilty to the charge and the District Court set the case for trial.
¶4 During subsequent plea negotiations between the State and Killam, the State apparently offered to enter into a plea agreement whereby, in exchange for Killam’s guilty plea to aggravated assault, the State would recommend a sentence of 20 years on the assault charge, with an additional 5 years, suspended, for the use of a dangerous weapon. Killam rejected the plea agreement offer.
¶5 In October of2004, Killam appeared before the District Court and pled guilty to aggravated assault. The guilty plea was an open plea, in that there was no plea agreement between the parties and the State had made no promises to Killam regarding sentencing recommendations. The District Court accepted the guilty plea, scheduled a sentencing hearing and ordered a presentence investigation report.
¶6 At the sentencing hearing, the District Court heard testimony from various witnesses, including Killam, and then asked the State for its sentencing recommendation. The State recommended the court sentence Killam to 20 years in the MSP for the aggravated assault charge, with a consecutive 10-year sentence for the use of a dangerous weapon in committing the offense. The State also recommended that Killam not be eligible for parole for the first 15 years of the sentence. Killam objected to the State’s recommendation, arguing that a sentencing recommendation which was greater than the sentence offered by the State in prior plea negotiations violated his right to due process. The District Court overruled the objection. The court eventually sentenced Killam to 20 years in the MSP for the aggravated assault offense and 10 years, with 5 suspended, in the MSP for the use of a dangerous weapon in committing the assault. The sentences were to run consecutively and there were no restrictions on Killam’s eligibility for parole. The District Court entered judgment on the conviction and sentence. Killam appeals.
STANDARD OF REVIEW
¶7 A district court’s resolution of an issue involving a question of constitutional law is a conclusion of law which we review to determine whether the court’s conclusion is correct. State v. Mallak, 2005 MT 49, ¶ 14, 326 Mont. 165, ¶ 14, 109 P.3d 209, ¶ 14.
DISCUSSION
¶8 Was Killam’s right to due process violated at the sentencing hearing when the prosecution recommended the imposition of the maximum sentence allowed by statute?
¶9 Killam contends the District Court erred in overruling his objection to the State’s sentencing recommendation. Although he concedes that sentencing recommendations are generally within the prosecution’s discretion, he asserts that retaliatory actions by the prosecution in response to a defendant’s exercise of procedural rights violates due process. Thus, according to Killam, the State acted vindictively and violated his right to due process when, in response to his refusal to enter a plea agreement, the State-after obtaining a conviction-recommended a sentence of greater length than the sentence it had offered to recommend during earlier plea negotiations. Killam relies primarily on North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, and Blackledge v. Perry (1974), 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628, in support of his argument that the State violated his due process rights.
¶10 In Pearce, the defendant was convicted of assault with intent to commit rape and was sentenced to a term of 12 to 15 years. Postconviction proceedings resulted in his conviction being reversed. The defendant was retried, convicted and sentenced to an eight-year term which, when added to the time he already had spent in prison, amounted to a longer sentence than he received after the first conviction. The defendant challenged his conviction and sentence, arguing that the increased sentence following his second conviction was unconstitutional. Pearce, 395 U.S. at 713, 89 S.Ct. at 2074, 23 L.Ed.2d at 662-63.
¶11 The United States Supreme Court held that neither the double jeopardy nor equal protection provisions of the United States Constitution prohibit a trial court from imposing a more severe sentence on a defendant in resentencing after an original conviction has been set aside. Pearce, 395 U.S. at 723, 89 S.Ct. at 2079, 23 L.Ed.2d at 668. However, the Supreme Court determined that due process would be violated if a greater sentence were imposed as punishment to the defendant for successfully having the original conviction overturned. Pearce, 395 U.S. at 723-24, 89 S.Ct. at 2080, 23 L.Ed.2d at 668. The Supreme Court stated that
[d]ue process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
Pearce, 395 U.S. at 725, 89 S.Ct. at 2080, 23 L.Ed.2d at 669. The Court held that, in order to ensure that such motivation in resentencing does not exist, a lengthier sentence on resentencing after a new trial must be based on objective information of record concerning identifiable conduct of the defendant occurring after the original sentencing. Pearce, 395 U.S. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670. Thus, vindictiveness in resentencing after a new trial is presumed in the absence of objective information of record justifying the increased sentence.
¶12 In Perry, the defendant was convicted of a misdemeanor offense in a court of limited jurisdiction and received a 6-month sentence. He appealed his conviction and requested a trial de novo. After the defendant filed his notice of appeal, but prior to the trial de novo, the prosecution obtained an indictment charging the defendant with a felony based on the same conduct underlying the misdemeanor charge. The defendant subsequently pled guilty to the felony and was sentenced to a prison term of five to seven years. He later challenged his conviction and sentence arguing, inter alia, that the prosecution’s act of increasing the charge against him to a felony in response to his exercising his right to appeal deprived him of due process of law. Perry, 417 U.S. at 22-23, 94 S.Ct. at 2100, 40 L.Ed.2d at 631-32.
¶13 In addressing this issue, the United States Supreme Court began by reiterating its ruling in Pearce and subsequent cases that penalizing a defendant for successfully pursuing a statutory right of appeal or collateral review by imposing an increased sentence after retrial violates due process of law. Perry, 417 U.S. at 25, 94 S.Ct. at 2101, 40 L.Ed.2d at 633. The Court observed, however, that only those instances of increased punishment after retrial which posed a realistic likelihood that the punishment was vindictive offended due process. The Supreme Court also noted that, while Pearce and its progeny all dealt with instances where a harsher sentence was imposed on a defendant after retrial and the present case involved the prosecution increasing the severity of the charged offense in response to a defendant’s assertion of his right to appeal, the same opportunity for vindictiveness arose. Perry, 417 U.S. at 27, 94 S.Ct. at 2102, 40 L.Ed.2d at 634.
A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.
Perry, 417 U.S. at 28, 94 S.Ct. at 2102-03, 40 L.Ed.2d at 634-35.
¶14 Pearce and Perry are readily distinguishable from the present case. In those cases, the defendants had been tried and convicted, successfully challenged those convictions via appeal or collateral attack, and were subjected to increased punishment on retrial. Here, the State’s sentencing recommendation to which Killam objects did not occur during proceedings on retrial. Killam had not previously been convicted and, necessarily, no successful appeal of such a conviction had occurred. Nor has a successful collateral attack occurred in the present case. Thus, Pearce and Perry are of no assistance to Killam here.
¶15 The State contends, however, that the United States Supreme Court addressed circumstances similar to the present case in Bordenkircher v. Hayes (1978), 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604. We agree.
¶16 In Bordenkircher, the defendant was charged with the felony offense of uttering a forged instrument. After his arraignment on the charge, the defendant and his attorney met with the prosecutor to discuss a possible plea agreement. During negotiations, the prosecutor offered to recommend a specific sentence in exchange for the defendant’s guilty plea. The prosecutor further informed the defendant that, if he did not accept the plea offer, the prosecutor would seek a grand jury indictment under the habitual offender statutes which would subject the defendant to an additional term of life in prison based on his two prior felony convictions. The defendant chose to reject the plea offer and proceed to trial. The prosecutor obtained an indictment under the habitual offender statutes and a jury convicted the defendant of both the underlying forgery charge and the habitual offender charge. Bordenkircher, 434 U.S. at 358-59, 98 S.Ct. at 665-66, 54 L.Ed.2d at 607-08.
¶17 The defendant subsequently sought a federal writ of habeas corpus based on his assertion that, under the principles set forth in Perry, the prosecutor’s conduct during plea negotiations was vindictive and violated his due process rights. The United States Supreme Court eventually granted certiorari to review the issue. Bordenkircher, 434 U.S. at 360, 98 S.Ct. at 666, 54 L.Ed.2d at 608-09. The Supreme Court observed that the due process violation addressed in cases such as Pearce and Perry resulted not from the potential that a defendant might be deterred from exercising a legal right, but rather from the danger that the prosecutor or court may be retaliating against the defendant for lawfully challenging his conviction. Bordenkircher, 434 U.S. at 363, 98 S.Ct. at 667-68, 54 L.Ed.2d at 610. Thus, the Supreme Court recognized a distinction between punishing a defendant after the fact for having successfully exercised a right and discouraging a defendant from exercising that right in the first instance, stating that
[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is “patently unconstitutional.” But in the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.
Bordenkircher, 434 U.S. at 363, 98 S.Ct. at 668, 54 L.Ed.2d at 610-11 (citations omitted). On that basis, the Supreme Court held that the prosecutor’s actions during the pretrial proceedings and plea negotiations did not violate the defendant’s due process rights. Bordenkircher, 434 U.S. at 365, 98 S.Ct. at 669, 54 L.Ed.2d at 612. This Court has embraced the Bordenkircher rationale under similar facts, stating that “a prosecutor is not prohibited from seeking increased punishment for prior convictions after the plea bargaining process had broken down.” See State v. Johnson (1978), 179 Mont. 61, 68, 585 P.2d 1328, 1332.
¶18 In negotiating a plea agreement, the parties bargain with each other, each offering certain concessions to reach a mutually acceptable resolution of a case. Thus, as occurred in this case, a prosecutor may offer to recommend a less than maximum sentence in exchange for the defendant’s agreement to plead guilty to an offense. The defendant is free to accept or reject a plea offer. If a defendant rejects a plea offer, the prosecutor may proceed with the case and make any legal sentencing recommendation because no agreement to the contrary has been reached.
¶19 Here, the District Court informed Killam at his arraignment that the maximum sentence for the aggravated assault offense was 20 years in prison and a $50,000 fine. The court further informed Killam that he could be sentenced to an additional 10 years in prison for having used a dangerous weapon in the assault, thus making a potential maximum total sentence of 30 years in prison. Killam then entered into plea negotiations in which the State offered to recommend a sentence less than the maximum available sentence. Killam refused the plea offer and later entered a guilty plea without a plea agreement in place. When he entered his guilty plea, the District Court again informed him of the 30-year maximum possible sentence. With no plea agreement in place, the State was free to recommend the imposition of the maximum sentence. We conclude, therefore, that the District Court did not err in overruling Killam’s objection to the State’s recommended sentence at the sentencing hearing.
¶20 We hold that Killam’s right to due process was not violated at the sentencing hearing when the prosecution recommended the imposition of the maximum sentence allowed by statute.
¶21 Affirmed.
JUSTICES NELSON, LEAPHART, WARNER and RICE concur.
|
[
29,
25,
18,
0,
-36,
-56,
-59,
0,
-30,
11,
-24,
36,
8,
-12,
44,
20,
-5,
-9,
24,
55,
1,
-17,
30,
22,
-21,
-17,
-17,
-4,
-42,
-24,
35,
15,
22,
-29,
-10,
47,
45,
-13,
24,
54,
58,
10,
38,
8,
-57,
29,
7,
71,
3,
27,
4,
16,
7,
-27,
17,
29,
-2,
2,
-28,
62,
4,
16,
-40,
-24,
15,
-27,
48,
-26,
25,
-3,
-49,
4,
10,
19,
9,
7,
-24,
-5,
-14,
-30,
-11,
79,
-12,
-46,
38,
-20,
-11,
-19,
14,
40,
16,
10,
-4,
-36,
53,
7,
29,
-22,
21,
-9,
-25,
18,
0,
14,
-10,
4,
-2,
-14,
52,
48,
-6,
36,
6,
-69,
-40,
-6,
-35,
16,
0,
78,
-1,
56,
-38,
25,
12,
-9,
10,
-30,
18,
11,
-42,
-19,
8,
29,
-57,
36,
-32,
19,
26,
-5,
44,
-32,
21,
-84,
60,
29,
-9,
-4,
49,
14,
-32,
10,
-22,
0,
31,
-20,
36,
-5,
-40,
13,
65,
-20,
-31,
10,
13,
10,
-39,
36,
3,
5,
8,
0,
17,
59,
69,
63,
-34,
-11,
4,
10,
-22,
32,
51,
-49,
-18,
89,
13,
3,
-31,
-35,
-49,
23,
-12,
-76,
45,
-15,
0,
-9,
7,
-1,
6,
-1,
49,
26,
-14,
-31,
36,
-30,
54,
-33,
-17,
-10,
9,
-21,
1,
30,
-19,
-19,
-9,
36,
-13,
6,
-5,
-8,
21,
-70,
2,
4,
-24,
-55,
-2,
-20,
6,
9,
24,
-2,
-15,
-22,
-12,
-41,
-41,
-28,
-12,
5,
30,
54,
-10,
-10,
-40,
-28,
11,
-10,
16,
24,
-3,
8,
33,
-1,
-40,
-4,
-9,
-27,
48,
13,
-61,
89,
-35,
-40,
-8,
21,
8,
-1,
24,
8,
-8,
49,
34,
-29,
27,
-29,
56,
44,
32,
-4,
-20,
5,
-53,
7,
-12,
1,
-24,
-92,
16,
19,
64,
-12,
15,
-75,
-6,
-14,
-2,
-21,
24,
-2,
26,
19,
24,
21,
-8,
-18,
22,
11,
-28,
5,
-9,
-53,
25,
-33,
42,
-16,
-17,
-17,
30,
-31,
-24,
37,
2,
-3,
-46,
-19,
27,
-11,
10,
-13,
0,
3,
-6,
28,
40,
-7,
-16,
-44,
27,
-1,
17,
73,
0,
44,
-48,
-1,
2,
61,
10,
48,
-19,
-12,
-65,
-43,
41,
-20,
31,
-39,
-26,
-44,
-10,
3,
20,
10,
-36,
24,
1,
-18,
11,
-22,
-18,
16,
73,
-40,
-14,
0,
15,
24,
13,
-28,
51,
-8,
37,
-7,
58,
33,
-30,
1,
-31,
-55,
-16,
-86,
-6,
1,
11,
-23,
27,
-79,
5,
-27,
-14,
-19,
-34,
33,
-38,
-28,
17,
-19,
-8,
40,
6,
-7,
-47,
-29,
-13,
21,
25,
32,
28,
-48,
50,
52,
-58,
0,
-46,
8,
50,
26,
-5,
-22,
-7,
-8,
-53,
15,
8,
-29,
-29,
-2,
34,
18,
22,
-31,
25,
-26,
29,
-23,
-18,
-43,
40,
-34,
-22,
61,
14,
22,
30,
-40,
12,
-48,
-16,
-36,
65,
-5,
-97,
-5,
55,
-23,
-12,
34,
-4,
-12,
31,
21,
10,
10,
1,
-22,
-7,
-45,
-13,
-19,
-11,
-15,
-54,
27,
0,
-19,
-21,
-42,
9,
-48,
-25,
78,
40,
21,
-13,
-9,
-23,
5,
-28,
19,
-29,
-41,
46,
0,
-6,
-21,
14,
56,
-24,
-17,
-34,
-46,
41,
9,
-23,
14,
30,
15,
78,
22,
-26,
-45,
-49,
-46,
-45,
-18,
5,
33,
-10,
-10,
22,
29,
-14,
-47,
-11,
-21,
9,
-45,
21,
-15,
-33,
-11,
18,
-39,
59,
13,
41,
46,
-2,
-38,
27,
-3,
-39,
27,
46,
-27,
9,
7,
-45,
65,
27,
21,
-55,
-43,
74,
-22,
36,
60,
-82,
9,
15,
-50,
21,
-6,
6,
41,
1,
-21,
-29,
28,
-36,
-46,
5,
47,
65,
-22,
10,
7,
20,
-11,
-64,
17,
25,
0,
-37,
-8,
3,
43,
28,
-4,
53,
10,
10,
-13,
-1,
-7,
-48,
-18,
19,
16,
-35,
3,
-32,
-28,
-25,
-45,
3,
-45,
39,
22,
-2,
-21,
-33,
-26,
-13,
-44,
-44,
-48,
-32,
4,
-16,
8,
-20,
8,
-25,
-23,
-46,
51,
22,
-76,
19,
23,
-15,
26,
-17,
-29,
-12,
24,
-27,
-67,
9,
26,
-34,
57,
20,
43,
36,
46,
-12,
3,
-7,
-19,
13,
-53,
47,
-19,
14,
8,
-17,
-38,
2,
47,
9,
-25,
37,
0,
-1,
-27,
13,
-15,
-18,
-10,
14,
17,
16,
58,
36,
-8,
12,
-1,
27,
-16,
49,
19,
-71,
26,
-10,
-19,
-38,
-43,
18,
10,
-10,
-2,
-7,
32,
-30,
25,
9,
39,
-12,
-55,
-61,
-44,
-38,
42,
-67,
0,
-5,
-28,
50,
-15,
-14,
-13,
58,
66,
7,
9,
23,
26,
9,
12,
-33,
51,
-12,
29,
-2,
-21,
1,
-36,
5,
-17,
-2,
-67,
11,
-16,
46,
16,
36,
9,
-65,
4,
48,
20,
-48,
8,
26,
-8,
46,
3,
-42,
-46,
39,
2,
57,
29,
45,
-23,
-11,
29,
-18,
-36,
-8,
-15,
27,
-2,
40,
19,
-66,
-17,
-19,
-28,
-35,
39,
-24,
-37,
-1,
24,
-27,
2,
6,
-21,
-13,
-7,
2,
0,
-15,
-12,
60,
-57,
22,
-11,
56,
31,
45,
24,
2,
42,
-34,
28,
-6,
-12,
-31,
-1,
6,
4,
26,
-54,
-32,
1,
44,
-42,
9,
-1,
-20,
-26,
23,
58,
-10,
-13,
5,
-31,
0,
28,
-21,
16,
15,
11,
19,
-51,
48,
10,
11,
-29,
35,
34,
7,
-6,
-31,
-13,
5,
-44,
21,
11,
7,
-12,
-3,
16,
-11,
42,
-20,
-5,
67,
-3,
-26,
-15,
12,
-5,
44,
40,
-55,
30,
-53,
-9,
-20,
-3,
7,
-15,
-9,
26,
17,
-52,
-16,
-7,
-25,
-31,
-15,
-43,
-28,
-31,
-52,
24,
-18,
0,
-12,
-54,
67,
16,
-4,
10,
29,
2,
23,
6,
0,
43,
-45,
22,
30,
0,
-10,
-14,
-47,
-18,
62,
0,
-19,
36,
53,
83,
27,
-19,
-55,
-94,
-30,
56,
-41,
-17,
42,
-11,
-34,
27,
-1,
-7,
0,
-21,
10,
64,
15,
6,
2,
50,
-7,
-78,
-57,
9,
6,
39,
-39,
36,
41,
-1,
4,
49,
-21,
-1,
-27,
30,
-8,
-30,
-47,
28,
14,
-3,
-61,
-30,
-41,
-27,
9,
44,
59,
0,
46,
-44,
39,
25,
-35,
-23,
-21,
-12,
-28,
0,
-5,
47,
-31,
-21,
-16,
-5,
-13,
23,
44,
0,
2,
-27,
-15,
-34,
32,
42,
-33,
-5,
0,
43,
-29,
22,
15,
0,
30,
26,
-2,
-41,
-76,
-23,
4,
-9,
-12,
38,
-52,
-30,
12,
10
] |
JUSTICE RICE
delivered the Opinion of the Court.
¶1 Appellant John B. Patterson (Patterson) appeals from the order of Montana’s Fourth Judicial District Court, Missoula County, granting summary judgment in favor of Respondent Verizon Wireless. We affirm.
¶2 We consider the following issue on appeal:
Did the District Court err in granting summary judgment to Respondent Verizon Wireless?
BACKGROUND
¶3 As early as 1995, Bell Atlantic Corporation and Vodafone Air Touch Pic began discussing opportunities for collaboration in the burgeoning wireless telephone market. To further collaboration, those companies entered into a partnership and created an entity known as Célico. Célico, in turn, began doing business as Verizon Wireless. In 2000, and in furtherance of the partnership, Bell Atlantic and Vodafone Air Touch Pic signed a “Secondment Agreement” whereby Vodafone Air Touch Pic would provide employees to staff Célico /Verizon Wireless (Verizon). As to the employment status of those employees loaned to Verizon by Vodafone Air Touch Pic, the Secondment Agreement, § 2.1(a) stated,
(a) Seconded employees will remain employees of Vodafone, but will perform services exclusively for the Partnership;....
Despite remaining employees of Vodafone, however, it was Verizon, and not Vodafone, which had the absolute right to fire “seconded” employees.
¶4 Air Touch Communications, an affiliate of Vodafone, employed Appellant Patterson as a district manager in Missoula prior to the creation of Verizon. However, in May of 2000, Verizon notified Patterson by letter that he had been assigned to work exclusively for Verizon. That letter also stated that though Patterson would be working for Verizon exclusively, he would “remain an employee of Vodafone / Air Touch or one of its affiliates.” Though Patterson appears to believe Verizon “acquired” Air Touch, in May of 2000, it is clear that Verizon was the product of the joint venture between Vodafone Air Touch Pic and Bell Atlantic Corporation.
¶5 Five months after Patterson began performing services for Verizon, restructuring forced the elimination of his position, effective December 1, 2000. Patterson was notified accordingly by letter on October 2, 2000. The letter also informed Patterson that he had been designated a participant in the “Air Touch Communications Severance Plan,” and indicated he could receive $23,978.22 if he elected to participate in the Plan. Included with the “Air Touch Communications Severance Plan” was a “Severance Agreement and Release,” and both indicated that in order to participate in the Severance Plan, Patterson would have to release Air Touch and all “affiliates” from,
all rights, claims, and actions which the Participant has or may in the future have arising out of, relating to, or in connection with the Participant’s employment with any Releasee and the termination thereof.
¶6 After reviewing the “Severance Agreement and Release” and the “Air Touch Communications Severance Plan,” Patterson elected not to sign the agreement, and instead initiated an employment discrimination claim against Verizon Wireless on December 21, 2000. In a deposition, Patterson admitted that one of the reasons he did not sign the “Severance Agreement and Release” was because he did not want to give up his employment discrimination claims. After review, the Human Rights Bureau dismissed the employment discrimination claim as meritless. Thereafter, about one year after receiving the severance offer, Patterson signed the “Severance Agreement and Release” and mailed it to Verizon.
¶7 Verizon refused to honor the severance plan, and communicated such to Patterson on December 21, 2001. It cited the one-year delay in Patterson’s response, the ending of the severance program, and Patterson’s employment discrimination claim as reasons for the claim’s denial.
¶8 Patterson then filed a claim with the District Court on September 25, 2002, claiming entitlement to the severance benefits. Verizon moved for dismissal for failure to state a claim. The District Court converted that motion into a Motion for Summary Judgment and denied it. Following discovery, Verizon again moved for summary judgment, which was granted by the District Court. Patterson appeals.
STANDARD OF REVIEW
¶9 We review district court grants of summary judgment de novo. Abraham v. Nelson, 2002 MT 94, ¶ 9, 309 Mont. 366, ¶ 9, 46 P.3d 628, ¶ 9. Summary judgment, however, is an extreme remedy, and is only appropriate when there is no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. Lee v. USAA Casualty Insurance Co., 2001 MT 59, ¶ 25, 304 Mont. 356, ¶ 25, 22 P.3d 631, ¶ 25. If there are genuine issues of material fact, summary judgment is inappropriate.
DISCUSSION
¶10 The District Court addressed three difficult issues: (1) whether Verizon “employed” Patterson; (2) whether Verizon obligated itself to pay severance benefits to Patterson; and (3) whether Patterson forfeited his option to participate in the severance plan when he filed an employment discrimination claim against Verizon. We conclude that issue three is dispositive and therefore do not address issues one and two.
¶11 Four elements are essential to the existence of a contract: (1) identifiable parties capable of contracting, (2) consent, (3) a lawful object, and (4) a sufficient cause or consideration. Section 28-2-102, MCA (1999); see also Keesun Partners v. Ferdig Oil Co. (1991), 249 Mont. 331, 337, 816 P.2d 417, 421. As to consent, it must be mutual. Section 28-2-301, MCA (1999). However, consent is not mutual “unless the parties all agree upon the same thing in the same sense ....” Section 28-2-303, MCA (1999); see also Polich v. Severson (1923), 68 Mont. 225, 230, 216 P. 785, 787. Finally, an acceptance upon terms “varying from those offered is a rejection of the offer, and puts an end to the negotiation, unless the party who made the original offer renews it, or assents to the modification suggested.” Brophy v. Idaho & Provision Co. (1904), 31 Mont. 279, 286, 78 P. 493, 495. Having rejected an offer, an offeree cannot later revive the contract via acceptance. Brophy, 31 Mont. at 286, 78 P. at 495.
¶12 Appellant Patterson received the offered severance package by mail on October 2, 2000. The package, known as the “Air Touch Communications Severance Plan,” included the “Severance Agreement and Release.” The “Severance Agreement and Release” stated at paragraph 5(a) that:
In consideration of the payments to be made under this Agreement by the Participating Entity, the Participant, on behalf of himself or herself, his or her successors and assigns, hereby fully releases and discharges the Participating Entity and all Affiliates, and the directors, officers, employees, representatives, agents, employee benefit plans, shareholders, predecessors, successors and assigns of each (collectively “Releasees”) from all rights, claims, and actions which the Participant has or may in the future have arising out of, relating to, or in connection with the Participant’s employment with any Releasee and the termination thereof.
¶13 Three things are clear from the “Severance Agreement and Release” and “Air Touch Communications Severance Plan.” First, there is no question that the agreement and release envisioned Verizon as an Air Touch affiliate and “Releasee.” The “Air Touch Severance Plan,” defined affiliate as follows:
(a) “Affiliate” means the Company and any entity in which the Company or any subsidiary of the Company owns a direct or indirect interest.
As Air Touch owned a direct or indirect interest in Verizon, they were affiliates as that term is used in the Severance Plan.
¶14 Second, the “Air Touch Severance Plan” made clear that severance benefits would not be paid unless the employee signed the release.
(c) Must Sign Release - No Participant shall be entitled to receive any Severance Benefits under the Plan unless he or she has completed and executed the Release provided to the Participant under the Plan. The Release shall provide that execution by the Participant shall constitute a waiver and release of every claim the Participant might otherwise have arising out of his or her employment and the termination thereof....
¶15 Finally, it is clear that the severance offer was conditioned upon Patterson releasing “all” of his claims against Air Touch and Verizon. The “Severance Agreement and Release” specifically provided that Patterson would have to release Air Touch and its affiliates “from all rights, claims, and actions which the Participant has or may in the future have arising out of, relating to, or in connection with the Participant’s employment with any Releasee and the termination thereof.” The record is clear that Appellant Patterson fully understood this requirement. In fact, he stated at deposition that one of the main reasons he did not sign the “Severance Agreement and Release” originally was because he did not want to waive his employment discrimination claims.
¶16 Patterson elected not to sign the “Severance Agreement and Release” and instead pursued an employment discrimination claim against Verizon. Then, when his claim was unsuccessful, he tried to accept the severance offer. Clearly, Patterson’s discrimination claim would have been “released” had Patterson signed the agreement, as it arose out of his employment with Verizon and Air Touch. Nonetheless, Patterson argues today that his purported acceptance of severance in October of 2001 created an enforceable contract entitling him to benefits. This argument fails.
¶17 When Patterson filed his claim against Verizon with the Montana Human Rights Commission, he forfeited his ability to accept the Air Touch severance package because his filing of the claim rejected a key term of the offer-a release of all claims. As noted in Brophy, “an acceptance upon terms varying from those offered is a rejection of the offer . . . .” 31 Mont. at 286, 78 P. at 495. Here, by the terms of the offer, Patterson was to receive severance if he released “all” of his employment-related claims. Patterson’s filing of a claim against Verizon was completely inconsistent with the terms of the offer, making it impossible for him to accept it. The impossibility is evident since, as of the date of his employment discrimination claim, he could no longer release “all” of his claims. As such, in filing the claim, he effectively rejected the severance package offer.
¶18 Finally, though obvious, we note that the Severance Plan’s release provision was material to the contract. Both parties conceded its importance, and, as the severance documents make clear, signing the release was required for participation in the plan and for receipt of benefits thereunder. As such, the provision was material to the agreement.
¶19 Because he rejected the severance package as of December 21, 2000, Patterson’s purported acceptance of severance in October of2001 was, at best, a counteroffer. While Verizon was free to accept a counteroffer, it is clear from the record that it did not. Consequently, because Patterson rejected the severance offer by filing a claim against Verizon, and because Verizon did not accept his counteroffer, no contract arose between the parties with regard to severance benefits, and therefore, Patterson is not entitled to severance benefits.
¶20 Affirmed.
JUSTICES NELSON, COTTER, WARNER and MORRIS concur.
|
[
16,
-24,
5,
8,
126,
0,
-22,
-45,
58,
34,
-17,
42,
25,
-2,
-20,
-20,
17,
59,
47,
-42,
-10,
-32,
-35,
-25,
-10,
10,
6,
-11,
16,
11,
1,
-60,
-10,
-53,
-43,
0,
-44,
55,
-107,
-17,
14,
-11,
45,
-31,
16,
4,
24,
13,
-33,
16,
40,
25,
-40,
27,
31,
-86,
23,
3,
39,
30,
-47,
19,
36,
-2,
10,
-12,
5,
52,
30,
10,
-19,
-45,
-6,
-54,
67,
-47,
-58,
-54,
-33,
4,
8,
28,
-40,
-35,
-72,
75,
12,
-61,
-38,
70,
-27,
-33,
4,
-21,
-23,
-7,
45,
-39,
-60,
47,
-8,
-54,
-24,
29,
-63,
-3,
-19,
-2,
46,
16,
-20,
21,
-32,
-47,
-6,
0,
37,
-4,
38,
-2,
-73,
34,
-7,
64,
31,
-27,
9,
3,
-3,
52,
16,
-10,
-7,
13,
-35,
-1,
19,
-34,
-56,
0,
13,
-27,
31,
60,
10,
-6,
-102,
-25,
-50,
-43,
73,
5,
-9,
16,
-20,
23,
-31,
60,
53,
15,
47,
-4,
-1,
37,
-40,
11,
13,
40,
-11,
23,
16,
7,
-11,
19,
27,
5,
-7,
11,
4,
0,
0,
9,
0,
-17,
26,
-17,
21,
4,
-4,
-20,
-32,
-85,
27,
34,
-63,
20,
12,
14,
-24,
-11,
-36,
-3,
13,
40,
-26,
14,
15,
6,
20,
48,
-24,
-9,
-53,
-52,
-5,
1,
34,
-12,
0,
-19,
52,
1,
-27,
13,
-77,
-22,
11,
-9,
28,
-5,
-47,
40,
35,
45,
-19,
-7,
-47,
-56,
31,
22,
-20,
-12,
-22,
-8,
35,
-24,
13,
7,
4,
41,
-21,
15,
44,
25,
11,
-71,
-28,
-6,
19,
-47,
13,
-34,
-17,
23,
10,
-46,
-25,
-47,
-4,
3,
-1,
0,
-12,
-20,
-67,
-29,
1,
26,
26,
-50,
17,
32,
-54,
-36,
35,
45,
23,
8,
-33,
5,
-2,
40,
28,
33,
-10,
-64,
45,
33,
-81,
23,
-49,
31,
-44,
-5,
14,
26,
-41,
-77,
36,
20,
-23,
17,
-21,
-25,
-2,
-39,
15,
27,
35,
25,
-12,
31,
46,
-9,
-46,
-55,
-14,
-33,
99,
-1,
20,
-13,
0,
32,
11,
-32,
53,
57,
-13,
33,
17,
14,
29,
-66,
6,
40,
31,
18,
-10,
-29,
8,
-9,
4,
-53,
-6,
-20,
8,
0,
-27,
-58,
-1,
10,
-35,
3,
-15,
7,
-1,
56,
-75,
44,
-66,
-65,
-13,
30,
-21,
91,
66,
0,
-22,
81,
39,
-1,
-4,
-77,
-9,
49,
49,
29,
-15,
-51,
44,
-37,
-50,
46,
25,
8,
8,
-33,
-1,
30,
70,
30,
-32,
23,
-71,
-27,
13,
6,
-25,
6,
-7,
0,
23,
-56,
-91,
35,
-67,
-31,
-6,
81,
22,
-16,
-65,
-18,
74,
24,
25,
4,
-22,
-8,
-63,
51,
-13,
-15,
-27,
44,
-21,
-44,
-27,
16,
-18,
-30,
-34,
-58,
16,
34,
37,
4,
34,
79,
75,
45,
61,
8,
0,
-38,
41,
-45,
-45,
-22,
29,
-3,
2,
-2,
23,
3,
39,
-3,
-23,
55,
-30,
-6,
-2,
47,
26,
-7,
-14,
-25,
-61,
5,
17,
-63,
-12,
24,
-1,
-14,
29,
38,
-5,
44,
-5,
62,
6,
11,
-37,
-12,
-11,
39,
-17,
-36,
14,
-18,
58,
17,
-53,
11,
-16,
-20,
-13,
-12,
15,
19,
22,
32,
-9,
21,
-22,
49,
-38,
34,
63,
68,
-33,
42,
48,
-5,
-20,
-25,
49,
2,
-56,
33,
45,
35,
36,
-36,
2,
-6,
12,
-64,
19,
-17,
-35,
-3,
-23,
53,
-51,
35,
41,
-52,
2,
7,
4,
-56,
18,
-4,
28,
95,
13,
37,
13,
46,
-38,
11,
15,
18,
-17,
53,
32,
-2,
-54,
-22,
25,
26,
12,
-50,
0,
-34,
11,
-62,
-18,
-4,
60,
-5,
-52,
-54,
17,
-26,
9,
13,
-54,
-47,
-14,
-4,
11,
-40,
17,
-10,
-41,
0,
-17,
-16,
-27,
13,
12,
-5,
-3,
41,
15,
5,
-59,
17,
12,
6,
47,
-35,
8,
-12,
40,
-4,
-4,
74,
-18,
-34,
0,
19,
-23,
-41,
22,
-27,
14,
-37,
-25,
-19,
2,
-39,
25,
20,
-32,
-48,
107,
-38,
17,
-34,
-25,
-66,
21,
61,
14,
0,
77,
47,
12,
45,
-31,
90,
-14,
7,
9,
22,
-10,
-7,
-6,
24,
-56,
-45,
7,
4,
-13,
3,
43,
17,
-11,
-5,
70,
16,
32,
-1,
26,
37,
10,
-6,
19,
-8,
-44,
2,
75,
-40,
-35,
-31,
-32,
4,
-54,
-8,
-20,
-28,
-10,
-40,
26,
-8,
-15,
1,
-41,
-9,
-16,
55,
-36,
14,
-47,
46,
24,
-36,
-15,
56,
-23,
24,
-33,
-6,
-22,
-28,
33,
32,
-18,
-63,
-95,
-10,
-29,
-66,
-26,
15,
-59,
-26,
42,
-1,
-20,
-20,
-46,
-49,
-63,
-1,
-29,
48,
54,
29,
7,
44,
-16,
6,
-31,
-33,
20,
20,
17,
5,
-9,
-2,
-26,
12,
-85,
-9,
25,
-17,
43,
-5,
39,
-45,
10,
-37,
0,
-39,
-28,
-28,
-69,
81,
-30,
-32,
77,
-1,
9,
-23,
11,
47,
-56,
-16,
-22,
66,
-36,
53,
12,
17,
-26,
39,
72,
-51,
12,
-41,
45,
60,
40,
7,
38,
-9,
11,
-4,
40,
-4,
3,
-33,
41,
-10,
-19,
-58,
46,
65,
43,
15,
-52,
-10,
-23,
-31,
-9,
-19,
-39,
25,
18,
-2,
-32,
15,
-13,
59,
-26,
-19,
-58,
-3,
-68,
17,
34,
11,
4,
0,
2,
-23,
4,
-48,
12,
-48,
24,
15,
10,
-35,
-77,
22,
-44,
-16,
64,
-20,
-66,
14,
-34,
93,
-17,
33,
-92,
46,
22,
-56,
56,
-13,
84,
16,
-7,
-10,
79,
2,
-54,
5,
17,
66,
-4,
26,
-28,
-22,
-35,
-2,
-21,
9,
2,
16,
15,
21,
-37,
-29,
-35,
-24,
25,
-29,
22,
14,
1,
-10,
39,
49,
-27,
-21,
-27,
99,
-18,
0,
-19,
56,
45,
-15,
8,
-2,
-41,
78,
-25,
-16,
87,
51,
21,
9,
54,
60,
16,
6,
-27,
29,
2,
22,
67,
31,
36,
-14,
-11,
-1,
-11,
80,
7,
23,
-3,
-77,
54,
-4,
13,
34,
-16,
-44,
17,
25,
23,
56,
9,
41,
33,
24,
-28,
-9,
52,
-44,
-58,
37,
-45,
24,
-18,
-51,
-23,
-42,
-48,
-54,
-15,
-17,
73,
-42,
0,
51,
30,
-27,
-16,
-19,
-31,
-11,
20,
38,
-31,
95,
-12,
11,
-71,
0,
-15,
10,
0,
-21,
8,
-23,
31,
-20,
53,
-47,
9,
-48,
-63,
-16,
-30,
57,
-13,
-29,
-5,
11,
61,
54,
-6,
-39,
-33,
-2,
-17,
5,
-61,
47,
-19,
76,
-2,
22
] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Subsequent to a trial by jury, the Montana Eleventh Judicial District Court, Flathead County, convicted Robert Anthony Cesnik, Sr., of felony assault with a weapon. The court sentenced Cesnik to the Montana State Prison for a term of ten years with six of those years suspended. Cesnik appeals on two grounds. First, he argues that the District Court incorrectly admitted testimony at trial referencing offensive phrases displayed on Cesnik’s truck and clothing. Second, Cesnik argues that the District Court improperly based the sentence on negative inferences drawn from his silence at the sentencing hearing. We affirm and reverse.
¶2 We restate the issues as follows:
¶3 1. Whether the District Court correctly admitted evidence of phrases on Cesnik’s truck and clothing.
¶4 2. Whether the District Court imposed a legal sentence when it based Cesnick’s punishment, in large part, on his refusal to accept responsibility and show remorse.
FACTUAL BACKGROUND
¶5 The weekend of July 26, 2003, the Flathead Valley Clay Target Club, a trap shooting club, sponsored a three-day registered shoot, sanctioned by the American Trapshooters Association (ATA) and the Montana State Trapshooters Association (MSTA). During the event, Robert Cesnik, Sr., became upset over a discrepancy involving a shoot his son won on Friday. Cesnik believed the club unfairly required his son to participate in a re-shoot because of a complaint filed by Keith Brian Sipe-a complaint Cesnik contends did not conform with ATA laws. On Saturday morning, Cesnik walked into the club and engaged in a verbal altercation with Sipe. Cesnik then exited the building and, according to witnesses, retrieved his shotgun from the shotgun rack, loaded it with what appeared to be a live round, closed the shotgun and motioned for Sipe to come outside. Some time after the incident, Sipe notified police, resulting in the State charging Cesnik with the crime of assault with a weapon.
¶6 Throughout proceedings, Cesnik maintained his innocence, arguing that by the time he exited the building, he had begun focusing on his shoot and was not threatening Sipe. Consistent with his position regarding the events that transpired, Cesnik pled not guilty and requested a trial by jury. Cesnik filed a motion in limine prior to trial requesting that the court preclude any argument or testimony regarding inflammatory writings or expletives appearing on Cesnik’s truck and clothing. Cesnik’s truck contained writings that stated “Fuck Liberals,” but with the “F” reversed so that it apparently read, “Puck Liberals” (as in a hockey puck). His truck also contained the wording “pro-gun,” and a phrase with a Spanish expletive-“chinga Calif. Liberals.” Cesnik had also worn clothing with similar phrases. Because some club members objected to the visibility of such language on Cesnik’s truck when parked in the club’s lot, the board asked him to lower his tailgate and back in when attending the club. Cesnik complied with this request.
¶7 Cesnik filed a motion in limine to bar reference to these phrases at trial, arguing that the language on his truck and clothing had no relevance to the charges to be tried and that the introduction of such evidence created an unfair prejudice. The District Court did not rule on the motion in limine. Dining the two-day trial, Cesnik repeatedly objected to the State’s attempts to solicit testimony regarding the language on his truck and clothing. Eventually, the court admitted the evidence during the testimony of Rick L. Craig, vice-president of the club. During direct examination of Craig by Cesnik’s attorney, the following exchange took place:
Cesnik’s Attorney: Okay. As a board member, do you know whether Mr. Sipe has been interested in getting Mr. Cesnik banned from the trap club?
Craig: Oh, I think there was definitely an interest on Mr. Sipe’s part to have Bob removed.
Cesnik’s Attorney: Has Mr. Cesnik ever been banned from your trap club?
Craig: No.
The State then cross-examined Craig:
State: You mentioned a discussion to possibly ban Mr. Cesnik from the gun club. That was a general discussion among several of the club members, correct?
Craig: I don’t know what “several of the club members” means, but there was a discussion amongst a few of them.
State: And this has to do with different behaviors the Defendant has engaged in?
Craig: Yes.
State: Are they offensive behaviors?
Craig: In my opinion, no.
State: In the opinion of some of the other club members?
Cesnik objected to this questioning of Craig by the State:
Cesnik’s Attorney: Objection, he can’t testify to the opinions of other club members.”
Court: No, you asked him if-whether or not there was definitely an interest in Mr. Sipe-in having the Defendant removed from the trap club, and the State’s entitled to inquire as to a basis for that. The door’s been opened for that purpose, so the objection is overruled.
The State then proceeded to ask the witness specifically whether Cesnik’s truck and clothing contained the phrases “fuck Californians, fuck liberals.”
¶8 Cesnik testified at trial, maintaining his innocence regarding the offense charged. When asked by his attorney if he picked up his weapon to threaten Sipe, Cesnik responded, “No, sir,” explaining that he picked up his weapon in order “[t]o proceed to the practice trap to shoot a round.” At the end of the two-day trial, a jury found Cesnik guilty of assault with a weapon.
¶9 Prior to sentencing, the Department of Corrections, Office of Probation and Parole, prepared a presentence report. When interviewing Cesnik for the report, the probation officer asked Cesnik to provide his thoughts on how the court should proceed with his sentence. Cesnik responded: “I’m not being a smart-ass, my charges should be dropped.”
¶10 While Cesnik testified at trial, he chose not to speak at the sentencing hearing. Cesnik’s counsel did not invoke Cesnik’s right to remain silent; nor did the District Court comment on his silence. After hearing testimony, the court stated the basis for its sentencing decision, in significant part, reflected its concern over Cesnik’s tendency toward violent outbursts, and his continued denial and lack of remorse for such incidences.
[T]he Court has concern at page 4 of the presentence report where the Defendant is asked to give his own statement: “In your own words what did you do to get arrested on this charge?” And quoting the Defendant-this isn’t my language-he, Cesnik, “I called Brian Sipe a motherfucker.” That’s not what he was convicted of, and that’s not what the evidence indicated he did. He did do that, but that’s not why we’re here. ...
And in further-giving rise to further concern as to a lack of acceptance of responsibility, when the officer, through this report, asked Mr. Cesnik, the Defendant, to give his recommendation as to what the Court should do, he says, “I’m not being a smart-ass, my charges should be dropped.” This is after he has been convicted of threatening a person with a loaded shotgun.
These are concerns that the court has. Refusal to accept responsibility is a big one.... [W]ithout remorse and acceptance of responsibility, you cannot have rehabilitation, it doesn’t happen.
And the record will reflect the Judge agrees.
There is evidence here of a history of violence. As I have indicated, remorse is important. There is none here. A purpose in sentencing in the State of Montana is-it’s many-fold, the Court must try to promote rehabilitation, it must impose a sanction for the behavior that the Defendant has been convicted of engaging in, it must consider protection of society. And what is contemplated here is something that hopefully will accomplish all that without taking away from this Defendant what he threatened to take away from Brian Sipe.... [T]here needs to be structure here so that acceptance of responsibility occurs.
And it is for that reason that the Court is inclined to follow more the recommendation made by the State than by the Defendant, or, in the middle, that made by the presentence investigation .... And I think under the totality of the circumstances, and having listened to all of the evidence, and clearly recalling the circumstances as they were portrayed and found to have occurred by a unanimous jury of 12 citizens, the Court is prepared to enter judgment here ....
... The Court observed then, and it’s affirmed by this presentence report, there was no remorse or even then acceptance of responsibility on the Defendant’s part.
¶11 The District Court sentenced Cesnik to a term of ten years at the Montana State Prison, with six years of incarceration suspended. Cesnik appealed the decision to this Court, arguing that the District Court improperly admitted evidence regarding the material on Cesnik’s truck and clothing, and improperly penalized Cesnik during sentencing for maintaining his innocence.
STANDARD OF REVIEW
¶12 “This Court’s standard review of rulings on the admissibility of evidence, including oral testimony, is whether the district court abused its discretion.” State v. Snell, 2004 MT 334, ¶ 17, 324 Mont. 173, ¶ 17, 103 P.3d 503, ¶ 17. See also State v. Castle, 1999 MT 141, ¶ 11, 295 Mont. 1, ¶ 11, 982 P.2d 1035, ¶ 11. “The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion.” Snell, ¶ 17. See also State v. Monaco (1996), 277 Mont. 221, 225, 921 P.2d 863, 866; State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067; and State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380. “A district court’s ruling on a motion in limine is an evidentiary ruling and the court has broad discretion in determining whether evidence is relevant and admissible, and as such, we will not overturn a district court’s determination absent an abuse of that discretion.” Snell, ¶ 17.
¶13 “This Court reviews a criminal sentence for legality only.” State v. Shreves, 2002 MT 333, ¶ 8, 313 Mont. 252, ¶ 8, 60 P.3d 991, ¶ 8. See also State v. Burkhart, 2004 MT 372, ¶ 58, 325 Mont. 27, ¶ 58, 103 P.3d 1037, ¶ 58; State v. J.C., 2004 MT 75, ¶ 36, 320 Mont. 411, ¶ 36, 87 P.3d 501, ¶ 36; State v. McLeod, 2002 MT 348, ¶ 12, 313 Mont. 358, ¶ 12, 61 P.3d 126, ¶ 12.
DISCUSSION ISSUE 1
Whether the District Court correctly admitted evidence of phrases on Cesnik’s truck and clothing.
¶14 During trial, Cesnik asked Rick L. Craig, vice-president of the club, and a witness for the defense, “whether Mr. Sipe has been interested in getting Mr. Cesnik banned from the trap club.” Craig responded, “Oh, I think there was definitely an interest on Mr. Sipe’s part to have Bob removed.” During cross-examination, the State followed up on this line of questioning by asking Craig whether several club members discussed banning Cesnik due to perceived “offensive behaviors.” Cesnik objected to the State’s questions, arguing that the witness “can’t testify to opinions of other club members.” The Court overruled Cesnik’s objection, noting that Cesnik opened the door to inquiries about why Sipe and some other club members wanted to remove Cesnik from the trap club. Given permission by the court, the State proceeded to ask the witness about the phrases “fuck Californians, fuck liberals” on Cesnik’s truck and clothing.
¶15 On appeal, Cesnik asserts that the District Court improperly allowed testimony referencing the phrases because the evidence had no relevance to the question of Cesnik’s guilt, caused prejudice, and may have confused the issues. We must address whether the District Court abused its discretion by allowing into evidence the phrases on Cesnik’s truck and clothing. Importantly, “[t]rial courts have broad discretion to determine whether evidence is relevant and admissible, and, absent a showing of abuse of discretion, these determinations will not be overturned.” State v. Strauss, 2003 MT 195, ¶ 18, 317 Mont. 1, ¶ 18, 74 P.3d 1052, ¶ 18 (citing State v. Osborne, 1999 MT 149, ¶ 23, 295 Mont. 54, ¶ 23, 982 P.2d 1045, ¶ 23).
¶16 Rule 401, M.R.Evid., defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Relevant evidence may include evidence bearing upon the credibility of a witness or hearsay declarant.” (Emphasis added.) Since Cesnik opened the door to the question of whether Sipe wanted Cesnik banned from the club, testimonial evidence of certain phrases on Cesnik’s truck and clothing were relevant to the jury’s understanding of the strained relationship between the two men. The evidence that Sipe wanted Cesnik removed from the club was relevant to explaining additional motivation for Cesnik assaulting Sipe, and also, why Sipe would have had reason to experience fear and/or apprehension of Cesnik. The explanation of the ongoing conflict between Cesnik and Sipe necessarily referenced the language on Cesnik’s truck and clothing. Cesnik argues that the evidence should have been excluded as prejudicial because it “served no purpose other than to inflame the passions of the jury and to confuse the issues.” All relevant evidence is admissible, even that which is prejudicial. Relevant evidence is only excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Rule 403, M.R.Evid. Here, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.
¶17 We conclude that the District Court did not err in admitting the evidence. It provided further context to the animosity between Cesnik and Sipe and explained why Sipe wanted Cesnik removed from the club-an issue which Cesnik’s counsel broached on direct examination of Craig. The District Court did not abuse its discretion by admitting the disputed evidence.
ISSUE 2
Whether the District Court imposed a legal sentence when it based Cesnick’s punishment, in large part, on his refusal to accept responsibility and show remorse.
¶18 On appeal Cesnik, noting his assertion of innocence and that he did not testify on his own behalf at the sentencing hearing, argues that the court improperly imposed a harsher sentence by interpreting his silence as a refusal to accept responsibility and show remorse. In support of his argument, Cesnik relies upon our decision in State v. Shreves, 2002 MT 333, 313 Mont. 252, 60 P.3d 991, in which we stated the following narrow rule: “a sentencing court may not draw a negative inference of lack of remorse from the defendant’s silence at sentencing where he has maintained, throughout the proceedings, that he did not commit the offense for which he stands convicted-i.e., that he is actually innocent.” Shreves, ¶ 22. We noted that our decision stood “grounded in state and federal constitutional protections against self incrimination.” Shreves, ¶ 22. Shreves, in other words, turned on the proposition that a court cannot impose a harsher sentence due to the defendant having invoked his constitutional right to remain silent.
¶19 Unlike the defendant in Shreves, Cesnik did not invoke his right to remain silent at the sentencing hearing. “A person claiming the protection of the Fifth Amendment generally must affirmatively invoke it.” State v. Fuller (1996), 276 Mont. 155, 160, 915 P.2d 809, 812 (citation omitted). If a defendant “fails to assert the privilege, it will be deemed waived.” Fuller, 276 Mont. at 160, 915 Mont. at 812 (citations omitted). Not only did Cesnik fail to expressly invoke his constitutional right to remain silent during sentencing, the court did not mention, nor allude to Cesnik’s silence as a factor in determining punishment.
¶20 The court’s harsher sentence was not based on what Cesnik did not say, but rather, on what he did say-that is, Cesnik insisted that he was innocent. At the outset of the sentencing hearing, the court observed that Cesnik refused to accept responsibility and show remorse, evidenced by his response during the presentence report interview when he told the probation officer that his “charges should be dropped.” Dismayed by Cesnik’s comment, the court spent the remainder of the hearing commenting on the need to impose a sentence that would instill acceptance of responsibility in Cesnik. To this end, the court imposed a sentence of ten years with six years suspended.
¶21 In Shreves, we held that, while “lack of remorse can be considered as a factor in sentencing, we cannot uphold a sentence that is based on a refusal to admit guilt.” Shreves, ¶ 20. Since Shreves expressly invoked his right to remain silent, we concluded that the sentencing court could not, based on that silence, infer lack of remorse and failure to accept responsibility. Here, although Cesnik did not expressly invoke his right to remain silent, he did maintain his innocence.
¶22 We discussed the above Shreves reasoning in State v. Burkhart, 2004 MT 372, ¶ 59, 325 Mont. 27, ¶ 59,103 P.3d 1037, ¶ 59. In Burkhart we determined that the record failed to “reflect that the court considered Burkhart’s silence at the sentencing hearing as lack of remorse” or that “Burkhart’s sentence was in large part based upon the fact that he refused to take responsibility and admit his crime.” Burkhart, ¶ 60 (citing Shreves, ¶ 13). We affirmed the court’s careful consideration of many relevant factors in sentencing Burkhart. Burkhart, ¶ 60.
¶23 In State v. Imlay (1991), 249 Mont. 82, 91, 813 P.2d 979, 985, we held that a defendant has a constitutional right against self-incrimination, “which prohibit[s] augmenting a defendant’s sentence because he refuses to confess to a crime or invokes his privilege against self-incrimination.” In that case, after a jury convicted the defendant of sexual assault, the court sentenced him to prison with certain conditions, including the condition that he complete a sexual therapy program. Imlay, 249 Mont. at 84, 813 P.2d at 981. In order to participate in the treatment program, an inmate had to admit committing the crime-an action Imlay refused to take. The District Court consequently revoked the defendant’s suspended sentence. On appeal, we observed that “the defendant is being subjected to a penalty that he would not otherwise be subjected to if he would simply admit his guilt.” Imlay, 249 Mont. at 90, 813 P.2d at 985. We held this to be a violation of the defendant’s right against self-incrimination.
While the sentencing judge may take into account his belief that the defendant was not candid with the court, this is to be distinguished from the rule that a sentence may not be augmented because a defendant refuses to confess or invokes his privilege against self-incrimination.
Imlay, 249 Mont. at 88-89, 813 P.2d at 984 (citations omitted). We then explained that because “our system still provides ... for opportunities to challenge [the] conviction,” compelling a defendant “to admit guilt as a condition to his continued freedom” would render meaningless our criminal justice system. Imlay, 249 Mont. at 90-91, 813 P.2d at 985.
¶24 Here, in imposing sentence, the court noted that Cesnik, even “... after he has been convicted of threatening a person with a loaded shotgun,” told the probation officer, “I’m not being a smart-ass, my charges should be dropped.” Contrary to the situation in Burkhart, it is apparent that the court was dismayed at Cesnik’s refusal to acknowledge the jury’s verdict and that the court placed considerable weight on the fact that Cesnik, despite having been convicted of the offense, had not accepted responsibility for his acts. That is, he would not admit to having committed the crime. Given that Cesnik had consistently maintained his innocence and had a right to appeal his conviction, such an admission would have undermined his constitutionally protected right not to incriminate himself and rendered his appeal meaningless.
¶25 We hold that a sentencing court may not punish a defendant for failing to accept responsibility for the crime when that defendant has expressly maintained his innocence and has a right to appeal his conviction.
¶26 We affirm the conviction and reverse the imposition of sentence and remand for a new sentencing.
CHIEF JUSTICE GRAY, JUSTICES COTTER, MORRIS and NELSON concur.
|
[
32,
0,
-22,
51,
-12,
-62,
-57,
28,
-17,
22,
-33,
27,
-1,
-44,
44,
-22,
17,
29,
-25,
-5,
2,
-45,
-22,
-18,
8,
-48,
-42,
68,
-49,
-1,
72,
-10,
-3,
-39,
3,
25,
49,
10,
-8,
85,
18,
2,
2,
-27,
-23,
-28,
-8,
43,
-11,
18,
73,
-67,
40,
-9,
-19,
-27,
-10,
18,
0,
38,
31,
8,
-5,
-13,
38,
-41,
48,
19,
-23,
-17,
-18,
-2,
-41,
57,
-19,
-10,
-38,
4,
-10,
5,
-47,
16,
39,
-11,
-16,
-32,
-14,
-3,
-20,
29,
23,
22,
-57,
-16,
34,
-18,
58,
-46,
-45,
-25,
-38,
-21,
32,
9,
-38,
-1,
-54,
-40,
31,
38,
-9,
31,
22,
-10,
-21,
-21,
-17,
39,
39,
28,
-19,
-28,
38,
-36,
-36,
-60,
32,
-19,
44,
35,
-34,
-18,
31,
-2,
-52,
29,
-9,
35,
24,
5,
19,
-8,
55,
-30,
44,
-46,
5,
32,
29,
12,
-31,
31,
2,
28,
9,
-18,
-9,
-30,
11,
5,
33,
-26,
-79,
-10,
7,
28,
-24,
-33,
-29,
-54,
-20,
32,
17,
41,
46,
61,
4,
-2,
44,
7,
-29,
14,
31,
0,
29,
17,
2,
4,
3,
10,
-17,
22,
18,
23,
-1,
-1,
1,
4,
-16,
-32,
46,
-2,
42,
-6,
-23,
-24,
64,
32,
34,
-52,
16,
20,
6,
-9,
2,
-30,
-29,
40,
-22,
-23,
-28,
-34,
8,
19,
24,
-33,
14,
37,
-36,
-65,
38,
-3,
30,
-2,
31,
-27,
0,
-16,
1,
-12,
5,
3,
10,
-12,
42,
34,
-27,
19,
-8,
-30,
-20,
-26,
18,
45,
-32,
18,
20,
-69,
-27,
7,
-6,
-28,
30,
-45,
-15,
85,
-18,
-29,
-34,
20,
8,
-26,
64,
13,
8,
-12,
19,
-26,
43,
-32,
67,
57,
17,
-57,
-11,
-6,
-25,
20,
-17,
-69,
9,
9,
7,
10,
23,
-39,
27,
-53,
14,
13,
-12,
19,
-19,
28,
23,
-30,
6,
11,
-35,
-8,
29,
19,
-5,
1,
17,
25,
-57,
-28,
7,
8,
0,
-12,
-39,
-34,
-8,
-14,
-15,
9,
-22,
-28,
-26,
19,
20,
1,
19,
-22,
2,
-6,
57,
22,
13,
-38,
26,
-6,
-5,
46,
-6,
43,
-51,
-51,
0,
-7,
2,
0,
-6,
-16,
-19,
-13,
45,
-27,
66,
-7,
-39,
-32,
23,
6,
2,
-46,
-29,
9,
-2,
-35,
34,
-3,
-5,
10,
26,
-27,
-24,
42,
12,
44,
22,
-42,
47,
0,
34,
-28,
44,
8,
-32,
1,
-8,
-12,
1,
-10,
-30,
-8,
33,
-8,
-35,
-21,
22,
-34,
8,
-14,
-14,
-3,
-42,
-15,
5,
-12,
10,
16,
5,
-14,
-46,
-15,
-25,
-25,
4,
-62,
47,
-32,
11,
-78,
-39,
12,
-7,
-37,
75,
38,
-35,
-4,
-20,
-48,
-40,
39,
3,
-40,
-55,
-48,
34,
-64,
16,
-3,
16,
37,
0,
-16,
-33,
-1,
-20,
-59,
-12,
32,
20,
-14,
8,
-34,
24,
-27,
-20,
-19,
48,
-28,
-38,
-45,
46,
-9,
71,
5,
-61,
52,
11,
19,
19,
39,
-27,
-12,
10,
25,
-38,
-18,
-73,
-47,
-28,
7,
63,
-3,
-4,
22,
33,
-5,
-54,
33,
11,
67,
23,
9,
-31,
-18,
-2,
-16,
-15,
38,
69,
-18,
-32,
31,
-14,
6,
-17,
-16,
-41,
-15,
-4,
12,
-28,
13,
11,
-11,
27,
-14,
-40,
-66,
-18,
-44,
-43,
-12,
-19,
15,
-24,
9,
49,
39,
0,
-10,
37,
5,
37,
-47,
40,
-12,
19,
-41,
19,
-6,
50,
39,
12,
-6,
34,
-45,
48,
-11,
20,
40,
22,
-30,
61,
18,
-12,
39,
28,
6,
-14,
-37,
67,
-46,
2,
25,
-9,
-2,
-6,
-25,
12,
48,
-6,
26,
28,
-18,
26,
32,
1,
-42,
43,
-10,
60,
23,
38,
-28,
51,
1,
-43,
5,
22,
-24,
-11,
-12,
2,
12,
40,
14,
30,
19,
24,
-34,
32,
46,
11,
26,
35,
-14,
-17,
71,
-13,
-51,
2,
-15,
7,
-48,
-8,
19,
16,
-20,
-67,
-24,
19,
-48,
-88,
-12,
-1,
-5,
-13,
-38,
1,
8,
-51,
10,
15,
-3,
74,
-21,
2,
-27,
-24,
12,
-2,
-11,
-33,
-7,
2,
-20,
0,
-27,
-59,
43,
75,
13,
-11,
60,
-76,
-15,
-23,
10,
13,
-42,
24,
35,
54,
10,
13,
-50,
-12,
24,
-15,
-58,
8,
-23,
-10,
-28,
9,
-55,
7,
81,
46,
16,
34,
26,
-5,
10,
4,
36,
10,
17,
37,
8,
-55,
12,
-18,
-2,
-56,
-73,
3,
-25,
21,
-25,
37,
8,
-25,
83,
7,
23,
-31,
-33,
-1,
-63,
-74,
26,
-60,
4,
-38,
-5,
65,
0,
-15,
11,
12,
35,
16,
18,
39,
18,
41,
53,
-43,
-4,
16,
-55,
0,
-39,
17,
7,
0,
41,
8,
-40,
60,
-22,
21,
21,
15,
-20,
-75,
14,
52,
16,
-46,
-31,
35,
55,
12,
-35,
-73,
-40,
33,
9,
81,
-48,
25,
-69,
-41,
2,
-49,
15,
-1,
-29,
20,
-13,
26,
66,
-40,
-17,
38,
25,
-36,
30,
-15,
7,
12,
-2,
-10,
6,
23,
0,
31,
20,
30,
8,
-31,
23,
47,
-8,
0,
3,
51,
-2,
5,
4,
-7,
5,
-2,
29,
11,
-1,
-23,
6,
31,
-7,
34,
8,
64,
-42,
9,
-19,
-20,
-58,
-43,
-11,
47,
33,
-21,
7,
-16,
-45,
30,
0,
-3,
19,
78,
13,
47,
13,
80,
-31,
11,
-13,
27,
-3,
24,
15,
-8,
-13,
-21,
3,
-22,
4,
12,
45,
-6,
-14,
-25,
-32,
2,
-34,
56,
-23,
4,
38,
39,
0,
43,
34,
-38,
30,
-85,
28,
-25,
-30,
13,
-34,
-33,
-8,
20,
-24,
-29,
-42,
3,
-39,
-36,
-6,
0,
-35,
4,
20,
-40,
-15,
6,
-60,
41,
12,
20,
3,
57,
-14,
-2,
32,
0,
9,
1,
12,
7,
39,
-5,
-16,
-28,
33,
35,
-22,
-50,
64,
41,
42,
-15,
-28,
-68,
-46,
1,
90,
-9,
32,
1,
-49,
-46,
61,
-30,
13,
35,
-16,
-33,
-5,
9,
22,
5,
31,
-6,
-49,
-32,
22,
5,
19,
-2,
45,
-29,
-66,
-21,
27,
17,
-24,
-12,
13,
-72,
1,
-1,
-27,
-8,
-10,
0,
0,
6,
-10,
8,
1,
9,
-11,
-17,
40,
22,
11,
-2,
2,
15,
-21,
5,
3,
-21,
-3,
-20,
15,
-79,
25,
-46,
48,
-4,
-2,
15,
-14,
-30,
-30,
26,
46,
-18,
-56,
2,
35,
17,
3,
-19,
12,
13,
-25,
14,
-35,
19,
1,
12,
-26,
-2,
-11,
-55,
7,
29,
-14
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was commenced in a justice of the peace court to recover possession of a calf of the alleged value of $50. Plaintiff prevailed, and defendant appealed to the district court. When the cause came on for trial before the district court, plaintiff made application to amend his complaint, but the application was denied. When he called his first witness, defendant objected to the introduction of any evidence, on the ground that the complaint does not state facts sufficient to constitute a cause of action, and the objection was sustained. Plaintiff then renewed his motion to amend, but the motion was overruled, and he rested without having introduced any evidence. Thereupon defendant moved for a directed verdict, and the motion was sustained, verdict returned, and judgment rendered and entered. From that judgment and from an order denying a new trial, plaintiff appealed to this court.
It is conceded that the complaint is insufficient in that it does not disclose that plaintiff was entitled to the possession of the animal at the time the action was commenced (Chan v. Slater, 33 Mont. 155, 82 Pac. 657); but it is insisted that the court erred in refusing permission to make an amendment which would have cured the defect. Section 9755, Revised Codes of 1921, provides that an appeal from a justice of the peace court must be tried anew upon the papers filed in that court, unless the district court “for good cause shown” allows other or amended pleadings to be filed. Section 9187 provides that the district court, “in furtherance of justice,” may allow a party to amend any pleading in an action commenced in that court. There is not any distinction in principle between the provisions of these two sections. In either instance the application to amend is addressed to the sound legal discretion of the court (Cullen v. Western M. & W. Title Co., 47 Mont. 513, 134 Pac. 302), and it is elementary that there must be such a showing made as will move the court’s discretion. "While under our liberal Practice Act amendments are allowed generally, they are to be allowed in furtherance of justice, and not as a reward for indifference or neglect.
This action was commenced in June, 1918, tried in the justice of the peace court in July, the record on appeal lodged in the district court in August, 1918, and the cause brought to trial in the district court in October, 1919. In passing upon the application to amend, the trial court directed attention to these facts and to the further facts that the sufficiency of the complaint was challenged at the trial before the justice of the peace, that, though fifteen months elapsed thereafter, no effort was made to have the pleading amended until the trial had commenced in the district court, and that there was not any showing made or any excuse for the delay offered. Under these circumstances it cannot be contended seriously that the court abused its discretion. The language employed in the Cullen Case above is peculiarly applicable here, and further discussion of this assignment is unnecessary. In that case this court said: “While it is the policy of our law to permit amendments to pleadings in order that litigants may have their causes submitted upon every meritorious consideration that may be open to them (Rev. Codes, secs. 6588, 6589), and while it is the rule to allow, and the exception to deny, amendments (Leggat v. Palmer, 39 Mont. 302, 102 Pac. 327; Flaherty v. Butte Electric Ry. Co., 43 Mont. 141, 115 Pac. 40), yet thej are not at all stages of the proceedings a matter of right. After issue joined, the matter lies within the sound judicial discretion of the trial court, and an abuse of that discretion must be made to appear before this court can say that a refusal of leave to amend was wrong.”
It is contended, further, that the court erred in directing a verdict, and that the proper practice should have been to grant a nonsuit or dismiss the complaint, in conformity with the provisions of subdivision 5, section 9317, Revised Codes of 1921. Speaking with technical precision, this contention is well founded. A motion for a directed verdict is, in legal effect, a demurrer to the evidence (McIntyre v. Northern Pac. Ry. Co., 56 Mont. 43, 180 Pac. 971), and, since there was not any evidence before the court, the proceeding 'was irregular; but a cause will not be reversed for a mere technical error which does not affect the substantial rights of the party complaining (sec. 9191, Rev. Codes 1921). Plaintiff was not injured by the irregularity, for he is not placed in a worse position than he would have been if the court had observed strictly the provisions of section 9317, above.
In Consolidated Gold, & Sapphire Min. Co. v. Struthers, 41 Mont. 565, 111 Pac. 152, this court said: “But it has always been the practice in this jurisdiction that, when the evidence on the part of the plaintiff does not tend to establish the cause of action stated in the complaint, the court may direct a verdict or take the case from the jury and enter a judgment of nonsuit. In such ease there is nothing for the jury to find. [Citing eases.] "Whether the court pursues one course or the other, the result is the same; for, though the court directs the return of a. formal verdict, the result is nothing more than a determination of the case by the court, the jury performing no other office than that of giving form to the court’s conclusion.”
The verdict returned by the jury reads as follows: “We, the jury in the above-entitled action, by direction of the court, find the issues in favor of the defendant, and against the plaintiff. We find that the defendant is the owner of and entitled} to the possession of the animal described in the plaintiff’s complaint, and that the value thereof is the sum of $50.” Since the burden of proof was upon the plaintiff, and there was not any evidence whatever introduced, it is manifest that the only verdict which could be returned was a general verdict for the defendant. Without evidence it was impossible for the jury to determine the question of ownership, and without either evidence or direction from the court there could not be a determination of the question of value. However, the fact that the jury exceeded its authority and found upon questions not properly before it does not vitiate the verdict in its entirety. It is still a valid general verdict for the defendant, and the additional findings upon the questions of ownership and value may be treated as surplusage and disregarded. (McLean v. Douglass, 28 N. C. 233; 27 R. C. L. 853.)
The judgment does not determine the question of ownership but directs a return of the property which had been taken by the plaintiff at the commencement of the action, and awards to defendant his costs. This form of judgment was approved in Wheeler v. Jones, 16 Mont. 87, 40 Pac. 77. The return of the property and the award of costs follow as incidents of plaintiff’s failure to establish his case. The judgment directs a return of the property or its value, $50, in the event that the delivery of possession cannot be had. The court evidently proceeded upon the theory that section 9406, Revised Codes of 1921, requires that in every action in claim and delivery the judgment must be in the alternative; but the most cursory reading of the statute indicates that it applies only to a case which has been tried upon the merits. However, plaintiff was not injured. He alleges that the animal is of [8] the value of $50, and cannot complain that the court accepted his allegation as true. In an affirmative defense defendant alleges that the animal is of the value of $75, but it was competent for him to waive that defense, and he did so specifically in his motion for a directed verdict. The errors committed by the trial court did not prejudice the plaintiff in any substantial rights.
The judgment and order are affirmed.
'Affirmed.
Mr. Chief ’Justice Brantly and Associate Justices Cooper and Galen concur.
|
[
-18,
-4,
3,
-4,
5,
-33,
32,
2,
-17,
58,
28,
0,
6,
39,
22,
-12,
15,
-44,
16,
0,
-11,
-14,
1,
-29,
45,
-18,
-28,
-59,
-13,
-21,
22,
53,
-20,
42,
-6,
-50,
-46,
-3,
49,
13,
29,
-35,
44,
-3,
-29,
51,
4,
0,
27,
-5,
12,
-51,
-33,
-16,
-46,
-10,
-32,
21,
-41,
18,
0,
30,
10,
8,
1,
1,
-60,
-47,
-53,
-15,
-16,
-21,
2,
-60,
0,
-54,
17,
-55,
-40,
27,
-18,
13,
6,
-30,
-13,
39,
44,
-32,
26,
-23,
-5,
35,
-26,
20,
-23,
43,
12,
-36,
-16,
-19,
-24,
-20,
7,
1,
6,
57,
-68,
10,
28,
-36,
1,
29,
3,
-24,
26,
-36,
-17,
52,
-19,
-32,
28,
3,
41,
-6,
-2,
20,
32,
33,
28,
33,
-22,
29,
39,
21,
-40,
-11,
-3,
-40,
38,
44,
-19,
5,
-28,
-46,
18,
-11,
-20,
-2,
-39,
-21,
20,
71,
28,
38,
-7,
-22,
12,
-12,
38,
12,
8,
21,
-50,
0,
45,
28,
10,
-26,
28,
-36,
-58,
1,
-40,
-3,
5,
24,
-13,
-8,
-40,
-14,
-13,
46,
11,
-36,
-5,
-4,
-37,
-8,
27,
-10,
34,
-15,
-57,
-16,
56,
-12,
-28,
-11,
60,
-32,
-13,
-16,
-5,
-8,
-26,
-5,
2,
-69,
51,
-10,
-77,
-29,
-34,
-18,
3,
-28,
48,
7,
-20,
28,
-33,
17,
22,
26,
-10,
-11,
38,
28,
23,
-16,
-86,
28,
30,
-34,
36,
-6,
7,
-12,
-14,
21,
-25,
8,
-26,
-20,
6,
-8,
30,
7,
54,
-12,
-3,
7,
35,
-8,
20,
23,
15,
-33,
-34,
-26,
29,
14,
14,
26,
-40,
-58,
-27,
-8,
-23,
25,
11,
-2,
17,
20,
-22,
-24,
-34,
-26,
29,
15,
-13,
21,
28,
-4,
3,
28,
3,
27,
35,
37,
-34,
-31,
-48,
-14,
-9,
49,
-3,
-23,
15,
8,
-31,
-11,
-30,
28,
-42,
-72,
10,
-46,
-32,
-50,
27,
28,
-20,
28,
-13,
-14,
-1,
55,
-13,
-62,
26,
13,
20,
39,
-2,
-8,
42,
-26,
-8,
40,
19,
-17,
-4,
13,
10,
20,
-2,
30,
-12,
-2,
75,
-8,
-20,
9,
-2,
15,
-21,
-29,
-10,
6,
9,
9,
-67,
-7,
-3,
-29,
-4,
-44,
0,
36,
37,
1,
43,
-28,
19,
-10,
-6,
-36,
-52,
8,
-52,
-1,
30,
-49,
-16,
-28,
27,
9,
-27,
-17,
11,
-25,
-32,
0,
54,
5,
22,
-17,
2,
1,
1,
32,
52,
11,
13,
51,
-40,
-4,
7,
24,
9,
20,
-23,
-21,
-51,
-42,
-27,
-3,
-5,
26,
15,
44,
6,
-2,
-16,
18,
-44,
16,
35,
12,
11,
-11,
0,
-28,
38,
-51,
65,
-35,
10,
-37,
11,
-43,
-31,
13,
37,
60,
25,
4,
-9,
6,
10,
-2,
-39,
19,
-55,
7,
1,
0,
16,
-12,
35,
-16,
5,
-23,
-13,
43,
50,
22,
32,
14,
7,
-2,
-28,
0,
12,
-19,
11,
-13,
21,
17,
20,
-3,
-17,
-5,
-14,
18,
-65,
33,
12,
-15,
-24,
-10,
-34,
46,
17,
40,
-53,
18,
9,
35,
25,
51,
-5,
21,
-18,
8,
-32,
-26,
40,
-2,
-11,
-7,
-14,
-16,
8,
0,
43,
-5,
36,
57,
4,
58,
15,
-65,
29,
18,
51,
0,
-9,
20,
-15,
-35,
-35,
-69,
-21,
-20,
47,
15,
20,
-62,
23,
-22,
-15,
-5,
23,
14,
31,
51,
19,
-7,
-18,
-1,
24,
-26,
17,
20,
7,
0,
54,
59,
14,
-18,
6,
4,
25,
39,
-34,
1,
10,
-31,
60,
34,
-6,
34,
0,
35,
49,
-43,
-9,
19,
40,
-34,
2,
-2,
-18,
-15,
-11,
-29,
18,
2,
-24,
5,
-8,
31,
8,
-25,
25,
-38,
33,
-33,
3,
12,
12,
-21,
-17,
-4,
-43,
-58,
17,
35,
3,
39,
-10,
37,
11,
-31,
-13,
-4,
-15,
16,
-34,
27,
3,
-2,
13,
-47,
-23,
-3,
37,
35,
3,
-8,
27,
-11,
-33,
-76,
-32,
-10,
14,
0,
15,
-14,
46,
-4,
-9,
42,
-2,
59,
-20,
-24,
7,
-14,
13,
24,
-58,
17,
-13,
26,
-15,
-18,
16,
12,
-27,
-13,
-23,
46,
6,
9,
2,
-21,
-12,
-57,
-78,
-48,
-13,
5,
15,
23,
-47,
-11,
6,
-42,
23,
47,
-1,
-25,
-8,
-9,
50,
-18,
-17,
-8,
-6,
23,
0,
-15,
-32,
10,
1,
52,
32,
-7,
21,
23,
19,
34,
25,
11,
-17,
-60,
-2,
-23,
6,
14,
13,
38,
-11,
-13,
22,
-35,
18,
-30,
-15,
-15,
-31,
-52,
12,
-27,
43,
-10,
27,
45,
47,
-20,
38,
50,
36,
60,
67,
-9,
6,
7,
24,
6,
-40,
18,
-18,
0,
10,
-39,
-19,
5,
23,
11,
3,
5,
8,
-20,
-6,
0,
43,
-19,
-2,
19,
-38,
-20,
-21,
9,
-17,
-39,
36,
-31,
0,
0,
-43,
6,
15,
-11,
-27,
30,
0,
-9,
59,
-43,
-10,
38,
-13,
-43,
28,
-22,
-21,
25,
-38,
-29,
-3,
36,
6,
32,
19,
9,
-1,
-31,
-29,
-21,
-3,
-5,
5,
-11,
26,
19,
8,
-22,
48,
-20,
-8,
63,
-1,
37,
-20,
-15,
-28,
11,
-12,
20,
24,
-35,
2,
-42,
17,
-35,
-15,
38,
10,
25,
75,
-35,
41,
16,
-52,
-5,
-2,
-63,
-60,
33,
-29,
1,
0,
22,
-41,
-5,
-9,
0,
-27,
58,
-3,
7,
-13,
9,
-37,
-31,
-27,
53,
-23,
9,
5,
-41,
-13,
-72,
-20,
-5,
60,
43,
29,
7,
6,
20,
-31,
24,
-60,
40,
27,
36,
-17,
4,
-7,
9,
-45,
-22,
11,
9,
7,
-72,
-19,
38,
-19,
8,
-30,
25,
-14,
14,
16,
26,
24,
29,
45,
-25,
-49,
-8,
10,
-61,
22,
-6,
16,
2,
-21,
-33,
-17,
-5,
-33,
-5,
-17,
-66,
15,
-17,
13,
1,
-29,
-12,
-5,
6,
5,
17,
-18,
5,
-2,
-41,
-8,
52,
26,
48,
-15,
19,
34,
-7,
-17,
-9,
-28,
-74,
-21,
5,
-4,
20,
27,
-21,
-20,
-72,
-61,
-1,
-66,
-9,
-29,
1,
-5,
26,
66,
1,
-42,
16,
9,
10,
-8,
59,
-19,
11,
9,
-12,
-28,
14,
-11,
59,
-12,
-49,
39,
-28,
8,
-8,
15,
-2,
31,
34,
42,
-12,
-24,
1,
37,
26,
11,
-6,
-20,
-13,
15,
32,
6,
19,
-42,
12,
44,
7,
-24,
-35,
-26,
55,
-2,
4,
-36,
-11,
41,
1,
-74,
28,
-31,
-22,
15,
46,
-48,
31,
15,
15,
-98,
29,
-8,
59,
8,
-2
] |
ME. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was brought to recover damages for trespass upon real estate. Plaintiff alleges that from January 1, 1914, to January 1, 1919, he was the lessee, in possession, and entitled to the possession, of 100 acres of land situated in Missoula county; that in September, 1918, the defendants wrongfully entered upon the land and plowed up and destroyed growing crops, to his damage in the sum of $400. The answer is a general denial. The cause was tried to the court sitting with .a jury, and resulted in a verdict in favor of plaintiff for $150. Upon application of defendants, the court granted a new trial and plaintiff appealed from the order.
The notice of intention to move for a new trial specifies . all the statutory grounds except newly discovered evidence. The order granting the motion is in general terms, hence it will be sustained if it can be upon any of the grounds mentioned in the notice. (Sell v. Sell, 58 Mont. 329, 193 Pac. 561.)
Among the grounds relied upon are insufficiency of the evidence to justify the verdict, and excessive damages appearing to have been given under the influence of passion or prejudice, and upon either of these grounds the order may be sustained. The evidence is in direct conflict upon the question: Did the defendants go upon the land and do the plowing in question under expressed permission from the plaintiff? In. the district court is lodged the sound legal discretion to grant or refuse a new trial in a case where the evidence is conflicting, and its action in the premises will not be disturbed on appeal except for manifest abuse of discretion. (Fournier v. Coudert, 34 Mont. 484, 87 Pac. 455.) If the court had in mind the conflict in the evidence upon the matter to which reference has just been made, it did not abuse its discretion in granting the order. If, however, the court resolved that conflict in favor of the plaintiff, the evidence does not justify a verdict for more than nominal damages if the testimony of the defendants as to the extent of their operations be accepted as true, or, if plaintiff’s testimony be accepted, the verdict is grossly excessive.
The district court, having observed the witnesses on the stand, was in a much more advantageous position to judge of their credibility and of the propriety of the verdict than are the members of this court, and the order, granting the motion will not be disturbed in the absence of anything to in dieate an abuse of discretion. In Fadden v. Butte Miners’ Union, 50 Mont. 104, 147 Pac. 620, this court said: “The question in the first instance was for the jury, and, upon motion for new trial for the judge who saw the witnesses on the stand. If he was satisfied, as he may have been, that the preponderance of the evidence was not with the plaintiff, it was his duty to set the verdict aside. With such an order made under such circumstances we may not interfere.”
The order is affirmed.
Affirmed.
'Associate Justices Cooper and Galen and Honorable Rot E. Ayers, District Judge, sitting in place of Mr. Chief Justice Brantly, disqualified, concur.
|
[
-25,
53,
36,
-28,
-29,
-17,
1,
37,
-23,
67,
-6,
-5,
24,
-5,
10,
-15,
-39,
-43,
35,
-10,
-20,
-22,
-22,
-5,
22,
-46,
-33,
-69,
-10,
16,
9,
30,
-13,
-1,
-16,
1,
-11,
-8,
9,
11,
10,
32,
30,
-22,
12,
9,
10,
-36,
6,
17,
-8,
-77,
-27,
-12,
-36,
-14,
-23,
84,
0,
36,
6,
-1,
0,
-20,
13,
-22,
-16,
-22,
-14,
-13,
-54,
30,
10,
-24,
35,
-18,
-15,
-35,
-49,
-5,
23,
-26,
27,
7,
-26,
1,
6,
-55,
46,
-16,
3,
7,
20,
27,
9,
-38,
28,
-14,
52,
-14,
-33,
-46,
0,
15,
-49,
7,
-33,
24,
39,
0,
38,
13,
9,
-25,
-27,
-12,
-13,
-4,
28,
-33,
19,
-13,
0,
-30,
-17,
14,
0,
23,
15,
10,
-16,
26,
-10,
47,
-9,
-62,
-35,
-17,
-23,
53,
3,
-37,
-7,
-8,
-35,
35,
22,
-5,
-25,
-1,
-21,
54,
-11,
33,
10,
-51,
38,
-27,
26,
0,
33,
17,
-58,
-12,
39,
35,
8,
-4,
20,
-33,
-13,
-13,
-19,
3,
55,
0,
-10,
-16,
5,
-13,
-36,
28,
9,
-62,
-47,
-47,
-25,
49,
-16,
0,
23,
-11,
-20,
-3,
25,
24,
11,
1,
38,
-13,
9,
0,
1,
1,
-25,
20,
46,
-18,
55,
-13,
-9,
-17,
-6,
-1,
48,
-26,
28,
2,
-11,
-2,
0,
6,
-42,
35,
-7,
1,
5,
-5,
28,
24,
-54,
39,
-8,
-7,
24,
-45,
-9,
-26,
-33,
13,
6,
22,
-8,
-2,
1,
55,
-17,
-12,
19,
4,
-19,
-22,
5,
11,
8,
-8,
13,
-30,
-63,
-42,
8,
32,
16,
-14,
-5,
-12,
8,
-3,
-10,
24,
-1,
-1,
-5,
-10,
-24,
-37,
-22,
11,
15,
0,
-11,
-18,
50,
21,
-28,
27,
3,
50,
-39,
-1,
-43,
-48,
-36,
20,
3,
36,
35,
-10,
30,
16,
-63,
8,
-42,
12,
-27,
-54,
-7,
0,
-46,
2,
2,
51,
-50,
-1,
48,
22,
7,
0,
49,
-31,
0,
-16,
-8,
0,
-19,
8,
19,
-47,
-39,
44,
14,
16,
9,
50,
-6,
-18,
7,
-39,
23,
6,
35,
-1,
15,
-53,
43,
53,
-2,
-3,
-7,
49,
24,
-6,
-44,
-11,
-32,
-57,
-11,
3,
-17,
-25,
39,
32,
53,
-38,
0,
-3,
-21,
-44,
-31,
-17,
-37,
0,
18,
-16,
-18,
-32,
19,
-13,
-27,
33,
-7,
-44,
-7,
16,
68,
42,
9,
-37,
-20,
-2,
-15,
-29,
13,
46,
-30,
26,
-5,
13,
-27,
-5,
5,
36,
-23,
0,
-29,
-27,
26,
-50,
-5,
20,
13,
-33,
5,
0,
15,
30,
-12,
2,
38,
26,
44,
-7,
22,
-4,
43,
9,
63,
-16,
-4,
3,
30,
30,
6,
14,
-5,
56,
-17,
-7,
-34,
55,
-31,
11,
-67,
10,
-25,
-27,
23,
34,
18,
19,
28,
9,
0,
-34,
11,
42,
29,
-7,
49,
-19,
57,
-12,
-40,
2,
-16,
10,
-11,
-33,
3,
21,
24,
25,
-9,
-23,
31,
43,
-36,
-34,
-21,
14,
1,
-20,
-20,
69,
16,
25,
-11,
-2,
6,
38,
-15,
65,
9,
8,
-31,
6,
-31,
-7,
53,
-12,
-31,
-16,
-31,
1,
-9,
-9,
54,
-26,
-3,
55,
5,
1,
15,
3,
-10,
3,
48,
-19,
-9,
14,
20,
8,
-42,
-40,
-8,
-37,
28,
5,
18,
-5,
1,
-4,
-6,
-6,
-14,
-19,
-4,
26,
6,
-21,
6,
-13,
28,
24,
-29,
-1,
0,
-1,
15,
5,
9,
-29,
-14,
10,
20,
-6,
-22,
-19,
20,
-15,
39,
3,
7,
-14,
23,
-21,
14,
-39,
15,
48,
-8,
0,
7,
-22,
-15,
0,
-1,
-3,
-6,
6,
-60,
-11,
-30,
-4,
7,
-8,
38,
2,
32,
16,
-41,
5,
3,
-26,
-21,
-27,
-17,
-25,
5,
26,
-23,
10,
-50,
25,
17,
-17,
4,
-39,
14,
-2,
-5,
11,
-12,
17,
-3,
39,
3,
-31,
37,
8,
-3,
-60,
29,
-6,
-9,
-42,
-48,
20,
-66,
33,
-37,
9,
60,
38,
-15,
52,
15,
18,
-60,
-11,
-16,
31,
-22,
-4,
-44,
4,
0,
9,
16,
-29,
1,
30,
-3,
-57,
11,
19,
17,
20,
10,
-1,
50,
0,
-57,
-30,
-33,
4,
-7,
28,
15,
17,
12,
-7,
17,
51,
9,
-32,
38,
32,
22,
1,
-6,
32,
-11,
43,
32,
-4,
-17,
71,
6,
33,
19,
-42,
7,
29,
22,
-22,
-2,
21,
-11,
-68,
21,
28,
22,
-25,
26,
49,
-7,
8,
53,
7,
5,
-13,
-25,
-9,
-49,
0,
25,
15,
-1,
-24,
44,
-7,
15,
4,
-40,
4,
19,
31,
22,
1,
37,
6,
-9,
49,
-51,
52,
-34,
17,
-15,
-44,
-21,
-15,
9,
30,
-29,
4,
48,
-5,
-45,
-1,
37,
-23,
51,
25,
-54,
-24,
-9,
-11,
-15,
-33,
63,
17,
-55,
-12,
-50,
-25,
32,
-27,
-54,
16,
-13,
-13,
-26,
-46,
5,
2,
-10,
3,
13,
-7,
-1,
-12,
-24,
-13,
-4,
-10,
0,
44,
7,
37,
-12,
-38,
-40,
-27,
-1,
-26,
-20,
-21,
26,
21,
-4,
13,
14,
50,
-7,
49,
-19,
21,
22,
24,
11,
-9,
-12,
19,
34,
-17,
16,
14,
-12,
-31,
0,
23,
1,
16,
60,
4,
40,
-45,
-44,
23,
39,
-85,
10,
32,
9,
3,
32,
45,
-17,
33,
-26,
-40,
-57,
40,
13,
28,
-1,
-5,
-3,
-13,
-15,
2,
-13,
0,
-30,
0,
-48,
-6,
18,
42,
42,
4,
-30,
14,
27,
25,
20,
-34,
-10,
52,
12,
55,
18,
24,
-23,
-10,
-38,
29,
45,
37,
3,
-43,
-28,
14,
-46,
14,
4,
0,
5,
18,
21,
-14,
-10,
7,
-8,
-17,
-17,
-46,
51,
-21,
5,
-35,
49,
23,
2,
-53,
1,
-10,
-3,
-25,
0,
-46,
-27,
-63,
6,
23,
-12,
-36,
35,
13,
-3,
63,
-4,
12,
-19,
-36,
-41,
-29,
-8,
72,
-37,
28,
-3,
-41,
-14,
1,
1,
-31,
-14,
3,
-10,
-60,
12,
28,
4,
-21,
3,
-3,
-13,
33,
3,
55,
1,
8,
65,
17,
-46,
-3,
34,
-17,
-54,
-1,
-8,
-48,
10,
-4,
-32,
-17,
-13,
48,
-54,
-56,
11,
-16,
4,
13,
10,
20,
3,
19,
-31,
-48,
-1,
-10,
44,
46,
30,
-23,
-13,
-47,
22,
-18,
4,
32,
-65,
57,
-21,
-9,
20,
-18,
-19,
39,
-16,
13,
12,
-41,
-4,
-2,
-19,
-26,
-18,
-10,
2,
-29,
-39,
43,
0,
-14,
-59,
9,
-33,
47,
18,
52
] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Action for personal injuries alleged to have been suffered by plaintiff through the negligence of the defendants. The defendants Berthelote, Crossan and Watters were at the time of the accident members of the board of county commissioners of Hill county, and the defendant Neilson was the county bridge foreman. At about 8 o’clock on the evening of October 7, 1918, James Laird, accompanied by the plaintiff, his wife, was driving a Ford car from Joplin, Liberty county, to Havre, Hill county, to enable the plaintiff to take the early morning train on the Great Northern Railroad from that place to La Crosse, Wisconsin, she having been called thither by telegram informing her of the death of a friend. A short distance south of Gildford, in Hill county, the road along which they were traveling crosses Sage Creek by means of a bridge. At this point the road extends north and south. The bridge being old, and somewhat out of repair, work had been begun by defendant Neilson, by direction of the board of commissioners to build a new one in its place. To accommodate the public during the progress of the operations, a temporary bridge had been constructed over the creek a short distance to the west of the old bridge, and it was made available for use by a temporary road connecting it with the public road fifty or sixty feet south of the old bridge. On the approach to the bridge to the left of one coming from the south, and twelve feet distant from the bridge, was a pile-driver, the frame of which extended toward the east to about the middle of the road. The approach was made of earth. A trench, variously estimated by plaintiff’s witnesses to be from two and a half to four feet in width and from four to six feet in depth, had been dug during the operations entirely across it im mediately south of the pile-driver, the purpose of it being to facilitate the driving of piles for the abutmept of the new bridge. The earth from the trench had been thrown on the north side, making an embankment from two and a half to three feet high. Some piles had been driven toward the west end of the trench which projected somewhat above the surface. To the east the trench was open: There was room for a vehicle to pass the pile-driver and reach the bridge by turning to the east side of the beaten track of the roadway. The car was driven by Laird, the plaintiff sitting in the front seat by his side. He approached the bridge from the south, failing to observe the temporary road as well as the trench, with the result that the front wheels of the car went into the trench. The plaintiff was thrown out on the east side, suffering a fracture of the tibia of her right leg immediately below the knee, and also injury to the ligaments of her right thumb.
It is charged in the complaint that after the removal of a portion of the bridge by digging the trench the defendants negligently and carelessly omitted to place a barrier, signal or warning of any description thereon, or near by, sufficient to give notice to the public of the existence of the trench, thus leaving it entirely unguarded; that plaintiff had no knowledge of the operations in progress to repair the bridge or of the existence of the trench, and that by reason of this negligence of the defendants the ear in which plaintiff was riding ran into the trench in such a manner that the plaintiff was thrown violently to the ground and sustained the injuries complained of.
The defendants deny all the allegations in the complaint charging them with negligence, and allege that plaintiff was guilty of contributory negligence precluding her right of recovery. There was issue by reply. A trial to a jury resulted in a verdict against all of the defendants for the sum of $1,500. They have appealed from the judgment and an order denying their motions for a new trial.
The principal contention made by counsel for defendants is that the judgment cannot be upheld for the reason that the evidence introduced by plaintiff discloses affirmatively and as a matter of law that her own negligence was a proximate cause of her injury. In this connection contention is also made that it is clear that the husband .was guilty of negligence, and hence that his negligence must be imputed to the plaintiff. This argument proceeds upon the theory that, as there was no evidence tending to show that the plaintiff was a passenger for hire, the conclusion must follow either that her husband was her agent, or that the two were engaged in a joint enterprise. For the purpose of this case it may be conceded, without deciding, that the husband was guilty of negligence. It does not therefore follow, however, that plaintiff was guilty of - negligence, or that her husband’s negligence should be imputed to her on either theory advanced by counsel. It is true that there is no controversy in the evidence as to these facts: That the car was an ordinary Ford car; that it was in good order; that the plaintiff sat in the front seat at the right' of her husband, who was driving at a rate of speed not exceeding six miles per hour, with his foot on the brake; that the lights were in good order, and were burning, casting their rays to the.distance of 100 feet in advance of the car; that a car moving at the rate of speed at which this one was moving could have been stopped within a distance of five or six feet; that the pile-driver occupied a part of the beaten track of the road, and that a person in plaintiff’s position might have observed the trench and the bank of earth on the opposite side of it. The plaintiff testified: “When we were approaching the pile-driver, both Mr. Laird and I noticed it at the same time and spoke of it. We both became very cautious about that time. * * * I could not tell you the speed of the car when we saw the pile-driver, but we were going very slow, because we didn’t know that they were repairing the bridge, but we knew it was a bridge there, and we were going down an incline, and we were going carefully. We might have been going faster than an ordinary walk, because usually, if a car is going at all, it goes as fast as a walk. I don’t think we were goifig any faster than five or six miles an hour. When I saw the pile-driver in the road, I thought that something might happen. I don’t know if Mr. Laird thought the same thing, but we saw there was danger there. There was sufficient warning so that we knew there was danger ahead, and with that in mind we crawled along very cautiously. * * * When we saw the pile-driver, I think he turned out in order to get past it, but I don’t know if both the wheels were off the main driveway in order to get past the pile-driver. I don’t know whether or not we passed the pile-driver before we went into the ditch. ® * * I was not driving the car, and I was frightened, so I don’t know just whether we passed the pile-driver or not. We knew that we had quite a place to go through. If we couldn’t get through I thought there was danger ahead, and was very anxious to make it. I was anxious to make the train at 2 o’clock, although when we left Joplin we both talked it over that we would go into Havre very slow and carefully because we had until that time in the morning to make the train. ® * * I didn’t see the ditch, and we don’t know whether or not it went clear across the main driveway of the road. I was looking ahead across the bridge. =::< * =::= lights were working in good shape on the car that night. We were going down hill when we went into the the ditch. * * * I couldn’t say just how far ahead the lights were shining at that time. You know, the lights are quite good on an ordinary Ford car.”
No person other than plaintiff and her husband witnessed the accident. The testimony of Laird agreed in all substantial particulars with that of the plaintiff. Neither observed the road leading to the temporary bridge to the west. Both could observe, as they approached it, that the old bridge was still in place, for there was' a light beyond it toward the north which, enabled them to observe the side railings. Both had recently passed over it. Neither had knowledge that it was undergoing repairs other than such as might have been suggested by the presence of the pile-driver or the bank*of earth, if they observed it. Both testified that there was neither a visible barrier nor light to indicate that anything out of the ordinary had occurred since they had passed that way, and also that there was ample room to pass to the right of the pile-driver and gain the bridge without leaving the beaten track of the roadway. The pile-driver occupying a part of the road probably did not do more than suggest to plaintiff that there might be danger beyond it after she had observed that there was no barrier across the road, and that there was ample room to pass it. Considering these admitted facts, we do not think they justify a conclusion, as a matter of law, that plaintiff was herself guilty of negligence. She had been summoned by telegram to be present at the burial of a friend. As is usually the case under such circumstances, the husband was assisting her at her request to reach the train at Havre. She was doubtless affected more or less by her feelings of grief for the loss of her friend, and therefore was perhaps not fully alive to the surroundings. And the facts that the husband was at the wheel, that they were traveling over a public road, and .that even he was not under obligations to keep a sharp lookout for extraordinary dangers, certainly she could not be expected to do so. She was not in control of the 'car, nor was she directing the driving. She was therefore not personally chargeable with the manner of doing it nor with the responsibility of directing how it should be done. We think the question whether she was exercising due care, though she failed to observe the trench and the bank of earth and call her husband’s attention to them, was to be answered by the jury.
Counsel cite and rely on the case of Sherris v. Northern Pacific Ry. Co., 55 Mont. 189, 175 Pac. 269. This case is clearly distinguishable in its facts from those in the instant ease. There a young man was injured in a collision of a car in which he was being driven by a companion, with a railway train while crossing the railway yards, a place known to be dangerous. It was held that a verdict in favor of the railway company was justified by the evidence on the theory that the plaintiff himself was guilty of contributory negligence, the evidence disclosing that he was fully aware of the danger, had the same opportunity to notice the approach of the train as had his companion, and relied on his own efforts to protect himself. Here no known danger confronted the plaintiff. The circumstances were not sufficient to arouse in her mind more than a surmise that there might be danger. In her own w.ords: “"When I saw the pile-driver in the road, I thought that something might happen. I don’t know if Mr. Laird thought the same thing, but we saw there was danger there.” From the reading of her testimony as a whole, the danger which she had in mind, it is not unreasonable to infer, was what she apprehended from the apparent partial obstruction of the roadway by the pile-driver.
It follows from what has been said above that, conceding that Laird was not exercising due care in approaching the bridge, his negligence does not preclude plaintiff’s recovery.
Mr. Thompson, in his Commentaries on the Law of Negligence, after discussing the subject of imputed negligence as applied to a passenger riding in a private conveyance by the invitation of the driver, declares it to be the rule generally recognized by the great weight of authority that the negligence of the driver is not generally imputed to the passenger if the latter has no duty of control over the former, and no reason to suspect any want of care, skill or sobriety on his part. The author also recognizes that this rule does not always absolve the passenger from taking such precaution for his own safety as under the particular circumstances are reasonable. If, for example, the “passenger is riding by the side of the driver in an open carriage, and the driver on approaching a railway track fails to make use of his own faculties if a train is approaching, then it is a reasonable suggestion that the passenger ought to call his attention to the circumstances and remonstrate with him, or, if necessary to his own safety, leave the vehicle.” (Volume 1, secs. 502, 503.) This exception to the general rule was recognized and applied by this court in the ease of Sherris v. Northern Pacific Ry. Co., supra. "With reference to husband and wife, the author says: “Although there are a few holdings to the contrary, mostly in jurisdictions where the doctrine of imputed negligence is recognized, yet there is no ground in reason or justice growing out of the marital relations for making a different rule from the one just discussed, for the case where a wife has committed her safety to her husband—as where she is riding in a vehicle and he is driving—than in any other case; and the weight of authority is that in such a case, the negligence of the husband is not imputed to the wife.” (1 Thompson on Negligence, sec. 504.)
In the case of Reading Township v. Telfer, 57 Kan. 798, 57 Am. St. Rep. 355, 48 Pac. 134, the facts were that the wife was injured while riding with her husband in a vehicle over a defective highway. Although it had appeared that the ride had been taken at the solicitation of the wife, the court held that the fault of the husband was not to be imputed to the wife, although the sexes are recognized by the law as standing upon the same level, saying: “By the universal sense of mankind, a privilege of management, a superiority of control, a right of mastery on such occasions is accorded to the husband, which forbids the idea of a co-ordinate authority, much less a supremacy of command, in the wife. His physical strength and dexterity are greater; his knowledge, judgment, and discretion assumed to be greater; all sentiments and instincts of manhood and chivalry impose upon him the obligation to care for and protect his weaker and confiding com panion; and all these justify the assumption by him of the labors and responsibilities of the journey, with their accompanying rights of direction and control. The special facts of cases may show the wife to be the controlling spirit, the active and responsible party, and the husband an agent, or even a mere passenger; but, in eases where such facts are not shown, the court must presume, in accordance with the ordinary, almost universal, experience of mankind, that the husband assumed and was allowed the responsible management of the journey.” To the same effect was the holding in Williams v. Withington, 88 Kan. 809, 129 Pac. 1148. The following authorities are sufficient to illustrate the prevailing view announced by the courts on the subject: Shultz v. Old Colony Street Ry. Co., 193 Mass. 309, 118 Am. St. Rep. 502, 9 Ann. Cas. 402, 8 L. R. A. (n. s.) 597, and note, 79 N. E. 873; Cotton v. Willmar & S. F. R. Co., 99 Minn. 366, 116 Am. St. Rep. 422, 9 Ann. Cas. 935, 8 L. R. A. (n. s.) 643, and note, 109 N. W. 835; Little v. Hackett, 116 U. S. 366, 29 L. Ed. 652, 6 Sup. Ct. Rep. 391; Southern Ry. Co. v. King, 128 Ga. 383, 119 Am. St. Rep. 390, 11 L. R. A. (n. s.) 829, 57 S. E. 687; Louisville Ry. Co. v. McCarthy, 129 Ky. 814, 130 Am. St. Rep. 494, 19 L. R. A. (n. s.) 230, 112 S. W. 925; Babbitt on the Law Applied to Motor Vehicles (Blackmore ed.), secs. 1019-1023; 29 Cyc. 542, 543; 20 R. C. L., pp. 151, 158, 163. In Sherris v. Northern Pacific Ry. Co., supra, this court approved the rule as stated by Mr. Justice Rugg in Shultz v. Old Colony Street Ry. Co., supra, as founded upon sound principle and supported by almost all the courts throughout the United States, after expressing disapproval of the rule announced by the courts of Michigan and Wisconsin, which was followed by this court in the early case of Whittaker v. City of Helena, 14 Mont. 124, 43 Am. St. Rep. 621, 35 Pac. 904. In view of the fact that the doctrine announced in that case is out of harmony with the almost unanimous opinion of the federal and state courts, this case is expressly overruled.
It is contended that the defendants Berthelote, Crossan and "Watters cannot be held liable in their capacity as members of the board of county commissioners for the negligence of Neilson. The theory of counsel is that, being public officers, they cannot be liable for the default of Neilson though he was appointed by them as a board and occupies the position of county bridge foreman as their mere subordinate. It was held in the case of Smith v. Zimmer, 45 Mont. 282, 125 Pac. 420, that a county is not liable for injuries caused by a defect in a highway. In that case a majority of the members of this court were agreed that members of a board of county commissioners are chargeable with a negligence of one acting as road supervisor appointed by them and acting under their supervision and control, in failing to repair a defect in a public road caused by high water or to give seasonable warning to the public of its condition by the erection of barriers, etc., after notice of it. It will be noted, however, that upon rehearing the holding announced in the original opinion was rendered indecisive as to what character of notice would suffice to charge the members of the board. Though nothing specific was said on the subject, it is clear from the opinion that they were declared to be liable upon the theory that after notice they had been guilty of neglecting to perform their official duty by requiring the supervisor to do his duty, and that he was held to be personally liable for his own negligence in this regard. It was not suggested by anything said in the opinion with reference to his relation to the members of the board that he was their employee in the sense that he was their servant. Indeed, such was pot the fact. Though he was appointed by them, he was not their employee but an employee of the county, and paid by it for his services, just as Neilson was appointed and paid. “Public officers are not, as a general rule, liable for the acts of subordinates, even where such subordinates are employees rather than officers, except where the negligence of such subordinates is attributable to the superior.” (29 Cyc. 1445.)
In 23 American & English Encyclopedia of Law, second edition, it is said: “It is a well-settled rule that a public officer is not responsible for- the acts or omissions of subordinates properly employed by or under him, for such subordinates are not in his private service but are themselves servants of the government, unless he has directed such acts to be done or has personally co-operated in the negligence. Such an officer is, however, liable for the misconduct and negligence in the scope of their employment of those employed by or under him voluntarily or privately or paid by or responsible to him.” The following cases announce the same doctrine: Colby v. City of Portland, 85 Or. 359, 166 Pac. 537; Skerry v. Rich, 228 Mass. 462, 117 N. E. 824; Lunsford v. Johnson, 132 Tenn. 615, 179 S. W. 151; 1 Thompson’s Commentaries on the Law of Negligence, sec. 601. The rule of the maxim “respondeat superior’’ applies only to the personal relation of master and servant, or principal and agent. The maxim is based upon the principle “that he who expects to derive advantage from an act which is done by another for him must answer for an injury which a third party may sustain.” (34 Cyc. 1673; 35 Cyc. 972; Donovan v. McAlpin, 85 N. Y. 185, 39 Am. Rep. 649; Stoddard v. Fiske, 35 Cal. App. 607, 170 Pac. 663.)
If these defendants can be held liable at all, they are to be held for their own negligence as public officers, not for that of Neilson who was not employed by them, but by the county, and before they, as officers, can be charged with negligence, they must have had notice of the dangerous condition created by the operations of Neilson. There is no suggestion in the evidence that they had actual notice, nor for what length of time it had existed, nor that they had ordered him to do the work in the way in which he was doing it. Indeed, it does not appear that Neilson had omitted to give ample warning to the public by maintaining a light or barrier at any time prior to the night of the accident when his active operations had been temporarily suspended. The evidence in this behalf was wholly insufficient to require its submission to the jury, and the motion of these defendants for a nonsuit should have been sustained.
It is argued that the court erred in refusing to submit one instruction requested by the defendants. It does not appear from the record, however, that counsel reserved an exception to the action of the court in refusing to submit it. This court may not, therefore, review it. (See. 9349, Rev. Codes 1921.) It should be noted that this ease was tried in November, 1919, before the amendment of section 6784, Revised Codes of 1907, as appears in the latter part of section 9387, Revised Codes of 1921.
As to the defendant Neilson, the judgment and order are affirmed. As to the defendants Berthelote, Crossan and Watters, the judgment and order are reversed, and the district court is directed to render judgment dismissing the action.
Mr. Justice Galen concurs.
|
[
-47,
62,
16,
-17,
2,
-5,
15,
-56,
52,
2,
-36,
-25,
1,
-44,
8,
-36,
-78,
-25,
34,
22,
-24,
-33,
5,
-55,
-38,
-12,
2,
3,
-32,
42,
27,
39,
-13,
-3,
2,
-3,
2,
-15,
-5,
20,
1,
7,
-16,
17,
62,
8,
76,
-37,
45,
4,
33,
-16,
5,
-18,
-5,
31,
15,
12,
-27,
43,
30,
-43,
17,
2,
-11,
-8,
11,
18,
-32,
27,
-31,
9,
-27,
3,
6,
30,
-32,
-7,
-35,
3,
-25,
32,
21,
-8,
-15,
13,
-63,
-56,
-28,
-6,
17,
-9,
-5,
-9,
33,
-13,
-36,
-30,
-49,
-19,
33,
-31,
-2,
34,
-6,
4,
-31,
15,
61,
19,
-33,
47,
-13,
1,
-5,
-18,
27,
-22,
61,
35,
-19,
27,
13,
-44,
-9,
6,
14,
22,
0,
-3,
3,
19,
48,
45,
38,
-13,
-53,
-63,
0,
-2,
-42,
34,
24,
45,
-23,
16,
23,
-3,
18,
17,
-18,
36,
30,
-52,
11,
-49,
-16,
-33,
33,
19,
15,
-20,
66,
0,
-42,
-9,
-9,
36,
-25,
35,
51,
-3,
18,
-25,
49,
5,
-7,
-24,
-61,
-14,
29,
7,
1,
33,
-45,
-83,
2,
40,
50,
-61,
30,
-20,
-16,
-64,
-75,
66,
1,
-47,
-34,
53,
64,
1,
-16,
-13,
-75,
-13,
-8,
13,
33,
0,
34,
-46,
-44,
14,
26,
70,
-29,
-41,
-1,
-64,
36,
13,
30,
-29,
4,
-30,
-16,
-9,
31,
5,
10,
13,
-28,
20,
-34,
-42,
-6,
-76,
-9,
-8,
35,
-24,
18,
0,
16,
-16,
-27,
-51,
-19,
7,
9,
-57,
-1,
-4,
2,
36,
78,
13,
10,
-27,
53,
33,
-1,
44,
53,
18,
-24,
10,
-49,
-60,
4,
-6,
47,
-24,
-65,
-46,
69,
32,
49,
37,
-3,
-24,
-32,
22,
8,
33,
-14,
2,
-15,
-2,
11,
-47,
31,
14,
-2,
53,
66,
-15,
-45,
-2,
43,
11,
-17,
10,
0,
29,
-61,
14,
-11,
60,
-28,
-3,
28,
-29,
35,
66,
5,
11,
38,
7,
-46,
19,
-28,
-19,
-2,
53,
-20,
9,
-28,
22,
9,
35,
13,
59,
-28,
-59,
16,
93,
60,
9,
-9,
-8,
-3,
-24,
-56,
-12,
39,
10,
6,
-19,
-4,
-5,
15,
-26,
-75,
-4,
30,
-7,
38,
-39,
27,
-26,
13,
17,
17,
-9,
-20,
-18,
-51,
24,
15,
-2,
8,
0,
29,
-30,
4,
42,
-14,
44,
17,
-25,
0,
-35,
-33,
51,
-30,
-29,
-97,
45,
-6,
-52,
0,
75,
4,
-30,
7,
21,
-36,
-55,
-7,
31,
-9,
19,
-35,
19,
-41,
17,
-19,
-24,
-59,
-60,
24,
-14,
42,
7,
11,
-2,
-26,
-12,
26,
37,
55,
-21,
22,
16,
41,
14,
-48,
10,
40,
0,
59,
10,
5,
-27,
-2,
-12,
27,
-52,
-38,
-1,
-20,
-1,
-6,
-4,
-25,
73,
29,
-26,
60,
40,
95,
53,
-3,
36,
45,
-27,
13,
6,
-33,
0,
-21,
12,
52,
-3,
4,
3,
-18,
-12,
32,
30,
4,
16,
32,
5,
15,
-31,
16,
30,
-25,
-44,
-35,
-22,
-15,
-54,
9,
-9,
49,
-20,
65,
8,
-64,
-40,
-3,
-43,
18,
60,
-32,
-42,
-66,
-15,
-30,
-13,
-31,
14,
-9,
-11,
-43,
46,
52,
-1,
31,
34,
-12,
-12,
-67,
7,
-10,
-28,
3,
11,
-27,
48,
-31,
-17,
-11,
-13,
11,
-32,
0,
7,
21,
18,
-3,
36,
26,
-6,
-27,
-61,
23,
-19,
-10,
-48,
-19,
-8,
25,
-11,
23,
19,
11,
13,
1,
21,
17,
-32,
-28,
-10,
-19,
-5,
13,
-13,
18,
-9,
52,
-13,
-12,
0,
64,
-98,
-5,
36,
-7,
-18,
-31,
0,
-28,
-10,
-100,
44,
39,
-5,
-63,
2,
-18,
-9,
19,
0,
-52,
37,
-13,
28,
-21,
50,
34,
-1,
7,
11,
-39,
-2,
-5,
-29,
-9,
65,
54,
30,
-22,
-34,
60,
35,
-6,
-10,
-25,
33,
39,
-40,
-26,
-11,
29,
-61,
-8,
-8,
6,
16,
-7,
-20,
-26,
32,
-37,
-29,
4,
56,
-93,
25,
-11,
39,
12,
25,
12,
-3,
-7,
-21,
51,
-46,
12,
-8,
-24,
52,
-40,
0,
-25,
39,
-12,
-28,
-22,
44,
27,
9,
-92,
3,
49,
-38,
-13,
0,
-74,
-26,
-35,
-12,
0,
39,
44,
-41,
28,
-24,
-4,
-51,
20,
-2,
14,
27,
44,
-37,
24,
0,
-4,
-55,
-24,
20,
-8,
-2,
-23,
30,
-26,
6,
-9,
33,
-4,
-26,
-56,
-19,
15,
15,
8,
26,
-18,
24,
33,
-41,
26,
6,
-22,
19,
-44,
16,
-1,
17,
24,
-35,
-32,
-46,
64,
-41,
-17,
-33,
36,
13,
16,
-5,
-28,
34,
39,
32,
-33,
23,
18,
-13,
7,
8,
-12,
-3,
-26,
-3,
4,
68,
0,
-27,
21,
22,
-8,
-6,
2,
19,
43,
-53,
-13,
-34,
19,
64,
-21,
-55,
52,
-25,
-22,
6,
11,
-9,
10,
23,
-74,
-4,
16,
34,
-33,
-30,
-7,
17,
-26,
8,
-16,
-8,
-1,
26,
17,
-29,
14,
0,
8,
-17,
16,
18,
-6,
53,
17,
-11,
-42,
-42,
-8,
40,
41,
64,
0,
49,
-35,
2,
18,
-6,
6,
24,
22,
61,
8,
35,
-5,
-30,
4,
-14,
20,
-26,
-2,
34,
35,
2,
17,
6,
40,
-1,
-23,
-15,
35,
-16,
-42,
2,
-51,
-31,
15,
0,
26,
-18,
-14,
4,
-1,
68,
-51,
-22,
-8,
-9,
23,
0,
-1,
20,
-29,
-25,
-39,
-54,
-26,
23,
3,
-13,
2,
18,
-39,
-34,
-67,
-7,
-16,
-45,
21,
-21,
-18,
-3,
-55,
18,
2,
36,
-50,
-14,
44,
-41,
42,
12,
-3,
-48,
-10,
57,
-21,
-25,
14,
-27,
8,
60,
-11,
19,
-21,
-19,
-60,
-35,
-27,
43,
2,
-12,
-14,
51,
22,
49,
32,
-24,
0,
3,
10,
6,
1,
-40,
-22,
-30,
-31,
49,
-65,
-29,
5,
61,
45,
-10,
29,
45,
-11,
43,
-55,
-2,
-53,
37,
-77,
-28,
58,
-12,
8,
17,
-16,
-30,
-50,
-55,
50,
-5,
-37,
79,
29,
-39,
30,
-38,
-63,
56,
33,
-1,
-9,
73,
34,
-32,
-41,
-27,
82,
-5,
-10,
18,
62,
15,
-13,
-25,
-16,
-10,
61,
-17,
-34,
70,
-4,
30,
-3,
0,
56,
10,
27,
-84,
7,
-9,
26,
48,
-9,
-72,
-21,
-14,
-30,
54,
-34,
0,
1,
-6,
20,
34,
0,
-3,
-5,
-13,
-11,
-17,
-14,
25,
11,
-7,
-23,
67,
24,
9,
-7,
14,
-4,
-31,
51,
35,
-15,
6,
-16,
5,
5,
50,
27,
10
] |
ME. COMMISSIONEB LENTZ
prepared the opinion for the court.
In this action plaintiff seeks to recover of defendant $1,000, the par value of ten shares of plaintiff’s capital stock, upon a subscription contract therefor.
On a former appeal, this court held that the original complaint did not state a cause of action, for the reason that it did not disclose that all of the capital stock had been subscribed or that the implied condition of full subscription had been waived. Reference to the former opinion is made for a recital of the subscription agreement and a statement of principles which have now become the law of the case, both here and in the trial below. (55 Mont. 42, 173 Pac. 1059.)
The amended complaint upon which the second trial was had alleges that the plaintiff was duly organized in pursuance of the terms of the subscription agreement and succeeded to all the rights of the signers to the amounts subscribed; that all the conditions of the subscription agreement have been fulfilled, with the exception that the full amount of capital stock set forth therein has not been subscribed; that with full knowledge, both before and after the organization of the corporation, “that the said proposed capital stock was not fully subscribed, and. with full knowledge of his rights in the premises by reason of such fact, defendant consented to the organization of said corporation and to the commencement of business by it, participated in the organization thereof, and acted as a director thereof; that plaintiff has issued its stock to its subscribers, including the defendant herein, and has delivered to said defendant ten shares of its capital stock in accordance with his said subscription contract; and that defendant, with full knowledge, as above set forth, accepted the same, and promised to pay to plaintiff his said subscription therefor.” The answer, either by general or special denial, puts in issue the allegations of the complaint above quoted, and alleges that before the corporation was organized, defendant became convinced that the full amount of the capital stock could not be obtained and revoked his subscription. As a third and special defense, defendant-alleges that contrary to the terms of the subscription agreement, and without his knowledge or consent, certain other subscribers, by secret agreement made at the time they subscribed, were permitted by the promoters to pay their sub scription in labor or property instead of the required cash payments, to defendant’s prejudice. After its demurrer and motion to strike defendant’s third special defense had been overruled, plaintiff replied denying that defendant ever revoked or withdrew his subscription, and admitting that some of the subscribers did pay a portion of their assessments in labor or property, and alleging that this was done with the knowledge and consent of the defendant.
1. Defendant insists that the general demurrer to the com- plaint, and his objection to the introduction of evidence in its support, should have been sustained, his principal contention in that regard being that according to the former opinion in this cause, there should be a specific allegation of the basis or sources of defendant’s knowledge that all of the stock had not been subscribed. There is no merit in the point raised. Only the ultimate facts, and not the evidence to support those facts, should be pleaded.
2. Defendant also contends that his motion for a directed verdict should have been sustained for the reason that there was no sufficient showing that the defendant, with knowledge that the full amount of stock had not been subscribed and of his rights in the premises, waived his right to withdraw, and thereby became liable for his subscription.
The authorities are not agreed as to what acts will constitute a waiver in cases such as this, but it seems to be held generally that acts by the subscriber which evince a willingness that the corporation should commence business with no more stock than that already subscribed will amount to a waiver. In Masonic Temple Assn. v. Channel, 43 Minn. 353, 45 N. W. 716, the court said: “The safer rule in such a case is that, if his acts are of such a character that either the corporation or subscribers may have been induced by them to act, and will be prejudiced if he be permitted to withdraw, he shall be held to have waived, or to be estopped to assert, the defense. It is immaterial which word is used, except, perhaps, for the sake of strict verbal accuracy. There are a great many decisions determining what acts will and what will not prevent the subscriber making this defense. It would be unprofitable to refer to the cases in detail, for they are not entirely agreed; some cases holding certain acts to be sufficient, others holding similar acts insufficient. The general rule we deduce from all of them is that participation in acts done for perfecting the organization of the corporation, and setting it on its feet for business—such as preparing and procuring the execution of the articles, procuring subscriptions to its stock, preparing by-laws for its government, and the like—will not be regarded as a waiver of the defense, or as an estoppel against asserting it, for these are things proper, and to some extent necessary, to be done, although the full amount of stock be not subscribed, but that his acts as stockholder or director, the doing of which constitutes a part of the business for which the corporation is formed, and which from their nature assume it to be ready for that business, and evince a willingness to enter upon that business, with the stock already subscribed, will be sufficient.”
The testimony of plaintiff’s witnesses, if taken as true, shows that defendant was one of the active promoters of the corporation from its inception; that he induced others to subscribe for stock and agreed with the other subscribers to proceed with its formal organization and begin business, without waiting for all the stock to be subscribed, was elected a director, and agreed to attend the first meeting of directors; that at the hour of meeting he announced that he was too busy to attend and signed a written consent that the meeting be held; that he was fully aware that subscriptions had not been obtained for the full amount of stock; that after plaintiff began the transaction of business, defendant’s stock certificate was delivered to him and he agreed to pay for it but pleaded for time. While this testimony is largely contradicted by the defendant, if considered in the light most favorable to plaintiff, it presented a question for the jury as to whether defendant had waived his right to insist on a full subscription, and the motion for a directed verdict was properly denied1. (Masonic Temple Assn. v. Channel, supra; Hager v. Cleveland, 36 Md. 476; Morgan v. Landstreet, 109 Md. 558, 130 Am. St. Rep. 531, 16 Ann. Cas. 1247, 72 Atl. 399; California Southern Hotel Co. v. Callender, 94 Cal. 120, 28 Am. St. Rep. 99, 29 Pac. 859; McConnaghy v. Monticello Const. Co., 135 Ky. 667, 117 S. W. 372; International F. & E. Assn. v. Walker, 83 Mich. 386, 47 N. W. 338; Macfarland v. West Side Imp. Assn., 53 Neb. 417, 73 N. W. 736; New Hampshire Cent. R. R. v. Johnson, 30 N. H. 390, 64 Am. Dec. 300.)
3. Defendant insists that the admission of evidence tending to prove an agreement among the subscribers, including the defendant, to organize and proceed to do business before the full amount of stock was subscribed, was error, and that it was proof of a new agreement entirely differing from the one sued -on and constituted a variance. This evidence was competent as bearing on the question of whether defendant waived any of his rights under the contract sued on. It does not show that a new subscription contract was entered into, or that the attempt to secure full subscription was ever abandoned, and does not tend in any way to constitute a variance.
4. It is also contended that the court erred in denying de fendant’s motion for a continuance after plaintiff had been permitted to amend its reply at the close of the evidence. There was no proper showing of surprise or that defendant was in any way prejudiced, and therefore the motion was properly denied.
5. The court in its instructions correctly withdrew from the consideration of the jury defendant’s third special defense. Secret agreements by the promoters of a corporation, permitting some of the subscribers to pay for their stock in labor or property, contrary to their written agreement to pay cash, are not binding on the corporation, and in an appropriate action it may enforce the payment of such subscriptions in cash. Hence it is no defense to this action that some of the subscribers were permitted to pay in labor or property.
In 14 C. J. 577, section 859, the law is stated as follows: “The courts have held with the greatest unanimity that where the. contract of-subscription is absolute on its face, no extrinsic or collateral agreements between the subscriber and the promoters, directors, or agents of the corporation who procure him to subscribe, not amounting to fraudulent representations on their part, can be shown in evidence for the purpose of discharging or redücing his liability as stockholder or subscriber whether to the corporation or to its creditors”-—citing cases from many states.
There are many specifications of error on the giving and refusal to give and modification of offered instructions. The instructions given correctly and amply covered the issues presented by the pleadings and the evidence, and no useful purpose would be served in discussing them.
After a careful consideration of defendant’s twenty-one assignments, we have been unable to discover any prejudicial error in the record, and we therefore recommend that the judgment and order be affirmed.
Per Curiam: For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.
Affirmed.
|
[
0,
-27,
29,
-14,
59,
-38,
-6,
-59,
9,
37,
27,
62,
50,
55,
10,
0,
21,
-17,
8,
-13,
51,
-65,
28,
-21,
-33,
54,
-17,
-10,
23,
-5,
9,
-13,
-33,
-46,
-52,
23,
-25,
-57,
-28,
-58,
28,
26,
76,
-20,
4,
14,
0,
-4,
49,
-49,
90,
20,
3,
-5,
-18,
-6,
-37,
-8,
10,
26,
-30,
-58,
73,
-24,
8,
55,
38,
14,
11,
7,
-23,
-51,
4,
59,
-15,
-43,
-55,
-32,
-14,
-6,
-22,
-51,
12,
-34,
-23,
37,
28,
0,
-53,
27,
14,
4,
-12,
3,
28,
27,
17,
19,
-56,
4,
41,
-33,
-45,
26,
7,
50,
28,
40,
-30,
18,
-16,
28,
-18,
10,
4,
-14,
-32,
-18,
19,
-95,
33,
16,
-11,
24,
6,
4,
30,
10,
-13,
2,
-6,
46,
2,
23,
-13,
-60,
-8,
-2,
49,
20,
-6,
9,
-31,
-19,
25,
9,
1,
18,
2,
-19,
6,
-11,
60,
29,
-24,
-60,
-71,
33,
37,
-44,
87,
-4,
-39,
20,
-27,
80,
-13,
-44,
10,
34,
-12,
-39,
2,
-71,
-39,
-14,
-9,
-76,
-21,
-54,
1,
60,
11,
6,
-12,
15,
24,
-35,
30,
-4,
50,
-23,
-46,
56,
-18,
4,
-6,
49,
48,
-24,
-6,
-60,
-62,
7,
-20,
-35,
19,
-2,
41,
-7,
44,
29,
18,
-24,
-33,
-9,
-4,
-57,
-23,
-8,
-46,
-32,
-76,
29,
-45,
-19,
73,
-11,
-32,
-38,
-50,
8,
23,
-12,
-26,
-28,
47,
4,
62,
3,
-37,
-11,
-5,
1,
19,
-25,
22,
4,
-12,
5,
-4,
-3,
11,
-22,
-37,
-38,
-48,
-2,
-3,
-2,
12,
4,
-37,
26,
17,
-117,
35,
-26,
-18,
7,
-18,
-46,
3,
-2,
-9,
-19,
-21,
-42,
-8,
26,
2,
31,
10,
-25,
-46,
23,
0,
28,
-53,
14,
28,
85,
70,
-28,
32,
33,
4,
23,
-8,
40,
-55,
-17,
24,
65,
8,
29,
-62,
10,
6,
-51,
-14,
17,
6,
-28,
24,
9,
11,
29,
43,
-8,
69,
-12,
-24,
19,
14,
-59,
44,
-48,
21,
-27,
-27,
-11,
6,
46,
-13,
7,
33,
-23,
-45,
20,
20,
-11,
-10,
-2,
43,
11,
-3,
-10,
-30,
-22,
-23,
4,
-39,
-30,
24,
-9,
-28,
-16,
1,
7,
46,
19,
13,
-77,
-9,
21,
-21,
6,
-2,
98,
-50,
23,
-16,
-25,
11,
28,
-23,
-48,
-18,
62,
-11,
-31,
-11,
-18,
66,
-3,
-22,
-26,
18,
-15,
-75,
29,
-4,
86,
-23,
-35,
-11,
-26,
6,
20,
76,
-17,
-3,
-38,
6,
-17,
24,
23,
-33,
14,
-19,
26,
-6,
-25,
-10,
-1,
-8,
-21,
35,
15,
25,
-49,
12,
33,
21,
-54,
-5,
5,
-58,
-13,
-49,
-8,
-8,
-28,
-26,
5,
-41,
-40,
4,
43,
49,
75,
-73,
32,
58,
28,
-5,
36,
60,
-11,
-28,
-4,
54,
25,
27,
39,
40,
0,
25,
34,
40,
14,
-2,
6,
26,
-7,
44,
-2,
-21,
86,
35,
-21,
-16,
28,
11,
16,
-64,
21,
50,
18,
-24,
22,
6,
-8,
-90,
30,
-3,
-39,
11,
67,
18,
7,
3,
37,
-47,
-36,
-12,
30,
0,
49,
13,
-33,
56,
-9,
14,
12,
-17,
-58,
19,
-34,
23,
19,
28,
-1,
49,
5,
-31,
32,
57,
33,
21,
-13,
-26,
-53,
-16,
13,
18,
-7,
58,
-2,
-13,
-37,
-27,
-36,
33,
-8,
81,
-6,
-5,
-37,
-19,
22,
-37,
10,
29,
18,
41,
32,
54,
40,
-41,
-11,
17,
29,
60,
41,
69,
-12,
36,
32,
-41,
56,
-55,
-11,
33,
34,
-28,
21,
-48,
-55,
-7,
0,
-39,
34,
19,
-64,
40,
-25,
-15,
-68,
8,
-17,
-29,
-14,
-35,
0,
7,
-37,
20,
-1,
-39,
-13,
59,
-32,
70,
46,
31,
-42,
5,
48,
-5,
21,
-54,
-18,
-37,
-62,
-59,
44,
1,
33,
-21,
-15,
1,
-10,
51,
2,
24,
10,
11,
13,
52,
31,
14,
53,
-4,
-24,
-32,
-31,
-23,
56,
7,
-73,
34,
-23,
-22,
13,
-24,
47,
-42,
27,
34,
-9,
45,
21,
36,
-43,
1,
65,
-31,
14,
14,
43,
27,
-24,
-10,
5,
2,
-26,
22,
-81,
-67,
20,
-67,
44,
69,
-45,
21,
-41,
12,
-45,
16,
-9,
27,
6,
8,
27,
-14,
-15,
2,
9,
-35,
-28,
-5,
40,
-62,
-23,
16,
-31,
-6,
-12,
29,
-35,
-51,
23,
-79,
4,
30,
-22,
14,
-48,
-30,
-20,
-54,
-18,
-14,
-7,
-82,
44,
16,
17,
55,
-55,
-13,
-49,
-16,
0,
-11,
-6,
-40,
-24,
-8,
31,
63,
6,
23,
-8,
-3,
-1,
-17,
23,
8,
0,
-20,
26,
-55,
24,
-2,
-97,
-34,
19,
58,
12,
10,
-50,
-4,
31,
-18,
15,
39,
15,
36,
-10,
-13,
33,
5,
20,
-55,
25,
-51,
31,
21,
64,
14,
3,
-11,
2,
-29,
-27,
-18,
-42,
-54,
-5,
34,
53,
-1,
-6,
67,
6,
-5,
1,
14,
19,
-12,
-25,
13,
-37,
56,
57,
12,
35,
-33,
-15,
26,
-13,
5,
-7,
27,
37,
24,
-65,
-3,
-6,
24,
-50,
-55,
6,
24,
-46,
38,
-7,
-79,
-27,
6,
40,
30,
5,
-12,
-61,
-3,
-17,
-24,
27,
17,
34,
25,
-9,
-66,
15,
-8,
39,
28,
-33,
-7,
-1,
-38,
33,
12,
22,
-70,
-22,
20,
-12,
-65,
81,
38,
-5,
-35,
6,
-39,
-38,
1,
-13,
16,
-51,
-37,
-20,
-17,
-25,
29,
15,
13,
59,
-11,
58,
70,
-26,
-8,
15,
-20,
25,
-20,
97,
-22,
14,
-5,
0,
1,
-26,
26,
-12,
-10,
52,
5,
0,
-39,
31,
11,
-13,
-70,
17,
0,
-17,
-1,
0,
1,
-74,
-4,
-7,
31,
1,
42,
21,
-28,
31,
8,
65,
-5,
-44,
-80,
49,
19,
-47,
4,
43,
-15,
41,
50,
-23,
15,
-15,
0,
-1,
-33,
-26,
-41,
10,
8,
24,
27,
14,
14,
-23,
-14,
25,
15,
-8,
0,
-65,
-53,
26,
9,
-1,
2,
-23,
-68,
-46,
-27,
-38,
4,
-8,
-53,
52,
40,
26,
-26,
-9,
-3,
20,
-10,
-29,
-6,
53,
-29,
-9,
36,
-52,
14,
2,
0,
-47,
54,
-5,
7,
-4,
-19,
19,
-28,
-35,
-11,
-33,
43,
-16,
-14,
0,
-1,
-1,
12,
10,
7,
1,
41,
23,
10,
31,
-30,
-18,
73,
24,
55,
-17,
-49,
-10,
-54,
-39,
-59,
-16,
12,
42,
-1,
46,
10,
-9,
18,
36,
-8,
8,
-33,
41,
-61,
0,
-4,
44,
-26,
61
] |
HONORABLE ROT E. ATERS, District Judge,
sitting in place of MR. JUSTICE REYNOLDS, disqualified, delivered the opinion of the court.
Plaintiff: brought this action to recover damages for personal injuries suffered by him during his employment as a section-hand for the Northern Pacific Railway Company. The injury pleaded was a relaxation of the left inguinal ring, left side and back, and left lower part of the abdomen. The negligence charged is that defendant failed to furnish a sufficient number of servants to assist plaintiff in lifting and carrying a railroad rail weighing approximately 750 pounds. The answer denied the negligence and affirmatively pleaded the assumption of risk by plaintiff. A reply denied the assumption of risk, and upon these issues the trial was had. At the close of plaintiff’s case, defendant moved for a nonsuit, specifying as one of the grounds therefor that plaintiff’s evidence showed that he assumed the risk of the injury claimed to have been received by him. This motion was overruled, and, after defendant had introduced his testimony, the jury returned a verdict for plaintiff, upon which judgment was entered. An order was made overruling defendant’s motion for a new trial, and this appeal is from that order and the judgment.
As a matter of law, in this state, an employee of a railroad company operating a railroad is deemed not to have assumed the risk incident to his employment, when such risk arises by reason of the negligence of his employer, or of any person in the service of such employer. (Sec. 6607, Revised Codes 1921.) However, the defense of assumption of risk may be interposed as a bar in an action for personal injuries of an employee, when such injuries have been caused by hazard which is incident to the particular business. - When they have resulted from a hazard brought about by a failure of the employer to exercise the degree of care required of him by law to perform his primary duty to provide a reasonably safe place of work and reasonably safe appliances for the work, the defense is also available, provided the employee is aware of the condition of increased hazard thus brought about, or it is so obvious that an ordinarily prudent person, under the same circumstances, would have observed and appreciated it. (McCabe v. Montana Central Ry. Co., 30 Mont. 323, 76 Pac. 701; Coulter v. Union Laundry Co., 34 Mont. 590, 87 Pac. 973; Leary v. Anaconda C. Min. Co., 36 Mont. 157, 92 Pac. 477; Monson v. La France Copper Co., 43 Mont. 65, 114 Pac. 778; Fotheringill v. Washoe Copper Co., 43 Mont. 485, 117 Pac. 86; Molt v. Northern Pac. Ry. Co., 44 Mont. 471, 120 Pac. 809; Sorenson v. Northern Pac. Ry. Co., 53 Mont. 268, 163 Pac. 560.)
When an employee knows and appreciates the danger brought about by defective, appliances or an unsafe condition of the place of his work, he assumes the risk. In this connection he is bound to use his senses, and cannot allege ignorance of a hazard which is obvious to anyone of ordinary intelligence and understanding, and though he does not apprS' ciate the extent of the hazard, or does not know precisely the injury he may incur, the risk is his; yet, if the hazard requires knowledge or judgment not possessed by men of ordinary observation, the servant does not, as a matter of law, assume the risk. Assumption of risk implies knowledge, or the means of knowledge, and appreciation of the danger. (Cases supra; Alexander v. Great Northern Ry. Co., 51 Mont. 565, L. R. A. 1918E, 852, 154 Pac. 914; Morelli v. Twohy Bros. Co., 54 Mont. 366, 170 Pac. 757.)
Plaintiff introduced no other evidence than his own upon the facts concerning the happening of the injury. He testified that he was twenty-eight years old and had been en gaged in manual labor thirteen or fourteen years; that he had been working on railroads about two or three years; that he had before assisted in carrying rails weighing from 750 and 800 pounds, and knew that six or eight men were used in such work, and that such number were necessary to carry the thing (rail) with reasonable safety to the men doing the lifting; that at the time of the injury there were only himself and three other men lifting and carrying the rail by means of two pairs of tongs; that he had been employed by the Northern Pacific Railway Company since January 31, 1919, to the date of the injury, February 17 following, during all of which time he had been handling rails and doing the same class of labor that he was engaged in at the time of the accident. This testimony discloses that plaintiff was of mature years, experienced in the work he was performing, and knew that six or eight men were necessary to move the rail with reasonable safety. If he knew that six or eight men were necessary to move the rail with reasonable safety, then it must follow that he knew it was not reasonably safe to move it with four men. Hence he must be held to have appreciated the danger when he attempted to move it with the latter number.
Plaintiff contends that, because he was acting in compliance with orders from his foreman, he did not assume the risk incident to the work he was ordered to perform. An examination of the cases cited in support of this position discloses different facts than here considered. There the servants had no independent knowledge of the danger, nor was it obvious, glaring or imminent. The servants, acting under orders, relied upon the superior knowledge of their masters, and in such instances it was held that the servant had the right to rely upon his master’s judgment, assuming that the order could be obeyed safely, or it would not have been given. Quite the contrary in the instant case, for here we have the servant admitting his knowledge of the danger.
In cases of the character of this one, which may be classed as “strain cases,” the injury occurring by overtaxing one’s strength, the rule is that the lifting of a heavy object involves no peril that is not obvious to any person of common understanding. The employee is the best judge of his own lifting capacity, and the risk is upon him if he overtaxes it. An employee, who undertakes to lift, or assist in lifting, a heavy object, knowing its weight and condition, assumes the risk of the injury due to the task being too great for his strength, and, in ease injury results, he is not entitled to recover damages from his employer. (Sorenson v. Northern Pac. Ry. Co., supra; Worlds v. Georgia R. Co., 99 Ga. 283, 25 S. E. 646; Southern Kansas Ry. Co. v. Moore, 49 Kan. 616, 31 Pac. 138; White v. Owosso Sugar Co., 149 Mich. 473, 112 N. W. 1125; Haviland v. Kansas City etc. R. Co., 172 Mo. 106, 72 S. W. 515; Stenvog v. Minnesota Transfer Ry. Co., 108 Minn. 199, 17 Ann. Cas. 240, 25 L. R. A. (n. s.) 362, 121 N. W. 903; Ferguson v. Phoenix Cotton Mills, 106 Tenn. 236, 61 S. W. 53; Haywood v. Galveston etc. R. Co., 38 Tex. Civ. App. 101, 85 S. W. 433; White on Personal Injuries on Railroads, sec. 339.) The exception to this rule occurs when the servant is of immature years, or is inexperienced in the particular work at which he is injured. (Sorenson v. Northern Pac. Ry. Co., supra; Sherman v. Texas etc. R. Co., 99 Tex. 571, 91 S. W. 563.)
We appreciate that, if the employee should stop to make tests and experiments to determine for himself whether he could safely obey the orders of his foreman, it would be impossible to accomplish any kind of enterprise, where a considerable number of men are employed on the same work, and that it is his duty to obey orders from superiors, unless he has independent knowledge, or it is obvious that obedience will expose him to unusual danger. Here we have the plaintiff, an employee coming under the rule in “strain cases,” and in addition thereto possessing independent knowledge of the danger. That he assumed the risk is the only conclusion to be drawn from his own testimony. Defendant’s motion for nonsuit should have been granted.
The order and judgment appealed from are reversed, and the district court is directed to enter judgment upon defendant’s motion for nonsuit.
Reversed.
Associate Justices Holloway and Galen concur.
|
[
-14,
-14,
-11,
-24,
10,
-36,
12,
-24,
21,
26,
36,
-23,
49,
-24,
0,
-30,
-53,
-55,
27,
-20,
25,
-26,
-1,
-32,
-22,
-9,
-4,
-12,
-45,
0,
34,
24,
-50,
14,
-1,
74,
-1,
1,
-43,
-31,
25,
47,
6,
-61,
44,
46,
15,
30,
2,
-21,
61,
-1,
-7,
-20,
-8,
-33,
11,
66,
-26,
33,
4,
-52,
8,
-15,
40,
-15,
4,
8,
-22,
5,
-3,
18,
17,
-26,
-15,
-21,
-31,
27,
-14,
-17,
1,
-24,
-3,
-63,
-24,
62,
0,
38,
-29,
-12,
-21,
-9,
-4,
1,
-5,
28,
-35,
39,
-28,
-18,
-28,
0,
-36,
-38,
3,
-44,
-20,
2,
31,
38,
9,
24,
-36,
7,
7,
6,
2,
-12,
-2,
25,
29,
-14,
13,
-13,
-56,
24,
16,
24,
-18,
62,
-13,
23,
10,
-4,
-8,
0,
-32,
-12,
-27,
-1,
23,
14,
19,
-7,
-34,
6,
24,
30,
0,
-43,
23,
25,
39,
-33,
6,
-38,
-12,
-4,
67,
25,
35,
-42,
46,
26,
26,
37,
6,
-29,
4,
-38,
-4,
-56,
48,
-51,
41,
55,
20,
-45,
-51,
-24,
-36,
-5,
-18,
-7,
-5,
55,
40,
5,
-18,
-6,
55,
-9,
-17,
23,
-28,
25,
9,
10,
56,
-6,
49,
-32,
-28,
21,
-2,
61,
18,
-2,
65,
-72,
30,
25,
-21,
-28,
-27,
-8,
9,
-25,
-8,
-61,
-34,
-8,
-20,
-23,
0,
-23,
-40,
29,
52,
12,
-30,
-11,
47,
9,
32,
-36,
7,
-79,
39,
7,
50,
-18,
11,
-49,
-25,
-72,
-12,
-36,
-49,
11,
1,
2,
-4,
3,
32,
-22,
37,
-21,
-75,
-57,
15,
18,
-33,
44,
70,
-9,
7,
-1,
-26,
3,
-7,
45,
56,
28,
-9,
-18,
10,
28,
30,
-29,
-5,
1,
-41,
44,
-81,
8,
-9,
-10,
-27,
-12,
-6,
-70,
22,
26,
32,
14,
24,
19,
-4,
-14,
-20,
-31,
1,
14,
16,
43,
-73,
16,
-21,
-40,
-11,
-25,
-17,
-37,
28,
8,
0,
-5,
-21,
-48,
-12,
-5,
-14,
-49,
6,
-32,
-32,
23,
30,
35,
5,
-34,
-42,
68,
-51,
-38,
-3,
-15,
-7,
-33,
14,
5,
36,
-18,
-39,
40,
11,
-32,
17,
-32,
4,
-19,
38,
-35,
-1,
10,
47,
-45,
19,
21,
29,
-7,
7,
-34,
-2,
-50,
-55,
-42,
-10,
18,
-9,
-24,
26,
-95,
17,
2,
5,
51,
1,
50,
-16,
-13,
10,
-57,
-31,
3,
11,
-28,
-67,
26,
-60,
9,
34,
92,
23,
57,
-15,
-8,
-21,
17,
0,
-16,
2,
-28,
10,
-63,
33,
-34,
-36,
-31,
-6,
10,
49,
-26,
14,
-41,
46,
44,
-32,
38,
88,
-43,
18,
22,
31,
7,
36,
-65,
-5,
-12,
10,
-37,
49,
2,
-34,
-49,
37,
-14,
-19,
9,
-26,
-21,
-31,
-6,
7,
13,
-15,
71,
37,
-10,
21,
0,
46,
-8,
-11,
15,
32,
-26,
32,
20,
-10,
-11,
28,
23,
34,
-35,
8,
-58,
64,
10,
60,
-20,
15,
0,
7,
46,
10,
1,
8,
-4,
-58,
-13,
11,
-26,
-15,
-11,
-5,
-43,
67,
86,
-4,
39,
-17,
-61,
-27,
21,
-22,
9,
25,
35,
-63,
-12,
-11,
-43,
38,
-30,
28,
-27,
-9,
28,
-51,
3,
58,
10,
12,
7,
-4,
25,
-6,
-15,
13,
-28,
-3,
-14,
-23,
-39,
-54,
-15,
12,
-50,
6,
-24,
-20,
-22,
-7,
16,
56,
-20,
30,
-64,
-17,
20,
-5,
21,
1,
-20,
-18,
48,
59,
48,
13,
15,
60,
8,
25,
1,
1,
-46,
20,
-35,
9,
24,
-24,
-28,
0,
66,
-22,
1,
15,
-39,
-3,
16,
0,
-24,
2,
-15,
-32,
18,
-31,
10,
19,
-10,
-9,
-43,
-31,
-16,
14,
21,
-35,
13,
13,
27,
-4,
9,
41,
-3,
-47,
16,
-1,
26,
-1,
-54,
-39,
34,
25,
35,
-33,
-37,
55,
68,
6,
26,
-4,
-21,
-1,
-6,
-14,
-5,
80,
18,
-5,
-5,
-1,
-6,
-4,
-2,
-43,
25,
-8,
-41,
16,
17,
-12,
14,
-45,
59,
-4,
21,
10,
-4,
1,
27,
52,
-2,
-35,
-77,
-16,
28,
21,
-14,
64,
45,
16,
-27,
8,
-25,
11,
39,
-40,
-16,
-21,
18,
5,
11,
-6,
33,
53,
-24,
-32,
6,
44,
4,
12,
24,
53,
-36,
-44,
-5,
11,
31,
29,
-25,
72,
-37,
-37,
-15,
3,
12,
46,
-28,
-15,
38,
23,
56,
16,
65,
24,
-26,
-9,
-52,
-36,
-7,
5,
-9,
6,
31,
-10,
-44,
10,
28,
21,
-10,
-44,
0,
18,
-11,
-22,
-42,
-50,
-32,
22,
-34,
-17,
4,
8,
48,
12,
25,
15,
-25,
24,
24,
7,
19,
1,
6,
7,
-7,
6,
-14,
41,
1,
36,
42,
-50,
10,
30,
-38,
9,
-14,
7,
12,
16,
-30,
18,
-16,
-17,
0,
-20,
-44,
65,
-17,
7,
0,
-55,
54,
-31,
-22,
-25,
-3,
0,
45,
26,
-51,
6,
28,
31,
-51,
-10,
19,
19,
-9,
45,
23,
-68,
-8,
-9,
-5,
18,
-30,
-11,
12,
-25,
-12,
0,
-39,
-25,
-3,
-8,
19,
-22,
-41,
-26,
20,
-23,
-35,
30,
-2,
25,
18,
-36,
-10,
3,
47,
13,
-10,
9,
-6,
-8,
-13,
-13,
72,
-10,
-21,
2,
-10,
-15,
-54,
89,
1,
-14,
-38,
-27,
-1,
14,
57,
20,
12,
-67,
8,
54,
35,
-71,
46,
72,
-37,
-1,
17,
7,
62,
-26,
17,
-6,
31,
-6,
-21,
29,
0,
2,
5,
-40,
0,
-52,
4,
16,
-13,
-30,
-23,
-43,
14,
8,
14,
29,
-16,
-13,
-11,
-29,
-36,
83,
12,
-20,
-19,
-1,
-4,
-52,
-1,
-14,
-22,
19,
51,
20,
32,
-1,
10,
7,
-40,
-62,
-15,
-9,
-41,
10,
46,
36,
41,
4,
-31,
-5,
-51,
-63,
55,
19,
-4,
25,
-7,
29,
39,
-12,
56,
10,
40,
-53,
-6,
19,
-25,
-44,
26,
9,
-4,
-20,
43,
-62,
9,
0,
-16,
16,
-7,
18,
-3,
-18,
-11,
6,
0,
-8,
54,
-41,
-50,
-19,
-36,
18,
49,
16,
61,
49,
21,
8,
-26,
-38,
33,
26,
-23,
9,
2,
3,
97,
0,
-23,
32,
-64,
-41,
-52,
17,
7,
-35,
-28,
-17,
24,
-14,
3,
6,
-23,
27,
-10,
0,
33,
63,
-33,
-45,
-38,
-5,
-56,
-5,
30,
1,
33,
0,
-12,
-29,
-8,
0,
-21,
13,
-19,
-56,
-17,
14,
34,
24,
10,
18,
7,
55,
72,
21,
-25,
46,
65,
-9,
-25,
-41,
-12,
11,
54,
16,
-43
] |
MR. COMMISSIONER LENTZ
prepared the opinion for the court.
This is an action to recover the contract price for putting up hay. Defendant answers that plaintiff has been paid in full, and sets up a counterclaim alleging negligence on the part of plaintiff in putting up the hay. The reply puts in issue the allegations of the answer, and attempts to plead an estoppel or a waiver of defendant’s right to claim dam ages. • Defendant appeals from an adverse judgment, and from an order denying his motion for a new trial.
1. The court’s instruction No. 1 reads as follows: “The court submits to the jury herewith the amended complaint, the amended answer, and reply of plaintiff, and instructs the jury that from a reading of said three pleadings they will find the issues involved in this case. The pleadings contain merely the allegations of the parties to this action, and are not of themselves proof of any of the contentions of the parties; but the affirmative allegations of each of the parties contained in this pleading, where such allegations are controverted, must be proved by a preponderance of the evidence on that particular issue.”
It is contended that this instruction' furnished the jury with arguments and pleas of evidence contained in the reply which were prejudicial to defendant.
In Paxton v. Woodward, 31 Mont. 195, 107 Am. St. Rep. 416, 3 Ann. Cas. 546, 78 Pac. 215, it was said: “While the jury may be permitted to take with them to the jury-room .the pleadings in the case, and, * * * study the issues for themselves, the practice of setting forth' in the instructions a clear and concise statement of the nature of the case and the issues to be determined is to be commended.”
Defendant’s criticism of this instruction would come with better grace if he had tendered a succinct statement of the issues in the form of a preliminary instruction, and his offer had been refused. (Melzner v. Chicago etc. Ry. Co., 51 Mont. 487, 153 Pac. 1019; Zanos v. Great Northern Ry. Co., 60 Mont. 17, 198 Pac. 138.) If the pleadings contained arguments, statements of evidence, or were otherwise objectionable, it was defendant’s duty to attack them by appropriate demurrer or motion to strike. Having failed to so do, and having failed to offer an appropriate instruction stating the nature of the case and the issues, he should not now be heard to complain. (Paxton v. Woodward, supra; Frederick v. Hale, 42 Mont. 153, 112 Pac. 70; Rand v. Butte Elec. Ry. Co., 40 Mont. 398, 107 Pac. 87; Lynes v. Northern Pac. Ry. Co., 43 Mont. 317, Ann. Cas. 1912C, 183, 117 Pac. 81; White v. Chicago etc. Ry. Co., 49 Mont. 419, 143 Pac. 561.)
2. It is contended that the court erred in refusing to give certain of defendant’s offered instructions. The charge given by the court covers, in substance, the refused instructions, and no error was committed in that regard. (Territory v. Pendry, 9 Mont. 67, 22 Pac. 760; State v. Mahoney, 24 Mont. 281, 61 Pac. 647.)
3. Counsel argues that the court erred in refusing to allow defendant to refresh his recollection by consulting a booh of accounts. Section 10664, Revised Codes of 1921, is as follows: “A witness is allowed to refresh his memory respecting a fact by anything written by himself, or under his direction, at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing. But in such case the writing must be produced, and may be seen by the adverse party, who may, if he choose, cross-examine the witness upon it, and may read it to the jury. So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts, but such evidence must be received with caution.”
This court in Marron v. Great Northern Ry. Co., 46 Mont. 593, 129 Pac. 1055, in construing the provisions of that section, held that, before a witness may be permitted to refresh his memory in such a case “these preliminary facts must be made to appear: (a) The entries must have been written by the witness himself or under his direction; (b) they must have been written at the time the facts occurred or at a time when the facts were fresh in the witness’ memory; and (c) the witness must have known at the time the entries were made that they correctly stated the facts.” Cross-examination of defendant revealed that the entries had been copied from other memorandum-books and writings; that defendant did not know when, nor by whom, some of it had been done, though he knew that a portion was copied some months after the dates of the original entries, and that some of it might not be exact as to dates. Clearly, the plain requirements of the statute sustain the correctness of the court’s ruling. (Marron v. Great Northern Ry. Co., supra; Meredith v. Roman, 49 Mont. 204, 141 Pac. 643; Columbus State Bank v. Erb, 50 Mont. 442, 147 Pac. 617; Silver v. Eakins, 55 Mont. 210, 175 Pac. 876; Ryan v. Dunphy, 4 Mont. 356, 47 Am. Rep. 355, 5 Pac. 324; Mutch & Young Co. v. Powers, ante, p. 437, 207 Pac. 621.)
4. Error is predicated on the action of the court in re fusing to allow the defendant to answer the following questions: “Q. Independent of the book, have you any recollection of carburetor in 1915, or in any year? Q. I want to ask you, Mr. Rice, independent of the book at all, do you know anything about this charge'for hay-slings? Q. I want to ask you in reference to the market price of some' veal per pound that was delivered by you to Mr. McLean in the year 1918 ? Q. In 1915, we have Mr. McLean charged with springs, $7. What do you know about that? Q. I wish to ask concerning ring for beam pole.”
The record shows that defendant’s counsel, while propounding these questions, was reading from and consulting the account-book, which the court refused to allow the witness to use in refreshing his memory. This was an attempt to accomplish indirectly what the court properly refused to allow defendant’s counsel to do directly. He was reading the items himself, and refreshing the witness’ recollection by the form of his questions, which of course could not be permitted. The same reasons which bar its use by the witness in refreshing his memory likewise, and with equal or greater force, apply to the attempt of counsel to read from the book in framing his questions. If either were permitted, it would open the door to the use of the grossest kind of false and fraudulent book entries.
After a careful examination of the record in this cause, and the briefs and arguments of counsel, and of defendant’s thirteen assignments, we are unable to find any prejudicial error, and we therefore recommend that the judgment and order be affirmed.
Per Curiam: For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.
Affirmed.
|
[
-34,
-6,
31,
-82,
-4,
-20,
50,
-39,
2,
34,
24,
30,
8,
14,
-7,
-43,
-20,
-41,
36,
-24,
-3,
-26,
16,
53,
-28,
-20,
-23,
-59,
-18,
-65,
-8,
97,
-47,
36,
-32,
-73,
19,
-23,
-20,
31,
18,
12,
8,
-40,
28,
-34,
-23,
-46,
67,
-37,
96,
0,
22,
26,
-52,
-24,
-30,
13,
-5,
-21,
23,
-29,
-11,
19,
-1,
-28,
0,
-22,
-40,
12,
-100,
22,
30,
-4,
-26,
-48,
-14,
-3,
-43,
47,
-4,
-1,
6,
10,
12,
29,
79,
-22,
21,
32,
-2,
-19,
14,
34,
44,
9,
61,
23,
-20,
44,
2,
12,
13,
19,
-18,
-10,
-43,
35,
5,
41,
12,
18,
-32,
-49,
-69,
10,
-6,
-28,
-41,
-30,
14,
-9,
15,
10,
19,
32,
13,
6,
-26,
31,
30,
30,
31,
28,
-1,
-26,
28,
-39,
23,
49,
19,
-28,
-17,
4,
45,
6,
-51,
5,
8,
-5,
-17,
-27,
30,
-18,
2,
-69,
-11,
-64,
53,
-20,
127,
50,
-81,
29,
-7,
18,
-5,
-23,
7,
-34,
-9,
-34,
23,
-8,
-28,
-22,
13,
-20,
4,
-5,
-1,
11,
-6,
-6,
10,
17,
9,
43,
1,
44,
71,
-12,
-1,
20,
32,
21,
-15,
55,
13,
25,
1,
-6,
12,
-6,
8,
18,
-28,
-67,
62,
-22,
-3,
30,
-52,
29,
5,
-20,
5,
-12,
-7,
-30,
-41,
11,
-13,
8,
-28,
-2,
0,
-17,
39,
15,
-37,
-33,
21,
21,
3,
-53,
70,
7,
39,
30,
-34,
-20,
18,
-26,
12,
22,
6,
34,
7,
-21,
-10,
20,
35,
-3,
23,
-37,
-16,
11,
-52,
-59,
17,
25,
31,
30,
-19,
-25,
-59,
-4,
32,
1,
-3,
-25,
-1,
51,
4,
-37,
-36,
-32,
12,
-4,
-18,
-15,
-3,
-38,
-25,
54,
32,
-5,
-9,
7,
2,
-2,
13,
-52,
35,
61,
-62,
32,
34,
7,
-73,
-43,
33,
-13,
29,
9,
-43,
-32,
-36,
-15,
-22,
13,
10,
-32,
13,
31,
-7,
-14,
61,
-14,
36,
-31,
-4,
4,
-19,
-34,
5,
-45,
-7,
-9,
-38,
-5,
32,
29,
1,
1,
14,
0,
-26,
4,
47,
1,
9,
13,
71,
48,
-7,
-38,
6,
-8,
-17,
5,
-56,
0,
37,
-34,
-18,
-32,
11,
11,
29,
28,
16,
-43,
21,
-1,
-12,
-51,
-6,
41,
-35,
23,
1,
-40,
-40,
-51,
-45,
-15,
-17,
26,
-12,
-23,
-4,
-34,
53,
3,
50,
-16,
-14,
92,
-6,
0,
61,
47,
6,
55,
15,
-68,
-11,
10,
-4,
-47,
49,
-1,
23,
-4,
-8,
-26,
-37,
7,
16,
19,
20,
24,
-4,
14,
3,
51,
10,
-6,
46,
-65,
36,
41,
40,
-28,
71,
-38,
-33,
-34,
5,
24,
-45,
-29,
8,
19,
44,
-59,
-11,
52,
-39,
62,
-16,
13,
-9,
-11,
-28,
30,
19,
-14,
-5,
-5,
47,
2,
44,
48,
52,
-13,
40,
-16,
3,
18,
-30,
-15,
-5,
-36,
17,
-22,
43,
45,
30,
26,
60,
19,
0,
-21,
-21,
31,
4,
2,
-28,
3,
9,
-19,
-20,
15,
43,
0,
31,
20,
21,
-7,
-56,
-23,
-67,
-20,
-10,
-3,
51,
27,
1,
-35,
17,
-50,
10,
8,
49,
-64,
66,
36,
47,
23,
40,
-24,
29,
65,
11,
2,
10,
33,
-30,
-48,
-22,
-68,
37,
3,
3,
9,
39,
19,
-11,
-7,
-53,
-55,
10,
-29,
34,
-19,
28,
-38,
-11,
15,
19,
-5,
13,
1,
-1,
-21,
66,
42,
8,
-39,
6,
33,
22,
66,
-3,
-61,
46,
-18,
-2,
28,
-50,
-9,
7,
10,
34,
19,
42,
43,
-27,
-30,
-8,
-12,
-35,
-49,
-2,
-48,
-4,
-42,
-33,
-36,
-25,
-36,
0,
-7,
27,
-2,
31,
6,
-27,
-10,
-4,
-41,
-18,
0,
1,
-32,
15,
61,
11,
6,
-79,
17,
-45,
-6,
-49,
-4,
39,
60,
-5,
-20,
-7,
-21,
-4,
18,
-6,
-49,
13,
36,
18,
-27,
-11,
-18,
-2,
-27,
-23,
-15,
-43,
12,
-13,
-33,
32,
5,
-53,
-15,
5,
26,
26,
-23,
32,
3,
-3,
-31,
-1,
-58,
-19,
8,
9,
-41,
-27,
27,
47,
-98,
11,
-16,
19,
19,
-29,
4,
-4,
-21,
-36,
-13,
37,
-8,
67,
21,
-29,
-6,
41,
-15,
-33,
25,
15,
-9,
24,
-17,
-12,
1,
2,
-35,
-7,
24,
-35,
-36,
-6,
-6,
-7,
36,
-33,
-34,
-15,
8,
-3,
2,
52,
22,
-9,
-66,
-4,
-48,
28,
-28,
-6,
15,
-47,
2,
13,
-5,
60,
19,
-38,
-18,
30,
6,
-29,
11,
-19,
-2,
34,
28,
39,
36,
-6,
-47,
33,
-37,
-19,
40,
8,
73,
12,
23,
-62,
33,
24,
-40,
-17,
-35,
3,
18,
5,
-32,
-18,
-20,
73,
-8,
-20,
-34,
19,
-54,
20,
86,
4,
4,
-35,
-5,
-36,
0,
5,
6,
-1,
-34,
-42,
6,
18,
-23,
13,
-5,
-35,
29,
48,
-50,
39,
1,
16,
0,
-29,
-26,
-12,
15,
-7,
-30,
-7,
40,
32,
-50,
-11,
40,
11,
-5,
-11,
-23,
-2,
-49,
-11,
19,
16,
-49,
-1,
-11,
28,
-5,
-27,
32,
10,
-38,
38,
-12,
-24,
-1,
15,
-16,
-6,
-53,
-40,
-5,
12,
14,
-19,
59,
29,
-21,
0,
10,
-1,
2,
5,
3,
45,
-72,
-42,
49,
0,
14,
29,
42,
-67,
8,
36,
-47,
-19,
40,
28,
-19,
-14,
26,
-16,
-32,
-30,
32,
3,
15,
-15,
-7,
-8,
6,
14,
17,
33,
33,
23,
46,
39,
-42,
-22,
-37,
-53,
0,
20,
20,
-4,
-23,
-1,
-5,
-36,
-23,
52,
-35,
-22,
-9,
-14,
8,
-21,
4,
-29,
-48,
-54,
62,
35,
65,
-26,
45,
27,
-64,
-27,
-29,
24,
23,
10,
10,
58,
-12,
17,
-24,
-40,
-1,
-24,
55,
-13,
-62,
13,
5,
37,
19,
-21,
-39,
-4,
-25,
12,
25,
-48,
-27,
8,
-25,
-23,
33,
24,
44,
-38,
-30,
-13,
-30,
-9,
15,
-52,
-43,
-61,
3,
-12,
-1,
32,
-11,
-4,
-32,
-48,
-17,
29,
93,
-3,
47,
45,
68,
12,
-17,
0,
46,
-4,
46,
29,
12,
-7,
-38,
31,
0,
7,
16,
33,
5,
23,
5,
18,
-1,
27,
23,
58,
-12,
-66,
-24,
49,
-55,
-18,
4,
-2,
52,
-17,
-28,
-22,
12,
-16,
73,
-11,
-27,
-59,
36,
29,
4,
47,
-16,
-60,
53,
-59,
3,
-12,
16,
28,
48,
-16,
-16,
-17,
-24,
5,
29,
-45,
29,
-10,
-39,
-24,
-71,
-6,
15,
6,
31
] |
HONORABLE H. H. EWING, District Judge,
sitting in place of MR. JUSTICE REYNOLDS, disqualified, delivered the opinion of the court.
Plaintiff alleges that between the eighteenth day of June, 1909, and the seventeenth day of September, 1912, he and Alexander Milne were copartners; that on the sixteenth day of September, 1912, the defendant was indebted to the co-partnership in the sum of $255.42, being a balance due upon a mutual, open and current account for moneys loaned, paid out and expended to and for the use and benefit’ of the defendant, and for goods, wares and merchandise sold at defendant’s special instance and request; that on the sixteenth day of September, 1912, Alexander Milne, for a valuable consideration, sold, transferred and assigned to Mary Milne all of his right, title and interest in and to the copartnership business, its property and assets, including the book accounts, among which was the balance due and owing from the defendant; that Mary Milne thereafter, for a valuable consideration, sold, transferred and assigned to plaintiff all of her right, title, and interest in and to the copartnership property, including the account against defendant, and that plaintiff is now the lawful owner and holder of the account; that the business was conducted thereafter by the plaintiff in all respects as it had been by the copartnership, and the balance of account due and owing from defendant was carried by plaintiff on his books and charged against the defendant, of which the defendant had due notice and knowledge; that thereafter, at different times, the plaintiff loaned defendant other sums of money amounting to $24.80, all at the special instance and request of defendant, which last-mentioned sums were from time to time as the same accrued, also charged to defendant upon his account, all of which was done with defendant’s full knowledge and consent; that by reason of the premises the defendant became and still is indebted to plaintiff in the sum of $280.22, and promised and agreed to pay the same, bnt failed, neglected and refused to pay, though often requested so to do.
The defendant demurred to the complaint on the grounds and for the reasons following: “(1) That the same does not state facts sufficient to constitute a cause of action. (2) That two causes of action have been improperly united in this.” Then the defendant states that xhe $255.42 indebtedness was contracted with a copartnership of which the plaintiff was a member, and that the indebtedness of $24.80 was thereafter contracted with the plaintiff individually; that the $255.42 account and the alleged $24.80 account are separate and distinct, and should be set forth in the complaint in separate and distinct causes of action, and not otherwise, and the said separate and distinct causes should be separately stated and numbered.
The court overruled the demurrer, and gave the defendant twenty days to plead further. He refused to plead. After the expiration of the twenty days, his default was entered, and judgment was duly given against him for the amount demanded in the complaint. The defendant appeals from the judgment.
It is not contended that the complaint states different causes of action which might not be united if separately stated and numbered, but the only objection is that they are not separately stated and numbered. This court, in the case of Marcellus v. Wright, 51 Mont. 559, 154 Pac. 714, said: “The objection that causes of action are not separately stated and numbered cannot be raised by demurrer. Section 6534 of the Revised Codes enumerates the grounds of demurrer, and this is not one of them. The proper remedy for such a defect is a motion to make the complaint more definite and certain” by separately stating the causes of action—citing Galvin v. O’Gorman, 40 Mont. 391, 106 Pac. 887. (See, also, Roberts v. Sinnott, 55 Mont. 369, 177 Pac. 252.)
A careful reading of the case of Bandmann v. Davis, 23 Mont. 382, 59 Pac. 856, will show that nothing to the contrary is stated in that opinion. All that is announced there is that a motion to exclude evidence or an objection to receiving it is not the remedy for the intermingling in one count of several causes of action. And demurrer is the only remedy by which the complaint may be attacked upon the ground that causes of action are improperly united. We hold that the complaint states a cause of action; that causes of action are not improperly united, and, if they are not separately stated and numbered, the objection was not raised in the district court, and is deemed waived. The demurrer was properly overruled.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Associate Justices Cooper and Holloway concur.
Mr. Justice Galen, deeming himself disqualified, takes no part in the foregoing opinion.
|
[
-31,
2,
25,
-10,
37,
-54,
55,
-62,
60,
-33,
7,
-2,
41,
15,
3,
-67,
28,
-26,
17,
-35,
60,
-31,
3,
-46,
-49,
8,
6,
-24,
44,
16,
24,
5,
-14,
41,
-14,
32,
-27,
-33,
14,
-108,
16,
36,
31,
10,
31,
66,
-16,
-75,
21,
-39,
54,
-53,
13,
41,
-31,
-36,
-58,
39,
14,
22,
-4,
-43,
70,
-14,
36,
-29,
-1,
-25,
26,
41,
-16,
-29,
14,
0,
-54,
-40,
-46,
-36,
-38,
-2,
9,
-14,
-6,
6,
-72,
-6,
22,
47,
-41,
17,
4,
26,
13,
43,
2,
4,
-4,
2,
-73,
27,
31,
-35,
20,
-7,
-19,
55,
-8,
-29,
27,
38,
13,
35,
16,
-9,
4,
-3,
18,
0,
-21,
-34,
6,
59,
8,
6,
11,
28,
22,
-6,
-6,
25,
-5,
25,
1,
9,
-44,
-50,
49,
-14,
-11,
-8,
35,
-61,
-39,
36,
-20,
37,
2,
-3,
-66,
-76,
-5,
0,
53,
59,
39,
-47,
-8,
-27,
48,
-56,
-5,
-25,
72,
35,
3,
13,
15,
-10,
10,
-32,
-7,
1,
-49,
-67,
-16,
29,
15,
-72,
-20,
-17,
17,
13,
12,
-43,
-17,
-25,
19,
-34,
-1,
-46,
17,
-9,
-54,
20,
-47,
-3,
38,
-8,
42,
10,
6,
15,
-7,
-27,
-9,
-39,
27,
-31,
13,
27,
1,
-11,
7,
-15,
-16,
14,
8,
-48,
-13,
6,
35,
-6,
-15,
5,
-4,
-43,
20,
-16,
-18,
-5,
-87,
9,
4,
14,
6,
1,
12,
17,
-29,
-25,
-59,
8,
10,
22,
1,
-15,
1,
5,
-37,
36,
-16,
31,
23,
8,
-23,
19,
-44,
-47,
8,
-48,
13,
31,
-63,
-12,
15,
-44,
1,
10,
29,
-12,
4,
-55,
-14,
30,
-32,
-42,
-3,
-2,
-4,
15,
-10,
-8,
15,
-23,
-7,
-7,
21,
23,
8,
14,
35,
9,
32,
-13,
72,
39,
43,
21,
-35,
50,
-4,
-29,
38,
74,
38,
4,
6,
-5,
-41,
-39,
-27,
-16,
-18,
-56,
43,
43,
-20,
46,
36,
16,
9,
-10,
-8,
16,
10,
14,
32,
-50,
-10,
-4,
-19,
38,
-2,
7,
-16,
-39,
33,
-33,
47,
-9,
-38,
5,
-12,
4,
6,
2,
-12,
-66,
-43,
14,
-25,
-9,
-50,
1,
11,
54,
45,
-20,
-9,
31,
55,
25,
0,
-68,
-6,
38,
-34,
-44,
-48,
44,
33,
-4,
-32,
-20,
32,
-30,
-11,
29,
-11,
70,
1,
-51,
-12,
-3,
11,
12,
32,
-58,
0,
-47,
-21,
64,
35,
62,
-40,
18,
-3,
-20,
-48,
-40,
25,
31,
-40,
-12,
-21,
-26,
9,
-30,
-50,
-4,
-43,
-4,
1,
-6,
7,
-54,
-14,
-4,
13,
-8,
35,
-70,
42,
26,
43,
-44,
28,
4,
-46,
-19,
5,
15,
-30,
-43,
14,
-3,
28,
22,
2,
18,
45,
34,
-29,
80,
30,
18,
39,
-22,
21,
52,
25,
-14,
9,
-9,
37,
-9,
41,
0,
57,
54,
55,
52,
4,
65,
10,
19,
59,
-22,
15,
33,
-33,
20,
7,
47,
-21,
58,
4,
-9,
-6,
38,
-51,
-4,
21,
26,
-46,
15,
-55,
-40,
22,
48,
48,
-9,
-58,
14,
-44,
-1,
2,
-30,
-17,
-27,
-25,
41,
73,
0,
-6,
-25,
7,
-74,
0,
33,
28,
-55,
45,
3,
4,
12,
-2,
19,
46,
62,
76,
36,
-30,
25,
41,
-2,
-1,
6,
65,
-2,
-56,
22,
-36,
1,
24,
5,
77,
14,
23,
0,
-9,
77,
14,
16,
-11,
41,
11,
7,
25,
24,
-19,
22,
18,
37,
25,
35,
43,
-7,
25,
-3,
12,
13,
-17,
-14,
41,
-34,
-36,
-2,
30,
-38,
-8,
-42,
-33,
14,
-8,
25,
9,
-17,
48,
-40,
-3,
-9,
-58,
-50,
-10,
5,
29,
5,
-35,
12,
44,
-33,
-44,
15,
20,
-42,
-19,
14,
14,
33,
-34,
-20,
-30,
-35,
-7,
-45,
-38,
35,
-12,
6,
9,
39,
27,
14,
-6,
-73,
-22,
-16,
24,
-1,
43,
29,
-8,
6,
24,
-19,
-41,
4,
-14,
24,
35,
0,
3,
60,
-11,
24,
-33,
15,
-36,
-60,
16,
8,
12,
52,
-6,
-18,
16,
64,
10,
-25,
47,
0,
27,
-9,
21,
23,
33,
30,
-20,
24,
23,
-28,
-17,
33,
46,
-21,
-23,
33,
-35,
36,
25,
-72,
54,
-4,
12,
-22,
-62,
-41,
25,
-7,
42,
-39,
-2,
-1,
-77,
4,
-21,
-37,
7,
-25,
-1,
-12,
-86,
-29,
10,
21,
16,
-48,
3,
9,
30,
-47,
-15,
54,
16,
23,
-24,
22,
28,
9,
37,
2,
-14,
-7,
7,
-6,
29,
-20,
-66,
8,
-15,
-48,
30,
-15,
-13,
-19,
32,
-9,
14,
14,
25,
39,
-18,
54,
-24,
10,
-9,
-46,
-27,
11,
15,
39,
19,
-4,
-38,
-19,
-7,
-9,
27,
-9,
26,
-18,
7,
-3,
-8,
-9,
-50,
11,
-20,
-55,
-29,
35,
16,
-14,
-41,
70,
-12,
-25,
-3,
-54,
-26,
-51,
0,
44,
-30,
33,
17,
19,
41,
-23,
51,
-1,
-49,
-22,
-7,
12,
25,
51,
33,
56,
-29,
8,
-4,
-36,
-45,
2,
21,
-1,
-14,
11,
-45,
-5,
20,
-14,
14,
39,
29,
8,
28,
40,
-37,
-10,
11,
-27,
8,
61,
-37,
-17,
24,
22,
-38,
6,
53,
55,
29,
41,
-57,
13,
-51,
43,
23,
-62,
-37,
-8,
-33,
18,
46,
-29,
-57,
-25,
-32,
8,
-98,
25,
20,
30,
-13,
12,
-35,
-24,
-8,
6,
-24,
-55,
-41,
-46,
-12,
-28,
-1,
-4,
-40,
-1,
-48,
14,
38,
9,
12,
24,
10,
-1,
2,
64,
2,
-8,
-16,
11,
23,
-60,
-2,
13,
-55,
19,
-13,
49,
3,
7,
-38,
0,
-36,
58,
-44,
-4,
24,
-10,
11,
-56,
-2,
-30,
8,
11,
4,
-2,
9,
-12,
-14,
10,
-33,
36,
-36,
52,
35,
-29,
-21,
-15,
-13,
40,
40,
-36,
28,
31,
34,
-40,
-30,
15,
19,
9,
-30,
-33,
-10,
48,
-20,
11,
10,
32,
20,
-35,
-39,
-45,
32,
-3,
-3,
-33,
58,
-28,
-37,
-32,
-3,
-25,
-4,
47,
-16,
57,
-18,
103,
-47,
-18,
-43,
-11,
27,
-66,
-35,
22,
-2,
-50,
37,
-18,
6,
-17,
20,
-28,
-11,
-13,
-22,
-9,
-49,
8,
48,
3,
-16,
-31,
36,
7,
-72,
29,
-24,
-84,
10,
19,
-26,
-79,
0,
-4,
74,
-22,
-13,
-17,
66,
-17,
37,
-21,
-13,
-37,
21,
-37,
-38,
-63,
-11,
89,
9,
2,
6,
69,
0,
41,
-18,
13,
-22,
-33,
-22,
-13,
-39,
-13,
16,
5
] |
MR. JUSTICE STARK
delivered the opinion of the court.
Charles W. Mahaffay and Mary W. Mahaffay became husband and wife on April 30, 1921, and that relation continued until the death of the latter on April 18, 1924. During all of this time both were residents of this state.
On November 27, 1923, at Helena in this state, Mary "W. Mahaffay executed her last will and testament, naming the defendant A. L. Smith as the executor thereof. The other defendants are devisees under the will. Charles W. Mahaffay was not named therein. •
After the death of Mary W. Mahaffay, her will was duly admitted to probate. The defendant Smith was appointed as executor, duly qualified as such and is now acting in that capacity. In the course of and in connection with these probate proceedings, the plaintiff instituted an action in the district court in the matter of said estate to determine heirship by filing a complaint, which was thereafter amended, setting up his claimed rights in the premises. In effect the averments of this complaint are that Mary W. Mahaffay died testate; that her will had been admitted to probate; that at the time of her death she owned certain real and personal property; that at the time of the making of her will Charles W. Mahaffay was her husband and had never assented in writing to the making thereof, and was therefore entitled to one-half of her estate.
Separate answers were filed on behalf of the defendants, in which the relationship of husband and wife between Charles W. Mahaffay and Mary W. Mahaffay at the time of the execution of the aforesaid will was admitted; and it was also admitted that Charles W. Mahaffay was not named therein, and that no property was devised or bequeathed to him thereby. Affirmatively it was set up that the plaintiff had consented in writing to said last will and testament; also, that all the estate of Mary W. Mahaffay, deceased, both real and personal, was her separate and independent estate, acquired before her marriage to Charles W. Mahaffay by inheritance from her father and from her former husband; and that plaintiff had never contributed to or aided in the creation or acquisition of any portion of said estate. Replies were filed putting in issue all the allegations of the answers.
The case came on for trial before the court without a jury on July 12, 1926. Thereafter the court filed its findings of fact and conclusions of law and ordered judgment in favor of plaintiff for an undivided one-third of the estate of Mary W. Mahaffay, deceased. Judgment was entered in accordance with such findings and conclusions, and from this judgment the defendants have appealed.
Section 6975, Revised Codes of 1921, provides: “A married woman may make a will in the same manner and with the same effect as if she were sole, except that such will shall not, without the written consent of her husband, operate to deprive him of more than two-thirds of her real estate, or of more than two-thirds of her personal estate.”
On behalf of the defendants it is contended on this appeal: (1) That Charles W. Mahaffay consented in writing to the operation of the will of Mary W. Mahaffay; (2) that section 6975, supra, has ceased to be operative; (3) that said section 6975 does not assume to speak with reference to the separate property of married women; (4) that said section 6975 is un constitutional as being in violation of section 1 of the Fourteenth Amendment to the Constitution of the United States, in that it denies to married women within this state the equal protection of the law. We shall consider these contentions in. the order above named.
1. The claim that plaintiff gave his written consent that his wife’s will should operate to deprive him of more than two-thirds of 'her real estate or more than two-thirds of her personal estate is based upon two documents signed by him. The first is a letter written by him to Mary W. Mahaffay about the month of October, 1922, when she was in a sanitarium at Salt Lake, in which he adverted to the fact that their marriage had not been a success for the reason that their tastes and inclinations led them in different paths, and suggested that under the conditions existing she should secure a divorce. The only reference to property in this letter is one to the effect that each should retain the tokens received from the other in memory of the sentiment which prompted their gift. The second writing referred to is a paragraph contained in an answer filed to a complaint in divorce proceedings instituted by Mary W. Mahaffay against the plaintiff, in which he alleged that she was possessed of a considerable amount of property in her own right, which allegation was made in resistance of her effort to obtain alimony from him in the divorce proceeding. The divorce case was never determined and was pending at the time of Mary W. Mahaffay’s death.
Section 6975, supra, does not state what form this written consent must take, and under the facts in this case we do not feel called upon to pass upon that point. A painstaking scrutiny of the two instruments upon which counsel rely to establish such written consent fails to show in either any statement which can be construed, either directly or inferentially, as a consent to the making of a will by Mary W. Mahaffay that would operate to deprive her husband of any portion of her estate.
2. Section 6974, Revised Codes of 1921, provides: “Every person over the age of eighteen years, of sound mind, may, by last will, dispose of all of his estate, real and personal, and such estate not disposed of by will is succeeded to as provided in sections 7071 to 7092 of this Code, being chargeable in both eases with the payment of all the decedent’s debts, as provided in the Code of Civil Procedure.”
Counsel for defendants state in their brief: “In view of the emancipating statutes enacted in Montana in relation to married women it is submitted that the restrictive provisions of section 6975 must give way to the broad and general provisions of section 6974.”
We preface our consideration of counsel’s argument on this matter with the observation that we are committed to the doctrine that the right to make a will is purely statutory and subject to the complete control of the legislature. As stated by Mr. Chief Justice Brantly in In re Noyes’ Estate, 40 Mont. 178, 105 Pac. 1013: “The right to make a testamentary disposition of property is not an inherent right; nor is it a right guaranteed by the fundamental laW. Its exercise to any extent depends entirely upon the consent of the legislature, as expressed in the statute enacted on the subject. It can withhold or grant the right, and, if it grants it, it may make its exercise subject to such regulations and requirements as it pleases.”
It is argued that by the amendment of the statutes concerning married women (Comp. Stats. 1887 p. 1046), the provisions of which have been carried forward through the various compilations of our laws and other statutes subsequently enacted, a married woman in this state has been fully emancipated from all disabilities which attached to her at common law, as evidenced by the facts that she is obligated to support her husband only if he is unable to do so out of his own property or by his labor (sec. 5784, Rev. Codes 1921); that neither husband nor wife has any interest in the property of the other except ¿s above noted (sec. 5785); that either husband or wife may enter into engagements or transactions with the other or with strangers subject only to the general law (sec. 5786); that they may hold real or personal property together jointly or in common (sec. 5789); that neither is liable for the debts of the other (sec. 5790); that a married woman may prosecute actions for injury to reputation, property and character, and may defend (sec. 5791); that all the property of the wife owned before marriage and that acquired afterward is her separate property, and that she may convey the same without the consent of her husband (sec. 5791); that her earnings are not liable for the debts of her husband (sec. 5795); that her earnings and accumulations are her separate property (secs. 5796 and 5797); that no estate is allowed the husband as tenant by courtesy upon the death of his wife (sec. 5812); that her political rights are the same as a man’s or an unmarried woman’s (sec. 2, Art. IX, Const.); and that she may hold public office in this state (Rose v. Sullivan, 56 Mont. 480, 185 Pac. 562); and that by the enactment of these various provisions the statute has established a public policy wholly inconsistent with the restrictive provisions of section 6975 and thereby it has ceased to be operative.
The public policy in this state is determined by the enactments of the legislature on subjects concerning which it has seen fit to speak. (Cruse v. Fischl, 55 Mont. 258, 175 Pac. 878.) To ascertain the policy of this state with reference to the right of a married woman to dispose of her property by will, resort may be had to the various legislative enactments of the territory and state.
By sections 1 and 4 of “an Act concerning last wills and testaments,” approved January 12, 1872 (Codified Stats., 7th Sess. p. 554), every person of full age and sound mind was vested with power to bequeath and dispose of real and personal property by last will and testament. In section 1 it was provided: “And any married woman may devise and dispose of any real or personal property held by her, or to which she is entitled in her own right, by last will and testament in writing; and may alter or revoke the same in like manner as if she was unmarried,” with a proviso that no such will made in favor of a church or an eleemosynary institution should be valid without the written consent of her husband.
In “An Act relating to probate courts and estates of deceased persons,” approved February 16, 1877 (Laws of the Tenth Session, p. 349), section 432 contained the same general grant of power to every person of sound mind over the age of eighteen years, to make testamentary disposition of all his real and personal estate, and by section 435 it was provided: “A married woman may dispose of all her separate estate by will, without the consent of her husband and may alter or revoke the will in like manner as if she were single. Her will must be executed and proved in like manner as other wills.”
The two sections above referred to were re-enacted as sections 432 and 435, respectively, of the Probate Practice Act, Second Division, Revised Statutes of 1879, page 271. In the Probate Practice Act of 1887 (Comp. Stats. 1887, p. 380), section 432 was re-enacted in the same language as it appeared in 1879, and has not been changed since that time, but now appears as section 6974, Revised. Codes of 1921, whereas section 435 was amended so as to read: “That a married woman may make a will in the same manner and with same effect as if she were sole, except that such will shall not without the written consent of her husband, operate to deprive him of more than one-third of her real estate or of more than one-third of her personal estate.” And an identical provision was made in section 1447, Fifth Division of the Compiled Statutes of 1887, page 1046, in “An Act concerning the rights of married women.” This section was amended by section 255 of the Civil Code of 1895, by striking therefrom the declaratory “that,” theretofore found as the first word of the section, and changing the word “one-third” to “two-thirds,” thereby diminishing the husband’s right to but one-third of his wife’s property. As thus amended the section was re-enacted as section 3735, Revised Codes of 1907, and section 6975, supra, in the 1921 revision.
From a consideration of the foregoing statutory provisions it is to be observed that the substance of section 6974 was contained in our statutes as early as 1872, and has been brought forward through the various compilations and codifications from that date down to the present, without substantial alteration; whereas, the provision relative to the extent of the power of a married woman to make testamentary disposition of her estate has been the subject of several changes and modifications.
By the provisions of the 1872, 1877 and 1879 statutes this power was limited to her separate estate. In 1887 this limitation was removed and she was given the right of testamentary disposition of all her property; but the provision was added that such will, without the written consent of her husband, should not operate to deprive him of more than one-third of her real or personal property. By the enactment of 1895 this right was further enlarged so as to enable her to dispose of two-thirds of her property without the written consent of her husband.
During the same period of time the various legislatures of the territory and state enacted laws for the relief of married women from the disabilities which attached to her under the common law, and, as above pointed out, they have substantially all been removed; but none of these legislatures has seen fit to give to a married woman the unrestrained right to make testamentary disposition of her property.
If it had been the intention of the law-making body to remove the testamentary restrictions imposed upon a married woman by section 6975, it would have been a simple matter for it to do so, but it has not seen fit to act in that behalf. That the subject has been in the minds of the legislators is evidenced by the fact, heretofore adverted to, that by the Act of 1887 her power to make testamentary disposition of her property was enlarged by removing its limitations to her separate estate, and making it general, except as to the reservation in favor of her husband, and that in 1895 the reservation in favor of the husband was reduced from two-thirds to one-third of her estate.
From the foregoing we are unable to discover wherein section 6975 has been either directly or indirectly modified or abrogated, or that it is in any manner contrary to the policy of our law as declared by the law-making body.
3. As above indicated, in tracing the history of our statutes relative to the right of a married woman to make testamentary disposition of her property, the statutes of 1872, 1877 and 1879 made specific reference to her separate estate; but this limitation was removed in 1887, and thenceforth she was empowered to make such disposition of all of her property.
When the restrictive proviso was placed in section 435 of the Probate Practice Act in the Compiled Statutes of 1887, no exception was made as to the character of the property embraced therein, and the same is true as to the section as it was amended by section 255 of the Civil Code of 1895, which has been brought forward and now appears as section 6975, supra.
The same legislative assembly which adopted the above-mentioned amendment in 1895 enacted what is now section 5792, Revised Codes of 1921, which provides: “All the property of the wife owned before her marriage and that acquired afterwards is her separate property. The wife may', without the consent of her husband, convey her separate property or execute a power of attorney for the conveyance thereof. ’ ’
Prom these circumstances it is apparent that the legislative intent was to make the proviso applicable to all • property of the wife without reference to the character or the time or manner of its acquisition, — otherwise some reservation would have been placed therein.
4. Finally, it is contended that section 6975 is violative of the provisions of section 1 of the Fourteenth Amendment to the federal Constitution, in that it denies to a married woman in this state the equal protection of the law, because it deprives her of the power to dispose of her personal property by will without her husband’s consent, whereas a married man may malte such disposition without the consent of the wife.
Counsel call our attention to no authority or precedent which goes to the extent of their conclusion, and we know of none. So far as our investigation has led us, we have discovered no judicial determination that it is not competent for the legislature of a state to designate the quantum of an estate which one party to the marriage contract may be entitled to receive out of that of the other.
In the matter of the right to dispose of property while living and to make testamentary disposition of the same, essential differences have always been recognized between a married man and a married woman. "While these distinctions have been largely removed by statutory enactment in this state, some are still retained. A married woman can convey all her separate property and give an absolute, unencumbered title to her real property without her husband’s consent, but a married man whose wife has ever been within this state or territory cannot convey such title to realty without his wife having released her interest therein, since she is by statute endowed with a one-third part of all lands whereof her husband was seized of an estate of inheritance during the marriage (sec. 5813, Rev. Codes 1921), and this dower interest cannot be defeated by his will (sec. 5819, Id.), and.in the event he should predecease her leav ing no child or descendants of children, she may, if she so elects, have in lieu of her dower, absolutely and in her own right as if she were sole, one-half of all the real estate which shall remain after payment of the debts and claims against her deceased husband (sec. 5821, Id.). No such encumbrance is placed upon the right of a married woman to make a conveyance of her separate real estate. She can convey an unencumbered title thereto without her husband’s consent (sec. 5792, Id.). It has never, to our knowledge, been suggested that the provision which deprives a married man of the power to divest his wife of her dower right by will deprives him of the equal protection of the law.
The right to make testamentary disposition of property is one wholly within the province of the legislature of the state. In United States v. Perkins, 163 U. S. 625, 41 L. Ed. 287, 16 Sup. Ct. Rep. 1073, the court said: “"We know of no legal principle to prevent the legislature from taking away or limiting the right of testamentary disposition or imposing such conditions upon its exercise as it may deem conducive to public good.” The state having the power to deny the right of testamentary disposition altogether (In re Noyes’ Estate, 40 Mont. 178, 105 Pac. 1013), “when it grants it, it may annex to the grant any conditions which it supposes to be required by its interest or policy.” (Mager v. Grima, 8 How. 490, 12 L. Ed. 1168.)
We have made reference to the subject of dower for the purpose of illustrating the fact that so far as property rights are concerned, married men and married women have been considered as occupying different relations and situations which have been deemed sufficient to warrant the application of different rules to them in their respective rights of disposition. In other words, in respect to these rights they have always been considered under different classifications. This differentiation has been so long acquiesced in by both legislatures and courts, that we must presume it is based upon such substantial differences and conditions as to make it natural and reasonable.
In this connection we think the language of the United States supreme court, in Noble State Bank v. Haskell, 219 U. S. 104, Ann. Cas. 1912A, 487, 55 L. Ed. 112, 31 Sup. Ct. Rep. 186, 32 L. R. A. (n. s.) 1062, quoted with approval by this court in Hill v. Rae, 52 Mont. 378, Ann. Cas. 1913E, 210, L. R. A. 1917A, 495, 158 Pac. 826, may be appropriately repeated here: “We are commanded by the highest judicial authority of the land 'to be cautious about pressing the broad words of the fourteenth amendment to a dryly logical extreme. Many laws which it would be vain to ask the court to overthrow could be shown, easily enough, to transgress a scholastic interpretation of one or another of the great guarantees in the Bill of Rights.’ ”
The rule has been many times declared by this court that when a statute is assailed as unconstitutional, the question is not whether it is possible to condemn but whether it is possible to uphold, and that it will not be declared invalid unless its conflict with the Constitution, in the judgment of the court, is placed beyond a reasonable doubt. (Mills v. Stewart, 76 Mont. 429, 247 Pac. 332; State ex rel. Cryderman v. Wienrich, 54 Mont. 390, 170 Pac. 942.) Testing the statute under consideration by this rule and in the light of judicial history, we think its validity should be upheld.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Myers, Matthews and Galen concur.
|
[
-21,
-22,
-8,
-9,
-20,
-29,
-22,
60,
18,
-69,
-7,
-32,
10,
31,
-22,
20,
5,
11,
32,
7,
39,
14,
-66,
4,
26,
0,
-14,
12,
-4,
-10,
44,
31,
33,
10,
22,
29,
40,
-5,
20,
-18,
53,
3,
-19,
7,
-30,
31,
41,
-80,
9,
1,
-62,
-68,
3,
-13,
44,
2,
6,
-24,
-53,
49,
73,
-43,
-16,
28,
-7,
-8,
42,
34,
-12,
24,
65,
-64,
-17,
17,
-30,
-28,
-24,
-25,
11,
-7,
-35,
-35,
-11,
-10,
-32,
-37,
-39,
-39,
-44,
40,
-27,
0,
15,
-8,
-2,
55,
-15,
2,
-3,
66,
-14,
-28,
-74,
-6,
74,
27,
-6,
8,
-1,
-1,
6,
48,
5,
35,
-14,
10,
5,
22,
-12,
20,
-13,
34,
-29,
-16,
-4,
-18,
-40,
54,
106,
-19,
50,
56,
3,
10,
-33,
0,
-43,
-50,
-38,
-31,
17,
-8,
1,
-31,
44,
17,
-22,
7,
-32,
-73,
-9,
-34,
43,
-13,
65,
-13,
30,
-11,
39,
1,
42,
-21,
19,
-27,
-41,
-21,
32,
-19,
-3,
-25,
-5,
-20,
19,
-24,
17,
25,
-53,
-54,
-18,
22,
3,
58,
28,
-53,
22,
-21,
22,
5,
-15,
-34,
-23,
11,
-9,
8,
-22,
-12,
-24,
-7,
9,
23,
13,
-15,
20,
-7,
0,
-22,
9,
-31,
7,
-31,
14,
-8,
-6,
-1,
-62,
-5,
-23,
-41,
-84,
-5,
43,
-6,
-8,
9,
-5,
-41,
55,
-31,
11,
-26,
-32,
15,
-15,
75,
-6,
-14,
-34,
-31,
-68,
-24,
10,
-8,
-16,
20,
9,
32,
13,
0,
-24,
-46,
23,
14,
31,
50,
33,
24,
21,
10,
7,
-63,
-39,
31,
-86,
5,
-12,
-19,
31,
-47,
18,
7,
31,
-54,
46,
16,
20,
-31,
-15,
9,
-1,
54,
-24,
24,
7,
64,
49,
38,
8,
29,
6,
18,
4,
-56,
20,
-10,
69,
25,
-9,
-12,
-46,
-5,
30,
63,
60,
50,
24,
25,
-4,
30,
-13,
46,
21,
12,
9,
55,
58,
17,
-27,
-22,
43,
41,
-7,
10,
1,
-6,
34,
-15,
0,
-26,
0,
67,
-7,
29,
0,
34,
-35,
-52,
36,
44,
35,
0,
-20,
-18,
51,
0,
12,
-34,
-14,
10,
-20,
-11,
-37,
34,
-8,
45,
-78,
-10,
11,
-30,
17,
7,
-6,
42,
-12,
31,
-42,
-16,
8,
-22,
15,
-41,
47,
0,
16,
26,
62,
22,
-1,
-13,
-36,
25,
-22,
18,
58,
40,
13,
49,
8,
-35,
-40,
-23,
-18,
22,
15,
25,
-24,
6,
0,
-2,
-18,
-15,
-62,
80,
-11,
-37,
-55,
33,
-43,
51,
-49,
-5,
1,
21,
20,
-1,
46,
-3,
-41,
5,
-22,
63,
12,
26,
65,
56,
-90,
-56,
-14,
17,
3,
-70,
-14,
89,
5,
-38,
18,
-7,
-27,
56,
26,
22,
20,
38,
-33,
52,
3,
27,
-4,
-54,
6,
15,
10,
30,
29,
24,
22,
-20,
50,
17,
-10,
-4,
27,
2,
101,
-17,
22,
2,
-34,
-50,
4,
0,
-16,
21,
37,
-12,
-1,
11,
6,
-2,
1,
-41,
-2,
33,
6,
-30,
-2,
13,
-16,
-29,
-23,
19,
32,
-49,
2,
10,
-5,
0,
-27,
-75,
-26,
-43,
-1,
34,
-1,
0,
-95,
-46,
24,
-25,
-42,
-24,
64,
-22,
3,
27,
-15,
19,
47,
0,
16,
25,
0,
2,
-9,
32,
-17,
-4,
26,
2,
-11,
-17,
-45,
80,
-83,
-9,
-33,
-18,
18,
2,
6,
-38,
-13,
-25,
2,
-18,
-29,
-6,
-1,
16,
-6,
6,
-15,
-44,
-19,
23,
10,
-41,
18,
4,
-21,
10,
22,
6,
-66,
-25,
18,
-69,
-50,
-54,
-7,
-39,
-11,
-43,
7,
-23,
-11,
-37,
3,
-22,
-21,
-21,
45,
16,
-50,
-18,
-32,
21,
12,
32,
-24,
0,
34,
20,
-28,
0,
-23,
-17,
-19,
18,
-22,
12,
-26,
0,
32,
-7,
-27,
11,
37,
28,
37,
-4,
-15,
26,
-18,
-20,
17,
41,
-2,
-32,
18,
-23,
15,
49,
-7,
-4,
11,
8,
-24,
-9,
10,
35,
5,
-36,
-10,
59,
-10,
6,
-3,
23,
-3,
-70,
15,
55,
0,
12,
35,
8,
14,
-46,
39,
16,
-16,
22,
-14,
-6,
-9,
-20,
63,
-64,
42,
54,
65,
-8,
-7,
1,
51,
25,
25,
30,
-14,
11,
18,
19,
17,
-52,
6,
49,
16,
-20,
86,
-32,
10,
-18,
-15,
44,
26,
-14,
5,
12,
-75,
-13,
35,
-1,
-12,
11,
-2,
58,
13,
-21,
2,
65,
9,
40,
-21,
41,
-61,
5,
-48,
11,
-29,
-12,
-26,
3,
-34,
-28,
-35,
11,
50,
-59,
4,
-39,
13,
-91,
-9,
-34,
35,
-3,
27,
43,
28,
74,
36,
32,
-40,
38,
-10,
-31,
-1,
-5,
41,
32,
-12,
-3,
-21,
0,
2,
-67,
-6,
-24,
43,
-10,
1,
-25,
10,
-39,
23,
-47,
-39,
-2,
-24,
-14,
13,
46,
19,
-15,
-35,
34,
-24,
22,
-18,
-19,
58,
-25,
9,
8,
-20,
33,
-25,
30,
6,
34,
-32,
-10,
-70,
-13,
8,
-26,
33,
41,
65,
51,
-15,
39,
36,
7,
-45,
20,
-49,
-2,
2,
-25,
57,
16,
31,
4,
48,
-2,
31,
51,
-19,
55,
-4,
-21,
12,
-4,
-62,
24,
-37,
-28,
-20,
-22,
-22,
-33,
2,
40,
2,
6,
17,
12,
-32,
-6,
34,
-69,
-4,
14,
11,
-39,
14,
93,
-55,
-74,
21,
3,
23,
44,
16,
30,
29,
-18,
-24,
-6,
43,
7,
28,
61,
-57,
-72,
24,
-13,
-17,
10,
55,
-31,
-31,
-46,
41,
6,
32,
-6,
41,
-13,
-33,
-60,
-27,
-4,
0,
-13,
44,
6,
-19,
25,
-44,
35,
5,
13,
-4,
8,
61,
22,
-73,
-18,
20,
-30,
19,
5,
-71,
-11,
39,
-27,
16,
5,
-23,
-55,
-25,
8,
27,
1,
62,
42,
6,
8,
60,
4,
-7,
-44,
-2,
30,
28,
-27,
-7,
-42,
0,
19,
-51,
33,
-6,
-17,
-30,
-50,
-38,
14,
-17,
-4,
6,
-26,
-12,
10,
31,
62,
-22,
-13,
13,
23,
20,
-17,
-21,
35,
-14,
-64,
-4,
16,
33,
8,
47,
43,
-23,
76,
-8,
-85,
-12,
5,
-52,
-6,
22,
-1,
67,
-4,
-10,
-8,
46,
-21,
4,
-23,
63,
-74,
6,
0,
78,
-33,
-17,
-109,
21,
3,
6,
41,
-7,
-65,
38,
-65,
-55,
-100,
55,
26,
-4,
-17,
25,
51,
1,
45,
-11,
5,
-57,
-13,
6,
-25,
-52,
-57,
-39,
40,
-7,
28,
-66,
-8,
-67,
-34,
-40,
-16,
-49,
-7,
-28,
5,
-45,
9,
17,
-12
] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
John Springer died intestate at Judith Gap, Wheatland county, Montana, on November 18, 1918, leaving surviving his widow and a minor son. The widow intended to and did take her husband’s remains to his former home in Minnesota for burial. Before setting out upon this journey she consulted James G. Alexander, then cashier of the Security State Bank of Judith Gap, and N. R. Barncord, a lawyer practicing at that place, with respect to the condition of her husband’s estate. She told them that Louis B. Springer, her husband’s father, had offered to give her money enough to enable her to get back to her people, but claimed all the property upon the ranch which her husband had been operating. The ranch belonged to Louis B. Springer. She said that unless she took some action to prevent him from doing so he would take all of the property and leave her nothing. After considering the situation it was arranged that she would ask the court to appoint Mr. Alexander administrator of her husband’s estate and that Mr. Barncord should act as the attorney for the administrator.
Mr. Alexander was appointed administrator upon December 20, 1918. Pursuant to the court’s order he gave bond in the penal sum of $12,000.
It was found that Louis B. Springer was in possession of the ranch and was taking active steps to dispose of the personal property there. About January 1, 1919, in Mr. Barneord’s office, Springer told Barneord and Alexander, in effect, that he was virtually the owner of the property, as he had advanced the money to pay for it, and he proposed to retain it. He said also that he represented L. B. Springer, Jr., a brother of the deceased, whom he claimed was a copartner of the deceased in the ranching operations, L. B. Springer, Jr., then being with the United States army overseas. While the administrator and attorney did not believe these assertions they did not then have any means of disproving them. Springer insisted upon an immediate sale of the property. After some controversy a sale was agreed upon, with the understanding that the proceeds thereof should be paid to the administrator to be held until the question of ownership might be determined. Terms of sale were discussed. Springer insisted that if the property were sold for cash the sale would be a failure and said it would be advisable to take notes from persons who were considered solvent. It was agreed that notes should be taken leaving the name of the payee blank until it could be determined who was entitled to the property. The terms of the sale as insisted upon by Springer were, a discount of five per cent for cash, or notes due in one year with interest at ten per cent per annum.
On December 20, 1918, appraisers of the estate were appointed. On January 27, 1919, they returned an inventory and appraisement in which the property of the estate was valued at $2,056.90. The property was sold at public auction on January 31, 1919, as upon an administrator’s sale. The notes and cash received were turned over to the administrator. Shortly thereafter Springer went to Minnesota, and it would seem that he and Mrs. Springer, the widow, remained there two or three years. The administrator testified that no attempt to close the estate was made for the reason that “it was not determined what portion of the estate belonged to L. B. Springer or his son L. B. Springer, Jr.” In the meantime Springer presented three claims against the estate, aggre gating $1,964.85. These were approved by the administrator and by the court in December, 1921.
During the spring of 1922 Mrs. Springer returned to Judith Gap. Shortly thereafter a settlement of the controversy over the property was agreed upon by Mrs. Springer, Louis B. Springer and the administrator, subject to the approval of the court. This agreement, as the court found, was “that the said L. B. Springer, Sr., was to be paid the sum of $500.00 cash, and to be delivered the promissory notes that have been filed as evidence in this estate, and that the widow was to be paid the family allowance, the sum of $2,500.00.” Pursuant thereto the administrator then paid over to Mrs. Springer $2,500, and about March 15, 1923, tendered the sum of $500 and the notes to Emmet O’Sullivan, who then was attorney in fact for Springer under a power of attorney which Springer had executed on February 24, 1923. Mr. O’Sullivan demanded the payment of $1,000 in addition to the notes. When the administrator refused to accede to this, O’Sullivan, on March 15, 1923, at the request of Springer filed in the court a petition for the revocation of the letters theretofore granted to Mr. Alexander, and asked that letters be issued to himself. Some time later Alexander filed an answer to the petition. On September 27, 1923, O’Sullivan asked leave to file a supplemental petition, which was granted, and on October 9 he filed the same in which he represented that Alexander had permanently removed from the state of Montana. On October 8, 1925, Alexander filed an account of his administration, in which he incorporated the substance of two former accounts, one filed December 12, 1921, and the other on April 9, 1923. The last account, filed October 8, 1925, commences: “Account of James G. Alexander, formerly administrator of the estate of John Springer, deceased.” It sets forth the fact that on March 20, 1923, Alexander was served with a citation together with a petition for the revocation of his letters; that on March 27, 1923, he filed his answer to the petition for removal; that on the twenty-second day of December, 1923, a reply to the answer was filed; that on the thirteenth day of December, 1923, O’Sullivan filed a supplemental petition and that “by an order duly given and made on the fifth day of January, 1924, James G. Alexander as administrator of the estate of John Springer, deceased, was removed on the ground and for the sole reason that he had permanently removed from the state of Montana,” and that on the 19th of January, 1924, letters of administration were issued to Emmet O’Sullivan; that on February 16, 1924, O’Sullivan as administrator filed an action in the district court of "Wheatland county against James G. Alexander and American Surety Company of New York to recover the sum of $5,696.88, and that the action resulted in favor of the defendants in the district court and later in the supreme court. Alexander then claimed credit for the sum of $420.87 paid out as attorney’s fees and expenses on account of the litigation, $75 to W. C. Husband for the purpose of preparing and presenting the final account, and $61.32 on account of premiums paid the surety company on the bond, making $556.89 in all. A copy of the answer to the original petition for revocation of his letters was annexed to the account as Exhibit “A.”
Objections to the three accounts were filed by O’Sullivan as administrator. The accounts and objections thereto were set down for hearing on December 22, 1925. The court heard the testimony offered and upon June 14, 1926, handed down its findings of fact and conclusion of law. It found in substance that L. B. Springer, Sr., the father of the deceased, claimed to be the rightful owner of all the personal property included in the inventory and that the property was sold without an order of court by Springer; that the administrator never received actual possession of the property but received the proceeds from the sale thereof in the sum of $1,718.11 in cash and $1,814.11 in notes, and that the total amount received by the administrator from all sources is the sum of $6,185.25; that he made disbursements amounting to $3,831.50, the principal item of which was “Paid Mrs. John Springer, widow’s allowance, $2,500”; and that in addition Alexander incurred as expenses of administration the “sum of $556.89, which expense was incurred subsequent to January 19, 1924”; that the promissory notes amounting to $1,814.11 were surrendered and introduced in evidence at the hearing; that Alexander as administrator had “acted in entire good faith, and that he was not guilty of any inattention, neglect, mismanagement or dishonest conduct in the administration of the estate”; that there had not been any loss or depreciation in the property or assets of the estate coming into his possession due to any misconduct on part of himself or his attorney; that there had been delay in the administration of the estate but not through Alexander’s fault, and the delay had not caused any loss to the estate; that Alexander as administrator “made a valid, fair and satisfactory compromise settlement with the widow of the deceased, and with L. B. Springer, Sr., the father of the deceased, which settlement determined the conflicting claims in and to the property and their interest in said estate”; and that the “settlement is binding upon the estate and is hereby approved.” As a consequence the court concluded as a matter of law that the final account of Alexander ‘ ‘ should be approved, allowed and settled.” O’Sullivan as administrator, referred to hereafter as the contestant, filed exceptions to the findings of fact and conclusion of law, which were overruled by the court. From the order approving the account of Alexander and from the order overruling and denying the exceptions to the findings of fact and conclusion of law contestant has appealed.
In considering the matters presented the district court found an estate which had been conducted with little regard for the directions of the statutes. The property of the estate had. been sold without an order of court and had passed into the hands of bona fide purchasers. The money received by the administrator from all sources, with the exception of a few hundred dollars, had been disbursed. Stubborn facts con fronted the court: like the noted financier, it found the “eggs had been scrambled.” Being unable to restore the status which existed when the administration began, the court sensibly undertook to ascertain whether, despite the disregard of the statutes, the administrator had acted in good faith, and with due consideration for the rights of the creditors and the heirs; whether he had conserved the property of the estate and had not suffered it to be wasted or lost through his mismanagement; whether he had acted honestly, without profit to himself, and had not caused loss to others through his act or neglect. The court concluded, as we have seen, that the administrator had acted in entire good faith and had not been guilty of any inattention, neglect, mismanagement or dishonest conduct, and there had not been any loss or depreciation in the property or assets of the estate coming into his possession.
These findings have been challenged by the contestant in great detail. In fact he objected to practically everything which the administrator did or caused to be done. We shall not take the time to consider these objections in detail. Rather we shall follow the policy of the district court in an attempt to ascertain whether in fact, in reaching the result announced by the court, substantial justice had been meted out.
When John Springer died his sole heirs were his widow and infant son, then about a year old. Louis B. Springer, father of the decedent, notwithstanding some apparent contention to the contrary, was not an heir of the decedent, not entitled to share in his estate. Whether the child is still living the record does not reveal, but we shall presume that he is. If, however, the child has died, his mother has succeeded to his interest in the estate (sec. 7073, Rev. Codes 1921, subd. 2), and therefore is entitled to the entire residue of her husband’s estate.
At the expense of repetition it must be remembered that when the sale took place the ownership of the property sold was not determined. It is clear that Louis B. Springer, the decedent’s father, claimed to own the property and that neither the widow nor the administrator was in position to disprove the claim. While in the interest of regularity it would have been wise if an order of sale had been obtained by the administrator, the fact is that Springer had possession of the property and it would seem that he was the dominating factor in the conduct of the sale. In compelling the proceeds of the sale to be turned over to the administrator to await the determination of the question of title to the property, the administrator and his counsel rendered high service to the estate. By that act they saved the property for the estate and avoided litigation the result of which might have been doubtful. While the property of the estate was appraised at #2,056.90, the amount obtained from the sale was #3,595.22. The property must have brought the full value at the sale; there is no assertion to the contrary. It is true that the administrator, without an order of court, should not have received notes in payment for the property sold but that condition was brought about by the insistence of Springer who insisted that he owned the property which was sold. After the sale nothing seems to have been done toward determining the status of the title to the proceeds of the sale until the return of Mrs. Springer in 1922, but no one seems to have complained about it. No one is complaining about it now except the contestant and, probably, Springer.
When the creditors were paid the record does not disclose, but it would seem that all have been paid. While the cash received from the sale was in possession of the administrator he deposited it in the bank, of which he was the cashier, and paid interest upon the daily balances.
It is obvious from the record that this controversy was projected by Louis B. Springer. In February, 1923, he gave his power of attorney to O’Sullivan who, as we have seen, commenced proceedings to remove Alexander as administrator in March, 1923, this being finally accomplished on January 5, 1924. In the meantime Alexander filed his third account, which met with the approval of the court. When this contro versy arose the only persons interested in the estate were the widow, her son, and Springer, who finally appeared in the role of a creditor. In the compromise agreement Springer had consented that $2,500 should be paid to the widow as a family allowance. The administrator paid it. This was irregular but the court had full authority to approve the action. The widow was entitled to a reasonable provision for the support of herself and child. (Sec. 10144, Rev. Codes 1921.) The court in its discretion could have made a reasonable allowance out of the estate for the widow and child during the progress of the settlement of the estate (within reasonable limitations as to the time of settlement, of course), the estate not being insolvent. (Sec. 10146, Rev. Codes 1921; In re Dougherty’s Estate, 34 Mont. 336, 86 Pac. 38.) This estate was not insolvent. The sum of $2,500 for the support of the widow and her child — and it must be assumed that she supported the child — from the date of the decedent’s death to the time the money was paid, cannot be considered exorbitant. The fact that the administrator paid the widow this sum of money for the support of herself and minor child without a previous order of the court does not deprive him of the right to credit therefor when the court found the amount paid was reasonable and proper. (In re Lux’s Estate, 100 Cal. 608, 35 Pac. 345, 114 Cal. 89, 45 Pac. 1028; In re Fernandez’s Estate, 119 Cal. 579, 51 Pac. 851.)
Objection is made that the administrator did not present vouchers for certain amounts which he paid, but the court was satisfied from the evidence that the amounts were paid by the administrator to the persons, and for the purposes, as alleged, and that the requirements of section 10297, Revised Codes 1921, respecting the absence of vouchers had been met sufficiently. (12 Cal. Jur. 39.) The contestant did not offer any testimony to refute the showing made. We shall not disturb the court’s conclusion.
The contestant complains that the former administrator caused a second inventory and appraisement to be made and returned, which contestant says was useless and therefore the expense entailed should be disallowed. But he overlooks the fact that the second appraisement was made by order of the court.
The contestant also complains that the court should not approve the payments made to the administrator’s attorney for legal services, $270, and a like amount to himself. The administrator received from all sources $6,185.25, including the notes. He might have been allowed $329.26 under the provisions of section 10287, Revised Codes 1921, upon the closing of the estate. As the court found he was not guilty of unreasonable delay in closing the estate, had acted in good faith throughout, and was not subject to criticism for any action, it was justified in approving the payment the administrator made to himself. The court did not err in approving the payment of $270 to Barncord.
After Springer concluded to withdraw his claim of ownership to the property and to receive payment upon the claims which he had filed against the estate by accepting $500 in cash and the notes, his interest in the estate ceased.
After the settlement with Springer there was in the possession of the administrator, according to his account, $512.55 in cash, or at any rate, he had that sum upon March 1, 1923. If this arrangement had been carried out, and the estate had been closed immediately as it should have been, the administrator would have turned over to the heirs — that is, the widow and the son (if the son were living) — that sum of money, less any further allowance to the administrator the court might have seen fit to make.
From the evidence the court was justified in finding that there had not been any loss or depreciation in the property or assets of the estate due to any misconduct of Alexander or his attorney, and that he had not been guilty of any misconduct or dishonesty in the management of the administration. There was delay, some of which Alexander might have prevented. But others, and particularly Springer, were more to blame than was Alexander.
We agree that the settlement between Alexander as administrator and Springer should be approved. This results in substantial justice to all. It is regrettable that the administrator and his counsel did not follow out the directions of the statutes, but his failure to do so does not restrict the authority of the court to bring the estate to a close as justice requires. There is substantial evidence to uphold all the court’s findings except as hereafter noted.
Instead of carrying out the settlement between the former administrator and Springer, the contestant commenced an action against Alexander and his bondsmen which resulted in failure in the district court as well as in this court. (O’Sullivan v. Alexander, 73 Mont. 12, 234 Pac. 1099.) Alexander in his final account claimed credit for $420.57 paid out by him on account of that litigation. He also claimed credit for $75 which he had obligated himself to pay W. C. Husband, Esq., for preparing the final account. The court allowed these items and in so doing we think it erred.
The administrator “shall be allowed all necessary expenses in the care, management and settlement of the estate, including a reasonable fee paid to attorneys for conducting the necessary proceedings and for conducting necessary actions in courts, or incurred therefor,” in the language of section 10285, Revised Codes 1921. In making an order fixing or allowing counsel fees the court must find that the administrator needed the services of counsel and that the services were worth something to the estate. (11 Cal. Jur. 1203.) The legal services must have been rendered to the estate. (Estate of Brignole, 133 Cal. 162, 65 Pac. 294.)
A test as to whether an administrator is entitled to credit for counsel fees paid is, has counsel rendered services for the benefit of the estate? (24 C. J. 99.) Here the administrator had been removed from office. The suit was against him as an individual and against the surety upon his bond. While the basis of the action was that as administrator he had caused loss to the estate, the suit was not against the estate. Under these circumstances it seems clear that the estate is not liable for the payment of attorney’s fees incurred by Alexander and the surety in defending the suit. (See In re Byrnes’ Estate, 122 Cal. 260, 54 Pac. 957, 1015.) It was unfortunate that Alexander and the surety company were subjected to the harassment of a lawsuit which was without foundation, but this is a frequent occurrence in the business world; and frequently the recourse for those who thus have been subjected to the expense and inconvenience of an unjust lawsuit is measured only by the statutory costs.
Not is Alexander entitled to the sum of $75 for thé preparation of the final account. It was the duty of Mr. Barncord, the attorney for the estate, who had been paid $270, to prepare the final account. No reason is apparent why another counsel was employed for that purpose.
Objection is made to the amount of premiums paid by Alexander to the surety company for his bond. It seems that Alexander served as administrator for five years and twenty-three days and that he paid six premiums upon the bond. While it is not asserted that the administrator should not have credit for any premiums paid upon the bond it is urged that he should be credited for premiums paid only during the period which was reasonably necessary for the administration and settlement of the estate, not for that period during which settlement of the estate was unduly delayed. But as the court found that none of the delay was attributable to Alexander, and as we can see no good reason to disturb that finding, this contention cannot be sustained. We are in doubt as to the payment of one year’s premium, but this we resolve in favor of the trial court.
We have not seen fit to comment upon every objection mad.e by the contestant, but we have examined the record carefully and have considered all of the objections made. We have discussed only those which we have deemed worthy of notice. The findings of fact and conclusion of law entered by the trial court are approved in all respects, except as to the sums of money allowed Alexander for defending himself and his surety against the action brought against them by 0 ’Sullivan as administrator, and as to the $75 agreed to be paid by Alexander to Husband.
The district court of Wheatland county is directed to modify its findings of fact and conclusion of law accordingly and when so modified the same shall stand affirmed.
Before concluding we again call attention to the rules of this court which have been adopted for the convenience of court and counsel. They are simple and easily obeyed. But little attention has been paid to them in arranging the transcript in this case. The index is almost useless. In thirty-one instances it fails to give any information as to the particular document referred to. The bill of exceptions was not engrossed after settlement. In consequence the arrangement of the documents in the transcript is extremely confusing and much useless matter has been inserted. Appellant would not have just cause for complaint had we seen fit to dismiss this appeal. It is ordered that the appellant pay all the costs of this appeal except for the appearance fee and brief of respondents.
Modified.
Associate Justices Myers, Stark, Matthews and Galen concur.
|
[
3,
-5,
37,
0,
46,
-22,
-35,
15,
30,
-41,
-1,
14,
-5,
40,
-41,
11,
-61,
-49,
4,
84,
-42,
-26,
-79,
28,
17,
12,
26,
7,
-29,
-8,
23,
0,
15,
26,
71,
59,
-30,
-47,
-16,
-31,
0,
3,
42,
57,
-15,
23,
9,
-69,
15,
-7,
-4,
17,
43,
35,
13,
-17,
-29,
50,
-42,
24,
34,
-51,
9,
-5,
54,
62,
59,
4,
-12,
10,
44,
-29,
16,
-14,
16,
26,
-9,
-34,
-44,
-31,
-14,
0,
0,
-5,
-18,
-31,
6,
-25,
0,
8,
-65,
10,
67,
-9,
-19,
2,
-29,
-15,
-45,
10,
26,
-86,
13,
4,
41,
-9,
-25,
26,
81,
0,
-2,
0,
-6,
-53,
-3,
15,
-16,
-42,
-43,
18,
-17,
26,
-2,
-16,
30,
39,
-45,
0,
75,
-29,
0,
6,
13,
-14,
-26,
-43,
-33,
-39,
-36,
-14,
28,
4,
8,
0,
10,
13,
-49,
-18,
-37,
-14,
2,
32,
-10,
35,
44,
-47,
16,
28,
-8,
-8,
19,
-5,
52,
5,
5,
53,
17,
-37,
-25,
6,
12,
-29,
-20,
20,
58,
27,
-24,
-16,
-21,
25,
21,
22,
18,
-24,
-62,
-54,
37,
39,
-2,
36,
-26,
-51,
41,
-24,
-23,
11,
7,
-9,
-13,
28,
33,
-11,
-10,
51,
-20,
-7,
-22,
19,
5,
-36,
-30,
25,
14,
6,
-56,
1,
-45,
-27,
-49,
-16,
66,
-4,
-1,
27,
63,
-43,
-2,
-12,
19,
-17,
-36,
36,
31,
11,
-34,
22,
-66,
-10,
-43,
-15,
-5,
-63,
-15,
-30,
3,
10,
0,
1,
25,
9,
-18,
-11,
-30,
18,
21,
26,
16,
-23,
18,
-37,
27,
-29,
15,
31,
18,
0,
-41,
-24,
28,
-22,
69,
-18,
15,
-25,
-53,
-27,
106,
-14,
-44,
-58,
32,
23,
-7,
22,
29,
-15,
27,
-4,
-28,
-28,
-12,
-3,
-29,
0,
-26,
-6,
56,
1,
36,
-35,
-14,
20,
27,
39,
33,
15,
-32,
-13,
-12,
-54,
-16,
15,
2,
4,
46,
20,
-14,
18,
4,
30,
-22,
-11,
17,
35,
3,
2,
-26,
-6,
57,
52,
37,
21,
0,
46,
-12,
-22,
10,
88,
-35,
-11,
-33,
-16,
31,
-14,
-8,
-15,
16,
26,
-28,
-14,
-35,
6,
19,
18,
-48,
4,
64,
17,
-8,
9,
22,
52,
41,
24,
-39,
-43,
0,
-29,
37,
-65,
13,
6,
13,
-73,
74,
37,
18,
7,
19,
11,
34,
-5,
-36,
14,
0,
-36,
14,
-19,
5,
-29,
0,
-17,
-35,
74,
-26,
57,
66,
-36,
-25,
-28,
-5,
-34,
-33,
6,
-41,
-9,
-51,
22,
-12,
-12,
5,
7,
-24,
-62,
56,
-11,
-22,
32,
-2,
9,
21,
2,
70,
46,
42,
-46,
5,
-32,
-29,
-22,
38,
13,
-4,
16,
-5,
-11,
-26,
50,
-12,
43,
12,
2,
55,
69,
-20,
52,
12,
-28,
54,
41,
-2,
28,
21,
-6,
-37,
13,
70,
-10,
-59,
-9,
4,
19,
18,
40,
18,
-27,
32,
-3,
-3,
36,
-6,
20,
45,
15,
33,
16,
36,
-44,
-7,
-69,
16,
-21,
-4,
4,
43,
-7,
-61,
-21,
32,
-20,
14,
-20,
-49,
-83,
-37,
-52,
2,
-2,
51,
-27,
-3,
-24,
127,
-10,
-50,
-8,
-20,
-33,
-36,
76,
87,
-59,
3,
6,
44,
-17,
71,
-10,
49,
-24,
1,
10,
-22,
4,
55,
-8,
8,
-59,
64,
-22,
-64,
28,
-31,
2,
10,
-38,
23,
22,
5,
-87,
2,
-65,
35,
22,
-76,
-19,
-13,
-48,
-27,
-24,
19,
5,
-6,
-14,
32,
-6,
-36,
-8,
-13,
19,
7,
36,
-36,
-6,
47,
2,
-36,
28,
-21,
44,
2,
24,
-13,
-9,
17,
-37,
-8,
1,
9,
-1,
16,
-49,
-3,
7,
0,
13,
4,
29,
-62,
5,
0,
-12,
-54,
64,
-42,
-23,
16,
37,
-33,
15,
-49,
28,
10,
55,
-20,
35,
41,
-22,
-9,
-4,
-49,
-42,
-13,
-20,
3,
58,
0,
-63,
82,
-4,
1,
4,
-12,
8,
-3,
-6,
-40,
60,
-1,
-18,
27,
-19,
-9,
42,
-44,
23,
-27,
7,
-32,
-24,
-11,
15,
23,
-15,
-6,
-52,
2,
-4,
19,
-16,
50,
0,
1,
-11,
-23,
0,
1,
30,
4,
1,
20,
-12,
-18,
12,
7,
6,
26,
10,
8,
3,
40,
22,
-17,
-17,
-26,
-13,
45,
35,
38,
17,
14,
56,
19,
66,
-31,
37,
-9,
64,
-6,
59,
18,
25,
-10,
90,
-2,
1,
-16,
18,
-24,
-56,
16,
-33,
-77,
29,
-20,
-14,
-42,
-25,
-34,
-17,
-8,
3,
2,
18,
-54,
17,
5,
-39,
26,
-7,
42,
-24,
-38,
-59,
2,
-3,
51,
34,
0,
38,
60,
27,
-15,
-4,
-21,
45,
-38,
39,
39,
-45,
-63,
18,
36,
49,
-19,
47,
-11,
-6,
-30,
-31,
40,
28,
16,
-24,
-11,
-29,
31,
42,
-28,
-66,
31,
40,
-63,
25,
-60,
-25,
-4,
-10,
-35,
-36,
-6,
-56,
-90,
31,
-27,
-40,
20,
40,
21,
-1,
-12,
-3,
-30,
-35,
3,
45,
1,
32,
28,
54,
-13,
-23,
26,
-28,
-56,
-20,
-11,
7,
-15,
5,
-19,
0,
-12,
-22,
40,
-29,
-8,
65,
-52,
12,
13,
-27,
-5,
-19,
-38,
12,
-45,
29,
-10,
3,
-27,
-56,
29,
-17,
17,
-1,
-36,
0,
-52,
34,
-7,
-38,
-61,
10,
12,
-18,
1,
40,
0,
-33,
-30,
16,
8,
8,
47,
-24,
-21,
13,
-17,
39,
-26,
-36,
-28,
77,
-65,
-23,
-35,
-86,
20,
31,
-5,
-81,
-45,
16,
49,
1,
44,
1,
48,
46,
-6,
5,
19,
-13,
-27,
28,
42,
-9,
49,
-31,
-77,
-22,
-22,
45,
-31,
32,
39,
-69,
28,
-5,
-17,
-74,
-68,
36,
-12,
-34,
-3,
-21,
10,
-21,
-9,
-16,
-15,
-48,
-12,
42,
21,
62,
40,
41,
15,
1,
-26,
-2,
-58,
69,
-18,
-25,
-33,
20,
18,
-30,
-21,
52,
0,
-30,
10,
-40,
14,
72,
-14,
55,
-3,
-54,
-24,
-12,
-6,
35,
26,
-24,
21,
42,
17,
84,
-7,
33,
46,
-48,
0,
31,
22,
19,
21,
58,
21,
-16,
-60,
-7,
-6,
8,
-12,
-11,
43,
-35,
8,
-34,
-38,
16,
-59,
-19,
-24,
-24,
58,
5,
40,
-10,
68,
46,
-21,
-44,
-18,
-38,
-30,
86,
-18,
-11,
-45,
2,
-24,
9,
8,
-62,
-42,
34,
73,
76,
-1,
40,
-3,
-35,
17,
-108,
-16,
34,
-4,
-1,
-72,
-20,
-15,
-34,
-20,
-32,
1,
-7,
-21,
3,
65,
18,
11,
33,
-50,
-6,
-13,
-16
] |
MR. JUSTICE GALEN
delivered the opinion of the court.
This action was instituted by the plaintiffs to compel the defendant sheriff to permit the plaintiffs, as redemptioners, to make redemption of certain real estate sold by him on execution and for an accounting of rents, issues and profits collected by the execution purchaser from the date of the execution and delivery of the sheriff’s certificate of sale. After issue had been joined, the cause was submitted to the court upon an agreed statement of facts. The court made findings of fact and conclusions of law in favor of the plaintiffs, upon which judgment was regularly entered. The appeal is from the judgment.
Defendants’ several specifications of error present for determination but one question which is conclusive as to the respective rights of the parties, viz.: Have the plaintiffs a legal right to make redemption of the property?
From the agreed statement of facts it appears that on or about August 27, 1923, one John K. Bramble was the owner in fee of certain lands located in the City of Havre, and that on that date he, together with his wife, mortgaged the same to the Security Building & Loan Association, as security for an indebtedness of $11,000, represented by a promissory note payable on or before ten years after date. Thereafter, on or about the tenth day of April, 1924, he was regularly adjudged a bankrupt by the district court of the United States for the district of Montana, under the National Bankruptcy Act (U. S. Comp. Stats., secs. 9585 et seq.) and subsequently the Northern Montana Association of Credit Men, a corporation, was duly appointed and qualified as the trustee of his estate in bankruptcy, and thereafter acted as such trustee during the period of time involved in the cause now before us. On September 2, 1924, he was regularly discharged in bankruptcy, and on January 15, 1926, his estate was duly closed and the trustee absolved. On or about the twenty-seventh day of September, 1924, the Security Building & Loan Association commenced an action in the district court of Hill county to foreclose its mortgage, wherein John K. Bramble, his wife, and the Northern Montana Association of Credit Men, trustee, were made parties defendant. In that action the trustee in bankruptcy appeared by answer, wherein it asked that the land be by the sheriff sold in separate parcels, and that payment be made to it of any amount received in excess of that required to satisfy the judgment. Subsequently such proceedings were had that on the first day of June, 1925, a decree of foreclosure and sale was regularly made and entered, as a result whereof the defendant sheriff, on July 3, 1925, conducted a public sale of the property on execution, and it was purchased by the Security Loan & Building Association in separate parcels for the full amount of the judgment, whereupon the purchaser entered into possession of the property and has since continued in such possession, enjoying the rents, issues and profits. As to one of the three separate tracts of land involved, on November 24, 1922, before the execution of the mortgage, Bramble had made a homestead declaration in accordance with the law. On May 31, 1926, long subsequent to Bramble’s adjudication as a bankrupt, his discharge in bankruptcy, and the settlement of his estate, but before the statutory period of redemption had fully elapsed, he made demand in writing of the Security Building & Loan Association, that it furnish him with a written verified statement of the rents, issues and profits of the property by it collected subsequent to its purchase thereof at execution sale. On or about June ,24, 1926, such statement was duly furnished him, but therein his right to demand or receive such statement or to redeem the property was expressly denied. Subsequently, on or about July 1, 1926, Bramble and his wife executed a quitclaim deed of the property to the plaintiffs for the recited consideration of “$1 and other good and valuable considerations,” whereby the right of Bramble to redeem the property from the mortgage foreclosure sale is attempted to be conveyed. Such transfer to them forms the basis of this action.
Before this suit was instituted by the plaintiffs, on or about July 1, 1926, they duly tendered to the defendant sheriff all moneys then due and owing to the Security Building & Loan Association, less the rents, issues and profits by it received and collected, as shown by its statement made to Bramble, and the plaintiffs’ offer to make such tender good and to pay the whole amount required into court “for the benefit of whomsoever shall be entitled thereto.”
The court found and decreed that plaintiffs were entitled to an accounting and to redeem the property upon payment of the amount found to be due the defendant Security Building & Loan Association.
Our statute provides, so far as applicable here, that property sold subject to redemption, or any part thereof separately sold, may be redeemed by “the judgment debtor, or his successor in interest, in the whole or any part of the property.” (Sec. 9442, Rev. Codes 1921.) In construing the language used in this section above set forth, Mr. Chief Justice Brantly, in the case of Hamilton v. Hamilton, 51 Mont. 509, 154 Pac. 717, speaking for this court, declared that the public policy of this state thereby established is: “That when an unfortunate debtor has lost his land, either under mortgage foreclosure or execution sale, he shall have the opportunity to regain it by complying with the conditions imposed. And not only so, but that those who have acquired liens inferior to that to satisfy which the sale was made, shall resort to the process of redemption, and not to levy and sale, in order to protect themselves from loss. The right is therefore a personal privilege and not a property right, and hence does not come within the category of any of the interests enumerated in section 6821 [sec. 9424 Rev. Codes 1921] as subject to execution.” Further on in the decision in that case it was well said that the distinction between the statutory right of re demption and that which is denominated equity of redemption at common law is fundamental. “The one is the right a judgment debtor has to regain property which he has lost by sale under process. The other is the right the mortgagor has, prior to foreclosure, to discharge the indebtedness and thus clear his property from the encumbrance of the mortgage. The former comes into existence only after the foreclosure sale, and is of purely statutory origin (27 Cyc. 1800; 11 Am. & Eng. Ency. of Law, 2d ed., 213); the other is founded upon the mortgage contract. The term ‘successor’ is also broad enough to include a grantee to whom the judgment debtor has transferred his statutory right. (McQweeney v. Toomey, 36 Mont. 282, 122 Am. St. Rep. 358, 13 Ann. Cas. 316, 92 Pac. 561; Phillips v. Hagart, 113 Cal. 552, 54 Am. St. Rep. 369, 45 Pac. 843.)” It was further held that the expression “successors in interest,” as therein employed, means “nothing more than that one who has succeeded to the title to the property, or has been substituted to the rights of the debtor or redemptioner, has the same rights as has he.” To such interpretation of the statute we subscribe.
Upon the sale of the property on execution, the defendant, Security Building & Loan Association, as the purchaser, was substituted for and acquired all of the right, title and interest of the judgment debtor to the property (sec. 9441, Rev. Codes 1921; Hamilton v. Hamilton, supra; Banking Corporation V. Hein, 52 Mont. 238, 156 Pac. 1085; Power Mercantile Co. v. Moore Mercantile Co., 55 Mont. 401, 177 Pac. 406; State ex rel. Hopkins v. Stephens, 63 Mont. 318, 206 Pac. 1094; Libby Lumber Co. v. Pacific States Fire Ins. Co., ante, p. 166, 255 Pac. 340), subject only to the statutory right conferred upon the judgment debtor or other redemptipner to redeem (sec. 9443, Rev. Codes 1921; Libby Lumber Co. v. Pacific States Fire Ins. Co., supra). When property is sold in execution, the legal title leaves the judgment debtor and vests in the purchaser, subject only to the right of redemption conferred by statute. (Mc-Queeney v. Toomey, 36 Mont. 282, 122 Am. St. Rep. 358, 13 Ann. Cas. 316, 92 Pac. 561.) The “right of redemption” arises only after the sale of property on execution, exists for the period prescribed by law, and is not property in any sense, but rather a bare privilege of statutory origin to be exercised only by the persons named in the statute in the instances therein provided and within the time and upon the conditions prescribed. (Banking Corporation v. Hein, supra.) And after a foreclosure sale and before redemption, the judgment debtor has neither legal nor equitable title to the property sold, but only a bare- personal privilege to redeem. (State ex rel. Hopkins v. Stephens, supra.) Being a privilege rather than property, it cannot be levied upon or sold on execution at the instance of a judgment creditor. (State ex rel. Hopkins v. Stephens, supra; Trinkle v. Chase, 122 Kan. 781, 253 Pac. 210.) However, this privilege may be transferred to another by the judgment debtor, as above noted, for the statute expressly makes the successor in interest of the judgment debtor a redemptioner. (McQueeney v. Toomey, supra.)
It is therefore plain from the facts that, between the date of the execution of the mortgage, August 23, 1923, and April 10, 1925, when Bramble was adjudicated a bankrupt, he was the owner and possessor of a valuable property right, namely, his equity of redemption in the mortgaged premises. But what was the effect of his bankruptcy adjudication upon his equity of redemption and the subsequent statutory privilege of redeeming the property after a judicial sale thereof on foreclosure of the mortgage?
Section 70 of the National Bankruptcy Act (U. S. Comp. Stats., sec. 9654), so far as pertinent here, reads as follows: “Title to Property. — a. The trustee of the estate of a bankrupt, upon his appointment and qualification, and his successor or successors, if he shall have one or more, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt, as of the daté he was adjudged a bankrupt, except in so far as it is to property which is exempt, to all (1) documents relating to his property; (2) interests in patents, patent rights, copyrights, and trade-marks; (3) powers which he might have exercised for his own benefit, but not those which he might have exercised for some other person; (4) property transferred by him in fraud of his creditors; (5) property which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him.” (30 Stats. at Large, 565.)
Thus it is made plain by this Act that every kind of property (save such as is exempt) which, before the filing of the petition in bankruptcy, was capable of being transferred by the bankrupt by any means, or of being levied on by creditors or otherwise seized by judicial process and sold thereunder, passes to the trustee in bankruptcy. (Sec. 1178, Remington on Bankruptcy.) By the amendatory Act of 1910 (36 Stats, at Large, 838), the trustee is vested with the rights and remedies of creditors, armed with process, in addition to the bankrupt’s title to the property. The trustee’s title since the amendment of 1910 is the most extensive and complete of any in jurisprudence. (Sec. 1403, Remington on Bankruptcy.) It vests in the trustee by operation of law. The bankrupt’s adjudication, in and of itself, without any assignment, operates to divest him of all title and to place it in the trustee of his creditors. (Sec. 1372, Id.)
“Upon the appointment and the qualification of a trustee, the title to the bankrupt’s property, except such as is exempt, vests in such trustee as representative of the creditors and not of the bankrupt by operation of law and without any conveyance.” (7 C. J. 1113.) From the time of adjudication in bankruptcy, a bankrupt is divested of ownership of his property as effectually as though he had made an absolute conveyance thereof to his trustee in bankruptcy. In legal effect it amounts to the same thing. He is, therefore, an entire stranger so far as ownership is concerned. His release cannot cancel a debt or obligation due his estate any more than his deed can convey title to land which he formerly owned. (Barron v. Newberry, 2 Fed. Cas. 937, No. 1056; 1 Biss. 149.)
The trustee succeeds to the bankrupt’s title and stands in his shoes and possesses all the bankrupt’s rights and remedies. The trustee takes the property in the same plight and condition in which the bankrupt held it, subject to all equities and rights imposed upon it in the hands of the bankrupt. (Secs. 1402-1409, Remington on Bankruptcy; Hewit v. Berlin Machine Works, 194 U. S. 296, 48 L. Ed. 986, 24 Sup. Ct. Rep. 690 [see, also, Rose’s U. S. Notes]; Thompson v. Fairbanks, 196 U. S. 516, 49 L. Ed. 577, 25 Sup. Ct. Rep. 306; Humphrey v. Tatman, 198 U. S. 91, 49 L. Ed. 956, 25 Sup. Ct. Rep. 567; York Mfg. Co. v. Cassell, 201 U. S. 344, 50 L. Ed. 782, 26 Sup. Ct. Rep. 481; Security Warehousing Co. v. Hand, 206 U. S. 423, 11 Ann. Cas. 789, 51 L. Ed. 1117, 27 Sup. Ct. Rep. 720.)
It is therefore clear that, after Bramble had been adjudicated a bankrupt on April 10, 1924, his mortgaged property passed to his trustee in bankruptcy, excepting the tract claimed as a homestead. The bankrupt’s interest therein consisted of his equity of redemption, and the trustee ipso facto became possessed of all of the property rights of the bankrupt. He could either redeem the property or make sale thereof subject to the mortgage indebtedness. The original owner, having become dispossessed of title, did not possess the privilege accorded by, the statute to make redemption thereof after it had been solid on foreclosure of the mortgage. He was divested of all title to the property as effectually as though he had made a transfer thereof by deed before the foreclosure sale. And had he transferred the property by deed before foreclosure of the mortgage, surely no one would seriously urge that as the original mortgagor he still retained the statutory privilege of redemption. After having been adjudicated a bankrupt, he was possessed of neither an equity of redemption nor the statutory right to redeem after the sale of the property on judicial process. (In re Novak, 111 Fed. 161.)
Plaintiff’s position respecting the tract embraced in Bramble’s homestead is, in our opinion, in an entirely different category. The bankruptcy court is without power to administer exempt property, save to determine it to be exempt and set it aside as such (sec. 1280, Remington on Bankruptcy), and title thereto does not pass to the trustee in bankruptcy (Id., sec. 1271); and whether property is of such a nature that its title passes to the trustee is generally a question for determination in accordance with local laws (Id., sec. 1180). Bramble’s homestead, being exempt from execution under the state law, did not pass to the trustee, as he made claim of exemption thereof in his bankruptcy proceedings (Id., sec. 1270). A homestead is exempt from execution (sec. 6973, Rev. Codes 1921), and it cannot be conveyed or encumbered unless both the husband and wife join in the instrument bringing either about (Id., sec. 6950). It did not become a part of his estate in bankruptcy, and as to it he had the personal privilege accorded him by the statute to make redemption thereof within the period of one year from the issuance of the sheriff’s certificate of sale of the property on foreclosure of the mortgage. (Id., sec. 9443.) He also possessed the right to transfer the same, and this was accomplished by his deed to the plaintiffs dated July 1, 1926. By such transfer the plaintiffs became his successors in interest and are entitled to redeem.
Rehearing denied June 3, 1927.
Accordingly, we are of the opinion that the district court was in error in holding the plaintiffs entitled to redeem all the mortgaged property. Such right extended alone to the tract embraced in the homestead.
For the reasons stated, the judgment is reversed and the cause remanded to the district court of Hill county, with directions to modify the judgment in conformity with the views herein expressed. Costs of appeal are assessed, two-thirds against the plaintiffs and one-third against the defendants.
Reversed and remanded.
Mr. Chief Justice Callaway and Associate Justices Myers, Stark and Matthews concur.
|
[
27,
29,
10,
38,
3,
-28,
39,
2,
5,
20,
-12,
-3,
22,
6,
12,
-32,
-6,
-56,
17,
23,
-8,
-41,
-50,
9,
9,
-25,
27,
10,
-19,
33,
26,
-38,
16,
2,
-37,
35,
-10,
-21,
12,
15,
39,
61,
-9,
-29,
-12,
41,
-7,
-80,
17,
15,
30,
-56,
30,
20,
10,
8,
-12,
43,
-37,
-10,
-17,
-32,
5,
-4,
29,
-2,
-34,
7,
-21,
-22,
-18,
5,
-2,
-38,
12,
-13,
41,
-23,
-46,
8,
-13,
-43,
58,
-32,
-58,
-17,
5,
-11,
-15,
9,
-7,
5,
23,
46,
1,
7,
-1,
5,
3,
9,
0,
-54,
-28,
44,
-1,
-30,
-44,
-44,
55,
10,
-19,
16,
14,
-15,
-10,
-22,
-41,
4,
7,
14,
-27,
1,
-16,
-46,
-11,
27,
-16,
-3,
2,
5,
-15,
11,
-32,
28,
-74,
-15,
-28,
-29,
25,
-24,
19,
-42,
-14,
-55,
-6,
-20,
18,
-26,
-7,
11,
8,
30,
48,
50,
39,
5,
9,
23,
-6,
-30,
25,
-68,
-4,
30,
23,
31,
-20,
23,
-4,
-15,
-12,
36,
-27,
5,
18,
-4,
11,
-41,
22,
12,
-26,
0,
37,
-1,
-5,
-46,
33,
5,
29,
-24,
-11,
-8,
4,
6,
-64,
-16,
-7,
-32,
14,
-16,
1,
25,
34,
22,
-3,
-8,
26,
-62,
48,
8,
-27,
30,
-5,
-2,
-41,
-8,
4,
1,
5,
-26,
7,
28,
-67,
29,
-15,
-29,
19,
-10,
-19,
-37,
-59,
-40,
31,
20,
59,
26,
2,
23,
-77,
-8,
11,
3,
13,
-17,
-22,
36,
-22,
-64,
-10,
-21,
-34,
30,
-24,
47,
-7,
-1,
28,
-58,
-52,
-50,
22,
-20,
-30,
-3,
-10,
0,
-1,
11,
16,
15,
-16,
38,
14,
28,
10,
-20,
-1,
-7,
-17,
-23,
37,
-41,
-2,
-2,
-41,
0,
-14,
23,
-58,
-27,
29,
-35,
2,
-5,
38,
-21,
-3,
-30,
26,
0,
-18,
-50,
-17,
24,
-21,
21,
-17,
17,
-26,
8,
29,
18,
22,
-18,
53,
36,
-3,
14,
35,
8,
58,
29,
23,
-19,
33,
-11,
27,
-30,
-71,
43,
-10,
-7,
-46,
33,
20,
-25,
68,
-36,
-12,
-3,
2,
-11,
15,
-44,
4,
8,
-3,
10,
-55,
34,
-2,
23,
-3,
36,
-9,
-6,
14,
-1,
-26,
5,
50,
-30,
-8,
-8,
0,
14,
-56,
-28,
8,
17,
40,
44,
42,
7,
-12,
3,
-18,
-3,
-50,
24,
13,
-30,
21,
-5,
42,
40,
-4,
-19,
-13,
-2,
-23,
-3,
0,
30,
-32,
17,
0,
-49,
-30,
-61,
-26,
62,
-30,
-51,
-80,
-10,
32,
-10,
-23,
-3,
1,
-34,
-21,
-22,
3,
-11,
-3,
29,
-12,
-15,
31,
-41,
20,
-16,
8,
1,
47,
30,
-60,
-4,
-13,
65,
0,
9,
23,
-16,
-20,
-5,
-22,
2,
76,
21,
-52,
22,
22,
0,
-10,
1,
62,
31,
-25,
24,
-22,
-16,
-16,
42,
35,
-32,
4,
-18,
51,
-7,
22,
-6,
22,
-5,
-3,
-52,
9,
12,
-23,
19,
-10,
39,
3,
76,
11,
2,
-10,
-4,
6,
26,
12,
25,
-40,
18,
-33,
-11,
-3,
-16,
39,
-2,
5,
-38,
-63,
-8,
1,
-27,
3,
-17,
-13,
6,
-10,
25,
-20,
10,
25,
-44,
-1,
70,
6,
-2,
10,
39,
-9,
31,
43,
-3,
1,
52,
44,
25,
-38,
11,
-9,
-8,
-22,
62,
60,
-45,
-18,
-5,
-5,
8,
-45,
27,
24,
61,
4,
-29,
-22,
0,
2,
56,
-38,
21,
0,
53,
23,
5,
2,
-24,
-5,
73,
9,
-3,
-28,
-5,
-5,
29,
24,
5,
25,
-38,
11,
-22,
-37,
-8,
-51,
-10,
-33,
-23,
-39,
-5,
19,
-49,
-19,
-5,
2,
-3,
33,
0,
-1,
-53,
4,
30,
33,
-1,
13,
25,
23,
-20,
40,
0,
-40,
-10,
-38,
5,
-55,
41,
-82,
5,
-17,
-6,
6,
-25,
11,
1,
29,
10,
-11,
0,
-2,
34,
-25,
14,
30,
-19,
10,
9,
0,
26,
0,
-27,
-1,
2,
-58,
-2,
7,
46,
21,
-2,
-31,
-38,
-7,
36,
-23,
13,
-53,
0,
-37,
24,
26,
-33,
0,
-21,
1,
-19,
61,
-9,
-61,
31,
-1,
-21,
43,
41,
49,
-6,
41,
-86,
44,
12,
-35,
27,
-17,
27,
40,
5,
-13,
55,
57,
-43,
-1,
9,
30,
13,
30,
26,
6,
-6,
-38,
-45,
21,
22,
-9,
-32,
35,
-7,
12,
15,
-20,
24,
-30,
-1,
-4,
9,
27,
52,
-20,
-32,
49,
-41,
-4,
2,
-22,
25,
-46,
6,
-38,
-6,
-20,
5,
-36,
-13,
12,
-36,
12,
-11,
-13,
-9,
-44,
-36,
2,
-13,
-2,
-54,
40,
-12,
-34,
4,
15,
50,
-53,
41,
-40,
38,
-15,
0,
40,
-25,
-47,
20,
12,
49,
-37,
-40,
-37,
-24,
-14,
-39,
56,
24,
-5,
-11,
23,
-34,
-83,
3,
-50,
8,
44,
34,
-20,
55,
-19,
18,
9,
-57,
-15,
-42,
6,
24,
-55,
-9,
29,
2,
21,
14,
47,
8,
26,
-40,
-61,
-29,
-14,
1,
46,
76,
13,
30,
-10,
25,
30,
-10,
-44,
29,
49,
-7,
-30,
8,
31,
0,
-2,
42,
70,
-9,
10,
49,
13,
40,
-10,
-42,
11,
-52,
-15,
2,
-42,
2,
-15,
-6,
-35,
-8,
-31,
6,
-5,
16,
22,
6,
-6,
47,
-4,
-46,
-33,
3,
42,
-33,
21,
21,
10,
-50,
-26,
-36,
0,
5,
-20,
25,
13,
6,
-31,
43,
-2,
33,
10,
43,
-16,
6,
-27,
4,
14,
19,
35,
-12,
-20,
17,
38,
-7,
34,
-36,
0,
56,
-25,
57,
-8,
36,
12,
-13,
44,
-46,
43,
-21,
-30,
9,
-29,
21,
-7,
52,
62,
0,
-19,
60,
-15,
-28,
-80,
34,
7,
-22,
11,
-36,
21,
7,
-2,
-31,
8,
-4,
39,
15,
33,
54,
10,
14,
33,
-5,
-8,
-50,
-37,
35,
-1,
-37,
52,
50,
-20,
13,
-42,
14,
2,
-9,
-13,
-2,
-44,
56,
-32,
68,
24,
-20,
6,
-2,
-13,
38,
-25,
1,
6,
-13,
-2,
-4,
-29,
21,
49,
-20,
12,
-6,
27,
17,
46,
39,
65,
38,
-40,
-9,
4,
-44,
-68,
22,
13,
-47,
24,
11,
-4,
-47,
72,
11,
35,
-23,
-13,
-19,
-38,
6,
6,
1,
25,
-2,
-4,
-45,
4,
38,
-11,
-7,
-1,
-29,
-48,
-49,
34,
16,
1,
14,
5,
20,
-1,
0,
19,
-27,
-23,
-23,
1,
-26,
-19,
-48,
-2,
25,
40,
-26,
-34,
-50,
19,
-25,
-29,
-4,
4,
20,
-5,
37,
-32,
-1,
8,
57
] |
MR. JUSTICE MATTHEWS
delivered the opinion of the court.
The First National Bank of Columbus, asserting its right thereto by virtue of a chattel mortgage executed to it by a tenant on certain lands in Sweet Grass county, brought action to recover from Harvey Coit the value of one-half of a hay crop harvested from the lands and sold by him. Issue being joined, the cause came on for trial before the court and jury, and, at the close of all of the evidence, plaintiff moved for a directed verdict in its favor. This motion was denied and thereupon the court, on motion of the defendant, directed the jury to return a verdict in favor of the defendant. The verdict was returned accordingly and judgment entered thereon. Plaintiff has appealed from the judgment and has made ten assignments of error, which, however, raise but the questions hereinafter discussed.
The faets disclosed by the evidence, briefly stated, are as follows: The Briggs Ellis Company, a New Jersey corporation, authorized to do business in Montana, is and was at all times mentioned the holder of the record title to the lands on which the crops in question were raised, and, defendant was its agent in Montana, with authority to lease lands, collect rents, and generally conduct its affairs. In 1916 the Briggs & Ellis Company entered into a contract with the Sweet Grass Abstract & Audit Company, and it in turn contracted with one George W. Moore for the sale and purchase of these lands. Later, by some adjustment not disclosed, the Abstract Company was eliminated and Moore held possession of the lands directly from the Briggs & Ellis Company. At some time, not disclosed, Moore, being in default under his contract, surrendered it, and it was canceled, but the Briggs & Ellis Company entered into an agreement with him that, on condition he should make certain payments — evidently provided for, although the testimony leaves this to conjecture— it would give him a new five-year contract for the purchase of the lands. The payments were not made and the new contract was never executed.
In April or May of the year 1923, Moore, then in possession, leased the premises to one John Grauman on a crop-rental basis. Grauman evidently borrowed money from the plaintiff and secured its repayment by a chattel mortgage which included the crops. He had a partial settlement with the bank on November 27, 1923, and at that time executed a renewal note for the sum of $1,400 and a new chattel mortgage on his personal property, including one-half of the 1924 crop. This chattel mortgage was filed on December 4, 1923, in the office of the clerk and recorder of Sweet Grass county.
At some time between December 1 and 17, 1923, Moore, being in default and unable to make the payments required, surrendered his agreement or contract for a five-year contract for purchase, and, with the consent of Moore and Coit, the latter acting for the Briggs & Ellis Company, it was can celed and destroyed and the premises “turned back” to the Briggs & Ellis Company. At the same time, in settlement of all of the rights and claims of the parties, Moore executed and delivered to the Briggs & Ellis Company his promissory note for $629.16 which was “back dated” December 1, 1923, and thereafter Moore neither asserted nor claimed any interest in the property. Moore testified that at that time he knew nothing of the chattel mortgage from Grauman to the bank.
On December 17, 1923, after the cancellation of the Moore agreement, Grauman called upon Coit, and advised him that he (Grauman) had been working on the ranch for Moore, but that he could no longer remain on the ranch, as he was without money and the bank had taken all of his 1923 crop, and that he would have to get a job somewhere. Coit then employed him to build a fence and make other improvements on the ranch, and on March 8, 1924, Coit entered into a written lease of the premises, letting the ranch to Grauman for one year on a crop-rental basis, and Grauman occupied the premises, under the lease, up to July 3, 1924, when he notified Coit that he was without money to put up the hay and could not secure money from the banks and would have to quit. The first crop of alfalfa was then ready to cut and would suffer if not cut at once. With this situation confronting him, and his tenant refusing to continue under the lease, the manager suggested hiring Grauman to do the work. Terms were discussed and the discussion resulted in the cancellation of the lease and the execution on July 5, 1924, of an agreement whereby Grauman was employed to put up the hay for the Briggs & Ellis Company in consideration of which the company was to pay to him, on a sale of the hay, an amount equal to one-half of the proceeds, “less all money advanced or paid” to Grauman in the meantime. These were the terms usually made by Coit in hiring hay put up on the company’s ranches.
Coit advanced the necessary expense money and Grauman put up the hay; it was sold by Coit in September, 1924, and Coit paid to Grauman the sum of $888.75; Grauman left the premises. Coit had no actual knowledge of the existence of the chattel mortgage or of any claim made by the plaintiff until the spring of 1925, when demand was made upon him by counsel for the plaintiff. Neither the complaint nor the testimony contains a suggestion of fraud or collusion between defendant, or his principal, and Grauman, in thus canceling the lease and entering into and executing a new agreement.
On these facts plaintiff grounds its charge that defendant was guilty of conversion of the amount so paid to Grauman.
1. In an action such as this, i. e., an action in conversion, in order to prevail, the plaintiff must show that the chattels were wrongfully taken by the defendant and that, at the time of such 'taking, the plaintiff had a general or special property interest in them and the right to the immediate possession thereof. (Wetzel v. Power, 5 Mont. 214, 2 Pac. 338; Reardon v. Patterson, 19 Mont. 231, 47 Pac. 956; Glass v. Basin & Bay State Min. Co., 31 Mont. 21, 77 Pac. 1047; Shipler v. Potomac Copper Co., 69 Mont. 86, 220 Pac. 302; Wray v. Great Falls Paper Co., 72 Mont. 461, 234 Pac. 486.)
2. The acts of dominion over the chattel in dispute are the taking of possession and cutting the hay in July and the sale of the hay in September, 1924, and if on those dates the plaintiff was entitled to the immediate possession of the hay under the chattel mortgage, which was then a valid and existing lien against the hay, those acts constituted conversion. (Harringon v. Stromberg-Mullins Co., 29 Mont. 157, 74 Pac. 413; Moore v. Crittenden, 62 Mont. 309, 204 Pac. 1035; First Nat. Bank v. Montana Emporium Co., 59 Mont. 584, 197 Pac. 994.)
3. Plaintiff makes the contention that it is not clear from the record that Grauman’s lease from Moore did not cover the season of 1924; but it is immaterial whether it did or not, as that lease had either expired in the spring of 1924, or was surrendered when Grauman accepted a lease from the Briggs & Ellis Company on March 8, 1924 (2 Tiffany on Landlord and Tenant, 1323; Otis v. McMillan, 70 Ala. 46; Welcome v. Hess, 90 Cal. 507, 25 Am. St. Rep. 145, 27 Pac. 369; Coe v. Hobby, 72 N. Y. 141, 28 Am. Rep. 120), and the rights of the plaintiff must be determined with respect to the rights of Grauman under this latter lease.
4. Grauman, therefore, mortgaged to plaintiff property not yet in existence, to be produced upon the lands after he had acquired the right to produce crops therefrom. The mortgage was merely an executory contract which would become binding only in the event he thereafter brought such crops into existence and subject to be defeated, if he failed to do so; but as the crop was shown to have been in existence on July 3, 1924, the lien attached at some time after the filing of the mortgage on December 4, 1923, and before July 3, 1924. (Sec. 8275, Rev. Codes 1921; Isbell v. Slette, 52 Mont. 156, 155 Pac. 503; Hackney v. Birely, 67 Mont. 155, 215 Pac. 642.)
5. This being the situation in July, 1924, the lessee being then in default and having full knowledge that he had mortgaged his right to a share of the crop, and the landlord having no knowledge or notice thereof, unless the filing of the mortgage gave him constructive notice, the landlord was in a position to declare a forfeiture of the lease, or the parties might mutually agree to a surrender of the lease, unless the rights of the plaintiff were such as to prevent this action.
6. As between the parties to the lease, it is immaterial whether the action taken constituted the enforcement of a forfeiture or a surrender. In either event all of the rights and all of the interest of the tenant are transferred to the landlord and merged in his interest in the premises on the landlord’s entry into possession and exercise of dominion over the premises (2 Tiffany on Landlord and Tenant, 1348; Welcome v. Hess, 90 Cal. 507, 25 Am. St. Rep. 145, 27 Pac. 369; Rauer’s Law Co. v. Third Street I. Co., 21 Cal. App. 183, 131 Pac. 77; Bernard v. Renard, 175 Cal. 230, 3 A. L. R. 1076, 165 Pac. 694), and, in the absence of an agreement by the landlord to pay for the crop, the tenant cannot thereafter assert any interest in or claim to it (Silva v. Bair, 141 Cal. 599, 75 Pac. 162).
7. Where, however, third parties have acquired an interest in the leasehold estate, through the tenant, a different rule prevails as to forfeiture and surrender; when a forfeiture is enforced either by appropriate action in court or under the terms of the lease, the rights of third parties fall with those of the tenant (2 Tiffany on Landlord and Tenant, sec. 194h), while there can be no strictly voluntary surrender of a lease in which third parties have acquired such an interest (2 Tiffany on Landlord and Tenant, sec. 191b, p. 1349; 18 Am. &. Eng. Ency. of Law, 2d ed., 366; Cuschner v. Westlake, 43 Wash. 690, 86 Pac. 948; Eten v. Luyster, 60 N. Y. 252; Gaskill v. Trainer, 3 Cal. 334).
8. The Briggs &. Ellis lease to Grauman provides that, in the event the tenant fails to perform the conditions subsequent therein contained, the landlord may, at its option, terminate the lease and enter into possession of the premises and of all growing crops, upon giving to the lessee ten days’ notice of its intention to do so, during which period the lessee may cure the default. This provision as to notice is clearly for the benefit of the lessee — to guard against forfeiture without giving the lessee an opportunity to make good his default — and may therefore be waived by the tenant (35 C. J. 1050), and, as between the landlord and tenant, the notice is waived by the abandonment of the premises and the giving of notice thereof to the landlord (Munson v. Baldwin, 88 Wash. 379, 153 Pac. 338).
To have given the ten days’ notice in writing to a tenant present in person, repudiating the lease and declaring that he could not go on with it, would have been an idle act not required by law. (Sec. 8761, Rev. Codes 1921.) The act of the parties in July, 1924, therefore, partook of the elements of a forfeiture declared under the express terms of the lease (2 Tiffany on Landlord and Tenant, sec. 194), as well as the elements of a surrender of the lease. However, as some authorities hold that such a waiver of one of the requirements of a forfeiture reduces it to a surrender (Gaskill v. Trainer, above), and, as both parties hereto have treated the action of the parties to the lease as a surrender, we will so consider it.
9. A careful examination of the authorities cited by plaintiff and by the text-writers, as well as those disclosed by independent investigation, discloses that the rule that a surrender cannot affect the rights of third persons concerns only those persons who have acquired an interest in the “demised premises,” such as sublessees, mortgagees of the leasehold estate and mechanics who have constructed improvements thereon, with the knowledge of the landlord, and have duly filed mechanics’ liens thereon; and in all of the eases the element of actual notice to, or knowledge by, the landlord, of the encumbrance, appears, while in no case to which our attention has been directed has the question of the effect of constructive notice been considered.
The case most nearly approaching analogy to the instant case to which our attention has been directed is that of Crosby v. Woleben, 149 App. Div. 337, 134 N. Y. Supp. 328, wherein it appears that defendant leased a grape farm to one Stebbins on condition that he pick the grapes, pack them in containers furnished by the parties jointly, and market them, and that each party should receive one-half of the proceeds. After the grapes were developed, but still on the vines, Stebbins assigned the contract, either in satisfaction of, or as security for, a pre-existing debt, and notified defendant of what he had done. He later entered into a written agreement surrendering the lease, whereupon defendant caused the grapes to be picked, packed and marketed, and refused to divide with plaintiff, and action in conversion followed. Three out of five justices joined in an opinion, wherein it is held that the agreement between the landlord and tenant constituted them tenants in common of the grapes, and that the interest of one could not be defeated by a surrender of the contract after one tenant in common had assigned his interest The presiding justice and one other dissented, declaring that the assignment did not vest the plaintiff with any interest in the lease, and that the lessee, having defaulted under the terms of the lease, and the plaintiff having made no attempt to perform on the part of the lessee, should not recover; that the conclusion reached by the trial court and sustained by the majority opinion “is repugnant to our ordinary sense of justice, and that it cannot be supported by any principle of law.”
The case differs from that before us in two important particulars: (1) It was shown that the landlord had actual notice of the assignment, and therefore might have been required to give notice to the assignee of the lessee’s default, or be chargeable with collusion, and (2) the decision is based upon the holding that, under the particular wording of the lease, the landlord and tenant became tenants in common of the grapes — the crops to be produced. This constituted the tenant what we have termed a “cropper,” in the case of Cook-Reynolds Co. v. Wilson, 67 Mont. 147, 214 Pac. 1104, wherein it is pointed out that a “cropper” is but a servant having no interest in the land, while a tenant has an estate in the land for the term of his lease and a right of property in the crop; he dividing the crop, if a share thereof constitutes the rent. Therefore, when a “cropper” assigns his right, he assigns all that he has under his contract; while a tenant, assigning or mortgaging his interest in the crop, does not vest the assignee or mortgagee with any interest in the “demised premises,” but merely in the fruits of his contract.
We therefore hold that the rule that the surrender of a lease does not affect the rights of third parties who have acquired an interest in the demised premises does not include the mortgagee of the crops to be harvested from leased premises when the mortgage does not attempt to vest in the mortgagee an interest in the lease itself, in the absence of knowledge on the part of the landlord or notice to him of the existence of the mortgage. (See Freeman v. Ogden, 40 N. Y. 105.)
10. If, on the other hand, the landlord has notice of the existence of the mortgage, and thereafter accepts a surrender and cancels the lease in secret, and without giving the mortgagee a chance to protect himself, we would say there was collusion or fraud shown, and the conclusion reached in Crosby v. Woleben, above, holding the landlord liable to the third party, is sound.
11. Counsel for plaintiff seem to concede that knowledge of the existence of the mortgage must be brought home to the defendant in order to prevail, but insist that he had constructive notice thereof by the filing of the mortgage as provided for in section 8279, Kevised Codes of 1921, which declares that: “every mortgage of personal property, made, acknowledged, and filed, as provided by the laws of this state, is thereupon, if made in good faith, good and valid as against the creditors of the mortgagor, or subsequent purchaser, or encumbrancers, from the time it is so filed, and for the period of two years and sixty days thereafter,” etc. In construing this section this court has said: “As between mortgagor and mortgagee, the mortgage is just as valid and binding whether it be filed or whether it conform to any of the requirements of the statute. (Reynolds v. Fitzpatrick, 23 Mont. 52, 57 Pac. 452.) The same rule prevails as between the mortgagor or mortgagee and a stranger. Indeed, the unfiled informal chattel mortgage is perfectly valid as against everyone except (1) creditors of the mortgagee [mortgagor] who seek to enforce their claims against the mortgaged property, or (2) subsequent purchasers or encumbrancers of the property in good faith for value (6 Cyc. 1056-1066) and since the purpose of filing a chattel mortgage is to protect only bona fide creditors, and subsequent purchasers or encumbrancers, the filing imparts notice only to such” (Isbell v. Slette, above).
It is evident that a clerical error crept into the above statement designated (1), as the class referred to clearly refers to creditors of the mortgagor and not those of the “mortgagee.” It is likewise apparent from the whole text of the opinion that the declaration that an untiled chattel mortgage is both valid and binding upon strangers to it who do not come within the two classes mentioned in the statute quoted is too broad and goes beyond the express holding of the court. It is true that such a mortgage is “valid” as against all persons except the classes mentioned, but it is “binding” only upon the parties thereto and such other persons, not within the classes mentioned, as have actual notice of its existence, and, as the filing does not impart notice to such others, the filing does not change the situation. Thus the closing paragraph of the opinion declares that: “T. L. Isbell, as lessee of this father’s homestead, did not fall within either of the groups mentioned in our statute. He was not a creditor seeking to enforce his claims against the mortgaged property, and he was not a purchaser or encumbrancer of the property. As against him, the chattel mortgage would have been just as valid if it had not been filed at all, and, by filing it, his situation was not altered in the least. The mortgage, though filed, did not impart con structive notice to him, and, since it is not contended that he had actual notice of its existence, he cannot be bound by it in any sense.”
So here, as the defendant did not fall within either of the groups mentioned in the statute, the filing of the mortgage did not impart constructive notice of its existence to him, and, in the absence of actual notice thereof and of fraud or collusion, he is neither bound by the mortgage nor liable in this action.
12. From the foregoing it is apparent that no error was committed in admitting testimony as to the surrender and contract of hiring and of the fact that defendant had no actual notice or knowledge of the existence of the chattel mortgage; nor was error committed in directing verdict in favor of the defendant. The plaintiff could have protected itself by giving notice to the lessor and should have done so. Defendant, acting for his principal, did no more than he was entitled to do under the terms of the lease and secured nothing more than he would have secured, had the conditions of the lease been complied with either by the lessee or the mortgagee. The judgment must be affirmed.
13. On the entry of judgment defendant filed his memorandum of costs, which contains the following item:
“Frederick P. Coit, 2 days at $3 per day, $6, and 428 miles from state line and return at 10 cents per mile, $85.60.”
Plaintiff thereupon, by motion to tax costs, demanded that the mileage item be stricken as neither a proper item of cost nor a necessary disbursement. At the hearing on the motion it was shown that this witness was a son of defendant twenty-one years of age and in attendance at the University of Washington, and at the time of the trial the school year was completed; that he received a subpoena through the mail and attended the trial in obedience to the subpoena. He testified that at the time he left Seattle there was nothing to require his continued residence there or his immediate return. Plaintiff then inquired whether it had not been his practice in past years to return to the parental roof for the summer vacation, to which question the court sustained an objection. The plaintiff then offered to prove by the witness that such had been his practice in past years, to which offer the court sustained an objection. Plaintiff predicates error upon these rulings and upon the court’s refusal to strike the mileage from the bill of costs.
The question in dispute was as to whether the witness necessarily traveled the distance named in attendance upon the court, and that question could not be determined by showing what he had done in the past. No error was therefore committed in excluding the evidence. On cross-examination the witness testified that his intention in the summer of 1926 was to remain in Seattle and secure a vacation position; that he was seeking such a position at the time he received the subpoena; and that, the trial being then over, he had written to Seattle, seeking employment, and intended to return there in a short time. On this showing the court struck from the memorandum the return mileage of the witness and thus allowed defendant the amount charged as mileage one way only. There is nothing in the record to warrant our disturbing the finding made by the court from the above testimony (Spaulding v. Maillet, 57 Mont. 318, 188 Pac. 377; Chilcott v. Rea, 52 Mont. 134, 155 Pac. 1114), so far as it affects the plaintiff, and the defendant is not complaining.
Rehearing denied July 7, 1927.
Judgment affirmed.
'Affirmed.
Mr. Chief Justice Callaway and Associate Justices Myers, Stark and Galen concur.
|
[
26,
44,
63,
-22,
-44,
-17,
61,
-34,
40,
-4,
8,
16,
-11,
27,
1,
15,
37,
-35,
47,
-5,
18,
-53,
-62,
-29,
-16,
-3,
-16,
-41,
-14,
7,
1,
-19,
0,
12,
-42,
-2,
-44,
36,
15,
-53,
1,
18,
-20,
-4,
32,
47,
26,
-48,
31,
6,
39,
-12,
21,
13,
-44,
-4,
10,
7,
-57,
24,
21,
-10,
42,
51,
36,
-37,
-5,
8,
84,
-6,
-19,
-39,
-1,
-40,
25,
-38,
-20,
-2,
-45,
-98,
-28,
-7,
76,
0,
-78,
4,
-79,
11,
0,
29,
8,
13,
16,
16,
30,
20,
0,
30,
-21,
36,
-4,
-46,
-42,
5,
-6,
-9,
-41,
-1,
40,
31,
-35,
12,
-22,
23,
-38,
17,
-66,
16,
18,
-3,
-28,
1,
-33,
8,
-8,
8,
-90,
0,
-24,
4,
-27,
-2,
-8,
39,
-47,
-47,
3,
-32,
-32,
-8,
34,
-25,
-17,
-26,
0,
-1,
-3,
16,
-12,
-18,
-38,
18,
27,
45,
21,
-57,
-2,
22,
7,
-13,
9,
-17,
33,
-20,
-39,
70,
-25,
-35,
11,
-41,
-4,
21,
-63,
-5,
54,
16,
1,
-5,
22,
-41,
-46,
-5,
-12,
0,
0,
26,
56,
-34,
14,
-11,
-26,
-50,
-3,
-4,
-95,
4,
6,
-24,
-3,
10,
10,
-8,
31,
-14,
-1,
5,
9,
17,
15,
46,
13,
-66,
-5,
-12,
-7,
-7,
-36,
16,
-4,
-12,
45,
44,
-70,
-2,
-50,
-27,
42,
-1,
-26,
-13,
-71,
6,
-14,
29,
-13,
-13,
-15,
-5,
-31,
11,
-28,
-32,
8,
3,
-24,
20,
-37,
-31,
1,
40,
-46,
14,
-29,
49,
-47,
12,
0,
-71,
-8,
-50,
7,
18,
-39,
28,
0,
-37,
-27,
-9,
6,
46,
-50,
-31,
37,
27,
-72,
-44,
30,
-17,
-24,
-47,
23,
-40,
6,
83,
40,
6,
12,
29,
-58,
6,
14,
-12,
-12,
23,
51,
22,
18,
0,
37,
-26,
-44,
-32,
-34,
0,
0,
33,
-40,
-9,
-16,
-18,
17,
0,
-12,
-17,
34,
17,
-1,
6,
16,
-9,
24,
20,
23,
-2,
40,
13,
34,
-66,
-6,
9,
-16,
9,
27,
39,
-50,
-22,
14,
-48,
12,
-13,
4,
23,
0,
-25,
39,
12,
-31,
9,
-18,
-13,
15,
16,
5,
5,
11,
22,
43,
34,
-16,
-43,
53,
20,
6,
14,
6,
29,
-41,
-18,
4,
19,
-5,
38,
23,
36,
28,
38,
3,
-29,
-29,
8,
-12,
1,
19,
-8,
13,
51,
58,
-11,
-39,
-25,
-16,
-13,
0,
90,
-15,
-23,
46,
-17,
-40,
-33,
14,
-7,
-32,
-21,
-20,
-24,
26,
-18,
6,
-25,
-3,
-59,
-6,
5,
3,
-2,
-4,
0,
30,
33,
-11,
-6,
-13,
-22,
15,
13,
6,
19,
-64,
6,
-42,
-10,
-8,
11,
11,
-17,
1,
6,
-33,
73,
81,
85,
-42,
-12,
-1,
12,
-5,
-2,
76,
14,
35,
7,
3,
2,
38,
19,
39,
-29,
5,
-70,
47,
9,
3,
14,
16,
33,
18,
-26,
20,
27,
-10,
58,
22,
-24,
26,
36,
20,
-48,
-44,
-5,
-15,
-38,
-12,
44,
-36,
-14,
-60,
-7,
-16,
73,
53,
10,
35,
-11,
-55,
11,
28,
-43,
-12,
-42,
-13,
-33,
5,
-26,
-12,
18,
-4,
-56,
-69,
30,
-14,
-13,
34,
33,
-17,
4,
-39,
41,
8,
41,
9,
-14,
3,
-17,
28,
31,
9,
33,
65,
-19,
-51,
42,
-65,
-5,
-24,
-40,
29,
0,
-20,
-63,
2,
-13,
39,
49,
-62,
4,
-20,
-47,
8,
16,
22,
-32,
-55,
-15,
33,
-3,
-3,
-33,
-18,
2,
-15,
18,
-41,
-31,
39,
-32,
11,
-11,
17,
-8,
-46,
6,
16,
-27,
2,
-38,
-16,
0,
-26,
3,
-37,
-28,
-15,
-55,
-25,
53,
-8,
45,
-24,
14,
36,
14,
3,
-12,
38,
33,
-9,
41,
-31,
24,
-42,
17,
-43,
7,
-30,
-16,
-30,
30,
-11,
41,
-30,
35,
44,
-1,
-8,
28,
7,
-15,
31,
-15,
16,
23,
-32,
7,
21,
-29,
-24,
12,
-19,
59,
-20,
37,
-53,
-18,
-20,
3,
1,
4,
-28,
-44,
-37,
12,
-5,
-5,
18,
0,
1,
28,
43,
-38,
-31,
0,
20,
-54,
1,
0,
27,
-1,
16,
-31,
49,
13,
6,
47,
-19,
-17,
43,
26,
-17,
2,
3,
-38,
79,
-13,
57,
5,
16,
38,
18,
20,
-5,
-22,
-18,
44,
-11,
-68,
71,
-19,
-3,
64,
-3,
-1,
-2,
22,
-14,
-47,
11,
22,
-38,
-53,
39,
24,
-19,
2,
32,
29,
-24,
-6,
-26,
25,
4,
1,
-24,
31,
-26,
12,
21,
-8,
-66,
0,
-7,
5,
25,
-23,
-9,
3,
-4,
16,
-8,
26,
6,
21,
-18,
41,
-9,
30,
-13,
9,
11,
8,
-21,
0,
-17,
46,
-55,
7,
4,
4,
-3,
2,
26,
-25,
8,
20,
-13,
-28,
-5,
15,
-20,
-26,
16,
48,
-8,
1,
-8,
15,
9,
-53,
-3,
-19,
-6,
-15,
-75,
51,
38,
14,
48,
4,
43,
-9,
-30,
-18,
-25,
-36,
-4,
-28,
57,
95,
58,
57,
0,
24,
20,
-10,
-57,
16,
29,
18,
-20,
2,
3,
37,
-25,
14,
34,
-40,
36,
-9,
40,
26,
-34,
-48,
36,
-39,
-3,
-8,
-16,
12,
-14,
13,
-22,
9,
11,
-33,
13,
-11,
-10,
19,
-54,
21,
-3,
-30,
-7,
17,
49,
17,
56,
13,
12,
23,
26,
-27,
-9,
-19,
46,
16,
10,
8,
-7,
0,
-38,
-14,
25,
22,
-42,
-3,
-3,
61,
68,
29,
-8,
-6,
-40,
7,
29,
-36,
13,
-21,
13,
16,
-29,
43,
32,
8,
-18,
3,
11,
-4,
58,
16,
0,
12,
17,
49,
-17,
-6,
24,
-4,
48,
51,
-19,
-59,
-24,
-9,
18,
-29,
-9,
-32,
-1,
-24,
-23,
-4,
17,
47,
21,
-29,
50,
47,
44,
10,
11,
-44,
-72,
-30,
-86,
35,
21,
-77,
86,
49,
0,
0,
-33,
18,
-10,
-17,
-42,
52,
-25,
44,
-10,
68,
-26,
-4,
5,
6,
10,
-7,
-31,
-7,
23,
-15,
41,
26,
-52,
-23,
27,
-38,
17,
-18,
20,
23,
-16,
35,
23,
-2,
-84,
-4,
12,
23,
-23,
31,
-14,
-29,
17,
-5,
6,
-5,
-3,
10,
18,
-22,
5,
4,
7,
25,
12,
46,
40,
8,
-20,
0,
-47,
85,
-8,
-20,
15,
-9,
-8,
-26,
-18,
16,
32,
28,
15,
-11,
3,
-17,
-20,
-53,
12,
-2,
-29,
18,
-44,
-82,
-27,
25,
22,
-35,
3,
6,
21,
-70,
-21,
59,
-14,
42,
-36,
24,
-5,
0,
-10,
37
] |
MR. JUSTICE MYERS
delivered the opinion of the court.
This is a personal injury action, occasioned by a pedestrian being struck by an automobile. Plaintiff alleges she was walking across a street, in the city of Helena, upon a street crossing, at a street intersection, in the night-time, and that defendant, operating an automobile, turned, without warning, into the street she was crossing and that, through his negligence, his automobile struck her and knocked her down and dragged her fifteen or twenty feet, seriously injuring her to her damage. She alleges that defendant was negligent in that he was driving his automobile at an excessive and dangerous rate of speed; in that he was on the left-hand side of the street he entered and which she was crossing; in giving no warning of his approach; in not having his automobile under control at a street crossing; in striking and dragging her.
Defendant’s answer admits plaintiff was crossing the street at night and that defendant turned his machine into that street and that the machine struck her; denies she was crossing at the street crossing; denies she was dragged; denies negligence on his part; denies injury or damage to her. The answer then pleads contributory negligence in a number of specified respects. A reply denies the allegations of contributory negligence and other allegations of affirmative defense.
The ease was tried with a jury and resulted in a verdict for defendant and judgment accordingly. Plaintiff moved for a new trial. It was denied. Plaintiff appealed from the judgment.
Counsel for plaintiff assign six specifications of error. One is that the verdict is against the law. The other five may be combined in one contention, i. e., that the evidence is not sufficient to sustain the verdict.
As to the specification that the verdict is against the law, the law of the case, so far as the jury was concerned, was that set forth in the instructions given. (Bush v. Baker, 51 Mont. 326, 152 Pac. 750.) An examination of the instructions given discloses that, in accordance therewith, a verdict for either party was permissible and could have been returned appropriately. Therefore, there is no ground to hold the verdict against the law.
The other specifications, all relating to alleged insufficiency of the evidence, require giving to the record of the entire evidence careful and painstaking reading. It has been given; and more than once to much of the record. In considering the evidence, we do so, of course, subject to two well-known presumptions: that in favor of the decision of the jurors, triers of fact, who saw and heard the witnesses testify and observed their demeanor (Trogdon v. Hanson Sheep Co., 49 Mont. 1, 139 Pac. 792); and that in favor of the action of the trial judge, who likewise saw and heard the witnesses testify and observed their demeanor, in denying the motion for a new trial. (Consolidated Gold & Sapphire Min. Co. v. Struthers, 41 Mont. 551, 111 Pac. 150.)
Counsel in the case are far apart. Counsel for plaintiff earnestly contend there is no conflict in the evidence, upon any material matter; that there is no substantial evidence to support the verdict; that it is all in favor of plaintiff and, as a matter of law, she should have a verdict for some amount. Counsel for defendant, apparently with equal earnestness, contend there is no credible evidence for plaintiff and that the jury could consistently do naught other than as it did. We cannot agree with either. A perusal of the record discloses a sharp, conflict in the evidence, in a number of material particulars.
Plaintiff’s testimony was that she was crossing at a street crossing; defendant’s testimony, that she was out in the street and eighteen feet from the crossing when she was struck. Plaintiff testified she was on the south side (in the south half) of the street when struck. Defendant testified she was on the north side (in the north half) of the street when she was struck; that his left wheels were about on the middle of the street and she was struck by the right front end of the car and to his right, which would put her a car-width in the north half of the street. Plaintiff testified she was more than halfway across the street when struck; defendant testified, less than halfway. Plaintiff testified she was not far from the south curbstone of the street, when struck; defendant, that she was far from it. It may be a close question in which half of the street she was, when struck, but it is a disputed question, nevertheless.
Plaintiff testified defendant was driving on the south (left-hand) side of the street. Defendant testified he was driving on the north (right-hand) side; true, he said only by a car-width but, nevertheless, on that side. True, too, defendant testified plaintiff was standing or sitting a little to the left of the center, when he went back to assist plaintiff, but that was after she was struck. He admitted his car. was about in or a little to the left of the center of the street when he stopped but he said when he heard a voice and saw raised a hand (plaintiff’s) he swerved to the left. It may be a close question on which side of the street defendant was driving but it is a disputed question, nevertheless.
Plaintiff testified she.saw the machine when it was 100 or 130 feet from her. Her witness, Carmichael, measured the distance, as indicated to him, and declared it to be 130 feet. She said, after seeing the machine, until struck, she took two or three steps. According to testimony in her behalf, it must be inferred that defendant was traveling at the rate of about forty-five miles an hour; defendant said not over ten. Testimony for plaintiff tended to show the machine was not under control; defendant’s testimony tended to show it was. Plaintiff testified that, after being struck, she was dragged fifteen or twenty feet; defendant said,, not dragged at all. Plaintiff said she was knocked unconscious; defendant said not. Plaintiff’s testimony indicated defendant did not slacken his speed at the crossing; he said he did. There are other vital points, as to which different inferences might be drawn from the evidence; such as whether or not defendant was keeping a lookout for danger and the like.
Plainly, there is some conflict of evidence on each of plaintiff’s allegations of negligence. On her allegations of excessive rate of speed, driving on wrong side of street and auto mobile not under control, there is positive contradiction as to each. The allegation that defendant was negligent in striking her is a generalization, not a specification. As to the allegation of lack of warning of his approach and as to what happened when defendant turned into the street plaintiff was crossing, true, he does not claim he sounded his horn and we are not saying it was necessary that he do so; but he testified he was watching Tor pedestrians and that he observed the crossing, .as he turned, and no one was on it; neither did he see anybody, in the street, beyond the crossing. Plaintiff testified that, at that time, she was on the crossing. It was wholly for the jury to determine whom to believe and to decide if defendant, at that juncture, was guilty of any negligence.
The jurors were the arbiters of fact. It was not only their privilege but their duty to consider and weigh all testimony on disputed points and, doubtless, they did so. Doubtless, they considered, too, such testimony as was not disputed, as was their duty. They considered, doubtless, that, the same night, after plaintiff was knocked down and, as she testified, dragged, she went to a party, without changing or rearranging her apparel, and played cards and danced, without attracting any particular attention to the condition of her clothing or person; as well as all testimony concerning her alleged injuries. We assume they considered all factors — those favorable to plaintiff and those favorable to defendant — and there were some of each.
In our opinion, there is substantial evidence on each side of the case; evidence for and against plaintiff’s cause of action; evidence for and against contributory negligence on her part. In our view, the verdict of the jury might consistently have been for either party. As we view it, we are disposed to say were the verdict either way there would not be justifiable ground for disturbing it.
Counsel for defendant insist much transpired at the trial which cannot be portrayed in the cold printed page. They attempt to get some of it before us, some things not in the record, but we have not given to such any consideration. We judge the ease solely on the cold recital of the record.
Counsel for plaintiff cite numerous cases, some of which apparently tend to uphold their contention. We have examined all of those cited. Counsel for defendant cite a number of cases, some of which tend to uphold their contention. In the main, all cited by either side depend very much upon the facts in each particular case. The ease at bar depends upon the facts involved in it. There was sufficient conflict about them to go to the jury.
Counsel for plaintiff and counsel for defendant, each, argue very earnestly and persuasively and, we doubt not, sincerely upon the evidence in the case; and that is all there is to this appeal — the evidence. We are impressed, however, that their arguments on the evidence are peculiarly adapted to be addressed to a jury. Doubtless, the evidence was argued, by counsel for each party, just as earnestly, persuasively, sincerely, to the jury as here and the jury decided. We hold there is substantial conflict of evidence, on the issues of the case, and, that being the case, we may not disturb the verdict or the judgment based on it. (Savage v. Boyce, 53 Mont. 470, 164 Pac. 887; Bank of Commerce v. United States Fidelity & Guaranty Co., 58 Mont. 236, 194 Pac. 158; Williams v. Thomas, 58 Mont. 576, 194 Pac. 500; Harrington v. Mutual Life Ins. Co., 59 Mont. 261, 195 Pac. 1107; Green v. Bohm, 65 Mont. 399; 211 Pac. 320.)
For the reasons herein given, the judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Stark, Matthews and Galen concur.
|
[
-39,
38,
-8,
-52,
17,
-41,
26,
-10,
13,
10,
-15,
13,
36,
-29,
19,
-26,
-11,
-13,
-2,
2,
-47,
-56,
-62,
-42,
-24,
-46,
52,
-52,
-4,
44,
75,
-2,
21,
25,
-20,
16,
11,
48,
31,
34,
81,
32,
-26,
-6,
30,
37,
31,
-24,
9,
-44,
-18,
-11,
-22,
-20,
6,
8,
18,
77,
-17,
-6,
58,
-8,
40,
0,
1,
3,
71,
38,
-12,
-1,
-101,
-17,
-11,
-56,
-56,
-6,
-3,
55,
-42,
-36,
-42,
0,
19,
-22,
25,
7,
-32,
-47,
-37,
-58,
3,
-14,
64,
-17,
14,
42,
9,
-43,
34,
6,
-48,
14,
-7,
37,
-3,
38,
-31,
-38,
22,
23,
-28,
78,
-30,
39,
5,
7,
14,
15,
-5,
23,
13,
-4,
-29,
-6,
-30,
-30,
-33,
42,
-16,
29,
14,
74,
59,
22,
5,
-9,
-77,
-42,
22,
59,
23,
-21,
-29,
48,
9,
33,
0,
23,
-44,
-29,
19,
8,
-14,
-74,
-3,
-69,
15,
-20,
66,
9,
47,
19,
31,
54,
-3,
66,
-24,
37,
-18,
-68,
27,
-66,
32,
-56,
58,
-2,
-26,
-46,
-48,
-56,
-33,
4,
-12,
12,
-43,
-63,
14,
40,
27,
-23,
15,
17,
-29,
-27,
10,
8,
44,
4,
11,
-38,
41,
1,
11,
-21,
-38,
37,
-20,
-1,
58,
17,
58,
-41,
2,
-7,
30,
-9,
16,
-56,
-45,
3,
0,
-14,
-35,
-79,
11,
-10,
-46,
-78,
13,
25,
-8,
-8,
-53,
13,
-25,
6,
-23,
-100,
4,
-23,
40,
-6,
29,
-6,
-5,
15,
16,
-26,
17,
-12,
32,
2,
11,
-24,
4,
-27,
31,
46,
-23,
-34,
60,
93,
14,
34,
35,
27,
32,
2,
15,
-61,
-33,
-2,
-21,
10,
-38,
-65,
35,
3,
46,
25,
-10,
12,
8,
10,
24,
28,
9,
32,
34,
-20,
41,
-97,
-9,
56,
-29,
28,
55,
20,
-80,
18,
55,
-31,
-4,
71,
38,
-4,
-28,
20,
-6,
39,
-6,
-6,
-29,
-1,
77,
53,
2,
-27,
34,
1,
20,
42,
-39,
-8,
12,
-2,
23,
-49,
-41,
-28,
32,
61,
27,
53,
41,
-52,
33,
24,
2,
-26,
-23,
-7,
19,
-25,
10,
36,
32,
18,
-6,
-7,
-65,
5,
12,
-75,
-46,
-1,
24,
-46,
0,
-30,
-11,
-13,
25,
32,
-42,
-16,
30,
-20,
-79,
71,
-26,
-35,
6,
-16,
-19,
-62,
42,
-9,
-1,
44,
0,
-43,
-7,
-42,
-7,
45,
8,
-73,
-46,
1,
-37,
-20,
32,
3,
-11,
6,
0,
-7,
-22,
-4,
-19,
43,
11,
-24,
-52,
-18,
12,
5,
-41,
-33,
-39,
11,
30,
18,
1,
52,
20,
-5,
-33,
-35,
1,
-2,
40,
32,
14,
-20,
-9,
-14,
-22,
12,
26,
1,
22,
-1,
-3,
-40,
26,
-25,
2,
-26,
-24,
21,
-34,
-11,
9,
16,
13,
4,
3,
24,
76,
-10,
62,
48,
-14,
-2,
62,
2,
-8,
-45,
0,
-56,
0,
-2,
30,
-24,
0,
-46,
14,
-33,
10,
21,
5,
44,
59,
36,
-66,
33,
-45,
7,
-66,
-27,
45,
11,
-1,
27,
26,
20,
-1,
0,
48,
47,
-15,
-5,
-12,
6,
6,
23,
-16,
-45,
-14,
-9,
-73,
-50,
-13,
-58,
26,
-1,
8,
-4,
10,
9,
30,
-2,
12,
25,
-20,
11,
22,
2,
32,
-31,
-17,
-56,
-15,
-34,
-2,
-9,
-33,
-59,
24,
20,
-9,
-42,
23,
3,
9,
22,
20,
-52,
-42,
18,
-33,
-27,
-17,
-25,
13,
54,
52,
20,
16,
8,
8,
4,
25,
-43,
-6,
-45,
4,
10,
5,
16,
-37,
35,
-12,
48,
13,
-27,
47,
-21,
-37,
23,
-36,
-60,
-52,
-7,
8,
18,
-76,
-21,
-12,
30,
-70,
-11,
-55,
-34,
41,
25,
21,
0,
17,
21,
1,
18,
20,
7,
-16,
-10,
-44,
-12,
31,
-18,
-10,
56,
28,
-20,
12,
-31,
2,
-2,
21,
-18,
-32,
10,
20,
-1,
-30,
-12,
13,
0,
-8,
-7,
-9,
-3,
3,
-38,
-38,
44,
-36,
-36,
-11,
19,
-37,
7,
-49,
24,
-4,
48,
-1,
-43,
23,
71,
27,
-1,
41,
25,
-20,
44,
-23,
-54,
3,
53,
-45,
-64,
-27,
60,
31,
2,
-83,
48,
1,
9,
-25,
-13,
-50,
11,
3,
-21,
1,
17,
16,
10,
55,
25,
66,
21,
14,
23,
14,
-16,
5,
-63,
29,
1,
-20,
-48,
-8,
27,
47,
-3,
-6,
36,
-17,
15,
-24,
35,
81,
-21,
-13,
-54,
-24,
-28,
-46,
10,
-54,
29,
2,
5,
0,
-1,
46,
18,
-32,
-17,
-5,
10,
8,
-37,
-30,
-19,
7,
-13,
0,
-33,
-2,
-25,
3,
24,
21,
34,
53,
1,
-34,
42,
-40,
5,
31,
-12,
30,
-24,
-14,
48,
15,
15,
-51,
-46,
14,
-14,
-8,
-13,
27,
-17,
50,
-29,
-11,
-9,
-1,
48,
-49,
-63,
24,
-54,
20,
0,
14,
7,
-3,
13,
-19,
0,
-33,
-24,
-4,
-45,
-62,
66,
32,
-2,
-5,
-10,
-6,
12,
-33,
-4,
2,
15,
-1,
8,
17,
25,
-10,
91,
3,
18,
-1,
22,
-31,
7,
-12,
-4,
31,
-5,
12,
-10,
16,
6,
45,
19,
73,
21,
17,
-31,
4,
-17,
25,
-12,
74,
6,
-21,
-29,
25,
-32,
-53,
-3,
17,
-17,
-12,
-20,
11,
-24,
-5,
3,
-17,
37,
-31,
75,
47,
19,
-28,
-23,
24,
49,
-38,
43,
50,
38,
10,
7,
22,
28,
-12,
-4,
14,
-9,
-19,
0,
-25,
0,
-6,
26,
-4,
-7,
-71,
-22,
67,
-2,
2,
-23,
-28,
2,
3,
69,
36,
20,
-14,
-11,
20,
-17,
18,
26,
0,
-7,
-21,
49,
-32,
-29,
-24,
-31,
-33,
1,
-13,
10,
17,
9,
-79,
-4,
-68,
42,
60,
-60,
-30,
9,
0,
35,
15,
2,
-3,
19,
-42,
7,
29,
-18,
20,
-8,
20,
37,
-33,
-11,
33,
-13,
22,
35,
3,
5,
9,
15,
-49,
11,
-19,
44,
-2,
-2,
19,
15,
34,
-14,
-4,
-19,
-24,
-24,
42,
2,
0,
50,
-5,
-72,
-24,
-19,
-44,
-8,
38,
6,
-25,
27,
14,
-30,
-45,
5,
-2,
27,
-12,
24,
21,
-21,
22,
-5,
43,
-83,
-7,
0,
-38,
25,
22,
-10,
-3,
13,
7,
-27,
-74,
-21,
-24,
15,
13,
49,
-29,
-20,
1,
-13,
-39,
-12,
-61,
26,
3,
20,
-15,
-11,
9,
60,
19,
-54,
-39,
34,
-14,
-2,
11,
-59,
5,
8,
22,
14,
-24,
64,
13,
-23,
1,
44,
-51,
-38,
-14,
-16,
-30,
46,
44,
-18
] |
MR. JUSTICE GALEN
delivered the opinion of the court.
The above-entitled cause was heretofore before this court on appeal from an order settling the administrator’s accounts (74 Mont. 449, 241 Pac. 648), and the proper interpretation of our order by the district court has occasioned this appeal. Harvey L. Wood and Carrie M. Ammerman, a son and daughter of the deceased, filed objections to the accounts of their brother, James G. Woods, as administrator of their mother’s estate. The administrator was in consequence by order of the district court removed, but his account was approved. The objectors appealed. The district court’s order approving the account of the administrator was reversed, and further proceedings directed in conformity with the decision of this court. In concluding our opinion in disposition of costs it is stated: “The appellants shall recover their costs on this appeal.” On December 1, 1925, a remittitur was regularly issued from this court, which was duly received and filed the following day by the clerk of the district court. Thereafter, on December 5, 1925, the appellants now before us, being the same as on the former appeal, filed with the clerk of the district court, and regularly served, a memorandum of their costs and disbursements incurred on the appeal, totaling $651.60. On December 8, 1925, the district court regularly entered an order requiring the administrator to make and file a complete account in accordance with the decision of this court, wherein it is provided, among other things: “It is further ordered, adjudged and decreed by the court that the objectors, Harvey L. Woods and Carrie M. Ammerman, do have and recover of the said James G. Woods their costs herein incurred.” Subsequent to the making of this order, on April 12, 1926, the presiding judge before whom the matter was pending, Judge B. B. Law, of the ninth judicial district, was disqualified. Notwithstanding, on July 6, 1926, at Bozeman he made a further order designated “an order amending order, and expressing true intention of the court,” which was filed by the clerk of the court on July 8, 1926, wherein, after considerable in the way of recital, attempt was made to amend the court’s order of December 8, 1925, in the following language: “It is now ordered that said order and decree heretofore entered, as aforesaid, be, and the same is hereby amended and corrected to read as follows: ‘ That the objectors, Harvey L. Woods and Carrie M. Ammerman, do have and recover of the said James G. Woods, as administrator of the estate of Elizabeth Woods Jennings, their costs herein incurred, payable out of tbe funds or other property of the estate, and not otherwise.’ ” The objectors have appealed from the last-mentioned order.
The only question involved on this appeal is whether the court committed error in making the amendatory order.
1. The provision of our Revised Codes applicable reads as follows: “When it is not otherwise prescribed in sections 10018 to 10464, the district court, or supreme court on appeal, may, in its discretion, order costs to be paid by any party to the proceedings, or out of the assets of the estate, as justice may require. Execution for costs may issue out of the district court.” (Sec. 10372, Rev. Codes 1921.)
The language of the statute is clear enough, and easy of application. Where other provision is not made by the statutes, the district court or the supreme court is clothed with authority in the exercise of discretion to order the payment of costs by any party to a proceeding or to fix the same as a charge against an estate “as justice may require.” Here the administrator was a party to the proceeding in probate making account therein in justification of his conduct in the administration of the trust. On appeal taken by the objectors from the order of the district court approving his account, this court reversed the order, disapproved items contained in the account, and directed that the objectors be awarded their costs incurred on the appeal. Such disposition is expressly warranted by the statute. After the cause had been remanded, the district eourt, on December 8, 1925, made an order consistent with that made by this court, to the effect that the objectors are entitled, to recover from “James Gr. Woods their costs herein incurred.” This order was directed against James G-. Woods, personally, and was apparently based on the failure of the administrator to justify the course by him pursued in the conduct of the business of the estate, conforming to the views expressed in the decision by this court.
Both the district court and the supreme court are possessed of authority under the plain language employed in the statute, as justice may appear to require, to order such costs to be paid from the assets of the estate. This was not done by either court, as the administrator was found to be at fault, and the costs were accordingly assessed against him rather than the estate. The effect of this court’s order on reversal of the order appealed from was to assess the costs against the administrator personally. Over our determination thus made the district court had no jurisdiction other than to enforce it (In re Williams’ Estate, 52 Mont. 366, 157 Pac. 963), although it might determine disputed questions of costs (In re Williams’ Estate, above; State ex rel. Hurley v. District Court, 27 Mont. 40, 69 Pac. 244), or on final settlement of the account allow such portion of thp costs incurred as a charge against the estate as justice may have appeared to require (In re Davis’ Estate, 35 Mont. 273, 88 Pac. 957). However, by the district court’s order dated December 8,1925, requiring the administrator to file an additional account in accordance with the decision of this court, the costs incurred on the appeal were therein assessed against the respondent personally. Such judgment became final, and was thereafter subject to modification only on appeal. It is the generally accepted rule that courts have the inherent power to correct or amend their judgments so that they shall truly express that which was actually decided, where it appears from the face of the record that a clerical mistake has been made in setting forth correctly that which was in fact determined by the court. (Territory v. Clayton, 8 Mont. 1, 19 Pac. 293; Keene v. Welch, 8 Mont. 305, 21 Pac. 25; State ex rel. McHatton v. District Court, 55 Mont. 324, 176 Pac. 608; State ex rel. Smith v. District Court, 55 Mont. 602, 179 Pac. 831; State v. Fowler, 59 Mont. 346, 196 Pac. 992; State Bank of New Salem v. Schultze, 63 Mont. 410, 209 Pac. 599; State ex rel. Reid v. District Court, 68 Mont. 309, 218 Pac. 558; Stabler v. Adamson, 73 Mont. 490, 237 Pac. 483; Oregon Mortgage Co. v. Kunneke, 76 Mont. 117, 245 Pac. 539; St. Onge v. Blakely, 76 Mont. 1, 245 Pac. 532. See exhaustive note, 10 A. L. R. 526.)
However, where the judgment as rendered correctly expresses the court’s decision at the time it was entered, how ever erroneous it may be, the district court is without jurisdiction to subsequently amend or modify the judgment so as to change the substantial rights of the parties from that which was previously determined. The court cannot on a change of mind set aside or modify the judgment entered so as to alter the rights previously fixed thereby. This may be accomplished only on appeal in such a proceeding as this. (State ex rel. McHatton v. District Court, supra; State ex rel. Smith v. District Court, supra; State v. Fowler, supra; State ex rel. Reid v. District Court, supra; Stabler v. Adamson, supra; Oregon Mortgage Co. v. Kunneke, supra; St. Onge v. Blakely, supra.)
As early as 1853 the rule was declared in California in the following succinct language: “If there is no record evidence to show that the judgment was different from the one entered, the latter must stand as the judgment until reversed.” (Kenyon v. Goodall, 3 Cal. 257; see, also, Morrison v. Dapman, 3 Cal. 255.) This rule has since been consistently followed and applied in California under statutory provisions like our own. (In re Skerrett, 80 Cal. 63, 22 Pac. 85; Leonis v. Leffingwell, 126 Cal. 369, 58 Pac. 940; Cowdery v. London Bank, 139 Cal. 298, 96 Am. St. Rep. 115, 73 Pac. 196; Estate of Potter, 141 Cal. 424, 75 Pac. 850; 11 Cal. Jur. 1090.)
Sections 9795 and 10190 of the Revised Codes of 1921 have no pertinency here. They have reference only to civil actions or independent proceedings which the administrator in his representative capacity may prosecute or defend; whereas section 10372 here applied relates entirely to proceedings in probate such as those now before us. (Estate of Olmstead, 120 Cal. 447, 52 Pac. 804; In re Williams’ Estate, supra. Here the costs were not assessed to the estate in an action wherein the administrator was a party in his representative capacity, but rather in the probate proceeding wherein he was endeavoring to justify his accounts as administrator of the estate 'and have them settled. He was appearing for himself, ex parte, in the probate proceedings incident to the administration of the estate, in justification of the conduct of his trust, rather than in the prosecution or defense of an action involving the estate.
It follows that, since the court attempted to change the judgment rendered so as to make it substantially different from the judgment originally entered, the amendment is void for want of jurisdiction on the part of the court, and the order first entered will be upheld as the court’s judgment entered in the cause as respects the personal liability of the respondent to pay the costs.
This disposition of the appeal renders it .unnecessary for us to decide the very serious question raised as to the jurisdiction of the presiding judge to enter the amendatory order after he had been disqualified. The district court’s order entered December 8, 192'5, is upheld, and the cause is remanded to the district court of Sweet Grass county, with directions to vacate and set aside the amendatory order of July 8, 1926. On this appeal the respondent personally is assessed with the appellants’ costs.
Reversed and remanded.
Mr. Chief Justice Callaway and Associate Justices Myers and Matthews concur.
Me. Justice Stark, deeming himself disqualified, takes no part in this decision.
|
[
-20,
-20,
-18,
-3,
20,
7,
-27,
14,
-20,
-10,
9,
-29,
-10,
23,
-12,
37,
-22,
-40,
51,
-14,
53,
3,
-68,
9,
-3,
19,
-3,
44,
-17,
-45,
36,
-10,
22,
-10,
-31,
29,
-45,
13,
-2,
1,
8,
13,
0,
-14,
-74,
72,
25,
-32,
54,
13,
35,
-19,
11,
-16,
-2,
39,
43,
9,
-14,
-25,
19,
11,
11,
35,
72,
-25,
-26,
30,
-20,
6,
26,
-50,
25,
-4,
39,
-5,
-14,
-56,
-54,
28,
-12,
-14,
8,
-37,
-56,
-29,
-43,
15,
2,
65,
-24,
14,
41,
29,
32,
31,
6,
-5,
7,
-5,
49,
-68,
6,
57,
48,
21,
-3,
35,
31,
10,
-1,
43,
-8,
36,
-62,
0,
-8,
-2,
17,
-37,
-27,
34,
-8,
-1,
18,
60,
19,
19,
52,
-33,
4,
66,
20,
-33,
-21,
6,
-2,
-63,
-32,
-14,
49,
24,
-20,
30,
38,
20,
41,
33,
-32,
-39,
-5,
19,
13,
32,
80,
-10,
30,
-50,
47,
-21,
43,
11,
-9,
-39,
13,
42,
-5,
-7,
3,
24,
7,
5,
-28,
-21,
11,
42,
20,
9,
-24,
10,
-24,
22,
44,
-41,
-13,
-50,
13,
18,
25,
-8,
35,
-68,
14,
-20,
-34,
14,
40,
14,
23,
4,
4,
-32,
-35,
25,
1,
13,
20,
-8,
28,
1,
46,
-12,
0,
-17,
-10,
0,
7,
56,
-59,
43,
33,
43,
-18,
20,
18,
4,
21,
29,
26,
-1,
-103,
12,
0,
55,
-3,
24,
-5,
14,
-59,
3,
-35,
0,
0,
-8,
-34,
47,
-5,
11,
25,
-32,
3,
18,
-11,
30,
-25,
-4,
17,
-12,
-23,
-46,
41,
-36,
-11,
-9,
-29,
-34,
-13,
8,
40,
18,
-81,
-15,
41,
2,
32,
-38,
4,
21,
44,
-27,
-23,
-66,
2,
40,
-2,
-38,
68,
31,
13,
-9,
-25,
-10,
-4,
-36,
72,
-17,
-15,
-1,
8,
-16,
-91,
-40,
10,
-19,
9,
34,
0,
-1,
-13,
9,
1,
10,
-2,
-42,
-8,
19,
-25,
-6,
-12,
3,
38,
4,
-12,
20,
43,
45,
8,
41,
19,
32,
-5,
-18,
-45,
4,
-16,
-34,
0,
-30,
1,
-15,
-28,
-9,
-2,
9,
-21,
-19,
-34,
-1,
2,
7,
15,
12,
1,
68,
-44,
5,
32,
-9,
-19,
91,
17,
8,
1,
-6,
-16,
-22,
5,
-7,
44,
2,
3,
2,
-13,
-35,
39,
59,
-55,
-14,
4,
-12,
-55,
7,
21,
-24,
8,
-36,
31,
14,
16,
-6,
27,
52,
0,
41,
-20,
-18,
10,
-18,
-69,
-7,
-47,
14,
9,
-15,
29,
-8,
-8,
2,
-15,
20,
32,
2,
24,
11,
69,
2,
-42,
42,
42,
-53,
63,
-10,
3,
23,
53,
-49,
36,
7,
7,
-21,
-24,
4,
-32,
49,
2,
8,
-4,
-42,
-22,
9,
-40,
26,
-13,
45,
-35,
-27,
-16,
24,
76,
40,
30,
-14,
-30,
-22,
21,
4,
25,
-22,
-6,
-55,
-10,
58,
2,
39,
1,
50,
41,
7,
1,
62,
-36,
-12,
-18,
-17,
-13,
4,
-2,
-120,
27,
-53,
-18,
-24,
36,
54,
24,
81,
-23,
-16,
-45,
6,
19,
6,
-44,
-57,
-24,
4,
-48,
-41,
-5,
8,
-66,
-13,
53,
0,
16,
-36,
-24,
-39,
17,
25,
3,
-27,
8,
-14,
16,
22,
-6,
-15,
29,
-14,
30,
53,
-5,
10,
22,
25,
8,
8,
47,
13,
0,
-26,
-32,
-36,
-37,
-48,
-55,
30,
-34,
-33,
22,
-40,
25,
18,
-23,
1,
-14,
-1,
38,
-18,
25,
-83,
-10,
3,
1,
17,
0,
-13,
-29,
7,
74,
3,
-45,
-25,
7,
19,
-76,
-11,
-6,
15,
34,
10,
-6,
-37,
-11,
36,
-6,
-34,
17,
-33,
15,
-39,
-2,
-42,
-15,
7,
40,
61,
-2,
-14,
6,
-47,
-50,
-9,
-24,
12,
-36,
7,
20,
22,
-56,
34,
24,
-14,
-37,
6,
-6,
58,
-19,
-34,
22,
16,
-6,
-17,
-46,
16,
15,
-28,
32,
0,
-3,
-17,
1,
55,
1,
11,
-56,
24,
-2,
30,
-11,
0,
3,
11,
53,
12,
10,
30,
-17,
2,
50,
29,
47,
-1,
-60,
-4,
42,
-32,
15,
26,
14,
-18,
7,
-6,
-62,
9,
23,
-39,
-11,
0,
29,
-20,
-34,
34,
-44,
0,
-21,
55,
32,
-1,
14,
0,
-25,
41,
9,
-3,
-2,
63,
8,
-7,
-16,
-9,
8,
0,
6,
-56,
4,
58,
-43,
0,
49,
39,
10,
18,
-24,
37,
-19,
24,
11,
-31,
-18,
-10,
7,
47,
-17,
26,
-47,
-14,
-47,
-41,
-6,
-41,
-15,
-37,
-30,
-18,
40,
-35,
-3,
-17,
-29,
-17,
-20,
0,
-10,
-7,
19,
-17,
-32,
-30,
-10,
79,
-44,
6,
-83,
-21,
-41,
-57,
18,
64,
-21,
-8,
2,
57,
-48,
-41,
14,
28,
-21,
7,
12,
-28,
-1,
26,
-12,
-18,
-36,
-28,
17,
-13,
50,
32,
-30,
90,
-21,
38,
-26,
-10,
-25,
-27,
-6,
-13,
-21,
4,
33,
-9,
-20,
26,
47,
-13,
-5,
-14,
-90,
-2,
-1,
-30,
36,
54,
-11,
21,
5,
-65,
50,
-46,
-1,
53,
-35,
-43,
-25,
5,
47,
-2,
34,
14,
1,
36,
-17,
82,
-17,
10,
-25,
-79,
9,
-62,
-11,
-14,
-30,
-32,
-10,
-18,
-28,
-14,
16,
43,
16,
11,
12,
27,
9,
22,
-15,
-30,
-33,
-35,
1,
-2,
3,
0,
-27,
-27,
-3,
-7,
26,
37,
-9,
40,
34,
36,
-3,
19,
21,
-40,
7,
49,
-65,
-38,
-5,
-51,
5,
56,
45,
-9,
-17,
-10,
-18,
61,
12,
-11,
5,
4,
-11,
-10,
-16,
11,
-15,
-1,
41,
-38,
2,
-18,
-66,
19,
-22,
15,
-9,
6,
18,
13,
-20,
-7,
12,
26,
-6,
2,
-17,
11,
15,
-40,
23,
33,
-29,
-46,
-8,
-17,
-25,
-45,
-5,
53,
-43,
-29,
29,
12,
-34,
-26,
-10,
-9,
32,
-38,
-25,
54,
9,
-38,
-22,
45,
16,
-17,
37,
2,
-12,
48,
55,
13,
76,
-20,
16,
3,
-3,
44,
-19,
-39,
56,
-68,
33,
22,
0,
-1,
30,
-40,
-52,
12,
43,
14,
13,
62,
2,
15,
-55,
-41,
-23,
-11,
-50,
-7,
3,
41,
-37,
-40,
-35,
21,
39,
17,
-35,
8,
13,
-17,
-11,
-10,
41,
-41,
11,
43,
28,
-9,
-33,
-11,
-30,
-2,
-9,
6,
17,
2,
49,
36,
3,
8,
11,
79,
-23,
1,
-9,
-15,
-50,
-46,
32,
12,
-44,
-33,
-36,
50,
-18,
4,
-40,
-15,
-66,
-42,
-57,
0,
8,
-6,
-3,
9,
-30,
-28,
-31,
15
] |
MR. JUSTICE MATTHEWS
delivered the opinion of the court.
Appeal from a judgment and decree revoking letters of guardianship theretofore issued to Bridget M. Burns, and awarding the custody of Pauline Marie August, the ward, to George August, her father.
The undisputed facts are that the plaintiff, George August, in the year 1916, resided in Butte with his wife, Marie Horn August, his infant daughter, Pauline Marie August, bom July 4, 1915, and his wife’s father, Kern Horn. In November of that year the wife was taken seriously ill, and removed to a hospital. In the spring of 1917 the child was taken by the father to the home of Bridget M. Burns, who resided with her husband and a number of children, and was there taken care of as though the child of Bridget M. Bums. The mother died in May, 1917, and in October, 1917, George August was drafted into the army, and sent to France. He returned to Butte in 1920, but later departed seeking for employment, and, in 1921, was located at Casper, Wyoming, where he still resides. Kern Horn died in May, 1921. He had a small life insurance policy in force at the time of his death, in which the child was named as beneficiary, but on which the insurance company denied liability. Mrs. Burns corresponded with August, who did not care to do anything in the matter of the policy, as he did not think the amount justified action. Mrs. Bums consulted with, and employed, one Dan T. Malloy, an attorney, to bring action against the insurance company and to secure her appointment as guardian of the minor. On June 15, 1921, Malloy wrote the following letter to August:
“Mrs. Burns of this city has taken up with me the matter of her being appointed guardian of your child Marie August, for the purpose of securing payment of insurance policy. I advised her that you could not be appointed in this state without being a resident here, and also that it would be necessary for her to get your consent to her appointment before she could be appointed here. If she were appointed, Mr. August, you understand that she must put up a bond equal to twice the amount of the property of the said child, also the money would be put in the bank in the child’s name and no expenditure of the same made without order and approval of the court, so the child’s interests would be protected, and I assume that is all you are interested in. Inclosed find a ‘consent to appointment’ of Mrs. Burns which if you care to, sign before a notary public on the line indicated ‘X’ and then return to me. If you want further information concerning the matter, I shall be glad to furnish you with the same.”
The “consent” referred to in the letter recites that George August is the father of the minor named; that her mother is dead; that the child is in the custody of Mrs. Burns and requests the court to appoint Bridget M. Burns guardian of the “estate and person of said minor child,” and closes: “I do hereby consent to her appointment as such by the order of the court.” It is signed by plaintiff, and duly acknowledged before a notary public.
This instrument was promptly returned to Malloy, who thereupon secured the appointment of Mrs. Burns, who thereafter duly qualified and assumed the duties of her office, and, up to the time of the entry of judgment herein, was the duly appointed, qualified and acting guardian of both the person and estate of the minor child, and had exclusive custody of and control over her. She properly cared for the child, giving her the same attention she gave her own children in the home, and the child was happy and contented; attended school and church, and did well in her studies. She had no intimation that Mrs. Burns was not her mother until she was nine or ten years old, and did not then, nor does she now, want to leave her. Plaintiff has, in recent years, visited the child at intervals of a year or more apart.
In June, 1924, plaintiff filed in the district court of Silver Bow county a petition for a writ of habeas corpus, in which he alleged that the child was held and restrained of her liberty without right or authority in law, and not by any final judgment or order of any court, and then set out the manner in which the child was placed in the home of Mrs. Burns, and that in the. year 1922 he had made demand upon Mrs. Burns that she permit him to take the child to his home in Casper, Wyoming, which demand she refused. It then recited that Mrs. Burns claims to hold the child under the appointment as guardian, but that such appointment was made for the purpose of suit against the insurance company, and that petitioner consented to such appointment on representations that such was the purpose of the proceeding, and that no representation was made to him that Mrs. Bums asserted, or would assert, any claim to the custody of the child adverse to the petitioner, or that the plaintiff was not a fit person to have the custody of his child; that the representative of Mrs. Burns had represented to him that the only purpose of the proceeding had to do with the property rights of the child; and that, therefore, the appointment was not an adjudication affecting the rights of the petitioner to the custody of the child. .
The writ was issued, and, on return, defendant answered, basing her right to the child on the order appointing her guardian of the person of the child, and alleging therein that she secured the child by answering an advertisement in a newspaper while the child’s mother was living, and that, on securing the child, the mother requested her to raise the child in case of the death of the mother. She alleged the manner in which she had cared for the child and its attachment to her, and that it was to the best interest of the child that she remain in the home of her guardian, Mrs. Burns. She then alleged matters on which she asserted that the petitioner was not a fit person to have the custody of the child.
After a full hearing, the court ordered the proceeding dismissed, the writ discharged, and the child returned to the custody of Mrs. Burns. Thereafter, on July 2, 1924, plaintiff filed in the guardianship matter a petition for the modification of the order appointing Mrs. Burns guardian, upon the. grounds set out in the petition for a writ of habeas corpus by striking therefrom the provisions constituting her the guardian of the person of the minor, and asked that he be given the custody of the child forthwith.
To this petition Mrs. Burns filed a motion to quash, which motion, after argument of counsel on the law, was by the court sustained, and the proceeding dismissed. No appeal was taken from the judgment of dismissal in either proceeding; but, on October 31, 1924, plaintiff filed complaint herein containing two causes of action, the first of which alleges that the “consent to appointment” above referred to was fraudulently prepared by defendant and her attorney in violation of the agreement between tbe parties that Mrs. Burns be appointed guardian solely for tbe purpose of suing the insurance company. This contention was apparently abandoned at the trial. The second cause of action alleges that the plaintiff, father of the child, placed her with Mrs. Burns under a contract by which she was to give the child board, lodging and care, for which he was to pay her a stipulated amount per month; that in June, 1921, Mrs. Burns and her attorney represented that , it would be necessary that she be appointed guardian for the purpose of bringing suit against the insurance company, and thereupon plaintiff entered into an agreement with the defendant that she be appointed for that purpose, and for no other, but that the attorney for the defendant, through mistake, prepared the consent so as to read that plaintiff consented to the appointment of Mrs. Burns as guardian of the person of the child also; that the instrument did not, and does not, express the agreement and understanding of the parties; and that, under the mistake of fact and the belief that it merely consented to the appointment of Mrs. Burns as guardian of the estate of the child, plaintiff signed the consent. The complaint further alleges that, under the mutual mistake of the parties, and in ignorance thereof, Mrs. Burns presented her petition for appointment, and was appointed, and that the same does not express the intention of the parties. Plaintiff alleges that he is a fit and proper person to have the custody of the child, and asks that the letters of guardianship be canceled, and that he be given the custody of the child.
By answer the defendant set up her appointment, and alleged its validity. She then set up the habeas corpus proceeding and the proceeding in the guardianship matter, with the judgment therein rendered as a bar to this action, and alleged that each of said judgments was final, duly given, and made in proceedings between the same parties on the same matters in controversy, and that those matters are now res adjudicatei. Paragraph 10 of the affirmative answer alleges that plaintiff has not supported or maintained the minor; that he has no fixed or permanent home, and no visible means of livelihood, and is not a fit and proper person to have the custody of the child. Paragraph 11 alleges the manner in which defendant has cared for the child, and that it is for the best interest of the child that she be continued in the custody of her present guardian.
Issue was joined as to the affirmative matter in the answer, by reply, wherein the institution of the proceedings mentioned and the disposition thereof were admitted. The cause was tried to the court without a jury, and, on the calling of the first witness, defendant objected to the introduction of any evidence on the ground that, under the allegations of the answer, admitted by the reply, the issues sought to be presented are res adjudicata. The motion was overruled, and thereupon Dan T. Malloy, attorney for defendant in the guardianship matter and suit against the insurance company, was permitted, over the objection of the defendant, to testify that the inclusion of the phrase “of the person” in the plaintiff’s consent to the appointment of Mrs. Burns as guardian was a mistake made by him as attorney for Mrs. Burns, and that the appointment was sought only for the purpose of bringing action against the insurance company. The witness produced his office copy of the letter he wrote August, concerning the appointment, which was admitted in evidence.
The plaintiff testified that he was the father of the child; that he placed the child with Mrs. Burns prior to the death of the mother, under an agreement to pay for her keep, and furnish her with clothes; and that he paid all charges up to 1924, when Mrs. Burns refused to accept a payment, and asserted her right to the child under her letters of guardianship. He produced numerous receipts for payments to Mrs. Burns, which were admitted in evidence. He further testified that he first made demand for the custody of the child in 1921, but was refused, on the ground that it was. best to have the child in Btitte until after the case against the insurance company was disposed of. He testified that he did not understand English very well, and, while he saw no words in the instru ment designated as the consent which he did not understand, he understood that it was a request that Mrs. Burns be appointed guardian only for the purpose of the suit; that he had no home in Casper and no female relatives there, but planned on placing the child in a private home. He introduced numerous depositions from prominent residents of Casper as to his reputation as a “sober and industrious man” and a “decent and law-abiding citizen.” These were admitted over the objections of the defendant that they did not tend to prove any issues in the case. Plaintiff then rested, whereupon defendant moved for judgment in her favor on the ground that the evidence did not disclose a mistake on the part of either party, and that the questions presented were res adjudicada,. This motion was overruled.
Defendant then introduced the original records in the habeas corpus proceeding and in the application for a modification of the order appointing the guardian.
In the amended petition for the writ of habeas corpus plaintiff recited that in the summer of 1922 he “had attained a situation where he could provide a suitable and excellent home for said child, which condition still exists; that at said time last mentioned he requested said Bridget Burns to deliver said child to him to be taken to his home in Casper, Wyo., and at various times since has requested and demanded that said child be returned to him; but at all times the said Bridget Burns has refused to do so.”
Defendant produced many witnesses to show that the child had been properly cared for by her guardian; that the home surroundings were excellent; and that the child loved Mrs. Burns, would not believe that she was not her mother, and wanted to remain with her. The child was placed on the stand, and testified that she wanted to stay with Mrs. Burns, and did not want to go with her father.
The defendant testified that she obtained the child through an arrangement with plaintiff’s father-in-law, with the consent of plaintiff, that she was to have the child absolutely, and that the mother had requested her to raise the child as her own; that she had done so, and would feel as badly at its loss as she would over the loss of one of her own children; that she labored under no mistake at the time she applied for letters of guardianship, but got just what she sought. She further testified that there was no arrangement for payment for the care of the child, and that plaintiff had not so paid her. She sought to explain the payments made by testifying that she had loaned plaintiff |300 in 1920, and that the amounts paid her were in repayment and remittances to be turned over to the father-in-law in payment for burial expenses, etc., contracted at the time of the mother’s death.
Defendant then sought to introduce records showing that i» September, 1917, the bureau of child and animal protection filed a petition in the district court on behalf of the plaintiff’s father-in-law alleging that the child was neglected and abandoned by its father; that a citation was issued and hearing had, resulting in an' order committing the child to the care and guardianship of the bureau. Objections were interposed, and the offer was finally rejected on the ground that “they don’t serve any purpose in this case, because they contain matters which should have been specially pleaded.”
On the evidence adduced the court found that all of the allegations contained in plaintiff’s second cause of action are true, and that all of the allegations of the answer are true, except: (1) That a judgment was given upon the merits in the habeas corpus proceeding; (2) that the cause of action presented in the habeas corpus proceeding and guardianship matter were the same and identical cause of action stated in these proceedings, and are res adjudicata; (3) the matters stated in paragraph 10 of the answer; and (4) that it is for the best interest and welfare of the child that she be permitted to remain in the cafe and custody of her present guardian. On the findings the court entered judgment and decree modifying the order appointing the guardian as prayed, and awarding the custody of the child to plaintiff. Defendant moved for a new trial, which motion was denied.
Defendant has appealed from the judgment and makes ten specifications of error, which raise the following questions: Did the court err (1) in overruling defendant’s objection to the introduction of any evidence; (2) in overruling the objection to the testimony of defendant’s attorney in the guardianship matter; (3) in excluding the record of the proceedings instituted by the bureau of child and animal protection? (4) Is the judgment supported by the evidence and sustained by the law?
1. The first specification of error presents the question as to whether the orders made in the habeas corpus-proceeding and the application for the modification of the order appointing the guardian were res ad judicata, and therefore a bar to this proceeding.
While it is true that, in the habeas corpus proceeding, as here, the plaintiff sought to cancel or annul the order appointing defendant guardian of the person of the child, and in his amended petition set up certain of the facts contained in his complaint in the case at bar, and such a proceeding is civil in its nature, and the decision of the court awarding custody of a minor therein entered is final, except for an abuse of discretion (Ex parte Thompson, 77 Mont. 466, 251 Pac. 163), the decision of the court is res ad judicata only as to those matters properly determined by the court on the merits. (County of Silver Bow v. Kelly, 68 Mont. 194, 216 Pac. 1106; Bennetts v. Silver Bow Amusement Co., 65 Mont. 340, 211 Pac. 336.)
The purpose of a writ of habeas corpus is to determine the legality or illegality of the restraint alleged to be exercised. It is available only to those persons, or on behalf of those persons, unlawfully imprisoned or restrained of their liberty (sec. 12348, Rev. Codes 1921; State ex rel. City of Butte v. District Court, 32 Mont. 18, 79 Pac. 409), and is independent of the legal proceeding under which the detention is sought to be justified. (Ex parte Tom Tong, 108 U. S. 556, 27 L. Ed. 826, 2 Sup. Ct. Rep. 871 [see, also, Rose’s U. S. Notes].).
In State ex rel. Carroll v. District Court, 50 Mont. 428, 147 Pac. 612, this court assumed, without deciding, that the trial court had jurisdiction in a habeas corpus proceeding to discharge from custody one held under guardianship as an incompetent person, but did so only in order to determine the propriety of the court’s action in other respects. Such jurisdiction does not, in fact, exist. If the return shows restraint under a valid appointment and qualification as guardian, the restraint is legal and not illegal so far as the writ is concerned, and the order of appointment is not open to collateral attack in such proceedings except for want of jurisdiction to render it. (Ex parte Kandarian, 187 Cal. 479, 202 Pac. 647; Ex parte Ah Men, 77 Cal. 198, 11 Am. St. Rep. 263, 19 Pac. 380.)
The district court of Silver Bow county had jurisdiction to appoint guardians. The record shows that the appointment of Mrs. Burns was made on petition regularly presented, accompanied by the consent of the surviving parent, and the order appointing the guardian was made after notice and hearing pursuant to statute. (Sec. 10401, Rev. Codes 1921.) The guardian was entitled to the legal custody of the minor until she should attain her majority or marry, or until the guardian should be legally discharged. (See. 10407.) The record further shows that the order of appointment and the 'letters of guardianship had never been modified or revoked. It is therefore apparent that the court properly dismissed the proceeding and discharged the writ without passing upon the question here presented. The petitioner merely mistook his remedy.
While an election as between two available courses may bar recourse to the second on failure to secure relief through the method elected, the unsuccessful use of an inappropriate proceeding by which the party could, under the facts, receive no relief, does not preclude such party from thereafter invoking the proper remedy. (Rowell v. Smith, 123 Wis. 510, 3 Ann. Cas. 773, 102 N. W. 1; O’Meara v. McDermott, 43 Mont. 189, 115 Pac. 912; Kaufman v. Cooper, 39 Mont. 146, 101 Pac. 969.) The habeas corpus proceeding, therefore, is no bar to an action in 'the proper forum for the discharge of the guardian or the modification of the order of appointment.
2. Plaintiff next sought relief by petition in the guardianship matter. If the order dismissing his petition was a judgment on the merits, refusing to revoke letters of guardianship, as asserted by counsel for defendant, it was a bar to the present action on all questions therein decided.
However, the matter was not decided on issues framed and evidence adduced, but upon argument on motion to quash on the ground that the petition did not state facts sufficient to entitle petitioner to the relief sought. While the contention of the plaintiff in the case at bar is indicated in the petition filed in the guardianship matter, it did not properly allege that the phrase “of the person” was included in the petition for letters of guardianship and the consent thereto by the mutual mistake of the parties, which is the chief question determined by the trial court as a basis for the decision from which this appeal is taken.
“The doctrine of res adjudicata, in the strict sense, does not apply to the decision of a motion.” (28 Cyc. 20; 18 Cal. Jur. 667; Bowers v. Cherokee Bob, 46 Cal. 279; Reeves v. Best, 13 Colo. App. 225, 56 Pac. 985; Snyder v. White, 6 How. Proc. (N. Y.) 321.)
In Herd v. Tuohy, 133 Cal. 55, 65 Pac. 139, cited in 18 Cal. Jur. 667, it is said: “The refusal of a court to grant a motion to set aside a judgment cannot operate as an estoppel so as to preclude equitable relief; and where there is no evidence to show that the decision of the motion involved the same questions as are involved in the action, the court is not precluded from finding the contrary.”
The decision on. the motion to quash determined only that the petition presented did not state facts sufficient to warrant the relief sought, and did not pass upon the question of mutual mistake alleged in the complaint before us. Under the cir eumstances we hold the plea of res adjudícala was n'ot available to defendant, and the court therefore did not err in overruling her objection to the introduction of testimony.
3. The next question raised is as to the action of the court in permitting defendant’s attorney to testify that the sole purpose of the appointment of a guardian was the institution of suit against the insurance company, and that the phrase “of the person” was inadvertently incorporated in the written consent submitted to plaintiff for his signature.
Section 10536, Revised Codes 1921 (amended, Chapter 83, Laws 1925), provides, among other things, that “an attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his ¡advice given thereon in the course of professional employment.”
While the testimony here under consideration was not directly a statement of communications made by the client to the attorney or his advice thereon, it related to matters which he could only have knowledge of through conference with his client, and involved the most important issue in the case, and comes within the spirit of the prohibition contained in the statute, if not strictly within its letter. In effect, he said, “I know from what my client said to me that she sought only to be appointed for the purpose of suit; she did not direct me to apply for her appointment as guardian of the person of the minor, and I made the mistake of including that request in the instruments drawn by me.” Clearly the court erred in permitting him to so testify. (Denver Tramway Co. v. Owens, 20 Colo. 107, 36 Pac. 848.) (
However, communications of matters which the attorney must necessarily make public in the discharge of his duties are not privileged (10 Ency. of Evidence, 236), and an attorney is not prohibited from disclosing a statement made with the express intention that it be communicated to another (Franzen v. Shenk, 192 Cal. 572, 221 Pac. 932). It was therefore not error to permit the attorney to produce in court his office copy of his letter written to the plaintiff for the pur pose of inducing him to sign the consent to, and request for, the appointment of defendant. Had the original of this letter been in existence, it could have been introduced without calling the attorney to the stand. Whether the error committed was prejudicial, and therefore requires a reversal, will be later considered.
4. No error was committed in excluding the record of the proceedings taken by the bureau of child and animal protection. This record, if admitted, would not only have disputed the allegations made by, and the testimony of, the plaintiff, but also the allegations of the answer and the testimony of the defendant. It did not tend to establish any issue joined, but was a departure from the pleadings and proof, and presented an alleged right entirely different from that pleaded.
5. It is next contended that the court erred in overruling a motion for nonsuit. This is an equity case, and herein such a motion is “a doubtful procedure.” (Kavanaugh v. Flavin, 35 Mont. 133, 88 Pac. 764.) Again, we have said that it is not a proper practice to grant a nonsuit in equity cases. The entire evidence of the plaintiff and defendant ought to be received, so that, on appeal, the supreme court may direct the entry of final judgment. (Stevens v. Trafton, 36 Mont. 520, 93 Pac. 810.)
Regardless of the merit of the contention of defendant on the motion, the court did not err in denying it and causing a record to be made on which the case can be finally disposed of on this appeal.
6. Does the competent evidence before the court warrant the action of the court in reforming the appointment of Mrs. Burns to apply only to the guardianship of the estate of the minor? What was sought by the plaintiff was, in effect, the revision of the contract between him and the defendant, Mrs. Burns, evidenced by his written consent to her appointment as guardian.
The Revised Codes of 1921 provide that “when, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of the party aggrieved, so as to express that intention * * * ” (sec. 8726), and “for the purpose of revising a contract, it must be presumed that all the parties thereto intended to make an equitable and conscientious agreement” (sec. 8727), and “in revising a written instrument, the court may inquire what the instrument was intended to mean, and what were intended to be its legal consequences, and is not confined to the inquiry what the language of the instrument was intended to be” (sec. 8728).
The party seeking revision or reformation must establish the mutual mistake by clear, convincing and satisfactory proof in order to overcome the presumption that the writing contains the final agreement of the parties and expresses their real purpose and intent. (McNamer Realty Co. v. Sunburst Oil & Gas Co., 76 Mont. 332, 247 Pac. 166.)
Eliminating the testimony of the attorney for Mrs. Burns, we have only the letter written by him to plaintiff on the representations of which the plaintiff consented to the appointment of defendant as guardian, and the testimony of the plaintiff as to his understanding of the purpose of the apr pointment, gleaned from the letter and from communications from defendant.
From the record it is clear that, at the time she sought the appointment, the defendant, through her attorney, and by personal communications, represented to the plaintiff that the sole purpose of the proceeding was to enable her to maintain an action on behalf of the child against the insurance company. While she testified on the trial that she intended to get just what she received, at the time she sought the appointment she did not communicate such intention to the plaintiff, nor did she testify that she directed her attorney to apply for such an appointment.
Although it may be said that the mistake made was one of law rather than fact, it must be remembered that the plaintiff was a foreigner, with little knowledge of the English language, and with no knowledge of the legal consequences of the inclusion of the phrase “of the person” in his consent to the appointment, and that he had before him the representation that it was necessary that he sign the instrument submitted, in order that the child might sue on the policy of insurance, and he, in fact, intended only that an, appointment be made for that purpose. The defendant intended only to represent that such was the purpose of the consent and of the application for letters of guardianship.
Under these circumstances, and under the law above quoted, the court was justified in fin'ding that the phrase wás included in the instrument through a mutual mistake, or through a mistake on the part of the plaintiff which was known to, or suspected by, the defendant, and that the instrument did not truly express the intention of the parties. This finding we cannot now disturb, and on it the court properly held that the instrument should be revised, and the order of appointment, based thereon, should be reformed to express the true intention of the parties. As there was ample competent evidence to justify the finding, the error in admitting incompetent evidence in an equity case was harmless. (Noyes’ Estate v. Granite-Alaska Co., 64 Mont. 406, 210 Pac. 96.)
7. Finally, it is contended that it is to the best interest of the minor that she be left in the custody of Mrs. Burns. Counsel asserts that the opinion is now universal that neither of the parents of a child has any right that can be allowed to militate against the welfare of the child, citing Boles v. Boles, 60 Mont. 411, 199 Pac. 912, and other decisions of this court in divorce proceedings involving the custody of children. This is true where the court is called upon to determine between parties to an action, each of which is, under the law, entitled to the custody of the child in question; and in a proper proceeding a child may be taken from a surviving parent, or from both parents, when it appears that such are not proper persons to have the custody of the child. However, the surviving parent is legally entitled to the custody of the children (sec. 5834, Rev. Codes 1921), and is required by law to support and care for such children (sec. 5833), and the paramount interest of the child, or its wish, will not justify the court, in the absence of a showing of unfitness or inability to support a child, in arbitrarily taking a child from its natural guardian and turning it over to a stranger.
In the case at bar no showing was made of unfitness, while the plaintiff introduced testimony as to his fitness and ability to care for his child, and, while it may be lamentable that the tender ties which have been formed between the child and Mrs. Burns must be broken, the court could find therein no legal justification for awarding her custody to Mrs. Burns as against the only person legally entitled thereto, after it had found that Mrs. Burns was not legally appointed guardian of the person of the child.
The evidence and the law amply support the judgment and it must be affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Myers, Stark and Galen concur.
|
[
-7,
14,
-11,
15,
7,
-6,
54,
-18,
76,
-60,
-2,
27,
25,
-19,
-2,
-29,
-15,
7,
-6,
-41,
-49,
17,
-58,
5,
34,
-32,
49,
-30,
-41,
16,
2,
-6,
6,
33,
3,
-7,
-11,
-73,
43,
0,
36,
-19,
18,
44,
-33,
-20,
43,
11,
14,
13,
21,
-54,
38,
36,
30,
0,
37,
40,
9,
31,
-19,
-97,
16,
12,
27,
-34,
56,
23,
23,
-8,
20,
-31,
-32,
-22,
4,
30,
17,
-16,
-21,
14,
-25,
-34,
-22,
-35,
-31,
-15,
-40,
26,
-38,
42,
-20,
10,
21,
-14,
2,
33,
-33,
-1,
6,
-24,
35,
-95,
24,
19,
12,
-6,
-33,
10,
51,
7,
-24,
65,
-2,
12,
-16,
30,
13,
47,
-21,
25,
-32,
-4,
-9,
-35,
42,
3,
-46,
16,
35,
31,
-89,
23,
35,
15,
19,
-12,
-17,
-64,
14,
-7,
1,
-6,
12,
6,
-41,
22,
12,
-50,
-21,
-56,
-9,
-23,
56,
40,
36,
-7,
-15,
-64,
-5,
-37,
10,
-23,
28,
25,
-2,
-24,
23,
-4,
-14,
-7,
-5,
-7,
-33,
28,
25,
11,
16,
-22,
-28,
39,
1,
10,
-6,
-53,
58,
52,
34,
-3,
22,
-10,
-4,
-45,
22,
44,
-6,
15,
44,
-34,
6,
-16,
13,
43,
14,
33,
26,
-3,
-12,
46,
27,
-79,
107,
58,
-2,
3,
-10,
26,
-74,
37,
-72,
2,
-4,
10,
-43,
-3,
-22,
-48,
-21,
19,
-24,
-42,
13,
33,
14,
58,
24,
68,
-54,
-25,
-51,
-36,
18,
-9,
46,
-1,
12,
42,
-12,
-1,
5,
30,
-33,
6,
21,
20,
-5,
6,
7,
1,
-19,
-13,
29,
-20,
-31,
19,
66,
-12,
27,
-25,
48,
-16,
40,
-16,
41,
-14,
-34,
-12,
60,
11,
51,
-53,
6,
-10,
-40,
46,
0,
-30,
39,
8,
-3,
-17,
18,
-23,
18,
12,
59,
-8,
18,
-5,
-12,
16,
32,
23,
-15,
15,
0,
-12,
-47,
-25,
-14,
15,
-26,
9,
-43,
-47,
45,
22,
-45,
10,
8,
36,
34,
33,
-26,
35,
-26,
12,
-21,
19,
34,
38,
2,
-6,
5,
11,
-42,
7,
11,
27,
79,
-31,
4,
-1,
26,
-14,
-55,
-9,
19,
32,
-1,
9,
-27,
22,
-19,
6,
-55,
-17,
54,
-44,
-10,
16,
16,
24,
9,
31,
10,
-1,
-3,
-33,
-21,
-32,
21,
-3,
13,
-35,
39,
-14,
25,
27,
10,
44,
4,
-4,
-1,
41,
-24,
17,
40,
13,
-19,
-42,
-12,
-11,
19,
17,
-19,
-17,
0,
10,
-40,
-21,
-45,
29,
-40,
0,
0,
-8,
-3,
0,
-34,
-60,
-13,
41,
9,
-37,
53,
0,
-17,
-17,
9,
5,
-9,
29,
56,
-8,
-48,
4,
14,
-27,
-11,
-3,
22,
19,
6,
-7,
3,
-84,
-4,
50,
-4,
3,
45,
50,
5,
73,
-18,
11,
-4,
-22,
45,
-25,
45,
18,
67,
29,
-2,
18,
-13,
4,
-68,
-39,
22,
-23,
10,
23,
0,
-11,
0,
26,
0,
-6,
-15,
-7,
-15,
-76,
42,
51,
-3,
1,
-45,
24,
-46,
-46,
-40,
60,
21,
-9,
-14,
-30,
17,
8,
45,
-15,
-10,
-35,
0,
-53,
-39,
-28,
0,
-98,
13,
8,
72,
11,
-34,
15,
65,
-33,
-109,
-6,
19,
6,
-22,
16,
-19,
20,
35,
0,
26,
59,
28,
-9,
-43,
0,
39,
-71,
44,
-12,
-3,
-16,
-21,
20,
-37,
-29,
-24,
1,
11,
18,
-35,
-7,
13,
-14,
14,
-6,
-29,
-32,
10,
39,
17,
-22,
1,
-68,
-25,
5,
55,
-14,
-51,
13,
7,
-7,
51,
29,
-20,
-12,
-1,
-35,
-33,
-42,
0,
-5,
-22,
35,
-42,
-7,
-4,
6,
-13,
3,
-1,
2,
2,
-13,
-76,
5,
-30,
28,
-7,
-18,
-40,
4,
4,
-1,
-67,
60,
-35,
-38,
15,
-38,
22,
-17,
-88,
-2,
27,
10,
-36,
-5,
-8,
-6,
27,
-29,
20,
2,
-20,
-40,
-13,
26,
-28,
2,
9,
-10,
-6,
-32,
-21,
-7,
22,
-45,
-58,
-22,
35,
57,
28,
22,
-36,
5,
12,
49,
18,
-17,
22,
0,
0,
48,
7,
7,
-51,
37,
37,
12,
32,
-41,
39,
4,
-4,
-67,
-64,
-13,
47,
-14,
0,
51,
7,
-10,
-8,
32,
-24,
16,
9,
95,
-35,
25,
16,
17,
19,
20,
21,
-13,
16,
72,
57,
-2,
-13,
31,
-20,
51,
-15,
-24,
20,
-10,
-9,
46,
71,
-16,
-3,
49,
6,
-12,
21,
35,
-4,
-38,
-31,
-33,
-23,
21,
-18,
31,
28,
-22,
-38,
-5,
-8,
-2,
11,
-16,
-8,
12,
47,
-55,
-28,
-55,
-26,
17,
-10,
25,
37,
37,
41,
16,
-10,
-3,
21,
3,
-17,
50,
13,
8,
-11,
-10,
44,
-12,
-33,
3,
-3,
57,
-52,
32,
-8,
-43,
-6,
-29,
16,
-14,
43,
2,
-52,
-4,
22,
34,
-15,
-35,
58,
-10,
43,
44,
-23,
-14,
-41,
-24,
-32,
-77,
7,
39,
-35,
5,
-42,
-16,
28,
-23,
12,
-26,
-27,
-18,
-66,
-14,
39,
-3,
63,
10,
-9,
0,
6,
15,
-11,
-3,
10,
16,
-63,
-51,
-30,
15,
-22,
-11,
12,
-2,
33,
-22,
-25,
25,
2,
27,
-24,
28,
7,
-16,
-45,
-34,
11,
26,
-12,
17,
-21,
-40,
49,
-5,
20,
-8,
-30,
19,
-13,
-31,
-18,
35,
-33,
14,
-26,
6,
18,
24,
37,
-14,
-3,
8,
-16,
-19,
25,
11,
31,
28,
43,
-8,
20,
-70,
-18,
67,
-44,
-39,
-25,
-18,
13,
23,
-36,
-16,
-15,
-24,
57,
48,
17,
-84,
-7,
-12,
-104,
-12,
-6,
-21,
-44,
-39,
40,
-68,
31,
52,
35,
14,
-9,
-1,
-3,
6,
56,
-13,
30,
5,
-6,
-5,
6,
-11,
-3,
12,
7,
-10,
-17,
-14,
-39,
-35,
17,
-12,
-45,
-26,
14,
19,
32,
-60,
39,
5,
-23,
-4,
-14,
48,
-23,
-22,
-20,
4,
-8,
-16,
-25,
-7,
-9,
3,
-30,
9,
-63,
62,
-2,
30,
-16,
-8,
51,
-3,
-43,
9,
9,
13,
14,
23,
-26,
47,
30,
25,
74,
-66,
-27,
30,
40,
20,
5,
31,
0,
23,
-37,
21,
0,
4,
-43,
-6,
-16,
35,
12,
-115,
31,
-27,
51,
-36,
-14,
0,
1,
17,
-22,
-14,
30,
-7,
15,
-7,
-9,
61,
-33,
58,
-42,
37,
-32,
-11,
-44,
-63,
25,
4,
-1,
47,
22,
13,
-25,
27,
14,
-33,
-10,
7,
-12,
33,
-46,
-20,
-98,
-3,
15,
-49,
49,
17,
2,
-24,
14,
-33,
-20,
52,
30,
9,
-24,
-34,
6,
19
] |
MR. JUSTICE GALEN
delivered the opinion of the court.
This action was brought by the National Park Bank of New York as plaintiff, against the American Brewing Company, to enforce collection on a pledge of two promissory notes executed by the defendant to the Stanton Trust & Savings Bank, one for the sum of $8,000 and the other for $3,500, together with interest, attorney’s fees, and costs. Issue was joined by answer in substance a general denial, and the cause came on regularly for hearing before the court without a jury. At the conclusion of all of the evidence, the defendant asked and was granted leave to amend its answer to conform to the proof. The amendment so allowed reads as follows: “Defendant alleges that it has paid to Stanton Trust & Savings Bank the full amount due upon the promissory note dated December 6, 1922, for the sum of $8,000, being the note described in plaintiff’s alleged first cause of action, and the said note has been, and is, fully paid, canceled, and surrendered to the defendant. Defendant alleges that it has paid to Stanton Trust & Savings Bank the full amount of that certain promissory note, bearing date December 6, 1922, executed by the defendant in favor of said bank, for the sum of $3,500, being the note described in plaintiff’s alleged second cause of action, and that said note has been paid in full, canceled and surrendered unto this defendant.”
Thereafter the court entered judgment for the plaintiff for the sum of $500, attorney’s fees, and for its costs incurred in the action. The appeal is from the judgment. The only question presented for determination is whether the court erred in rendering such judgment.
It is recited in the judgment that “the court having duly considered the pleadings and the evidence, and it now appearing to the court that, although at the time of the commencement of this action there was due upon the promissory note described in the first cause of action of said complaint the sum of $8,000, with interest at the rate of nine per cent per annum from December 6, 1922, and that there was, at the time of the commencement of this action, due upon the promissory note described in the second cause of action, the sum of $3,500, with interest at the rate of nine per cent per annum from December 6, 1922, but that during the pendency of the action payment of the principal and interest of said promissory notes was made by the defendant to the Stanton Trust & Savings Bank, a corporation, but it further appearing to the court that no payment of attorney’s fees or costs has been made, and that plaintiff is entitled to recover upon said promissory notes the amount of such attorney’s fees and all costs of this action.”
It appears without dispute that the notes in suit were, on or about December 6, 1922, pledged with other collateral to the plaintiff bank as security for an indebtedness of $50,000 of George H. Stanton. They were held in trust for the plaintiff by the Stanton Bank & Trust Company at the city of Great Falls. The principal obligation not having been paid at maturity, this action was instituted on February 13, 1925, to recover the amount due on the defendant’s notes, and issue was joined hy an answer filed February 25, 1925. During the pendency of the cause, but before it had been brought on for trial, in April, 1925, Stanton made full payment of his indebtedness to the plaintiff, and all securities held in pledge were released to him. Subsequently the defendant paid its obligation in full to the Stanton bank on April 13, 1925. Notwithstanding such payments, made in adjustment of these obligations, this action was brought on for trial in March, 1926.
In each instance the notes provide: “In case of default in payment of this note, principal or interest (the maker) agrees to pay all costs and expenses of collecting the same, including reasonable attorney’s fees to be determined and fixed by the court.” And at the time of the commencement of this action neither of the notes nor interest due thereon had been paid, and since then there has been no payment made by the defendant or anyone in its behalf of any attorney’s fees or costs incurred in the action. The evidence is to the effect that no request or endeavor was made by the defendant or anyone representing it, of either the plaintiff or of the Stanton Bank & Trust Company, to have the action dismissed at the time the defendant made payment of the principal and interest due on its notes to the Stanton Trust & Savings Bank, and no suggestion that it should be dismissed was made by anyone until during the progress of the trial the defendant made such insistence.
It is necessary for us to determine whether, subsequent to the institution of this action a payment made by the defendant of the principal amount of its indebtedness with interest relieved it from the obligation of paying attorney’s fees and costs incurred in consequence of the action.
The authorities are in general accord that a pledgee may sue in his own name upon a negotiable promissory note transferred before maturity as collateral security, but we do not deem it necessary to make reference thereto, as the pledgee is expressly given such right by our statute. (Sec. 8312, Rev. Codes 1921.) And we recognize the law to be, as contended by defendant’s learned counsel, that the legal title to the notes pledged remained in the pledgor; also that the pledgee’s property interest in them was dependent upon possession. (Rairden v. Hedrick, 46 Mont. 510, 129 Pac. 498.) But in the case before us the physical possession of the pledged securities with the Stanton Bank & Trust Company was in trust for the plaintiff. They were as effectually in plaintiff’s possession as though in fact held in its own vaults. Again, it is elementary that without the existence of the principal debt the pledgee cannot enforce payment of the collateral security. (Averill Machinery Co. v. Bain, 50 Mont. 512, 148 Pac. 334.) However, in this case, the plaintiff’s rights admittedly existed when the action was commenced, for neither the principal obligation nor the amount due on these notes held in pledge had then been paid.
When the action was filed, there can be no doubt as to the plaintiff’s right to maintain the same and to recover its costs and attorney’s fees, as the notes expressly made provision therefor. The action having been properly brought in the first instance, the cause of action must be held to have survived for the amount remaining due on the notes, notwithstanding the payment of the principal amount with interest. Part payment did not meet the obligation occasioned by the institution of the action to pay the full obligation of the contract.
Under the Negotiable Instruments Act, the sum payable is made certain, although requirement is made that the amount shall be paid, together with costs and attorney’s fees. (Sec. 8409, Rev. Codes 1921; Morrison v. Ornbaun, 30 Mont. 111, 75 Pac. 953.) The attorney’s fee provision becomes effective only in the event the maker of the note himself permits the invocation of this portion of the contract by reason of Ms own failure or neglect to meet his obligation. at maturity. (Morrison v. Ornbaun, supra.) As was well observed by our present CMef Justice Callaway, when serving as a commissioner of this court, in the case last cited: “When a party executing a note containing an unconditional agreement to pay attorney’s fees, whether the amount is stated per cent, or undetermined, has failed to meet his obligation when due, and the payee, in good faith, and because he deems it necessary so to do in order to enforce collection, places the note in the hands of an attorney at law for collection, who renders professional services in and about the collection thereof, either by suit or otherwise, he must pay, in addition to the principal and interest, such reasonable attorney’s fees as shall be sufficiently adequate to compensate him for the services rendered, in order to discharge the obligation. In no event, however, shall he be liable for a greater per cent than that stipulated in the contract, where the per cent is stated; but, when unlimited, then he shall pay a reasonable attorney’s fee.”
An attorney is given a lien from the time of the comm'encement of an action upon his client’s cause of action, which cannot be affected by any settlement between the parties themselves, either before or after judgment. (Sec. 8993, Rev. Codes 1921.) In construing and applying this statute, this court has correctly stated the law applicable, substantially as follows: That, while it is elementary that the client controls the course of litigation, including compromises and settlements, in the sense that an attorney will not be permitted to stand in the way of a settlement which his client wishes to effectuate, nevertheless the settlement so made, is subject to the claim of the attorney, and the parties making settlement are bound to take notice of such claims, and neither party will be heard to make complaint of the lien which the statute gives an attorney. (Walsh v. Hoskins, 52 Mont. 198, 162 Pac. 960.) And while the obligation to pay attorney’s fees is imposed by the notes upon the maker thereof in favor of the holder, and not the attorney (Vaill v. Northern Pac. Ry. Co., 66 Mont. 301, 213 Pac. 446), yet a payment of the amount of the principal obligation by the maker to the payee during the pendency of an action to recover thereon by a pledgee, without reference to the attorneys or to the pending action, does not ipso facto discharge that portion of the contract whereby the maker agreed to pay a reasonable attorney’s fee in addition to the principal and interest due on the notes in case of default. Under such construction of the law applicable it was proper for the suit to proceed to judgment to ascertain the balance remaining to be paid on the contracts in liquidation of the amount of attorney’s fees and costs necessarily incui'red by the plaintiffs. (Downey v. Northern Pac. Ry. Co., 72 Mont. 166, 232 Pac. 531.)
However, it is vigorously argued that by independent contract, under which the notes involved were deposited and held in trust by the Stanton Bank & Trust Company, the latter bank alone had possession and exclusive right to sue thereon. In the agreement referred to, provision is made that such collateral securities “are to be lodged with first party (Stanton Bank), or its cashier, under trust receipt for collection and remittance to holder of such collateral,” and the Stanton Bank is thereby empowered to sue in the name of the pledgee to enforce payment, provided that the expense of actions so commenced should be at pledgor’s expense; the specific language of the agreement in this respect, relied upon, being as follows: “But first party (Stanton Bank) ° ° * may sue in the name of the second party bank (the plaintiff) holding any of said notes to enforce payment, but at the expense of first party.” This contention is wholly without merit. While the contract provisions gave the Stanton Bank the right to hold, collect and sue upon such notes held in pledge, yet thereby the pledgee did not surrender its legal rights in this respect. It could maintain action independently as pledgee, although during the existence of the contract under which the collateral securities were held the depositary was authorized to sue in the pledgee's name.
Rehearing denied July 16, 1927.
From all of the facts disclosed by the record, we have greatly hesitated in reaching such conclusion; but, from the undisputed facts in application of the law, we cannot do otherwise than affirm the judgment.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Myers, Stark and Matthews concur.
|
[
-24,
5,
55,
-2,
16,
0,
30,
-25,
57,
0,
1,
36,
19,
55,
-1,
7,
37,
-44,
74,
-24,
12,
-60,
9,
-40,
-12,
39,
10,
82,
31,
-14,
48,
-4,
-14,
32,
-36,
-21,
-22,
-12,
37,
-6,
26,
12,
41,
24,
-14,
43,
-7,
-70,
14,
-27,
55,
-60,
25,
-4,
-11,
1,
-16,
-3,
-75,
15,
-1,
-31,
38,
6,
4,
-54,
32,
-32,
-37,
-1,
-44,
-30,
19,
-27,
-59,
-48,
6,
22,
-80,
-25,
-17,
-30,
-25,
6,
-49,
-6,
39,
22,
21,
31,
7,
11,
13,
-11,
-9,
15,
-15,
23,
22,
30,
36,
-112,
0,
70,
52,
59,
-8,
-10,
-14,
-35,
-1,
39,
12,
-15,
-46,
0,
-61,
-21,
-12,
-41,
13,
30,
14,
-1,
-30,
16,
-74,
13,
-14,
0,
-18,
50,
-15,
48,
-25,
-33,
4,
-32,
22,
-22,
-10,
-30,
-6,
-22,
27,
0,
-4,
33,
-2,
-22,
-20,
26,
65,
40,
-33,
-35,
-48,
-83,
50,
-26,
11,
-16,
-18,
5,
17,
40,
17,
5,
64,
-12,
7,
17,
-34,
6,
-30,
7,
5,
-75,
14,
10,
5,
53,
34,
26,
48,
1,
-27,
14,
67,
-9,
5,
-21,
-3,
37,
-44,
-13,
-59,
-46,
71,
0,
-4,
-14,
7,
-4,
-48,
0,
32,
-23,
21,
55,
14,
26,
34,
-26,
-23,
-7,
42,
-48,
5,
27,
9,
-2,
-76,
0,
-23,
-13,
64,
-15,
-69,
23,
-97,
4,
20,
91,
37,
70,
46,
-5,
-25,
0,
-48,
8,
24,
-57,
-28,
-11,
-16,
13,
30,
12,
-23,
9,
-33,
32,
22,
55,
-8,
-25,
40,
-57,
20,
41,
-31,
-10,
-48,
-49,
-8,
7,
18,
44,
-32,
-72,
-1,
55,
25,
-41,
14,
-38,
1,
-30,
-3,
4,
9,
55,
39,
20,
-8,
-10,
-5,
32,
5,
11,
74,
7,
27,
17,
-38,
10,
15,
8,
-19,
-23,
25,
44,
-45,
23,
-24,
19,
-41,
-43,
16,
46,
23,
-41,
74,
7,
-24,
38,
37,
-13,
53,
15,
-26,
1,
31,
25,
25,
-47,
15,
-7,
-1,
41,
32,
27,
-51,
6,
50,
-45,
25,
20,
40,
18,
-2,
-35,
11,
-7,
-55,
-13,
-37,
24,
-55,
23,
-8,
10,
10,
65,
27,
-7,
-3,
42,
5,
11,
26,
-46,
44,
17,
-53,
8,
-2,
14,
-51,
81,
-54,
-56,
14,
4,
0,
-15,
-44,
19,
10,
-18,
32,
5,
19,
77,
22,
-43,
0,
-1,
-28,
24,
9,
76,
-54,
-9,
3,
-35,
-54,
-31,
-34,
-28,
-29,
-52,
-11,
8,
-14,
11,
-39,
22,
9,
-24,
-12,
-27,
0,
2,
10,
31,
-5,
-21,
28,
-24,
-3,
-1,
8,
-57,
33,
15,
-56,
-13,
-57,
-18,
-43,
24,
-9,
12,
30,
1,
25,
-2,
60,
87,
-26,
13,
34,
29,
-31,
-46,
73,
52,
19,
-17,
1,
-3,
-1,
0,
36,
25,
32,
-40,
2,
29,
-1,
61,
4,
39,
-13,
-6,
-12,
22,
25,
27,
10,
12,
-20,
71,
-8,
5,
11,
18,
-24,
17,
6,
12,
-43,
-5,
-58,
-39,
-45,
1,
64,
4,
22,
8,
-24,
-24,
-38,
-63,
-40,
-8,
-27,
-9,
-37,
17,
-37,
-3,
16,
-58,
50,
18,
-10,
36,
28,
-1,
31,
2,
-38,
25,
31,
51,
8,
-5,
-10,
36,
-47,
-21,
24,
69,
20,
-36,
-14,
25,
-37,
12,
-6,
-28,
24,
-8,
-2,
-4,
-36,
-16,
4,
59,
-17,
-21,
0,
-22,
42,
12,
-21,
-83,
13,
64,
-18,
-33,
9,
-23,
-8,
-41,
26,
47,
-54,
-36,
11,
-17,
27,
-16,
-41,
-63,
-32,
-6,
-42,
-3,
-7,
-47,
2,
-40,
-8,
-45,
-22,
-20,
-20,
-37,
-18,
65,
24,
8,
-48,
-3,
13,
7,
-49,
12,
37,
5,
-7,
-15,
14,
60,
-20,
45,
-17,
-1,
-41,
-63,
-45,
37,
-12,
-1,
15,
22,
22,
13,
-44,
-75,
-24,
-10,
25,
7,
0,
62,
-12,
49,
20,
-4,
-61,
-7,
19,
66,
22,
-39,
-3,
-21,
-6,
34,
3,
23,
-12,
-45,
-17,
0,
26,
-26,
-70,
-8,
16,
2,
18,
-1,
16,
51,
67,
-53,
-19,
-11,
21,
-19,
50,
-26,
-17,
-23,
-25,
26,
-20,
6,
40,
10,
-19,
3,
69,
-23,
18,
-11,
56,
15,
30,
74,
-21,
34,
-86,
-42,
-41,
79,
-16,
-64,
18,
-8,
0,
27,
29,
9,
-30,
-4,
-17,
40,
32,
44,
-34,
6,
11,
-34,
33,
4,
-28,
2,
-31,
9,
-39,
11,
74,
-45,
-60,
-28,
-25,
-82,
52,
12,
-16,
10,
-24,
16,
25,
5,
-47,
25,
-3,
31,
-27,
23,
-21,
45,
-18,
41,
-26,
-10,
-10,
-60,
33,
-33,
-17,
48,
16,
-27,
-43,
-22,
-62,
5,
-9,
21,
12,
-2,
5,
-2,
-3,
19,
-47,
-9,
1,
22,
-20,
70,
-21,
-14,
-50,
46,
-2,
-28,
-31,
25,
2,
-36,
29,
7,
-25,
11,
-7,
-48,
31,
33,
-29,
-1,
-11,
-35,
49,
-16,
5,
63,
6,
57,
-37,
-45,
-19,
-23,
16,
34,
18,
18,
15,
-20,
-14,
-12,
7,
22,
25,
-24,
20,
25,
46,
11,
-47,
-44,
62,
-28,
-17,
7,
-34,
-13,
-7,
-62,
-72,
54,
15,
14,
37,
-5,
-41,
20,
-12,
-7,
32,
-30,
-34,
-17,
-6,
32,
34,
-18,
7,
-41,
-3,
-23,
-49,
45,
7,
-11,
1,
48,
-22,
0,
-8,
62,
12,
-26,
-49,
-19,
1,
-17,
-19,
21,
20,
41,
6,
5,
64,
10,
-22,
-8,
-35,
30,
-4,
24,
47,
6,
-26,
40,
54,
-79,
44,
-6,
-56,
27,
25,
-30,
-22,
-13,
64,
11,
-33,
16,
3,
-15,
-18,
-16,
-14,
-46,
-18,
-32,
49,
18,
-2,
-52,
25,
-28,
8,
19,
22,
45,
-2,
53,
27,
-30,
20,
-45,
-9,
60,
25,
-34,
17,
9,
16,
-27,
-1,
-15,
-26,
-36,
-48,
27,
-13,
29,
3,
21,
57,
7,
9,
37,
-32,
0,
-3,
-17,
47,
-48,
35,
20,
-12,
-17,
-22,
-30,
31,
-5,
-20,
14,
13,
28,
38,
-40,
-36,
-7,
12,
31,
-42,
30,
-12,
-16,
-11,
-19,
11,
-30,
83,
17,
-18,
-4,
15,
0,
-76,
48,
66,
-43,
-28,
-20,
50,
-14,
-39,
12,
-27,
-9,
-7,
39,
12,
23,
20,
9,
-14,
-11,
-2,
21,
62,
-40,
-7,
-21,
-44,
-22,
-4,
-4,
-68,
-77,
-42,
28,
-37,
16,
18,
-32,
9,
38,
2,
23,
0,
20,
-13,
-2,
-37,
9,
-65,
73
] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
The plaintiff brought this suit against the city of Sidney asking the court to declare null and void a city ordinance, and to restrain the city from interfering with plaintiff in making repairs upon her building damaged by fire. It appears from the complaint that on January 7, 1926, fire, originating in another building, burned, scorched and charred some of the wooden studding, top sills, rafters and part of the roof of plaintiff’s building. In order to make repairs the parts damaged will have to be replaced and a few sheets of metal siding supplied; otherwise the building is in good serviceable condition. The cost of making the repairs will be $800. The actual value of the building at the time of the fire was $4,200. Its value as entered on the last assessment-roll of Richland county was $1,800. The damage done to the building by the fire is 19.04 per cent of the actual value and 44.44 per cent of the assessed value. On January 18, 1926, the city council of Sidney enacted and the mayor approved an ordinance establishing fire limits within the city “and regulating the construction, repairs and moving of all buildings within such fire limits; defining the boundaries of such fire limits, and providing penalty for the violation of this ordinance.” Section 1 recites that for the purpose of minimizing the danger and protecting property from fire within the city limits, a fire district is created, the limits of which are described. Plaintiff’s property is within the district. Section 4 prohibits the erection of wooden buildings in the district, and section 5 provides in part that it shall be unlawful to repair, change or alter any wooden or frame building within the fire limits if in the opinion of the majority of the city council “such building has been damaged from any cause to the extent of thirty-five per cent of the value of such building according to the last assessment roll of the county of Richland; and any such building shall be torn down and removed, if in a dangerous condition, when so ordered by said city council.”
It is provided that repair of wooden buildings within the fire limits, the cost of which will not exceed $25, may be made without notice to or the permission of the council, with certain exceptions. Section 6 declares that “no building shall, after the passage and approval of this ordinance, be erected, enlarged, repaired, changed or moved within the fire limits of said city of Sidney until a permit for the erection, enlarging, repairing, changing or moving of such building shall have first been ob tained from the city council of said city of Sidney; which permit shall be issued and recorded by fhe city clerk,” and that before permit is issued the owner of the building shall give to ,the city a bond or undertaking in the sum of $3,000 with good and sufficient sureties, to be approved by the city council, “conditioned among other things that the owner or owners of such building, their agents and employees, will pay any and all damages which may be caused to any property, either private or public, within said city of Sidney, and conditioned also, that the owner or owners of such building, their agents or employees, will save and indemnify and keep harmless the city of Sidney against all liabilities, judgments, costs and expenses which may in anywise accrue against said city of Sidney on account of the granting of such permit, or which may result from the acts of such owner or owners, or their agents or employees on account of the work of such building, repair, alteration, change or moving thereof.” Section 7 provides penalties for a violation of the ordinance.
It is alleged that plaintiff desires to make the necessary repairs on the building but the city threatens to prevent her from doing so, and has threatened to arrest her if she attempts to do so, and threatens to declare the building a nuisance and to order its destruction or removal even though it be repaired, and the city threatens to tear down and remove the same if plaintiff does not do so when so ordered by the city council; because of these threats plaintiff has been prevented from repairing the building. The city’s demurrer to the complaint was sustained, and plaintiff refusing to plead further, judgment was entered dismissing the complaint. From this judgment the plaintiff has appealed.
The plaintiff contends that the ordinance deprives her of her property without due process of law, contrary to Article XTY of the Constitution of the United States, and section 27 of Article III of the Constitution of Montana.
Municipal corporations, under the powers usually conferred upon them, may prohibit the erection of wooden buildings within prescribed fire limits. “Many cases hold that the power to make such regulations is inherent in the municipal corporation and is implied from its mere creation. Some cases have denied that the power arises by implication.” (McQuillin on Municipal Corporations, sec. 948.)
The power is expressly conferred in Montana. Section 5039, Revised Codes 1921, provides in part: “A city or town council has power: * * * 26. For the purpose of guarding against fire to prescribe the limits within which wooden or combustible buildings must not be erected, placed or repaired and to establish fire limits within the city or town.”
That under this statute a city may enact an ordinance wholly forbidding the erection of wooden buildings within fire limits is undoubted. But may the city wholly prohibit the repair of a building lawfully erected and existing before thA creation of fire limits and the inclusion of the building therein? The statute does not place any limitation upon the city’s power in this respect. If the power is limitless, the city may prohibit any repairs upon a wooden building, no matter how inconsequential. But this cannot be. An ordinance so declaring would be unreasonable. Its operation in' many instances would be oppressive. If but a small portion of the roof of plaintiff’s house were damaged, but to such an extent as to admit the rain, the house might be rendered untenantable and practically useless without repair. An expense of fifty dollars might fully repair the. damage. If the city could prevent the repair, plaintiff would lose the use of her building; her loss virtually (if not, indeed, actually) would be total (Hamburg-Bremen Fire Ins. Co. v. Garlington, 66 Tex. 103, 59 Am. Rep. 613, 18 S. W. 337; Mr. Justice Campbell in Brady v. North Western Ins. Co., 11 Mich. 425; Larkin v. Glens Falls Ins. Co., 80 Minn. 527, 81 Am. St. Rep. 286, 83 N. W. 409); the city’s action would amount to depriving plaintiff of her property without compensation.
“The constitutional guaranty that no person shall be deprived of his property without due process of law may be violated without the physical taking of property for public or private use. Property may be destroyed, or its value may be annihilated; it is owned and kept for some useful purpose and it has no value unless it can be used. Its capability for enjoyment and adaptability to some use are essential characteristics and attributes without which property cannot be conceived; and hence any law which destroys it or its value, or takes away any of its essential attributes, deprives the owner of his property.” (Matter of Application of Jacobs, 98 N. Y. 98, 50 Am. Rep. 636.)
“Laws enacted in the exercise of the police power, whether by municipal corporations acting in pursuance of the laws of the state or by the state itself, must be reasonable, and are always subject to the provisions of both the federal and state constitutions, and they are always subject to judicial scrutiny.” (McCray v. City of Chicago, 292 Ill. 60, 126 N. E. 557; 6 R. C. L. 244.)
The question of the reasonableness of the ordinance was in the first instance for the determination of the city council, and in the absence of a clear showing to the contrary its reasonableness will be presumed. (City of Butte v. Paltrovich, 30 Mont. 18, 104 Am. St. Rep. 698, 75 Pac. 521; McCray v. City of Chicago, supra.) “The power of the court to declare an ordinance void because it is unreasonable is one which must be carefully exercised. When the ordinance is within the grant of power conferred upon the municipality, the presumption is that it is reasonable unless its unreasonable character appears upon its face. But the courts will declare an ordinance to be void because unreasonable upon a state of facts being shown which makes it unreasonable.” (2 Dillon on Municipal Corporations, 5th ed., sec. 591.)
The eases hold without exception, so far as we are aware, that minor repairs upon wooden buildings cannot be prohibited. As to major repairs, those which amount to a large percentage of the value of the buildings, the authorities are not altogether in harmony. In the note to Crossman v. City of Galveston, 112 Tex. 303, 26 A. L. R. 1220, 247 S. W. 810, it is said: “Of course, • no fixed percentage can be indicated as the point at which repairs cease to be of a minor nature which cannot be prohibited, but ordinances have sometimes prohibited repairs éxceeding a certain percentage value of the building, as thirty or fifty per cent. It would seem that repairs even of a much smaller nature, may, according to some of the authorities, be prohibited.”
A distinction is made between repairs upon buildings lawfully erected before inclusion within the fire limits and those created thereafter. Those who erect buildings within a fire district must be held to have done so in contemplation of ordinances governing the same.
In the well-considered case of Russell v. City of Fargo, 28 N. D. 300, 148 N. W. 610, the court said: “It must be remembered also that a very different rule applies to buildings erected before the enactment of the ordinances fixing the fire limits, from that applicable to those erected subsequent to the passage of such
ordinances. Statutory provisions giving municipal corporations power to prescribe fire limits and direct the removal of buildings therein, which may be damaged to a certain extent, should receive a strict construction in favor of the owners of such buildings. (Louisville v. Webster, 108 111. 414; McEwan v. Gilker, 38 Ind. 235; Hooper v. Emery, 14 Me. 375; Robb v. Indianapolis, 38 Ind. 51; Frank v. Atlanta, 72 Ga. 428; Wood, Nuisances, see. 738.) When the law gives city officials the power to remove a building erected within the fire limits in violation of the statute or ordinance, the power to compel the removal of the building grows solely from the fact that its erection was in violation of the ordinance, and not because it is a nuisance; and the power to abate nuisances does not warrant destruction of valuable property, which was lawfully erected, or anything which was erected by lawful authority; and the power to do so, when given by the legislature, is held to be inoperative and void, unless the thing is in fact a nuisance, or was created or erected after the passage of the ordinance, and in defiance of it. This is the distinction between the, rights of the city regarding buildings erected before the fire limits were established and those subsequently built. (Wood, Nuisances, 823; First Nat. Bank v. Sarlls, 129 Ind. 201, 2'8 Am. St. Rep. 185, 13 L. R. A. 481, 26 N. E. 434.) ”
In Crossman v. City of Galveston, supra, the court said: “The building having been lawfully erected before its locality was included within the fire limits, it could not, merely because of wooden construction, be condemned as a nuisance, nor could the right of repair be denied unless the repair should amount to a substantial reconstruction of the building.”
But even as to buildings lawfully erected and existing when included within the fire limits it may not be doubted that cities may exercise a reasonable control over the making of repairs, and may prevent repairs which will- increase fire hazards or create nuisances. But an ordinance' which arbitrarily deprives the city council of the right to exercise its discretion in granting the owner of the building the right to repair if it has been damaged to exceed a certain percentage of its value, unless the loss is so great as to require a practical reconstruction of the building, is not reasonable. The municipality may require the property owners to obtain a permit before proceeding with his repairs. It may prescribe reasonable regulations as to how the repairs shall be made and within reasonable limitations the character of the material which shall be used. It may fix a point at which the council in its discretion may reasonably refuse to grant a permit for the repair. But it is a fallacious notion that a building not so seriously damaged that its repair will entail practical reconstruction may be doomed to go to rack and ruin, thus becoming a nuisance.
As the court said in First National Bank v. Sarlls, supra: “If it is lawful to maintain it without repairs, how can the police power afford any justification for a refusal to allow its owner to remedy the effects of accident or decay and restore it to a sound condition? To hold that this was a proper exercise of the police power would be to pervert entirely the use of that power which is designed to protect society and prevent the doing of things inimical to its well-being. Such an ordinance might in many eases compel the owner of valuable prop erty to stand by and allow it to become valueless, and a nuisance, without the power to prevent it.”
The ordinance at bar does not base its percentage upon the true value of the building but upon its value “according to the last assessment-roll of the county of Richland.” That an assessment-roll is not a true criterion of value everybody knows. “All taxable property must be assessed at its full cash value,” according to the statute (sec. 2001, Rev. Codes 1921). The fallibility of human action is exposed, to a greater or less extent, in every tax roll. Some property is assessed too high, some too low. In this case it is admitted that the actual value of the property is $4,200, while the assessed value is $1,800. This ordinance arbitrarily denies to the city council the right to exercise its discretion in the matter of issuing a permit where the damage is thirty-five per cent of the assessed value. Clearly the ordinance upon this feature is arbitrary and unreasonable.
Nor can we sustain the provision of the ordinance which requires the owner of the building, before the permit is issued, to give to the city an undertaking in the sum of $3,000. Conceding that it is within the power of the city council to require a bond suitable to the conditions which obtain, it cannot be admitted that a $3,000 bond may be required in every case. Suppose, for instance, that a repair entailing an expense of $35 must be made upon the roof of a one-story wooden building — can any condition be supposed which would justify the requirement of a $3,000 bond before the owner is permitted to undertake the repair? Numerous other examples might be cited under which it cannot be imagined that the city could be liable. Why, then, should a bond be required in such case? The unreasonableness of this provision of the ordinance is too clear for argument.
It follows that the court was in error in sustaining the demurrer and entering judgment in favor of the city. As to the plaintiff the ordinance, in the particulars noted, is inoperative, and therefore the city can have no defense against the action brought. The plaintiff is entitled to judgment in accordance with the prayer of her complaint.
The judgment is reversed and the cause is remanded, with the direction that the district court of Richland county enter judgment in favor of the plaintiff.
Reversed and remanded, with direction.
Associate Justices Myers, Stark, Matthews and Galen concur.
|
[
-42,
9,
14,
6,
36,
56,
-40,
-52,
38,
-44,
20,
-25,
-3,
-15,
15,
-5,
-24,
2,
-8,
0,
19,
-38,
-3,
-58,
-52,
25,
22,
11,
-34,
0,
-1,
12,
9,
32,
-15,
52,
-57,
37,
-10,
31,
0,
-21,
41,
-20,
15,
46,
35,
12,
73,
34,
-37,
35,
-6,
4,
-10,
34,
0,
45,
-30,
-5,
-11,
3,
0,
32,
18,
17,
11,
-16,
-7,
-41,
30,
0,
30,
-50,
4,
4,
-13,
-50,
-46,
10,
-70,
32,
-24,
32,
-92,
-19,
-6,
-56,
-31,
33,
-70,
26,
73,
99,
42,
11,
-34,
8,
13,
32,
41,
2,
7,
20,
-13,
-6,
-5,
17,
49,
11,
-32,
33,
-17,
37,
-8,
19,
42,
-38,
7,
75,
7,
37,
-35,
-70,
-23,
34,
30,
-14,
61,
-74,
-20,
16,
-28,
78,
37,
-41,
10,
31,
36,
60,
11,
-8,
-49,
13,
-18,
-15,
-40,
7,
-77,
0,
-47,
30,
57,
-8,
-13,
-35,
-20,
-20,
18,
-42,
6,
-28,
-12,
-5,
-20,
-20,
-10,
21,
9,
41,
32,
-47,
4,
-18,
33,
13,
-43,
-92,
-66,
15,
-21,
1,
14,
-45,
14,
-57,
-9,
24,
27,
28,
87,
-35,
-88,
-47,
-27,
14,
2,
10,
-25,
-18,
-19,
18,
2,
-26,
-3,
-18,
-43,
2,
43,
30,
6,
-48,
-27,
34,
16,
60,
39,
25,
-27,
-11,
43,
19,
-34,
22,
-20,
-5,
9,
-19,
94,
-33,
-59,
18,
12,
-32,
25,
10,
18,
42,
-36,
0,
6,
66,
-27,
21,
-23,
7,
-12,
16,
20,
-22,
-13,
-40,
12,
10,
3,
59,
-9,
33,
17,
-19,
54,
-40,
32,
-20,
15,
-18,
-9,
-23,
2,
39,
-60,
12,
-2,
11,
-53,
-8,
-27,
11,
-14,
36,
-65,
-67,
-22,
11,
60,
41,
36,
43,
-27,
-49,
-18,
-25,
-2,
-13,
18,
41,
15,
50,
43,
-20,
-51,
-16,
-10,
11,
-5,
-40,
-23,
7,
-10,
19,
-9,
28,
25,
16,
5,
-30,
5,
61,
-48,
-87,
60,
13,
-34,
55,
-68,
-21,
55,
41,
-16,
41,
-12,
44,
-11,
40,
10,
49,
50,
11,
-2,
-25,
45,
19,
92,
22,
-18,
33,
-30,
-3,
-39,
16,
-34,
-15,
-8,
41,
-37,
0,
25,
48,
26,
37,
66,
60,
24,
-13,
20,
-15,
-10,
-3,
-15,
-11,
-22,
-17,
-25,
58,
86,
8,
-9,
-8,
-10,
58,
27,
-40,
2,
-39,
47,
-24,
6,
-81,
-83,
-60,
-11,
-7,
22,
28,
-43,
-57,
-35,
-22,
13,
-2,
-13,
4,
-51,
17,
-49,
57,
-40,
69,
22,
-2,
4,
-25,
22,
-50,
9,
31,
-46,
0,
16,
64,
25,
-24,
45,
-49,
-32,
-46,
-37,
25,
-25,
-12,
-10,
11,
10,
33,
-29,
-1,
-5,
-11,
-29,
-42,
-26,
68,
-25,
47,
-9,
41,
6,
77,
7,
55,
15,
-1,
68,
13,
50,
10,
13,
19,
76,
-11,
27,
-20,
-70,
14,
-35,
44,
-52,
6,
21,
8,
-41,
16,
-15,
-68,
-13,
-41,
-1,
-83,
19,
-9,
34,
39,
18,
34,
-27,
23,
-5,
24,
5,
-35,
39,
38,
12,
-43,
21,
-1,
-20,
47,
-20,
-11,
-30,
-14,
-49,
-14,
-1,
-30,
-20,
13,
16,
73,
22,
26,
35,
-21,
31,
-10,
22,
9,
24,
-35,
-21,
-61,
-87,
1,
22,
-10,
-2,
35,
-6,
1,
-52,
-60,
-45,
-29,
-35,
26,
78,
74,
29,
-19,
-7,
-36,
-48,
-7,
-17,
-29,
-2,
20,
-3,
49,
8,
-20,
-27,
-40,
-22,
13,
-52,
-14,
22,
46,
14,
41,
5,
-9,
1,
59,
-24,
-24,
-14,
15,
-6,
-26,
-35,
-11,
-33,
-80,
-56,
-18,
-6,
-11,
45,
-63,
23,
-9,
8,
12,
35,
-31,
-38,
75,
-11,
49,
-33,
27,
-18,
2,
-40,
-15,
-3,
-6,
-47,
-56,
4,
3,
-5,
34,
-4,
0,
38,
-3,
-30,
-10,
-54,
-22,
-6,
69,
-7,
21,
76,
-14,
7,
-56,
-9,
17,
29,
13,
-4,
-8,
-50,
15,
-5,
17,
-4,
21,
21,
10,
60,
46,
-1,
28,
-33,
-1,
-15,
-10,
-49,
30,
5,
46,
-38,
32,
-13,
-54,
-23,
-31,
11,
7,
68,
26,
7,
-66,
-24,
0,
9,
23,
-42,
-45,
31,
77,
0,
60,
-9,
-42,
-26,
0,
-10,
-15,
-65,
30,
9,
-14,
61,
-32,
-42,
37,
-8,
-81,
-20,
-22,
8,
-25,
14,
-68,
19,
35,
43,
37,
-10,
57,
7,
3,
32,
-16,
45,
-47,
-63,
55,
-10,
-22,
24,
-58,
9,
-1,
-52,
-37,
0,
-43,
13,
-8,
-14,
36,
18,
-35,
-5,
-19,
-57,
-23,
21,
3,
6,
26,
-22,
41,
-62,
-27,
-55,
-27,
-89,
26,
58,
-10,
-52,
14,
28,
-13,
-54,
-3,
55,
-16,
-44,
-28,
-11,
-55,
1,
-54,
-11,
-7,
-48,
54,
0,
-11,
15,
12,
1,
6,
-14,
6,
77,
-14,
-43,
-34,
48,
47,
20,
-20,
63,
-5,
27,
-16,
-17,
-16,
40,
-59,
-25,
-19,
-42,
26,
48,
29,
19,
5,
-49,
20,
9,
-30,
-27,
-23,
-42,
-7,
-3,
-26,
-4,
32,
17,
3,
36,
14,
-34,
16,
21,
-1,
-27,
0,
17,
6,
-12,
-19,
-35,
11,
-48,
39,
0,
-3,
-26,
41,
56,
14,
15,
3,
-18,
16,
28,
-39,
-26,
-46,
-15,
-27,
-63,
33,
35,
8,
2,
1,
21,
32,
-1,
-61,
-29,
-29,
-36,
46,
-36,
40,
64,
-14,
-85,
17,
111,
-38,
59,
-21,
28,
51,
17,
18,
-14,
17,
-14,
-30,
0,
58,
12,
46,
9,
19,
-3,
88,
-34,
-48,
68,
-34,
21,
-48,
-25,
-18,
-5,
-14,
-59,
20,
3,
77,
24,
24,
59,
54,
-25,
-24,
-41,
-2,
36,
-74,
29,
-38,
16,
14,
2,
-29,
80,
22,
-25,
31,
-24,
-23,
-68,
-28,
-31,
32,
-46,
-68,
-5,
24,
26,
1,
24,
-52,
-32,
-21,
-23,
42,
-43,
49,
-34,
-28,
16,
45,
28,
-42,
21,
-14,
-26,
-16,
-4,
-31,
103,
38,
-49,
5,
20,
-30,
-19,
13,
9,
4,
48,
53,
-10,
26,
-3,
57,
-14,
34,
-52,
30,
64,
-47,
-3,
-23,
52,
6,
21,
-29,
-45,
18,
65,
25,
-44,
55,
-14,
-69,
26,
38,
0,
6,
28,
13,
-28,
-7,
3,
-12,
0,
-6,
27,
-99,
-32,
-41,
-75,
-6,
-54,
6,
11,
30,
10,
34,
-25,
-12,
-15,
-59,
32,
-11,
30,
-10,
-13,
72,
24,
-38,
1,
-9,
27,
62,
-28,
-62,
48,
-17,
8,
32
] |
MR. JUSTICE MATTHEWS
delivered the opinion of the court.
Appeal from judgment in favor of plaintiff. The complaint filed herein alleges that in October, 1923, plaintiff was employed by defendant, a foreign corporation, to act as its salesman in Montana on commission of eight per cent of the gross sales made; that up to February, 1924, he made sales totaling $12,-191.86, entitling him to commissions amounting to $975.35. It is then alleged that “some of the orders” were to be, and were, delivered between the date thereof and July 1, 1924, on which date the total of the commissions became due and payable; that no part thereof has been paid except the sum of $519.15; and that there is due and payable to plaintiff from defendant the sum of $456.20, no part of which has been paid. Defendant interposed a general demurrer, which was overruled, and thereupon filed a general denial.
A trial was had in due course of time, resulting in verdiet for plaintiff for $393.69, with interest at eight per cent per annum from January 23, 1925, to date of judgment, and judgment entered thereon. From this judgment defendant has appealed. The specifications of error assigned and urged will sufficiently appear hereinafter.
1. The first specification predicates error on the action of the court in overruling the demurrer to the complaint. Defendant contends that a “sale” includes an order obtained, accepted, and filled by the shipment of the goods; that the complaint shows only orders obtained, and affirmatively alleges that only “some of the orders” were filled. We do not think the allegations of the complaint open to such interpretation; it is not a model pleading, but it does allege that sales were made to the full extent of the amount stated, and the reasonable inference is that the allegation concerning delivery of some of the goods between the date of the order and July 1, 1924, was made for the purpose of fixing the time when the full amount of the commissions was due and the time from which plaintiff might he entitled to interest, and he proceeds to claim interest from that date.
Sections 9164 and 9191, Revised Codes of 1921, abolish the rigorous rules of the common law requiring the pleading to be construed most unfavorably to the pleader, and require that the allegations be liberally construed with a view to substantial justice between the parties (Daniels v. Andes Ins. Co., 2 Mont. 78; Doane v. Marquisee, 63 Mont. 166, 206 Pac. 426), and “whatever is necessarily implied by a statement directly made, or is reasonably to be inferred therefrom, is to be treated as averred directly” (Connelly Co. v. Schlueter Bros., 69 Mont. 65, 220 Pac. 103). Under these rules of construction the complaint is sufficient to withstand the attack made by general demurrer.
2. Under the second specification of error it is contended that the evidence does not warrant a verdict in excess of $240.42 with interest. The defense was made by depositions of officers of the defendant, in which it is stated that attached thereto appear copies of all orders and contracts secured by plaintiff and received and filled by defendant. These exhibits show that the orders were taken on order blanks numbered consecutively; that orders numbered 1 to 212 were received and filled, with the exception of orders numbered 11, 208 and 210. The deposition of the manager of defendant shows that order numbered 208 was rejected because the customer was found to be financially irresponsible, but is silent as to orders numbered 11 and 210. Plaintiff produced his original carbon copies of these two orders showing that they were given by customers from whom other orders were received and filled. He testified that order numbered 11 was mailed to defendant in the same envelope with orders numbered 9 and 10, which were accepted and filled, and produced a letter from the defendant acknowledging receipt of order numbered 210 and stating that it would receive attention.
By the testimony of both plaintiff and the manager it appears that plaintiff was authorized to take orders for future delivery at a given figure and thus protect the customer from an advance in price, and that plaintiff was entitled to credit for all orders obtained during his term of employment and filled either at the time of receipt or at a future date, and that the defendant had the right to reject orders if the financial standing of the customer was not satisfactory to the credit man. Order numbered 208 was, therefore, properly rejected, but it was not attempted to show that either order numbered 11 or order numbered 210 was rejected on this ground, and it clearly appears that they could not be so rejected. By this testimony plaintiff made out a prima facie case as to orders numbered 11 and 210, and, in the absence of any showing to the contrary, the jury was justified in presuming from this evidence that the orders were received and filled by defendant. This presumption is fortified as to order numbered 210 by a letter from defendant to plaintiff in which it is stated: “Because you went ahead and boohed contracts up to July 1 does not mean that you would receive credit for shipments made after you had severed your connection with us,” etc.
Under the testimony of the manager the severing of plaintiff’s connection with defendant would not be good cause for refusing payment for services properly performed and .completed during the term of employment. And this is the rule even though the employment of an agent is terminated by the principal for misconduct in other matters. (1 Mechem on Agency, sec. 1547.) The evidence justified the verdict for the principal sum awarded.
3. It is next contended that the complaint is insufficient to justify an award of interest for the period antedating the commencement of the action, as it is not therein alleged that a demand was made upon defendant for payment.
We need not here discuss the necessity of demand, as the court instructed the jury, without objection by the defendant, that “you may or may not in your discretion allow interest on such amount as you find unpaid, at eight per cent per annum from January 23, 1925.” Plaintiff claimed that on that date he made demand through his attorney. Whether right or wrong, this instruction became the law of the case (Shipler v. Potomac Copper Co., 69 Mont. 86, 220 Pac. 1097; Wray v. Great Falls Paper Co., 72 Mont. 461, 234 Pac. 486), and the defendant cannot now question the correctness of the judgment based upon the verdict rendered in conformity with such instruction. '
4. Defendant predicates error upon the inclusion in an in struction of .the statement that it was the duty of the defendant to notify plaintiff of its refusal to accept or execute orders submitted, and that the retention of orders without such notice constituted implied acceptance. There is nothing in the record to show that the agreement between plaintiff and defendant as a matter of fact imposed such a duty upon defendant, and the question as to whether such a duty was imposed as a matter of law is not necessary of determination, as the instruction does not cover any issue presented to the jury. As order numbered 208 was the only one shown to have been refused, this instruction could only apply to that order, but that order was withdrawn from the consideration of the jury and only the differences as to orders numbered 11 and 210 were submitted for their determination, and, as stated above, on those orders the issue was as to whether they were received and filled by the defendant, and the evidence was sufficient to warrant the jury in finding that they were. Under the circumstances the jury could not have been misled by the instruction; the verdict was just as it should have been without the instruction. While the instruction was inappropriate, the giving thereof was harmless error under the circumstances; it did not affect the substantial rights of the parties. (Surman v. Cruse, 57 Mont. 253, 187 Pac. 890; Kansier v. City of Billings, 56 Mont. 250, 184 Pac. 630; McInness v. Republic Coal Co., 49 Mont. 112, 140 Pac. 235.)
For the reasons stated, the judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Myers, Stark and Galen concur.
|
[
-40,
-13,
8,
-12,
0,
-36,
54,
-18,
15,
30,
24,
45,
-14,
39,
4,
-14,
21,
-37,
50,
-20,
15,
-49,
-31,
-35,
-39,
-29,
-18,
-23,
18,
40,
-7,
26,
15,
-25,
13,
59,
-45,
-15,
38,
-10,
41,
11,
2,
8,
-5,
-4,
33,
-68,
75,
0,
71,
-38,
19,
22,
-19,
-25,
4,
21,
-26,
18,
-21,
-40,
38,
23,
26,
-51,
-2,
-5,
5,
48,
-49,
-12,
21,
9,
-3,
-14,
-41,
-44,
-53,
9,
-4,
-16,
28,
-2,
-30,
53,
-17,
-21,
6,
27,
0,
13,
13,
-9,
32,
-2,
24,
10,
-29,
9,
72,
-11,
-47,
7,
-2,
7,
-50,
-6,
2,
22,
3,
14,
-19,
-11,
-14,
33,
-48,
7,
-15,
-17,
18,
40,
12,
19,
0,
0,
-17,
-2,
-15,
23,
-5,
30,
0,
31,
-53,
12,
-48,
-22,
16,
4,
32,
-6,
-18,
-7,
-15,
21,
20,
36,
-87,
-52,
-15,
-30,
-1,
52,
8,
-61,
26,
-39,
43,
-67,
35,
-19,
39,
12,
9,
37,
-17,
-45,
-9,
-8,
-6,
-11,
-32,
-3,
43,
41,
19,
-74,
-14,
-28,
-36,
23,
4,
-42,
27,
23,
26,
-10,
13,
-10,
40,
-11,
24,
41,
-60,
4,
13,
6,
54,
-3,
8,
-33,
-19,
21,
-63,
13,
-4,
15,
26,
15,
-18,
-38,
24,
-48,
5,
6,
-46,
-12,
-24,
20,
26,
-6,
-31,
38,
1,
-54,
27,
38,
-35,
39,
-62,
41,
7,
14,
25,
-2,
37,
0,
-23,
4,
-19,
-46,
-25,
-49,
-2,
49,
-27,
-11,
7,
0,
-18,
12,
13,
23,
-21,
-32,
5,
-5,
-58,
-20,
5,
18,
-8,
34,
2,
-38,
12,
-31,
-3,
25,
-42,
-10,
26,
36,
-27,
-48,
23,
-2,
67,
-38,
5,
-59,
1,
6,
2,
-28,
20,
52,
-41,
6,
18,
-9,
53,
17,
63,
42,
6,
41,
4,
2,
-47,
-38,
6,
2,
-15,
31,
-31,
-19,
-14,
-18,
-26,
-25,
10,
-41,
36,
-1,
-16,
-6,
42,
-2,
24,
62,
28,
35,
3,
-3,
-4,
-22,
63,
-65,
19,
-4,
-22,
-23,
-20,
-19,
23,
-15,
19,
-9,
2,
33,
-15,
-10,
-23,
31,
29,
-46,
-3,
11,
28,
28,
6,
29,
19,
43,
40,
-42,
-48,
29,
52,
14,
24,
-39,
7,
34,
-30,
2,
-36,
32,
-41,
45,
-5,
-15,
-5,
-37,
-24,
-15,
-41,
35,
18,
-16,
7,
-21,
2,
28,
-2,
-24,
17,
1,
-22,
45,
37,
47,
-39,
-5,
-14,
-43,
-25,
1,
12,
36,
-13,
-30,
-1,
-28,
36,
7,
-13,
7,
-14,
-62,
-11,
-12,
3,
-41,
19,
40,
13,
14,
80,
-12,
-2,
12,
58,
-39,
54,
-13,
-23,
7,
-26,
24,
-16,
-19,
-62,
-20,
13,
-13,
-1,
2,
65,
47,
-70,
40,
34,
-17,
-3,
1,
52,
0,
54,
-21,
31,
4,
10,
43,
21,
-12,
-15,
-43,
32,
9,
0,
15,
-23,
25,
97,
-32,
25,
43,
-43,
35,
17,
-7,
-27,
55,
-41,
-49,
3,
-4,
-86,
-2,
-16,
2,
-11,
-22,
-50,
-6,
-49,
17,
8,
-5,
-10,
-18,
-45,
-25,
-7,
-49,
5,
-11,
-34,
-54,
55,
37,
-3,
-10,
25,
-19,
7,
28,
8,
15,
18,
-8,
4,
22,
-15,
48,
-8,
68,
18,
6,
-21,
14,
-9,
-3,
0,
-14,
79,
-30,
-52,
23,
-25,
-2,
-1,
-1,
44,
-7,
14,
-23,
-1,
12,
-6,
19,
10,
36,
-31,
24,
51,
-11,
51,
3,
20,
-18,
8,
9,
21,
24,
-28,
22,
25,
39,
-14,
-17,
64,
-18,
-7,
-12,
-10,
27,
-14,
15,
1,
9,
-5,
-19,
-26,
-11,
27,
-45,
-18,
-25,
0,
-46,
-18,
12,
24,
28,
-32,
12,
5,
-44,
1,
21,
3,
-3,
-32,
-6,
-3,
-4,
-22,
25,
-35,
16,
-13,
-13,
-61,
84,
28,
-2,
16,
8,
18,
-18,
16,
-10,
-15,
-23,
20,
-4,
15,
-22,
-7,
29,
-1,
-16,
-35,
-30,
-44,
35,
0,
1,
-2,
0,
11,
44,
16,
22,
-70,
-35,
11,
34,
44,
-11,
-14,
-17,
11,
38,
4,
6,
25,
27,
42,
-32,
-20,
13,
41,
-14,
-16,
12,
3,
-37,
-24,
-28,
22,
-14,
-18,
12,
-13,
1,
-15,
-44,
-20,
-33,
15,
16,
4,
13,
32,
41,
0,
17,
10,
13,
-33,
-28,
30,
0,
5,
24,
-9,
3,
-5,
22,
-3,
3,
-2,
-15,
9,
-78,
14,
-22,
-33,
49,
-15,
19,
-45,
21,
4,
13,
-29,
-24,
-21,
14,
2,
18,
34,
-5,
-86,
-34,
10,
-27,
46,
6,
12,
24,
20,
18,
3,
26,
26,
63,
45,
7,
-7,
6,
-43,
-42,
-10,
21,
2,
2,
13,
4,
-20,
32,
25,
3,
7,
-45,
18,
2,
53,
7,
-7,
-13,
-38,
0,
-18,
-24,
22,
-9,
-3,
21,
-19,
2,
-14,
-42,
-39,
-56,
-21,
-36,
-11,
33,
1,
-7,
28,
53,
51,
-27,
-29,
-12,
-64,
15,
-14,
-9,
45,
57,
40,
20,
5,
-12,
5,
-35,
-50,
-22,
7,
3,
-45,
-12,
-26,
-40,
23,
32,
13,
-13,
15,
-14,
4,
29,
-56,
-19,
-1,
-51,
17,
-24,
-32,
-19,
-26,
-20,
-56,
10,
3,
25,
17,
-47,
-3,
0,
-42,
44,
42,
-25,
-14,
31,
-22,
22,
47,
-22,
19,
-41,
3,
13,
-45,
28,
58,
13,
-27,
24,
-57,
1,
-34,
37,
-20,
-2,
-29,
13,
-13,
-7,
10,
71,
1,
12,
-41,
33,
62,
-6,
-11,
-33,
25,
15,
29,
55,
25,
-34,
-5,
11,
-11,
-40,
67,
21,
-11,
-32,
1,
14,
-7,
-36,
40,
-39,
-10,
24,
-7,
-44,
-29,
-8,
34,
-49,
7,
-17,
38,
12,
14,
-1,
28,
12,
4,
39,
-7,
26,
-35,
15,
51,
-38,
0,
-30,
-18,
55,
40,
-46,
43,
6,
1,
-9,
-56,
14,
41,
2,
-10,
-25,
35,
15,
-23,
9,
-9,
15,
33,
-11,
-52,
-4,
-27,
9,
-11,
-20,
34,
0,
-4,
-43,
-30,
-16,
13,
-13,
34,
54,
2,
56,
25,
20,
-64,
-33,
10,
-28,
-38,
52,
33,
0,
21,
21,
12,
-9,
26,
-15,
19,
-7,
0,
-25,
-20,
5,
46,
-49,
-27,
32,
36,
8,
-49,
32,
46,
0,
-20,
26,
-15,
-21,
7,
-7,
29,
16,
-13,
-34,
26,
-1,
-2,
-62,
-2,
-63,
-18,
-40,
-1,
-54,
-1,
-5,
-13,
-42,
7,
-1,
1,
-7,
-30,
8,
15,
5,
-44,
-13,
-2,
-16,
-1,
1
] |
ME. JUSTICE MYEES
delivered the opinion of the court.
This is an original proceeding; application for writ of supervisory control.
It appears that Humphrey Courtney, Maurice Courtney and John H. Cole, the relator, all of Granite county, obtained a lease of a certain mining claim in that county and engaged in mining it. It is admitted that, thereupon, there was formed a partnership, which still exists. It is contended by the two first named that it is a mining partnership; by the latter, that it is a general partnership.
Florence Cole Petritz, a sister of relator, sued him, in the district court, in Silver Bow county, for money loaned, in the sum of $5,600, and attached his interest in a lot of personal property in Granite county, the tools and appliances used by the partnership in its mining operations. The sheriff took manual possession of all of such personal property, in its entirety. Thereupon, in the names of Humphrey Courtney, Maurice Courtney and John H. Cole, a mining partnership, doing business under the name and style of Courtney Bros. & Co., plaintiffs, (John H. Cole being the relator herein) the two Courtneys instituted a replevin action in the district court, in Granite county, against the sheriff, for the recovery of all of such personal property, alleging that the plaintiffs owned it and were entitled to the possession thereof and that it was not seized under an execution or attachment against the property of the plaintiffs. The complaint was verified by one of the Courtneys. They gave a replevin bond. The coroner took the property and.delivered it to them and they have it.
Thereafter, in that action, Cole, the relator herein, served and filed a motion for an order dismissing him as a plaintiff in the action. He accompanied it with his affidavit,, declaring that the action was instituted without his knowledge or consent and against his wishes; that he is opposed to the prosecution thereof and wishes to be dismissed as a plaintiff; also, that the partnership composed of the plaintiffs is a general partnership. A hearing on the motion was had. At the hearing, Cole testified in support of his motion. Some documentary evidence was introduced. There was no counter evidence. The district court overruled the motion.
Relator then petitioned this court for a writ of supervisory control, directed to the district court and the judge thereof, respondents herein, to the end that the order of the district court, overruling his motion, be annulled and set aside and that the district court be compelled to take favorable action on his motion. In support of his petition, relator assigns as grounds therefor his contentions that the district court, in overruling his motion, acted without authority and in an arbitrary manner; that relator has no plain, speedy or adequate remedy by appeal; that relator thereby will suffer great and irreparable injury; and various other grounds of kindred nature. Upon the filing and presentation of the petition, an order to show cause was issued and served. Respondents appeared and moved to quash the petition. The motion to quash was argued and submitted.
So far as disclosed by the record before us, we hold the partnership in question is a mining partnership. Section 8050, Revised Codes, 1921, provides: “A mining partnership exists when two or more persons who own or acquire a mining claim for the purpose of working it and extracting the mineral therefrom actually engage in working the same.”
According to the terms of the written lease of the mining claim, set forth in the record, that is just what the lessees undertook to do. According to the testimony of the relator, that is just what they did. They actually engaged in working the mining claim, by extracting therefrom the mineral. Of that, there can be no doubt. The partnership continues and the work continues.
Counsel for relator, in contending that the partnership is not a mining partnership, cite Anaconda Copper Min. Co. v. Butte & Boston Min. Co., 17 Mont. 519, 43 Pac. 924. The facts in that ease are very different from those here presented. In that case the opinion says “the plaintiff and defendant were not actually engaged in working the mine.’’ There is nothing disclosed in that case to show that the plaintiff and defendant ever did engage in working the mine. Here, it is admitted the lessees worked it. In that case, the court points out that the plaintiff and defendant were joint owners of the property, the one owning an undivided three-fourths and the other, an undivided one-fourth. The court further points out that, under the statute, the same then as now, two things are requisite to a mining partnership: (1) That two or more persons shall own or acquire a mining claim for the purpose of working it and extracting therefrom the mineral; (2) that they actually engage in working the mine. The opinion states that, while the first requirement existed, the second did not. Hence, that case is not applicable. However, in the partnership here considered, the record plainly shows that both requirements exist. Counsel for relator cite also Congdon v. Olds, 18 Mont. 487, 46 Pac. 261. Neither is that case applicable. There is in it nothing whatever to sustain the contention that this partnership is not a mining partnership.
Section 8051, Revised Codes, 1921, provides: “An express agreement to become partners or to share the profits and losses of mining is not necessary to the formation and existence of a mining partnership. The relation arises from the ownership of shares or interests in the mine and working the same for the purpose of extracting the minerals therefrom.”
Section 8052, Revised Codes, 1921, provides: “A member of a mining partnership shares in the profits and losses thereof in the proportion which the interest or share he owns in the mine bears to the whole partnership capital or whole number of shares. ’ ’
The provisions of those sections fit the testimony of the relator. He testified there was no particular agreement, in regard to the mining operations, between him and the Courtneys, except that they would get the lease and each would be equally interested in it and they would expend about $5,000 in the mining operations and would share equally losses and profits; there was a sort of implied understanding that, if the lease could be obtained, it would be taken by the three of them and they would carry on mining operations on the leased property; they got the lease and did so; there was no express agreement of partnership. Having conformed to the requirements of law, the law formed the partnership. The law says when certain things are done a mining partnership results. They did the things required. However, people may expressly agree to form a mining partnership. (Skillman v. Lachman, 23 Cal. 198, 83 Am. Dec. 96; Loy v. Alston, 172 Fed. 90.) In this case, even though there may have been an agreement, express or implied, of partnership or an intention to form a partnership, that does not keep it necessarily from being a mining partnership.
The fact that the mining claim, in this instance, was merely leased does not prevent a mining partnership as a result of law. The partners do not have to own the claim. They have to own only a possessory right. That may be acquired by lease. Our statute says “own or acquire.” (Sec. 8050, supra.) That shows that “own” and “acquire,” in the statute, have different meanings. Lessees, as well as owners, may be mining partners. (Howard v. Luce, 171 Fed. 584; McMahon v. Meehan & Larson, 2 Alaska, 278; Lamont v. Reynolds, 26 Colo. App. 347, 144 Pac. 1131; Walker v. Bruce, 44 Colo. 109, 97 Pac. 250; Manville v. Parks, 7 Colo. 128, 2 Pac. 212; Jarecki Mfg. Co. v. Ryan, 114 Minn. 38, 129 N. W. 1055; Beller v. Murphy, 139 Mo. App. 663, 123 S. W. 1029; Wetzell v. Jones, 75 W. Va. 271, 84 S. E. 951.) The eases so holding are too numerous to need to cite more and so numerous as to leave no room for question.
Section 8059, Revised Codes, 1921, provides: “The decision of the members owning a majority of the shares or interests in a mining partnership binds it in the conduct of its business. ’ ’
The partnership under consideration being, in our view, on the record before us, a mining partnership, in which there are three equal partners, the decision of two, a majority (owners of two-thirds’ interest) binds the partnership in the conduct of its business. (Bochme v. Fitzgerald, 43 Mont. 226, 115 Pac. 413.) The decisions generally uphold this right of the majority and give it ample scope. (Dougherty v. Creary, 30 Cal. 300, 89 Am. Dec. 116; Hawkins v. Spokane Hydraulic Min. Co., 3 Idaho, 241, 28 Pac. 433; Childers v. Neely, 47 W. Va. 70, 81 Am. St. Rep. 777, 49 L. R. A. 468, 34 S. E. 828; Blackmarr v. Williamson, 57 W. Va. 249, 4 Ann. Cas. 265, 50 S. E. 254; Bartlett & Stancliff v. Boyles, 66 W. Va. 327, 66 S. E. 474.) There are numerous other decisions to like effect. The decisions here cited hold that the majority may bind the partnership in all matters necessary and proper to the conduct of the business; may control as to means employed; may control in all things necessary and proper to its operations; may take necessary steps to preserve the partnership property.
According to the established authority, in this instance, the Courtneys, two of three partners, owning two-thirds’ interest, certainly had the right to prevent the partnership from being deprived unjustly and unlawfully of its personal property, the tools and appliances for working the mine, the very means of conducting its operations, if they believed such per-: sonal property was being taken unjustly and unlawfully. Whether or not it was must be decided by the determination of the replevin action in question. We may consider now only what the Courtneys believed and acted upon. It devolves upon them to prove it in another action. Therefore, we hold the Courtneys had the right, without consent of relator, to institute the replevin action.
Having that right, the Courtneys were within their rights when they named relator as a plaintiff in the replevin action. He was and is a proper party plaintiff. The action was brought in behalf of the partnership, in the names of the partners in a representative capacity, their capacity as partners. It was proper to unite all as plaintiffs. (2 Rowley on Modern Law of Partnership, 1109.)
Counsel for relator contend relator, having been opposed to the institution of the action, should have been made a defendant. Except in an action for accounting and dissolution, it is held a firm cannot be divided and one part sue the other part, in regard to partnership business or property; that partner may not sue partner, in such matters. (2 Rowley on Modern Law of Partnership, 1022; Lindley on Partnership, 9th ed., 559; 30 Cyc. 461 and cases cited.) It was so held by this court in Boehme v. Fitzgerald, supra. A partner cannot maintain replevin against his copartner for any of the firm property. (2 Rowley on Modern Law of Partnership, 759; Lindley on Partnership, 9th ed., 670; Buckley v. Carlisle, 2 Cal. 420; Mason v. Tipton, 4 Cal. 276.) The remedy in such cases lies in an action for accounting and settlement of partnership affairs. (30 Cyc. 462 and numerous cases cited.) Therefore, relator would not be a proper party defendant in the replevin action.
Counsel for relator make various contentions which we deem untenable. They contend the Courtneys, for relief, should have resorted to the provisions of sections 9289 and 9290, Revised Codes, 1921. It may be they should have. "We are not deciding that question. That is a question to be decided in the trial of the replevin action. The Courtneys having elected, for the firm, to bring a replevin action (which, in the end, may or may not be sustained) we are deciding only that it was proper therein to make relator a plaintiff and that the district court did not err in refusing to sustain his motion to be dismissed as a plaintiff.
Relator complains he is being deprived of his liberty. He is entitled to such liberty only as the law allows. He voluntarily surrendered a certain amount of his individual liberty when he became a partner in the partnership. He must have known each partner must yield to the partnership, so long as in existence, some part of his liberty of individual action, in matters within the scope of the partnership and its affairs.
Counsel for relator contend that, because, in his testimony, at the hearing of his motion, relator made the statement that it was his understanding that each partner was to be considered in the control of the property (of the partnership), the right of majority rule does not apply in this instance. We fail to see how that would disarm the majority of the right to prevent the partnership property from unlawfully being taken away from the partners, if the majority considered it was being so taken. The assertion that each of three equal partners is to be in control of partnership property asserts an impossibility. In case of differences, there can be no such thing as each of three people controlling the others.
Relator will not be deprived of his privilege, if he may desire to exercise it, in the trial of the replevin action, of being a witness for the defendant. There will be no restriction then upon his liberty to take any attitude he may choose to take in regard to the litigation.
Relator complains he is not allowed to employ, to represent him in the replevin action, the attorney of his choice. A majority of the members of a partnership may select counsel for the partnership. (1 Rowley on Modern Law of Partnership, 564.)
Counsel for relator make some other contentions which we deem equally untenable or not pertinent.
The writ of supervisory control, herein sought, is authorized “to prevent a failure of justice, by supplying a means for the correction of manifest error.” (State ex rel. Hubbert v. District Court, 54 Mont. 472, 171 Pac. 784.) When there is no error to correct, it has, of course, no use.
Rehearing denied April 15, 1927.
We hold the district court, in making the ruling of which relator complains, did not err and, therefore, hold relator is not entitled to any relief for which he prays. The motion to quash is sustained and the proceeding is dismissed.
Dismissed.
Mr. Chief Justice Callaway and Associate Justices Stark, Matthews and Galen concur.
|
[
2,
9,
-17,
17,
13,
-6,
28,
-27,
29,
26,
20,
-26,
23,
0,
7,
-42,
-10,
-20,
-27,
16,
33,
-2,
-2,
-21,
-4,
-26,
-1,
-32,
-12,
4,
-48,
-33,
17,
-18,
21,
39,
9,
54,
-9,
-22,
39,
49,
38,
12,
5,
34,
-3,
-69,
5,
-33,
84,
0,
27,
38,
69,
28,
-43,
0,
2,
-31,
6,
-49,
14,
8,
28,
26,
27,
-66,
35,
-38,
-30,
-3,
5,
6,
27,
-17,
-22,
-25,
-19,
-16,
-18,
6,
35,
-22,
-52,
-5,
-30,
-35,
14,
-2,
15,
15,
-24,
38,
39,
41,
-38,
-27,
-56,
35,
48,
-4,
9,
23,
-28,
-39,
0,
-8,
101,
12,
-11,
32,
-7,
38,
-41,
-12,
12,
-25,
19,
-9,
-17,
-12,
31,
3,
-15,
-38,
9,
6,
11,
-1,
-29,
7,
49,
14,
-14,
-37,
11,
4,
-7,
-1,
-17,
-4,
-21,
-18,
2,
1,
0,
-1,
-15,
29,
7,
-14,
52,
61,
46,
-32,
31,
22,
7,
-3,
26,
7,
34,
-9,
-18,
-9,
6,
-42,
-66,
-28,
28,
25,
-25,
4,
23,
-10,
2,
-10,
4,
0,
18,
2,
14,
-19,
-28,
9,
33,
2,
33,
5,
-15,
3,
-6,
-13,
-23,
-39,
-32,
-38,
-7,
19,
2,
12,
-16,
32,
-16,
-25,
10,
12,
8,
34,
-3,
13,
-42,
-21,
-16,
-11,
-19,
-5,
9,
-17,
38,
27,
-4,
-37,
-44,
-25,
3,
9,
-27,
-35,
-3,
-39,
-6,
-26,
-10,
-12,
25,
18,
-2,
-9,
8,
-30,
-32,
-16,
26,
25,
11,
-22,
-9,
31,
-52,
-14,
-32,
49,
-20,
-1,
-14,
25,
-46,
-51,
29,
-29,
-40,
34,
8,
-41,
-47,
2,
4,
25,
-19,
4,
52,
4,
-43,
-11,
66,
-19,
36,
4,
31,
-8,
-4,
-3,
11,
11,
-30,
-30,
-37,
-16,
27,
-5,
33,
-41,
34,
-35,
29,
16,
19,
41,
26,
17,
-31,
26,
-11,
38,
-18,
50,
2,
14,
-26,
6,
-8,
18,
4,
18,
-23,
24,
7,
17,
1,
27,
-20,
-28,
-24,
32,
29,
32,
43,
7,
8,
-22,
-4,
29,
-21,
-19,
8,
10,
29,
-13,
-10,
-25,
1,
-5,
-32,
-16,
-5,
22,
-37,
15,
-18,
-8,
-4,
32,
-11,
15,
-27,
-36,
-5,
-17,
51,
-52,
-58,
0,
-11,
18,
0,
-19,
-22,
9,
10,
33,
36,
0,
36,
-34,
-7,
-10,
-29,
-8,
2,
38,
65,
-17,
31,
11,
29,
23,
-35,
-37,
-4,
21,
-14,
26,
-63,
25,
21,
-23,
7,
-34,
14,
20,
5,
-5,
-33,
-8,
5,
-13,
12,
-45,
-63,
1,
-53,
-11,
-4,
-37,
-1,
2,
-17,
53,
1,
-45,
8,
-24,
-14,
24,
1,
-7,
-54,
16,
-37,
16,
17,
24,
-10,
-71,
2,
14,
-30,
24,
-25,
-15,
-21,
-23,
-7,
21,
-31,
-13,
54,
3,
-31,
12,
-54,
29,
-19,
89,
37,
-50,
21,
-16,
52,
50,
46,
43,
10,
-50,
56,
-16,
-16,
46,
-27,
66,
37,
1,
10,
0,
-19,
96,
31,
23,
-8,
1,
-23,
53,
-22,
31,
-22,
-9,
7,
45,
39,
11,
-3,
4,
-41,
-54,
9,
2,
32,
-9,
-24,
1,
18,
2,
53,
72,
-15,
27,
-39,
6,
13,
39,
26,
-2,
2,
54,
-28,
2,
-19,
23,
17,
-9,
-5,
13,
6,
-22,
-7,
10,
29,
-44,
-28,
2,
-38,
2,
-43,
51,
21,
-22,
-6,
-48,
19,
-14,
-3,
20,
-28,
37,
-8,
-16,
22,
22,
-9,
16,
-5,
52,
10,
-16,
22,
0,
-29,
-17,
11,
33,
-16,
-15,
25,
-10,
-58,
-1,
26,
41,
5,
6,
-23,
-16,
20,
-25,
-48,
-17,
-15,
36,
6,
3,
-27,
-20,
-11,
13,
24,
-32,
-22,
-12,
-4,
-13,
-13,
-10,
-65,
-9,
1,
33,
-10,
-8,
-20,
25,
-25,
-41,
-3,
-39,
16,
30,
-7,
-20,
-32,
2,
1,
40,
-3,
-1,
46,
-16,
40,
28,
17,
-8,
-24,
11,
1,
11,
-33,
-41,
-30,
45,
-52,
-16,
-45,
27,
11,
-1,
-49,
57,
-24,
-30,
60,
-19,
3,
-13,
-52,
-23,
45,
33,
-11,
17,
27,
-11,
55,
-16,
49,
5,
11,
-7,
2,
-32,
51,
-5,
-22,
1,
-8,
-30,
-17,
30,
8,
32,
20,
-3,
54,
-26,
-32,
-5,
-9,
-63,
40,
23,
7,
1,
-7,
-58,
25,
-4,
59,
16,
-40,
15,
-33,
63,
-36,
4,
-50,
-15,
30,
-6,
-43,
-14,
-6,
-6,
20,
60,
15,
10,
19,
-54,
3,
35,
-11,
-40,
0,
-22,
-26,
8,
-10,
-22,
-40,
-48,
-46,
-67,
14,
1,
35,
-39,
-13,
-3,
-24,
38,
70,
20,
-15,
-6,
48,
-19,
25,
-11,
-26,
47,
-4,
-19,
-11,
33,
20,
45,
21,
-11,
-57,
43,
32,
17,
-32,
2,
-15,
0,
-9,
-15,
-28,
40,
33,
4,
-57,
-20,
10,
-42,
-47,
-66,
-5,
-19,
36,
19,
-27,
21,
-7,
36,
31,
64,
25,
-10,
4,
15,
-19,
16,
-37,
-77,
-13,
7,
6,
54,
-18,
24,
64,
-22,
-6,
-17,
12,
10,
-15,
44,
17,
26,
-13,
35,
33,
-14,
0,
4,
19,
31,
-6,
-20,
26,
-12,
-2,
-22,
-62,
-15,
29,
3,
-5,
-67,
46,
-15,
-13,
8,
48,
40,
-14,
37,
4,
-12,
-67,
54,
16,
-45,
9,
4,
-5,
-2,
22,
-30,
-25,
-31,
15,
-4,
-63,
14,
40,
-20,
-27,
35,
-11,
37,
-5,
-2,
-16,
0,
-25,
28,
0,
49,
-51,
7,
-7,
-33,
38,
49,
-46,
35,
-9,
6,
-14,
35,
0,
7,
-9,
-38,
-12,
-6,
-56,
-32,
5,
50,
-19,
-31,
35,
-3,
1,
6,
-63,
-39,
-22,
0,
10,
-22,
14,
-73,
-36,
-34,
-35,
31,
-37,
56,
59,
18,
2,
29,
51,
18,
24,
-6,
-18,
23,
-46,
25,
0,
-8,
8,
31,
-1,
11,
11,
27,
46,
1,
-49,
30,
-12,
51,
-53,
27,
60,
-36,
4,
22,
-23,
-24,
-50,
-4,
-1,
-6,
-13,
33,
14,
-11,
31,
-1,
-29,
31,
-11,
42,
27,
22,
-12,
24,
-10,
23,
22,
-32,
-70,
18,
-4,
9,
-9,
12,
-31,
-26,
37,
-73,
30,
-18,
24,
-20,
-31,
-6,
33,
30,
-5,
-26,
19,
-4,
21,
-1,
-10,
-34,
-11,
-29,
-17,
19,
6,
-12,
2,
-7,
8,
42,
7,
-50,
-2,
-16,
12,
1,
0,
-17,
23,
-13,
19,
56,
26,
-30,
-19,
4,
33,
-25,
28,
11,
-15,
-61,
-15,
-3,
-33,
-4,
22,
16
] |
ME. JUSTICE MATTHEWS
delivered the opinion of the court.
■ This is an action for false imprisonment. The complaint alleges that the plaintiff, John Plummer, was arrested on March 11, 1925, by the sheriff of Eosebud county, for the purpose of being held to answer a charge originating in Gallatin county; that on the following day T. F. Gilday, a special agent of the Northern Pacific Eailway. Company, acting within the scope of his authority from the company, took plaintiff from the county jail at Forsyth and transported him to Billings and there placed him in the Yellowstone county jail, where he was held for a period of three days at the instigation of Gilday and other special agents of the company, all without his consent and against his will. He asked for both actual and exemplary damages.
Issue was joined by a joint answer of the railway company and Gilday, and the cause brought on for trial before a jury. At the close of the taking of testimony, the court, on motion of the defendants, instructed the jury to return a verdict for the defendants, and judgment was entered according to the verdict rendered pursuant to the instruction. Plaintiff has appealed from the judgment, assigning error upon the direction of the verdict on the ground that the evidence adduced is sufficient to go to the jury as against each of the defendants, “as tending to prove the allegations of plaintiff’s complaint.” This assignment is argued under three heads: (1) That the failure to take plaintiff before the magistrate issuing the warrant, without unnecessary delay, made the detention of plaintiff in the Billings jail for three days false imprisonment; (2) that as such detention was, in the first instance, wholly caused by the request and procurement of Gilday, he is responsible for the false imprisonment; and (3) as Gilday was acting within the course of his employment and scope of his authority, and, consciously or unconsciously, by the advice, direction and with the knowledge of the railway company, acting through its assistant chief special agent, and his acts having been ratified by his employer, both defendants are liable for such false imprisonment.
1. ¥e need not here determine whether the peace officer of the state violated the provisions of sections 11735 to 11749, Revised Codes of 1921, and were therefore guilty of a misdemeanor (section 10920), as no such officer is made a party defendant, and no question is raised as to the legality of the original proceeding against plaintiff, but, for the purposes of this opinion, may assume that the evidence is sufficient to warrant a finding that the plaintiff’s detention at Billings was, in part, unreasonable and therefore illegal, and would constitute false imprisonment by the persons responsible therefor, under the definition thereof contained in section 10988, Revised Codes of 1921.
2. Was such incarceration the act of defendant Gilday, acting as the special agent of the railway company! On this question the evidence shows without dispute that the arrest was made by Sheriff Patterson of Eosebud county, on request of the county attorney of Gallatin county, and that officer was instructed by the county attorney, communicating through the assistant chief special officer of the railway company, to take the plaintiff to Billings where he would be received by an officer of Gallatin county; that Gilday was in Forsyth and was returning to Billings, and, for his own convenience, Sheriff Patterson requested Gilday to take plaintiff with him to Billings; that this was done, and, plaintiff making no objection, the two traveled from Forsyth to Billings on a “stub” train, which ran only as far as Billings. Arriving at Billings, Gil-day requested Sheriff Sage of Yellowstone county to take charge of the prisoner until someone from Gallatin county should call for him, and he was taken by the officers of Yellowstone county and placed in the county jail. Gilday had nothing to do with the holding of plaintiff thereafter. The very nest day the assistant chief- special agent of the railway company, with a special agent, was in Billings on other business, and there learned that plaintiff was still in that jail and was considering means of securing his release; he called upon the plaintiff at the jail. He testified: “My purpose in going down to see Plummer was to see how he felt about his habeas corpus; if he was going to proceed at once, I would notify the county attorney at Bozeman he had better get busy to defend.” There is no evidence in the record that this man advised or encouraged the further holding of plaintiff in jail; he was naturally interested in seeing that one charged with a felony against his company should not escape through the negligence of county officials, but only suggested that he would spur' such officials to action.
The most that can be said from the record is that plaintiff was arrested on a charge preferred by the proper officer on facts laid before him by the agents of the railway company, and that Gilday acted in transporting him from Forsyth to Billings, but this Gilday did not do in his own person or as agent of the railway company, bnt rather as a special deputy of the sheriff of Eosebud county.
Section 4774, Revised Codes of 1921, as amended by Chapter 157, Laws of 1925, defines the duties of a sheriff, among which are to “arrest and take before the nearest magistrate, for examination, all persons who attempt to commit or have committed a public offense,” and he may “command the aid of as many male inhabitants of his county as he may think necessary in the execution of these duties.” “Irrespective of such statute, a person who assists one who is, in fact, a peace officer in the service of a warrant, which is not void, is not liable, and does not become so if the arrest, although lawful in the first instance, becomes a trespass ab initio by some misconduct of the officer.” (5 C. J., sec. 97; 11 R. C. L. 806.)
Sheriff Sage testified that he accepted the plaintiff from Gilday, presuming that he had some authority as a police officer or sheriff’s officer, and that it was customary, when an officer was passing through a town and for any reason desired to stop over, to place a prisoner in the local jail; that Gilday told him that someone would come for the prisoner, but he did not recollect who, and, later he communicated with special agents of the railway company, as he considered that Gilday acted as a special agent of the company, though he did not testify that Gilday made any statement to him warranting his conclusion.
As there is nothing in the record to show that Gilday had any reason to suppose that an officer from Bozeman was not then in Billings or would not arrive before the next train left for Bozeman, or that he had any reason to believe that plaintiff would be held in Billings for an unreasonable length of time, or that he intended that he should be so held, under the circumstances, it cannot be said that Gilday was in anywise responsible for his unreasonable detention.
8. Since Gilday was acting under the direction of a peace officer in taking plaintiff to Billings, and the manner in which he discharged his duty on arriving at Billings was that of a peace officer under Eke circumstances, he was actnig as a special deputy sheriff and not in the performance of his duty as prescribed by his employer, the railway company, and, whether as a special agent he had authority to make an arrest or not, he was not, on this occasion, acting within the scope of his authority and under direction from his employer.
Rehearing denied April 26, 1927.
Nor does it appear that he acted under direction of the assistant chief special agent of the company, speaking either directly or in concert with the sheriff of Rosebud county. The assistant chief special agent was interrogated on the subject and testified: “I did not tell anyone to bring him to Billings”; that after a telephone conversation with Peterson, county attorney of Gallatin county, in which he was instructed to tell the sheriff of Rosebud county to take plaintiff to Billings, in which statement he was corroborated by the county attorney, he told Gilday to “notify the sheriff that Mr. Peterson would like to have him brought to Billings; I did not tell Gilday to bring him to Billings.” There is nothing in the record discrediting this testimony.
Under the facts disclosed in the record, no lawful verdict could have been rendered against either defendant. (Vittorio v. St. Regis Paper Co., 239 N. Y. 148, 145 N. E. 913; Smith v. Clark, 37 Utah, 116, Ann. Cas. 1912B, 1366, 26 L. R. A. (n. s.) 953, 106 Pac. 653; Linnen v. Banfield, 114 Mich. 93, 72 N. W. 1.) No error was committed in instructing the jury to return the verdict.
Judgment affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Myers, Stark and Galen concur.
|
[
44,
19,
13,
14,
-68,
-30,
15,
-23,
16,
43,
5,
18,
42,
-31,
13,
-17,
-7,
-14,
65,
-1,
-22,
-28,
-63,
25,
-47,
-48,
-42,
45,
-64,
69,
69,
52,
19,
-28,
21,
25,
31,
-25,
25,
7,
51,
-4,
-8,
-59,
18,
6,
22,
14,
23,
-63,
42,
-16,
7,
17,
-4,
0,
8,
-4,
-45,
40,
-27,
-26,
-16,
17,
9,
-25,
15,
38,
-12,
29,
-12,
31,
-10,
14,
1,
13,
-26,
-50,
-50,
10,
-42,
25,
0,
-47,
13,
5,
-25,
-52,
26,
-10,
21,
24,
-7,
-20,
2,
0,
0,
-19,
-22,
-8,
31,
-45,
-37,
19,
28,
-21,
-56,
-9,
41,
47,
-21,
45,
-4,
-26,
10,
-56,
15,
7,
14,
-20,
15,
-19,
1,
50,
-47,
-41,
21,
15,
52,
26,
13,
1,
32,
11,
-5,
31,
-13,
0,
35,
-7,
5,
-10,
35,
-18,
-8,
0,
48,
62,
-42,
13,
-28,
56,
24,
16,
-4,
5,
27,
-5,
3,
1,
36,
18,
5,
45,
-7,
37,
-33,
11,
-21,
8,
-43,
33,
-56,
28,
60,
30,
-43,
-23,
0,
-10,
-41,
26,
-8,
-28,
7,
-19,
33,
-11,
21,
-10,
15,
-7,
7,
8,
-46,
37,
-8,
-49,
-12,
10,
38,
1,
8,
64,
-65,
7,
24,
49,
36,
17,
-5,
-6,
-1,
-30,
5,
-11,
-23,
-3,
-1,
-8,
6,
28,
-11,
0,
-12,
-52,
8,
18,
-32,
-35,
17,
6,
32,
0,
2,
-20,
-20,
-41,
-3,
22,
-8,
-51,
-27,
-35,
14,
31,
-37,
-37,
-37,
28,
-10,
-35,
-21,
57,
0,
-33,
54,
-30,
-26,
-35,
22,
9,
-13,
6,
-1,
-26,
-22,
-16,
13,
-13,
-6,
9,
21,
0,
-1,
-62,
33,
-5,
52,
-13,
21,
25,
-24,
24,
-15,
-65,
-1,
31,
-10,
-17,
13,
-48,
0,
11,
43,
8,
31,
36,
22,
-28,
20,
14,
-12,
8,
-21,
37,
-47,
28,
-39,
6,
27,
6,
-2,
-36,
16,
0,
-5,
-9,
32,
-51,
-74,
46,
0,
-30,
1,
4,
-12,
37,
-13,
-4,
47,
1,
-43,
26,
6,
-5,
39,
-3,
14,
-20,
10,
0,
-10,
-22,
-74,
47,
38,
-11,
-15,
-27,
39,
-14,
7,
-3,
-43,
27,
12,
-54,
-10,
-49,
0,
-19,
23,
3,
21,
6,
-60,
-35,
3,
-44,
34,
-33,
4,
17,
-13,
2,
54,
40,
-70,
22,
13,
-24,
-20,
22,
-13,
42,
-34,
-18,
-48,
6,
-42,
-2,
0,
17,
-42,
-6,
18,
4,
27,
-9,
-22,
34,
27,
8,
-2,
-37,
23,
10,
-18,
0,
-1,
-65,
-8,
-16,
40,
20,
-22,
12,
-28,
-3,
54,
-41,
14,
-28,
55,
21,
18,
10,
-14,
-9,
37,
-26,
-7,
-1,
-32,
-15,
-4,
-18,
-19,
-27,
10,
11,
11,
1,
17,
-49,
10,
3,
1,
0,
19,
-37,
3,
-4,
-41,
70,
-4,
-16,
1,
3,
-15,
55,
13,
1,
-5,
1,
17,
-52,
7,
43,
5,
27,
-8,
-11,
-9,
4,
-40,
-24,
0,
-4,
-23,
-43,
3,
15,
-27,
-45,
-21,
-15,
66,
4,
1,
22,
-15,
-27,
-42,
48,
20,
-18,
11,
-11,
-13,
-4,
-25,
-2,
0,
29,
19,
6,
-18,
79,
6,
7,
21,
-2,
-41,
-21,
23,
-33,
-28,
65,
52,
25,
-2,
-40,
-14,
12,
-20,
-41,
49,
-33,
-34,
-16,
-40,
0,
3,
-15,
7,
11,
-8,
-41,
38,
-15,
12,
0,
8,
7,
12,
-5,
44,
-39,
17,
27,
14,
0,
-10,
-15,
-18,
16,
-31,
22,
12,
-16,
21,
-12,
4,
36,
-13,
49,
34,
-71,
7,
48,
-26,
10,
-12,
-1,
22,
-11,
21,
6,
8,
7,
-3,
9,
-31,
9,
-9,
54,
-29,
15,
-8,
-59,
1,
22,
-7,
13,
10,
-28,
-22,
27,
-31,
5,
5,
28,
62,
25,
-23,
-3,
12,
6,
2,
14,
16,
5,
12,
51,
-36,
-37,
-7,
-12,
-13,
-67,
36,
24,
-36,
-54,
-34,
-10,
0,
-22,
-47,
10,
-31,
8,
8,
41,
-16,
30,
-25,
43,
30,
-3,
21,
-35,
-28,
32,
-18,
27,
17,
13,
33,
37,
10,
-31,
0,
-4,
4,
3,
-20,
-20,
19,
30,
-10,
22,
-47,
8,
-17,
0,
20,
34,
93,
-72,
-4,
10,
13,
-47,
77,
-6,
15,
-5,
-8,
-1,
48,
-24,
37,
-26,
12,
36,
12,
13,
-5,
17,
21,
49,
9,
-2,
0,
-29,
-45,
-36,
16,
-12,
4,
-29,
-57,
0,
-20,
-42,
-10,
36,
5,
-12,
12,
16,
-33,
-29,
1,
1,
-52,
-55,
-20,
6,
-52,
36,
54,
15,
6,
-24,
7,
-35,
60,
38,
-15,
-13,
8,
-6,
-21,
26,
-17,
-15,
-3,
11,
-12,
52,
14,
-1,
41,
-30,
-22,
16,
53,
39,
38,
-3,
-23,
9,
-23,
-8,
-10,
-21,
53,
-22,
-23,
32,
-35,
0,
-25,
-44,
-7,
4,
40,
10,
-20,
0,
16,
26,
26,
21,
-4,
0,
7,
35,
-31,
35,
-8,
-35,
23,
33,
-8,
19,
-11,
-9,
5,
-22,
-28,
9,
-6,
-2,
-74,
39,
21,
-41,
18,
41,
-21,
-35,
25,
23,
-26,
5,
-25,
16,
-22,
-39,
-9,
-53,
-1,
23,
-11,
-18,
0,
3,
29,
-17,
15,
-28,
30,
-39,
-8,
17,
2,
9,
-12,
4,
-9,
9,
0,
-21,
-1,
13,
25,
-8,
-56,
-13,
45,
24,
4,
-6,
27,
6,
12,
21,
-37,
-9,
-30,
14,
30,
-5,
2,
32,
-26,
0,
-7,
-29,
39,
-47,
33,
-55,
-19,
16,
-31,
44,
77,
17,
-20,
-37,
44,
-3,
70,
4,
5,
-54,
10,
23,
11,
1,
-18,
-29,
37,
52,
-22,
-37,
-55,
28,
19,
-10,
-19,
9,
-6,
-12,
1,
-1,
-24,
2,
13,
7,
53,
-22,
-17,
4,
-5,
-21,
-35,
-21,
-4,
17,
-28,
-14,
32,
19,
1,
6,
12,
38,
-5,
12,
-21,
8,
-23,
25,
-49,
22,
-3,
-30,
20,
12,
12,
-12,
27,
-4,
-47,
0,
-37,
24,
24,
-7,
-7,
-41,
-17,
-16,
16,
30,
-6,
60,
3,
-27,
-20,
-10,
38,
-65,
-29,
55,
18,
0,
-42,
2,
22,
-20,
9,
-21,
28,
-22,
-24,
-12,
35,
21,
4,
5,
3,
9,
15,
-22,
-68,
44,
12,
-13,
-18,
-9,
-47,
3,
8,
2,
5,
33,
27,
21,
0,
-46,
-7,
-34,
-6,
-21,
-25,
-15,
42,
13,
-31,
18,
-2,
-19,
22,
-9,
25,
-16,
26,
48,
-16,
13,
-24,
19,
-23,
43,
9,
-3
] |
MR. JUSTICE GALEN
delivered the opinion ol the court.
In this action, the plaintiff, an attorney at law duly licensed to practice and engaged in the practice oí his proiession in the state, residing at Red Lodge, seeks to recover irom the delendant the sum ol $800 on the quantum meruit lor services rendered. Issue being joined by a general denial, the cause was tried by a jury. At the conclusion ol the evidence in ¡support of the plaintiff’s complaint, the court granted the defendant’s motion for a nonsuit, and thereupon entered a judgment accordingly in the defendant’s favor. The appeal is from the judgment.
The only question involved is whether the court erred in granting a nonsuit.
From the testimony it appears that the defendant is a Montana corporation, having its principal place of business in the city of Bed Lodge, at which place it owned certain real estate with buildings and machinery thereon, which, prior to the year 1919, had been utilized by it in the manufacture of beer. From 1919 until the sale of this property, hereinafter adverted to, it had not been used by the defendants for any considerable time, nor profitably. From the year 1911 until the sale of the property in 1926, the plaintiff had been the attorney for the defendant corporation and had had many business dealings with it. He is not a real estate broker and never has held himself out to the public as such. Paul B. Lehrkind, a resident of the city of Bozeman, during the period of time involved herein was the secretary and manager of the defendant company, and Wm. Larkin, of Bed Lodge, was a stockholder and director thereof. Mr. Lehrkind talked with the plaintiff several times respecting the desirability of making a sale of the property, and in consequence the plaintiff conceived the idea of making a sale of it to G. C. Myers, for use as a canning factory. The plaintiff interviewed Mr. Larkin and the likelihood of making such a sale was discussed by them. In this connection the plaintiff requested Mr. Larkin to write a letter to Mr. Lehrkind, at Bozeman, to ascertain whether the latter would be willing to sell the property, fix a price on it, and pay a commission upon the consummation of a sale thereof. As a result Mr. Larkin received a letter from Mr. Lehrkind, which reads as follows:
“Bozeman, Montana, Feb. 27, 192'5.
“Mr. William Larkin, Bed Lodge, Mont.
“Dear Bill: I am in receipt of your letter of the 24th inst., and contents noted as to the sale of the brewing building, etc. I have interviewed the Lehrkind heirs, and they are willing to sell the building for $20,000; the brewing machinery, equipment, etc., is not in the deal and will remain the property of the Red Lodge Brewing Company. This brewing machinery, equipment, etc., we will try to sell to any one that could use it, either in Canada or Mexico, or elsewhere. In this deal, reservations must be made that the brewing company is to have permission to make a hole in the walls, if it should be so necessary, in order to remove the machinery, etc. Also, if the brewing company cannot get a suitable storage room to store their machinery, tanks, casks, etc., then, in that event, the brewing company shall have the right to erect a storage warehouse alongside of the brewery side track, on the brewing company’s lots back of the present brewery building, with no rental charge. The hole in the wall is to be replaced by Brg. Co. As far as we are concerned up here in Bozeman, we are willing to allow the regular commission to any one that makes the sale, which is 5 per cent. If you can get this percentage down to a lower mark, you will save the brewing company just that much money. The regular rates as allowed to salesmen on city real estate is 5 per cent on deals from $500 on up to and including $20,000. Above that, it is graduated down.
“Hoping you much success, I remain with personal regards,
“Tours truly,
“Paul B. Lehrkind.”
After receipt of this letter by Mr. Larkin, he told the plaintiff the substance of its contents, but stated the price asked for the property to be $25,000. Thereupon the plaintiff went to work actively in an endeavor to sell the property to Mr. Myers, and as a result of his efforts and negotiations the property was finally sold and transferred to the latter, on April 6, 1926, for the sum of $16,000. Both Lehrkind and Larkin knew that the plaintiff was engaged under their authority in negotiating a sale of the property to Mr. Myers for use as a canning factory. Mr. Myers refused to pay as much as $25,000 or $20,000 for the property, and after further negotia tions with the plaintiff finally offered to pay the sum of #16,000, which was accepted, and the transaction fully consummated on that basis. Plaintiff understood that he would be paid a commission, even though the property sold for a less amount than that stated to him, until Mr. Larkin advised the plaintiff that the defendant company had determined to accept the offer of #16,000 for the property, but would not be willing at that price to pay any brokerage commission.
The statute provides: “What Contracts must be in Writing. —The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or his agent: * * * 6. An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission.” (Sec. 7519, Rev. Codes 1921.) Pursuant to this express statutory requirement, the law is settled by repeated decisions that a brokerage contract for the sale of real estate in this state must be in writing and subscribed by the party to be charged, or his authorized agent, in order to permit a broker to recover compensation or a commission on the sale of real estate by the owner. (King v. Benson, 22 Mont. 256, 56 Pac. 280; Marshall v. Trerise, 33 Mont. 28, 81 Pac. 400; Newman v. Dunleavy, 51 Mont. 149, 149 Pac. 970; Cobb v. Warren, 64 Mont. 10, 208 Pac. 928; Dick v. King, 73 Mont. 456, 236 Pac. 1093.)
The writing upon which the plaintiff predicates his right to recover a brokerage commission is in no sense a binding contract between the defendant company and the plaintiff to sell the property on the terms and conditions stated, but rather the expression, addressed to a person other than the plaintiff, of a willingness on the part of certain of the individual stockholders of the defendant corporation to sell on the terms stated. It cannot possibly be construed as a contract between the defendant corporation and the plaintiff, assuming that Lehrkind, as its secretary and manager, possessed authority to execute such a contract. The statute requires a note or memo randum, in writing, subscribed by the party to be charged. The letter in evidence is obviously signed by Paul B. Lehrkind as an individual, and does not in any manner purport to be a corporate act or to bind the corporation itself in any way. It amounts merely to an expression of the attitude of the Lehrkind heirs, as individual stockholders in the corporation, and it is addressed, not to the plaintiff, but to one of the stockholders ‘and directors of the corporation. In effect, it is merely a declaration of the attitude of certain individual stockholders, in the event a sale of the property shall be accomplished by “anyone” on the terms stated. This letter is not the character of a note or memorandum, subscribed by the party to be charged, made by the express language of the statute'a prerequisite for the recovery of a broker’s commission on the sale of real estate. It is manifest that it was not intended as a corporate act. In our opinion, it cannot be considered as meeting the precedent requirement of the statute in any respect. The case does not involve question of ratification by the acceptance of a less amount of money than was authorized in the first instance, but rather a complete failure of authority on the broker’s part because of lack of the required authorization.
The statute is mandatory and must be strictly followed as respects the original agreement, as well as any subsequent modification thereof. A writing being necessary in the first instance as a basis of recovery, where there is a change made in the terms, it must also be reduced to writing so long as the contract remains executory (Cobb v. Warren, supra), and the burden rested upon the plaintiff to show that, at the time he produced a purchaser ready, able and willing to buy on the defendant’s terms, there was an existing contract of employment between himself and the defendant sufficient to meet the requirements of the statute of frauds. (Brophy v. Idaho Produce & Provision Co., 31 Mont. 279, 78 Pac. 493; Newman V. Dunleavy, supra; Dick v. King, supra.) This he has failed to do.
Rehearing denied June 4, 1927.
However, contention, is made by counsel for the appellant, seriously it would seem, that tbe letter written by Lehrkind to Larkin is sufficient to remove the transaction from the bar of the statute of frauds; that as its manager Lehrkind acted for the corporation, and that, if anything were lacking to constitute it a sufficient writing subscribed by the party to be charged, Lehrkind’s subsequent conversation, had with Skinner, recognizing the existence' of the letter and its contents, was enough to bind the corporation. In his petition for a rehearing counsel for the appellant cites and relies on the case of McCartney v. Clover Valley Land & Stock Co. (C. C. A.), 232 Fed. 697, 1 A. L. R. 1127. We have carefully read and considered that case, and cannot see its application. The facts are widely distinguishable from the case before us. Of course, a contract of character sufficient to avoid the statute of frauds may be established by letters passing between the parties, as was the situation in the ease relied upon. The statute does not prescribe any particular kind or form of writing which must be subscribed by the party to be charged; and, were the facts in the case now under consideration like unto those involved in the McCartney Case, we would find no difficulty in coming to a like decision. Nothing herein contained is at variance with the former decisions of this court' in Cobb v. Warren, supra, or Apple v. Henry, 66 Mont. 244, 213 Pac. 444; nor can we see that those cases lack in consistency with each other or with the views herein expressed, as contended by appellant’s learned counsel. We have carefully considered all of appellant’s arguments advanced; and the authorities cited on the original presentation of the case, as well as on the motion for a rehearing, and can see no reason to alter our conclusion.
Wherefore the plaintiff cannot recover, and the judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Myers, Stark and Matthews concur.
|
[
12,
29,
9,
-13,
-2,
-45,
35,
60,
-31,
48,
14,
39,
31,
23,
31,
-19,
17,
-57,
6,
-3,
31,
-45,
-69,
-5,
-3,
-19,
-29,
-9,
-20,
-5,
21,
-6,
-12,
-53,
-58,
44,
-40,
11,
-2,
-10,
27,
33,
46,
-31,
14,
53,
-23,
-53,
51,
11,
47,
-41,
54,
11,
-20,
-46,
-23,
53,
-11,
65,
9,
-25,
35,
11,
71,
-13,
35,
-3,
10,
-33,
-34,
-37,
-37,
8,
3,
-72,
16,
-20,
-46,
-11,
-14,
-43,
31,
4,
-19,
5,
-10,
13,
44,
23,
-15,
-11,
18,
-20,
4,
40,
-13,
21,
-17,
17,
38,
-75,
-5,
34,
-11,
-6,
-44,
4,
33,
28,
-55,
-13,
-1,
-20,
-16,
-12,
-19,
-21,
0,
7,
-5,
24,
14,
8,
7,
-34,
-17,
30,
-5,
13,
-19,
12,
-41,
16,
-40,
-16,
17,
-40,
-27,
-3,
38,
8,
17,
-8,
6,
4,
10,
-8,
-30,
-29,
-20,
26,
32,
40,
-5,
-2,
26,
2,
37,
-42,
2,
-14,
-7,
15,
28,
40,
11,
-42,
-14,
-29,
-7,
17,
-28,
12,
29,
38,
30,
-53,
-34,
-4,
-44,
-23,
21,
28,
3,
-26,
50,
-13,
18,
-15,
26,
-18,
-24,
45,
-73,
-4,
-16,
2,
42,
-7,
-15,
-3,
-20,
44,
14,
37,
8,
19,
29,
-6,
-3,
15,
-6,
-55,
-9,
-13,
-39,
0,
4,
-25,
6,
0,
-60,
30,
-40,
-37,
19,
-58,
-7,
-32,
-95,
-14,
3,
9,
16,
-13,
21,
7,
-37,
4,
-3,
-11,
-32,
-29,
-18,
1,
-35,
-17,
-25,
42,
-11,
-46,
-13,
54,
10,
-21,
-17,
20,
-29,
-42,
16,
5,
-6,
1,
-22,
-74,
-23,
-33,
3,
36,
-32,
20,
49,
38,
-28,
-34,
18,
-2,
49,
0,
2,
-30,
5,
35,
-5,
29,
6,
8,
-68,
-24,
13,
26,
20,
-34,
45,
20,
-31,
0,
-6,
9,
-40,
8,
-10,
8,
-18,
29,
-52,
12,
9,
-14,
-3,
-37,
-54,
-19,
0,
9,
-17,
9,
-4,
-38,
73,
31,
-6,
23,
34,
-14,
8,
-4,
-17,
4,
-2,
-27,
-48,
33,
-62,
-33,
83,
-28,
-7,
33,
12,
10,
40,
-3,
10,
27,
20,
17,
-9,
-32,
-24,
8,
-10,
30,
14,
-9,
8,
-11,
-61,
38,
13,
-13,
1,
-20,
-20,
14,
-34,
-5,
40,
27,
-12,
68,
6,
-9,
-16,
-13,
-43,
-7,
-66,
37,
7,
-49,
42,
-8,
11,
34,
3,
-56,
-15,
26,
-33,
-7,
0,
56,
-11,
-6,
-5,
-51,
14,
4,
19,
36,
-16,
-24,
-45,
-54,
28,
7,
-51,
12,
-14,
-39,
31,
-26,
-9,
6,
4,
37,
-24,
6,
13,
5,
9,
5,
62,
-49,
42,
-2,
-44,
44,
-52,
40,
-12,
41,
-27,
-35,
28,
4,
-7,
30,
15,
8,
-57,
-34,
0,
-10,
-10,
29,
71,
-1,
-5,
43,
-27,
7,
-9,
34,
22,
10,
15,
-55,
51,
20,
43,
0,
17,
-21,
55,
-28,
-25,
24,
-4,
14,
13,
0,
-12,
56,
16,
1,
-21,
10,
-24,
5,
38,
33,
-7,
-15,
-14,
17,
-34,
55,
52,
6,
39,
-40,
-60,
-1,
22,
-18,
19,
-21,
-42,
-35,
-13,
-18,
-6,
13,
45,
0,
-8,
14,
-6,
3,
19,
-27,
-9,
11,
0,
24,
-17,
68,
1,
-32,
0,
50,
-51,
6,
12,
-18,
57,
-54,
-56,
-1,
-61,
15,
-34,
-53,
38,
3,
-1,
-16,
-25,
-47,
32,
8,
-11,
32,
-10,
23,
57,
-12,
-9,
-28,
-26,
45,
3,
26,
-18,
9,
3,
9,
22,
32,
-38,
-15,
10,
-10,
-45,
16,
5,
7,
-46,
23,
28,
-15,
-12,
-29,
-28,
-21,
-8,
2,
15,
-10,
33,
-39,
-69,
1,
20,
-3,
-11,
-5,
-19,
21,
-13,
21,
0,
2,
34,
-7,
-40,
46,
-65,
-13,
-10,
-31,
-33,
-3,
-82,
58,
38,
24,
-6,
51,
15,
18,
-41,
-1,
41,
-34,
60,
10,
0,
-12,
-3,
11,
-7,
8,
-59,
-27,
8,
51,
-27,
-38,
-5,
-15,
29,
61,
-35,
36,
-43,
-20,
19,
-34,
13,
-27,
-38,
-11,
45,
17,
30,
-10,
21,
22,
60,
15,
7,
-23,
16,
-7,
3,
-33,
0,
22,
-49,
4,
-32,
-13,
57,
-16,
-11,
11,
50,
-18,
-9,
13,
40,
-13,
39,
15,
-7,
80,
-30,
-31,
35,
-16,
28,
-21,
72,
-21,
13,
16,
-32,
34,
-18,
-21,
-37,
33,
-5,
22,
8,
-32,
10,
-50,
37,
37,
-9,
6,
-19,
-47,
-44,
1,
56,
-40,
0,
-15,
11,
-17,
-2,
35,
-35,
-14,
-10,
-40,
26,
-25,
15,
3,
-19,
55,
-6,
20,
6,
34,
4,
21,
-24,
10,
6,
-59,
10,
-3,
-17,
11,
-15,
31,
-6,
29,
29,
-10,
-6,
-34,
17,
30,
0,
17,
23,
-42,
-33,
10,
-50,
0,
33,
-12,
-39,
38,
-18,
40,
-4,
-42,
-37,
-8,
-7,
20,
4,
-22,
16,
-26,
21,
53,
66,
33,
-5,
-43,
-38,
19,
-34,
-20,
25,
52,
44,
29,
-29,
-11,
36,
-43,
-22,
-5,
46,
28,
-16,
-13,
-7,
-38,
15,
28,
28,
-61,
30,
17,
18,
-11,
-13,
-63,
51,
-37,
-2,
-28,
-39,
-29,
-4,
-5,
-22,
-52,
-38,
15,
37,
-50,
-5,
32,
9,
-29,
7,
-9,
-20,
16,
40,
26,
72,
-5,
-10,
-45,
8,
-2,
-14,
50,
24,
-14,
11,
9,
-21,
12,
-32,
4,
-5,
-13,
17,
-13,
-8,
-20,
35,
66,
28,
-2,
-27,
33,
52,
-19,
15,
-13,
-42,
10,
-6,
0,
42,
13,
1,
48,
-3,
17,
57,
-10,
-6,
19,
-16,
-16,
-23,
38,
46,
12,
21,
0,
19,
-38,
-72,
16,
23,
-22,
7,
-48,
23,
-8,
-42,
-23,
27,
21,
22,
-4,
20,
-22,
18,
31,
43,
-19,
-14,
19,
-7,
1,
-20,
55,
-8,
42,
18,
-6,
-67,
30,
-12,
57,
-26,
18,
-4,
46,
-6,
36,
39,
25,
-4,
0,
-24,
-1,
-35,
17,
2,
16,
40,
25,
5,
11,
4,
-35,
40,
-7,
31,
55,
13,
62,
19,
-16,
-43,
-7,
-5,
-30,
-27,
20,
-33,
2,
-29,
2,
-7,
-5,
15,
-8,
-8,
-16,
23,
27,
-37,
32,
6,
1,
-19,
13,
31,
12,
-6,
13,
7,
36,
-10,
6,
-32,
-14,
19,
-1,
-16,
7,
39,
20,
-13,
-11,
14,
-63,
-7,
-19,
-46,
-12,
14,
-7,
-16,
9,
8,
-25,
-43,
-91,
31,
-5,
-50,
54,
7,
-6,
3,
18,
-34,
13,
14,
23
] |
PER CURIAM.
It appearing to the court that the decision in cause numbered 6,091, State ex rel. Rankin v. Christian Yegen, rendered on April 21, 1927 (79 Mont. 184, 255 Pac. 744), has disposed of the merits of these causes, at the suggestion of counsel for appellants it is ordered that the appeals in said two causes be dismissed. ,
|
[
-68,
-19,
72,
-20,
23,
-25,
61,
3,
-8,
-25,
-30,
12,
39,
29,
-44,
31,
53,
9,
-9,
0,
47,
80,
-1,
-27,
4,
-42,
18,
-9,
17,
-13,
-18,
-15,
-22,
40,
-37,
-11,
-63,
-5,
41,
-41,
12,
26,
-24,
9,
-1,
9,
27,
-1,
-33,
78,
-18,
25,
-57,
-28,
-65,
27,
25,
-28,
19,
8,
10,
30,
-9,
18,
20,
8,
-8,
5,
35,
15,
-7,
-28,
-9,
9,
8,
-36,
-13,
-9,
-15,
63,
34,
54,
0,
51,
-26,
4,
-55,
10,
-19,
33,
-56,
-66,
-28,
-39,
-51,
4,
17,
-45,
-52,
-26,
36,
27,
40,
-42,
16,
-48,
21,
127,
-9,
0,
-18,
9,
-24,
11,
43,
28,
-16,
-32,
15,
39,
-24,
36,
1,
16,
15,
35,
-13,
46,
2,
20,
-22,
38,
54,
-21,
36,
45,
22,
30,
-57,
-26,
3,
-3,
-34,
7,
-46,
25,
-22,
-10,
30,
-67,
21,
6,
-23,
23,
9,
21,
23,
-29,
65,
40,
-57,
-20,
44,
-54,
-13,
88,
-83,
-1,
-4,
68,
20,
64,
16,
-47,
-38,
-34,
-24,
-18,
-17,
77,
41,
-18,
15,
-36,
-74,
-37,
-30,
55,
-31,
-7,
15,
-57,
-17,
2,
-33,
-47,
77,
0,
-10,
-22,
-57,
18,
-18,
-47,
-35,
40,
-39,
14,
-3,
-36,
83,
34,
-23,
-30,
-2,
11,
50,
-3,
17,
51,
27,
-15,
17,
-64,
55,
-20,
-6,
26,
-13,
42,
0,
-5,
-35,
7,
-16,
-61,
19,
61,
-52,
16,
-10,
0,
38,
-36,
-24,
29,
4,
19,
11,
-3,
64,
2,
37,
-17,
-14,
-43,
-13,
0,
25,
-16,
35,
29,
-35,
-83,
-24,
59,
56,
-7,
40,
35,
-83,
22,
36,
-10,
-7,
-2,
12,
-37,
4,
59,
-28,
-28,
2,
-13,
-34,
-13,
-39,
-73,
-14,
64,
-56,
10,
4,
-22,
18,
16,
14,
22,
-8,
-63,
-24,
0,
30,
-8,
10,
-49,
24,
-7,
32,
-70,
-28,
0,
7,
-18,
-33,
41,
-51,
-14,
-13,
-40,
-13,
8,
-77,
9,
3,
-22,
39,
29,
55,
23,
-31,
51,
16,
-48,
0,
27,
8,
87,
24,
47,
1,
39,
-60,
22,
9,
-23,
33,
-8,
76,
-5,
21,
12,
12,
-43,
-25,
-34,
35,
-26,
-35,
-8,
-19,
44,
53,
41,
52,
-20,
0,
4,
-14,
-4,
-10,
17,
28,
-18,
52,
27,
15,
-2,
-9,
1,
20,
29,
60,
-27,
-26,
54,
11,
-7,
-52,
20,
0,
-31,
-14,
-7,
-12,
46,
31,
2,
6,
14,
38,
-32,
-31,
-15,
13,
-67,
-22,
-1,
-27,
11,
-36,
60,
12,
9,
127,
61,
4,
68,
1,
-57,
46,
41,
-16,
29,
-74,
28,
-3,
-6,
-11,
12,
36,
11,
43,
51,
22,
29,
-12,
-5,
-30,
69,
28,
-9,
38,
56,
-49,
21,
18,
26,
-8,
22,
17,
25,
0,
43,
-6,
-58,
16,
-35,
-33,
-6,
-6,
42,
-67,
-61,
-47,
13,
24,
-41,
4,
-3,
-19,
-46,
10,
15,
-42,
7,
-41,
-10,
-60,
-5,
45,
-41,
-17,
-6,
9,
27,
-41,
28,
-10,
-6,
-10,
-31,
-13,
-45,
-15,
-47,
-25,
-42,
-39,
-10,
-7,
-5,
34,
36,
68,
-26,
-2,
-22,
7,
17,
7,
-54,
50,
19,
-30,
-55,
1,
3,
-44,
-16,
4,
-43,
-28,
-6,
60,
-5,
-25,
-30,
9,
-66,
5,
-63,
-3,
31,
22,
-45,
-40,
-7,
15,
14,
31,
21,
53,
-48,
25,
43,
2,
103,
27,
-13,
-27,
-3,
-39,
4,
-66,
-30,
-29,
-73,
6,
-47,
9,
-51,
-23,
-16,
-5,
23,
42,
18,
15,
23,
-9,
-31,
25,
-11,
-14,
37,
36,
22,
50,
-4,
-4,
15,
-54,
10,
-8,
5,
0,
-47,
1,
-32,
-32,
-18,
63,
-8,
76,
-4,
0,
19,
-42,
33,
-26,
-8,
67,
69,
15,
-8,
9,
-24,
0,
9,
65,
67,
-38,
-7,
3,
-10,
30,
22,
-10,
-13,
-44,
48,
-11,
67,
-8,
29,
-76,
28,
-25,
-20,
96,
96,
-6,
-46,
-2,
41,
37,
33,
-38,
-29,
-19,
24,
-36,
-44,
-26,
2,
14,
-42,
72,
-20,
14,
53,
-96,
16,
-26,
3,
-13,
-32,
-6,
22,
-66,
10,
25,
-27,
-65,
37,
-13,
29,
-42,
-22,
25,
50,
6,
-17,
-8,
-58,
17,
51,
-17,
-84,
40,
-44,
-25,
7,
53,
-5,
13,
0,
0,
32,
28,
27,
-27,
9,
-49,
18,
-52,
3,
38,
-5,
14,
34,
17,
22,
-73,
-26,
-14,
-37,
7,
3,
-28,
-43,
-66,
65,
8,
-43,
-16,
-62,
-25,
-83,
57,
16,
-5,
-15,
7,
9,
28,
31,
67,
1,
2,
21,
-20,
18,
59,
-51,
-29,
25,
-28,
-17,
-22,
-2,
-44,
2,
-59,
-35,
-15,
47,
49,
-34,
12,
-2,
-31,
26,
9,
-29,
72,
-19,
-5,
-24,
54,
-26,
15,
83,
-15,
56,
-2,
35,
-56,
-16,
-34,
27,
1,
-1,
-5,
8,
-78,
36,
40,
37,
-25,
-46,
-9,
0,
19,
49,
-76,
-8,
56,
-8,
16,
-40,
-10,
22,
-5,
-41,
-87,
-40,
5,
-7,
-4,
51,
50,
-3,
-55,
59,
-29,
16,
21,
14,
-33,
32,
-32,
13,
21,
12,
-44,
-52,
-19,
-44,
17,
8,
-28,
82,
85,
0,
-39,
-27,
34,
13,
5,
-30,
-54,
22,
-14,
-27,
-10,
23,
-28,
3,
-30,
9,
19,
21,
-9,
-20,
9,
83,
5,
-7,
-3,
16,
-46,
71,
13,
10,
3,
0,
91,
-19,
42,
35,
0,
-74,
27,
0,
-38,
-27,
2,
29,
-62,
-1,
51,
-40,
-43,
-19,
-36,
-3,
25,
32,
36,
-15,
-51,
-44,
-33,
-12,
-24,
11,
-3,
-11,
20,
-43,
-36,
33,
62,
47,
-18,
24,
-9,
52,
-62,
-18,
77,
-45,
22,
-38,
-7,
54,
14,
47,
-25,
7,
-45,
16,
34,
-18,
34,
16,
37,
-3,
74,
45,
53,
-12,
-33,
-1,
17,
-11,
-21,
53,
27,
38,
-24,
-15,
-34,
-55,
-11,
-29,
-5,
34,
12,
-60,
42,
32,
26,
-10,
3,
-57,
-18,
-2,
40,
-35,
-60,
-8,
-69,
-14,
-13,
66,
46,
-68,
-47,
-63,
-75,
36,
-48,
-28,
30,
3,
17,
53,
24,
-8,
-6,
-31,
-16,
-41,
-54,
3,
17,
37,
42,
-10,
-1,
-36,
-48,
30,
-1,
22,
-12,
-82,
-34,
54,
56,
-50,
41,
-14,
45,
-9,
24,
-7,
-13,
25,
8,
-30,
-45,
53,
26,
-51,
-35,
2,
19,
-21,
26,
-64,
54,
-38,
54,
39,
37,
-48,
1,
-3,
5,
-82
] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
Prior to April 3, 1922, McKinney Motor Company, a Montana corporation, with its principal place of business at Great Falls, was transacting business in that city. On that day, pursuant to the provisions of our statutes, the corporation was dissolved, all of which appears of record in the office of the clerk of the district court of Cascade county, and in the office of the secretary of state.
Immediately following the dissolution of the corporation, it would seem, C. A. McKinney and M. L. McKinney associated themselves in a partnership and transacted business at Great Falls under the common name of McKinney Motor Company. On the second day of May, 1925, an action was commenced in the district court of Cascade county, entitled Lindsay Great Falls Company, a corporation, plaintiff, v. McKinney Motor Company, a corporation, defendant. For convenience we shall refer to this action as the first action. It was alleged in the complaint, in substance, that at the time thereinafter stated the plaintiff was the owner and entitled to the immediate possession of one Ford coupe, and that on February 27, 1925, the defendant converted the same to its own use, and that the value of the coupe at the time of the conversion was $400. Summons issued and was placed in the hands of the sheriff for service with instructions to serve the same upon the defendant McKinney Motor Company, a corporation. On May 4, 192'5, a deputy sheriff went to the place of business of the McKinney Motor Company for the purpose of serving the summons and then and there delivered a copy of the summons and a copy of the complaint to C. A. McKinney, who advised the officer that McKinney Motor Company was not a corporation, there being no longer a corporation of that name, and that service could not be obtained upon that corporation by serving him. The officer nevertheless left the papers with McKinney and telephoned to McKenzie & McKenzie, attorneys for the plaintiff, telling them of the statement made by McKinney. The attorneys advised the officer that the service was good, as the records in the office of the county clerk showed the defendant to be a corporation. The officer then made his return upon the summons to the effect that he had served the same upon McKinney Motor Company, a corporation. When the defendant did not appear the attorneys for the plaintiff caused the defendant’s default to be entered and in due time a judgment was entered in favor of plaintiff against the defendant McKinney Motor Company, a corporation. Execution upon the judgment was placed in the hands of the sheriff who in due time returned it with the statement that he was unable to find any properly belonging to the defendant.
On November 10, 1925, the plaintiff commenced an action against McKinney Motor Company upon the judgment above mentioned. We shall refer to this as the second action. In the complaint the plaintiff alleged in substance that during all of the times mentioned in the complaint Charles A. McKinney and another or others “were and now are associated in and transacting and do transact business at Great Falls, Montana, under the common name of McKinney Motor Company with said McKinney as the manager thereof”; that on or about May 25, 1925, judgment was duly given and made in and by the court in favor of plaintiff and against defendant for the sum of $400, with interest from February 27, 1925, together with costs, a copy of the judgment being attached to the complaint. The plaintiff then alleged that after defendant’s name in the title in the first action the words “a corporation” appeared, but that the defendant in the first action and in the second action is the same; that the cause of action alleged in the complaint in the first action “was against the defendant herein only, was not against any other or different party, and said action was brought against the defendant, and none other,” and there was no other McKinney Motor Company doing business in Great Falls; that the summons and complaint in the first action were personally served on the defendant by handing to and leaving with said Charles A. McKinney a copy of each thereof. Other allegations are not important. To this .complaint “Charles A. McKinney, doing business as McKinney Motor Company” demurred. The demurrer being overruled, an answer was filed by “the defendant Charles A. McKinney,” denying all of the allegations of the complaint.
The parties then agreed upon a statement of facts in which, in addition to the facts narrated above, it was stipulated, among other things, that during the year 1925 “no other company or person was doing business within the county of Cascade, state of Montana, as McKinney Motor Company other than said C. A. McKinney and M. L. McKinney.”
The court after consideration entered judgment for the plaintiff. Hence this appeal. The notice of appeal is signed by Smith & Eickemeyer, “attorneys for Charles A. McKinney, doing business as McKinney Motor Company.”
1. The intention of the plaintiff was to sue the McKinney Motor Company. When the first action was commenced there was not in existence any corporation but there was in existence a copartnership of that name. Adding the words “a corpora tion” to the name of the McKinney Motor Company produced a misnomer. If the plaintiff had sued defendant simply as the McKinney Motor Company the designation would have been sufficient, for a partnership transacting business under a common name may be sued by that name. (Sec. 9089, Rev. Codes 1921; Gardiner v. Eclipse Grocery Co., 72 Mont. 540, 234 Pac. 490.)
The first question to be resolved is as to the effect of the misnomer. Mr. Freeman, in his work on Judgments, fifth edition, section 414, says: “The weight of authority is, that if the writ is served on the party, by a wrong name, intended to be sued, and he fails to appear and plead the misnomer in abatement, and suffers judgment to be obtained, he is concluded, and in all future litigation may be connected with the suit or judgment by proper averments.” The foregoing language was adapted from First National Bank v. Jaggers, 31 Md. 38, 100 Am. Dec. 53.
In Alabama and Vicksburg Railway Co. v. Bolding, 69 Miss. 255, 30 Am. St. Rep. 541, 13 South. 844, the action was brought against the “Alabama and Vicksburg Railroad Company,” and the summons ran in that name. The summons was served upon an agent of the Alabama and Vicksburg Railway Company. In the course of its discussion the court said: “There are eases which hold that one sued and served by a wrong.name may disregard the summons. All agree that one summoned by a name not his own, and who appears and does not plead misnomer, waives it, and is bound by the judgment in the wrong name. There is no sound reason for a distinction in the two classes of cases. The true view is, that one summoned by a wrong name, being thus informed that he is sued, although not correctly described by his true name, not availing of his opportunity to appear and object, whereby the true name would be inserted in the proceedings (Code, sec. 1581), should be precluding from afterwards objecting. Having remained silent when he might and should have spoken, he must ever afterwards be silent as to this matter. This view is sustained by the books,” citing many authorities. The court added: “There is no distinction in this respect between natural persons and corporations.”
In a note to Dixon v. Melton, 137 Ky. 689, 126 S. W. 358, as reported in Ann. Cas. 1912A, at page 459, we find the following note, amply sustained by the authorities: “The rule prevailing in most jurisdictions is that where a defendant has been actually served with a summons, a default judgment against him is valid although in the summons he is misnamed. If the defendant prefers not to appear in the action and enter a plea in abatement he will be deemed to have waived the error.”
Goldstein v. Peter Fox Sons Co., 22 N. D. 636, 40 L. R. A. (n. s.) 566, 135 N. W. 180, is an instructive case. The suit was brought against the Peter Fox Sons Company, a corporation, whereas that concern was not a corporation but a partnership consisting of eight persons named Fox. The summons was served upon one of the partners, who was managing officer of the company. An obsei’vation of the court is appropriate here: “This managing officer of the company, when served with summons, knew it was the Peter Fox Sons Company, a partnership, that was served, as he well did the impossibility of serving a nonexistent corporation, by mistake or misapprehension so designated. As is well said in Ex parte Nicrosi, 103 Ala. 104, 15 South. 507, an action wherein a person doing business under a company name' was served with a summons designating the company name as a corporation, the court holds the term ‘corporation’ to be merely descriptive of a named defendant, and not a part of the name itself. The reasoning of the court is as conclusive as it is unanswerable on the question before us.”
The court in the Nicrosi Case said: “It is clear that the Roswald Grocery Company, whatever it was, whether a partnership, a corporation, or an individual, assuming the name for the purposes of trade, was the party against whom or which suit was instituted, has all along been prosecuted, and will be continued if and after the amendments moved for are allowed. There is, in other words, no question here as to the identity of the defendant throughout all the proceedings which have been or may, in any proposed event, be had, being originally and at all times the same in the mind of the plaintiff.”
This court, in the case of Wright v. Fire Ins. Co., 12 Mont. 474, 19 L. R. A. 211, 31 Pac. 87, was confronted with a somewhat similar question. There the allegation was that the defendant was a corporation organized and existing under the laws of England, but it was urged that the defendant was in fact a copartnership. The court said: “If the defendant is not a corporation, but a copartnership, as its counsel now assert, it is not shown that any substantial right of defendant is affected by the misdescription of the character of its organization. There is no pretense to that effect. Whether defendant’s existence depends upon corporate functions or copartnership association, in either case it is liable in the common name in which it transacted business, and in which it is sued, for any judgment which may be obtained against it in the action.” (And see Foshier v. Narver, 24 Or. 441, 41 Am. St. Rep. 875, 34 Pac. 21; Anglo-American Packing & Provision Co. v. Turner Casing Co., 34 Kan. 340, 8 Pac. 403; Lindsey v. DeLano, 78 Iowa, 350, 43 N. W. 218; Lafayette Ins. Co. v. French, 18 How. (U. S.) 404, 15 L. Ed. 451 [see, also, Rose’s U. S. Notes].)
The mistake which the plaintiff made in this ease was not in the entity sued but in the character of the entity. The summons was served upon the right party. All this is shown by proper averments made in the second action.
Our system of procedure looks to substance rather than to form and to persons and things .rather than to mere names. (Anglo-American Packing & Provision Co. v. Turner Casing Co., supra.) The question is not whether a form of procedure has been observed but has the suitor been accorded his substantial rights, has no injustice been done? If he has disregarded his rights and has neglected to speak when he should have spoken the fault rests upon his own head.
2. But it is argued by the defendant that if the first judgment is good as against the McKinney Motor Company, execution against that company’s property would afford ample relief and that the plaintiff is precluded from suing upon the judgment. This position cannot be maintained. Whether the plaintiff without further application to the court in the first action could have taken property of the partnership under execution need not be considered. Plaintiff’s counsel chose to correct the mistake by commencing a new action based upon the judgment, therein showing the misnomer of the defendant in the first action, and that the right party had been sued, and had suffered judgment to go against it.
Our statute provides that an action upon a judgment or decree of any court of record of the United States or of any state within the United States may be brought within ten years of its rendition. (Sec. 9028, Rev. Codes 1921.) This section is applicable to judgments rendered by the courts of this state. (Haupt v. Burton, 21 Mont. 572, 69 Am. St. Rep. 698, 55 Pac. 110.)
“At common law a judgment has always been regarded as a cause of action on which a right to bring suit exists, and such is the rule nearly everywhere recognized as sound law to-day in the absence of statutes to the contrary” (15 R. C. L. 898), and this is so regardless of plaintiff’s right to take out execution according to the weight of authority. The remedy by execution is cumulative merely and statutes giving this remedy do not impair the common-law right of action upon the judgment as a debt of record. (Black on Judgments, sec. 958; Ames v. Hoy, 12 Cal. 11; Rowe v. Blake, 99 Cal. 167, 37 Am. St. Rep. 45, 33 Pac. 864.) Nor does there appear to be any restriction upon the judgment creditor’s right to commence action within the period limited by the statute, ten years. (Mandlebaum v. Gregovich, 24 Nev. 154, 50 Pac. 849; Rowe v. Blake, supra; 15 R. C. L. 899.) Section 9421, Revised Codes, 1921, does not impose any such restriction.
3. The first complaint stated a cause of action. (Park v. Grady, 62 Mont. 246, 204 Pac. 382; Moore v. Crittenden, 62 Mont. 309, 204 Pac. 1035; Stevens v. Curran, 28 Mont. 366, 72 Pac. 753.)
The judgment is affirmed.
'Affirmed.
Associate Justices Myers, Stark, Matthews and Galen concur.
|
[
-9,
17,
29,
42,
10,
-42,
6,
-29,
14,
-23,
-3,
9,
-25,
-1,
-20,
46,
20,
-7,
31,
1,
16,
-67,
-39,
-58,
-14,
6,
0,
-81,
-46,
-2,
-37,
-62,
6,
1,
-25,
37,
-27,
7,
-26,
28,
36,
26,
-9,
14,
60,
32,
55,
-57,
20,
21,
31,
1,
-46,
-7,
-11,
-3,
17,
15,
-2,
69,
-27,
36,
73,
-52,
17,
-46,
40,
34,
49,
16,
-27,
-39,
-13,
2,
-25,
-24,
-8,
-10,
13,
11,
-33,
-41,
46,
1,
-52,
6,
-68,
-13,
-3,
24,
8,
23,
3,
-3,
46,
11,
-1,
-84,
-33,
3,
43,
-76,
31,
33,
2,
5,
-19,
-2,
64,
15,
-12,
33,
25,
3,
-7,
-14,
35,
17,
26,
-9,
13,
43,
-7,
25,
0,
-28,
-15,
20,
22,
77,
7,
-26,
-25,
24,
11,
-3,
-39,
3,
-46,
42,
23,
27,
16,
22,
-7,
37,
-6,
22,
17,
-12,
1,
14,
0,
29,
6,
-13,
-35,
11,
27,
-43,
7,
-36,
111,
-3,
-21,
47,
-37,
51,
-53,
15,
33,
-16,
-51,
-2,
11,
24,
-50,
-30,
-30,
-11,
-4,
23,
7,
-18,
23,
-29,
93,
53,
2,
-6,
-32,
3,
-6,
-13,
-51,
-39,
10,
4,
32,
4,
35,
24,
0,
-16,
-28,
-7,
-15,
32,
9,
56,
-8,
-51,
62,
-29,
-51,
29,
2,
-27,
11,
-11,
94,
1,
-20,
-8,
1,
-23,
31,
0,
-25,
-1,
0,
15,
0,
22,
-81,
-15,
-29,
-31,
-75,
-23,
-12,
-15,
17,
-35,
21,
36,
-12,
-1,
38,
6,
15,
-22,
-4,
28,
0,
18,
-13,
8,
67,
-4,
47,
34,
-29,
-11,
-37,
-21,
19,
-18,
2,
9,
-10,
-9,
-19,
-18,
-26,
-43,
99,
-29,
2,
-18,
-22,
-71,
5,
-8,
25,
6,
39,
7,
-49,
-44,
3,
2,
53,
8,
1,
4,
3,
7,
-41,
-11,
-9,
-5,
11,
35,
-22,
-11,
-85,
-22,
6,
13,
13,
1,
17,
-19,
55,
22,
9,
72,
62,
12,
21,
18,
-14,
19,
1,
-13,
63,
-36,
3,
-7,
68,
7,
18,
-15,
7,
-49,
51,
3,
34,
44,
-21,
-6,
16,
13,
-3,
-4,
16,
15,
15,
-15,
21,
-11,
5,
8,
-10,
-27,
61,
-33,
-94,
-48,
7,
-44,
-7,
31,
15,
40,
-34,
5,
-40,
48,
-1,
6,
-26,
61,
33,
-25,
-56,
20,
-49,
13,
-14,
-34,
2,
-25,
17,
50,
7,
-6,
-58,
-11,
-18,
33,
-9,
35,
-21,
-43,
1,
-1,
-12,
27,
-47,
66,
-58,
-33,
-65,
-10,
65,
40,
-23,
-27,
-56,
-30,
-19,
18,
4,
7,
-13,
-3,
-16,
-29,
-9,
14,
-17,
-47,
36,
3,
37,
40,
-29,
-35,
-19,
-6,
9,
-13,
23,
-8,
17,
16,
58,
15,
0,
33,
-40,
-5,
22,
8,
29,
17,
21,
-17,
25,
-11,
16,
20,
23,
35,
13,
-53,
-14,
-13,
8,
-30,
0,
-46,
-17,
-10,
26,
-39,
-18,
52,
4,
31,
13,
-1,
4,
-24,
-4,
6,
1,
-49,
-45,
-23,
-29,
-2,
-34,
-32,
-60,
9,
27,
-6,
39,
25,
-18,
-12,
-48,
-37,
12,
2,
0,
-54,
7,
-22,
-21,
68,
-36,
20,
-10,
-20,
-24,
63,
6,
-35,
60,
5,
25,
28,
-5,
106,
31,
61,
-24,
28,
-47,
3,
-31,
19,
35,
-25,
38,
-21,
-15,
44,
-24,
67,
-47,
-15,
-12,
-9,
-17,
-78,
96,
-3,
-16,
-56,
-39,
-3,
2,
17,
24,
-12,
-1,
47,
-7,
-28,
77,
-59,
-8,
5,
-26,
84,
-40,
11,
7,
-44,
23,
-26,
-25,
-46,
16,
-42,
-36,
35,
-5,
-9,
-6,
-52,
-8,
-54,
-45,
-30,
18,
-14,
-8,
22,
-85,
37,
-17,
49,
0,
36,
-7,
-18,
-15,
1,
0,
40,
38,
-6,
-40,
-28,
-8,
44,
28,
53,
-43,
9,
-16,
10,
0,
12,
-18,
17,
1,
1,
1,
-51,
-8,
-58,
45,
5,
1,
-41,
2,
-12,
15,
-3,
-12,
7,
-28,
25,
-24,
-6,
-48,
34,
-17,
-18,
15,
72,
-10,
-45,
0,
-38,
41,
-36,
0,
5,
-9,
60,
-13,
19,
-20,
7,
10,
2,
-25,
69,
16,
2,
23,
-30,
9,
-40,
-10,
0,
47,
-41,
-19,
25,
37,
38,
-24,
-20,
-14,
17,
-13,
63,
7,
1,
46,
2,
29,
-24,
-28,
-22,
10,
-42,
58,
-14,
10,
-49,
-10,
20,
-43,
7,
-56,
25,
-7,
32,
-27,
-50,
-16,
3,
-38,
81,
-10,
44,
-48,
10,
-22,
36,
-21,
-30,
-39,
-53,
-33,
56,
27,
19,
-56,
-30,
4,
-15,
-27,
-21,
-22,
45,
-42,
-21,
-29,
48,
5,
57,
14,
-25,
3,
39,
-7,
-9,
-67,
1,
2,
22,
-5,
67,
-33,
46,
-1,
34,
24,
27,
-5,
0,
27,
0,
10,
-39,
0,
43,
-58,
-36,
0,
-13,
4,
31,
-48,
33,
-3,
-5,
-33,
-49,
0,
12,
-36,
-11,
-31,
36,
9,
38,
-2,
-23,
-12,
-50,
-38,
12,
-7,
-19,
0,
120,
25,
48,
27,
29,
76,
-13,
-54,
-3,
-18,
39,
0,
55,
0,
46,
-21,
-18,
70,
-80,
34,
39,
67,
-21,
-43,
2,
14,
-59,
56,
24,
-46,
4,
-55,
-49,
0,
-71,
5,
23,
34,
-17,
-29,
33,
-20,
45,
0,
-26,
-59,
15,
-32,
40,
87,
39,
23,
-56,
-17,
21,
2,
20,
-15,
39,
-15,
44,
21,
-11,
-30,
20,
-53,
15,
-33,
-23,
2,
10,
-23,
14,
20,
-4,
-45,
0,
21,
-29,
19,
-42,
-11,
-39,
5,
55,
26,
0,
-29,
5,
20,
-24,
33,
34,
-25,
19,
-36,
27,
25,
-16,
66,
9,
39,
-4,
-8,
-43,
-56,
5,
35,
-3,
-13,
-41,
56,
-41,
-52,
-9,
-43,
9,
7,
1,
54,
12,
-32,
-7,
43,
26,
31,
36,
-55,
0,
8,
18,
-6,
-4,
55,
-41,
-28,
31,
-12,
-8,
-43,
-17,
10,
39,
-14,
-38,
64,
22,
2,
6,
-35,
-5,
1,
-37,
44,
9,
47,
45,
-54,
-37,
7,
-14,
-24,
7,
67,
39,
3,
42,
2,
-27,
-38,
-39,
44,
-1,
-29,
0,
43,
-20,
-15,
-6,
21,
-31,
38,
25,
16,
88,
-3,
27,
-42,
-16,
23,
53,
21,
-4,
21,
11,
22,
44,
9,
-12,
-39,
-24,
-16,
-7,
20,
0,
-36,
-4,
6,
11,
38,
-1,
-12,
-41,
-16,
-55,
-35,
-58,
-5,
-27,
4,
-44,
-5,
1,
-38,
0,
-2,
-8,
-44,
46,
68,
88,
-19,
8,
-39,
-30,
-24,
-41
] |
MR. JUSTICE MATTHEWS
delivered the opinion of the court.
On September 29, 1925, the plaintiff, Josephine Kline, commenced action against James E. Murray, Marcus M. Murray, personally and as administrator of the estate of May A. Murray deceased and James McClarty, sheriff of Park county for damages for alleged false imprisonment. Issue was joined and the cause came on for trial before the court and jury on April 27, 1926. At the close of plaintiff’s case the court granted a nonsuit as to Marcus M. Murray, personally and as administrator and denied a like motion as to the remaining defendants, with the privilege of renewal at the close of all of the testimony. Both parties having finally rested, the defendants made separate motions for a directed verdict, whereupon the court stated: “I never directed a jury to return a verdict in my life. My judgment may not be their judgment, and the responsibility in this particular case is for the court, and the court is willing to assume it. I will sustain your motion for a nonsuit, or if you prefer a different motion at this time, such as a dismissal of the action for insufficiency of the evidence, I will sustain it.” The defendants then made separate motions for dismissal on the ground suggested, and each motion was sustained. On April 29, 1926, judgment was entered, and therein it was recited that the action was dismissed “on the merits,” and notice of entry was duly served on May 12 following. On May 21 plaintiff served and filed her motion to strike the phrase “on the merits” from the judgment, and a motion for a new trial, and thereupon filed an affidavit of disqualification' against the judge who tried the case. Owing to this latter action, considerable delay ensued and the motions were not disposed of until December 27, 1926. Plaintiff was thereafter granted additional time in which to prepare a bill of exceptions, and on January 21, 1927, the bill was served and service accepted by counsel for defendants “without waiving objection that it is too late to appeal or to settle a bill of exceptions.” The bill was settled over the objection of the defendants and exception thereto noted. No notice of appeal was given until February 18, 1927, when a notice, reciting that the plaintiff appeals from the “final” judgment entered April 29, 1926, from the judgment or order overruling the motion for a new trial, and from “the special, order made after final judgment” denying plaintiff’s motion to amend the judgment, was served and filed.
The first question to be considered is as to whether this court has jurisdiction to determine the matters presented by the appeals thus attempted to be perfected.
1. Was the filing of the notice of appeal and bond sufficient to confer jurisdiction upon this court to determine the questions presented on an appeal from the judgment, when it appears therefrom that nearly ten months elapsed between the entry of judgment and such filing?
The right to an appeal in law cases did not exist at common law; it is a remedy which, in the absence of constitutional restrictions, the legislature may grant or take away, in its discretion, and as to which it may prescribe such restrictions and limitations as it sees fit. (2 R. C. L. 26; State v. Black, 15 Mont. 143, 38 Pac. 674.)
Our Constitution (Art. VIII, secs. 2, 3 and 15) grants to this court appellate jurisdiction, to be exercised under “such limitations and regulations as may be prescribed' by law,” and under this constitutional provision and to the end that litigation shall not be unduly prolonged our legislature has wisely granted the right to appeal “from a final judgment within six months after the entry of judgment.” (Sec. 9732, Rev. Codes 1921, amended by Chapter 39, Laws 1925; State Bank of New Salem v. Schultze, 63 Mont. 410, 209 Pac. 599.) The period thus fixed is an express and peremptory limitation of time within which the right given by statute must be exercised (Bornheimer v. Baldwin, 42 Cal. 27) or this court acquires no jurisdiction in the matter (Emerson v. McNair, 28 Mont. 578, 73 Pac. 121; Butte Mining & Milling Co. v. Kenyon, 30 Mont. 314, 76 Pac. 696, 77 Pac. 319; Lindeberg v. Howe, 67 Mont. 195, 215 Pac. 230; Hodson v. O’Keeffe, 71 Mont. 322, 229 Pac. 722).
It is therefore apparent that the appeal from the judgment must be dismissed, unless we hold that the judgment entered was not a final judgment at the time of its entry and did not become final until the trial court had disposed of the motions for a new trial and a modification of the judgment.
2. On the effect of a motion for a new trial, or for a rehearing, on the statute limiting the time within which an appeal may be taken from a final judgment there are two diametrically opposite rules in existence in the United States, (a) Where the motion for a new trial or for a rehearing is seasonably made and was necessary to the consideration in the appellate court of the questions involved in the appeal, the time is to be computed from the date of the denial of the motion; and (b) as the legislature has seen fit to fix an express and peremptory limitation upon the time within which an appeal may be taken, it has no flexibility and cannot be varied by extrinsic circumstances, but in all eases, regardless of what takes place after the entry of judgment, the statute begins to run from the date of entry. We have not attempted to determine which rule prevails in each of the states, nor on which side, lies the numerical weight of authority. The first rule seems to have been adopted in Alabama, Arizona, Florida, Georgia, Illinois, Indiana, Louisiana, Kentucky, New Mexico, Nebraska, Utah and Washington, while the second prevails in California, Colorado, Iowa, North Dakota, Michigan, Ohio, Oklahoma, Oregon, Kansas, Wyoming and Texas.
In the Nebraska case of City of Lincoln v. First Nat. Bank, 64 Neb. 725, 90 N. W. 874, it is said that “numerically the courts of the different states are almost equally divided,” adding, “of course, in many of the jurisdictions referred to the language of the statute has much to do with the conclusions reached regarding the matter”; and in Romero v. McIntosh, 19 N. M. 612, 145 Pac. 254, the court said that the larger num ber of American appellate courts have given sanction to the first rule, but that it was idle to give lengthy consideration to the reasoning of the several courts, as the rule “should be, and generally has been considered, dependent upon statutory provisions of the different jurisdictions.”
The reason generally urged by those courts adopting the first rule is that the character of finality does not attach to the judgment until the motion for a new trial or a rehearing is disposed of, and, in the Indiana ease of New York Ry. Co. v. Doane, 105 Ind. 92, 4 N. E. 419, and certain of the other decisions so holding, this conclusion is reached by declaring that a motion for a new trial is not a collateral one, but is directly connected with the judgment, and an appeal from the judgment would oust the trial court of jurisdiction and prevent a ruling on the motion. This reasoning is not pursuasive with us, as we have followed the California court in declaring that: “Proceedings on a motion for a new trial are not in direct line of the judgment, but are independent and collateral thereto. Therefore, an appeal from the judgment does not divest the trial court of jurisdiction to hear and determine a motion for a new trial.” (Hoppin v. Long, 74 Mont. 558, 241 Pac. 636.)
Many of the cases in which the first rule is declared were decided under the practice of moving for a new trial before the entry of judgment, and in Illinois it is declared that a motion for a new trial made after the entry of judgment will not suspend the judgment pending a ruling on the motion. (People v. Gary, 105 Ill. 264; Hearson v. Graudine, 87 Ill. 115.)
3. As the provision of section 9732 above is for appeal from a “final judgment” within six months after its entry, it becomes material to determine what is meant by the term “final judgment.”
Section 9313, Revised Codes of 1921, defines a judgment as “the final determination of the rights of the parties in an action or proceeding.” Decrees in equity are judgments within the meaning of this section (Raymond v. Blancgrass, 36 Mont. 449, 15 L. R. A. (n. s.) 976, 93 Pac. 648; State ex rel. Happel v. District Court, 38 Mont. 166, 129 Am. St. Rep. 636, 35 L. R. A. (n. s.) 1098, 99 Pac. 291), and when a decree (or judgment) has been entered and no further questions can come before the court except such as are necessary for carrying it into effect, it is “final,” within the meaning of the Code (Arnold v. Sinclair, 11 Mont. 556, 28 Am. St. Rep. 489, 29 Pac. 340; Bryant v. Davis, 22 Mont. 534, 57 Pac. 143). The dismissal of an action, the granting of judgment of non-suit constitute “final” judgments. (Holter Lumber Co. v. Fireman’s Fund Ins. Co., 18 Mont. 282, 45 Pac. 207.) “Final judgment means the finish of judicial labor, pronouncement of the ultimate conclusion of the court upon the case and a direction to the clerk to enter judgment.” (In re Kelly’s Estate, 31 Mont. 356, 78 Pac. 579.)
“A final judgment is not necessarily the last one in an action. A judgment that is conclusive of any question in a case is final as to that question. The Code provides for an appeal from a final judgment, not from the final judgment in an action.” (State ex rel. Heinze v. District Court, 28 Mont. 227, 72 Pac. 613.) "When a court has once rendered the judgment as intended by it, it becomes “final” and must stand until it has been modified, revised or set aside in some manner provided by statute. (State ex rel. Smith v. District Court, 55 Mont. 602, 179 Pac. 831.)
It is therefore apparent that, under our Codes, the judgment of the trial court disposing of the questions presented on the trial and leaving nothing to be done except to take such steps as are necessary to carry the judgment into effect, it is the “final” judgment from .which the legislature has granted the right to appeal and nothing done thereafter can deprive such judgment of its character of finality, so long as it remains unaffected by the further order of the trial court or the appellate court in proceedings authorized by statute. Pending a motion for a new trial or an appeal from an order granting a new trial, an appeal will lie from the final judgment in the action, and the pendency of such matters neither vacate the judgment nor extends the time within which an appeal may be taken from the final judgment. (Henry v. Merguire, 111 Cal. 1, 43 Pac. 387; Puckhaber v. Henry, 147 Cal. 424, 81 Pac. 1105; Slattery v. Robinson, 7 Colo. App. 22, 42 Pac. 179; Cox v. American Express Co., 147 Iowa, 137, 124 N. W. 202; Travelers’ Ins. Co. v. Weber, 2 N. D. 239, 50 N. W. 703; Hill v. Hill, 114 Mich. 599, 72 N. W. 597; Dowty v. Pepple, 58 Ohio St. 395, 50 N. E. 923; Lee v. Summers, 36 Okl. 784, 130 Pac. 268; Hahn v. Astoria National Bank, 63 Or. 1, 114 Pac. 1134, 125 Pac. 284; Macartney V. Shipherd, 60 Or. 133, Ann. Cas. 1913D, 1257, 117 Pac. 814; Cooper v. Yoakum, 91 Tex. 391, 43 S. W. 871.)
It is held in California that a motion for a new trial may even be granted after the judgment has been affirmed on appeal. (Brison v. Brison, 90 Cal. 323, 27 Pac. 186; Water Co. v. Gage, 108 Cal. 243, 41 Pac. 299.)
This opinion was forecasted in Griswold v. Ryan, 2 Mont. 47, wherein it was held that leave to move for a rehearing in the district court “does not disturb the final character of the judgment,” and that the filing of such a motion did not prolong the time in which to appeal from the judgment.
4. We have heretofore discussed only the effect of a motion for a new trial and the cases cited deal with such a motion and motions for a rehearing, but the same rule applies to the motion to modify the judgment. (Russell v. First Nat. Bank, 65 Iowa, 242, 21 N. W. 585; Besser v. Alpena Circuit Judge, 155 Mich. 631, 119 N. W. 902; Travelers’ Ins. Co. v. Mayer, 2 N. D. 234, 50 N. W. 706.) In Russell v. Bank the court declared that a litigant cannot evade the express requirement of the statute by a motion to vacate or modify the judgment. In Buckley v. Sutton, 38 Mich. 1, it is said that “to hold otherwise would be to' defeat the statute and enable anyone to gain time by sham proceedings.”
Whatever may be the statutory provisions in jurisdictions holding to the first rule above referred to,- our legislature has declared in plain and understandable language that a party may appeal within six months after the entry of final judgment, and to now hold that any motion made after the entry of such a judgment tolls the statute would be attempted judicial legislation. If the statutory requirement causes embarrassment to the profession, the relief must be sought at the hands of the law-making body of the state. (Gearin v. Portland Ry. etc. Co., 62 Or. 162, 124 Pac. 258.) The appeal from the judgment must be dismissed.
5. It will be noted that plaintiff has attempted to appeal from the order denying her a new trial in face of the fact that such an appeal has been done away with in this state. (Hoppin v. Long, above.) Counsel contends that Chapter 225, Laws of 1921, now section 9745, Revised Codes of 1921, abolishing such an appeal, is void as violative of section 23 of Article V of our Constitution. The title to the Act challenged is “an Act for the general revision of the Civil and Criminal Practice Acts, * * * relating to exceptions, bills of exceptions, new trials and appeals, * * * ” amending certain sections and repealing certain sections.
Section 23, Article V, of the Constitution provides, in effect, that if an Act shall contain any subject not embraced in the title thereto, it shall be void as to that subject. The title of the Act in question sufficiently advised the members of the legislature and the people generally that it was intended thereby to revise the law relating both to “new trials” and “appeals,” and was sufficient, without enumerating the sections to be amended or repealed, to meet the well-known purpose of the limitation placed on the law-making body by the Constitution. (In re Ryan, 20 Mont. 64, 50 Pac. 129; State ex rel. Hay v. Alderson, 49 Mont. 387, Ann. Cas. 1916B, 39, 142 Pac. 210; State ex rel. Foot v. Burr, 73 Mont. 586, 238 Pac. 585.)
The appeal from the order denying plaintiff a new trial must therefore be dismissed.
Rehearing denied July 7, 1927.
As to the attempted appeal from the order denying plaintiff’s motion to amend the judgment by striking out the phrase, “on the merits,” the appeal was timely, if such an appeal lies to this court. (Sec. 9732, above.)
However, whether right or wrong, the trial court declared the judgment to be “on the merits” as its decision on the question; the phrase did not creep into the judgment by accident or mistake, and the court was powerless thereafter to strike out the phrase. Courts have power to amend judgments to the end that they will express what the court actually decided (Power & Bro. v. Turner, 37 Mont. 521, 97 Pac. 950), but errors into which the court itself falls can be corrected only by motion for a new trial or by appeal. The reason for the rule is manifest. If, upon the application of one party, the court could change its judgment to the prejudice of the other, it could thereafter, on application of the latter, again change the judgment and continue this practice indefinitely. (Merhar v. Powers, 73 Mont. 451, 236 Pac. 1076.) The only method by which the alleged error in the judgment could be corrected was on appeal from the judgment; as that appeal was not taken within time, the attempted appeal from the order is ineffectual.
We may say, in passing, that as the court denied defendants’ motion for nonsuit and dismissed the action only after hearing all of the evidence, and the defendants only moved for dismissal after the court, for personal reasons, refused to entertain a motion for a directed verdict, to all intents and purposes the dismissal was upon a directed verdict and, therefore, “on the merits” in fact as well as by declaration of the court.
For the reasons stated, the judgment must be affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Myers, Stark and Galen concur.
|
[
-47,
-14,
12,
-33,
-29,
-52,
40,
-11,
-14,
24,
-24,
-25,
-12,
-12,
-9,
-28,
-49,
-44,
36,
-4,
11,
3,
2,
20,
-44,
5,
-50,
10,
-25,
4,
67,
-6,
-14,
-9,
-8,
19,
-33,
-24,
-13,
-7,
36,
30,
-18,
24,
-28,
10,
18,
14,
-18,
6,
-29,
-45,
46,
25,
-31,
-3,
0,
53,
-12,
44,
-14,
-6,
-32,
37,
60,
-51,
19,
-38,
-21,
-18,
-18,
-2,
19,
7,
-10,
4,
-36,
-49,
5,
-22,
-17,
-1,
12,
43,
-43,
-50,
-55,
-86,
-16,
35,
11,
23,
-13,
14,
10,
1,
35,
0,
14,
4,
-1,
-54,
-57,
0,
37,
21,
-56,
58,
11,
39,
-22,
9,
22,
19,
-14,
-33,
26,
-44,
-20,
-10,
44,
62,
-12,
-18,
32,
-1,
-47,
26,
55,
0,
-23,
-7,
44,
-33,
0,
22,
-19,
-23,
13,
-11,
27,
-1,
-57,
-51,
51,
16,
-29,
1,
-44,
-16,
-78,
0,
37,
23,
18,
-39,
16,
-85,
-7,
-1,
40,
11,
24,
-25,
31,
30,
-21,
-59,
58,
-30,
-33,
-10,
-3,
-27,
42,
1,
-40,
-52,
-41,
-28,
10,
52,
-15,
-46,
-41,
-1,
-3,
16,
14,
45,
-5,
-30,
10,
-18,
2,
-4,
74,
24,
43,
34,
24,
-5,
14,
30,
-41,
-15,
5,
-14,
42,
-27,
0,
-54,
-38,
-7,
-3,
-6,
-27,
13,
-50,
30,
-2,
16,
-23,
24,
2,
-67,
-5,
19,
6,
5,
-46,
59,
-29,
26,
36,
-2,
-29,
0,
-6,
13,
-31,
-7,
22,
4,
31,
75,
-13,
-15,
-4,
18,
19,
-4,
-7,
57,
11,
3,
59,
-25,
-32,
-27,
26,
-21,
-33,
15,
-40,
0,
19,
-32,
0,
20,
34,
-16,
48,
44,
9,
-49,
-4,
16,
85,
8,
-28,
-22,
46,
20,
32,
-89,
-6,
2,
-16,
23,
6,
-9,
-3,
76,
50,
3,
-5,
55,
-45,
33,
-52,
30,
9,
-31,
2,
33,
-38,
-29,
-33,
0,
-16,
45,
11,
-36,
39,
36,
-32,
-42,
55,
-20,
-45,
0,
-4,
-8,
3,
-14,
-8,
17,
46,
13,
27,
23,
30,
5,
-56,
-12,
46,
46,
29,
13,
-43,
16,
-42,
3,
-32,
-20,
-9,
-28,
2,
21,
-1,
-5,
-20,
21,
-40,
8,
-6,
-30,
7,
30,
-4,
29,
16,
26,
0,
-2,
-17,
-38,
26,
19,
0,
4,
-15,
6,
14,
-6,
6,
33,
3,
42,
-14,
-27,
12,
2,
9,
22,
-21,
-28,
-11,
24,
15,
8,
-24,
12,
-19,
19,
6,
36,
-43,
-22,
-16,
0,
-38,
2,
-68,
9,
-48,
31,
-65,
9,
8,
-32,
29,
-41,
22,
-25,
-6,
-5,
63,
5,
45,
26,
76,
10,
-33,
-8,
82,
17,
-10,
-17,
37,
68,
37,
-12,
0,
33,
-8,
-13,
-26,
30,
7,
82,
7,
10,
15,
-13,
5,
-33,
6,
3,
18,
34,
15,
-68,
22,
22,
14,
1,
2,
18,
51,
-15,
-44,
59,
-13,
15,
-27,
-44,
-42,
-4,
-34,
6,
24,
-29,
4,
22,
-24,
-18,
48,
11,
7,
-14,
20,
4,
5,
16,
-21,
-34,
15,
-7,
-24,
-3,
1,
-23,
-62,
-33,
-15,
-64,
8,
-42,
-63,
5,
54,
27,
-29,
14,
11,
-39,
-43,
20,
56,
-2,
-13,
40,
-15,
-32,
43,
25,
10,
-29,
40,
-17,
-7,
61,
-56,
-25,
-8,
-75,
0,
5,
-31,
41,
-38,
-19,
19,
-14,
-38,
-7,
17,
-25,
10,
-4,
23,
30,
-9,
31,
-22,
-21,
12,
-52,
90,
-12,
-9,
-23,
2,
-31,
-12,
4,
-16,
-30,
35,
18,
-6,
-40,
16,
23,
-33,
-33,
36,
-2,
16,
14,
-15,
-31,
-17,
-2,
-18,
66,
15,
14,
55,
1,
23,
-33,
-41,
-2,
21,
-32,
-32,
34,
-28,
-28,
11,
2,
32,
-11,
-46,
-18,
-46,
12,
0,
21,
41,
7,
-11,
36,
-3,
15,
35,
-55,
49,
5,
-43,
0,
18,
14,
-27,
-20,
-15,
-1,
-13,
-13,
1,
-26,
4,
9,
-75,
-12,
-29,
20,
19,
20,
-21,
36,
-2,
50,
-60,
44,
16,
2,
0,
46,
67,
30,
-32,
18,
0,
-43,
46,
-16,
4,
-1,
13,
-53,
-35,
62,
73,
-23,
34,
-56,
68,
31,
-55,
-9,
-29,
-24,
31,
4,
2,
42,
7,
-9,
29,
-55,
15,
-17,
26,
7,
4,
-22,
-19,
7,
7,
10,
21,
-12,
-17,
46,
15,
14,
-1,
30,
27,
77,
-5,
12,
6,
-2,
0,
-31,
2,
-56,
46,
14,
-49,
1,
30,
-48,
25,
-59,
-74,
-13,
-45,
-5,
-11,
15,
4,
-34,
-20,
-9,
-2,
20,
0,
15,
-37,
-9,
25,
8,
28,
5,
25,
60,
7,
4,
31,
29,
-42,
-41,
-29,
46,
-15,
-5,
-27,
23,
-13,
49,
-4,
-26,
51,
20,
25,
11,
37,
-19,
-20,
12,
56,
14,
-12,
-16,
12,
54,
-35,
11,
0,
15,
25,
-7,
-89,
6,
-3,
5,
-5,
25,
33,
38,
5,
58,
-2,
10,
-47,
32,
-58,
-40,
20,
12,
17,
24,
29,
62,
4,
-64,
-24,
6,
12,
2,
-17,
-39,
-9,
73,
23,
8,
22,
33,
73,
42,
14,
51,
24,
64,
6,
23,
-12,
15,
-11,
-35,
-14,
-24,
-22,
-66,
-3,
-10,
22,
42,
18,
0,
-35,
22,
-48,
6,
-35,
-50,
-20,
1,
27,
-11,
23,
68,
-41,
22,
-26,
21,
-8,
19,
5,
20,
43,
-10,
-13,
-15,
31,
-22,
-45,
6,
-56,
-13,
12,
-75,
-8,
18,
13,
0,
-33,
-74,
80,
21,
-17,
-53,
7,
25,
-23,
28,
39,
-16,
-24,
24,
36,
-61,
-19,
87,
-20,
29,
-51,
18,
22,
-25,
27,
-30,
38,
-11,
-19,
-6,
-2,
-29,
-14,
4,
34,
-36,
20,
24,
-7,
-46,
39,
-2,
21,
-48,
36,
51,
61,
-3,
0,
-14,
-17,
-33,
-20,
-10,
-26,
-32,
9,
3,
49,
25,
-25,
-19,
50,
2,
22,
-13,
-38,
71,
-68,
30,
18,
-80,
-1,
37,
-15,
-10,
-24,
-35,
-30,
-39,
34,
22,
3,
10,
41,
-44,
-28,
16,
20,
2,
-53,
-26,
1,
8,
-24,
-24,
33,
5,
-9,
-9,
-3,
2,
-14,
-38,
0,
0,
72,
46,
-15,
-11,
57,
-57,
-26,
-51,
13,
-38,
-13,
-44,
33,
-15,
25,
-4,
-17,
35,
-29,
9,
-9,
-20,
61,
5,
6,
45,
38,
-1,
-4,
-25,
-2,
-20,
39,
7,
-2,
-10,
-56,
-38,
-54,
7,
-11,
1,
-18,
-17,
-16,
-21,
-4,
37,
-19,
-52,
-70,
17,
-5,
-12,
26,
46
] |
MR. CHIEF JUSTICE HASWELL
delivered the opinion of the Court.
Burch Palmer brought declaratory judgment action in the Sixteenth Judicial District Court, Custer County, for the purpose of determining the constitutionality of section 23-5-311, MCA. Palmer appeals from the District Court’s order declaring the statute constitutional. We affirm.
On appeal Palmer raises the following issues:
.1. Does section 23-5-311, MCA, unconstitutionally deny equal protection of the laws.
2. Is section 23-5-311, MCA, special legislation which violates 1972 Mont.Const., Art. V, § 12?
3. Is section 23-5-311, MCA, void for vagueness?
Palmer is the owner and operator of the Alta Saloon in Miles City, Montana. On August 8, 1979, the State filed an information charging Palmer with conducting an unauthorized card game, specifically a blackjack game, in violation of sections 23-5-311 and 331, MCA. Palmer challenged the constitutionality of the statutes, but the District Court ruled adversely to Palmer and this Court declined to issue a writ of supervisory control. The parties then stipulated that the State would stay any further prosecution pro ceedings if Palmer brought the instant declaratory action. This appeal follows the District Court ruling in favor of the State in declaratory action.
Section 23-5-311, MCA, reads as follows:
“Authorized card games: (1) It is unlawful for any person to conduct or participate in any card game or make any tables available for the playing of card games except those card games authorized by this part.
“(2) The card games authorized by this part are and are limited to the card games known as bridge, cribbage, hearts, panguingue, pinochle, pitch, rummy, whist, solo, and poker.”
Palmer argues the section must be declared invalid as a denial of equal protection because it distinguishes between different activities within the same generic class of card games absent any rational basis or compelling state interest to support the distinction. Palmer insists this statutory classification discriminates not only against certain card games, but also against gamblers who desire to conduct and participate in those unauthorized card games.
Nevertheless we find the statute applies uniformly across-the-board to all persons within the State of Montana. There is consequently no classification whatever. Accordingly the equal protection argument is not properly before üs, and we need not engage in equal protection analysis as set forth in State v. Jack (1975), 167 Mont. 456, 539 P.2d 726. Instead, we need go no further than State, Etc. v. District Court, Etc. (1979), 180 Mont. 548, 591 P.2d 656, 36 St.Rep. 489, (hereinafter Zander), in disposing of this issue.
In Zander we held:
“Criminal statutes need not apply to all areas that may be injurious to public health and failure of the legislature to do so does not constitute denial of equal protection of the laws. (Citing case.) Determination or classification of the subjects of legislation does not deny equal protection. (Citing cases.) If all persons in the same class are treated alike, there is no violation of equal protection. (Citing cases.) Here there is but one class and all persons within that class are treated equally satisfying constitutional equal protection requirements.” 591 P.2d at 661, 36 St.Rep. at 494, 495.
We do not reach a determination of whether any, some or all card games should be authorized. This is patently a question of state law for determination by the legislature. The legislature has spoken in this instance through its enactment of the Card Games Act, sections 23-5-301, et seq., MCA. The Act expresses the legislative intention that only certain card games by which participants vie against one another, inter se, shall be authorized and that card games where each player vies against the house are prohibited. The obvious legislative purpose is to ban casino-type gambling. Since the legislature has exercised its authority in an evenhanded fashion, it has not run afoul of the equal protection doctrine. We therefore will not intrude on the legislative prerogative under the questionable theory that there is no policy basis for the Act and that the legislature had no rational basis for its enactment. Zander, 591 P.2d at 660, 36 St.Rep. at 493.
Palmer’s second argument is a corollary to his first: that section 23-5-311, MCA, is special legislation which discriminates against blackjack and those gamblers who prefer to play blackjack. Palmer insists the special legislation violates 1972 Mont.Const. Art. V, § 12. This approach toward invalidating the statute is equally unpersuasive.
In Arps v. State Highway Commission (1931), 90 Mont. 152, 164-5, 300 P. 549, 554, overruled on other grounds, Burgan & Walker v. State Highway Common (1943), 114 Mont. 459, 137 P.2d 663, this Court articulated the following distinction between special and general legislation:
“The object of the prohibition of special or local laws is to prevent a diversity of laws relating to the same subject. (Citations.) A law is not local or special in a constitutional sense that operates in the same manner upon all persons in like circumstances. ‘General laws are those which relate to or bind all within the jurisdiction of the law-making power, and if a law is general and operates uniformly and equally upon all brought within the relation and circumstances for which it provides it is not a local or special law in the constitutional sense.’ ”
As we have already noted, section 23-5-311, MCA, makes it unlawful for any person to conduct or participate in any card game not specifically authorized. The statute is general and operates uniformly and equally upon all persons in the State of Montana. The statute thus clearly is a general rather than a local or special law in the constitutional sense.
Palmer lastly attacks section 23-5-311, MCA, on vagueness grounds. He argues that since there are no provisions defining the authorized card games such as poker, or the unauthorized card games such as blackjack, it is not possible for a prospective card game operator or participant to adequately determine whether a given game is authorized under the statute.
We need not address the merits of this issue. The word “poker”, which Palmer is here attacking as unconstitutionally vague, is of ancient and common understanding. Palmer is apparently knowledgeable of the meaning of poker, at least to the .extent that blackjack is not encompassed within that meaning. At no time has Palmer contended the blackjack game he conducted at the Alta Saloon was a variation of poker. Palmer’s counsel admitted at oral argument that Palmer and others in his position in fact realize that blackjack definitely is not a variation of poker. Since Palmer was neither injured nor jeopardized by the alleged vagueness of the word “poker”, hence by the operation of the statute, he lacks understanding to challenge its constitutionality on that basis. State v. Kirkland (1979), 184 Mont. 229, 602 P.2d 586, 590, 36 St.Rep. 1963, 1966; State v. McFarlan (1927), 78 Mont. 156, 252 P. 805.
Affirmed.
MR. JUSTICES DALY, HARRISON, SHEA, MORRISON and WEBER concur.
|
[
16,
41,
60,
19,
17,
-9,
-8,
35,
-65,
44,
17,
40,
22,
-24,
22,
-31,
-28,
0,
26,
7,
-3,
6,
-53,
7,
29,
19,
65,
19,
-8,
0,
-3,
-16,
-1,
15,
-61,
5,
-2,
17,
-26,
-16,
0,
13,
-23,
29,
-1,
7,
18,
-28,
29,
-24,
-42,
-73,
-30,
24,
-4,
24,
12,
-36,
-32,
21,
-15,
-28,
33,
0,
68,
-55,
-13,
-43,
51,
-66,
-4,
-31,
-71,
-75,
-44,
-18,
22,
-44,
-35,
-35,
-33,
34,
-14,
-29,
-9,
11,
51,
12,
51,
-57,
-23,
0,
-5,
-45,
11,
60,
12,
-13,
-9,
-49,
15,
-18,
-37,
15,
9,
-30,
8,
16,
66,
18,
-36,
7,
-63,
-46,
-20,
36,
-34,
51,
-32,
-33,
-17,
9,
-19,
86,
-19,
0,
1,
42,
-60,
35,
12,
17,
19,
21,
-12,
3,
-33,
23,
-9,
-28,
58,
-44,
44,
29,
9,
-58,
31,
38,
-18,
-7,
57,
-16,
35,
77,
-38,
-58,
-33,
13,
8,
5,
-39,
-12,
-22,
0,
27,
15,
-32,
-15,
0,
-11,
-3,
-27,
18,
2,
18,
1,
17,
1,
-13,
-13,
-79,
58,
0,
-6,
-2,
22,
9,
-64,
11,
20,
0,
-73,
34,
11,
47,
16,
-17,
9,
-6,
-52,
6,
11,
7,
-18,
4,
28,
-17,
-42,
-62,
-87,
-8,
2,
6,
-17,
7,
1,
2,
-42,
-29,
-20,
-13,
6,
-20,
23,
-31,
-107,
-15,
-16,
10,
2,
-19,
49,
35,
17,
19,
32,
-1,
-70,
11,
23,
-33,
4,
-38,
-27,
28,
-12,
-28,
-2,
-7,
-13,
-7,
-43,
30,
45,
6,
21,
19,
29,
-27,
-32,
18,
-16,
-1,
-43,
23,
33,
10,
-11,
-6,
-3,
35,
-30,
47,
9,
-19,
-59,
30,
34,
-15,
-36,
0,
21,
2,
80,
-35,
-2,
-86,
-59,
10,
-2,
-14,
71,
-20,
25,
-7,
-18,
70,
-29,
16,
42,
26,
23,
59,
28,
-5,
-17,
-6,
-9,
16,
-48,
2,
0,
-20,
-21,
15,
-14,
-11,
5,
-20,
-26,
-5,
-65,
73,
-4,
5,
-7,
62,
-26,
-8,
27,
23,
12,
11,
3,
-8,
-24,
51,
-15,
10,
-2,
-25,
-72,
69,
-22,
6,
-5,
-15,
23,
-19,
-58,
-30,
-20,
6,
-27,
48,
27,
-16,
-23,
-21,
23,
29,
59,
-41,
-28,
18,
-7,
-7,
46,
9,
11,
-41,
-13,
45,
27,
27,
57,
24,
-11,
-15,
43,
-16,
-25,
27,
-50,
29,
41,
20,
-64,
6,
-15,
1,
-33,
-4,
35,
6,
41,
-27,
27,
40,
-16,
43,
5,
-16,
-3,
-16,
-55,
49,
-27,
-45,
5,
-33,
32,
-1,
-3,
19,
110,
-15,
30,
-70,
-1,
-2,
-74,
2,
15,
49,
-85,
-62,
13,
-57,
11,
-28,
-25,
-23,
-39,
-19,
-12,
26,
0,
36,
-14,
8,
-32,
-8,
-14,
11,
-22,
66,
11,
-18,
-19,
43,
19,
-21,
9,
-23,
49,
12,
-12,
-88,
-70,
-7,
65,
-29,
8,
51,
12,
-73,
11,
42,
-17,
16,
46,
-2,
53,
-37,
56,
71,
5,
16,
-27,
2,
27,
39,
22,
-35,
-58,
-15,
31,
-9,
25,
0,
5,
3,
-10,
-9,
10,
-16,
65,
-14,
2,
1,
11,
2,
-8,
-20,
-40,
-26,
-11,
-21,
54,
-36,
8,
49,
25,
13,
12,
25,
-18,
-81,
5,
34,
-27,
-49,
0,
-25,
-40,
-47,
24,
39,
-74,
30,
16,
-19,
-76,
-17,
9,
32,
-5,
-3,
-48,
42,
6,
28,
27,
-1,
16,
11,
-41,
61,
13,
22,
-1,
-22,
13,
23,
3,
-69,
-10,
-20,
21,
-10,
53,
-38,
1,
-20,
10,
-79,
-7,
5,
3,
1,
49,
-40,
-5,
0,
-14,
76,
-60,
-6,
33,
-15,
15,
-18,
-17,
-2,
11,
7,
10,
-4,
-41,
24,
-38,
-16,
2,
22,
52,
17,
2,
-50,
23,
-19,
-29,
-4,
17,
17,
-66,
-9,
-34,
-1,
3,
-11,
65,
20,
-6,
37,
17,
-44,
-61,
24,
26,
33,
37,
-10,
-16,
28,
-29,
-26,
27,
32,
-63,
3,
-51,
42,
-50,
-13,
-37,
6,
50,
-39,
-16,
-15,
68,
23,
6,
0,
-5,
24,
38,
-19,
-31,
28,
26,
-15,
-55,
20,
-29,
-50,
47,
-4,
-1,
20,
5,
23,
40,
8,
30,
37,
38,
1,
11,
21,
15,
33,
-31,
59,
-29,
-21,
-19,
29,
0,
-43,
-19,
19,
-62,
28,
64,
1,
21,
9,
3,
34,
-42,
-19,
-27,
41,
-4,
-59,
-17,
-62,
-52,
-19,
5,
-3,
5,
-30,
-10,
-38,
-32,
-39,
20,
-24,
8,
35,
-48,
6,
-40,
-40,
-12,
-75,
-6,
0,
10,
-28,
7,
24,
20,
-3,
15,
-20,
-19,
-63,
6,
-38,
5,
-3,
26,
-24,
17,
-13,
31,
-22,
20,
37,
42,
-32,
-30,
-14,
9,
20,
64,
10,
-42,
-48,
6,
-15,
17,
-39,
32,
68,
-55,
0,
3,
48,
-6,
-35,
-3,
1,
46,
0,
18,
37,
-69,
-30,
6,
-6,
-5,
47,
-26,
11,
0,
22,
-4,
17,
11,
11,
0,
-3,
39,
-10,
29,
-24,
50,
-50,
26,
-25,
-9,
-15,
13,
-20,
6,
-3,
25,
74,
58,
11,
-28,
-2,
-7,
28,
-45,
-54,
-49,
39,
3,
9,
-27,
0,
18,
12,
-71,
54,
-14,
-56,
-37,
-31,
-25,
0,
3,
29,
3,
8,
38,
11,
-16,
-18,
22,
-4,
-24,
43,
-12,
-37,
6,
-14,
53,
28,
5,
18,
15,
28,
-4,
3,
59,
2,
-37,
14,
24,
-7,
-17,
57,
32,
31,
40,
-41,
-17,
-19,
-13,
23,
-14,
54,
9,
-45,
26,
62,
-5,
-20,
20,
6,
19,
-6,
-8,
6,
-36,
-38,
0,
54,
-49,
-53,
23,
31,
-11,
33,
-39,
1,
45,
-7,
-3,
-41,
14,
62,
-68,
-17,
-33,
-28,
-14,
70,
67,
8,
23,
12,
57,
82,
-1,
13,
34,
18,
29,
0,
-2,
-2,
12,
30,
109,
16,
-4,
1,
19,
-29,
-25,
14,
54,
-76,
3,
-23,
12,
6,
23,
-48,
50,
14,
40,
-22,
-1,
33,
14,
-23,
6,
-20,
-23,
-40,
39,
-13,
-1,
-14,
59,
-21,
3,
-12,
72,
-14,
-11,
7,
-7,
19,
19,
26,
-53,
2,
-17,
18,
-1,
-38,
26,
29,
19,
-40,
27,
-20,
24,
9,
-70,
-47,
11,
41,
44,
20,
38,
-75,
49,
37,
-21,
0,
-24,
-67,
-21,
51,
19,
-23,
52,
28,
-43,
38,
-11,
-28,
-84,
17,
0,
-51,
-15,
24,
13,
-1,
-9,
15,
-22,
-21,
-1,
50,
35,
-16,
-10,
-34,
38,
-27,
-15
] |
MR. JUSTICE SHEEHY
delivered the opinion of the Court.
Copetitioner Elaine Quinn appeals from an order of contempt of court in the Fifth Judicial District Court, Beaverhead County and from the court order dismissing her petition for modification of the decree of dissolution which ended her marriage to copetitioner Daniel Quinn.
On September 15, 1978, Elaine and Daniel Quinn filed a joint petition for dissolution of their marriage in the Beaverhead County District Court. One month later, the court entered a decree of dissolution. The court incorporated into its decree the terms of a written separation agreement made by the Quinns which divided their property and specified terms of custody regarding their children — Deirdre, Colby and Carson Quinn. The child custody provisions of the Quinn’s separation agreement provide as follows:
“6. It is hereby agreed that Husband and Wife are the fit and proper persons to be granted the joint care, custody and control of the minor children of the parties. It is understood and agreed that until the said children reach legal age or are otherwise emancipated, Husband will most probably exercise the greater amount of care and control of said children, since the children will continue to reside with Husband at the family home near Dillon, Montana. This arrangement is not to be construed against Wife in any way.
“7. It is specifically agreed that neither Husband nor Wife shall remove the minor children from the State of Montana without the express written consent of the other party and upon such terms and conditions for visitation by the other party as may thereupon be agreed upon by amendment to this Agreement.
“8. Notwithstanding anything set forth herein, it is fully understood and agreed that each of the parties may exercise their respective custody rights in any way, provided that such exercise of rights does not unduly inconvenience the other party, and is mutually satisfactory to the parties. The parties mutually agree that the wishes of the said minor children shall be the deciding factor in this regard.”
One year after the entry of this decree of dissolution and the execution of this custody agreement, Elaine Quinn filed a petition to modify the child custody arrangement. She requested that the court terminate her husband’s custody rights and that custody of the children be placed with her alone. In an accompanying affidavit, she alleged that the best interests of the children were not being served by the present custody arrangement.
At the time Elaine Quinn filed her modification petition, she was living in Bozeman, Montana, and attending Montana State University. She had physical custody of Carson Quinn. Deirdre and Colby Quinn were staying with their father at the family home near Dillon, Montana. Since the divorce, however, all three children have been passed back and forth between parents, a number of times.
In response to the modification petition and in an attempt to recover Carson from his ex-wife, Daniel moved the District Court to hold a hearing requiring Elaine to show cause why she should not be held in contempt of court. Daniel claimed that by the terms of the separation agreement, he was awarded sole custody of all three children. He contended that his wife was violating their agreement and the court decree by keeping Carson Quinn in Bozeman without his permission. The District Court agreed with Daniel’s interpretation of the agreement and found Elaine in contempt of court for not returning Carson to Dillon. This contempt order was stayed by the court pending its decision regarding Elaine’s modification petition.
On February 19, 1980, the Court held a hearing on the modification petition. Following the hearing, the court entered findings of fact, conclusions of law and a decree dismissing Elaine’s request to change the parties’ child custody arrangement. Findings of fact nos. Ill and V made by the court include:
“That the provisions of the child custody Agreement awarded custody of the three (3) minor children, Deirdre P. Quinn, Colby S. Quinn and Carson K. Quinn, to Daniel Quinn and allowed reasonable visitation to Elaine Quinn;
“That Daniel Quinn has petitioned this Court for an Order holding Elaine Quinn in Contempt for failure to return the youngest child, Carson Quinn, as required by the Agreement incorporated in the Decree of Dissolution;”
In her appeal following the entry of the court’s decree, Elaine Quinn presents a number of issues for our review concerning both the contempt order and the dismissal order. We accept review of the court’s dismissal of the modification petition as an appeal from the District Court, and we accept review of the court’s contempt of court order as a request for review by writ of certiorari. We reverse both the decree of the District Court and the contempt of court order.
As we read the Quinn’s separation agreement, Daniel and Elaine Quinn were awarded joint custody of their children. The District Court erred in finding that the agreement gave only Daniel Quinn the rights of legal and physical custody of the Quinn children. The agreement clearly reads that “. . . Husband and Wife are ... to be granted the joint care, custody and control of the minor children ...” Montana courts are required by statute to interpret dissolution of marriage agreements by the law of contracts. Section 40-4-201(5), MCA. If the language used in a contract is clear and explicit, it controls the contract’s interpretation. Section 28-3-401, MCA. The District Court’s findings of fact nos. Ill and V are clearly erroneous and must, be reversed. Rule 52(a), M.R.Civ.P. The District Court contempt of court order must also be reversed because Elaine Quinn committed no act or omission contemptuous of the authority of the court by keeping her son with her pursuant to the joint custody agreement. See, section 3-1-501, MCA.
We remand this case to the District Court for an additional hearing to determine whether the best interests of Deirdre, Colby and Carson Quinn are being served by the present joint custody arrangement. We recognize there are advantages in the joint custody alternative to the single parent custody/non-custodial parent visita tion arrangement, but there are also important disadvantages to this alternative. In this case, for example, with the parents living a distance apart, the joint custody arrangement appears only to be fostering antagonism between Daniel and Elaine Quinn and instability in the children’s home environment.
Reversed and remanded.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, HARRISON and SHEA concur.
|
[
-13,
-17,
-6,
58,
-22,
-46,
3,
38,
-21,
1,
-52,
21,
29,
-8,
-56,
-23,
-39,
-54,
-25,
-24,
-33,
21,
-47,
23,
61,
29,
42,
-59,
-4,
-17,
-23,
-78,
-24,
-41,
7,
-32,
31,
16,
26,
9,
18,
3,
-5,
1,
-20,
-20,
-55,
-18,
-11,
76,
-17,
-57,
60,
3,
10,
-9,
-19,
59,
-54,
-7,
-53,
32,
-22,
60,
42,
-36,
58,
-7,
23,
-9,
58,
-9,
-40,
-36,
-75,
-6,
46,
-24,
-17,
45,
-7,
-18,
-47,
-39,
17,
-18,
-64,
42,
2,
74,
0,
58,
3,
-29,
-20,
-16,
-38,
-33,
3,
10,
-27,
-52,
9,
20,
27,
19,
-8,
-1,
18,
0,
-37,
0,
-18,
-19,
30,
11,
-51,
16,
23,
-27,
-27,
27,
-53,
-19,
20,
-93,
2,
-6,
11,
36,
-58,
48,
42,
-30,
5,
20,
-14,
-15,
10,
-68,
34,
-55,
49,
-39,
19,
13,
-39,
-65,
3,
-81,
16,
5,
40,
42,
58,
-20,
-49,
16,
27,
26,
13,
24,
6,
48,
-6,
-38,
-14,
-17,
12,
55,
1,
11,
-82,
2,
6,
60,
-41,
23,
-32,
16,
-36,
61,
-19,
-37,
14,
28,
21,
0,
-56,
-39,
-2,
-36,
48,
-9,
0,
-13,
22,
15,
-8,
-22,
-41,
78,
2,
13,
12,
-4,
-29,
6,
19,
-91,
5,
22,
-52,
19,
-38,
-2,
25,
7,
-39,
-1,
80,
-4,
-18,
-53,
-58,
-26,
33,
30,
-27,
0,
-17,
17,
33,
-38,
0,
22,
-4,
-15,
-19,
9,
12,
-36,
23,
-3,
60,
49,
-4,
-6,
-7,
33,
-51,
17,
14,
46,
55,
-6,
-6,
43,
-37,
9,
42,
-49,
-22,
10,
-4,
-2,
10,
-54,
38,
18,
100,
32,
27,
1,
-3,
-1,
33,
5,
2,
-15,
24,
46,
-43,
10,
22,
-23,
-27,
-27,
4,
37,
-77,
3,
18,
-40,
50,
-28,
50,
-44,
-28,
24,
44,
-3,
0,
91,
-43,
19,
-54,
24,
28,
-15,
55,
19,
-30,
-13,
4,
-42,
-43,
-19,
-28,
87,
25,
7,
56,
9,
2,
-11,
33,
37,
20,
19,
55,
8,
-3,
-32,
47,
1,
-18,
9,
0,
-2,
-19,
-37,
7,
-20,
-52,
-9,
38,
23,
-21,
-14,
-11,
41,
21,
26,
-16,
-6,
-16,
-39,
6,
-35,
19,
3,
-61,
-16,
-37,
67,
66,
14,
0,
14,
-7,
23,
63,
-12,
23,
31,
20,
0,
2,
42,
-33,
-13,
-20,
-15,
12,
-27,
-28,
-2,
30,
-62,
61,
-15,
-3,
-19,
14,
-35,
2,
24,
5,
-1,
23,
13,
-68,
-18,
-14,
5,
-12,
-48,
15,
4,
-11,
-49,
-14,
6,
24,
7,
-31,
-2,
-14,
9,
-47,
-16,
1,
-25,
-44,
38,
-5,
-89,
3,
30,
-19,
8,
4,
76,
22,
-37,
12,
2,
-31,
29,
-13,
-11,
4,
-9,
9,
-10,
-31,
-22,
-6,
-45,
32,
25,
-17,
16,
-19,
-42,
-28,
5,
-70,
-56,
25,
-6,
30,
4,
12,
-3,
14,
16,
-23,
9,
-20,
-29,
29,
87,
19,
60,
-27,
-7,
-70,
-31,
-25,
13,
-47,
46,
28,
32,
-15,
8,
-4,
36,
-8,
-6,
36,
19,
3,
-58,
52,
-28,
17,
-34,
-14,
16,
35,
36,
11,
-12,
-16,
29,
-22,
14,
-2,
-27,
62,
-10,
-57,
3,
7,
53,
10,
41,
26,
0,
18,
10,
2,
-63,
10,
-31,
-38,
46,
-7,
65,
29,
28,
32,
24,
-11,
7,
22,
-56,
33,
20,
2,
32,
-11,
52,
2,
-19,
-22,
27,
63,
-63,
-48,
7,
14,
16,
-8,
37,
-20,
-31,
42,
-7,
-76,
-3,
-3,
19,
-16,
10,
-29,
44,
2,
-26,
25,
9,
54,
8,
-19,
-17,
-15,
0,
21,
33,
-38,
63,
11,
0,
-3,
11,
-2,
-39,
-49,
-12,
-8,
18,
2,
-16,
-14,
-54,
-65,
31,
-77,
-21,
16,
-15,
-37,
15,
2,
-33,
35,
10,
36,
31,
-48,
1,
-18,
78,
-1,
-55,
0,
14,
30,
51,
23,
-59,
-44,
22,
17,
27,
54,
25,
39,
18,
63,
-4,
34,
57,
7,
8,
36,
-38,
-14,
12,
-48,
-37,
16,
-2,
24,
-66,
40,
-30,
27,
24,
-42,
4,
-14,
24,
-22,
-11,
-33,
25,
24,
-18,
56,
10,
-41,
19,
-11,
63,
4,
4,
0,
18,
9,
31,
17,
60,
16,
14,
31,
46,
-25,
-25,
-28,
-12,
18,
-1,
27,
41,
-35,
2,
-52,
17,
10,
30,
-40,
-40,
-28,
45,
-14,
34,
-46,
2,
29,
-16,
-42,
1,
18,
14,
-41,
22,
-12,
-26,
21,
34,
-10,
-47,
41,
37,
-36,
-42,
-46,
86,
-42,
-38,
13,
-10,
20,
-23,
32,
-9,
27,
-18,
-5,
28,
33,
10,
5,
21,
13,
16,
17,
-31,
-27,
25,
19,
52,
15,
-26,
4,
-29,
35,
-30,
8,
-28,
-7,
-18,
36,
25,
15,
11,
19,
-30,
-8,
25,
6,
-30,
21,
-2,
31,
-2,
11,
-27,
-7,
5,
-15,
-26,
-2,
8,
-42,
-28,
-26,
46,
-29,
-38,
-29,
-45,
72,
-44,
-4,
7,
-51,
7,
-8,
0,
34,
28,
-72,
-22,
-52,
-28,
51,
75,
4,
-2,
12,
8,
-62,
29,
-2,
42,
-31,
17,
19,
-36,
-28,
-30,
-55,
-3,
0,
-20,
45,
-80,
-32,
74,
30,
-32,
19,
37,
1,
-47,
20,
50,
12,
18,
-19,
-9,
-26,
-13,
-9,
-21,
6,
-89,
-27,
-85,
35,
40,
29,
40,
49,
4,
35,
14,
-22,
73,
0,
-19,
-95,
3,
46,
6,
26,
41,
2,
-44,
-15,
40,
90,
-17,
41,
18,
-29,
-85,
15,
13,
-4,
-35,
1,
-4,
-13,
-15,
54,
5,
-74,
9,
17,
6,
43,
-2,
19,
-37,
-7,
-26,
19,
-48,
-36,
34,
5,
-47,
-93,
-19,
-25,
16,
35,
-33,
74,
-43,
-53,
79,
65,
15,
38,
39,
-1,
26,
-11,
16,
-5,
15,
4,
-22,
21,
-16,
4,
5,
-35,
1,
-92,
-37,
-12,
60,
29,
42,
-33,
-62,
-2,
-15,
-55,
71,
22,
-21,
14,
23,
-16,
23,
55,
27,
26,
-79,
-8,
-35,
25,
36,
-6,
-10,
34,
23,
-49,
2,
-44,
-25,
-49,
50,
-3,
10,
-7,
-58,
-26,
10,
24,
0,
15,
6,
0,
22,
-35,
-32,
6,
43,
50,
-17,
-32,
46,
-5,
16,
-32,
6,
-45,
-33,
-66,
-58,
6,
0,
55,
-1,
49,
-47,
43,
-14,
24,
-33,
-17,
20,
-37,
2,
-48,
-58,
-45,
28,
19,
-11,
9,
32,
67,
-20,
-23,
-7,
-42,
53,
-45,
31,
-10,
-53,
18,
36
] |
MR. JUSTICE HARRISON
delivered the opinion of the Court.
Appellant, Al Rierson, petitioned this Court for rehearing of his original appeal, in which we affirmed the District Court order, 614 P.2d 1020, dismissing his original and amended petition for judicial review of an administrative agency decision. Rehearing was granted, and the cause submitted on briefs.
Rierson’s case was commenced in District Court as an action for judicial review of a Board of Administration decision which denied Rierson’s claim for additional retirement benefits. The petition for review was filed on January 11, 1978, but there was no subsequent service on the Board. An “amended complaint” was served on the Board over a year later on May 29, 1979. The Board filed a motion to dismiss Rierson’s complaint on the grounds that it did not comply with the “prompt service” requirement of the Administrative Procedure Act. Section 2-4-702(2)(a), MCA. The District Court granted the motion to dismiss, and Rierson appealed to this Court.
In an opinion dated April 1, 1980, we affirmed the District Court finding that the sixteen and one-half month delay in serving notice upon the Board was not reasonable under the facts of Rierson’s case. Mr. Justice Sheehy argued in his dissent that the Board did not have subject matter jurisdiction over two of Rierson’s three claims, and since the Board did not have the authority to decide constitutional issues or tort issues against itself, Rierson’s petition should be considered one for independent relief to which the “prompt service” requirement would not apply. Mr. Justice Daly joined in the dissenting opinion. On April 11, 1980 Rierson petitioned this Court for rehearing based on the position taken by Justices Sheehy and Daly in the dissent.
In 1971 the responsibility for the administration of the highway patrol retirement system was transferred from the Highway Patrolmen’s Retirement Board to the Board of Administration of the Public Employees’ Retirement System. Until 1971 a retiring patrolman with more than twenty-five years of service could receive retirement benefits in excess of one-half regular pay. When the responsibilities for the patrolmen’s retirement system were transferred, an attorney for the Board of Administration interpreted this practice to be in violation of sections 31-209 and 31-213, R.C.M.1947. This interpretation was adopted as Board policy on April 21, 1972, and applied prospectively so that patrolmen retiring after April 21 could receive a maximum of one-half pay even if they continued on the job after their twenty-fifth year of service.
Rierson retired at the end of his twenty-five years of service on April 8, 1974. Nearly two years later on March 18, 1976, Rierson’s attorney demanded an adjustment of Rierson’s retirement benefits. In that demand letter Rierson’s attorney noted that “a suit will be filed no later than April 9, 1976”, and further that, “[t]ime is of the essence in that the Statute of Limitations is about to run in this matter.” That Board responded by suggesting that Rierson avail himself of administrative remedies since the Board had adopted contested case procedures. By a letter dated April 6, Rierson formally requested an administrative hearing before the Board. A hearing was granted and held on July 15, 1976. At the conclusion of that hearing, Rierson’s attorney was directed to submit a brief in support of Rierson’s position by August 9, 1976. No brief was forthcoming, and after several months had elapsed, the Board sent a letter to Rierson’s attorney advising him that a decision would be made with or without a brief. Nearly eight months after the hearing, on March 11, 1977, Rierson’s brief was submitted.
In his brief Rierson claimed that he was entitled to additional benefits because of due process and equal protection violations and on the grounds of promissory estoppel. The hearings examiner responded to all three claims in the proposed findings of fact, conclusions of law and an order denying Rierson additional benefits on August 25, 1977. The proposed decision was adopted by the Borad, and Rierson was notified of the decision on December 12, 1977.
On January 11, 1978, Rierson’s attorney filed a petition for judicial review in the District Court. Notice was not given to the Board of Rierson’s petition. No further action was taken by Rierson for sixteen and one-half months. Then, on May 21, 1979, Rierson filed an “amended complaint” which was served on the Board on May 29, 1979. This was the Board’s first notice of any judicial proceeding in the case. The Board moved to dismiss both the original and amended petitions. The District Court treated the petitions as requests for judicial review which would require “prompt service” of notice to the Board under the Administrative Procedure Act.
Upon rehearing, Rierson contends that the District Court erred in failing to treat his petition for judicial review as an independent civil action to which the “prompt service” requirement would not apply. We find that if error was committed, it would not have affected the decision of the District Court.
Although Rierson chose to have his case heard by the Board, he argues on appeal that the Board’s decision is not binding, and, moreover, since his claims dealt with constitutional issues and a tort claim against the Board, his claims could not have been resolved by an administrative body. Although appellant’s District Court action was filed under the Administrative Procedure Act, on rehearing he asserts that he should be allowed to proceed with his claims under rules applicable to original District Court actions, unhindered by the requirements of administrative procedural restrictions. It is interesting to note that although the jurisdictional issue was first raised by Justice Sheehy in his dissent, Rierson argues that it has always been his intention to proceed in District Court with an action independent of the Board’s unrewarding decision.
We must conclude that even if the District Court claim is an independent civil action, original in that court, Rierson’s own failure to pursue that action has left him without a remedy on appeal. Clearly, if the District Court action is an independent action, Rierson is bound by the statute of limitations which applies to such actions. In cases where damage to property rights is argued, any cause must be brought within two years. Section 27-2-207, MCA. In his reply Rierson asserts that the applicable limitation is that for written contracts (section 27-7-202(1), MCA) which is eight years, or obligations, other than a contract, and not founded on a written instrument (section 27-2-202(3), MCA) which is three years. Neither of these statutes of limitations is applicable in our view. Rierson’s claims involved two constitutional violations and a request for invocation of the doctrine of promissory estoppel. Only in the broadest sense could these limitations be considered to be controlling, and since there is a more specific statute involving injury to personal property rights, of which retirement benefits are one, we are constrained to follow the more specific statute. Section 1-3-225, MCA. See also, Butte Country Club v. Dept. of Revenue (1980), 186 Mont. 424, 607 P.2d 551, 37 St.Rep. 479. We also note that Rierson admitted the applicability of a two-year statute of limitations in his letter to the Board of March 18, 1976.
Having concluded that the two-year statute of limitations is appropriate in this case, we further find that Rierson’s District Court action is barred. Rierson has been aware of the effect of the two-year statute of limitations since he first demanded that his benefits be adjusted in 1976. The entire history of this case is one of neglect and procrastination. He did not approach the Board for an adjustment until nearly two years after his retirement. Clearly his cause of action accrued no later than his retirement date, and from the record, there is no excuse for a delay of one year and 360 days which would obligate this Court to excuse Rierson’s tardiness. When he was notified that the administrative process was over, he had five days remaining within the confines of section 27-2-207(1), MCA, to file his independent and original complaint in District Court. Instead, he filed a petition for judicial review on January 11, 1978, twenty-five days after his notification of the adverse agency ruling. Although that action was filed within the thirty-day limitation for petitions for judicial review of administrative actions, this Court will not allow the administrative appeal period to be added to the two-year statute of limitations, thus bootstrapping his original and independent action into compliance with the statute of limitations by use of an administrative action he now contends is void.
Throughout the course of Rierson’s suit against the Board, he has had the option of an independent District Court petition for relief. Although urged by the Board to seek administrative remedies, he was not required to do so. This Court must respect the requirement that remedies be sought with some degree of diligence. Rierson knew of the new interpretation of the retirement laws as early as June 20, 1972. In the two-year period between that date and his retirement in April of 1974, he made no effort to seek any kind of remedy. His claims lay dormant for almost another two years until April 5, 1976, before he requested an administrative hearing. During that hearing, Rierson delayed the proceedings for another eight months before submitting his brief. This Court will not condone manipulation of the law so that a case may be further pursued. To do so would be an affront to the letter and the spirit of the statutes of limitations. Viewed in the best possible light, Rierson’s suit against the Board still shows substantial evidence of inexcusable neglect. We find that the action in District Court is barred by the two-year statute of limitations of section 27-2-207(1), MCA.
We reaffirm the District Court dismissal.
MR. CHIEF JUSTICE HASWELL concurs.
|
[
20,
-45,
15,
30,
7,
3,
-32,
-21,
0,
81,
15,
13,
3,
27,
16,
38,
38,
32,
19,
-21,
-11,
10,
27,
-21,
-47,
24,
-25,
34,
-16,
-17,
12,
-25,
45,
-28,
23,
-27,
-51,
-33,
40,
17,
43,
4,
-37,
-22,
-48,
-16,
23,
24,
-4,
-54,
-18,
114,
-26,
34,
-7,
58,
8,
-63,
8,
15,
-31,
6,
-30,
13,
24,
-6,
-20,
67,
67,
-22,
30,
-14,
-8,
-33,
20,
19,
83,
-1,
-12,
5,
-2,
19,
-43,
0,
-13,
7,
7,
1,
4,
13,
-19,
13,
35,
7,
-54,
56,
0,
1,
7,
1,
14,
-18,
30,
-13,
31,
-79,
34,
20,
11,
-6,
23,
49,
-13,
-17,
-36,
51,
0,
5,
49,
47,
-14,
3,
27,
31,
6,
-20,
-31,
74,
-15,
41,
-42,
72,
71,
-6,
9,
14,
55,
8,
50,
13,
-63,
0,
28,
-107,
22,
3,
-6,
32,
49,
-13,
14,
-61,
46,
-5,
-24,
-59,
40,
-42,
33,
26,
-29,
-51,
-7,
-22,
-30,
45,
-22,
-8,
19,
-19,
15,
-26,
54,
7,
-13,
-68,
-21,
62,
-3,
-7,
-39,
-12,
-9,
-65,
3,
-23,
-11,
-54,
2,
-13,
-3,
-57,
56,
-8,
9,
-14,
17,
7,
11,
-11,
31,
7,
48,
-15,
-42,
72,
-9,
-2,
-15,
53,
33,
-39,
11,
-21,
-32,
-15,
-9,
24,
16,
7,
-23,
3,
-19,
-8,
-16,
-8,
-66,
15,
-54,
-5,
12,
-15,
4,
23,
-38,
3,
36,
78,
39,
-16,
3,
-45,
18,
-59,
-14,
-19,
-6,
-25,
48,
-7,
-8,
23,
16,
-35,
21,
27,
-12,
2,
27,
-22,
48,
24,
-11,
25,
-11,
-43,
14,
52,
25,
32,
1,
19,
27,
21,
-3,
-19,
1,
-53,
54,
19,
-60,
-11,
-6,
-13,
2,
34,
12,
-13,
43,
-4,
45,
8,
1,
102,
-33,
-58,
27,
49,
69,
18,
1,
-31,
-15,
7,
-52,
15,
-38,
-14,
24,
10,
35,
-5,
29,
36,
-52,
-21,
-30,
-28,
41,
-71,
-7,
15,
73,
12,
9,
-49,
13,
48,
25,
-34,
90,
11,
-94,
69,
4,
32,
-28,
3,
-8,
59,
-9,
20,
-1,
21,
-9,
-16,
13,
28,
5,
26,
8,
53,
31,
-26,
38,
51,
12,
-28,
1,
48,
21,
-12,
-19,
0,
5,
4,
-17,
-22,
-10,
-27,
56,
35,
-14,
11,
-9,
0,
14,
4,
57,
-30,
-44,
30,
16,
-51,
-84,
-41,
47,
-4,
-14,
-14,
-36,
46,
-53,
7,
-60,
49,
63,
31,
12,
9,
-23,
-16,
9,
0,
39,
-16,
-20,
-18,
-38,
-5,
-12,
-7,
53,
-14,
16,
-50,
-4,
-4,
8,
-59,
5,
-42,
-3,
95,
-30,
-13,
-72,
64,
-27,
-11,
-5,
-19,
-10,
-124,
-61,
-31,
12,
-83,
-11,
62,
-45,
31,
10,
29,
-38,
-10,
31,
-3,
41,
-47,
17,
21,
-35,
13,
-29,
0,
42,
-5,
-8,
-43,
-8,
9,
11,
27,
1,
-7,
-41,
31,
1,
36,
-51,
33,
21,
0,
-17,
-17,
-4,
-27,
-13,
-8,
14,
-56,
-2,
2,
-1,
11,
36,
-34,
-29,
39,
46,
-3,
39,
-28,
-3,
-37,
-13,
-30,
-5,
-23,
11,
22,
51,
-34,
1,
-59,
-29,
-14,
-1,
15,
-10,
35,
12,
46,
55,
16,
-49,
1,
47,
-56,
9,
-41,
-20,
-30,
-44,
-3,
-40,
15,
17,
-68,
6,
-16,
65,
-42,
33,
46,
-1,
30,
-13,
-45,
23,
-17,
-6,
13,
-47,
35,
-3,
-16,
34,
-6,
49,
-24,
-6,
47,
-7,
-84,
12,
4,
26,
37,
29,
38,
-14,
68,
-52,
5,
-74,
22,
7,
-41,
-2,
5,
5,
-7,
87,
-18,
38,
-15,
-6,
-20,
12,
2,
-12,
-3,
-9,
-54,
19,
-5,
-35,
-13,
-31,
-4,
-32,
-24,
30,
56,
-55,
-35,
-52,
-1,
13,
25,
-7,
60,
-2,
-19,
14,
-22,
26,
14,
-8,
-37,
-4,
-62,
-52,
10,
-23,
25,
60,
-12,
-28,
24,
17,
-16,
13,
-13,
-5,
-9,
59,
-15,
36,
-14,
-33,
-70,
0,
-54,
-16,
-64,
-2,
-11,
-20,
12,
68,
38,
-27,
-37,
28,
31,
-27,
-22,
72,
59,
43,
-17,
-24,
-64,
24,
-33,
-19,
-61,
-55,
-8,
-14,
8,
13,
-7,
4,
-39,
-22,
15,
25,
-19,
9,
54,
25,
-27,
30,
-3,
-61,
-46,
-20,
-33,
-10,
9,
-25,
5,
1,
4,
-28,
52,
65,
48,
16,
68,
-13,
22,
48,
-27,
-7,
36,
30,
-21,
-32,
4,
-68,
12,
-87,
4,
-19,
10,
-74,
-63,
-16,
23,
-19,
-36,
-17,
-46,
-31,
-33,
-16,
21,
-61,
31,
33,
47,
32,
-27,
-31,
-55,
22,
94,
-33,
-21,
-11,
-62,
6,
3,
12,
30,
25,
8,
29,
-39,
20,
28,
1,
17,
-42,
5,
-28,
-45,
-44,
39,
-3,
19,
-4,
33,
-42,
49,
36,
-1,
14,
54,
4,
-19,
-53,
35,
10,
-28,
-1,
58,
19,
-5,
21,
3,
-6,
-23,
-6,
43,
-80,
48,
-42,
-31,
1,
-64,
-51,
7,
-5,
-33,
-27,
-17,
-21,
-24,
-10,
40,
70,
17,
7,
-43,
-13,
7,
4,
-7,
6,
40,
2,
23,
25,
16,
11,
-42,
33,
37,
0,
-27,
51,
27,
11,
-47,
-26,
-9,
0,
6,
2,
55,
46,
-4,
-34,
87,
-52,
12,
-17,
36,
-36,
-45,
-39,
8,
20,
0,
24,
26,
2,
-19,
22,
-6,
-5,
9,
7,
35,
16,
0,
32,
-15,
20,
50,
16,
-22,
-13,
-42,
38,
77,
19,
-42,
15,
19,
-63,
6,
56,
21,
21,
-45,
78,
19,
-49,
25,
1,
-49,
41,
-24,
18,
-23,
45,
-52,
71,
26,
-6,
1,
60,
19,
-21,
2,
-21,
8,
-30,
-12,
-38,
37,
18,
1,
25,
51,
-36,
-25,
26,
14,
20,
-12,
-64,
46,
1,
-34,
-49,
-63,
5,
-18,
-19,
11,
68,
23,
24,
19,
-30,
-27,
26,
-26,
13,
-19,
62,
3,
24,
-6,
5,
10,
17,
-26,
-1,
27,
-32,
19,
-56,
-8,
10,
40,
-64,
3,
-36,
0,
-7,
12,
3,
-45,
-9,
-8,
11,
36,
9,
2,
30,
-5,
-48,
-41,
5,
31,
29,
-46,
-6,
-36,
-64,
-41,
44,
-104,
4,
-32,
21,
-19,
7,
-3,
-82,
-27,
-15,
-4,
15,
33,
-13,
-5,
21,
3,
39,
-3,
-3,
-2,
23,
-32,
4,
39,
-22,
-21,
48,
39,
41,
0,
-43,
3,
-16,
39,
-5,
-44,
-51,
0,
-1,
-31,
-50,
-10,
12,
47,
6,
21,
-80,
-15,
-12,
-56,
-60,
-59
] |
MR. JUSTICE HARRISON
delivered the opinion of the Court.
This is an appeal by Dolson, plaintiff, after an adverse judgment of the Flathead County District Court.
In 1973 the Imperial Cattle Company (Imperial) entered into seven lease agreements with the Dolson Company (Dolson), a Washington corporation, for the lease of dairy cattle. Approximately 520 dairy cows were transferred to Imperial. Two of the seven leases were concluded prior to the settlement negotiations which underlie this action. All but one of the remaining five leases were personally guaranteed by defendants Lillithun and Edmiston, principals in the Imperial Cattle Company.
During 1974 Imperial suffered major financial reverses and notified Dolson in October of that year that it would be unable to further perform on any of the remaining five leases. The parties proceeded to negotiations, agreeing to a “Possession Agreement.” By the terms of that agreement Dolson would reassume possession of the dairy cattle and then sell them. It was agreed that Imperial would be liable for any deficiency owing after its account was credited with the proceeds of the sale. The agreement was signed by the parties at a meeting in Missoula, Montana, on October 18, 1974. All parties were represented by counsel.
Pursuant to the agreement, Dolson sold the dairy cows to the highest financial advantage of Imperial. Dolson then tendered an accounting and requested from Imperial payment of the deficiency. All parties cooperated in the liquidation of the dairy herd.
In March 1975 Dolson’s general manager met with defendant Lillithun in Ronan, Montana. At that meeting Lillithun did not dispute the existence of the deficiency but did take issue with the amount owing. Lillithun further indicated that defendant Edmiston was solely liable for the deficiency.
After the Ronan meeting Dolson prepared and forwarded the notice of deficiency. Another meeting was arranged in which all parties would be present. With the exception of defendant Lillithun, all parties were present with counsel at a May 23, 1975, meeting in Spokane, Washington. At this meeting Dolson was advised that Imperial, and all principals of Imperial, were insolvent. Dolson was informed that defendant Lillithun was near bankruptcy and that defendant Edmiston was defending an action on certain loans from the Production Credit Association involving hundreds of thousands of dollars. Settlement discussions at the Spokane meeting began at $1Q0,000, substantially less than the $142,000 deficiency computed by Dolson. Defendants were clearly in no position to negotiate at the $100,000 figure, and the number was reduced to $65,000 and then to $55,000.
At the Spokane meeting defendant Edmiston first mentioned that he owned a parcel of real property in Kalispell, Montana, which might be used to partially satisfy the deficiency. Dolson’s attorneys testified that the property was referred to by defendant Edmiston as a “commercial, downtown piece of property.” Edmiston also represented to Dolson that the property was worth $45,000 and that the property had recently been appraised at that figure by James Christian, father of attorney Cal Christian, who represented defendant Lillithun. Counsel for Edmiston informed Dolson that he was acquainted with the elder Christian, knew of his experience in the real estate field, knew that he was a competent appraiser and that, if anything, the appraisal would be conservative.
At the conclusion of the Spokane meeting, Dolson advised defendants that it would agree to a settlement of $55,000 cash and advised defendant Edmiston that he should use the Kalispell property as.collateral in securing the necessary financing.
On July 23, 1975, a meeting took place in Kalispell, Montana. Present at this meeting were Robert Dolson and his attorney, James Gillespie; defendant Edmiston and his attorney, Milton Datsopoulos; and attorney Cal Christian, representing Imperial Cattle Company and defendant Lillithun, who was again absent. Once more the Kalispell property was discussed as possible satisfaction of the deficiency debt. It was again represented as having a value of $45,000, as confirmed by the recent appraisal. Robert Dolson expressed his desire that any settlement consist of cash.
The parties discussed a total monetary settlement of $55,000, a figure which was reduced to $52,500 with $7,500 initially with quarterly payments to be made thereafter of $2,500 until the debt was extinguished. The outstanding balance was to be secured with the Kalispell property. Finally, Dolson was to receive a copy of the property description, title insurance (or other proof of clear title) and a copy of the Christian appraisal confirming that the tract was worth $45,000. This was Dolson’s only presence in Kalispell until the settlement was signed. He and his attorney flew into Kalispell on the morning of July 23 and left that afternoon. The Kalispell property was not identified to them, nor did Dolson request to see it.
After the Kalispell meeting, negotiations were continued by telephone and correspondence. On October 13, 1975, Dolson agreed to accept the Kalispell property. From defendants Lillithun and Imperial, Dolson was to receive $7,500 in cash. On October 31 Robert Dolson went to Missoula and to Kalispell to execute the settlement. He accepted from Imperial a $7,500 promissory note, payable at 8 percent per annum, and guaranteed by defendant Lillithun. Defendant Edmiston tendered a warranty deed for the Kalispell property.
Dolson traveled from Missoula to Kalispell and obtained the signature of defendant Edmiston. While in Kalispell, Dolson contacted a local realtor, John Ming, for the purpose of listing his newly acquired property. He met Ming at the property site. Dolson’s brief describes the Edmiston property, which was represented as being conservatively valued at $45,000, as follows:
“. . . consisting] of slightly over one acre of undeveloped ground situated directly between a Pacific Power & Light substation and the railroad tracks in Kalispell, Montana. While there was a narrow corridor leading from Center Street along and behind the substation to the property, the property itself had no frontage upon any Kalispell street. At its closest point to ‘downtown Kalispell’, the property was five blocks distant.”
Ming informed Dolson that he had no interest in accepting a listing on the property and that he could not imagine who would be interested in the property with the possible exception of Pacific Power & Light, the adjacent landowner. Ming testified that when he examined the property in October 1975, the value of the tract was about $7,500.
Upon returning to Yakima, Washington, Dolson engaged MIA appraiser, Wayne Neil. Neil appraised the parcel at between $1,250 to $8,900, dependent upon the resolution of uncertainties regarding access. Neil agreed with realtor John Ming that access was so limited, approximately sixteen feet of passageway, that a commercial use of the property was virtually precluded. Neil’s conclusion was that the land would have a use classification of “low-level industrial.” That classification is one of the most untenable and unmarketable classifications existing with respect to commercial property.
At trial it was revealed that Robert Dolson had not seen the property prior to the execution of the settlement agreement. It was also established that although Dolson had an extensive business background, he was not experienced in real estate. Defendants introduced a State Department of Revenue appraisal which established' that for property tax purposes, the tract was worth $33,450, only about $11,500 less than Edmiston’s representations. Neither defendant Lillithun nor attorneys Christian or Datsopoulos had ever seen the property, and all denied having any knowledge of its value beyond the representations of defendant Edmiston and the Christian appraisal.
The following issues are raised on appeal:
1. Whether Dolson is entitled to rescission because of defendants’ misrepresentations as to the nature and value of the property?
2. Whether there was substantial credible evidence to support the District Court judgment; whether the District Court properly disposed of the issues; and whether the District Court’s conclusions of law were supported by its findings of fact?
Appellant maintains that the settlement agreement should be rescinded because of respondents’ misrepresentations as to the value and nature of the Kalispell property. We do not agree.
This Court has long adhered to the rule that statements of opinion are preeminently subject to the common-law doctrine of caveat emptor. See Ray v. Divers (1925), 72 Mont. 513, 234 P. 246. Statements as to the value of property are generally considered declarations of opinion and will not constitute a proper basis for rescission. 37 Am.Jur.2d Fraud and Deceit, § 119 at 164. Courts are continually confronted with the dilemma of determining to what lengths a vendor of property may go in “talking up” his merchandise — where does “traders talk” end and actionable fraud begin? Clearly, the line between opinion and fact is an especially fine line for the District Courts to draw when representations are made regarding the value of property.
The common law provides reasonable protection to purchasers against fraud and deceit. However, it does not go to the romantic length of offering indemnity against the adverse consequences of folly and indolence or a careless indifference to information which would enlighten the purchaser as to the truth or falsity of the seller’s assertions as to value. In such an instance, every person reposes at his own peril in the face of another’s opin ion when he has ample opportunity to exercise informed judgment. “Simplex commendatio non obligat.” 2 Kents Comm. 485.
We emphasize, however, that it is singularly within the province of the District Court to determine whether fraud has been perpetrated on an innocent purchaser. The District Court is in the best position to weigh the factors involved, assess the credibility of witnesses, and conclude whether the statements regarding value constitute fact or opinion.
In ruling that the District Court’s decision must be given great credence in this case, we reaffirm our decision in Lumby v. Doetch (1979), 183 Mont. 427, 600 P.2d 200, 36 St.Rep. 1684, wherein we found that this Court must view the evidence in a light most favorable to the prevailing party and presume the correctness of the District Court’s judgment. Findings of fact shall not be set aside unless clearly erroneous. Rule 52(a), M.R.Civ.P. Although conflicts may exist, such that the evidence tends to show that representations as to value constitute both opinion and fact, it is the duty and function of the trial court to make a resolution of the case one way or the other. That court’s reasoned and thoughtful determination that the vendor’s statements as to the value of the property were opinion, not declarations of fact, will not be disturbed where its decision was based on substantial evidence. See Kostbade v. Buckingham (1979), 182 Mont. 137, 595 P.2d 1149, 36 St.Rep. 129. It is not a proper function of this Court to exchange our opinion for that of the District Court, even if we might have reached a different conclusion. In accord, Porter v. Porter (1970), 155 Mont. 451, 473 P.2d 538.
Our review must now examine the evidence to determine whether the District Court exceeded its discretion in the resolution of this case. Reviewing the evidence in a light most favorable to the prevailing parties, we conclude that there is substantial credible evidence supporting the court’s judgment, that the court properly disposed of the issues, and that the court’s conclusions of law were supported by its findings of fact.
Robert Dolson is not financially naive. To the contrary, he is an able and successful businessman. His relationship to defendants can only be considered adversarial to the extent their respective positions represent competing interests. These two factors, Dolson’s business acumen and his relationship to defendants, weigh heavily against the proposition that defendants took unfair advantage of Dolson when declaring the value of the property. If indeed Dolson relied upon the representations of defendants as to the value of the parcel, we see no reason why the District Court would have been obliged to condone such imprudence by allowing rescission of the agreement. Helena Adjustment Co. v. Claffin (1926), 75 Mont. 317, 243 P. 1063; see also, Williams v. Joslin (1965), 65 Wash.2d 696, 399 P.2d 308 (reliance must be reasonable; purchaser may not rely on representations when their truth can be readily determined).
Even at this point in the case, there can be no ready and accurate determination of the value of the property amid the conflicting opinions found in the record. Realtor Ming alleges the property is worth $7,500. Appraiser Neil believes the parcel is worth as much as $8,900. The State of Montana Department of Revenue determined the value of the property to be $33,450 with a taxable value of $22,000. Finally, we have the opinion of James Christian that the property is worth $45,000.
Surely the facts of this case exemplify the reasoning behind the rule that statements as to the value of property are not grounds for rescission. It is reasonable to expect that in a situation such as this vendors would attach the highest possible value to the property. Indeed, it would be unreasonable to assume otherwise, and purchasers who rely on such representations proceed at their own risk.
On October 31, 1975, Robert Dolson was in Kalispell to obtain the signatures of the Edmistons and conclude the provisions of the settlement agreement. Only after complete execution of the agreement did Dolson examine what he had accepted. The record discloses no reason why Dolson did not view the property before he formalized the agreement. Since he chose to accept the property sight unseen, when he had ample opportunity to examine the subject of his bargain, Dolson cannot now be heard to complain that he was unfairly misled.
We concur with the District Court finding that Dolson’s folly was his own. The District Court’s finding that rescission would be improper in this case is supported by substantial evidence, and the court’s findings of fact are amply supportive of its legal conclusions.
Accordingly, we affirm.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, SHEA and SHEEHY concur.
|
[
10,
31,
33,
-25,
-31,
-34,
25,
13,
-1,
52,
-5,
28,
62,
30,
8,
20,
1,
14,
15,
13,
17,
-25,
-94,
24,
34,
17,
-9,
-48,
12,
-14,
-71,
19,
17,
-5,
-26,
61,
-12,
1,
-2,
-46,
52,
-5,
-17,
-5,
46,
16,
21,
-42,
62,
-31,
9,
-31,
-20,
-8,
43,
-7,
5,
-32,
-49,
-9,
31,
-58,
65,
68,
37,
-6,
35,
-28,
54,
10,
-4,
27,
-18,
-33,
22,
-40,
41,
-40,
22,
19,
35,
21,
30,
-43,
-25,
-2,
26,
5,
0,
31,
-67,
-35,
-12,
6,
-21,
12,
-28,
17,
-60,
-3,
-45,
-58,
-39,
10,
20,
-13,
17,
51,
42,
41,
28,
5,
31,
-15,
-24,
34,
-31,
40,
-55,
8,
-17,
46,
-23,
10,
27,
13,
-8,
32,
-11,
-21,
0,
-28,
-25,
36,
24,
15,
-6,
-21,
8,
23,
-3,
16,
-52,
-6,
-10,
35,
34,
-61,
-29,
34,
-27,
21,
33,
32,
11,
-52,
57,
0,
-33,
-39,
61,
-45,
-5,
41,
-12,
17,
16,
3,
0,
1,
17,
23,
-19,
-37,
12,
12,
5,
15,
-25,
7,
-13,
17,
-57,
-7,
32,
21,
-17,
10,
20,
43,
-16,
1,
8,
-10,
-32,
-13,
16,
39,
-35,
73,
23,
33,
-25,
30,
27,
26,
15,
-17,
23,
-50,
-18,
-21,
25,
-37,
-21,
-28,
-35,
-7,
12,
-10,
28,
21,
-66,
22,
-21,
-56,
62,
-1,
-2,
-39,
-41,
22,
52,
-7,
34,
-17,
21,
-21,
-36,
18,
-4,
-30,
-16,
-12,
-21,
-8,
-49,
37,
5,
-11,
-31,
-40,
31,
45,
31,
12,
-15,
21,
-10,
-56,
47,
-12,
42,
62,
45,
-61,
-56,
-11,
24,
35,
17,
-16,
30,
-7,
-9,
-31,
19,
-35,
27,
17,
-3,
-61,
-54,
21,
26,
33,
29,
24,
-73,
-23,
-13,
-9,
33,
-55,
40,
-38,
-50,
-24,
14,
33,
-37,
21,
14,
27,
45,
47,
-44,
-19,
-6,
-37,
-1,
-29,
-1,
10,
10,
7,
1,
47,
-16,
-57,
32,
10,
85,
29,
-9,
7,
20,
-40,
46,
26,
1,
0,
-60,
38,
2,
13,
28,
25,
-28,
59,
24,
-8,
18,
57,
-41,
43,
6,
-17,
24,
10,
-54,
-17,
0,
50,
40,
-7,
-17,
18,
-68,
-26,
10,
-47,
-35,
7,
-33,
-18,
-14,
-25,
1,
3,
-21,
74,
43,
28,
0,
27,
49,
-32,
-14,
-3,
43,
-8,
-26,
-21,
4,
-21,
2,
-9,
-50,
62,
-32,
-3,
-15,
57,
0,
-23,
-11,
-41,
-44,
-2,
34,
6,
6,
-61,
20,
-49,
51,
-60,
-31,
-42,
36,
-4,
-21,
-29,
-34,
25,
38,
-10,
-23,
8,
20,
6,
1,
0,
5,
-19,
9,
-9,
-58,
19,
-7,
9,
-53,
23,
14,
7,
-7,
41,
-41,
21,
42,
28,
36,
35,
-31,
25,
-33,
7,
23,
-4,
0,
-26,
-3,
34,
-42,
57,
43,
-27,
-34,
-18,
23,
2,
30,
-45,
33,
-47,
33,
-34,
44,
49,
-35,
41,
98,
16,
3,
0,
-47,
19,
-36,
30,
17,
-64,
26,
-17,
-39,
-11,
-19,
-9,
-25,
52,
15,
41,
-21,
-20,
-12,
-3,
58,
18,
63,
4,
-43,
-37,
38,
33,
12,
0,
13,
-24,
-4,
51,
26,
-27,
43,
-1,
-27,
-2,
-4,
49,
14,
38,
28,
24,
-58,
22,
-6,
-45,
23,
-1,
56,
-26,
-24,
20,
-3,
-51,
-10,
11,
78,
15,
-20,
-63,
-35,
-47,
-39,
-57,
-12,
-6,
33,
-7,
6,
-29,
38,
-18,
43,
4,
-12,
-8,
-21,
14,
-28,
9,
-8,
35,
-10,
0,
37,
-82,
-35,
-39,
22,
24,
-5,
52,
23,
-11,
50,
-17,
-33,
-25,
29,
-4,
-6,
2,
-30,
-10,
-58,
69,
16,
2,
0,
35,
24,
0,
23,
5,
-30,
-5,
22,
-1,
-48,
32,
4,
-9,
-11,
7,
-2,
-7,
-4,
45,
-18,
20,
-35,
35,
18,
-11,
36,
-33,
41,
-27,
11,
3,
11,
-15,
-13,
-42,
-53,
33,
-6,
-9,
-3,
29,
-51,
-36,
8,
-10,
-12,
35,
8,
2,
-29,
-47,
28,
13,
-5,
27,
33,
-28,
12,
-19,
39,
-5,
-6,
13,
36,
-21,
-50,
14,
59,
-63,
33,
-19,
83,
19,
2,
6,
22,
-31,
-17,
-3,
33,
37,
69,
-12,
0,
6,
50,
-15,
34,
-1,
-2,
37,
-17,
-5,
-55,
22,
3,
-14,
-15,
3,
32,
0,
-6,
22,
-36,
5,
-14,
-7,
47,
0,
-49,
-4,
20,
15,
-7,
38,
5,
74,
-56,
-4,
-23,
-17,
87,
-45,
1,
-23,
11,
-18,
14,
3,
-6,
-60,
11,
-17,
-4,
-10,
0,
-15,
-51,
21,
-13,
48,
-26,
27,
39,
-7,
-12,
62,
-7,
-4,
-24,
-16,
2,
4,
21,
43,
-55,
20,
-6,
-13,
-33,
-66,
-17,
-11,
-25,
3,
-30,
-57,
-29,
-28,
-46,
-12,
32,
-52,
-57,
12,
-19,
13,
20,
-47,
5,
-39,
-1,
66,
-35,
-9,
32,
20,
14,
-27,
13,
60,
-20,
-42,
39,
-15,
-21,
-84,
2,
65,
11,
54,
63,
4,
47,
-102,
-52,
44,
7,
33,
-19,
-20,
-11,
-52,
0,
64,
-35,
-35,
10,
-34,
3,
57,
-53,
-19,
19,
10,
27,
-19,
-1,
0,
-10,
0,
-46,
-58,
25,
28,
0,
13,
-39,
38,
58,
-12,
15,
-21,
-26,
-9,
-49,
1,
27,
1,
-7,
-49,
-45,
-11,
7,
-33,
30,
28,
-20,
26,
-29,
8,
12,
13,
26,
-2,
-4,
-2,
10,
-5,
-23,
45,
-11,
3,
-18,
54,
-5,
-16,
-16,
-5,
-62,
23,
-24,
2,
0,
56,
-4,
45,
0,
-104,
58,
-13,
20,
9,
12,
-6,
7,
-23,
-2,
40,
20,
22,
-33,
-9,
-69,
23,
12,
-27,
24,
-35,
28,
-18,
-16,
22,
13,
-64,
-17,
39,
27,
-30,
47,
1,
5,
-12,
53,
10,
-40,
59,
-40,
-2,
17,
-13,
57,
-14,
-94,
7,
-2,
2,
-49,
42,
2,
3,
-17,
-6,
-30,
-9,
-39,
-13,
-58,
-30,
1,
-25,
-11,
-15,
65,
-11,
36,
-9,
2,
-64,
-16,
-26,
27,
21,
-22,
7,
27,
43,
14,
11,
24,
16,
-42,
25,
-12,
18,
-24,
-75,
25,
36,
-37,
-21,
7,
-26,
-27,
-27,
11,
-9,
24,
6,
21,
-42,
8,
-14,
-49,
9,
-26,
-31,
-28,
-23,
-39,
17,
5,
71,
67,
-2,
32,
50,
24,
40,
-6,
-87,
3,
-36,
1,
12,
15,
-9,
24,
-35,
9,
29,
-40,
-42,
-57,
-4,
-15,
-15,
-14,
27,
26,
23,
-36,
-24,
-17,
11
] |
MR. JUSTICE HARRISON
delivered the opinion of the Court.
Cardwell appeals his conviction by a Gallatin County jury of tampering with a witness and misdemeanor assault.
In State v. Cardwell (1980), 187 Mont. 370, 609 P.2d 1230, 37 St.Rep 750, we reversed the defendant’s first convictions on charges of aiding and abetting another in the commission of the offense of tampering with witnesses and aggravated assault. In doing so, we ruled that section 46-11-403, MCA, allowing the amendment of a criminal information without leave of court, was unconstitutional.
After the opinion was entered, Cardwell asked this Court for an order discharging him from the state prison. We ordered him released and bound over to Gallatin County authorities for rearraignment on the original charges. Defendant moved the District Court for dismissal on the grounds of double jeopardy and speedy trial violations. The motion was denied.
The cause went to trial on June 10, 1980. The jury returned a verdict of guilty on the lesser included offenses of misdemeanor assault and tampering with a witness, a felony. This appeal follows.
The underlying facts of this case have no bearing on the issues involved in the appeal and will not be recited. They can be found in our first Cardwell opinion, cited above.
Defendant offers three issues for our review:
1. Did the second trial violate defendant’s right to be protected against double jeopardy as guaranteed by the United States Constitution and the Montana Constitution?
2. Did the action of this Court and the subsequent detention and trial violate defendant’s rights under the due process clauses of the United States Constitution and the Montana Constitution?
3. Was defendant’s right to a speedy trial denied?
Double Jeopardy
This Court’s remand order in State v. Cardwell, supra, provided: “The cause is reversed and the amended information against the defendant is ordered dismissed.”
Cardwell maintains that his second trial violated his constitutional rights against double jeopardy. Benton v. Maryland (1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. See also Art. II, Section 25, 1972 Mont.Const.
Defendant cites numerous decisions by this Court for the proposition that double jeopardy exists whenever this Court fails to order a new trial. State v. Hodgson (1979), 184 Mont. 394, 603 P.2d 246, 36 St.Rep. 2121; State v. Holliday (1979), 183 Mont. 251, 598 P.2d 1132, 36 St.Rep. 1535; State ex rel. Nelson v. Ellsworth (1962), 141 Mont. 78, 375 P.2d 316. We do not agree that such a rule can be found in these decisions.
In Ellsworth, supra, this Court explained that the rule of law was clear: “. . . a reversal of a judgment of conviction upon appeal and a retrial does not constitute double jeopardy.” 141 Mont. at 81, 375 P.2d 316.
The rule in Ellsworth was based on the case of State v. Aus (1937), 105 Mont. 82, 69 P.2d 584. Cardwell underscores the language of Aus for the purpose of emphasizing several points: (1) when a new trial is granted, the defendant is not placed in double jeopardy but merely subjected to the same jeopardy he was in during the first trial; (2) the defendant may not be tried again for the same offense except in the case where a new trial is granted or ordered; and (3) a person convicted of a crime waives his constitutional protection against being twice in jeopardy where at his request the verdict against him is set aside and a new trial granted.
Defendant Cardwell admits that if this Court had ordered or granted a new trial, as in Aus and its progeny, he would not have been able to claim that he was placed in double jeopardy by the second trial. Cardwell concludes that the salient distinction between the precedent cases cited and his case is the absence of an express order of this Court directing the new proceeding.
The issue before us is more properly framed in terms of whether the failure to specifically and expressly order a new trial necessarily precludes further action. It is our opinion that it does not.
Cardwell correctly recites the case law applicable to former jeopardy protections as they have been interpreted by this Court in the Aus lines of cases. We are not persuaded by defendant’s logic, however, that the remand order must order a new trial for one to occur. Our remand orders do not exist in the abstract, independent of the supporting opinion. In the body of the Cardwell opinion, we wrote:
“Section 46-11-403(1) being unconstitutional, the amended information should have been dismissed by the District Court on the original motion by Cardwell, and he should not have proceeded to trial on the charges in the amended information. Since the District Court failed to dismiss the amended information, we must do so now. However, in ordering the dismissal of the amended information, we do not mean to preclude the State from refiling charges against Cardwell with proper judicial supervision.” (Emphasis added.)
It is unreasonable to urge this Court to disregard its own language. Clearly, it was our intention to leave the door open to retrial. Any ambiguity created because of the wording of the remittitur order is eliminated by referring to the above language. We conclude, therefore, that a new trial was indeed granted by the original opinion, and we are compelled by the precedent cited by defendant to hold that his former jeopardy rights were not violated by his second trial.
Due Process
On April 23, 1980, Cardwell petitioned this Court for an order discharging him from custody in compliance with section 46-20-707, MCA.
In a May 1, 1980, order this Court discharged Cardwell from the state prison and directed that he be returned to Gallatin County for rearraignment on the original charges. Cardwell now objects on the ground that he was denied due process of law, citing the Fifth and Fourteenth Amendments to the United States Constitution and Article II, Section 17, of the 1972 Montana Constitution.
Cardwell maintains that this Court did not have the authority to order him rearraigned under the original charges in the absence of a new trial order in the original opinion of this Court. As with defendant’s double jeopardy argument, his initial premise that we did not grant a new trial is erroneous. Only if we were persuaded of that fact would Cardwell’s due process claims have any possible validity. We are not so persuaded.
The statute we are charged with disregarding, section 46-20-707, MCA, provides that “[i]f a judgment against the defendant is reversed without ordering a new trial,” this Court must direct that the defendant be discharged from custody. This argument again urges this Court to disregard the language of the original opinion stating unquestionably that the reversal of the District Court’s judgment on the amended information did not preclude the refiling of charges against this defendant. In light of the fact that we did indeed grant a new trial, our action was beyond the parameters of section 46-20-707, MCA, and this Court was not bound by its provisions.
Cardwell further argues that the original information had no effect since it became functus officio upon the filing of the amended information. 42 C.J.S. Indictments and Informations § 238 at 1248. Therefore, when the amended information was dismissed, there was no information then existing and Cardwell was illegally detained. This Court is of the opinion that the defendant has incorrectly interpreted the operation of the doctrine and that he misconstrues the effect of this Court’s order dismissing the amended information.
Although the question is one of first impression for this Court, it is our opinion that the original pleadings would become functus officio only if the amended information were valid. This Court held in the first Cardwell opinion that the amended pleading was not valid under the Constitution. As a result, the invalid amendment could not render the original information functus officio. This ruling adopts the position enunciated in State v. Thompson (Mo. 1965), 392 S.W.2d 617, that where an unauthorized or otherwise improper amended information is quashed or dismissed, further proceedings may be had on the original information.
This Court’s order dismissing the amended information simply wiped the slate clean in District Court from that point in time at which we determined that the State’s amended information had not been properly filed. The order had no effect on the proceedings that ocurred prior to that time, including the filing of the original information. As a result, this Court properly ordered that defendant be bound over to the District Court to proceed from that point.
Speedy Trial
Cardwell cites our decision in State v. Harvey (1979), 184 Mont. 423, 603 P.2d 661, 36 St.Rep. 2035, arguing that when this Court considers the factors relating to speedy trial guarantees we should reverse his conviction.
The defendant alleges that unnecessary delay has deprived him of his right to a speedy trial, and specifically names this Court as the primary malingerer in the resolution of his first appeal. Card-well claims that the 174 days we used to decide the case was unreasonable and that his conviction should be reversed. We cannot agree.
Once again defendant’s assignment of error hinges upon a finding that there was no new trial granted by us in the previous Cardwell opinion. For the-reasons discussed above, we find that we granted a new trial by the language of the opinion, if not by the remittitur order. This being the case, Cardwell is in error when he argues that the crucial time frame began upon his arrest. We adopted the position in State v. Sanders (1973), 163 Mont. 209, 516 P.2d 372, that, in cases of retrial, it is the time of the remittitur which is controlling in determining defendant’s relative speedy trial rights.
In this case, the time elapsed between this Court’s remittitur and defendant’s second trial was thirty-three days. We do not find this period offensive to Cardwell’s constitutional guarantees or prejudicial to his cause. Compare State v. Harvey, supra.
We affirm.
MR. JUSTICES DALY, MORRISON, SHEA and SHEEHY concur.
|
[
12,
-5,
-7,
11,
-29,
-52,
-36,
1,
-77,
95,
19,
-4,
42,
-99,
44,
-39,
3,
-6,
74,
-16,
38,
-2,
-44,
54,
15,
-27,
5,
39,
-40,
-42,
39,
75,
55,
-29,
-38,
-3,
24,
31,
-5,
1,
53,
-13,
-12,
-9,
-1,
-3,
-29,
33,
-32,
-50,
17,
-26,
-12,
19,
-12,
-10,
-4,
-38,
18,
23,
2,
18,
13,
-25,
3,
-63,
13,
2,
-25,
-42,
19,
-17,
-15,
14,
-1,
9,
30,
-58,
14,
5,
7,
-12,
-23,
-34,
11,
-50,
55,
-67,
32,
-1,
18,
0,
-31,
-37,
63,
-52,
36,
-51,
24,
-4,
-46,
4,
29,
23,
20,
-37,
-8,
24,
35,
15,
-52,
20,
-42,
-61,
-18,
-36,
14,
2,
0,
-1,
4,
39,
14,
44,
-14,
-6,
11,
-23,
-1,
14,
-19,
-13,
24,
-25,
7,
8,
-28,
41,
36,
3,
17,
-59,
51,
-16,
-9,
-5,
-33,
14,
21,
47,
-8,
3,
-7,
61,
2,
-4,
-9,
-8,
-28,
23,
8,
29,
-2,
-8,
-3,
52,
-30,
-37,
-25,
-28,
-47,
-5,
37,
66,
31,
18,
-34,
-12,
-9,
20,
-28,
24,
14,
-28,
-19,
-1,
28,
-27,
39,
3,
-52,
18,
-19,
-27,
24,
33,
2,
-20,
-1,
-56,
-20,
19,
64,
41,
0,
5,
41,
-44,
16,
-74,
-13,
24,
11,
-24,
26,
4,
34,
-14,
-38,
9,
-15,
-1,
-9,
18,
-33,
-15,
9,
19,
6,
-20,
10,
16,
-5,
-36,
17,
-13,
-42,
-56,
-21,
-11,
-15,
-44,
66,
7,
52,
34,
2,
-11,
2,
-7,
26,
-10,
0,
20,
10,
41,
46,
5,
-47,
-41,
24,
-7,
8,
-19,
-39,
10,
18,
-11,
6,
22,
2,
-34,
17,
-24,
0,
0,
-4,
55,
31,
-34,
5,
8,
-12,
36,
3,
-9,
-39,
62,
-33,
-13,
-33,
-29,
-31,
22,
-28,
-7,
40,
6,
-29,
-8,
23,
24,
-22,
-42,
0,
4,
29,
-20,
14,
-16,
43,
62,
-22,
0,
13,
9,
-10,
-28,
32,
-46,
-33,
-2,
77,
-89,
-32,
15,
25,
-17,
-29,
38,
-7,
56,
-5,
-18,
14,
-7,
28,
-6,
29,
18,
-27,
-71,
7,
-9,
-56,
49,
3,
42,
-46,
-26,
33,
-15,
0,
2,
-37,
34,
-52,
-51,
33,
-22,
-33,
-2,
-25,
-28,
35,
2,
7,
-4,
27,
-8,
1,
-22,
42,
0,
-16,
25,
12,
-40,
-32,
1,
-4,
-6,
-10,
-38,
70,
1,
-16,
-58,
-37,
0,
-25,
-26,
-25,
3,
0,
10,
-1,
-18,
44,
22,
-15,
-13,
-20,
-2,
-50,
-39,
4,
11,
-27,
-19,
-18,
3,
6,
41,
-7,
-8,
-38,
-4,
-7,
-1,
2,
-49,
17,
-39,
0,
12,
3,
33,
-31,
-25,
39,
37,
-34,
1,
27,
15,
-30,
12,
-1,
-2,
-2,
-14,
-50,
15,
10,
-35,
20,
-26,
28,
32,
-2,
45,
-35,
-10,
36,
90,
25,
8,
-25,
-55,
63,
18,
9,
-1,
54,
-32,
-61,
-59,
12,
5,
56,
11,
-48,
34,
-25,
55,
10,
9,
-39,
-16,
69,
28,
16,
34,
-6,
10,
-8,
-21,
54,
-18,
-54,
10,
12,
-3,
-24,
15,
-45,
3,
-15,
-17,
-12,
-8,
-50,
-3,
2,
30,
-16,
-21,
-31,
44,
13,
28,
21,
-64,
-7,
-35,
61,
-18,
-50,
20,
50,
0,
2,
-20,
-26,
15,
-91,
-27,
11,
-27,
12,
0,
-13,
0,
0,
15,
-15,
7,
-12,
-8,
36,
17,
36,
-1,
-18,
-27,
15,
25,
18,
24,
27,
15,
12,
53,
-45,
-38,
-43,
49,
13,
-11,
30,
2,
-10,
35,
-12,
1,
-38,
-29,
-12,
-19,
58,
28,
-74,
27,
27,
-9,
37,
-1,
8,
56,
-8,
34,
-3,
-9,
-41,
-16,
7,
-34,
6,
22,
-18,
-27,
19,
-11,
-6,
17,
2,
-91,
-28,
31,
7,
-8,
-2,
63,
73,
18,
86,
-25,
14,
-8,
1,
25,
14,
5,
-21,
31,
-35,
-18,
-58,
36,
-2,
-33,
33,
-16,
-31,
-40,
-61,
-27,
-13,
-9,
-40,
-24,
1,
1,
-10,
-6,
-47,
23,
-28,
3,
-19,
65,
18,
-27,
27,
-35,
45,
1,
10,
-30,
35,
51,
-26,
0,
6,
-9,
32,
81,
30,
-1,
38,
31,
-24,
9,
-8,
27,
0,
11,
75,
-23,
45,
-37,
3,
11,
15,
-33,
-8,
-55,
37,
-7,
-36,
-18,
6,
-14,
31,
18,
10,
43,
-10,
-33,
26,
0,
-8,
25,
-11,
-35,
24,
-43,
-53,
-24,
-3,
2,
-13,
4,
9,
2,
-30,
-47,
-16,
-5,
-20,
26,
10,
6,
5,
-78,
-36,
-14,
-8,
-26,
-9,
31,
-5,
21,
-18,
3,
-19,
6,
34,
-32,
2,
-18,
-3,
28,
22,
36,
-35,
5,
-11,
28,
0,
-32,
12,
3,
36,
-8,
6,
-34,
-12,
-25,
78,
59,
-4,
-2,
-29,
35,
27,
-7,
-43,
-29,
44,
6,
30,
-47,
-39,
-17,
0,
-1,
8,
3,
-6,
-7,
8,
28,
-11,
26,
22,
-4,
17,
-34,
27,
19,
-26,
19,
49,
-14,
-13,
47,
-55,
27,
-17,
-20,
-14,
21,
-1,
-4,
9,
28,
-26,
9,
-9,
22,
42,
19,
-15,
-17,
16,
10,
36,
-2,
13,
25,
26,
49,
3,
-49,
-18,
-29,
-22,
-62,
10,
-47,
-24,
-29,
1,
5,
-4,
-17,
10,
7,
-44,
41,
20,
-6,
-34,
0,
2,
0,
-7,
14,
-27,
-42,
20,
11,
29,
32,
49,
28,
50,
15,
26,
41,
-67,
-6,
-11,
12,
31,
-32,
40,
35,
52,
80,
-19,
-29,
31,
-71,
55,
-47,
-80,
24,
-23,
-10,
35,
43,
-21,
-4,
-5,
21,
5,
10,
-18,
-65,
-1,
-7,
9,
-36,
-14,
17,
-10,
-22,
15,
-18,
1,
-16,
0,
9,
9,
14,
41,
-23,
38,
-24,
-35,
5,
97,
-38,
53,
-32,
44,
45,
41,
-8,
-31,
49,
35,
-15,
-9,
9,
87,
-12,
29,
83,
33,
60,
1,
-33,
-18,
-35,
-8,
29,
34,
43,
17,
-55,
-5,
-5,
33,
-14,
17,
36,
-12,
-43,
25,
9,
-25,
29,
-27,
-44,
1,
10,
-94,
-8,
-18,
6,
18,
35,
14,
40,
16,
-32,
-43,
48,
-56,
-4,
-4,
6,
-18,
-28,
-24,
9,
1,
-55,
-16,
-39,
26,
17,
10,
22,
-16,
-38,
-22,
38,
-30,
-16,
25,
42,
-10,
8,
-15,
-43,
28,
-8,
-48,
10,
1,
69,
-15,
-25,
25,
-13,
-48,
11,
19,
-20,
23,
39,
-32,
18,
1,
-6,
20,
-22,
15,
-58,
-38,
40,
-12,
39,
-39,
22,
-58,
36,
18,
16
] |
MR. CHIEF JUSTICE HASWELL
delivered the opinion of the Court.
Earl Burns brought this action for personal injury and property damages arising out of a collision between Burns’ fuel delivery truck and a U & R Express chip truck driven by Larry Woll. U & R Express counterclaimed for damages to its truck. Burns appeals from the judgment entered on the jury verdict in favor of the defendant on its counterclaim.
The accident occurred on the afternoon of November 8, 1977, on Highway No. 202 near Troy, Montana, in Lincoln County. Burns was making fuel deliveries, proceeding at a speed of about 20 miles per hour and intending to make a left-hand turn from the highway, into a private driveway. While Burns was in the process of turning, his truck was struck by defendant’s truck which was attempting to pass. The impact occurred in the left-hand lane of travel. The evidence showed skid marks of 72 feet 3 inches prior to the point of impact.
Burns testified that he signalled for 200 feet or more before starting his turn and that he looked in his rear view mirror when he signalled, saw no vehicles behind him, and did not check again before he turned. At no time did he see the chip truck. He was rendered unconscious and has no recollection of the accident itself. His last memory was of proceeding down the road intending to turn but not yet beginning to turn.
The driver of the chip truck, Larry Woll, testified that he first saw the fuel truck when it was parked at some garbage containers, that the fuel truck backed onto the highway and proceeded south at a slow speed. Burns denied being parked at the containers and said he pulled onto the highway from the driveway of his previous delivery stop. In any event, the chip truck was proceeding at a faster speed and as it approached the fuel truck Woll decided to pass. Woll testified that he saw no turn signal of any kind. As Woll was attempting to pass, Burns started moving over the center line. Woll tried to avoid him but as Burns continued to turn, the vehicles collided. The chip truck went out of control and tipped over, and the fuel truck was sent towards the right side of the road. Woll was unhurt and Burns was injured.
On appeal Burns contends there was insufficient evidence to support the jury verdict. The major premise of his argument is that the physical facts made the testimony of the defendant inherently incredible. Further, Burns requests reversal due to the trial court’s rejection of his proposed jury instruction regarding the duty of an approaching motorist in the event a turn signal is timely made. Respondent asserts that there was substantial evidence to support the jury verdict and that Burns was negligent in failing to signal and in failing to maintain a proper lookout.
It is the general rule that an order denying a new trial will not be reversed where the evidence is conflicting if there is substantial evidence to support the verdict. Frank v. Burlington Northern, Inc. (1975), 167 Mont. 293, 538 P.2d 333; Casey v. Northern Pacific Ry. Co. (1921), 60 Mont. 56, 198 P. 141. When the surrounding circumstances make the testimony of a witness highly improbable or incredible, that testimony is not “substantial evidence.” Frank v. Burlington Northern, supra. Appellant argues that the testimony of the driver of the chip truck was at variance with the physical facts to such an extent that his story was impossible, that the jury should not have believed him. The chip truck driver testified that he was first aware of an impending left turn when he was 20 to 25 feet from the point of impact. The skid marks left on the highway by the chip truck were 72 feet long. Taking into account the reaction time and the time it takes for the brakes to lock, Burns argues that something alerted Woll of the impending turn more than 100 feet from the point of impact. He asserts that Woll must have seen his turn signal.
It is true that undisputed physical facts control over testimony when the physical facts admit of only one interpretation. Bush v. Albert D. Wardell Contractor, Inc. (1974), 165 Mont. 312, 528 P.2d 215; Hayward v. Richardson Construction Co. (1959), 136 Mont. 241, 347 P.2d 475. The fallacy in appellant’s argument is that the variance between the physical facts and Woll’s testimony does not necessarily lead to a conclusion that Woll must have seen the turn signal. The jury is the judge of the credibility of the witnesses and the weight to be given testimony. Matter of Holm’s Estate (1979), 179 Mont. 375, 588 P.2d 531, 36 St.Rep. 11. The jury may have rejected Woll’s estimates of distances in favor of the evidence of the length of skid marks without disbelieving Woll’s testimony that he saw no turn signal. When there are inconsistencies in the testimony of a witness, the jury may accept the testimony in part and reject it in part, or may disregard it altogether. Noll v. City of Bozeman (1977), 172 Mont. 447, 564 P.2d 1296. It is common knowledge that persons frequently fail to estimate speed and distances on the highway with accuracy. Further, the chip truck driver testified that his truck was 70 feet long and that he thought the back tires must have caused the skid marks. We conclude that there was substantial evidence to support the jury verdict.
Appellant next urges reversal due to the trial court’s rejection of his proposed instruction which stated:
“In the event a left-turning motorist has signalled for a left turn for 100 feet or more, the primary duty of avoiding an accident lies with the vehicle approaching from the rear.”
The requested instruction is not an accurate statement of the law as applicable to the instant case. The authorities cited by appellant, including Custer v. Brewer (1974), 163 Mont. 519, 518 P.2d 257 and Farris v. Clark (1971), 158 Mont. 33, 487 P.2d 1307, did not involve left-turning motorists. The primary duty of avoiding the collision was not necessarily on the passing motorist in the situation of the instant case.
Furthermore, the instructions as a whole adequately informed the jury of the duties of the passing motorist and the left-turning motorist. The proposed instruction, even if it were a correct statement of the law, would have added nothing to the jury’s understanding of the applicable law.
For the foregoing reasons, the judgment of the District Court is affirmed.
MR. JUSTICES HARRISON, DALY, SHEA and SHEEHY concur.
|
[
-8,
25,
1,
-2,
26,
-24,
15,
-20,
4,
69,
35,
9,
78,
-39,
3,
0,
23,
4,
31,
-21,
-6,
-93,
35,
10,
-26,
-74,
-42,
-51,
-53,
65,
-13,
-17,
11,
-65,
-20,
24,
-13,
0,
-49,
29,
37,
-5,
-8,
-4,
42,
26,
40,
2,
44,
7,
-2,
-10,
1,
-13,
27,
11,
23,
8,
-27,
-22,
40,
-76,
28,
9,
-1,
-30,
21,
17,
14,
51,
-72,
-10,
-21,
-41,
-2,
-18,
17,
18,
-27,
27,
-9,
6,
34,
-17,
-23,
-12,
-57,
-7,
16,
-5,
-36,
-58,
41,
-5,
-15,
-6,
-33,
-40,
-42,
-15,
-49,
43,
31,
-4,
-35,
-26,
-24,
-3,
62,
-1,
-56,
41,
-83,
-8,
16,
-39,
-4,
42,
18,
34,
8,
9,
-17,
44,
-67,
12,
-7,
43,
-25,
-10,
3,
6,
9,
95,
33,
0,
-21,
-16,
11,
68,
7,
-26,
-10,
18,
-44,
-12,
3,
26,
-47,
-6,
-5,
-10,
23,
-55,
-42,
-41,
14,
-12,
46,
-27,
56,
-35,
63,
40,
-9,
53,
-8,
38,
-61,
-21,
42,
-48,
-5,
3,
75,
84,
14,
-24,
-93,
-8,
-42,
34,
-21,
-2,
-41,
7,
43,
25,
19,
40,
22,
-22,
-38,
-34,
11,
-18,
32,
9,
10,
11,
44,
-25,
10,
-22,
9,
50,
-64,
17,
60,
-29,
6,
6,
35,
-15,
3,
49,
13,
-69,
11,
-62,
22,
0,
15,
-54,
-13,
-11,
-52,
-21,
26,
4,
-37,
-18,
-49,
-3,
-17,
-15,
-9,
-78,
12,
-24,
66,
-50,
-15,
-41,
30,
10,
-5,
1,
-16,
11,
11,
-17,
12,
-38,
4,
8,
33,
-10,
-9,
-42,
45,
19,
40,
10,
32,
30,
-26,
-1,
-23,
-26,
24,
0,
52,
-21,
-62,
-44,
15,
-19,
15,
-29,
18,
-14,
-35,
41,
-4,
43,
-23,
46,
-18,
-21,
52,
-47,
-6,
36,
-2,
46,
53,
29,
-26,
42,
25,
-36,
-35,
-7,
15,
4,
-17,
-18,
-50,
18,
10,
-76,
-28,
10,
39,
8,
9,
33,
-1,
-29,
42,
59,
28,
-40,
-4,
76,
-35,
3,
22,
25,
13,
57,
11,
68,
9,
-63,
18,
81,
30,
40,
-37,
15,
-34,
35,
5,
22,
79,
53,
8,
-46,
-23,
-46,
36,
-33,
-22,
-1,
21,
-32,
-26,
28,
23,
-39,
-12,
57,
8,
5,
39,
8,
-85,
34,
-28,
-10,
35,
-5,
72,
-81,
17,
-5,
-9,
35,
3,
-39,
-1,
-67,
-9,
36,
-4,
-65,
-66,
43,
-19,
-3,
17,
-4,
-1,
-9,
25,
13,
12,
24,
27,
0,
-30,
-53,
6,
-73,
-3,
-36,
-57,
-91,
-33,
-3,
-9,
-25,
16,
19,
61,
46,
-81,
-20,
0,
-33,
16,
-55,
54,
-67,
0,
29,
-40,
20,
9,
-5,
53,
-9,
-35,
-27,
6,
0,
-16,
7,
11,
11,
21,
-12,
-26,
10,
-13,
0,
-3,
17,
38,
-34,
100,
-2,
-23,
52,
19,
0,
3,
-2,
-36,
-23,
-16,
-19,
12,
-18,
31,
-16,
20,
-39,
11,
62,
1,
41,
-4,
-2,
-38,
-7,
-19,
-9,
-36,
13,
-34,
-32,
0,
-5,
31,
60,
30,
0,
33,
60,
-60,
-48,
-32,
-9,
-26,
64,
20,
-47,
-64,
-33,
-65,
-2,
25,
-22,
1,
-10,
-53,
48,
37,
11,
88,
21,
2,
15,
1,
45,
9,
29,
-9,
5,
-27,
4,
-64,
-105,
-8,
-8,
-10,
-43,
-9,
-35,
28,
-12,
-26,
27,
28,
19,
-6,
-39,
-11,
-6,
-28,
-54,
-8,
-31,
31,
-42,
22,
23,
6,
-2,
5,
-55,
-13,
-21,
16,
-7,
-82,
14,
6,
18,
12,
34,
1,
-13,
0,
-33,
47,
8,
-18,
45,
17,
-34,
45,
34,
8,
21,
-100,
4,
-21,
19,
0,
6,
-64,
8,
1,
-7,
5,
1,
13,
28,
-2,
23,
54,
17,
-12,
-70,
-52,
-7,
22,
-19,
9,
39,
58,
9,
25,
-33,
29,
-46,
15,
19,
-16,
25,
11,
5,
-57,
-13,
48,
-18,
27,
-15,
-26,
3,
-28,
-7,
-36,
62,
-4,
-23,
-25,
20,
-83,
42,
-11,
-48,
12,
4,
-27,
-23,
0,
30,
50,
-1,
19,
-42,
-4,
35,
-60,
-16,
3,
4,
12,
-35,
-39,
10,
56,
-4,
-40,
20,
6,
9,
28,
-10,
-87,
-53,
-31,
-3,
-13,
20,
1,
2,
18,
-13,
84,
42,
-39,
21,
27,
34,
-21,
-10,
16,
-7,
20,
-14,
-2,
30,
69,
-39,
-53,
4,
1,
28,
1,
23,
18,
-63,
-36,
-62,
-10,
-21,
-53,
45,
-53,
42,
12,
-13,
13,
42,
-36,
2,
31,
-68,
9,
14,
29,
-44,
-39,
-20,
19,
-49,
-3,
-41,
-9,
-24,
44,
3,
12,
-23,
59,
22,
12,
-21,
13,
-5,
27,
-9,
22,
-6,
-8,
6,
40,
68,
-36,
-43,
-26,
7,
10,
-49,
-12,
-3,
24,
-36,
-14,
-6,
37,
-2,
8,
-96,
48,
-71,
-2,
-13,
-26,
-5,
16,
-15,
-23,
-31,
-14,
31,
2,
-13,
-42,
-15,
26,
-12,
36,
9,
12,
-28,
-11,
-14,
-5,
-16,
8,
1,
0,
14,
23,
42,
42,
-39,
-13,
10,
-31,
16,
24,
40,
-24,
14,
19,
33,
48,
-25,
3,
-10,
75,
47,
20,
21,
53,
6,
56,
-7,
34,
6,
-20,
25,
58,
-24,
-16,
8,
28,
-6,
2,
-27,
-24,
-31,
31,
-43,
0,
41,
-48,
24,
65,
19,
10,
-27,
35,
19,
-71,
-18,
4,
-1,
-23,
15,
13,
25,
-5,
-41,
29,
15,
-18,
-20,
6,
-35,
17,
2,
16,
-51,
-102,
2,
-15,
1,
35,
10,
-60,
40,
-3,
20,
0,
22,
31,
-30,
-30,
-49,
66,
27,
18,
-31,
50,
69,
32,
-42,
2,
-13,
8,
32,
-17,
-43,
27,
14,
-52,
-5,
-34,
60,
-19,
-35,
-43,
41,
-8,
18,
49,
11,
14,
-18,
-17,
21,
9,
-11,
59,
2,
-8,
23,
-4,
11,
-4,
9,
45,
32,
14,
-9,
10,
20,
-49,
-16,
11,
56,
-11,
9,
20,
-22,
10,
-20,
-22,
-4,
-49,
-27,
32,
41,
38,
72,
13,
-86,
7,
-33,
-54,
41,
74,
5,
-66,
50,
13,
6,
-50,
32,
29,
0,
-48,
16,
-9,
15,
37,
-58,
30,
-13,
-52,
14,
-9,
17,
2,
-15,
19,
-57,
16,
-1,
-52,
-62,
-6,
-5,
26,
26,
10,
3,
-46,
-31,
34,
64,
-22,
16,
-16,
51,
1,
-2,
20,
16,
17,
-36,
21,
-18,
-9,
-45,
-6,
12,
-21,
29,
65,
9,
-30,
31,
-16,
-36,
15,
38,
-15,
33,
-16,
-5,
2,
13,
82,
12
] |
MR. JUSTICE HOLLOWAY
delivered tbe opinion of tbe court.
In February, 1913, in an action pending in tbe justice of tbe peace court for Great Falls township, Cascade county, wherein Kalara Kasun was plaintiff and Ivan Polich was defendant, tbe plaintiff recovered a money judgment, and Polich appealed to tbe district court. To render bis appeal effective he filed an undertaking on appeal, with John Mihelich and Roko Todevich as sureties. After more than four years the cause was brought to trial, and on April 30, 1917, a verdict was returned in favor of the plaintiff and against Polieh for $261.80, but judgment on the verdict was not rendered or entered until December 6, 1917. Thereafter counsel for Polieh moved the court to set aside the judgment and dismiss the "action, on the ground that the judgment had not been entered for more than six months after the verdict was returned. Five years elapsed before the motion was heard, but it was finally denied and Polieh undertook to appeal from the order, but failed to take his appeal within the time limited by statute, and his attempted appeal was dismissed. (Kasun v. Polich, 70 Mont. 618, 236 Pac. 1116.) John Mihelich died and in September, 1923, this action was commenced against Todevich, the remaining surety, to enforce the penalty of the undertaking on appeal referred to above. The parties agreed upon the facts and the cause was submitted to the court without a jury, with the result that a judgment was rendered and entered in favor of the plaintiff and against Todevich for $388 and costs, and it is from that judgment that this appeal is prosecuted.
It is insisted by the appellant Todevich that he is not liable on the undertaking, because the appeal taken by Polieh from the judgment entered in the justice of the peace court was neither withdrawn nor dismissed. The undertaking on appeal, after reciting that a judgment had been recovered from which Polieh desired to appeal, proceeds: “Now, therefore, in consideration of the premises, and of such appeal, we, the undersigned, John Mihelich and Roko Todevich of said county of Cascade do hereby jointly and severally undertake in the sum of four hundred seventy-five and no-100 dollars that the said appellant will pay the amount of the judgment appealed from, and all costs, if the appeal be withdrawn or dismissed in the amount of any judgment and all costs that may be recovered against him in the action in the district court.”
Section 7124, Revised Codes of 1907, in force at the time the appeal was taken (now section 9757, Rev. Codes 1921), provided that the undertaking on appeal from a justice of the peace court to the district court must be conditioned “that the appellant will pay the amount of the judgment appealed from, and all costs, if the appeal be withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against him in the action in the district court.” The meaning of the statute is perfectly plain: If the appeal be withdrawn or dismissed, the limit of liability is the amount of the judgment rendered in the justice of the peace court with costs, but if the appeal- be not withdrawn or dismissed, the limit of liability is fixed by the amount of the judgment and costs recovered in the district court. The only hope of escape for the sureties is that the -party appealing will be successful in the district court, -but if judgment there goes against him and becomes final, the liability is absolute.
The undertaking above complies strictly with the statute, except that after the word “dismissed” the word “in” is inserted instead of the statutory term “or,” and because of this error appellant Todevich claims absolute exemption from the liability which otherwise he could not escape. In other words, he contends that the sureties on the undertaking agreed to become liable only in the event the appeal was withdrawn or dismissed, and since it was neither withdrawn nor dismissed, liability ceased after the cause was tried in the district court.. This argument ignores all of the language of the undertaking after the word “dismissed,” and to justify his position counsel for appellant is driven to say that the portion ignored “is indefinite and unintelligible, and is in no way connected with that part of the paragraph preceding it.” But this is the undertaking of the sureties, and the- language employed in it is their language, to be interpreted most strongly against them (sec. 7545, Rev. Codes 1921), and they must bear the burden of explaining or removing whatever uncertainty exists. (Blankenship v. Decker, 34 Mont. 292, 85 Pac. 1035; Weir v. Ryan, 68 Mont. 336, 218 Pac. 947.) Instead of explaining or removing the uncertainty, appellant seeks to take advantage of it. In effect he is contending that, because of his mistake or design in inserting the word “in” where “or” should have been used, he is relieved from liability, even though the undertaking in its present form enabled his principal, Polich, to gain every advantage which the appeal could afford.
We agree with counsel for appellant that this undertaking is to be treated as an ordinary contract, and that it is not the province of the courts to make a new contract for the parties, |or to alter the one that they made for themselves; but it is |the province of the courts to interpret the contract, and to that jend the Code prescribes certain rules for their guidance, among ■them the following:
“See. 7532. The whole of a contract is to be taken together, so as to givé effect to every part, if reasonably practicable, each clause helping to interpret the other, *• * *
“See. 7534. 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. * * *
“Sec. 7544. Words in a contract which are wholly inconsistent with its nature, or with the main intention of the parities, are to be rejected.”
f The word “in” is meaningless in the connection in which it is employed, and it will be disregarded under the authority !of the section of the Code last quoted.
We do not agree with appellant’s counsel, however, that the remaining portion of the paragraph is altogether unintelliígible; on the contrary, we think the intention of the parties is ■made manifest. The sureties agreed that Polich would pay (a) the amount of the judgment appealed from if the appeal should be withdrawn or dismissed; (b) the amount of any judgment and all costs that might be recovered in the action in the district court. It is apparent that something has been omitted after the word “dismissed,” but the undertaking was given pursuant to the provisions of section 7124 above, and is to be construed with reference to that statute. The statute discloses that the word “or” should have been inserted after the word “dismissed,” and the undertaking on its face fairly indicates the same thing. Therefore, if it be necessary to give effect to what follows, the omitted word will be supplied by construction and the instrument read as though it had been employed. (Whitney v. Darrow, 5 Or. 442; Frankel v. Stern, 44 Cal. 168; 39 Cyc. 679; 13 C. J. 535.)
In Irwin v. Nichols, 87 Ark. 97, 112 S. W. 209, there was involved a contract in which appeared the following: “We can promise to give you work at $2.50 per day when the mill is not running, as we cannot afford it.” Concerning it the court said: “Words which are omitted by inadvertence from a written contract may be supplied by construction at law, without resort to reformation, if the context shows what words are omitted. * * * The omission of the word ‘not’ before the word ‘promise’ is a plain inadvertence, or clerical misprision which the context itself readily and naturally supplies. Otherwise the different parts of the letter are not only contradictory, but absurd and meaningless. No one could read the letter without seeing that the word ‘not’ was intended to be used before the word ‘promise.’ ”
In Dodd v. Mitchell, 77 Ind. 388, the lease in question provided: “The parties of the second part agree to pay $4.50 per acre, and the first payment to be due the twenty-fifth day of December, 1875, and the balance to be paid yearly thereafter.” In construing the instrument the court said: “It was undoubtedly the intention of the parties that the lessees should pay $4.50 per acre yearly. * * # Where a material word appears to have been omitted in a lease by mistake, and other words cannot have their proper effect unless that word be introduced, such lease must be construed as if that word were inserted, although the particular passage Where it ought to stand conveys a sufficiently definite meaning without it.”
Many other illustrations of the application of the rule will be found cited in 4 Page on Contracts, section 2032.
The contention that by the use of the word “in” instead of. “or” the sureties escaped liability is altogether.without merit.
It is next contended that the sureties are not liable because the judgment obtained by Kasun against Polieh in the district court is void, and it is argued that the judgment is void because it was not entered until more than six months had elapsed after the verdict was returned. Section 9317, Revised Codes, provides that: “An action may be dismissed * * * (6) By the court, when, after verdict or final submission, the party entitled to judgment neglects to demand and have the same entered for more than six months.” - The attack now made upon the judgment, which was entered December 6, 1917, is a collateral one, and could succeed only in the event that the judgment is void upon the face of the judgment-roll. To sustain his theory that the judgment is void, counsel for appellant invokes the provision of subdivision (6) above, but he misinterprets the language of the statute as well as the decisions of this court construing the same.
It is true we held that the language of the subdivision is mandatory-(State ex rel. Stiefel v. District Court, 37 Mont. 298, 96 Pac. 337), nevertheless it can be invoked only in a case which comes clearly within its terms (Joyce v. McDonald, 51 Mont. 163, 149 Pac. 953), and such is not the case before us. While Polieh might have- been able to secure a dismis:al of the action against him after the expiration of six months from April 30, 1917, and before the judgment was entered on December 6, he failed to take advantage of his opportunity, but waited until the judgment was entered -before he interposed his motion. At the expiration of one year from December 6, 1917, the judgment became final, as did the order denying his motion to dismiss the action when his pretended appeal failed. It is not the lapse of more than six months from final submission without the entry of judgment which renders the action subject to dismissal, but the negligence on the part of the person entitled to judgment in failing to have it entered for more than six months. (Rule v. Butori, 49 Mont. 342, 141 Pac. 672; Soliri v. Fasso, 56 Mont. 400, 185 Pac. 322.) The statute clearly contemplates that the dismissal must precede the entry of judgment, and if the judgment is entered after the expiration of the six months period, but before a motion to dismiss is interposed, it is not void, hence not open to collateral attack.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Rankin, Galen and Stark concur.
|
[
8,
14,
21,
-62,
12,
-45,
1,
-11,
-2,
29,
-27,
-10,
-4,
10,
-20,
-23,
-62,
-10,
-22,
29,
3,
-30,
-3,
10,
-19,
-14,
-29,
-21,
0,
-26,
32,
33,
-19,
19,
49,
-7,
-31,
-64,
37,
-29,
-26,
35,
-12,
-31,
-31,
51,
64,
-38,
29,
-18,
-15,
-24,
-1,
13,
-62,
17,
34,
17,
19,
38,
-41,
9,
-4,
27,
11,
-6,
33,
24,
48,
-2,
-58,
-44,
18,
-8,
6,
20,
-44,
-21,
-10,
26,
-39,
39,
-30,
-13,
-78,
0,
-29,
-41,
-24,
86,
27,
8,
27,
45,
23,
21,
21,
-56,
-97,
27,
-24,
-3,
-1,
41,
7,
5,
1,
-24,
-5,
-32,
-33,
48,
-8,
10,
-8,
-53,
51,
-20,
59,
-1,
14,
-3,
38,
9,
23,
-67,
35,
-20,
6,
-62,
-1,
-2,
-21,
32,
-57,
29,
30,
-61,
37,
40,
48,
-61,
-14,
-22,
0,
16,
-11,
-56,
58,
-45,
-37,
17,
16,
61,
27,
17,
8,
-20,
59,
43,
64,
-87,
-33,
4,
55,
-27,
27,
-46,
44,
1,
-5,
0,
0,
-20,
50,
20,
18,
-58,
22,
-4,
0,
30,
2,
-69,
-3,
-30,
-56,
103,
5,
-43,
11,
-22,
-61,
-23,
-41,
-26,
-66,
-33,
11,
18,
55,
-1,
9,
-7,
4,
33,
46,
-3,
37,
-30,
53,
4,
-41,
21,
-47,
-6,
33,
8,
-12,
-27,
21,
-22,
-40,
-5,
-19,
27,
29,
12,
45,
-12,
-29,
28,
-7,
62,
12,
0,
-24,
55,
-41,
-44,
-26,
10,
-11,
-21,
-24,
44,
27,
0,
-18,
26,
-38,
50,
-38,
-9,
46,
-1,
22,
7,
15,
-3,
62,
4,
-9,
-8,
-41,
35,
1,
-38,
9,
9,
49,
-17,
55,
-6,
-63,
-51,
68,
-47,
5,
0,
14,
-70,
14,
-17,
50,
42,
19,
1,
11,
38,
-28,
56,
-27,
22,
66,
-41,
46,
1,
0,
18,
-26,
57,
2,
30,
29,
0,
-38,
56,
19,
-23,
50,
-44,
-36,
23,
68,
-11,
-33,
-27,
43,
7,
-1,
-15,
-46,
16,
-23,
18,
-18,
-9,
-26,
8,
-4,
6,
-14,
15,
52,
-24,
34,
75,
45,
-15,
12,
25,
-11,
-25,
23,
6,
18,
-17,
-31,
23,
13,
-11,
-4,
-3,
-77,
-5,
-20,
-25,
-39,
47,
35,
35,
55,
4,
-8,
-33,
-27,
-9,
-48,
23,
2,
70,
23,
-25,
3,
39,
26,
48,
-39,
87,
15,
11,
-4,
3,
9,
-2,
9,
-24,
-14,
-10,
-34,
30,
-2,
21,
-13,
13,
28,
-10,
-33,
-61,
38,
60,
11,
21,
1,
-40,
-30,
35,
12,
-1,
20,
-13,
-53,
-70,
36,
-8,
-48,
27,
8,
17,
65,
7,
0,
-15,
78,
10,
48,
-22,
29,
40,
-10,
39,
38,
4,
-16,
18,
5,
58,
-19,
-17,
-1,
46,
14,
-36,
-6,
-55,
23,
-21,
-14,
51,
-8,
-4,
16,
-9,
-15,
9,
-34,
-27,
-22,
11,
-24,
22,
-25,
1,
-11,
-55,
-17,
-3,
-10,
41,
-83,
52,
-54,
-10,
35,
18,
-16,
-12,
14,
46,
46,
-61,
-54,
-23,
19,
-31,
-23,
-6,
-35,
3,
39,
18,
-49,
9,
-44,
-12,
-43,
-42,
50,
-46,
-66,
9,
-33,
-13,
-51,
-28,
84,
-17,
-5,
-6,
8,
9,
46,
22,
-37,
25,
66,
-28,
-39,
65,
-37,
19,
-10,
-1,
58,
-10,
10,
-64,
-7,
13,
-71,
-50,
-55,
38,
26,
10,
-4,
30,
-1,
-31,
29,
-18,
59,
-36,
-29,
-11,
-54,
24,
77,
-8,
45,
9,
-28,
3,
-39,
16,
-81,
43,
55,
-70,
27,
18,
-44,
14,
-14,
-49,
8,
8,
14,
-9,
-10,
-29,
-26,
1,
-11,
-2,
-39,
-27,
11,
32,
33,
-21,
-53,
54,
8,
-21,
27,
11,
4,
32,
-12,
-2,
-44,
26,
-26,
-13,
8,
43,
34,
-4,
-9,
58,
14,
62,
-10,
35,
14,
19,
0,
13,
15,
-2,
-26,
-10,
-17,
-10,
26,
-35,
40,
11,
-7,
-22,
13,
88,
-47,
-28,
-15,
-19,
-18,
-1,
-10,
29,
-2,
12,
-24,
35,
-13,
13,
-36,
-30,
-3,
-8,
5,
-17,
-53,
-29,
-49,
46,
45,
51,
-23,
-4,
-14,
-1,
-47,
-10,
-10,
5,
49,
60,
0,
6,
-68,
-17,
-1,
-18,
21,
19,
50,
11,
-14,
-20,
2,
-43,
-76,
-46,
-1,
27,
-4,
-24,
13,
60,
-19,
-1,
-50,
-56,
-71,
56,
15,
66,
-32,
53,
-3,
18,
30,
5,
-32,
25,
11,
-7,
-37,
-1,
-39,
13,
-41,
60,
23,
-4,
-36,
-85,
-7,
-4,
12,
19,
-70,
14,
52,
-64,
-17,
-24,
-18,
-18,
10,
48,
86,
5,
-2,
32,
57,
84,
87,
71,
-22,
39,
-12,
-16,
-87,
31,
-7,
-3,
-36,
-18,
-10,
6,
40,
22,
-5,
40,
-64,
-48,
11,
13,
-3,
-11,
-54,
-39,
11,
-8,
-46,
-4,
17,
-17,
46,
19,
-5,
12,
10,
-58,
-25,
-20,
-60,
14,
-40,
0,
-70,
-19,
-48,
41,
75,
-13,
-23,
42,
-30,
-4,
-13,
8,
32,
8,
28,
-3,
-47,
-45,
-17,
3,
14,
-23,
8,
-23,
54,
3,
15,
-25,
-25,
4,
34,
72,
-26,
2,
29,
34,
34,
23,
8,
25,
14,
-18,
33,
-27,
25,
12,
-36,
-11,
17,
45,
39,
-46,
47,
-30,
-71,
52,
6,
-49,
-48,
3,
-31,
-49,
62,
16,
-18,
-2,
-26,
-40,
-73,
49,
3,
-16,
56,
3,
6,
-26,
13,
21,
-16,
30,
-14,
-4,
7,
-71,
24,
22,
86,
-78,
28,
5,
0,
13,
3,
-23,
-104,
56,
48,
-6,
-16,
1,
-128,
17,
12,
37,
31,
-13,
-45,
-21,
-9,
-23,
4,
19,
-25,
-29,
32,
-62,
-44,
15,
-41,
24,
36,
-13,
-10,
-67,
9,
23,
44,
-31,
-13,
-5,
-16,
-64,
-39,
-2,
-11,
71,
-28,
-48,
-20,
-65,
-19,
-3,
-26,
1,
7,
21,
17,
1,
-22,
25,
-42,
42,
32,
-15,
-40,
64,
-6,
45,
0,
6,
-20,
-8,
-25,
-23,
8,
-18,
25,
-28,
-14,
22,
20,
22,
20,
-30,
-23,
3,
50,
22,
0,
92,
49,
15,
-56,
-4,
36,
-29,
44,
-27,
23,
6,
-7,
-38,
-35,
19,
85,
-5,
-64,
42,
49,
-8,
5,
-3,
17,
6,
-10,
-35,
8,
-15,
11,
3,
16,
-44,
0,
-25,
-22,
1,
-17,
-35,
11,
-9,
16,
-4,
32,
-40,
21,
18,
44,
3,
12,
7,
11,
-10,
15,
-15,
-67,
61,
41,
60,
-1,
-39,
-9,
65,
53,
-2,
-43,
27,
-31,
13,
-2,
-45
] |
MR. JUSTICE STARK
delivered the opinion of the court.
On or about the first day of June, 1924, R. B. Yan Wagenen, a justice of the peace of Whitefish township, Flathead county, presented to this court a written and verified complaint against R. D. Frederick, a duly licensed attorney of this court, who re sides and practices his profession at Whitefish, in which he alleged that on February 19,1924, said R. D. Frederick falsely and fraudulently made a copy of a complaint in an action entitled C. C. Cooke, Plaintiff, v. E'. P. Aldrich and Mrs. E. P. Aldrich, as Defendants, purported to have been filed with complainant as justice of the peace, and did likewise make a purported copy of a summons and writ of attachment to which he signed the name of the said R. B. Yan Wagenen, as justice of the peace, and did then and there deliver such papers to a constable of Whitefish township with directions to serve the same. This officer served the purported summons upon one of the defendants named therein, Mrs. E. P. Aldrich, and under the purported writ of attachment seized a trunk belonging to Mrs. Aldrich, who thereupon, and in order to release the same from the supposed levy, paid to the officer the sum of $10.74, the amount claimed to be due to the plaintiff in the purported action, and also the further sum of $4.40 as the purported costs of suit. It was further alleged that at the timé these papers were delivered to the officer they were fictitious; that no such suit had been filed before the said Yan Wagenen as justice of the peace, and no summons or writ of attachment had been issued thereon, all of which facts were well known to said Frederick, and by reason of these acts he was guilty of malpractice in so obtaining said money from Mrs. Aldrich.
Upon presentation of the complaint to the court Mr. Ralph E. Bancroft, a member of the bar of this court, was appointed to make an investigation of the facts alleged in the complaint and report the same to the court. After Mr. Bancroft made his report, the Yan Wagenen complaint was ordered filed, a summons issued and served upon accused requiring him to appear on or before June 30 and answer the charges made against him. On June 21 he appeared with his counsel, filed his answer to the complaint, submitted certain documents in connection therewith, also made an oral statement, and submitted himself to an examination by the members of the court. Thereupon the attorney general asked for and was given until June 30 to determine whether he would controvert the allegations and statements of the accused, at the expiration of which time he announced that he did not desire to reply to the matters alleged in the answer, as he was satisfied they were-all true.
There is no dispute about the facts. Using the complaint and answer together with all the papers and documents filed, as well as the statements made by the accused himself, these facts are as follows: Mr. Frederick is a young man who has practiced his.profession in Whitefish since about the year 1920, and had always been regarded highly in the community of his residence, and enjoys the confidence of the citizens of the community generally. Judge Pomeroy, the judge of the district court of Flathead county, in which Whitefish is located, spoke highly of him, and Judge Erickson, a former judge of the district court of said county, commended him without reservation. Many members of the bar of Flathead county consider him a man of sterling integrity; so it appears that he has heretofore been considered above reproach in the practice of his profession.
As above indicated, the complainant, E-. B. Yan Wagenen, is a justice of the peace in Whitefish. For quite a long time prior to the nineteenth day of February, 1924, an arrangement had existed between the complainant Yan Wagenen and the accused Frederick, by which the complainant signed summonses and writs of attachment in blank, and left them with Frederick to be used in the commencement of actions before said justice of the peace whenever Frederick desired to use them and the justice of the peace was not immediately available for the purpose of issuing the same; also that there was a basket or receptacle in the office of Frederick in which it was customary for Frederick to deposit papers which were to be filed in the office of the complainant Yan Wagenen, and that once each day or oftener the complainant went to Frederick’s office and obtained all papers which were deposited in this basket and took them to his own office, where they were properly filed; that both Frederick and the complainant Yan Wagenen considered this basket as the property of Yan Wagenen, and only papers intended to be filed with him were deposited therein. In addition, there was also an arrangement between Frederick and Van Wagenen by which Yan Wagenen filed papers taken from the receptacle in Frederick’s office without requiring the actual payment of fees in advance for filing the same, and that once or twice a month or oftener, if he desired to do so, Yan Wagenen presented bills to Frederick for the amount of filing fees due to him under this arrangement, which were always paid. In connection with his answer and statements there was presented and filed a copy of a blank summons signed by R. B. Yan Wagenen which was stated to be one of the summonses which had been left with Frederick for use in the manner indicated in his answer and also in the report of Mr. Bancroft. There were also presented numerous checks signed by the accused in favor of Van Wagenen, issued between the thirty-first day of July, 1923, and the twenty-third day of February, 1924, which seem to confirm the statement contained in the answer with reference to the arrangement for the payment of the fees of the justice of the peace.
Referring to the particular suit mentioned in Yan Wag-enen’s complaint the facts disclosed are that at the time this suit was instituted Mrs- Aldrich was about to depart from Whitefish on an afternoon train, being at the time indebted to C. -C. 'Cooke in a small amount. Frederick, acting as attorney for Cooke, prepared a complaint wherein Cooke appeared as plaintiff and E. P. Aldrich and Mrs. E. P. Aldrich were defendants, and also prepared an affidavit and undertaking on attachment, and deposited the same in the above-mentioned basket, and filled out and used a summons and writ of attachment which had been left with him, signed by Yan Wagenen, and also made copies of the summons and writ of attachment by inserting the name of Yan Wagenen as justice of the peace, and delivered the summons, writ and copies to an officer with instructions to serve- them before the original complaint, affidavit and. undertaking on attachment had been filed with the justice of the peace, for the reason that the justice of the peace could not be found in time to get the papers filed before the train left. Thereupon the officer made service of the summons upon Mrs. Aldrich, and also levied upon her trunk at the station, and she, thinking that a valid levy of an attachment had been made upon her property, in order to release the same paid the amount of the claim of Cooke, and also paid the costs of the purported suit, amounting to $4.40. On the following day the officer returned the original papers to the justice of the peace, and asked that they be filed. The costs collected by the officer included a $2.50’ filing fee for the justice of the peace, and this last-mentioned sum has never been paid to the justice, although in his answer and statement Frederick says he would have paid it over at any time had Van Wagenen presented a bill for the same in accordance with their previous arrangement and custom.
Section 9712, Revised Codes of 1921, expressly provides: ‘ ‘ The summons, execution, and other papers made or issued by a justice, except a subpoena, must be issued without a blank left to be filled in by another, otherwise it is void.” This statute was intended to prevent just such practices as were indulged in by the complainant and the accused as disclosed by the record in this case.
One who knowingly uses a summons, writ of attachment or similar process purported to have issued from a justice court for the purpose of collecting money, which is not completely filled out by the justice before it is issued in accordance with the statute, is making use of a void process to enforce such collection, and thus obtains the money by means of acts which constitute extortion.
Under the undisputed facts in this record both Van Wag- enen, the complainant, and Frederick, the accused, are equally at fault, but in this proceeding we can deal only with the accused. In his answer and statements the accused indicated that, until complaint was made in this matter, he did not realize the fact that the arrangement and practice entered into and pursued between himself and Yan Wagenen were at all irregular, but that he is now fully aware of the fact that the same were culpable. The attitude of the accused in connection with this investigation has seemed to be entirely frank. He does not appear to have undertaken to conceal any facts connected with it. These matters, coupled with the fact that he has heretofore been a man of good reputation and standing, impel us to leniency.
It is therefore ordered that R< D. Frederick, a member of the bar of this state, be suspended as attorney and counselor for a period of thirty days, at the expiration of which time, upon payment of all costs incurred in this proceeding, he may resume the practice of law without further order.
Mr. -Chief Justice Callaway and Associate Justices Galen and Cooper concur.
|
[
-3,
6,
17,
41,
-28,
-13,
6,
-3,
13,
8,
60,
-37,
58,
17,
5,
-27,
-32,
-7,
16,
2,
-2,
-45,
2,
-14,
-33,
-42,
-32,
8,
-35,
-51,
46,
64,
10,
1,
-3,
-6,
7,
-27,
-3,
-9,
80,
-16,
-14,
-42,
21,
5,
20,
-12,
-31,
-34,
61,
10,
4,
-22,
15,
-14,
-25,
20,
-25,
-19,
3,
-54,
-22,
-4,
39,
-22,
50,
20,
14,
22,
0,
-41,
-26,
-32,
-12,
-21,
-59,
-8,
35,
50,
-40,
-16,
5,
-3,
-36,
-54,
-17,
-32,
21,
68,
45,
13,
-16,
-13,
41,
-18,
-11,
20,
-32,
-13,
15,
-32,
-34,
19,
18,
21,
-55,
52,
16,
17,
2,
26,
61,
-38,
49,
-81,
44,
0,
43,
5,
11,
14,
-18,
37,
-13,
38,
-30,
13,
63,
4,
31,
47,
-1,
-4,
25,
27,
-31,
-43,
18,
-16,
-8,
33,
-37,
-40,
-25,
1,
-16,
-9,
-40,
19,
-41,
-15,
73,
10,
21,
-47,
63,
-62,
57,
-11,
46,
5,
-32,
13,
-27,
11,
44,
10,
-28,
19,
-1,
43,
0,
50,
37,
25,
-45,
-18,
9,
42,
36,
44,
20,
-9,
-1,
-40,
25,
-52,
-26,
43,
55,
-37,
-15,
-16,
-13,
18,
9,
15,
27,
5,
51,
-40,
-35,
-14,
-60,
-9,
60,
-35,
7,
51,
18,
16,
-10,
-31,
1,
32,
-56,
-7,
6,
-18,
30,
-22,
-5,
25,
-48,
-51,
43,
65,
51,
-53,
-33,
36,
-38,
0,
20,
-1,
-4,
5,
-47,
-12,
-57,
-49,
-28,
3,
-31,
8,
-50,
4,
-61,
25,
-19,
-3,
34,
20,
-30,
-7,
5,
1,
-45,
-19,
-7,
-6,
15,
41,
3,
-21,
5,
-39,
8,
-39,
35,
9,
14,
-20,
8,
-44,
-12,
-3,
90,
68,
-34,
-65,
-34,
-1,
48,
0,
24,
-33,
-8,
-45,
-22,
-27,
35,
-4,
44,
20,
-1,
-14,
23,
-12,
0,
-1,
-54,
-5,
-52,
23,
-42,
16,
-38,
33,
6,
17,
-21,
45,
54,
-22,
-29,
13,
5,
-1,
15,
24,
-25,
-21,
-60,
3,
-40,
29,
28,
-11,
-26,
5,
-29,
0,
-3,
-24,
36,
38,
74,
-47,
7,
-11,
9,
-18,
-50,
-9,
30,
46,
8,
-27,
34,
-6,
-18,
20,
-96,
26,
-29,
5,
55,
-28,
43,
32,
-3,
-1,
-55,
38,
-39,
-25,
-28,
42,
-34,
-20,
9,
-19,
58,
-15,
15,
-26,
-42,
61,
2,
30,
18,
9,
-42,
24,
4,
-61,
-42,
-40,
-19,
7,
23,
83,
-10,
-18,
-2,
-58,
-6,
-6,
-9,
27,
23,
-29,
-15,
25,
-18,
25,
0,
8,
52,
1,
-8,
-67,
51,
-32,
-11,
71,
12,
27,
24,
56,
55,
50,
41,
-1,
3,
18,
-12,
3,
13,
54,
-20,
5,
36,
11,
19,
37,
7,
-13,
54,
43,
31,
-5,
1,
-22,
-17,
-10,
43,
2,
-14,
17,
26,
9,
-21,
-2,
74,
-4,
36,
-2,
-75,
13,
18,
-33,
13,
-7,
-18,
-7,
-50,
51,
-28,
39,
-4,
-72,
-24,
5,
0,
-8,
3,
0,
-12,
-21,
18,
3,
-4,
-8,
-26,
-23,
-54,
13,
30,
-26,
-68,
-1,
-29,
5,
4,
-23,
29,
0,
-39,
-7,
25,
5,
-21,
6,
38,
61,
43,
15,
44,
8,
3,
-21,
-22,
-4,
17,
-4,
-21,
25,
26,
79,
35,
21,
-47,
-52,
53,
-47,
-7,
-35,
-89,
24,
-25,
2,
28,
-41,
42,
-35,
-4,
-21,
-19,
-68,
43,
-58,
-22,
13,
20,
31,
70,
0,
5,
4,
23,
15,
-29,
-31,
11,
-49,
-23,
-27,
66,
13,
-51,
-27,
-13,
23,
19,
-1,
-21,
-44,
-9,
-16,
38,
5,
-10,
-46,
-26,
-57,
19,
18,
32,
-40,
-18,
10,
-24,
6,
97,
-60,
-3,
4,
8,
7,
-39,
3,
-40,
56,
2,
35,
67,
-13,
-33,
-8,
19,
3,
-30,
18,
-7,
27,
36,
41,
11,
-3,
-8,
25,
16,
25,
-45,
-40,
4,
17,
69,
-12,
36,
42,
9,
-37,
-27,
-7,
-37,
-3,
6,
-35,
14,
23,
15,
-26,
-4,
57,
-18,
31,
-30,
21,
24,
-38,
-38,
37,
-34,
20,
-53,
0,
7,
-1,
17,
-7,
-46,
10,
11,
-56,
5,
48,
23,
9,
-51,
-1,
-56,
3,
18,
33,
0,
15,
45,
-67,
34,
8,
-56,
-67,
20,
11,
41,
19,
33,
12,
18,
25,
-24,
4,
33,
31,
-40,
26,
-45,
26,
-15,
73,
0,
24,
39,
-41,
-3,
-6,
-56,
-11,
-62,
-35,
-63,
29,
74,
-26,
-3,
-31,
-23,
-33,
-61,
-22,
-20,
23,
53,
32,
24,
20,
-17,
-54,
-19,
25,
53,
-2,
8,
6,
12,
38,
44,
73,
0,
11,
7,
62,
-25,
-27,
-31,
-3,
-17,
-24,
17,
2,
7,
-16,
75,
-31,
-1,
-59,
-3,
-22,
-31,
-39,
3,
-28,
6,
0,
-25,
62,
55,
9,
12,
-1,
-46,
11,
39,
-22,
-46,
-32,
8,
-30,
0,
4,
33,
32,
-14,
-23,
17,
4,
-20,
-31,
-85,
-34,
-10,
-22,
42,
42,
7,
31,
-42,
-62,
35,
-3,
-32,
0,
50,
-60,
-4,
3,
16,
1,
33,
44,
4,
-3,
30,
51,
-12,
73,
-35,
40,
-11,
-60,
-8,
-82,
21,
-13,
12,
-20,
-13,
-74,
17,
18,
27,
22,
6,
-32,
-53,
-36,
37,
3,
-47,
21,
3,
-12,
10,
-4,
3,
9,
15,
-19,
-27,
12,
19,
-12,
70,
-1,
2,
-41,
11,
11,
12,
-33,
-18,
-20,
29,
-18,
-11,
-7,
-12,
0,
-19,
-23,
21,
-31,
1,
-42,
19,
-53,
39,
-4,
-28,
-12,
-9,
8,
30,
-16,
60,
-2,
-26,
-19,
6,
-64,
-37,
-8,
11,
42,
-35,
1,
-1,
-22,
36,
-16,
-52,
21,
-29,
16,
14,
16,
25,
39,
34,
-14,
-13,
-64,
23,
45,
-19,
41,
19,
10,
-3,
-14,
0,
14,
-4,
-3,
20,
0,
50,
47,
-5,
43,
35,
35,
-3,
0,
-53,
54,
-62,
40,
23,
-23,
-13,
6,
-19,
-19,
-31,
-4,
12,
-58,
16,
-50,
36,
18,
-3,
-35,
-19,
58,
27,
-15,
6,
72,
-11,
-11,
0,
-25,
42,
25,
-27,
-3,
48,
-4,
-82,
-6,
5,
23,
55,
31,
-27,
26,
24,
-20,
2,
-20,
-2,
-10,
47,
-22,
14,
26,
-28,
46,
8,
-42,
27,
-64,
-23,
-10,
2,
0,
-25,
14,
35,
-38,
6,
-70,
-52,
-47,
-16,
14,
20,
-35,
-9,
-18,
-1,
-37,
-3,
53,
-34,
35,
-25,
25,
24,
-3,
48,
-26,
56,
3,
-48,
16,
0,
38
] |
HONORABLE FRANK P. LEIPER, District Judge,
sitting in place of MR. JUSTICE HOLLOWAY, disqualified, delivered the opinion of the court.
This is an original proceeding instituted by the relator for the purpose of obtaining a writ of mandate, directed to the respondent as county clerk of Musselshell county, Montana. For reasons which are obvious, we deem it advisable to set forth the material allegations of the petition, which are:
That relator is, and for several years last past has been, the owner of the following described real estate, situated in the county of Musselshell, Montana, to-wit: Lots 9, 10, 15 and 16, section 4, township 8 north, range 31 east of the M. P. M.; that said lands are what are known as coal lands, which were originally purchased by relator from the United States under the federal coal land laws, at the price of $20 per acre; that prior to the purchase of said lands by the relator, and while they were a part of the public domain of the United States, said lands were examined by the United States Geological Survey, classified as coal lands and appraised at the value of -$20 per acre; that said lands have been assessed for taxes to relator for the year 1924 at the price paid the government therefor; that respondent, as county clerk of Musselshell county, Montana, is about to calculate and extend upon the assessment-books of said county the real estate herein described upon the basis of 100 per cent of its assessed valuation.
“That on the third day of October, 1924, relator demanded of respondent that said lands be placed in class 4 of section 1999, Revised Codes of 1921, and that said tax be calculated and extended upon the basis of thirty per cent of the assessed valuation thereof, but respondent refused to make such classification, calculation and extension, and, unless otherwise commanded by this court, respondent will place said lands in class 1 of section 1999, Revised Codes of 1921, and will calculate and extend said taxes on the basis of 100 per cent of said assessed valuation.”
“That, unless respondent is compelled by an order of this court to calculate and extend said taxes on the basis of thirty per cent, relator’s lands will have imposed upon them a tax excessive by seventy per cent of that which is lawfully due and collectible; that relator will be unable to pay the amount of said taxes when calculated on the basis of 100 per cent of the assessed value, and the land herein described will be sold for taxes; and that relator has no plain, speedy or adequate remedy in the ordinary course o'f the law.” The reasons for bringing this action in this court are set forth.
The relief prayed for is that a writ of mandate issue, commanding respondent to calculate and extend the taxes for the year 1924 upon the lands described in the petition upon thirty per cent of the assessed value thereof. An alternative writ of mandate was issued. Respondent moved the court to quash the writ, for the reason, as set forth in such motion, that the petition does not state facts sufficient to warrant its issuance. The motion to quash performs the same functions as a demurrer, and therefore the respondent admits as true all matters properly pleaded in the petition.
It is relator’s contention that the character of property described in the petition is included within the provisions of subdivision 4 of section 1999 of the Classification Law, so called (Chap. 159, Pol. Code 1921), and that therefore the tax should be calculated upon thirty per cent of the purchase price paid for such property, as provided by section 2000, Revised Codes of 1921. On the other hand, the respondent contends that section 3 of Article XII, of the Constitution fixes the standard of value of that character of property described in the petition; that the Classification Law above mentioned has no application to such property, and that therefore the tax should be computed upon the full price paid to the United States therefor.
By Act of Congress of March 8, 1873 (17 Stats, at Large, 607; 6 Fed. Stats. Ann., 2d ed., 593 [U. S. Comp. Stats., sec. 4659], it is provided that: “Every person above the age of twenty-one years, who is a citizen of the United States, or who has declared his intention to become such, or any association of persons severally qualified as above, shall, upon application to the register of the proper land office, have the right to enter, by legal subdivisions, any quantity of vacant coal lands of the United States not otherwise appropriated or reserved by competent authority, not exceeding one hundred and sixty acres to such individual person, or three hundred and twenty acres to such association, upon payment to the receiver of not less than ten dollars per acre for such lands, where the same shall be situated more than fifteen miles from any completed railroad, and not less than twenty dollars per acre for such lands as shall be within fifteen miles of such road.” This Act provides the means whereby the coal lands of the United States may be acquired by certain individuals or associations composed of such persons.
From the allegations of the petition supra, it will be noted that the property in question consists of coal lands classified and approved as such by a department of the United States government, and purchased from it by the relator at the price of $20 per acre. The Constitution of Montana was adopted by our constitutional convention and ratified by the people of Montana in 1889. The Act of Congress of March 3, 1873, supra, was therefore in force at the time of the adoption and ratification of bur 'Constitution; and we think it may fairly be assumed that the framers of our Constitution had in mind this Act of Congress when the provisions of section 3 of Article XII, of the Constitution were under consideration.
It is unnecessary for us to now consider the question whether or not the property involved herein constituted “mining claims,” within the meaning of section 3 of Article XII above, for counsel for respondent assert in their brief “that the lands (meaning those described in the petition) constituted mining claims, there can be no doubt,” and counsel for relator tacitly agrees to this proposition in his reply brief, and each of the counsel for the respective parties so stated in oral argument.
By the enactment of Chapter 159 of. the Political Code (sections 1999 and 2000, Rev. Codes 1921), the legislature classified, for the purpose of taxation, the property of this state. The provisions of this law, in so far as the same are relevant to the matter on controversy herein, are:
Section 1999. “For the purpose of taxation, the taxable property in this state shall be classified as follows: * * * Class four. All land, town and city lots, with improvements, manufacturing and mining machinery, fixtures and supplies, except as otherwise provided by the Constitution of Montana.”
Section 2000 provides: “As a basis for the imposition of taxes upon the different classes of property specified in the preceding section, a percentage of the true and full value of the property of each class shall be taken as follows: # * * Class 4. Thirty per cent of its true and full value.”
In the case of Hilger v. Moore, 56 Mont. 146, 182 Pac. 477, this court, referring to sections 1999 and 2000, said: “The Act in question has nothing whatever to do with either the assessment of property or the determination of the rate of the tax levy. It is not directed to the assessor. His duties are defined by the statutes in force when this measure was enacted.” If the character of property described in the petition herein is properly included within the provisions of subdivision 4 of section 1999, supra, then certainly the tax thereon must be computed upon thirty per cent of the value.
Section 1 of Article XII, Constitution, provides: “Thenecessary 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.” Thus a duty is enjoined upon the legislative department of the state government. Speaking of section 1, this court, in the case of Northern Pac. Ry. Co. v. Musselshell County, 54 Mont. 96, 169 Pac. 53, among other things, says: “As expressive of the purpose that all property should bear its just proportion of the burden of supporting and maintaining the government, the convention adopted section 1. Under this it became the duty of the legislature to provide for a uniform rate of assessment and taxation, upon a just valuation of all property, except as otherwise provided in other sections of the Article. By section 16 it was made the duty of the legislature to provide generally the manner of assessment, except as otherwise provided, there being added a specific provision as to who should assess railroad property. * * * In section 2 it provided for exemptions, enumerating what property was to be absolutely exempt, and what the legislature might, in its discretion, exempt.”
Solely for convenience we will subdivide section 3 of Article XII into four parts, numbering these parts with letters (a), (b), (c), and (d), respectively, and again as a matter of convenience, reference will be made to these four parts by the letter designating it. Section 3 of Article XII (so divided) is:
(a) .“All mines and mining claims, both placer and rock in place, containing or bearing gold, silver, copper, lead, coal or other valuable mineral deposits, after purchase thereof from the United States, shall be taxed at the price paid the United States therefor”; (b) “unless the surface ground, or some part thereof, of such mine or claim, is used for other than mining purposes, and has a separate and independent value for such other purposes, in which case said surface ground or any part thereof, so used for other than mining purposes, shall be taxed at its value for such other purposes, as provided by law”; (c) “and all machinery used in mining, and all property and surface improvements upon or appurtenant to mines and mining claims which have a value separate and independent of such mines or mining claims” (shall be taxed as provided by law); and (d) “the annual net proceeds of all mines and mining claims shall be taxed as provided by law.”
Admittedly, the property described in the petition comes within our subdivision (a) of section 3. Clearly the value of this character of property was not to be ascertained by the regulations which section 1 of Article XII make it the duty of the legislature to prescribe, for our subdivision (a) of section 3 fixes an arbitrary value upon that property; namely, the price paid to the United States therefor, and therefore, .in so far as the matter of value is concerned, it comes within the exception contained in the last clause of section 1 of Article XII, and also within the exception contained in section 16 of that Article.
It is important to keep in mind that the framers of the Constitution, in considering the provisions of section 3, had in mind the assessment and taxation of mining property only, as is pointed out in the Musselshell County Case, supra, in the language following: CThe purpose of section 3 was to provide a special method for the assessment and taxation of mining property. The making of the special provision on the subject shows conclusively that the convention was of the opinion that this species of property, though falling generally wdthin the definition of ‘property’ as made in section 17, could not be justly dealt with by the method provided for other real property, and therefore must be valued and taxed by a method which would accomplish this desired result. The theory adopted was that it should be regarded as of a mixed quality— real as to the surface value, and personal as to the subsurface contents of it. This is apparent from a reading of it. * ’ * * In order that no value should escape from taxation, the surface value was arbitrarily fixed at the price paid for it to the government.”
In arriving at an intelligent interpretation of any of the provisions of our Constitution, we must keep before us the fact that it is a restriction upon the power of the several departments of the state government. (State v. Camp Sing, 18 Mont. 128, 56 Am. St. Rep. 551, 32 L. R, A. 635, 44 Pac. 516; McClintock v. City of Great Falls, 53 Mont. 221, 163 Pac. 99; Northern Pac. Ry. Co. v. Mjelde, 48 Mont. 287, 137 Pac. 386; State ex rel. Hillis v. Sullivan, 48 Mont. 320, 137 Pac. 392; Hilger v. Moore, supra; Cruse v. Fischl, 55 Mont. 258, 175 Pac. 878,) Also, we must hear in mind that Article XII of our Constitution deals with the raising of revenue and the valuation and taxation of property, and that “the division of our Constitution into Chapters and sections is a mere matter of convenience for the purpose of reference, and is not of significance in applying the rules of construction and interpretation”; and also that “every provision dealing with the same subject matter must be considered in determining the meaning of any expression whose meaning is in doubt.” (Hilger v. Moore, supra; Cooley’s Constitutional Limitations, 7th ed., p. 91.)
An arbitrary rule having been fixed by our subdivision (a) of section 3 of Article XII of the Constitution upon the character of property described in the petition, is the tax to be computed upon that value, or is the tax to be computed upon some part of it? The language used is that this property “shall be taxed at the price paid the United States therefor.
The function of the courts is to interpret the law; that is, not to add to or take from the law, but to give effect to the intent expressed in the law itself. “The object of construction as applied to a written Constitution is to give effect to the intent of the people in adopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced. But this intent is to be found in the instrument itself. It is to be presumed that language has been employed with sufficient precision to convey it, and unless examination demonstrates that the presumption does not hold good in the particular case, nothing will remain except to enforce it. ‘Where a law is plain, and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. ’ Possible or even probable meanings, wdien one is plainly declared in the instrument itself, the courts are not at liberty to search for elsewhere.” “Whether we are considering an agreement between parties, a statute, or a Constitution, with a view to its interpretation, the thing which we are to seek is' the thought which it expresses. To ascertain this, the first resort, in all cases, is to the natural signification of the words employed, in the order of grammatical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then that meaning, apparent on the face of the instrument, is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument, and neither courts nor legislatures have a right to add to or take away from that meaning.” “In interpreting clauses, we must presume that words have been employed in their natural and ordinary meaning.” (Cooley’s Constitutional Limitations, pp. 89, 90, 91, 92; Melzner v. Northern Pac. Ry. Co., 46 Mont. 162, 127 Pac. 146; Johnson v. Butte Superior Copper Co., 41 Mont. 158, 48 L. R. A. (n. s.) 938, 108 Pac. 1057; Smith v. Iron Mt. Tunnel Co., 46 Mont. 13, Ann. Cas. 1914B, 5, 125 Pac. 649; Osterholm v. Boston & Mont. C. & S. Min. Co., 40 Mont. 508, 107 Pac. 499; State ex rel. Rowe v. Kehoe, 49 Mont. 582, 144 Pac. 162.) Speaking of the same matter, Chief Justice Marshall says: The framers of the “Constitution and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.” (Gibbons v. Ogden, 22 U. S. (9 Wheat.) 1, 6 L. Ed. 68 [see, also, Rose’s U. S. Notes].)
This court, in the case of Hilger v. Moore, supra, in speaking of the use of the words “taxation” and “assessment,” in our Constitution, said: “When our Constitution was prepared and ratified, the term ‘assessment’ and the term ‘taxation’ each had a definite, well-understood meaning. Assessment was the process by which persons subject to taxation were listed, their property described, and its value ascertained and stated. Taxation consisted in determining the rate of the levy and imposing it. Speaking generally, the assessment was made by the assessor, subject to review by the board of equalization. The rate of taxation was fixed and imposed by the legislature for state purposes, by the county commissioners for county purposes, by the city council for city purposes, etc. This has been the history of our revenue legislation from the time Montana was organized as a territory, and the framers of our Constitution understood these words and used them accordingly.”
“A Constitution is not to be made to mean one thing .at one time, and another at some subsequent time, when the circumstances may have so changed as perhaps to make a different rule in the ease seem desirable. A principal share of the benefit expected from written Constitutions would be lost, if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. It is with special reference to the varying moods of public opinion, and with a view to putting the fundamentals of government beyond their control, that these instruments are framed; and there can be no such steady and imperceptible change in their rules as inheres in the principles of the common law. * # * What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the Constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it.” (Cooley’s Constitutional Limitations, 7th ed., pp. 88, 89; 6 R. C. L. 52; 12 C. J. 700; State ex rel. Jackson v. Kennie, 24 Mont. 45, 60 Pac. 589.)
The provisions of section 4 of Article XIII of the Constitution of Utah are similar to those of our section 3, Article XII. A uniform assessment of $50 per acre was levied against all of the coal lands purchased from the United States, as well as against all of the coal lands purchased from the state. Action in mandanvus was begun to compel a proper assessment to be made. The action was dismissed, because not brought within the time provided by law. The court, however, in commenting upon the admitted facts therein, among other things, said: “The Constitution of this state (Article XIII, sec. 4) provides that coal lands purchased from the United States shall be assessed [“taxed”] is the word used in section 4, Article XIII, of the Utah Constitution] at the price paid the government therefor. Sections 2 and 3 of the same Article provide for the assessment of other property, which includes coal lands not purchased from the government, at its actual value. These provisions are reiterated and affirmed in Compiled Laws of Utah of 1907, secs. 2504 and 2506. The language both of the Constitution and the statute is plain and unequivocal, and capable of being understood by any layman in the state.” (Ririe v. Randolph, 51 Utah, 274, 169 Pac. 941.)
It is suggested by counsel- for relator that the words “as provided by law,” used in our subdivision (b) of section 3 of the Constitution relate bach to and qualify the words “shall be taxed at the price paid the United States therefor,” used in our subdivision (a) of section 3. But the ordinary rule of construction is that the exception is confined to the last antecedent. (12 C. J. 706; Commonwealth v. Kelley, 177 Mass. 221, 58 N. E. 691; State v. Centennial Brewing Co., 55 Mont. 500, 179 Pac. 296; R. M. Cobban Realty Co. v. Chicago, M. & St. P. Ry. Co., 58 Mont. 188, 190 Pac. 988.) The last antecedent, in this instance, is found in our subdivision (b) of section 3, and therefore does not modify or qualify the phrase above set forth and found in subdivision (a).
Counsel for relator insists that to tax the property in ques- tion at the price paid the United States therefor is violative of the provisions of the Constitution, providing for the uniform assessment and taxation of property.
The requirement of uniformity is a limitation upon the powers of the legislature. Section 1 of Article XII of the Constitution, as above noted, imposes upon the legislature the duty to “prescribe such ‘regulations as shall secure a just valuation for taxation of all property, except that specially provided for in this Article.” Section 16 of the same Article provides: “All property shall be assessed in the manner prescribed by law except as is ptherwise provided in this Constitution.” But, where the Constitution itself fixes the value at which property shall be taxed, the uniformity rule does not apply. (Hilger v. Moore, supra; Northern Pac. Ry. Co. v. Musselshell County, supra.)
It is urged that, if this property is taxed at the full price paid the United States therefor, some inequalities will result. With this contention we cannot agree; but, even if such be the fact, the responsibility must rest with the framers of our Constitution and with those who ratified it. (Northern Pac. Ry. Co. v. Musselshell County, supra; 12 C. J. 702, 703; Cooley’s Constitutional Limitations, supra.) The language used, “shall be taxed at the price paid the United States therefor,” is plain, clear, unambiguous. For this court to say that the property in question shall be taxed upon a valuation other than the price paid to the government therefor is to read into our Constitution a provision which is not there.
It follows that the petition0 does not state facts sufficient to warrant the issuance of the writ, and therefore the motion to quash is granted and the petition dismissed.
Dismissed.
Mr. Chief Justice Callaway, Associate Justices Rankin and Stark and Honorable H. H. Ewing, District Judge, sitting in place of Mr. Justice Galen, disqualified, concur.
|
[
30,
20,
53,
-1,
15,
18,
21,
31,
-37,
30,
6,
-66,
1,
34,
22,
-37,
13,
11,
43,
29,
-13,
-20,
-18,
20,
20,
-7,
-13,
0,
-51,
0,
-23,
-9,
-41,
-24,
-1,
6,
-79,
11,
-9,
22,
21,
13,
-24,
14,
10,
4,
25,
-26,
7,
51,
7,
-26,
12,
26,
0,
-10,
-45,
-35,
-20,
-17,
5,
-23,
6,
63,
57,
9,
-47,
17,
32,
-36,
27,
-9,
4,
-64,
28,
-11,
-26,
-43,
-31,
65,
-40,
-12,
-21,
1,
-37,
-16,
-50,
-10,
83,
-4,
-8,
-37,
-1,
43,
23,
-2,
24,
-21,
-6,
28,
-25,
-13,
-1,
25,
-43,
-3,
-40,
23,
85,
5,
-3,
6,
-55,
-52,
-53,
27,
-23,
-39,
36,
-32,
-32,
-61,
-15,
45,
-34,
0,
-23,
26,
14,
4,
29,
17,
31,
-13,
-3,
-18,
-4,
-31,
-39,
30,
17,
-29,
27,
41,
-28,
-14,
37,
-21,
-41,
11,
17,
28,
62,
64,
33,
-56,
57,
5,
17,
-22,
46,
-17,
-40,
15,
-24,
38,
-7,
-36,
-93,
-39,
35,
7,
25,
38,
9,
0,
-17,
3,
-7,
4,
-24,
-36,
-9,
-47,
59,
0,
19,
26,
-4,
-13,
26,
-54,
54,
-17,
-8,
1,
-39,
14,
-76,
26,
23,
19,
14,
47,
-2,
-4,
20,
6,
-10,
-12,
-8,
-33,
-34,
-10,
-12,
39,
-25,
34,
17,
-8,
32,
10,
-1,
18,
-8,
-17,
22,
30,
32,
0,
-47,
-19,
2,
-21,
-9,
25,
40,
4,
-19,
-9,
-29,
-18,
-2,
-15,
15,
6,
-9,
-43,
-19,
-1,
-21,
-41,
2,
42,
-10,
-4,
31,
21,
16,
-57,
2,
-16,
41,
-6,
-5,
-38,
-15,
-34,
47,
48,
16,
26,
22,
17,
-40,
-13,
27,
-54,
7,
-25,
2,
-67,
0,
5,
-17,
37,
21,
-2,
-56,
-15,
-4,
-39,
20,
-16,
2,
-11,
20,
-8,
75,
6,
1,
42,
-8,
-39,
-21,
13,
-12,
35,
-4,
-3,
0,
-37,
-23,
16,
-2,
-7,
-19,
-10,
25,
-11,
48,
29,
31,
16,
-28,
30,
33,
2,
-27,
4,
3,
-9,
-5,
54,
25,
0,
-3,
-14,
-21,
0,
9,
4,
11,
66,
-10,
35,
-25,
34,
-39,
28,
6,
-24,
-1,
96,
-53,
-10,
8,
6,
-2,
-9,
36,
41,
0,
-2,
1,
-35,
-42,
-62,
2,
-19,
2,
0,
80,
9,
59,
-35,
-7,
7,
-20,
7,
-24,
-38,
7,
4,
45,
41,
55,
-32,
-6,
-82,
0,
3,
-29,
70,
1,
-15,
42,
-34,
-34,
51,
-4,
36,
2,
25,
-28,
-1,
41,
13,
-29,
11,
46,
-15,
-25,
-52,
31,
1,
-11,
38,
-7,
1,
24,
-25,
10,
-61,
0,
-48,
10,
-9,
-11,
17,
-48,
0,
-12,
5,
21,
-36,
8,
28,
-16,
-7,
-8,
30,
5,
5,
-5,
-62,
-12,
41,
46,
-10,
-29,
4,
3,
-48,
-36,
37,
38,
-20,
16,
-67,
-21,
72,
11,
-28,
17,
-11,
29,
10,
11,
43,
-1,
53,
6,
-5,
-23,
30,
-4,
-65,
16,
3,
0,
-19,
-78,
-16,
42,
1,
-14,
-23,
-14,
36,
-2,
-2,
16,
-29,
-7,
-22,
-25,
-13,
53,
26,
-9,
22,
19,
23,
0,
-3,
-28,
11,
-20,
55,
30,
-46,
25,
1,
8,
60,
25,
-40,
-11,
15,
0,
42,
11,
-11,
-17,
-39,
-7,
20,
34,
-9,
-41,
-44,
-25,
-33,
-97,
28,
23,
54,
-13,
-19,
33,
-20,
40,
-10,
-46,
30,
-46,
-7,
-6,
-22,
26,
-1,
-32,
37,
-54,
-11,
-21,
-18,
-47,
16,
47,
6,
-28,
-25,
-4,
-34,
-44,
-42,
-10,
45,
-13,
-2,
1,
-77,
65,
-7,
-31,
-37,
20,
56,
27,
-25,
27,
-31,
14,
-19,
52,
13,
-15,
10,
-34,
-56,
-42,
27,
-31,
-26,
-11,
22,
1,
-12,
-45,
-6,
18,
-12,
5,
32,
36,
2,
29,
1,
-26,
11,
10,
81,
36,
88,
11,
-42,
62,
-13,
-18,
-28,
21,
-14,
-8,
-60,
-45,
15,
-38,
29,
-27,
-30,
-7,
-5,
5,
-38,
11,
-20,
-21,
-32,
13,
0,
-31,
-32,
-14,
-30,
32,
21,
28,
-12,
42,
3,
38,
-17,
22,
-21,
40,
-44,
17,
24,
73,
-14,
-1,
34,
3,
-19,
30,
14,
28,
73,
2,
-32,
-33,
-61,
-23,
-14,
42,
2,
39,
33,
27,
46,
-4,
54,
34,
29,
10,
43,
-60,
21,
2,
1,
8,
45,
-60,
12,
-23,
-30,
-31,
29,
27,
2,
6,
-6,
-53,
38,
28,
-42,
8,
-30,
3,
-32,
27,
25,
-31,
-15,
17,
-12,
-41,
-34,
18,
-29,
-28,
-5,
56,
0,
16,
16,
-67,
17,
14,
44,
-20,
-30,
9,
-13,
1,
43,
17,
-50,
-18,
-30,
7,
27,
6,
11,
80,
16,
-77,
-11,
-12,
2,
0,
12,
4,
-7,
-47,
-23,
-3,
-2,
49,
-36,
-42,
58,
-30,
-9,
-42,
-26,
-24,
-4,
19,
30,
-86,
-52,
19,
-14,
-15,
23,
38,
34,
-2,
-33,
-21,
-59,
-54,
-34,
-8,
8,
6,
-13,
-15,
-3,
56,
-53,
-3,
11,
0,
20,
9,
50,
-16,
8,
-1,
36,
28,
66,
-41,
-20,
-54,
63,
-21,
-43,
15,
-51,
12,
-50,
13,
67,
-34,
-19,
-13,
19,
32,
36,
19,
-15,
7,
14,
1,
63,
38,
-7,
-35,
-5,
0,
-59,
1,
-1,
-7,
-25,
28,
-54,
-6,
-43,
0,
-14,
-14,
10,
-40,
48,
-15,
73,
-3,
72,
-24,
15,
21,
-15,
-5,
50,
46,
12,
-17,
16,
12,
-7,
13,
24,
-5,
62,
31,
0,
-23,
43,
19,
-1,
-10,
12,
55,
0,
-27,
2,
13,
23,
-20,
32,
54,
2,
15,
36,
12,
-15,
0,
40,
2,
-22,
-6,
-49,
-54,
-55,
-25,
24,
20,
44,
18,
24,
-5,
-2,
42,
15,
4,
-21,
-14,
-15,
-56,
-21,
-28,
-18,
40,
46,
25,
11,
-53,
50,
0,
-20,
12,
-15,
39,
33,
-30,
2,
-30,
-31,
-21,
17,
2,
36,
-13,
-40,
7,
-25,
34,
52,
-35,
29,
16,
-20,
5,
5,
-16,
46,
66,
54,
-2,
-14,
-22,
19,
24,
-14,
-67,
10,
12,
26,
-58,
-22,
-5,
1,
42,
-28,
-25,
2,
-36,
34,
42,
56,
28,
12,
-6,
11,
10,
1,
-35,
-6,
0,
-3,
-21,
-17,
9,
-20,
39,
-5,
-21,
-27,
48,
34,
-1,
1,
0,
-12,
-24,
-52,
3,
-58,
27,
-22,
4,
-36,
55,
-17,
-46,
-8,
-1,
-30,
-5,
9,
-11,
0,
-7,
-38,
-14,
-20,
-6,
-16
] |
MR. JUSTICE RANKIN
delivered the opinion of the court.
This is an action in conversion. Plaintiff alleges in substance that on the twenty-fourth day of March, 1923, she was the owner and in possession of a team of horses of the value of $300, which on that day was wrongfully seized and converted by the defendant, a constable. The plaintiff asked damages for $300, without interest, and, in addition, special damages for the use of the horses. The answer sets forth that John Klus, the husband of plaintiff, is the owner of the horses; that Frank M. Wallace recovered a judgment against him, and that the team was sold by virtue of an execution based upon it. There is a denial that the property was of any greater value than $200. The case was tried before the court sitting with a jury and a verdict returned for $300, for which judgment was entered. A new trial was denied, and defendant appealed from the judgment.
The defendant challenges the sufficiency of the complaint because it fails to allege that plaintiff was the owner and entitled to the possession of the team of horses at the time of the conversion. It is alleged that plaintiff was the owner on the twenty-fourth day of March, 1923, the day the levy was made. This court has decided that the law ordinarily takes no notice of fractions of a day and that such an allegation is equivalent to an allegation of ownership at the time of the conversion. (O’Brien v. Quinn, 35 Mont. 441, 90 Pac. 166.)
Fault is also found with the complaint because it fails to allege the value of the property at the time of the conversion. It is alleged “that the reasonable value of said property so taken and converted by said defendant is the sum of $300,” and that plaintiff was damaged to that extent. This court has decided that under section 8689 of the Revised Codes of 1921 a plaintiff in an action for conversion may, by waiving interest, elect any date between the date of the conversion and the date of the trial on which to lay his damages. (State ex rel. Broadwater Farms Co. v. Broadwater Elevator Co., 61 Mont. 215, 201 Pac. 687.) By her complaint in the case before us the plaintiff sought the highest market value between the date of conversion and trial; but after the jury had been sworn her attorney waived the special damages pleaded and without objection elected to accept the value of the horses at the time of their conversion, without interest. In the case of Williams v. Gray, 62 Mont. 1, 203 Pac. 524, this court decided that an allegation of damages is a sufficient allegation of the value of property alleged to have been converted, and said, “When the pleader states the amount of his damages, he has by the presumptions stated in the statute given his estimate of the value at the date of conversion,” and, further, that “a complaint containing such allegations is sufficient as to its statement of value.” Under the foregoing rules, the allega tions of the complaint as to the value of the property were sufficient.
Defendant contends that the damages are excessive and appear to have been given under the influence of passion and prejudice. The rule applicable is forcibly stated in the case of White v. Chicago, M. & St. P. Ry. Co., 49 Mont. 419, 143 Pac. 561, wherein the court said: “So long as we have a system which confides to juries the duty to determine the issues involved in this character of cases and to fix the amount of compensation to be paid, unless the result of their deliberation is such as to shock the conscience and understanding, it must be accepted as conclusive.” The record before us contains competent evidence that the value of the horses on the date of their conversion was $305, and while the evidence of value is conflicting there is nothing in the record to disclose that the jury was influenced by passion and prejudice in arriving at its verdict.
The principal ground upon which defendant asks for a reversal is that the evidence is insufficient to sustain the verdict. His counsel insists that plaintiff’s testimony is so unconvincing, contradictory and inherently weak that a new trial should be ordered. With this we cannot agree. The evidence is admittedly conflicting, and under such circumstances this court must be convinced that there is no substantial evidence to support the verdict before it will interfere with it. The trial court having observed the witnesses on the stand, their demeanor, their candor or lack of it, was in a much more advantageous position to judge of their credibility and whether there was sufficient evidence to sustain the verdict, than are the members of this court. It is the rule, universally recog*nized and applied, that when the evidence is conflicting the sound legal discretion of the trial court in granting or refusing to grant a new trial will not be disturbed except for its manifest abuse. (Fournier v. Coudert, 34 Mont. 484, 87 Pac. 455.) “So long as the jury is a part of our judicial system, the verdict in an action at law ought not to be set aside, ex cept for the most cogent reasons; otherwise the constitutional guaranty of a right to trial by jury becomes a mere idle phrase — high sounding, but without any potency whatever.” (Sutton v. Lowry, 39 Mont. 462, 473, 104 Pac. 545.)
We think -the evidence sufficient to present an issue of fact for the jury, and, it having found for plaintiff and the trial court having denied a new trial after a review of the proceedings, we would not be justified in interfering with the judgment.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Holloway, Galen and Stark concur.
|
[
-12,
25,
48,
-6,
2,
-31,
60,
0,
25,
-8,
17,
44,
5,
64,
24,
19,
15,
-24,
16,
19,
-12,
-15,
-36,
-18,
0,
-18,
40,
-67,
-19,
2,
2,
7,
-4,
28,
-36,
13,
-70,
-9,
-16,
-10,
11,
39,
-17,
-22,
18,
88,
27,
-67,
15,
-25,
-5,
-81,
-25,
15,
9,
-28,
-13,
-16,
-22,
14,
17,
-16,
16,
39,
24,
6,
-39,
-42,
-40,
-37,
12,
-22,
-1,
-41,
-53,
-29,
-11,
-1,
-31,
10,
-26,
-24,
2,
0,
-52,
41,
25,
-28,
12,
-25,
-28,
8,
15,
8,
-13,
11,
41,
-5,
-79,
-31,
-21,
-26,
-22,
33,
33,
27,
-21,
19,
-1,
21,
-10,
-15,
26,
-8,
27,
0,
-44,
-42,
-24,
-12,
6,
-3,
5,
-1,
-1,
3,
-72,
45,
24,
46,
54,
0,
15,
20,
-12,
-45,
-3,
0,
-2,
-17,
1,
-10,
-57,
-32,
30,
51,
4,
-13,
-7,
-24,
-10,
-20,
56,
27,
25,
-63,
-35,
57,
-13,
-5,
41,
3,
-44,
-15,
36,
16,
-44,
-15,
-26,
-18,
24,
13,
-23,
-20,
16,
-11,
-38,
-21,
-39,
55,
-14,
10,
34,
-21,
-26,
-67,
53,
-1,
4,
39,
66,
-17,
-26,
7,
-73,
-37,
5,
-40,
37,
1,
-3,
21,
-28,
19,
-8,
-14,
-7,
-3,
28,
13,
-41,
-54,
-24,
6,
-20,
44,
49,
-5,
-49,
-16,
56,
-5,
-1,
24,
37,
-25,
18,
18,
43,
12,
-61,
59,
33,
-15,
-37,
-45,
14,
22,
-40,
24,
17,
8,
24,
-49,
-14,
-44,
-9,
-27,
27,
41,
9,
-42,
14,
-28,
43,
63,
27,
23,
27,
-29,
10,
6,
-5,
30,
2,
-35,
-2,
-27,
-1,
6,
10,
-25,
3,
21,
0,
-50,
25,
20,
20,
12,
12,
6,
14,
55,
6,
12,
28,
5,
-11,
17,
23,
-5,
49,
-7,
-27,
29,
-1,
-1,
7,
15,
-22,
-18,
64,
24,
12,
-22,
-12,
-35,
-35,
-29,
-4,
-23,
39,
-6,
19,
29,
-15,
21,
2,
-38,
5,
-6,
-6,
41,
40,
-23,
41,
-63,
10,
15,
35,
7,
-7,
13,
-7,
-20,
25,
27,
3,
12,
-4,
41,
29,
-31,
0,
42,
-24,
-58,
14,
4,
-29,
-45,
-33,
6,
4,
-40,
42,
3,
1,
2,
66,
32,
14,
1,
5,
11,
-58,
-41,
-12,
19,
24,
52,
22,
17,
24,
-9,
8,
12,
-30,
-16,
49,
-46,
-22,
-22,
60,
0,
-11,
-69,
-15,
30,
-2,
64,
24,
27,
6,
1,
-3,
-33,
-1,
-24,
-12,
1,
-6,
-36,
-58,
-8,
8,
40,
-51,
12,
12,
-42,
54,
-20,
73,
36,
-15,
30,
7,
-6,
60,
-25,
50,
-14,
13,
3,
29,
-29,
-52,
21,
-2,
8,
-13,
31,
9,
-12,
42,
45,
-23,
19,
53,
66,
-51,
85,
-6,
6,
-22,
-8,
68,
39,
50,
-38,
26,
-14,
1,
3,
38,
-46,
-3,
-15,
-12,
-6,
12,
-23,
24,
-20,
27,
-40,
80,
21,
18,
26,
51,
11,
20,
5,
-46,
3,
-29,
-18,
-61,
-6,
-33,
-6,
-2,
16,
-47,
-17,
25,
46,
40,
12,
-5,
12,
-14,
8,
-10,
3,
24,
-23,
-72,
-25,
66,
-11,
-14,
19,
-3,
-46,
41,
31,
32,
-23,
2,
13,
-4,
-54,
-8,
20,
47,
71,
23,
-46,
-7,
-56,
16,
9,
23,
-5,
39,
-97,
-36,
-44,
-31,
-41,
-17,
-64,
32,
30,
-7,
-35,
15,
6,
-20,
-32,
-41,
26,
3,
-65,
17,
38,
28,
-41,
15,
26,
-16,
-28,
-58,
-64,
-49,
-3,
34,
46,
-29,
-16,
19,
-40,
7,
-21,
-41,
-3,
18,
-68,
-10,
10,
-2,
-59,
20,
-31,
24,
-12,
-40,
28,
-37,
-7,
42,
29,
-24,
32,
-38,
17,
-28,
1,
1,
30,
30,
5,
-49,
-16,
-51,
36,
19,
4,
-43,
21,
-31,
-28,
-11,
44,
-3,
58,
11,
61,
-14,
8,
30,
26,
-19,
2,
23,
10,
-30,
13,
-71,
14,
-14,
-41,
-43,
0,
19,
5,
28,
-3,
-9,
37,
-48,
39,
12,
23,
-38,
-35,
-38,
5,
0,
-22,
-19,
-21,
-22,
-26,
14,
-21,
-18,
1,
-15,
-39,
20,
24,
32,
-27,
-24,
-52,
54,
10,
-4,
36,
34,
-11,
12,
6,
-32,
-5,
35,
-6,
2,
-14,
50,
-29,
10,
36,
32,
22,
28,
-16,
-24,
12,
-12,
-12,
-35,
39,
7,
21,
-28,
-23,
5,
55,
-32,
70,
-31,
-17,
1,
-10,
16,
-40,
24,
12,
1,
25,
-42,
-13,
-41,
4,
3,
-59,
-50,
0,
7,
-19,
45,
-27,
-25,
-62,
6,
9,
52,
-58,
-5,
31,
47,
66,
46,
15,
23,
78,
-8,
23,
-23,
3,
-78,
20,
-38,
-18,
-33,
9,
4,
-11,
17,
-47,
14,
-1,
-6,
-29,
43,
12,
30,
22,
-20,
-32,
-58,
-2,
-12,
-64,
19,
20,
-79,
64,
-23,
54,
-13,
-53,
0,
-32,
-5,
22,
-25,
-9,
50,
14,
35,
18,
21,
-6,
-61,
-9,
-57,
-28,
-19,
28,
22,
8,
32,
9,
9,
0,
12,
-30,
-77,
-39,
-2,
43,
-3,
-48,
-10,
-3,
11,
-15,
-8,
-21,
13,
-24,
-10,
6,
-45,
-16,
-4,
-49,
18,
-10,
-24,
6,
-22,
0,
-48,
5,
-14,
86,
30,
-26,
13,
35,
-22,
42,
-2,
-75,
-39,
28,
6,
-5,
48,
-6,
-23,
-34,
15,
15,
-1,
39,
34,
37,
-7,
50,
-80,
18,
-2,
24,
0,
8,
-63,
-16,
20,
-5,
45,
1,
7,
-3,
-14,
-17,
23,
4,
23,
16,
-49,
68,
33,
25,
-33,
11,
32,
4,
1,
23,
65,
38,
-22,
-4,
-70,
4,
-24,
37,
58,
-45,
-3,
-4,
-19,
-11,
28,
6,
43,
-17,
-27,
18,
61,
-37,
-29,
21,
2,
19,
35,
-33,
1,
-33,
-14,
48,
47,
-17,
14,
-50,
-36,
24,
-7,
-54,
18,
-12,
76,
-17,
-74,
-5,
0,
42,
-11,
57,
13,
45,
-60,
20,
-53,
-17,
17,
-6,
0,
3,
-16,
34,
-8,
29,
5,
39,
1,
-34,
-46,
-5,
22,
11,
38,
49,
52,
21,
18,
-8,
-44,
-7,
21,
5,
-15,
6,
-3,
6,
15,
-31,
21,
-35,
60,
13,
0,
-28,
-5,
-40,
21,
-28,
47,
9,
1,
-8,
50,
13,
-53,
61,
39,
-78,
-12,
31,
9,
-24,
23,
-20,
33,
-25,
6,
-17,
4,
15,
-40,
-68,
-75,
-27,
-28,
-19,
13,
-36,
43,
16,
-9,
-40,
-14,
8,
-17,
18,
-42,
33,
29,
46,
-18,
-19,
41,
56,
8,
-7
] |
■MR. CHIEF JUSTICE' CALLAWAY
delivered the opinion of the court.
Mrs. Sisson, the defendant in this action, desiring to obtain from her husband a divorce and alimony, as well as to gain the custody of a minor child of the marriage, to that end in the month of April, 1921, employed John A. Coleman, an attorney at law then practicing his profession at Lewistown, Montana. Coleman accepted the employment and about May 7, 1921, began the action. According to Coleman’s testimony Mrs. Sisson agreed to pay him whatever fee he saw fit to charge, regardless of what the court might allow. Pursuant to this agreement, which was oral, exclusive of the fee allowed by the court, he charged Mrs. Sisson $500 for instituting the action and trial of the same, this fee to be paid when judgment was entered, or sooner if she could afford it. The ease was contested by Dan H. Sisson, the husband. During the progress of the action there were several ex parte hearings. Finally there was a trial which consumed six days.
Shortly after the action was begun, at the suggestion of Mrs. Sisson, Coleman associated with Mm as assistant counsel the firm of Cole, Baker & Ulsaker, but upon the express understanding that Mrs. Sisson would pay whatever fee that firm should charge, regardless of Coleman’s charge. Cole, Baker & Ulsaker assisted throughout the case from the month of July until the final judgment was entered, which was on January 7, 1922. On that date the court entered final judgment awarding Mrs. Sisson a divorce, custody of the child, $5,000 alimony, an attorney’s fee of $250, and costs of suit. On November 5, 1921, and after at least two hearings had been had, but before the main trial, Mr. Coleman and Mrs. Sisson signed an agreement which reads as follows:
“This agreement, made and entered into by and between Annie Sisson of Hobson, Montana,, the party of the first part, and John A. Coleman of Lewistown, Montana, the party of the second part, witnesseth:
“That, whereas, the said party of the first part has employed the second party to institute and prosecute to final judgment, an action of divorce wherein the first party is plaintiff, and Dan H. Sisson, her husband, is the defendant, which said action is now pending in the district court of Fergus county, Montana, and, whereas, in consideration of the large -amount of legal work and time expended by the said second party and the'likelihood of extra work and time being required of the second party after judgment in settling the property rights, and in further consideration of the second party using his best efforts to obtain as large an allowance to the first party on judgment in said case:
“It is hereby agreed and promised by the said first party to the said second party that she will pay the said second party as attorney’s fee in addition to which may be allowed by the court the sum of $1,000 if the said second party is successful in obtaining an allowance and judgment for $5,000 or up to $7,500 and a further amount in a sum equal to 10 per cent, of any and all sums over and above $7,500. In the event that the allowance made to the said first party shall be in the nature of land or a portion of the land owned by Dan H. Sisson, or part of said allowance shall be money and part land, then the land so allowed or set apart in lieu of a cash allowance shall be deemed to be of a reasonable value of $40 per acre, excluding pro rata, the mortgage if assumed in part, and such valuation shall be used as a basis for computing all sums to be paid as herein agreed upon.
“The said second party accepts the promises and conditions herein, and agrees to use his best legal and personal effort to obtain as favorable a judgment as he possibly can for the said first party.
“Annie Sisson.
“John A. Coleman.
“Witness to signatures:
“J. C. Huntoon.”
Some time after the entry of judgment Coleman assigned to his wife, Anna Coleman, plaintiff here, his claims against the defendant: One for $500 which he charged for his services-in the action based upon the alleged oral agreement at the beginning of the action, the other for $1,000' based upon the written contract. A little later Mrs. Coleman assigned her interest in “those certain contracts and claims against Annie Sisson” to J. C. Maguire, with the understanding that this action should be maintained in the name of Anna Coleman as plaintiff.
In her complaint plaintiff attempts to allege two causes of action which for convenience simply we shall refer to as counts. The first claims $500 for general services rendered by Coleman in the case of Sisson v. Sisson; the second is based upon the written contract. While upon the trial the plaintiff abandoned the first count, the second count, upon which she relies, refers to the first. The second paragraph of the first count reads: “That during the month of April, 1921, the said John A. Coleman was employed by the defendant in his professional capacity as an attorney at law to institute a suit in the district court of Fergus county, Montana, against one Dan H. Sisson, for a divorce, custody of child and alimony, and the said John A. Coleman thereupon accepted said employment, and immediately thereafter filed a complaint in the district court of Fergus county, Montana, wherein the said Annie Sisson was plaintiff and Dan H. Sisson was defendant.”
The first paragraph of the second count reads: “That on the 5th day of November, 1921, and before the judgment was obtained in the said case of Annie Sisson v. Dan H. Sisson, mentioned in plaintiff’s first cause of action, the defendant promised and agreed in writing to pay the said John A. Coleman an additonal attorney’s fee of $1,000 as a special fee, if the said John A. -Coleman was successful in obtaining an allowance and judgment in favor of the said Annie Sisson of $5,000 or over, which said written contract was duly executed by tbe defendant and tbe said John A. Coleman, and duly witnessed. ’ ’
The second paragraph alleges the obtaining and entry of the judgment above mentioned; that no part of the $1,000 special attorney fee has been paid; then follows an averment respecting the assignment of the claim by John A. Coleman to Anna Coleman, the plaintiff.
In view of the conclusions reached it is not important to discuss the answer- of defendant or the reply of the plaintiff. The plaintiff’s proof consisted of depositions alone, and these give no information as to the circumstances which led up to the execution of the written contract; nor is any information given explanatory of the conditions surrounding its making. It was written, so Mr. Coleman testified, in his office in Lewis-town, in the presence of Mrs. Sisson, another lady and himself, and signed in the presence of J. C. Huntoon, in the latter’s office. There is no indication that Mr. Huntoon knew its contents; it seems he merely witnessed the signatures.
Mrs. Sisson testified that she had paid Mr. Coleman $25 to start with, and apparently she did not pay him anything further; nothing was said to her prior to November 5, 1921, about any special or other attorney fees. At the time this agreement was drawn they were in conference- about an hour. Apparently the only reason Mr. Coleman assigned for desiring the contract was that he feared without it she might “back out.” Julius Sisson, her fourteen-year old son, who said he was present while the contract was being made up, heard Mr. Coleman say to Mrs. Sisson that he wanted her to sign the contract for fear she would back out of the agreement; that was all that was said about it.
The evidence being concluded, the matter was submitted to the court for consideration, after which judgment was rendered for defendant. A motion for new trial was made and denied. The appeal is from the judgment.
1. At the beginning of the trial counsel for defendant objected to the introduction of any evidence upon the ground that the second count does not state facts sufficient to constitute a cause of action, and this objection was urged throughout the trial. The reasons underlying the objection will be developed in the course of this opinion.
“The compensation of an attorney and counselor for his services is governed by agreement, express or implied, which is not restrained by law.” Such is the first sentence of section 8993, Revised Codes of 1921. Practically the same language except the words “which is not restrained by law” is employed in the first sentence of section 9786. The effect of these provisions is to abolish the common-law doctrine of champerty and maintenance in this state relating to contracts for compensation between attorney and client, except in so far as it is retained in modified form in sections 8980 and 8981, Revised Codes of 1921 (formerly 6397 and 6398, Revised Codes 1907), as Mr. Chief Justice Brantly observed in Haley v. Hollenback, 53 Mont. 494, 165 Pac. 459. The purpose of sections 8993 and 9786 above adverted to was to place the lawyer upon the same footing as other persons, free to make his engagements with his clients as' they should agree; or, in other words, to give to them the same freedom to contract as is enjoyed by others of the business world. (Mason v. Ring, 3 Abb. Dec. (N. Y.) 210; Fischer-Hansen v. Brooklyn Heights R. Co., 173 N. Y. 492, 66 N. E. 395; Thomas v. Turner’s Admr., 87 Va. 1, 12 S. E. 149, 668; Morton v. Forsee, 249 Mo. 409, Ann. Cas. 1914D, 197, 155 S. W. 765.)
Counsel for plaintiff lays great stress upon the words “which is not restrained by law.” But that clause has no special application to the fact condition under consideration here. As we took the first sentence of section 8993, supra, verbatim from New York, the decisions of that state upon this subject are especially instructive.
In Ransom v. Ransom, 70 Misc. Rep. 30, 127 N. Y. Supp. 1027, a ease in which an attorney had brought suit against his client upon a contract relating to a contingent fee, the court said the words “which is not restrained by law” were part of a statute drawn to replace a former provision of the Code; “and the object of the codifiers was to give the attorney the same right of contract ‘as in respect to every other professional person.’ (Report of Code Commissioners, 1848, pp. 204, 205.) The jurisdiction of equity over persons in confidential relations stood untouched.” (See Matter of Howell, 215 N. Y. 466, Ann. Cas. 1917A, 527, 109 N. E. 572; Morton v. Forsee, 249 Mo. 409, Ann. Cas. 1914D, 197, 155 S. W. 765, in which a similar statute of Missouri is construed.)
From the authorities it seems clear the law permits attorney and client, before the fiduciary relation begins, to enter into any contract respecting the attorney’s compensation, or otherwise, which “is not prohibited by law and does not contemplate the doing of- any illegal act.” (Haley v. Hollenback, supra.) But when a contract for compensation is made after the fiduciary relation has commenced, or while it continues, there is cast upon the attorney the burden of showing, not only that no undue influence was used nor advantage taken, but that he gave the client such full information and advice with respect to the matter as to enable the client to act understandingly and freely, as one dealing at arm’s-length with another. In other words, the attorney must show, not only that the contract was fair and reasonable, and entered into freely by the client, but that the latter fully knew and understood its provisions. As to the lawyer ■ such a contract must bear the imprint of the utmost good faith. (Thomas v. Turner’s Admr., supra; Keenan v. Scott, 64 W. Va. 137, 61 S. E. 806; Ransom v. Ransom, supra; Matter of Howell, supra; Morton v. Forsee, supra; Dickinson v. Bradford, 59 Ala. 581, 31 Am. Rep. 23; Weeks on Attorneys, 2d ed., sec. 268.)
Plaintiff, Coleman’s assignee, failed to plead or prove a cause of action, and the court ruled correctly in defendant’s favor.
2. The court’s decision is justified upon another ground. This contract, entered into while a divorce action was pending, providing for an attorney’s fee contingent upon the amount of alimony awarded the wife in that action, is. void as against public policy. The public interest demands the maintenance of the marital relation. The law discourages the separation of the spouses — frowns upon divorce— although some may doubt the latter statement in view of the facility with which divorce is too often obtained. “Where differences have arisen which threaten disruption, public welfare and the good of society demand a reconciliation, if practicable or possible.” (Mr. Justice Champlin in Jordan v. Westerman, 62 Mich. 170, 4 Am. St. Rep. 836, 28 N. W. 826.) Ethical lawyers find the adjustment of family differences and the consequent reconciliation of estranged couples not only compatible with their duty to society but profitable from a professional standpoint. Contracts like the one before us, when the attorney is to receive a portion of the money or property obtained from the husband, necessarily tend toward the alienation of husband and wife. The attorney is interested, not in reconciliation, but in alienation. • His cupidity serves to direct his action. “The sanctity of the marriage relation, the welfare of children, the good order of society, the regard for virtue, all of which the law seeks to foster and protect, are ample reasons why such a contract should be held to be contrary to public policy.” (Re Sylvester, 195 Iowa, 1329, 30 A. L. R. 180, 192 N. W. 442; Barngrover v. Pettigrew, 128 Iowa, 533, 111 Am. St. Rep. 206, 2 L. R. A. (n. s.) 260, 104 N. W. 904; Jordan v. Westerman, supra; Newman v. Freitas, 129 Cal. 283, 50 L. R. A. 548, 61 Pac. 907; McConnell v. McConnell, 98 Ark. 193, 33 L. R. A. (n. s.) 1074, 136 S. W. 931; Decker v. Decker, 114 App. Div. 257, 99 N. Y. Supp. 802; Lynde v. Lynde, 64 N. J. Eq. 736, 97 Am. St. Rep. 692, 58 L. R. A. 471, 52 Atl. 694, a learned and instructive decision by Mr. Justice Pitney.)
We call attention to the fact that our statutes provide that while an action for divorce is pending the court in its discretion may require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action; and ample power is given the court to enforce its orders. (Sees. 5769, 5772, Rev. Codes 1921.) And “where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage and to make such suitable allowance to the wife for her support during her life, or for a shorter period, as the court may deem just, having regard to the circumstances of the parties respectively, and the court ma3r, from time to time, modify its orders in these respects.” (Sec. 5771, Rev. Codes 1921.) In view of these statutes an essential reason which permits contingent fee contracts in ordinary cases is wholly wanting in actions like the present. (Newman v. Freitas, supra.)
The judgment is affirmed.
Affirmed.
Associate Justices Rankin, Holloway, Galen and Stark concur.
|
[
8,
11,
12,
4,
31,
-62,
-3,
-13,
59,
-31,
23,
-30,
9,
-11,
-33,
18,
-37,
-44,
51,
-10,
-21,
-18,
-43,
-14,
49,
49,
49,
-48,
-14,
-34,
-4,
42,
-27,
24,
-29,
45,
26,
-25,
-11,
-4,
37,
-34,
-18,
-13,
5,
39,
71,
-70,
-2,
41,
-39,
-38,
16,
7,
43,
-3,
27,
46,
-26,
58,
-17,
-10,
-1,
38,
45,
-22,
84,
18,
24,
-49,
-1,
-39,
17,
-69,
1,
15,
3,
-51,
-44,
-21,
-62,
28,
-28,
-48,
-13,
3,
-84,
9,
38,
43,
-43,
53,
37,
-27,
30,
-16,
-26,
-12,
-31,
64,
34,
-107,
-3,
-31,
20,
39,
-39,
23,
27,
67,
-14,
-15,
30,
-15,
-16,
-7,
40,
-44,
42,
-15,
21,
45,
-20,
-12,
-39,
16,
-50,
3,
85,
-21,
-23,
-8,
-5,
1,
-7,
2,
2,
-73,
-24,
-71,
43,
-51,
8,
37,
28,
11,
-63,
24,
-43,
-34,
-47,
-5,
78,
40,
57,
-47,
-21,
-17,
36,
-31,
13,
-6,
-20,
-15,
-2,
12,
-12,
20,
12,
-39,
-9,
-35,
-36,
-2,
62,
113,
7,
-57,
9,
36,
27,
26,
-17,
-45,
2,
-11,
43,
35,
-33,
-13,
-15,
-90,
29,
-39,
-36,
2,
-34,
-38,
-8,
48,
9,
6,
-2,
48,
-42,
-10,
9,
55,
37,
-6,
-23,
-8,
2,
23,
-61,
20,
-44,
-18,
-41,
-30,
38,
15,
-10,
0,
-46,
-35,
55,
-7,
11,
-60,
-49,
92,
-16,
-11,
19,
-15,
-52,
34,
-72,
38,
-6,
-41,
-26,
-8,
-12,
35,
-64,
26,
-12,
10,
5,
27,
-77,
52,
10,
37,
8,
0,
-12,
-48,
-20,
-30,
16,
-11,
35,
-23,
16,
-60,
54,
9,
46,
9,
30,
-14,
-24,
8,
24,
-31,
-58,
-32,
3,
-24,
-17,
-13,
14,
-42,
8,
28,
-43,
-52,
9,
-42,
-5,
-46,
37,
-1,
1,
-10,
-32,
-17,
-9,
-51,
33,
6,
-47,
-50,
-81,
11,
-8,
-21,
-19,
32,
11,
-71,
39,
-11,
-49,
-35,
-19,
32,
8,
29,
-8,
23,
-37,
-1,
33,
1,
-13,
34,
33,
51,
-13,
-7,
-5,
-40,
-43,
14,
-24,
-24,
-13,
8,
21,
-14,
-4,
9,
28,
17,
-29,
-12,
-3,
-30,
-59,
26,
-36,
32,
17,
-50,
-15,
-42,
7,
-18,
36,
-37,
3,
31,
33,
-41,
50,
-7,
-11,
24,
14,
44,
12,
57,
5,
15,
30,
37,
11,
-5,
-50,
23,
31,
-10,
-22,
-32,
-56,
-41,
-21,
-7,
6,
69,
39,
33,
2,
1,
-24,
3,
9,
-4,
-18,
-9,
-30,
0,
-10,
-23,
-36,
-5,
63,
-32,
-59,
6,
75,
-30,
-40,
0,
-61,
31,
16,
3,
28,
2,
2,
12,
44,
-40,
-10,
-24,
-29,
35,
43,
61,
65,
-23,
-32,
62,
-3,
23,
62,
48,
-6,
30,
13,
14,
0,
14,
32,
69,
54,
68,
69,
59,
-15,
-7,
-15,
28,
-68,
-38,
7,
57,
68,
-12,
12,
-49,
-19,
38,
-32,
72,
0,
-22,
54,
-14,
14,
11,
10,
-66,
-5,
-63,
-51,
-29,
-40,
73,
-1,
8,
-72,
-22,
23,
-57,
21,
-46,
-57,
-5,
0,
-25,
-7,
-20,
-57,
-30,
-26,
-45,
11,
-23,
40,
-18,
19,
-9,
-27,
31,
22,
-33,
58,
-8,
23,
59,
51,
57,
32,
57,
-29,
55,
15,
-14,
34,
-9,
43,
-58,
-16,
36,
-50,
98,
-66,
33,
-77,
-33,
22,
13,
42,
-77,
63,
-35,
44,
26,
-12,
-3,
-6,
16,
-3,
-5,
50,
-12,
-12,
-40,
-22,
-5,
-7,
49,
-34,
-9,
39,
9,
-96,
-26,
11,
18,
-36,
-11,
36,
1,
8,
29,
2,
24,
17,
-90,
-46,
-41,
0,
-21,
14,
-15,
-16,
-39,
-21,
-16,
3,
-7,
-2,
48,
-25,
-37,
9,
30,
30,
-27,
40,
-4,
-50,
10,
17,
-21,
-29,
-6,
-61,
20,
-16,
24,
54,
-40,
-13,
3,
11,
14,
-10,
19,
9,
-102,
35,
-25,
10,
-9,
10,
-29,
20,
-21,
-28,
8,
-38,
8,
16,
6,
-2,
4,
1,
5,
-25,
8,
2,
-2,
35,
49,
-3,
-3,
-43,
-38,
8,
-65,
25,
-1,
44,
35,
20,
-7,
14,
34,
7,
-29,
-13,
3,
-10,
26,
36,
25,
-18,
13,
56,
48,
39,
46,
41,
-53,
9,
5,
32,
2,
24,
36,
56,
24,
-20,
12,
17,
9,
-10,
-2,
90,
24,
-18,
-9,
-19,
4,
-35,
55,
-40,
-12,
51,
15,
-8,
20,
40,
-15,
-26,
-16,
-27,
11,
-33,
17,
-45,
40,
-9,
8,
7,
35,
-44,
14,
42,
43,
-38,
-27,
0,
46,
-23,
6,
-78,
-43,
-10,
10,
35,
31,
49,
43,
-43,
35,
6,
23,
-7,
12,
8,
-2,
-19,
-27,
35,
54,
-37,
-2,
-32,
-30,
-38,
7,
28,
0,
16,
21,
10,
-36,
7,
6,
-1,
-1,
-11,
36,
3,
-4,
-28,
32,
-7,
-7,
-22,
-28,
-20,
-20,
-36,
21,
7,
5,
-21,
37,
-17,
0,
26,
-7,
-32,
-21,
-15,
-19,
87,
35,
34,
45,
-17,
-63,
87,
-65,
-14,
7,
-66,
8,
-37,
-5,
-26,
8,
-16,
0,
3,
0,
0,
36,
14,
8,
-65,
-1,
26,
-75,
-40,
39,
-54,
16,
-11,
63,
0,
-19,
-18,
84,
37,
-45,
-67,
4,
-67,
3,
31,
-11,
-34,
-27,
7,
28,
66,
8,
-59,
32,
30,
-27,
1,
23,
48,
24,
41,
14,
59,
10,
34,
9,
2,
51,
-70,
-36,
17,
-9,
14,
31,
-23,
-73,
-18,
2,
76,
5,
77,
-39,
28,
-28,
-9,
-6,
49,
-3,
21,
53,
53,
-64,
78,
-36,
-35,
0,
-83,
30,
-27,
0,
55,
41,
30,
6,
-29,
-53,
32,
12,
10,
-53,
-18,
-39,
-14,
-11,
-42,
0,
-13,
-24,
28,
7,
-16,
93,
15,
47,
73,
-1,
-21,
-3,
-46,
30,
-3,
28,
0,
32,
36,
-50,
-56,
37,
-24,
-2,
-15,
-1,
-19,
63,
18,
32,
-22,
-13,
23,
-10,
-20,
66,
-32,
1,
30,
40,
31,
0,
33,
57,
20,
-52,
-17,
7,
-21,
22,
42,
89,
15,
-18,
0,
5,
28,
39,
-22,
-26,
20,
-60,
15,
-12,
18,
15,
27,
0,
39,
-24,
-28,
-44,
5,
21,
49,
5,
22,
-39,
39,
-12,
-23,
46,
-10,
10,
-17,
-20,
-19,
47,
44,
-71,
-42,
-29,
71,
-15,
17,
-46,
10,
-46,
-52,
-56,
-2,
46,
-57,
-41,
-4,
-17,
1,
-71,
-3,
-48,
9,
-40,
-37,
27,
19,
-37,
-37,
-28,
-22,
18,
3,
-3
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In 1911 T. H. Thibodeau and Sue R. Thibodeau, his wife (now Sue R. O’Brien) executed and delivered to the First National Bank of Missoula a deed for certain real property situated in Missoula county, and later executed and delivered to the bank a correction deed. There is not anything before us to indicate what error was intended to be corrected by the second deed, and a further reference to it need not be made. The original deed was duly acknowledged and recorded and, though it purported to convey the property absolutely, it was in fact intended as security only; but for what debt or obligation does not appear. The Garden City Garage, a corporation of which Thibodeau and wife were directors and the principal stockholders, became indebted to the bank, and later Thibodeau and wife sold their interest in the garage to one Hugh Kennedy. This was the situation on February 28, 1919, when Thibodeau and wife executed and delivered to the bank an instrument in writing designated herein “Exhibit X,” in form a letter addressed to the bank in which reference is made to the deeds, the book and page where the original deed is recorded, which declares that the bank held the property as security for the debts of the Garden City Garage, and contained the following provision: “It is further understood and declared that you hold said property in said deeds described in the same way and to the same extent as if said property had been duly and regularly mortgaged to secure said debts, obligations, claims and demands aforesaid.”
Later Thibodeau and wife repurchased the business of the Garden City Garage and were conducting it and selling automobiles at retail when the transactions out of which this litigation arose were had. During August, September and October, 1919, wholesale dealers in automobiles shipped ears to the Garden City Garage, and in each instance sent to the bank the bill of lading with a draft attached, with instructions to de liver the bill of lading upon receiving the amount of .the draft. Upon the arrival of each shipment the Garden City Garage borrowed from the bank the amount necessary to take up the draft, and executed and delivered to the bank a note for the amount of the loan. Five of these notes are involved in this litigation. After two of them had been given, and on September 6, 1919, Thibodeau and wife executed and delivered to the bank an instrument in writing, designated herein “Exhibit Z.” This instrument was written on the reverse side of Exhibit X and reads as follows:
“In consideration of the sum of one dollar to them in hand paid by the First National Bank of Missoula, it is hereby agreed by the undersigned, that the property referred to in the within letter is and shall be held by said bank as security for the payment of the indebtedness referred to in said letter and also as security for the payment to said bank of all debts and obligations, either direct or indirect or to become due, or which may be, at any time hereafter, be created from the Garden City Garage, a corporation, or from the undersigned individuals to said bank and that said property referred to in said letter shall be held by said The First National Bank of Missoula as security for all present and future advances to and indebtedness from said the Garden City Garage, and the undersigned individuals. The term indebtedness includes all liability, either direct or collateral, as maker, endorser, or otherwise.
“Dated this 6th day of September, 1919.
“T. H. Thibodeau.
“S. It. Thibodeau.”
On November 22, 1919, the bank took possession of some of the automobiles and advertised them for sale at public auction, but before the date of sale arrived an agreement was entered into by which the Garden City Garage was constituted the agent of the bank and authorized to sell the property at private sale, paying over the proceeds to be credited upon the notes. The automobiles were sold and the proceeds applied according to the agreement, leaving a substantial amount unpaid. In the meantime T. II. Thibodeau died testate, leaving as his sole heirs at law and devisees Sue R. Thibodeau and Ray Thibodeau. Thomas N. Marlowe was appointed executor of the last will, qualified and has since acted in that Rapacity. The claim of the bank was duly presented for allowance against the estate of T. H. Thibodeau, but was rejected entirely, and this action was instituted to recover the balance remaining unpaid.
The trial court held that plaintiff is entitled to recover the balance due upon the notes; that the original deed and Exhibits X and Z constitute a mortgage which secures such balance; and that plaintiff is entitled to have the mortgage foreclosed. From the judgment defendants appeal and present for review two questions only: (1) What effect is to be given to each of the notes, and (2) what right, if any, did plaintiff secure by Exhibit Z when considered with Exhibit X and the original deed?
I. It is the contention of counsel for defendants that each note is a conditional sale contract, that plaintiff had an election of remedies, and, when it elected to retake the property and sell it, it abrogated the contract, hence may not maintain this action for any deficiency.
When we speak generally of a “conditional sale,” we refer to a sale in which possession is delivered to the buyer but the seller retains title until some condition is performed, usually the payment of the purchase price. (24 R. C. L. 440.) Under this simple character of contract, upon a default by the buyer, the seller (a) may treat the contract as abrogated and retake the property, or (b) he may retake the property, treat the contract as existing, but broken by the buyer, and maintain an action for damages occasioned by the breach, or (c) he may waive the breach and insist upon payment of the purchase price. (Madison River Live Stock Co. v. Osler, 39 Mont. 244, 133 Am. St. Rep. 558, 102 Pac. 325.) But there is no prescribed form for a conditional sale contract, and experience demonstrates that the forms employed in actual practice are as varied as are the conceptions of the human mind, so that the rights and liabilities of the parties to a conditional sale contract, like their rights and liabilities under any other kind of contract, are to be determined by their intention as that intention is deducible from the terms employed when the particular contract in question is considered in its entirety.
In each of the notes before us the parties in express terms declared that upon a breach by the maker, the bank might treat the sale as absolute and recover the purchase price, or it might retake the property, sell it and apply the net proceeds of sale upon the note, and if it chose the second alternative and the net proceeds realized were insufficient to discharge' the debt represented by the note, the maker would “immediately pay any balance then remaining unpaid upon said note, as the agreed balance due as and for the use, rental and depreciation of said property up to the time of its taking as aforesaid.” This last provision is not contrary to any statute, nor does it contravene any principle of public policy. Since the parties were competent to contract and did so freely, it is not the province of this court to act as guardian for the maker and say it shall not be bound to do what it agreed to do. Indeed, the provision is strictly in accordance with the rule of damages in such cases. (Harkness v. Russell, 118 U. S. 663, 30 L. Ed. 285, 7 Sup. Ct. Rep. 51 [see, also, Rose’s U. S. Notes].)
Counsel for defendants direct our attention to court decisions from other jurisdictions which hold that, by taking possession of the property and selling it, the conditional vendor elects to treat the contract as at an end, hence may not recover for the balance remaining unpaid even though the conditional vendee agrees to pay such deficiency. But it is idle to cite those authorities, for whatever may be the rule in other states, our statute expressly recognizes the right of a conditional vendor to enforce a provision of this character. (Sec. 7597, Rev. Codes.)
Again, counsel for defendants insist that under the terms of section 7599, Revised Codes, the bank had two remedies only: rescission of the contract, or enforcement of the lien for the purchase price, and, since these remedies are inconsistent, the election of the one precludes the enforcement of the other. But counsel overlook the particular provision of that section which is the key to the interpretation of the section as a whole. The section applies only to the ease where possession of the property is retained throughout by the conditional vendor. The section is a verbatim copy of section 870 of Field’s Civil Code, and an examination of the ease of Fancher v. Goodman, 29 Barb. (N. Y.) 315, cited by the authors of the proposed New York Code, discloses the true purpose and meaning of the section.
Jordan v. Peek, 103 Wash. 94, 173 Pac. 726, cited and relied upon by counsel for defendants, is entirely in harmony with the view which we have expressed. In that case the Lindquists, conditional vendees, were constituted the agents of the Jordans; hence possession by the Lindquists was the possession of the Jordans, the conditional vendors.
The section cannot have any application here, for possession of the automobiles in question was delivered immediately to the Garden City Garage, the conditional vendee. ^
We direct attention to the fact that section 7597 was enacted after the decision in Madison River Live Stock Co. v. Osler was rendered; and whereas section 7599 refers to a conditional sale where possession of the property remains in the vendor, section 7597 refers to the rights and liabilities of the parties where possession is delivered to the vendee.
Upon the theory adopted by the defendants themselves, the plaintiff was entitled to maintain this action. But we agree with the trial court that each of the notes is essentially a chattel mortgage, rather than a conditional sale contract. Plaintiff, a national banking corporation, was engaged in loaning money — not buying and selling automobiles. The Garden City Garage was engaged in the automobile business, buying from wholesale dealers and selling at retail. It was compelled to borrow from the bank the money necessary to take up the draft and secure the bill of lading and possession of the automobiles as each shipment arrived, and notwithstanding the recital in each note that "the title to which said property is now and shall remain in, and does not pass from, said the First National Bank of Missoula, until this obligation is fully satisfied,” it is perfectly apparent, as the trial court found, that, except as a mere legal fiction, the parties never intended that the bank should have title absolutely, but only that the automobiles should stand as security for the repayment of the loan. (Charavay v. York Silk Mfg. Co. (C. C.), 170 Fed. 819; Lyon v. Nourse, 104 Wash. 309, 176 Pac. 359.) To constitute the transaction a conditional sale, the bank must have been the actual owner of the automobiles and must have made a bona fide sale of them to a bona fide purchaser (Payne v. Parker, 95 Miss. 375, 48 South. 835; 11 C. J. 415), but that is not this case. The consideration for each note was the money loaned by the bank, not the sale of the automobiles described in the note. It is not the form of the instrument, but the purpose of the parties executing it, which determines its legal effect. The fact that the G-arden City Garage bound itself to pay the full amount indicated by each note even after a sale of the property, and the application of the proceeds, can be reconciled only with the theory that security was intended. Hence irrespective of the form of the note, it must be held to evidence the intention of the parties that the automobiles should stand hypothecated for the payment of the debt; in other words, that it was in fact a chattel mortgage. (19 R. C. L. 244; Murray v. Butte-Monitor Tunnel Min. Co., 41 Mont. 449, 110 Pac. 497, 112 Pac. 1132; Crone v. Occident Elevator Co., 70 Mont. 211, 224 Pac. 659.) Under this view the right of the bank to recover the balance remaining unpaid after a sale of the mortgaged property and application of the proceeds is not open to question.
2. It is next contended that even though the bank may sue for and recover the balance due upon these notes, it may not enforce payment by decree of foreclosure against the real property described in the original deed of 1911. Counsel for defendants urge many objections to the sufficiency of Exhibit Z as a mortgage, and for the purposes of this appeal we might concede that every objection is well founded, and still the result would not be affected, for the objections are all founded upon the erroneous theory that Exhibit Z constitutes the mortgage which is here sought to be foreclosed. Bearing in mind that the original deed, though absolute in form, was intended only as security for the performance of an obligation, it constituted a mortgage upon the real property as fully and effectively as though it had been in form a mortgage executed with the utmost exactness and in strict conformity with the statutory provisions relating to mortgages of real property, and “once a mortgage, always a mortgage.” The effect of Exhibit X was to enlarge the scope of that mortgage, by declaring that it should be security for the payment of debts other than those in existence at the time the original deed was executed. Likewise the effect of Exhibit Z was to enlarge the scope additionally so as to include the debts represented by the notes involved herein. It is too well settled to admit of serious controversy that the parties to a mortgage originally intended to secure a particular debt, may later agree in writing that, as between themselves, it shall be security for the payment of a different debt or future advances. (1 Jones on Mortgages, 7th ed., secs. 360, 1079; Huntington v. Kneeland, 102 App. Div. 284, 92 N. Y. Supp. 944, affirmed on appeal, 187 N. Y. 563, 80 N. E. 1111; Wylly v. Screven, 98 Ga. 213, 25 S. E. 435; Bank v. Reese, 156 Ga. 652, 119 S. E. 610; Kapalczynski v. Sitniski, 91 N. J. Eq. 524, 111 Atl. 24; 27 Cyc. 1074.)
When Exhibit X was executed, and likewise when Exhibit Z was written, the legal title to the property in controversy was in the bank, but held as security only, and no reason can be suggested why the parties could not enter into each of these subsequent agreements that the title, though conveyed, as security for one debt or for the fulfillment of one obligation, should stand, as between themselves, as security for the other debts mentioned in these respective exhibits; in other words, the original instrument, though in form a deed, was in fact a mortgage and is the mortgage now sought to be foreclosed. Exhibits X and Z are merely written agreements by the terms of which the mortgage was made to secure debts other than those originally intended to be secured, including the particular debts represented by the notes in question, and each of these exhibits is ample for the purpose intended. Exhibit X refers to the date of the original deed and to the book and page of the public records where it is recorded, and Exhibit Z refers to Exhibit X. The effect of the reference in each instrument is to incorporate in the instrument which makes (he reference, the document to which reference is made.
But it is urged: (a) That the original deed, considered as a mortgage, had expired prior to the time Exhibit Z was executed; and (b) that the debts secured by the deed and Exhibit X had been paid prior to the execution of Exhibit Z. Section 8267, Revised Codes, provides that a mortgage of real property duly executed and recorded is good and valid as against the creditors of the mortgagor or owner of the land, or subsequent purchasers or encumbrancers from the date it is recorded until eight years after the maturity of the entire debt or obligation secured, and no longer, unless extended in the manner therein indicated. The section has been construed by this court in Berkin v. Healy, 52 Mont. 398, 158 Pac. 1020, and Morrison v. Farmers & Traders’ State Bank, 70 Mont. 146, 225 Pac. 123. The statute, however, has no application to the facts presented by this record, since there is not anything before us to indicate when the indebtedness secured by the original deed became due or that the debt secured by the original deed and Exhibit X had been paid; on the contrary, Exhibit Z recites that the land should be held as security for the payment of the debts mentioned in Exhibit X as well as the debts referred to in Exhibit Z itself. The record does not contain any of the evidence introduced upon the trial of this case; hence every finding made by the trial court is presumed to be supported by the evidence (Mouat v. Minneapolis M. & S. Co., 68 Mont. 253, 217 Pac. 342), and it is to be borne in mind that no rights of third parties are involved in this litigation, but that the action is essentially one between the original parties to the transactions.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Rankin and Stark concur.
|
[
-27,
48,
13,
1,
-31,
-4,
24,
-20,
28,
5,
-16,
41,
32,
10,
-41,
34,
25,
-20,
-21,
0,
-14,
-95,
-36,
-4,
17,
29,
-14,
-43,
-3,
40,
27,
-1,
1,
30,
-27,
37,
-24,
-3,
39,
-43,
18,
36,
21,
-20,
15,
58,
39,
-56,
24,
-14,
14,
-45,
4,
23,
-1,
-21,
-52,
12,
-64,
58,
69,
-56,
46,
0,
19,
-15,
23,
17,
34,
31,
-36,
-15,
-1,
-36,
47,
0,
-18,
0,
-78,
-80,
-27,
-24,
6,
-36,
-20,
-20,
-31,
-30,
-6,
-50,
29,
4,
71,
8,
9,
-13,
-25,
22,
11,
-28,
-40,
-58,
3,
21,
2,
-20,
-46,
-13,
58,
28,
42,
6,
32,
-4,
-24,
4,
-20,
0,
0,
-10,
-6,
-39,
-23,
-37,
-8,
-26,
-24,
28,
10,
9,
-29,
-4,
-10,
50,
-47,
-51,
-31,
-9,
-13,
37,
29,
-5,
20,
5,
-13,
4,
12,
-14,
-7,
-32,
-34,
-8,
24,
35,
-14,
-12,
-4,
-48,
47,
-26,
-3,
-33,
87,
-10,
-16,
50,
-7,
2,
-23,
-5,
26,
5,
-57,
0,
69,
0,
-22,
-56,
20,
-19,
13,
24,
2,
-18,
-9,
-44,
-1,
13,
76,
-28,
-9,
11,
-19,
15,
-29,
33,
-32,
-25,
12,
-12,
11,
-15,
-11,
3,
1,
-28,
28,
21,
19,
35,
-20,
-22,
1,
15,
-13,
-5,
2,
-44,
-4,
-2,
32,
12,
-45,
59,
-50,
-24,
-2,
9,
4,
18,
-68,
-3,
13,
15,
1,
-15,
24,
-25,
-32,
44,
-2,
-12,
6,
14,
-8,
29,
-27,
-50,
0,
1,
-38,
-41,
-21,
23,
11,
22,
26,
-10,
-4,
-24,
57,
8,
0,
-44,
24,
-48,
8,
6,
-24,
7,
8,
-2,
10,
-8,
-27,
-31,
25,
2,
0,
-8,
-20,
-22,
34,
38,
32,
4,
14,
36,
-40,
26,
-5,
-37,
-18,
19,
41,
30,
20,
-42,
-24,
14,
-59,
-3,
-31,
35,
23,
-16,
-20,
45,
-5,
15,
29,
-16,
11,
3,
28,
8,
3,
12,
43,
26,
53,
38,
-19,
39,
-4,
42,
-10,
-23,
-35,
-10,
8,
7,
-27,
31,
-3,
-25,
40,
-33,
-2,
-27,
2,
-1,
49,
-55,
41,
15,
-31,
0,
-31,
26,
-17,
35,
-49,
56,
-10,
-12,
66,
4,
-15,
17,
44,
-3,
24,
8,
-35,
15,
-30,
-42,
37,
24,
-9,
30,
-32,
2,
32,
-22,
8,
-8,
-58,
38,
-13,
-22,
0,
8,
37,
7,
1,
-52,
0,
20,
-37,
5,
0,
37,
17,
-41,
18,
14,
-80,
-47,
-18,
74,
-43,
-34,
-12,
-27,
9,
-30,
-23,
-15,
-12,
-90,
-22,
-30,
-5,
34,
9,
-19,
11,
18,
-25,
26,
14,
1,
36,
16,
45,
1,
-57,
19,
16,
15,
-5,
7,
-9,
0,
3,
0,
-18,
50,
50,
11,
-28,
-33,
5,
24,
37,
-25,
53,
50,
30,
0,
11,
3,
43,
18,
42,
0,
-4,
-79,
62,
-26,
24,
2,
8,
11,
17,
-50,
-4,
21,
-20,
36,
17,
13,
32,
20,
-13,
-20,
-60,
18,
17,
6,
31,
66,
-30,
-35,
-107,
7,
-45,
33,
39,
46,
-18,
26,
-25,
-30,
-18,
-20,
15,
-62,
-6,
-31,
-15,
42,
-39,
-14,
-8,
-37,
-28,
48,
10,
2,
47,
19,
-11,
45,
50,
-13,
37,
80,
7,
52,
-38,
-25,
7,
22,
42,
25,
11,
-21,
-37,
25,
-12,
23,
-4,
-23,
64,
37,
42,
-23,
37,
-16,
-6,
33,
-27,
17,
2,
-5,
1,
13,
-29,
-28,
29,
-19,
45,
11,
-29,
2,
-9,
14,
-14,
65,
2,
-20,
47,
-41,
13,
-42,
14,
-64,
-67,
-20,
-17,
-23,
-4,
-23,
-22,
-27,
-37,
-5,
-21,
1,
9,
-1,
-8,
42,
30,
12,
-1,
9,
59,
5,
25,
6,
-15,
-14,
-9,
13,
-69,
56,
-26,
-53,
-22,
25,
-11,
-35,
-23,
12,
22,
24,
-39,
-3,
9,
37,
-6,
-10,
-52,
-55,
29,
-22,
-10,
4,
24,
34,
-9,
-38,
-34,
-3,
-12,
49,
-16,
12,
30,
35,
8,
11,
28,
-14,
-13,
-32,
12,
-14,
-29,
-1,
-1,
13,
-29,
57,
77,
-14,
-29,
16,
5,
-24,
11,
47,
34,
-14,
3,
37,
49,
-21,
-14,
-8,
-3,
-50,
2,
28,
2,
28,
33,
-54,
36,
11,
70,
-23,
27,
7,
58,
-26,
1,
22,
-32,
20,
-25,
-57,
64,
-39,
28,
17,
12,
-29,
-23,
15,
17,
0,
-13,
39,
-57,
-42,
81,
-10,
17,
21,
-56,
36,
-19,
-5,
-30,
3,
54,
-14,
-11,
-51,
-52,
0,
10,
8,
-49,
-48,
-6,
-3,
-38,
-19,
2,
0,
13,
-25,
-50,
60,
21,
-5,
-48,
9,
7,
20,
2,
-2,
-5,
-36,
-64,
48,
1,
42,
-39,
-38,
-21,
9,
15,
-30,
10,
19,
57,
-20,
-30,
-30,
-45,
18,
-16,
-62,
-3,
25,
-4,
30,
31,
-3,
32,
36,
-47,
-38,
-7,
-45,
-57,
-6,
-5,
9,
-18,
2,
37,
-24,
33,
-9,
-33,
8,
27,
-13,
22,
63,
41,
50,
-11,
34,
-40,
-35,
-27,
2,
-30,
25,
12,
23,
-38,
45,
-36,
22,
17,
6,
-11,
28,
20,
5,
-18,
8,
-4,
-36,
33,
22,
32,
20,
3,
-46,
-52,
10,
12,
-25,
4,
-13,
-6,
-1,
-70,
28,
25,
-39,
7,
40,
-20,
19,
-15,
9,
17,
21,
-1,
-24,
-61,
40,
27,
25,
10,
49,
35,
-25,
-18,
-12,
17,
14,
-5,
-18,
-49,
8,
19,
19,
17,
0,
-54,
9,
53,
-43,
7,
13,
1,
16,
-35,
54,
37,
-5,
32,
-25,
69,
31,
19,
6,
-13,
0,
-26,
34,
-32,
9,
-1,
2,
20,
35,
-29,
-44,
-72,
-30,
21,
-50,
19,
-37,
18,
-37,
7,
-14,
-42,
1,
-23,
14,
-1,
34,
21,
-19,
27,
3,
-37,
-52,
-33,
17,
-10,
-24,
0,
76,
1,
10,
-19,
-2,
-4,
-32,
-54,
-2,
-14,
44,
-30,
77,
-19,
3,
-4,
-23,
1,
19,
-25,
-38,
5,
-10,
24,
13,
-14,
-21,
23,
-32,
18,
14,
-21,
36,
9,
38,
20,
4,
-77,
-36,
-14,
18,
-48,
42,
14,
-63,
34,
-12,
7,
-7,
22,
15,
-23,
-21,
5,
22,
-48,
-5,
34,
9,
54,
-23,
34,
24,
-28,
89,
24,
-2,
-15,
7,
-17,
-53,
14,
-11,
16,
23,
-14,
-29,
30,
3,
49,
-11,
4,
-20,
-36,
-43,
-31,
-50,
7,
17,
-6,
-42,
-29,
5,
-18,
10,
-33,
4,
9,
61,
-4,
39,
-11,
3,
5,
35
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
The Montana Refining Company is a corporation organized under the laws of Delaware, and has complied with the laws of this state under which a foreign corporation is permitted to do business here. Its authorized capital is represented by 5,000 shares of preferred stock of the par value of $100 each, and 50,000 shares of common stock without any fixed par value. The preferred stock is entitled to twelve per cent dividends from the earnings, and to be redeemed on or after January 1, 1923, but the holder of preferred stock is not entitled to vote such stock or to participate in the management of the affairs of the company. Of the shares of preferred stock, 1,472 were sold at par, and of that number these plaintiffs own 915 shares. The company acquired a refining plant in Yellowstone county, and for a time engaged actively in the oil-refining business at a profit, but later practically abandoned the business and to all intents and purposes became a mere distributing agent for a former competitor in the refining business. It ceased to make any profits, became in debt, failed to pay any dividends and failed to redeem any of the preferred stock. This action was instituted in the district court of Yellowstone county by the Montana holders of preferred stock, for themselves and for all others similarly situated.
Briefly summarized, the complaint charges that the defendant Hortenstein, who was the promoter of the company, and Molt, Winne, Brown, Grimstad, Gallagher, Shawhan and Catlatt entered into a conspiracy to defraud the company and the holders of preferred stock, and to that end caused the company to be incorporated under the laws of Delaware by three dummy stockholders, none of whom paid anything for the stock he assumed to own at the time the articles of ■incorporation were executed and filed; that the incorporators held a stockholders’ meeting at Wilmington, Delaware, in ‘October, 1920, at which meeting by-laws were adopted and Molt, Winne, Brown, Grimstad and Gallagher were elected directors; that Grimstad and Gallagher resigned soon after-wards, and Shawhan was appointed a director; that the board as thus constituted assumed to issue to Hortenstein certificates representing all of the common stock, in exchange for certain options upon, and other interests in, real estate held by him, none of which property was of any value; that thereafter Hortenstein retransferred 5,000 shares of the common stock to the treasury of the company and conveyed 2,500 shares each to Molt, Winne, Brown, Shawhan and Catlatt, the only consideration therefor being the assistance which they should render in carrying out the conspiracy; that in June, 1922, defendant H. Y. Book owned a majority of the stock of the Century Oil Company and the Lewistown Oil & Refining Company, each a Delaware corporation, and the latter engaged in oil refining in this state, in active competition with the Mon.tana Refining Company; that at that time Hortenstein, Molt, Catlatt, Brown, Shawhan and Winne transferred to H. V. Book 30,000 shares of the common stock of the Montana Refining Company, and thereupon H. Y. Book procured himself, F. P. Book, Holton, Wood and Wadsworth to be elected directors of the company, O’Brien to be selected its manager, and Seifert to be made custodian of its records; that H. Y. Book thereupon ' caused promissory notes of the Montana Refining Company in amounts aggregating $10,500 to be executed and delivered to defendant Molt, and procured Molt to indorse and deliver the notes to the Century Oil Company, and thereafter caused the Century Oil Company to sue on the notes and attach the property of the Montana Refining Com pany, and caused the books of the Montana Refining Company to be manipulated and falsified so as to show an indebtedness of approximately $19,000 existing in favor of the Lewistown Oil & Refining Company and against the Montana Refining Company, when in fact such indebtedness did not exist; that H. Y. Book, by dominating the directors of the Montana Refining Company, caused the stock of crude petroleum which that company had in store to be sold, and prevented the company from procuring any further supply, prevented the Montana Refining Company supplying any of its customers, except the city of Billings, with refined products, diverted all of the business to the Lewistown Oil & Refining Company, compelled the Montana Refining Company to purchase the products of the Lewistown Oil & Refining Company at prices which prevented any profit, caused one of the stills of the Montana Refining Company’s plant and one of its buildings to be destroyed and much of its property to be removed to the plant of the Lewistown Oil & Refining Company.
It is alleged further that, if the business of the Montana Refining Company had been managed honestly, the holders of preferred stock would have received the dividends mentioned in their stock certificates and the preferred stock would have been redeemed on or about January 1, 1923, but by reason of the wrongful acts set forth no dividends have been paid and no part of the preferred stock has been redeemed; that if the present management continues, the Montana Refining Company will become insolvent and, by reason of the control of the officers by H. Y. Book, plaintiffs are without any means for redress through the 'corporation itself; and that H. Y. Book “and his associates, officers of said company, reside without the state of Montana.”
The complaint concludes with a prayer that a receiver be appointed to take over the books, business and property of the Montana Refining Company; that the directors and O’Brien and Seifert be enjoined from removing the corporate books and records from the jurisdiction of the court; that all contracts held by the company as consideration for the common stock be returned, and that all outstanding certificates of common stock be canceled; that the pretended claims of indebtedness in favor of the Century Oil Company and' the Lewistown Oil Befining Company be decreed to 'be without consideration and in fact claims of íL Y. Book; and that the owners of preferred stock be decreed to be entitled to vote such stock.
Apparently the Montana Befining Company, the Lewistown Oil & Befining Company and Charles J. Seifert were the only defendants served with summons. The Montana Befining Company interposed a demurrer which challenged the jurisdiction of the court and the sufficiency of the complaint, and the Lewistown Oil & Befining Company and Seifert jointly demurred on the same grounds-. The demurrers were sustained and, upon plaintiffs declining to plead further, the application for the appointment of a receiver was denied and a judgment dismissing the complaint was entered; hence these appeals.
1. The appeal from the judgment is submitted upon the theory that plaintiffs are not entitled to maintain this action unless the district court was authorized to grant the specific primary relief demanded — that is to say, (a) to set aside the contracts held in exchange for common stock and cancel the outstanding certificates of common stock; or (b) to confer upon the holders of preferred stock the right to vote such stock; or (c) to determine that the indebtedness of the Montana Befining Company to the Century Oil Company and the Lewistown Oil & Befining Company is without consideration.
The principle which underlies the general rule of law in- voked by the appearing defendants is recognized by practically all of the authorities, though the rule itself is not always stated in the same precise terms. In 8 Fletcher’s Cyclopedia Corporations, section 5786, it is said: “It is a well-settled principle that the courts of a state or country have no visitorial power over foreign corporations. Such power belongs exclusively to the state or country by which the corporation was created. The courts of a state or country, therefore, have no jurisdiction to interfere, by injunction or otherwise, in the management of the internal affairs of a foreign corporation, even at the suit of a resident stockholder, and even though the corporation may be doing business in the state or country and may have expressly or impliedly agreed to submit to the jurisdiction of the court in suits against it. The rule applies even though the corporation has a large amount of visible tangible property within the state. As a general rule, the courts of one state will not exercise the power of deciding controversies relating merely to the internal management of the affairs of a corporation organized under the laws of another state or of determining rights dependent upon such management. Questions relating to the management of the internal affairs of a foreign corporation are to be settled by the tribunals of the state which created the corporation.” (See, also, 5 Thompson on Corporations, 2d ed., secs. 6743, 6744.)
In Babcock v. Farwell, 245 Ill. 14, 137 Am. St. Rep. 284, 19 Ann. Cas. 74, 91 N. E. 683, the court said: “The general rule has been declared by the decisions of many courts and has been stated by text-writers to be that the courts of one state will not exercise the power of deciding controversies relating merely to the internal management of the affairs of a corporation organized under the laws of another state or of determining rights dependent upon such management. * # * Except in eases involving the exercise of visitorial powers, the question is not strictly one of jurisdiction but rather of discretion in the exercise of jurisdiction.”
Counsel for plaintiffs does not question the rule, but insists that the matters here involved do not relate to the internal affairs of the Montana Refining Company. Among the authorities which have announced and enforced the rule, con fiicting conclusions have been reached in its application, attributable primarily to the extreme difficulty experienced in attempting to draw the line of demarcation between matters which pertain to the internal affairs of a corporation and those which do not.
In North State C. & G. Min. Co. v. Field, 64 Md. 151, 20 Atl. 1039, the proper test in such cases was said to be: “That where the act complained of affects the complainant solely in his capacity as a member of the corporation, whether it be as stockholder, director, president or other officer, and is the-act of the corporation, whether acting in stockholders’ meeting, or through its agents, the board of directors, that then such action is the management of the internal affairs of the corporation, and in case of a foreign, corporation our courts, will not take jurisdiction. Where, however, the act of the foreign corporation complained of affects the complainant’s individual rights only, then our courts will take jurisdiction, whenever the cause of action arises here.”
It will be observed that in the instant case we have the Montana Refining Company, a corporation organized under the laws of Delaware, its property located in Montana, its officers and directors nonresidents of this state, the majority of its voting stock apparently held by nonresidents and, so far as disclosed, by persons not parties to this action, and this action prosecuted by resident stockholders of this state who ask the courts of this state, first, to set aside the contract entered into by the company and Hortenstein, to return the properties received by Hortenstein, and to cancel the outstanding certificates of common stock because they were issued in violation of the provisions of section 3, Article IX, of the Constitution of Delaware, were exchanged for properties which are alleged to be worthless, and because the transaction constituted a fraud upon the holders of preferred stock. Substantially the same relief was sought upon the same grounds and under somewhat similar circumstances in Madden v. Penn Electric Light Co., 181 Pa. 617, 38 L. R. A. 638, 37 Atl. 817, but relief was denied, and the court said: “Here the plaintiffs, stockholders, accuse the corporate management of disregard of the rights of the whole body of stockholders for whom the corporation is trustee, in making unwise and reckless contracts, which depreciate and render valueless their stock. The wrong complained of is not from the violation of a contract with them, but want of fidelity to duty in their fiduciary relation springing from the nature of the organization. In substance, the averment is that at the office of the company, in the state of New Jersey, the management, in violation of their official duty, entered into a contract to be performed in Pennsylvania, whereby the stockholders suffer. This, plainly, strikes at the internal management of the company; the existence of the wrong must be ascertained, and the remedy applied, according to the laws of the domicile.” The decision is cited with approval in 5 Thompson on Corporations, second edition, section 6742, where it is stated as a general rule: “A local court will not at the suit of a resident stockholder of a foreign corporation set aside as unwise, disastrous and useless, contracts which depreciated and tended to destroy the value of the stock although the tangible property of the corporation was located in the state of the forum.”
In 8 Fletcher’s Cyclopedia Corporations, section 5797, it is said: “A court of equity, acting on the principle of noninterference with the internal affairs of a corporation created and existing by or under the laws of another state or country will not at the suit of a stockholder, or otherwise, interfere to enjoin a foreign corporation from issuing stock in alleged violation of the charter or the laws of the state 'by which the corporation was created.”
We cannot grant the plaintiff’s contention that the Montana Refining Company is domiciled in this state and should be regarded substantially as a domestic corporation. Nearly a century ago the supreme court of the United States announced the rule, adhered to ever since, that a corporation “must dwell in the place of its creation, and cannot migrate to another sovereignty.” (Bank of Augusta v. Earle, 13 Pet. (U. S.) 519, 588, 10 L. Ed. 274 [see, also, Rose’s U. S. Notes].) The doctrine of that case was reaffirmed in Cream of Wheat Co. v. Grand Forks, 253 U. S. 325, 64 L. Ed. 931, 40 Sup. Ct. Rep. 558, decided in 1920, wherein it was said: “The company was confessedly domiciled in North Dakota; for it was incorporated under the laws of that state.”
In 1 Fletcher’s Cyclopedia Corporations, section 387, the rule is stated as follows: “Not only is the fact of the citizenship, habitancy, and residence of a corporation settled beyond the point of refutation, .but the courts with few dissenting voices assent to the proposition only occasionally attempted to be qualified, that such citizenship, domicile, residence, or habitanee, as the case may be, can be only of or in the state or country 'by which the corporation was created.”
That the act of the directors in transferring the common stock to Hortenstein in exchange for the properties mentioned affects each of these plaintiffs in his capacity as a stockholder only and does not affect his individual rights is perfectly apparent. (Taylor v. Mutual Reserve Fund Life Assn., 97 Va. 60, 15 L. R. A. 621, 33 S. E. 385.)
We conclude that to grant the first prayer of the complaint would involve an interference with the management of the internal affairs of the Montana Refining Company; indeed, to cancel the certificates of common stock — the only stock with voting power — would, in effect, suspend the corporate fran chise. But furthermore it is elementary that a court will not grant relief which it is unable to enforce, and it is difficult to conceive how the district court of Yellowstone county could compel the surrender of the certificates of stock held by nonresidents of this state or adjudicate that such certificates are invalid in the hands of persons who are not before the court and not parties to this action.
The second prayer of the complaint is that these plaintiffs, as holders of preferred stock, be decreed to be entitled to vote their stock, notwithstanding the articles of incorpora tion of the company, its by-laws, and the certificates of stock declare that the owners of preferred stock shall not have the right to vote such stock. Counsel for plaintiffs directs attention to section 4, Article XV, of the Constitution of this state, which provides: “The legislative assembly shall provide by law that in all elections for directors or trustees of incorporated companies, every stockholder shall have the right to vote in person or by proxy the number of shares of stock owii'ed by him,” etc. The most cursory reading of the section discloses that it refers exclusively to corporations organized under the laws of this state.
As the term itself implies, “preferred stock” is stock which gives to the holder a preference over the holder of common stock with respect to the payment of dividends. (6 Fletcher’s Cyclopedia Corporations, sec. 3621.) The relation between a corporation and the holder of its preferred stock is one of contract, and the terms of the contract are to be ascertained from the certificate, read in connection with the provisions of the general laws of the state, the articles of incorporation, and the by-laws. (Id., sec. 3632.) Except for the preference, the holder of preferred stock has the same rights and is subject to the same liabilities as the holder of common stock; that is to say, in the absence of provisions in the general laws of the state, the charter or by-laws to the contrary, the holder of preferred stock in virtue of his character as a stockholder, has the same right to vote his stock as the holder of common stock has to vote his stock; but, in the absence of constitutional or statutory provisions to the contrary, it is within the power of the corporation to provide that its preferred stock shall not entitle the holder to vote it; and whenever the articles of incorporaton or by-laws contain such a provision it will be binding upon all persons who accept such stock, since the provision does not violate any rule of common law nor of public policy, and does not affect the public, but is merely a matter of contract. (Id., sec. 3638.)
It is alleged in the complaint: “That under the terms of said certificates and the articles of incorporation and by-laws of said company, the owners of preferred stock do not have a vote or voice in the management of said company.” These provisions of the articles of incorporation and by-laws enter into and form a part of the contract between the company and every purchaser of its preferred stock; but notwithstanding the fact, by this second prayer of the complaint the plaintiffs are asking a court of equity to change the articles of incorporation of a foreign corporation, amend its by-laws, and make for them a new contract different materially from the one which they made for themselves. That the court is without authority to do any of these things is too obvious to require the citation of authorities.
By the third prayer of the complaint the court is asked to decree that the indebtedness of the Montana Refining Company to the Century Oil Company and to the Lewistown Oil & Refining Company is without consideration. So far as it applied to the indebtedness to the Century Oil Company, this prayer is most remarkable. It is not alleged in the complaint that the indebtedness to Molt did not exist or that the notes for $10,500 did not represent an actual indebtedness to him, or- that they were executed or delivered without consideration. Whether the notes were negotiable or non-negotiable is not made to appear. Every negotiable instrument is presumed prima facie to have been issued for a valuable consideration (sec. 8431, Rev. Codes), and a written instrument is presumptive evidence of a consideration (sec. 7512). “The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it.” (See. 7513.)
It is alleged “that said pretended indebtedness to the Century Oil Company is fictitious and sham,” but no facts are stated from which either of these conclusions of the pleaders is dedueible, and the allegation, if otherwise unobjectionable, is of no force or effect, in the absence of a showing that the Montana Refining Company could have interposed a ■ defense as against Molt, the original payee.
It is alleged in the complaint: “That the Century Oil Company is a corporation organized under the laws of the state of Delaware, with its principal places of business at Wilmington, Delaware, and Detroit, Michigan. ” It is not alleged that it has ever been authorized to do or has ever done business in this state or that it has any agent in this state upon whom service of process may be made. But every other consideration aside, the complaint does not state facts sufficient to authorize the court to make any order or render any judgment affecting this indebtedness.
The alleged indebtedness to the Lewistown Oil & Refining Company presents a different question.
We agree with counsel for plaintiffs that this is the ordinary minority stockholders’ suit, brought in behalf of the corporation, Montana Refining Company, and not one to sub-serve the private, personal interests of plaintiffs. (Brandt v. McIntosh, 47 Mont. 70, 130 Pac. 413.) It is alleged that H. Y. Book owns a majority of the stock of the Lewistown Oil & Refining Company, and that he dominates Molt, Frank P. Book, Holton, Wood, Wadsworth, O’Brien, Seifert, Brown, Hortenstein, Shawhan, Winne and Catlatt and dominates “all officers of the Montana Refining Company.” It is alleged also that in June, 1922, H. Y. Book owned a majority of the voting stock of the Montana Refining Company, and at that time he, F. P. Book, Holton, Wood and Wadsworth constituted the board of directors of that company, but this action Avas not commenced until August 27, 1923, and whether at that time H. Y. Boob, or he with the other directors named, owned a majority of the voting stock, or whether any of the persons just mentioned was then a director of the Montana Refining Company, does not appear. Neither does it appear that these plaintiffs applied for redress to the directors in office immediately before this action was commenced.
In Deschamps v. Loiselle, 50 Mont. 565, 148 Pac. 335, this court said: “It is no longer open to question in this jurisdiction that stockholders have no standing in court to sue on behalf of the corporation until they -have applied to the officers and directors for relief and have been answered by a refusal, or the course of conduct being pursued by the latter is such as would render an application for relief fruitless.”
It appears from the allegations of the complaint that plaintiffs own some of the common stock of the Montana Refining Company, and that if they, in connection with other holders of common stock friendly to them, own or control a majority of that stock, and if it be a fact that the directors were acting contrary to the best interests of the corporation, manifestly their duty was to oust the recalcitrant directors and elect members who will promote and protect the company’s interests. In any event, in the absence of a showing that a majority of the voting stock was held by persons who refused their aid to obtain redress for the alleged wrong of Which complaint is now made, and in the absence of any showing that the case will not admit of delay necessary to obtain action by the stockholders, it was incumbent upon plaintiffs that they appeal to the stockholders and that they be denied relief before they could institute this action; in other words, a court will not do for minority stockholders what they may do for themselves.
In Hawes v. Oakland, 104 U. S. 450, 26 L. Ed. 827 [see, also, Rose’s U. S. Notes], the court indicated the circumstances under which a suit by a minority stockholder may be maintained, and among other things said: “But, in addition to the existence of grievances which call for this kind of relief, it is equally important that before the shareholder is permitted in his own name to institute and conduct a litigation which usually belongs to the corporation, he should show to the satisfaction of the court that he has exhausted all the means within his reach to obtain, within the corporation itself, the redress of his grievances, or action in conformity to his wishes. He must make an earnest, not a simulated, effort, with the man aging body of the corporation, to induce remedial action on their part, and this must be made apparent to the court. If time permits or has permitted, he must show, if he fails with the directors, that he has made an honest effort to obtain action by the stockholders as a body, in the matter of which he complains. And he must show a case, if this is not done, where it could not be.done, or it was not reasonable to require it. The efforts to induce such action as complainant desires on the part of the directors, and of the shareholders when that is necessary, and the cause of failure in these efforts should be stated with particularity.” (See, also, Kessler v. Ensley Land Co. (C. C.), 123 Fed. 546; 14 C. J. 933.)
In Continental Securities Co. v. Belmont, 206 N. Y. 7, Ann. Cas. 1914A, 777, 51 L. R. A (n. s.) 112, 99 N. E. 138, the court said: “It is the governing body or bodies of a corporation with power to enforce a remedy to whom complaining stockholders must go with their demand for relief. The governing body of corporations in this state, as we have seen, is the board of directors. A complaining stockholder must go to such board for relief before he can bring an action, unless it clearly appears by the complaint that such application is useless. If the subject matter of the stockholder’s complaint is for any reason within the immediate control, direction, or power of confirmation of the body of stockholders, it should be brought to the attention of such stockholders for action, before an action is commenced by a stockholder, unless it clearly appears by the complaint that such application is useless.” The same rule obtains in the English courts. (Foss v. Harbottle, 2 Hare, 461; Gray v. Lewis, L. R. 8 Ch. App. 1035; MacDougall v. Gardiner, 1 Ch. Div. 13.)
Our conclusion upon this branch of the case is that plaintiffs failed to show that they exhausted all available means of redress within the corporation itself; hence the court did not err in refusing relief. (14 C. J. 943, 944.)
So far as the application for an injunction to prevent the directors O’Brien and Seifert from'removing the cor porate records from the jurisdiction of the court is concerned, it is sufficient to say that it is not alleged that the persons named, or any of them, are removing or threaten to remove, or will remove, such records if the injunction is not granted, and for this reason the complaint is insufficient. (Haupt v. Independent Telegraph Messenger Co., 25 Mont. 122, 63 Pac. 1033; 32 C. J. 327.)
2. The appeal from the order refusing to appoint a receiver likewise presents the question of the sufficiency of the complaint. There is not any such thing known to the law of this state as an action for the appointment of a receiver. Receivership is a provisional remedy of ancillary character, allowable only in an action pending for • some other purpose, and the action pending must be one in which issues are to be determined even though the application for the appointment of a receiver be denied. (Hartnett v. St. Louis, M. & M. Co., 51 Mont. 395, 153 Pac. 437.)
Since we have already determined that the complaint does not state a cause of action for primary relief, consideration of other questions presented upon this branch of the case need not be noticed.
The judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Galen and Stark concur.
Mr. Justice Cooper, being absent, did not hear the argument and takes no part in the foregoing decision.
|
[
19,
45,
108,
9,
-15,
11,
1,
-10,
-2,
-15,
14,
14,
24,
5,
40,
-4,
9,
-7,
4,
27,
11,
-55,
-31,
-29,
11,
-31,
-45,
30,
6,
17,
-9,
18,
10,
-14,
0,
60,
-81,
-19,
0,
-59,
21,
36,
32,
-13,
24,
40,
6,
-32,
1,
5,
20,
-20,
31,
-1,
9,
-9,
-4,
22,
-27,
57,
-37,
-32,
67,
17,
52,
-1,
-28,
12,
8,
-5,
-40,
-36,
-15,
0,
83,
-26,
7,
-29,
-32,
-17,
-36,
16,
-2,
-5,
-66,
51,
-75,
11,
11,
4,
14,
-12,
-29,
-15,
-5,
23,
5,
9,
-31,
0,
-22,
-69,
-32,
13,
-18,
12,
32,
49,
34,
17,
-22,
0,
-10,
-11,
-7,
-6,
-64,
-10,
-76,
-16,
-8,
10,
-30,
37,
7,
35,
-7,
-1,
-27,
10,
-38,
-29,
-20,
6,
15,
7,
-17,
-60,
-31,
17,
0,
20,
-14,
-12,
-28,
47,
-7,
36,
-18,
-33,
0,
5,
56,
25,
-1,
-43,
-6,
14,
32,
-41,
-28,
-42,
30,
50,
-3,
42,
36,
-45,
-53,
-8,
-12,
-21,
-48,
-35,
38,
-1,
-10,
-63,
-18,
22,
-41,
-9,
25,
-24,
0,
-1,
16,
33,
18,
-11,
9,
4,
-13,
0,
-86,
-46,
23,
0,
12,
33,
27,
-11,
-31,
15,
-34,
-5,
-10,
26,
32,
-31,
14,
60,
11,
-17,
-45,
63,
-41,
-54,
30,
-23,
77,
-23,
-40,
48,
1,
-29,
49,
-5,
-15,
-33,
-69,
18,
50,
-19,
6,
-7,
5,
-13,
-7,
-4,
-21,
-34,
-23,
-1,
50,
27,
8,
-51,
-21,
66,
-15,
-27,
-14,
23,
24,
7,
-30,
-43,
29,
-30,
31,
-16,
-34,
2,
9,
-73,
31,
-38,
-31,
8,
14,
-6,
20,
4,
-52,
-46,
54,
-2,
8,
-1,
0,
-56,
2,
50,
15,
-3,
-24,
12,
-47,
-7,
9,
23,
92,
8,
39,
0,
60,
-51,
10,
23,
-74,
60,
-19,
19,
51,
51,
-78,
17,
13,
-31,
43,
-14,
-4,
-6,
38,
-16,
1,
63,
15,
-42,
45,
19,
13,
12,
-7,
20,
11,
-54,
26,
11,
-4,
32,
16,
34,
-44,
-8,
39,
10,
7,
3,
2,
7,
47,
-32,
-33,
28,
-18,
-44,
-32,
-36,
-13,
-14,
32,
40,
-44,
3,
47,
15,
-37,
-21,
42,
-22,
0,
3,
-41,
10,
-39,
-44,
-2,
0,
21,
15,
0,
13,
16,
27,
4,
-2,
-63,
18,
13,
-64,
21,
-18,
42,
37,
20,
-22,
-85,
-35,
-14,
48,
-7,
96,
-29,
-34,
1,
-32,
-2,
16,
14,
65,
-48,
-5,
-7,
-86,
73,
27,
-40,
-2,
24,
-54,
-21,
-65,
-24,
3,
-19,
10,
29,
0,
37,
-11,
-36,
-28,
1,
-37,
31,
19,
-31,
-10,
-12,
43,
0,
29,
-23,
1,
-2,
30,
-2,
23,
22,
17,
-16,
24,
62,
0,
23,
34,
66,
17,
36,
35,
-28,
7,
-21,
41,
23,
-45,
34,
-20,
-15,
41,
13,
2,
-1,
28,
59,
-28,
58,
61,
-18,
37,
-27,
15,
5,
38,
-38,
-32,
1,
-35,
-7,
15,
-43,
-1,
7,
6,
-4,
-28,
24,
31,
12,
40,
7,
-32,
-5,
-6,
20,
-39,
17,
-24,
16,
-61,
25,
0,
-72,
5,
28,
-14,
-65,
36,
17,
-33,
11,
-27,
-25,
-35,
0,
-13,
23,
65,
44,
55,
-10,
31,
-38,
1,
11,
-6,
48,
-73,
-66,
-4,
-29,
15,
12,
-35,
32,
45,
-40,
-45,
20,
-44,
-15,
-23,
-11,
-26,
-31,
-3,
-1,
-34,
-2,
4,
-17,
41,
48,
-7,
28,
19,
-7,
24,
-35,
34,
6,
-27,
25,
13,
-26,
28,
-15,
0,
-31,
16,
5,
29,
10,
33,
-28,
59,
-20,
2,
48,
-19,
50,
-39,
-36,
41,
12,
-4,
-21,
-13,
-21,
-25,
46,
17,
17,
0,
48,
14,
-52,
6,
-59,
2,
13,
-4,
-38,
-36,
-23,
47,
2,
-27,
-42,
7,
42,
16,
20,
45,
12,
-26,
36,
-56,
3,
-22,
2,
-8,
11,
12,
-50,
-6,
-4,
59,
1,
-17,
-32,
14,
8,
28,
-47,
-2,
-49,
1,
22,
-20,
-4,
-17,
22,
-6,
25,
15,
74,
31,
16,
0,
15,
-22,
-24,
69,
38,
-34,
38,
-6,
26,
26,
-17,
33,
-17,
-21,
12,
26,
57,
9,
4,
-23,
-8,
-36,
22,
-10,
64,
6,
23,
73,
-10,
28,
-53,
9,
19,
-21,
23,
46,
3,
-1,
5,
-10,
-46,
32,
-22,
-18,
-15,
-18,
4,
-76,
21,
-5,
-9,
17,
9,
52,
-33,
-6,
-1,
17,
41,
-78,
-30,
-9,
-46,
12,
21,
0,
-45,
-51,
-4,
-43,
12,
34,
44,
62,
-19,
29,
-27,
29,
8,
16,
-25,
62,
-2,
8,
-54,
-36,
-31,
-35,
23,
2,
-49,
77,
-82,
31,
-21,
11,
30,
-11,
11,
35,
24,
5,
-3,
-42,
-33,
5,
-43,
-34,
19,
-4,
5,
19,
-58,
11,
-9,
-36,
-59,
-4,
1,
7,
-53,
-3,
42,
-1,
23,
52,
22,
56,
9,
-47,
-21,
-55,
-3,
-8,
20,
110,
26,
34,
-47,
16,
40,
-20,
-20,
21,
7,
21,
26,
-14,
-64,
-29,
15,
17,
35,
-29,
43,
-22,
-20,
35,
-18,
-16,
41,
17,
68,
1,
-33,
-27,
-25,
1,
-9,
-33,
3,
20,
30,
-23,
-23,
11,
-65,
55,
25,
-2,
-11,
0,
-9,
-13,
50,
0,
70,
-64,
-2,
-63,
-43,
31,
22,
13,
-11,
21,
-35,
55,
-12,
23,
-41,
-1,
1,
-26,
-15,
-18,
7,
100,
36,
-5,
-56,
42,
13,
-38,
-10,
15,
-100,
24,
-32,
46,
10,
-17,
-50,
28,
-14,
18,
17,
58,
-35,
-48,
30,
-11,
-3,
62,
45,
-12,
49,
11,
-15,
-95,
-19,
-25,
13,
-75,
59,
-39,
22,
-15,
-19,
0,
-6,
36,
-10,
34,
30,
-33,
15,
17,
18,
22,
-24,
-17,
-74,
55,
42,
-7,
-5,
17,
13,
16,
-57,
50,
-45,
22,
-44,
0,
43,
20,
-15,
0,
-9,
-24,
-10,
10,
-11,
-4,
13,
11,
0,
-17,
25,
-6,
19,
13,
18,
-3,
0,
32,
22,
12,
-3,
26,
17,
10,
-58,
0,
18,
-39,
-80,
36,
15,
29,
-46,
-53,
-11,
-25,
6,
-12,
22,
-16,
26,
-26,
-14,
45,
-53,
-10,
33,
-14,
9,
33,
-16,
39,
41,
-47,
0,
25,
-10,
-7,
22,
-8,
31,
7,
21,
2,
-12,
-13,
1,
-62,
24,
-52,
-28,
-10,
-14,
-15,
-2,
-49,
17,
5,
-65,
-22,
-34,
-4,
-10,
49,
-4,
17,
-51,
14,
-36,
-15,
-15,
9
] |
MR. JUSTICE STARK
delivered the opinion of the court.
Plaintiff brought this action to recover the sum of $4,000 and interest, alleged to be due her from the defendant.
The complaint alleges that the parties are sister and brother, the only children of Richard M. and Eunice Huggans; that the father, Richard M. Huggans, died intestate in the state of Illinois on July 9, 1902, leaving an estate consisting of both real and personal property; that under the laws of the state of Illinois the plaintiff and defendant, with their mother, were entitled to all of said estate, and that, upon the death of the mother, the plaintiff and defendant became entitled to the whole of said property and the increase and accumulations made thereto by their joint, efforts; that after the death of the father the plaintiff, defendant and their mother lived upon, took care of, managed and used said property without any division thereof; and that after the mother’s death the plaintiff and defendant, and the defendant’s family, continued to live upon and use the property in the same manner down to January 28, 1919, when all of the property, both real and personal, was sold by defendant for the sum of $40,000; that plaintiff was entitled to one-half thereof, but that defendant had paid to her only the sum of $16,000, and had refused, after demand, to pay her the balance of $4,000, and prays judgment for this amount.
The defendant’s answer admits the relationship of the parties, the death of the father and mother as alleged in the complaint, and avers that after the mother’s death “the parties hereto owned the land mentioned in the complaint as tenants in common and in equal shares”; that the real estate was sold by the parties and the full price therefor paid to the defendant, and that he had paid the plaintiff one-half thereof. Further answering the complaint the defendant alleges “that he paid the plaintiff one-half of the purchase price of the property sold by him; that the plaintiff herein has been fully paid for any and all moneys, sums or property coming to her by reason of her being the daughter of the said, Richard M. Huggans and Eunice Huggans and a sister of the defendant, and that the defendant herein does not owe the plaintiff any sum whatsoever or at all.” The answer further alleges that after the death of the father, the defendant was appointed as administrator of his personal estate, qualified and acted as such; that thereafter said estate was duly administered and a judgment duly given and made discharging him as such.
The affirmative allegations of the answer were denied by a reply. The cause was tried on December 18, 1923, and resulted in a verdict and judgment in favor of the plaintiff for the stun of $5,564.45 and costs. From this judgment the defendant has appealed, and by a bill of exceptions brings up all the proceedings had at the time.
So far as material to a determination of this appeal, the undisputed facts developed at the trial are as follows:
The father of plaintiff and defendant died intestate in the state of Illinois in 1902, leaving a farm with a small amount of personal property; the defendant was appointed administrator of the personal estate of the deceased, administered the same, distributed the property and was duly discharged from his trust. At the time of the father’s death, the parties were living in Sterling, Illinois, and about the year 1905 moved upon the farm with their mother, and resided there continuously down to the year 1919, with the exception of three years from 1907 to 1910, when they all lived together in Colorado. Until the time of her death in 1911, the mother lived with the parties during the periods of their residence upon the farm. The farm operations were carried on by the defendant. He planted, harvested and sold crops from year to year, bought and sold livestock and attended to the business generally. The proceeds arising from these transactions were put back into the business and used in the farming operations. Both plaintiff and defendant worked upon and about the farm, and there was never any agreement between them touching the matter of compensation which either was to receive, but each received support therefrom. Prior to the father’s death he had given the plaintiff and defendant a house and lot in the town of Sterling. This piece of property was sold by them for the sum of $2,650 and the proceeds therefrom put into the farming operations. At some time after 1910, the date of which is not disclosed in the testimony, the defendant, out of his own funds, derived from sources independent of the farming operations, contributed to the business of the farm between six and seven thousand dollars. There was never any settlement or accounting between the parties, and plaintiff never asked for one until the summer of 1919.
In 1918 the parties decided to sell the property in Illinois and remove to Montana, and to carry out this plan, in July, 1918, contracted to sell the farm for $32,000, which deal was consummated by payment of the money on March 1, 1919, the plaintiff receiving one-half of that amount, or $16,000. On January 28, 1919, a public sale of some personal property on the farm was held and netted $4,200. Prior thereto, in the fall of 1918, there had been sold from the farm 736 bushels of oats, 1,426 bushels of barley, and 23 hogs, all of which brought the sum of $3,075.37. Some time before this a $1,000 Liberty bond had been bought. In 1919 the parties removed from Illinois to Montana and have resided here since that time. When the defendant came to Montana he brought with him from the farm certain personal property, which need not be considered here since the plaintiff does not in this aetion claim any interest therein.
Plaintiff testified that it was always her understanding that if there were any profits from these farming operations they were to be equally shared between the parties, and that if there were any losses they were to be equally borne, although there had never been any agreement to that effect.
With the foregoing facts in the record, both plaintiff and defendant rested, and thereupon defendant moved the court to direct the jury to return a verdict in his favor and against the plaintiff upon the grounds, among others, that the complaint does not state a cause of action, that the plaintiff had not made out a case for the jury, and that the evidence would not support a verdict in her favor. The motion for a directed verdict was overruled.
While numerous errors are assigned by counsel for defendant, it will not be necessary to consider any of them except the one which raises the question of the court’s ruling on the motion for a directed verdict.
Defendant’s objection to the complaint is that it does not sufficiently plead the laws of the state of Illinois. In McKnight v. Oregon etc. Ry. Co., 33 Mont. 40, 82 Pac. 661, this court said: “It is an elementary rule that where one relies upon a statute of a sister state, such statute must be pleaded and proved as a fact.” Under the complaint it would have been necessary for plaintiff to prove the law of succession of the state of Illinois to establish the fact that after the death of the father and mother she and the defendant were entitled to the whole of the father’s estate. This she could not have done because the law was not sufficiently pleaded. (Bank of Commerce v. Fuqua, 11 Mont. 285, 28 Am. St. Rep. 461, 14 L. R. A. 588, 28 Pac. 291; In re Estate of Bruhns, 58 Mont. 526, 193 Pac. 1115.) But the allegation in defendant’s answer that after the death of the father and mother the plaintiff and defendant became the owners of the farm in equal shares, came to the aid of the complaint and rendered proof of the Illinois law of succession unnecessary (Lynch v. Bechtel, 19 Mont. 548, 48 Pac. 1112; Hamilton v. Great Falls St. Ry. Co., 17 Mont. 334, 42 Pac. 860.)
Likewise, plaintiff’s allegation that she was entitled to one- half of the increase and accumulations of tho. land, coupled with defendant’s affirmative plea that he did net owe the plaintiff any sum whatsoever and that he had been bully exonerated from any and all obligations and demands upon the part of the plaintiff, made an issue upon which the plaintiff was entitled to submit proof to the jury. The court did not err in denying the motion for a directed verdict upon the first ground stated.
The rule is established by numerous decisions of this court that when, in a case being tried to a jury, the evidence is undisputed and furnishes a basis for but one reasonable conclusion, the only question for determination is one of law, and the court may direct a verdict in favor of the party entitled to it. (Old Kentucky Distillery v. Stromberg-Mullins Co., 54 Mont. 285, 169 Pac. 734; Consolidated Min. Co. v. Struthers, 41 Mont. 565, 111 Pac. 152; Milwaukee Land Co. v. Ruesink, 50 Mont. 489, 148 Pac. 396.) With this rule in mind we proceed to an analysis of the facts in this case.
It is not disputed but that the plaintiff and defendant owned the farm in equal shares. Counsel for plaintiff say in their brief that she “claims no interest except in the land and the increase, accumulations, and profits thereof.” It is admitted that she received her full share of the proceeds derived from the sale of the farm itself, so that it is only left to determine whether the facts disclosed in the record show that the proceeds of the sales of the personal property and the $1,000 Liberty bond constitute “accumulations and profits” from the operations of the farm which should be divided between plaintiff and defendant.
Viewing the testimony in the light most favorable to the plaintiff’s theory, the parties were engaged in a joint enterprise in carrying on farming operations upon land which was owned by them in equal shares. She reposed confidence in the defendant to the extent of allowing him to conduct the business in his own way. It was her understanding that out of these operations she was to receive one-half of the profits, if there were any, and was likewise to bear one-half of any losses which might be sustained. For a long term of years the defendant planted, harvested and marketed various agricultural crops and bought and sold livestock, the proceeds from which were invested and reinvested in the necessary conduct of the business. According to the undisputed testimony the plaintiff and defendant sold a house and lot in Sterling for the sum of $2,650, the proceeds of which W'ent into the farming operations. It is also undisputed in the record that the defendant had put into these operations between six and seven thousand dollars of his own money, derived from sources wholly outside of the operations of the farm, and that each of the parties had contributed his services thereto without any agreement as to the compensation to be allowed therefor. Plaintiff’s only contention in this action is that she is entitled to one-half of the $7,275.37 which came from the sales of the personal property, and one-half of the $1,000 Liberty bonds, on the theory that they represent “accumulations and profits” of the land dur ing the time the farming operations were being conducted in the manner above set forth.
From a consideration of the foregoing undisputed facts the fallacy of the plaintiff’s contention is apparent. She stated that her reason for selecting the five items upon which she based her right of recovery was that they were the last sales of property made, apparently overlooking the fact that she only claimed one-half of the profits resulting from a business which had been carried on as a joint enterprise for so many years and failed to take into consideration any other matters.
Striking a balance of this joint enterprise from the figures as they appear in the record, it will be noted that the amount derived from these sales of personal property, plus the face . value of the Liberty bond, was $8,275.37 as the final result of the enterprise; but, to offset this, $8,650 of outside money had been put into it, thus indicating, according to the record, a net loss of $374.63, and of this $8,650 defendant had contributed $7,425, and plaintiff $1,325. The burden was upon the plaintiff to prove that “accumulations and profits” resulted from the operations of the farm and that she was entitled to a portion thereof. This she wholly failed to do, but, on the contrary, the undisputed facts disclosed that instead of profits resulting, an actual loss was sustained. Under these conditions the plaintiff was not entitled to have her case submitted to the jury, and the defendant’s motion for a directed verdict should have been sustained.
The judgment is reversed and the cause remanded to the district court, with directions to dismiss the complaint.
Reversed.
Mr. Chibe Justice Callaway and Associate Justices Rankin and Holloway concur,
(Resubmitted January 15, 1925.
Decided February 13, 1925.)
|
[
-48,
21,
-10,
-32,
7,
-34,
38,
-20,
56,
-49,
14,
-29,
2,
40,
32,
-16,
-5,
-66,
17,
-11,
19,
-1,
-3,
-77,
6,
23,
19,
23,
9,
-2,
-29,
1,
-36,
30,
11,
-36,
3,
-51,
-14,
23,
-16,
3,
10,
26,
31,
30,
-17,
-57,
54,
-29,
8,
-35,
5,
36,
-8,
-16,
-36,
38,
-35,
2,
59,
-61,
60,
12,
2,
38,
0,
-25,
-29,
-21,
53,
-20,
25,
19,
-33,
-8,
0,
-14,
3,
-14,
-27,
-49,
43,
13,
-27,
-40,
-38,
-37,
-45,
-13,
38,
61,
21,
43,
5,
1,
11,
39,
-58,
-3,
42,
-66,
-63,
62,
56,
4,
-24,
4,
3,
11,
-31,
13,
64,
0,
-15,
32,
-20,
-46,
-5,
18,
-23,
-35,
24,
-54,
-24,
40,
-26,
23,
91,
13,
34,
72,
-10,
22,
-31,
-48,
-15,
28,
8,
33,
-9,
-63,
-34,
-69,
27,
30,
-3,
-52,
17,
-70,
-27,
-2,
15,
7,
53,
-45,
6,
-28,
-2,
-15,
38,
-52,
30,
11,
-25,
-36,
-19,
2,
19,
25,
-23,
-62,
-32,
-24,
-7,
23,
-8,
-37,
-18,
20,
31,
77,
5,
-32,
13,
-77,
38,
-18,
52,
7,
56,
9,
-1,
27,
-70,
75,
36,
-34,
-24,
-35,
66,
-36,
13,
-16,
-9,
-16,
9,
-39,
-5,
-23,
46,
-2,
-32,
-14,
-104,
20,
10,
-20,
-83,
-5,
20,
-17,
-49,
26,
12,
-25,
36,
-60,
7,
0,
-46,
-22,
1,
16,
-25,
12,
-21,
-6,
-65,
-21,
35,
21,
-4,
-61,
59,
19,
-9,
15,
-40,
7,
-34,
2,
28,
48,
75,
20,
47,
33,
-2,
-52,
-26,
11,
-40,
48,
20,
-42,
12,
-75,
-31,
28,
-3,
-69,
12,
28,
15,
-31,
29,
1,
15,
22,
-13,
1,
-13,
-19,
48,
14,
2,
39,
-13,
47,
9,
-4,
40,
-51,
45,
57,
-27,
12,
55,
55,
-31,
15,
35,
10,
37,
37,
7,
23,
-8,
-11,
32,
46,
-5,
-2,
83,
93,
-63,
-2,
62,
72,
51,
-19,
-6,
55,
50,
-5,
-33,
-39,
31,
42,
6,
12,
15,
21,
-79,
-29,
43,
58,
22,
-55,
30,
38,
8,
-33,
22,
-15,
20,
2,
-14,
50,
-48,
-6,
-13,
50,
-19,
-5,
38,
20,
26,
60,
58,
18,
0,
-19,
5,
-17,
-16,
-58,
-20,
42,
12,
66,
-52,
-21,
6,
-8,
-28,
-52,
-3,
28,
10,
-24,
-3,
19,
25,
37,
-31,
-44,
20,
40,
-38,
38,
27,
-4,
-5,
-5,
-22,
-36,
-45,
-43,
-32,
-2,
1,
-29,
-50,
21,
-25,
7,
-26,
37,
-22,
-36,
29,
-12,
36,
19,
-25,
0,
26,
26,
16,
3,
84,
47,
-31,
-64,
-25,
1,
-35,
-46,
11,
86,
-15,
-10,
45,
-59,
-12,
-31,
3,
48,
29,
79,
33,
24,
13,
34,
-65,
2,
87,
1,
6,
34,
68,
4,
-13,
-5,
89,
-14,
18,
-23,
19,
1,
34,
55,
-7,
-27,
4,
7,
6,
73,
9,
73,
-3,
-69,
34,
14,
4,
-17,
-9,
19,
-34,
-28,
14,
-12,
-36,
36,
7,
-9,
-35,
-21,
65,
-41,
0,
23,
-25,
-80,
-9,
-14,
17,
-21,
-21,
40,
28,
12,
-61,
23,
-9,
-12,
0,
-20,
96,
33,
-16,
44,
5,
25,
5,
38,
68,
32,
1,
-16,
-60,
5,
-18,
11,
25,
9,
31,
-17,
-62,
-4,
-55,
-4,
-16,
-40,
44,
45,
-18,
-2,
5,
24,
14,
9,
-53,
23,
24,
7,
16,
1,
19,
-108,
-10,
56,
-6,
-18,
33,
-26,
4,
-26,
11,
22,
-81,
-21,
94,
-59,
3,
-53,
-8,
-38,
-56,
-13,
-36,
-62,
3,
-108,
-23,
-35,
-7,
-28,
-16,
0,
-16,
-32,
2,
47,
-7,
39,
18,
34,
32,
-17,
-19,
-23,
41,
-42,
-39,
-3,
10,
0,
-42,
-38,
-29,
-15,
-31,
-5,
-14,
-9,
44,
4,
30,
19,
-34,
9,
30,
-2,
-9,
4,
-12,
21,
82,
7,
-8,
-1,
19,
-2,
-52,
-20,
-22,
87,
46,
-34,
46,
79,
-16,
2,
-4,
39,
-27,
-16,
-21,
14,
-3,
27,
-25,
-19,
-34,
6,
-27,
-3,
-49,
35,
1,
-2,
-54,
-21,
13,
-29,
0,
12,
67,
-22,
-19,
26,
12,
-12,
3,
-26,
6,
9,
46,
-23,
-12,
16,
-19,
57,
20,
12,
-6,
12,
-1,
-2,
17,
88,
-53,
-9,
10,
-10,
-10,
-13,
-9,
-47,
-25,
41,
-51,
53,
47,
-17,
-3,
40,
-7,
8,
19,
0,
-67,
53,
-16,
-18,
-27,
-19,
-24,
-4,
-21,
-29,
-16,
47,
53,
-41,
6,
-35,
-2,
-45,
17,
-39,
7,
-25,
37,
20,
-19,
-24,
55,
22,
-10,
45,
-8,
43,
-3,
-5,
-32,
7,
-40,
55,
-26,
-16,
48,
-60,
4,
27,
26,
11,
14,
-12,
0,
41,
-13,
-50,
-22,
54,
13,
5,
5,
106,
11,
-7,
1,
-10,
-28,
-33,
-41,
-30,
-61,
-9,
-45,
30,
-10,
56,
-16,
13,
-13,
-12,
48,
-7,
-28,
-23,
-6,
-3,
53,
14,
8,
70,
-35,
42,
4,
-8,
-47,
10,
10,
-19,
-6,
-63,
10,
24,
28,
-6,
39,
7,
-8,
37,
27,
80,
-41,
-85,
-27,
-29,
-87,
1,
-17,
12,
6,
-20,
-5,
9,
1,
26,
6,
13,
-3,
26,
-59,
0,
-3,
-49,
-67,
8,
29,
25,
36,
10,
4,
-47,
36,
-10,
-68,
15,
50,
59,
-14,
-26,
-16,
11,
-20,
-65,
1,
-6,
-85,
-47,
-4,
-31,
21,
1,
41,
-47,
-36,
-19,
10,
-18,
6,
-28,
5,
-10,
-27,
17,
-28,
-15,
5,
-15,
4,
-24,
46,
3,
-42,
10,
-9,
-3,
-33,
84,
70,
-13,
-44,
-4,
-41,
34,
0,
0,
-17,
-51,
-20,
-72,
56,
-19,
-1,
-28,
-5,
-33,
-33,
-28,
7,
11,
-3,
12,
37,
-22,
-2,
-8,
-23,
51,
-21,
-70,
-23,
-16,
22,
-3,
-8,
22,
6,
-20,
32,
20,
-55,
36,
-37,
-25,
21,
7,
-11,
15,
-23,
-20,
-14,
-18,
25,
26,
20,
33,
-15,
19,
57,
-57,
78,
33,
14,
9,
55,
51,
-3,
-7,
-6,
-59,
-21,
73,
-8,
40,
-15,
26,
70,
-11,
11,
6,
74,
-54,
-35,
6,
-28,
-26,
-15,
-21,
71,
-9,
-33,
-72,
33,
-29,
-60,
32,
3,
-17,
-7,
-34,
-45,
-12,
42,
3,
38,
9,
5,
-16,
49,
30,
-1,
-26,
-60,
20,
20,
25,
-36,
-51,
-18,
72,
-23,
-20,
-55,
-16,
56,
8,
-43,
35,
0,
35,
-19,
-10,
0,
18,
-7,
13
] |
PEE CUEIAM.
Eelator’s application for writ of prohibition is denied.
|
[
-1,
-3,
-33,
-21,
30,
-9,
4,
59,
15,
48,
-14,
-29,
-22,
38,
17,
108,
96,
2,
30,
-61,
67,
31,
19,
-12,
-15,
-33,
-5,
73,
-14,
-19,
113,
-7,
-26,
39,
7,
-20,
-45,
18,
16,
22,
-27,
48,
19,
92,
20,
-13,
-50,
-16,
-51,
58,
-30,
-68,
-16,
-35,
-65,
-12,
43,
-53,
58,
28,
-66,
65,
30,
69,
7,
-32,
-66,
-27,
11,
51,
-4,
17,
10,
-5,
-67,
3,
-2,
60,
13,
35,
-19,
60,
6,
22,
-11,
63,
20,
24,
25,
-68,
41,
-17,
-68,
26,
-81,
27,
-31,
41,
-78,
-15,
-2,
40,
34,
-88,
3,
-7,
26,
69,
-29,
-11,
-8,
-25,
-16,
27,
62,
-50,
0,
22,
-41,
14,
-10,
-15,
57,
17,
-55,
-21,
0,
2,
1,
-16,
46,
47,
66,
62,
-43,
-26,
70,
45,
-25,
20,
-15,
37,
22,
-8,
20,
-81,
28,
51,
-4,
-43,
-43,
-4,
-58,
-18,
-56,
73,
65,
-4,
12,
-13,
3,
-18,
-12,
-9,
68,
-29,
10,
49,
1,
-6,
14,
-4,
-72,
-10,
-36,
-69,
-8,
12,
23,
15,
76,
6,
-59,
79,
78,
-9,
20,
-48,
46,
-35,
-24,
-15,
28,
34,
29,
1,
-19,
-1,
69,
-2,
-18,
32,
-75,
-33,
109,
-48,
-15,
-11,
23,
52,
-102,
-28,
0,
-11,
14,
-72,
16,
34,
59,
19,
-3,
-5,
-2,
-33,
-47,
33,
47,
41,
-46,
34,
-43,
-1,
-24,
-4,
68,
-95,
35,
-7,
-20,
43,
-63,
57,
-93,
9,
10,
-97,
-44,
82,
31,
-31,
29,
-33,
53,
-63,
-72,
18,
-85,
-58,
44,
2,
-15,
24,
10,
-16,
-82,
-59,
13,
46,
33,
17,
-14,
-50,
0,
37,
95,
-6,
8,
18,
55,
72,
-5,
29,
25,
29,
-14,
35,
27,
-20,
17,
-2,
-40,
19,
-20,
3,
-46,
25,
-19,
59,
27,
52,
13,
-3,
4,
80,
24,
-89,
65,
-31,
61,
-50,
20,
-11,
-49,
81,
19,
14,
0,
-33,
-85,
-20,
35,
-54,
-24,
52,
-55,
5,
-13,
72,
71,
47,
81,
3,
-51,
-18,
-74,
11,
31,
-73,
-53,
41,
-79,
30,
6,
66,
19,
1,
-41,
4,
32,
47,
-19,
-10,
29,
-61,
84,
20,
-9,
-55,
-18,
31,
-26,
-21,
-5,
44,
46,
-12,
-1,
57,
17,
49,
-17,
7,
-33,
-62,
59,
42,
-23,
-26,
-72,
-114,
-43,
-67,
80,
47,
4,
91,
56,
-41,
0,
8,
15,
50,
-44,
-27,
33,
16,
25,
29,
78,
54,
20,
-75,
-40,
13,
10,
-44,
6,
85,
-1,
-7,
-102,
-5,
-88,
29,
0,
92,
-15,
17,
33,
18,
-71,
-44,
-61,
13,
-9,
-12,
-81,
45,
71,
-17,
-10,
-23,
9,
-26,
-64,
-60,
51,
-32,
26,
2,
-5,
-45,
7,
-10,
34,
-6,
-48,
-48,
-94,
-1,
-71,
-10,
-22,
-20,
2,
4,
4,
110,
15,
5,
-55,
21,
-21,
-59,
21,
4,
-33,
-26,
-58,
-31,
41,
-2,
-29,
-105,
-88,
28,
0,
47,
-35,
30,
-25,
50,
37,
-82,
62,
0,
9,
-34,
-37,
5,
2,
-14,
46,
56,
-60,
-39,
1,
-40,
23,
62,
-25,
21,
-75,
17,
-27,
38,
22,
38,
-9,
-35,
30,
35,
-8,
-63,
1,
13,
-53,
58,
0,
-28,
-9,
-30,
17,
5,
15,
32,
-34,
-72,
44,
73,
-40,
-20,
-72,
-13,
-2,
-77,
110,
33,
-33,
59,
49,
-41,
-8,
-17,
4,
81,
-52,
-23,
15,
-8,
-70,
65,
-53,
47,
-16,
37,
-3,
-40,
-29,
-13,
-4,
-6,
-11,
-1,
-51,
11,
37,
42,
-2,
40,
-39,
24,
-4,
-10,
7,
-29,
41,
-40,
21,
-34,
-27,
54,
35,
-2,
-22,
-23,
-109,
-7,
-89,
-36,
7,
2,
-6,
-28,
5,
37,
-58,
10,
-33,
48,
-8,
44,
62,
60,
-27,
9,
11,
-9,
-4,
76,
59,
103,
-21,
14,
-9,
20,
7,
53,
49,
27,
105,
87,
-77,
4,
2,
2,
-46,
-12,
81,
40,
-69,
34,
25,
-62,
-10,
65,
-64,
28,
-12,
-25,
59,
-128,
4,
-32,
14,
-6,
8,
-45,
6,
49,
20,
11,
-23,
-23,
-9,
-33,
-70,
-60,
45,
-31,
-72,
31,
-24,
57,
-79,
-33,
17,
38,
-32,
52,
-5,
-15,
15,
-15,
-28,
-31,
34,
-1,
4,
23,
26,
-52,
46,
-94,
-16,
-30,
37,
-3,
-35,
50,
74,
-14,
10,
35,
-43,
104,
-73,
0,
-35,
0,
49,
-72,
-17,
3,
-67,
-20,
10,
-116,
-45,
-17,
-19,
-6,
22,
-14,
98,
-68,
20,
8,
73,
-13,
-34,
-14,
8,
45,
-13,
-8,
2,
28,
44,
-35,
13,
4,
117,
8,
30,
-33,
33,
-12,
50,
-7,
-59,
-21,
-43,
-100,
49,
-44,
-13,
-50,
71,
-92,
-1,
-16,
-85,
60,
-10,
-14,
-9,
-23,
37,
-5,
4,
8,
-5,
8,
-44,
86,
-3,
-16,
103,
57,
33,
-68,
17,
-26,
-2,
37,
-85,
-50,
47,
38,
28,
-48,
-80,
24,
34,
29,
-25,
29,
13,
-62,
2,
8,
-9,
26,
-15,
0,
27,
11,
52,
18,
-28,
-99,
27,
8,
29,
-20,
-32,
-2,
-47,
-18,
1,
-54,
-8,
-48,
23,
66,
-22,
-19,
34,
-20,
-4,
33,
7,
17,
7,
0,
10,
34,
-46,
-17,
-2,
-3,
63,
0,
-67,
-31,
46,
-58,
17,
-37,
-8,
23,
-9,
38,
-43,
-22,
21,
-21,
-7,
40,
18,
-71,
-22,
74,
-21,
20,
63,
-31,
11,
64,
69,
-37,
47,
-21,
-3,
-57,
93,
-29,
-40,
47,
87,
-64,
31,
-8,
-16,
58,
-7,
21,
24,
39,
22,
-3,
30,
-33,
34,
-18,
-32,
-9,
-12,
2,
83,
3,
0,
46,
28,
-44,
-9,
-2,
-15,
-34,
-24,
-86,
-2,
-14,
-73,
-76,
49,
-5,
10,
-40,
-15,
-22,
26,
-13,
37,
-91,
-87,
74,
-57,
-8,
24,
3,
17,
-24,
-47,
-28,
-53,
14,
60,
-89,
8,
6,
-19,
44,
-78,
-21,
11,
31,
12,
-25,
-3,
90,
14,
-14,
-16,
-35,
-31,
-3,
82,
4,
-23,
-51,
33,
22,
-73,
-34,
22,
45,
-4,
-3,
48,
79,
-94,
85,
-60,
49,
32,
116,
37,
-20,
-46,
70,
43,
16,
-67,
44,
-31,
-1,
19,
-35,
32,
21,
-63,
-77,
2,
-41,
-21,
78,
22,
-32,
-39,
56,
-44,
19,
14,
39,
-55,
30,
-26,
23,
34,
21,
-18,
-2,
53,
55,
15,
-35,
19,
-41,
-21,
2,
48,
21,
-1,
-11,
32,
20,
-47,
9,
-16,
-41,
-25,
-31
] |
MR. JUSTICE HASWELL
delivered the opinion of the court.
This is an appeal by an injured employee from the findings of fact and conclusions of law of the workers’ compensation court in favor of the employer and its insurer. In substance, the workers’ court held that the injured employee’s proper category of disability was “temporary total disability”; that his compensation was fixed in amount and duration by such classification until further order; that a statutory offset for social security disability applied to his workers’ compensation benefits; that he was not entitled to a lump sum settlement from the insurer; and, that his workers’ compensation benefits were to cease when he attains the age of sixty-five.
The relevant facts are shown by the record: John Kenneth Skukrud, claimant, was injured in an automobile accident in October 1972, while in the course and scope of his employment with Gallatin Laundry Company, Inc., employer. Employer was enrolled under Plan II of the Workmen’s Compensation Act as it existed in 1972; Employers Commercial Union Insurance Com pany was its insurance carrier. Claimant was single with no dependents at the time of the accident.
As a result of his injury, claimant received chiropractic treatments and medical attention. He continued to work until March 8, 1973, when he was referred to an orthopedist. Thereafter he was hospitalized and received surgery for a herniated cervical disc and fusion of cervical vertebrae, and was twice again surgically treated for vertebrae fusion. Claimant has not worked since March 8, 1973, and continues to receive frequent medical attention.
Claimant has been receiving federal social security disability benefits from April 1973, to the present.
In May 1975, claimant made settlement with the United States government in compensation for the injuries he sustained in October 1972. The insurer has been partially satisfied as to its sub-rogation rights under section 92-204, R.C.M.1947, as it existed in 1972. There is no dispute as to insurer’s continuing right to subrogation to claimant’s settlement.
Insurer has been paying biweekly compensation to claimant effective since March 1973, based upon the classification of claimant’s injury as “temporary total disability”. Initially these payments were $50 per week, then corrected to $55 per week. However, when insurer established that claimant was receiving social security disability benefits, it reduced its weekly workers’ compensation benefits by offsetting fifty percent of his weekly social security benefit against the payments made under workers’ compensation. This was done pursuant to section 92-701, R.C.M.1947 as it existed in 1972 (Sec. 1, Ch. 174, Laws 1971), which section pertained solely to compensation for injury- producing temporary total disability. The effect was to reduce claimant’s workers’ compensation benefits by almost half. As a result of the higher payments made to claimant prior to commencement of the offset reduction, insurer asserted it had overpaid claimant.
In July 1975, the insurer requested a hearing before the workers’ compensation court to resolve factual and legal disputes which had arisen between claimant and insurer. Hearing was had in September 1975 before Workers’ Compensation Judge William E. Hunt in Bozeman, Montana. On March 2, 1976, the workers’ court issued its findings of fact and conclusions of law which held as hereinbefore set forth. As no judgment or order was forthcoming claimant appealed from the findings and conclusions to this Court pursuant to section 92-852(2), R.C.M.1947.
Claimant presents five issues for review:'
1. Did the workers’ court err in finding that claimant’s injury resulted in temporary total disability rather than permanent total disability?
2. Did the workers’ court err in its determination of claimant’s pre-injury earnings?
3. Did the workers’ court err in refusing to order the balance of workers’ compensation payments to be made in a lump sum settlement?
4. Did the workers’ court err in holding that claimant’s workers’ compensation benefits shall cease absolutely when he attains the age of sixty-five years?
5. Do the various social security offset reduction provisions of Montana’s workers’ compensation laws violate the state and federal constitutions?
A determination of issues one through four requires this Court to review the record, findings and conclusions of the workers’ court. This is the first appeal from the workers’ compensation court to be reviewed by the Supreme Court. The law as it applied to judicial review of Workmen’s Compensation Division decisions prior to July 1, 1975 is summarized in Miller v. City of Billings, 171 Mont. 91, 555 P.2d 747, 749:
“The findings and decision of the Workmen’s Compensation Division are presumed to be correct and if supported by credible evidence must be affirmed. Section 92-822, R.C.M.1947 (since repealed); Birnie v. United States Gypsum Co., 134 Mont. 39, 44, 328 P.2d 133; Hurlbut v. Vollstedt Kerr Co., 167 Mont. 303, 538 P.2d 344, 347. The district court must affirm the Division order if the evidence does not clearly preponderate against its findings. Becktold v. Ind. Acc. Bd., 137 Mont. 119, 125, 350 P.2d 383; Stordahl v. Rush Implement Co., 148 Mont. 13, 417 P.2d 95; 3 Larson’s Workmen’s Compensation Law, § 80.20. Section 92-834, R.C.M.1947 (in effect in 1966, but since repealed), provided the district court, may upon good cause shown admit additional evidence. Section 92-835, R.C.M. 1947 (in effect in 1966, but since repealed), provided that if this additional evidence is substantial, the district court may be justified in reversing the Division even though the evidence adduced before the Division clearly preponderates in favor of its order. Murphy v. Industrial Accident Board, 93 Mont. 1, 16 P.2d 705; Hurlbut v. Vollstedt Kerr Co., supra.
“Where the appeal to the district court is heard only on the Division’s certified record or when the district court permits additional evidence to be introduced that is not important or adds nothing new to the case, the court is bound by the same rule of appeal which applies where the appeal is heard only on the certified record and the Division is entitled to a presumption the case was decided correctly. Kelly v. West Coast Construction Co., 106 Mont. 463, 78 P.2d 1078; McAndrews v. Schwartz, 164 Mont. 402, 523 P.2d 1379; Erhart v. Great Western Sugar Co., 169 Mont. 375, 546 P.2d 1055.
See also: Kimball v. Continental Oil Co., 170 Mont. 86, 550 P.2d 912.
Under the law as it now exists, this Court directly reviews the decision of the workers’ court, section 92-852(2), R.C.M. 1947. The workers’ court proceedings are administrative in nature and quasi-judicial, sections 92-852(1) and 82A-1016, R.C.M.1947. The appropriate scope of this Court’s review should be no different than it was under former law as expressed in above cited cases; that is, workers’ court decisions will not be overturned if there is substantial evidence to support its findings and conclusions.
With the foregoing in mind, we discuss the issues.
With respect to claimant’s injuries, the workers’ court made this finding:
“* * * That the medical evidence viewed in its totality and particularly the report of July 7, 1975, from Dr. Robert C. Wood, neurosurgeon, with the Billings Clinic of Billings, Montana, claimant’s Exhibit 5, wherein Dr. Wood states:
“ ‘It is my impression this man has the following diagnosis: 1. Postoperative anterior cervical disc removals and fusions x 3 with chronic residual neck and right arm pain. 2. Secondary severe cervical spine limitation of motion. 3. Functional weakness of both arms.
“ ‘This man is permanently disabled by his disease and his operations. These problems have rendered this man 100 per cent permanently and totally disabled. Solidifying this patient’s disability is his emotional reaction to the problem as he is obviously convinced in his own mind that he has been totally disabled and he will ever be so.
‘I do not think there is a ghost of a chance of ever returning this man to gainful employment. He is certainly not an operative candidate due to his functional augmentation of his present problems; and, if anything, he has had more than his share of surgery already.’
“Place claimant’s disability under the category of ‘temporary total disability,’ for a period of time not to exceed 300 weeks from date of injury, as provided by Section 92-701, R.C.M.1947, as it provided on October 14, 1972, * * *. That the emotional reaction complication to claimant’s disability has not been determined to be permanent in nature and not subject to psychiatric treatment. That until this showing has been made to the satisfaction of this Court by either the claimant or the insurance carrier the proper classification for claimant’s disability should be ‘temporary total disability’ * * * ”
The record, including Dr. Wood’s report, does not sustain this finding. All that is necessary is to read the quoted portion of Dr. Wood’s report. Dr. Wood was retained by insurer to examine claimant, and his “Attending Physician’s” report unequivocally classified claimant as “10091”, “permanentlv” disabled. Claimant’s orthopedic surgeon stated several times that claimant should be considered unemployable for any kind of work. There is no evidence to contradict these matters of record. The fact that claimant’s “emotional reaction” to his condition is “solidifying” to his problem does not warrant the workers’ court to find that the problem is temporary; there is simply no evidence which supports any conclusion other than that claimant was found by insurer’s own choice of doctor to be permanently totally disabled as a result of his injuries.
Because the workers’ court erred in placing claimant in the category of “temporary total disability”, its conclusion of law number 2, that claimant’s disability was governed by section 92-701, R.C.M.1947, is error. At the time of claimant’s injury, section 92-702, pertaining to permanent total disability, was in effect and is controlling in this case. Upon remand, the workers’ court shall apply the provisions of section 92-702, as it existed in 1972, to determine claimant’s proper compensation rate.
Claimant’s second issue concerns the workers’ court determination of claimant’s pre-injury earnings. Inasmuch as wo have held that former section 92-702 applies to his rate of compensation, this question becomes moot. Under either claimant’s or insurer’s calculations, claimant is entitled to the same statutory maximum of compensation for the 500 week period provided in section 92-702, R.C.M.1947, in 1972.
Claimant’s third issue concerns his request in writing that he be awarded a lump sum settlement for the balance of his compensation, as authorized in former section 92-715, R.C.M. 1947. The workers’ court found claimant had demonstrated no financial need for such settlement. In view of the fact that section 92-715 vested the Industrial Accident Board (now the Workers’ Compensation Division) with discretion in matters of settlement, and there is substantial evidence to support the court’s finding, we see no reason to reverse the workers’ court finding; if good cause later appears for such a settlement, the Workers’ Compensation Division has continuing authority to so order.
Claimant’s fourth issue concerns the workers’ court decision that when claimant attains age sixty-five in January 1977, and his social security disability payments automatically convert by operation of federal law into equal social security retirement payments, claimant is deemed by federal law. to have completely withdrawn from the regular labor market and is therefore no longer entitled to any workers’ compensation benefits under state law. That is, removal from the labor market terminates the state’s obligation to compensate one who is no longer a member of the federally recognized labor force; or, as insurer states in its brief, “compensation ceases when the fact of inability to earn in the open labor market ceases.” It is difficult to determine from the workers’ court findings or from the insurer’s brief and argument whether this position is related to the statutory offset for social security benefits under section 92-701, R.C.M.1947, or whether it is urged as a general proposition relating to all workers’ compensation beneficiaries. In either case, however, it is clear the workers’ court erred. No authority is cited, and we have found none, for the flat proposition that workers’ compensation benefits terminate upon retirement.
Insurer asserts this practice is suggested by the statutory framework of Montana’s Workers’ Compensation Act because workers’ compensation is compensation for loss of earning capacity and retired persons do not have earning capacity. The superficial logic of this argument is overcome by the specific statute applicable in the instant case. Section 92-702, R.C.M. 1947, as effective in 1972, provided the rates of compensation for permanent total disability and stated in part:
“* * * Such compensation shall be paid during the period of disability, but for the period not exceeding five hundred (500) weeks from the date of injury. * * *”
No provision is made for early cessation of benefits, if the injured employee reaches retirement age before the running fo the 500 week period. Obviously, the legislature would have included such an important provision if it had so intended the statute to operate. In construing a statute, courts cannot insert what has been omitted. Section 93-401-15, R.C.M.1947; Dunphy v. Anaconda Co., 151 Mont. 76, 438 P.2d 660 and cases cited therein. Therefore, claimant’s workers’ compensation benefits shall not terminate when he attains the age of sixty-five.
Finally, claimant asks this Court to rule on the constitutionality of the social security offset reduction provisions of sections 92-701 (now repealed), 92-701.1 and 92-702.1, R.C.M. 1947. We have determined that section 92-701 is inapplicable to this case; and, the latter two sections were not enacted until after claimant’s injury and were not relied upon by the workers’ court. Therefore, the constitutional question is not in issue and this Court will not decide such questions when not necessary to its decision. Taylor v. Taylor, 167 Mont. 164, 537 P.2d 438; Montana State University v. Ransier, 167 Mont. 149, 536 P.2d 187, and cases cited therein.
This case is remanded to the workers’ court with directions to enter a finding to the effect that claimant is permanently totally disabled-, and that his compensation shall be paid over a period of 500 weeks from the date of injury. There shall be no reduction of workers’ compensation benefits for social security payments received by claimant since April 1973, and benefits shall not cease when claimant attains age sixty-five. Past payments to claimant shall be adjusted in conformity with the law.
Reversed and remanded with directions.
MIL CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES DALY and JOHN C. HARRISON and The HON. JACK L. GREEN, District Judge, sitting for Mr. Justice Castles, concur.
|
[
-28,
-13,
-23,
35,
34,
2,
9,
-57,
24,
-19,
-3,
43,
64,
-29,
38,
20,
-6,
33,
-5,
61,
8,
-41,
-18,
33,
-21,
-42,
5,
-24,
-32,
35,
11,
6,
5,
-21,
-89,
39,
-19,
6,
-24,
-32,
-24,
12,
-56,
-34,
5,
25,
75,
37,
6,
4,
55,
1,
-21,
-47,
57,
19,
15,
9,
-36,
33,
-22,
-19,
105,
-3,
39,
-30,
50,
17,
-3,
-8,
-50,
1,
22,
-20,
-23,
-27,
48,
46,
-15,
-36,
-2,
-40,
-57,
-33,
-52,
67,
-28,
47,
2,
-11,
-7,
-61,
16,
20,
-61,
16,
-12,
30,
-18,
80,
-52,
17,
12,
28,
-2,
-16,
43,
24,
22,
70,
-9,
33,
13,
40,
4,
3,
46,
5,
8,
71,
-10,
-41,
-2,
19,
-8,
21,
36,
26,
-9,
48,
5,
16,
8,
12,
-5,
-7,
-29,
-20,
31,
2,
-13,
-25,
-16,
-47,
-36,
92,
-18,
-14,
55,
-35,
54,
-16,
95,
-49,
5,
-25,
-64,
17,
32,
14,
4,
-22,
16,
21,
-7,
2,
39,
15,
25,
23,
-9,
-53,
48,
-108,
-1,
26,
49,
-23,
-41,
55,
-74,
-8,
-17,
24,
-9,
-37,
23,
-4,
91,
8,
-14,
7,
-55,
2,
-29,
-26,
60,
-12,
17,
22,
47,
-35,
-9,
30,
40,
56,
-13,
32,
42,
27,
47,
-61,
58,
-48,
16,
46,
26,
0,
-81,
-41,
16,
14,
-38,
-37,
-28,
7,
-32,
-36,
56,
-54,
-51,
5,
37,
40,
6,
-13,
-37,
-48,
25,
8,
5,
-17,
-33,
-22,
-49,
-34,
2,
-14,
15,
-19,
-18,
30,
-1,
16,
0,
-13,
-15,
23,
-35,
-49,
-11,
76,
-11,
30,
69,
-30,
18,
26,
4,
-24,
-20,
2,
98,
-32,
-8,
-59,
4,
36,
56,
-27,
-36,
-4,
-7,
-36,
-57,
-9,
59,
-44,
-42,
29,
63,
-40,
22,
52,
-2,
-44,
3,
7,
-29,
63,
-26,
5,
-25,
0,
25,
39,
-86,
31,
9,
-7,
9,
-31,
69,
-70,
25,
1,
-73,
2,
-10,
-23,
6,
84,
-18,
-10,
8,
-6,
-67,
-24,
-44,
-32,
-36,
28,
-1,
53,
15,
-47,
-4,
48,
3,
-2,
-19,
-9,
56,
-30,
-74,
21,
41,
2,
39,
25,
-42,
31,
44,
-24,
15,
64,
38,
-58,
-48,
11,
38,
0,
-21,
-24,
-8,
-17,
7,
12,
-31,
15,
17,
0,
50,
-20,
-36,
-52,
-2,
-6,
-8,
6,
59,
2,
44,
-63,
-40,
27,
-43,
-46,
11,
4,
-83,
-24,
24,
69,
-54,
37,
-17,
-21,
-41,
43,
-1,
-14,
-29,
12,
53,
-43,
41,
-18,
-54,
-3,
-59,
-1,
-18,
-67,
-2,
35,
80,
-25,
-51,
-43,
41,
-1,
-4,
-20,
37,
-15,
8,
39,
-35,
-4,
-7,
-3,
7,
-36,
-30,
-72,
-7,
-36,
-19,
0,
9,
-10,
-17,
-15,
11,
57,
-34,
17,
36,
-31,
30,
-34,
77,
62,
11,
10,
13,
-46,
-24,
-22,
-27,
7,
-28,
42,
75,
-31,
-11,
9,
26,
10,
44,
3,
37,
-15,
39,
-28,
-24,
-47,
24,
-44,
-11,
-31,
32,
16,
-58,
-4,
7,
-25,
-19,
26,
56,
-18,
-38,
-30,
3,
-37,
-24,
42,
-37,
-36,
-9,
-16,
22,
-16,
61,
-48,
-13,
-72,
5,
-34,
-10,
-9,
11,
93,
11,
4,
-17,
-12,
15,
-3,
3,
-20,
-18,
-28,
28,
-53,
-62,
34,
19,
-85,
-36,
9,
15,
10,
15,
2,
25,
18,
-46,
-77,
10,
-19,
-34,
-18,
20,
-61,
10,
9,
73,
37,
32,
-87,
-6,
25,
57,
-48,
50,
32,
32,
-30,
-22,
19,
10,
45,
-48,
33,
14,
20,
-15,
-31,
-74,
50,
-8,
-29,
-8,
-10,
-2,
-16,
0,
-22,
16,
-9,
52,
-2,
-77,
-38,
-22,
6,
-31,
-2,
54,
-28,
7,
25,
46,
-20,
-13,
-18,
-50,
27,
14,
-43,
-38,
-14,
59,
52,
1,
7,
73,
-22,
-46,
58,
-30,
-82,
-26,
-35,
-19,
54,
65,
14,
47,
59,
39,
13,
-37,
-8,
-59,
4,
-3,
-6,
35,
-28,
-13,
-17,
51,
24,
14,
52,
-8,
26,
0,
1,
114,
90,
-40,
-48,
30,
-10,
-25,
-46,
1,
61,
-68,
-21,
-35,
-20,
18,
12,
-75,
20,
-57,
48,
32,
-15,
-3,
24,
4,
-24,
-53,
-18,
40,
75,
51,
-2,
90,
-29,
2,
-38,
-12,
13,
-19,
-35,
47,
99,
-34,
7,
18,
-48,
16,
-68,
0,
43,
-30,
2,
-7,
27,
17,
-40,
-2,
26,
-19,
5,
-40,
-20,
-3,
100,
-58,
-22,
9,
32,
9,
-50,
-19,
-25,
60,
92,
7,
-89,
-59,
-9,
-62,
-30,
-44,
6,
-12,
67,
5,
-16,
-34,
-8,
-25,
3,
-7,
35,
-49,
-52,
3,
16,
-9,
-10,
75,
35,
11,
60,
24,
-13,
-50,
1,
0,
-11,
-31,
-38,
5,
-50,
6,
-37,
0,
8,
-7,
-8,
12,
-39,
-1,
74,
28,
-1,
-4,
4,
-29,
-34,
-41,
80,
34,
-16,
-16,
-26,
68,
-45,
-83,
30,
12,
-16,
29,
9,
-56,
-51,
-21,
2,
-2,
7,
-50,
26,
6,
-77,
23,
-23,
51,
36,
6,
-7,
-21,
37,
0,
-8,
23,
-16,
64,
-46,
54,
-31,
-21,
-69,
81,
38,
-35,
-6,
35,
24,
-10,
27,
6,
36,
-36,
-34,
65,
-78,
-76,
17,
40,
19,
-65,
25,
-53,
63,
10,
51,
48,
-20,
2,
-35,
71,
11,
-22,
24,
66,
-2,
-6,
30,
22,
14,
-6,
-88,
-34,
53,
5,
0,
20,
-63,
52,
13,
43,
-13,
-20,
59,
16,
16,
-63,
19,
-18,
-12,
-3,
38,
49,
-21,
-38,
-2,
-31,
14,
57,
-10,
8,
-39,
-3,
0,
-1,
32,
36,
1,
0,
9,
-23,
-15,
6,
-37,
-36,
-30,
-6,
72,
76,
-25,
20,
21,
5,
50,
18,
27,
12,
-54,
-48,
26,
-39,
4,
43,
1,
51,
25,
30,
33,
8,
20,
-27,
-46,
9,
-14,
-17,
-24,
5,
50,
-42,
0,
23,
-10,
-18,
46,
55,
11,
15,
-22,
-33,
-12,
-1,
-9,
-11,
24,
-76,
-40,
-19,
-45,
40,
45,
29,
16,
-1,
22,
-4,
-53,
2,
-4,
52,
4,
-32,
19,
-50,
45,
38,
-24,
46,
-40,
-34,
-46,
50,
-50,
-15,
-52,
-9,
4,
1,
-11,
24,
-62,
0,
-21,
-38,
48,
4,
-17,
7,
-32,
-30,
-24,
-8,
22,
-27,
51,
16,
-29,
46,
3,
38,
13,
-18,
5,
6,
-6,
-28,
11,
-7,
-9,
67,
11,
58,
9,
-4,
-21,
53,
61,
-83,
-34,
-23,
-30,
30,
-18,
34,
-25
] |
ME. JUSTICE SMITH
delivered the opinion of the court.
This action was begun in Missoula county by W. H. Charnley to foreclose a mechanic’s lien. After trial Charnley died, and Mills, as his administrator, was substituted. In discussing the case we shall refer to Charnley as the plaintiff. The complaint alleges that the defendants Lacasse were the owners of certain lots in the city of Missoula; that they made a contract with Olsen & Johnson to erect a building thereon; that the latter contracted with Charnley to do the lathing and plastering, for which they promised to pay him at the rate of thirty-six cents per square yard; that Charnley agreed to furnish all materials used by him ; that Olsen & Johnson should advance the money necessary to pay for materials as needed, the remainder of the contract price to be paid for as the work progressed; that, if Olsen & Johnson could purchase materials cheaper than could Charnley, they were to do so, and give him the benefit of such reduction in price; that they were to do all hoisting of materials without expense to Charnley, and were to pay him the reasonable value of all extra work; that plaintiff did 17,087 yards of plastering and performed extra work, “ all of which amounted to the sum of $6,432.42, no part of which has been paid except the sum of $3,740.13, leaving a balance due of $2,692.29, for which amount plaintiff filed and claims a lien upon the building. We shall refer to the defendants collectively. For answer they admitted that Olsen & Johnson entered into a contract with Charnley to lath and plaster the building at thirty-six cents per square yard; alleged that Charnley was to furnish all material and labor, including water necessary for mixing plaster; denied that Olsen & Johnson were to pay for hoisting materials, but admitted that plaintiff was to have the use of the elevator for that purpose. They denied the amount of work claimed to have been done by him; alleged that the total amount earned under the contract was $5,439.67, on which they had paid in cash and materials the sum of $5,960.50, being an overpayment of $520.83, for which they demand judgment by way of counterclaim. Plaintiff by reply denied all new matter in the answer. The cause was tried to the district court, sitting with a jury. A general verdict for plaintiff in the sum of $1,348 was rendered, whereupon the court made certain so-ealled findings of fact which, instead of being of any assistance to this court, are mostly conclusions of law and fact, and entered judgment in favor of the plaintiff for the amount of the verdict, including costs and attorney’s fees. From the judgment and an order denying a new trial, defendants have appealed.
1. Appellants’ first contention is that plaintiff’s notice of lien is fatally defective, in that it fails to state under oath that it contains a just and true account of the amount due him after allowing all credits, as provided by section 7291, Revised Codes. As a matter of fact, the notice of lien sets forth the contract between the parties, the amount of work done, including extra work, and the amount of materials furnished, in considerable detail. It gives the total amount of credits or moneys paid thereon, and states the balance claimed to be due. It also states “that items are correct.” It is signed by Charnley, and bears a jurat reciting that it was subscribed and sworn to before Harry H. Parsons, a notary public. We think it is sufficient. (Black v. Appolonio, 1 Mont. 342; McGlauflin v. Wormser, 28 Mont. 177, 72 Pac. 428; Neuman v. Grant, 36 Mont. 77, 92 Pac. 43; 27 Cyc. 197.)
2. The second contention is that the evidence is insufficient to justify the findings,- and that the amount found due the plaintiff is excessive.
At the trial, Mr. Tolan, one of the defendants’ attorneys, made this statement: “There is no doubt that the plaintiff -will testify that the items set out in this mechanic’s lien are correct; that is, with reference to the extra work and all about it.” This statement was accepted by the court and opposing counsel, and makes out a prima facie ease on the part of the plaintiff for the full amount claimed by him. It is assumed in the brief of appellants that the amount claimed for lathing and plastering is correct, and it is then said: “By this assumption respondent would have as the total amount earned by him under the contract and for extras and the other items charged in his lien the sum of $6,432.42.” This amount, then, was fixed at the trial, and the only question is: What credits should have been allowed to the appellants ?' It will be noted that the jury returned a verdict for about one-half the amount claimed by Charnley. It is impossible to ascertain from the record what particular items of credit they allowed or disallowed. Had proper findings been made in that regard, great assistance would have been afforded this court. Appellants offered in evidence sixteen bank checks drawn by them to the order of plaintiff and others, aggregating $3,587.35, all of which are now claimed to be undisputed credits on their account. To this statement, however, the respondent does not agree. Charnley testified that he began work about January 1, 1909, and finished about April 1, of the same year; while Olsen declared that material was delivered at the building for him in the latter part of November or 1st of December. It was agreed that plaintiff had performed work for the defendants Olsen & Johnson in the fall of 1908 on two certain other buildings known as the University Library and the Deschamps building. Charnley testified that Olsen & Johnson were indebted to him for work and labor on these other buildings, and that he gave them credit on these accounts for all moneys paid and materials furnished by them which were not credited by him upon the Lacasse building contract. This was his general statement, repeated many times during the trial. He claimed the right to so apply the payments. No effort was made to show the amounts actually due him on these other contracts.
We have never examined a less satisfactory record, and feel that a proper disposition of the case would be to remand it for a new trial, which action would be taken were it not for the fact that Charnley is dead, and such a course would perhaps result in placing his representative at a disadvantage. And we are also reluctant to order a new trial in view of the circumstance that the appellants here had it in their power to clear matters up in the court below by requesting a special verdict and specific findings of fact. It is impossible from the record to tell whether Charnley had any credit balance in his favor on either the university library building contract or the Deschamps building. He admitted receiving two carloads of cement from Olsen & Johnson. As to this cement, which he claims was sixty tons at $11 per ton, he first said that he gave credit for it on the university library work and the Deschamps building. Afterward he said that he allowed it on “this Lacasse job contract,” and still later he testified that he “did not give them credit for the amount paid for the plaster on his job in the Lacasse building.” The court ruled, as we understand it, that Olsen & Johnson were entitled to credit for the whole of it in any event.
Having carefully studied the evidence, we are unable to ascertain how the court and jury arrived at the amount awarded the plaintiff. His counsel offers no figures to justify it. Consequently it is of no significance. We shall therefore dispose of the case in a manner which seems to us substantially correct, giving the respondent the benefit of the presumption that all contested questions of fact were decided in his favor.
Charnley testified that he had credited Olsen & Johnson with the following cash payments:
1. Balance overdrawn on previous contracts........$ 380 38
2. January 9, 1909, Cash....................... 250 00
3. January 6, 1909, “ 300 00
4. January 23, 1909, “ ....................... 600 00
5. January 30, 1909, “ ....................... 282 50
6. February 1, 1909, “ ....................... 200 00
7. February 13, 1909, “ ....................... 200 00
8. February 20,1909, “ ....................... 200 00
9. February 27, 1909, “ ....................... 100 00
10. April 3, 1909, “ ....................... 135 00
11. March 22, 1909, “ 175 00
12. January 31, 1909, amount paid plasterer........ 53 25
13. January 2, 1909, amount paid lathers.......... 66 60
14. * * * amount paid for lime................ 32 50
15. April 20, 1909, check........................ 165 00
$3,140 23
Olsen testified that Charnley received the following cash payments :
1. December 16, 1908, check for freight on plaster. .$ 210 00
2. February 26, 1909, cheek..................... 100 00
3. April 2, 1909, “ 135 00
4. January 2, 1909, “ 50 00
5. January 9, 1909, “ 282 50
6. January 9, 1909, “ 250 00
7. January 16, 1909, “ 200 00
8. February 5, 1909, “ 200 00
9. January 23, 1909, “ 600 00
10. January 30, 1909, “ 550 00
11. February 20, 1909, “ 350 00
12. February 13, 1909, “ 200 00
13. March 20, 1909, “ 175 00
14. April 20, 1909, “ 165 00
15. April 12, 1909, “ 53 25
16. April 2, 1909, “ 66 60
$3,587 35
Omitting for the moment the cheek for $210 paid for freight on plaster, we find that the amounts and dates substantially correspond in the two statements, with three exceptions, viz.: (a) Charnley denies that the check for $50 given on January 2 was a credit on the Laeasse building; (b) he gives no credit for the two checks for $550 and $350 given on January 30 and February 20, respectively; and (c) Olsen does not mention the payment of $300 on January 6. We think the $50 check of January 2 should be charged against the plaintiff because he testified that the plasterers on the university library and Deschamps buildings finished their work on December 24, 1908, on which date he received $50 to pay them off. He then said that the check for $50 received on January 2 was given to him for the same purpose, “just before Christmas,” and finally admitted that he did not know what it was for unless it was for the plasterers on the Deschamps building, “because there is where the plasterers were working.” In view of the fact that the plasterers on the Deschamps building had finished their work, and that plastering on the Laeasse building had begun, it is manifest that, if he paid plasterers with the check, the plasterers referred to were employed on the Laeasse building. He made no attempt to deny that he received a check for $550 on January 30, and another for $350 on February 20. When he opened his account with Olsen & Johnson for the Laeasse building about the 1st of January, 1909, he gave them credit for $380.28, pverpaid on the two other buildings; so that it is clear that the sum of these two cheeks, viz., $900, should be credited to Olsen & Johnson on the Laeasse contract, as Olsen testified.
A great deal of testimony was taken as to whether the $210 cheek of December 16, 1908, should be charged against Charnley. He testified, in substance, that he received a car-load of cement from one Dally in Spokane, and that this check was given him by Olsen & Johnson to pay the freight thereon. He further said, however, that he told them he would not consent to be charged for cement any greater sum than he was obliged to pay Dally, to-wit, $11 per ton laid down in Missoula. And he said ihe purchased this cement at $10.50 per ton f. o. b. Missoula. He was manifestly in error in this, because if the cement was to be laid down in Missoula, free of freight charges, there would have been no necessity for him to get $210 from Olsen & Johnson to pay such charges. Olsen testified that the price of cement in Missoula varied from $14 to $16 per ton. He said that a rebate of $2 per ton was allowed for the return of the sacks, so that the net price of $16-cement was $14. Again, in his account filed with his notice of lien, Charnley credited the defendants with one and one-half tons of cement at $14 per ton. Again, if the freight on sixty tons of cement amounted to $210, the charges on one ton would be $3.50, which, added to the price named by Dally, of $10.50, makes $14 per ton, in Missoula, which agrees with all the testimony on the subject. This item of $210 should therefore be charged to the plaintiff.
The sum of the additional cash payments which we think should be charged to Charnley, as above stated, viz., $210, $50, $550, and $350, is $1,160, which, added to the amount he admitted having received ($3,140.23), makes $4,300.23. He also received lime to the amount of $48.50, for which he credited them with only $32.50. The balance of $16 should be charged to him. If we accept his last statement on the subject, he used sixty tons of cement on the Lacasse building, and gave them credit on other contracts for $660. He says he credited them with all they furnished; but in this he is mistaken, for the record shows that he used all they delivered to him, which was 1,416 sacks. This cement at $14 per ton would come to $991.20. As he credited but $660, the balance of $331.20 should be now credited.
Let us revert for a moment to his original statement of account. He there gave credit for $3,740,13, of which $3,140.23 was cash, leaving a balance of $599.90, which must have been for material; and this material must necessarily have been lath and common lumber, as he received no other, except as above stated. The total value of the lath furnished him was $775.72, and common lumber $29.28, making a total of $805. He swore that he credited it all on the old contracts, but this statement cannot be true. The difference, or $205.10, is all that could have been so credited. He should, then, be charged with the value of material (lath and common lumber), which he admits in his pleadings and testimony was a proper credit to Olsen & Johnson, to-wit, $599.90.
Summary.
Cash to be credited to Olsen & Johnson..............$4,300 23
Balance on lime account.......................... 16 00
Balance on cement account ........................ 331 20
Value of material admitted to be a proper credit...... 599 90
Total.....................................$5,247 33
The difference between $6,432.42, the total amount due under Ms contract, and $5,247.33, credits allowed Olsen & Johnson, is $1,185.09, or $162.91 less than the amount of the verdict. In this sum the verdict against Olsen & Johnson and the judgment against them are excessive.
So far as the lien is concerned, Charnley had no right to credit Olsen & Johnson on their old account for material which actually went into the Lacasse building. The owners were entitled to have these amounts credited to the building. These credits should be:
Lath and common lumber................$805 00
Lime................................ 16 00
Cement.............................. 991 20
- $1,812 20
Add to this cash received....................... 4,300 23
Total....... ,............................$6,112 43
Deduct this amount from $6,432.42, and we have $319.99, the amount which is a lien against the building.
It is contended that section 7166, Revised Codes, giving lien claimants an attorney’s fee, is unconstitutional. This court in Wortman v. Kleinschmidt, 12 Mont. 316, 30 Pac. 280, held a similar statute valid. Since that case was decided, however, the supreme court of the United States in Gulf etc. R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 225, 41 L. Ed. 666, the supreme court of California in Builders’ Supply Depot v. O’Connor, 150 Cal. 265, 119 Am. St. Rep. 193, 88 Pac. 982, 17 L. R. A., n. s., 909; Stimson Mill Co. v. Nolan, 5 Cal. App. 754, 91 Pac. 262; Mannix v. Tryon, 152 Cal. 31, 91 Pac. 983; Merced Lumber Co. v. Bruschi, 152 Cal. 372, 92 Pac. 844; Hill v. Clark, 7 Cal. App. 609, 95 Pac. 382; Farnham v. California Safe Deposit Co., 8 Cal. App. 266, 96 Pac. 788; Los Angeles Pressed Brick Co., v. Higgins, 8 Cal. App. 514, 97 Pac. 414, 420, and the supreme court of Colorado in Davidson v. Jennings, 27 Colo. 187, 83 Am. St. Rep. 49, 60 Pac. 354, 48 L. R. A. 340, have held like enactments to be void. To the same effect are the decisions in Grand Rapids Chair Co. v. Remells, 77 Mich. 104, 43 N. W. 1006; Durkee v. Janesville, 28 Wis. 464, 9 Am. Rep. 500; Railroad Co. v. Morris, 65 Ala. 193; Paddock v. Missouri Pac. Ry. Co., 155 Mo. 524, 56 S. W. 453; Phenix Ins. Co. v. Hart, 112 Ga. 765, 38 S. E. 67; Openshaw v. Halfin, 24 Utah, 426, 91 Am. St. Rep. 796, 68 Pac. 138; Atkinson v. Woodmansee, 68 Kan. 71, 74 Pac. 640, 64 L. R. A. 325; Hocking Valley Coal Co. v. Rosser, 53 Ohio St. 12, 53 Am. St. Rep. 622, 41 N. E. 263, 29 L. R. A. 386; Randolph v. Builders etc. Supply Co., 106 Ala. 501, 17 South. 721; West v. Wabash R. Co., 118 Mo. App. 432, 94 S. W. 310. We think the reasoning of these cases is unanswerable. In some of the states statutes giving special protection to laborers and mechanics have been upheld, while in others similar statutes have been declared unconstitutional. We have no occasion to pass upon the constitutionality of such statutes in this opinion, and do not do so. Suffice it to say that our statute extends the benefit to materialmen, contractors, and others who do not come within the reason that may justify legislation for the protection of laborers and mechanics.
The order denying a new trial is affirmed, and the cause is remanded to the district court of Missoula county with directions to modify its judgment against Olsen & Johnson by deducting therefrom the sum of $162.91. The balance is affirmed. That part of the judgment relating to the lien upon the building is ordered modified by reducing tbe amount of the lien to the sum of $319.99, for which amount alone it is affirmed in this regard. That portion thereof relating to attorneys’ fees is ordered stricken out. Each party shall pay his own costs in this court.
Modified and affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
[
4,
53,
-1,
25,
-27,
-2,
46,
11,
-3,
18,
-28,
0,
35,
-30,
-36,
-14,
-23,
-30,
21,
-3,
22,
-58,
-65,
-67,
-32,
24,
1,
-3,
-31,
59,
5,
-1,
-29,
-11,
-26,
40,
-35,
-3,
4,
-74,
8,
-29,
-14,
-20,
35,
31,
-1,
-28,
51,
-15,
36,
-36,
16,
-15,
0,
-4,
-12,
-10,
-79,
25,
11,
-46,
13,
17,
33,
-22,
14,
24,
25,
31,
-52,
19,
5,
-30,
40,
0,
-5,
-14,
-84,
-83,
-30,
26,
44,
-26,
-16,
-7,
-27,
-23,
2,
23,
-45,
11,
11,
26,
29,
-12,
-24,
50,
-19,
10,
33,
-12,
-41,
16,
26,
-44,
-65,
6,
19,
49,
-22,
25,
22,
43,
-58,
32,
-11,
4,
-5,
-2,
-17,
-2,
-39,
-34,
-27,
14,
-11,
35,
34,
-27,
-40,
-6,
-10,
45,
-32,
-5,
24,
-11,
-25,
30,
23,
-19,
-2,
-12,
-2,
36,
18,
-10,
-35,
-20,
-38,
19,
40,
33,
38,
-31,
-24,
-47,
18,
-52,
33,
-8,
17,
-23,
-12,
29,
-11,
21,
6,
-8,
-29,
-16,
-22,
-16,
70,
35,
10,
-38,
6,
32,
-17,
-12,
24,
-10,
22,
10,
63,
25,
52,
20,
19,
26,
-51,
1,
-45,
0,
5,
-24,
48,
4,
0,
12,
36,
-12,
-16,
12,
23,
16,
35,
-12,
25,
19,
-68,
-8,
-3,
55,
-59,
-27,
-3,
-30,
37,
17,
-50,
2,
-62,
-27,
-16,
-11,
46,
-50,
-92,
-8,
0,
13,
23,
-31,
32,
-15,
-2,
25,
-13,
-3,
-69,
-9,
13,
9,
-61,
-20,
-38,
-19,
-16,
-44,
26,
71,
16,
19,
41,
-5,
-20,
-21,
16,
23,
-15,
-37,
40,
-28,
1,
-29,
25,
71,
-2,
-5,
62,
13,
-27,
-13,
-28,
20,
-12,
0,
-26,
-47,
11,
-27,
51,
1,
27,
8,
-23,
7,
-20,
-48,
61,
-52,
62,
13,
-8,
-47,
5,
-8,
-59,
-18,
-38,
-16,
41,
15,
-65,
11,
11,
35,
-14,
-1,
-14,
-35,
39,
35,
-24,
2,
31,
-16,
25,
25,
-35,
-19,
15,
25,
-20,
6,
-56,
-6,
0,
6,
5,
23,
-67,
6,
73,
39,
20,
-34,
22,
7,
-2,
-58,
-39,
7,
40,
-14,
-1,
4,
-9,
1,
-46,
38,
26,
46,
17,
4,
-29,
7,
46,
-8,
-2,
-12,
-57,
16,
-14,
-13,
15,
-6,
16,
57,
-25,
9,
24,
11,
-8,
9,
-48,
-3,
49,
-15,
20,
-4,
46,
10,
49,
-35,
-69,
17,
-26,
-30,
-21,
38,
3,
-4,
-15,
-30,
-18,
-24,
14,
17,
-25,
-32,
-41,
5,
15,
-25,
-9,
-27,
-17,
-47,
-18,
-1,
13,
-33,
30,
-29,
-1,
19,
18,
10,
74,
-7,
48,
6,
44,
22,
-44,
-5,
-16,
0,
-44,
8,
-11,
1,
-3,
12,
-37,
20,
-2,
27,
2,
-25,
40,
7,
-19,
29,
44,
-3,
-8,
3,
19,
34,
18,
22,
0,
-68,
55,
5,
47,
19,
34,
35,
1,
37,
60,
-11,
36,
24,
-5,
33,
25,
-16,
37,
35,
-6,
-23,
8,
5,
-1,
36,
11,
13,
7,
-17,
-56,
-6,
-7,
17,
37,
32,
13,
-31,
-54,
2,
-6,
-9,
-11,
-16,
-49,
-33,
-12,
-17,
-12,
-33,
17,
12,
-18,
32,
-10,
-9,
35,
7,
-50,
26,
0,
27,
-16,
48,
-18,
19,
8,
-25,
40,
37,
-24,
62,
52,
-34,
-24,
2,
-11,
9,
-9,
0,
67,
13,
7,
-23,
9,
5,
20,
31,
-26,
-3,
-9,
34,
23,
21,
-18,
-50,
27,
52,
2,
22,
0,
13,
20,
18,
19,
23,
-19,
-6,
74,
-8,
7,
-40,
19,
-41,
-51,
18,
-7,
9,
-21,
-59,
-52,
0,
-5,
8,
-20,
-11,
-4,
-31,
-45,
-7,
-4,
37,
-21,
48,
-16,
-32,
-1,
9,
-34,
-11,
-20,
22,
-17,
-7,
-12,
-4,
-29,
14,
-5,
-16,
-57,
14,
75,
22,
-23,
20,
-12,
12,
16,
59,
26,
-3,
38,
-3,
43,
9,
13,
0,
-17,
-1,
-62,
-34,
-35,
41,
-71,
4,
-23,
-35,
-9,
17,
75,
31,
-30,
-50,
1,
9,
47,
3,
-5,
12,
31,
-23,
27,
-10,
-16,
-3,
45,
1,
-5,
-2,
82,
-25,
23,
-10,
58,
14,
1,
-14,
-19,
19,
26,
-6,
31,
13,
19,
-23,
28,
19,
53,
-58,
-12,
6,
54,
10,
24,
-37,
-15,
10,
33,
-35,
62,
-38,
-30,
12,
-25,
12,
-17,
-23,
42,
36,
-3,
-1,
-11,
-38,
50,
12,
42,
14,
-43,
41,
-32,
-30,
-18,
-8,
7,
-3,
-38,
42,
-36,
38,
-26,
-22,
-22,
-57,
-8,
-44,
-34,
34,
-2,
-66,
1,
0,
-60,
17,
-10,
31,
-8,
41,
9,
-20,
-32,
-1,
-47,
23,
12,
6,
-48,
15,
-31,
-26,
23,
-1,
-34,
-29,
19,
18,
20,
5,
-20,
-58,
-58,
32,
-19,
-5,
6,
0,
-1,
14,
12,
8,
-3,
-50,
-35,
-22,
-8,
53,
-33,
-13,
27,
20,
9,
49,
24,
13,
11,
13,
17,
-3,
-33,
-24,
64,
30,
19,
55,
-7,
0,
26,
-7,
-84,
-33,
-3,
11,
27,
-7,
-37,
37,
22,
-20,
-1,
-22,
-49,
14,
21,
17,
-2,
-39,
7,
-43,
-10,
4,
-33,
1,
-21,
23,
-4,
16,
16,
-48,
32,
-56,
-8,
31,
-35,
6,
20,
-30,
-34,
34,
31,
-4,
-22,
42,
13,
19,
27,
-40,
0,
13,
10,
-6,
0,
50,
0,
30,
-21,
-15,
41,
-12,
-30,
8,
23,
-19,
39,
42,
24,
-10,
-16,
18,
13,
-28,
9,
-29,
-13,
20,
-5,
28,
33,
8,
2,
-25,
-7,
2,
58,
20,
27,
0,
47,
32,
-10,
0,
50,
15,
21,
80,
-11,
-44,
-40,
-34,
-10,
-67,
2,
-33,
2,
-46,
-4,
-7,
-6,
39,
57,
9,
11,
10,
18,
-19,
5,
-2,
-42,
-10,
-39,
39,
-4,
23,
18,
75,
-10,
-15,
-49,
27,
-2,
31,
-31,
7,
-48,
37,
-46,
2,
25,
2,
-19,
-20,
-5,
-36,
-83,
9,
-15,
0,
42,
-32,
-23,
-2,
39,
-49,
-9,
56,
0,
0,
0,
35,
28,
21,
-51,
-6,
1,
-9,
-40,
22,
-36,
-43,
6,
-7,
23,
4,
23,
-75,
13,
-14,
30,
-37,
-10,
10,
43,
-16,
28,
-26,
61,
-11,
27,
32,
-11,
-7,
7,
-30,
-31,
-35,
30,
7,
18,
-30,
-23,
-1,
-36,
-9,
-6,
12,
-15,
17,
7,
28,
27,
-3,
5,
26,
47,
-17,
-12,
-21,
-12,
-15,
6,
22,
-47,
14,
-20,
5,
5,
-21,
-18,
48
] |
MR. JUSTICE HASWELL
delivered the opinion of the court.
The Montana Department of Revenue and two tax officials appeal from a judgment of the district court, Missoula County, holding the current statewide property appraisal program unconstitutional and illegal and permanently enjoining its implementation and use in Missoula County.
The background of the present controversy will furnish an overview of the situation on appeal and place the issues in perspective. Prior to the effective date of the new Montana Constitution on July 1, 1973, the process of appraisal, assessment and taxation of real property in Montana was largely in the hands of county officials subject to supervision, appeal and equalization by the State Board of Equalization. Although property valuations were by law subject to a continuous process of keeping valuations current, there was a considerable variation in performance among the 56 counties in Montana in keeping appraisal valuations up-to-date. Some idea of this situation statewide can be gleaned from these cases: Yellowstone Pipeline Co. v. State Board of Equalization, 138 Mont. 603, 358 P.2d 55; State Board of Equalizaiton v. Vanderwood, 146 Mont. 276, 405 P.2d 652.
When the 1972 Montana Constitution became effective, the State Department of Revenue assumed jurisdiction over the property taxation system in Montana pursuant to Art. VIII, Section 3, 1972 Montana Constitution and implementing legislation. Between July 1, 1973 and July 1, 1975 the Department of Revenue was engaged in information gathering, standardizing appraisal procedures, hiring and training appraisal staffs in the various counties, and similar activities as well as reappraising property.
In early 1975 the Montana Legislature enacted a statute directing the Department of Revenue to administer and supervise a program for the revaluation of all taxable property in Montana at least every 5 years; to promulgate a comprehensive written plan of rotation fixing the order of revaluation in each county on the basis of the last revaluation of taxable property in each county prior to July 1, 1974 to adjust disparities between counties; and to provide that all property in each county be revalued at least every 5 years or that 20% thereof be revalued each year. Section 1, Ch. 294, Laws of 1975, codified as section 84-429.14, R.C.M.1947. The legislation also provided that the same emthod of appraisal and assessment be used in each county so that at the end of each cyclical revaluation program comparable property with similar market values would have- substantially equal taxable values. Section 2, Ch. 294, Laws of 1975, codified as section 84-429.15, R.C.M.1947.
In April 1975, this Court held the Department of Revenue’s implementation of a county-financed reappraisal of property in Lewis and Clark County by a private appraisal firm was unconstitutional in violation of equal protection, due process and uniformity requirements. Larson v. State Department of Revenue, 166 Mont. 449, 534 P.2d 854. The thrust of Larson was that the State Department of Revenue had no statewide plan of reappraisal and accordingly implementation of the county-financed plan resulted in an unconstitutional and disproportionate tax burden on Lewis and Clark County taxpayers as compared to taxpayers of other counties.
In early June 1975 the Department of Revenue distributed a document known as the “Montana Appraisal Plan” which is the focal point of this appeal. It purported to be a general and uniform statewide plan for a 5 year cyclical revaluation of all taxable property in Montana in compliance with Ch. 294, Laws of 1975 and in conformity with our decision in Larson. It was noticed for hearing, a hearing was held, and the plan was adopted as a rule of the Department of Revenue, purportedly pursuant to the provisions of the Montana Administrative Procedure Act, section 82-4201 et seq., R.C.M.1947.
The instant case was filed in the district court of Missoula County in April 1975 by a number of individual taxpayers and a taxpayers’ association from Missoula County against the Department of Revenue, its director, and the Missoula County assessor. In general, this action challenges the constitutionality and legality of the Montana Appraisal Plan, its implementing legislation and the property appraisal program in Missoula County. It seeks both declaratory and injunctive relief. At the time the complaint was filed, the district court issued a temporary restraining order preventing the use of the reappraisals on the 1975 tax rolls. After hearing, an injunction pendente lite was issued to the same end resulting in the use of 1974 assessment roll valuations for 1975 taxes.
Approximately 20 similar actions were filed in the district courts of other Montana counties. Injunctive relief during the pendency of the actions was granted in some cases and denied in others preventing uniformity of application of the “Montana Appraisal Plan” and its revaluations on a statewide basis. Faced with this the Governor of Montana directed the Department of Revenue to use the same appraisals in the tax year 1975 as were used in the 1974 tax year.
Trial of the instant case was commenced on January 26, 1976, in the district court of Missoula County before the Hon. Jack L. Green, district judge, sitting without a jury. On May 20, 1976, the district court entered findings of fact, conclusions of law, and judgment. The gist of the judgment was that the Montana Appraisal Plan was never legally adopted and is void; that the appraisal program carried on by the Department of Revenue in Missoula County violated the taxpayers’ rights to uniformity of taxation and denied them due process and equal protection of the laws under the Montana and United States Constitutions; and permanently enjoined the use of the reappraisals and implementation of the reappraisal program in Missoula County.
The district courts of Flathead and Cascade Counties in similar suits have held the Montana Appraisal Plan and the revaluation program of the Department of Revenue thereunder constitutional.
The Department of Revenue has appealed from the judgment of the Missoula County district court in the instant case. Various taxpayers and taxpayer groups have appeared as amicus curiae by brief and oral argument in this appeal.
The underlying issues on appeal, as we understand them, can be summarized in this manner:
1) Is the Montana Appraisal Plan and its implementing legislation constitutional?
2) Was the Montana Appraisal Plan legally adopted?
3) Is the Department of Revenue proceeding legally and constitutionally under the Montana Appraisal Plan?
Directing our attention to the first issue, we note that the basic attack of respondent taxpayers on the constitutionality of the Montana Appraisal Plan and its implementing legislation is that it does not provide a general and uniform statewide plan of revaluation of all taxable property in the state, but on the contrary is simply 56 separate county plans, each of which is different from the others, resulting in an unreasonable, discriminatory and disproportionate tax burden upon the taxpayers of Missoula County and the state of Montana. The taxpayers also contend there is no provision for the appraisal of timberlands in the plan which are required to be appraised at full value. Additionally, they claim the property classifications in the Plan fail to treat all taxable properties of similar nature and use the same. As a result, the taxpayers assert that the plan and its implementing legislation do not conform to the legal requirement of uniformity of taxation and violate the due process and equal protection clauses of the Montana Constitution (Art. II, Sections 4 and 17, 1972 Montana Constitution) and the Fifth and Fourteenth Amendments to the United States Constitution.
Initially, we note the provisions of Art. VIII, Section 3, 1972 Montana Constitution:
“The state shall appraise, assess, and equalize the valuation of all property which is to be taxed in the manner provided by law.”
The manner of appraisal of property for tax purposes is set out in section 84-429.12, R.C.M.1947: .
“It is hereby made the duty of the state department of revenue to implement the provisions of this act by providing
“2. For a general and uniform method of appraising city and town lots.
“3. For a general and uniform method of appraising rural and urban improvements.
“4. For a general and uniform method of appraising timber-lands.”
Prior to 1975 Montana statutes required that all taxable property (other than agricultural lands) be assessed at full cash value. Section 84-401, R.C.M.1947. The 1975 legislature amended this statute to provide for assessment of all property for tax purposes (other than agricultural lands) at 40% of full cash value.
The 1975 legislature also enacted section 84-429.14, R.C.M. 1947, providing:
“The department of revenue shall administer and • supervise a program for the revaluation of all taxable property within the state of Montana at least every five (5) years. A comprehensive written plan of rotation shall be promulgated by the department of revenue fixing the order of revaluation of property in each county on the basis of the last revaluation of taxable property in each county prior to July 1, 1974, in order to adjust the disparities therein between the.counties. The plan of rotation so adopted shall provide that all property in each county shall be revalued at least every five (5) years or that no less than twenty per cent (20%) of the property in each county shall be revalued in each year. The department of revenue shall furnish a copy of the plan and all amendments thereto to each county assessor and the board of county commissioners in each county.”
The 1975 legislature in the same bill enacted section 84-429.15, providing:
“The same method -of appraisal and assessment shall be used in each county of the state to the end that comparable property with similar true market values and subject to taxation in Montana shall have substantially equal taxable values at the end of each cyclical revaluation program hereinbefore provided.”
According to the Department of Revenue, the Montana Appraisal Plan was promulgated pursuant to sections 84-429.14 and 84-429.15 and in compliance to our decision in Larson. In general the Plan classifies property for tax purposes in eleven categories and provides a schedule for reappraisal of such property in each county by year, percentage amount, and classi fication in each year of the 5 year cycle so that at the end of the cycle all property in the entire state will have been reappraised. The Plan provides a separate schedule and rotation of reappraisal in each county with property most remotely appraised time-wise deemed the most deviant from current value and scheduled for reappraisal first. The Plan provides that all property is to be appraised by a uniform method based on a designated appraisal manual.
We hold that the Montana Appraisal Plan and its implementing legislation is constitutional. Initially we recognize that violation of statutory uniformity requirements generally results in violation of constitutional equal protection and due process requirements. Larson v. State Department of Revenue, supra. However, we find no violation of statutory uniformity requirements in the Plan. All like property is appraised by a uniform standard under the Plan according to uniform valuation procedures set forth in the same designated appraisal manual. The appraisal rotation is fixed by a uniform rule requiring the property that has gone longest since appraisal and is deemed to be most deviant from current values to be appraised first. All property in the state is required to be appraised by the end of the 5 year cycle.
Respondent taxpayers apparently contend that the Plan is not general and uniform because it consists of 56 separate county plans, each different from any other, rather than one homogeneous statewide plan. They point out in each county there is a different reappraisal schedule, different classifications of property in different amounts are reappraised in each year of the 5 year cycle in each county, and the sequence of reappraisal varies from county to county. However, they overlook the fact that each county presents a different situation with respect to recency of the last appraisal, the type of property that has gone the longest since appraisal, and the amount and classification of the property most deviant from current values. Where, as here, a uniform rule is provided for statewide application to determine the reappraisal rotation, the type and amount of property to be reappraised in each year in each county there is no violation of uniformity requirements.
It must be recognized that in any cyclical revaluation plan temporary disparities within the cycle between individual property valuations both within the county and between counties are inevitable. Nonetheless such cyclical plans have been uniformly upheld against uniformity and equal protection attacks under state and federal constitutional provisions in the absence of intentional, systematic, arbitrary or fraudulent discrimination. Recanzone v. Nevada Tax Commission (1976), Nev., 550 P.2d 401 and cases cited therein; Anno. 76 A.L.R.2d 1077.
A major contention of the taxpayers focuses on the fact that those properties reappraised in the first year of the 5 year cycle and placed on the tax rolls then will pay a higher and disproportionate share of taxes in comparison to those properties reappraised in the last year of the cycle. This is undoubtedly true in any cyclical reappraisal plan. However, as long as a taxpayer’s property is not overvalued in the reappraisal process, he cannot secure a reduction in his own appraisal on the ground that another taxpayer’s property is underappraised. The placing of revaluations on the tax rolls annually and sequentially as the reappraisals are completed is generally held not to offend constitutional equal protection and uniformity requirements in the absence of intentional and systematic discrimination, constructive fraud, or arbitrary action. Hillock v. Bade (1974), 22 Ariz.App. 46, 523 P.2d 97; Morrison v. Rutherford (1973), 83 Wash.App. 153, 516 P.2d 1036; Carkonen v. Williams (1969), 76 Wash.2d 617, 458 P.2d 280; Skinner v. New Mexico State Tax Commission (1959), 66 N.M.221, 345 P.2d 750; Rogan v. County Commissioners of Calvert County (1950), 194 Md. 299, 71 A.2d 47.
Respondent taxpayers also assert that the Plan is defective because it contains no provision for the appraisal of timberlands. The short answer to this is that the Plan in fact contains provisions for reappraisal of “timber” and the Montana Administra tive Code contains detailed appraisal procedures for timberlands according to use, accessibility, and other factors. MAC 42-2.22 (1) — 52230 et seq. Further objection is made that timberlands are not assessed at full cash value, i.e. that timberlands are underassessed. Timberlands are assessed differently, it is true, with the land itself given a value as grazing land and the growing timber valued according to accessibility, logging costs, lumber prices and other factors. We find nothing constitutionally objectionable in this method of assessment. The evidence here falls far short- of establishing an intentional and systematic discrimination, constructive fraud, or arbitrary action in the appraisal methods and procedures for valuing timberlands.
Finally, respondent taxpayers contend the property classifications in the Plan do not treat all taxable properties of similar nature and use the same. This is simply a part and parcel of their previous argument that the Plan is not a general and uniform statewide plan in which properties of a similar nature and use are not treated the same. The Plan contains various property classifications which are defined in the Plan and which are to be applied on a statewide basis. A uniform rule is applied statewide which satisfies uniformity and equal protection requirements and temporary inequalities within the cyclical period do not render the Plan unconstitutional for the reasons and under the authorities previously set forth.
The second issue on appeal is whether the Montana Appraisal Plan was legally adopted. The district court held it was not. We agree.
The district court entered two findings of fact on this issue:
“17. On or about June 6, 1975, DOR [Department of Revenue] promulgated and distributed a document called the ‘Montana Appraisal Plan’. The ‘Montana Appraisal Plan’ was promulgated under legislation enacted by the Montana Legislature in 1975 having an effective date of July 1, 1975. Notice of publication of a hearing on the plan to be held on July 16, 1975, was certified to the Secretary of State on June 13, 1975, and first published in the Montana Administrative Register on June 25, 1975. The public hearing was held on July 16, 1975. Oral and written protests to the form and substance of the proposed ‘Montana Appraisal Plan’ were submitted at the hearing. A specific request for a written statement ‘of the principal reasons for and against’ the plan’s adoption ‘incorporating therein its reasons for overruling the considerations urged against’ adoption of the plan was made under R.C.M.1947, Section 82-4204.
“18. On August 14, 1975, DOR gave notice of its intention to ,adopt the plan as an administrative rule of the' DOR in the form originally proposed. Notice of adoption of the plan was published in the Montana Administrative Register on August 25, 1975. None of the persons appearing and protesting the adoption of the plan were given a written statement for the rejection by DOR of its reasons for overruling the considerations urged for rejection of the plan. The only effort made by the DOR for compliance with R.C.M.1947, Section 82-4204, was a letter dated September 15, 1975, from W. A. Groff, Director of Revenue, to the Administrative Code Committee in Helena. This letter fails to comply witht he requirements of R.C.M.1947, Section 82-4204.”
On the basis of the findings of fact, the district court entered its conclusion of Law No. 3:
“3. The ‘Montana Appraisal Plan’ has not been adopted according to law and under the terms of the Administrative Procedure Act, R.C.M.1947, Sections 82-4201, et seq., and is without legal force and effect as a valid rule of the Department of Revenue.”
This same conclusion of law was entered as paragraph number 3 in the judgment of the district court.
The Montana Appraisal Plan was specifically promulgated pursuant to an act of the legislature. The statement of intent contained in the plan provides:
“The Montana Appraisal Plan is promulgated by the Department of Revenue in compliance with Chapter 294, Laws of 1975. ‘AN ACT TO PROVIDE A CYCLICAL PROGRAM FOR THE REVALUATION OF TAXABLE PROPERTY’.”
Once this legislation became effective the Department of Revenue was required to proceed under the Montana Administrative Procedure Act, section 82-4201 et seq. Under that act it was required to adopt the Montana Appraisal Plan as a rule of the Department of Revenue. Section 82-4202(2) of the Administrative Procedure Act defines the rules that must be adopted by state agencies in this language:
“(2) ‘Rule’ means each agency regulation, standard or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedures, or practice requirements of an agency. * * (Emphasis added).
Under the Administrative Procedure Act prior to the adoption of any such rule, the agency is required to give notice of its intended action, publish the notice in the Montana Administrative Register, give notice by mail to interested persons, hold a public hearing, consider fully written and oral submissions respecting such proposed rule, and upon adoption of the rule to issue “.a concise statement of the principal reasons for or against its adoption, incorporating therein its reasons for overruling the considerations urged against its adoption” to any interested person upon request. Section 82-4204(1)(a) and (b). Thereafter the agency must refer the proposed rule to the administrative code committee of the legislature. Section 82-4204(1 )(c).
The purpose of the public hearing is to provide taxpayer input to the proposed Plan; to require the Department of Revenue to fully consider the objections to the Plan, alternative proposals, and amendments; and to state to the interested taxpayers the Department’s reasons for rejecting the considerations urged by the taxpayers.
The vice of the situation here is that these objectives became subordinated to bureaucratic justification of the Plan. Here, the taxpayers voiced many objections to the equities and fairness of the Plan as distinguished from its legality and constitutionality. For example, it was pointed out that by adopting a 3 year cycle rather than a 5 year cycle the inherent inequities of the Plan would be reduced; that continuation of the same order of reappraisal in each succeeding cycle perpetuates the inequities imposed upon those taxpayers whose property was first reappraised in the initial cycle; that the length of the cycle precludes those taxpayers whose property was first reappraised from the benefits of reduced millage that might later flow from a substantial increase in total property valuations in the county; that because of certain fixed and mandatory statewide mill levies, the burden on those taxpayers whose property was first reappraised would be increased; that the plan is retroactive in operation because it was implemented prior to its adoption; that the Plan is so ambiguous and incomplete in designated respects that a taxpayer of common understanding cannot tell whether the Plan is being followed or the law is being adhered to; that the higher reappraisals and increased valuations under the Plan should be delayed until the legislature can adjust the mill levies; and many others.
There is no evidence that these taxpayer objections, alternatives and considerations were fully considered by the Department of Revenue prior to adoption of the Plan as required by section 82-4204(l)(b). Indications are to the contrary. The evidence shows the Plan was put in operation before compliance with the Administrative Procedure Act. The evidence shows' the director of the Department characterized the taxpayer objections (with the exception of placing the revaluations on the tax rolls annually as appraised) as “of a negative nature directed at property tax in general and not relevant to the plan.” The evidence shows that the Plan as initially proposed by the agency was adopted in toto without amendment, alteration or modification.
We hold therefore that the Montana Appraisal Plan was never legally adopted as required by the Montana Administrative Procedure Act and is void and without legal force and effect as a rule of the Department of Revenue. Accordingly, revaluations of property made thereunder cannot be placed on the tax rolls as a basis for taxation.
Our ruling on the second issue renders consideration of the third issue unnecessary.
The judgment of the district court of Missoula County is modified in conformity with the opinion and as so modified is affirmed.
MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES JOHN C. HARRISON and CASTLES concur.
|
[
-6,
39,
-20,
-19,
-20,
-6,
29,
6,
-61,
35,
-20,
-19,
24,
12,
53,
-34,
-61,
29,
14,
72,
-25,
8,
-47,
39,
14,
31,
18,
-25,
6,
12,
-33,
-29,
-4,
14,
4,
-14,
-40,
52,
-30,
36,
15,
31,
-32,
-3,
-61,
7,
27,
-34,
-4,
38,
-20,
-40,
3,
-15,
40,
30,
-17,
-34,
-63,
42,
-5,
62,
4,
57,
27,
-20,
-29,
-26,
8,
-115,
-27,
29,
-13,
-33,
61,
3,
35,
-33,
-41,
19,
-18,
-7,
-21,
-2,
-11,
10,
-29,
-9,
47,
-18,
-54,
-16,
4,
11,
-2,
3,
31,
-8,
33,
-10,
-33,
27,
31,
46,
-18,
-61,
1,
7,
29,
1,
20,
-12,
-11,
-59,
5,
65,
-6,
-7,
18,
7,
6,
3,
-29,
10,
20,
7,
55,
19,
-12,
-3,
-35,
11,
-22,
8,
-21,
16,
-20,
-23,
-26,
-13,
29,
-12,
19,
-62,
-27,
6,
32,
-59,
-6,
39,
22,
23,
42,
51,
8,
-38,
20,
9,
-16,
-50,
-24,
-13,
-40,
-14,
-1,
10,
4,
-10,
-50,
24,
32,
-12,
0,
38,
67,
0,
22,
25,
10,
44,
-18,
-33,
32,
0,
-37,
-14,
35,
-29,
-9,
-36,
-40,
2,
22,
-19,
5,
-61,
76,
-10,
-50,
-26,
-18,
-9,
48,
60,
8,
20,
2,
-42,
-10,
7,
-47,
-1,
18,
28,
-4,
38,
2,
-8,
-10,
-13,
51,
37,
26,
6,
-28,
25,
-33,
44,
18,
-40,
17,
47,
35,
-53,
39,
13,
-38,
29,
-22,
-13,
0,
-17,
-26,
-17,
-23,
8,
-29,
-69,
16,
-10,
-21,
-56,
-23,
38,
-9,
2,
50,
-13,
29,
-53,
-18,
-21,
54,
-58,
-43,
-11,
37,
21,
-24,
-18,
11,
54,
44,
4,
-26,
19,
-12,
-43,
-9,
-25,
5,
-36,
19,
21,
24,
23,
-18,
11,
-6,
11,
-29,
-38,
0,
-17,
-43,
-22,
20,
-13,
13,
-11,
-22,
9,
2,
9,
-1,
4,
-51,
2,
25,
28,
-8,
-6,
-50,
13,
42,
-16,
-47,
-7,
21,
-14,
55,
7,
32,
-1,
-58,
45,
38,
9,
-60,
-7,
9,
-39,
41,
-3,
50,
-39,
64,
4,
-15,
19,
17,
-8,
54,
-21,
-13,
42,
-43,
21,
14,
9,
3,
42,
-23,
92,
-3,
-14,
0,
-17,
-53,
-27,
29,
34,
-24,
-10,
-26,
8,
-48,
13,
0,
-60,
-8,
38,
30,
54,
-24,
33,
-5,
28,
-55,
-64,
6,
-4,
-14,
-10,
23,
16,
30,
-10,
-13,
-14,
11,
-25,
-24,
31,
-14,
-15,
30,
-38,
-3,
-10,
-11,
59,
-2,
18,
12,
-34,
38,
-11,
-24,
7,
8,
-46,
-21,
-65,
20,
82,
6,
-15,
-22,
11,
5,
15,
-54,
-7,
-1,
-42,
-8,
48,
-19,
26,
-49,
38,
31,
-33,
1,
6,
-17,
18,
-70,
-15,
-35,
3,
15,
-18,
-19,
-37,
-26,
-6,
46,
60,
18,
-6,
-67,
-34,
-1,
19,
52,
-84,
20,
-38,
24,
63,
-3,
-63,
30,
-38,
-22,
-30,
43,
23,
-20,
78,
0,
0,
-28,
18,
-7,
-21,
0,
-38,
17,
-59,
-22,
9,
-23,
32,
-8,
30,
-42,
15,
4,
3,
22,
10,
10,
-7,
11,
-22,
47,
-42,
0,
-34,
12,
-17,
-37,
-19,
-12,
34,
-46,
49,
4,
-9,
44,
23,
-48,
23,
40,
-16,
-4,
2,
-3,
-23,
-30,
-51,
-44,
15,
-41,
0,
76,
-27,
-59,
51,
-6,
30,
-46,
27,
63,
85,
3,
-15,
49,
-43,
22,
0,
15,
35,
-13,
-52,
9,
-18,
14,
-21,
-32,
53,
-51,
-27,
-7,
-1,
4,
41,
14,
12,
29,
18,
5,
15,
-75,
-40,
-23,
-11,
-34,
-21,
3,
-28,
22,
14,
-3,
-38,
-2,
47,
8,
4,
3,
-24,
-10,
32,
10,
50,
56,
29,
-5,
-13,
-24,
33,
-69,
-4,
-41,
24,
-28,
-20,
-26,
-12,
-9,
15,
29,
3,
26,
-6,
-28,
-10,
-18,
25,
62,
41,
-7,
104,
2,
-48,
39,
-53,
-7,
8,
30,
-7,
-16,
4,
-10,
37,
-23,
5,
-10,
-35,
-9,
-33,
12,
0,
48,
-7,
-21,
-26,
-60,
-36,
-14,
16,
19,
23,
9,
19,
4,
-13,
5,
31,
-81,
-5,
14,
46,
55,
-67,
15,
-64,
40,
28,
30,
28,
-65,
5,
38,
15,
32,
11,
1,
13,
-30,
-43,
-7,
-59,
0,
-25,
11,
-12,
-40,
-13,
-18,
35,
10,
28,
3,
-12,
43,
14,
27,
-6,
-25,
-14,
-14,
-11,
20,
40,
-26,
8,
29,
26,
43,
-1,
-37,
31,
-22,
-27,
-45,
0,
-45,
-23,
12,
-18,
-9,
-17,
44,
-4,
-15,
-14,
-20,
-46,
12,
-35,
19,
-47,
-7,
-2,
-29,
34,
-60,
72,
-16,
-15,
22,
0,
-12,
64,
15,
-34,
13,
-17,
4,
20,
-10,
13,
13,
0,
-61,
-19,
-24,
45,
22,
16,
-22,
-37,
-43,
-11,
-5,
-2,
35,
-14,
-45,
88,
28,
-15,
6,
-17,
17,
30,
24,
28,
-47,
-33,
52,
-96,
-2,
19,
18,
9,
45,
-22,
-13,
2,
-22,
-16,
-15,
18,
-22,
-4,
-28,
37,
47,
-28,
-26,
39,
5,
36,
-28,
-45,
-29,
41,
41,
18,
10,
-4,
-28,
7,
-61,
59,
-23,
-38,
9,
-13,
52,
-27,
-34,
89,
-27,
0,
-4,
11,
-26,
50,
16,
-51,
46,
14,
0,
75,
-25,
50,
-27,
-12,
25,
-69,
-30,
-7,
39,
-3,
-3,
-16,
0,
0,
-9,
54,
-22,
-18,
-6,
27,
-23,
26,
-4,
56,
60,
53,
-3,
-18,
24,
67,
37,
11,
10,
39,
-28,
1,
36,
36,
-27,
73,
-17,
-21,
-13,
52,
40,
25,
11,
44,
-54,
-16,
-13,
8,
-38,
-10,
-12,
1,
57,
14,
45,
-22,
7,
-69,
0,
9,
-22,
0,
55,
-34,
-17,
-24,
-23,
-2,
9,
16,
19,
13,
37,
-11,
48,
28,
-1,
-13,
-4,
-60,
-17,
-24,
-27,
-88,
6,
39,
35,
47,
-44,
17,
-7,
-41,
-27,
0,
9,
57,
-42,
41,
25,
33,
-19,
31,
-20,
49,
9,
6,
-21,
-26,
30,
6,
-7,
47,
-13,
-4,
40,
0,
0,
-16,
26,
49,
36,
16,
-12,
-20,
13,
-21,
-55,
-16,
12,
-12,
-56,
0,
-32,
-3,
42,
13,
-45,
-73,
-14,
-38,
-7,
71,
-20,
-12,
45,
-6,
-24,
-6,
59,
29,
25,
7,
22,
18,
30,
-11,
14,
20,
18,
0,
13,
19,
-61,
-6,
-7,
-19,
34,
-25,
-13,
-101,
16,
0,
14,
-23,
-23,
10,
-23,
-30,
-68,
-4,
-19,
-36,
-2,
58,
3,
-15,
-29,
-28,
5,
0
] |
MR. CHIEF JUSTICE JAMES T. HARRISON
delivered the opinion of the court.
This appeal arises out of an action brought in the district court, fifth judicial district, Jefferson County, wherein plaintiffs Larry N. Tribble and Loretta E. Tribble alleged that a lease executed to them by defendants Katherine Tribble and William Tribble, deceased, contained a right of first refusal to purchase certain property known as the Tribble farm. The action was brought seeking declaratory judgment to determine the respective rights of the parlies in view of the fact that there had been executed a sales agreement for the land in question between defendants Tribble and defendants John and William Reelv and to compel defendants Tribble to enter into an agreement with plaintiffs to sell the property on the same terms. The cause was tried before the Hon. LeRoy McKinnon, sitting without a jury. Findings of fact, conclusions of law and judgment were entered for plaintiffs. Defendants now appeal from that judgment.
The record reveals: On April 6, 1971, defendants William and Katherine Tribble entered into a lease agreement with their son and his wife, plaintiffs Larry and Loretta Tribble. The pertinent terms of that lease were: •
“1. The Lessors are the owners and in possession of the following mentioned property situate in Jefferson County, Montana, to-wit:
“The property known as the Tribble farm in Jefferson County, Montana, consisting of approximately 1300 acres of farm lands (lessors reserve grazing lands) and hereby agree to let the same to the Lessees for the period of three years ending January 1, 1974.
“7. It is understood and agreed that this lease is made subject to sale by Lessors at any time from date hereof. It is further understood, however, that in the event of sale, the Lessees shall have the first refusal under terms similar to that offered any third party, and in the event of such sale, then this lease shall terminate upon the next January 1 succeeding such sale.
“OPTION TO RENEW
“ 1. It is understood and agreed that the Lessees shall have the first option to renew this lease under terms and conditions the same as above agreed for an additional three (3) years commencing .January 1, 1974, and terminating January 1, 1977. It is further agreed, however, that if the Lessors make a sale of the property or any portion thereof, then this lease and its option to renew is subject to súch sale as above agreed with right of Lessees to meet any offer of any third party for ten (10) days after notice to Lessees in writing of intention or offer to sell to a third party.
“2. Time is expressly made of the essence of this lease.
“3. This agreement shall be binding upon the heirs, executors, administrators and assigns of the .respective parties, with this reservation:
“A. That if both of the Lessors should not survive the terms of this lease, then this lease shall terminate on the next anniversary thereof (Jan. 1) * *
Subsequent to the signing of the lease, William Tribble began to consider the sale of his farm. Negotiations were carried on with several potential purchasers, all with plaintiff Larry Tribble’s knowledge. Ultimately in the early part of 1973, nego- Rations began with defendants Reely brothers, again with plaintiff Larry Tribble’s knowledge. In fact an offer made by the plaintiffs to purchase the farm, dated April 13, 1973, was turned down by defendants Katherine and William Tribble. On April 20, 1973, defendants Tribble entered into a written sale agreement with defendants Reely to sell the entire farm consisting of approximately 7,800 acres at a price of $410,000. A week later, at the insistence of William Tribble an addendum was made to the sales agreement to include the lease agreement of April 6, 1971 between defendants Tribble and plaintiffs Larry and Loretta Tribble.
No complete copy of the sales agreement was made available to plaintiffs until January 18, 1974. Thereafter on January 23, 1974, plaintiffs notified defendants Reely and Katherine Tribble of their intention to exercise their right of first refusal. Defendant John Reely telephoned counsel for plaintiffs stating he had no duty towards plaintiffs. No written response was received from any of the defendants. The action for declaratory judgment and specific performance followed being filed on April 4, 1974.
The judgment filed on March 11, 1975, declared that plaintiffs had a valid lease with the right of first refusal to buy the entire Tribble farm consisting of approximately 7,800 acres; that plaintiffs had exercised that right, and enjoined the defendants Reely from asserting any rights to the property excepting a right to an accounting for monies paid. In addition, defendants Trib-ble were ordered to enter into an agreement for sale with plaintiffs on the same terms and conditions as those that had been agreed upon with the defendants Reely. On May 27, 1975, a supplementary judgment based on the proceedings for accounting was filed ordering plaintiffs to reimburse defendants Reely in the amount of $34,143.01 for monies expended. Defendants appeal both judgments.
Several issues are presented for review, but the following issues are controlling in the disposition of this appeal:
1) Whether the right of first refusal is sufficiently definite as to permit specific performance.
2) Whether plaintiffs Tribble received the requisite notice of the planned sale to defendants Reely.
3) Whether under the terms of the lease the rights of the plaintiffs Tribble were extinguished by the death of William Tribble.
4) Whether the judgments filed March 11, 1975 and May 27, 1975, are void for want of certainty.
The definition of the right of first refusal or preemptive right has been given by this Court on several occasions beginning with the case of Weintz v. Bumgarner, 150 Mont. 306, 313, 434 P.2d 712, 716, wherein we noted the following explanation given in Volume VI, American Law of Property, § 26.64, p. 507:
“ * * A pre-emption does not give to the pre-emptioner the power to compel an unwilling owner to sell; it merely requires the owner, when and if he decides to sell, to offer the property first to the person entitled to the pre-emption, at the stipulated price. Upon receiving such'' an offer, the pre-emptioner may elect whether he will buy. If he elects not to buy, then the owner of the property may sell to anyone.’ ”
See also Phalen v. Rilley, 159 Mont. 239, 496 P.2d 295.
As to whether the right of first refusal is sufficiently definite in the agreement in question so as to permit specific performance, we first note that property which is the subject of such a preemptive right must be adequately described to be enforceable. Klein v. Brodie, 167 Mont. 47, 534 P.2d 1251. Here the lease agreement states that the lease is of “* * * the Tribble farm in Jefferson County, Montana, consisting of approximately 1300 acres of farm lands * * Yet the record discloses that the Tribble farm actually contains approximately 7,800 acres. We thus find the amount of land intended to be included uncertain because of an agreement ambiguous on its face.
As a means of resolving the problem before us we note these fundamental rules of contract. A contract must be construed so as to carry out the intentions of the parties at the time of contracting if such intentions are ascertainable. Section 13-702, R.C.M.1947. If such a contract is ambiguous on its face as to the intentions of the contracting parties, parol evidence can be used to ascertain those intentions. McNussen v. Graybeal, 146 Mont. 173, 405 P.2d 447; Kielmann v. Mogan, 156 Mont. 230, 478 P.2d 275; Lehrkind v. McDonnell, 51 Mont. 343, 153 P. 1012. And in interpreting such parol evidence we note these rules: The intention of the parties to a contract is to be ascertained from the language thereof viewed in its entirety and not as it is presented in particular sentences or paragraphs. Section 13-707, R.C.M.1947. Also a contract should receive that interpretation which makes it reasonable as long as the intention of the contracting parties is not violated and the contract is lawful, operative, definite, and capable of performance. Section 13-709, R.C.M.1947.
Turning to the specific problem of determining the amount of land intended by the contracting parties to be included in a right of specific performance, this Court in interpreting a pre-emptive right in Weintz v. Bumgarner, 150 Mont. 306, 314, 434 P.2d 712, 717, said:
“ * * * Applying the above rules of contract construction it seems apparent that this court should favor a construction that gives substance and meaning to the provision on purchase rather than adopt a construction that renders it meaningless and illusory, provided such can be done without violating the intention of the parties. * * *”
In view of the foregoing rules and authority we hold that the only reasonable interpretation to be placed on the agreement between the elder Tribbles and Larry and Loretta Tribble is that the lease was to include the whole Tribble farm. To hold otherwise would render the right of first refusal “meaningless and illusory” because of various facts apparent in the record. First no new or additional land description is in the provisions in the agreement on the right to first refusal. Rather the right of first refusal refers to and is solely dependent upon the interpretation given to the description of the land contained in the first paragraph of the agreement. Secondly, the . record reveals the Tribble farm to be one viable economic unit with the 1,300 acres of farmland interspersed with grazing land throughout the farm so as to make impractical and partition or farming of that land, separate and apart from the rest of the Tribble farm. Thus the only means of giving effect to the whole agreement is to construe the lease of the Tribble farm as including the entire 7,800 acres with the accompanying right of first refusal in that land belonging to the plaintiffs-lessees, and we so hold.
The bracketed reservation of grazing land is also ambiguous but from the evidence it appears that plaintiffs used the grazing land, not exclusively, but it was at all times considered a part of the leased lands.
We next consider the issue of notice. The agreement requires written notice by defendants-lessors to plaintiffs-lessees of any intention or offer to sell the property to a third party. The plaintiffs-lessees then have 10 days after said notice to meet the offer of any third party.
Admitting that the written sales agreement with defendants Reely dated April 20, 1973, was not made available in its entirety to plaintiffs until January 18, 1974, defendants on appeal cite several defenses that are intertwined with the written notice requirement.
They first alleged plaintiffs had actual notice of the sale and that was equivalent to written notice. In support of this contention they cite the fact that plaintiffs knew the defendants Reely were in the process of buying the farm, that plaintiffs showed the farm to the defendants Reely, knowing them to be prospective buyers and that plaintiffs even went as far as to try to negotiate a new lease with the defendants Reely.
We find no merit in this contention for the reason that there is a difference between merely knowing of a sale and knowing all the terms of that sale. Such a distinction is crucial here because without knowing the terms of the sale, the plaintiffs could not meet the offer of defendants Reely and thus could not properly exercise their right of first refusal.
As an additional defense to the notice requirement, defendants claim the plaintiffs acquiesced in the sale and are therefore now estopped from relying on the notice provision in an attempt to exercise the right of first refusal. However, the record reveals no acquiescence on the part of plaintiffs but continued efforts to exercise their rights. Prior to the sale to defendants Reely, the attorney for the plaintiffs informed the attorney for defendants Tribble that plaintiffs expected the terms of the lease agreement to be honored. On September 21, 1973, the plaintiffs’ attorney wrote to the defendants and demanded the right of first refusal, a copy of any offer to sell and written notice. Yet the entire sales agreement with defendants Reely was not furnished to plaintiffs until January 18, 1974, almost nine months after the sale had been completed. It is the rule in Montana that estoppel is not favored and will only be sustained upon clear and convincing evidence. Fiers v. Jacobson, 123 Mont. 242, 211 P.2d 968. Such clear and convincing evidence is lacking in the instant case.
As their last equitable defense to plaintiffs’ preemptive right, defendants assert the doctrine of laches.
We hold the doctrine of laches does not apply to the facts of this case for two basic reasons. First, and most obvious, plaintiffs could not exercise their right of first refusal until they had access to the terms of the sale. Such notice of terms was not made available until January 18, 1974. Thereafter on January 23, 1974, plaintiffs gave notice to defendants of their intention to exercise their right of first refusal. Thus once proper notice was given there was no delay in asserting their rights. Secondly, the record as heretofore discussed makes it obvious that defendants knew plaintiffs were asserting their right to notice and first refusal even before the sales contract was signed. See Montana Power Co. v. Park Electric Co-op., 140 Mont. 293, 371 P.2d 1.
Defendants next contend that any rights under the lease terminated on January 1, 1974, because of the death of lessor William Tribble in the preceding year. Defendants base this contention on that part of the lease which states:
“A. That if both of the lessors should not survive the terms of this lease, then this lease shall terminate on the next anniversary thereof (Jan. 1). * * *”
Without becoming entangled in an interpretation of the word “both” since defendant Katherine Tribble has survived her husband, we merely note this Court’s determination of when a right of first refusal accrues as stated in Weintz v. Bumgarner, 150 Mont. 306, 313, 434 P.2d 712, 716:
“Whatever language is used to describe the provision in question, it is clear that the right of the lessee to purchase accrues at such time as the lessor forms a specific intention to sell the property for a definite price of definite terms. At such time as the owner forms such specific intention to sell, the provision in question ripens into a present enforceable contract right of the lessee.”
Here the sales agreement between defendants Reely and defendants Tribble was dated April 20, 1973. Thus the plaintiffs’ right of first refusal ripened prior to January 1, 1974, and therefore could not be subject to termination simply because of the death of William Tribble.
Defendants’ final contention is that the judgments of March 11 and May 27, 1975, are void for want of certainty. Defendants having failed to demonstrate why they think the judgments are uncertain, we simply hold the judgments as clearly advising the parties of their respective rights and thus not void for want of certainty.
Believing substantial evidence exists to support the findings of the district court, we hereby affirm the judgment of that court.
MR. JUSTICES JOHN C. HARRISON, CASTLES and HAS-WELL, and The HON. RORERT SYKES, District Judge, sitting for Mr. Justice Daly, concur.
|
[
28,
27,
23,
7,
-13,
-24,
32,
53,
12,
42,
-32,
-33,
5,
31,
-5,
-51,
21,
-32,
24,
-6,
-19,
12,
-71,
29,
22,
-3,
-7,
2,
-15,
13,
-10,
-2,
-27,
-39,
-18,
35,
7,
17,
-15,
-42,
29,
28,
45,
-13,
28,
2,
65,
-16,
0,
24,
14,
38,
28,
-13,
-83,
0,
1,
-20,
-69,
52,
18,
-15,
29,
53,
32,
55,
45,
-1,
38,
-16,
5,
37,
-10,
-15,
87,
-28,
-19,
-29,
-18,
-33,
24,
14,
18,
-17,
-54,
15,
9,
0,
59,
22,
-77,
-30,
-45,
-1,
14,
20,
-6,
-4,
-34,
-4,
-36,
-31,
-14,
37,
-2,
-19,
-51,
36,
59,
55,
3,
8,
55,
-32,
-4,
6,
-57,
0,
8,
-24,
-27,
26,
16,
39,
7,
-34,
-12,
-31,
49,
1,
-11,
-24,
0,
-1,
-1,
16,
13,
-14,
-31,
-21,
34,
-9,
-29,
8,
-5,
3,
-22,
-49,
-23,
26,
-36,
10,
-20,
46,
15,
-26,
52,
45,
-30,
21,
53,
-59,
54,
-7,
2,
18,
-5,
-2,
6,
23,
-1,
2,
-8,
-27,
36,
17,
-5,
13,
-8,
9,
-1,
-12,
-17,
-61,
-23,
22,
41,
-17,
-34,
35,
-96,
-44,
-3,
-28,
3,
25,
8,
12,
-58,
31,
-7,
22,
43,
4,
17,
-53,
13,
-15,
6,
-32,
-43,
-17,
16,
-11,
17,
1,
-2,
31,
-5,
-16,
74,
-7,
-25,
-15,
-14,
-9,
8,
9,
-10,
-43,
-48,
7,
24,
31,
-26,
-22,
-3,
-4,
-21,
1,
-29,
-57,
9,
-37,
9,
-2,
-49,
-1,
11,
24,
14,
-11,
-10,
52,
22,
-20,
15,
-14,
5,
-57,
2,
-47,
-5,
-28,
17,
-55,
-27,
-5,
6,
63,
-38,
38,
7,
-10,
-61,
-46,
-18,
-10,
18,
-40,
29,
7,
-18,
-11,
14,
34,
40,
26,
-77,
-11,
-38,
-3,
-13,
-28,
31,
-17,
-4,
17,
48,
36,
-19,
12,
27,
14,
15,
1,
-31,
0,
40,
-34,
15,
-3,
-12,
-16,
-31,
-3,
-37,
14,
25,
-60,
6,
3,
72,
25,
5,
-23,
-47,
-5,
4,
13,
4,
-7,
-26,
5,
45,
5,
36,
-15,
-48,
35,
35,
20,
1,
34,
2,
14,
23,
51,
-34,
13,
-2,
9,
13,
34,
17,
-28,
3,
10,
-23,
-37,
40,
-2,
7,
-16,
-26,
38,
18,
-22,
8,
-33,
13,
36,
34,
-2,
20,
7,
37,
-8,
-29,
31,
-41,
-27,
-18,
34,
42,
3,
18,
20,
-2,
-37,
-29,
-60,
0,
56,
20,
-5,
12,
-19,
21,
-31,
-1,
7,
-33,
-35,
-20,
13,
24,
-25,
-3,
-28,
-14,
-67,
-27,
14,
21,
1,
4,
5,
5,
-3,
-6,
-1,
12,
-22,
12,
38,
44,
-12,
-2,
37,
-18,
6,
19,
-8,
48,
2,
-16,
-3,
-48,
79,
27,
61,
29,
-1,
-36,
-32,
-14,
26,
22,
-4,
-46,
36,
5,
-52,
-4,
26,
42,
-10,
-16,
-56,
18,
-6,
47,
-40,
29,
-25,
2,
-34,
6,
12,
18,
45,
56,
16,
-12,
1,
0,
-22,
-37,
12,
18,
-41,
-1,
13,
33,
21,
-8,
14,
15,
39,
-15,
22,
28,
1,
-35,
-44,
22,
16,
34,
-31,
-16,
-3,
5,
70,
-17,
-22,
-24,
-16,
-6,
43,
11,
-61,
29,
27,
-37,
39,
46,
0,
5,
-24,
35,
41,
0,
-15,
0,
27,
15,
-8,
57,
-13,
-46,
-5,
1,
-31,
-2,
-15,
26,
23,
-5,
-51,
-15,
0,
17,
0,
-64,
-3,
4,
3,
17,
-1,
21,
-17,
-6,
65,
10,
25,
-25,
35,
-37,
21,
11,
17,
6,
-11,
45,
-3,
-19,
-17,
7,
60,
-24,
-21,
-8,
8,
44,
-30,
-26,
14,
9,
-13,
-30,
-29,
24,
-27,
-53,
-13,
26,
47,
28,
8,
-46,
-16,
49,
-1,
-23,
-28,
46,
-8,
-67,
18,
-37,
72,
-23,
-15,
18,
-20,
28,
-40,
3,
10,
-43,
49,
9,
-4,
13,
-7,
14,
-46,
48,
-35,
-15,
-41,
0,
-64,
-46,
-7,
-32,
9,
7,
36,
-16,
-15,
-2,
-59,
0,
32,
-23,
15,
-31,
-16,
-26,
26,
-23,
-15,
17,
-29,
25,
-30,
3,
-10,
-32,
28,
20,
-16,
27,
50,
23,
-10,
-1,
-65,
77,
2,
-1,
-3,
19,
-26,
7,
-15,
-17,
78,
55,
-7,
24,
62,
32,
17,
62,
33,
25,
5,
2,
-33,
16,
-8,
27,
-14,
25,
-18,
-3,
22,
0,
-9,
11,
27,
-36,
-35,
11,
21,
-5,
35,
57,
20,
-20,
-36,
-6,
44,
-44,
-11,
2,
-7,
-16,
10,
22,
15,
-5,
-30,
-7,
-8,
-3,
-18,
0,
36,
-39,
-65,
32,
-71,
-14,
5,
-1,
25,
-20,
51,
20,
7,
-23,
38,
22,
8,
10,
-26,
-52,
22,
13,
43,
-17,
27,
13,
-4,
-50,
-15,
23,
-24,
-3,
15,
13,
-43,
-31,
-24,
3,
-7,
76,
-7,
-30,
17,
-48,
-55,
22,
-33,
-5,
-19,
-23,
38,
-59,
15,
15,
-56,
18,
48,
11,
17,
-53,
-23,
-10,
-37,
8,
-26,
50,
7,
24,
68,
14,
-32,
21,
-55,
-14,
40,
0,
56,
-40,
-1,
-32,
-14,
9,
26,
-13,
21,
-9,
28,
-44,
46,
-42,
-23,
2,
-5,
-38,
-13,
0,
8,
8,
13,
7,
-14,
-38,
62,
11,
9,
-4,
20,
-32,
48,
13,
-61,
10,
-11,
5,
-30,
0,
28,
10,
5,
-14,
-47,
-8,
-29,
39,
28,
-1,
-3,
-8,
5,
-34,
-3,
40,
31,
-4,
-17,
6,
-20,
36,
40,
44,
-12,
12,
53,
38,
-10,
40,
-13,
-23,
36,
-12,
7,
-15,
67,
28,
-10,
4,
-10,
67,
-3,
-5,
5,
-54,
47,
8,
9,
9,
30,
7,
-1,
3,
-29,
-40,
24,
0,
-1,
48,
-53,
-32,
-36,
-48,
6,
-3,
24,
-12,
16,
25,
22,
12,
-19,
22,
12,
-81,
-16,
-61,
-9,
-39,
-30,
45,
14,
16,
-11,
-67,
-24,
-49,
-21,
-28,
-26,
4,
23,
-19,
5,
-12,
-53,
-17,
8,
4,
-5,
-18,
-12,
-19,
12,
32,
-5,
10,
13,
41,
-61,
8,
3,
-19,
17,
-4,
18,
35,
17,
-12,
-20,
22,
-32,
-61,
0,
-4,
-47,
6,
-47,
7,
89,
-15,
-14,
-1,
-38,
19,
9,
-9,
16,
13,
65,
16,
2,
-11,
-31,
-55,
3,
-29,
31,
-30,
-17,
-40,
4,
12,
4,
16,
-9,
46,
9,
-29,
-2,
-12,
-5,
9,
-27,
-17,
-10,
-45,
31,
-6,
8,
60,
-39,
-16,
-10,
18,
-62,
-14,
0,
-17,
-8,
-15,
12,
-31,
-24,
34,
-14
] |
MR. JUSTICE SMITH
delivered the opinion of the court.
The plaintiff is a life insurance company, incorporated under the laws of the state of New York, doing a general life insuranee business in every country of the civilized world, including all of the states, territories, and possessions of the United States. During the year 1909 it received from policy-holders residing in Deer Lodge county in this state premiums aggregating the sum of $14,233.41. The insurance losses sustained and the ordinary expenses incurred, in the county, during the year amounted to $8,888.41; the excess of premiums over losses and ordinary expenses being the sum of $5,345. In the year 1910 the county assessor of the county, claiming to act by virtue of section 4073, Revised Codes, placed the plaintiff’s name on the assessment-roll as the owner of personal property in the said sum of $5,345, and thereupon the taxing authorities imposed a tax against it in the sum of $209.79, based upon said excess of premiums over losses and ordinary expenses. This latter sum it paid under protest, and this action was brought to recover the same. It is alleged in the complaint that “all the business of the plaintiff now doing or hitherto done with the state, or with residents, citizens, or inhabitants thereof, * * * is interstate intercourse, and is commerce among the several states, within the meaning of that clause of section 8, Article I, of the Constitution of the United States, which invests the Congress with power to regulate commerce among the several states. * * * Said tax was and is illegal, unlawful, and void, for that said defendant was without jurisdiction to levy or collect said tax, and the levy and collection thereof was and is a burden upon interstate commerce.” The district court of Deer Lodge county sustained a general demurrer to the complaint, whereupon plaintiff refused to further plead, and judgment was entered in favor of the defendant. The appeal is from the judgment. Appellant’s contention is that the tax was illegal and void, for the reasons set forth in the complaint.
Section 4073, Revised Codes, reads as follows: “Each and every insurance corporation or company transacting business in this state must be taxed upon the excess of premiums received over losses and ordinary expenses incurred within the state during the year previous to the year of listing in the county where the agent conducts the business, properly proportioned by the corporation or company at the same rate that all other personal property is taxed, and the agent shall render the list, and be personally liable for the tax; and if he refuse to render the list or to make affidavit that the same is correct, to the best of his knowledge and belief, the amount may be assessed according to the best knowledge and discretion of the assessor. Insurance companies and corporations are subject to no other taxation under the laws of this state, except taxes on real estate and the fees imposed by law.”
Several paragraphs of the complaint are devoted to a narration of the manner in which the business of life insurance is carried on and transacted between the plaintiff and its policy-' holders. Among others we find paragraph 5, which we quote: “Said several policies provide for advances or loans to the policy-holder on the pledge of the policy as security, and pursuant to said provision the plaintiff has outstanding advances or loans made to its policy-holders in said state aggregating the sum of, to-wit, $432,878. For more than ten years last past the plaintiff has had outstanding advances or loans to policyholders in said state aggregating a large sum. Said loans have each and all been made by the policy-holder transmitting to the home office of the plaintiff an application for the loan, which said application the plaintiff considered and acted upon at its home office, and, if it accepted it, the plaintiff made out at its home office a loan agreement which it forwarded by mail for execution, and, after executing it, the policy-holder forwarded the loan agreement and the policy to the home office, and, on receipt thereof at its home office, the plaintiff forwarded the proceeds of the loan by mail to the policy-holder within said state by the plaintiff’s cheek drawn to the policy-holder’s order on its bank account in the city of New York. In this manner the plaintiff is continuously making advances to its policy-holders in Montana.” "Whether this and other paragraphs of the complaint were inserted in order to distinguish the case from that of Northwestern Mutual Life Ins. Co. v. Lewis & Clark County, 28 Mont. 484, 98 Am. St. Rep. 572, 72 Pac. 982, and other cases herein cited, we do not know. At the argument no suggestion to that effect was advanced, and we find nothing of it in the printed brief. We shall therefore assume that the plaintiff company is engaged in the same general line of business as was the plaintiff in Northwestern Mutual Life Ins. Co. v. Lewis & Clark County.
In Paul v. Virginia, 8 Wall. 168, 183, 19 L. Ed. 357, the supreme court of the United States, speaking through Mr. Justice Field, said: “Issuing a policy of insurance is not a transaction of commerce. The policies are simply contracts of indemnity against loss (by fire), entered into between the corporations and the assured, for a consideration paid by the latter. These contracts are not articles of commerce in any proper meaning of the word. They are not subjects of trade and barter offered in the market as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one state to another, and then put up for sale. They are like other personal contracts between parties which are completed by their signature and the transfer of the consideration. Such contracts are not interstate transactions, though the parties may be domiciled in different states.” See, also, Ducat v. Chicago, 10 Wall. 410, 19 L. Ed. 972, Philadelphia Fire Assn. v. New York, 119 U. S. 110, 7 Sup. Ct. 108, 30 L. Ed. 342, Hooper v. California, 155 U. S. 648, 15 Sup. Ct. 207, 39 L. Ed. 297, Nutting v. Massachusetts, 183 U. S. 553, 22 Sup. Ct. 238, 46 L. Ed. 324, and Western Union Tel. Co. v. Kansas, 216 U. S. 1, 45, 30 Sup. Ct. 190, 54 L. Ed. 355; also the case of New York Life Ins. Co. v. Cravens, 178 U. S. 389, 401, 20 Sup. Ct. 962, 967, 44 L. Ed. 1116, where the court again said, in a cause to which this appellant was a party: “The business of insurance is not commerce. ’ ’
But the question here involved has been decided in this state in Northwestern Mutual Life Ins. Co. v. Lewis and Clark County, supra, although it does not appear from the report of that decision that section 8, Article I, of the federal Constitution, was in terms invoked by the plaintiff. The court in that case said: “The legislature has the right to prescribe reasonable terms upon which foreign corporations may do business in this state. The character, kind, and amount of business done by the company, as well as the situs of its tangible property, may be considered in applying the various systems of taxation. The franchise of a corporation is granted by the jurisdiction where 'the company is incorporated, and its situs is in the state or country of its origin; but, before the company can do business in this state, it must comply with the terms of the statute relating thereto, and upon such compliance a certificate of authority is issued to it. It then stands under this law on the same footing with domestic companies, and is subject to the same taxation on the same class of property. This certificate of authority issued to a foreign insurance company confers upon such company a privilege or right not possessed or enjoyed by citizens generally, and not conferred upon it by its original franchise. This right or privilege so conferred is in that sense a franchise, and by it the company is authorized to establish, conduct, and maintain an insurance business, the value of which is ascertained in the manner prescribed by statute; that is, ‘the excess of premiums over losses and ordinary expenses incurred.’ It applies only to business transacted within the state, and is not objectionable as interfering with interstate commerce. ’ ’
We therefore-hold that the life insurance business from which arose the excess of premiums over losses and ordinary expenses upon which the assessor of Deer Lodge county levied a tax is not interstate business, and is not commerce within the meaning of section 8, Article I, of the federal Constitution.
The judgment is affirmed.
Affirmed.
Mr. Justice Brantly and Mr. Justice Holloway concur.
Appeal taken to supreme court of the United States, June 17, 1911.
|
[
-4,
28,
13,
-37,
12,
27,
18,
-30,
28,
-22,
15,
64,
-6,
6,
56,
-29,
-16,
-35,
8,
39,
-2,
-9,
0,
-80,
-37,
-26,
-3,
21,
17,
10,
34,
0,
-25,
-12,
15,
15,
-55,
-2,
-12,
25,
-29,
-13,
15,
5,
-8,
73,
-13,
-42,
37,
28,
80,
-28,
-4,
-2,
-16,
-18,
-1,
15,
19,
23,
-30,
-56,
59,
20,
14,
-36,
0,
16,
43,
3,
-6,
-25,
-8,
36,
12,
-19,
-20,
-10,
-84,
-52,
-46,
-48,
41,
-30,
-67,
61,
-41,
-10,
18,
4,
1,
20,
42,
-57,
17,
5,
10,
8,
-82,
53,
45,
-33,
-43,
49,
55,
20,
10,
-1,
12,
-9,
32,
35,
-59,
16,
4,
19,
-20,
20,
0,
0,
15,
-10,
19,
10,
-41,
33,
3,
4,
-37,
-4,
-23,
29,
21,
6,
-38,
-14,
-20,
-79,
34,
17,
-23,
-38,
-7,
-60,
-7,
38,
23,
-20,
-52,
-24,
-3,
74,
19,
-22,
-41,
-71,
-50,
-60,
44,
-71,
8,
-4,
8,
20,
-34,
44,
12,
-13,
-35,
52,
37,
-44,
-12,
-39,
27,
47,
-14,
-36,
-40,
27,
-59,
6,
-17,
-6,
3,
-89,
61,
-13,
7,
-8,
70,
-26,
-60,
-16,
-31,
35,
53,
47,
8,
2,
12,
-34,
40,
-26,
22,
32,
10,
3,
-9,
10,
33,
-33,
-13,
-7,
-39,
80,
-63,
-53,
-13,
11,
18,
13,
-26,
-13,
24,
-63,
-62,
5,
-11,
-26,
-47,
12,
-20,
40,
-43,
13,
8,
-10,
-19,
38,
-43,
-3,
27,
-39,
70,
40,
8,
51,
-6,
20,
18,
-28,
24,
59,
-30,
2,
1,
-6,
5,
-46,
-37,
44,
-29,
-25,
32,
-37,
41,
-19,
28,
10,
-22,
-14,
54,
5,
3,
-71,
34,
-4,
42,
2,
-9,
18,
43,
0,
-3,
15,
23,
-4,
38,
-40,
13,
15,
85,
36,
26,
34,
19,
4,
28,
29,
8,
42,
44,
11,
16,
-12,
-28,
-7,
-12,
-4,
-13,
-3,
-30,
-37,
47,
-7,
-3,
-12,
24,
56,
44,
58,
10,
36,
9,
11,
32,
-29,
7,
-20,
-72,
23,
40,
-8,
-7,
-74,
-11,
-30,
10,
-5,
-12,
13,
-5,
-18,
-4,
21,
-4,
-4,
9,
16,
-58,
33,
-42,
-19,
14,
57,
63,
4,
-12,
0,
48,
20,
45,
-32,
3,
-21,
-12,
-37,
-22,
22,
29,
37,
-12,
-31,
-15,
-6,
-62,
53,
-54,
-22,
69,
-34,
20,
13,
10,
45,
53,
-48,
-19,
-29,
16,
50,
18,
107,
-36,
-10,
-11,
-61,
-23,
-20,
24,
31,
-35,
-30,
-17,
-18,
31,
-13,
-65,
32,
-72,
-41,
35,
-36,
-5,
49,
15,
-3,
18,
-40,
81,
-18,
41,
-9,
-6,
-83,
-13,
59,
-51,
-14,
-28,
-46,
-75,
-24,
12,
-44,
2,
-13,
43,
42,
-26,
40,
-23,
-29,
-2,
-33,
-26,
49,
51,
-45,
11,
-21,
-3,
2,
-38,
36,
12,
-61,
43,
-29,
35,
32,
-25,
36,
-3,
25,
5,
26,
69,
-23,
10,
-16,
-55,
14,
58,
-5,
-32,
-51,
18,
8,
-27,
9,
-4,
-25,
-17,
7,
2,
26,
-27,
-19,
30,
14,
7,
-33,
-29,
-11,
-26,
-2,
11,
-61,
-41,
-29,
37,
-24,
-15,
10,
-26,
-16,
12,
11,
27,
-46,
52,
37,
40,
10,
-58,
32,
47,
30,
-6,
-38,
-47,
-18,
48,
-16,
-1,
38,
76,
-12,
21,
8,
16,
-2,
-30,
42,
38,
32,
1,
-16,
25,
39,
38,
38,
13,
12,
52,
-17,
33,
-12,
50,
-67,
-8,
30,
10,
-46,
6,
-81,
-14,
18,
22,
13,
-39,
-25,
16,
-29,
6,
-40,
10,
-82,
-71,
-36,
4,
-50,
-25,
1,
-35,
-36,
-4,
-34,
-31,
1,
-34,
-27,
2,
36,
-26,
10,
-12,
-9,
3,
12,
-47,
63,
36,
-39,
21,
-24,
-33,
-21,
-22,
-6,
-30,
1,
-3,
-25,
7,
4,
55,
23,
6,
-15,
-3,
19,
6,
42,
24,
8,
18,
-33,
38,
9,
30,
-1,
22,
27,
-28,
8,
-48,
68,
20,
0,
-10,
-36,
-26,
-31,
25,
63,
13,
-61,
20,
-42,
39,
40,
-19,
51,
14,
12,
-33,
-33,
0,
10,
-8,
-18,
-39,
0,
20,
-14,
-17,
32,
-18,
-32,
47,
31,
14,
-36,
13,
-40,
11,
-14,
-39,
-87,
-19,
18,
25,
-5,
-52,
51,
2,
30,
-11,
-31,
-41,
51,
20,
8,
-23,
21,
25,
25,
-18,
-17,
-39,
-5,
-48,
36,
13,
10,
-18,
6,
50,
5,
-9,
17,
-5,
53,
-8,
-6,
14,
-32,
51,
-45,
-2,
-27,
-56,
21,
-1,
-10,
-5,
12,
-12,
-87,
14,
-21,
12,
-4,
12,
-13,
-30,
21,
-10,
8,
-45,
37,
-54,
-2,
19,
2,
6,
-20,
71,
35,
-1,
34,
-11,
45,
3,
10,
86,
27,
6,
42,
12,
-54,
-32,
-32,
-35,
44,
33,
-19,
-7,
65,
6,
76,
17,
26,
-12,
-33,
-22,
-36,
8,
64,
-2,
12,
19,
26,
2,
20,
-51,
7,
18,
10,
6,
-69,
-67,
2,
17,
-4,
19,
21,
0,
35,
11,
-2,
-81,
3,
14,
32,
30,
10,
-25,
72,
-14,
-2,
30,
29,
4,
0,
33,
25,
-37,
-31,
24,
-61,
2,
-40,
-87,
-10,
19,
-49,
-26,
19,
27,
21,
49,
-48,
-33,
2,
-7,
-11,
18,
-18,
-104,
3,
4,
-3,
51,
14,
-45,
-23,
56,
52,
-52,
72,
14,
15,
-43,
-10,
-35,
0,
-82,
-19,
8,
-28,
-13,
1,
41,
-4,
48,
-34,
-13,
-29,
-5,
3,
8,
11,
-30,
11,
-29,
30,
-74,
78,
15,
4,
-10,
20,
-13,
-5,
42,
-14,
-73,
5,
8,
46,
-18,
3,
33,
3,
-52,
0,
51,
-36,
3,
9,
26,
3,
-58,
31,
33,
-47,
-19,
-2,
32,
0,
-22,
40,
21,
-35,
-36,
21,
37,
-22,
-4,
-20,
-45,
22,
33,
-80,
-27,
34,
32,
-29,
-15,
10,
-45,
-7,
38,
28,
23,
41,
-17,
21,
-13,
95,
-14,
-32,
-22,
-55,
-40,
-2,
28,
-46,
39,
-49,
-14,
-18,
11,
-29,
-42,
9,
25,
16,
22,
80,
-14,
-7,
-58,
-56,
12,
-2,
-51,
45,
-30,
3,
2,
-23,
77,
-3,
26,
-65,
23,
-27,
58,
-39,
7,
-17,
54,
6,
-45,
-31,
36,
55,
46,
18,
-13,
43,
31,
11,
-17,
23,
-16,
39,
13,
25,
21,
0,
30,
-5,
-5,
-43,
10,
-19,
15,
-2,
4,
-41,
13,
26,
57,
-25,
-42,
-17,
7,
-16,
1,
51,
-28,
26,
-44,
-46,
1,
2,
-39,
-20
] |
ORDER
PER CURIAM:
Relator applies for an appropriate writ to require the respondent district court to dismiss the action set forth and described in the petition in the above numbered original proceeding.
Counsel was heard ex parte and the matter taken under advisement.
The Court now having further considered the matter and being advised, orders that the relief sought be denied.
This proceeding is ordered dismissed.
|
[
-21,
-72,
9,
3,
82,
-51,
25,
-2,
-14,
26,
-21,
-19,
-87,
46,
-20,
37,
6,
-63,
43,
-29,
4,
68,
62,
-30,
-12,
-37,
14,
-64,
65,
-29,
-75,
-45,
-41,
28,
0,
-64,
-7,
-30,
47,
23,
-39,
18,
32,
32,
-65,
8,
-12,
22,
-3,
-36,
0,
-10,
-65,
35,
-10,
-28,
18,
0,
24,
-42,
-37,
24,
-25,
46,
9,
38,
-49,
-40,
-41,
44,
-35,
-14,
59,
6,
9,
-45,
-36,
-47,
45,
37,
28,
79,
14,
59,
33,
17,
-17,
42,
-4,
22,
-7,
20,
-5,
-13,
-22,
25,
53,
2,
-25,
42,
31,
46,
34,
-15,
-31,
-57,
58,
-13,
26,
18,
12,
18,
-45,
-34,
-26,
44,
-32,
-52,
17,
4,
-16,
-69,
15,
6,
15,
54,
-52,
3,
29,
30,
-11,
46,
42,
37,
58,
-28,
42,
35,
-21,
21,
-15,
-65,
30,
9,
3,
-31,
30,
28,
-61,
-9,
44,
61,
-60,
46,
27,
-20,
11,
-53,
39,
86,
65,
-24,
-51,
29,
8,
14,
-53,
-29,
35,
-42,
14,
-25,
5,
16,
-66,
-16,
-37,
46,
21,
3,
52,
18,
14,
-43,
-35,
15,
-31,
32,
6,
0,
-23,
-46,
21,
81,
72,
23,
-29,
-5,
24,
8,
-69,
23,
-81,
11,
9,
-17,
-45,
-60,
55,
5,
0,
16,
-58,
-10,
14,
-54,
18,
-10,
0,
64,
24,
-30,
63,
45,
-38,
-56,
-14,
32,
-13,
115,
57,
19,
-42,
0,
37,
4,
67,
47,
25,
-13,
-16,
48,
30,
-41,
-32,
-1,
6,
60,
35,
-57,
-14,
40,
10,
-13,
7,
-20,
-21,
87,
-44,
-51,
17,
10,
-28,
-23,
-13,
36,
30,
8,
39,
-41,
-6,
52,
24,
49,
45,
23,
-55,
10,
0,
28,
-63,
2,
-23,
-70,
-20,
40,
-6,
-68,
20,
1,
-9,
0,
-12,
-41,
-3,
28,
-48,
-16,
-1,
-17,
-44,
-44,
10,
12,
0,
-28,
42,
16,
10,
-59,
-13,
5,
49,
23,
-69,
32,
-34,
-24,
22,
-37,
14,
5,
-24,
0,
-29,
16,
7,
28,
18,
35,
-8,
-2,
-36,
-6,
-38,
116,
-22,
-2,
-20,
5,
-23,
32,
-57,
26,
2,
-28,
56,
-31,
3,
18,
-34,
-1,
7,
-32,
103,
-30,
-28,
-32,
-31,
40,
43,
23,
18,
-45,
94,
-13,
25,
12,
-18,
39,
-19,
2,
1,
-47,
-30,
-63,
-16,
21,
1,
-25,
-18,
-71,
101,
13,
-5,
56,
-14,
44,
-9,
-30,
13,
-33,
51,
-57,
-65,
29,
-21,
4,
27,
84,
88,
-20,
0,
3,
10,
-28,
1,
0,
0,
14,
-13,
68,
4,
16,
30,
-21,
-2,
21,
37,
-2,
-5,
-48,
7,
11,
-39,
54,
-23,
-66,
19,
23,
14,
-26,
18,
30,
20,
22,
-8,
-22,
2,
5,
1,
-46,
32,
5,
-19,
7,
-49,
-46,
11,
-40,
-22,
-2,
-14,
-35,
2,
38,
-6,
80,
-5,
17,
16,
4,
-11,
12,
-48,
-1,
28,
37,
-4,
34,
-39,
-35,
23,
31,
-6,
-8,
-18,
-15,
-15,
6,
-47,
31,
4,
-37,
-34,
47,
37,
-53,
-14,
38,
-30,
-18,
-6,
-9,
-9,
-60,
-45,
-26,
-63,
-23,
57,
34,
19,
-9,
33,
-8,
7,
-5,
1,
-62,
-6,
-3,
45,
8,
20,
37,
49,
-22,
-15,
17,
-71,
-5,
-2,
-27,
-16,
-29,
-12,
17,
4,
35,
41,
-68,
-21,
-27,
-26,
15,
17,
3,
47,
6,
6,
22,
20,
-2,
8,
73,
7,
48,
11,
11,
-25,
2,
34,
17,
-9,
4,
-52,
-51,
45,
-50,
42,
-23,
-75,
17,
-35,
7,
11,
-18,
4,
85,
-20,
2,
-2,
2,
22,
-40,
3,
-38,
12,
-11,
-3,
-16,
-16,
-58,
25,
-54,
26,
-6,
18,
-44,
-21,
-2,
-4,
-21,
19,
-23,
-53,
-12,
24,
0,
-27,
-4,
44,
48,
-2,
-4,
18,
19,
18,
-17,
34,
23,
-33,
-4,
-23,
-25,
13,
53,
59,
54,
-9,
22,
-12,
42,
36,
-43,
-27,
-34,
-23,
8,
9,
50,
35,
-51,
-53,
41,
0,
64,
20,
-53,
-38,
60,
-2,
-43,
-27,
-61,
27,
-5,
39,
21,
34,
74,
2,
-29,
27,
-108,
-11,
15,
40,
22,
-77,
-70,
-40,
-28,
-5,
23,
1,
20,
-22,
24,
-26,
32,
-20,
-20,
-22,
-6,
-47,
13,
-40,
1,
-2,
-18,
9,
21,
7,
0,
48,
12,
-52,
39,
43,
-31,
-26,
-9,
-1,
-6,
21,
13,
21,
-24,
20,
-83,
22,
41,
-15,
-27,
-22,
10,
-29,
-33,
-3,
-12,
-12,
-19,
2,
-50,
-13,
-35,
-3,
-23,
23,
11,
-25,
49,
9,
-32,
35,
-25,
33,
-39,
19,
-10,
53,
-44,
-48,
-8,
-36,
-18,
38,
-2,
15,
32,
-3,
-82,
15,
24,
-16,
28,
9,
5,
25,
-89,
-37,
43,
13,
10,
29,
-39,
62,
58,
-4,
-6,
24,
11,
8,
48,
7,
-12,
-19,
-6,
3,
13,
52,
-19,
-69,
-11,
-50,
39,
40,
16,
-18,
-92,
-42,
45,
15,
-7,
34,
-34,
-42,
-37,
76,
24,
-40,
9,
13,
-36,
9,
-59,
29,
-15,
3,
-12,
46,
43,
0,
71,
-77,
77,
-18,
18,
-8,
-6,
-37,
21,
20,
29,
-49,
-5,
-33,
-50,
-13,
20,
0,
67,
3,
37,
6,
-2,
25,
33,
61,
-74,
-1,
66,
-101,
-17,
63,
-22,
-34,
-17,
2,
-4,
-42,
6,
70,
-23,
-35,
30,
5,
-8,
30,
-10,
18,
45,
8,
-12,
-4,
8,
7,
-13,
40,
27,
20,
-66,
-27,
-10,
-68,
14,
59,
-36,
66,
-16,
-6,
33,
20,
-2,
33,
-31,
-8,
-18,
23,
25,
-34,
-17,
-18,
2,
21,
-75,
-30,
26,
15,
45,
3,
50,
8,
1,
-62,
-46,
-29,
-5,
-4,
14,
54,
17,
37,
-33,
-41,
79,
20,
1,
-10,
49,
22,
15,
-6,
-37,
0,
9,
-9,
-1,
30,
28,
17,
-51,
9,
-42,
47,
39,
-31,
0,
48,
-12,
2,
4,
-28,
-52,
-26,
20,
-88,
31,
-30,
-5,
5,
11,
56,
-41,
-16,
-50,
38,
11,
0,
-52,
-27,
-21,
-12,
13,
43,
88,
3,
27,
-15,
-21,
-51,
49,
-50,
19,
-19,
27,
5,
-11,
-21,
32,
22,
0,
-17,
-2,
8,
-56,
-35,
52,
-30,
-27,
20,
-69,
-88,
20,
-7,
43,
1,
-48,
29,
23,
-55,
-48,
12,
40,
-1,
20,
20,
12,
-59,
-3,
10,
-5,
2,
28,
37,
10,
-68,
2,
46,
8,
40,
11,
-21,
-46,
-23,
-28,
7,
-20,
-6,
-34,
21,
-70
] |
MR. JUSTICE JOHN C. HARRISON
delivered the opinion of the court.
This is an appeal by plaintiff Clinton Sweet from a judgment of the district court granting defendant Kenneth Edmonds’ motion for a directed verdict. Plaintiff was injured when his automobile was struck by another automobile driven by defendant. Plaintiff’s subsequent negligence action against defendant was tried in January 1975 before a jury in Yellowstone County. At the close of plaintiff’s case in chief, defendant moved for a directed verdict on the grounds plaintiff was contributorily negligent and the proof was insufficient to show that any negligence on the part of defendant was a proximate cause of the collision. The district court granted defendant’s motion. After careful examination of the record, we hold the district court should have allowed the case to go to the jury.
The collision occurred in the early morning hours at the intersection of Sixth Street West and Broadwater Avenue in Billings, Montana. At that point Broadwater was a four lane through street and there was a stop sign on Sixth. The posted speed limit was twenty-five miles per hour. The street was dry, the weather was clear, and the intersection was lit by a street light on the corner.
Plaintiff testified at the trial that he approached Broadwater from the south, stopped at the stop sign on Sixth, and looked in both directions for traffic. He said he was turning right onto Broadwater when he was hit from behind by defendant’s automobile which was proceeding east on Broadwater in the far right hand lane. Plaintiff conceded he had a clear view to the west of about one city block when stopped at the intersection, but maintained he never saw defendant’s automobile. Defendant testified he was driving about thirty miles per hour and saw plaintiff’s automobile only a second before the collision.
Defendant argues plaintiff violated the right-of-way rule . established by section 32-2172, R.C.M.1947, and was contributorily negligent as a matter of law by entering Broadwater when defendant’s automobile was so close as to constitute an immediate hazard. The defense of contributory negligence, by definition, requires proof of both negligence and proximate cause. Grabs v. Missoula Cartage Co., 169 Mont. 216, 545 P.2d 1079; Gilleard v. Draine, 159 Mont. 167, 171, 496 P.2d 83. We said in Erickson v. Perrett, 169 Mont. 167, 545 P.2d 1074, 1077:
“We note that the mere happening of an accident is insufficient evidence of negligence. Flansberg v. Montana Power Co., 154 Mont. 53, 58, 460 P.2d 263; Fries v. Shaughnessy, 159 Mont. 307, 310, 496 P.2d 1159. Further when the breach of a statutory duty is alleged, that duty required by statute must be the efficient or proximate cause of the damages for negligence to be predicated on the violation of the statute. Joki v. McBride, 150 Mont. 378, 436 P.2d 78; Rauh v. Jensen, 161 Mont. 443, 445, 507 P.2d 520.”
Defendant- has computed from testimony in the record concerning the point of impact and the respective speeds of the two vehicles that he was only about ninety-six feet away when plaintiff began turning onto Broadwater. As plaintiff testified he had a clear view to the west of about one city block, defendant concludes plaintiff was negligent in not seeing him and in the alternative that if plaintiff did see defendant’s automobile he was negligent in turning onto Broadwater in the face of obvious danger.
On the other hand, plaintiff .testified he stopped at the intersection, looked to the west, and did not see defendant’s automobile. In Jessen v. O’Daniel, 136 Mont. 513, 523, 349 P.2d 107, 112 we said:
“* * * A motorist is not required to look for miles up a road in order to ascertain that there are no vehicles approaching. All that is required of him is that he look sufficiently far to be sure that there are no approaching vehicles which, in the mind of a reasonably prudent person, would be likely to cause an accident if he proceeded into the intersection.”
It is undisputed that defendant was driving in excess of the legal speed limit, a fact which plaintiff was not bound to anticipate. Grabs v. Missoula Cartage Co., 169 Mont. 216, 545 P.2d 1079. Defendant also testified he did not see plaintiff’s automobile until immediately before the collision. A favored driver cannot rely absolutely on his right-of-way; he must act reasonably and maintain a proper lookout. Flynn v. Helena Cab & Bus Co., 94 Mont. 204, 215, 21 P.2d 1105.
In McGuire v. Nelson, 167 Mont. 188, 195, 536 P.2d 768, 772, we said:
“It has long been held by this Court that declared against static tests or using the law does not favor directed verdicts and the evidence therefore will be viewed in the light most favorable to appellants, as having proved what it tends to prove. Johnson v. Chicago, M. & St. P. R. Co., 71 Mont. 390, 394, 230 P. 52. This Court has also long held that cases should not be withdrawn from a jury unless reasonable and fair-minded men could reach only one conclusion from the facts. In re Estate of Hall v. Milkovich, 158 Mont. 438, 492 P.2d 1388.”
The facts here do not dictate that plaintiff was contributorily negligent. We cannot say defendant’s automobile was so close to' the intersection when plaintiff turned onto Broadwater as to create an immediate hazard as a matter of law. Whether plaintiff could reasonably expect to complete the turn safety was a question for the jury. The jury should also have been allowed to determine whether plaintiff’s actions were the proximate cause of the collision rather than defendant’s excessive speed or his failure to keep a proper lookout.
Similarly, the directed verdict should not have been granted on the basis that plaintiff failéd to prove a causal relationship between defendant’s acts and the collision. The evidence was undisputed that: (1) defendant was driving in excess of the legal speed limit; (2) he had been drinking prior to the collision; and (3) he did not see plaintiff’s automobile until immediately before the collision. When viewed in a light most favorable to plaintiff, this evidence is sufficient to enable a jury to reasonably find defendant’s conduct was the proximate cause of the collision.
The judgment is reversed and the cause is remanded for a new trial.
MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICE HASWELL concur.
|
[
-30,
69,
0,
2,
-19,
-43,
41,
-14,
-9,
48,
-35,
2,
28,
-19,
18,
-59,
6,
-32,
1,
-27,
-23,
-55,
-69,
-50,
21,
-16,
-6,
-16,
-17,
-4,
68,
25,
7,
-14,
8,
53,
7,
29,
0,
3,
104,
50,
-32,
-39,
60,
-20,
-7,
0,
31,
-23,
-29,
-7,
-39,
-26,
-20,
21,
25,
53,
-62,
36,
-1,
-4,
21,
5,
-18,
-12,
31,
-14,
-29,
-15,
-78,
-7,
3,
19,
38,
-32,
20,
19,
-6,
30,
-6,
23,
54,
13,
-8,
-18,
-26,
-13,
-32,
-29,
-12,
-28,
21,
1,
-3,
37,
29,
-32,
21,
-6,
-57,
-8,
36,
11,
-8,
-10,
-9,
-29,
46,
28,
-6,
47,
-16,
25,
-2,
28,
51,
21,
12,
36,
8,
-5,
25,
67,
-8,
-4,
22,
18,
-9,
-19,
-1,
-20,
6,
-15,
40,
19,
-40,
-49,
14,
51,
-1,
-40,
18,
42,
-47,
58,
5,
51,
21,
13,
-7,
21,
0,
-39,
-14,
-52,
-7,
-58,
53,
32,
15,
-19,
30,
52,
0,
48,
-14,
33,
0,
2,
11,
-59,
56,
-36,
21,
16,
-16,
-22,
-77,
15,
-14,
25,
74,
-6,
-42,
-16,
0,
24,
6,
-29,
-18,
-18,
-52,
-29,
16,
10,
49,
-6,
6,
27,
71,
-22,
15,
-5,
-33,
30,
-14,
-24,
29,
-10,
4,
-55,
-5,
-17,
25,
-3,
6,
-44,
-5,
-46,
27,
8,
18,
-31,
-31,
-14,
-97,
-51,
-5,
0,
-2,
-13,
-39,
10,
22,
-18,
-45,
-54,
3,
-24,
54,
-11,
10,
-22,
23,
61,
-24,
-18,
-13,
17,
14,
-12,
14,
4,
32,
-35,
20,
1,
-16,
-40,
72,
63,
-6,
-3,
-11,
-5,
12,
-3,
1,
-36,
-47,
27,
25,
19,
-27,
-49,
-3,
32,
23,
47,
-26,
-11,
-15,
-11,
-13,
33,
14,
55,
5,
8,
35,
-78,
-25,
33,
-30,
35,
4,
-9,
-48,
-8,
48,
-50,
-1,
-3,
6,
-34,
-35,
3,
-13,
43,
-14,
-8,
-23,
-19,
9,
32,
2,
1,
52,
-75,
10,
63,
34,
-42,
-42,
73,
26,
-11,
-37,
20,
18,
81,
1,
43,
64,
-61,
24,
-4,
29,
12,
8,
-21,
18,
1,
-11,
50,
74,
60,
-6,
0,
-51,
-5,
8,
-44,
-46,
5,
-2,
-44,
-22,
-9,
-19,
-15,
0,
-15,
-20,
-21,
5,
-6,
-56,
48,
-41,
-11,
35,
-2,
-56,
-49,
48,
10,
-48,
49,
39,
-37,
-20,
-68,
-1,
7,
-9,
-17,
-59,
-5,
-26,
-28,
56,
21,
21,
0,
6,
-16,
-46,
12,
-17,
44,
3,
-67,
-32,
-35,
23,
-10,
-31,
-37,
-5,
-42,
25,
2,
-2,
-14,
9,
-21,
-60,
-5,
16,
11,
3,
-25,
3,
-22,
-16,
56,
-27,
-24,
29,
23,
4,
-6,
-4,
40,
13,
-51,
40,
-4,
-14,
-23,
-25,
-5,
14,
14,
20,
5,
18,
38,
53,
28,
45,
45,
2,
55,
47,
-35,
15,
-17,
8,
-6,
10,
-30,
26,
-17,
0,
-22,
41,
-16,
0,
45,
3,
5,
40,
29,
-52,
-29,
-22,
-65,
-33,
-6,
2,
-1,
17,
7,
18,
-5,
20,
22,
19,
54,
-20,
-15,
-11,
-8,
0,
49,
-38,
-46,
-26,
-2,
-45,
-14,
18,
-51,
20,
-11,
-39,
1,
10,
45,
34,
-27,
-17,
36,
11,
-16,
15,
12,
27,
1,
-9,
-33,
-35,
-27,
-48,
-1,
0,
-46,
10,
34,
-10,
-17,
10,
21,
-5,
30,
2,
-2,
-11,
11,
1,
-60,
-16,
22,
-10,
25,
34,
10,
15,
21,
49,
22,
11,
-21,
10,
-15,
30,
27,
54,
30,
7,
22,
-3,
40,
-17,
-74,
40,
-22,
-52,
22,
-37,
-65,
-15,
-3,
-30,
32,
-62,
-17,
2,
34,
-15,
-44,
-43,
-23,
32,
8,
1,
-1,
-55,
8,
50,
21,
11,
1,
24,
-18,
-1,
-8,
5,
-1,
-15,
58,
62,
24,
-55,
-36,
-12,
-4,
0,
31,
21,
20,
-33,
-29,
-22,
-32,
63,
-33,
-11,
-19,
71,
-31,
-32,
8,
-22,
67,
-45,
-68,
-76,
-18,
-79,
-49,
-9,
2,
-13,
22,
-42,
-11,
2,
22,
47,
-13,
1,
-34,
-10,
14,
-36,
-32,
-4,
12,
-25,
-30,
20,
60,
37,
-6,
-29,
4,
18,
12,
-47,
-41,
-59,
-14,
10,
10,
34,
45,
23,
-42,
9,
68,
54,
-26,
26,
33,
14,
36,
-20,
-55,
14,
17,
0,
13,
-33,
-18,
82,
-49,
-19,
18,
3,
-7,
-2,
11,
22,
25,
-29,
-31,
5,
-19,
-45,
12,
-27,
19,
-23,
-29,
-13,
20,
-4,
43,
-33,
-24,
-20,
6,
-18,
-6,
-35,
-18,
-14,
-37,
-23,
-21,
-29,
-11,
-11,
-7,
10,
71,
-15,
19,
5,
46,
-18,
-10,
37,
-16,
-3,
-36,
-1,
17,
32,
32,
-47,
15,
-16,
6,
-30,
-44,
9,
-10,
54,
7,
-9,
-14,
7,
46,
-24,
-24,
35,
-38,
7,
19,
-25,
-31,
22,
-1,
-2,
-17,
-12,
37,
30,
-62,
-67,
25,
10,
-46,
-7,
-30,
2,
-24,
-17,
5,
22,
25,
7,
76,
-15,
31,
28,
7,
32,
-35,
-7,
-19,
-20,
44,
-5,
-1,
-22,
-12,
38,
35,
42,
-51,
49,
59,
59,
-2,
16,
-4,
43,
5,
44,
-7,
49,
-10,
-26,
2,
27,
-3,
-42,
-1,
55,
18,
3,
-32,
35,
-8,
-16,
-31,
-2,
-5,
-67,
15,
77,
-1,
10,
5,
-6,
44,
-58,
12,
22,
40,
43,
25,
38,
38,
-28,
-2,
2,
-2,
3,
6,
-7,
-35,
3,
75,
24,
-50,
-40,
31,
-7,
-17,
6,
-13,
-68,
26,
-9,
45,
15,
58,
-27,
-5,
8,
-46,
4,
4,
24,
-80,
13,
46,
-23,
-22,
-17,
-27,
1,
38,
5,
0,
7,
-46,
-63,
-8,
-55,
19,
12,
-63,
-29,
8,
-15,
1,
8,
-36,
26,
49,
-9,
12,
0,
-8,
3,
-15,
4,
13,
-55,
12,
36,
61,
7,
29,
-20,
21,
-28,
10,
-36,
12,
-12,
36,
-24,
-3,
18,
-20,
26,
-27,
-5,
17,
-62,
1,
16,
3,
5,
43,
10,
-35,
-17,
-9,
-53,
27,
31,
-20,
-36,
29,
66,
16,
17,
-38,
28,
9,
5,
48,
36,
0,
0,
-41,
18,
-6,
30,
51,
-45,
-22,
-8,
-1,
24,
55,
-14,
-22,
-51,
-30,
10,
-3,
30,
-22,
-6,
12,
-33,
-47,
-44,
-30,
-47,
-22,
5,
9,
-7,
70,
-45,
2,
37,
-52,
6,
0,
-11,
-24,
0,
21,
41,
41,
19,
84,
-18,
37,
-25,
-33,
39,
52,
-28,
-36,
-14,
-2,
-67,
-12,
57,
-13
] |
MR. CHIEF JUSTICE JAMES T. HARRISON
delivered the opinion of the court.
Defendant Fred Alcorn d/b/a Alcorn’s Trailer City, appeals from a judgment for plaintiffs Duane L. Compton and Shirley Compton, husband and wife, entered in the district court, Cascade County, for rescission of a retail installment contract to purchase a three bedroom doublewide mobile home for $21,270 ($7,000 down, balance plus interest paid at $182.32 per month). The contract was entered into June 14, 1975, the mobile home delivered July 10, 1975, after payment of the down payment, and initial installation was completed four days later.
After this initial installation Comptons discovered these defects:
The home was not level; the two halves did not match up on the outside; the carpet was not properly laid along the seam of the two halves; the damaged dining room table was not exchanged as promised; slip covers were not furnished to cover small holes in the ribbing of the couch; the hanging and installation of a dining room light fixture and the master bathroom light fixture was not completed; the cross-over air duct, heat transfer systems, and electrical connection between the two halves were not completed; nine bolts were omitted underneath the trailer in connecting the two halves; the cabinet support around the dishwasher was broken; the shelf in the front closet was not firmly attached; the smoke detector in the hall leading to the master bedroom was hanging loose; the shelves in the china closet were not assembled; there was no T joint connecting the master bath to the hot water tank; the heater unit was loose in its alcove; and a full set of keys was not delivered with the home.
Compton telephoned Alcorn on three separate occasions to inquire about this delay in completing the installation, during the period of July 14, 1975 to August 18, 1975, during which period Mrs. Compton was in Alabama. Furthermore, he and his son finished leveling and blocking the home, and fixed the cabinet support around the dishwasher.
The only other work Alcorn did was the repair to the carpet, and the securing of the heater unit on August 1 and 2, 1975. Sometime between July 10, 1975 and August 1, 1975, the T joint to connect the master bath and the hot water tank was also installed. Alcorn contends that the remainder of the installation could not be completed until the utilities were hooked up, and such was the obligation of Comptons.
During the last of July, water damage and stains appeared in the ceiling of the family room and the hall in the north end of the home from roof leaks after a rainstorm. On August 8, 1975 Compton discovered the furnace was not vented to the outside, leaving the furnace unusable and dangerous. Smoke damage to the ceiling was also present above the heater, indicating the furnace had been started sometime prior to delivery, even though no vent was installed.
Following this last discovery, Compton awaited his wife’s return, contacted an attorney and sent his notice of rescission to Alcorn August 25, 1975. Alcorn made no attempt to contact the Comptons, contacted his attorney, and this suit followed.
Alcorn questions the findings of fact and conclusions of law of the district court granting rescission, specifically:
1) That Comptons had performed their obligations under the contract;
2) That there was a substantial failure of consideration promised by Alcorn to Comptons;
3) That rescission of the contract was in order; and
4) Comptons were entitled to reasonable attorney fees.
The scope of review applied to a district court’s findings of fact and conclusions of law is that this Court will not disturb such if they are supported by the evidence and the law. Brady v. State Highway Comm’n, 163 Mont. 416, 517 P.2d 738; Tim- merman v. Gabriel, 155 Mont. 294, 470 P.2d 528; Wash. Water Power Co. v. Morgan Elec. Co., 152 Mont. 126, 448 P.2d 683.
As to the first issue for review, the record discloses that Comptons had paid all monies then owing under the contract, which was their only obligation within the terms of this contract. The contract itself makes no mention of the Comptons’ obligation to have the utilities in working order before final installation. There, also, was conflicting evidence as to the understanding of the parties that complete hookup of the utilities was essential to final installation of the mobile home. Both Comptons testified that the water, sewer, and gas lines had been extended to the site of the-home, but were not connected because they did not intend to keep the mobile home because of its many defects. Furthermore, we fail to see that the utilities were essential to complete bolting the unit together, fixing the cabinet support around the dishwasher, hanging and installing the light fixtures in the dining room and master bathroom, properly installing the smoke detector, replacing a damaged dining room table, assembling the china closet shelves, firmly attaching the front closet shelf, and providing a usable and properly vented furnace.
The record also supports the district court’s finding that there was a substantial failure of consideration promised by Alcorn. Comptons sold their family home in Great Falls, Montana as a result of marital problems. Then, after reconciliation, the family moved into a small three room house in Vaughn, Montana, in which Mr. Compton had been living, until adequate housing was found. Alcorn was made aware of this situation and the primary object of the Comptons was to purchase a new mobile home to provide readily available housing for them and their three children.
Expert witness testimony from the city of Great Falls mechanical inspector was that the furnace lacked proper venting, was dangerous to use and as such violated sections 69-2122 and 69-2123, R.C.M.1947, which adopts national construction standards for mobile homes issued by United States of America Stan dards Institute. He also testified the mobile home violated these standards for its failure to have another smoke detector in the hall leading to the two bedrooms at the opposite end of the home from the master bedroom. This evidence combined with the other defects substantiates the district court’s finding there was a substantial failure of consideration promised by the seller Alcorn.
Alcorn next alleges the district court abused its discretion in allowing rescission of the contract. It is not the duty of this Court to determine whether we agree with the district court’s conclusions, if supported by the evidence and the law. Stromberg and Brown v. Seaton Ranch Co., 160 Mont. 293, 502 P.2d 41. The district court concluded that the partial breach was so substantial and fundamental as to defeat the object of the parties in making the agreement, and that the Comptons did all that was necessary to effectuate rescission. This is a correct statement of the law allowing rescission of a contract for partial breach. Johnson v. Meiers, 118 Mont. 258, 164 P.2d 1012. Furthermore, there is evidence to support that conclusion.
The last issue concerns the award of attorney fees to Comptons. The contract did provide attorney fees to the holder of the contract, should such holder bring a default action on the contract. Section 93-8601.1, R.C.M. 1947, provides a reciprocal right to attorney fees to all parties to the contract in any action on the contract. We reject Alcorn’s interpretation of section 93-8601.1, R.C.M. 1947, that the reciprocal right to attorney fees exists only when the party who has the right to attorney fees under the contract institutes the action. A reading of the section displays the incorrectness of that interpretation:
“Whenever by virtue of the provisions of any contract or obligation in the nature of a contract, made and entered into at any time after the effective date of this act, one party to such contract or obligation has an express right ot recover attorney fees from any other party to the contract or obligation in the event the party having that right shall bring an action upon the con tract or obligation, then in any action on such contract or obligation all parties to the contract or obligation shall be deemed to have the same right to recover attorney fees, and the prevailing party in any such action, whether by virtue of the express contractual right, or by virtue of this act, shall be entitled to recover his reasonable attorney fees from the losing party or parties.” (Emphasis supplied.)
Seller Alcorn is correct in his contention that evidence is required to be introduced at trial to allow an award of attorney fees to either party. Crncevich v. Georgetown Recreation Corporation, 168 Mont. 113, 541 P.2d 56. However, such evidence was introduced when the district court on motion of Comptons, allowed the case to be reopened after a motion to amend the findings and conclusions by the seller Alcorn.
Alcorn contends the motion of Comptons was one governed by Rules 52 and 59, M.R.Civ.P., and as such was not made within the time allowed under those rules, and that the court lost jurisdiction to entertain the motion pursuant to those rules. These rules govern motions to amend the district court’s findings and motions for a new trial, respectively. Comptons made neither. What they did was move the district court to reopen the case for taking further testimony; they did not want the findings and conclusions altered.
It is well settled that the ruling upon a motion to reopen a case for taking further testimony is within the sound discretion of the district court, which will only be reversed on appeal for manifest abuse of that discretion. Gilcrest v. Bowen, 95 Mont. 44, 24 P.2d 141; Nadeau v. Texas Company, 104 Mont. 558, 69 P.2d 586, 593; Kipp v. Wong, 163 Mont. 476, 517 P.2d 897.
The testimony as to attorney fees was offered to support an affidavit previously filed during the trial, a practice accepted by this particular district court prior to Crncevich. Also a more accurate account of the time spent on the case by Comptons’ attorney, up to and including motions to amend the findings of fact and conclusions of law, could be provided at this time. We find no manifest abuse of the district court’s discretion in reopening the case to allow this testimony under these circumstances.
The judgment is affirmed.
MR. JUSTICE HASWELL, HON. JOHN C. HARRISON, JJ„ and JACK L. GREEN, sitting for Mr. Justice Castles, concur.
|
[
-21,
29,
15,
-23,
-30,
-56,
-22,
-4,
38,
-5,
31,
-4,
5,
-27,
0,
-38,
-30,
-21,
3,
0,
-11,
-28,
22,
-38,
-31,
-16,
0,
14,
-9,
5,
14,
-22,
24,
13,
-26,
22,
34,
-19,
-33,
-39,
11,
-5,
-57,
-47,
12,
-14,
85,
-24,
55,
-29,
-87,
-1,
-8,
-39,
3,
-17,
-6,
15,
-27,
35,
21,
-10,
2,
39,
-20,
-42,
52,
29,
73,
51,
27,
-13,
8,
-76,
49,
-30,
-17,
5,
-16,
-35,
19,
16,
43,
-24,
-10,
-26,
18,
-28,
-66,
39,
-79,
-17,
60,
31,
-15,
15,
28,
-52,
-20,
5,
-22,
10,
27,
11,
31,
-26,
-23,
-35,
29,
40,
12,
-3,
10,
15,
-73,
0,
71,
8,
-25,
-11,
41,
74,
-1,
-41,
3,
-13,
4,
-45,
8,
-47,
38,
32,
-10,
29,
-34,
7,
39,
-6,
11,
28,
34,
11,
32,
18,
-2,
29,
31,
-39,
-42,
-37,
-2,
-41,
4,
34,
27,
-15,
-15,
68,
-38,
2,
55,
-66,
10,
-13,
-11,
-42,
-20,
49,
11,
9,
38,
-41,
-1,
-67,
21,
4,
-12,
-25,
-26,
-55,
31,
-18,
-31,
18,
-9,
29,
24,
-51,
13,
-13,
12,
-17,
-41,
-12,
-45,
9,
-19,
-24,
-5,
37,
-27,
-49,
-13,
-45,
10,
-4,
-30,
13,
48,
0,
31,
0,
-13,
3,
28,
40,
26,
-13,
2,
3,
-1,
-36,
16,
-1,
-4,
14,
6,
14,
28,
-33,
-76,
-5,
33,
21,
12,
6,
-1,
-13,
-12,
-8,
1,
-32,
-24,
15,
-46,
-43,
-77,
-15,
1,
-39,
7,
-11,
25,
-19,
7,
16,
-14,
55,
-12,
-3,
53,
-4,
10,
-44,
31,
42,
-6,
-23,
-16,
14,
-50,
2,
-15,
50,
-46,
29,
19,
21,
23,
19,
-29,
-28,
47,
-32,
71,
-4,
69,
46,
-2,
-17,
4,
-55,
10,
-27,
-22,
-27,
3,
-7,
-29,
8,
-16,
-35,
-39,
4,
-19,
-3,
-22,
26,
1,
39,
0,
23,
8,
0,
17,
10,
23,
5,
35,
3,
41,
74,
31,
30,
11,
-7,
-11,
-6,
-81,
21,
33,
17,
-43,
-15,
4,
-15,
-5,
-7,
29,
42,
-33,
21,
27,
9,
28,
-11,
29,
-13,
2,
-19,
-7,
-23,
-61,
19,
-9,
-1,
-24,
-11,
-10,
13,
8,
25,
-20,
29,
-40,
-3,
36,
-35,
-11,
39,
-33,
28,
7,
42,
20,
-28,
6,
-39,
-38,
30,
61,
0,
6,
0,
6,
-10,
-2,
-66,
-45,
11,
-24,
-36,
8,
13,
-6,
-53,
-5,
-23,
-29,
-68,
-14,
13,
-47,
-69,
-28,
24,
-13,
40,
0,
-65,
-36,
-41,
-43,
54,
-43,
9,
5,
19,
-24,
-31,
-12,
4,
56,
-22,
8,
-5,
35,
9,
-20,
48,
17,
42,
16,
-18,
20,
21,
-7,
11,
-53,
29,
-13,
38,
-13,
25,
2,
-26,
21,
24,
64,
55,
-8,
-7,
34,
55,
16,
13,
60,
-37,
12,
-27,
9,
-10,
46,
-53,
-12,
-9,
-9,
-5,
-91,
-27,
-57,
64,
112,
-57,
28,
35,
9,
-16,
33,
-15,
1,
-26,
-19,
18,
6,
47,
-5,
-31,
3,
44,
45,
-4,
-13,
-28,
2,
-29,
23,
8,
0,
-22,
-37,
-22,
50,
-19,
11,
-61,
-18,
18,
-3,
59,
12,
19,
7,
11,
-8,
-24,
21,
23,
37,
-18,
-7,
37,
2,
10,
-6,
75,
-14,
16,
5,
-66,
-27,
37,
0,
22,
-5,
3,
-12,
18,
49,
-13,
38,
3,
-15,
-28,
-23,
19,
-45,
-17,
22,
-8,
35,
8,
-1,
0,
-6,
31,
-89,
-23,
-6,
42,
14,
15,
48,
6,
48,
-15,
-2,
-31,
16,
37,
18,
4,
-2,
-18,
44,
-26,
-42,
-18,
-21,
-39,
-43,
-4,
-42,
-6,
-51,
5,
71,
30,
-24,
21,
-34,
1,
-15,
-18,
0,
18,
-19,
-28,
-27,
-62,
-12,
3,
43,
59,
51,
30,
18,
26,
-34,
34,
-11,
-21,
14,
-31,
60,
14,
12,
-94,
7,
13,
20,
23,
3,
26,
-18,
5,
-11,
-6,
-39,
-6,
-10,
26,
12,
-39,
4,
4,
27,
-35,
-57,
-38,
-6,
18,
-44,
9,
-11,
-33,
-17,
-18,
-12,
14,
-55,
3,
38,
16,
66,
-10,
74,
-46,
-15,
-25,
42,
-21,
6,
14,
7,
-67,
25,
-1,
1,
41,
-30,
16,
-32,
58,
-9,
-15,
44,
31,
77,
8,
65,
-33,
-20,
-25,
4,
-42,
3,
-35,
4,
-3,
-13,
3,
7,
6,
24,
45,
0,
22,
-12,
5,
-13,
-2,
7,
57,
-43,
121,
4,
-49,
20,
-10,
-5,
-1,
-1,
31,
0,
38,
44,
-65,
-50,
-11,
42,
-59,
-58,
-23,
26,
-50,
0,
-4,
7,
42,
-14,
74,
17,
8,
-18,
-19,
-28,
3,
26,
14,
-17,
1,
-17,
2,
63,
-23,
41,
48,
-9,
-31,
-10,
-39,
-11,
-53,
9,
-62,
22,
2,
-19,
32,
0,
-40,
9,
26,
66,
-16,
29,
27,
10,
-62,
12,
28,
12,
29,
-6,
20,
13,
3,
23,
-47,
-1,
23,
-33,
-11,
-12,
-40,
79,
47,
43,
-12,
1,
-1,
43,
-34,
-48,
11,
-19,
95,
-28,
9,
-9,
41,
34,
16,
42,
-1,
-35,
-16,
50,
17,
-12,
-23,
10,
-38,
21,
24,
21,
22,
2,
45,
-11,
-18,
-40,
-13,
21,
-22,
-22,
5,
2,
27,
1,
-52,
25,
1,
-38,
-12,
22,
27,
37,
5,
-26,
15,
-20,
4,
7,
49,
-23,
-2,
-12,
16,
-28,
-45,
17,
-46,
-19,
-19,
48,
5,
6,
-41,
64,
15,
-52,
19,
-4,
-52,
36,
-17,
-12,
63,
24,
-14,
11,
-21,
6,
-45,
-9,
-13,
80,
-16,
-4,
-47,
9,
44,
53,
18,
25,
25,
-37,
29,
52,
14,
0,
27,
-41,
16,
26,
-42,
-18,
-21,
-38,
45,
-66,
18,
10,
-47,
14,
-15,
-44,
-61,
-8,
8,
-26,
-28,
-67,
46,
-59,
-48,
-15,
27,
43,
-17,
-17,
-13,
30,
-40,
-8,
-35,
47,
72,
-7,
-16,
-4,
3,
-23,
-50,
-10,
1,
-31,
-87,
-39,
19,
-3,
-36,
1,
-30,
42,
-33,
16,
11,
-6,
32,
-2,
23,
44,
19,
-24,
-21,
77,
-5,
-41,
59,
30,
-63,
60,
64,
36,
61,
-78,
-11,
-2,
29,
23,
-40,
33,
28,
2,
14,
18,
-17,
-2,
-18,
-10,
34,
30,
-122,
0,
-48,
-25,
0,
-10,
3,
57,
-37,
-32,
11,
-8,
-2,
3,
41,
22,
-33,
18,
-29,
-7,
-6,
-28,
10,
-6,
-38,
-32,
48,
-14,
-19,
-19,
9,
-47,
0,
13,
11,
33,
-54,
26,
5
] |
MR. JUSTICE JOHN C. HARRISON
delivered the -opinion of - the court.
This is an appeal from a judgment of the district court, Galla- tin County, for defendant in an action to foreclose on a mechanic’s lien.
Plaintiff Morgen & Oswood Construction Co., Inc. (Morgen & Oswood) brought this action to foreclose a mechanic’s lien on seventeen buildings' containing fifty condominium units at Big Sky of Montana, Inc. (Big Sky) site in the Gallatin Canyon, south of Bozeman. These were the first condominium units built at Big Sky and were built when the area was still relatively primitive.
Big Sky sought bids on the project from several contractors but did not request a bid from Morgen & Oswood. Morgen & Oswood approached Big Sky asking to be allowed to bid. It was given the specifications for the job and informed the time allowed for the completion of the project would be 114 days, which meant the schedule was tight. The specifications contained a clause exacting a $500 per day deduction for each day the project was late. At Big Sky’s request an alternative bid was submitted on the project if there would be an extra 46 days added to the completion time. Morgen & Oswood submitted an alternative bid $15,000 lower than the 114 day bid. This alternative bid was rejected by Big Sky.
The contract was awarded to Morgen & Oswood and Big Sky allowed work on the project to begin twelve days before the date called for in the contract, without starting the 114 day clock running.
The questions presented for review are:
1) Was the $500 per day deduction a penalty violative of section 13-804, R.C.M.1947?
2) Did the district court err in finding that January 3, 1972, was the date upon which to end the $500 per day deduction?
3) Did the district court err in finding there was no proof that Big Sky contributed substantially to the delay in the completion of the project?
4) Did the district court err in finding that Big Sky made a valid tender of the money due to Morgen & Oswood?
The first question involves construction of sections 13-804 and 13-805, R.C.M.1947 which provide:
“13-804. Contracts fixing damages void. Every contract by which the amount of damage to be paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided in the next section.”
“13-805. Exception. The parties to a contract may agree therein upon an amount which shall be presumed to be an amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.”
The Montana cases interpreting these sections establish that a penalty clause is prima facie void and to come within the exception, facts must be alleged and proven from which the court can say the liquidated damages clause is valid because the damages are by the nature of the case extremely difficult or impracticable to fix. Deuninck v. West Gallatin Irrigation Company, 28 Mont. 255, 72 P. 618; Clifton v. Willson, 47 Mont. 305, 132 P. 424.
Big Sky met this burden. It presented evidence which indicated the $500 per day figure was arrived at by estimating lost rent at $120 per day; interest on money borrowed to build the project at $440 per day; and $60 per day heating and light expense on the units. Big Sky also considered the harm to its sales effort if the units were not completed in October as promised. These estimates were at best guesses, based on some prior experience and knowledge of the project. The total was rounded to $500 per day as a reasonable conservative estimate of the loss Big Sky would suffer if the project was late. Big Sky also offered evidence which indicated that the total damage suffered by Big Sky exceeded the $500 per day figure. Actual proof of the accuracy and basis of these estimated figures is very nearly impossible. As a result, construction contracts often provide for a fixed sum as damages. In 5 Corbin on Contracts, Damages, § 1072, it is stated:
“In contracts for the construction and delivery of buildings or machinery, it is often provided that a fixed sum shall be paid for each day’s delay in completion beyond a date agreed upon. Since the injury caused by such delay is nearly always difficult to determine, the courts strongly incline to accept the estimate as reasonable and to enforce it. * * * ”
In 60 California Law Review 84, 122, Professor Justin Sweet discusses the California case law interpreting §§ 1670, 1671, California Civil Code, identical to sections 13-804, 13-805, R.C.M.1947, and points out the reasons that such clauses are usually upheld where there is an unexcused delay by the contractor:
“ * * * First, while the liquidation amounts may not actually be bargained, the contractor can take this into account when he makes his bid. Second, most construction contractors are not so unsophisticated as to merit special protection by the courts. Third, courts enforce these clauses as a means of saving themselves from having to decide difficult fact questions relating to damages. Finally, these clauses are enforced because delays do cause losses, but the actual loss is often not provable under traditional damage rules, which require certainty, proof of causation, and forseeability.”
Morgen & Oswood knew of the strict time limits and took them into consideration when its bid was submitted. It submitted a bid that was $15,000 less on the same project, if the time were extended 46 days. It is clear Big Sky suffered damages from the delay in completion, but it is also true there would be difficulty in showing the actual amount under the damages rules. The $500 per day deduction is the type of clause courts usually enforce and one which meets all the requirements of section 13-805, R.C.M.1947. The only serious impediment to finding that it is a valid liquidated damages clause is that Big Sky, in its contract, referred to the $500 per day deduction as a “penalty”. This is not in and of itself determinative. At 5 Willi-ston on Contracts, Third Edition Section 784, p. 730, it is said:
‘(2) The mere denomination of the sum to be paid as “liquidated damages,” or as “a penalty,” is not conclusive on the court as to its real character. Although designated as “liquidated damages” it may be construed as a penalty, and often when called a “penalty” it may be held to be liquidated damages, where the intention to the contrary is plain.’ ”
The Oklahoma Supreme Court in Waggoner v. Johnston (Okl.1965), 408 P.2d 761, 769, when interpreting a contract in light of statutory provisions identical to section 13-804 and section 13-805, R.C.M.1947, said:
“Whether the forfeiture provision imposed a penalty, or provided for liquidated damages, is to be determined from the language and subject matter of the contract, the evident intent of the parties and all the facts and circumstances under which the contract was made. The most important facts to be considered are whether the damages were difficult to ascertain, and whether the stipulated amount is a reasonable estimate of probable damages or is reasonably proportionate to the actual damage sustained at the time of the breach.”
Here the “most important facts” are in Big Sky’s favor, the damages were difficult to determine and they proved to be a reasonable estimate of the damages actually suffered.
The United States Supreme Court faced a similar problem in United States v. Bethlehem Steel Co., 205 U.S. 105, 120, 27 S.Ct. 450, 455, 456, 51 L.Ed. 731, 737, the Court said that while the word “penalty” was used and not the term “liquidated damages” that:
“* * * It was used simply to provide that the amount named might be deducted if there were a delay in delivery. Either expression is not always conclusive as the meaning of the parties.
“* * * It would have been very unusual to allow the company to obtain the contract for the construction of these carriages, and yet to place it under no liability to fulfill it as to time of delivery, specially agreed upon, other than to pay only those actual damages (not exceeding $35 per day) that might be proved were naturally and proximately caused by the failure to deliver.”
Here, the same statement applies. The completion time was plainly important and was the subject of bidding. Morgen & Os-wood offered a $15,000 decrease in the contract price for an increase of 46 days in contract time which amounts to over $300 per day. This was refused by Big Sky. It is obvious that Morgen & Oswood should not get the higher contract price and at the same time be able to avoid the time limit which served as the consideration for the higher amount. The use of the word “penalty” does not reflect careful draftsmanship but it is not a talisman which prevents inquiry into the reality of the intent of the parties and the facts and circumstances surrounding the agreement. The $500 per day deduction was an amount stipulated as liquidated damages and meets the requirements of section 13-805, R.C.M.1947. It is a reasonable estimate of damages which were impracticable or extremely difficult to fix.
The remaining questions on appeal involve the determinations by the district court 1) January 3, 1972 was the proper date to end the deduction of the liquidated damages; 2) Big Sky did not contribute substantially to the delay in completion; and 3) the amount due was validly tendered by Big Sky on February 25, 1972. It is not a function of this Court to make its own determination as to the facts and the law, rather it reviews the findings of the district court. The Court in Hellickson v. Barrett Mobile Home Transport, Inc., 161 Mont. 455, 458, 507 P.2d 523, 525, quoting from Hornung v. Estate of Lagerquist, 155 Mont. 412, 420, 473 P.2d 541, pointed out:
‘Our duty in reviewing findings of fact in a civil action tried by the district court without a jury is confined to determining whether there is substantial credible evidence to support them.’
The Court put it another way in Kamp v. First National Bank and Trust Co., 161 Mont. 103, 106, 504 P.2d 987, 989, quoting from Morrison v. City of Butte, 150 Mont. 106, 112, 431 P.2d 79:
‘This court will not overturn the holdings or findings of a trial court unless there is a decided preponderance of the evidence against them, and, when the evidence furnishes reasonable grounds for different conclusions, findings will not be, disturbed.’
Morgen & Oswood argues that some of the seventeen buildings were complete long before the date upon which the architect signed the certificate of final completion. It also points out that a certificate of substantial completion was- signed on December 11, 1971.
We note the certificate of substantial completion was accompanied by an extensive punch list of unfinished work and even the final completion certificate was accompanied by a punch list of unfinished items. One important bit of evidence which supports the January completion date, is the fact that Big Sky had as strong an interest in getting the certificate of final completion as did Morgen & Oswood.
The “Unit Ownership Act”, Chapter 23, Title 67, R.C.M. 1947, as it provided at the time of the contract, required a statement by the architect or professional engineer who prepared the floor plan, certifying the accuracy of the plans and the date construction was completed. This statement accompanied the recording of the declaration which had to be filed. This meant that no sale could be closed and recorded until construction was completed on the entire project. Big Sky indicated there were buyers who backed out when the completion was not on time and those sales could have been made final, if the closings had been on schedule. The architect testified there was considerable pressure on him from Big Sky to certify completion. Testifying about the certification that he signed he said:
“* * * I was very hesitant to sign anything until actually the last final check list item would be done. However, it could also be taken as substantial completion. And this was not clear to us at the time. Mr. Penwell was under pressure to close sales and the check list was not being completed. So we initiated this agreement in January that would essentially be the final completion still with the check list which was an unorthodox procedure just so I could sign them and say they were completed, I could sign them with a better conscience.”
Big Sky could not, and did not, close any sales until after all of the buildings were certified as being complete. It was reasonable for the district court to use the January 3, 1972 date as the end date for the liquidated damages.
60 California Law Review 84, 123, points out:
“The second interpretation problem courts frequently face is determining when a project is completed for liquidation purposes. The general answer is that actual, not substantial, completion is required. However, courts will be hesitant to apply this rule where the stipulated damages are high and the project is available for use.”
Here, the damages are high but the project was not ready for the use Big Sky intended, the sale of these units. There is no showing that the evidence preponderates against this finding by the district court and it is supported by substantial evidence.
We find no preponderance of evidence against the district court’s finding that Morgen & Oswood failed to prove a substantial interference by Big Sky with the contractor’s work and that Morgen & Oswood failed to make application in compliance with the contract for extension of time. Morgen & Oswood argue that Haggerty v. Selsco, 166 Mont. 492, 534 P.2d 874, which held that delay caused by the owner constitutes a waiver of liquidated damages, applies in the instant case. We do not agree, because there is no finding that Big Sky caused the delay here. It is very difficult to pinpoint with any certainty the reasons for the delay, but the inability to get labor, especially skilled labor, and the primitive conditions at the job site were a part of the cause. These matters were the contractor’s responsibility which had to be taken into account at the time the bids were submitted.
The district court’s finding there was a valid tender is supported by substantial evidence on the record. Negotiations between Big Sky and Morgen & Oswood broke down and Big Sky gave a check to Morgen & Oswood for the balance due on the contract, less the liquidated damages. This check was refused and returned. The mechanic’s lien was filed and this suit instituted. The net amount due to Morgen & Oswood was paid with no strings attached. Since the liquidated damages clause is valid and the check was for the net amount due after the deduction of the liquidated damages, the lien was improperly filed.
We have examined other issues raised and find no merit in them.
The decision of the district court is affirmed.
MR. CHIEF JUSTICE JAMES T. HARRISON, MR. JUSTICES CASTLES, HASWELL and JACK SHANSTROM, sitting for Justice Daly.
|
[
3,
54,
-38,
-7,
29,
-27,
13,
19,
11,
22,
4,
7,
21,
-85,
-19,
-61,
-16,
26,
27,
38,
-51,
-37,
-55,
22,
2,
30,
-3,
-34,
4,
-8,
7,
-9,
-52,
-4,
6,
45,
22,
29,
21,
-21,
-21,
-8,
-48,
-72,
3,
-28,
-7,
-28,
37,
0,
2,
-3,
4,
-39,
-20,
-33,
-12,
62,
-45,
42,
27,
-31,
25,
28,
27,
9,
-19,
39,
37,
14,
-33,
3,
40,
-39,
-7,
0,
44,
2,
-54,
-30,
-3,
47,
12,
-30,
23,
-40,
0,
-18,
-14,
53,
-70,
-17,
51,
32,
-2,
3,
-26,
-12,
-47,
49,
-11,
-7,
38,
22,
-13,
-43,
-32,
-28,
46,
40,
15,
-3,
-29,
-23,
-25,
25,
9,
67,
21,
-57,
-10,
34,
-3,
28,
2,
7,
-9,
-1,
-20,
-16,
-2,
-16,
-26,
-6,
-31,
13,
0,
-27,
-33,
48,
42,
-27,
1,
21,
-42,
10,
48,
-70,
-4,
26,
-60,
-25,
33,
50,
-18,
-72,
16,
-14,
11,
-94,
81,
-15,
-28,
3,
-2,
-14,
-27,
13,
0,
-5,
24,
-12,
-16,
-33,
54,
-6,
41,
-54,
13,
-11,
-14,
-11,
46,
28,
20,
48,
14,
14,
40,
-3,
19,
-47,
-26,
-38,
-76,
56,
-1,
5,
14,
-13,
33,
-64,
27,
34,
-48,
53,
-11,
8,
21,
-33,
10,
-26,
-33,
17,
20,
-16,
-23,
29,
20,
-48,
-20,
26,
-17,
1,
-3,
-4,
-40,
3,
71,
-32,
-37,
-11,
39,
9,
2,
-18,
22,
-20,
-4,
23,
-1,
-18,
-51,
22,
-43,
11,
-48,
-62,
0,
-24,
-23,
-53,
-19,
37,
10,
2,
29,
0,
-34,
-8,
47,
-29,
39,
-41,
18,
-28,
-33,
-22,
-4,
38,
-5,
44,
26,
33,
-21,
-45,
-28,
0,
6,
-43,
34,
-53,
-19,
6,
-6,
20,
61,
46,
-53,
-35,
-34,
-43,
19,
-16,
40,
-5,
3,
2,
16,
-48,
9,
-6,
44,
-29,
24,
2,
-39,
55,
32,
19,
-18,
-54,
13,
-48,
2,
-15,
23,
-41,
26,
-33,
60,
-2,
52,
10,
26,
55,
-40,
-2,
-68,
28,
14,
50,
-42,
45,
78,
-34,
18,
3,
-29,
0,
-10,
37,
48,
-3,
-14,
67,
14,
24,
-8,
32,
8,
43,
-66,
27,
2,
34,
-40,
9,
-52,
-5,
32,
15,
18,
-60,
-36,
-46,
-1,
9,
-11,
-7,
-36,
52,
20,
-7,
59,
24,
-33,
2,
-80,
26,
29,
-13,
-3,
-33,
32,
-57,
-9,
-8,
-4,
-9,
-49,
-66,
33,
23,
21,
-70,
36,
-42,
-11,
-52,
-6,
13,
16,
-13,
-15,
-10,
-8,
-15,
-37,
16,
34,
-21,
-29,
-18,
0,
-30,
-12,
43,
-33,
12,
10,
2,
-16,
-31,
25,
-56,
56,
-10,
-51,
38,
-9,
30,
-14,
17,
14,
14,
-5,
-22,
-60,
8,
-7,
-30,
16,
-9,
32,
-16,
48,
42,
84,
27,
7,
56,
-21,
8,
26,
8,
69,
-29,
-17,
-1,
45,
43,
17,
-17,
36,
1,
24,
3,
10,
41,
-16,
49,
53,
55,
25,
6,
44,
-53,
-32,
6,
-3,
-56,
11,
-12,
28,
-30,
-42,
1,
6,
51,
23,
23,
-21,
-66,
-46,
18,
-48,
15,
35,
-17,
-38,
-10,
-29,
13,
17,
-47,
-12,
-23,
-12,
37,
-31,
-12,
34,
-2,
-19,
39,
36,
-29,
-1,
-3,
3,
7,
3,
-24,
49,
24,
-30,
18,
28,
-20,
-61,
0,
15,
25,
-41,
-32,
25,
42,
0,
-21,
19,
-22,
-7,
32,
-4,
26,
-34,
3,
-16,
-18,
43,
-44,
37,
34,
-21,
26,
-1,
-7,
35,
-28,
-4,
86,
0,
5,
11,
2,
-52,
-13,
-47,
0,
-39,
57,
-33,
-39,
8,
-38,
-66,
-18,
45,
39,
-33,
-26,
0,
-13,
-55,
-21,
15,
21,
8,
26,
-38,
-31,
-21,
48,
-43,
30,
4,
24,
-35,
-19,
-3,
10,
7,
-16,
-4,
-11,
-37,
-7,
27,
42,
-25,
-15,
12,
29,
-31,
11,
13,
-59,
61,
12,
39,
-43,
44,
18,
-26,
16,
0,
13,
-67,
7,
-88,
-4,
-12,
-25,
79,
-38,
27,
1,
-20,
-19,
2,
54,
3,
11,
-44,
-31,
6,
23,
37,
-35,
6,
1,
36,
-49,
28,
0,
21,
-12,
-13,
-44,
30,
-5,
13,
4,
2,
-35,
30,
41,
42,
23,
13,
-9,
-29,
23,
33,
-29,
24,
30,
24,
2,
41,
-18,
25,
-51,
-10,
-34,
-24,
-31,
26,
-6,
0,
18,
17,
24,
26,
-22,
-56,
24,
-35,
33,
10,
-15,
32,
17,
-47,
94,
-22,
-40,
3,
16,
-29,
-1,
-9,
77,
-12,
-1,
-60,
7,
-77,
-29,
44,
-40,
-46,
14,
4,
-53,
-15,
0,
-13,
23,
-17,
34,
-44,
35,
-17,
-22,
8,
26,
20,
32,
-30,
-58,
9,
22,
8,
-2,
25,
4,
-76,
-52,
6,
79,
-13,
-12,
-43,
-82,
-49,
11,
8,
12,
29,
-22,
20,
62,
36,
-25,
-14,
-27,
16,
-68,
15,
33,
-6,
-16,
25,
-18,
12,
43,
34,
-17,
38,
13,
21,
41,
-3,
-11,
18,
25,
32,
33,
2,
-14,
24,
-44,
-9,
-19,
-54,
67,
-45,
-30,
-31,
47,
24,
11,
28,
-38,
-55,
15,
23,
-25,
-33,
-27,
34,
-29,
15,
-59,
-38,
64,
-24,
2,
-15,
18,
-57,
-44,
62,
-48,
-47,
0,
16,
58,
52,
-12,
15,
11,
29,
-43,
3,
45,
46,
-52,
-2,
-25,
7,
1,
1,
-37,
17,
-6,
-1,
44,
-74,
-2,
83,
-47,
15,
48,
-18,
-24,
23,
27,
45,
-10,
-48,
79,
-5,
-28,
-1,
34,
-32,
-3,
20,
17,
23,
26,
-22,
-28,
0,
4,
57,
-33,
0,
60,
-8,
-1,
-21,
-67,
11,
-7,
9,
53,
-10,
-39,
-48,
-17,
-3,
18,
-40,
-11,
-12,
3,
26,
20,
-11,
-19,
-7,
49,
24,
51,
8,
24,
18,
-32,
-52,
-11,
7,
32,
14,
-31,
-4,
91,
-34,
-11,
-59,
42,
16,
8,
3,
10,
-42,
22,
-11,
32,
19,
24,
11,
-29,
-2,
33,
-23,
-9,
1,
-78,
11,
-21,
17,
25,
31,
-60,
38,
-12,
26,
57,
-16,
58,
42,
-10,
-35,
38,
16,
-51,
21,
56,
7,
-38,
48,
20,
53,
11,
-28,
-19,
-15,
1,
-28,
13,
-3,
22,
-28,
-4,
16,
12,
62,
19,
22,
7,
-28,
-15,
20,
-7,
-4,
-28,
11,
-43,
-9,
-32,
18,
-6,
16,
-59,
8,
4,
30,
-12,
-10,
-4,
74,
34,
43,
-2,
48,
15,
-2,
-10,
-44,
-47,
-33,
49,
-22,
14,
37,
7,
11,
7,
-16,
17
] |
MR. JUSTICE HASWELL
delivered the opinion of the Court.
In a highway condemnation action, the district court of Silver Bow County entered judgment for the property owner in the amount of $87,742.04. The State of Montana appeals from the judgment and denial of its motion to alter or amend the judgment.
The action was originally filed by the State in 1965 against multiple defendants owning fractional interests in the property sought to be condemned. By 1976 the only remaining defendant was Thomas Helehan who owned a 1/8 interest in the property.
Commissioners were appointed to determine the value of Hele-han’s interest in the property. On June 15, 1976, the commissioners’ report was filed with the clerk of the district court and copies were mailed to the respective attorneys. A copy of the commissioners’ report was received by the State on June 16.
On July 16 the State mailed its notice of appeal from the commissioners’ award to the clerk of court and to the attorney for the property owners. On July 19 judgment was entered on the commissioners’ report which included the amount of the award, survey costs, appraisal fees, interest, attorney fees and costs. On the same date the State’s notice of appeal from the commissioners’ award was received by the clerk of the district court and filed.
Thereafter the State moved to alter or amend the judgment which, in effect, was a motion to vacate the judgment. Following hearing, the district court denied this motion and entered findings of fact, conclusions of law and an opinion. The State then filed its notice of appeal from the judgment and order of the district court denying its motion.
The gist of the district court’s decision was that the State’s notice of appeal was’filed too late. The district court held the controlling statute, section 93-9915, R.C.M.1947, required the notice of appeal to be served on the property owner’s attorney and filed with the clerk of court within 30 days after service of notice of the commissioners’ award on the State’s attorney and filing with the clerk of court. The district court held that such service was completed on June 15 and the time for appeal expired on July 15 at 5:00 p.m.
The controlling issue on appeal is the timeliness of the State’s appeal from the commissioners’ award.
The statutory procedure (section 93-9915) for an appeal from a commissioners’ award provides in pertinent part:
“An appeal from any assessment made by the commissioners may be taken and prosecuted in the court where the report of said commissioners is filed by any party interested. Such appeal must be taken within the period of thirty (30) days after the service upon appellant of the notice of the filing of the award by the service of notice of such appeal upon the opposing party or his attorney in such proceedings and the filing of the same in the district court wherein the action is pending * * * ”
Here the commissioners’ report was served on the State on June 15. Service by mail is complete upon mailing. Rule 5(b), M.R.Civ.P. See Davis v. Trobough, 139 Mont. 322, 363 P.2d 727 and Herdegen v. Oxarart, 141 Mont. 464, 378 P.2d 655, decided under section 93-8504, R.C.M.1947, the statutory predecessor of Rules 5 and 6, M.R.Civ.P.
However, service did riot become effective until June 18 for the purpose of calculating the 30 day appeal period. Rule 6(e), M.R.Civ.P., states:
“(e) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period.”
In accord: Lewistown Propane Co. v. Utility Builders, Inc., 170 Mont. 292, 552 P.2d 1100.
Thus, the 30 day appeal period would normally end on July 18. But here July 18, 1976, fell on a Sunday so the appeal period did not expire until the end of the next day, July 19. Rule 6(a), M.R.Civ.P. provides in relevant part:
“(a) Computation. In computing any period of time pre scribed or allowed * * * by any applicable statute, the day of the act * * * after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a holiday. * * *”
In accord: Lewistown Propane Co. v. Utility Builders Inc., supra; Grey v. Silver Bow County, 149 Mont. 213, 425 P.2d 819.
Hence the State’s notice of appeal was timely filed on Monday, July 19. The judgment of the district court is vacated and this cause remanded to the district court of Silver Bow County for trial on the issue of damages.
MR. CHIEF JUSTICE HATFIELD and JUSTICES DALY, JOHN C. HARRISON and SHEA concur.
|
[
-38,
86,
-25,
-19,
-26,
-21,
19,
45,
-5,
63,
10,
10,
-6,
1,
21,
-40,
-35,
0,
0,
51,
-38,
13,
-30,
32,
14,
-18,
-42,
-14,
8,
-9,
2,
0,
-34,
-4,
21,
-6,
-16,
12,
53,
35,
23,
42,
-16,
-21,
-32,
-37,
39,
-42,
-13,
26,
6,
-24,
16,
-29,
25,
-20,
-22,
5,
-32,
22,
-14,
-4,
4,
71,
43,
30,
-25,
-42,
11,
-52,
-40,
16,
-8,
17,
9,
-1,
32,
-19,
-14,
41,
-31,
-16,
1,
-43,
30,
-24,
-3,
-17,
63,
14,
-68,
-44,
15,
9,
38,
-2,
-6,
-55,
6,
-2,
-39,
2,
23,
37,
-62,
-15,
-15,
-11,
12,
2,
-14,
-51,
-10,
-69,
-38,
63,
-2,
7,
30,
-21,
33,
-34,
13,
28,
58,
6,
93,
-14,
-61,
22,
-44,
-24,
13,
-8,
-5,
41,
-15,
-97,
35,
-19,
15,
-17,
34,
-64,
-62,
8,
-1,
-54,
-10,
32,
20,
12,
0,
54,
-4,
-80,
10,
-35,
43,
-24,
0,
5,
-23,
4,
21,
0,
-3,
-29,
-25,
41,
16,
32,
29,
-29,
49,
0,
21,
18,
-4,
62,
0,
17,
49,
3,
-16,
2,
42,
9,
-59,
-30,
-5,
7,
0,
-20,
-5,
-15,
23,
26,
27,
44,
-16,
-3,
43,
52,
-32,
1,
-5,
-15,
58,
-34,
-44,
-21,
14,
51,
5,
10,
12,
41,
18,
-34,
33,
12,
11,
33,
2,
-18,
-10,
-7,
45,
-70,
18,
69,
32,
-13,
40,
5,
-4,
17,
-74,
0,
29,
-5,
-24,
16,
-31,
66,
-4,
-36,
-27,
7,
-4,
4,
-47,
29,
8,
-22,
5,
-11,
-29,
-42,
28,
-29,
46,
-26,
-11,
-19,
-5,
-10,
-13,
12,
20,
57,
34,
-7,
-33,
-16,
6,
-70,
58,
-7,
25,
-78,
-18,
27,
-21,
67,
-9,
29,
-48,
-27,
-58,
-18,
-4,
30,
4,
-10,
22,
-19,
-12,
-44,
-19,
-18,
-33,
-4,
19,
-8,
-45,
-5,
19,
29,
18,
-32,
-25,
9,
-11,
0,
-37,
-24,
41,
8,
58,
18,
33,
-14,
17,
59,
0,
9,
-57,
-11,
-7,
-17,
7,
22,
80,
-3,
31,
-11,
-63,
30,
12,
-18,
28,
28,
-1,
41,
-2,
7,
7,
51,
-35,
32,
-35,
35,
11,
-40,
12,
-49,
-51,
42,
35,
31,
-1,
-66,
-3,
-5,
7,
-1,
-29,
-23,
-12,
34,
81,
17,
2,
-9,
-32,
-6,
-3,
-14,
4,
26,
0,
-9,
53,
-48,
4,
25,
15,
22,
23,
-14,
-26,
0,
35,
-4,
-20,
-26,
-4,
-2,
-2,
7,
-8,
36,
-18,
7,
14,
-21,
-16,
31,
65,
-34,
-13,
-27,
38,
-15,
22,
24,
-5,
-21,
50,
12,
-2,
-59,
-28,
-10,
44,
37,
-42,
43,
-10,
67,
-18,
-23,
31,
61,
9,
-17,
-81,
11,
14,
1,
16,
5,
-21,
-53,
-3,
-14,
16,
54,
20,
47,
1,
-12,
14,
18,
30,
-17,
-4,
-49,
35,
10,
-22,
-3,
-7,
-6,
43,
-11,
11,
16,
-24,
64,
-35,
26,
-2,
4,
-54,
17,
2,
13,
3,
-43,
-37,
15,
34,
11,
16,
-1,
-45,
17,
12,
44,
-37,
-12,
-2,
22,
-19,
-25,
48,
-32,
-60,
-29,
19,
35,
-7,
8,
17,
13,
-24,
15,
16,
27,
42,
-28,
-30,
51,
25,
-5,
26,
6,
-27,
1,
-48,
-24,
-39,
0,
-13,
-33,
41,
-17,
-55,
43,
-5,
24,
-68,
22,
-15,
33,
-2,
-9,
11,
-28,
40,
-5,
22,
12,
-30,
3,
22,
12,
63,
-56,
-17,
19,
-57,
-20,
-7,
-10,
-3,
-12,
35,
39,
-12,
14,
7,
-4,
-33,
-74,
-53,
3,
5,
-35,
-27,
-24,
44,
-5,
-47,
-3,
7,
40,
4,
5,
-11,
5,
8,
-6,
59,
20,
11,
40,
15,
-4,
-9,
5,
-37,
33,
-8,
13,
-8,
-24,
-12,
9,
5,
16,
9,
25,
10,
-12,
7,
-12,
-31,
8,
0,
74,
-4,
30,
15,
-41,
60,
-14,
-5,
-54,
61,
-8,
-16,
-12,
-3,
44,
-15,
10,
-30,
9,
39,
-30,
14,
27,
5,
-21,
-43,
-11,
-4,
4,
20,
3,
-21,
15,
4,
-10,
37,
-9,
4,
52,
-29,
-59,
25,
52,
25,
-30,
8,
-24,
64,
-1,
-3,
-19,
-59,
-25,
21,
22,
20,
51,
27,
-19,
-19,
-25,
-32,
-19,
12,
-53,
41,
0,
-3,
0,
-6,
-2,
-15,
23,
22,
11,
54,
1,
-38,
32,
-15,
41,
-20,
13,
-16,
50,
-50,
-12,
-9,
16,
3,
43,
-20,
36,
0,
-40,
-38,
-10,
-25,
0,
-5,
-10,
8,
-3,
39,
2,
-69,
-4,
-18,
-70,
-11,
-35,
37,
-22,
6,
19,
15,
35,
-26,
51,
-29,
13,
-28,
-21,
-11,
-1,
46,
-61,
-13,
-49,
20,
-19,
4,
19,
5,
11,
-35,
-69,
19,
17,
-10,
4,
-9,
-39,
-14,
-43,
-12,
-33,
53,
-46,
-10,
35,
4,
-33,
57,
-2,
20,
-20,
3,
15,
-3,
-24,
28,
-89,
-7,
4,
39,
-37,
-30,
-38,
10,
10,
2,
6,
-37,
-12,
30,
-15,
8,
0,
2,
-48,
0,
17,
-32,
-21,
-32,
-28,
-12,
-16,
28,
30,
-28,
26,
-57,
22,
-28,
46,
42,
-23,
-13,
-16,
57,
-67,
-40,
59,
1,
-41,
-26,
-8,
-25,
48,
28,
-51,
22,
-2,
26,
84,
29,
-7,
-20,
0,
29,
-65,
15,
52,
30,
-36,
4,
-33,
15,
-44,
0,
30,
29,
-32,
19,
69,
-62,
5,
-30,
11,
38,
42,
-13,
-69,
26,
-5,
34,
-10,
13,
4,
-33,
-36,
24,
-1,
-55,
29,
26,
-17,
-40,
49,
-3,
-22,
15,
2,
9,
-22,
-7,
-42,
-16,
-14,
-12,
-49,
-19,
15,
-9,
15,
-13,
-19,
-39,
27,
-3,
-25,
32,
-21,
-29,
2,
-19,
0,
22,
-4,
16,
0,
-4,
3,
14,
28,
-17,
3,
32,
-56,
21,
-21,
-22,
-64,
12,
41,
6,
38,
-76,
-11,
27,
-17,
-27,
-3,
-5,
57,
-32,
49,
-40,
2,
-26,
-6,
-38,
-20,
-22,
16,
25,
-3,
29,
12,
31,
31,
-7,
-27,
-3,
-2,
41,
11,
-5,
16,
31,
33,
2,
-7,
0,
-39,
-37,
-13,
17,
-17,
19,
4,
1,
0,
-32,
32,
-25,
-51,
-28,
12,
-19,
45,
11,
-13,
16,
-1,
8,
0,
20,
-29,
16,
18,
13,
-17,
20,
-12,
0,
-11,
20,
-24,
52,
10,
-19,
-13,
13,
-16,
60,
22,
-7,
-58,
35,
12,
32,
-8,
33,
48,
-18,
-19,
-21,
-9,
-16,
-2,
12,
-24,
-2,
-14,
-35,
-49,
36,
-7
] |
MR. JUSTICE DALY
delivered the opinion of the court.
This is an appeal by plaintiffs from a judgment of the district court, Wheatland County; dismissing their complaint for forfeiture under a contract for deed.
These facts are not in dispute: On December 12, 1966, defendants Vern and Grace Heller purchased the property involved on a contract for deed from one Irven L. Parrott. The contract called for a total consideration of $56,766.51. A $7,000 down payment was made, defendants assumed an existing mortgage in the amount of $3,533.03 and agreed to pay the sum of $3,000 annually plus 6% interest per annum on the unpaid principal. The installment payments were to be made on December 15, beginning with the year 1967 and continue until the entire contract was paid.
Defendants made payments approximately on schedule for the years 1967, 1968, 1969 and 1970. However, they failed to make the payments due December 15, 1971 and December 15, 1972. As a result on January 17, 1973, plaintiffs, successors to Irven Parrott’s interest in the contract, agreed with defendants to amend the contract in an effort to clarify the default provision. At the time the amendment was executed, defendants paid the sum of $10,045.55, making the contract payments current to December 15, 1972.
When the payment schedule for December 15, 1974, was again not made on schedule, defendants on December 21, 1974, were served with a notice of default. Defendants then issued a check for the installment payment but that check was not honored by the payee bank. The check was never paid.
Plaintiffs filed a complaint for forfeiture of the contract on March 26, 1975. Prior to trial, on September 4, 1975 defendants tendered a certified check to the escrow bank in full payment of the unpaid contract principal and interest. Counsel for defendants was advised prior to tender that the escrow agent bank would receive the funds but they would not be applied to the contract pending mutual agreement of the parties or order of the court.
Following trial of the action, the district court judgment relieved defendants of default and allowed them to redeem the property. As a basis for its judgment, the district court found failure to pay was not due to gross negligence or any willful or fraudulent breach of duty and payment of the entire contract balance was made within a reasonable time after service of notice of default. Plaintiffs appeal.
The sole issue presented on appeal is whether the district court erred in finding defendants’ default was not due to any grossly negligent, willful or fraudulent breach of duty.
Section 17-102, R.C.M. 1947, provides:
“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, willful, or fraudulent breach of duty.”
Plaintiffs contend the record does not support the relief from forfeiture granted by the district court under section 17-102. We believe it does.
This particular statutory section has been the source of much litigation in Montana. See: 19 Montana Law Review 50 (1957). In numerous cases the statute has been construed to provide a person with relief from forfeiture, “in any case where he sets forth facts which appeal to the conscience of a court of equity.” Greenup v. United States, D.C., 239 F.Supp. 330, 332; Kovacich v. Metals Bank & Trust Co., 139 Mont. 449, 451, 365 P.2d 639; Blackfeet Tribe v. Klies Livestock Company, D.C., 160 F.Supp. 131.
This Court in Yellowstone County v. Wight, 115 Mont. 411, 417, 145 P.2d 516, 518, said:
“Section 8658, Revised Codes [now section 17-102, R.C.M. 1947], 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 Legislature in enacting the statute was that it should be operative and that it should be given full force and effect when the circumstances in any case gave it application. The intention of the law under this statute is that a forfeiture should not be needlessly enforced. The courts have established that as the policy of the law in the absence of statute. The rule as it has found expression court decisions generally is that both in law and in equity forfeitures are abhorred. * * *”
See: Lester v. J & S Investment Company, 171 Mont. 149, 557 P.2d 299, decided November 23, 1976.
Here, the dishonored check was for approximately $4,600 but at the time it was presented for payment defendants only had slightly more than $3,000 in their checking account. Defendants cited crop failures and inability to collect from their debtors as reasons for the shortage. The record also discloses various attempts by defendants to secure the necessary funds from other sources. Defendant Vern Heller tried to secure a loan from a Harlowton bank and from the Federal Land Bank Association. His efforts were not successful because of a judgment against defendants’ property. Prior to issuing a check for the annual payment both defendants secured employment off their ranch to help meet the obligation, Vern Heller worked long hours on construction and Grace Heller worked as a housekeeper in the local hospital. Defendants were finally able to make the accelerated payment on the contract only when Vern Heller’s brother reached a financial position where he could advance them sufficient money on an open note.
In summary, the record discloses that defendants made good faith efforts to raise the necessary money in time for the installment payment but because of temporary circumstances outside their control were unsuccessful until Vern Heller’s brother was able to assist. Once defendants did secure the necessary funds, the entire contract balance plus interest, was promptly tendered to plaintiff’s escrow agent.
The facts of this action present a clear case for applicati'on of section 17-102, R.C.M.1947.
The judgment of the district court is affirmed.
MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES HASWELL, JOHN C. HARRISON and LeROY L. McKINNON, District Judge, sitting for Mr. Justice Castles, concur.
|
[
-33,
0,
-43,
15,
-18,
-7,
1,
-18,
18,
0,
32,
-11,
10,
42,
-10,
-31,
-6,
-14,
27,
30,
-25,
-47,
-10,
-31,
21,
0,
31,
-34,
12,
23,
39,
-28,
-31,
55,
4,
-5,
-50,
24,
43,
-48,
-7,
38,
-50,
-25,
-11,
-5,
-10,
-53,
1,
25,
20,
-28,
-10,
-38,
-29,
9,
-56,
-15,
-85,
-29,
32,
-30,
16,
33,
-22,
-27,
5,
-20,
15,
-14,
30,
-32,
-3,
-34,
15,
-43,
5,
34,
-74,
-18,
-22,
-12,
14,
4,
-6,
-38,
41,
-20,
13,
43,
-46,
32,
46,
33,
-47,
29,
-4,
15,
0,
6,
-39,
-34,
-8,
63,
0,
18,
9,
-32,
-52,
16,
35,
19,
41,
-16,
-14,
0,
-18,
8,
2,
19,
-13,
15,
2,
-19,
23,
-16,
0,
-1,
-23,
23,
18,
3,
-4,
28,
-41,
-27,
-33,
-19,
-16,
14,
-1,
-23,
-43,
-22,
7,
-34,
20,
-35,
-2,
-12,
-48,
-2,
26,
13,
48,
-68,
10,
-35,
-10,
-74,
60,
10,
-34,
8,
-9,
-7,
-4,
-3,
-12,
33,
47,
-9,
7,
-57,
1,
-52,
71,
-14,
24,
-2,
12,
-8,
-31,
29,
-16,
-2,
8,
-9,
16,
-8,
-2,
-57,
-60,
-24,
-19,
18,
-29,
-11,
-9,
23,
-19,
-55,
21,
-34,
-3,
-9,
37,
-26,
18,
45,
-31,
-66,
31,
15,
-40,
-3,
53,
15,
-24,
-1,
-13,
7,
-26,
-41,
-39,
-38,
11,
0,
9,
29,
-53,
18,
27,
12,
-16,
-31,
7,
-25,
43,
64,
-8,
-20,
-2,
-37,
-33,
1,
-29,
-6,
-3,
-30,
-68,
11,
-28,
65,
68,
9,
6,
-3,
0,
-8,
48,
31,
-28,
-17,
-8,
-41,
20,
-28,
-42,
29,
-6,
-7,
10,
73,
3,
-28,
-90,
7,
-30,
28,
15,
6,
-1,
18,
37,
21,
45,
98,
-5,
-18,
10,
-12,
-50,
33,
-6,
-14,
-20,
-50,
11,
28,
-16,
-9,
25,
6,
-38,
-8,
-10,
-33,
-11,
4,
5,
36,
41,
0,
-20,
41,
-21,
1,
-2,
-45,
39,
21,
1,
18,
34,
-13,
-1,
-13,
-42,
33,
-13,
-1,
0,
26,
22,
5,
0,
-7,
11,
26,
13,
54,
4,
20,
58,
24,
-23,
5,
-16,
55,
-11,
18,
-46,
0,
-5,
0,
22,
47,
29,
25,
28,
45,
-13,
-50,
-7,
-2,
23,
-10,
-23,
6,
-8,
33,
-5,
-47,
-31,
4,
-43,
-22,
-15,
32,
59,
-6,
-38,
19,
44,
-42,
-14,
-33,
-25,
19,
-39,
23,
3,
50,
15,
-66,
17,
-38,
-53,
-8,
13,
-31,
-45,
-8,
-52,
11,
-17,
20,
-56,
-17,
-2,
-15,
-7,
-1,
-40,
26,
9,
23,
21,
-13,
51,
15,
55,
-10,
-2,
-48,
16,
26,
-58,
1,
1,
31,
-29,
-27,
31,
3,
24,
-41,
-3,
48,
1,
61,
0,
9,
4,
19,
6,
-38,
21,
55,
11,
0,
29,
-1,
30,
16,
82,
-42,
42,
-21,
47,
-23,
4,
20,
23,
-13,
-48,
20,
-66,
12,
37,
40,
69,
2,
-14,
32,
18,
-38,
-8,
25,
-5,
-37,
-52,
13,
15,
23,
-41,
-43,
-5,
29,
41,
-15,
6,
36,
20,
-18,
-5,
-43,
32,
-4,
15,
-10,
2,
26,
-3,
29,
-2,
-59,
-19,
11,
-15,
52,
31,
21,
-2,
6,
43,
1,
27,
5,
4,
17,
-63,
-21,
0,
1,
29,
58,
-41,
-2,
-26,
27,
12,
-48,
16,
17,
-5,
23,
2,
-26,
-21,
49,
-23,
68,
-15,
41,
19,
-16,
24,
4,
10,
-115,
67,
23,
-51,
6,
-10,
-45,
5,
-20,
20,
55,
49,
23,
41,
-22,
4,
-44,
-79,
21,
-14,
-22,
-29,
-4,
14,
-32,
-85,
-72,
35,
16,
-24,
-2,
8,
-19,
12,
35,
51,
39,
-48,
19,
14,
10,
-2,
-41,
2,
-24,
-6,
-2,
-9,
9,
-19,
25,
-19,
7,
33,
-98,
10,
-7,
-5,
16,
0,
15,
2,
24,
30,
-8,
11,
-16,
22,
-17,
25,
11,
-7,
-32,
-11,
24,
-35,
12,
-14,
19,
27,
-30,
60,
9,
-14,
14,
0,
11,
-11,
-42,
-8,
5,
-8,
16,
-7,
-42,
-21,
5,
40,
-28,
-36,
47,
23,
-19,
-9,
-12,
44,
-53,
-30,
-44,
63,
-5,
-37,
9,
15,
-61,
12,
-6,
-10,
47,
16,
-27,
18,
-34,
34,
-13,
13,
53,
35,
-12,
33,
-56,
0,
3,
-72,
-19,
-28,
-54,
-26,
-1,
32,
-4,
-20,
27,
29,
0,
34,
46,
-66,
28,
40,
-13,
-20,
50,
-6,
88,
-16,
-19,
27,
-7,
-9,
-3,
-34,
7,
6,
-2,
14,
-12,
-30,
15,
-6,
-44,
-24,
-13,
-29,
-29,
42,
-40,
-12,
55,
14,
35,
-20,
40,
-4,
9,
9,
-7,
18,
-50,
-40,
-19,
34,
17,
0,
31,
-27,
-36,
-13,
-42,
25,
-4,
-56,
-31,
-6,
-21,
-41,
8,
36,
6,
44,
90,
25,
17,
32,
-27,
17,
-15,
6,
-20,
-5,
37,
7,
1,
15,
-12,
61,
11,
-40,
-14,
5,
25,
1,
-39,
22,
-19,
6,
29,
21,
64,
4,
5,
-39,
-4,
-70,
8,
40,
109,
35,
-48,
-5,
41,
21,
26,
0,
-2,
0,
16,
31,
19,
1,
-36,
58,
-13,
31,
0,
19,
28,
-10,
-4,
-16,
26,
-44,
1,
-49,
8,
-22,
5,
-48,
36,
-26,
-64,
4,
-6,
-53,
-43,
-9,
-9,
7,
2,
-28,
-13,
-61,
-14,
1,
-5,
-6,
-37,
-25,
-61,
-53,
-34,
18,
2,
-23,
2,
-34,
19,
15,
-1,
52,
28,
-20,
11,
17,
-16,
-17,
-3,
8,
23,
18,
17,
-2,
62,
35,
-10,
39,
-20,
30,
13,
-23,
19,
-48,
24,
-8,
5,
-39,
5,
-19,
46,
1,
27,
18,
6,
20,
-26,
-13,
-17,
35,
-34,
45,
-16,
24,
-12,
-44,
2,
19,
1,
2,
48,
36,
-30,
-45,
-44,
-29,
48,
-45,
-60,
32,
30,
28,
-13,
-33,
-29,
42,
-77,
-11,
26,
1,
40,
-25,
9,
-1,
43,
9,
-30,
13,
-25,
11,
-48,
2,
-14,
40,
-10,
-12,
-31,
-5,
-24,
23,
33,
-11,
51,
42,
46,
23,
-24,
-17,
-41,
35,
17,
-36,
34,
10,
-88,
43,
-18,
20,
60,
26,
-25,
-1,
-15,
24,
-2,
-77,
-4,
41,
33,
-43,
-25,
-17,
-17,
-3,
30,
3,
0,
36,
18,
14,
-7,
14,
-21,
39,
22,
22,
29,
17,
-36,
-25,
6,
25,
-55,
2,
-52,
41,
-3,
39,
9,
51,
15,
-31,
-4,
38,
26,
12,
-7,
-19,
23,
8,
-5,
6,
-15,
-3,
35
] |
MR. JUSTICE JOHN C. HARRISON
delivered the opinion of the court.
This appeal is from an order of the district court, Powell County, modifying the original decree of divorce by transferring the care, custody and control of two minor children to the father C. Robin Brooks, subject to reasonable visitation rights on the part of the mother, Judy Brooks.
Judy Brooks and C. Robin Brooks were divorced in September 1973. That decree awarded Judy the custody of the two minor children and support for those children. Shortly after the di vorce Judy left the state with her children accompanied by a married man who had left his wife. They went to California where they shared an apartment. After some nine months in California, they returned to Montana and Judy moved in with her parents.
At the time she returned to Montana, Judy was pregnant with a child of her companion and gave birth to this child in October 1974. The visitation rights provided for by the decree to the father in the original decree of divorce ceased during the California stay, but the father continued to provide support for the children while they were in California and for a period after they returned to Montana.
By court stipulation the father took the children into his home until after Judy’s child was born in October. After returning the children to Judy he had visitation troubles, though he made efforts to have his children.
Judy moved from her parents home in February 1975 to a small home with a sister of the man she had been living with and that relationship continued though the man was still married to someone else.
Some months later they moved from Anaconda and set up housekeeping in an apartment in Garrison, Montana. Although Robin Brooks tried to see and have his children on regular visitation privileges thereafter, he was unable to do so and he cut off support payments alleging that it was not being used for his minor children. He petitioned for modification of the decree and a change of custody and on the day it was heard paid all delinquent payments. Following a full hearing of the cause the presiding judge ordered a change of custody. The mother appeals.
Two issues are before this Court on appeal:
1) Was there sufficient evidence before the trial court to support its conclusions that it would be in the best interests of the minor children to transfer custody to the father?
2) Did the court abuse its discretion in transferring custody?
We will discuss the issues as one. We find there was sufficient evidence to transfer custody to the father and in doing so there was no abuse of judicial discretion.
This Court has long followed the rule that unless there is a clear abuse of discretion by the trial court, a decision on custody will not be overruled on appeal. Love v. Love, 166 Mont. 303, 533 P.2d 280; Gilmore v. Gilmore, 166 Mont. 47, 530 P.2d 480; Anderson v. Anderson, 145 Mont. 244, 400 P.2d 632. In these cited cases this Court has committed itself to the view that the welfare of the child is the paramount consideration in awarding custody and that it must of necessity, be left largely to the discretion of the trial judge. He hears the testimony, sees the witnesses’ demeanor and has a superior advantage in determining those difficult problems.
Here, the district court’s finding for the father, the behavior of the natural mother and its ultimate effect on the children as they grow, warrant the decision. The father can provide a home and the stability needed for the necessary healthy emotional growth of the children, plus the instability of the mother in her relationship with other men are sufficient factors to support the trial judge’s decision.
The judgment is affirmed.
MR. CHIEF JUSTICE JAMES T. HARRISON, MR. JUSTICES HASWELL and DALY and the HONORABLE JACK SHAN-STROM, District Judge, sitting for Mr. Justice Castles, concur.
|
[
20,
5,
-3,
30,
-10,
-51,
-31,
16,
-2,
18,
-15,
-17,
-11,
-34,
-16,
-41,
-47,
2,
7,
33,
-80,
45,
-35,
39,
94,
18,
41,
2,
-32,
-8,
-6,
-56,
28,
-11,
11,
27,
25,
30,
32,
32,
12,
17,
26,
-19,
-39,
0,
3,
10,
-23,
-5,
-37,
-55,
41,
18,
62,
17,
25,
30,
-36,
7,
-7,
17,
-24,
16,
52,
-17,
67,
-3,
54,
-36,
28,
-12,
-25,
-23,
0,
-1,
44,
-9,
-15,
76,
-23,
4,
-58,
-33,
-18,
-30,
-5,
21,
-32,
67,
-9,
23,
6,
-11,
-2,
55,
-60,
-49,
22,
17,
-13,
-64,
41,
9,
80,
0,
30,
4,
9,
8,
9,
15,
14,
8,
-4,
20,
-21,
32,
-50,
-10,
5,
57,
15,
17,
79,
-61,
-54,
13,
43,
7,
-46,
27,
28,
-10,
19,
-26,
-5,
-59,
-38,
-58,
4,
-57,
28,
12,
56,
14,
28,
-32,
-7,
-22,
45,
-15,
6,
44,
78,
-19,
-24,
-17,
23,
5,
13,
1,
-29,
13,
-4,
-5,
1,
29,
-57,
-17,
12,
6,
-36,
15,
52,
45,
-16,
-1,
-58,
4,
-7,
12,
-6,
-36,
-46,
47,
-11,
17,
1,
-22,
-23,
-3,
30,
12,
9,
23,
49,
-21,
-19,
3,
-19,
20,
59,
56,
-14,
18,
57,
33,
28,
-72,
18,
15,
-13,
-45,
-63,
-35,
-22,
5,
-36,
-11,
24,
-22,
31,
-70,
-30,
18,
-5,
-21,
-21,
-6,
8,
15,
40,
-8,
2,
2,
-58,
-32,
-33,
-22,
33,
-44,
25,
-44,
34,
41,
-29,
-6,
-13,
0,
-10,
3,
-39,
66,
77,
-5,
16,
16,
19,
-14,
21,
-5,
6,
-39,
26,
0,
-17,
9,
-8,
-19,
17,
9,
23,
-45,
-34,
-12,
29,
1,
15,
5,
18,
14,
-22,
70,
7,
-34,
15,
20,
31,
52,
-22,
10,
-5,
-45,
10,
-30,
3,
-5,
-60,
-26,
23,
-5,
17,
48,
-70,
29,
-39,
9,
-11,
7,
-21,
8,
-27,
-63,
26,
30,
-56,
-22,
-12,
-9,
31,
14,
31,
20,
16,
39,
60,
0,
-5,
12,
-13,
5,
-27,
23,
64,
-29,
29,
5,
1,
28,
-37,
1,
26,
24,
-39,
-1,
7,
23,
-16,
-6,
-12,
28,
2,
31,
-67,
-47,
3,
-81,
-9,
-26,
-2,
-9,
-22,
-32,
-36,
53,
41,
-2,
0,
4,
-7,
43,
-5,
1,
17,
28,
-10,
22,
32,
-14,
-13,
-3,
-2,
-10,
34,
-20,
-17,
4,
-10,
-60,
7,
-44,
4,
-16,
14,
38,
32,
-6,
-16,
1,
-27,
-12,
-4,
24,
7,
-23,
6,
15,
-29,
-36,
-1,
-11,
4,
22,
65,
9,
-17,
-48,
-43,
8,
-36,
34,
1,
-43,
3,
3,
9,
-56,
5,
16,
-45,
19,
4,
9,
40,
-7,
16,
14,
-29,
0,
-14,
37,
18,
28,
-37,
34,
-13,
-36,
41,
-22,
16,
-9,
-3,
17,
-24,
-53,
-2,
-13,
-72,
-33,
43,
28,
23,
20,
48,
-86,
4,
-8,
3,
36,
-2,
16,
-5,
67,
6,
51,
-40,
20,
-22,
-31,
6,
-55,
-43,
83,
36,
45,
-30,
-43,
-1,
24,
26,
-5,
60,
-9,
17,
-30,
21,
-63,
19,
-27,
-14,
-10,
43,
11,
49,
5,
43,
29,
-50,
29,
31,
-29,
35,
2,
-28,
-12,
53,
27,
22,
1,
-16,
27,
12,
-22,
15,
-31,
39,
-34,
-8,
37,
-28,
76,
1,
25,
39,
40,
1,
26,
-44,
-12,
66,
-14,
13,
10,
-23,
7,
26,
0,
-15,
-26,
30,
-65,
-24,
-11,
32,
6,
-43,
68,
-40,
-20,
45,
29,
4,
3,
-13,
3,
-83,
25,
-31,
56,
-1,
44,
-36,
2,
23,
53,
-9,
34,
-8,
-4,
51,
21,
-64,
-15,
-24,
-7,
1,
61,
51,
-18,
-27,
-36,
-33,
-10,
-19,
-17,
16,
-69,
-38,
1,
0,
-11,
25,
-20,
-37,
27,
57,
5,
-15,
-30,
0,
8,
-11,
-19,
2,
3,
-31,
-10,
-4,
-2,
-25,
-25,
9,
-18,
-20,
-9,
-30,
19,
50,
18,
31,
-29,
40,
10,
30,
-18,
26,
-63,
-10,
-12,
1,
35,
-18,
47,
-40,
-43,
38,
-26,
-12,
-45,
0,
21,
-42,
4,
0,
6,
13,
-18,
-25,
23,
-11,
-25,
27,
40,
29,
5,
9,
19,
7,
25,
-42,
28,
19,
40,
5,
-3,
10,
42,
57,
-9,
-48,
-6,
-52,
4,
-28,
50,
16,
19,
-4,
11,
26,
-20,
-11,
51,
-2,
-9,
-7,
37,
-27,
3,
-33,
16,
-1,
0,
-46,
25,
0,
-8,
-27,
-24,
-21,
-5,
18,
0,
-33,
-24,
56,
-25,
-38,
-8,
-76,
33,
-1,
-42,
24,
9,
19,
-35,
16,
1,
1,
34,
-3,
10,
-7,
18,
11,
28,
44,
22,
34,
-46,
-11,
0,
-66,
55,
54,
-53,
-22,
1,
38,
0,
1,
5,
-26,
15,
8,
29,
-4,
7,
26,
14,
-10,
60,
-5,
-21,
-48,
-53,
37,
-42,
-19,
-8,
-13,
10,
-21,
-22,
-2,
13,
-6,
-37,
-40,
-13,
40,
0,
22,
-30,
71,
1,
23,
1,
18,
1,
19,
-28,
59,
73,
-51,
-42,
-48,
-52,
46,
28,
9,
-4,
10,
0,
-52,
16,
-36,
53,
3,
-4,
35,
-26,
-29,
-42,
-33,
34,
-13,
-22,
65,
-65,
-22,
7,
26,
-21,
-36,
17,
16,
-3,
-17,
31,
-7,
7,
-49,
-51,
8,
-16,
17,
30,
2,
-7,
-34,
-61,
55,
31,
5,
4,
80,
5,
6,
-6,
-18,
52,
0,
20,
-50,
-8,
13,
28,
-59,
26,
-42,
-49,
48,
6,
57,
0,
-13,
69,
-61,
-78,
28,
23,
-26,
-63,
72,
-23,
-38,
0,
25,
49,
-39,
26,
11,
17,
18,
14,
-38,
-10,
-2,
-15,
24,
-24,
-32,
18,
-13,
-42,
-49,
-84,
-16,
-21,
-40,
-46,
17,
-7,
-26,
-10,
17,
-14,
21,
27,
-3,
18,
-8,
-9,
-17,
21,
-19,
-26,
25,
-27,
-51,
-23,
-2,
-1,
-39,
-37,
-34,
55,
-8,
-13,
-31,
-47,
32,
-13,
-8,
53,
54,
-20,
0,
-11,
12,
31,
0,
35,
0,
-59,
-34,
-8,
3,
38,
0,
46,
28,
-23,
-11,
-9,
6,
-7,
-37,
72,
11,
19,
-31,
-81,
37,
15,
-28,
3,
-33,
-49,
18,
-5,
-14,
31,
27,
20,
46,
-31,
-25,
31,
-54,
35,
-15,
-4,
-18,
-18,
-4,
-50,
23,
-14,
34,
-3,
46,
26,
-34,
-50,
12,
-7,
-44,
-5,
-26,
-10,
13,
-4,
-73,
22,
-11,
13,
24,
10,
-1,
-48,
-4,
-27,
-58,
-3,
-17,
13,
-25,
6,
68,
-16
] |
MR. CHIEF JUSTICE BRANTLT
delivered the opinion of the court.
Plaintiff brought this action to recover damages for a wrongful expulsion from one of defendant’s trains. The complaint alleges that on July 26, 1909, the plaintiff purchased from the-defendant at Butte, Montana, a ticket from that place to Missoula, Montana; that he entered one of defendant’s passenger-trains, delivered the ticket to the conductor in charge, and was. riding as a passenger on his way to Missoula; and that, before he reached his destination, the defendant, acting through its. conductor, at Warm Springs station, without right and with force and violence and against plaintiff’s will, with circumstances of indignity and by kicking or striking plaintiff with his knee, ejected him from the train, to his damage, etc. The-answer admits the purchase of the ticket by plaintiff; that he entered upon the train as alleged; that he offered the ticket to-the conductor; and that he was ejected from the train at Warm Springs, and denies all the other allegations of the complaint. It then alleges affirmatively that the expulsion of plaintiff was. due to his own fault; that he entered a train consisting wholly of Pullman cars; that in order to ride thereon, in addition to-the purchase of a regular first-class ticket, it was necessary to-pay Pullman car fare; that, upon being advised by the conductor that his ticket could not be accepted unless he paid the Pullman fare, he refused to pay it, and that because of such refusal the defendant was forced to stop its train and expel him therefrom. Upon these allegations' there was issue by reply. At the trial, the hearing of the evidence being completed,, the court sustained defendant’s motion for a verdict in its. favor. The appeal is from the judgment entered thereon.
The grounds of defendant’s motion are: that the complaint fails in several particulars to state a cause of action, and that the evidence is insufficient to make a case for the jury. For the purposes of this decision, we shall assume that the complaint states a cause of action, and consider only the question whether the action of the court in directing a verdict was cor rect. Plaintiff does not now claim that upon his expulsion from the train h.e was subjected to maltreatment of any kind. His contention is that the wrong done him was the violation by the defendant of his right to continue his passage after it was begun by requiring him to leave the train. We shall also therefore eliminate consideration of the evidence showing the manner of plaintiff’s expulsion, and examine that only upon which he bases his contention that the court erred in directing a verdict for the defendant. The evidence shows the following:
On July 26, 1909, the plaintiff and others purchased from defendant at Butte first-class tickets from that place to Missoula intending to take defendant’s train known as No. 15. This train was divided into two sections. The first was made up exclusively of Pullman sleeping-cars. The day coaches were in the second section. The two sections were scheduled as one train. The first section arrived at Butte about 6 o’clock, some two hours and a half after daylight, and left a few minutes later. The second section usually followed after an interval of twenty-five minutes. On this morning it followed thirty or forty minutes later. When the first section arrived, the plaintiff, with six or seven others bound to the same destination, sought to enter it. A porter employed on the train, standing at the entrance of the car, told them that there was room for five more passengers only, and would not permit more than five to enter, though others attempted to do so. Among the five was plaintiff. The other four were strangers to him, and it seems had not met each other before that morning. When the conductor came to collect their Pullman fares, the following took place:
Plaintiff testified: “The Pullman car conductor came along and says: ‘Do you gentlemen want this drawing-room?’ And one of the gentlemen spoke up and says: ‘How much is it?’ He says: ‘Six dollars.’ He says, ‘Haven’t you got some other place to sit besides here? That’s pretty steep.’ He says: ‘I can give you berths. A dollar and a half for two.’ He says:‘That will be six bits apiece?’ He says: ‘Yes.’ He went away and after awhile he came back, and says: ‘If you want berths, dig up.’ They started to give him six bits apiece. He took it and came to me, and he wanted a dollar and a half from me. I says: ‘What do you want a dollar and a half from me for?’ He says: ‘Because you haven’t got anybody with you.’ I says: ‘I will pay six bits, like the other gentlemen, but I won’t pay a dollar and a half.’ He says: ‘You will pay a dollar and a half or get off.’ I says: ‘You took six bits from four different men in front of me, and you want me to pay as much as two of them.’ He says: ‘Well, you’ll get off at the next station.’ So the conductor came along and took up the tickets, and he told the conductor: ‘This fellow won’t pay for a berth.’ So the conductor took and punched my ticket and marked it, with an indelible pencil, ‘R25’ or ‘26,’ I don’t know which. So, when we got along toward Warm Springs, he flagged the train. There were three of us sitting in a seat together. I was the last one of the three. The conductor asked me if I would pay a dollar and a half. I said: ‘No; but I will pay six bits.’ So he reached over and grabbed hold óf me, and dragged me opt of the seat, and started me ahead of him along through the aisle, or whatever you call it, and pushed me out onto the platform, and they had the vestibule open. I placed my hands against the side of the ear, like that [illustrating], and he started pushing me down, and he pushed me off anyway, and I won’t say whether he kicked me with his foot or gave me a punch with his knee, but he got me in the ribs, anyway, and put me off the train. It was a good stiff jolt in the ribs. When I speak of ‘ six bits, ’ that is the ordinary commonplace expression for seventy-five cents. * * * The Pullman conductor first asked if our party, consisting of we men in there, wanted the drawing-room; and he was then asked by some one of the party how much it was, and stated, ‘Six dollars.’ Then he was told that that seemed rather high, and couldn’t he give them some other accommodation. The train pulled out of here about five minutes after 6 or at 6 o’clock in the morning — close to 6, probably a little after. The curtains were down on some of the berths, but there was two or three seats probably in the center of the car that was open. Then the conductor said he could sell a berth, for a dollar and a half for two. He said: ‘Six bits apiece.’ As to. whether he said that or some of the men said that would be six bits apiece, they asked him if that would be six bits apiece, and he said, ‘Yes.’ His statement was that he could sell a berth for a dollar and a half. * * * He never said no such thing as that the party could pair off as they wanted to. He didn’t say that. I apparently was the last person to collect from. The others paid six bits apiece. He collected six bits apiece from four men. He then had pay for two berths. Then he told me that I would have to pay a dollar and a half. He told me that was the price of the berths. I insisted that I should be carried for the price that each of the other men had paid. That was the controversy between us. I said I would pay six bits, just the same as the others, and he told me that I would have to pay the price of a berth. He didn’t go and get the train conductor then. The train conductor come along. He never left there. The train conductor arrived. Down to that time, I had had my train ticket — my passage ticket. I gave the passage ticket to the train conductor —offered it to him. The Pullman car conductor said: ‘This fellow won’t pay a dollar and a half for a berth.’ The train conductor asked him if he wanted me put off. He said: ‘Yes,’ if I didn’t pay a dollar and a half. X told the train conductor I would only pay seventy-five cents, what each of the other men had paid. That was the actual difference between us. * * * I just sat there, and he reached over and pulled me out. When he said, ‘Come on, get out of here,’ I sat there. I didn’t intend to go voluntarily. I sat there after he told me to, ‘Come, get off,’ until he took two steps to put me off; and I meant to ‘put it up to him’ to put me off the train, if I was to be put off. That was my purpose. I stepped down on the steps of the platform when he pushed me. When I got out on the ear platform, he asked the Pullman car conductor that was down below, ‘Do you want this man put off?’ The Pullman ear conductor was standing on the ground, and the railroad conductor says, ‘Do you want this man put off?’ He says, ‘Yes; unless he pays a dollar and a half.’ I says: ‘I won’t pay a dollar and a half. I will pay six bits like the others.’ We were right on the platform. I was maintaining my position, and they were maintaining theirs. The question was whether I should pay seventy-five cents or a dollar and a half. That was the point in dispute. ’ ’ Plaintiff stated in other portions of his testimony that he knew that he was in a Pullman car and had ridden in such a car often.
Hoyt, the train conductor, called by defendant, testified: “I am familiar as train conductor with the rule of business as it was carried on as to when they exact seat fare and when they exact berth fare. After 7 o’clock in the morning it is seat fare. Anything before that it is berth rate. The berth rate is $1.50 between Butte and Missoula. When I got into this drawing-room, I learned who it was that wouldn’t pay the fare by the Pullman conductor showing him to me. I explained to him in regard to the way the fares was collected, and what we would have to do if he wouldn’t pay it. I would mark his ticket off at Warm Springs, and he could get the second section with day coaches, which would make a difference of about forty minutes to Missoula. It was between thirty and forty minutes behind us, and I told him that. This took place after we were out of Butte about fifteen minutes. * # # I told him before 7 o’clock in the morning it was berth rate; and, if there were two men together, the two could stay in the berth and pay the fare between them; but where there was only one, he had to pay full fare. He said he would pay but seventy-five cents; that is, what the rest of them paid. He said he had a first-class ticket, and he was going to ride on it. I told him he couldn’t ride on a first-class ticket without Pullman transportation. I told him I would mark his ticket, and I did. After so marking the ticket, I canceled it once and handed it back to him, and he accepted it. The train at this time was just coming into Warm Springs.”
The witness Baysoar, agent of the defendant at Butte, testified: “I was familiar with the method of selling seats and berths in Pullman cars as they prevailed in the regular course of business in July of last year. They ceased selling tickets at night to any point reached by the train after 10 o ’clock P. M. In the regular course of business, the sale of seats in Pullman cars would be resumed at 7 o’clock in the morning of the next day. In that interval between 10 P. M. and 7 A. M., there is nothing in the way of accommodations in Pullmans but berths on sale, aside from the drawing-room. We never in the course of business sell half berths. We couldn’t do that. Two adults could occupy a berth when a berth was purchased. That is the limit for adults.” As an exhibit to his testimony there was introduced a rule relating to the Pullman car service, which he stated was the only rule of the defendant and the Pullman company upon the subject. The portion of this rule which is material here is the following: “Ticket agents and conductors must conform strictly to tariff in the sale of accommodations and to the instructions contained herein, (a) Seats in sleeping cars will be sold from stations passed after a reasonable hour in the morning, where such sales will not discommode berth passengers; but will not be sold to stations passed after 10:30 P. M., or before a reasonable time in the morning, except by special orders as to particular lines, or where a car is due to arrive at terminus by midnight. This rule will not apply to observation, composite, library or club cars, in which seats may be sold during the night, when such sales do not interfere with the sleep of a passenger or conflict with the rules of the road over which the cars are running. Seat passengers will not be located in space of berth passengers.” It appears, further, that the train conductor by virtue of his general power of control over the train had authority to eject passengers from Pullman cars when they refused to pay their fare or refused to comply in other respects with the rules governing the use of them by passengers, though it does not appear definitely whether the defendant was running the Pullman cars on its own account, or was running them by some traffic agreement with the Pullman company. In any event, it is not questioned that in ejecting plaintiff he was acting within the scope of his employment as the servant of the defendant.
It may be conceded, as counsel for plaintiff contend, that, having purchased a first-class ticket and entered a car apparently ready to receive passengers, plaintiff thereby became a passenger and was thereafter entitled to all the rights and privileges appertaining to his relation to defendant as such, among which was his right to proceed on his journey to his destination (Elliott on Railroads, see. 1579); but to this concession must be attached the reservation that the continuance of his right was conditional upon his observance of all reasonable rules adopted by the defendant to govern travel upon the character of train upon which he had assumed to take passage. “A common carrier is entitled to a reasonable compensation, and no more, which he may require to be paid in advance. If payment thereof is refused, he may refuse to carry.” (Rev. Codes, sec. 5337.) “A common carrier may demand the fare of passengers either at starting or at any subsequent time.” (Section 5349.) Again: “A common carrier of persons may make rules for the conduct of his business, and may require passengers to conform to them, if they are lawful, public, uniform in their application, and reasonable.” .(Section 5348.) So, too, where, a railroad company has provided ordinary and reasonable facilities for its passengers, the purchase of a ticket entitling a passenger to carriage over the railroad does not entitle him to travel in a sleeping-car without paying additional compensation, even though he may not have notice of the rules of the company. (4 Elliott on Railroads, sec. 1626.) In such case the company is within its rights when it removes the passenger to a ear in which are provided the accommodations for which he has paid, if it is done without unnecessary force. It seems apparent, also, that, when the demands of business require it, a railroad company may run trains composed exclusively of Pullman sleepers, and exclude or remove therefrom all persons who have not provided themselves with berths or seats, as the case may be, under reasonable regulations, if it has at the same time made provision to accommodate the public by other trains running at reasonable intervals. In such case, it is not incumbent upon the company to bring home to the passenger notice of its rules. The obligation rests upon the person proposing to become a passengfer to inform himself when he purchases his ticket as to the mode of travel provided and to conduct himself accordingly. (Ames v. Southern Pac. Ry. Co., 141 Cal. 728, 99 Am. St. Rep. 98, 75 Pac. 310.) By inquiry the plaintiff in this ease would have ascertained that a train fully equipped with day coaches was due in a few minutes. Indeed, we are justified by the evidence in assuming that he was informed that the train he entered was composed of sleeping-cars, and he must be presumed to have known that an additional fare would be exacted; for he stated that he knew that he was in a Pullman, and had often traveled in such cars. That an additional fare will be exacted in such cases is a matter of common everyday experience and observation.
The integrity of the judgment in this case, therefore, is to be determined by answer to the inquiry: Was the rule in question a reasonable one? The statements of the different witnesses agree in all essential particulars. The facts are not disputed. Therefore, „ the question of the reasonableness of the rule was exclusively one for the court. (1 Elliott on Railroads, sec. 202, and cases cited; Central of Georgia Ry. Co. v. Motes, 117 Ga. 923, 97 Am. St. Rep. 223, 43 S. E. 990, 62 L. R. A. 507.) The purpose of the rule is apparent. Pullman sleeping-cars in ordinary use are intended to, and do, answer two purposes, viz., to furnish to passengers who desire and are willing to pay for them berths for sleeping purposes at night and for superior comfort and convenience and liberty of movement during the day, and to afford to day passengers the same convenience and comforts which are extended to berth owners during the day. The second purpose is subordinate to the first, since it is incumbent upon the railroad company to require both its employees and passengers to observe such rules and regulations as will permit the owners of berths to enjoy both their day and night privileges. It is imperative that they shall not be unreasonably crowded during the day, and that beyond a reasonable hour in the evening, and a reasonable hour in the morning, they shall not be disturbed by the noises incident to the coming and going of seat passengers. It is entirely in accord with common experience and observation that the usual hour for retirement to rest in the evening is not far from that fixed in the rule, after which seats may not be sold, and that the period of eight and one-half hours, the time set apart for that purpose, is not beyond what is reasonably necessary for the physical health and well-being of the average man. Besides this, such privacy as may be had in the absence of day passengers for preparation to retire and for the morning toilet, is, in the opinion of the average person, indispensably necessary. In view of these considerations, we do not think the rule unreasonable and arbitrary, even though in the month of July in this latitude daylight comes two and one-half hours earlier than 7 o’clock in the morning, and even though the plaintiff and his associates did not wish to go to bed. It is not unreasonable that persons situated as were the plaintiff and his companions, though pérmitted to enter the car, should be subject to the rules incident to night travel, and pay the price fixed for the accommodation during the hours set apart for that purpose. To hold otherwise would require railroad companies to lengthen or shorten these hours according to the accidents of the seasons, or to vary them at the whim of individual passengers.
Under the rule as interpreted by the Pullman conductor, half berths could not be sold, but one berth could be sold to two persons. His sale of berths to the four other passengers as he did, allowing each to pay one-half the price, was a compliance with the rule as he interpreted it. It was a question between him and his employer whether he correctly interpreted it. He was clearly within its reasonable requirements in demanding the berth rate from the plaintiff; and the plaintiff had no right to complain that he was not so situated that he could join with some one else in the purchase of his accommodations and obtain them at the same price as the others. But counsel say that defendant is chargeable with putting him in that position, because it is apparent that, if there were accommodations for five persons, there were for six, and but for the action of the porter in charge in excluding other passengers he would have obtained his accommodations at the same price as the others
Under the cause of action alleged in the complaint, however, we do not think the plaintiff is entitled to recover because of the mistake made by the porter. The conductor in collecting the fares obeyed the rule as he was allowed to interpret it. He would not have been justified in modifying the rule in order to ■accommodate plaintiff. Nor do we think that a porter whose duties ordinarily are those of a domestic servant had the authority to modify it for him. There is nothing in the record tending to show that he had such authority, nor, in so far as we may assume knowledge as to the character of his duties, may we infer that he had such authority. In his controversy with the conductor, the plaintiff did not rely upon the information given him by the porter. He did not claim that the porter misinformed him. His claim was that the rule was unreasonable.
The judgment is affirmed.
Affirmed.
Mr. Justice Holloway concurs.
Mr. Justice Smith:
The plaintiff claims that technically he has a cause of action against the Northern Pacific Railway Company, and the latter has interposed a purely technical defense. It invokes a rule of the Pullman company to the effect that no seat tickets shall be sold before a reasonable hour in the morning, and its employees have testified that such reasonable hour has been fixed at 7 o’clock — by whom it does not appear. Plaintiff and six other persons, all apparently strangers to each other, desiring to ride from Butte to Missoula, boarded a solid Pullman train at about five minutes after 6 o’clock on a bright morning in midsummer. He knew that he was boarding a Pullman car, and that he would be obliged to pay extra for the privilege of riding thereon. The porter at the step of the car allowed Mm and four other men to get aboard, turning others away, because, as he said, he had room for but five. "What reason is there for supposing that the porter was not acting within the scope of his duty and authority when he allowed five men to board the car? If he had room for five, he certainly had room for six. That there was ample seat room for six is not disputed. Assuming, for a moment, that the rule is a reasonable one (on paper), it is a familiar principle of law that it should be applied and interpreted in the light of all the surrounding facts and circumstances. In this case, a most important fact is that the Pullman company, through its servants, created the peculiar situation in which the plaintiff found himself. The majority opinion quotes the testimony at length. Can any reasonable man suppose for a moment that any of the five passengers desired to go to bed or to purchase a half berth? Certainly not. No.such claim is made. Each wanted a seat, and that is exactly what the first four got. It is a mere subterfuge to pretend that these strangers were buying berths to be occupied, as such, for about three-quarters of an hour. Had the plaintiff complied with the rule and paid $1.50 there would have been an empty seat beside him which the Pullman company had received payment for, but which could not be occupied. The Constitution and statute laws of this state expressly prohibit discrimination under such circumstances as are disclosed by this record. Can it be said that the sleeping-car company received the plaintiff upon an equal footing with those who accompanied him into the car? But it is claimed that the rule is accountable for the result. Are rules promulgated for the embarrassment and annoyance of the traveling public ? Are they so fixed and inflexible as to be sacred and unchangeable? Can discrimination be indirectly practiced by virtue of them? Can the Pullman company, in effect, violate the very spirit of its own rule and escape liability on the ground that there has been a technical compliance with the terms thereof ? I think not. The argument that the Pullman car conductor correctly interpreted the rule because he would have been discharged had he placed any other construction upon it, does not appeal to me as having any force. Let us look at this situation from a standpoint of common sense. Let us suppose that, instead of invoking the fiction that the first two passengers desired to occupy a berth together and the second couple likewise, the Pullman ear conductor had said to them: ‘ ‘ Gentlemen, I see you desire seats, but I cannot sell a seat, as such, until 7 o ’clock. However, there is plenty of room here, so sit down, and at 7 o’clock I will collect a seat fare of seventy-five cents from each of you.” Would the rights of this public service corporation, the Pullman company, have been violated? Would it have lost any money which rightfully belonged to it? Or let us suppose he had said to Doherty: “In your case, as you are an odd man here, I cannot carry out the counterfeit notion that you desire to go to bed at this time in the morning, having slept all night ; so, therefore, desiring to accommodate you as one of our patrons and one of the great traveling public, I invite you to occupy one of these empty seats for three-quarters of an hour, at the expiration of which time I will call upon you to pay me the sum of seventy-five cents, the same amount paid by those who boarded the car with you.” Would any money have been lost to the Pullman company by such a course of conduct ? Rather, would such courteous, polite and novel treatment not have been calculated to induce the public to travel in its cars whenever possible, and thus enhance its revenues ? Perhaps the conductor would have been glad to extend such a courtesy, but the answer is that he would have been discharged had he done so. I recognize no rule as reasonable which can be so manipulated as to embarrass the traveling public under circumstances where the exercise of a little common sense, and regard for the comfort and welfare of others, would make it possible to accommodate them and avoid causing them humiliation.
But this plaintiff is entitled to very little sympathy. He may have a technical cause of action against the Northern Pacific Railway Company for purely nominal damages. He said on.the witness-stand: “I meant to ‘put it up to him’ to put me off the train if I was to be put off. That was my purpose.” When he found himself confronted with a rule of the Pullman company which the conductor had no authority to change or modify, or even to construe reasonably, without jeopardizing his position, or, as he himself said, “losing his job,” he might have paid the extra seventy-five cents under protest and recovered it later, if wrongfully paid. Or he could have left the train quietly at Warm Springs, taking the second section forty minutes later, without substantial loss. He did in faci ride to Missoula, on the second section, using his original railroad ticket for that purpose. In the affairs of life these little misunderstandings and annoyances are bound to occur. They ought not to be magnified into lawsuits unless some substantial injury has been suffered. It is unfair to the taxpayer that his money should be frittered away in the maintenance of courts for the purpose of hearing such controversies. While the Northern Pacific Railway Company, like every other corporation and individual, should be compelled to make full compensation for all injuries occasioned through its negligence, it ought not to be annoyed and harassed with lawsuits which have no substantial merit solely on account of the fact that it is a corporation. For the reasons herein stated, I do not dissent from the disposition of the ease.
|
[
-20,
-6,
27,
21,
34,
-19,
32,
-14,
-19,
2,
-6,
41,
-11,
-51,
-6,
-47,
-42,
-46,
22,
-17,
-20,
-9,
-10,
-20,
-9,
-21,
-28,
5,
-58,
-14,
58,
19,
20,
-6,
17,
1,
-16,
-43,
16,
12,
29,
14,
13,
0,
40,
58,
-12,
21,
18,
-37,
81,
-21,
-25,
-3,
-8,
-14,
-34,
-3,
-7,
28,
-19,
-50,
30,
-51,
9,
-21,
18,
-10,
-78,
28,
-35,
35,
-9,
-67,
-25,
-4,
-48,
-15,
-35,
39,
-23,
9,
29,
-28,
3,
38,
-4,
-10,
-38,
-6,
37,
14,
2,
-13,
86,
-4,
-23,
-10,
-25,
-24,
28,
-23,
-74,
-18,
23,
-51,
-40,
10,
14,
18,
-50,
57,
-48,
-74,
-17,
-6,
-9,
-28,
8,
-43,
35,
-16,
-11,
42,
-45,
17,
-3,
38,
42,
41,
-5,
42,
31,
31,
10,
-8,
-18,
-41,
12,
-47,
10,
-10,
64,
-12,
-25,
2,
46,
81,
-18,
-31,
-10,
9,
1,
-13,
-4,
-16,
0,
-51,
59,
-3,
48,
35,
-12,
18,
28,
20,
-12,
18,
58,
-5,
-46,
-32,
26,
-20,
27,
60,
-11,
9,
-60,
3,
-20,
71,
9,
-42,
-39,
-31,
53,
28,
-20,
-12,
43,
-33,
22,
-20,
-63,
29,
36,
-42,
28,
-25,
41,
4,
-31,
7,
-54,
12,
30,
-30,
47,
48,
-8,
-16,
6,
-30,
8,
-15,
28,
-22,
-20,
-35,
-7,
-5,
-49,
17,
11,
-54,
21,
48,
-24,
34,
-25,
5,
29,
3,
16,
-48,
-25,
-13,
-28,
-34,
5,
-17,
36,
-43,
3,
4,
-21,
-29,
-5,
29,
20,
-19,
18,
-8,
-4,
-25,
31,
-7,
-22,
-42,
29,
29,
28,
33,
-15,
-16,
-17,
-15,
-28,
-45,
20,
12,
26,
-15,
-21,
-57,
35,
3,
78,
-3,
5,
19,
37,
17,
-30,
-21,
55,
-6,
2,
-22,
7,
-54,
6,
29,
5,
87,
62,
87,
10,
-14,
1,
-27,
0,
42,
-10,
31,
-32,
2,
-20,
24,
-19,
11,
-5,
-69,
5,
10,
-1,
-8,
9,
-49,
-30,
17,
-5,
-38,
-2,
-3,
5,
12,
0,
-17,
108,
2,
-21,
11,
5,
-37,
25,
31,
33,
-20,
11,
37,
-16,
-13,
-11,
34,
14,
-1,
-22,
-21,
-10,
-36,
12,
-13,
-19,
32,
-23,
-79,
4,
13,
10,
-2,
36,
-31,
51,
-21,
-35,
-28,
-9,
-32,
7,
-46,
30,
-11,
-25,
-2,
6,
28,
0,
99,
-25,
-10,
-6,
-3,
24,
6,
-56,
-28,
-39,
-18,
17,
6,
54,
39,
13,
-6,
-9,
8,
10,
15,
-1,
10,
9,
0,
-15,
-42,
48,
0,
-37,
20,
-22,
-46,
27,
-27,
65,
16,
5,
43,
-4,
-27,
48,
-11,
67,
0,
26,
-25,
12,
-18,
14,
-1,
34,
-50,
6,
51,
-29,
-15,
6,
-7,
-18,
-45,
19,
-2,
-45,
52,
-19,
-31,
-23,
26,
10,
8,
-2,
-20,
34,
63,
-3,
45,
13,
13,
3,
20,
13,
60,
-39,
68,
2,
-44,
28,
17,
63,
51,
36,
5,
-38,
38,
12,
28,
-26,
2,
-9,
-25,
-43,
-2,
35,
-21,
0,
2,
23,
-19,
56,
19,
4,
42,
6,
0,
-19,
-8,
-19,
20,
-3,
-8,
-47,
16,
43,
-3,
13,
-7,
-9,
-20,
-6,
27,
60,
7,
6,
-34,
23,
21,
-59,
-17,
-53,
26,
8,
27,
-16,
-50,
-36,
-17,
19,
-45,
28,
-42,
32,
-27,
7,
18,
4,
21,
33,
-28,
23,
-33,
-2,
-16,
35,
-41,
7,
-5,
1,
10,
33,
50,
52,
40,
7,
-37,
23,
-42,
-30,
19,
-13,
-2,
44,
2,
-29,
0,
19,
34,
-31,
3,
50,
-9,
31,
58,
-15,
-19,
-23,
19,
44,
-8,
-8,
-28,
21,
-30,
-28,
18,
13,
-23,
1,
-10,
-15,
19,
-7,
-32,
1,
0,
20,
16,
-48,
8,
24,
28,
-12,
-21,
-17,
36,
28,
47,
-71,
-20,
11,
11,
11,
20,
-30,
26,
20,
22,
3,
0,
38,
-40,
-12,
-28,
7,
0,
-28,
-51,
-89,
-46,
-14,
-37,
-43,
19,
-63,
-7,
-36,
66,
0,
23,
-45,
-10,
11,
47,
17,
-34,
2,
-25,
-53,
36,
-14,
24,
12,
37,
19,
-23,
-1,
2,
20,
25,
-47,
-22,
-18,
-23,
5,
10,
-21,
13,
27,
-30,
-7,
4,
51,
-71,
9,
25,
-22,
-13,
-14,
-12,
-8,
15,
-17,
9,
40,
6,
-33,
-1,
-3,
54,
53,
-36,
-5,
-2,
-10,
22,
5,
16,
16,
-59,
6,
-27,
-15,
-27,
13,
-12,
-2,
-45,
-5,
8,
16,
24,
24,
-20,
-9,
-28,
-10,
-46,
-4,
-24,
-47,
11,
-9,
20,
16,
-38,
28,
-25,
72,
5,
14,
-33,
24,
45,
10,
-10,
-42,
58,
7,
-35,
6,
-33,
12,
41,
38,
46,
-9,
7,
29,
-51,
-12,
-8,
64,
-18,
21,
-5,
-11,
-11,
-25,
60,
-30,
-53,
59,
-7,
6,
20,
-57,
39,
-14,
-8,
-27,
-18,
14,
-43,
-12,
-62,
8,
72,
58,
22,
37,
18,
-9,
3,
-66,
24,
-34,
15,
27,
-2,
11,
15,
4,
-9,
-23,
-14,
-12,
-57,
-12,
-24,
-27,
27,
-51,
-21,
-10,
12,
-9,
2,
28,
29,
-20,
34,
-51,
22,
-26,
-41,
14,
4,
-28,
-2,
-3,
-10,
22,
-10,
-15,
62,
29,
1,
15,
-4,
25,
14,
6,
-23,
-6,
46,
-32,
-11,
44,
-25,
-51,
4,
-28,
32,
-39,
4,
47,
21,
-30,
-10,
0,
-6,
-23,
-4,
-36,
-40,
-48,
-42,
17,
-81,
58,
35,
-59,
15,
-15,
-49,
15,
-29,
-36,
-79,
0,
-20,
23,
32,
14,
16,
6,
-18,
40,
-18,
62,
-18,
2,
-83,
20,
24,
6,
31,
8,
-33,
8,
42,
23,
-48,
-4,
8,
-10,
-25,
-34,
-10,
37,
10,
-5,
20,
14,
-21,
-11,
-6,
25,
-33,
-26,
71,
12,
-20,
-20,
9,
36,
13,
-31,
55,
92,
5,
71,
-9,
19,
31,
-3,
29,
-18,
-18,
-3,
38,
-48,
11,
-3,
-51,
30,
1,
-25,
-19,
17,
32,
13,
-55,
4,
22,
19,
14,
-53,
-29,
-19,
56,
6,
8,
6,
38,
30,
-30,
-11,
2,
-22,
-52,
23,
39,
11,
-27,
10,
-13,
-16,
-31,
-7,
-55,
-9,
27,
18,
-29,
6,
6,
37,
33,
-61,
-19,
66,
31,
-31,
-4,
-1,
-28,
-36,
-25,
-52,
39,
-7,
33,
-26,
-40,
45,
2,
55,
-15,
-5,
-37,
-35,
-31,
-55,
-21,
11,
15,
-15,
49,
10,
-12,
52,
27,
31,
10,
-29,
1,
-1,
8,
-29,
15,
-13,
70,
40,
5
] |
MR. JUSTICE ANDERSON:
Defendant, Chris Grenz, is the owner of the 600 Bar in Miles City, Montana. Plaintiff, William Baranko, installed cafe fixtures and paraphernalia in the 600 Bar and operated, for a time, a cafe known as the 600 Cafe. Plaintiff met with failure in the operation of the 600 Cafe and in January 1948 abandoned his connection with its operation, and according to the record it has since been run by the defendant.
Plaintiff brought this action to recover $2,800 with interest, claiming that defendant, at the time plaintiff turned the cafe over to him, agreed to pay that amount as the balance due for the fixtures and equipment in the restaurant. Four thousand dollars was the amount plaintiff said was agreed upon; $1,200 of this amount was already paid over to plaintiff’s wife who had given some money toward the original installation.
Defendant claims that on or about November 7, 1947, he deposited $2,300 in plaintiff’s account and that this amount represented payment to plaintiff for the value of the fixtures. Defendant further claims that on January 7, 1948, he deposited $1,500 to plaintiff’s account; that of this amount $260 was for the inventory value of merchandise and $1,240 was a loan to plaintiff for which the defendant counter-claimed.
Plaintiff replied that the $2,300 represented fifty percent of the loss sustained in the operation of the cafe up to the time of payment and that the amount was paid over to plaintiff in consideration that he stay on and continue to operate the cafe. Plaintiff admits that $260 of the $1,500, deposited to his credit, was in payment of the inventory value of merchandise but that the balance of $1,240 represented the defendant’s additional share of losses in operating the cafe.
The jury, after deliberation, returned a verdict of $2,800 in favor of plaintiff and a verdict for $1,240 in favor of the defendant. The court then instructed the jury that there could not be two verdicts and sent the jury back for further deliberations. Thereafter the jury returned a verdict for $1,560 for the plaintiff and against the defendant.
The testimony of the witnesses, offered by each party, respectively supports his version. Defendant argues that the evidence does not justify the verdict and that plaintiff should have had judgment for the entire $2,800 for the equipment and fixtures or nothing at all. Claim for this argument, among others, is based upon the improbability that the defendant would loan plaintiff $1,240 (as defendant said he did) at a time when he allegedly owed plaintiff $2,800. It appears that it is just as improbable that defendant would lend plaintiff anything when he must have known a dispute had arisen.
By its verdict the jury found that plaintiff had $2,800 owing to him for equipment and fixtures. There is substantial evidence supporting this conclusion. It would seem then that the jury disbelieved or disallowed the plaintiff’s contention that the $1,240 was paid, in addition to $2,300 already paid, for one-half of the losses which were to be assumed by the defendant, and thus either believed the defendant’s contention that the $1,240 was a loan to the plaintiff or that plaintiff was overpaid for the losses he alleged were suffered by him.
Whether or not the defendant entered into a contract so as to permit recovery upon such contract was for the jury. Barnard-Curtiss Co. v. Maehl, 9 Cir., 117 F. (2d) 7.
Where the evidence in contract actions is .conflicting and admits of more than one inference, the question raised is one of fact for the jury to determine. 17 C. J. S., Contracts, sec. 610, p. 1269.
It is readily seen that the jury was properly within its prerogative in finding as it did. There was sufficient evidence to submit to the jury and its verdict will not be disturbed on appeal.
Defendant raises an objection to the effect that the Statute of Frauds provides that a contract shall be in writing if it is to run for more than a year. The issues that are involved here are whether or not defendant agreed to pay plaintiff for his capital investment at the time plaintiff turned those fixtures and equipment over to the defendant. In order to establish a basis for some of the issues involved it was necessary to show circumstances having to do with the early oral contract, but a claim that such proof would bring the issues within the original contract and therefore cause plaintiff to bring his suit upon it is without merit.
Defendant further says that he was taken by accident and surprise because of an item appearing in the Miles City Star during the trial of the instant case. Defendant claims a new trial should have been granted. Apparently the defendant, at a time previous to the trial of this case, when he encountered plaintiff, assaulted the plaintiff for which he paid a $500 fine after pleading guilty to a criminal charge. A newspaper story to this effect appeared in the local newspaper and defendant claims that the story was read by or it can be reasonably assumed that it was read by the jurors, all of which would be prejudicial to defendant. During the course of the trial some reference was made to the same incident as was referred to in the news item and the. district judge then admonished the jury not to take it into consideration at all.
The question of whether or not a new trial shall be granted in cases of this kind is within the sound discretion of the trial judge. The mere fact that a newspaper report of the trial has been published is not ground for discharge of the jury when it is not shown that any of them read the article. 64 C. J., Trial, sec. 798, p. 1016. Compare: Ring v. Minneapolis St. Ry., 176 Minn. 377, 223 N. W. 619; Kelley v. Dickerson, 213 Ind. 624, 13 N. E. (2d) 535.
Defendant complains that the district judge was not justified in sending the jury back for further deliberation after it brought in two verdicts. The record shows that after the jury-brought in two verdicts, one in favor of the plaintiff in the sum of $2,800 and one in favor of the defendant in the sum of $1,240, the court said: “No, Ladies and Gentlemen, you can’t have two verdicts. I will refer you to the instructions. I think I will send you back again. Go back for further deliberation.” The court gave the following instruction when the jury received the case after the evidence was heard: ‘ ‘ This being a civil case, two-thirds or 8 of your number must agree in order to find a verdict. In this case you may find either one of the following verdicts: 1, For the plaintiff. 2. For the defendant.”
This court said in the case of Harrington v. Butte, Anaconda & Pacific Ry., 36 Mont. 478, 93 Pac. 640, 642: “* * * the plain purpose of the provision [B. C. M. 1947, sec. 93-5111] is to prevent the receipt of informal or insufficient verdicts. It does not extend to matters going to the substance that do not appear upon their face. If the verdict covers the issue, and is complete on its face, the court must receive it * * Defendant claims that the circumstances in the instant case go to the substance. In this respect we do not agree. For the reasons hereinabove set out the lower court was right in its action in preventing the receipt of a verdict which was insufficient. The court told the jury it could find but one verdict in its original instruction.
Defendant complains that the admission of certain testimony and exhibits was improper. Without setting the matters out at length, it is sufficient to say that the evidence admitted was merely to corroborate the direct testimony of the plaintiff. No fatal error was committed in this respect so as to justify a reversal of the judgment.
Counsel for the appellant gives no authority for the contentions he sets out regarding the testimony or exhibits alleged to have been improperly admitted nor does he show how and in what manner the defendant was or could have been injured thereby.
The defendant offered instructions which the court refused to give. Suffice to say that they were properly refused as either being erroneous, covered by other instructions, or inapplicable. The jury was correctly instructed on all essential questions involved in the case.
The judgment is affirmed.
MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICES BOTTOMLY, FREEBOURN and ANGSTMAN, concur.
|
[
9,
-12,
-49,
-12,
22,
-106,
34,
23,
-32,
39,
40,
22,
26,
-14,
18,
-18,
-30,
11,
-28,
-58,
57,
-90,
6,
-65,
-27,
58,
16,
3,
-13,
-2,
2,
21,
-15,
-11,
21,
86,
11,
-33,
-27,
-59,
4,
-14,
22,
23,
35,
87,
-73,
-46,
75,
-19,
63,
-20,
37,
19,
5,
16,
-21,
16,
-73,
41,
14,
-12,
34,
-17,
63,
-59,
45,
-20,
26,
-57,
22,
-4,
18,
20,
-3,
-96,
-41,
-5,
-47,
-32,
-23,
-30,
32,
37,
-37,
-7,
18,
-19,
-2,
-4,
27,
-10,
26,
-2,
-15,
-30,
-26,
36,
-36,
18,
36,
-54,
-59,
1,
-5,
37,
15,
11,
16,
24,
-41,
-6,
25,
9,
17,
24,
-10,
-32,
-11,
-1,
38,
3,
35,
-18,
-14,
-17,
-53,
16,
-14,
-34,
-6,
-12,
-29,
23,
-47,
-21,
-49,
57,
-79,
-49,
63,
-45,
3,
8,
-30,
-12,
-16,
52,
22,
-49,
-61,
-30,
54,
13,
29,
-27,
13,
-30,
12,
-6,
-3,
-46,
27,
23,
62,
16,
13,
-11,
47,
-49,
-11,
-57,
-12,
-54,
27,
82,
-8,
-117,
-23,
-57,
-19,
-3,
-8,
5,
5,
-58,
50,
-5,
14,
5,
57,
-39,
-55,
36,
3,
-10,
8,
-5,
40,
-52,
0,
-21,
51,
16,
37,
44,
65,
28,
19,
29,
28,
-49,
10,
-7,
-57,
0,
21,
-61,
17,
-20,
-26,
-19,
-59,
-5,
-46,
-17,
32,
-38,
16,
-8,
-119,
-23,
17,
56,
13,
-70,
17,
17,
-21,
-7,
-42,
-28,
-22,
-28,
0,
27,
-58,
-3,
-25,
36,
-37,
15,
-82,
20,
-69,
-67,
0,
17,
-35,
-37,
1,
15,
-37,
-15,
31,
-10,
-30,
-15,
-48,
21,
-9,
-13,
37,
-44,
-27,
-16,
1,
-3,
22,
15,
18,
-67,
34,
-14,
28,
-6,
-27,
-5,
-13,
-9,
6,
9,
29,
-58,
54,
-22,
-16,
-2,
2,
35,
-89,
-41,
26,
42,
-37,
-12,
-47,
20,
0,
-37,
-31,
-4,
15,
-18,
46,
18,
-14,
36,
42,
7,
52,
-25,
-33,
-9,
7,
-48,
-6,
-30,
17,
-34,
-1,
30,
-14,
-4,
-46,
-68,
40,
-4,
56,
68,
1,
-11,
-6,
18,
40,
40,
0,
5,
-22,
-54,
17,
-27,
2,
18,
71,
45,
-25,
8,
4,
7,
27,
-15,
23,
-54,
-51,
6,
31,
38,
-9,
26,
-9,
30,
-27,
11,
-23,
-9,
-41,
10,
7,
38,
50,
-25,
-4,
-22,
-22,
-11,
0,
-85,
-32,
56,
-62,
0,
-5,
49,
34,
27,
-22,
-29,
-18,
-2,
17,
1,
45,
4,
-4,
-60,
51,
-7,
5,
0,
-19,
-67,
-9,
-30,
-23,
30,
-20,
21,
-19,
11,
66,
23,
9,
32,
74,
-66,
-4,
-4,
-6,
38,
-52,
37,
-54,
-16,
35,
-36,
27,
-5,
12,
39,
29,
42,
-49,
-44,
26,
24,
-46,
14,
0,
68,
-27,
0,
0,
12,
26,
51,
36,
-10,
6,
14,
10,
0,
23,
25,
35,
-67,
15,
-6,
-24,
63,
5,
33,
4,
-7,
-8,
47,
29,
-23,
30,
-16,
-32,
43,
11,
-4,
-47,
-27,
-42,
-3,
-34,
44,
6,
-6,
38,
30,
-19,
0,
-4,
-5,
14,
5,
-108,
-23,
-2,
21,
0,
1,
11,
-37,
-20,
0,
12,
2,
21,
5,
-8,
4,
26,
33,
5,
43,
7,
25,
15,
73,
-26,
5,
-22,
4,
28,
-41,
-28,
-49,
-84,
-43,
-54,
-57,
58,
-5,
3,
2,
7,
38,
12,
36,
-22,
0,
-10,
-36,
44,
44,
41,
-42,
45,
-3,
-23,
-3,
-25,
-2,
12,
-23,
19,
70,
-91,
-13,
24,
1,
25,
9,
34,
-2,
-27,
4,
17,
-11,
-44,
-8,
-18,
-24,
-24,
-8,
6,
30,
36,
-3,
-63,
48,
55,
75,
17,
39,
-45,
-14,
24,
-19,
65,
-18,
-6,
0,
-21,
7,
61,
-66,
12,
-21,
26,
-95,
-59,
28,
15,
-10,
55,
51,
4,
16,
-26,
-3,
-9,
-29,
42,
7,
27,
47,
24,
39,
15,
20,
-51,
-61,
-43,
-11,
14,
-37,
10,
6,
-23,
3,
13,
42,
-69,
-46,
-25,
41,
26,
0,
-30,
-25,
-15,
-14,
-40,
9,
25,
21,
28,
53,
4,
-42,
-34,
-10,
2,
-62,
-64,
18,
3,
39,
-33,
-1,
60,
-56,
16,
-4,
-13,
-38,
27,
-34,
-6,
0,
-71,
0,
-49,
2,
30,
-53,
33,
5,
-43,
36,
67,
-35,
28,
-25,
-19,
11,
-29,
25,
4,
15,
43,
-10,
-30,
-24,
15,
-77,
-16,
-15,
-62,
40,
0,
-2,
13,
-12,
11,
52,
-35,
-30,
-47,
-23,
-5,
21,
-51,
38,
-46,
-51,
0,
5,
-19,
-49,
13,
70,
-32,
8,
7,
26,
-35,
2,
-39,
-1,
-57,
-40,
-52,
-31,
-3,
-2,
20,
-5,
-34,
-2,
-1,
-5,
30,
6,
-23,
69,
-43,
14,
-12,
9,
10,
4,
-14,
13,
14,
77,
-18,
-4,
-15,
34,
11,
-21,
-1,
-24,
-41,
-26,
-53,
14,
4,
76,
49,
2,
26,
22,
6,
26,
-3,
36,
-6,
26,
40,
55,
49,
79,
-82,
-2,
33,
-12,
-17,
-4,
2,
56,
13,
-48,
-45,
20,
33,
4,
60,
8,
54,
-10,
-1,
-8,
-73,
-13,
59,
12,
27,
27,
-19,
-8,
-32,
-9,
20,
4,
-5,
3,
46,
-13,
-64,
-20,
-53,
29,
0,
-53,
5,
-8,
-6,
18,
31,
31,
-54,
-26,
31,
-10,
-18,
82,
29,
-43,
-39,
7,
14,
-5,
40,
7,
7,
-48,
-29,
26,
15,
-4,
51,
14,
21,
5,
-18,
30,
5,
-13,
-10,
44,
-57,
19,
31,
40,
59,
41,
35,
15,
14,
-19,
38,
-54,
-76,
26,
-32,
-6,
-12,
62,
7,
32,
8,
-28,
-21,
-5,
-45,
-11,
10,
-49,
-35,
-34,
21,
-33,
50,
54,
-8,
-30,
72,
-44,
39,
-30,
-18,
74,
14,
4,
6,
13,
-16,
-25,
15,
64,
49,
-19,
20,
16,
-41,
18,
15,
34,
12,
-14,
-57,
31,
-19,
-15,
24,
33,
-9,
11,
41,
-33,
-29,
57,
-57,
-54,
95,
42,
10,
23,
23,
-33,
-19,
0,
-14,
33,
7,
46,
16,
-10,
-3,
6,
40,
13,
-12,
8,
30,
23,
40,
27,
-2,
2,
9,
8,
10,
0,
-18,
-17,
-30,
-31,
37,
-19,
26,
31,
79,
11,
40,
25,
45,
-28,
3,
44,
9,
28,
4,
12,
-34,
2,
45,
-30,
83,
-6,
4,
-5,
32,
5,
-26,
-53,
23,
-11,
19,
-41,
12,
-6,
-12,
36,
55,
-31,
2,
58,
14,
-6,
-2,
39,
-38,
15,
-21,
29
] |
Per Curiam.
This is an original proceeding by John Kniess, an inmate of the State Prison there serving a prison sentence after having been chárged and convicted of the crime of robbery.
After his commitment to the State Prison the relator petitioned the respondent district court of Yellowstone County for a writ of error coram nobis, which petition was denied and the proceedings dismissed. Relator here claims that in denying his petition for the writ and in dismissing the proceeding the district court committed error, but the petition and record filed in this court fails to show such error and accordingly this proceeding is ordered dismissed.
|
[
31,
-9,
13,
3,
4,
-48,
0,
-36,
-48,
69,
11,
-19,
5,
-11,
-38,
24,
-22,
24,
9,
-11,
41,
-14,
-28,
67,
-10,
-16,
-7,
19,
0,
8,
24,
-16,
8,
-19,
42,
7,
28,
15,
-9,
14,
0,
-1,
5,
-19,
-1,
3,
-36,
46,
31,
40,
13,
-33,
-17,
-41,
-6,
21,
47,
-69,
-43,
-34,
-13,
10,
21,
-8,
26,
-8,
24,
-40,
16,
13,
16,
7,
-2,
-44,
26,
4,
-20,
-37,
-14,
24,
28,
31,
31,
59,
24,
0,
-7,
-33,
10,
1,
34,
18,
-21,
-10,
0,
-3,
-25,
27,
-13,
-25,
-50,
13,
-21,
23,
4,
-76,
-46,
-15,
13,
40,
15,
24,
28,
0,
-19,
-34,
-42,
-26,
44,
-22,
8,
16,
6,
44,
3,
-10,
-30,
61,
26,
-9,
29,
-24,
11,
31,
-55,
5,
-3,
6,
-7,
-10,
-32,
-44,
24,
26,
-19,
15,
15,
31,
5,
-9,
-53,
-1,
14,
66,
11,
67,
0,
-26,
-44,
12,
34,
5,
-35,
-30,
34,
3,
-21,
17,
17,
-107,
21,
20,
-38,
13,
8,
0,
-38,
1,
63,
3,
68,
53,
73,
-11,
-5,
-12,
-10,
-43,
-36,
-13,
-40,
81,
9,
-15,
40,
15,
4,
-7,
40,
7,
-41,
-8,
9,
35,
24,
7,
-1,
-52,
25,
8,
-35,
-49,
19,
-3,
-16,
-18,
3,
-13,
-6,
31,
-28,
5,
16,
8,
20,
-18,
49,
-12,
-47,
-8,
-6,
-78,
11,
-42,
-5,
-13,
87,
11,
-15,
47,
-53,
13,
10,
14,
39,
-23,
-3,
22,
-7,
10,
-15,
8,
-44,
12,
-25,
-57,
36,
14,
-52,
-21,
-12,
-36,
37,
-9,
-94,
3,
-27,
12,
-7,
-6,
-29,
48,
12,
17,
40,
-1,
34,
21,
10,
29,
20,
0,
16,
0,
8,
-13,
-30,
-25,
-20,
-20,
-10,
9,
26,
-20,
30,
-18,
-17,
-7,
0,
-42,
-41,
-38,
-19,
-36,
-32,
-34,
52,
3,
20,
-50,
33,
41,
0,
12,
-17,
6,
-12,
4,
-2,
-72,
-14,
-7,
-17,
-39,
21,
26,
-33,
19,
16,
0,
20,
-20,
-3,
5,
0,
29,
23,
-35,
-45,
-18,
5,
-12,
-39,
14,
-81,
-8,
18,
62,
-19,
-21,
-16,
-14,
42,
-5,
-7,
15,
-19,
-42,
-13,
33,
23,
-1,
40,
-15,
21,
-32,
-25,
0,
59,
1,
-11,
-10,
3,
-30,
14,
-4,
30,
19,
0,
-46,
-22,
-31,
12,
29,
-38,
68,
6,
-41,
-30,
-25,
-20,
-19,
-55,
-56,
-36,
4,
-20,
-9,
-12,
0,
-5,
10,
60,
43,
-8,
-43,
-34,
40,
19,
3,
41,
10,
10,
26,
25,
-36,
4,
44,
37,
-32,
62,
-14,
14,
-28,
20,
6,
-35,
6,
12,
-19,
68,
32,
-12,
64,
62,
-11,
-31,
-3,
65,
8,
6,
-25,
6,
-12,
-12,
-22,
-28,
-25,
12,
19,
-8,
7,
-63,
-66,
-7,
62,
57,
2,
0,
-8,
-31,
18,
-41,
-19,
17,
13,
-6,
-71,
12,
50,
-26,
17,
-23,
2,
-29,
-23,
14,
-23,
24,
10,
9,
2,
7,
-24,
-9,
-12,
36,
3,
-35,
32,
-33,
18,
-12,
-14,
3,
12,
-66,
28,
-1,
-5,
-16,
32,
-37,
21,
36,
34,
-10,
-3,
-8,
44,
-29,
38,
80,
-24,
-1,
52,
65,
-55,
10,
17,
-2,
42,
-16,
-40,
-14,
11,
-2,
-5,
-47,
24,
-37,
-65,
-40,
0,
9,
-46,
24,
6,
-18,
-11,
32,
-27,
30,
8,
43,
44,
-30,
39,
-3,
-6,
20,
49,
16,
29,
-17,
-33,
13,
-28,
-5,
-20,
40,
-28,
-84,
-33,
-37,
57,
-8,
33,
-29,
-32,
5,
7,
3,
-5,
13,
-1,
-33,
-25,
41,
12,
46,
54,
12,
-57,
-15,
-14,
12,
10,
3,
8,
-114,
-24,
27,
-35,
-6,
12,
-48,
-26,
42,
2,
-26,
16,
39,
55,
25,
0,
37,
-28,
9,
11,
25,
35,
-40,
22,
-32,
17,
-5,
-40,
-2,
18,
24,
-23,
13,
29,
-34,
-22,
-52,
-29,
-24,
21,
-9,
-26,
6,
-56,
34,
0,
-37,
57,
-1,
-1,
49,
13,
-10,
-25,
-26,
-17,
33,
27,
72,
31,
36,
50,
-3,
-29,
31,
13,
-23,
-18,
48,
16,
-48,
28,
-85,
28,
-6,
-7,
15,
-26,
-29,
47,
14,
-30,
-21,
-39,
-15,
-12,
-9,
-32,
17,
-57,
32,
1,
28,
-31,
35,
-80,
28,
26,
-2,
33,
-20,
37,
3,
23,
18,
-29,
-32,
11,
-57,
3,
21,
-24,
22,
38,
1,
-34,
10,
-67,
-55,
-28,
-29,
-2,
15,
10,
4,
-36,
-19,
13,
-10,
-26,
-8,
-56,
-14,
40,
18,
-32,
8,
-56,
28,
-6,
-32,
37,
-2,
12,
-46,
12,
-27,
-24,
-1,
-33,
14,
-5,
-33,
3,
-26,
-29,
54,
-2,
-9,
17,
39,
13,
-76,
27,
-10,
-5,
16,
-89,
-6,
47,
19,
58,
-50,
12,
-56,
34,
-33,
-49,
36,
24,
-12,
-2,
29,
-11,
2,
34,
-24,
-8,
42,
17,
-1,
9,
-16,
39,
12,
5,
-24,
0,
-64,
-24,
26,
3,
19,
66,
-19,
-30,
38,
56,
-16,
-7,
46,
-4,
0,
20,
38,
-7,
-23,
34,
-56,
11,
-21,
37,
-41,
23,
0,
-7,
18,
-21,
19,
-97,
20,
-16,
32,
27,
12,
14,
-6,
-41,
-1,
45,
11,
-18,
60,
15,
20,
-20,
-6,
-8,
-36,
13,
-5,
15,
21,
3,
41,
14,
31,
-67,
26,
28,
45,
-14,
-14,
30,
-38,
34,
25,
3,
1,
14,
15,
-23,
25,
-48,
-24,
-36,
10,
-23,
-56,
7,
17,
-11,
36,
53,
24,
1,
45,
8,
40,
-19,
-17,
10,
47,
27,
18,
-65,
-15,
-13,
22,
9,
-38,
9,
-44,
5,
27,
11,
12,
-2,
-19,
19,
53,
42,
-51,
1,
14,
-42,
5,
17,
61,
11,
-44,
-2,
-8,
-1,
3,
-42,
-30,
69,
-23,
-4,
-50,
39,
57,
14,
29,
-6,
13,
34,
-30,
10,
2,
56,
-45,
-36,
-60,
18,
27,
5,
3,
9,
-13,
1,
13,
8,
-10,
35,
12,
-22,
-14,
4,
-31,
-3,
-15,
-2,
-41,
17,
-29,
0,
51,
-13,
-22,
8,
-60,
46,
-60,
46,
72,
-5,
17,
6,
-22,
-25,
-1,
5,
0,
45,
-33,
24,
3,
65,
10,
-64,
-31,
-23,
-45,
-5,
-23,
36,
-28,
1,
43,
52,
14,
-6,
59,
53,
-13,
-37,
-50,
-10,
4,
-24,
-7,
-4,
7,
32,
26,
-9,
-37,
-10,
41,
-57,
51,
-36,
14,
13,
-39,
48,
3,
41,
-39,
-6,
41,
14
] |
MR. CHIEF JUSTICE ADAIR:
The question presented by this appeal is whether it was reversible error for the trial court to deny defendant’s motion to modify a divorce decree so as to transfer to her the permanent custody of the minor child of the parties.
In a decree entered July 7, 1949, in an action for divorce brought by the plaintiff, Ramon Barham, against his wife, the defendant, Darlene Barham, the district court of Cascade County granted plaintiff an absolute divorce and awarded to him the custody of Ravonda Jean, the infant daughter of the parties born March 21, 1948.
March 29, 1951, by an order that day entered, said district court denied defendant’s written motion made six days before seeking an order modifying the decree so as to transfer to defendant the custody of Ravonda Jean. At the time of the making and denial of her motion, defendant was unmarried and steadily employed.
No appeal was taken from either the decree or the order denying defendant’s above motion for modification.
On April 19, 1952, the defendant Darlene Barham and one Harold L. Fravel intermarried at Helena, Montana.
On July 3, 1952, the defendaut then Darlene Fravel filed a second written motion seeking an order modifying the decree so as to transfer to her the permanent custody of Ravonda Jean. The motion states that it will be based on the minutes of the court, the docket, all papers, files and documents in the action and upon an affidavit of the defendant made and filed in the cause on July 3, 1952.
Upon reading such affidavit the district court issued and caused to be served upon the plaintiff, Ramon Barham, an order requiring him to show cause before the court on a day certain why defendant should not be granted an order awarding to her the permanent custody of Ravonda Jean.
On July 17, 1952, being the return day fixed in said show cause order, a hearing thereon was had before the district court, with the Honorable J. W. Speer, judge presiding, at which the plaintiff was present in person and by his counsel and the defendant was likewise present in person and by her counsel.
At such hearing the defendant and her present husband, Harold L. Fravel, were sworn and testified as witnesses for the defendant and defendant then rested her case, whereupon plaintiff’s counsel moved for the dismissal of defendant’s motion to modify the decree on the grounds that defendant’s proof fails to show and “there is not a particle of evidence here to show why that decree should be modified’’ and because as far as the record here is concerned the child is being well taken care of under a certain written agreement for a property settlement stipulating as to the custody of the child which agreement the defendant, in her above affidavit, deposes that she made and executed after having been served with summons and a copy of the complaint in the divorce action and before the entry of the decree.
The record shows that following the oral arguments of counsel for the respective parties on plaintiff’s motion for an order denying and dismissing defendant’s motion to modify the decree, the following proceedings were had and done in open court, to-wit: “Court (after argument of counsel) : Well, there is a rather peculiar condition here. Ordinarily, the Court is favorable to giving the mother a child, but here is a case where the mother herself has signed a contract giving the permanent custody to the father. Now, while there is a change in the mother’s condition, there isn’t anything in the evidence today to show that the condition in the mother had anything to do with the granting or giving of the contract, in the first instance. There is nothing to show the child is not being eared for. There isn’t any question the mother would like the child, perhaps, but so would the father. Another thing, there hasn’t been anything to show the mother has taken any great interest in the child herself. The evidence shows she hasn’t visited it since last Fall. There is another thing that is going to come up in this Court. The present husband is now a resident of California and lie certainly won’t liave the right to take the child out of the state without some particular showing, so it would look to me they are running into considerable difficulties. I don’t think there is anything here, any evidence, to justify a modification of the decree, and it will be denied and the motion dismissed. ’ ’ Compare State ex rel. Graveley v. District Court, 119 Mont. 276, 174 Pac. (2d) 565.
This is an appeal by the defendant from the order denying her motion to modify the decree.
As was said by this court in In re Thompson, 77 Mont. 466, 475, 251 Pac. 163, 166: “The duty of deciding the controversy over the rights to the custody of this child was a delicate one, lodged with the district judge who heard the matter, and his decision ought not to be disturbed except upon a clear showing of an abuse of discretion. [Citing ease.]
“The rule which obtains in most of the courts of this country is that, in awarding the custody of a minor, the welfare of the child is to be regarded more than the technical rights of the parents. This rule has been expressly adopted by legislative enactment in this state by section 5878, Revised Codes of 1921 [now R. C. M. 1947, sec. 91-4515], which declares: ‘In awarding the custody of a minor, or in appointing a general guardian, the court or officer is to be guided by the following considerations: (1) By what appears to be for the best interests of the child in respect to its temporal and its mental and moral welfare. * * * ’ ”
In McDonald v. McDonald, 124 Mont. 26, 30, 218 Pac. (2d) 929, 931, 15 A. L. R. (2d) 1260, 1264, it is said: “This court is committed to the view that the welfare of the child is the paramount consideration in awarding its custody and that this must of necessity be left lai’gely in the discretion of the trial judge with whose discretion we will not interfere except on a showing of manifest abuse of that discretion. Damm v. Damm, 82 Mont. 239, 266 Pac. 410; Boles v. Boles, 60 Mont. 411, 199 Pac. 912; Jewett v. Jewett, 73 Mont. 591, 237 Pac. 702. And see, Talbot v. Talbot, 120 Mont. 167, 181 Pac. (2d) 148 and Benson v. Benson, 121 Mont. 439, 193 Pac. (2d) 827.” Also see Campbell v. Campbell, 126 Mont. 118, 245 Pac. (2d) 847.
The record now before the court contains but twenty-one type-written pages. It does not contain the decree, the plaintiff’s complaint or any pleading in the action other than defendant ’s second motion to modify the decree so that the court is not informed as to allegations of the complaint or the grounds on which the divorce was granted or the facts or circumstances which prompted the defendant to agree that the plaintiff should be awarded the care, custody and control of the infant daughter who was then but fourteen and one-half months old. Likewise the record fails to show the facts, circumstances and conditions that caused the learned trial judge to award the infant to the plaintiff father rather than to the defendant mother, but we must indulge the presumption that the trial judge knew and observed the rules prescribed by the legislature for awarding the custody of minors, R. C. M. 1947, sec. 91-4515, and that valid and cogent reasons were shown as to why the best interests of this infant in respect to its temporal and its mental and moral welfare would be and is best served by placing her in the custody of the plaintiff father rather than with the defendant mother.
Only the affidavit of the defendant on which the show cause order of July 3, 1952, issued and the testimony of the defendant and her present husband Harold L. Fravel were before the trial judge when he denied defendant’s most recent motion to modify the decree.
We have carefully considered in its entirety the evidence appearing in defendant’s transcript on appeal herein and cannot say that the trial judge in any wise or manner abused the discretion reposed in him in making the order denying the motion to modify the decree. On the record presented, this court is not justified in disturbing or interfering with the trial court’s order and it is affirmed.
ASSOCIATE JUSTICES BOTTOMLY, FREEBOURN and ANDERSON, concur.
|
[
-11,
21,
-38,
25,
32,
-35,
-44,
-2,
-20,
48,
7,
25,
1,
-10,
-8,
31,
-4,
11,
31,
-28,
-68,
-3,
-60,
30,
58,
12,
-19,
-32,
-29,
11,
-4,
7,
-42,
40,
29,
28,
0,
-10,
46,
36,
41,
-18,
43,
11,
-79,
10,
-15,
39,
-79,
-31,
-22,
-52,
17,
30,
-30,
60,
14,
-29,
-25,
31,
-46,
42,
5,
42,
6,
34,
37,
-2,
-46,
-18,
41,
-45,
10,
-18,
-16,
-33,
-15,
-4,
-31,
50,
-22,
26,
0,
-51,
-6,
3,
32,
87,
-6,
82,
-2,
48,
-13,
-13,
-28,
-1,
-17,
-29,
35,
9,
-28,
-16,
50,
21,
6,
24,
-9,
40,
23,
0,
43,
-30,
-35,
0,
45,
-11,
-1,
-23,
5,
-101,
48,
29,
57,
22,
38,
-25,
-42,
35,
42,
7,
-49,
28,
-6,
13,
-17,
-28,
2,
-28,
-52,
-40,
62,
-4,
33,
-34,
21,
23,
-12,
21,
-28,
-14,
-30,
-34,
11,
44,
50,
-32,
13,
-2,
43,
-8,
25,
3,
-34,
-4,
19,
-20,
-27,
25,
-10,
-32,
29,
-15,
-32,
-31,
3,
16,
-7,
-20,
-52,
8,
12,
65,
47,
-88,
14,
-15,
16,
8,
-28,
0,
-16,
-17,
18,
18,
43,
-33,
-17,
3,
33,
48,
12,
-20,
26,
51,
-8,
-8,
-25,
-42,
10,
25,
-27,
-18,
-65,
-9,
-2,
-21,
26,
39,
-27,
67,
23,
-17,
32,
-12,
-47,
12,
7,
7,
1,
6,
9,
2,
-9,
-33,
20,
-20,
-49,
9,
-12,
-1,
31,
-27,
19,
-19,
3,
76,
0,
-32,
9,
17,
60,
-13,
-29,
-30,
49,
21,
-20,
-26,
-44,
0,
31,
4,
2,
-9,
47,
-19,
25,
-29,
42,
-11,
46,
-27,
14,
-49,
-34,
-18,
14,
3,
58,
61,
28,
-5,
-7,
23,
8,
-37,
-3,
20,
26,
43,
-26,
-15,
-4,
-31,
-8,
20,
10,
-44,
-48,
41,
-2,
-21,
-16,
4,
-27,
-28,
-12,
16,
2,
-23,
2,
-15,
-13,
33,
1,
-27,
-34,
-17,
1,
10,
17,
30,
24,
16,
-26,
45,
5,
-9,
-57,
66,
9,
32,
-23,
-24,
68,
-30,
29,
49,
10,
-26,
-9,
1,
-3,
2,
19,
-3,
19,
-7,
-9,
66,
-44,
-22,
-45,
-33,
-74,
-48,
-29,
-65,
-16,
38,
11,
2,
-50,
-68,
-27,
39,
37,
54,
6,
52,
-28,
25,
14,
-28,
47,
73,
18,
15,
11,
-60,
-43,
24,
-39,
-23,
32,
-12,
21,
-40,
45,
-20,
-13,
20,
50,
-18,
16,
12,
53,
-13,
-7,
4,
9,
34,
-42,
-43,
1,
-36,
-45,
8,
-68,
-4,
35,
-53,
45,
38,
27,
-76,
-35,
-59,
-4,
39,
-18,
-3,
9,
-42,
7,
15,
3,
-81,
5,
3,
-53,
64,
-7,
-5,
32,
14,
10,
20,
47,
14,
-35,
57,
-10,
5,
13,
16,
21,
-13,
10,
5,
-7,
17,
13,
-23,
-30,
-58,
15,
45,
-39,
-24,
-1,
-24,
38,
-22,
33,
-56,
-14,
18,
-19,
56,
15,
13,
49,
30,
5,
87,
3,
-61,
-32,
-43,
-32,
-24,
-52,
62,
34,
46,
7,
-6,
-8,
31,
-12,
32,
13,
49,
-39,
-9,
-8,
-21,
28,
-27,
-18,
2,
17,
7,
18,
6,
-15,
-51,
12,
66,
-22,
-12,
47,
-22,
-17,
-8,
26,
-13,
43,
45,
16,
18,
19,
-66,
7,
-14,
-23,
-5,
7,
66,
32,
26,
-17,
17,
-46,
-12,
-29,
6,
-37,
11,
9,
-33,
20,
-28,
-27,
53,
-19,
-7,
-38,
-23,
34,
-11,
19,
-7,
47,
65,
-15,
25,
-65,
-44,
55,
23,
-59,
55,
41,
2,
-22,
-37,
8,
39,
16,
3,
-24,
-17,
1,
12,
3,
-21,
-50,
30,
-16,
55,
0,
-6,
6,
-45,
-15,
-3,
56,
25,
-61,
-8,
47,
-40,
-63,
11,
29,
-48,
12,
29,
-3,
62,
4,
-3,
-16,
-31,
-3,
-43,
-2,
-44,
7,
16,
-22,
21,
21,
14,
-49,
-22,
7,
4,
-12,
5,
-33,
-58,
-18,
-69,
-38,
5,
10,
-6,
4,
6,
10,
1,
-12,
-26,
-26,
5,
6,
-65,
12,
46,
20,
-10,
-21,
-15,
80,
-45,
28,
-7,
13,
13,
-35,
-26,
28,
5,
16,
5,
48,
63,
-12,
-26,
1,
16,
22,
5,
-15,
25,
24,
-4,
-24,
-15,
-13,
-9,
-17,
-14,
13,
56,
37,
-6,
6,
7,
-48,
-56,
-11,
-13,
27,
26,
-35,
57,
3,
-11,
-6,
56,
4,
6,
27,
25,
-18,
46,
-6,
-11,
4,
-27,
-44,
-12,
10,
19,
9,
-45,
-61,
39,
0,
-24,
-19,
22,
29,
-19,
-17,
-73,
-44,
35,
-32,
30,
-40,
56,
-10,
-16,
45,
9,
30,
-29,
18,
28,
2,
3,
-1,
6,
-19,
23,
-15,
-70,
-14,
-29,
-9,
35,
26,
-20,
-41,
-9,
25,
4,
-9,
60,
-53,
53,
-14,
-40,
-11,
43,
51,
43,
-6,
-7,
-39,
-12,
-13,
-22,
21,
16,
26,
-59,
0,
-23,
-51,
-26,
8,
14,
62,
-44,
21,
58,
-14,
-17,
3,
42,
37,
-27,
14,
-27,
11,
15,
-4,
-2,
30,
52,
-44,
8,
-8,
-33,
3,
9,
8,
-65,
44,
-19,
-2,
36,
-48,
8,
-3,
19,
43,
12,
-3,
-28,
5,
57,
4,
3,
41,
-49,
-22,
22,
11,
-22,
19,
-17,
-21,
12,
11,
18,
82,
-16,
1,
-60,
10,
10,
6,
-29,
-27,
14,
-12,
-26,
55,
10,
55,
14,
44,
15,
28,
-50,
25,
-6,
-29,
10,
-50,
-37,
-5,
28,
-26,
-3,
-5,
-30,
-2,
-6,
14,
-25,
-5,
-39,
-25,
-98,
-8,
64,
-15,
-18,
34,
-12,
5,
29,
16,
42,
-4,
38,
-36,
-36,
13,
34,
-50,
1,
-11,
16,
28,
-39,
-1,
14,
-84,
-21,
-85,
-21,
-18,
44,
-43,
-64,
39,
-30,
-21,
57,
57,
8,
16,
31,
-32,
-23,
17,
-33,
-33,
-30,
18,
-18,
12,
-23,
-26,
26,
-32,
14,
-25,
27,
-30,
61,
19,
-10,
0,
-52,
30,
-19,
-6,
34,
7,
-12,
-68,
11,
-31,
10,
-46,
21,
28,
-5,
-77,
-6,
-14,
-14,
12,
0,
94,
39,
12,
-9,
-5,
-11,
-35,
63,
0,
54,
-22,
-30,
41,
12,
-3,
-16,
-28,
-49,
-24,
-9,
-92,
11,
39,
-25,
59,
12,
-16,
23,
-42,
40,
11,
-91,
9,
-39,
-8,
-32,
28,
-48,
19,
10,
18,
13,
-26,
-59,
-23,
20,
-7,
9,
-5,
16,
-13,
-39,
0,
8,
8,
92,
25,
81,
-1,
12,
-18,
-24,
-16,
-22,
22,
7,
4,
-11,
13,
-41
] |
Per Curiam.
Original application by the State of Montana on the relation of the City of Forsyth, a municipal corporation, relator, against the district court of the sixteenth judicial district of the State of Montana, in and for the County of Rosebud, and the Honorable W. R. Flachsenhar, a judge presiding therein, respondents, seeking a writ of supervisory control to be directed against respondents, commanding them to vacate certain orders overruling demurrers in two certain tort actions Nos. 6116 and 6117, brought against the City of Forsyth and A. W. Devine, seeking to recover actual and exemplary damages for the alleged wilful, wrongful, wanton and malicious shooting of one Charles Kingfisher by A. W. Devine while on duty as a policeman of the said City of Forsyth and while acting in the scope of his employment in attempting to take said Kingfisher into custody.
The defendants in the district court may elect to answer the complaint or they may elect to stand on their demurrers and suffer judgment of dismissal to be entered against them, in which event they may take an appeal. On the other hand if they answer and the cause is tried, the defendants may prevail and in the event that they do not prevail they may take a timely appeal where all matters claimed to be error and prejudicial may be reviewed by this court.
In other words there is the adequate remedy of appeal available both to relator and to the other defendant in the event judgment should go against either.
Accordingly the writ is denied and this original proceeding ordered dismissed.
|
[
0,
-18,
31,
80,
8,
-77,
7,
-15,
-9,
56,
-40,
-19,
7,
-18,
-1,
1,
-18,
-7,
37,
-3,
13,
-24,
-72,
-16,
-2,
-11,
-32,
-10,
-46,
13,
-13,
-20,
-17,
21,
-5,
21,
32,
12,
67,
-8,
36,
28,
47,
-36,
9,
-15,
-21,
54,
-12,
-19,
29,
-7,
18,
13,
-34,
-55,
12,
-44,
14,
17,
-63,
7,
-9,
3,
40,
27,
-19,
16,
21,
-3,
9,
0,
-25,
18,
31,
-9,
-54,
-104,
0,
7,
-29,
18,
5,
-21,
-21,
12,
-26,
-28,
34,
20,
-8,
9,
-36,
14,
-16,
5,
-3,
-16,
-14,
-10,
23,
-29,
28,
-4,
8,
-51,
-39,
-25,
82,
36,
-12,
22,
3,
-3,
18,
18,
-14,
18,
66,
11,
19,
29,
17,
-8,
14,
-28,
-17,
46,
-7,
74,
-12,
-41,
18,
-19,
10,
13,
2,
-36,
-25,
15,
13,
-68,
36,
3,
11,
18,
40,
21,
-51,
-9,
13,
40,
53,
83,
34,
9,
0,
-22,
-6,
44,
14,
-28,
56,
-5,
32,
33,
-23,
-24,
-83,
-49,
-23,
33,
10,
47,
29,
21,
-20,
5,
-7,
-21,
15,
9,
28,
-31,
24,
5,
6,
-61,
-10,
5,
20,
-54,
-24,
-16,
6,
6,
54,
-34,
0,
-41,
19,
17,
13,
18,
-11,
0,
76,
-35,
51,
-35,
-12,
-49,
-43,
5,
43,
-7,
-21,
-18,
-23,
-19,
-30,
7,
-2,
24,
-11,
-73,
-47,
12,
14,
-19,
51,
-16,
-10,
-4,
7,
-21,
-1,
2,
19,
-10,
17,
46,
12,
-34,
11,
36,
-19,
-17,
-17,
-12,
17,
-2,
-33,
52,
11,
-36,
2,
-27,
10,
-42,
37,
-38,
18,
-17,
20,
9,
-8,
0,
2,
-3,
18,
58,
48,
9,
-22,
-52,
54,
-44,
47,
17,
-8,
-26,
-67,
-13,
20,
-25,
-2,
-29,
-28,
-48,
-25,
-14,
-8,
-2,
2,
42,
9,
-46,
35,
-35,
-23,
6,
-1,
-1,
-27,
-29,
-46,
-6,
38,
-45,
-61,
37,
-52,
-13,
-3,
-2,
17,
26,
-8,
-50,
25,
3,
-11,
-35,
-5,
-50,
0,
41,
12,
-11,
25,
-24,
-41,
18,
-39,
16,
5,
30,
33,
-24,
37,
0,
-9,
39,
-36,
38,
13,
28,
-20,
-21,
-11,
-6,
-12,
17,
-3,
30,
8,
-6,
1,
1,
36,
23,
-72,
-15,
-8,
-20,
-15,
3,
-12,
5,
-20,
-30,
34,
-63,
-7,
9,
-16,
24,
45,
35,
12,
-22,
1,
-45,
19,
3,
21,
-15,
-9,
-38,
-31,
-16,
-32,
15,
35,
-14,
16,
-17,
40,
10,
31,
2,
-2,
34,
-32,
-72,
5,
26,
-10,
21,
18,
15,
3,
19,
19,
-1,
-64,
34,
21,
-19,
62,
2,
9,
-17,
3,
0,
71,
-21,
-38,
-9,
32,
17,
-6,
22,
3,
-48,
-29,
-4,
7,
1,
-8,
-48,
-12,
-10,
-4,
-70,
-18,
26,
12,
16,
-9,
37,
-28,
-37,
-23,
31,
28,
22,
-8,
-22,
50,
1,
-25,
-9,
13,
-7,
13,
-24,
13,
-9,
-5,
-24,
-27,
45,
-41,
26,
3,
-21,
-7,
40,
-39,
14,
-13,
-17,
-40,
42,
36,
29,
61,
59,
-8,
-11,
-27,
-7,
-23,
12,
-18,
-18,
12,
-1,
-9,
15,
-10,
24,
33,
17,
-7,
6,
-43,
31,
-47,
-11,
15,
12,
-1,
63,
42,
34,
-15,
-14,
2,
25,
-5,
-21,
2,
-41,
23,
-1,
14,
-10,
-46,
8,
-41,
-13,
4,
11,
-9,
44,
-27,
-18,
-11,
-3,
33,
16,
-7,
48,
-40,
44,
17,
14,
12,
-25,
8,
-18,
16,
9,
19,
-47,
-1,
40,
56,
14,
-57,
-3,
-14,
67,
-36,
18,
-30,
23,
-2,
35,
19,
-21,
7,
13,
-12,
5,
24,
20,
32,
-11,
-22,
-31,
17,
-70,
13,
11,
-11,
28,
-57,
-45,
33,
-3,
-3,
54,
-13,
29,
12,
-8,
-52,
23,
8,
-5,
-9,
27,
-20,
-13,
47,
-4,
6,
29,
-17,
5,
-45,
0,
-7,
-7,
45,
-31,
12,
-28,
-22,
26,
-6,
-17,
-22,
-57,
10,
15,
-27,
-13,
9,
-38,
-7,
-3,
-24,
19,
20,
8,
-41,
4,
63,
-59,
-18,
-16,
30,
36,
28,
-1,
-3,
37,
14,
1,
0,
0,
30,
-12,
5,
-50,
-22,
26,
-62,
-1,
-7,
12,
49,
-9,
19,
50,
61,
-21,
1,
-27,
-14,
-3,
-30,
4,
26,
8,
8,
-3,
-30,
-15,
26,
82,
26,
4,
-14,
-13,
0,
-17,
6,
7,
6,
-4,
-14,
-7,
-50,
-23,
7,
-7,
-51,
16,
-46,
1,
-27,
-26,
-10,
-45,
-41,
-26,
-12,
-7,
10,
-51,
23,
17,
0,
-62,
-39,
-4,
3,
-17,
54,
-5,
24,
14,
5,
23,
1,
19,
9,
-6,
-4,
9,
-49,
-3,
6,
-40,
2,
-25,
51,
27,
-19,
1,
23,
-21,
-44,
19,
32,
46,
-51,
-26,
8,
-19,
-11,
7,
0,
2,
97,
-30,
12,
28,
-22,
-33,
-26,
-15,
18,
-27,
32,
23,
11,
-53,
12,
21,
-5,
-9,
23,
21,
-4,
1,
4,
-10,
-4,
1,
-31,
8,
-18,
0,
44,
0,
32,
-54,
-15,
29,
-12,
12,
7,
-3,
-27,
16,
14,
13,
-16,
3,
17,
36,
-18,
48,
1,
18,
-53,
26,
6,
-23,
-36,
1,
-23,
-42,
9,
0,
35,
24,
17,
29,
50,
-24,
-18,
59,
-18,
-6,
23,
19,
-31,
-37,
4,
-16,
-32,
-20,
2,
-15,
-2,
-1,
10,
0,
17,
39,
-12,
30,
-23,
30,
-22,
4,
21,
-22,
22,
-29,
-9,
43,
15,
12,
-31,
-36,
-6,
-11,
0,
-26,
-6,
27,
18,
5,
-7,
69,
-2,
-8,
32,
16,
22,
13,
8,
0,
-52,
-9,
-49,
46,
-54,
-41,
-1,
20,
1,
-7,
-42,
18,
26,
0,
-34,
5,
5,
-52,
-8,
49,
62,
38,
-13,
-27,
0,
-3,
19,
-4,
-9,
-30,
-18,
0,
-13,
20,
-40,
28,
70,
30,
-30,
30,
-22,
13,
-24,
41,
9,
8,
-1,
53,
-29,
-1,
58,
-18,
1,
-15,
-9,
0,
-13,
35,
-24,
-43,
30,
12,
39,
14,
20,
-47,
-7,
5,
26,
15,
40,
18,
-12,
29,
-6,
2,
10,
-35,
-14,
10,
-22,
37,
-28,
8,
-2,
-25,
6,
-43,
-6,
-28,
12,
30,
-23,
20,
-36,
25,
25,
48,
16,
20,
21,
9,
-7,
0,
-7,
-12,
-10,
-70,
39,
15,
0,
-22,
45,
24,
-33,
-22,
25,
-8,
2,
11,
-54,
-37,
39,
0,
30,
-17,
16,
5,
-6,
13,
0,
-46,
8,
9,
-3,
0,
-13,
-11,
-31,
-8,
13,
1
] |
Per Curiam.
It is ordered that the writ be and it is denied and the proceeding is dismissed.
|
[
-29,
-74,
23,
-18,
86,
-26,
6,
-15,
-1,
17,
-35,
27,
-68,
23,
-66,
98,
-18,
-39,
23,
-81,
10,
38,
35,
-6,
-12,
-3,
29,
54,
56,
10,
-22,
-46,
-43,
60,
-18,
-56,
17,
-6,
16,
3,
-7,
7,
19,
38,
-36,
-59,
-15,
44,
8,
27,
-35,
1,
-48,
-48,
-86,
-12,
16,
-35,
-3,
-7,
-20,
27,
-3,
2,
-10,
-25,
2,
-23,
1,
15,
-30,
8,
43,
9,
-13,
-31,
10,
-27,
-30,
59,
37,
42,
4,
60,
23,
29,
25,
72,
-13,
-21,
15,
-28,
-47,
-34,
-72,
9,
31,
10,
-21,
48,
23,
26,
38,
-53,
-39,
-36,
44,
11,
-55,
9,
16,
-24,
15,
-58,
13,
4,
-5,
-5,
36,
37,
7,
14,
-7,
26,
-13,
61,
-27,
25,
17,
0,
36,
20,
-17,
58,
19,
-1,
27,
71,
-4,
-79,
-7,
-50,
44,
31,
-51,
-66,
-2,
54,
-56,
-2,
12,
13,
-21,
27,
6,
66,
-20,
-49,
42,
43,
47,
-7,
2,
-27,
46,
20,
-25,
-30,
43,
7,
-12,
-60,
-6,
-36,
-26,
-10,
-32,
9,
67,
-1,
26,
26,
-9,
28,
-29,
19,
-36,
26,
-5,
-20,
-49,
37,
55,
66,
75,
-34,
40,
-34,
14,
2,
-35,
38,
-27,
-75,
-42,
-8,
10,
-43,
-3,
41,
-49,
-17,
1,
31,
28,
14,
39,
-23,
56,
39,
34,
-22,
0,
-2,
54,
-28,
23,
3,
42,
31,
8,
17,
-54,
11,
85,
-45,
52,
22,
0,
-17,
-60,
49,
15,
5,
-18,
-21,
-5,
67,
79,
-9,
18,
10,
57,
-31,
-9,
-44,
-82,
51,
-5,
-55,
-8,
60,
-27,
-69,
-49,
40,
82,
24,
75,
-33,
2,
6,
-50,
58,
79,
37,
-48,
-31,
-15,
8,
-71,
-4,
-2,
33,
-38,
-35,
13,
-44,
0,
-29,
-3,
27,
-27,
0,
4,
-5,
-32,
-5,
-49,
-41,
-62,
-48,
1,
39,
-22,
-30,
-2,
-46,
50,
-68,
-32,
61,
25,
-15,
-54,
68,
-49,
-55,
-27,
-47,
30,
-35,
-34,
-11,
-16,
22,
10,
7,
21,
43,
82,
34,
9,
-32,
-38,
67,
39,
26,
-3,
40,
-42,
17,
-99,
48,
5,
-15,
47,
-29,
22,
21,
-59,
6,
11,
-55,
48,
-63,
-44,
-43,
-20,
1,
-9,
7,
73,
25,
59,
-1,
-8,
21,
21,
-4,
-21,
-3,
19,
-36,
-49,
-10,
14,
-1,
8,
-19,
-19,
-68,
37,
39,
14,
55,
43,
41,
-4,
-32,
-32,
-24,
-52,
1,
-93,
40,
-10,
33,
-14,
71,
38,
-46,
-43,
37,
-1,
-30,
33,
22,
-29,
-8,
-54,
14,
21,
-19,
42,
21,
10,
46,
86,
8,
-18,
-34,
-27,
40,
-23,
0,
-59,
-33,
38,
28,
-2,
-7,
35,
12,
-32,
18,
11,
7,
32,
72,
27,
-11,
22,
-23,
-39,
19,
-26,
-52,
-74,
5,
-21,
-20,
-59,
-84,
0,
-3,
2,
109,
-5,
63,
-38,
-36,
-2,
-62,
-54,
57,
31,
-18,
-8,
40,
-23,
-26,
-59,
-15,
-78,
-21,
-14,
-11,
-78,
-36,
29,
32,
-29,
-89,
-62,
-2,
4,
19,
3,
-17,
-51,
2,
49,
50,
8,
-3,
-51,
-30,
-86,
12,
42,
16,
-24,
48,
37,
-1,
35,
0,
-23,
-41,
42,
-8,
66,
-7,
14,
34,
24,
19,
12,
-21,
-50,
-28,
-60,
2,
-23,
-11,
9,
-51,
18,
53,
-51,
-16,
-46,
-31,
15,
-28,
-10,
13,
6,
-7,
-36,
37,
78,
17,
59,
60,
-19,
73,
27,
7,
-28,
-10,
8,
6,
-62,
-3,
-13,
-53,
62,
-19,
9,
-56,
-74,
2,
-18,
34,
4,
14,
-17,
28,
-2,
-16,
8,
40,
45,
-56,
68,
-24,
1,
-33,
0,
-6,
-27,
-6,
7,
-7,
-19,
-60,
0,
-18,
-48,
3,
29,
-74,
37,
-1,
-45,
23,
10,
26,
-28,
6,
4,
66,
-65,
-14,
75,
37,
-38,
1,
48,
76,
-40,
19,
-1,
-12,
-27,
40,
43,
61,
32,
46,
-46,
73,
29,
-17,
-64,
-44,
5,
24,
12,
70,
15,
34,
-56,
64,
-26,
34,
-12,
-43,
-25,
54,
43,
-97,
13,
-7,
48,
-61,
69,
51,
58,
71,
-26,
-34,
56,
-32,
-18,
-56,
50,
13,
-82,
-32,
-23,
-41,
-51,
44,
-19,
19,
-20,
33,
8,
27,
18,
-82,
-12,
-21,
70,
46,
-48,
-65,
15,
24,
-9,
68,
-30,
-57,
54,
0,
-33,
39,
29,
-54,
0,
5,
-5,
-34,
-37,
18,
21,
11,
21,
-60,
0,
57,
-23,
-35,
-21,
0,
-21,
-20,
-39,
-41,
-31,
29,
35,
-59,
7,
25,
36,
-63,
31,
23,
-7,
26,
-35,
-52,
-13,
21,
38,
-9,
4,
-10,
51,
20,
-60,
-43,
-53,
-38,
-12,
-60,
-4,
-16,
17,
-60,
-11,
-39,
-21,
47,
31,
-31,
34,
-34,
-8,
41,
-18,
-11,
61,
-77,
54,
57,
0,
7,
37,
3,
-30,
66,
-19,
-13,
-21,
33,
-12,
-47,
64,
-11,
-6,
15,
-35,
-3,
81,
51,
-29,
-73,
-10,
66,
43,
-12,
2,
-22,
-19,
-41,
50,
-13,
-38,
97,
13,
-39,
-4,
-40,
20,
-32,
20,
-25,
26,
-24,
15,
42,
-69,
40,
-47,
20,
-23,
10,
-49,
13,
0,
51,
36,
-40,
-22,
-39,
-8,
7,
56,
37,
9,
-19,
-6,
-61,
-7,
53,
76,
-17,
16,
-26,
-53,
-26,
45,
-27,
-2,
-6,
-88,
3,
-23,
48,
35,
2,
-53,
44,
-1,
49,
22,
6,
63,
34,
9,
3,
8,
-49,
-21,
-49,
29,
-7,
76,
-90,
-10,
-3,
9,
5,
39,
13,
65,
-10,
39,
23,
25,
-5,
67,
-21,
20,
24,
9,
73,
-38,
-20,
21,
-3,
10,
-76,
-47,
-37,
71,
-12,
-3,
26,
83,
49,
-1,
-58,
-12,
55,
11,
-22,
33,
16,
78,
7,
-26,
13,
32,
24,
-18,
49,
-9,
-1,
57,
-45,
59,
18,
-14,
-89,
84,
49,
25,
-6,
26,
14,
3,
-6,
0,
-51,
31,
-18,
-12,
18,
-31,
-96,
0,
-1,
23,
86,
-58,
-11,
22,
-50,
9,
-19,
-47,
-13,
56,
-24,
10,
-27,
13,
-69,
-66,
-6,
30,
82,
51,
-43,
1,
-33,
-38,
23,
-49,
10,
10,
48,
-2,
17,
25,
74,
12,
-29,
-52,
-35,
-21,
-13,
-9,
62,
-9,
-59,
40,
-45,
-53,
-13,
-18,
48,
40,
-56,
-7,
47,
-56,
-60,
21,
-10,
-10,
8,
-22,
83,
-17,
6,
17,
-53,
1,
13,
22,
-31,
-21,
3,
-1,
33,
33,
32,
31,
-29,
-12,
0,
19,
-11,
-28,
-27,
22,
-7
] |
Per Curiam.
It is ordered that the writ be denied and the proceeding dis missed for the reason that it has long- been the established law of this state that a defendant in a criminal case has no right to file an affidavit disqualifying a district judge presiding in such criminal cause for imputed bias or prejudice under the provisions of subdivision 4, section 93-901, R. C. M. 1947, or any other provision of the codes. See State ex rel. Dunn v. District Court, 55 Mont. 618, 185 Pac. 774; State ex rel. Houston v. District Court, 61 Mont. 558, 202 Pac. 756.
Proceedings dismissed.
|
[
-1,
-38,
8,
25,
49,
0,
8,
-16,
-38,
57,
0,
-48,
-13,
9,
-5,
83,
34,
-19,
43,
-77,
-5,
-15,
0,
-32,
10,
-25,
-30,
2,
4,
-18,
13,
-4,
-23,
55,
25,
2,
21,
3,
18,
33,
-19,
-14,
-65,
7,
-2,
-48,
-94,
60,
-17,
-26,
-37,
-77,
-82,
-17,
-36,
17,
7,
-82,
-4,
17,
0,
12,
36,
-41,
-7,
-21,
-31,
-7,
-35,
28,
50,
-46,
-3,
-18,
18,
-69,
-15,
-39,
9,
28,
44,
21,
-32,
15,
47,
0,
-27,
18,
-5,
-14,
-17,
-20,
-70,
-10,
-51,
32,
54,
21,
-3,
18,
-48,
58,
-21,
-33,
-6,
1,
25,
50,
42,
17,
55,
-51,
-14,
10,
-12,
2,
9,
-16,
11,
-30,
26,
-9,
54,
114,
24,
50,
1,
62,
-7,
10,
19,
0,
20,
-21,
55,
34,
40,
-5,
41,
-11,
20,
-50,
42,
43,
-15,
-68,
6,
48,
-68,
39,
-1,
54,
-11,
15,
19,
23,
17,
-73,
-14,
27,
-35,
6,
-12,
-27,
34,
16,
6,
19,
13,
-76,
-21,
-40,
25,
-1,
-42,
-13,
-68,
-10,
79,
-7,
31,
28,
-26,
2,
40,
20,
-38,
-32,
-7,
0,
-29,
28,
10,
-5,
124,
-21,
12,
-37,
18,
17,
31,
23,
15,
20,
15,
31,
1,
-39,
11,
66,
-53,
-83,
44,
28,
-18,
-13,
56,
6,
29,
39,
4,
4,
8,
-3,
-41,
-14,
7,
-10,
34,
31,
22,
-36,
0,
-10,
20,
-23,
41,
-9,
2,
50,
-40,
27,
27,
-13,
31,
8,
49,
8,
15,
0,
11,
17,
10,
-30,
-10,
30,
-11,
16,
-24,
-50,
5,
50,
-39,
-9,
-31,
-32,
69,
76,
31,
-40,
-8,
-3,
1,
63,
61,
20,
-13,
0,
-13,
34,
-30,
3,
-11,
-33,
-50,
-11,
59,
-4,
60,
-21,
-11,
7,
-92,
42,
6,
23,
1,
-2,
15,
-3,
-10,
-24,
2,
-40,
-16,
-127,
28,
-74,
-19,
-13,
31,
70,
33,
48,
-64,
68,
4,
6,
-42,
-83,
-13,
-20,
-34,
-23,
-7,
18,
32,
3,
13,
30,
62,
18,
-51,
-15,
-9,
15,
0,
-45,
25,
7,
19,
-42,
-32,
60,
28,
-2,
-15,
12,
-19,
33,
-32,
-35,
27,
-45,
47,
-39,
-22,
-21,
18,
-9,
-14,
-21,
16,
-7,
13,
-9,
-9,
-13,
36,
22,
24,
-62,
-34,
-24,
-23,
13,
36,
-2,
19,
-8,
-43,
-32,
23,
2,
8,
79,
43,
-13,
48,
-18,
-2,
13,
-25,
-26,
-14,
8,
-45,
0,
15,
57,
-34,
-14,
-31,
-34,
-13,
-40,
-32,
-8,
36,
21,
0,
20,
33,
0,
0,
14,
-33,
-19,
29,
47,
-15,
-57,
-25,
-31,
-84,
27,
-48,
50,
73,
-53,
2,
15,
90,
-25,
23,
27,
14,
-9,
46,
25,
-14,
-7,
-15,
-18,
-50,
9,
-28,
28,
-44,
36,
7,
38,
-42,
-39,
-52,
9,
53,
40,
24,
29,
-75,
-11,
-30,
20,
-29,
65,
-43,
0,
-18,
49,
11,
-15,
-19,
-5,
-19,
16,
-47,
6,
21,
10,
-4,
50,
-34,
-85,
-20,
30,
8,
-62,
26,
-12,
-28,
-4,
6,
51,
23,
-15,
-22,
27,
-19,
32,
5,
46,
-24,
-26,
-15,
-8,
-3,
-26,
-23,
-1,
35,
0,
46,
-13,
-16,
-7,
-15,
10,
47,
4,
18,
-4,
-53,
-38,
-12,
-4,
-27,
-15,
-17,
15,
7,
20,
-7,
0,
19,
-2,
17,
29,
31,
32,
-2,
44,
2,
-20,
12,
32,
-52,
-18,
-35,
27,
-5,
-54,
22,
-27,
-46,
-7,
32,
-2,
28,
-52,
23,
9,
34,
60,
14,
48,
-8,
-37,
-23,
-11,
11,
-48,
-62,
-17,
45,
-11,
21,
21,
35,
-14,
33,
-13,
-9,
-32,
10,
-33,
1,
-104,
-15,
-10,
-46,
-48,
-23,
-7,
19,
-18,
-69,
26,
-18,
9,
60,
0,
-28,
39,
54,
-4,
29,
-2,
-55,
-100,
7,
38,
-3,
-7,
23,
7,
-3,
9,
9,
-13,
-3,
48,
-4,
-17,
15,
-23,
-56,
-27,
53,
-40,
48,
15,
26,
45,
-23,
20,
-57,
36,
24,
-60,
14,
31,
56,
7,
47,
-45,
26,
-61,
31,
0,
56,
48,
-20,
2,
8,
-15,
-4,
-45,
63,
-39,
-34,
0,
-35,
-11,
-12,
40,
-5,
-19,
-24,
38,
-3,
-10,
16,
-1,
-10,
33,
0,
6,
14,
-52,
19,
-34,
-27,
41,
3,
-46,
-29,
4,
-61,
-22,
24,
-9,
-20,
14,
5,
-9,
-56,
-60,
-38,
11,
17,
-24,
-5,
15,
-20,
6,
-15,
-29,
6,
21,
-88,
2,
-77,
26,
55,
-36,
-20,
-11,
-10,
-18,
-32,
-14,
24,
46,
-44,
-39,
17,
4,
22,
-6,
49,
10,
29,
75,
-14,
2,
-11,
-39,
-49,
-4,
5,
4,
12,
-13,
-19,
0,
28,
-4,
0,
-8,
21,
2,
-26,
23,
-57,
43,
50,
-40,
59,
3,
-16,
26,
28,
-8,
-60,
41,
-45,
-20,
0,
51,
-15,
-7,
39,
-30,
32,
-7,
-58,
-75,
15,
-7,
-9,
-7,
-49,
-18,
53,
18,
-27,
25,
-45,
18,
44,
3,
-34,
79,
33,
-44,
-17,
-6,
-49,
-9,
-5,
7,
34,
-36,
7,
63,
-41,
31,
-34,
18,
33,
-8,
-19,
41,
45,
27,
-22,
-19,
11,
-62,
-1,
61,
51,
11,
44,
0,
-41,
-59,
-31,
20,
-7,
-51,
47,
15,
-38,
-38,
38,
43,
30,
-24,
-5,
-12,
13,
-26,
-6,
32,
-52,
31,
12,
17,
67,
13,
4,
-3,
17,
-34,
63,
-19,
-12,
-2,
14,
21,
-18,
-49,
-6,
36,
-36,
-26,
14,
-2,
45,
-27,
63,
54,
-8,
13,
23,
78,
26,
30,
14,
8,
-7,
21,
19,
9,
-74,
-79,
2,
-69,
12,
20,
43,
16,
37,
90,
-21,
-58,
-11,
13,
-22,
23,
0,
-28,
26,
-38,
1,
2,
0,
-21,
-13,
23,
8,
-18,
78,
-63,
-34,
7,
-21,
-34,
33,
35,
46,
22,
1,
-2,
29,
35,
2,
9,
22,
-38,
-36,
4,
1,
-23,
10,
1,
10,
62,
-63,
-60,
26,
-69,
9,
16,
-115,
-21,
1,
0,
-44,
-16,
-7,
6,
3,
41,
-6,
37,
76,
29,
-15,
26,
-69,
9,
-3,
2,
14,
38,
-25,
36,
37,
8,
-51,
-11,
-38,
-7,
-43,
26,
-35,
10,
-25,
-8,
29,
-14,
1,
-22,
3,
26,
64,
-53,
33,
-1,
-24,
-34,
-54,
52,
-30,
-30,
-36,
30,
2,
43,
-3,
-31,
49,
7,
18,
-19,
-19,
45,
-1,
20,
-48,
38,
31,
30,
-50,
-59,
41,
-30,
-6,
1,
16,
-36
] |
MR. JUSTICE ANDERSON:
The defendant, William Toner, age 72, was charged with having committed a crime against nature. He was tried and found guilty by a jury. Upon the recommendations of the jury that defendant be given a severe penalty, he was sentenced to 18 years in the penitentiary. It is from this judgment and from an order denying a motion for a new trial that defendant appeals.
This court in the case of State v. Keckonen, 107 Mont. 253, 84 Pac. (2d) 341, 346, said: “Crimes against nature are naturally revolting to a normal person, and the subject is truly a loathsome one. In such cases, jurors are sometimes moved by abhorrence of the offense to convict upon slight evidence. * * * this fact alone should be enough to put a tribunal assiduously on guard against yielding to the dictates of such intense prejudice. ’ ’
The challenges made to the proceeding below are confined generally to alleged errors committed by the county attorney and by the district judge presiding. Our concern is, did the defendant have a fair and impartial trial according to the rules prescribed by the laws of this state. Difficulty was encountered by defendant’s counsel in getting the bill of exceptions settled by the district judge and this court found it necessary to appoint a referee to settle that dispute. We have before us the findings of the referee and those findings have been adopted by this court.
The defendant contends that prejudicial error was committed by the county attorney and the district judge because of the following proceedings set forth in the record: “Mr. Forsythe [the county attorney] made a statement to the jury to the effect that, while there was evidence of other acts involving the defendant and the witness Hildebrandt, the date of February 13th was charged because that was the only date on which there was corroboration by another witness, to which statement Mr. Goldman objected:
“Mr. Goldman: At this time we object to that last remark of counsel, for the reason that there was nothing in the evidence to substantiate that remark of counsel.
“The Court. Go ahead with the argument.
“Mr. Forsythe: This is the one act on which we have corroboration.
“Mr. Goldman: The objection is made to the comment of counsel that it is upon evidence which does not exist in the case.
“The Court. Go ahead.
“Mr. Forsythe, continuing his argument, made the remark, in effect, that the State had subpoenaed 27 witnesses, 14 of whom were boys, but had called only four.
“Mr. Forsythe: Why didn’t we call the rest? They were character witnesses.
“Mr. Goldman: Counsel for the defendant objects at this time to the remarks of counsel because the comment is upon evidence which is not in the case.
“The Court. Go ahead, Mr. Forsythe.
, “Mr. Forsythe: Each one of these witnesses was ready, willing and able—
“Mr. Goldman: (Interrupting) I have objected twice to that same remark.
“The Court. Go ahead.
“Mr. Forsythe: I will say that 14 of these witnesses were boys, who had been in his home many times.
“Mr. Goldman: I object to this for the reason that the comments are upon matters that do not exist in this ease.
“The Court: I take it our record shows these objections. Counsel objects without stating what he objects to.
“Mr. Goldman: I stated that the remarks made by counsel were not borne out in the case.
“The Court: You should state the remarks, and then make your objections. If you don’t do that, there is nothing for the Court to rule on.
“Mr. Goldman: Then I make the further objection, stating the remarks to which I object.
“The Court: What remarks do you object to?
“Mr. Goldman: The remarks wherein he stated that these were character witnesses, and he couldn’t bring them in. We object to that for the reason it isn’t in the case at all, and wasn’t brought in by the State.
“The Court: Now there is something for the Court to rule on — your objection to that remark that the County Attorney made. The objection is sustained. Unless you state what you object to, there is nothing for the Court to rule on. The reporter is not putting down every statement that the County Attorney makes. When you refer to certain statements, he will put them down. The last time you stated what you were objecting to, and your objection is sustained.
“Mr. Goldman: If the Court please, we wish now to make' an objection to the remarks, the reference by counsel for the State pointing out the tactics of defendant’s counsel, when the Court has already sustained the objections of defendant’s counsel.
‘ ‘ The Court: That is sustained. Go ahead.
“Mr. Goldman: We make an objection to the statement of counsel to the effect that he- has two sons of his own that he would hate to bring up with this man around.
“The Court: Overruled. It seems to be mere argument.”
It is contended that the above facts prejudiced the jury.
In the case of State v. Searle, 125 Mont. 467, 239 Pac. (2d) 995, 997, this court held it to be error where the state called witnesses and asked them why they had gone to the defendant’s place of business, after the court had ruled that such evidence was inadmissible. It is our opinion that the comments of the county attorney in the instant case regarding the fact that 14 other boys had been in defendant’s home many times would obviously have the same effect upon the jury as did the placing of the boys on the witness stand and asking them an incompetent question, which was done in the Searle case.
The court went on to say in the Searle case: “True, they [the boys] were not permitted to testify to those facts, but the reasonable inference to be drawn by the jury was that the defendant had committed like acts upon the several boys involved. ’ ’ In the instant case the only possible reason for the county attorney’s comments on the 14 other boys being character witnesses would be to have an unjustified inference drawn by the jury. In the Searle ease, supra, this court held that the defendant was deprived of the right to cross-examine because of the ruling of the district judge and therefore defendant did not have a fair trial and a new trial was ordered. The prejudicial error committed in the Searle case is present here and the motion for a new trial should have been granted.
‘ ‘ A statement by counsel in argument of facts not in evidence or a misstatement of the evidence is generally regarded as reversible error. This is true both in civil and criminal cases, especially if the statement of facts not in evidence is wilful. ’ ’ 3 Am. Jur., Appeal & Error, sec. 1073, p. 613.
An accused, no matter how guilty in point of fact he may be, is entitled to be tried in an orderly manner.
It appears from a mere reading of the evidence which is spelled out above that the judge had ample information as to what statement counsel objected. He heard the remarks made by the county attorney which were instantly objected to and the most that could have been done by defense counsel repeating the remarks would be to still further impress the jury with impi’oper statements.
It has been said many times that the concern of a court of last resort is not with the guilt or the innocence of the accused for that is the concern of the jury. The appellate court is to determine whether the defendant had a fair trial without being prejudiced by violation of the rules which have been promulgated to safeguard every person from improper and malicious prosecution.
In the case of Berger v. United States, 295 U. S. 78, 55 S. Ct. 629, 633, 79 L. Ed. 3314, the court said: “The prosecuting attorney’s argument to the jury was undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury. * * *
“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such he is in a peculiar and very different sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” We endorse the above admonition.
It is argued by the state that the case in chief was a strong one against the defendant and that a reversal should only follow when weakness of the case accentuates the probability of prejudice to the accused. Although such an argument may be compelling in some cases, in the instant case the jury not only found the defendant guilty but also recommended a severe penalty. Under such circumstances prejudice to the cause of the accused is so highly probable that we are not justified in assuming its nonexistence.
The defendant complains that prejudicial error was committed by the county attorney in cross examination of defendant’s witness Lawrence Triplett. The questions propounded to Mr. Triplett, the court’s ruling and Mr. Triplett’s answers are as follows:
‘ ‘ Cross-Examination by Mr. Forsythe:
“Q. Mr. Triplett, you testified here this morning? A. Yes, sir.
“Q. You stated you are in the county jail? A. Yes, sir.
“Q. "What are you in there for ? A. Drunk driving.
“Q. Have you ever been convicted of a felony? A. I was.
“ Q. Did you serve time in the state penitentiary for that? A. Yes, sir.
“Mr. Goldman: I object to any further questions on those lines.
£ ‘ The Court: The question of whether he served time follows the first question. Overruled.
“Q. Did you serve time in the state penitentiary? A. I did.
“Q. How many times have you been arrested?
“Mr. Goldman: We object to that on the ground it is not proper impeachment.
“Q. Do you know how many times you have been arrested?
“Mr. Goldman: Object to that for the same reason.
“The Court: Overruled.
“Q. Do you know how many times you have been arrested? A. No.
“Q. It’s so many you can’t remember? A. I wouldn’t say that.
“Q. Do you know how many times you have been in the Missoula County Jail? A. About four times.
"Q. How many times in the jail in Hamilton?
"Mr. Goldman: ¥e object to that on the ground it is not proper impeachment.
‘ ‘ The Court: It seems to have to do with the place of residence. Overruled.
"Q. Would you answer the question? If you can’t remember say so. A. I can’t remember. I have been in there a time or two.
‘1Q. The fact is you have been in jail so many times you can’t remember how often?
"Mr. Goldman: Object to that for the same reasons.
‘ ‘ The Court: Overruled.
"Q. Isn’t that right? A. I keep no diary of it.
“Q. It is so normal for you to be in jail you don’t take any special recognition of it? Isn’t that true?
"Mr. Goldman: We object to the remarks of the County Attorney.
‘ ‘ The Court: Overruled. ’ ’
E. C. M. 1947, see. 93-1901-11, provides as follows: "A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of a felony. ’ ’
The error committed by the county attorney and. compounded by the rulings of the court below appear so obvious, in view of the statute above, that comment thereon seems unnecessary. ‘ ‘ The accused in- every criminal case is entitled as a matter of right to a fair and impartial trial. It cannot be said that a defendant has had a fair and impartial trial where the prosecutor continually asks the defendant or his witnesses prejudicial and incompetent questions.” Potter v. State, 91 Okl. Cr. 186, 217 Pac. (2d) 844, 847, 20 A. L. R. 2d 1416. See also, State v. Coloff, 125 Mont. 31, 231 Pac. (2d) 343.
Defendant contends that it was error to permit the prosecuting witness Hildebrandt to testify that the defendant had committed other similar acts upon him, citing State v. Sauter, 125 Mont. 109, 232 Pac. (2d) 731; State v. Searle, 125 Mont. 467, 239 Pac. (2d) 995; and State v. Hale, Mont. 249 Pac. (2d) 495.
The case at bar is clearly distinguishable from the eases cited and under the facts in the instant case we do not find error in admitting the testimony of the prosecuting witness of other similar acts claimed to have been committed upon him. 22 C. J. S., Criminal Law, see. 691, page 1170.
An examination of the other errors assigned reveals that they are without merit. For the reasons herein stated the judgment of the district court is reversed with directions to grant the defendant a new trial.
MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICES BOTTOMLY and FREEBOURN, concur.
|
[
30,
6,
31,
15,
-13,
-49,
7,
-39,
-70,
36,
33,
-33,
-24,
-1,
-3,
-82,
-41,
-14,
28,
0,
27,
-25,
39,
-19,
-27,
-10,
-18,
37,
-13,
6,
63,
32,
1,
-25,
-26,
-28,
11,
18,
-9,
-10,
7,
-11,
5,
6,
-19,
57,
-17,
19,
-31,
10,
74,
8,
22,
17,
-21,
-32,
30,
29,
-2,
24,
3,
-51,
-1,
-57,
15,
-52,
-25,
6,
-76,
56,
-4,
-47,
21,
-6,
7,
-30,
-32,
31,
-12,
34,
-51,
7,
26,
28,
-11,
-12,
16,
-42,
23,
-9,
47,
13,
-17,
-26,
6,
-21,
29,
18,
-5,
-24,
5,
-53,
-37,
42,
-6,
-19,
-41,
26,
14,
32,
54,
21,
31,
34,
-47,
-38,
29,
6,
-1,
16,
2,
-79,
56,
3,
-8,
36,
-27,
13,
11,
-28,
-4,
26,
82,
-9,
-14,
-15,
-10,
-19,
0,
33,
0,
-23,
3,
12,
13,
-40,
7,
39,
-6,
11,
-45,
-50,
14,
23,
19,
-13,
10,
-50,
-14,
1,
41,
28,
-25,
-38,
6,
2,
-41,
-64,
-16,
-37,
-12,
4,
44,
16,
20,
-28,
-22,
-11,
47,
6,
29,
-8,
-10,
29,
-5,
31,
7,
6,
-41,
31,
-19,
51,
14,
-66,
67,
-15,
-24,
22,
50,
-42,
-18,
0,
-15,
35,
28,
-5,
-27,
18,
41,
15,
-5,
31,
26,
1,
-9,
16,
-11,
-4,
-32,
46,
-39,
-64,
3,
4,
21,
-23,
36,
50,
59,
-7,
-28,
33,
9,
16,
-18,
-21,
17,
-4,
27,
64,
-43,
-29,
32,
-25,
-20,
49,
-22,
5,
-83,
15,
-11,
-20,
13,
4,
-23,
43,
28,
-62,
-32,
-30,
-6,
-16,
31,
4,
-41,
43,
-46,
18,
-38,
-20,
18,
-22,
-14,
58,
-17,
-7,
0,
-15,
-28,
-3,
-25,
61,
78,
-35,
-22,
1,
-11,
42,
9,
-29,
3,
-1,
-39,
-14,
37,
39,
12,
0,
-4,
-1,
-3,
19,
-7,
-49,
-14,
-17,
3,
-9,
-45,
-37,
11,
-12,
-3,
39,
-7,
54,
-2,
-9,
63,
-26,
-29,
6,
-36,
-46,
42,
-1,
-26,
-38,
-25,
23,
-68,
26,
14,
47,
1,
-13,
-45,
21,
21,
22,
-10,
-24,
-8,
-2,
-20,
50,
-3,
39,
0,
-34,
4,
-7,
-5,
-36,
-9,
-18,
-37,
0,
48,
-36,
17,
52,
11,
-35,
-16,
-20,
-12,
-54,
10,
-11,
33,
-9,
-3,
-34,
41,
7,
46,
-31,
54,
1,
28,
45,
-5,
-4,
13,
38,
16,
-43,
-7,
3,
6,
45,
-19,
4,
-3,
1,
-15,
-15,
62,
-29,
-19,
-18,
28,
9,
0,
34,
-63,
40,
-19,
-14,
-6,
12,
41,
3,
32,
-25,
-18,
-23,
23,
-23,
24,
5,
90,
60,
5,
-30,
7,
7,
15,
-64,
32,
6,
-53,
38,
28,
21,
-11,
24,
36,
39,
-11,
24,
-2,
-16,
-3,
26,
-2,
63,
47,
22,
-15,
-18,
-9,
-14,
4,
39,
49,
-5,
0,
8,
-12,
12,
-35,
1,
8,
-23,
-58,
-27,
-35,
-18,
98,
0,
1,
-24,
-3,
19,
13,
27,
38,
37,
27,
-34,
4,
-11,
-23,
2,
38,
-39,
3,
-22,
-25,
-21,
-79,
0,
-17,
-13,
-19,
-7,
60,
18,
-53,
11,
-6,
19,
-34,
8,
80,
-9,
77,
38,
47,
34,
12,
22,
34,
-63,
55,
0,
21,
-6,
0,
-44,
-7,
31,
-20,
-12,
-7,
-23,
-56,
-49,
4,
-27,
-38,
-10,
73,
-8,
-35,
-60,
2,
-15,
-29,
18,
34,
14,
18,
-49,
-21,
-3,
24,
-36,
9,
-4,
-19,
-14,
-13,
-47,
-25,
-13,
-33,
-50,
24,
17,
-30,
-12,
5,
41,
-17,
2,
21,
-16,
48,
-41,
-56,
1,
9,
34,
1,
7,
20,
20,
-21,
-6,
-4,
-23,
7,
24,
-1,
-9,
-1,
21,
0,
17,
36,
-37,
-23,
-39,
-48,
-39,
46,
2,
7,
30,
28,
21,
47,
-16,
21,
-20,
20,
36,
31,
20,
-32,
25,
40,
40,
-16,
-33,
-35,
48,
10,
2,
-10,
-10,
31,
18,
-41,
-30,
-45,
25,
-30,
-30,
41,
37,
-48,
30,
48,
23,
-39,
-27,
11,
8,
-15,
-1,
20,
27,
6,
18,
34,
-45,
-6,
9,
-7,
-36,
-41,
9,
-11,
20,
-33,
3,
-12,
39,
-55,
-26,
43,
-2,
-8,
-30,
-23,
-52,
46,
-25,
-83,
-75,
-55,
-68,
-24,
0,
11,
-9,
26,
-25,
-2,
-45,
-34,
30,
-11,
31,
11,
-27,
-35,
13,
34,
49,
50,
20,
60,
-40,
-38,
-24,
-5,
10,
-27,
-2,
5,
17,
19,
-67,
9,
-34,
-20,
8,
-18,
-36,
-60,
-50,
-21,
-69,
-39,
52,
-1,
-26,
-20,
-31,
44,
-11,
22,
58,
32,
-2,
4,
3,
-20,
51,
0,
30,
-47,
-20,
-8,
-49,
25,
-50,
5,
-37,
-5,
-41,
4,
-113,
62,
-40,
54,
20,
3,
-58,
-3,
24,
52,
-39,
-70,
-22,
30,
-3,
-10,
-38,
-73,
-10,
78,
-17,
16,
33,
-42,
-6,
18,
57,
-28,
27,
-10,
-21,
8,
48,
14,
62,
-19,
-50,
9,
14,
-9,
1,
6,
6,
7,
-19,
-33,
48,
-14,
-42,
-81,
58,
40,
37,
54,
12,
0,
-6,
-65,
62,
26,
-38,
9,
44,
9,
52,
-22,
6,
0,
-12,
-12,
-47,
47,
-13,
18,
35,
42,
23,
50,
7,
-1,
-55,
13,
-15,
45,
-30,
-23,
73,
-2,
37,
-15,
47,
-50,
-9,
-3,
-29,
-10,
20,
2,
20,
9,
4,
-59,
9,
22,
-6,
-34,
-1,
-17,
8,
1,
-23,
34,
21,
15,
15,
-3,
-46,
24,
-6,
12,
-19,
-18,
-30,
26,
9,
29,
7,
15,
32,
-40,
-4,
-16,
17,
-32,
-40,
18,
9,
2,
-5,
-46,
-26,
-35,
-39,
-7,
36,
0,
-4,
-29,
-20,
-43,
12,
23,
-20,
44,
14,
42,
0,
-23,
-35,
-14,
-37,
-2,
18,
-1,
-17,
14,
5,
-1,
64,
-51,
37,
-8,
-47,
-26,
5,
32,
53,
0,
-3,
-3,
-17,
-16,
56,
-20,
-20,
30,
-53,
-9,
34,
6,
-60,
42,
-25,
-55,
-9,
-16,
-7,
20,
22,
-36,
-10,
22,
27,
9,
62,
9,
28,
-15,
54,
-17,
-46,
53,
22,
-21,
0,
-12,
52,
34,
13,
20,
16,
29,
5,
2,
-16,
41,
-16,
18,
-4,
5,
1,
3,
13,
-56,
-7,
9,
0,
16,
-2,
-20,
68,
-8,
29,
-27,
-33,
-21,
36,
30,
33,
6,
-24,
-14,
-54,
6,
59,
14,
-6,
51,
11,
20,
6,
16,
-10,
-17,
0,
25,
-15,
-5,
0,
21,
-28,
-15,
28,
-44,
47,
-13,
2
] |
MR. CHIEF JUSTICE ADAIR:
Appeals from judgments of dismissal entered in two tort actions.
On November 26, 1941, Vernon C. May and John W. Kujich suffered such serious bodily injuries in an automobile accident on the Great Falls-Belt highway in Cascade County that both died therefrom. At the time of the accident May was driving the automobile and John W. Kujich was riding as a guest therein.
On November 27, 1944, Mary Kujich was duly appointed as special administratrix of the estate of John W. Kujich, deceased, by order of the district court of Lewis and Clark County, Montana.
On December 13,1944, the defendant Robert G. Lillie was duly appointed as administrator of the estate of Vernon C. May, deceased, by order of the district court of Cascade County, Montana.
Commencement of Actions. On December 11, 1945, the instant tort actions against the defendant Robert G. Lillie, administrator of the estate of Vernon C. May, deceased, were filed in the district court of Lewis and Clark county, demanding damages arising out of the injuries to and death of John W. Kujich, alleged to have been due to the claimed gross negligence of the driver Vernon C. May. In one action, bearing district court No. 35205, Mary Kujich and John T. Kujich were plaintiffs, they being the mother and father and only heirs at law of John W. Kujich, deceased. In the other action, bearing district court No. 35207, Mary Kujich as special administratrix of the estate of John W. Kujich, deceased, was plaintiff.
Had Vernon C. May, the driver of the automobile, survived, the statute prescribes that the actions to recover damages from him for his alleged wrongful or negligent acts be commenced “Within three years” after the injuries were inflicted, R. C. M. 1947, secs. 93-2601 and 93-2605, Subds. 2 and 3, but here both May the driver and John W. Kujich the passenger riding with May died before the expiration of the three-year limit so prescribed.
It. C. M. 1947, sec. 93-2704, in part provides: “If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his representatives after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.” Emphasis supplied.
Letters of administration in the matter of the estate of Vernon C. May, the deceased driver, did not issue until December 13, 1944, and “within one year after the'issuing, ” Sec. 93-2704, supra, of such letters, to-wit, on December 11, 1945, the instant actions were commenced against the defendant Robert G-. Lillie as administrator of the estate of Vernon C. May, deceased.
Issuance of Summons. The statute expressly provides that “at any time within one year” after the complaint in a civil action is filed “the plaintiff may have summons issued.” R. C. M. 1947, sec. 93-3002. Compare R. C. M. 1947, sec. 93-4705, subd. 7. Here summons issued in each action on December 11,1945, at the time of the filing of the complaints. Thus was summons issued within the time expressly allowed therefor by section 93-3002, supra.
R. C. M. 1947, sec. 93-3004, provides that if a summons is returned without being served or if it has been lost, upon proper application therefor the clerk shall issue an alias summons “but no such alias summons shall be issued after the expiration of three years from the filing of the complaint.” Emphasis supplied.
R. C. M. 1947, sec. 93-4705, provides: “An action may be dismissed or a judgment of nonsuit entered in the following cases:
“1. By the plaintiff himself, at any time before trial, upon payment of costs; provided, a counterclaim has not been made, or affirmative relief sought by the answer of the defendant. If a provisional remedy has been allowed, the undertaking must thereupon be delivered by the clerk to the defendant, who may have his action thereon;
‘ ‘ 2. By either party upon the written consent of the other;
“3. By the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal;
“4. By the court, when, upon the trial and before the submission of the ease, the plaintiff abandons it;
“5. By the court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the jury;
‘ ‘ 6. By the court, when, after verdict or final submission, the party entitled to judgment neglects to demand and have the same entered for more than sis months;
“7. No action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within one year, and served and return made within three years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said three years. The dismissal mentioned in the first two subdivisions is made by entry in the clerk’s register.”
Service of Summons. On October 9, 1948, the defendant administrator was personally served with summons in each action and such service was made “within three years after the commencement of said action,” B. C. M. 1947, sec. 93-4705, subd. 7, and within “three years from the filing of the complaint” being the period prescribed by section 93-3004, supra, as the time limit for the issuance of an alias summons.
General Appearance Made by Defendant. On October 26, 1948, and “within said three years,” section 93-4705, subd. 7, after the commencement of the instant actions the defendant, by his attorneys, made a general appearance in each action by interposing a general demurrer to each complaint and at the same time filing in each action the appropriate and necessary-papers seeking an order changing the place of trial to Cascade County.
On November 13, 1948, and within three years after the commencement of said actions the district court of Lewis and Clark County made and entered an order granting defendant’s motions for a change of venue pursuant to which order the actions were transferred to the district court of Cascade County for trial.
For more than thirteen months after the filing of defendant’s demurrers to the complaint the actions were pending on such demurrers with no move on the part of either the defendant or the plaintiffs to have the demurrers set for hearing or determined, but in December' 1949, the plaintiffs served and filed written notices calling the demurrers for hearing for December 29, 1949, or as soon thereafter as counsel could be heard. Thereafter counsel for defendant and counsel for plaintiffs agreed that the hearing on defendant’s demurrers be postponed and continued to a day certain.
After respective counsel had so agreed to a continuance of the hearing on the demurrers and prior to the arrival of the date so agreed upon for such hearing, the defendant served and filed notices of motions to dismiss the complaint in each action “for want of prosecution, and on the grounds that plaintiffs have been guilty of gross laches and inexcusable delay and neglect in prosecuting the same and of serving summons upon said defendant. ’ ’
At the time defendant’s motions to dismiss were filed, both cases were pending upon an issue of law raised by defendant’s demurrers to the complaints and while such demurrers had been noticed for hearing, such hearing had been continued pursuant' to an agreement entered into by counsel for all parties.
As is stated in Bignold v. Carr, 24 Wash. 413, 64 Pac. 519: “At the time these motions were made the case was pending upon an issue of law raised by appellant’s demurrer to the amended complaint. It was within the power of the appellant to have noticed the demurrer for hearing, and it was as much to Ms interest to expédite the ease by noticing the demurrer for argument as it was the plaintiff’s to have the cause prosecuted to trial. In fact, the case could not be tried until the demurrer was disposed of.”
After the noticing of the demurrer for hearing and after defendant’s counsel had entered into the agreement for the continuance of such hearing, defendant may not then be heard to complain of delays to which he had acquiesced. As is said in Johnston v. Baker, 167 Cal. 260, 139 Pac. 86, 89: “Moreover, we are of the opinion that by filing their answers respondents waived any laches predicated upon the ground of failure on the part of plaintiff to prosecute the action prior to the filing of such answers, and that after filing their answers the only showing of fact which defendants were entitled to make or have considered by the court in support of the motion was his neglect in prosecuting the case after the date of such filing.” Quoting from Romero v. Snyder, 167 Cal. 216, 138 Pac. 1002.
Defendant’s motions to dismiss the actions were heard in January 1950, following which the trial court kept the motions under advisement until June 12, 1950, on which date it made and filed, in each action, an identical order sustaining each motion and dismissing the complaints. The orders read:
“Order. Defendant’s motion to dismiss plaintiff’s complaint having been submitted in open court on "Wednesday, the 11th day of January, 1950, and counsel for the respective parties having prepared and filed affidavits and briefs in support of their contentions in the matter, and the court having duly considered the affidavits, arguments and briefs of counsel, and being fully advised in the matter, and it appearing to the court that defendant, prior to the service of process in said action upon him, was and has been materially prejudiced in his defense to said action by the unnecessary and undue delay of the plaintiffs in commencing said action and in the service of process in said action upon the defendant, and by the plaintiffs commencing said action in Lewis and Clark County, Montana; and that said action cannot now be tried fairly and impartially upon the facts because of the failure of the plaintiffs, without canse or excusé, to prosecute said action:
“Now Therefore It Is Hereby Ordered That the motion of the defendant to dismiss the complaint of the plaintiffs be, and the same is hereby sustained. ’ ’
The plaintiffs here assign as error the making and entering of the above orders.
Delay in Commencement. In 1 C. J. S., Actions, see. 128, p. 1395, note 37, it is said:
“The right to maintain an action at law is generally unaffected by delay in its commencement unless the statutory period of limitations has expired, or an estoppel has arisen.
“Although it is a good defense in a proper case in equity, as a general rule laches is no defense in an action at law, as at common law and in the absence of statute an action might be commenced at any time.”
In 1 Am. Jur., Actions, sec. 63, p. 454, notes 18 and 19, it is said: “A plaintiff’s right to avail himself of a legal remedy is not impaired merely by inaction or delay in seeking that remedy, provided he-does not delay so long as to be affected by the doctrine of laches or the Statute of Limitations. ’ ’
As before stated both of these actions were filed within ‘ ‘ The periods prescribed for the commencement of actions,” R.. C. M. 1947, sec. 93-2601, of their nature, sec. 93-2605, subds. 2 and 3, under the authority granted by the express provisions of the last sentence of section 93-2704, supra. In this jurisdiction the various statutes of limitations prescribe the time within which actions must be filed and the instant actions were filed within such time limit.
Delay in Issuing or Serving Process. ‘ ‘ Process is to be issued at such time as may be directed by statute * * * and in a jurisdiction wherein the statutes place no limitation on the time of issuing a summons, it may issue at any time.” 72 C. J. S., Process, sec. 9, p. 1001, notes 22 and 26.
Again: “Where process is served within the time limited by statute it is sufficient, although not served immediately at or near the time of commencement of the action. A provision requiring issuance of summons within a year from the time of filing of the complaint does not require service within a year.” 72 C. J. S., Process, sec. 33, pp. 1039, 1040, notes 28, 29 and 30.
In this jurisdiction the issuance of process, whether it be the original summons, an alias summons or a summons for publication, is regulated by statutory provisions which constitute the primary source of authority for the procedure to be followed.
In each of the instant actions the original summons was issued on the day the actions were commenced and thereafter each original summons was personally served upon the defendant “within three years after the commencement of said action,” R. C. M. 1947, sec. 93-4705, subd. 7, and within “three years from the filing of the complaint,” R. C. M. 1947, sec. 93-3004, being the period prescribed by section 93-3004, supra, as the time limit for the issuance of an alias summons in an action. Neither action was subject to dismissal for failure to make timely service of summons:
Again, it must be kept in mind that seventeen days after summons in each ease had been personally served upon him, the defendant administrator made a general appearance in each action. Such general appearance constitutes “a waiver of the issuance or service of summons and consequently of any defects or irregularities therein.” 2 Bancroft’s Code Practice and Remedies, sec. 815, pp. 1192, 1193. See Gravelin v. Porier, 77 Mont. 260, 274, 250 Pac. 823, 826; Haggerty v. Sherburne Merc. Co., 120 Mont. 386, 394, 186 Pac. (2d) 884.
R. C. M. 1947, sec. 93-3019, in part provides: “The voluntary appearance of a defendant is equivalent to personal service of the summons and a copy of the complaint upon him. ’ ’
Venue. The instant actions sound in tort. Such, actions may be commenced in any county in the state.
While actions for torts may be tried “in the county where the tort was committed, ” R. C. M. 1947, sec. 93-2904, yet this court has held that such statute is not one limiting the jurisdiction of the courts but rather one according a privilege which may be waived. State ex rel. Haynes v. District Court, 106 Mont. 578, 585, 81 Pac. (2d) 422.
In O’Hanion v. Great Northern Ry., 76 Mont. 128, 134, 245 Pac. 518, 519, this court said: ‘ ‘ The plaintiff, within the limitations of the statutes, may select any county he chooses for the trial of his action, and to this choice the defendant must conform unless he seasonably moves for a change of place of trial. * * * A defendant may waive his right to the privilege of the change by omitting to demand the right or by failing to observe the statutory requirements. [Citing cases.] As this action sounds in tort, it is triable properly in the county where the tort was committed. [Citing cases.] Lewis and Clark is not that county, but nevertheless the action may be tried there unless the defendant has availed itself of its statutory right to have the venue changed to the proper county. ’ ’
The defendant applied for and was granted a change of venue to Cascade County where he claims the alleged tort was committed. The law accords to defendant the right to have the actions so transferred for trial but it does not entitle him to have the complaints dismissed because the actions were originally filed in a county other than Cascade.
In support of his motions for dismissal the defendant filed an affidavit wherein are stated conclusions rather than specific facts on which the defendant relies to support his claim that he has been prejudiced by unnecessary and undue delay on the part of plaintiffs in the commencement of the actions, — in the service of process upon defendant and by the commencement of the actions in Lewis and Clark County rather than in Cascade County.
Defendant’s affidavit states “that certain witnesses whose testimony is material * * * have died and others have left the State of Montana and their whereabouts are unknown to the defendant and that still others have disappeared and cannot be found.” It is not stated who these witnesses are nor is there any intimation as to what their testimony would be.
In opposition to the foregoing affidavit the plaintiffs filed counter affidavits wherein they deposed that following' the accident a criminal' action was instituted and tried in Cascade County, charging one Cyril Konesky, a driver of one of the three automobiles involved in the accident, with manslaughter on account of the collision which gave rise to the instant actions; that at the Konesky trial all the persons having knowledge of the facts and circumstances surrounding the accident were called as witnesses and that at said trial the jury failed to agree; that one Paliga, a driver of one of the three cars involved in the collision and a material witness, left the state in the year 1942, but that at the time of the filing of defendant’s motion to dismiss, Paliga had returned and was and now is available; that all other witnesses to the accident are now available except one who died after giving testimony at the Konesky trial and that the testimony of the deceased witness was preserved in such criminal action arising out of the same accident and that plaintiffs will stipulate that the transcript of the testimony of such deceased witness given at the Konesky trial may be received in evidence in the instant actions if defendant so desires; that a survey and plat of the scene of the accident were introduced in evidence at Konesky’s trial and that these and all other exhibits received in evidence at such trial are now available.
The exhibits in the Konesky criminal trial are incorporated by reference in the bill of exceptions in the actions now before this court.
It would appear that the facts so set forth in plaintiff’s counter affidavits, standing uncontroverted, amply refute any showing of prejudice claimed to have been suffered by the defendant by reason of not having disposed of his demurrers more expeditiously and for not having required defendant to answer the complaints so that the actions would sooner become at issue and ready for trial.
Mere lapse of time is not sufficient in itself to justify dismissal of the actions. State Savings Bank v. Albertson, 39 Mont. 414, 102 Pac. 692; Eldridge v. Idaho State Penitentiary, 54 Idaho 213, 30 Pac. (2d), 781, 784.
An application for dismissal for failure to prosecute with réasonable diligence cannot be based upon the provisions of R. C. M. 1947, sec. 93-4705; Smotherman v. Christianson, 59 Mont. 202, 195 Pac. 1106, and there is no statutory authority in this jurisdiction for the making of the orders of dismissal which were entered in the trial court.
In his brief on these appeals the defendant concedes that there is no statutory authority for the making of the orders of dismissal but contends that the right of the district court to dismiss these actions "does not depend on subdivision 7, section 93-4705, R. C. M. 1947, cited by appellants nor on any other section of the code.”
Defendant asserts that his motions to dismiss were not made pursuant to the provisions of section 93-4705, supra, but contends that the power to dismiss an action for failure to diligently prosecute the same is inherent in the courts and that the court "has a right to exercise its discretionary judicial powers so long as they are not abused and can dismiss an action for laches and want of diligent prosecution. ’ ’
As before stated, these actions were commenced and the summons in each ease was issued and served within the period and time limit fixed and allowed by express statutes, and in our opinion the trial court had no "discretion” to disregard the rules of practice and procedure so prescribed by the written law of this state and attempt to shorten the time so allowed for the performance of the acts of which the defendant complains.
Discretion. The term "discretion” denotes the absence of a hard and fast rule. Langnes v. Green, 282 U. S. 531, 544, 51 S. Ct. 243, 75 L. Ed. 520, 526.
The establishment of a clearly defined rule would be the end of discretion. Norris v. Clinkscales, 47 S. C. 488, 25 S. E. 797, 801; Goodman v. Goodman, 1951, Nev., 236 Pac. (2d) 305.
1 Bouvier’s Law Dictionary, Rawle’s 3rd Rev., p. 884, has defined "discretion” in part as: "That part of the judicial function which decides questions arising in the trial of a cause, according to the particular circumstances of each case, and as to which the judgment of the court is uncontrolled by fixed rules of law.
“ ‘Discretion when applied to a court of justice means sound discretion guided by law.’ 4 Burr. 529. Judicial discretion is a mere legal discretion — a discretion in discerning the course presented by law; and what that has discerned it is the duty of the court to follow. Osborn v. Bank, 9 Wheat. (U. S.) 738, 6. L. Ed. 204. * * * ‘A legal discretion is one that is regulated by well known and established principles of law.’ Detroit Tug & Wrecking Co. v. Circuit Judge, 75 Mich. 360, 42 N. W. 968. * * *
■ “ ‘But if the word discretion in this connection [injunction] is used in its secondary sense, and by it is meant that the chancellor has the liberty and power of acting, in finally settling property rights, at his discretion, without the restraint of the legal and equitable rules governing those rights, then I deny such power;’ Hennessy v. Carmony, 50 N. J. Eq. 616, 25 A. 374.”
.Various decisions of the courts of California construing certain sections of the California Codes are cited and relied upon by the defendant who contends that this court is bound by the construction the highest courts of California had placed upon such Code sections prior to the time certain Montana statutes here involved were adopted from the Codes of California, but we do not admit that such construction of borrowed statutes should prevail when not in harmony with the spirit and policy of our own legislation and decisions. Oleson v. Wilson, 20 Mont. 544, 548, 52 Pac. 372, 63 Am. St. Rep. 639. “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 decision does not appeal 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, see. 371; citing cases). ’ ’ Ancient Order of Hibernians v. Sparrow, 29 Mont. 132, 135, 74 Pac. 197, 198, 64 L. R. A. 128, 101 Am. St. Rep. 563. Compare: In re Irvine’s Estate, 114 Mont. 577, 589,139 Pac. (2d) 489, 147 A. L. R. 882; Grady v. City of Livingston, 115 Mont. 47, 59, 141 Pac. (2d) 346; In re Strode’s Estate, 118 Mont. 540, 546-548,167 Pac. (2d) 579; State ex rel. Westlake v. District Court, 119 Mont. 222, 234, 173 Pac. (2d) 896, 169 A. L. R. 827.
Defendant was privileged to notice his demurrers for hearing but this he did not do notwithstanding that he had the same right to press the actions for trial as had the plaintiffs. Wright v. Howe, 46 Utah 588, 150 Pac. 956, L. R. A. 1916B, 1104.
The trial court has not been given the judicial discretion to alter, change or lessen the limits allowed by the written law of this state for the commencement of actions or the service of summons nor has it been given the discretion to dismiss tort actions if not originally commenced in the county where the tort was committed.
Accordingly the trial court erred in sustaining defendant’s motions and in dismissing the complaints. The orders and judgments of dismissal are reversed and the causes are remanded to the district court for further proceedings not inconsistent with the foregoing opinion.
|
[
-29,
36,
29,
-24,
27,
-59,
25,
-48,
6,
36,
-14,
-46,
-13,
-47,
-15,
-24,
-16,
3,
32,
-15,
-10,
-3,
-62,
-21,
51,
-47,
6,
-70,
12,
4,
-9,
-35,
-38,
-16,
-1,
-5,
8,
-31,
-11,
10,
12,
-20,
-8,
25,
4,
-46,
3,
-41,
18,
-18,
1,
-30,
11,
-10,
24,
-11,
36,
4,
-7,
-28,
-42,
-31,
3,
-5,
28,
39,
44,
-41,
-2,
16,
-42,
6,
3,
6,
2,
3,
-42,
-47,
-5,
16,
-34,
28,
35,
37,
-49,
26,
-42,
-1,
20,
13,
-7,
-38,
13,
-4,
-6,
-20,
-37,
1,
-68,
1,
-29,
16,
23,
22,
-7,
3,
-45,
-27,
41,
5,
-41,
34,
17,
26,
-10,
-7,
-13,
24,
54,
30,
27,
-58,
38,
-26,
-19,
-4,
-9,
64,
33,
21,
3,
-24,
25,
-3,
-58,
-1,
-57,
-70,
-50,
-50,
20,
-31,
-17,
13,
8,
75,
26,
-31,
6,
5,
-27,
85,
15,
8,
3,
-40,
-20,
-50,
27,
35,
48,
-25,
44,
30,
52,
-19,
-31,
25,
-41,
-38,
-4,
17,
0,
-10,
44,
49,
53,
-50,
-18,
45,
-22,
36,
43,
-21,
-8,
-49,
-5,
60,
9,
28,
10,
-8,
30,
17,
-10,
-6,
34,
12,
23,
52,
46,
-28,
-1,
-32,
41,
13,
-5,
-36,
37,
15,
11,
-50,
-15,
24,
-6,
4,
17,
-23,
-16,
-73,
14,
18,
17,
-21,
-11,
-5,
5,
-1,
-3,
-4,
53,
-40,
7,
26,
29,
-11,
-10,
0,
11,
-17,
0,
3,
-28,
-7,
9,
48,
-4,
10,
-17,
-12,
-18,
20,
-18,
-2,
-8,
-11,
17,
4,
-43,
-36,
35,
36,
-13,
56,
-14,
45,
5,
-25,
-17,
-62,
37,
13,
33,
0,
-38,
-63,
22,
0,
0,
9,
26,
-52,
-76,
-57,
-14,
12,
-18,
8,
-86,
-64,
-53,
16,
-37,
0,
10,
-2,
63,
19,
0,
0,
-50,
-12,
57,
60,
28,
-17,
-80,
26,
31,
43,
-34,
-9,
7,
-58,
53,
48,
0,
-25,
9,
-6,
29,
13,
-15,
26,
-39,
47,
-32,
53,
16,
67,
-4,
8,
9,
0,
25,
-56,
26,
35,
-32,
-4,
44,
12,
14,
-2,
-13,
-3,
46,
41,
0,
-11,
-13,
-39,
30,
-25,
-22,
23,
59,
-10,
7,
81,
52,
41,
2,
32,
5,
15,
-39,
1,
-20,
25,
-29,
-3,
33,
-34,
5,
-5,
-7,
65,
-19,
88,
19,
1,
-18,
32,
-25,
30,
11,
-27,
-34,
-20,
-26,
-4,
-33,
-6,
14,
30,
-30,
-13,
-59,
-20,
-30,
100,
60,
-30,
-12,
-44,
0,
14,
21,
-17,
13,
-37,
38,
-35,
95,
3,
-17,
18,
-21,
-27,
105,
5,
35,
-64,
-15,
-29,
32,
-2,
25,
-11,
50,
29,
53,
2,
32,
7,
-21,
32,
15,
16,
9,
-14,
26,
-14,
12,
-31,
21,
-13,
25,
41,
-15,
9,
68,
-10,
-7,
6,
21,
10,
0,
22,
-6,
-45,
-13,
-68,
21,
7,
6,
-34,
-2,
-4,
4,
11,
-54,
16,
31,
0,
24,
-41,
37,
-60,
-56,
-27,
-30,
-1,
23,
-7,
44,
19,
27,
-18,
11,
44,
-37,
-6,
-35,
-28,
-52,
33,
-2,
-39,
-23,
-9,
5,
9,
-20,
-9,
34,
-22,
-78,
11,
-41,
22,
58,
6,
2,
113,
68,
18,
15,
32,
-5,
51,
0,
70,
-42,
-81,
1,
-26,
11,
-62,
-11,
-50,
-30,
0,
11,
34,
6,
0,
-45,
-66,
25,
-30,
32,
4,
-23,
-31,
-37,
49,
15,
28,
18,
-8,
19,
-68,
22,
-51,
68,
-28,
15,
-8,
74,
-4,
-63,
15,
-27,
21,
5,
-31,
7,
2,
-23,
22,
36,
-63,
-15,
20,
-45,
-1,
-17,
-9,
0,
21,
-14,
-4,
-14,
-49,
0,
-8,
-50,
35,
-44,
0,
-78,
45,
28,
18,
-17,
-11,
-42,
-3,
-40,
38,
60,
21,
-2,
57,
2,
-38,
23,
-25,
26,
59,
-23,
5,
-9,
-75,
-9,
-36,
59,
-10,
1,
-33,
35,
38,
-2,
60,
-12,
11,
-30,
-3,
-5,
4,
-67,
-3,
-21,
-19,
4,
55,
-3,
3,
-15,
14,
17,
-3,
-73,
-40,
22,
-9,
15,
-11,
-35,
-22,
-51,
-45,
4,
16,
4,
-11,
12,
-17,
-27,
12,
0,
19,
-14,
29,
23,
11,
-30,
12,
78,
-7,
6,
-18,
19,
19,
-14,
19,
32,
-17,
-11,
5,
34,
14,
8,
14,
-1,
39,
17,
4,
-69,
46,
-14,
6,
-23,
29,
7,
87,
-9,
-8,
-25,
1,
-20,
98,
-16,
-8,
19,
-17,
0,
-9,
-21,
23,
14,
-100,
23,
3,
44,
-36,
-38,
-35,
-48,
-35,
-50,
-20,
10,
10,
5,
-20,
40,
40,
49,
4,
-22,
-45,
-15,
-4,
17,
-13,
23,
-81,
10,
-36,
64,
34,
-29,
29,
-23,
8,
-38,
-20,
-22,
-6,
40,
-19,
-27,
-90,
62,
36,
25,
-23,
53,
-1,
17,
41,
-45,
-11,
14,
0,
-3,
-29,
-6,
-14,
-11,
-65,
-30,
39,
0,
-36,
-9,
-18,
-22,
-58,
-25,
-27,
17,
21,
20,
-46,
-25,
56,
45,
-11,
34,
-12,
1,
-35,
-37,
-8,
23,
-23,
44,
32,
-15,
53,
57,
-46,
30,
46,
-4,
-22,
2,
21,
3,
-26,
12,
-10,
-5,
15,
-14,
-14,
25,
-44,
4,
26,
-19,
49,
-5,
-1,
-20,
43,
-23,
-69,
-12,
18,
0,
4,
52,
37,
-68,
-53,
28,
21,
-31,
37,
57,
0,
26,
-31,
30,
-1,
-25,
-39,
-11,
57,
-30,
-27,
-6,
-59,
7,
35,
2,
-107,
-17,
-8,
-35,
12,
31,
-13,
-65,
58,
28,
-20,
5,
8,
-51,
-2,
47,
-48,
45,
-24,
-7,
24,
-35,
67,
-96,
-4,
24,
-30,
15,
0,
-19,
22,
-12,
-20,
-15,
10,
-31,
-4,
0,
-4,
-25,
13,
49,
9,
-8,
-3,
-26,
34,
-15,
7,
33,
-8,
2,
1,
-10,
-10,
-48,
10,
-18,
48,
27,
-14,
-4,
3,
27,
11,
-8,
-16,
-42,
75,
-18,
23,
0,
-9,
23,
-6,
-2,
0,
-27,
-30,
5,
9,
30,
21,
49,
5,
65,
-53,
-24,
39,
43,
17,
1,
24,
32,
11,
4,
0,
25,
-16,
20,
-66,
31,
17,
20,
-60,
-15,
11,
36,
23,
-22,
-23,
43,
30,
-20,
24,
-9,
45,
-32,
6,
-14,
27,
19,
29,
12,
-29,
-42,
-26,
-24,
14,
-10,
3,
-19,
18,
-12,
44,
-22,
3,
1,
-4,
-10,
-34,
-15,
-33,
46,
23,
58,
-5,
31,
16,
-1,
31,
-1,
-24,
11,
0,
2,
-15,
-37,
-38,
-71,
40,
42,
-36
] |
MR. CHIEF JUSTICE ADAIR:
The principal question presented is whether, under the laws of Montana, a child by virtue of his adoption loses his right to inherit from his natural parent.
The Facts. Harry B. Kay took a wife and her name was Mildred Rowe Kay. And lie knew her and she conceived and bare him two sons who were named Harry Hillis Kay and Phillip Rowe Kay.
The marriage of Harry B. Kay and Mildred Rowe Kay endured for some ten years when, at the suit of the wife, the marriage was dissolved by decree entered in the district court of Dawson County, of which county the parties were then residents. The decree so entered granted Mildred Rowe Kay an absolute divorce from Harry B. Kay and awarded her the custody of the two sons so born of the marriage.
Some eighteen months after the granting of such divorce, Mildred Rowe Kay and one George A. Stoltz intermarried at Valier, Montana. Following this marriage Mildred and her two sons so born of her marriage to Harry B. Kay went to reside and make their home with Stoltz in Pondera County, Montana.
Later, on petition of George A. Stoltz, the district court of Pondera County entered an order whereby both Kay boys were legally adopted by Stoltz and, in accordance with such order, the names of the minors were changed so that Harry Hillis Kay became Hillis George Stoltz and Phillip Rowe Kay became Phillip Rowe Stoltz. Since their adoption both boys have been known by their adopted names and they have resided with and been supported by George A. Stoltz.
On June 18, 1946, Harry B. Kay, in the presence of two subscribing witnesses, signed an instrument in writing declared by him to be his last will, by the terms whereof he devised and bequeathed all his estate of every kind and nature to his brother, W. E. Kay, a bachelor, whom he nominated and designated as executor of the will without bond. No intention appears to substitute any other in the place of W. E. Kay, either as legatee, devisee, executor o:r otherwise. In fact the will fails to name, designate, mention or refer to any person, persons or class of persons other than the testator and the latter’s brother W. E. Kay.
On May 5, 1949, W. E. Kay, so named as sole legatee and devisee in the above will, died testate at Wessington Springs, in the State of South Dakota, leaving no surviving wife, lineal descendants, father or mother. W. E. Kay had lived and he died a single man.
Harry B. Kay, who never remarried, died on January 28, 1951, leaving estate, both real and personal, in Dawson County, Montana, of which county he was then a resident.
On March 6, 1951, by order entered in the district court of Dawson County, the aforesaid testamentary writing of June 18, 1946, was admitted to probate as the last will of Harry B. Kay, deceased, and the appellant J. W. Robson, a nephew of decedent, was appointed administrator with the will annexed, following which he qualified, administered the estate, filed his final account and petitioned for distribution requesting that the estate be distributed to' decedent’s surviving sisters, brother and to various nephews and nieces as surviving children of a deceased half-sister of the decedent.
To the petition for distribution the respondents Hillis George Stoltz and Phillip Rowe Stoltz filed written objections wherein they represent that they are the natural sons of said Harry B. Kay, deceased; that they are decedent’s only surviving heirs at law and that as such they are entitled to have the estate so left by their natural father distributed to them in equal shares.
The appellant J. W. Robson, administrator with the will annexed made reply to respondents’ aforesaid objections wherein he admits that respondents are the natural sons of Harry B. Kay and Mildred Rowe Kay but denies that respondents are the legal heirs of said Harry B. Kay, deceased.
Under the laws of Montana, who are the legal heirs of Harry B. Kay, deceased, to whom his estate must be distributed?
The two respondents claim to be decedent’s only legal heirs by virtue of being his natural sons bom in lawful wedlock and being-decedent’s only surviving bodily issue, hence entitled to inherit the estate in equal shares under the express provisions of the last sentence of subdivision 1, section 91-403, Revised Codes of Montana of 1947.
The appellants concede that respondents are the natural sons of decedent born in lawful wedlock but contend that by virtue of their adoption by Stoltz each respondent lost his right to inherit from his natural father Harry B. Kay and that the latter’s estate, which would have gone to respondents but for their adoption, should be distributed as follows: (1) To Pearl Landers, sister of decedent, of Burbank, California, 1/5 thereof; (2) to Grace Larson, sister of decedent, of Wessington Springs, South Dakota, 1/5 thereof; (3) to Leta Haakinson, sister of decedent, of Madison, South Dakota, .1/5 thereof; (4) to Charlie R. Kay, brother of decedent, of Spencer, South Dakota, 1/5 thereof; (5) to J. W. Robson, nephew, of Lindsay, Montana, 1/35 thereof; (6) to E. J. Robson, nephew of Madison, South Dakota, 1/35 thereof; (7) to Edward Robson, nephew, of Madison, South Dakota, 1/35 thereof; (8) to Glen Robson, nephew, of Madison, South Dakota, 1/35 thereof; (9) to Inez Gavin, niece, of Lindsay, Montana, 1/35 thereof; (10) to Bessie Ducommun, niece, of Junius, South Dakota, 1/35 thereof, and subject to probate proceedings in the matter of the estate of C. L. Robson, also known as Clarence L. Robson, deceased, now pending in the above entitled court; (11) to Harriet Robson of Glendive, Montana, 1/35 thereof for the term of her natural life and the remainder to (12) Yern Robson, of Seattle, Washington; (13) Orvin Robson of Glendive, Montana and (14) Delbert Robson of Glendive, Montana, in equal shares.
After a hearing before it, the district court of Dawson County made and entered its order and decree wherein it approved the administrator’s final account and ordered and adjudged that the entire estate of Harry B. Kay, deceased, be distributed to the respondents Hillis George Stoltz and Phillip Rowe Stoltz in equal shares, they being the surviving issue of decedent. The authority for such distribution is subdivision 1, section 91-403, Revised Codes of Montana of 1947.
From the above order and decree J. W. Robson, administrator with the will annexed, has appealed for and on behalf of himself as such administrator and in behalf of himself individually and the brothers, sisters, nieces and nephews named, in his petition for distribution.
Testamentary Disposition to W. E. Kay fails. W. E. Kay, sole legatee and devisee in the last will of his brother Harry B. Kay, having died during the lifetime of Harry B. Kay whom he predeceased by almost eighteen months and no intention appearing to substitute any other in the place of said W. E. Kay, the testamentary disposition to him fails under the provisions of R. C. M. 1947, secs. 91-227 and 91-139, infra.
R. C. M. 1947, sec. 91-227 provides: “If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails, unless an intention appears to substitute some other in his place, except as provided in section 91-139.”
R. C. M. 1947, sec. 91-139 provides: “When any estate is devised or bequeathed to any child, or other relation of the testator, and the devisee or legatee dies before the testator, leaving lineal descendants, such descendants take the estate so given by the will, in the same manner as the devisee or legatee would have done had he survived the testator. ’ ’
Testator Omitted to Provide for His Sons. In his last will, the testator, Harry B. Kay, wholly failed and omitted to make any provision whatever for either of his sons or to name, mention or refer to either or to indicate in any manner that such omissions were intentional.
Under such facts and circumstances each respondent as a child of the testator Harry B. Kay, “succeeds to the same portion of the testator’s real and personal property that he would have succeeded to if the testator had died intestate.” R. C. M. 1947, see. 91-135.
R. C. M. 1947, sec. 91-136 provides: “Children or issue of children of testator unprovided for by his will. When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child or the issue of such child, must have the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section.” Emphasis supplied.
Father Died Intestate as to His Sons. While Harry B. Kay left no surviving wife, he did leave two surviving sons. As to these sons, the father died intestate by reason of his failure and omission to name or provide for them in his will. E. C. M. 1947, secs. 91-135 and 91-136; In re Roderick’s Estate, 158 Wash. 377, 291 Pac. 325, 327, 80 A. L. R. 1398. Compare In re Benolken’s Estate, 122 Mont. 425, 205 Pac. (2d) 1141.
Distribution to Issue in Equal Shares. Having died leaving estate but,“without disposing of the estate by will, it is succeeded to and must be distributed” in the manner specifically prescribed in the last sentence of subdivision 1 of section 91-403 of the Eevised Codes of Montana of 1947 “unless otherwise expressly provided by the laws of Montana.” Section 91-403, supra.
E. C. M. 1947, see. 91-403, subd. 1, so far as is here pertinent, reads: “Succession to and distribution of estates. When any person having title to any estate not limited by marriage contract dies without disposing of the estate by will, it is succeeded to and must be distributed, unless otherwise expressly provided by the laws of Montana, subject to the payment of his debts, in the following manner: 1. * * * If the decedent leaves no surviving husband or wife, but leaves issue, the whole estate goes to such issue; and if such issue consists of more than one (1) child living * * * then the estate goes in equal shares to the children living * * Emphasis supplied.
The above statute, sec. 91-403, subd. 1, says that when the intestate leaves no surviving wife “but leaves issue, the whole estate goes to such issue # * * in equal shares. ”
The word “issue” comes from the old French issue, eissue, meaning to go out.
The verb “issue” means: “1. To go, pass, or flow out; to run out, as from any enclosed place. 2. To come forth or out; to sally forth; to emerge. 3. To proceed as progeny; to be descended.
“ ‘Of thy sons that shall issue from thee.’ 2 Kings XX, 18.” Webster’s Unabridged New International Dictionary 2nd ed.
The same authority defines the noun ‘1 issue ” as “ 1. A going, passing or flowing out; egress, exit, as, the issue of water from a pipe, of people from a house; 2. A means or place of issue; an exit, outlet, or vent. * * * 6. Progeny; a child or children; offspring. In law, sometimes, all persons descended from a common ancestor; also, any one of such persons; as to die without issue.”
“Issue” has been held to be synonymous with, or equivalent to “offspring.” Barber v. Pittsburgh, Ft. W. & C. R. Co., 166 U. S. 83, 17 S. Ct. 488, 41 L. Ed. 925.
In In Re Howlett’s Estate, 1951, 366 Pa. 293, 77 A. (2d) 390, 392, 393, the court said:
“ ‘Issue’ means issue of the body, offspring, progeny, natural children, physically born or begotten by the person named as parent. [Citing cases.] An adopted child is issue of his natural parents and not of his adopted ones. [Citing cases.] * * *
“To the layman as well as to the lawyer ‘issue’ has meant actual physical offspring as distinguished from ‘children’ which may mean natural, adopted, foster or stepchildren. * * *
“ ‘Descendants’ and ‘issue’ are synonymous. [Citing cases.] ”
“Unless otherwise expressly provided.” “Unless otherwise expressly provided by the laws of Montana, ’ ’ section 91-403, the whole estate left by Harry B. Kay, deceased, goes to the respondents in equal shares, they being decedent’s only living issue. R. C. M. 1947, sec. 91-403, subd. 1.
“The laws of Montana.” The word “law” is defined by the Codes of Montana as a solemn expression of the supreme power of the state, section 12-101, which is expressed by the Constitution and by statutes, section 12-102, which are altogether written, section 93-1001-9. Nowhere in “the laws of Montana,” as thus defined by our codes, is it “ otherwise expressly provided ’ ’ hence decedent’s estate is succeeded to and must be distributed to decedent’s issue as required by section 91-403, subd. 1, supra.
Appellants admittedly were and are unable to find any provision of Montana’s Constitution or statutes that expressly pro vides that because of their adoption by another, the bodily issue of a natural father may not inherit their father’s estate.
The general rule is as stated in 1 Am. Jur., Adoption of Children, see. 57, p. 656, viz: “From or through Natural Parents. —Consanguinity is so fundamental in Statutes of Descent and Distribution that it may only be ignored by construction when courts are forced so to do, either by the express terms of the statute or by inexorable implication. An adopted child is, in a legal sense, the child both of its natural and of its adopting parents, and is not, because of the adoption, deprived of its right of inheritance from its natural parents, unless the statute expressly so provides.”
In 2 C. J. S., Adoption of Children, sec. 63, subd. c, p. 454, notes 47-50, it is said: “In the absence of a statute to the contrary, although the child inherits from the adoptive parent, he still inherits from or through his blood relatives, or his natural parents. In view of the tendency of the courts to construe adoption statutes so as to benefit the child, as pointed out above in section 6 of this Title, and also, in view of the fact that a statute severing the relation between parent and child is in derogation of common law and should for that reason be strictly construed, it has been held that an adoption statute providing that the natural parents shall be divested of all legal rights and obligations with respect to such child should not be construed so as to deprive the child of its right to inherit from or through its natural parents. Under such a statute it cannot be assumed that the adopted child cannot inherit from its natural parent unless there is an express legislative declaration to that effect.”
In Baker v. Clowser, 158 Iowa 156, 138 N. W. 837, 839, 43 L. R. A., N. S., 1056, the court said that in examining the decisions in other states construing similar statutes regulating inheritance and adoption, “we find the weight of authority to be to this effect: That the general statutes of inheritance are modified and set aside by statutes regulating the effect of adoption only so far as there is some specific provision in the statutes for adop tion inconsistent with the application, in such cases, of the general inheritance statutes. [Citing numerous cases.] ”
Montana Adoption Statutes. R. C. M. 1947, sec. 61-134 reads: “Effect of adoption. A child, when adopted, may take the family name of the person adopting. After adoption, the two shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation. ’ ’
R. C. M. 1947, sec. 61-135 reads: “Effect on former relations of child. The parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the child so adopted, and have no right over it; provided that in cases where a parent of the child is either the husband or wife of the person adopting such child, such parent and such child shall continue to sustain towards each other the same legal relations as existed prior to such adoption. ’ ’
There is nothing in either section 61-134, supra, or section 61-135, supra, or any other section of either the Codes or Constitution of Montana that says that, upon adoption, the lawfully begotten bodily issue of a person ceases to be the heir of its natural parent.
Respondents are clearly the surviving lawful issue of the decedent and their adoption by Stoltz had no influence whatever on their statutory right, as such surviving issue, to inherit the estate of their deceased natural father.
In Glanding v. Industrial Trust Co., 1946, 29 Del. Ch. 517, 46 A. (2d) 881, 888, the court said: “An adopted child upon its birth becomes the lawful issue of its natural parents, and continues to be so after its adoption. It is not and could not be made the ‘lawful issue’ of its adopted parents by act of the legislature or by any other means. ’ ’
We therefore hold that in this jurisdiction the adoption of a child does not destroy his status as one of the issue of his natural ancestors nor does an adopted child lose his right to inherit from his natural parent.
The courts of various states having the same or similar statutes to those of Montana above cited have held that an adopted child may inherit from its natural parents. See: Wagner v. Varner, 1879, 50 Iowa 532; Humphries v. Davis, 1884, 100 Ind. 274, 50 Am. Rep. 788; Delano v. Bruerton, 1889, 148 Mass. 619, 20 N. E. 308, 2 L. R. A. 698; Patterson v. Browning, 1896, 146 Ind. 160, 44 N. E. 993; Burnes v. Burnes, C. C., 1904, 132 F. 485; Villier v. Watson's Adm’x, 1916, 168 Ky. 631, 182 S. W. 869, L. R. A. 1918A, 820; In re Klapp’s Estate, 1917, 197 Mich. 615, 164 N. W. 381, L. R. A. 1918A, 818; Dreyer v. Schrick, 1919, 105 Kan. 495, 185 Pac. 30; In re Yates’ Estate, 1921, 108 Kan. 721, 196 Pac. 1077; Roberts v. Roberts, 1924, 160 Minn. 140, 199 N. W. 581; Sledge v. Floyd, 1925, 139 Miss. 398, 104 So. 163; Sorenson v. Churchill, 1927, 51 S. D. 113, 212 N. W. 488; In re Roderick’s Estate, 1930, 158 Wash. 377, 291 Pac. 325, 326, 80 A. L. R. 1398; In re Sauer’s Estate, 1934, 216 Wis. 289, 257 N. W. 28; In re Wilson’s Estate, 1934, 95 Colo. 159, 33 Pac. (2d) 969; In re Tilliski’s Estate, 1945, 390 Ill. 273, 61 N. E. (2d) 24; In re Benner’s Estate, 1946, 109 Utah 172, 166 Pac. (2d) 257, 258; Hendrich v. Anderson, 10 Cir., 1951, 191 F. (2d) 242.
The courts of California and certain other states have reached opposite results holding that after the adoption a child is no longer the heir of its natural parents. See: In re Newman’s Estate, 1888, 75 Cal. 213, 16 Pac. 887, 7 Am. St. Rep. 146; In re Winchester’s Estate, 1903, 140 Cal. 468, 74 Pac. 10; In re Jobson’s Estate, 1912, 164 Cal. 312, 128 Pac. 938, 43 L. R. A., N. S., 1062; In re Darling’s Estate, 1916, 173 Cal. 221, 159 Pac. 606; In re Estate of Hunsicker, 1923, 65 Cal. App. 114, 223 Pac. 411; In re Estate of Mercer, 1928, 205 Cal. 506, 271 Pac. 1067; In re Estate of Moore, 1935, 7 Cal. App. (2d) 722, 47 Pac. (2d) 533, 48 Pac. (2d) 28; In re Hebert’s Estate, 1941, 42 Cal. App. (2d) 664, 109 Pac. (2d) 729; In re Hampton’s Estate, 1943, 55 Cal. App. (2d) 543, 131 Pac. (2d) 565; In re Esposito’s Estate, 1943, 57 Cal. App. (2d) 859, 135 Pac. (2d) 167.
The appellants herein cite and rely upon the above California decisions contending that the adoption statutes of this state were, adopted from California and that such statutes should receive the same interpretation here as they were given in California.
First. We have already indicated that in our view the adoption statutes of this state have nothing whatever to do with the statutory right of respondents, as the bodily issue born in lawful wedlock to decedent and his then wife, to inherit decedent’s estate under the express provisions of section 91-403, subd. 1, supra.
Second. A number of the California decisions upon which appellants rety have been carefully considered by various other high courts, — “weighed in the balances and * * * found wanting.” See: Roberts v. Roberts, 1924, 160 Minn. 140, 199 N. W. 581; Sledge v. Floyd, 1925, 139 Miss. 398, 104 So. 163; Sorenson v. Churchill, 1927, 51 S. D. 113, 212 N. W. 488; In re Roderick’s Estate, 1930, 158 Wash. 377, 291 Pac. 325, 80 A. L. R. 1398; In re Tilliski’s Estate, 1945, 390 Ill. 273, 61 N. E. (2d) 24; In re Benner’s Estate, 1946, 109 Utah 172, 166 Pac. (2d) 257, 258.
Third. This court will not blindly follow the construction given a particular statute by the court of a state from which we major may not have borrowed it when the decision does not appear to us as founded on right reasoning. Oleson v. Wilson, 20 Mont. 544, 548, 52 Pac. 372, 63 Am. St. Rep. 639; Kujich v. Lillie, 127 Mont. 125, 1953, 260 Pac. (2d) 383.
Fourth. This court is not favorably impressed with the construction of the adoption statutes in the above cited California decisions.
Fifth. In our opinion the decisions which we have cited from other jurisdictions which, under statutes identical with or similar to our governing statutes, have held that an adopted child may inherit from its natural parents are founded on much better reasoning than the decisions cited and relied upon by the appellants herein.
The trial court reached the correct result and its order and decree are affirmed.
ASSOCIATE JUSTICES BOTTOMLY, FREEBOURN, ANGSTMAN and ANDERSON, concur.
|
[
21,
-12,
21,
-16,
29,
-29,
1,
41,
-5,
-6,
-51,
-20,
-43,
33,
2,
31,
-5,
-34,
15,
-3,
8,
-13,
-37,
-25,
113,
59,
32,
30,
-46,
-1,
24,
-21,
-16,
17,
15,
28,
1,
0,
0,
30,
-25,
-17,
53,
6,
3,
50,
-20,
20,
-37,
18,
47,
-83,
76,
25,
23,
-5,
76,
26,
-51,
35,
-22,
5,
54,
23,
33,
-9,
42,
22,
2,
-56,
59,
-14,
-29,
50,
11,
-56,
12,
-40,
-20,
22,
-20,
-8,
40,
-43,
-40,
-10,
-16,
1,
-27,
80,
-12,
55,
-3,
8,
-26,
1,
2,
24,
-20,
9,
35,
-72,
15,
18,
10,
-35,
-45,
21,
64,
60,
-8,
28,
0,
46,
16,
12,
-30,
23,
3,
-7,
-20,
50,
1,
5,
21,
-46,
-88,
5,
31,
-3,
-62,
23,
27,
-31,
-40,
34,
-43,
-77,
-54,
-88,
24,
-29,
51,
-60,
-12,
-3,
6,
-33,
50,
-53,
10,
0,
18,
71,
46,
-19,
-37,
5,
34,
21,
-15,
-64,
21,
23,
9,
30,
17,
10,
-61,
14,
2,
-15,
-38,
42,
19,
92,
-12,
-15,
6,
43,
12,
31,
43,
-1,
-31,
-3,
-36,
44,
0,
18,
-12,
-23,
28,
23,
-57,
40,
-20,
-16,
-16,
-47,
40,
18,
16,
46,
-32,
45,
62,
-10,
15,
9,
34,
-12,
-9,
-7,
-50,
5,
-30,
-24,
-38,
-14,
70,
-16,
1,
26,
-44,
-14,
44,
13,
11,
-30,
1,
-3,
-11,
2,
14,
64,
-98,
-34,
-57,
17,
49,
-49,
22,
-40,
5,
16,
-19,
11,
12,
33,
-28,
18,
-36,
69,
50,
29,
5,
10,
8,
-56,
-34,
-14,
-22,
-49,
0,
36,
-2,
-34,
5,
20,
32,
-23,
54,
-25,
-70,
0,
45,
-75,
-2,
-46,
26,
31,
25,
39,
-4,
-4,
-22,
-15,
-24,
17,
10,
31,
19,
-80,
3,
-4,
3,
-15,
-8,
-33,
14,
32,
-11,
39,
-32,
-2,
-30,
-10,
19,
15,
-26,
47,
-58,
-2,
29,
10,
-28,
11,
-32,
36,
-18,
-18,
44,
11,
-21,
-41,
22,
38,
18,
62,
-1,
-5,
-11,
17,
-32,
-62,
87,
-32,
18,
-11,
-42,
-2,
54,
-5,
23,
-41,
9,
48,
-54,
-2,
-5,
13,
0,
2,
-24,
-6,
35,
-38,
6,
-21,
-25,
-19,
-11,
1,
-80,
-2,
-28,
18,
32,
-27,
41,
6,
13,
-16,
27,
98,
-25,
37,
-29,
3,
-17,
25,
-24,
18,
-11,
25,
39,
33,
22,
-28,
-19,
-80,
-8,
-17,
7,
-17,
-5,
-32,
-44,
-28,
11,
36,
-23,
44,
4,
-1,
5,
2,
11,
-43,
23,
33,
36,
-33,
75,
8,
-39,
-26,
-37,
85,
-14,
59,
19,
-44,
-41,
-33,
-13,
-24,
14,
-44,
-10,
10,
-53,
11,
77,
-65,
34,
27,
3,
0,
17,
25,
34,
47,
3,
36,
-51,
-18,
6,
-19,
37,
19,
-43,
4,
-24,
-53,
22,
24,
-54,
-25,
1,
54,
51,
-16,
8,
-32,
-2,
1,
-23,
67,
45,
-8,
-48,
12,
3,
67,
54,
-29,
-5,
-99,
1,
-7,
-43,
18,
-5,
-26,
-31,
2,
0,
-3,
52,
-22,
-46,
-7,
-26,
-69,
-7,
-56,
6,
-23,
-4,
24,
43,
-43,
28,
24,
-10,
-30,
-51,
-32,
30,
-43,
20,
-9,
-16,
20,
64,
36,
6,
31,
-18,
-2,
0,
0,
16,
-14,
10,
-35,
4,
-36,
-16,
29,
-52,
41,
-4,
-20,
37,
21,
-62,
-34,
-29,
8,
39,
0,
-49,
-6,
61,
14,
8,
-20,
19,
-53,
-52,
-63,
57,
48,
5,
35,
-34,
16,
52,
46,
-29,
-12,
-2,
34,
-72,
29,
-46,
22,
-4,
-34,
-41,
-38,
9,
46,
5,
-19,
-24,
0,
28,
-53,
9,
-25,
-55,
29,
3,
35,
-29,
-7,
13,
-72,
-67,
1,
-35,
25,
15,
21,
-48,
17,
-51,
18,
33,
-7,
27,
51,
15,
-19,
-18,
-6,
15,
16,
24,
-1,
-28,
-9,
-12,
-6,
30,
-29,
-1,
39,
-1,
6,
-13,
-4,
-55,
-1,
65,
6,
62,
33,
43,
14,
-16,
-26,
63,
-6,
25,
-11,
6,
-19,
-36,
-44,
-29,
-23,
-3,
3,
49,
-41,
-92,
-2,
-79,
72,
-40,
3,
-31,
-9,
-16,
30,
-5,
-45,
45,
45,
-16,
14,
25,
42,
10,
8,
2,
10,
-70,
45,
18,
85,
0,
44,
32,
45,
-8,
-19,
3,
3,
18,
57,
33,
-21,
-3,
36,
18,
-40,
38,
-7,
0,
26,
-58,
2,
20,
9,
13,
4,
1,
37,
-34,
1,
-22,
32,
0,
-37,
-33,
54,
-26,
-93,
-59,
-20,
43,
-25,
32,
-33,
-93,
14,
3,
-36,
85,
48,
75,
-14,
1,
-27,
31,
-21,
-31,
9,
-51,
30,
-1,
13,
39,
0,
-40,
13,
4,
32,
-60,
27,
-6,
-38,
3,
40,
25,
14,
10,
-21,
-21,
-33,
-8,
62,
-3,
-10,
21,
67,
-21,
16,
-9,
22,
-62,
-72,
-20,
-28,
14,
-5,
-94,
5,
-14,
-29,
-7,
-10,
2,
6,
14,
-26,
-25,
-8,
20,
41,
87,
33,
25,
25,
-32,
24,
28,
-8,
40,
20,
-22,
-33,
-71,
-53,
46,
-21,
-29,
-4,
65,
-49,
9,
83,
-25,
44,
-34,
-26,
17,
-54,
-19,
-45,
-1,
33,
3,
-19,
40,
-43,
60,
-17,
43,
53,
-8,
21,
-37,
-60,
-16,
14,
6,
20,
9,
-58,
39,
35,
2,
-25,
26,
-36,
-44,
-42,
26,
44,
15,
-18,
26,
-2,
-15,
-43,
-6,
67,
-17,
-39,
-23,
-62,
40,
57,
-44,
-63,
-11,
12,
65,
-49,
118,
-13,
-28,
8,
-46,
-89,
-2,
-2,
-59,
-63,
123,
-22,
-6,
9,
-29,
54,
-31,
29,
-45,
44,
3,
-66,
-26,
-45,
-40,
-20,
4,
-7,
-33,
37,
-17,
-61,
-56,
-7,
2,
-14,
-15,
2,
-32,
-45,
-17,
23,
5,
25,
55,
-25,
-22,
-41,
-3,
-22,
17,
14,
-35,
-20,
89,
-59,
-54,
46,
4,
-4,
-3,
22,
-45,
41,
0,
74,
-22,
8,
127,
22,
30,
74,
1,
-3,
15,
42,
-25,
9,
-7,
33,
13,
-62,
-50,
-29,
0,
61,
30,
85,
15,
80,
-67,
20,
-46,
-26,
1,
31,
-44,
49,
-25,
-86,
23,
28,
26,
-33,
-12,
-28,
-4,
44,
-15,
-4,
49,
15,
35,
-17,
-45,
31,
-48,
78,
-2,
-38,
-6,
-42,
-31,
-100,
49,
20,
-3,
32,
63,
27,
24,
11,
6,
-17,
-21,
-17,
-75,
-72,
-19,
-15,
-20,
11,
41,
-52,
-41,
-10,
-24,
-3,
-37,
21,
-32,
38,
32,
39,
-33,
15,
30,
7
] |
MR. CHIEF JUSTICE ADAIR:
From a final decree awarding tbe wife, Frances B. Sbuey, an absolute divorce, custody of the three minor children of the parties and $125 per month for the support of herself and said children, the husband, Bert R. Shuey, has appealed.
December 1, 1946, at Libby, Montana, the parties intermarried. Each had been previously wed. By his former marriage the husband had two daughters, namely, Edith Marie Shuey and Mrs. Jane Shuey Brown. By her former marriage the wife had a daughter, Judith, aged five years at the time her mother married Mr. Shuey.
Three children were born as issue of the December 1, 1.946, marriage, namely: Steven Leroy Shuey, Paul Allen Shuey and Evelyn May Shuey. The husband, the wife and their minor children resided and made their home upon a tract comprising 1,500 acres of land in Sanders County, Montana, owned and operated by the husband and situate approximately three miles distant from Trout Creek, Montana.
Divorce Case No. 3097. In August 1952 the wife, Frances B. Shuey, as plaintiff, filed in the district court of Sanders County, Montana, an action for divorce against her husband, Bert R. Shuey, defendant, being Cause No. 3097, charging extreme cruelty. Upon the filing of her suit the wife and her children left their Trout Creek home and took up their abode at Thompson Falls, the county seat.
Shortly thereafter the husband’s daughter, Mrs. Brown, accompanied by her husband Lee E. Brown, journeyed from their then home at Kalispell, Montana, to Thompson Falls and prevailed upon plaintiff to return to her husband’s ranch following which her divorce suit, No. 3097, was dismissed by the voluntary action of both parties.
Almost two years later, to-wit, on July 21, 1954, plaintiff Frances B. Shuey, accompanied by the couple’s three children, then aged seven years, six years and four and one-half years and also by her daughter Judith, then aged twelve years, again left their Trout Creek home and returned to Thompson Falls where plaintiff rented a one-room, unfurnished tourist cabin at $35 per month where she and her four minor children have since lived.
Divorce Case No. 3239. On the following day, July 22, 1954, the plaintiff Frances B. Shuey filed in the district court of Sanders County her instant suit for divorce, being cause No. 3239, wherein she charged extreme cruelty and sought dissolution of the marriage, custody of the children, costs, attorney’s fees and a division of their property or in lieu thereof a proper award for the support of herself and the children of the marriage.
On August 2, 1954, the defendant, through his counsel, interposed a demurrer to plaintiff’s complaint. Bight days later to-wit, on August 10, 1954, defendant’s counsel withdrew his demurrer to the complaint and on motion was granted fifteen days additional time within which to file defendant’s answer. Also on August 10th, the trial court, after first hearing the testimony of both the plaintiff and the defendant, ordered that the defendant pay to the clerk of court temporary support money in a fixed amount, — that defendant pay $50 on account of plaintiff’s attorney’s fees and that the cause be set for trial on the merits for August 24, 1954.
On August 24, 1954, the day so set for the trial, defendant’s counsel interposed a motion for a continuance at which time defendant agreed to pay on a day certain a stipulated sum as temporary support money and a further sum on account of plaintiff’s attorney fees whereupon the trial court granted defendant’s motion for a continuance and reset the cause for trial on the merits for September 14, 1954.
On September 14, 1954, a further continuance was granted and the cause reset for trial for October 11, 1954.
On October 11, 1954, counsel for the respective parties again appeared before the court and after each had announced that he was ready for trial, defendant’s counsel then interposed a motion for leave to amend defendant’s answer. This motion the trial court granted allowing defendant additional time within which to make his proposed amendment and ordering that the trial be had on October 26, 1954.
On October 14, 1954, defendant filed an “Amended Answer and Cross-Complaint.’’ The amended answer first places in issue the allegations of cruelty made against defendant and next, in what is termed a further separate first defense, alleges that after the dates mentioned in plaintiff’s complaint and prior to the commencement of the instant action the plaintiff, being informed thereof, freely condoned the alleged acts of cruel treatment and conduct of which she now complains, forgave defendant, freely cohabited with him and that ever since such alleged condonation defendant has been a faithful husband who has treated plaintiff with conjugal kindness. Next by cross-complaint, defendant, upon information and belief, charges plaintiff with misconduct which he alleges he “is informed and believes’’ occurred on or about December 5, 1951, being prior to the commencement of plaintiff’s first suit for divorce, and prays for a judgment (1) forever dissolving the marriage,— (2) awarding him the exclusive care, custody and control of the three minor children of the marriage but (3) according to their mother all rights of reasonable visitation.
On October 18, 1954, plaintiff replied to defendant’s amended answer and cross-complaint, placing in issue the allegations thereof including the charges so made against her on information and belief.
On October 26, 1954, the cause was tried to the court sitting without a jury. At such trial the plaintiff Frances B. Shuey,— her daughter Judith and a neighbor, F. W. Bushell, testified on plaintiff’s behalf, and the defendant Bert R. Shuey, — his daughter, Mrs. Jane Brown, and his son-in-law, Lee E. Brown, gave testimony on behalf of the defendant and cross complainant.
Much of the material testimony adduced from the witnesses testifying for the husband is in conflict with the testimony given by the witnesses who testified on behalf of the wife but after hearing and considering all the evidence submitted the trial court, on October 30, 1954, made and filed written findings of fact, conclusions of law and judgment in favor of the wife and against the husband.
The judgment (1) ordered the dismissal of the husband’s cross-complaint without relief, — (2) granted the wife an absolute divorce and the absolute care, custody, and control of the three minor children of the marriage with the right in the father to AÚsit and see them at reasonable times and places, (3) awarded to the mother the sum of $125 per month for the support of herself and children and (4) awarded the wife her costs and disbursements in the action.
On this appeal the appellant husband contends that it was error for the trial court to find that his wife’s complaint stated a cause of action against him. In six separately numbered paragraphs the wife, in her complaint, has set forth the ultimate facts constituting her cause of action in ordinary and concise language. In the prayer thereto she has set forth her demand for the relief which she claimed and which the trial court has granted. In our opinion the wife’s complaint fully meets all the requirements of the provisions of R.C.M. 1947, section 93-3202, and adequately states a cause of action.
The appellant also urged that it was error for the trial court (a) to grant the mother the custody of the three children then aged but four and a half, six and seven years, (b) to award the mother $125 per month to support herself and her three offspring, and (c) to grant her a divorce. However the trial court made a finding, ‘ ‘ That the plaintiff has no money or property of her own, and she needs enough for the proper care and support of herself and the children, and an absolute minimum of her requirements would be the sum of $125.00 per month.” There is ample evidence to sustain such finding.
The trial court found that the plaintiff has been a very careful and proper mother to these children, — that love and affection exists between them, — that these children are of tender years and need the care, protection and love of their mother, and that they should be allowed to remain with her regardless of the differences between plaintiff and the defendant. The evidence amply sustains this finding. The best interests and welfare of the infant children require that they be left in the care and custody of their mother and that their father be required to contribute to their care, support and education.
The appellant father further argues that it was error for the trial court to dismiss his cross-complaint and to refuse to grant him a decree of divorce thereon. The testimony introduced by the defendant husband in his attempt to prove the charges made in his cross-complaint is most unsatisfactory and much of it is not only conflicting but disgustingly vulgar and obscene as well. The learned and experienced trial judge heard this testimony and observed the admittedly immoral witness for the defendant as he publicly gave his bi’azen recital at the trial and we are not inclined to disturb the trial court’s findings on this phase of the case.
“In cases such as this the findings of the trial court will not be disturbed where the record contains substantial evidence upon which they may be sustained.” Walker v. Mink, 117 Mont. 351, at page 363, 158 Pac. (2d) 630, at page 636.
As was said by this court in Casey v. Northern Pac. Ry. Co., 60 Mont. 56, at page 68, 198 Pac. 141, at page 145, “The credulity of courts is not to be deemed commensurate with the facility or vehemence with which a witness swears. ‘It is a wild conceit that any court of justice is bound by mere swearing. It is swearing creditably that is to conclude its judgment.’ The Odin, 1 Rob. Adm. 248; * * * ”
Finding no prejudicial error the judgment of the' district court is affirmed.
MR. JUSTICES ANGSTMAN, ANDERSON, and BOTTOMLY, concur.
|
[
38,
23,
-47,
22,
-10,
-45,
-42,
59,
37,
-34,
-73,
-38,
-30,
37,
16,
-39,
-52,
-52,
13,
-5,
-40,
-16,
-40,
16,
93,
92,
2,
-19,
-64,
16,
-9,
-24,
-31,
-31,
35,
20,
-16,
16,
-56,
6,
-34,
-92,
48,
53,
-14,
-35,
52,
-25,
-6,
53,
11,
-36,
43,
-20,
22,
17,
2,
11,
-8,
39,
-24,
20,
-19,
32,
22,
8,
49,
28,
3,
-20,
70,
-40,
-21,
-35,
-32,
-36,
38,
-19,
-1,
62,
-41,
17,
2,
-11,
-27,
-26,
-35,
18,
-31,
29,
6,
23,
5,
-25,
-3,
-36,
-13,
-19,
-5,
56,
-15,
-54,
41,
12,
-32,
4,
32,
20,
35,
33,
23,
18,
16,
50,
47,
51,
-16,
-33,
43,
10,
-13,
24,
41,
25,
-5,
-17,
3,
5,
74,
18,
-19,
14,
-12,
-48,
23,
-34,
-35,
-53,
-24,
-102,
70,
-38,
0,
36,
40,
45,
-42,
-42,
21,
-32,
-19,
-50,
11,
41,
36,
-28,
33,
-24,
-11,
-60,
8,
9,
10,
-22,
-42,
9,
-22,
34,
-46,
14,
34,
-5,
-69,
58,
27,
85,
-8,
22,
23,
39,
7,
41,
20,
-60,
14,
29,
24,
19,
-66,
-12,
25,
-122,
60,
-34,
-5,
27,
-9,
-55,
-17,
14,
21,
-41,
26,
32,
17,
11,
40,
95,
12,
-36,
-26,
-47,
-27,
-1,
-22,
28,
-36,
21,
7,
-37,
67,
-39,
-23,
-7,
-30,
-13,
21,
35,
78,
-27,
17,
20,
41,
-34,
3,
-2,
-75,
1,
-21,
42,
-20,
-92,
-22,
-15,
-12,
64,
-34,
15,
-60,
40,
-13,
-30,
-15,
83,
10,
26,
7,
57,
-27,
15,
-49,
-10,
53,
50,
3,
-22,
-13,
-9,
-24,
7,
107,
30,
41,
-25,
-24,
-5,
16,
23,
-19,
-21,
36,
-5,
-25,
19,
-5,
-34,
-24,
10,
-28,
-7,
-17,
37,
-25,
-51,
30,
-21,
-22,
-16,
-41,
-11,
-1,
-41,
23,
49,
-76,
18,
-27,
-7,
37,
53,
8,
8,
-3,
-47,
29,
-41,
-61,
-1,
-61,
34,
35,
-29,
27,
27,
-10,
51,
-3,
65,
-12,
49,
-14,
7,
-34,
-20,
-19,
-56,
-31,
15,
-11,
-27,
2,
26,
48,
55,
2,
-27,
31,
47,
-38,
35,
-20,
-15,
22,
12,
-68,
-11,
-6,
-16,
3,
-7,
-3,
32,
-13,
30,
-35,
17,
31,
-5,
15,
9,
43,
3,
19,
31,
100,
56,
-13,
20,
7,
70,
-8,
52,
-12,
37,
-3,
20,
10,
-29,
21,
-81,
0,
-14,
21,
2,
97,
-67,
-18,
2,
-13,
-33,
-13,
-3,
-9,
67,
-16,
-13,
-11,
-8,
-34,
-8,
40,
-57,
-13,
6,
57,
-12,
-52,
-11,
-74,
56,
-5,
11,
24,
-74,
-40,
-6,
-28,
-47,
14,
-18,
-20,
11,
-33,
-6,
92,
-84,
-42,
57,
12,
15,
8,
14,
64,
15,
1,
5,
1,
-6,
22,
-16,
-24,
2,
-23,
-30,
-38,
-73,
44,
8,
-52,
11,
-15,
63,
61,
-37,
-10,
22,
39,
6,
-26,
55,
-30,
5,
7,
17,
15,
-2,
-37,
-49,
-30,
-37,
-10,
-3,
-36,
20,
20,
-29,
-71,
-6,
37,
3,
-2,
-24,
0,
-14,
-19,
-29,
-3,
9,
7,
-29,
-2,
15,
34,
-44,
3,
6,
-43,
16,
-51,
38,
16,
-37,
56,
-87,
-5,
30,
23,
-31,
-16,
40,
-39,
54,
10,
-25,
35,
-21,
24,
12,
9,
7,
-11,
54,
-36,
13,
-25,
-9,
-41,
47,
29,
-49,
23,
-41,
24,
10,
-37,
6,
2,
8,
-13,
4,
59,
-7,
10,
-34,
7,
-7,
-38,
17,
-43,
-38,
12,
7,
-72,
-26,
24,
-24,
-29,
25,
-24,
12,
-6,
-5,
22,
48,
46,
19,
-23,
27,
-43,
-14,
3,
50,
19,
9,
-48,
12,
39,
8,
-14,
9,
-30,
-22,
-41,
32,
-10,
-66,
1,
18,
-47,
-27,
-50,
-59,
5,
10,
-31,
29,
-39,
-29,
27,
-10,
79,
13,
-73,
14,
0,
32,
7,
-68,
12,
-27,
45,
-32,
-5,
13,
-24,
4,
-5,
-2,
31,
8,
4,
14,
45,
23,
8,
0,
36,
-32,
-23,
17,
25,
12,
-32,
2,
9,
-23,
22,
-95,
10,
-25,
-14,
-29,
-37,
0,
-23,
-39,
6,
-55,
-44,
-11,
-28,
-26,
69,
0,
-24,
17,
-6,
70,
7,
39,
47,
-8,
-1,
26,
-22,
4,
27,
5,
6,
37,
8,
-36,
-16,
29,
-48,
46,
97,
21,
-56,
-25,
50,
22,
-9,
95,
-26,
19,
-9,
28,
6,
45,
22,
-24,
-16,
-26,
-59,
21,
2,
-20,
-50,
11,
-40,
55,
12,
-52,
13,
-8,
18,
17,
14,
-26,
-70,
44,
-41,
5,
-7,
14,
18,
-78,
11,
-5,
64,
70,
-8,
28,
54,
7,
27,
70,
-17,
-20,
-9,
-45,
-3,
24,
4,
37,
22,
-14,
13,
70,
46,
-21,
6,
2,
11,
-8,
53,
29,
3,
-27,
40,
2,
-28,
22,
-16,
14,
-42,
-31,
17,
-42,
-21,
-6,
-29,
-21,
-55,
-20,
-12,
3,
4,
-12,
24,
-75,
-43,
-22,
-13,
-8,
47,
-21,
42,
10,
-27,
-3,
43,
-26,
-4,
37,
-53,
-69,
-88,
17,
10,
64,
-20,
40,
33,
7,
-29,
10,
-43,
28,
-56,
-9,
28,
-48,
-3,
-12,
-7,
16,
-2,
27,
9,
-72,
0,
64,
4,
-15,
2,
28,
-53,
-45,
19,
10,
-12,
-3,
-15,
-14,
23,
-10,
-48,
10,
11,
21,
-31,
-50,
44,
-38,
63,
10,
58,
-10,
30,
18,
31,
55,
-28,
-4,
-24,
12,
80,
46,
-28,
-40,
0,
-31,
-7,
-24,
120,
0,
35,
49,
-31,
-43,
26,
24,
-15,
17,
105,
-16,
26,
-18,
36,
-36,
-75,
17,
-61,
9,
10,
20,
25,
-7,
4,
-42,
-5,
-17,
-37,
32,
-64,
-38,
-60,
7,
20,
27,
18,
-16,
-50,
-63,
-12,
41,
59,
20,
41,
-29,
-21,
-18,
-9,
0,
6,
26,
0,
-4,
13,
-47,
-30,
23,
0,
-14,
-53,
-20,
-46,
49,
33,
62,
-53,
-54,
49,
63,
4,
65,
-5,
-45,
27,
89,
-23,
-11,
18,
48,
53,
-78,
-12,
-13,
2,
18,
36,
77,
19,
16,
1,
-12,
10,
31,
21,
44,
35,
36,
-5,
-43,
-43,
43,
18,
-73,
4,
-1,
-2,
-19,
7,
-98,
18,
23,
35,
-21,
7,
1,
-80,
36,
15,
-33,
-30,
-47,
-45,
40,
18,
-35,
7,
31,
79,
9,
19,
-72,
10,
-16,
11,
-60,
-41,
43,
-28,
-33,
-8,
8,
17,
55,
-25,
35,
2,
18,
0,
-13,
-42,
3,
45,
-50,
4,
-7,
32,
8
] |
MR. CHIEF JUSTICE ADAIR:
This is an original proceeding. It involves the right to disqualify a district judge for imputed bias in a juvenile proceeding.
On April 2, 1955, the chief probation officer of Silver Bow County, Montana, filed in the district court of such county a petition representing, inter alia: That the boy named and accused in the petition is a delinquent child whose father and mother are unable to care for, protect, train, educate, control or discipline and that it is for the best interests of such child that he be taken from his parents and placed under the care of some suitable person, to be appointed by the court, or committed to some institution or society that has for its object the care of delinquent children.
Upon the filing of such petition the Honorable John B. Mc-Clernan, one of the judges of such district court, caused to be issued and served upon such child’s parents a citation requiring that they appear before his court on April 5, 1955, together with their said child to show cause why such child should not be declared delinquent.
In answer to such petition and pursuant to the citation the parents of the child appeared in such court before said district judge as commanded and, for and on behalf of themselves and their said child, requested a jury trial under the provisions of R.C.M. 1947, section 10-603. Thereupon said district judge fixed and set April 18, 1955, at 10:00 o’clock a. m. as the time for such jury trial.
On April 11, 1955, counsel for the child and his parents filed an affidavit of disqualification for imputed bias against the above named district judge in accordance with the provisions of E.C.M. 1947, section 93-901, subdivision 4, but notwithstanding said district judge declined to stand aside or to recognize the disqualification and announced that the affidavit has no bearing on the cause and that he would proceed to hear and try the petition and proceeding.
Thereupon the father of said child, as relator, filed in this court a petition for a writ of prohibition to be directed against the respondent district judge. An alternative writ of prohibition was issued out of this court to which respondent interposed a motion to quash. Upon hearing and oral argument by counsel for both the relator and the respondent this court denied the motion to quash and caused a peremptory writ of prohibition to issue and be served prohibiting the respondent district judge from trying the pending proceeding and directing that he call in another judge to preside in his stead as is provided in E.C.M. 1947, section 93-901, stating that this written opinion would follow.
The question presented was whether an affidavit for imputed bias in the form prescribed in subdivision 4 of section 93-901, E.C.M. 1947, disqualifies the district judge in a juvenile proceeding.
Eespondent cited the case of State ex rel. Houston v. District Court, 61 Mont. 558, 202 Pac. 756, which held that an action for the removal of civil officers for the reasons therein stated are criminal in nature and that neither party has the right to file a disqualifying affidavit under section 6315, E.C.M. 1907, as amended by Chapter 114, Laws of 1909 (now E.C.M. 1947, section 93-901).
In the first place the Houston case, supra, is not applicable to the juvenile delinquent statutes here involved. Secondly, the Houston ease was in effect overruled by the cases of State ex rel. King v. District Court, 95 Mont. 400, 26 Pac. (2d) 966, and State ex rel. Odenwald v. District Court, 98 Mont. 1, 38 Pac. (2d) 269.
The juvenile delinquent statutes as amended by the laws of 1943 and 1947, IÍ.C.M. 1947, sections 10-601 to 10-633, clearly show that it was the intention of the legislature that where, as here, the child alleged to be delinquent is under the age of 16 years, he shall not be prosecuted in the criminal courts.
The first paragraph of section 10-601, supra, reads: “This act shall be liberally construed, to the end that its purpose may be carried out, to-wit: that the care, custody, education, and discipline of the child shall approximate, as nearly as may be, that which should be given the child by its parents, and that, as far as practicable, any delinquent child shall be treated, not as a criminal, but as misdirected and misguided, and needing aid, encouragement, help and assistance.” Emphasis supplied.
Subdivision of section 10-602 reads:
“(2) The words ‘delinquent child’ include: (a) A child who has violated any ordinance of any city.
“(b) A child who has violated any law of the state, provided, however, a child over the age of sixteen (16) years who commits or attempts to commit murder, manslaughter, assault in the first degree, robbery, first or second degree burglary while having in his possession a deadly weapon, and carrying a deadly weapon or weapons with intent to assault, shall not be proceeded against as a juvenile delinquent but shall be prosecuted in the criminal courts in accordance with the provisions of the criminal laws of this state governing the offenses above listed.” Emphasis supplied.
The last paragraph of section 10-603 reads: “The district court as distinguished from the juvenile court shall have jurisdiction, as in all other criminal cases, of those offenses listed in subdivision (2) (b) of section 10-602, where children over the age of sixteen (16) are accused.” Emphasis supplied. Also see R.C.M. 1947, sections 10-611 and 10-630.
Here the boy accused was only eleven years old.
In State ex rel. Palagi v. Freeman, 81 Mont. 132, 140, 262 Pac. 168, this court held that under sections 12275 to 12301, R.C.M. 1921, relating to delinquent children proceedings, same were in no sense criminal, notwithstanding that section 12284 there cited provided that: ‘ ‘ The provisions of the Penal Code of this state relating to appeals, motions for new trials, allowance and signing of bills of exceptions shall apply to this act, and from the judgment of the court or judge under this act, appeals may be prosecuted as in other criminal cases. ’ ’ Also see State v. Ludwich, 90 Mont. 41, 48, 300 Pac. 560.
The first sentence of R.C.M. 1947, section 10-630, provides: "In the case of a delinquent child an appeal to the supreme court may be taken by the party aggrieved in the manner provided by law or by rule of court for appeal in civil cases.” Emphasis supplied. See also 43 C.J.S., Infants, section.6, page 55, and section 99, page 240.
It is quite apparent that the legislative intent was that juvenile matters and proceedings are to be treated as civil and not as criminal proceedings. The courts of other jurisdictions have so held. See Ex parte Guisti, 51 Nev. 105, 269 Pac. 600, 601; Kahm v. People, 83 Colo. 300, 264 Pac. 718; In re Morrison, 176 Okl. 55, 54 Pac. (2d) 198; Garner v. Wood, 188 Ga. 463, 4 S.E. (2d) 137.
The provisions of R.C.M. 1947, section 93-901, apply to all civil actions and special proceedings of a civil nature, State ex rel. Goodman v. District Court, 46 Mont. 492, 495, 128 Pac. 913, and we hold therefore that such provisions apply to juvenile delinquency proceedings under the present Montana statutes governing same. It follows that the respondent district judge is disqualified to sit or act in the pending proceeding other than to arrange the calendar, regulate the order of business, transfer the proceedings to some other court or to call in another district judge to sit and act in such action or proceeding as authorized and directed by subdivision 4 of section 93-901, R.C.M. 1947. It is so ordered. Tbe peremptory writ of prohibition against respondent rightfully issued.
MR. JUSTICES ANGSTMAN, ANDERSON, DAVIS and BOTTOMLY, concur.
|
[
21,
1,
7,
61,
31,
-29,
-22,
10,
-54,
68,
-17,
-26,
10,
7,
6,
-7,
-34,
-33,
2,
-26,
19,
15,
-56,
-5,
23,
6,
-30,
2,
-70,
-12,
-4,
-34,
-4,
0,
25,
20,
81,
5,
37,
44,
13,
-10,
-18,
11,
-7,
17,
-93,
30,
-9,
5,
12,
-19,
41,
68,
-15,
42,
9,
20,
-35,
57,
-37,
18,
4,
-61,
24,
-21,
-41,
0,
-31,
31,
16,
0,
-24,
17,
65,
40,
-18,
-50,
20,
66,
-15,
-11,
-1,
0,
-9,
17,
2,
9,
-19,
19,
-4,
11,
-40,
0,
0,
-31,
1,
13,
-1,
-59,
-3,
-27,
43,
-29,
52,
-50,
-34,
18,
58,
40,
54,
-21,
-17,
9,
27,
2,
-36,
55,
-75,
-35,
29,
25,
1,
35,
0,
3,
3,
21,
-2,
25,
-50,
6,
35,
-9,
-15,
6,
0,
3,
22,
-5,
7,
-40,
58,
-4,
-32,
-44,
-25,
16,
-14,
-20,
14,
0,
41,
39,
29,
6,
4,
-32,
28,
-21,
-40,
25,
-4,
20,
-10,
13,
-34,
-4,
-36,
14,
-19,
-16,
-4,
2,
29,
-14,
-9,
10,
25,
39,
-35,
41,
29,
-7,
16,
32,
-18,
-46,
3,
-6,
-26,
-6,
-3,
-44,
27,
-18,
39,
-18,
-24,
-1,
-21,
33,
47,
33,
-6,
21,
-60,
-22,
-39,
-27,
-16,
1,
40,
21,
-24,
-3,
-6,
1,
22,
23,
-2,
12,
13,
27,
-30,
-20,
-25,
59,
-16,
-63,
16,
-1,
62,
-21,
66,
-16,
9,
2,
-20,
45,
-5,
8,
66,
-43,
-5,
60,
-11,
-20,
-13,
21,
30,
3,
-6,
19,
-18,
16,
17,
-53,
2,
-25,
7,
-21,
26,
-4,
-15,
-12,
26,
54,
52,
-24,
29,
-22,
-10,
28,
-12,
15,
30,
-43,
-30,
-5,
2,
0,
19,
32,
-22,
25,
8,
-16,
23,
-8,
15,
-22,
-10,
18,
40,
-32,
27,
-10,
21,
-21,
28,
-15,
-22,
3,
-62,
-45,
22,
-6,
0,
0,
21,
6,
-46,
24,
-9,
-33,
-53,
40,
9,
4,
5,
-28,
1,
-34,
-29,
-6,
90,
-12,
29,
-5,
-18,
-8,
1,
-17,
33,
-12,
20,
-38,
7,
-4,
44,
-25,
2,
-10,
18,
4,
-32,
33,
-17,
31,
10,
9,
50,
7,
-9,
-11,
32,
-41,
49,
-62,
-13,
-18,
-21,
-34,
16,
-48,
-3,
6,
-4,
-78,
60,
-27,
5,
-13,
56,
-5,
7,
12,
12,
18,
-30,
9,
21,
-20,
34,
-4,
32,
35,
30,
-48,
14,
14,
-41,
-28,
31,
4,
13,
0,
39,
-14,
-4,
-18,
-9,
-23,
21,
-7,
-26,
5,
76,
-22,
33,
28,
-2,
-6,
57,
-16,
-49,
-1,
-44,
24,
-15,
-8,
64,
-10,
21,
-5,
26,
10,
50,
-25,
5,
-15,
-58,
1,
2,
8,
38,
10,
43,
7,
-24,
-15,
-1,
55,
16,
-18,
-37,
35,
-16,
-34,
21,
40,
-32,
-30,
-36,
0,
1,
23,
-38,
-62,
-2,
42,
-5,
3,
-4,
19,
-46,
0,
19,
22,
5,
-23,
-45,
10,
40,
59,
-1,
8,
45,
1,
-18,
-4,
-63,
-1,
12,
-24,
-24,
-32,
-4,
-4,
-2,
-38,
-47,
2,
-11,
-14,
5,
-17,
11,
45,
-5,
3,
2,
-21,
-19,
-14,
-10,
0,
-60,
16,
18,
-1,
-2,
-22,
-23,
-10,
13,
3,
17,
12,
62,
-2,
-40,
-75,
24,
-42,
1,
-23,
-13,
-29,
19,
24,
5,
42,
10,
63,
46,
31,
-35,
4,
51,
-6,
13,
6,
7,
-45,
-36,
-21,
26,
7,
63,
-15,
-20,
22,
-19,
2,
-26,
5,
-1,
-62,
4,
68,
10,
16,
-10,
8,
-34,
3,
-11,
-1,
6,
-39,
-36,
-8,
3,
7,
-5,
35,
13,
23,
23,
38,
-8,
-18,
-18,
0,
14,
-32,
41,
15,
-44,
-38,
-27,
24,
-18,
-32,
-12,
21,
8,
44,
-8,
41,
20,
12,
30,
-27,
17,
-5,
0,
-51,
3,
23,
-20,
-14,
24,
61,
-22,
-6,
8,
-16,
-21,
-36,
0,
-62,
-15,
-22,
-52,
-23,
25,
-34,
-2,
-22,
-33,
-16,
-16,
12,
-45,
4,
11,
-41,
21,
-18,
0,
-16,
0,
-36,
44,
9,
9,
-5,
-10,
-14,
6,
-42,
8,
-1,
-26,
-5,
29,
-59,
46,
-7,
-31,
10,
-8,
29,
48,
69,
-42,
43,
-26,
8,
-14,
-2,
13,
15,
-17,
-5,
6,
-39,
-67,
-21,
-36,
-41,
-5,
-5,
-9,
7,
-23,
8,
57,
31,
1,
10,
-5,
-4,
-26,
-16,
-11,
31,
-5,
8,
-13,
-1,
-62,
-6,
18,
21,
-39,
29,
-67,
30,
-17,
41,
-40,
-44,
-21,
11,
-57,
-19,
-55,
39,
25,
62,
19,
-18,
48,
-40,
-7,
14,
27,
-32,
-10,
43,
1,
14,
-13,
-36,
32,
55,
-17,
-8,
3,
-20,
-54,
45,
1,
-17,
-58,
12,
-11,
17,
-24,
15,
-38,
54,
23,
-3,
-3,
8,
27,
27,
35,
41,
-39,
35,
-27,
-8,
62,
10,
3,
-6,
-30,
-47,
28,
-12,
-93,
-16,
11,
-48,
17,
14,
3,
-34,
17,
14,
-3,
51,
19,
0,
-13,
-2,
-27,
45,
18,
17,
-20,
-22,
-75,
5,
10,
-8,
13,
-13,
10,
20,
-7,
-7,
-49,
30,
-7,
26,
1,
-11,
-5,
-13,
-7,
-23,
7,
-8,
85,
30,
39,
-8,
39,
0,
13,
-28,
27,
-6,
33,
10,
25,
16,
-39,
-44,
-33,
-6,
60,
29,
-47,
21,
2,
-52,
-2,
6,
-6,
42,
29,
-20,
-10,
41,
-31,
28,
45,
-42,
43,
-42,
-4,
16,
-10,
6,
0,
-29,
44,
5,
56,
-39,
-25,
33,
-28,
-27,
60,
38,
-58,
-46,
9,
16,
-6,
-6,
79,
9,
2,
37,
56,
25,
-24,
-68,
41,
-28,
2,
-1,
-14,
7,
-19,
77,
-33,
-43,
-57,
7,
15,
10,
-15,
-44,
-43,
-66,
33,
55,
11,
-22,
-7,
-16,
4,
32,
-11,
-48,
-5,
-16,
48,
-18,
-15,
19,
-15,
-4,
0,
-56,
-6,
-5,
28,
52,
-24,
31,
-41,
-10,
32,
1,
-47,
41,
31,
15,
-5,
-43,
4,
-1,
0,
4,
-33,
-53,
-30,
-6,
-10,
8,
-42,
41,
0,
51,
-34,
33,
18,
-16,
1,
73,
-28,
45,
-15,
-32,
-11,
-5,
-11,
-2,
-22,
55,
-37,
45,
-41,
-26,
27,
2,
-4,
-11,
-16,
42,
23,
-24,
5,
-10,
-3,
23,
9,
-21,
29,
-22,
51,
-4,
-24,
54,
-23,
-24,
52,
-16,
45,
16,
-71,
-54,
15,
-30,
-71,
-26,
-37,
2,
13,
-32,
-62,
-2,
2,
-7,
40,
-36,
-7,
-14,
23,
0,
25,
-7
] |
MR. CHIEF JUSTICE ADAIR:
This is an appeal from an order refusing to dissolve an attachment.
On February 18, 1954, R. B. Fraser and Rosabelle Fraser, plaintiffs, commenced in the district court of Yellowstone County this action against E. C. Clark and Evan Owens, defendants, to recover a money judgment for $28,500 with interest as well as interest on a larger sum alleged to be owing to plaintiffs from the defendants.
At the time of issuing summons the plaintiffs obtained a writ of attachment out of the district court of Yellowstone County and on February 20, 1954, by virtue thereof personal property belonging to defendants and situate in Fergus County was seized. The property attached then consisted of approximately 394 head of thoroughbred Hereford cattle, 11 head of horses, various automobiles, trucks, tractors and other ranch machinery and equipment.
On defendants’ timely motion the Honorable Guy C. Derry, judge presiding in the district court of Yellowstone County, ordered a change of venue to the district court of Fergus County which order, on appeal, this court affirmed. See Fraser v. Clark, 128 Mont. 160, 273 Pac. (2d) 105.
On defendants’ petition the Honorable Stewart McConochie, the duly elected judge of the district court of Fergus County, on August 6, 1954, made an order releasing from the attachment a part of the property consisting of 36 head of dry 2 year old heifers, 11 head of horses and certain automobiles, trucks, tractors and ranch machinery and equipment such release being on the ground that the value of the property attached is greatly in excess of the amount for which the levy should properly have been made.
Thereafter on September 14, 1954, on defendants’ petition, the district court issued an order returnable on a day certain directing plaintiffs to show cause why the attachment should not be dissolved.
On September 21, 1954, plaintiffs disqualified Judge McConochie whereupon the Honorable Victor H. Fall, one of the judges-of the district court of the first judicial district, was called in,, assumed jurisdiction and after hearing had, disallowed defendants ’ petition to discharge the attachment. Defendants, without-success, attempted to have this court review such order in an original proceeding for supervisory control. See State ex rel. Clark v. District Court, 128 Mont. 526, 278 Pac. (2d) 1000.
Thereupon defendants appealed from the order refusing to-dissolve the attachment as is provided for in R. C. M. 1947,. sec. 93-8003, subd. 2, see. 93-8004, subd. 3, and sec. 93-8005.
On defendants’ application and because of the absence from Montana of the Honorable Victor H. Fall, the district judge-presiding at the hearing on defendants’ motion to dissolve the-attachment, this court on February 10, 1955, appointed Aaron R. Shull, Esq., a member of the bar of this court, as referee to act in the place and stead of Judge Fall in the preparation and certification of the record on appeal herein.
On Motion to Strike. On February 21, 1955, the transcript on appeal, duly certified by such referee was filed in the office of the clerk of this court following which the plaintiffs interposed a motion for an order striking the transcript from the records and files of this court urging that such transcript was not prepared, certified or served as provided either by statute, court rule or court order and claiming that plaintiffs were afforded “no opportunity to propose amendments to or to raise-objections to any portion of this said purported record on appeal.” Plaintiffs have not filed any suggestion of diminution of record, Court Rule VI, subd. 5, nor have they otherwise challenged the accuracy of the certified report of the proceedings had before Judge Fall and having failed to show that any prejudice has or will result to them through the acceptance by this-court of such transcript, plaintiffs’ motion to strike same is disallowed.
On the Merits. The defendants, E. C. Clark and Evan Owens, owners of a large herd of purebred Hereford cattle in Nebraska, were desirous of acquiring sufficient suitable land in Montana to accommodate the needs of their herd which defendants were anxious to move to Montana.
The plaintiff, R. B. Fraser, claimed to own certain ranch land in Fergus County, Montana, suitable to meet defendants’ requirements and one Emery Lupton of Western Inc. & Morg. Co., acting as the purported agent of Fraser contacted defendants following which defendants paid the sum of $15,000 as a deposit and earnest money on the total purchase price of $150,-000 for lands, not described by section, township and range, but situate in Fergus County and designated as the “R. B. (Bob Fraser) Ranch”, the transaction being evidenced by an instrument in writing signed by the parties and reading:
Supplement to Receipt and Agreement to Sell and Buy dated Dec. 30, 1952.
“1— It is agreed that purchaser can sell cattle for the sole purpose of buying replacement stock of the same value without applying toward the % of the sales price for the ranch payment.
‘ ‘ 2— Contract for deed and other legal papers will be held in escrow at the Security Trust and Savings Bank of Billings, Mont, and payments will be made there.
“3— If the purchaser wishes, R. B. Fraser will leave the stack of loose hay located South of the road for the purchaser to use in the Spring of ’53. Whatever amount of hay that purchaser uses he agrees to repay in a like amount of hay to R. B. Fraser in the Fall of 1953.
“4— Permanent improvements agreed upon with Mr. Fraser can be-deducted from Fraser’s % of payments. This payment does not decrease the principle.
“5— In-as-much as the income will be small from the Grass-range property in 1953, Mr. Clark agrees to pay % of the proceeds from the sale of cattle left in Nebraska after shipping the rest of the cattle to Grassrange, Mont.
‘ ‘ 6— Fencing material on the property is to be left.
“7— House to be completed by May 1st, 1953, if at all possible, and at least the top floor by April 1st, 1953.
“/s/ Clark & Owens
“By /s/ E. C. Clark
“/s/ R. B. Fraser (Seller)”
Plaintiffs and defendants also signed a “Contract for Deed” dated December 30, 1952, and comprising eleven separately numbered paragraphs relating to the sale of the property which, in part, provide:
“* * * the consideration * * * shall be the sum of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) * * * of which * * * Fifteen Thousand and 00/100 Dollars ($15,-000.00) has been this day paid, and that the balance * * * shall be paid as follows, to-wit: Twenty-Eight Thousand Five Hundred and 00/100 Dollars ($28,500.00) when the obligations, as to title, under paragraph 3 of this contract have been met, and the sum of One Hundred Six Thousand Five Hundred and 00/100 Dollars ($106,500.00) as follows, viz.
“Annually and before the close of each calendar year, and commencing in the month of December, 1953, the Vendees shall account fully to the Vendors for the operations of the said Vendees upon the property sold hereunder, providing in this connection full financial data and records and receipts that shall be available for examination by any accountant designated therefor by the Vendors, and that upon the approval by such accountant of the report of the Vendees, and the establishment of the gross earnings of the Vendees, the said Vendees shall immediately and forthwith pay to the Vendors one-half (%) of the gross income derived from the operation of the said property to be applied as a payment as of that time upon the said purchase price, after first deducting therefrom the amount of the real estate taxes assessed against the said property for the current calendar year, which taxes the Vendees shall pay annually, when due and before delinquency, during the continuance of this contract and shall provide the Vendors with receipts therefor of the proper county treasurer; and it is understood and agreed in connection with the payment of the said purchase price, that the full amount thereof shall draw interest at the rate of five per cent (5%) per annum, payable annually, from March 1, 1953, and that the accrued interest on the purchase price shall be payable December 15, 1953, and annually thereafter.
“And it is expressly covenanted and agreed as follows, to-wit: * * *
“2. That at all times during the continuance hereof, the title to the property sold and purchased hereunder shall be and remain in the Vendors herein, their heirs and assigns, but that the said Vendees shall be entitled presently to the possession of the said property, and thereafter while this contract shall remain in force and effect;
“3. That as soon as abstract of title can be compiled covering the property sold and purchased hereunder, the Vendors shall deliver the same to the Vendees for examination only and that when the said abstract shall have been examined by the said Vendees or their counsel, as the ease may be, and established to the satisfaction of reputable attorneys that the Vendors have a merchantable title to the property agreed to be sold hereunder, that the said abstract shall be returned to the Vendors forthwith and that thereupon the said Vendors shall deposit with the Security Trust and Savings Bank at Billings, Montana, in escrow for the purposes of this contract, a deed that shall be legally sufficient to vest in the Vendees a merchantable title to the property agreed to be sold and purchased hereunder, together with the aforesaid abstract of title, with instructions to the said bank to deliver the said deed and abstract to the Vendees upon complete performance of all of the obligations of the Vendees under this contract; and that otherwise, the said deed and abstract shall be returned to the Vendors for cancellation; * * * and that it shall be sufficient for the purposes of this contract for the Vendors to deliver assignments or direct leases of or contracts covering such other property at the time the total sum of Forty-Three Thousand Five Hundred and 00/100 Dollars ($43,500.00) shall have been paid under this contract, subject to the obligations of the Vendees to assign the same back, upon demand of the Vendors, should this contract not become effective or be terminated in accordance with the provisions thereof; provided, however, that the Vendors shall have the right to substitute title insurance for the aforesaid abstract of title; * * *
“7. That inasmuch as the income from the property sold and purchased hereunder may be small for the calendar year 1953, the Vendees, during 1953, shall dispose of their portion of the cattle presently owned by them which they leave in the State of Nebraska after shipping the balance of the same to Grass Range, Montana, and that one-half (%) of the proceeds from the sale of the Nebraska cattle shall be applied by the Vendees forthwith, and be credited upon, the purchase price payable under this contract; * * *
“10. That upon the failure of the said Vendees to make any of the payments required hereunder of principal or interest, taxes or insurance premiums, or to perform any of the covenants or agreements herein contained by the said Vendees to be paid, kept or performed, these presents, at the option of the Vendors, shall immediately cease and determine and be and become null, void, and of no force or effect whatsoever, and that such failure shall work a forfeiture of this contract, and that upon the termination of this contract upon any manner or breach thereof, the said Vendors shall immediately be and become entitled to the possession of the property and appurtenances here involved and that the said Vendees shall forthwith and immediately vacate the said property and appurtenances and deliver up the possession thereof to the said Vendors, and re-assign to the Vendors all of the rights to and in the property theretofore transferred to the Vendees hereunder; provided, however, that before any such forfeiture of this contract shall become effective, the Vendors shall give to the said Vendees, by registered letter addressed to them at Grass Range, Montana, which shall be deemed complete and legal service thereof, a thirty (30) day notice of their intention to forfeit and terminate this contract, which notice shall set forth the amount due under this contract or the amount of any taxes or insurance premiums unpaid or the other covenants and agreements not performed by the Vendees, and that full performance by the Vendees within the said thirty (30) day period, of their then existing obligations in default, shall reinstate this contract; * * *”
Petition to Dissolve Attachment. In their petition for an order dissolving the attachment defendants represent:
That upon giving a $10,000 undertaking on attachment filed in this action on a purported contract for the purchase of real property seeking to recover $28,500 and interest, virtually all of defendants’ personal property of the approximate value of $80,000.00 and including 394 head of cattle, was attached and seized by the sheriff of Fergus County who still holds all thereof except 38 head of dry two year old heifers, some horses and miscellaneous farming machinery theretofore released by Judge McConochie’s order;
That the present value of the property still so attached is of the reasonable value of $57,558 exclusive of 186 head of suckling calves;
That plaintiffs and said sheriff have wholly failed and refused to make suitable or adequate provisions over substantial periods of time for the feeding, care or safety of said livestock;
That ever since said levy and seizure and to prevent great loss defendants have been obliged to devote practically their entire time to caring and providing for said livestock having provided pasture and large quantities of hay and feed;
That no arrangement has been made for the winter feeding, shelter and care of said livestock;
That defendants are barred and helpless to take- over or take charge of their livestock so seized or to make arrangements for the winter shelter, feeding and care thereof;
That it is plaintiffs’ purpose and intention to harass and embarrass defendants and to force and compel defendants to yield to plaintiffs’ unlawful demands to the loss, harm, injury and damage of defendants;
That the $10,000 undertaking on attachment and the sheriff’s official bond, combined are neither adequate nor sufficient to indemnify defendants for the accrued and accruing damages suffered by them by reason of the attachment of their property;
That the attachment is excessive, an abuse of process, unwarranted and unlawful;
That plaintiffs have no valid claim of indebtedness, express or implied, against defendants;
That no valid attachment has or can legally be issued herein;
That the records and files herein show that the only indebtedness claimed to be due plaintiffs from defendants is by virtue of the contract dated December 30, 1952;
That the contract upon which this action is based was a conditional, incomplete escrowed contract, the possession whereof plaintiffs wrongfully obtained;
That no rights have accrued nor may they accrue by virtue of the other purported contract above mentioned;
That both purported contracts expressly provide what rights, if any, accrue by virtue thereof in case of default by either of the contracting parties; that it appears therefrom and from the files and records herein that there is no indebtedness due plaintiffs but that their remedy, if any indebtedness had or should accrue by virtue of such purported contracts, was and is fixed by the parties themselves;
That under the express terms and conditions of said contracts in ease of default by defendants said defendants forfeit any rights by virtue thereof, by reason of said contracts fixed by the parties themselves, namely:
(a) “* * * but if purchaser neglects or refuses to complete the purchase or shall fail to pay the balance of the purchase price as hereinabove provided * * this Agreement thereupon shall be of no further force or effect; ’ ’
(b) “* * '* That upon the failure of the said Vendees to perform any of the covenants or agreements herein contained by the said Vendees to be paid, kept or performed, these presents * * * shall immediately cease and determine and be and become null, void, and of no force or effect whatsoever, and that such failure shall work a forfeiture of this contract, and that upon the termination of this contract upon any manner or breach thereof, the said Vendors shall immediately be and become entitled to the possession of the property * * * here involved and that said Vendees shall forthwith and immediately vacate the said property * * * and deliver up the possession thereof to the said Vendors, and reassign to the Vendors all of the rights to and in the property theretofore transferred to the Vendees hereunder”;
And that plaintiffs’ rights are limited and restricted to the recovery of said property clear of all claims of defendants.
Searing. At the hearing on the above petition to dissolve the attachment the defendant Evan Owens and both the sheriff and the county attorney of Fergus County testified for the pe titioning defendants while no witness testified on behalf of plaintiffs.
R. C. M. 1947, see. 93-4301, provides: ‘ ‘ The plaintiff * * * may-have the property of the defendant attached * * * as in this chapter provided, as follows:
“In an action upon a contract, express or implied, for the direct payment of money, where the contract is not secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or, if originally secured, such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless, and in an action based upon a statutory stockholders’ liability.”
R. C. M. 1947, sec. 93-4302, provides: ‘ ‘ The clerk of the court must issue the writ of attachment, upon receiving an affidavit by or on behalf of the plaintiff, showing:
“1. That such defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal counterclaims) upon a contract, express or implied, for the direct payment of money, and that the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or, if originally so secured, that such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless; and,
“2. That the attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditor of the defendant. ’ ’
R. C. M. 1947, sec. 93-4327 provides that the defendant may apply to the court for an order to discharge the attachment wholly or in part.
R. C. M. 1947, sec. 43-4329 provides: ‘ ‘ The defendant may also at any time, * * * apply on motion * * * to the court * * * or to a judge thereof, that the writ of attachment be discharged on the ground that the same was improperly or irregularly issued. ’ ’
At the hearing on defendants’ motion to dissolve the attachment most of plaintiffs’ objections to the evidence offered by defendants relative to the execution of the contracts and compliance with the provisions thereof by the parties were sustained, the court holding that the only question was whether the attachment was improperly or irregularly issued.
However there is evidence to the effect that the contract to sell the real property was signed on December 30, 1952 and that on May 12, 1953, plaintiff R. B. Fraser and the defendant Evan Owens held a conference relative thereto at Lewistown, Montana, at which time plaintiffs had not complied with the contract requirements on their part to be kept and performed.
In Ancient Order of Hibernians, Division No. 1, of Anaconda v. Sparrow, 29 Mont. 132, 74 Pac. 197, 198, 64 L. R. A. 128, an indemnity bond for $3,500 was given by White, a contractor, for the faithful performance of a building contract. The bond was signed by the defendant Sparrow and three other sureties. The condition of said bond was that: “ ‘If the said Edward B. White shall in all things comply with the conraet 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 contractor White abandoned his contract before it was completed and the owner of the building who had to complete it at considerable cost recovered a judgment against White for $5,440 for such breach of the contract. Thereafter, White having been adjudged a bankrupt, action was brought to recover against the sureties on the bond. Upon commencing the action the plaintiff obtained a writ of attachment by the authority whereof property belonging to the defendants was seized and defendants interposed a motion for an order 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. [Now sections 93-4301 and 93-4302, R. C. M. 1947.]” In affirming the order of the district court discharging the attachment, this court said: “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 be made plain. The contracts now contemplated by section 890 [now section 93-4301, R. C. M. 1947], above, are such only as require the payment unconditionally and absolutely of a definite sum.”
Ancient Order of Hibernians, Division No. 1, of Anaconda v. Sparrow, supra, has been cited and followed in the following Montana decisions: Beartooth Stock Co. v. Grosscup, 57 Mont. 595, 600, 189 Pac. 773; Carter v. Bankers’ Ins. Co., 58 Mont. 319, 326, 192 Pac. 827; Heffron v. Thomas, 61 Mont. 10, 14, 201 Pac. 572; Square Butte State Bank v. Ballard, 64 Mont. 554, 562, 210 Pac. 889; Muri v. Young, 75 Mont. 213, 216, 245 Pac. 956; Mitchell v. Banking Corporation, 83 Mont. 581, 596, 273 Pac. 1055; General Finance Co. v. Powell, 112 Mont. 535, 540, 118 Pac. (2d) 751, 753.
In General Finance Co. v. Powell, supra, in discussing the word “direct” as used in said section 93-4301, supra, this court said.- ‘ ‘ Therefore there can be no doubt that the legislature attached some substantial meaning to the word. ‘Direct’ is defined by Webster’s New International Dictionary (Webster-Merriam 2d Ed.) as denoting ‘the absence of any intervening medium or influence’; as meaning ‘marked by the absence of an intervening agency or influence.’ Obviously defendant’s guaranty of the purchaser’s performance of the conditional sales contract is not a contract for the direct payment of money, since defendant’s liability is conditioned entirely upon an intervening medium, agency or influence — namely, upon the purchaser’s default, which as to eventuality, time and amount was entirely problematical. If it is to be construed as a contract for the direct payment of money, it is hard to imagine any contract for the payment of money which is not for its direct payment.
‘ ‘ This court has long held that the term meant an unconditional and absolute obligation to pay money * *
Section 537, subd. 1, Code of Civil Procedure of California is substantially the same as R. C. M. 1947, see. 93-4301, supra, and in the recent case of Lencioni v. Dan, 128 Cal. App. (2d) 105, 275 Pac. (2d) 101, 105, involving a written contract for the sale of real and personal property, in reversing the order of the trial court denying defendants’ motion for an order discharging an attachment procured and levied upon defendants’ property by the vendor, the court said: “It must be held, therefore, that the contract was an executory contract of sale under the terms of which respondents retained title as security for the payment of the purchase price. This being so, the contract was one expressly providing for security within the meaning of section 537, subdivision 1, of the Code of Civil Procedure, and the attachment should have been discharged.”
In the Lencioni case, supra, the appellate court cited the ease of Title Guarantee & Trust Co. v. Stahler, 15 Cal. App. (2d) 239, 59 Pac. (2d) 515, 516, in which ease it is said: “The first point urged upon this appeal is that the court erred in refusing to vacate this attachment. In that appellant is correct.. The vendor, under an executory contract for the sale of real property, having retained title as security for the purchase price, is not entitled to an attachment.” See cases 5 Cal. Jur. 2nd, sec. 26, page 628 and see. 27, page 631.
The contract involved in the instant case provides that when the abstract of title is furnished by the vendors and approved by the vendees, that such abstract shall be returned to the vendors forthwith, and that thereupon the vendors shall deposit with said Security Trust and Savings Bank, in escrow for the purpose of such contract, a deed that shall be legally sufficient to vest in the vendees a merchantable title to the property agreed to be sold, together with said abstract of title, “with instructions to said bank to deliver the said deed and abstract to the vendees upon complete performance of all the obligations of the vendees under this contract; and that otherwise, the said deed and abstract shall be returned to the vendors for cancellation.”
Paragraph 10, supra, of the contract further provides that upon failure of the vendees to make any of the payments required of principal or interest, taxes or insurance premiums, that the contract, at the option of the vendors shall immediately become null and void of no force or effect whatever, and the vendors shall immediately be and become entitled to the possession of the property.
Such provisions of the contract clearly provided a remedy for and security to the vendors for a breach thereof and under the provisions of R. C. M. 1947, sec. 93-4301, precluded a rightful attachment and seizure of defendants’ personal property in an action upon the contract upon which this suit was brought.
In accord with the above cited authorities we hold that the contract sued upon was not one for the direct payment of money and that the payments due under such contract were secured by the provisions of the contract. The order of the district court denying defendants’ motion to dissolve and discharge the attachment is set aside and reversed, the attachment is hereby dissolved and discharged and the cause remanded to the district court for further proceedings not inconsistent herewith. Remittitur will issue forthwith.
MR. JUSTICES ANGSTMAN, ANDERSON and BOTTOM-LY, concur.
|
[
-31,
22,
-12,
31,
-6,
6,
3,
14,
0,
21,
15,
15,
-21,
17,
-44,
25,
4,
-69,
23,
-14,
-20,
-42,
-44,
-35,
50,
7,
14,
-8,
-38,
15,
-33,
28,
-36,
-36,
30,
-9,
8,
26,
-11,
6,
-42,
1,
20,
-55,
6,
8,
14,
-20,
-21,
-33,
13,
10,
-22,
15,
-4,
39,
-4,
-25,
-17,
26,
-15,
-1,
22,
79,
12,
4,
-44,
-23,
2,
-32,
12,
0,
0,
7,
15,
-33,
-47,
-29,
4,
64,
2,
23,
6,
-4,
0,
-8,
-22,
11,
11,
31,
-82,
35,
-60,
12,
11,
-15,
-4,
-48,
-54,
-37,
21,
-2,
46,
49,
-12,
14,
-20,
4,
36,
34,
-19,
-13,
11,
15,
4,
-31,
-46,
0,
15,
-7,
-11,
0,
-24,
-22,
-20,
0,
70,
72,
52,
65,
-36,
-29,
12,
-12,
-66,
-22,
-16,
-48,
5,
0,
22,
4,
-21,
15,
24,
17,
40,
-66,
30,
52,
27,
40,
17,
80,
-14,
-17,
17,
33,
-5,
-3,
22,
23,
-16,
-3,
-1,
-1,
21,
-10,
17,
-12,
47,
39,
-65,
18,
22,
0,
1,
57,
-15,
23,
8,
28,
40,
-34,
-16,
8,
-23,
43,
-7,
42,
-17,
0,
5,
-14,
-38,
13,
18,
12,
9,
35,
-14,
4,
-5,
-10,
0,
-6,
76,
10,
46,
-38,
-94,
-13,
-6,
-6,
-19,
-17,
-39,
-47,
11,
-62,
2,
36,
27,
16,
-14,
9,
-6,
3,
4,
11,
17,
91,
35,
-41,
-28,
-44,
43,
-27,
-32,
61,
-45,
-19,
-16,
-68,
-8,
-15,
-20,
12,
7,
27,
-4,
-51,
-15,
46,
-4,
-4,
0,
-12,
-33,
0,
-26,
-21,
16,
57,
-14,
-31,
-40,
-15,
11,
21,
10,
45,
17,
27,
16,
-25,
51,
23,
8,
28,
31,
-14,
-45,
1,
2,
15,
-5,
-9,
8,
-12,
-41,
-23,
-17,
-54,
-46,
24,
-9,
-53,
25,
-36,
-14,
1,
1,
24,
-28,
-6,
-10,
-17,
8,
16,
-7,
0,
-30,
26,
17,
7,
2,
24,
-10,
-37,
1,
29,
11,
-4,
11,
52,
18,
-7,
3,
28,
-5,
-12,
-73,
-15,
21,
-8,
-1,
-10,
-62,
6,
34,
-3,
-8,
32,
-40,
-4,
31,
6,
21,
52,
-31,
16,
-11,
26,
5,
-65,
1,
-9,
-42,
4,
30,
-21,
-8,
0,
10,
-6,
5,
-33,
7,
-16,
-51,
22,
43,
-17,
3,
12,
-23,
22,
0,
-59,
-39,
-39,
7,
63,
31,
-47,
-24,
15,
-43,
11,
22,
-24,
6,
35,
38,
24,
-43,
1,
-11,
-24,
4,
23,
28,
0,
-41,
-23,
47,
25,
11,
-48,
15,
-4,
0,
17,
18,
11,
-31,
38,
0,
-19,
43,
0,
4,
-86,
29,
11,
29,
-34,
-27,
15,
30,
13,
-32,
8,
36,
11,
-5,
55,
-30,
19,
21,
-12,
25,
27,
-66,
-17,
0,
18,
36,
-4,
-16,
-4,
-63,
2,
-54,
36,
33,
0,
-26,
5,
29,
12,
15,
-52,
20,
-7,
67,
-54,
43,
49,
16,
20,
32,
13,
-34,
-9,
19,
7,
-37,
-25,
-4,
-3,
-28,
34,
8,
36,
-7,
0,
52,
71,
7,
20,
-12,
42,
-11,
19,
-13,
8,
49,
-17,
-1,
-25,
37,
30,
98,
26,
20,
-19,
-8,
10,
22,
-15,
25,
-55,
-36,
24,
29,
20,
53,
38,
-1,
7,
-46,
-15,
-24,
-29,
24,
-13,
19,
-31,
-29,
3,
-22,
-4,
8,
19,
60,
36,
0,
-7,
11,
-22,
2,
4,
-22,
-18,
9,
-28,
3,
-26,
24,
35,
27,
26,
9,
29,
-17,
-94,
-30,
0,
21,
18,
-26,
-48,
12,
-34,
-20,
-32,
0,
34,
53,
15,
40,
3,
46,
-11,
-10,
-13,
-15,
34,
-12,
-4,
-77,
27,
3,
-40,
3,
-29,
-11,
1,
-5,
40,
-43,
10,
-21,
24,
-23,
36,
-38,
29,
-37,
30,
27,
44,
10,
-29,
-14,
28,
19,
32,
9,
71,
-11,
9,
-3,
-52,
8,
-54,
38,
-1,
19,
-41,
-6,
10,
-41,
-34,
-18,
-3,
21,
14,
-12,
6,
54,
39,
4,
26,
-24,
78,
-14,
-43,
14,
11,
-16,
1,
-30,
-16,
23,
-44,
4,
-29,
-15,
36,
38,
-32,
37,
17,
-18,
2,
17,
11,
36,
-13,
14,
-58,
3,
-7,
-28,
62,
12,
27,
23,
0,
-13,
2,
-7,
-7,
9,
-31,
65,
11,
27,
-42,
-55,
-20,
41,
40,
-4,
-1,
-3,
23,
-18,
16,
38,
16,
0,
-36,
-18,
50,
-36,
10,
34,
-9,
13,
5,
31,
-21,
-64,
-16,
-7,
10,
-7,
15,
23,
-23,
-8,
-41,
19,
29,
-27,
-45,
9,
-29,
-22,
-28,
11,
-4,
-8,
-10,
-7,
39,
2,
6,
29,
-18,
-8,
-24,
-25,
37,
1,
45,
-24,
-50,
20,
36,
11,
56,
-1,
-2,
0,
-28,
-1,
4,
-24,
35,
-8,
-33,
-29,
-30,
4,
-82,
58,
-52,
-31,
55,
-6,
-2,
-17,
-8,
14,
-42,
-10,
30,
43,
-30,
26,
8,
-42,
19,
47,
0,
-19,
-2,
0,
25,
-20,
-34,
-37,
11,
18,
13,
14,
-37,
31,
-36,
-49,
10,
-55,
-25,
-4,
59,
2,
-3,
-9,
0,
-11,
-57,
12,
41,
-43,
67,
-54,
-21,
-10,
-52,
74,
18,
-41,
4,
-19,
-21,
-10,
7,
-4,
29,
18,
24,
63,
16,
-16,
41,
-20,
-26,
-25,
-7,
-3,
-17,
8,
-18,
-10,
27,
-26,
4,
-10,
-76,
28,
17,
-17,
-5,
15,
8,
-20,
8,
-24,
43,
-19,
-58,
0,
-1,
22,
13,
-20,
4,
-14,
-27,
-37,
-35,
20,
-29,
-62,
60,
1,
-45,
-51,
72,
6,
25,
4,
17,
9,
-31,
6,
2,
-16,
-3,
-15,
-32,
-4,
1,
-28,
22,
-14,
4,
-57,
13,
49,
16,
1,
-50,
3,
-15,
-18,
36,
0,
18,
48,
-47,
8,
48,
78,
0,
-5,
-40,
13,
0,
16,
-21,
-37,
-3,
-51,
-10,
76,
-9,
-49,
-12,
-28,
11,
-10,
38,
5,
54,
-31,
35,
-7,
-51,
-57,
24,
-32,
0,
-24,
-8,
-27,
13,
27,
37,
5,
34,
-12,
-6,
-38,
-7,
15,
-17,
5,
48,
0,
14,
-2,
-12,
20,
40,
-10,
-9,
0,
-3,
27,
4,
-34,
64,
-47,
-22,
-57,
33,
-10,
-54,
-13,
0,
55,
19,
13,
7,
49,
-26,
-40,
-38,
28,
-6,
-4,
-40,
-69,
-4,
-14,
21,
41,
-5,
3,
27,
10,
-25,
-22,
-37,
-2,
-5,
22,
-18,
47,
-12,
44,
-3,
11,
-30,
-20,
-67,
-47,
-6,
16,
-10,
67,
25,
15,
6,
-23,
-41,
51,
14
] |
MB, JUSTICE ANDEBSON:
There was a judgment for the defendants entered upon a jury verdict in the lower court. The action was brought to recover the reasonable value of the use of certain real property occupied by the defendants.
The plaintiff, B. P. Cook, now deceased, for cause of action alleged that he was the owner, in fee, of the real property in volved in the controversy having derived his title from one Jennie E. Cutshaw. It is alleged that defendants went into possession of the real property under a purported lease and contract of sale from one J. W. Cook and that J. W. Cook had no right or authority to execute the lease or the contract of sale in that he had no right, title or interest whatsoever in and to the said lands and premises. The complaint further alleged what the reasonable value of the use of the premises would be and that a demand for the reasonable value was made upon the defendants. The defendants’ answer was a general denial.
The plaintiff’s title to the property involved in this dispute is proved by the following:
1. A certified copy of a tax deed to Glacier County covering the property. The deed is dated January 2, 1932, and recorded January 4, 1932.
2. A certified copy of an assignment by Anna Cook to Jennie E. Cutshaw of a contract of sale between Glacier County and Anna Cook covering the property. The assignment is dated July 2, 1937, and was recorded July 8, 1937.
3. A certified copy of a quitclaim deed from Glacier County to Jennie E. Cutshaw covering the property. The deed is dated July 8, 1937, which deed was not recorded until February 6, 1946.
4. A decree made and entered in a quiet title action dated October 15, 1947, quieting Jennie E. Cutshaw’s title to the property herein involved.
5. A certified copy of a quitclaim deed from Jennie E. Cutshaw to R. P. Cook covering the property in question and other property. The deed is dated March 25, 1948, and was recorded March 29, 1948.
Ordinarily a record such as this would vest title in R. P. Cook against all claimants. But here we have circumstances which leave little doubt that one J. W. Cook, with the others involved, ■conjured up a nefarious scheme to destroy any possible claim that defendants might make against the property after the defendants had paid out their money under agreement which of itself gives rise to many questions as to the genuineness of R. P. Cook’s title. However, since the filing of the complaint, R. P. Cook had died and J. W. Cook, administrator, is substituted as plaintiff.
As is stated in the complaint, one allegation claims title in R. P. Cook, another claims that defendants purported to get title from J. "W. Cook, who, the complaint alleges, had no title.
An answer in general denial under such circumstances puts in issue every material allegation of the complaint. It goes to the basis of the cause of action and permits the introduction of any proper evidence tending to controvert the facts which plaintiff must establish to sustain his case. 41 Am. Jur., Pleading, sec. 366, page 541. Here the plaintiff must prove, his chain of the title and he invites, by his own pleading, proof by the defendants of the title, if any, of J. W. Cook and the circumstance under which the title was derived by either or both parties.
Defendants, in their proof, were made to show many things and events to establish their title. In fact the scheme that was apparently devised by J. W. Cook and others to embarrass the defendants’ title was so ingenious that it would be extremely hard to reduce all details to writing and in the interest of saving space we do not propose to do so.
Suffice to say that on February 23, 1937, Anna Cook, through her attorney in fact, J. W. Cook, leased the property in question to Ena O. Peterson, who is now Ena O. Restelli, one of the defendants. Subsequent leases by J. W. Cook as attorney in fact for Anna Cook to the defendants were made. Anna Cook bought the property from Glacier County. A contract for deed was duly signed and executed on March 8, 1932. The first lease was made before the assignment of Anna Cook to Jennie E. Cutshaw of the county contract.
On January 15, 1942, Anna Cook gave a deed to J. W. Cook covering the property in question, which deed was recorded on January 17, 1942. This is the first record title appearing in Gla cier County. R. P. Cook, the plaintiff, was a witness to this deed.
On April 20, 1944, J. W. Cook, in his own right entered into an agreement with Peter and Ena O. Restelli, whereby it was agreed that J. W. Cook would quitclaim the property involved upon certain conditions. These conditions having been met, the deed was given.
All of the times in question J. W. Cook had powers of attorney from Anna Cook and Jennie E. Cutshaw. Although the power of attorney from Jennie E. Cutshaw was revoked on March 15, 1944, the document revoking it was not recorded until February 2, 1946.
M^arch 25, 1948, Jennie E. Cutshaw deeded the property to R. P. Cook from which he claims title; on the same day she also deeded the property to R. P. Cook and J. W. Cook, as joint tenants with right of survivorship.
Jennie E. Cutshaw is J. W. Cook’s sister-in-law. R. P. Cook, now deceased, was J. ~W. Cook’s brother and Anna Cook is the wife of R. P. Cook, deceased. J. W. Cook prosecutes the present appeal as administrator of the estate of R. P. Cook, now deceased.
It is interesting to note that most of the instruments from and to the various members of the family when filed for recordation were returned to J. W. Cook or his son by the clerk and recorder of Glacier County.
At no time between 1937 and 1944 did anyone disturb the possession of defendants. Nor was their possession disturbed until on March 27, 1948, one day after she had executed a deed to J. W. Cook and R. P. Cook, as joint tenants and a deed covering the same property to R. P. Cook alone, when a letter was mailed to the defendants by Jennie E. Cutshaw demanding of the defendants rent in the amount of $135 a month or possession.
On December 29, 1948, R. P. Clark sent the following letter to Mr. Peter Restelli, one of the defendants:
“December 29, 1948
“Mr. Peter Restelli
“Cut Bank, Montana
“Dear Sir:
“You must know that Jennie E. Cutshaw is the recorded owner of the West 28 feet of Lot 11, first addition to Cut Bank. “Jennie E. Cutshaw has deeded this property to me.
“You should know that any former lessee or tenant’s claim to this property is only mythical.
“You haven’t paid any rent since the lessee’s contract with Jennie E. Cutshaw expired.
“I prefer good will and will make a worthwhile concession to avert a law suit.
‘ ‘ This proposition must be cleared up.
“Sometimes friends say, ‘I will meet you in church.’ I don’t want to say, ‘ I will meet you in court. ’ You will benefit by averting a law suit.
“Yours truly, R. P Cook.”
A letter from J. W. Cook to “Dear Brother,” obviously R. P. Cook, gives a good picture of the thinking of the entire group. It reads as follows:
“Sunday — 8 p. m.
“Dear Brother.
“I wrote Jen a few lines a few days ago, telling her I had fumbled — thru this period, — war squeeze — each group — trying to absorb the other fellow — and—I look back, five years — fe'see a Brittons — type, keeping cool, — let the other fellow — these,— tenants, fix, pay, or vacate — was the thing to have done, as in Cut Bank — it’s grab first — & the best at it, is the premier. I wrote Jen, — she could & should have demanded this — bakery bldg, rent — or, the possession, after the title was, quieted in her name, that did not necessitate, hiring an atty. That can & usually comes in later — & when any property owners, is forced to proceed by law, — & court.
“Now, as, she has wrote these Restellis, requesting rent &— she rec’d a reply from Mrs. Pete Restelli, asking, — if she Jennie E. Cntshaw — knew I had made a contract — 1
“Jen didn’t answer her that is well enough.
“Now as; she (Jen) has quit clamed it to you it don’t clear' this getting rent, or clear this (contract I signed) therefore, I would say, you are the becoming owner of Jennie E. Cutshaws interest & this 28 feet & bakery bldg. It will sell for $12000 & this one subtenant pays $60.00 for the short half.
“I would register both Restellis & this soda fountain, sub-lease tenant a notice, who is a former operator, got their money easy from 3.00 wheat, & got sucked in for $6010 cash, for Restellis old 10 year old — 2nd hand ice cream machine he bought (used) in 1937 for $2000. Her name is, ‘Marjorie Hughes’ — & her place is called ‘Main Coffee Shop.’ I can see, rushing, at times into ‘bad deal,’ isn’t as smart, as to take ones time to get out of them, if, one can make money by, so doing, & you or I won’t find a deal, or chance again at, even a half of a $12000 slip up. $135 per mo. rent, is 4 % on $40,000 thats why, if I could liquidate everything I’ve got for $75,000 4% on it wouldn’t pay me only half what I have in rent, & that bkry bldg was the best built of the lot, & it wasn’t real heavy construction. I’ve a rusted out water pipe in one bldg, that is leaking, so the replacement costs digging proves our need, put in coffee & be a lot ahead later, on maintenance, as, digging these days costs. There’s a lot of jobs lined up in this county for ’48, — one could do a little profit, —with better personel. Is any — in sight, if the pay was guaranteed here? Best wishes — Jim. W.”
On July 1st R. P. Cook wrote to J. W. Cook as follows:
“Dear Brother
“I am enclosing everything I have to the Cut Bank property. You quoted how much it was worth, I don’t believe you can get a nickel out of it.
“We fished in Minn. & Ontario Cutshaw has all beat I have been with, fish morning noon & night, fish when we had plenty & should of rested, fish, drive the car or lay on the bed. We took a look at some of the land for exchange of the % I have & the % section I deeded to Jen. The hearings are held at the county seats & I expect the local fellow that wants a piece, gets in on tax sale instead of an applicant that wants it for exchange to get out of the game preserve. Jim Ramsey at Beaudette, 77 years old has been a timber cruiser & homestead locater, knows the country. He wouldn’t take any money from me for his chore he done I knew Bert Miller cedar dealer & John Tangren lumber yard at Spooner & farmer & bought poles from both of them. Old Jim said when you buy pole I will charge you. Old Jim has 160 acres on highway 4 acres broke, no buildings. H wants $15 per acre, this might be a good safe investment. He should of picked out good land. I wasn’t interested. Some real Iowa farmers and some norwiegens have silos & good buildings.
“You should know without me telling you R. A. Cook and Lowell Cutshaw will not tie in with you Jen don’t consider you came across for services she rendered you can get a positive answer from me any time on a direct question, don’t assume, find out, Yours truly, R. P. Cook.”
It is apparent that enclosed with R. P. Cook’s letter were all the documents having to do with the property in question.
Counsel for plaintiff make much over the fact that the above exhibits came into the possession of defendants’ counsel through other than, as he puts it, ethical means.
This court is not going to admonish any one for uncovering what appears to be a fraud when the only means by which it was done was brought about by the carelessness of J. W. Cook, who now prosecutes this action as administrator of the estate of R. P. Cook. Here the information was obtained by defendants’ counsel because J. W. Cook unwittingly left the above, as well as other exhibits, in counsel’s office. The only complaint that J. W. Cook may have is that counsel failed to return them.
R. P. Cook, the plaintiff, could have expected that the Restellis may well come into possession of the instruments for what other reason may he have had in sending them to his brother, J. W. Cook, and in so doing, saying, “I am enclosing everything I have to the Cut Bank property. You quoted how much it was worth, I don’t believe you can get a nickel out of it.”
There can be no doubt but what the deed from Jennie E. Cutshaw to R. P. Cook and J. W. Cook, as joint tenants with the right of survivorship, conveyed a title to the property to which J. W. Cook upon the death of R. P. Cook became the owner. It is reasonable to assume that J. W. Cook was constantly making sure that although he didn’t have title himself he was seeing to it that he held something which always gave him a hold in the event his family chose to forsake him in his scheme.
There was sufficient evidence for the jury to hold as it did that the title to this property was always in J. W. Cook, but without this, the deed from J. W. Cook to Peter Restelli and Ena O. Restelli, was a deed which operated to transfer the after acquired property. We find no need to consider the points raised in connection with the title R. P. Cook had because they became resolved by R. P. Cook’s death in that the title merged. If R. P. Cook had any complaints for any fancied loss he sustained they were against J. W. Cook and not the Restellis and the record bears this out.
The agreement for deed between J. W. Cook and the Restellis recites the following: “First party (J. W. Cook) agrees and does herewith at the execution of this agreement, sign a quit claim deed granting the above described premises (the property here involved) to the parties of the second part (the Restellis) * * *”
The case of Henningsen v. Stromberg, 124 Mont. 185, 221 Pac. (2d) 438, is applicable here. Applying the legal principles therein announced we can reach but one conclusion, i. e., that the deed here passed after acquired title.
The deed from J. W. Cook to the Restellis contains almost identical language with the deed in question in the Henningsen Case, supra, and it would be repetitious to recite the rules announced in that case here.
Counsel for plaintiff assign several points of error but upon an examination of them we find none, even though they may be questionable in some eases, which are harmful to plaintiff in the instant case.
For the reasons herein announced the judgment is affirmed.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES ANGSTMAN and BOTTOMLY, concur.
Mr. Justice Davis not being a member of the court when the cause was submitted took no part.
|
[
2,
36,
-18,
15,
22,
-32,
44,
31,
25,
30,
46,
-1,
58,
4,
-27,
28,
-39,
-8,
26,
-48,
-8,
-68,
-33,
-4,
8,
-43,
6,
-68,
-52,
-31,
32,
-20,
-32,
22,
28,
38,
35,
27,
-25,
41,
28,
13,
47,
-54,
18,
56,
-62,
-36,
27,
-23,
21,
-17,
41,
-52,
0,
13,
-35,
31,
-24,
-19,
18,
-64,
-7,
54,
26,
-22,
81,
-56,
22,
-50,
10,
-14,
28,
1,
6,
-12,
-29,
-14,
-55,
-10,
-10,
9,
-1,
-28,
1,
-61,
-3,
-17,
5,
18,
-36,
55,
37,
41,
4,
-3,
-22,
0,
-11,
8,
13,
3,
27,
-9,
-25,
38,
-93,
1,
-16,
44,
-41,
13,
23,
-47,
0,
-18,
41,
-48,
49,
14,
19,
-60,
2,
-62,
22,
48,
-3,
7,
14,
-14,
-28,
17,
-28,
21,
-14,
-15,
-26,
-36,
28,
15,
27,
-26,
-55,
-9,
-20,
-13,
36,
19,
-19,
37,
-56,
41,
37,
40,
-3,
-18,
79,
16,
-2,
-18,
41,
-10,
-17,
-46,
1,
6,
32,
32,
-39,
2,
40,
-18,
-30,
-57,
24,
22,
34,
-62,
5,
0,
35,
2,
50,
7,
9,
-29,
-23,
42,
-42,
65,
13,
0,
1,
31,
-6,
-2,
6,
12,
29,
-7,
22,
-16,
-22,
-7,
-14,
42,
112,
36,
22,
44,
-48,
-3,
-7,
16,
-25,
18,
23,
-31,
21,
-23,
35,
18,
-24,
-15,
11,
-7,
30,
-6,
34,
-23,
-43,
20,
-23,
-12,
-21,
-49,
20,
20,
-28,
33,
-5,
-7,
-24,
1,
-25,
2,
-47,
-2,
-47,
58,
-63,
-24,
-37,
64,
-20,
30,
-24,
29,
-43,
-41,
36,
-15,
-3,
-9,
-13,
-29,
25,
-3,
-22,
39,
-9,
36,
13,
27,
-33,
-1,
-13,
-36,
-35,
-8,
30,
-26,
47,
-1,
37,
27,
19,
60,
-5,
-24,
-15,
-9,
-15,
-92,
39,
18,
-27,
-65,
-8,
-31,
-1,
-9,
-2,
-22,
-72,
-27,
9,
34,
-18,
5,
-7,
-2,
-8,
-29,
61,
3,
-38,
-5,
4,
-44,
57,
-1,
-33,
-26,
-1,
48,
-15,
14,
-43,
-13,
53,
-1,
-28,
5,
17,
-33,
6,
-13,
17,
55,
12,
16,
-5,
1,
30,
16,
2,
11,
-25,
-38,
13,
-1,
-61,
14,
-12,
-22,
-21,
18,
-41,
-5,
49,
-9,
-4,
-24,
-47,
25,
6,
-58,
4,
7,
-40,
24,
-9,
14,
30,
0,
17,
10,
-32,
29,
20,
-3,
25,
19,
3,
9,
5,
-26,
-10,
-32,
-55,
1,
-4,
33,
23,
2,
-54,
-53,
-39,
-8,
4,
76,
28,
-19,
-13,
-9,
-3,
6,
-53,
9,
58,
-23,
28,
-36,
14,
-3,
3,
24,
-18,
62,
7,
-13,
42,
32,
6,
-42,
20,
12,
-27,
27,
-20,
35,
0,
0,
60,
15,
18,
-27,
6,
33,
18,
-16,
34,
18,
-16,
-2,
1,
-3,
30,
60,
-35,
63,
-10,
-7,
-23,
7,
91,
-55,
3,
0,
5,
23,
23,
-6,
29,
-6,
19,
-33,
-48,
60,
38,
65,
26,
-34,
-22,
41,
33,
28,
10,
21,
-8,
-14,
-35,
-7,
-10,
-21,
-41,
27,
21,
3,
72,
-21,
15,
8,
-8,
-12,
-9,
0,
45,
8,
-24,
20,
-31,
-32,
9,
44,
35,
-26,
19,
83,
-21,
-11,
13,
-40,
-19,
-6,
80,
2,
6,
39,
16,
18,
-49,
-77,
-53,
-32,
38,
6,
6,
-81,
-77,
-13,
-48,
-11,
-5,
-34,
19,
27,
48,
-46,
-13,
19,
50,
52,
-86,
19,
14,
-34,
42,
-19,
8,
-27,
44,
18,
-18,
3,
13,
-39,
16,
-22,
5,
49,
-14,
-20,
35,
8,
-18,
-26,
-1,
13,
-48,
-50,
7,
-53,
-20,
-32,
-37,
-31,
46,
8,
-42,
-6,
11,
-17,
2,
32,
46,
83,
46,
4,
-61,
11,
-80,
-35,
-28,
-23,
-7,
-6,
16,
8,
-12,
1,
-46,
-18,
22,
-49,
0,
-39,
-5,
-18,
17,
22,
-51,
23,
51,
11,
23,
-74,
-12,
22,
39,
-29,
23,
-17,
61,
5,
-46,
46,
-36,
-47,
32,
-11,
29,
45,
-2,
-21,
23,
-7,
-38,
-42,
-8,
-35,
-59,
0,
-27,
-11,
0,
4,
4,
-65,
33,
-10,
-20,
4,
60,
-32,
-65,
-47,
34,
-22,
57,
-10,
-40,
-11,
-35,
-12,
9,
-20,
3,
30,
52,
-9,
-1,
79,
-79,
-15,
-12,
29,
4,
-24,
67,
-41,
46,
-14,
0,
-11,
13,
0,
3,
12,
1,
10,
-4,
47,
6,
5,
8,
16,
30,
-25,
3,
-50,
-14,
21,
-36,
24,
23,
-26,
-12,
-44,
20,
14,
-7,
16,
-19,
-14,
52,
27,
16,
8,
23,
-81,
16,
-45,
17,
-4,
70,
36,
0,
24,
76,
43,
-23,
61,
-14,
36,
17,
-19,
-8,
-7,
1,
-35,
7,
-29,
12,
-11,
34,
-29,
-19,
0,
3,
6,
33,
36,
25,
-13,
2,
22,
-37,
-19,
61,
16,
-48,
-30,
-7,
23,
10,
-65,
0,
-34,
-39,
-2,
-25,
-21,
-30,
-1,
10,
46,
60,
-5,
0,
-45,
-58,
-31,
-24,
-11,
35,
36,
7,
31,
-45,
9,
0,
-21,
-46,
-21,
26,
-48,
-67,
-20,
-15,
23,
11,
26,
-14,
-16,
-40,
26,
-29,
28,
-10,
-32,
-6,
-44,
-7,
1,
4,
34,
24,
-22,
-5,
-43,
-11,
63,
29,
-32,
-24,
-34,
-62,
27,
-7,
-21,
-15,
5,
-12,
-58,
-14,
65,
-4,
-7,
-2,
-12,
-49,
-10,
0,
8,
3,
7,
39,
-32,
7,
25,
62,
75,
-24,
-18,
-30,
8,
5,
-14,
-8,
-24,
-28,
-11,
19,
34,
15,
25,
-14,
35,
-30,
37,
17,
63,
53,
7,
45,
-33,
18,
-19,
5,
13,
-46,
3,
-20,
75,
40,
5,
-4,
25,
-58,
8,
9,
-9,
-5,
20,
-29,
-46,
10,
-3,
-28,
13,
-10,
16,
-5,
-35,
31,
-3,
58,
31,
20,
-64,
10,
-51,
22,
-25,
28,
-7,
30,
-3,
20,
-9,
-23,
-7,
-5,
12,
-18,
13,
-32,
62,
-13,
64,
11,
-2,
-14,
0,
-13,
-33,
-18,
33,
24,
-15,
56,
-4,
8,
17,
-11,
-38,
-52,
36,
-8,
48,
7,
36,
-29,
18,
-33,
-26,
41,
-38,
-48,
3,
21,
-40,
62,
-7,
16,
16,
11,
-25,
-17,
-38,
21,
-19,
1,
42,
-6,
-1,
-3,
33,
-9,
41,
-9,
28,
18,
2,
14,
-66,
11,
-13,
14,
-19,
-18,
24,
11,
16,
-10,
8,
-71,
-28,
0,
29,
6,
-22,
14,
-40,
21,
12,
40,
-2,
-47,
-40,
27,
14,
-16,
24,
0,
5,
58,
-13,
-6,
-11,
-1,
14
] |
HON. "W. W. LESSLEY, District Judge
(sitting in place of MR. JUSTICE ANGSTMAN, disqualified).
This is an appeal from a judgment in favor of defendants, based on a jury verdict, in an action brought by plaintiff to recover damages caused by flooding of plaintiff’s property, as the result of the breaking of two dams owned by the defendant Florence V. Anderson.
These are the pertinent facts from the record: August Vaux is the father of Florence V. Anderson, one of the defendants; defendant S. A. Anderson is the husband of Florence V. Anderson. Two dams were constructed by August Vaux upon his land; these dams were across the channel of Lone Tree Creek, approximately three miles west of Sidney, Montana. The lower dam was completed in 1936; the upper dam was completed in 1944, but was enlarged and a new spillway installed during the winter of 1947-1948; the work started in November of 1947 and continued through that winter to completion in the spring of 1948. The upper dam was attached to a north hill (largely gravel) and to a south hill (largely clay). In the construction of the dam, sand and gravel were taken from the north hill and dumped in the north side of the dam on the downstream side. It was mostly clay that formed the south side of the dam; no trench was dug on the downstream side of the old dam before construction was started, nor was the dam “keyed” into the north abutment, nor were the gravel, sand and clay mixed, nor packed, nor sprinkled.
The spillway, prior to this construction, ran to the south from the upper dam, during the enlargement process it was changed to run north through the gravel hill and finally into what is called Bronson Creek. The spillway as constructed measured at its throat 64 square feet with a 12 foot width at the bottom; this meant that with the dam full, the spillway would allow a flow through it of 930 cubic feet per second. The free board was 4.6 (this is the distance between the highest point of the spillway and the lowest point on the dam). As so designed and built during the enlargement process, the spillway crossed an old county road; a bridge was constructed over the spillway by the County of Richland. This bridge collapsed somewhere near the time the upper dam went out.
The lower dam held about 331 acre feet of water (approximately 107,856,350 gallons of water) and the enlarged upper dam about 680 acre feet (approximately 220,000,000 gallons of water).
On March 26, 1951, at about 2:15 a. m., the upper dam broke and carried with it the lower dam. The water and ice so released caused the damage to plaintiff’s property for which plaintiff sought damages.
The history of the ownership of the land on which dams were constructed and which is pertinent to our decision is as follows: August Vaux acquired the land in 1912; he personally occupied and farmed it until the spring of 1948; he then leased it to one Clifford Jensen for a two year term, ending January 1, 1950. Until his illness in April 1949 Vaux personally handled and operated his business, and had provided in the Jensen lease that he retain control of the lands so leased. On June 25, 1945, Vaux executed a deed (he had written in longhand) of the lands to his daughter Florence V. Anderson; he kept this deed until July 1949, when he instructed Florence to take the deed and place it on record. This she did. From and after July 1949, Florence V. Anderson maintained and operated the dams and managed the ranch lands on which they were located. She knew of the enlargement of the upper dam, construction of the spillway, she was out at the dams at various times, she was interested, and if any redressing was needed in her opinion, she ordered it done to the dams.
The defendant, S. A. Anderson, husband of Florence, had been out to the ranch lands and to the dams. All other facts spelled out by the testimony in this case are clearly in conflict.
Appellant’s six specifications of error may be singularized as approaches to the application of the res ipsa loquitur doctrine, which appellant insists, controls the case now before us. Further, that under the authority of Whitney v. Northland Greyhound Lines, Inc., 125 Mont. 528, 242 Pac. (2d) 257, certain instructions given by the lower court, over plaintiff’s ob jection, are clearly error, as being incompatible with tbe doerine of res ipsa loquitur.
The court did allow an instruction on the doctrine of res ipsa loquitur to go to the jury (court’s instruction 23). It reads as follows: “You are instructed that when an instrumentality which causes injury, without any fault of the injured person, is under the exclusive control of the defendants at the time of the injury, and the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care, then the law infers negligence on the part of the ones in control as the cause of the injury.”
It is equally true under the Whitney case, supra, that the giving of court’s instruction 28 was error. It is: “You are instructed that negligence on the part of the defendant is not to be presumed. The plaintiff is required to prove the negligence of the defendant as is alleged in its complaint by a preponderance of the evidence and the negligent act or acts proven, if any, must be the particular acts alleged in plaintiff’s complaint. If you find that the evidence bearing on the question of negligence on the part of the defendant is evenly balanced or it preponderates in favor of the defendant then in that case the plaintiff cannot recover.”
The court refused defendants’ offered instructions 19 and 20, which deal with an analysis and refinement of the same res ipsa loquitur doctrine. Appellant argues error in giving defendants’ offered instruction 8 as court’s 31 in that it is error under the doctrine insisted upon by appellant, as dominating the law side of this case.
The impounding of water in a reservoir for irrigation is an important and integral part of this state’s economy. It is a public use. Constitution of Montana, Art. Ill, section 15. This Court has held that public interest requires that water be conserved and not allowed to waste to place the arid lands of this state to productive use. Donich v. Johnson, 77 Mont. 229, 250 Pac. 963; Federal Land Bank v. Morris, 112 Mont. 445, 116 Pac. (2d) 1007. The right to gather and store water in a reservoir'for irrigation purposes is lawful business. Jeffers v. Montana Power Co., 68 Mont. 114, 217 Pae. 652; Ryan v. Quinlan, 45 Mont. 521, 124 Pac. 512. Under tbe circumstances in the case at bar tbe doctrine of res ipsa loquitur has no application. We so bold. Tbe giving of tbe instruction on it was therefore error.
It now remains for us to decide whether tbis error is sufficient to require a reversal of tbe verdict of tbe jury and judgment based thereon. Elsewhere in tbe instructions in tbis :case tbe jury were told that tbe burden was on tbe plaintiff to prove by a preponderance of tbe evidence that tbe negligence of tbe defendants was tbe proximate cause of tbe injury. An examination of tbe instructions given in light of tbe evidence shows tbe effect of giving tbe res ipsa loquitur instruction was harmless. It was error against tbe defendants and in favor of tbe plaintiff.
In Harding v. H. F. Johnson, Inc., 126 Mont. 70, 82, 244 Pac. (2d) 111, 117, it is said: “Defendant may not complain of an instruction more favorable to it than tbe facts and law warranted.” Citing Gonzalez v. Nichols, 110 Cal. App. 738, 294 Pac. 758; Gerdes v. Pacific Gas & Elec. Co., 219 Cal. 459, 27 Pac. (2d) 365, 90 A.L.R. 1071; and Edwards v. Gullick, 213 Cal. 86, 1 Pac. (2d) 11.
Tbe claimed error was invited by tbe appellant because its counsel offered the instruction; tbis apparent conflict was of its own doing of which it now seeks to take advantage.
Appellant’s only other assignments of error that do not deal with tbe res ipsa loquitur doctrine concern tbe purported negligent construction of a county bridge as an intervening independent cause. Tbe trial court covers tbis question in its instruction 20 (offered by appellant). Court’s instruction 20 is as follows: “You are instructed that proximate cause is that which, in a natural and continuous sequence, unbroken by any new, independent cause, produces tbe injury, and without which tbe injury would not have occurred.” Tbe trial court’s instruction 22 was offered by appellant. It reads: “You are instructed that in determining the proximate cause of an injury or accident we must always look to the succession of events existing in every transaction more or less depending each upon the preceding event, and it is the duty of the jury to look to such succession of events and ascertain whether they are naturally and probably connected with each other by a continuous sequence or are dissevered by new and independent' agencies and this must be determined in view of the circumstances existing at the time. If this sequence of events leading up to the injuries complained of is dissevered or unbroken by an intervening independent cause then there can be no recovery in this ease.”
Having considered then, the other specifications of error, we find no reversible error in refusing the instruction so offered by appellant.
Judgment is affirmed.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES ANDERSON, DAVIS, and BOTTOMLY, concur.
|
[
-14,
74,
59,
-15,
31,
-62,
11,
7,
22,
4,
-31,
-24,
-11,
-35,
28,
-26,
-58,
-36,
-24,
-6,
-51,
-33,
-13,
-38,
2,
18,
2,
-32,
-29,
29,
-30,
-18,
-68,
-22,
49,
57,
7,
42,
-37,
-1,
-51,
-10,
15,
-4,
-7,
66,
18,
51,
-8,
58,
-41,
-65,
39,
-2,
-34,
-65,
12,
14,
-26,
36,
-9,
-34,
36,
20,
31,
38,
1,
-45,
45,
-26,
-16,
-5,
48,
22,
33,
-52,
13,
-42,
38,
-29,
-43,
27,
-8,
14,
-7,
-54,
-84,
25,
59,
69,
-37,
-29,
11,
15,
-6,
-47,
-13,
-37,
-25,
21,
36,
-37,
97,
21,
-27,
-50,
-50,
50,
32,
21,
-13,
27,
16,
35,
-59,
34,
57,
-63,
-46,
-33,
-24,
62,
11,
16,
-87,
-1,
-34,
19,
28,
11,
-20,
-30,
-48,
18,
10,
19,
-4,
-15,
22,
-30,
22,
-30,
17,
-6,
-39,
70,
63,
-14,
35,
-21,
-42,
-10,
39,
-22,
24,
-11,
-6,
-14,
-10,
14,
29,
-3,
-13,
-21,
-17,
-2,
16,
-21,
47,
-40,
25,
-9,
0,
-1,
20,
20,
0,
-68,
19,
64,
36,
-46,
7,
40,
-36,
-44,
-16,
96,
-25,
11,
67,
-81,
-4,
13,
-23,
38,
-1,
-10,
18,
35,
31,
29,
-10,
32,
-55,
56,
-32,
33,
28,
-21,
70,
-5,
5,
39,
37,
20,
5,
57,
3,
-41,
-13,
15,
27,
12,
24,
-21,
6,
-14,
41,
-43,
36,
14,
26,
-4,
52,
8,
-17,
31,
-34,
-23,
-13,
-15,
-48,
28,
51,
30,
-43,
-59,
0,
37,
-35,
-50,
-70,
21,
-7,
21,
6,
52,
-43,
-66,
6,
-22,
37,
-27,
22,
-40,
-59,
-35,
-29,
-27,
12,
10,
29,
-46,
-54,
-42,
-1,
53,
-13,
46,
19,
-76,
-13,
-8,
40,
-48,
18,
46,
-20,
0,
-7,
-14,
12,
-38,
-25,
40,
37,
-18,
14,
-19,
-31,
-22,
0,
-28,
11,
42,
-47,
-26,
-28,
12,
-41,
24,
-12,
-19,
-11,
16,
-20,
12,
-70,
18,
64,
22,
-6,
6,
-19,
31,
-28,
27,
-21,
42,
-11,
23,
-31,
-1,
-7,
-45,
-2,
20,
0,
-3,
13,
-41,
-16,
-4,
-40,
15,
7,
12,
-24,
-16,
-9,
22,
2,
-1,
27,
-71,
-17,
0,
-41,
-18,
2,
55,
-5,
27,
14,
4,
-3,
-10,
83,
-30,
-32,
32,
-17,
23,
95,
63,
-31,
24,
-36,
-1,
11,
20,
41,
-16,
3,
2,
48,
-92,
-67,
41,
-38,
-41,
-20,
42,
44,
-18,
18,
-6,
1,
-32,
5,
17,
15,
62,
-24,
8,
-15,
-13,
-15,
-23,
-7,
-52,
59,
-23,
35,
20,
-28,
8,
-38,
42,
33,
29,
-15,
-26,
-3,
5,
94,
-36,
14,
27,
35,
69,
7,
31,
8,
31,
-5,
8,
17,
-6,
-5,
14,
23,
-44,
-5,
36,
65,
9,
46,
0,
29,
68,
-18,
-24,
14,
28,
8,
-16,
-36,
-4,
-13,
45,
2,
-22,
-32,
26,
18,
-16,
-7,
56,
5,
53,
-26,
-51,
-6,
17,
36,
16,
39,
-103,
86,
-11,
-16,
-19,
21,
-19,
10,
15,
25,
6,
0,
46,
-56,
-39,
21,
1,
22,
-1,
-5,
-21,
-57,
20,
25,
-14,
17,
48,
15,
7,
-9,
90,
1,
-88,
1,
-30,
-20,
15,
24,
7,
28,
14,
-12,
-1,
-60,
-2,
-14,
0,
-47,
-23,
34,
0,
-35,
-36,
-57,
-30,
-29,
-45,
-24,
29,
3,
-11,
17,
-16,
77,
4,
-36,
-39,
-14,
-64,
-17,
-6,
2,
1,
24,
-2,
5,
31,
-64,
-86,
21,
-2,
74,
30,
-35,
-48,
18,
60,
0,
-2,
30,
-42,
-22,
58,
-44,
-50,
-7,
15,
-68,
33,
6,
47,
11,
-23,
-50,
-14,
-63,
47,
71,
-6,
9,
4,
-16,
-30,
-1,
0,
12,
-2,
-51,
-8,
-25,
21,
12,
-55,
3,
79,
50,
23,
-51,
10,
-14,
-7,
3,
60,
32,
73,
37,
31,
4,
-54,
-6,
-32,
107,
-54,
12,
52,
-12,
-2,
-23,
-5,
-79,
-13,
-32,
34,
-41,
-5,
11,
-25,
15,
-2,
-11,
65,
-6,
13,
16,
6,
-72,
-87,
38,
-46,
-16,
0,
-22,
-18,
-7,
-4,
66,
-46,
24,
-25,
2,
-48,
37,
14,
11,
-17,
-75,
-3,
-3,
73,
-54,
-37,
40,
-86,
-46,
12,
-15,
-24,
15,
22,
16,
-6,
71,
17,
-72,
0,
-7,
-1,
41,
52,
13,
22,
4,
18,
7,
53,
-30,
-2,
7,
-30,
-36,
-64,
14,
-21,
47,
25,
-33,
17,
-7,
-72,
-20,
40,
-32,
60,
3,
-14,
-45,
-7,
20,
-22,
-68,
-15,
14,
-32,
-38,
65,
-33,
-7,
28,
-4,
-38,
91,
9,
62,
-10,
17,
29,
40,
-27,
21,
8,
-32,
51,
-86,
6,
2,
-39,
-10,
-4,
-29,
-22,
-61,
-21,
20,
44,
6,
-56,
-10,
-1,
22,
-18,
-34,
8,
-22,
-45,
-18,
-30,
-44,
-9,
-25,
-12,
10,
-47,
23,
9,
-21,
44,
-19,
-19,
-12,
34,
17,
-44,
-12,
-39,
-22,
45,
2,
50,
45,
0,
18,
-37,
28,
59,
34,
-50,
14,
-11,
34,
-53,
-12,
-31,
52,
60,
84,
39,
-54,
21,
44,
-5,
35,
0,
23,
36,
4,
49,
-25,
-55,
21,
14,
18,
5,
-4,
-33,
-28,
53,
30,
-28,
-23,
0,
-10,
58,
13,
15,
23,
69,
-24,
72,
24,
-20,
-91,
-49,
21,
-21,
-48,
4,
-19,
44,
48,
19,
78,
30,
-3,
52,
23,
3,
18,
-21,
-37,
1,
48,
7,
-49,
-42,
13,
-1,
24,
63,
-2,
-80,
26,
-29,
20,
0,
20,
-11,
49,
-43,
-31,
15,
0,
12,
-62,
-36,
-22,
-31,
-7,
23,
20,
49,
21,
19,
10,
26,
28,
-49,
-11,
-27,
0,
18,
1,
50,
5,
-17,
-25,
-58,
-55,
-33,
25,
47,
13,
-25,
-29,
-6,
-28,
-4,
23,
-38,
-6,
-11,
52,
3,
-22,
21,
17,
-36,
27,
-19,
40,
-40,
60,
5,
-26,
-33,
-47,
-31,
15,
63,
-42,
-19,
-5,
46,
-61,
15,
29,
33,
21,
49,
-39,
-54,
-20,
60,
-7,
53,
15,
78,
17,
-4,
73,
55,
-37,
-33,
-13,
-18,
-27,
11,
7,
20,
-5,
-19,
15,
-22,
-15,
-10,
-41,
36,
24,
-10,
-27,
25,
-29,
22,
30,
-4,
8,
42,
-26,
-51,
1,
28,
36,
-38,
26,
-2,
1,
22,
20,
-49,
-35,
-16,
25,
2,
-10,
-54,
30,
27,
17,
-3,
-52,
43,
-5,
-30,
-1,
-50,
-64,
-25,
37,
18,
-13,
46,
-49,
-23,
5,
-10,
14
] |
MR. JUSTICE ANDERSON:
Prank A. Benolken died the 25th of March 1940. Prior to his death he had registered with the general recorder of marks and brands of the State of Montana the brand P/B. After his death decedent’s wife, Phoebe Benolken, continued to operate the ranch where the stock bearing the brand P/B were run. The brand expired December of 1941 and was not reregistered by anyone connected with the estate of deceased. Later the P/B brand was recorded in the name of Phoebe Benolken.
Phoebe Benolken died in 1947, leaving a will which was admitted for probate. By a Recree of distribution the brand P/B and the stock bearing the brand were distributed, under the provisions of her will to various persons.
The appellant, a son and heir of Prank A. and Phoebe Benolken, had full notice of the probate proceedings in the estate of Phoebe Benolken and made no attempt to protest the will, nor was any other attempt made in any way against any of the probate proceedings.
In this action, however, Leo Benolken appears in the capacity of the administrator of the estate of Frank A. Benolken, deceased, a stranger to the probate proceeding in the estate of Phoebe Benolken, deceased. Here his complaint is directed to the brand which he says should be recorded under the laws of Montana in his name as administrator of the estate of Prank A. Benolken, deceased.
The appellant here sought, in effect, by his complaint below, to mandamus the recorder of marks and brands. His effort was directed at getting control of the brand F/B which brand, of course, would be prima facie evidence of the ownership of all livestock bearing the brand. Mandamus clearly would not be against the recorder of marks and brands because there is no clear legal duty upon the recorder to do what plaintiff required by his complaint. R.C.M. 1947, section 93-9102; State ex rel. Kennedy v. District Court, 121 Mont. 320, 194 Pac. (2d) 256, 2 A.L.R. (2d) 1050; State ex rel. Peterson v. Peck, 91 Mont. 5, 4 Pac. (2d) 1086. Accordingly, as to Ralph Miracle, the recorder of marks and brands, the judgment dismissing the action was correct for the reason that the brand F/B expired during December 1941 and under the provisions of R.C.M. 1947, section 46-605, the brand itself was open to record by anyone including Phoebe Benolken.
An examination of plaintiff’s complaint leaves little doubt as to what was sought and in its final analysis the recorder of marks and brands is called upon to perform an act, to-wit: to issue the plaintiff the brand described in the complaint.
Upon the filing of the complaint and upon order to show cause the intervenors, who are the beneficiaries under the will of Phoebe Benolken, filed their complaint in intervention and the. district judge made an order granting leave to intervene in said action as defendants and no more.
Whereupon intervenors cross complained and asked for specific relief in the nature of a suit to quiet title by their cross complaint. The court below allowed proof to be taken far out and beyond the limits necessary to determine the issues of mandamus but far short of enough to determine the issues relating to an attempted, quiet title suit of personal property. At least this is so insofar as completing a record upon which we, as a reviewing court, could logically determine the questions attempted to be raised. Nonetheless the court below made finding of fact and conclusions of law upon which is based the following judgment:
“Now, Therefore in consideration of the premises, the Findings of Fact and Conclusions of Law hereinabove set forth,
“It Is Ordered, Adjudged and Decreed that the plaintiff take nothing by this action; that his complaint be dismissed and that the intervenors have and recover their costs herein expended, in the sum of $.................
“It Is Further Ordered, Adjudged and Decreed that the intervenors herein are the owners of the following described brand, to-wit: F/B, which brand was used and applied on the right ribs of cattle and on the right shoulder for horses, and all of the livestock in their possession bearing said brand and the owners of and entitled to the proceeds from the sale of any such livestock which may have been sold bearing said brand since the commencement of this action.”
We hold that the action here was clearly a mandamus action, and no more, notwithstanding the fact that a casual reading of plaintiff's complaint may indicate otherwise.
Under the circumstances the intervenors, who were entitled to intervene as defenda/nts according to the district court's order, could not broaden the scope or functions of the proceedings in mandamus by urging claims or contentions which have their proper forum elsewhere. State ex rel. City of Miles City v. Northern Pac. Ry. Co., 88 Mont. 529, 295 Pac. 257; Sturner v. James A. McCandless Inv. Co., 87 Colo. 23, 284 Pac. 778; La Mesa Lemon Grove & Spring Valley Irr. Dist. v. Halley, 195 Cal. 739, 235 Pac. 999; Wright v. Jordan, 192 Cal. 704, 221 Pac. 915; 55 C.J.S., Mandamus, section 254, page 478; Lindsay-Strathmore Irr. Dist. v. Wutchumna Water Co., 111 Cal. App. 707, 296 Pac. 942; Independent School District of Danbury v. Christiansen, 242 Iowa 963, 49 N.W. (2d) 263; State ex rel. Nelson v. Butler, 145 Neb. 638, 17 N.W. (2d) 683.
Under R.C.M. 1947, section 93-3415, the intervenors are not entitled to maintain their cross-complaint unless that cross-complaint relates to or depends upon the duties here asserted by the plaintiff against the defendant Miracle and by Miracle, the defendant, denied. Whether the intervenors are the owners of this brand, the animals bearing the brand, and of the proceeds of the sale of animals thus branded presents a question which bears no relation to the duty of the general recorder of marks and brands to issue a certificate to the plaintiff. And it is this duty which constitutes the subject-matter of this proceeding. The cross-complaint here was improperly filed because it does not fall within the definition of the cross-complaint permitted by section 93-3415, supra. This court said in State ex rel. City of Miles City v. Northern Pac. Ry., supra [88 Mont. 529, 295 Pac. 262] : “* * * they [intervenors] may not, however, broaden the scope or functions of the proceeding in mandamus, but may oppose or resist the granting of the writ, as here.”
The language in that case means that the intervenors by their cross-complaint may not transform a proceeding in mandamus against a public officer into a private dispute between them and the plaintiff to settle disputed property rights which do not relate to, or depend upon, the duty of the officer against whom the proceeding is brought. We see no reason to depart from the authority of State ex rel. City of Miles City v. Northern Pac. Ry., supra.
The dispute, if any, between the intervenors and the plaintiff must first be resolved in an action directed to that end before there could be any duty imposed upon the defendant Miracle to do any act other than those required of him under section 46-605, supra.
Accordingly the judgment below is reversed insofar as it adjudicates title to either the brand F/B or the cattle involved or the proceeds from the sale of any livestock bearing the brand F/B and is affirmed in dismissing the complaint of plaintiff. Bach party litigant shall pay his own costs.
MB. CHIEF JUSTICE ADAIB, and MB. JUSTICES ANG-STMAN, DAVIS and BOTTOMLY, concur.
|
[
44,
26,
60,
-25,
54,
-74,
44,
30,
24,
-8,
3,
-9,
35,
61,
-48,
66,
55,
-59,
7,
-49,
33,
-47,
-46,
-33,
25,
-24,
-92,
-39,
-22,
-40,
15,
-27,
-18,
-55,
38,
42,
38,
-11,
16,
4,
25,
-10,
73,
-13,
17,
48,
-5,
-16,
8,
-22,
-2,
-58,
50,
-2,
-11,
-63,
-33,
21,
-6,
-13,
-21,
-50,
86,
9,
0,
10,
63,
3,
-16,
-7,
93,
2,
-12,
4,
-48,
-76,
25,
-1,
16,
-47,
6,
-30,
-19,
-16,
-1,
-28,
-3,
9,
23,
21,
-32,
1,
-10,
4,
-5,
-41,
-19,
9,
-70,
56,
26,
22,
27,
-9,
9,
17,
-52,
39,
-24,
31,
4,
2,
-27,
29,
60,
-5,
-46,
-8,
-26,
-33,
-19,
-38,
-25,
-10,
-43,
29,
0,
88,
55,
14,
-23,
43,
-10,
9,
17,
-19,
-39,
-30,
-29,
-49,
25,
38,
-85,
-51,
26,
32,
57,
-17,
36,
-11,
-50,
59,
-2,
41,
21,
-51,
50,
38,
24,
13,
28,
5,
37,
15,
20,
14,
8,
-30,
25,
-89,
-33,
53,
-1,
-17,
30,
86,
47,
-79,
21,
-8,
-20,
21,
7,
-31,
-37,
6,
36,
-24,
0,
-5,
14,
-37,
58,
38,
-40,
-26,
-49,
-4,
49,
-23,
44,
43,
-11,
-11,
41,
27,
13,
-32,
14,
-38,
-28,
1,
19,
16,
-118,
-58,
18,
-7,
-21,
4,
-32,
-47,
20,
10,
45,
-23,
42,
-76,
-64,
-8,
-66,
51,
2,
-11,
2,
-36,
5,
-48,
-20,
46,
0,
-86,
-29,
-42,
8,
-12,
-16,
4,
23,
-10,
-25,
17,
24,
38,
8,
1,
5,
62,
17,
12,
40,
-11,
-33,
11,
28,
-23,
14,
6,
-5,
52,
38,
-28,
43,
-38,
2,
-68,
15,
-72,
-23,
-53,
75,
34,
0,
-33,
3,
9,
-35,
15,
-45,
35,
-17,
88,
2,
-40,
1,
46,
24,
-33,
39,
-8,
-15,
109,
0,
44,
-47,
-3,
-12,
-10,
-7,
-16,
-40,
-4,
14,
-25,
-47,
7,
-5,
24,
-10,
41,
-54,
-15,
-4,
42,
4,
33,
-36,
-4,
55,
33,
2,
-24,
-13,
0,
5,
-37,
41,
10,
-49,
36,
19,
28,
11,
47,
-30,
2,
39,
22,
-28,
38,
-2,
-1,
6,
-1,
-6,
0,
-2,
-36,
-14,
20,
-24,
1,
-21,
2,
-68,
11,
-41,
-9,
-27,
-47,
-36,
18,
16,
-32,
-5,
30,
-40,
-13,
23,
21,
-5,
-17,
-25,
7,
17,
27,
14,
6,
-23,
-28,
-10,
40,
-32,
44,
1,
-16,
-22,
-23,
-8,
2,
0,
81,
-54,
-42,
15,
-6,
32,
-7,
-16,
53,
6,
37,
9,
-79,
53,
-11,
14,
-35,
-45,
35,
44,
-14,
10,
-2,
-23,
-51,
18,
46,
-12,
60,
27,
45,
-8,
23,
34,
-9,
9,
18,
36,
17,
60,
-8,
0,
14,
26,
74,
8,
17,
54,
-7,
-18,
-1,
-24,
-33,
-46,
40,
100,
37,
-43,
-14,
20,
-16,
56,
-53,
12,
-2,
92,
-51,
0,
64,
24,
-10,
16,
-22,
-64,
16,
20,
-2,
-21,
29,
-53,
37,
21,
-54,
45,
7,
-40,
-35,
10,
42,
36,
-7,
-36,
41,
-47,
-35,
-54,
0,
90,
0,
9,
-52,
28,
60,
47,
43,
41,
-1,
-59,
8,
-43,
-48,
42,
55,
59,
-20,
62,
19,
-71,
79,
8,
-2,
-70,
6,
-84,
-34,
127,
19,
21,
-41,
-46,
13,
-19,
-44,
21,
-56,
92,
-32,
-15,
-56,
3,
-5,
35,
15,
-49,
-11,
53,
-64,
12,
-86,
-6,
-35,
-4,
-6,
9,
11,
57,
4,
-37,
23,
54,
37,
-71,
49,
17,
-35,
-13,
-31,
-13,
-9,
-47,
-30,
22,
-21,
38,
22,
18,
-51,
-38,
-46,
-6,
2,
-49,
10,
-16,
53,
-7,
20,
7,
-71,
-10,
3,
-51,
5,
-14,
5,
2,
-63,
-1,
3,
-37,
14,
60,
21,
-31,
-17,
-50,
2,
3,
3,
-8,
12,
-11,
7,
-7,
1,
-20,
-37,
1,
71,
15,
-3,
41,
-7,
31,
15,
-5,
19,
41,
44,
22,
-55,
21,
-21,
-63,
-4,
-24,
37,
-34,
-62,
37,
-92,
21,
-6,
-32,
-101,
1,
-71,
72,
0,
11,
7,
16,
66,
-29,
-37,
-39,
-23,
3,
2,
-55,
-3,
2,
-27,
1,
54,
-1,
-43,
-55,
24,
92,
4,
-74,
28,
-45,
17,
1,
22,
-9,
7,
27,
-10,
11,
-12,
5,
0,
31,
36,
-18,
-31,
-66,
-29,
12,
14,
34,
24,
-64,
-18,
40,
-4,
2,
15,
10,
105,
-64,
29,
-18,
-21,
-11,
-5,
-27,
-24,
17,
-19,
-13,
-25,
76,
-27,
57,
-63,
-38,
-12,
-40,
-32,
1,
-5,
32,
85,
58,
15,
42,
3,
-21,
15,
-8,
38,
47,
-11,
-33,
20,
-17,
-28,
24,
-33,
-12,
36,
-60,
-24,
69,
42,
12,
34,
-3,
20,
-12,
21,
2,
-30,
33,
-69,
60,
52,
-39,
-9,
-11,
61,
5,
-49,
-40,
-24,
6,
-13,
-46,
0,
-41,
-1,
36,
-18,
73,
47,
-29,
-10,
12,
51,
63,
50,
48,
36,
43,
11,
12,
49,
0,
1,
-26,
45,
-50,
-55,
-57,
3,
-6,
-76,
9,
55,
-27,
-47,
-32,
49,
-44,
30,
-25,
-35,
35,
-56,
-44,
5,
-99,
40,
-17,
32,
7,
-97,
71,
52,
-35,
-2,
-24,
-61,
-16,
27,
15,
24,
-20,
32,
-56,
-12,
1,
46,
-14,
-22,
-1,
0,
-15,
20,
-5,
48,
5,
66,
-12,
-17,
4,
-16,
-10,
74,
-62,
2,
-1,
-27,
-46,
25,
15,
-45,
-29,
-21,
12,
-29,
9,
-5,
-31,
7,
-34,
-3,
5,
35,
39,
-41,
-58,
2,
5,
31,
39,
-3,
-84,
-18,
-28,
29,
59,
-26,
14,
-20,
-41,
-43,
-52,
36,
13,
-43,
0,
0,
50,
-5,
-58,
-63,
42,
-59,
-4,
-16,
4,
-61,
9,
27,
60,
-66,
-5,
-24,
-69,
60,
20,
60,
-45,
-19,
33,
-51,
-86,
23,
-9,
80,
-28,
37,
15,
37,
-21,
59,
21,
-20,
-12,
9,
-22,
-46,
14,
5,
78,
-16,
68,
-6,
44,
17,
38,
-27,
-41,
-17,
22,
71,
-3,
30,
-60,
-2,
35,
-24,
59,
30,
-7,
28,
-21,
5,
73,
-5,
-28,
0,
-26,
24,
-9,
-36,
2,
2,
6,
-43,
28,
28,
-20,
26,
-46,
77,
-35,
42,
27,
-29,
-10,
0,
11,
-19,
47,
-1,
-57,
49,
16,
-24,
13,
60,
-4,
-37,
11,
-24,
-31,
10,
-20,
-13,
-15,
-53,
-3,
19,
-77,
-69,
-4,
-8,
-31,
0,
38,
1,
52,
15,
-61,
-40,
12,
32
] |
Per Curiam.
On written stipulation of counsel of record for the parties litigant herein, and on motion of Raymond F. Gray, Esq., of counsel for the plaintiffs, it is ordered that these appeals No. 9489 and No. 9490 be and the same are hereby dismissed as fully settled, and that each party litigant pay his own costs incurred in the action.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES ANGSTMAN, DAVIS and BOTTOMLY, concur.
|
[
-54,
5,
94,
69,
39,
-14,
-4,
-68,
0,
-35,
-30,
-9,
-22,
-12,
-50,
33,
-22,
-37,
-7,
-33,
0,
51,
38,
14,
12,
4,
-3,
30,
37,
-25,
0,
-15,
-40,
69,
-52,
-10,
13,
21,
-36,
3,
26,
15,
33,
-21,
-15,
-13,
66,
45,
0,
-21,
0,
18,
-6,
-27,
-63,
8,
-65,
-18,
15,
-72,
-30,
-3,
18,
15,
-3,
-28,
67,
-36,
47,
37,
7,
42,
22,
-13,
15,
-45,
10,
-22,
-21,
-12,
0,
58,
44,
-14,
-37,
-6,
47,
17,
23,
14,
-92,
-2,
7,
-7,
-40,
78,
39,
-20,
16,
11,
-26,
-13,
40,
-7,
30,
-35,
-25,
-9,
-4,
21,
-15,
29,
-22,
10,
0,
52,
-4,
24,
15,
38,
-2,
13,
4,
-20,
-64,
24,
-37,
43,
-12,
-2,
51,
9,
-17,
-1,
32,
46,
44,
1,
6,
21,
29,
-54,
-2,
11,
18,
12,
-47,
54,
-6,
-59,
67,
17,
10,
44,
32,
-22,
-37,
-64,
67,
53,
53,
-58,
-3,
-39,
26,
18,
1,
-19,
38,
11,
46,
-27,
73,
37,
-54,
16,
5,
29,
-1,
9,
17,
30,
16,
-35,
-13,
11,
-50,
55,
-12,
-56,
0,
-60,
-22,
-6,
-9,
-24,
35,
21,
-14,
5,
-19,
-15,
-36,
-20,
12,
21,
-3,
-29,
-8,
29,
37,
-25,
-25,
-52,
1,
77,
22,
-11,
-5,
12,
-6,
-74,
-22,
-30,
30,
-24,
-22,
21,
84,
15,
-46,
30,
-48,
27,
47,
-26,
19,
18,
-2,
-1,
-53,
-39,
-9,
-60,
-51,
29,
54,
56,
-30,
-45,
46,
25,
31,
-10,
12,
2,
7,
98,
-24,
-13,
-7,
52,
-40,
-18,
-39,
56,
9,
-11,
79,
54,
13,
25,
32,
42,
65,
12,
-14,
-23,
-35,
57,
-6,
27,
36,
-23,
-18,
-4,
-22,
-40,
33,
11,
49,
-42,
8,
11,
42,
29,
-40,
32,
-37,
0,
-45,
-46,
-7,
29,
13,
-9,
-27,
-14,
-2,
-41,
-48,
72,
54,
-42,
-11,
42,
-58,
2,
4,
11,
-33,
-8,
-27,
30,
7,
-63,
50,
35,
6,
4,
11,
12,
61,
-49,
-84,
60,
-25,
53,
85,
13,
4,
16,
-37,
-1,
23,
-57,
-8,
-29,
4,
5,
-55,
-12,
-78,
-15,
39,
-7,
8,
-33,
-13,
26,
12,
-22,
67,
-41,
-26,
29,
9,
15,
-6,
53,
38,
46,
-51,
-49,
-63,
34,
44,
-28,
-3,
37,
-1,
28,
34,
-4,
-19,
41,
-3,
29,
-56,
-22,
-25,
-15,
13,
-13,
-3,
28,
0,
24,
-31,
12,
63,
-25,
-30,
-3,
22,
0,
16,
-5,
11,
33,
9,
21,
-40,
27,
45,
16,
-16,
7,
12,
-63,
61,
15,
-12,
22,
-46,
1,
61,
-21,
-25,
34,
-27,
-29,
-22,
11,
0,
22,
-26,
5,
4,
53,
13,
28,
20,
29,
-10,
42,
-6,
31,
22,
7,
-20,
-45,
41,
24,
-33,
-2,
-13,
2,
-55,
-21,
-12,
64,
-56,
-24,
-46,
-22,
67,
15,
-45,
-11,
-99,
-18,
42,
25,
9,
-40,
-7,
-69,
-52,
10,
56,
2,
-13,
10,
-61,
-13,
-31,
6,
-12,
-71,
-12,
-96,
-114,
-11,
-47,
-45,
-23,
-69,
-86,
-28,
1,
34,
12,
-19,
62,
-35,
26,
-80,
23,
-51,
55,
-52,
72,
35,
28,
4,
-12,
-5,
0,
16,
-40,
19,
-42,
-12,
55,
-48,
3,
41,
3,
32,
-59,
45,
-21,
-17,
-10,
11,
-55,
11,
14,
-28,
-37,
39,
28,
-7,
28,
59,
16,
62,
49,
7,
22,
-19,
-29,
22,
1,
13,
-34,
-47,
22,
-64,
-9,
-54,
-81,
19,
-12,
112,
-3,
7,
27,
14,
2,
-27,
5,
-16,
44,
-11,
-6,
-61,
-10,
-15,
-32,
36,
-62,
-4,
-35,
7,
6,
0,
-8,
-7,
-27,
-38,
40,
-36,
9,
-7,
-22,
9,
18,
53,
1,
-3,
29,
-12,
-20,
-13,
-83,
-2,
20,
-13,
84,
4,
-57,
-20,
29,
-65,
0,
34,
9,
-5,
25,
11,
-15,
44,
96,
15,
-57,
-21,
-60,
37,
111,
32,
-44,
34,
-17,
49,
3,
11,
16,
-20,
-33,
31,
0,
-46,
22,
26,
45,
-26,
48,
13,
78,
45,
23,
-4,
-31,
-44,
-18,
-69,
-32,
-48,
8,
-40,
0,
3,
1,
33,
8,
3,
7,
-14,
16,
41,
13,
21,
67,
46,
-7,
41,
-63,
-56,
52,
0,
-31,
15,
27,
6,
22,
-24,
-53,
61,
2,
-5,
-54,
-69,
22,
18,
-27,
13,
20,
13,
-17,
-18,
21,
8,
-39,
6,
-47,
16,
-6,
10,
-50,
-83,
-89,
-29,
6,
-1,
-70,
0,
-23,
-61,
12,
7,
40,
-39,
1,
-50,
3,
-18,
52,
11,
20,
22,
-37,
30,
0,
-31,
-47,
-33,
-67,
-20,
12,
15,
26,
20,
44,
-40,
-69,
34,
-20,
55,
21,
-60,
-16,
72,
-9,
7,
55,
18,
58,
46,
9,
-48,
-5,
69,
7,
9,
-10,
14,
-52,
11,
-27,
2,
40,
-2,
-71,
-72,
14,
55,
22,
35,
14,
-44,
-17,
21,
19,
20,
18,
-76,
-20,
22,
29,
-52,
7,
-4,
4,
-10,
-56,
-21,
5,
-2,
28,
75,
53,
-28,
51,
54,
-61,
30,
11,
20,
-8,
-38,
-20,
-38,
2,
32,
-15,
-90,
47,
-29,
-30,
4,
1,
85,
42,
0,
8,
7,
-42,
-43,
103,
-49,
-50,
54,
21,
21,
1,
-8,
-56,
1,
-63,
-4,
-72,
41,
33,
42,
-34,
93,
0,
-50,
-9,
-30,
63,
37,
-24,
-43,
2,
-47,
8,
-46,
-4,
-16,
-12,
-2,
-22,
31,
-45,
1,
63,
-6,
-35,
-15,
5,
-27,
-8,
-53,
73,
3,
-8,
17,
12,
32,
-92,
14,
9,
24,
-4,
-55,
-40,
2,
36,
-26,
-1,
42,
48,
28,
-25,
-14,
31,
20,
-29,
14,
37,
56,
21,
38,
-126,
60,
-6,
15,
17,
23,
-15,
18,
-12,
-9,
15,
-10,
27,
-11,
56,
60,
-52,
-37,
35,
-6,
46,
19,
-36,
11,
-21,
-29,
45,
0,
-8,
-29,
27,
6,
-29,
8,
-69,
0,
24,
25,
-32,
11,
-13,
-47,
-22,
3,
12,
19,
-63,
31,
-51,
-1,
3,
35,
32,
-21,
-16,
-32,
-30,
11,
-57,
-79,
-43,
11,
38,
36,
1,
34,
34,
82,
27,
-40,
0,
9,
-11,
6,
-14,
-41,
30,
11,
-29,
6,
-14,
11,
3,
-34,
49,
0,
4,
-82,
-11,
-37,
-5,
28,
24,
-6,
-70,
40,
11,
-64,
-36,
-4,
53,
39,
16,
-6,
-20,
49,
25,
8,
46,
-40,
6,
-27,
14,
-18,
-8,
31,
-8,
-34
] |
MR. JUSTICE DAVIS:
Appeal from a judgment for $3,500 entered by the district court for Silver Bow County upon the verdict of a jury for the respondent Bennett (plaintiff below) and against the appellants Dodgson and Johnson (defendants below), returned in an action at law brought upon a eontaract of sale to recover the purchase price of certain described personal property. Hereafter we shall refer to the parties as they were in the district court.
The complaint alleges the sale and delivery by the plaintiff of an undivided one-half interest in a sawmill and certain other personal property for the price of $3,500, "which the said defendants agreed to pay this plaintiff in cash at plaintiff’s residence at 1626 Lowell Avenue, Butte, Silver Bow County, Montana, on or before April 5, 1951”, avers possession taken by the defendants and their failure to pay the stipulated price, and prays judgment accordingly. The answer is a general denial.
During the plaintiff’s case, and after he had testified without objection to his version of the contract which he claims, the defendants’ counsel moved for a nonsuit because of a failure of proof. This motion was denied. Like denials of similar motions followed at the close of the plaintiff’s ease and after both parties had finally rested. The jury were then instructed and after argument by counsel took the case.
Following the verdict and judgment against them the defendants regularly moved for a new trial upon three grounds, viz., (1) insufficiency of the evidence to justify the verdict; (2) that the verdict is against law; and (3) errors in law occurring at the trial and excepted to by the defendants. This motion was denied.
The appeal here submitted followed.
In this court the defendants by their specifications of error fairly present two questions, which answered work a reversal and remand for a new trial, viz.,
(a) Did the trial court err in the instructions given the jury?
(b) Is the verdict without support in the evidence?
First, of the errors specified in the instructions. Upon the issue of the contract between the parties the trial judge told the jury without objection:
“Instruction No. 1.
“You are instructed that in his complaint, the plaintiff, Harry Bennett, alleges that on or about March 5th, 1951, the plaintiff sold and delivered an undivided one-half interest in certain property to the defendants, Gilbert Dodgson and Ray Johnson, for which they agreed to pay him $3,500.00 on or before April 5th, 1951, and that they have not paid any part thereof; if you find from the preponderance of the evidence that the said allegations are true, your verdict should be for the plaintiff, but otherwise your verdict should be for the defendants.”
This paragraph became the law of the case whether right or wrong. Baron v. Botsford, 108 Mont. 356, 361, 90 Pac. (2d) 510; Ingman v. Hewitt, 107 Mont. 267, 271, 86 Pac. (2d) 653; Thornton v. Wallace, 85 Mont. 27, 29, 277 Pac. 417; Chancellor v. Hines Motor Supply Co., 104 Mont. 603, 614, 69 Pac. (2d) 764; Daniels v. Granite Bi-Metallic Consolidated Min. Co., 56 Mont. 284, 287, 288, 184 Pac. 836; Allen v. Bear Creek Coal Co., 43 Mont. 269, 288, 289, 115 Pac. 673.
In a subsequent instruction, however, the lower court also charged the jury:
“Instruction No. 13.
“You are instructed that'if you find from a preponderance of the evidence that Johnson and Dodgson, defendants herein, or either of them on behalf of the partnership of Johnson and Dodgson, purchased from the plaintiff, Harry Bennett, his interest in the saw mill described in the complaint in this action, then you are instructed that they are liable for the agreed price of such saw mill and your verdict will be in favor of the plaintiff and against the defendant for such sum as you find to be the agreed price for said personal property, if you find from a preponderance of the evidence that a price was agreed upon, the sum of Thirty-Five Hundred ($3,500.00) Dollars.”
The defendants’ objection here timely made was specific that “it [instruction No. 13] ignores entirely the question of maturity of the alleged indebtedness”, etc.
The objection was nevertheless overruled. This was prejudicial error in the light of the charge already given upon the same issue, and particularly in view of the confusion in the evidence bearing upon this specific issue. For by the one paragraph (Instruction No. 1) the plaintiff conld recover, only if the jurors found, among other facts, that the defendants agreed to pay the purchase price of $3,500 on or before April 5, 1951. Otherwise by this instruction they were commanded their verdict must be for the defendants; they were given no permissible alternative.
By the second paragraph to the same point (Instruction No. 13) the jury were told, however, to return a verdict for the plaintiff, if they found the defendants purchased at the agreed price of $3,500; that is, whether the defendants promised to pay the plaintiff that price by April 5, 1951, or made no promise in that connection at all. The conflict here is irreconcilable. It is not material whether either instruction is cor rect as applied to this record; the recovery which the second instruction permits is squarely denied by the first. And the first instruction quoted was given as the law of the case without objection.
Accordingly the objection to Instruction No. 13 should have been sustained. Skelton v. Great Northern R. Co., 110 Mont. 257, 260, 261, 100 Pac. (2d) 929; Hageman v. Arnold, 79 Mont. 91, 94, 254 Pac. 1070; Wray v. Great Falls Paper Co., 72 Mont. 461, 471, 234 Pac. 486, and eases there cited.
This error was included in the third ground of the defendant’s motion for a new trial, which should therefore have been granted. R. C. M. 1947, section 93-5603, subd. 7; Maki v. Murray Hospital, 91 Mont. 251, 260, 7 Pac. (2d) 228; Kleinschmidt v. McDermott, 12 Mont. 309, 311, 312, 30 Pac. 393.
For another reason also the judgment below may not stand. The second point that the evidence does not justify the verdict against the defendants is likewise good.
We turn again to the rule that the instructions given the jury are the law of the ease, and right or wrong must be obeyed. Instruction No. 1 required the jurors to find a verdict for the defendants, unless the defendants agreed to pay the plaintiff $3,500 on or before April 5, 1951. There is no evidence in the record that the defendants made any such agreement.
The only evidence of any promise by the defendants is found in the testimony of the plaintiff himself.
In summary that testimony is:
(1) That about March 5, 1951, at the Murray Motor Company in Butte, Bennett offered to sell the defendants Dodgson and Johnson for $3,500 his interest in the Wise River Timber-Company, a partnership consisting of Bennett and Dodgson, who-then owned a sawmill and other property, which they had previously operated on the Wise River in Montana, the stipulated purchase price to be paid (a) by cash in whatever amount Johnson chose, and (b) by a bankable note for the balance maturing-in six months with interest at six per cent.
(2) That the defendants accepted this offer and agreed to buy accordingly.
Here is the only contract which the evidence tends to make out. But this is not the contract which Instruction No. 1 told the jury without exception they must find to entitle the plaintiff to a verdict.
True it is according to Bennett’s account of the transaction that no definite time for payment was fixed by the contract, that he waited without objection at least until April 5, 1951, for the defendants to perform. Yet the record reflects without dispute that these indulgences were not given for the payment of the purchase price of $3,500 in cash, but of such less sum as Johnson might choose to pay down, the balance to be taken up by the bankable note described. Nowhere in the evidence before us could the jury find a promise by the defendants to pay $3,500 either on March 5, 1951, when the contract of sale was made, if at all, or thereafter on April 5, 1951, as the instruction reads. Bennett’s testimony is unequivocal that the defendants promised to make payment in a different way; and in these circumstances where the testimony is to an express promise actually made (as the jury must believe to find for the plaintiff) there is no room for a finding of a promise otherwise.
It follows that the verdict for the plaintiff is against the law of the case as declared without objection in the first instruction given and is here without support in the evidence. A new trial must accordingly be had, Baron v. Botsford, supra; Ingham v. Hewitt, supra, at 107 Mont. 271, 86 Pac. (2d) 653, and cases cited; Thornton v. Wallace, supra, for the reasons stated in the first and second grounds of the defendants’ motion, Thornton v. Wallace, supra, 85 Mont, at page 30, 277 Pac. 417; Lynes v. Northern Pacific R. Co., 43 Mont. 317, 325, 117 Pac. 81.
And since there must be a new trial we are called upon to review and determine any other question of law involved in this case, which has been presented on this appeal and is necessary to the final determination of this controversy. R. C. M. 1947, section 93-216.
1. Of those questions the most important is whether the plaintiff’s testimony tends to make out an enforceable contract. We think that the case made by the plaintiff upon this issue should go to the jury under proper pleadings and instructions.
Contra it is argued that no binding contract was ever closed, because Bennett and the defendants came to no definite understanding upon the payments to be made. We do not agree. It is true that plaintiff’s testimony shows no stipulation that the defendant Johnson would make any specific down payment upon the purchase price of $3,500. Nor was there any evidence of an agreement upon any particular time within which he was to-make a down payment and give a bankable note for the balance to cover the whole price of $3,500. Nevertheless, we think the evidence on these points was for the jury.
To be specific: Bennett testified both directly and in substance that in response to his offer to sell for $3,500 Johnson in Dodgson’-s presence said they would buy, and that accordingly he gave them time to make a down payment in such sum as Johnson chose with a bankable note for the balance. That no definite time was stipulated for performance by the defendants is immaterial. Our law implies an agreement here to perform within a reasonable time. B. C. M. 1947, section 13-723; Evankovich v. Howard Pierce, Inc., 91 Mont. 344, 351, 8 Pac. (2d) 653; and the citation of R. C. M. 1947, section 74-401, to the contrary has no application to this case where the-plaintiff, as he says, expressly gave the defendant some time-within whieh to perform. As much is suggested in our opinion-in Hardenburgh v. Hardenburgh, 115 Mont. 469, 480, 146 Pac. (2d) 151, upon which the defendants’ counsel rely.
We have then in this case, if the jury believe Bennett’s version, a true bilateral contract closed upon his offer by the defendants’ assent thereto. Bestatement, Contracts, Yol. 1, section 31, pages 39, 40; Williston on Contracts (Rev. Ed.), Vol. 1, section 31 A. pages 76, 77; Wood v. Lucy, Lady Duff-Gordon, 222 N. Y. 88, 118 N. E. 214, opinion by Cardozo, Judge, National Dairymen Ass’n. v. Dean Milk Co., 7 Cir., 183 F. (2d) 349, 353; Eastern Paper & Box Co. v. Herz Mfg. Corp., 323 Mass. 138, 142, 80 N. E. (2d) 484; Senter v. Senter, 87 Ohio St. 377, 386, 387, 101 N. E. 272; Bandoni v. Walston, 79 Cal. App. (2d) 178, 183, 179 Pac. (2d) 365. The defendants’ promise implicit in their acceptance of Bennett’s offer was that within a reasonable time after March 5, 1951, they would make a down payment of cash in some amount to be fixed by Johnson and give the bankable note Bennett asked for, both to aggregate $3,500.
There is nothing indefinite or uncertain about such a stipulation. Such a contract would nonetheless be a binding obligation, if the jury so finds, even though the defendant Johnson at his option was to fix the amount of the cash payment and conversely the principal sum to be expressed in the note.
Such an option to one party to-be exercised within specified extremes set out in the contract is valid and commonplace. It is frequently agreed that within defined limits a party may at his election stipulate the time and place of performance, the kind, quality or quantity of chattels bought or sold, the common carrier by which delivery is to be made, and other like matters. Such a bargain is not unenforceable, for it is in no part vague or illusory. If it were, the standard livestock contract in common use in Montana would necessarily have proved the point long ago. There it is universal practice to leave time and place of delivery and such details, within limits, to the buyer’s option.
The asserted contract, which the plaintiff’s testimony tends to make out, if established to the satisfaction of the jury, is complete and enforceable. Williston on Contracts (Rev. Ed.), Vol. 1, section 44, pages 128, 129, 130, 131; Benson v. Washington Leasing & Royalty Co., 173 Wash. 471, 474, 23 Pac. (2d) 875; Strout v. Joy, 108 Me. 267, 269, 80 A. 830; Nipp v. Diskey, 81 Ind. 214, 42 Am. Rep. 124; Myers v. South Feather River Water Co., 14 Cal. 269; 70 C. J. S., Payment, section 36, pages 244, 245; 77 C. J. S., Sales, section 238d, page 1017; 48 C. J., Payment, section 65, page 629; 55 C. J., Sales, section 519, page 522; 40 Am. Jur., Payment, section 9, page 718, section 63, pages 758, 759. See Gallaher v. Theilbar Realties, 93 Mont. 421, 426, 427, 18 Pac. (2d) 1101; 70 C. J. S., Payment, sections 22, 33, pages 228, 229, 243; 48 C. J., Payment, section 39, pages 608, 609; section 62, pages 627, 628.
We have not overlooked R. C. M. 1947, section 13-404, which declares that where the object of a contract is so “vaguely expressed as to be wholly unaseertainable, the entire contract is void.” Nor have we failed to note the decisions in this court which have either applied this statute or the common law rule which it declares. See Thrasher v. Schreiber, 77 Mont. 221, 250 Pac. 600; Donovan v. Bull Mountain Trading Co., 60 Mont. 87, 198 Pac. 436. In our view neither this statute nor these precedents are in point or controlling on this appeal.
2. Moreover, we think the whole case made by this record is for the jury. In addition to Bennett’s testimony covering the contract there is evidence that after March 5, 1951, the defendants did take possession of the sawmill and other chattels which had previously belonged to Bennett and Dodgson while they operated as the Wise River Timber Company, and hence took possession of Bennett’s interest, which he asserts he sold them. Particularly Bennett’s testimony is corroborated materially by the defendants themselves and by their witness Vorhees, their partner in the new firm known as the Wise River Lumber Company, and indicates that after March 5, 1951, this new partnership was in possession and actually operated the sawmill in which Bennett owned a half interest while he was Dodgson’s partner.
True, this possession is explained by the defendants that Vorhees was only testing “to see if this mill was worth the money and was worth operating”. But this explanation is equivocal. The issue as well as the credibility of the witnesses is clearly for the jury.
3. The defendants’ motions for nonsnit and judgment (directed verdict) were properly denied, for there is neither a material variance under R. C. M. 1947, section 93-3901, nor a fail ure of proof on this record within the meaning of R. C. M. 1947, section 93-3903. Upon a retrial under an amended complaint, which in the light of the evidence must be filed, this question should not again be presented to the trial court.
But upon the trial already had under the pleadings now before us there is in our opinion no variance between the complaint and the plaintiff’s proof, which is material as R. C. M. 1947, section 93-3901, defines a material variance, because there is in this record neither claim nor evidence that the defendants were misled to their prejudice in any way. Particularly, where as at bar the evidence from which the variance stems comes in without objection, we think the case is ruled by Wilkinson v. Bell, 118 Mont. 403, 411, 168 Pac. (2d) 601; Ingebritsen v. Hatcher, 87 Mont. 482, 484, 288 Pac. 1023; St. George v. Boucher, 84 Mont. 158, 167, 274 Pac. 489, rather than by Kalispell Liquor & Tobacco Co. v. McGovern, 33 Mont. 394, 84 Pac. 709, and Torgerson v. Stocke, 72 Mont. 7, 11, 230 Pac. 1096, and that perforce of the statute, section 93-3901, supra, we must hold the variance disclosed by this record to be immaterial.
We reach the same conclusion also if we compare section 93-3903, supra, and the general scope and meaning of the contract alleged in the complaint with that which the plaintiff’s case tends to prove. The reasoning and rule of Milwaukee Land Co. v. Ruesink, 50 Mont. 489, 504, 148 Pac. 396; Kakos v. Byram, 88 Mont. 309, 319, 320, 292 Pac. 909, and similar decisions make it plain that the admitted variance lies in the detail of the contract relied upon, and not in the substance of that contract.
There was in this case accordingly no failure of proof such as the defendants’ motions for nonsuit and judgment asserted.
4. Bennett’s action here is brought directly upon the special contract to which he testifies and as at common law in special assumpsit, 7 C. J. S., Assumpsit, Action of, sections 3, 6, pages 110, 111, 112; 5 C. J., Assumpsit, sections 3, 15, pages 1380, 1386, to recover the purchase price of personal property, the ownership of which has passed to the defendants, as he alleges. His damages then are fixed by R. C. M. 1947, section 17- 310, at the contract price, viz., $3,500 to be had by him, if he recover at all, without reference to the maturity of the note, which was not given. The jury should be instructed accordingly. Standard Lumber Co. v. Deer Park Lumber Co., 104 Wash. 84, 98, 175 Pac. 578; Benson v. Washington Leasing & Royalty Co., supra; American Mfg. Co. v. Klarquist, 47 Minn. 344, 346, 50 N. W. 243; Deering v. Johnson, 86 Minn. 172, 174, 90 N. W. 363; Bowman v. Branson, 111 Mo. 343, 362, 19 S. W. 634; Hanna v. Mills, 21 Wend., N. Y., 90, 91, 92; Williston on Contracts (Rev. Ed.), Yol. V, section 1411, page 3933. Compare Pasha v. Bohart, 45 Mont. 76, 83, 84, 88, 122 Pac. 284, Ann. Cas. 1913C, 1250.
5. Upon another trial the instructions given the jury will not again raise the same questions which this record presents. We need therefore only suggest for a retrial (1) that Instruction No. 17 given over objection and Instruction No. B offered by the defendants but refused be not given, because obviously there matters of law are argued with which the trial judge alone should deal; and (2) that the contract upon which the plaintiff stands be put to the jury substantially as he testifies, for the jury to determine where the truth of the issue lies.
6. If the Statute of Frauds is in this controversy, as has been indicated, that question is not reflected in this record. We decline to speculate upon its possible application.
The judgment of the district court is reversed with directions to permit the plaintiff to amend his complaint as he may be advised and to proceed with a new trial consistent herewith.
MR. JUSTICES ANGSTMAN and ANDERSON, concur.
|
[
-12,
19,
-26,
27,
16,
-42,
40,
13,
-29,
70,
14,
5,
-7,
-23,
-5,
-24,
-74,
-35,
34,
-30,
-3,
-20,
-39,
0,
57,
-41,
-66,
-11,
-63,
-1,
1,
40,
-56,
-10,
5,
52,
-23,
25,
15,
3,
-19,
7,
42,
11,
24,
-13,
-15,
-50,
-4,
0,
23,
-83,
16,
-9,
7,
-20,
-25,
58,
-16,
-23,
23,
-50,
34,
8,
-5,
-69,
-30,
-35,
28,
-18,
-38,
-16,
43,
34,
30,
-1,
-24,
-20,
-43,
25,
15,
-16,
40,
-26,
-16,
-29,
56,
11,
39,
42,
-19,
25,
24,
18,
37,
3,
-20,
-21,
-24,
-17,
2,
-15,
9,
10,
-24,
-36,
-63,
-5,
26,
27,
-39,
-19,
20,
8,
-5,
-9,
21,
-5,
50,
-1,
24,
-1,
9,
-5,
-31,
39,
23,
-2,
-13,
4,
29,
-27,
-9,
44,
-51,
-11,
-29,
-24,
-35,
11,
19,
25,
-6,
-42,
-42,
7,
39,
9,
-65,
16,
-31,
36,
25,
45,
-7,
-65,
10,
-12,
53,
-62,
51,
13,
-23,
-17,
40,
-1,
8,
-16,
13,
-25,
-27,
-5,
-21,
-8,
45,
63,
45,
-29,
8,
27,
-6,
2,
8,
-28,
24,
26,
31,
47,
-1,
46,
15,
35,
0,
17,
-20,
9,
-30,
-18,
62,
-24,
-30,
-42,
-40,
27,
-6,
41,
60,
-11,
38,
-23,
-40,
-22,
3,
-24,
17,
53,
-53,
20,
8,
-46,
14,
20,
-17,
44,
-42,
-47,
35,
51,
55,
-3,
-38,
35,
-19,
-33,
25,
-68,
19,
-14,
-45,
-7,
-51,
-36,
-5,
19,
-11,
6,
-68,
-10,
-18,
19,
-20,
-10,
-29,
26,
-3,
20,
45,
5,
-44,
-26,
5,
33,
15,
-22,
-10,
-43,
-5,
-17,
20,
52,
2,
18,
27,
22,
-10,
-36,
-11,
5,
19,
-24,
-1,
-66,
-22,
32,
-13,
45,
-45,
20,
-9,
-37,
-5,
3,
-6,
-52,
38,
-11,
23,
-22,
-25,
-28,
-68,
-49,
-12,
-12,
-5,
1,
-16,
-21,
-18,
40,
-25,
-56,
-5,
-20,
19,
35,
-35,
-12,
-7,
-52,
40,
10,
-18,
-1,
58,
45,
-17,
-2,
-34,
8,
-29,
-32,
-42,
-6,
-11,
-24,
35,
2,
12,
0,
4,
5,
8,
-22,
2,
27,
1,
13,
0,
-2,
10,
-39,
-48,
-6,
-7,
-5,
29,
-18,
-30,
14,
69,
-6,
32,
-44,
12,
4,
4,
-24,
34,
23,
-6,
56,
46,
-69,
7,
6,
-42,
-30,
-41,
28,
-11,
1,
15,
2,
53,
15,
34,
-14,
-1,
-5,
-7,
-9,
-13,
16,
57,
20,
-29,
-29,
-18,
3,
-29,
29,
5,
2,
-63,
-5,
18,
4,
-19,
-11,
20,
-20,
-20,
-2,
12,
-44,
24,
14,
-9,
36,
44,
-8,
35,
-10,
41,
-10,
59,
-6,
-1,
16,
-10,
27,
-52,
29,
20,
29,
-20,
25,
-28,
6,
11,
16,
6,
1,
-43,
-50,
-14,
25,
65,
-3,
-3,
38,
-41,
-15,
-11,
19,
31,
-27,
4,
-44,
57,
-12,
27,
13,
10,
5,
60,
-31,
21,
33,
36,
59,
7,
-3,
-28,
15,
-35,
-28,
6,
-10,
-10,
35,
-9,
26,
9,
-41,
-33,
-2,
3,
6,
4,
34,
0,
-16,
-45,
-10,
-24,
-4,
47,
-18,
-43,
-43,
5,
0,
22,
46,
47,
-8,
-13,
25,
14,
7,
46,
-28,
-1,
46,
62,
16,
-12,
35,
13,
-6,
-47,
-2,
-26,
-47,
-3,
12,
27,
-27,
-42,
9,
-19,
-7,
-16,
14,
-3,
13,
-10,
-18,
-16,
19,
19,
33,
-61,
11,
-35,
10,
50,
19,
32,
-23,
26,
15,
-43,
29,
-16,
-24,
20,
-13,
40,
-4,
-17,
-18,
45,
-9,
-16,
-22,
-36,
49,
29,
35,
-38,
18,
6,
-50,
-50,
-22,
-29,
52,
-69,
-32,
36,
-6,
-21,
3,
24,
52,
-4,
31,
-43,
-21,
-5,
-9,
-45,
-32,
12,
-3,
9,
9,
-6,
29,
-24,
8,
-18,
-32,
0,
2,
25,
-10,
20,
33,
7,
17,
33,
-35,
1,
-45,
6,
2,
25,
-17,
1,
-23,
3,
20,
-40,
-12,
-80,
6,
-6,
14,
12,
35,
-24,
56,
22,
32,
-72,
0,
27,
-15,
22,
0,
-50,
-43,
-8,
-3,
14,
-37,
-35,
0,
23,
-20,
27,
12,
-9,
42,
15,
-4,
54,
-27,
-3,
-31,
27,
24,
-3,
36,
7,
45,
-3,
-58,
24,
-26,
16,
-14,
-11,
18,
-6,
-28,
16,
13,
3,
-27,
7,
0,
19,
-20,
-2,
11,
-19,
4,
26,
-6,
-21,
16,
0,
-1,
-32,
-2,
23,
-15,
-18,
15,
0,
-1,
3,
6,
-30,
-32,
-42,
13,
5,
-7,
-11,
-19,
22,
-3,
-34,
-9,
5,
-36,
12,
-10,
16,
-28,
42,
45,
34,
12,
16,
43,
-30,
54,
-33,
17,
-8,
-23,
-10,
-24,
-11,
-39,
10,
-20,
-5,
23,
28,
-48,
-42,
-38,
31,
8,
1,
41,
-13,
-38,
-17,
17,
0,
-39,
36,
-30,
15,
0,
-63,
22,
0,
-38,
-9,
2,
9,
-19,
-1,
-19,
-26,
-14,
20,
19,
63,
0,
13,
-54,
-4,
19,
-26,
-35,
-9,
4,
8,
0,
-23,
-52,
-23,
-10,
-16,
-35,
14,
-3,
-28,
20,
-42,
37,
22,
48,
13,
-11,
-30,
4,
14,
31,
10,
0,
3,
-13,
18,
-80,
-43,
-5,
11,
11,
-15,
28,
1,
14,
31,
-10,
45,
1,
-33,
36,
13,
-1,
2,
24,
13,
-5,
36,
14,
-13,
-21,
-16,
-10,
-63,
22,
69,
11,
-3,
37,
-22,
-51,
-33,
26,
11,
38,
-38,
8,
-2,
-17,
37,
54,
1,
2,
-1,
36,
0,
-27,
31,
9,
-56,
31,
28,
-2,
3,
48,
30,
43,
53,
13,
78,
-11,
6,
-17,
-41,
11,
14,
-28,
-2,
-14,
4,
28,
-25,
-13,
-21,
-27,
15,
-38,
-20,
-44,
1,
-3,
35,
0,
20,
10,
35,
-31,
17,
-3,
3,
16,
47,
-9,
-30,
-28,
16,
-16,
7,
-24,
7,
55,
5,
-3,
-54,
30,
26,
9,
0,
45,
-20,
60,
-35,
50,
-28,
9,
0,
-13,
-22,
-59,
-38,
15,
16,
-7,
33,
-57,
4,
-33,
-18,
4,
-25,
28,
36,
10,
35,
47,
7,
-4,
-53,
-13,
12,
-29,
-18,
12,
10,
-11,
17,
-12,
5,
46,
6,
-21,
9,
-35,
33,
-7,
-16,
-10,
39,
-6,
-8,
-4,
56,
-29,
36,
1,
44,
-3,
15,
2,
5,
19,
12,
-27,
-16,
1,
40,
23,
24,
-39,
0,
-45,
-4,
-2,
10,
-34,
51,
-3,
-8,
15,
28,
12,
-42,
-58,
43,
1,
-35,
21,
34,
22,
-1,
1,
10,
26,
17,
17
] |
Per Curiam.
The appellant, Frank Koble, Sr., was tried, convicted by a jury and sentenced in the district court of Lake County, Montana, for the crime of unlawfully supplying intoxicating liquor to a person under the age of twenty one (21) years. From the judgment of conviction he took this appeal.
On June 29, 1955, a written stipulation was entered into by the county attorney of Lake County, representing the state and by defendant’s counsel, that this appeal be dismissed by reason of the death of the appellant, Frank Koble, Sr., same having occurred at Ronan, Montana, on the 8th day of June, 1955. A duly certified copy of the death certificate issued by the county clerk and recorder of Lake County, Montana, and the affidavit of J. A. Turnage, the duly elected, qualified and acting county attorney of Lake County, and the affidavit of William Shrider, a duly licensed undertaker and embalrner residing at Ronan, Montana were filed in the office of the clerk of this court, together with the aforesaid stipulation; and it appearing that the appellant, Frank Koble, Sr., died on June 8, 1955 at Ronan, Montana of a gun shot wound and that thereafter appellant’s body was prepared for burial and that such burial was had at Ronan, Montana, under the direction of the affiant William Shrider;
NOW THEREFORE this court having considered the evidence so submitted, finds the facts to be as above stated and on written motion of appellant’s counsel of record herein, orders, adjudges aud decrees that all proceedings in this appeal, No. 9567, in this court have permanently abated by the •death of the appellant Frank Koble, Sr.
Accordingly the appeal is ordered dismissed, the case closed and the trial court is directed to enter an appropriate order to that effect. See State v. Hale, Mont., 270 Pac. (2d) 993; State v. Pichette, 125 Mont. 327, 237 Pac. (2d) 1076 and State v. Lawrence, 122 Mont. 277, 201 Pac. (2d) 756.
Remittitur will issue forthwith.
MR. CHIEF JUSTICE ADAIR and MR. JUSTICES ANGSTMAN, ANDERSON, DAYIS and BOTTOMLY, concur.
|
[
32,
20,
59,
20,
-40,
-66,
12,
14,
-41,
18,
-18,
-68,
-31,
22,
44,
-23,
-49,
-77,
9,
-6,
34,
0,
-57,
7,
40,
-22,
-81,
41,
-13,
4,
23,
11,
19,
-35,
37,
31,
74,
2,
-4,
4,
-1,
24,
14,
51,
-13,
-8,
-24,
-3,
15,
36,
15,
-26,
20,
-26,
6,
-12,
28,
-20,
22,
56,
-25,
6,
-4,
7,
25,
28,
14,
17,
-26,
-34,
30,
-25,
-37,
0,
54,
-32,
-76,
9,
15,
6,
-12,
19,
80,
7,
-35,
-28,
-50,
2,
35,
28,
-21,
1,
-9,
-37,
-1,
-10,
41,
7,
-40,
-48,
19,
-21,
-54,
-12,
-5,
-28,
-33,
-19,
5,
17,
-3,
30,
31,
50,
-14,
-2,
5,
-6,
43,
35,
12,
8,
37,
6,
-33,
-19,
-4,
57,
21,
23,
16,
-55,
22,
-32,
1,
25,
-48,
-19,
-16,
7,
11,
9,
11,
-38,
28,
50,
-12,
23,
26,
3,
0,
17,
9,
60,
57,
26,
10,
-37,
-1,
0,
11,
-34,
46,
-24,
23,
-7,
-1,
-25,
-29,
-32,
-32,
3,
-23,
-8,
51,
38,
46,
-26,
-9,
68,
-8,
31,
84,
-29,
26,
19,
-25,
10,
28,
-12,
-63,
-4,
38,
-29,
-28,
3,
44,
0,
5,
-6,
-18,
-11,
51,
-3,
22,
-22,
33,
6,
61,
38,
8,
-85,
28,
-7,
-29,
-4,
-40,
-19,
-48,
12,
-13,
33,
8,
-10,
9,
-17,
-8,
1,
-31,
-1,
-7,
12,
-37,
-2,
32,
-29,
-12,
0,
-33,
12,
-28,
-57,
16,
-51,
54,
50,
-10,
-30,
-34,
10,
44,
11,
0,
28,
-17,
-53,
3,
8,
9,
-9,
-17,
-24,
22,
52,
-60,
1,
29,
-24,
24,
38,
0,
-12,
68,
-32,
10,
-7,
3,
0,
-10,
40,
25,
3,
-23,
-37,
-12,
8,
-25,
30,
-9,
-23,
-23,
-8,
-38,
-25,
41,
-4,
2,
-21,
19,
-22,
20,
-11,
-3,
21,
-29,
28,
-64,
-16,
-3,
-25,
-14,
-5,
-1,
33,
-14,
33,
-12,
-8,
56,
-21,
6,
-5,
-17,
-7,
-26,
-15,
-16,
1,
-31,
32,
-32,
1,
5,
-4,
-68,
-48,
-36,
-8,
-10,
46,
38,
-22,
20,
36,
0,
52,
7,
76,
-14,
-30,
-40,
11,
67,
31,
-42,
-17,
-16,
-46,
44,
8,
1,
-45,
-25,
30,
12,
-17,
-6,
4,
-12,
-29,
-10,
13,
28,
-20,
-25,
-8,
-34,
22,
-31,
12,
-16,
-23,
4,
14,
18,
16,
70,
13,
-4,
45,
6,
-8,
-48,
-26,
19,
12,
23,
-19,
28,
-30,
-29,
27,
33,
-36,
-36,
-3,
-18,
39,
23,
28,
19,
-8,
17,
-5,
79,
-17,
-62,
-38,
5,
-23,
41,
15,
6,
-36,
8,
-38,
15,
23,
-26,
-70,
33,
32,
6,
1,
-2,
0,
-11,
31,
20,
-22,
-69,
0,
19,
-12,
9,
-12,
-43,
25,
37,
16,
-26,
52,
-13,
-3,
-5,
84,
16,
0,
6,
-9,
10,
39,
-32,
-52,
11,
22,
-20,
3,
39,
2,
-16,
-11,
-37,
0,
-20,
16,
41,
-16,
65,
-67,
-22,
-15,
-49,
-12,
-35,
0,
-15,
-9,
3,
-2,
-4,
-45,
-11,
5,
-62,
0,
-31,
-36,
10,
7,
-8,
-24,
-12,
-7,
-13,
11,
16,
0,
-48,
-11,
-14,
-24,
-8,
-22,
-17,
16,
63,
11,
-2,
-13,
45,
13,
-2,
-21,
-44,
4,
-10,
11,
33,
-20,
0,
-15,
-36,
-24,
-6,
-26,
-4,
12,
-41,
-57,
84,
-32,
62,
11,
-20,
12,
-34,
26,
9,
0,
0,
15,
-55,
-1,
0,
0,
30,
-35,
-21,
6,
6,
-31,
-50,
40,
3,
6,
-44,
-38,
5,
-27,
9,
23,
10,
-30,
34,
42,
11,
8,
-19,
40,
62,
14,
15,
-9,
-50,
2,
-20,
16,
-10,
-7,
-57,
23,
31,
-37,
42,
34,
-43,
29,
-29,
-34,
-10,
42,
42,
57,
31,
39,
-31,
-11,
38,
-22,
13,
12,
-3,
25,
-9,
3,
13,
-21,
31,
-39,
-48,
-10,
-18,
-21,
26,
2,
-62,
-16,
3,
45,
-61,
-21,
18,
-9,
30,
18,
-4,
52,
5,
-44,
-13,
-29,
20,
-8,
20,
-14,
13,
-7,
8,
7,
-25,
-18,
-40,
3,
-38,
-65,
34,
-32,
-4,
-1,
-2,
31,
-64,
0,
-5,
25,
23,
9,
-29,
23,
36,
-30,
-96,
-37,
-16,
-42,
-10,
-3,
2,
18,
48,
5,
11,
-9,
42,
44,
-15,
-9,
22,
-7,
-23,
38,
-20,
32,
-21,
36,
24,
-11,
35,
-74,
33,
-22,
-13,
17,
-6,
-17,
8,
-69,
-35,
0,
-68,
7,
-1,
5,
-21,
0,
-22,
-9,
-11,
8,
-62,
-48,
-18,
-7,
17,
-58,
-16,
46,
-12,
-13,
49,
-8,
17,
37,
32,
5,
10,
-13,
-16,
1,
18,
-61,
12,
18,
0,
-3,
-9,
-52,
-3,
24,
6,
64,
23,
-22,
9,
4,
48,
53,
-37,
-7,
40,
38,
-5,
50,
-15,
-17,
47,
0,
10,
29,
30,
10,
-56,
-41,
-27,
-29,
-4,
25,
44,
-8,
35,
-19,
-16,
-7,
28,
28,
0,
-1,
16,
39,
-27,
-31,
65,
-1,
-35,
-9,
28,
32,
-25,
48,
22,
23,
26,
35,
16,
3,
44,
0,
-49,
31,
26,
14,
26,
-7,
-14,
-17,
-31,
-10,
0,
15,
60,
-38,
41,
9,
-3,
-29,
36,
16,
-71,
26,
0,
18,
-5,
-21,
18,
-2,
23,
-15,
-64,
34,
19,
73,
24,
3,
23,
-2,
56,
-9,
18,
51,
-24,
-14,
-16,
22,
17,
35,
16,
-114,
-8,
51,
14,
-4,
28,
-29,
-34,
30,
30,
-19,
-92,
29,
20,
-68,
-1,
43,
-34,
-18,
9,
-3,
-7,
-20,
-40,
13,
4,
-24,
5,
20,
35,
-28,
72,
28,
-5,
34,
-55,
31,
27,
-7,
-30,
-6,
-2,
-45,
-39,
-6,
32,
50,
34,
-52,
22,
9,
34,
44,
1,
-9,
-8,
-1,
-16,
-48,
-82,
10,
32,
8,
-2,
-9,
-23,
56,
-14,
16,
-27,
-23,
-26,
36,
-51,
-4,
10,
-19,
-41,
44,
12,
-24,
17,
-29,
14,
33,
-23,
62,
45,
60,
28,
-59,
-10,
-9,
48,
26,
4,
38,
-1,
6,
-9,
-18,
-16,
22,
-38,
31,
-5,
60,
6,
21,
-47,
9,
64,
30,
-4,
-8,
16,
18,
27,
-20,
31,
31,
24,
-7,
-15,
-7,
-1,
-53,
25,
21,
-25,
2,
-30,
-46,
54,
-17,
-47,
11,
38,
43,
-32,
-29,
-40,
-16,
19,
-23,
-12,
6,
44,
-3,
14,
-30,
-45,
1,
-48,
-20,
-9,
-42,
-67,
1,
-27,
46,
-14,
34,
-57,
-3,
10,
-43
] |
Per Curiam.
Original proceeding applying for a writ of supervisory control to be directed against the district court of Yellowstone County to review proceedings subsequent to final decree in a divorce action wherein is sought modification of an alimony award and also a citation for contempt for relator’s default in the payment of alimony.
The writ is denied, the proceedings in this court are dismissed and it is so ordered.
|
[
-17,
-42,
21,
0,
-9,
-21,
26,
-5,
15,
-19,
-54,
-3,
-38,
20,
-55,
23,
-24,
-19,
26,
-10,
16,
51,
-13,
5,
0,
9,
-7,
-15,
30,
-8,
-62,
0,
-56,
7,
-14,
-18,
60,
-3,
3,
-57,
5,
-22,
1,
28,
-76,
-18,
-19,
-3,
-30,
-7,
-13,
2,
-3,
-36,
6,
23,
13,
-15,
-7,
-39,
-71,
10,
-9,
15,
37,
41,
9,
-61,
33,
-2,
1,
0,
47,
5,
36,
0,
8,
-29,
-23,
23,
31,
35,
12,
19,
-23,
-35,
-4,
56,
22,
22,
18,
-4,
-47,
-20,
-37,
16,
17,
-24,
28,
78,
-10,
-5,
85,
-24,
-44,
-49,
50,
-5,
-16,
7,
34,
-41,
-12,
-38,
-34,
63,
-10,
-13,
65,
-19,
22,
3,
-10,
-7,
19,
10,
-23,
74,
30,
-13,
-4,
10,
12,
9,
13,
-40,
14,
-13,
-27,
-97,
1,
-70,
41,
35,
16,
-21,
18,
-1,
-81,
10,
7,
22,
14,
66,
71,
19,
-36,
-17,
6,
37,
-16,
0,
-24,
14,
19,
5,
-7,
-1,
2,
-17,
9,
9,
-34,
-12,
-41,
-44,
-23,
0,
-4,
56,
37,
75,
10,
0,
-29,
51,
-79,
9,
-61,
10,
-20,
72,
28,
12,
44,
-5,
62,
-4,
-1,
58,
-19,
32,
-21,
7,
-51,
17,
0,
-61,
14,
-19,
6,
-13,
-26,
27,
17,
-35,
-7,
22,
9,
23,
33,
4,
50,
28,
-39,
-65,
-21,
-29,
-82,
-9,
55,
-18,
11,
-55,
47,
11,
42,
33,
13,
51,
-3,
21,
6,
-12,
18,
33,
-5,
49,
12,
18,
-72,
-28,
-42,
10,
25,
-50,
-21,
46,
11,
-40,
7,
-23,
6,
-3,
-28,
-7,
44,
14,
20,
-36,
-9,
23,
-6,
-15,
39,
32,
-11,
-9,
-23,
45,
-10,
-20,
-61,
0,
-19,
-33,
4,
-72,
0,
12,
-58,
5,
-3,
-56,
-13,
24,
-20,
-68,
-16,
-50,
-49,
-30,
-19,
54,
-54,
-20,
-20,
-20,
36,
-43,
28,
62,
-6,
-26,
-82,
25,
-42,
-21,
-8,
-40,
7,
0,
-43,
-20,
-27,
53,
-2,
0,
5,
37,
-35,
15,
-9,
-27,
61,
24,
-16,
42,
-26,
7,
27,
12,
17,
73,
-32,
-43,
56,
17,
18,
33,
-46,
10,
14,
-17,
18,
16,
23,
-28,
-67,
-3,
19,
8,
3,
-30,
7,
16,
25,
41,
21,
-46,
-5,
11,
33,
-32,
-17,
4,
-5,
33,
76,
-3,
-48,
-16,
41,
84,
-17,
53,
-14,
25,
-57,
-44,
17,
-13,
1,
-7,
-53,
34,
17,
20,
-36,
-25,
19,
10,
-28,
64,
40,
-39,
23,
1,
65,
30,
8,
10,
-11,
-6,
38,
29,
8,
8,
36,
13,
-8,
-12,
-95,
-1,
-49,
33,
-1,
-59,
30,
12,
4,
-2,
8,
49,
39,
-26,
-14,
-19,
42,
65,
26,
-37,
44,
-22,
-23,
-14,
-7,
-13,
13,
0,
6,
-40,
-87,
-13,
-16,
-1,
38,
76,
-52,
15,
31,
43,
27,
-13,
-3,
34,
16,
-10,
29,
44,
-66,
-14,
-33,
56,
-49,
-28,
-22,
3,
17,
-32,
-7,
24,
-33,
7,
-11,
6,
24,
-13,
-10,
-10,
-36,
-28,
18,
44,
-29,
-73,
-25,
16,
-20,
31,
30,
6,
0,
37,
73,
24,
-28,
30,
-10,
3,
-21,
-29,
89,
16,
16,
77,
58,
-17,
46,
6,
-73,
1,
-40,
-16,
24,
-1,
60,
-15,
-13,
26,
-33,
6,
-48,
38,
-17,
8,
-23,
20,
-10,
3,
35,
8,
38,
17,
46,
56,
-34,
-17,
-20,
-9,
-11,
4,
41,
-21,
-22,
-35,
41,
-11,
18,
-26,
53,
-27,
-51,
-11,
7,
26,
-33,
4,
-24,
44,
3,
-18,
35,
-3,
72,
21,
-9,
-31,
0,
13,
4,
18,
-32,
-11,
32,
-44,
10,
-6,
11,
9,
-69,
-23,
42,
-24,
-2,
14,
-16,
12,
29,
-6,
-59,
21,
39,
1,
-37,
-9,
17,
41,
27,
-52,
47,
-4,
0,
-14,
0,
-16,
6,
-22,
11,
60,
21,
-15,
34,
5,
-18,
-4,
12,
-34,
12,
29,
-8,
-1,
61,
-27,
5,
-7,
-37,
14,
-15,
-28,
32,
10,
24,
-39,
-1,
-36,
56,
-53,
25,
33,
69,
59,
-29,
-44,
87,
-47,
15,
11,
32,
2,
-39,
-57,
-11,
0,
12,
4,
-40,
51,
2,
47,
0,
-42,
-15,
-20,
-25,
-21,
8,
-3,
25,
-31,
1,
1,
-33,
-14,
25,
-32,
44,
32,
-26,
28,
-16,
-6,
0,
17,
29,
-68,
-75,
58,
-43,
17,
45,
45,
2,
56,
-8,
-40,
-31,
-12,
-55,
-41,
-46,
-6,
-1,
-20,
-33,
-26,
6,
47,
-2,
-83,
-24,
6,
-32,
38,
12,
-39,
-23,
-72,
27,
11,
6,
1,
11,
11,
-43,
-11,
14,
-1,
-3,
-10,
61,
-36,
19,
-8,
-7,
1,
-16,
55,
-41,
57,
25,
36,
-42,
21,
-36,
-23,
53,
-75,
48,
39,
2,
25,
-31,
57,
-20,
34,
-22,
-4,
1,
12,
22,
29,
47,
-25,
5,
-4,
-33,
-7,
22,
-12,
-30,
-48,
96,
17,
49,
-7,
6,
-38,
6,
-40,
23,
-57,
28,
13,
21,
-9,
20,
-6,
-1,
-59,
40,
41,
21,
22,
-23,
57,
-71,
69,
-95,
21,
23,
30,
-14,
20,
9,
32,
-14,
-12,
-9,
-48,
54,
-21,
53,
-3,
15,
-23,
49,
-29,
-24,
82,
15,
1,
45,
4,
-50,
-49,
20,
-14,
-7,
10,
-11,
-3,
-48,
-20,
35,
-17,
13,
17,
40,
-18,
-5,
15,
-1,
28,
22,
2,
59,
0,
6,
-12,
-38,
8,
31,
-51,
-4,
-13,
-37,
-5,
-3,
26,
24,
-12,
-34,
26,
17,
-1,
53,
-7,
-45,
-16,
-5,
0,
-48,
-10,
-24,
-31,
-18,
4,
-57,
-17,
22,
-16,
5,
13,
42,
18,
27,
-45,
-62,
1,
-34,
67,
-5,
4,
56,
11,
-42,
62,
53,
-4,
3,
14,
-58,
35,
9,
2,
0,
28,
-71,
-20,
-10,
-23,
-25,
0,
25,
34,
-29,
-25,
8,
19,
60,
7,
-46,
-11,
-32,
-20,
-1,
32,
19,
56,
-82,
-35,
37,
-13,
35,
-1,
1,
-24,
-6,
-55,
-31,
11,
-14,
-28,
-72,
29,
34,
40,
70,
6,
-57,
13,
26,
-22,
-20,
-30,
20,
41,
14,
-19,
1,
2,
1,
-31,
-25,
0,
-33,
36,
70,
64,
-49,
-24,
23,
-26,
-97,
-13,
-24,
-14,
7,
-4,
41,
-31,
11,
-36,
12,
-10,
5,
-64,
-10,
68,
-1,
4,
14,
-48,
58,
-2,
47,
-24,
-83,
24,
40,
-15,
-13,
-19,
18,
-42,
-26,
-57,
-4,
-68,
-49,
-44,
84,
-28
] |
Per Curiam.
On application and praecipe of counsel for appellant in the above entitled cause, the appeal herein is hereby dismissed as fully settled on the merits.
MR. CHIEF JUSTICE ADAIR and MR. JUSTICES ANGSTMAN, DAVIS, and BOTTOMLY, concur.
|
[
-35,
-23,
88,
33,
38,
0,
40,
-47,
9,
-42,
-46,
-25,
-50,
-55,
-50,
34,
-14,
-35,
-5,
-66,
-9,
56,
26,
-12,
17,
0,
-36,
46,
62,
2,
-6,
30,
-12,
36,
-44,
-31,
20,
2,
-8,
-26,
36,
29,
14,
25,
-17,
-4,
52,
6,
31,
12,
20,
-8,
-48,
-72,
-61,
33,
-12,
-10,
39,
-37,
0,
35,
-16,
22,
-12,
-6,
47,
-61,
43,
81,
-2,
7,
63,
5,
28,
2,
-33,
-11,
-15,
-10,
29,
68,
80,
56,
1,
-9,
22,
81,
44,
23,
-40,
-8,
47,
-54,
-66,
66,
65,
-42,
-12,
12,
-63,
-34,
26,
-35,
12,
-86,
-45,
33,
13,
22,
17,
40,
-52,
44,
9,
74,
-3,
-14,
79,
33,
-11,
30,
-5,
13,
-95,
12,
-50,
67,
32,
-5,
3,
28,
7,
-7,
37,
-27,
34,
10,
12,
1,
25,
-32,
3,
-11,
-25,
6,
-43,
7,
7,
-27,
33,
39,
-42,
6,
29,
7,
6,
-35,
66,
31,
-23,
-53,
18,
-10,
10,
20,
-36,
-3,
-3,
50,
22,
-6,
73,
54,
-34,
-11,
-53,
55,
6,
8,
60,
21,
6,
12,
-36,
36,
-48,
35,
-34,
-63,
-22,
-44,
-5,
-23,
-20,
-21,
45,
-3,
-30,
-6,
-43,
-10,
-11,
-35,
-25,
-23,
-46,
-55,
5,
6,
15,
-32,
2,
-57,
34,
48,
7,
44,
17,
30,
18,
-54,
-14,
-29,
10,
-16,
-55,
34,
-1,
-8,
-60,
20,
-57,
0,
59,
-11,
13,
37,
-27,
-37,
-32,
-37,
12,
-35,
-45,
5,
40,
77,
34,
12,
62,
7,
70,
0,
-39,
-24,
4,
79,
-26,
-40,
-12,
7,
-38,
28,
-51,
60,
22,
16,
51,
6,
8,
15,
41,
50,
42,
-35,
-34,
-27,
7,
64,
-17,
24,
16,
-61,
1,
2,
-16,
-63,
51,
-5,
-10,
9,
37,
17,
34,
30,
-1,
45,
-62,
-23,
15,
4,
-12,
-26,
68,
3,
-12,
-1,
40,
-31,
-42,
89,
78,
-2,
-42,
57,
-30,
-21,
-28,
-36,
-49,
-7,
-45,
0,
-37,
-38,
46,
9,
53,
-15,
-11,
33,
42,
-8,
-61,
54,
-23,
103,
83,
45,
6,
-21,
-30,
-14,
21,
-71,
-20,
-18,
40,
47,
-64,
33,
9,
-36,
25,
-61,
17,
-66,
-28,
2,
-7,
35,
54,
24,
38,
55,
-2,
14,
-40,
-33,
5,
19,
-7,
14,
-13,
46,
48,
-2,
-24,
34,
-1,
6,
63,
32,
-21,
34,
10,
84,
-18,
-2,
-30,
-10,
-13,
-22,
-7,
10,
8,
11,
30,
3,
16,
-25,
-50,
13,
0,
-32,
1,
-19,
0,
22,
-25,
11,
-7,
45,
36,
29,
-19,
17,
11,
27,
61,
7,
-19,
64,
-100,
56,
58,
2,
10,
-32,
17,
-9,
34,
1,
-15,
51,
20,
-11,
8,
70,
8,
7,
-3,
-19,
-65,
40,
-17,
26,
0,
-36,
6,
-34,
21,
-1,
-37,
-28,
-11,
-4,
-25,
-16,
18,
-20,
-22,
-62,
-20,
-11,
42,
-5,
4,
-22,
-51,
-47,
-15,
-7,
28,
9,
-12,
19,
-3,
-11,
72,
2,
-22,
-12,
-48,
14,
18,
13,
8,
-48,
-20,
-94,
-76,
-27,
-49,
-66,
-1,
-41,
-93,
-51,
51,
-2,
4,
-36,
62,
-49,
-19,
-36,
-9,
-35,
46,
-41,
-20,
84,
26,
-1,
-23,
36,
-21,
43,
-40,
-36,
-28,
-37,
70,
10,
-40,
34,
26,
16,
-34,
20,
-48,
8,
9,
33,
-35,
0,
33,
-79,
-59,
23,
13,
-19,
-14,
90,
25,
64,
24,
26,
-3,
6,
-43,
13,
-12,
-51,
-67,
-89,
60,
-40,
-11,
-36,
-13,
6,
-35,
78,
2,
1,
45,
35,
6,
-46,
15,
22,
4,
-34,
17,
-16,
-57,
-32,
-42,
30,
-96,
-9,
-70,
26,
-10,
-52,
54,
-23,
-80,
-16,
95,
-37,
-12,
-38,
18,
32,
-41,
62,
-25,
-11,
8,
2,
-4,
21,
-25,
17,
12,
-23,
26,
35,
-52,
-4,
-29,
-58,
-5,
51,
-35,
13,
-3,
19,
-30,
29,
41,
24,
-35,
-50,
-20,
47,
51,
24,
-36,
-34,
-3,
39,
-50,
45,
-3,
-52,
-26,
12,
11,
-46,
69,
-17,
39,
-32,
32,
31,
49,
33,
-29,
-32,
-27,
-7,
-45,
-77,
-2,
-81,
-29,
-39,
18,
-43,
-21,
51,
-2,
34,
-11,
-31,
-10,
0,
16,
-1,
54,
6,
37,
37,
-76,
-55,
22,
-40,
-25,
14,
-12,
-7,
19,
-1,
-56,
55,
2,
57,
-17,
-18,
7,
-27,
18,
-2,
-15,
-3,
-1,
-7,
-3,
-10,
-26,
-19,
-6,
8,
-26,
-25,
-44,
0,
-87,
29,
-7,
16,
-48,
-31,
15,
-33,
24,
8,
41,
-6,
-3,
-11,
10,
-49,
10,
7,
10,
-17,
19,
70,
-48,
-25,
-11,
-73,
-14,
21,
-25,
3,
26,
50,
9,
18,
-15,
15,
6,
55,
23,
-84,
-13,
33,
9,
-15,
46,
39,
25,
49,
13,
-6,
-76,
35,
46,
22,
14,
-7,
-75,
54,
-6,
-11,
58,
-5,
-49,
-10,
-7,
30,
62,
2,
-23,
-37,
-36,
29,
15,
43,
-37,
-34,
-16,
8,
44,
36,
32,
11,
30,
-20,
-28,
-40,
-8,
-6,
0,
46,
64,
-20,
47,
62,
-14,
68,
-9,
4,
16,
-6,
-56,
-1,
-9,
54,
15,
-58,
33,
-34,
27,
17,
8,
83,
35,
-13,
36,
-26,
19,
-28,
47,
-40,
-49,
57,
1,
58,
19,
-13,
-3,
16,
-49,
31,
-55,
-26,
38,
36,
-50,
74,
-11,
-65,
-19,
13,
28,
68,
12,
-53,
54,
-13,
41,
-45,
53,
0,
-20,
-22,
-25,
15,
-1,
-20,
37,
1,
-67,
7,
10,
-18,
-26,
-18,
3,
2,
-17,
-14,
-1,
6,
-48,
15,
27,
-11,
0,
-68,
-25,
20,
33,
-22,
-35,
58,
28,
69,
-26,
-7,
3,
57,
-63,
27,
66,
38,
-7,
11,
-42,
59,
20,
-20,
-33,
23,
13,
37,
1,
46,
-2,
-25,
43,
-1,
5,
51,
-10,
-21,
19,
-12,
14,
-26,
-52,
-12,
-34,
-18,
-6,
4,
-22,
-8,
-6,
17,
-80,
35,
-45,
-12,
-11,
6,
-5,
-6,
10,
-38,
-18,
-50,
6,
-26,
-9,
23,
-39,
-34,
18,
1,
30,
-9,
-17,
-29,
-33,
49,
-38,
-18,
-51,
11,
58,
46,
-41,
21,
22,
53,
0,
-69,
-12,
0,
-8,
49,
-11,
-43,
52,
-4,
-67,
17,
4,
62,
-11,
-56,
12,
-4,
3,
-54,
-19,
-18,
3,
50,
9,
-11,
-40,
61,
15,
-57,
-22,
46,
34,
22,
-12,
-33,
21,
8,
2,
-14,
37,
-74,
8,
-10,
1,
-11,
23,
15,
-8,
-52
] |
MK. JUSTICE DAVIS:
Original proceeding by writ of habeas corpus to obtain the custody of two minor children.
On the application of one Stephen Enke made July 2, 1955, a writ of habeas corpus issued out of this court directed to one Jean S. Baueus to inquire into the custody of Max Sieben Enke and Karen Jean Enke, the minor children of Stephen Enke and Jean S. Baueus, formerly Jean S. Enke. On July 6, 1955, in obedience to this writ the respondent, Jean S. Baueus, made return thereto (1) by motion to quash, and (2) without prejudice to that motion by pleading on the merits. To this return a traverse has been made on the part of the petitioner. The matter has been argued orally and on briefs submitted by both the petitioner and the respondent. Submission has now been had for our opinion and judgment.
Hereafter we shall refer .to the petitioner, Stephen Enke, as the father, to the respondent, Jean S. Baucus, as the mother.
The material facts we gather from the return and the traverse thereto and from the exhibits submitted at the hearing. They follow.
The mother, then Jean Sheriff, and the father, Stephen Enke, were married in 1940 at Helena, Montana. Subsequently their residence was at Los Angeles, California, where they made their home until May 18, 1944, or thereabouts. To this union there were born the.two children who are the subjects of this proceeding. Up to May 18, 1944, or shortly thereafter, their domicil and that of each of their parents as well was in California.
There on April 29, 1944, the father and mother came to the parting of their ways. As of that date a settlement agreement containing this paragraph was executed by them, viz.,
“The parties are the parents of Max Sieben Enke, aged two and one-half years, and Karen Jean Enke aged three and one-half months. The children are of tender years and husband recognizes that it is natural and proper that wife should have their custody and agrees that wife shall have the sole custody of said children and each of them. In making this agreement husband understands that it is the intention of wife to reside with the said children at least in the immediate future in the State of Montana and that she will take the children to Montana shortly after the execution of this agreement. Husband shall have the right to correspond with the children and the right to visit them occasionally at the place of their residence at reasonable times and in reasonable manner after making arrangements with wife for such visits.”
Subsequently the mother sued for divorce in the Superior Court of Los Angeles County, California, and thereafter on May 18, 1944, was granted by that court upon the default of the father an interlocutory judgment of divorce, in which there is found this decretal paragraph:
“It is further ordered and adjudged that Plaintiff [Jean S. Enke] shall have the sole custody of the minor children Max Sieben Enke, aged 2% years, and Karen Jean Enke, aged 3% months, and the right to determine their place of residence, and that Defendant [Stephen Enke] shall have the right to correspond with the said children, and the right to visit them occasionally at the place of their residence at reasonable times and in reasonable manner after making arrangements with Plaintiff for such visits, and this court reserves the right to make appropriate orders for the support of the children.”
By the final judgment in this matter, entered on May 22, 1945, the provision here for the custody of these children was adopted, and thereby “made binding on the parties affected thereby.”
Consistent with the settlement agreement of April 29, 1944, and the consent of the father given therein, and with the interlocutory judgment of May 18, 1944, the mother returned in May 1944 with her two children to Helena, Montana, where ever since she has made her home. There in 1947 she was married to one John Baucus, with whom she has since lived at Helena and on an adjacent ranch in Montana, as his wife, and with whom there since this marriage she has made a home for the children,'Max and Karen, and also her son by her second marriage, John Frederick Baucus, born September 19, 1949.
About October 1, 1954, the father applied to the California Court at Los Angeles for a modification of the interlocutory decree of May 18, 1944, that he might have the custody of his children during July of each year. Notice of these proceedings was given the mother by service upon her at Helena in Montana. She responded by authorizing an attorney of her selection at Los Angeles to appear for her and resist the father’s application. She also offered affidavits when that application was heard, which were received in evidence. Her attorney appeared at the hearing and, we shall assume, cross-examined the father and his witnesses on her behalf.
The mother herself did not in person attend this hearing. Neither of the children was in California at any time after May 1944. No notice or process designed to bring them before the California Court was given or served upon them so far as this record discloses. Neither appeared personally or otherwise at the hearing.
Specifically, neither of these children was in California at the time of the hearing, or when the order modifying the interlocutory decree was made November 23, 1954.
On that date, however, the California Court, proceeding under Cal. Civ. Code, section 138, modified its judgment of May 18, 1944, to provide:
“* * * The defendant may have the physical custody of the minor children for the month of July of each year, beginning July, 1955; the defendant is ordered to provide the necessary transportation to and from the home of the plaintiff. The plaintiff is restrained from registering the minor children in school or elsewhere in any name other than their natural surname of Enke. * '* *”
Subsequently the father sought to have the children, Max and Karen, turned over to him on July 1, 1955. The mother refused to surrender them. This litigation followed.
In our consideration of this matter we are met first with the mother’s motion to quash the writ issued and to dismiss these proceedings. In our view this motion is not well taken. It is accordingly denied.
No particular formality is required to frame a petition sufficient to warrant the issuance of the writ of habeas corpus. Nor are the proceedings themselves marked by adherence to form. State ex rel. Giroux v. Giroux, 19 Mont. 149, 155, 156, 47 Pac. 798; McDowell v. Gould, 166 Ga. 670, 144 S. E. 206; 39 C. J. S., Habeas Corpus, section 80, pages 626, 627, section 82, page 635; 29 C. J., Habeas Corpus, section 158, pages 142, 143. Measured by the rule of these authorities we find the petition upon which the writ here issued sufficient and that E. C. M. 1947, section 94-101-2, is satisfied.
Moreover, when the writ has issued the function of the petition or application, therefor is fulfilled. 39 C. J. S., Habeas Corpus, section 80, page 629; 29 C. J., Habeas Corpus, section 158, page 143. Thereafter the pleadings or papers before the court whereon the.matter is heard are the return'made to the writ, which serves the purpose of a complaint'-on the part of-the respondent, and the traverse or other answer to that return-tendered by the petitioner. ’ On these papers- the court has jurisdiction to proceed. In re Collins, 151 Cal. 340, 342, 90 Pac. 827, 91 Pac. 397, 129 Am. St. Rep. 122; State v. Olsen, 53 Idaho 546, 549, 26 Pac. (2d) 127; 39 C. J. S., Habeas Corpus, section 88, pages 651, 652; 25 Am. Jur., Habeas Corpus, section 124, pages 235, 236. Without . more then wé turn directly to the 'merits.
There the question for decision is: Did the California Super- ■ ior Court at Los Angeles have jurisdiction on November 23, 1954, to modify the interlocutory judgment of May 18, 1944, and accordingly give the custody of Max and Karen Enke to the father for the month of July of each year? We conclude, the California Court had no such jurisdiction, that its' order of November 23, 1954, was therefore void.
To be specific: When in May 1944 these children were brought by'their mother from California to Helena, Montana, there to make their future home with her she acted in entire harmony with the California decree, which gave her the sole custody of these children and the right to determine their place of residence. Restatement, Conflict of Laws, sections 146, 32, pages 211, 57. She acted also with the consent and approval of the father as expressed in the settlement agreement of April 29, 1944.
Accordingly then she lost her California domicil, and acquired a new domicil of choice in Montana. Montana has been her domicil ever since. In re Coppock’s Estate, 72 Mont. 431, 434, 435, 436, 234 Pac. 258, 39 A. L. R. 1152; Restatement, Conflict of Laws, sections 29, 9, 15, pages 54, 17, 32. Likewise in May 1944 the domicil of Max and Karen Enke also was lawfully fixed in Montana. Their domicil too has remained here ever since; for it is settled law that minor children whose parents are divorced take the domicil of the parent to whose custody they have been legally given. R. C. M., 1947, section 61-121; In re Metcalf’s Estate, 93 Mont. 542, 546, 19 Pac. (2d) 905; Restatement, Conflict of Laws, section 32, page 57. Moreover, these children have never since been physically present within the State of California nor for that matter so far as this record shows out of the State of Montana.
In these circumstances the fundamental question whether the California Court had jurisdiction on November 23, 1954, to make a valid order awarding the physical custody of these children to the father has been answered by different courts, treatises and learned authors in at least three different ways. The California Supreme Court itself in Sampsell v. Superior Court, 32 Cal. (2d) 763, 777, 197 Pac. (2d) 739, 748, has recently summarized these divergent views with authorities noted to support each in a paragraph which merits quotation here:
“Several theories have been advanced with respect to the correct basis for jurisdiction over the subject matter of a child custody proceeding. According to one theory jurisdiction over children’s custody is based on in personam jurisdiction over the children’s parents. Anderson v. Anderson, 74 W. Va. 124, 126, 81 S. E. 706. Another theory regards the question of custody as simply one of status and as such subject to the control of the courts of the state where the child is domiciled. Rest. Conflicts 117, 148; see Goodrich, Custody of Children, 7 Corn. L. Q. 1, 2; 2 Beale, Conflict of Laws, page 717; Dorman v. Friendly, 146 Fla. 732, 740, 1 So. (2d) 734. A third theory requires the child to be physically present within the state, on the ground that the basic problem before the court is to determine what the best interest of the child is, and the court most qualified to do so is the one having access to the child. See Stumberg, Children and Conflict of Laws, 8 Univ. Chic. L. Rev. 42, 55-56; Stumberg, Conflict of Laws, page 299; Sheehy v. Sheehy, 88 N. H. 223, 225, 186 A. 1, 107 A. L. R. 635.”
Clearly in the Sampsell case where both parents as at bar were themselves before the court, California leans toward the second of these theories, if in truth its Supreme Court does not adopt that premise outright as the foundation for its decision there. For it appears beyond any question from that opinion that California’s jurisdiction in that case was bottomed upon the finding of a domicil for the child in California as distinguished from the personal jurisdiction which the lower court undoubtedly had over the parents, but which the California Supreme Court said was not enough. See Sampsell v. Superior Court, supra, 32 Cal. (2d) particularly at pages 773, 781, 197 Pac. (2d) at pages 746, 751.
Whether we are right or wrong, however, in our understanding of the Sampsell case, our own conclusion at this point is that the second of these statements of the principle of law here involved is sound, and should be made the rule of our decision in this case. For this conclusion there are solid reasons, as we see them, not the least of which is that in Talbot v. Talbot, 120 Mont. 167, 181 Pac. (2d) 148; and Thrift v. Thrift, 54 Mont. 463, 171 Pac. 272, this court has already committed itself to the doctrine that the state of a minor child’s domicil is the state vested with jurisdiction to control his custody.
In the Talbott case the facts differed from those of the controversy at bar, but the underlying principle, which determined the disposition of the writ of habeas corpus issued in that case, was nevertheless the same rule of law we apply in this proceeding. There Washington was the state of the domicil of the child whose custody was in issue, because Washington was the domicil of the parent (the mother) with whom the child lived after the separation of her parents and pending the divorce action' brought at Seattle against the father. See Talbot v. Talbot, supra, 120 Mont, at pages 172, 173, 181 Pac. (2d) at pages 150, 151. The authorities generally are in agreement here. Wear v. Wear, 130 Kan. 205, 222, 285 Pac. 606, 72 A. L. R. 425; Elliott v. Elliott, 181 Ga. 545, 182 S. E. 845; Callahan v. Callahan, 296 Ky. 444, 177 S. W. (2d) 565; Boardman v. Boardman, 135 Conn. 124, 138, 62 A. (2d) 521, 13 A. L. R. (2d) 295, and an notation at 306, pages 308 to 310; Restatement, Conflict of Laws, section 32, pages 57, 58; R. C. M. 1947, sections 61-105, 61-106; 1 Beale, Conflict of Laws, Ch. 2, section 32.2, page -216. Compare Cheever v. Wilson, 9 Wall. 108, 124, 76 U. S. 108, 124, 19 L. Ed. 604, 608. It followed upon these facts that Washington had jurisdiction to' award the custody of the child to the mother; and this court so held.
In Thrift v. Thrift, supra, the child of the parties lived with the father in Indiana, which was accordingly the state of his xlomicil. It followed. upon these facts that the Montana court had no jurisdiction to award the custody of this child to the mother; and this court so held.
In short, by our finding here that Max and Karen Enke have been domiciled in Montana since May 1944 we have forecast the necessary conclusion consistent with our own precedents in the Talbott and Thrift cases that the California Court • on November 23, 1954, was wholly without jurisdiction to enter any order touching their custody, because neither was then in, or domiciled within the State of California. But we do not pro- ■ pose to rest our judgment in this case alone upon the narrow premise of our own decisions.
In the Restatement, Conflict -of Laws, section 117, page 177, we find the rule in point put in these words: “ A state can exercise through its courts jurisdiction to determine the custody of children * * * only if the domicil of the person placed under custody * * * is within the state.” Translated into the language of the controversy in hand this sentence means that the Superior Court of the State of California at Los Angeles on November 23, 1954, lacked the jurisdiction essential to its exercise of the authority it assumed under section 138 of the California Civil Code when it undertook to give the custody of these children to the father for the month of July of each year, i. e., because the children were not then domiciled in California.
The weight of authority holds to this view. Kruse v. Kruse, 150 Kan. 946, 96 Pac. (2d) 849; In re Hughes, 73 Ariz. 97, 237 Pac. (2d) 1009; Elliott v. Elliott, supra; In re Erving, 109 N. J. Eq. 294, 157 A. 161; State ex rel. Larson v. Larson, 190 Minn. 489, 252 N. W. 329; Dorman v. Friendly, 146 Fla. 732, 1 So. (2d) 734; Gilman v. Morgan, 158 Fla. 605, 29 So. (2d) 372; Duryea v. Duryea, 46 Idaho 512, 269 Pac. 987; McAdams v. McFerron, 180 Miss. 644, 178 So. 333; Lake v. Lake, 63 Wyo. 375, 409 to 413, 182 Pac. (2d) 824; Callahan v. Callahan, supra; Commonwealth ex rel. Graham v. Graham, 367 Pa. 553, 80 A. (2d) 829; Commonwealth ex rel. Freed v. Freed, 172 Pa. Super. 276, 93 A. (2d) 863; In re Alderman, 157 N. C. 507, 73 S. E. 126, 39 L. R. A., N. S., 988; 2 Beale, Conflict of Laws, Ch. 5, section 144.3, pages 717 to 719; 2 Nelson, Divorce and Annulment (2d Ed.), Ch. 15, section 15.32, pages 216, 217; 43 C. J. S., Infants, section 5, pages 52, 53; 31 C. J., Infants, section 6, pages 988, 989; 17 Am. Jur., Divorce and Separation, section 689, page 524.
The reasoning which leads to this solution is rested upon the law’s recognition of the fact, which is not to be denied, that a child although a minor is nevertheless an entity distinct and apart from his father or mother, guardian or other person in whose custody by chance he may be at the moment. His separate existence is admitted, even when it is ignored. In general, however, as a person he has his individual rights under the law, and is held to an individual responsibility by the law, both commensurate with his age and mental stature.
In other words admittedly a minor has a juristic status of his own to which it is difficult indeed to deny recognition when his custody is the question before the court, and even though the contest is between his parents, who themselves have submitted to the jurisdiction of the court. For he is the real party in interest in any such case as is evidenced by the familiar rule that in awarding his custody the paramount inquiry is always his welfare and best interests.
It is thus that the custody of a minor has come to assume in the modern law at least the aspect of a distinct res akin to the marital status of husband and wife, but apart itself from either parent and always to be distinguished from their rights and responsibilities. Hence the rule that this res must in any case be before the court to give it the requisite jurisdiction, if the court would reach the question of custody. Hence the corollary of that rule that it is not enough the parents are themselves personally before the court bound by its orders and judgment, as the California Supreme Court put the problem in its opinion in the Sampsell case cited.
The res must also be there, or jurisdiction fails. That res is made up of the rights and obligations which the phrase “custody of a minor” connotes, and by almost universal agreement among courts and legal scholars today is inseparable from the domicil of the minor himself. Where then the minor’s domicil is not within the jurisdiction at the time,, as are the facts at bar, the res likewise is not within the jurisdiction. The courts may not proceed even with both parents before it. The authorities which we have noted heretofore in this opinion, fairly sustain this. statement of the law.
Nor is the father’s case bolstered by the argument of his eounsel that the California court had a continuing jurisdiction in November 1954 because it is conceded there was jurisdiction there in. May 1944. That original jurisdiction was voluntarily surrendered by California and accordingly lost to its courts when with the father’s consent the Superior Court at Los Angeles gave the sole custody of these children to the mother and itself consented that she fix their residence in Montana, or elsewhere outside of California, as she chose. She did not violate the California judgment or breach her agreement of April 29, 1944, with the father when she brought the children to Montana. This circumstance alone suffices to make the citation of State ex rel. Nipp v. District Court, 46 Mont. 425, 128 Pac. 590, and Hersey v. Hersey, 271 Mass. 545, 171 N. E. 815, 70 A. L. R. 518, pointless. This distinction is plainly drawn by the Massachusetts court in the Hersey Case, and is the nub of its decision there upon the question of jurisdiction presented. See 271 Mass, at page 551, 171 N. E. 818. Because this authority and others of like kind are upon their facts not applicable to our problem, we do not need to inquire further whether they reach a sound conclusion in point of law. Clearly they are not to be followed as precedents at bar. Nothing in Pearce v. Pearce, 30 Mont. 269, 76 Pac. 289, or State ex rel. Giroux v. Giroux, supra, or Kane v. Kane, 53 Mont. 519, 165 Pac. 457, is to the contrary.
Undoubtedly when a suit involving the custody of a minor is brought in the state of his domicil and process is personally served upon the person there vested with his custody, jurisdiction attaches to determine any question touching that custody which may be raised. This was the case here in California which led to the interlocutory judgment of May 18, 1944, and the final judgment entered a year later. Probably that jurisdiction could not have been defeated by taking the children out of California before this final judgment was entered. Talbott v. Talbott, supra; Maloney v. Maloney, 67 Cal. App. (2d) 278, 154 Pac. (2d) 426. But with that judgment that suit ended. True these judgments were subject to modification under Cal. Civ. Code, section 138, as in Montana a similar judgment may be modified under R. C. M. 1947, section 21-138.
Yet to effect such a modification it is requisite that the parties be again brought before the court. This is tacitly conceded by the father’s counsel at bar; for in October 1954 when the father moved the California Court to modify the original judgments his attorney served the mother in Montana to bring her again before that Court. Thereby the father initiated an entirely new proceeding in the old divorce suit, which had been closed in 1945. Unquestionably in that new proceeding the California Court reacquired jurisdiction over the mother in November 1954 when she appeared and litigated her rights before it. But that was not enough.
It was necessary also that the Superior Court have before it the subject matter. This the California Supreme Court itself has made very clear in its own opinion in Sampsell v. Superior Court, supra. This was as necessary to the jurisdiction of the Superior Court as that notice be given the mother, or that she appear personally. But the subject matter or res was at that time with, these children at their domicil in Montana. The California court was powerless therefore to act upon it. Again the authorities cited earlier in this opinion sustain the conclusion stated.
The view to the contrary, upon which counsel for the father rely, that the jurisdiction of the California court follows these children even under the facts of this case after their removal from that state does find support, however, in Maine in the dictum of Stetson v. Stetson, 80 Me. 483, 15 A. 60; in Missouri in a like dictum in Meredith v. Krauthoff, 191 Mo. App. 149, 187, 177 S. W. 1112, and perhaps in a few other states which have followed the Stetson case. But these decisions are in the decided minority, and of little force today for the reasons which we have already detailed. In many of the cases the language used is again nothing but dicta with little or no support in the facts. These holdings are against the present weight of authority and out of step wth the trend of the law now at this point. This is clearly pointed out in Beale, Conflict of Laws, supra, at pages 718, 719. We believe their reasoning is unsound. Accordingly we decline to accept them as persuasive precedents.
It follows then that the order of the California Court of November 23, 1954, does not come within the protection of the full faith and credit clause of the Constitution of the United States, U. S. Const. Art. IV, section 1, because it was made without jurisdiction. In re Alderman, supra; McAdams v. McFerron, supra; Gilman v. Morgan, supra; State ex rel. Larson v. Larson, supra; Griffin v. Griffin, 95 Or. 78, 187 Pac. 598. Compare Talbot v. Talbot, supra, 120 Mont. at page 175, 181 Pac. (2d) at page 152. It will accordingly be given no effect in Montana.
But the courts of Montana are, nevertheless, themselves open to the father where, in the state of his children’s domicil, he may be heard. Nothing said in this opinion is to be understood as foreclosing him from applying to the proper district court of this state for an order touching his children’s custody. But upon this record in this court he is entitled to no relief.
The writ of habeas corpus issued in these proceedings is discharged without prejudice; and the children, Max and Karen Enke, are remanded to the custody of the respondent, Jean S. Baucus.
MR. JUSTICES' ANGSTMAN and ANDERSON, concur.
|
[
23,
20,
18,
31,
-11,
-63,
-11,
24,
-19,
-41,
-36,
-2,
-11,
-13,
-48,
9,
-42,
-19,
17,
-61,
-26,
-6,
-69,
-7,
42,
28,
40,
31,
-33,
-10,
8,
-10,
38,
-36,
36,
3,
113,
11,
49,
-23,
25,
17,
23,
-28,
-31,
8,
-10,
47,
-11,
36,
23,
-33,
100,
16,
-2,
10,
40,
-5,
-8,
-18,
-25,
-26,
66,
-22,
-7,
-41,
47,
-22,
22,
-20,
49,
-24,
-39,
-9,
3,
-9,
24,
-41,
35,
0,
20,
39,
10,
-48,
0,
-16,
0,
-25,
12,
64,
0,
18,
-54,
7,
-2,
-5,
-55,
9,
-33,
43,
27,
-66,
17,
2,
39,
5,
-11,
8,
36,
35,
31,
16,
19,
-6,
19,
13,
-21,
-43,
-13,
-32,
-35,
46,
-2,
61,
-38,
-4,
-99,
-28,
60,
8,
-43,
-15,
32,
27,
-33,
-3,
-29,
-62,
2,
-47,
-60,
-40,
79,
10,
12,
37,
-38,
-8,
-17,
-12,
11,
-7,
13,
37,
46,
28,
-44,
-20,
36,
-3,
15,
-22,
26,
-6,
7,
-29,
-6,
34,
-35,
7,
10,
-38,
-15,
24,
4,
41,
-55,
9,
-12,
22,
44,
22,
-49,
-12,
-72,
33,
1,
33,
-5,
10,
-19,
5,
49,
12,
-27,
38,
-9,
4,
-3,
-12,
3,
3,
24,
33,
-46,
24,
43,
63,
35,
3,
17,
22,
-26,
-9,
-26,
5,
-7,
-20,
-85,
2,
45,
-36,
23,
-7,
-11,
-3,
25,
-5,
-7,
-42,
10,
-21,
2,
-16,
28,
-25,
-43,
9,
-18,
29,
-7,
-96,
31,
-20,
104,
12,
-38,
-13,
21,
24,
-13,
0,
-64,
35,
-25,
-40,
0,
36,
5,
-13,
-62,
-36,
-14,
-12,
-47,
-15,
2,
-29,
50,
37,
22,
16,
2,
-49,
-28,
9,
24,
41,
-8,
-45,
0,
-40,
-25,
16,
16,
-54,
31,
-38,
14,
10,
-53,
-5,
31,
-74,
36,
-55,
-37,
-10,
-7,
13,
-34,
-52,
6,
-21,
-4,
-35,
-19,
-21,
30,
-12,
-2,
17,
4,
-83,
-68,
30,
-25,
36,
-1,
9,
19,
5,
5,
-8,
16,
29,
4,
18,
-14,
30,
51,
24,
-13,
0,
-14,
13,
-1,
63,
21,
17,
-7,
-21,
37,
-15,
-15,
-22,
33,
48,
-31,
-25,
-35,
-38,
18,
-16,
-36,
-1,
7,
-22,
49,
-41,
2,
-35,
29,
-21,
-29,
-31,
78,
-24,
-2,
-61,
-5,
32,
8,
27,
33,
40,
-12,
15,
44,
3,
-66,
5,
-19,
-12,
53,
7,
31,
25,
0,
-45,
-28,
-58,
26,
16,
24,
-8,
-14,
-20,
18,
-47,
-35,
-11,
10,
52,
15,
-26,
21,
61,
43,
-15,
9,
-34,
32,
31,
64,
5,
-25,
-33,
-42,
12,
-34,
-5,
14,
-5,
1,
0,
15,
-55,
18,
-12,
-17,
34,
10,
52,
42,
-57,
-16,
8,
-3,
42,
5,
-14,
1,
89,
-24,
-7,
-16,
19,
42,
34,
39,
18,
-20,
11,
-25,
-6,
-2,
50,
-56,
-36,
-22,
1,
126,
18,
17,
20,
-12,
-8,
-13,
50,
17,
-10,
-26,
-10,
1,
68,
-24,
44,
-28,
-61,
-55,
-28,
-19,
20,
17,
29,
33,
-29,
-15,
-33,
12,
-46,
40,
29,
-31,
-44,
-31,
-32,
0,
-1,
17,
17,
74,
43,
5,
-15,
21,
9,
-57,
-19,
39,
-5,
-3,
-1,
-27,
44,
43,
15,
39,
9,
-20,
45,
30,
11,
10,
47,
65,
-8,
-33,
-12,
-34,
15,
-49,
37,
5,
-56,
30,
16,
-15,
-5,
40,
-22,
29,
-21,
-39,
-19,
60,
-16,
-21,
-16,
27,
-26,
-39,
57,
15,
-8,
35,
3,
-93,
-30,
73,
25,
-20,
-101,
-51,
33,
-12,
48,
-50,
0,
6,
35,
-3,
0,
10,
14,
-4,
7,
-28,
6,
43,
-2,
0,
-3,
-8,
-41,
35,
43,
2,
-14,
-50,
-69,
-38,
-25,
43,
47,
39,
12,
-11,
9,
-40,
65,
9,
-8,
-13,
-21,
46,
24,
-4,
-80,
4,
24,
-21,
24,
-19,
34,
5,
-13,
-38,
-6,
-31,
-15,
-9,
-8,
-9,
0,
7,
3,
1,
-32,
74,
17,
-20,
0,
44,
8,
17,
23,
39,
-13,
-16,
32,
-33,
1,
-39,
-33,
28,
-58,
43,
-53,
31,
-39,
16,
-3,
44,
56,
-27,
5,
-44,
9,
-21,
-24,
-4,
-32,
16,
4,
-35,
43,
8,
40,
10,
-6,
-10,
10,
-5,
41,
19,
66,
66,
27,
10,
3,
-23,
-34,
0,
-13,
82,
-21,
-54,
66,
-8,
-55,
5,
67,
-51,
-8,
-68,
3,
13,
-27,
15,
-40,
2,
-30,
-38,
19,
7,
49,
-46,
-1,
-40,
16,
-17,
6,
-63,
0,
14,
-14,
11,
1,
9,
27,
0,
37,
-13,
19,
74,
-11,
23,
-40,
26,
22,
20,
0,
29,
11,
21,
-35,
-40,
0,
-9,
-1,
-10,
5,
13,
-3,
-3,
-37,
-18,
38,
11,
0,
-16,
0,
-23,
0,
8,
-3,
-7,
76,
33,
57,
-36,
29,
-31,
-12,
-26,
-63,
60,
-16,
-16,
-51,
-58,
23,
-7,
-1,
1,
62,
0,
-9,
-68,
11,
17,
-8,
48,
-8,
50,
35,
24,
4,
34,
-9,
65,
-6,
54,
15,
-34,
12,
-1,
-21,
11,
28,
0,
20,
1,
-7,
-49,
1,
-49,
35,
-42,
1,
-19,
-6,
5,
-11,
-13,
-63,
35,
-14,
83,
-51,
15,
16,
89,
65,
19,
9,
16,
-17,
-12,
-23,
31,
20,
-65,
-40,
33,
-12,
15,
51,
24,
8,
36,
-92,
18,
5,
-11,
35,
74,
-20,
26,
-19,
-19,
64,
-10,
-72,
34,
15,
67,
37,
-49,
7,
2,
-25,
4,
-48,
90,
-9,
40,
31,
32,
-96,
-6,
2,
6,
-47,
36,
-24,
36,
16,
-3,
30,
-58,
-19,
-10,
16,
-6,
-13,
-55,
-60,
-17,
-20,
-18,
-11,
-34,
43,
-31,
-47,
-23,
-25,
12,
60,
-9,
-32,
18,
-27,
-9,
34,
52,
-18,
57,
-2,
-4,
-8,
-9,
-1,
-8,
40,
4,
-31,
40,
-52,
-14,
30,
-1,
1,
-27,
13,
-35,
53,
17,
15,
-79,
-64,
34,
5,
30,
38,
-33,
-9,
17,
0,
-33,
-4,
60,
68,
12,
-83,
-78,
-29,
19,
-7,
-3,
-10,
8,
45,
-25,
-11,
0,
7,
-34,
64,
-14,
67,
-32,
-38,
37,
22,
-13,
-66,
13,
21,
-32,
64,
33,
21,
-6,
-55,
18,
9,
23,
48,
10,
18,
-13,
-20,
-30,
43,
-47,
-26,
62,
-26,
-15,
-45,
47,
19,
21,
-104,
2,
-17,
-59,
-21,
0,
-15,
6,
-45,
-89,
-7,
-24,
-11,
-1,
-25,
1,
-62,
-27,
-32,
-28,
15,
17,
33,
-5,
-39,
65,
-16
] |
Per Curiam.
Pursuant to the stipulation on file herein, and in accordance therewith, it is hereby ordered, adjudged, and decreed that the petition for a writ of prohibition, or other appropriate Writ, filed herein by relators, herein, be and the same is hereby dismissed, and that the order to show cause issued out of this Court on the 11th day of October, 1955, be and the same is hereby dismissed, and that said action be returned to the District Court of the State of Montana, in and for the County of Sanders, for further proceedings.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES ANGSTMAN, ANDERSON, DAVIS and BOTTOMRY, concur.
|
[
-22,
-30,
68,
34,
-26,
-29,
-24,
42,
-50,
7,
-44,
-47,
-72,
-12,
-8,
30,
-21,
-35,
20,
4,
28,
42,
-53,
-13,
45,
3,
-23,
47,
15,
0,
6,
-5,
-2,
19,
31,
-19,
22,
26,
14,
-4,
32,
43,
43,
48,
-6,
-45,
-20,
23,
6,
27,
25,
7,
-4,
-34,
-67,
29,
-45,
-30,
10,
50,
-9,
0,
7,
14,
35,
5,
23,
19,
6,
68,
31,
24,
-21,
-5,
35,
38,
-47,
-22,
-40,
18,
-20,
55,
21,
32,
-15,
-16,
-36,
12,
33,
-9,
-30,
-14,
-10,
-48,
-43,
-5,
-27,
-1,
6,
-41,
0,
-21,
-22,
-24,
8,
-79,
-52,
38,
-12,
36,
-20,
-28,
-38,
-10,
50,
85,
-33,
62,
38,
15,
19,
18,
-4,
-14,
-62,
13,
-8,
63,
19,
-14,
2,
-16,
19,
-5,
-23,
32,
-14,
1,
-49,
-35,
40,
-14,
40,
30,
30,
-4,
-8,
67,
-9,
-19,
-4,
41,
-14,
83,
-33,
36,
8,
-77,
27,
-30,
-5,
-37,
27,
-14,
23,
31,
-33,
-14,
-49,
-34,
29,
-28,
-11,
72,
31,
-12,
-1,
-6,
17,
42,
0,
26,
6,
-36,
18,
13,
-48,
40,
-28,
-43,
-43,
-18,
52,
-51,
0,
-47,
23,
36,
-21,
0,
-36,
-8,
-29,
-14,
-18,
12,
-45,
18,
18,
7,
-15,
-59,
23,
-15,
20,
-11,
-37,
10,
12,
34,
-2,
-7,
9,
25,
28,
-62,
30,
35,
38,
26,
-38,
-22,
2,
-19,
82,
-34,
11,
-11,
-37,
41,
-23,
-24,
-41,
-42,
-23,
26,
-10,
24,
39,
-8,
63,
-8,
14,
7,
-45,
-14,
24,
7,
34,
-6,
26,
-28,
8,
28,
-51,
22,
31,
10,
58,
34,
0,
36,
5,
-8,
7,
-23,
-5,
-50,
5,
13,
-15,
-26,
-16,
24,
0,
6,
-15,
-55,
-45,
-28,
-25,
-40,
-32,
0,
32,
27,
-42,
-14,
-19,
-60,
-53,
48,
-25,
20,
-33,
-48,
-22,
24,
37,
-45,
-59,
45,
11,
-19,
-60,
-9,
-14,
37,
-24,
-43,
-7,
24,
-16,
26,
-54,
-18,
26,
55,
36,
15,
35,
-13,
-36,
5,
-60,
33,
4,
-2,
12,
46,
45,
-2,
-32,
51,
-36,
23,
10,
24,
-5,
24,
-22,
14,
75,
18,
19,
-9,
-18,
-40,
-27,
-29,
-24,
-14,
21,
30,
24,
-24,
29,
-16,
-20,
-14,
-10,
22,
12,
-35,
32,
18,
10,
-14,
-42,
11,
-25,
3,
53,
35,
-3,
27,
-5,
44,
-86,
-64,
-24,
-7,
-55,
-1,
13,
12,
36,
-8,
3,
40,
-3,
15,
-19,
1,
0,
-45,
6,
36,
43,
1,
-4,
5,
-55,
-9,
99,
47,
-74,
50,
16,
-15,
-2,
30,
-20,
28,
-27,
-25,
23,
-28,
36,
-6,
32,
-23,
10,
48,
-10,
8,
-24,
23,
26,
41,
-15,
-43,
-19,
-14,
-8,
-3,
0,
42,
19,
-42,
26,
38,
-37,
3,
-18,
53,
30,
63,
-38,
-48,
0,
29,
-31,
-21,
-31,
37,
26,
-31,
21,
-22,
-23,
-31,
1,
8,
-60,
-19,
-15,
-27,
-60,
-59,
29,
0,
10,
-47,
5,
-17,
-8,
24,
-23,
-18,
26,
-81,
-31,
-19,
-51,
-31,
-66,
-58,
-40,
45,
34,
-23,
-41,
3,
4,
15,
-41,
57,
-26,
-11,
8,
-53,
22,
-31,
-23,
34,
0,
-30,
9,
5,
-42,
6,
-16,
-51,
-17,
-30,
5,
-19,
11,
-15,
-41,
21,
-22,
6,
-5,
0,
-12,
5,
-12,
-25,
39,
-44,
17,
-6,
35,
9,
-55,
27,
-19,
40,
-2,
23,
-47,
-11,
2,
8,
-25,
-7,
2,
5,
-6,
-15,
-41,
13,
2,
67,
-17,
2,
22,
18,
0,
-41,
20,
-13,
39,
15,
9,
-28,
-28,
0,
28,
-1,
-34,
-3,
-9,
-19,
20,
-10,
-37,
-30,
-34,
-9,
44,
0,
28,
17,
-26,
65,
-34,
75,
-20,
17,
72,
40,
8,
-10,
8,
-6,
14,
-8,
43,
1,
-10,
62,
11,
24,
-5,
-10,
54,
3,
-2,
-23,
-40,
13,
11,
32,
-76,
-4,
36,
15,
-14,
30,
-8,
-49,
0,
48,
-11,
85,
-45,
-52,
-16,
18,
11,
-43,
40,
0,
47,
38,
54,
52,
36,
18,
-14,
-25,
-29,
-17,
-4,
-79,
61,
-69,
-13,
-22,
-14,
-16,
-13,
63,
11,
26,
-34,
56,
47,
13,
-40,
-2,
50,
9,
32,
25,
-21,
-69,
0,
6,
15,
1,
31,
11,
59,
25,
-44,
49,
46,
68,
-39,
52,
-35,
-2,
-29,
25,
8,
1,
47,
32,
3,
-2,
-58,
-23,
-62,
-23,
-1,
-2,
-52,
-29,
-27,
18,
-20,
-22,
-27,
-4,
-7,
-90,
-33,
24,
14,
22,
1,
-46,
-9,
-9,
4,
13,
46,
-9,
19,
-10,
16,
-15,
-39,
20,
-3,
-8,
11,
-18,
-31,
20,
-6,
-10,
-16,
13,
-27,
40,
-9,
-7,
-19,
-1,
17,
6,
23,
13,
3,
31,
58,
-18,
-13,
89,
-29,
36,
0,
21,
-40,
8,
62,
-46,
24,
-76,
-40,
0,
-67,
-13,
60,
30,
19,
-58,
-57,
-23,
14,
-19,
14,
51,
28,
17,
-6,
4,
52,
-21,
-13,
-7,
4,
-14,
8,
45,
-8,
52,
9,
-4,
3,
45,
-23,
43,
-60,
6,
-34,
9,
-43,
-13,
-12,
44,
-37,
-28,
-9,
-52,
27,
4,
22,
17,
32,
-9,
17,
-18,
3,
10,
81,
-7,
39,
-6,
-35,
18,
26,
-30,
-12,
-23,
-36,
55,
2,
-21,
24,
29,
-2,
55,
12,
5,
-2,
8,
-21,
73,
31,
12,
9,
-23,
58,
73,
11,
-26,
-2,
-43,
9,
-35,
0,
-4,
12,
45,
34,
-71,
51,
6,
-30,
-45,
30,
-37,
-1,
-38,
39,
23,
0,
-27,
14,
-17,
3,
-21,
-12,
-10,
70,
-47,
-31,
52,
36,
-5,
-45,
-43,
-22,
33,
-49,
7,
41,
27,
1,
17,
14,
48,
66,
-24,
6,
11,
-19,
36,
17,
-30,
-7,
30,
48,
-4,
25,
42,
-16,
23,
-5,
27,
-12,
-40,
29,
-19,
0,
5,
29,
8,
-49,
-25,
-17,
67,
32,
-25,
-48,
-29,
34,
32,
19,
22,
-5,
-43,
39,
-51,
3,
10,
4,
-12,
-45,
3,
-11,
66,
28,
-19,
-28,
20,
0,
38,
-63,
-2,
-38,
35,
12,
42,
-4,
23,
2,
87,
-21,
6,
-1,
48,
15,
55,
-14,
-24,
38,
-46,
-19,
0,
8,
55,
8,
-39,
35,
5,
-21,
-42,
19,
4,
-23,
-25,
-18,
5,
-17,
-27,
-40,
-68,
40,
-1,
16,
-35,
-29,
20,
-36,
-27,
-9,
-20,
12,
-6,
48,
0,
-8,
-25,
-18,
16,
-1,
-37
] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
By information Simeon E. Kindle and W. Edwin Kindle were charged with the murder of Gilbert Gilbertson. The case is here upon the state’s appeal as the result of a verdict of not guilty returned by the court’s direction. The main question presented is whether upon the trial the state proved the corpus delicti.
While the record is obscure in places, the following facts are pretty clear: Gilbertson and the defendants occupied adjoining ranches. A fence running east and west was the southern boundary of the Gilbertson ranch and the northern boundary of a portion of the Kindle ranch. On the morning of April 4, 1923, Gilbertson had in his hands what Mrs. Gilbertson termed a grub hoe, saying he was going to the east fence. This, it would seem, is not the east and west fence above referred to. About 1 o’clock Gilbertson not having returned, his wife went to a hill near by, from which a view of the coun try could be had, to look for him. While there she heard a shot. She then walked rapidly 160 steps to a cross-fence. At that point she observed distant three-quarters of a mile in the G-ilbertson field a man, not her husband, with a dog. As she stood at this fence she heard two shots which must have been fired within a short interval as she illustrated the time which elapsed between them by clapping her hands. Following these shots she saw “another man come from the northeast coulee draw.” Here the record is somewhat obscure but it is to the effect that she saw the two men go to the spot where Gilbert-son’s body was found; after which “one of them went home.” Mrs. Gilbertson then returned to the Gilbertson house and ascertained that her husband’s rifle was not there. She put on her coat and went to the east fence, about a mile distant. Not finding her husband there she evidently started to go to the southerly part of the ranch by way of a coulee; she again saw the man with the dog; this time they were in Kindle’s field. She testified that every time she would go down the coulee in a southerly direction the man in Kindle’s field would come north toward her. When she would retreat he would' also1. This happened two or three times. She then returned to her house, where she remained until the sheriff and his party came. She did not know of her husband’s death at that time. Another witness heard the three shots.
News of the shooting having reached Malta, the county seat, the sheriff, county attorney and others left for the scene. On the way they met Fred Kindle, a brother of the defendants, driving a Ford automobile. Where Fred Kindle was going does not appear, but when the sheriff reached the scene of the shooting Fred Kindle was there with the defendants. After leaving Fred Kindle the sheriff went to the Gilbertson house and from there to the east side of the ranch. Upon arriving there the sheriff observed three'men on a hill who proved to be the defendants and Fred Kindle. Of them he inquired as to the whereabouts of Gilbertson, whose body was not then in sight. One of the defendants, Edwin, according to the sheriff’s recollection, answered, and as a result of the conversation the party went toward the body, northwest about 100 feet. The body was lying in the decedent’s own field 85 feet north of his south (the east and west) fence. Gilbertson was lying on his back, arms and legs outstretched, his head to the south. He had been shot through the head. The bullet entered directly between the eyes; there the skin was tom evenly, while at the point of exit directly in the back of the head “the skin was irregular and pushed out.” The physician who examined the body did not observe any powder bums. There was not a gun or weapon of any kind near the body. On the contrary, Gilbertson’s rifle and also a Springfield rifle belonging to Edwin Kindle were found in the possession of the defendants. The gun belonging to the deceased did not have either a cartridge or a shell in the barrel. There was a shell in the magazine, but the sheriff was unable to extract that as it was lodged. In the barrel of the Kindle gun there was an empty shell.
After viewing the body, at the suggestion of the defendants the sheriff went to the fence and then to the edge of a coulee near by. The fence was found to be cut in several places. A ■pair of nippers was found there. The “Kindle boys” mentioned the fact that the fence was cut. About 100 yards distant the sheriff found the grub hoe, called by him an “adz,” with the handle broken. The sheriff searched for cartridges or shells; he “went down to the edge of this coulee and followed around the point of the hill up around this way and down to where the body was (indicating on the map),” accompanied by the county attorney, a Mr. Mills, and the three Kindle boys. A question as to whether he made the trip at the suggestion of “the Kindles” was objected to and the objection sustained. The sheriff was asked whether he learned the cause of Gilbert-son’s death, to which he answered: “Yes, sir. Q. From whom? A. Edwin Kindle. Q. And what did he give as the cause of his death?” 'This was objected to, the objection being that the state had failed to prove the corpus delicti. The court thought the objection well taken. Thereupon counsel for the state offered to prove by the testimony of Mr. Wolfe, the sheriff, the substance of a conversation between himself and Ed win Kindle in which the latter said he had shot Gilbertson, and in which the circumstances of the affray were described at some length. Further: “That upon approaching the defendants there at or near the place where the body was found and a little way from it, he asked one of the defendants where Gilbertson was and he replied: ‘He is damned easy found now; he is right over the hill there.’ That the witness asked him what happened, to which he replied: ‘I killed him; it was either get killed or kill him.’ That, when the witness and the defendants got in sight of the body Mrs. Gilbertson had run down to the body and was crying, and one of the defendants said: ‘Look at the damned old sow, how she is carrying on now. She knew that was going to happen, just as well as he did. She knew what he came out here for; knew there was going to be trouble.’ That while there a man by the name of Andy Anderson came up, and one of the defendants stated, in the presence of the other and in the presence of the witness, to Andy Anderson, ‘You knew this was going to happen, Andy.’ ”
The offer was denied, the court holding that the corpus delicti must be proved before the prosecution may give in evidence any statement of the defendants. Commenting on the situation, the court remarked: “There is only one question: As to whether there can be an inference drawn from the tes timony so far, as to whether there was a criminal agency. I am frank to say to you until State v. Riggs was announced you had abundant testimony here for a corpus delicti.” The learned judge was of the opinion that this court, in State v. Riggs, 61 Mont. 25, 201 Pac. 272, had laid down a more stringent rule respecting proof of the corpus delicti than had been indicated in some of its earlier decisions.
Generally speaking, the term “corpus delicti,” when applied to any particular offense means that the specific crime charged has actually been committed by someone, and it is made up of two elements: First, that a certain result has been produced, as that a man has died; second, that someone is criminally responsible for the result, as for the death. (7 R. C. L. 774.)
Section 10062, Revised Codes of 1921, reads as follows: “No person can be convicted of murder or manslaughter unless the death of the person, alleged to have been killed, and the fact of the killing by the defendant as alleged, are established as independent acts; the former by direct proof, and the latter beyond a reasonable doubt.”
In a prosecution for murder proof of the corpus delicti does not necessarily carry with it the identity of the slain nor of the slayer. Under the statute the only fact required to be proved directly is the death of the person alleged to have been killed. The identity of such person, if in doubt, and of the killing by the defendant, may be proved by direct or by indirect or circumstantial evidence. (State v. Pepo, 23 Mont. 473, 59 Pac. 721; State v. Calder, 23 Mont. 504, 59 Pac. 903; State v. Nordall, 38 Mont. 327, 99 Pac. 960.) The Biggs Case is to the same effect. To sustain the charge against 'the defendants it was, of course, necessary for the state to prove that the crime charged had been committed and the defendants, or one of them, committed it. In such case a mere showing of the fact of death is not sufficient; it must appear also that it came about through criminal agency. As said in the Riggs Case, in order to sustain a conviction proof of the criminal agency is as indispensable as the proof of death. But no universal and invariable rule can be laid down as to what will amount to proof of criminal agency, as each case must depend upon its own peculiar circumstances; and when there is any evidence, direct, indirect or circumstantial, tending to prove the fact, it is for the jury to pass upon its sufficiency. If however, the evidence is fairly susceptible to the construction that death was accidental, or the result of suicide, or due to a natural cause, then it is not sufficient to warrant a conviction, for the reason that in order to convict a defendant he must be proven guilty of the crime charged beyond a reasonable doubt. Pie cannot be convicted- when the evidence is fairly susceptible to a construction which will prove innocence as well as guilt. The Riggs Case did not attempt to, nor did it, go any further than this.
There was not a fact or circumstance indicating that G-ilbert son’s death was the result of other than criminal agency. Suicide was out of the question. If he met death through accident, surely it was not of his own causing.
The proffered testimony should have been admitted. But' counsel for defendants say if the testimony had been admitted it would have proven that Edwin Kindle in shooting the deceased acted in self-defense. Possibly a jury would have come, to that conclusion; but by its action in excluding the proffered’ testimony the court precluded the state from developing itsi case, and we may not assume that it did not have other testimony tending to show the guilt not only of Edwin Kindle but) of Simeon. Discrepancies appear reflecting upon Edwin Kindle’s story, even upon the evidence admitted and that offered.i •It is urged, too, that the testimony adduced and offered does’ not connect Simeon Kindle with the alleged crime. But Edwin' and Simeon were on trial jointly. The action of their counsel' contributed to the error into which the court fell, as a result of which the state was unable to make out its case. In view of' this situation and until further proceeding Simeon’s position’ will be held to be identical with Edwin’s.
Counsel for defendants also suggests that the state should notj have been permitted to introduce the proffered testimony for the reason that it consists of a confession of Edwin Kindle, and there was no preliminary proof that it was made volun-j tarily. Whether it consists of a confession or an admission! the record does not indicate that any inducement was held outj to cause Kindle to make it; on the contrary, it appears thátl he talked voluntarily, freely, even eagerly. There does not’ seem to be any merit in the objection. (State v. Guie, 56 Mont. 485, 186 Pac. 329; State v. Stevens, 60 Mont. 390, 199 Pac. 256.)
The judgment is reversed and the cause is remanded to the1 district court of Phillips county, with directions to grant a new' trial.
jReversed and remanded.
Associate Justices Holloway, Galen and Stark concur.
Mr. Justice Cooper, being absent, did not hear the argument] and takes no part in the foregoing decision.
|
[
6,
-12,
25,
2,
6,
-55,
-43,
37,
33,
11,
22,
20,
-10,
-4,
-11,
29,
-39,
-35,
30,
31,
-26,
-6,
-24,
-18,
-30,
-32,
-19,
16,
-27,
13,
87,
46,
17,
-8,
62,
27,
54,
-8,
-18,
-22,
16,
-40,
23,
-54,
53,
44,
-14,
-88,
-20,
-25,
28,
-63,
46,
12,
6,
0,
-21,
42,
4,
36,
78,
-26,
4,
-7,
-33,
8,
82,
-3,
0,
-22,
-7,
-45,
4,
5,
7,
1,
47,
-47,
-22,
-9,
-28,
12,
-3,
2,
-4,
-76,
-61,
-66,
-61,
25,
46,
35,
46,
-15,
41,
16,
15,
-27,
-49,
27,
-9,
-53,
-31,
-7,
36,
-44,
-39,
-5,
67,
-2,
17,
73,
28,
90,
-9,
1,
19,
-66,
-64,
7,
-45,
18,
23,
-30,
-6,
18,
-29,
-7,
71,
-26,
-61,
32,
57,
2,
4,
-56,
6,
-50,
11,
-29,
-40,
35,
-1,
-9,
8,
47,
5,
74,
-51,
31,
1,
-3,
8,
39,
57,
-43,
22,
-24,
-30,
9,
-19,
-22,
23,
-10,
-14,
48,
-26,
-42,
-21,
-19,
-38,
0,
1,
35,
41,
23,
-44,
-32,
-25,
9,
49,
33,
9,
-40,
-34,
-9,
-4,
-3,
9,
14,
-38,
43,
69,
-63,
-12,
58,
-37,
-37,
8,
-31,
28,
4,
-24,
-33,
19,
-12,
33,
51,
70,
-20,
-11,
11,
-9,
-10,
5,
-24,
-47,
-53,
-4,
8,
13,
2,
-8,
5,
34,
-31,
-11,
16,
11,
17,
11,
50,
-21,
-24,
-3,
-46,
-7,
-13,
-17,
-19,
34,
-48,
24,
-6,
61,
51,
7,
-6,
-32,
26,
-30,
-11,
21,
11,
14,
50,
-17,
-7,
27,
-27,
0,
-41,
34,
6,
-10,
47,
9,
-14,
-7,
-14,
-6,
-59,
-39,
30,
-19,
-33,
52,
18,
-16,
6,
52,
4,
-4,
20,
-3,
-34,
6,
13,
20,
-35,
22,
-31,
-19,
-37,
51,
-1,
69,
13,
31,
7,
32,
-31,
21,
9,
-10,
12,
-12,
-4,
-25,
-35,
-26,
60,
27,
2,
6,
42,
-21,
-30,
58,
-13,
-22,
-1,
19,
-10,
24,
12,
-33,
-4,
-31,
15,
11,
64,
-3,
59,
-1,
-8,
-86,
32,
19,
-29,
-29,
-23,
-9,
49,
-31,
-3,
-12,
24,
-60,
-7,
-26,
9,
-22,
-12,
-61,
-26,
10,
-17,
67,
-42,
52,
-32,
-5,
54,
-47,
-27,
0,
-104,
29,
-7,
12,
16,
6,
-6,
3,
13,
31,
22,
70,
10,
28,
28,
0,
11,
7,
-3,
12,
-15,
18,
37,
-22,
12,
-30,
29,
9,
-31,
0,
5,
24,
-87,
-59,
18,
1,
-47,
-30,
38,
-43,
21,
-67,
-13,
14,
-25,
25,
-36,
56,
-13,
-73,
31,
1,
-28,
31,
-2,
102,
85,
-1,
-15,
-32,
-18,
-35,
-32,
36,
-12,
2,
-1,
-38,
33,
-4,
25,
33,
-6,
-22,
-22,
-10,
63,
-11,
-7,
-19,
53,
53,
-25,
-11,
11,
-1,
-10,
-35,
-5,
11,
-35,
24,
-41,
-3,
2,
2,
15,
19,
-13,
-66,
-4,
-3,
0,
121,
-27,
27,
-50,
4,
4,
5,
27,
19,
-40,
-46,
-65,
66,
7,
-28,
44,
-51,
-63,
58,
18,
37,
-1,
0,
-11,
-44,
-22,
7,
-38,
16,
1,
-35,
-17,
-6,
-14,
0,
9,
26,
28,
15,
45,
70,
-37,
-49,
-27,
-8,
0,
41,
20,
2,
0,
27,
2,
-5,
58,
-7,
-38,
62,
-20,
-8,
-16,
-68,
5,
-40,
17,
28,
33,
-25,
16,
36,
-46,
8,
-11,
78,
40,
-32,
9,
50,
-59,
16,
14,
10,
54,
-11,
-23,
5,
-51,
13,
-17,
3,
17,
-22,
-11,
-42,
-1,
0,
13,
-42,
31,
14,
-50,
10,
41,
5,
-6,
19,
-51,
-11,
32,
14,
32,
-20,
-28,
-61,
35,
22,
57,
-7,
53,
-2,
29,
-78,
53,
-11,
10,
-32,
-23,
5,
-18,
-24,
-14,
13,
48,
-2,
37,
-8,
27,
1,
-30,
50,
-2,
-34,
6,
10,
25,
13,
17,
-19,
-24,
10,
-29,
-25,
-10,
-54,
53,
33,
-33,
-33,
46,
-5,
-38,
-18,
24,
48,
87,
-38,
10,
64,
10,
-58,
5,
11,
-27,
8,
-26,
-42,
5,
-22,
-16,
-11,
-12,
-3,
1,
-19,
-2,
-15,
41,
-10,
3,
3,
58,
17,
42,
-66,
-34,
25,
-7,
1,
-7,
-15,
10,
12,
-25,
6,
-36,
-71,
-3,
25,
57,
43,
-9,
46,
-12,
3,
17,
37,
62,
-13,
3,
-32,
44,
-8,
9,
39,
31,
-6,
-34,
49,
1,
-5,
-62,
16,
-24,
2,
-19,
35,
15,
23,
-76,
-23,
-25,
-16,
18,
10,
-36,
-80,
-32,
43,
-43,
7,
20,
41,
34,
6,
-33,
41,
6,
3,
55,
48,
41,
44,
-1,
-66,
9,
-1,
-9,
-12,
37,
-9,
-50,
-86,
-32,
34,
9,
-1,
17,
16,
-72,
56,
-6,
79,
53,
58,
-98,
-21,
0,
17,
38,
-46,
-14,
57,
25,
6,
-54,
-58,
-23,
-3,
24,
9,
20,
-20,
-50,
-39,
46,
-17,
41,
-2,
16,
39,
19,
-8,
25,
-35,
-64,
45,
52,
-44,
47,
25,
9,
-27,
-15,
-29,
2,
-47,
-40,
-1,
-29,
-22,
105,
36,
-35,
33,
5,
32,
-25,
-1,
-8,
4,
33,
16,
13,
6,
-12,
-33,
-27,
-1,
-39,
-26,
-32,
10,
-29,
47,
10,
18,
32,
2,
-36,
-87,
2,
3,
19,
-32,
36,
-29,
-1,
2,
-22,
-28,
12,
-34,
101,
-18,
-4,
55,
-39,
-27,
-24,
5,
7,
21,
10,
44,
15,
-48,
0,
12,
0,
-10,
-19,
-28,
-36,
11,
-68,
5,
5,
104,
-15,
-23,
20,
-69,
4,
83,
7,
-52,
64,
-22,
-27,
36,
26,
-34,
-29,
-8,
5,
5,
3,
-12,
3,
34,
-16,
-35,
-24,
32,
8,
-27,
-35,
-16,
-9,
40,
7,
3,
-2,
-27,
39,
70,
-18,
-16,
-2,
51,
-20,
27,
-52,
-34,
34,
-37,
28,
-71,
-1,
-2,
-45,
-7,
-5,
23,
7,
21,
-5,
-44,
-3,
14,
62,
-28,
-2,
-25,
-60,
8,
52,
-1,
-21,
-6,
-23,
-11,
6,
1,
24,
36,
37,
15,
-50,
-51,
55,
44,
40,
2,
59,
10,
-17,
-30,
-55,
-4,
26,
-76,
-13,
7,
-56,
1,
-4,
2,
11,
21,
0,
45,
-45,
46,
-21,
33,
-27,
-6,
29,
-25,
-73,
16,
44,
-46,
-1,
57,
20,
-5,
-43,
-28,
8,
-55,
-37,
-20,
48,
-19,
30,
-11,
-11,
-32,
-13,
-3,
-40,
13,
-11,
40,
-14,
-27,
26,
28,
-51,
-62,
-15,
54,
-18,
17,
27,
22,
15,
0,
-37,
-24,
-11,
-12,
12
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.