text
stringlengths 11
196k
| embeddings
listlengths 1.02k
1.02k
|
|---|---|
MR. JUSTICE FREEBOURN:
This action, one for an accounting, arises out of a partnership between Martin B. Schuster and Joseph N. Schuster, which functioned as The Northern Company, a Montana corporation. Part of the accounting involved certain lands in Musselshell county, described in the complaint and in which plaintiff claimed some interest.
By cross-complaint and counterclaim, the defendant company asserts title to these same lands under a warranty deed executed by plaintiff, and others, as grantors, to defendant company, as grantee, by virtue of a previous court action and asks judgment for moneys paid as taxes upon such lands and levied before and existing as a lien on such lands at the time the warranty deed was given.
Judgment was entered on said cross complaint and counterclaim in favor of defendant company in the amount of $4,051.74, and from this judgment plaintiff appeals.
When the action came up for trial on October 31, 1950, counsel for plaintiff, although eight defendants were named in the complaint, announced “we are not ready for trial” because “there has been no service on any of the defendants with the exception of the corporation itself. * * * we have only one defendant here,” the Northern Company, a corporation, “and it is absolutely necessary to have the other parties in interest in court. * * * We have been unable to get service here.”
The trial court then, upon motion of defendant’s counsel, made, in part, the following order: ‘ ‘ The case has been pending more than three years and there has been no service of summons” upon certain of the individual defendants. “It appears from the records and files of said cause that the complaint in this action was filed the 4th day of October 1947, and summons was issued out of said court on the same date and that the only defendants served in said action, and the only appearances made for any defendant apply to The Northern Company, a Montana corporation, and Elizabeth Ann Colton, whose demurrer has been sustained and judgment entered in her favor, the court orders the action dismissed” as to the other defendants “leaving as the sole defendant in said cause The Northern Company, a Montana corporation.”
The court made the proper order in dismissing the action as to those defendants not served with summons within three years after the action was commenced, as shown by the record, and in so doing complied with R. C. M. 1947, see. 93-4705, subd. 7, which provides: “No action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion uf 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 trial court then announced: “* * the court will call for trial civil cause No. 5288, Martin B. Schuster, plaintiff, v. The Northern Company, a Montana corporation, defendant, and I will ask the plaintiff to proceed with the trial.”
Counsel for plaintiff announced: “# * I can’t proceed;” “I cannot offer proof because I am unable to sustain the claim without the necessary parties * '* *” “All right,” said the court, “in view of the statement of counsel for the plaintiff that no evidence will be offered on behalf of the plaintiff, the case stands for trial upon the counterclaim and cross-complaint of the defendant, The Northern Company, a Montana corporation.”
"Whereupon counsel for defendant company placed in evidence a warranty deed, covering the lands involved and dated July 17, 1947, in which Hannah T. Schuster, also known as H. T. Schuster, and Martin B. Schuster, her husband, and Mary Elizabeth Schuster, were grantors and The Northern Company, a Montana corporation, was grantee.
Plaintiff’s reply admits that such “deed was given.”
According to the record this deed was “executed by the grantors to the grantee pursuant to a judgment or a final decree of the district court for Musselshell county, Montana, entered July 9, 1947, in a certain action in said court brought by The. Northern Company, the grantee herein as plaintiff, against Hannah T. Schuster, Martin B. Schuster and Mary Elizabeth Schuster, among others, as defendants, they being the grantors herein. The consideration for this deed is the judgment or decree of the court aforesaid and the directions therein contained for the execution of these presents.”
The testimony of the county treasurer disclosed that, at the time the warranty deed was given on July 17, 1947, taxes on the property described therein, were delinquent “from 1942 up until 1947” in the amount of $4,051.74, not including penalty and interest.
Such delinquent taxes were “all paid up” and “all paid in the name of The Northern Company” on July 18, 1947, as shown by the certificates of redemption, The Northern Company having “made application to redeem the property sold.”
The evidence further shows that the $4,051.74, so paid, was never repaid “into The Northern Company.”
The matter being submitted, the trial court, on November 10, 1950, rendered judgment in favor of the defendant company and against the plaintiff in the said amount of $4,051.74.
Thereafter, on April 28, 1951, the plaintiff appealed from ‘ ‘ said final judgment. ’ ’
Appellant’s specifications of error grow out of the contention that the covenants, as worded and contained in the said warranty deed, do not warrant, covenant, or promise that there were no delinquent taxes against the property described in the warranty deed on the date of the execution and delivery of such deed.
The warranty clause of the warranty deed provides: “* * * the said parties of the first part, * * # do hereby covenant that they will forever warrant and defend the right, title and interest in and to the said premises, and the quiet and peaceable possession thereof unto the said party of the second part * * * against the acts and deeds of said parties of the first part, and all and every person or persons whomsoever lawfully claiming * * * the same * * *. ’ ’
In Milot v. Reed, 11 Mont. 568, 29 Pac. 343, 344, this court said:
“Looking now at the covenant of the deed pleaded in the complaint, we find it contains two distinct propositions of warranty: (1) To warrant and defend plaintiff’s ‘right, title, and interest in and to said premises;’ and (2) ‘the quiet and peaceable possession thereof.’ To what extent? ‘Unto the said party of the second part, his heirs and assigns, against the acts and deeds of said party of the first part, and all and every person and persons whomsoever lawfully claiming or to claim the same. ’
“We have no doubt that this warranty was sufficient, to compel the grantor to answer for the taxes lawfully levied on said lands, and existing as a lien thereon at the time he made and delivered the deed in question.”
Under R. C. M. 1947, sec. 84-3809, the unpaid taxes became a lien upon the lands, section 84-3809 providing that: “Every tax due upon real property is a lien against the property assessed; and every tax due upon improvements upon real estate assessed to others than the owner of the real estate is a lien upon the land and improvements; which several liens attach as of the first Monday of March in each year.”
Such unpaid taxes became an encumbrance upon the lands by virtue of R. C. M. 1947, sec. 67-1617, which provides: “The term ‘encumbrances’ includes taxes, assessments, and all liens upon real property. ’ ’
Since the warranty deed provides that the “parties of the first part * * * do by these presents grant * * * unto the Northern Company” the lands described therein, the grantors impliedly, under the statutes, covenanted that, at the time of the execution of such deed, the lands were free from delinquent taxes.
And such implied covenant could be sued upon as if expressly set out in the deed. R. C. M. 1947, sec. 67-1616, in part provides:
“Prom the use of the word ‘grant’ in any conveyance by which an estate of inheritance or fee simple or possessory title is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs and assigns, are implied, unless restrained by express terms contained in such conveyance: * * *.
“2. That such estate is at the time of the execution of such conveyance free from encumbrances done, made, or suffered by the grantor, or any person claiming under him.
“Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance.”
The trial court, in its final judgment made subsequent to the trial, ordered “that plaintiff’s complaint be, and the same is hereby dismissed with prejudice as against the defendant, The Northern Company, a Montana corporation * * Appellant has assigned such dismissal with prejudice as error.
The trial court called the cause for trial and asked “the plaintiff to proceed with the trial.”
“Mr. Brown: I will state to your Honor, as I have stated heretofore, I can’t proceed. * * * I cannot offer proof because I am unable to sustain the claim without the necessary parties which counsel on the other side has also shown are necessary to the carrying out of the requirements of the complaint.
£ £ The Court: All right, in view of the statement of counsel for the plaintiff that no evidence will be offered on behalf of the plaintiff, the case stands for trial upon the counterclaim and cross complaint of the defendant, The Northern Company, a Montana corporation.”
Whereupon the trial proceeded upon such counterclaim and resulted in judgment for the defendant company, which judgment dismissed plaintiff’s complaint, as against The Northern Company, with prejudice. The trial court, in dismissing such complaint with prejudice, held that plaintiff was barred from proceeding with his cause of action against The Northern Company in a future action.
The term “with prejudice” as used in a judgment of dismissal has a well-recognized legal import. It is the converse of the term “without prejudice,” and a judgment or decree of dismissal with prejudice is as conclusive of the rights of the parties as if the suit had been prosecuted to a final adjudication adverse to the plaintiff. Union Indemnity Co. v. Benton County Lumber Co., 179 Ark. 752, 18 S. W. (2d) 327.
The terms “with prejudice” and “without prejudice” have been recognized as having reference to, and being determinative of, the right to bring a future action. Hargis v. Robinson, 70 Kan. 589, 79 Pac. 119.
There is no question but, had no counterclaim been made or affirmative relief sought by the defendant company in its answer, that the plaintiff upon payment of costs would have the right to a dismissal without prejudice to the commencement of another action for the same cause.
Such right to a dismissal without prejudice to another action was lost when such counterclaim was made by the answer of defendant company, R. C. M. 1947, sec. 93-4705, providing: “An action may be dismissed * * *: 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. * * * ”
As said in State ex rel. Cornue v. Lindsay, 24 Mont. 352, 61 Pac. 883, 885: “A plaintiff may dismiss or discontinue an action where no judgment other than for costs can be recovered against him by the defendant; but when, under the pleadings and evidence relevant thereto, such other judgment may be recovered, the plaintiff will not be permitted, as of course, to dismiss or discontinue.”
It appears from the record that when the trial court asked plaintiff “to proceed with the trial,” plaintiff failed, and in effect refused, to proceed with the trial of his action or offer any evidence in support of the allegations of his complaint. Plaintiff participated in the trial upon defendant company’s counterclaim by objections made and cross-examination of witnesses.
Appellant asserts that, notwithstanding the foregoing facts and law, because of R. C. M. 1947, sec. 93-4708, such dismissal with prejudice should not have been made. Section 93-4708 provides: “A final judgment dismissing the complaint, either before or after a trial, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment-roll, that it is rendered upon its merits.”
Under R. C. M. 1947, sec. 93-4708, it must be shown that the judgment is upon the merits, and the fact that it is upon the merits must appear by express declaration either from the judgment or elsewhere from the judgment roll. Glass v. Basin etc. Min. Co., 35 Mont. 567, 90 Pac. 753; Bennetts v. Silver Bow Amusement Co., 65 Mont. 340, 211 Pac. 336; Dunseth v. Butte Electric Ry., 41 Mont. 14, 108 Pac. 567.
A judgment of dismissal “upon the merits” does not mean it is a judgment of dismissal only after the rights and wrongs of the parties have been tried. Kleinschmidt v. Binzel, 14 Mont. 31, 35 Pac. 460, 43 Am. St. Rep. 604; Glass v. Basin etc. Min. Co., supra; Clark v. Oregon Short Line R. R., 38 Mont. 177, 99 Pac. 298; Dunseth v. Butte Electric Ry., supra.
In Dunseth v. Butte Electric Ry., this court said [41 Mont. 14, 108 Pac. 569] : “A judgment against the plaintiff on the merits, in the broadest sense of the expression, determines that he has no cause of action against the defendant. In a more restricted sense the words are sometimes used to indicate that he cannot recover in the particular form of action. (Citing Glass v. Basin & Bay State Min. Co., supra). In the first instance he is permanently out of court * *
"Whether a judgment of dismissal is upon the merits largely depends upon the facts and circumstances of the particular case.
Surely a judgment of dismissal may be said to be on the merits when, after plaintiff has lost the right to a dismissal without prejudice, it appears that at the time set for trial he cannot make a case in support of his complaint, and not only fails and refuses to proceed with the presentation of his case, but participates in the trial upon defendant’s counterclaim.
The fact that plaintiff asserted, “I can’t proceed * * * I cannot offer proof because I am unable to sustain the claim without the necessary parties,” was not determinative of whether he could or could not make a case in support of the allegations of his complaint.
Apparently such assertion stemmed from the fact that summons and complaint were not served on the so-called necessary parties, because they were alleged to have resided outside the state of Montana. The so-called necessary parties who had been named as defendants could only aid plaintiff’s cause by giving testimony as witnesses at the trial.
Even though summons and complaint could not be legally served upon them, yet their depositions could have been taken, R. C. M. 1947, sec. 93-1801-4, and read at the trial, as though the witnesses themselves had testified. Although more than three years had elapsed between the filing of the complaint and the day set for trial, no such depositions were produced or offered to prove the allegations of plaintiff’s complaint. In the absence of such possible proof one may reasonably conclude that the claims of plaintiff, as set out in his complaint, were not meritorious.
Plaintiff instituted this suit. He knew that within a reasonable time after its institution he would be called upon to substantiate the allegations of his complaint with testimony and evidence. Yet more than three years after he has filed his complaint he comes into court and says, ‘ ‘ I cannot make a case. ’ ’
The rights of parties to a lawsuit must be settled “once and for all” and as expeditiously as possible. Union Bank & Trust Co. v. State Bank of Townsend, 103 Mont. 260, 62 Pac. (2d) 677, 682. As said in this case: “We do not think our laws were intended for the accomplishment of such delays and vexations, nor that the courts should lend themselves to the furtherance of procrastination. The law is neither a lottery nor a game of patience.”
The only judgment of dismissal justified here, under all the circumstances of the situation, was one which made final disposition of plaintiff’s claim against defendant, The Northern Company, as set out in the complaint, which was a dismissal with prejudice to a future action for the same cause.
The words, in the judgment dismissing the complaint, “with prejudice,” were an express statement that the dismissal was upon the merits.-
‘ ‘ A dismissal with prejudice has been held to be an adjudication on the merits of the case, a final disposition of the controversy which bars the right to bring or maintain an action on the same claim or cause of action.” Pully v. Chicago, R. I. & P. Ry., 122 Kan. 269, 251 Pac. 1100, 1101; Hargis v. Robinson, supra.
“A dismissal with prejudice is an adjudication on the merits of the case.” 27 C. J. S., Dismissal & Nonsuit, sec. 73, p. 255.
“Under the practice in some jurisdictions, when a plaintiff who has lost his right to dismiss without prejudice, and who, under the pleadings, has the burden of proof, fails or refuses to proceed to trial, the proper course for the court to pursue is to enter a judgment of dismissal with prejudice.” 27 C. J. S., Dismissal & Nonsuit, sec. 73, p. 256. See Hineline v. Minneapolis Honeywell Regulator Co., 8 Cir., 78 F. (2d) 854.
For the reasons stated the judgment of the district court is affirmed and the petition for rehearing denied.
MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICES BOTTOMLY, and ANGSTMAN, concur.
|
[
-11,
17,
15,
-10,
35,
-49,
62,
-15,
-5,
35,
33,
16,
31,
-17,
0,
-26,
-55,
-33,
20,
-27,
21,
-34,
-52,
0,
8,
-1,
-26,
-17,
8,
8,
-2,
-32,
-53,
-6,
-35,
53,
-35,
-4,
-42,
-16,
-14,
43,
50,
-13,
62,
-6,
10,
-32,
5,
1,
94,
7,
-16,
1,
-37,
-34,
-1,
53,
-20,
-14,
57,
-19,
52,
15,
54,
18,
2,
-23,
76,
-22,
-27,
30,
11,
9,
14,
-47,
-1,
-25,
5,
-7,
4,
-14,
14,
-16,
-41,
-25,
-62,
-12,
27,
26,
-1,
-32,
-18,
15,
-21,
27,
-41,
7,
-36,
20,
50,
-40,
-16,
-19,
-39,
-32,
-63,
-20,
37,
39,
-30,
21,
33,
-38,
18,
8,
-21,
-13,
20,
43,
-16,
6,
-4,
-1,
-25,
35,
-7,
27,
-31,
34,
5,
-9,
-13,
7,
-47,
-44,
-7,
-35,
-34,
-15,
54,
-33,
-54,
13,
10,
25,
25,
1,
-13,
7,
-53,
48,
76,
20,
-5,
-1,
61,
-29,
51,
-57,
53,
14,
1,
-8,
13,
25,
2,
9,
-35,
-28,
-8,
14,
-51,
-2,
0,
18,
6,
-15,
31,
21,
23,
-14,
24,
4,
42,
-21,
14,
-30,
8,
8,
32,
-3,
72,
23,
-48,
-27,
-3,
33,
26,
-34,
3,
-11,
-24,
3,
-23,
39,
53,
-46,
50,
-2,
7,
-38,
4,
-37,
-26,
-2,
-17,
-50,
-15,
-52,
-18,
1,
-41,
-12,
-26,
-62,
43,
19,
8,
4,
-25,
-2,
-18,
0,
-12,
-26,
-5,
-5,
-26,
-12,
-35,
-23,
10,
4,
34,
4,
-40,
1,
-7,
9,
-3,
-49,
-38,
34,
29,
-31,
15,
9,
3,
-40,
0,
52,
-39,
-13,
-37,
-36,
10,
13,
-15,
24,
12,
31,
25,
11,
-16,
-41,
40,
-2,
19,
11,
3,
-61,
3,
-38,
-17,
4,
-37,
-6,
-75,
-39,
-73,
28,
28,
-20,
33,
15,
-1,
-4,
-37,
6,
-29,
0,
3,
46,
21,
24,
-68,
22,
1,
19,
4,
27,
4,
-75,
17,
-21,
31,
8,
2,
-35,
48,
-19,
32,
30,
5,
-3,
-9,
-4,
31,
30,
-2,
-7,
-52,
6,
-26,
-47,
45,
-28,
-12,
6,
30,
23,
34,
-26,
-10,
41,
17,
-5,
-24,
47,
-30,
-19,
-11,
6,
17,
74,
-22,
-23,
-51,
44,
6,
-18,
-9,
-23,
-14,
0,
-36,
-16,
-10,
56,
-17,
15,
24,
-44,
-24,
7,
-48,
-6,
-22,
47,
40,
-59,
2,
32,
24,
10,
-20,
-42,
-12,
42,
-15,
39,
11,
43,
14,
-27,
-24,
-16,
-46,
40,
36,
10,
-3,
60,
9,
-71,
19,
8,
-17,
48,
15,
-22,
-2,
-16,
-12,
-1,
0,
-4,
-1,
0,
78,
31,
57,
-10,
-11,
-57,
58,
21,
-25,
0,
-7,
65,
-23,
2,
51,
-19,
-18,
-12,
8,
18,
21,
21,
-7,
-25,
-1,
-26,
20,
-18,
72,
-3,
0,
77,
-4,
-63,
5,
16,
42,
7,
-3,
-50,
10,
-17,
20,
15,
33,
-14,
44,
-33,
2,
104,
-20,
21,
7,
18,
-31,
-1,
39,
-39,
-49,
-24,
-20,
21,
-38,
57,
27,
-74,
2,
16,
-5,
48,
11,
24,
-32,
32,
-45,
-25,
-51,
-58,
22,
-15,
8,
-14,
71,
26,
-23,
56,
-18,
-7,
-42,
11,
12,
-1,
63,
-16,
10,
34,
37,
26,
-1,
0,
35,
69,
-34,
36,
-25,
-59,
-17,
16,
56,
14,
-48,
-11,
-38,
57,
-30,
-7,
34,
25,
-22,
-17,
-12,
43,
-4,
15,
-39,
11,
-20,
33,
6,
-27,
-10,
-17,
-3,
9,
13,
-2,
-4,
-54,
37,
15,
42,
10,
-10,
-38,
24,
-3,
-60,
-15,
19,
-30,
5,
19,
1,
3,
12,
7,
-33,
-14,
19,
-3,
-41,
-20,
34,
-87,
-37,
-4,
30,
-8,
4,
26,
-65,
-44,
-26,
-19,
28,
-51,
22,
-20,
-17,
31,
-32,
-11,
-31,
-34,
-12,
-6,
-32,
-16,
11,
9,
-16,
31,
0,
32,
-17,
-3,
8,
-60,
41,
-14,
14,
-34,
33,
23,
19,
-22,
-11,
19,
-41,
3,
-28,
-47,
-8,
16,
8,
1,
49,
8,
-38,
14,
16,
-34,
-15,
-17,
-36,
-43,
5,
24,
45,
7,
-9,
19,
-7,
-3,
-62,
28,
4,
0,
24,
-30,
24,
-17,
-1,
58,
40,
-24,
40,
-11,
43,
71,
36,
-73,
-42,
13,
-18,
-45,
30,
-56,
-4,
8,
0,
-3,
41,
35,
0,
-7,
14,
15,
-24,
-23,
-31,
19,
-23,
30,
-48,
-9,
34,
1,
20,
-13,
-32,
-4,
29,
53,
-6,
14,
-46,
-5,
24,
17,
-24,
-32,
4,
0,
-7,
18,
-60,
36,
-14,
0,
56,
-61,
-35,
21,
-4,
0,
37,
3,
-9,
6,
28,
20,
-1,
-18,
-47,
36,
27,
-48,
-25,
-15,
50,
-21,
16,
34,
-14,
8,
18,
-4,
-11,
-25,
36,
32,
8,
48,
46,
-61,
-38,
-11,
-42,
-33,
57,
-15,
24,
-11,
-38,
39,
-5,
-30,
3,
-30,
-12,
-5,
-44,
-78,
74,
83,
32,
31,
39,
47,
52,
-47,
-27,
-19,
-30,
-5,
6,
29,
-8,
56,
5,
-4,
40,
-49,
-62,
-4,
-34,
-9,
-37,
21,
-20,
38,
-3,
41,
30,
-27,
10,
12,
29,
-4,
-44,
-18,
6,
-21,
23,
-28,
-19,
30,
-12,
-37,
-40,
4,
24,
53,
-24,
21,
-42,
16,
4,
59,
8,
-7,
-55,
13,
10,
-8,
46,
-16,
-22,
-45,
-25,
-32,
-95,
-11,
29,
14,
-24,
-9,
-1,
-21,
-34,
36,
-6,
-5,
-50,
-22,
-15,
-35,
-9,
56,
-2,
-30,
0,
6,
40,
-44,
16,
-9,
-17,
32,
0,
11,
26,
33,
-6,
-9,
47,
-28,
68,
34,
-31,
54,
-42,
7,
-39,
-2,
22,
22,
4,
7,
-38,
-66,
-40,
-39,
32,
-47,
0,
-27,
9,
35,
34,
25,
36,
14,
-35,
2,
-1,
-49,
26,
53,
42,
-21,
-17,
16,
-29,
-4,
18,
32,
21,
39,
10,
-47,
-46,
40,
-50,
39,
9,
2,
35,
56,
-60,
5,
0,
30,
35,
-28,
4,
-43,
26,
-20,
29,
-8,
44,
-8,
2,
20,
30,
-16,
13,
-20,
4,
59,
37,
54,
-22,
1,
8,
2,
40,
-31,
-3,
5,
-29,
-8,
-53,
-13,
-12,
-10,
22,
9,
-2,
-16,
13,
2,
-9,
28,
-11,
24,
0,
-6,
31,
5,
5,
10,
7,
-36,
-21,
-45,
17,
11,
64,
19,
11,
-17,
48,
-5,
48,
-39,
2,
-57,
88,
-27,
-9,
-41,
35,
12,
13,
32,
4,
-6,
-73,
-37,
66,
17,
-29,
8,
-18,
28,
15,
40,
-46,
8,
-6,
24
] |
MR. CHIEF JUSTICE ADAIR:
George Kustudia was employed as a coal miner by the Montana Coal & Iron Company. On March 20, 1947, while working in such employer’s mine near Washoe, Montana, George Kustudia was'struck by falling rock and thereby crushed and otherwise severely injured. The injuries so sustained arose out of and in the course of Kustudia’s employment and were compensable under the Workmen’s Compensation Act, the employer and workman having elected to become bound under Plan III thereof, B. C. M. 1947, sees. 92-1101 to 92-1123.
At the time of sustaining his injuries Kustudia was married and the father of four minor children, who, together with his wife, resided with and were dependent upon the injured workman for their support.
Following a hearing the industrial accident board of the State of Montana made findings and conclusions, — awarded Kustudia a total of 414 weeks on a partial permanent disability and denied him a lump sum payment, whereupon Kustudia appealed to the district court of Carbon County, which court, after a trial, entered a judgment for Kustudia setting aside the board’s findings, conclusions and award and adjudging that Kustudia be awarded a total disability rating; that he be paid for a full period of 500 weeks from and after the date of his injury on March 20, 1947, and that a lump sum award and payment be made to him.
This is an appeal by the industrial accident board from such judgment of the district court.
Dr. Means, who rendered first aid to Kustudia in Bed Lodge immediately after the accident, reported he found: “Extensive bruise, chest and pelvis, probable fracture of ribs possible pelvic injury and legs. Extensive bruises of all soft parts, possible abdominal injury, probable fracture left wrist. ’ ’
Dr. Means immediately caused the injured man to be-transported by ambulance to St. Vincent’s Hospital in Billings. At that time Kustudia was unconscious.
According to the report of Dr. Caraway of the hospital staff, Kustudia did not remember anything about his injury until after his arrival at the hospital in Billings, a distance of 59 miles from Bed Lodge.
In his report to the industrial accident board, Dr. Caraway, on December 29, 1948, in part, commented: “Looking at this man as a casualty of the accident in question, we would have to say that to all intents and purposes, he is a total permanent disability. ’ ’
Dr. Allard, the attending physician at the hospital in his certificate dated November 2, 1948, made answer to four questions as follows: “ Is injured workman physically capable of working f .No. If not, when will he be physically capable of working? Unknown. How long was he under your care? 3/20/47. Will he have a permanent disability? Yes.”
On December 20, 1951, the industrial accident board offered to make a compromise settlement with the claimant Kustudia for $2,585 in full settlement of his claim, but on December 27, 1951, the claimant declined to accept such offer.
At a hearing before the industrial accident board held at the courthouse in Billings on February 28, 1952, Kustudia testified: That he was then 60 years old, married and had three sons, aged 14, 12 and 9 and one daughter aged 10, all dependent upon him for support; that he, his wife and children still lived at Washoe where he worked at the time he was injured; that Washoe is about 4 miles from Bed Lodge; that Kustudia was born in Montenegro, Yugoslavia; that he came to Butte, Montana, in 1914; that he worked in the mines there until 1917; that in 1922 he was naturalized at Bed Lodge; that he had never attended school either in Montenegro or in the United States; that a friend had taught him how to write his name in his own language and also in English; that he was confined in the hospital at Billings for 29 days and that he served in the United States Army from 1917 to 1919, being discharged therefrom on April 24, 1919.
Kustudia also testified: “Q. And since March 20th of 1947, have you worked at all? A. No, I never could work.
“Q. Have you earned any money whatsoever by work? A. Not one penny.
“Q. Are you able to work? A. No, I am not.
‘‘Q. And is that because of your injuries of March 20, 1947 ? A. All from the injury I got.”
At the hearing before the board a written report dated February 25, 1952, from Dr. Beal of Bed Lodge, who had examined Kustudia at the request of the latter’s attorney, was received in evidence. Dr. Beal’s report refers to the above mentioned report of Dr. Caraway of December 29, 1948, and also states: “Today this man has one hundred percent total permanent disability with an amount of physical ailments, which entirely prohibit any type of labor and a severe neurosis, which adds to his physical handicaps and further limits his activities. * * * This man will never work again in any capacity. Even if light work were available in this community I seriously doubt that this man could perform such work. ’ ’
Following the hearing the industrial accident board found and ordered that Kustudia is entitled to compensation at the rate of $23.50 per week for a period of 414 weeks for temporary total disability and permanent partial disability making a total of $9,729, of which amount he has already received $6,439 to and including June 19, 1952, leaving a balance of $3,290, which balance shall be paid at the rate of $94 each four weeks until such amount is paid in full. However the board’s order did not allow claimant a lump sum payment as authorized by section 92-715, R. C. M. 1947, as amended by Chapter 225, Laws of 1951.
Kustudia’s timely application for a rehearing was denied by the industrial accident board, whereupon the workman appealed to the district court.
On September 24, 1952, the cause came on for trial in the district court, counsel for the claimant Kustudia and counsel for the board being present and both stating they were ready to proceed. Thereupon counsel for claimant made an oral statement to the court of the prior proceedings that had been had before the board and of the findings and orders of the board and then stated that it would be necessary to introduce additional evidence as to the necessity for a lump sum award because additional reasons had arisen as to the necessity for a lump sum payment since the time of such hearing before the board, stating further that the claimant’s wife had material testimony to offer but was unable to attend the hearing before the board on February 28, 1952. Following such preliminary statement, counsel for the board stated that they had no objection to the admission of such additional evidence.
Thereupon counsel for claimant Kustudia called and examined various witnesses.
One witness, a real estate dealer in Red Lodge, testified he had been consulted by claimant about purchasing a house in Red Lodge; that the witness had a modern five room home in very good condition located on a 50 x 125 foot lot with a large garden plot in the back which he would sell for $3,500; that the house was equipped with gas and electricity and contained a bathroom; that there were three rooms on the first floor and two bedrooms upstairs with an enclosed porch in the rear which could be made into a bedroom very easily; that the house was not equipped with furniture except a piano which would go with the house; that the house was located only two blocks from the Red Lodge high school; that the witness would sell the house for a $2,000 down payment; that claimant could negotiate a loan with the Empire Building and Loan Association for the remaining $1,500, at a rate of 6 % interest and that monthly payments would be between $25 and $40 per month, which would include taxes, fire insurance and payments on the loan.
Claimant’s wife was called as a witness. She testified as to the names and ages of their four children and that her age was 38; that they all lived at Washoe; that her husband’s present income was $94 monthly from workmen’s compensation; $54 a month from the government as veteran’s pension for services in the first World War and a monthly pension of $100 from the Miners Union. That such amounts are the full income; that their eldest son, aged 14, works in a bakery in Red Lodge after school and receives $14 a week; that he attends school in Red Lodge; that their son Mark, aged 12, is in the eighth grade and will therefore attend school in Red Lodge the next year; that the other two children still attend grade school in Washoe, but the witness understands such school will probably be closed the next year in which event in order to attend school the children will be required to journey to Red Lodge, a distance of about five miles; that there is no school bus from Washoe to Red Lodge; that where Kustudia’s family now live they cannot raise a garden; that the home has only four rooms and a porch; that the home has no bath; that it is not large enough for the family; that the condition of the dwelling is such that it could not be moved; that the Kustudias own the present furniture in their home; that the children are all desirous of attending church services but there are no such services at Washoe; that the witness understands that if a lump sum settlement is made with the board the Kustudias would no longer receive the $94 monthly payment from the board and would receive only a $54 veteran’s pension and the $100 from the Miners Union and such amount would not be sufficient for their support; that the witness would be willing to obtain outside employment and work if the family could get a house and move to Red Lodge; that the witness was advised she could obtain employment at the Red Lodge Cafe at about $80 per month or could obtain household work to do; that her children are also willing to work if anything is available; that if a lump sum settlement was made with the board she understands the claimant could make the $2,000 down payment on the house and thus acquire a much better home than the one which the family now occupies and that the balance of the lump sum could be used in the payment of debts.
Mrs. Kustudia also testified that she and her husband have compiled a list of their present debts all incurred for necessary expenses *as listed on an exhibit introduced in “evidence. Such exhibit shows a total indebtedness of $1,608.50 which amount includes grocery and clothing bills of $852.21. Mrs. Kustudia further tertified that her husband has not worked since the accident and that there is not very much work he is able to perform.
Claimant’s counsel, Mr. McAlear, took the witness stand and introduced a contract entered into on December 26, 1951, with claimant under which the witness was to receive 25% of all sums recovered over and above the sum of $8,272 which the board offered but which the claimant declined to accept in settlement of his claim.
Mr. MeAlear testified that he had interviewed several persons in Red Lodge about obtaining employment for Mrs. Kustudia in the event the family should move to Red Lodge and that he had found several persons who would employ claimant’s wife; that if she could work eight hours a day she could obtain from $125 to $150 per month; that if a lump sum should be granted by the board for total disability, claimant after paying his debts including his attorney’s fees would have $2,300 left for use in making the first payment of $2,000 on a house and for other purposes.
The witness MeAlear also testified as to the unsatisfactory conditions in and surrounding claimant’s home in Washoe; that the present house was five miles from Red Lodge; that the road from Washoe is not graded; that the road is quite steep to a point about one quarter of a mile from Red Lodge and that from such, point there is a very steep drop into Red Lodge; that the road frequently becomes impassable each winter due to heavy snows and much drifting and there is a great deal of difficulty keeping the road over this steep hill open and clear of snow during the winter.
When the claimant had rested his case counsel for the industrial accident board rested without introducing any evidence.
Thereafter the trial court made and filed written findings of fact and conclusions of law wherein it found that the claimant George Kustudia was injured on March 20, 1947; that at the time claimant was earning $225 a month; that he was- married and had four children dependent upon him; that claimant and his wife had elected to become bound and that they were bound by Plan III of the Workmen’s Compensation Act and that at the date of the trial claimant was 61 years old.
The trial court further found:
"That the injuries sustained by the claimant were such as to totally and permanently disable him; that since the date of his injury he has been unable to earn money by work; that his disabilities have become fixed; that in addition to his physical injuries he is suffering from disabling neurosis. * * *
“VI. That the claimant has submitted to the Court, by his evidence, a plan for the social, moral, and educational betterment of himself and his family, contingent on the remaining installments of his compensation being commuted to a lump sum award, and it appears to be for the best interests of the claimant, his family, and for the best interests of the public that such payments be commuted and the balance of his compensation paid to him.
“VII. That a lump sum award likewise appears necessary to enable the plaintiff to pay his just debts and attorney fees incurred by him in this proceeding, and to allow for a balance over to move his family to a more desirable location than they now have, and to establish them in the community of their choice.
“VIII. That the said George Kustudia has heretofore petitioned the Industrial Accident Board of the State of Montana for a determination of his disability as being total and permanent and awarding to him compensation in a total of 500 weeks. That this Petition was heard before the Chairman of the Industrial Accident Board in the City of Billings, Montana, on February 28, 1952, from which the Industrial Accident Board made Findings of Fact and Conclusions of Law adjudging the claimant to be entitled to 39 weeks of temporary total disability and 375 weeks permanent partial disability, and denying to him the commutation of his payments to a lump sum award. ’ ’
The court’s conclusions of law state that claimant is entitled to a total permanent disability rating for a full term of 500 weeks and:
‘ ‘ That the claimant is entitled to commutation to a lump sum award under the provisions of section 92-715, Revised Codes of Montana of 1917, as amended by Chapter 225 of the Laws of Montana, Thirty-second Legislative Session of 1951.
“That the Findings of Fact and Conclusions of Law of the Industrial Accident Board insofar as they are in conflict herewith are in error.”
Upon such findings and conclusions the trial court rendered its judgment wherein it ordered and adjudged:
‘ ‘ That the Industrial Accident Board of the State of Montana set aside its Findings of Fact and Conclusions of Law dated June 30, 1952, and its Orcler bearing that date, and award to the claimant a total disability rating, and pay him compensation under the Workmen’s Compensation Act for a full period of 500 weeks from and after date of his injury on March 20, 1947.
“That the monthly payments to the claimant be converted to a lump sum payment, which said payments shall not exceed the estimated value of the present worth of the deferred payments capitalized at the rate of two per cent per annum. ’ ’
The evidence introduced at the hearing before the industrial accident board, plus the additional evidence introduced without objection at the trial in the district court, as shown above, clearly sustains the findings of fact, conclusions of law and judgment of the district court rendered pursuant to the provisions of R. C. M. 1947, secs. 92-834 and 92-835.
In Tweedie v. Industrial Accident Board, 101 Mont. 256, 265, 53 Pac. (2d) 1145, 1149, the court said: “But one course was left to the claimant: Appeal to the district court and secure permission to show the real facts to the court. On such an appeal the district court is authorized by the act to modify or change the decision of the board ‘as law and justice shall require, ’ and to ‘make and enter any finding, conclusion, order or judgment that shall be required, or shall be legal and proper in the premises.’ Section 2961, Rev. Codes, 1921 [R. C. M. 1947, sec. 92-835] ; Willis v. Pilot Butte M. Co., 58 Mont. 26, 190 Pac. 124.” The Tweedie case, supra, was followed in O’Neil v. Industrial Accident Board, 107 Mont. 176, 184, 81 Pac. (2d) 688. Compare: Meznarich v. Republic Coal Co., 101 Mont. 78, 93, 53 Pac. (2d) 82; Grief v. Industrial Accident Board, 108 Mont. 519, 526, 93 Pac. (2d) 961; McCoy v. Mike Horse Mining & Mill. Co., 126 Mont. 435; 252 Pac. (2d) 1036.
In the case now before this court there was no evidence either _ before the industrial accident board or before the district court to show that at any time after his injury the claimant has been able to work and.earn wages while there is considerable substan tial evidence tending to show that claimant has been totally disabled and unable to earn wages since the date he met with the accident and suffered his injuries.
The comments of the court in Sullivan v. Anselmo Mining Corp., 82 Mont. 543, at page 556, 268 Pac. 495, on the sufficiency of the evidence applies equally here.
In Goodwin v. Elm Orlu Mining Co., 83 Mont. 152, 156, 269 Pac. 403, 406, the court said: “ * * * although we give full credit and effect to the findings made by the board, we must still uphold the judgment of the district court, if the conclusions of law reached by the board are not correct.”
Where as here the evidence before the district court was ample to sustain that court’s judgment, such judgment will be affirmed. Partoll v. Anaconda Copper Min. Co., 122 Mont. 305, 311, 203 Pac. (2d) 974. See also Sykes v. Republic Coal Co., 94 Mont. 239, 22 Pac. (2d) 157.
Accordingly the judgment of the district court is affirmed and the industrial accident board is ordered to comply therewith.
ASSOCIATE JUSTICES BOTTOMLY, FREEBOURN, ANGSTMAN and ANDERSON, concur.
|
[
37,
-12,
-40,
4,
-9,
-58,
29,
-37,
-9,
-13,
-43,
-5,
84,
-62,
5,
37,
-34,
-66,
-29,
23,
56,
-31,
11,
33,
2,
-9,
-37,
-20,
-51,
7,
-10,
-20,
-11,
-35,
-22,
56,
-17,
-42,
-43,
-5,
12,
-9,
-27,
2,
45,
31,
25,
6,
-22,
2,
25,
-25,
15,
8,
56,
21,
19,
42,
-16,
-22,
-11,
-69,
56,
-26,
61,
26,
103,
-25,
7,
7,
-37,
59,
22,
7,
-27,
10,
-28,
22,
12,
11,
-29,
-27,
6,
5,
-56,
-18,
-87,
-21,
-5,
42,
56,
-78,
25,
47,
-42,
-10,
-19,
29,
-47,
96,
-39,
33,
-33,
-42,
-10,
-60,
-23,
-15,
85,
73,
-50,
18,
24,
19,
10,
21,
30,
-4,
32,
57,
16,
-30,
35,
-53,
-10,
-27,
0,
28,
52,
23,
0,
-31,
-6,
-1,
-18,
0,
-29,
-27,
24,
-32,
-30,
12,
0,
38,
-70,
35,
29,
-12,
47,
-9,
-22,
-5,
63,
21,
38,
-32,
-20,
56,
13,
38,
19,
-41,
53,
50,
0,
42,
-3,
-23,
-43,
5,
-34,
-4,
7,
-39,
10,
83,
36,
-25,
-13,
57,
-34,
14,
45,
0,
-4,
18,
-10,
-7,
54,
74,
17,
-31,
-8,
13,
-20,
-68,
45,
-17,
10,
-27,
48,
36,
-38,
-4,
21,
59,
-21,
63,
69,
24,
61,
-91,
-28,
19,
-10,
34,
-5,
-1,
10,
-67,
13,
33,
-36,
-34,
-52,
10,
55,
25,
30,
-61,
4,
-18,
49,
-53,
41,
18,
-36,
-1,
33,
-48,
-29,
-44,
-36,
16,
40,
10,
-22,
-31,
-30,
-14,
1,
53,
-32,
8,
-11,
-13,
23,
29,
-38,
-85,
-34,
-17,
54,
67,
47,
13,
-28,
14,
-21,
-10,
12,
-20,
55,
-47,
-36,
-55,
31,
4,
21,
18,
-16,
-42,
22,
-63,
-55,
-16,
-60,
4,
-115,
-40,
39,
-15,
28,
-24,
60,
-46,
16,
-34,
1,
7,
4,
28,
-42,
1,
34,
23,
-50,
29,
33,
-1,
0,
-20,
54,
-30,
10,
-16,
22,
10,
-42,
-25,
-13,
29,
0,
20,
-7,
16,
-30,
37,
-24,
9,
-31,
-40,
-8,
21,
-7,
-42,
3,
67,
16,
-46,
-13,
-2,
39,
4,
-83,
68,
45,
11,
4,
32,
-20,
-29,
72,
-8,
-64,
86,
-28,
9,
26,
9,
52,
-22,
-23,
10,
-13,
-67,
-59,
-25,
0,
69,
-21,
-25,
40,
-8,
3,
0,
53,
13,
-17,
50,
66,
75,
-6,
-33,
-57,
52,
40,
-17,
21,
-36,
-49,
-1,
23,
4,
11,
30,
6,
-63,
-46,
10,
-20,
22,
31,
11,
43,
-110,
-12,
6,
23,
-35,
-6,
-10,
-36,
-64,
46,
-48,
24,
30,
-45,
22,
65,
0,
27,
-75,
-20,
16,
-64,
-6,
7,
-6,
26,
4,
20,
-2,
-13,
-102,
-18,
36,
-1,
-45,
66,
-41,
8,
19,
25,
-5,
-66,
43,
21,
-58,
-31,
-14,
12,
37,
11,
26,
4,
-17,
-5,
15,
-67,
-34,
32,
-8,
37,
-26,
35,
-31,
36,
66,
9,
-2,
-53,
-15,
15,
-9,
-20,
-29,
49,
-102,
-41,
32,
-11,
38,
-6,
-51,
-15,
30,
-17,
64,
66,
-58,
-30,
2,
-26,
22,
-80,
27,
46,
-6,
-64,
-15,
-18,
3,
30,
23,
58,
-25,
-81,
-22,
-56,
-14,
29,
8,
34,
20,
40,
-5,
-50,
36,
13,
67,
20,
116,
25,
-70,
-71,
-32,
-21,
-97,
-7,
-76,
16,
28,
-26,
-17,
-14,
37,
-66,
-49,
-21,
-34,
14,
-22,
13,
-32,
-15,
52,
9,
58,
20,
-17,
6,
-119,
22,
-27,
21,
23,
22,
-37,
-5,
19,
-26,
34,
-46,
69,
-46,
-7,
15,
-26,
-2,
52,
-23,
26,
24,
55,
-35,
27,
-22,
33,
71,
-25,
44,
2,
-48,
-46,
-12,
-71,
-2,
29,
-1,
-33,
-4,
52,
-9,
-40,
-16,
41,
-63,
15,
4,
-72,
12,
-57,
81,
47,
10,
-40,
76,
-17,
-42,
42,
17,
-2,
-29,
-71,
-25,
-8,
89,
-19,
1,
-3,
13,
16,
-47,
15,
-24,
4,
-41,
12,
0,
-19,
-12,
10,
-1,
6,
43,
26,
-2,
31,
2,
-13,
-23,
5,
-54,
-82,
-6,
30,
3,
-33,
-46,
-17,
-33,
0,
23,
-15,
13,
47,
-52,
25,
-23,
44,
5,
28,
-3,
46,
-20,
0,
43,
13,
59,
8,
0,
-31,
21,
-21,
-37,
-57,
25,
-46,
-2,
-17,
61,
48,
5,
22,
32,
-22,
-38,
-59,
-61,
22,
6,
27,
-16,
30,
87,
-19,
9,
-27,
-58,
7,
-53,
28,
27,
24,
52,
-33,
15,
-17,
3,
-2,
28,
-19,
49,
22,
-22,
-20,
-35,
-24,
-59,
-29,
-36,
3,
43,
45,
4,
31,
-30,
7,
19,
-52,
-60,
-2,
-11,
-26,
-5,
25,
-37,
-58,
68,
-48,
24,
49,
-25,
23,
9,
-52,
-26,
15,
-32,
27,
8,
-56,
15,
-40,
15,
15,
18,
26,
14,
-6,
-29,
31,
-6,
-18,
8,
-15,
-13,
-42,
8,
35,
-45,
-26,
-40,
14,
36,
21,
-4,
68,
62,
-12,
31,
-44,
-33,
-44,
1,
-9,
11,
7,
-25,
-6,
21,
-72,
49,
-30,
-45,
-41,
-54,
41,
20,
23,
-25,
37,
84,
-24,
53,
-6,
-26,
10,
-38,
25,
31,
24,
-31,
-11,
11,
21,
-6,
5,
1,
-19,
37,
-51,
23,
-16,
-37,
16,
29,
-6,
-39,
28,
-14,
8,
51,
-4,
62,
-28,
-58,
-24,
71,
-1,
-5,
3,
84,
-41,
-27,
10,
-13,
32,
7,
-28,
-27,
19,
-21,
11,
0,
-78,
12,
1,
44,
-26,
6,
24,
-29,
-14,
-14,
59,
-85,
18,
26,
19,
28,
3,
-44,
-6,
-18,
-41,
45,
-18,
-51,
-20,
-16,
27,
-46,
12,
-1,
-34,
44,
21,
-20,
14,
23,
-19,
19,
-16,
-17,
29,
-52,
-15,
49,
117,
41,
39,
-3,
-21,
3,
-34,
5,
61,
-32,
29,
11,
9,
-31,
10,
-23,
27,
-24,
35,
-18,
-49,
28,
46,
21,
-7,
-2,
-6,
-49,
66,
34,
6,
-4,
-14,
54,
52,
3,
-15,
-6,
-26,
24,
22,
-1,
-1,
8,
-19,
51,
-67,
26,
9,
38,
46,
39,
-9,
33,
-13,
-2,
51,
57,
28,
19,
17,
-4,
68,
-22,
-47,
6,
-33,
9,
-106,
28,
-4,
-8,
20,
15,
24,
18,
17,
42,
-34,
33,
-26,
-37,
13,
-14,
-65,
-33,
-42,
-8,
-3,
-20,
16,
-50,
69,
67,
-11,
11,
-71,
21,
-21,
31,
-58,
-39,
-3,
38,
22,
54,
-10,
67,
4,
-4,
42,
14,
-45,
37,
51,
-40,
13,
-6,
3,
-4,
18,
42,
2
] |
MR. JUSTICE ANDERSON:
This is an action to quiet title to real estate against the defendant and appellant in possession by plaintiff and respondent who, through a conveyance from her mother, is the successor in interest of one O. G. Warren, deceased.
0. G. Warren was the father of both parties to this action, each party being the issue of a different mother.
No bill of exceptions was presented, settled or filed in district court and the matter before us for consideration on this appeal is only the judgment-roll. Respondent made a motion to strike portions of the transcript on appeal upon the ground that they are not part of the judgment-roll. This court has time and again refused to consider matters because of the failure of a party to properly present, settle and file his bill of exceptions within the time allowed by law. We will consider here only those things properly a part of the judgment-roll as same is defined by R. C. M. 1947, sec. 93-5707.
In the case of Thompson v. Chicago, etc. R. R., 78 Mont. 170, 253 Pac. 313, 316, this court said: “In the consideration of an appeal, this court enters upon its investigation with a presumption that the lower court was correct in its determination, and therefore the appellant has the burden of showing reversible error. Stabler v. Porter, 72 Mont. 62, 232 Pac. 187; State ex rel. Woare v. Board of Com’rs, 70 Mont. 252, 225 Pac. 389; Haley v. McDermott, 45 Mont. 217, 121 Pac. 1060. It is also the rule that, when the record on appeal in an equity ease does not present the evidence taken in the court below, it will be presumed that there was sufficient [evidence] to sustain the findings of the court (Gow v. Cascade, etc., Co., 66 Mont. 488, 213 Pac. 1092), and that, on an appeal from the judgment in an action tried before the court, in order to obtain a reversal, the appellant has the burden of showing that the record will not sustain the conclusion of the court upon any admissible theory. State [ex rel. Urton] v. American Bank & Trust Co., 75 Mont. 369, 243 Pac. 1093.” See Miners Nat. Bank of Butte v. Proulx, 119 Mont. 456, 176 Pac. (2d) 267.
Appellant contends that the complaint fails to state a cause of action because it fails to allege, seizin in, or possession by, respondent or her predecessor within ten years before the commencement of this action as is required by R. C. M. 1947, sec. 93-2504. The plaintiff’s complaint alleged, “Plaintiff is now the owner, entitled to possession.” This court held in the case of Bearmouth Placer Co. v. Passerell, 73 Mont. 306, 236 Pac. 673, 674: “By the provisions of section 9018 [Codes of 1921, now R. C. M. 1947, sec. 93-2507], however, in ‘every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title for ten years before the commencement of the action.’ ” The burden rested upon the appellant to overcome this presumption by proof.
The lower court found seizin and possession in the respondent and, as counsel for respondent suggests, if it were necessary, the complaint would be deemed amended to conform with the evidence.
Appellant's next specification of error is without merit. It is contended that the complaint merely alleges conclusions of law and therefore is not sufficient to state a cause of action.
The complaint, generally speaking, is the usual short form of a quiet title complaint. This court, by a long line of cases, has passed upon the question of the short form complaint. The case of Slette v. Review Publishing Co., 71 Mont. 518, 230 Pac. 580, is cited by appellant for authority. However, a reading of the Slette case belies the interpretation put on it by appellant and is authority for the opposite view. It is contended that the cases are distinguished where defendant is in possession at the time suit is brought. We lend no favor to this contention. Violet v. Martin, 62 Mont. 335, 205 Pac. 221. Additionally, the district court held that defendant was occupying a bedroom in the basement by permission of O. 6. Warren, deceased, and that his occupying was not based upon any legal or equitable right. We are bound, in the instant case, by the findings made by the district court.
Appellant says that the complaint does not support the decree of the lower court in that the déeree adjudges ownership in plaintiff prior to the commencement of the action, whereas the complaint alleges ownership only at the time of commencement of the action. The court order, in part, reads as follows: ‘ ‘ That plaintiff, Hazel Warren, at all times since the filing of her complaint and prior thereto has been and now is the absolute owner * * The district court’s findings are as follows: “That at the time of commencement of this action, plaintiff was and still is the owner entitled to the possession of the hereinbefore described real property and the property described in her complaint herein.”
The general rule is that ownership at the time of the commencement of the action is required and the complaint properly alleged ownership at that time.
Under the power granted this court b3'- R. C. M. 1947, see. 93-216, we may direct that a proper judgment be entered in any case. In order that no misunderstanding be had, it is our judgment that the decree of the lower court be modified so as to conform with its findings.
We must indulge in the presumption that the evidence introduced at the trial supports the trial court’s finding and judgment in all cases where the record contains no bill of excep tions but only the judgment-roll. Aitken v. Lane, 108 Mont. 368, 92 Pac. (2d) 628; State ex rel. Mercer v. Woods, 116 Mont. 533, 155 Pac. (2d) 197; Tiffany v. Uhde, 123 Mont. 507, 216 Pac. (2d) 375.
Appellant contends that the court below was without jurisdiction to entertain an action to quiet title because the plaintiff was out of possession and defendant was in possession and plaintiff had a plain, speedy and adequate remedy at law in ejectment and was entitled therefore to a jury trial.
R. C. M. 1947, sec. 93-6203, provides: “An action may be brought * * * by any person ® * * whether in actual possession or not, claiming title to real estate, against any person * * * who claims or may claim any right, title, estate or interest therein> * * * adverse to plaintiff’s ownership * *
Under an earlier case in this jurisdiction a plaintiff, out of possession, may not have been able to bring an equity action. However, under R. C. M. 1947, sec. 93-6203, the legislature broadened the scope of an action to quiet title by permitting it to be brought by a person out of possession against a person claiming an adverse title. Here the defendant, by his own pleadings, set into motion the claim of adverse title and where he appears and submits to the court his own title, the court has jurisdiction to establish it.
An action to quiet title does not lose its equitable nature because, by statute, procedure has been modified. Holland v. Challen, 110 U. S. 15, 3 S. Ct. 495, 28 L. Ed. 52; Frost v. Spitley, 121 U. S. 552, 7 S. Ct. 1129, 30 L. Ed. 1010; Costello v. Muheim, 9 Ariz. 422, 84 Pac. 906; Empire Ranch Co. v. Herrick, 22 Colo. App. 394, 124 Pac. 748; Scott v. Sullivan, 79 Colo. 173, 244 Pac. 466.
The defendant’s title pleaded in the instant ease was based upon a trust and is clearly within the exclusive jurisdiction of equity. Golden Rod Min. Co. v. Bukvich, 108 Mont. 569, 92 Pac. (2d) 316.
Appellant complains that the district court erred in sustaining plaintiff’s motion to strike allegations of defendant’s answer and eross-eomplaint. The defendant answered over and it is settled in Montana that such, objections are thereupon waived. Waddell v. School District No. 3, 79 Mont. 432, 257 Pac. 278.
The other objections of appellant are without merit as either being answered or are not within the jurisdiction of this court upon the appeal perfected.
It is ordered that the judgment be modified so as to conform with the finding of the district court and as modified the same is affirmed.
MR. CHIEF JUSTICE ADAIR, and ANGSTMAN, FREEBOURN, and BOTTOMLT, concur.
|
[
-31,
16,
-2,
-7,
49,
-51,
11,
-17,
0,
37,
6,
35,
-20,
0,
-33,
17,
-31,
-39,
-12,
-45,
-6,
-13,
38,
-21,
55,
-14,
-24,
-45,
30,
9,
4,
-17,
-96,
29,
-5,
14,
33,
12,
-16,
10,
-9,
49,
18,
-9,
-36,
47,
-49,
13,
0,
-58,
23,
-47,
-19,
-13,
-34,
-21,
-58,
50,
46,
11,
10,
-9,
33,
13,
5,
12,
22,
-69,
16,
-47,
8,
29,
33,
-21,
0,
-29,
-39,
-5,
7,
-9,
-27,
18,
28,
8,
15,
-1,
31,
59,
2,
14,
0,
28,
11,
-32,
-27,
-6,
64,
-7,
-36,
32,
-24,
3,
24,
-69,
1,
9,
-36,
0,
37,
7,
23,
-35,
-42,
5,
-46,
3,
2,
-67,
-7,
-19,
51,
-8,
22,
-4,
-3,
40,
-38,
-15,
4,
63,
-21,
31,
-34,
34,
16,
-43,
-5,
6,
-33,
30,
37,
-70,
19,
-41,
4,
25,
36,
-17,
27,
-27,
23,
65,
-12,
-16,
12,
-59,
8,
-21,
41,
0,
84,
6,
-10,
13,
13,
-9,
-20,
13,
3,
-14,
11,
-18,
-49,
-52,
-22,
20,
14,
-77,
6,
-57,
14,
58,
12,
-29,
2,
0,
34,
65,
17,
-47,
38,
4,
13,
68,
25,
38,
-11,
-5,
4,
17,
-23,
-54,
8,
66,
24,
7,
34,
3,
-8,
19,
-32,
17,
-52,
5,
-28,
-22,
77,
-50,
4,
37,
25,
14,
0,
-4,
36,
-10,
57,
-77,
-10,
23,
-31,
14,
-25,
-6,
19,
-20,
-33,
0,
16,
16,
36,
-7,
26,
-47,
-11,
-3,
8,
9,
-1,
-18,
-9,
15,
-49,
-34,
46,
-7,
5,
31,
-73,
-56,
38,
24,
-33,
-8,
0,
-39,
0,
-57,
-33,
-28,
34,
-9,
20,
58,
-1,
-8,
6,
-7,
-30,
-26,
-33,
-7,
44,
28,
-31,
18,
-22,
40,
5,
-2,
-24,
-26,
-14,
-32,
0,
-1,
-48,
-26,
-11,
-11,
-15,
-83,
15,
-17,
-34,
-21,
18,
2,
-58,
-17,
35,
12,
14,
-13,
36,
60,
-30,
-44,
29,
15,
77,
-15,
-28,
4,
48,
-15,
31,
-62,
-7,
46,
13,
-7,
21,
6,
16,
7,
22,
-44,
-40,
39,
-17,
15,
-6,
-23,
62,
16,
-13,
-42,
-2,
61,
-16,
7,
-54,
-3,
65,
-77,
22,
-23,
3,
25,
8,
35,
40,
-62,
-34,
8,
-28,
-69,
26,
21,
-13,
-7,
-23,
-4,
-55,
8,
8,
-16,
18,
-10,
-29,
-40,
15,
9,
24,
7,
-12,
-11,
13,
43,
-52,
37,
28,
15,
-29,
-19,
-13,
11,
-63,
-14,
8,
21,
10,
-4,
-16,
-27,
-15,
-26,
-29,
25,
-9,
-16,
-20,
-8,
-26,
13,
-58,
-46,
24,
41,
1,
-9,
0,
-14,
10,
11,
74,
-52,
10,
11,
-46,
27,
-57,
-23,
74,
29,
32,
11,
-10,
16,
8,
16,
-4,
7,
-30,
29,
-15,
-16,
28,
28,
14,
23,
40,
-50,
-16,
45,
46,
-13,
0,
-35,
55,
-88,
6,
69,
-23,
-25,
-4,
-19,
-27,
72,
16,
8,
-3,
-10,
23,
40,
-21,
-40,
-11,
0,
-44,
24,
32,
46,
-72,
1,
-39,
-48,
18,
-2,
-22,
-17,
15,
-25,
-30,
-76,
-8,
-28,
31,
-20,
-8,
-11,
7,
27,
1,
25,
-25,
-47,
-3,
38,
45,
-33,
68,
32,
4,
36,
33,
8,
98,
25,
37,
-25,
-39,
-31,
-53,
-35,
-35,
8,
11,
14,
17,
24,
-35,
-57,
11,
21,
-35,
65,
-12,
-9,
-33,
41,
-4,
37,
-58,
7,
-2,
-39,
0,
-15,
-31,
-32,
49,
64,
13,
19,
-11,
24,
-40,
-63,
14,
0,
0,
4,
26,
-36,
-5,
-70,
-44,
13,
-20,
-45,
-22,
-52,
-42,
-60,
-13,
-4,
63,
-36,
-52,
41,
-4,
-70,
-48,
12,
27,
30,
42,
27,
-10,
-5,
21,
-17,
-7,
-32,
-46,
12,
19,
34,
2,
-22,
7,
2,
4,
-2,
8,
-21,
42,
-48,
19,
0,
-25,
23,
-12,
-20,
34,
7,
0,
-12,
-3,
40,
23,
-11,
32,
-13,
-30,
30,
-17,
57,
42,
-17,
2,
21,
-22,
18,
-31,
8,
-5,
-33,
-13,
67,
32,
19,
21,
-37,
-15,
-22,
16,
-13,
1,
25,
0,
-29,
62,
-11,
6,
-4,
42,
-50,
29,
-44,
12,
27,
28,
8,
63,
-6,
44,
11,
18,
24,
-46,
17,
13,
61,
31,
8,
15,
-11,
-12,
-36,
-10,
-31,
20,
-72,
-31,
39,
5,
16,
9,
11,
9,
1,
-60,
30,
75,
2,
55,
-5,
15,
-32,
17,
6,
-41,
-17,
-40,
17,
11,
-44,
7,
16,
-23,
-39,
-45,
29,
56,
-20,
-21,
-77,
-40,
16,
28,
-47,
-9,
30,
35,
23,
31,
2,
55,
8,
8,
62,
-47,
4,
1,
-38,
-5,
4,
2,
5,
-41,
-16,
8,
-24,
14,
-16,
21,
-28,
16,
35,
-7,
40,
-40,
66,
11,
-45,
18,
-11,
20,
35,
22,
16,
-17,
16,
-43,
-29,
-34,
-12,
0,
-20,
-58,
6,
-27,
62,
-11,
-5,
66,
-12,
14,
13,
9,
24,
29,
12,
22,
6,
26,
9,
-27,
-12,
-42,
13,
13,
2,
-31,
0,
-6,
9,
-12,
-27,
42,
7,
65,
21,
3,
33,
0,
17,
-5,
-52,
-29,
-20,
-53,
-8,
9,
42,
43,
-55,
-32,
30,
-37,
17,
-24,
28,
-46,
-11,
10,
52,
32,
-67,
-21,
26,
18,
-29,
51,
41,
-8,
-33,
46,
-10,
-60,
-3,
0,
51,
-38,
34,
38,
-6,
-42,
8,
44,
-8,
-8,
-1,
12,
0,
35,
21,
40,
9,
-36,
0,
50,
-18,
-35,
15,
-30,
-1,
5,
34,
-32,
18,
37,
-3,
-12,
32,
-4,
30,
-37,
48,
-58,
6,
-11,
64,
24,
-38,
-1,
-12,
-63,
78,
11,
-15,
-24,
-21,
-37,
-95,
13,
0,
8,
0,
-37,
-2,
-27,
30,
0,
17,
3,
-3,
9,
-17,
74,
7,
-19,
15,
-38,
-91,
-18,
1,
36,
0,
-52,
-4,
10,
-27,
50,
45,
-64,
47,
7,
17,
1,
0,
9,
-49,
10,
-9,
-30,
50,
-29,
-9,
19,
20,
0,
-72,
34,
-12,
-9,
-40,
-24,
-12,
7,
39,
37,
-6,
22,
0,
60,
-7,
-21,
19,
-19,
5,
29,
21,
1,
42,
11,
-13,
-72,
-2,
16,
-4,
-31,
36,
56,
-44,
-36,
13,
39,
26,
-7,
25,
36,
24,
3,
0,
54,
-12,
6,
-4,
-17,
-3,
-18,
7,
-8,
5,
8,
0,
2,
1,
29,
5,
23,
-28,
-8,
-17,
-25,
-13,
-31,
-3,
24,
45,
-51,
-48,
46,
0,
-15,
6,
21,
-13,
14,
-19
] |
Per Curiam.
The relator James Zumwalt, an inmate of the State Prison there committed on June 24, 1952, to serve a term of 7 years following his conviction of unlawfully issuing and uttering a false and worthless check in the amount of $65 complains that the district court of Missoula county committed error in denying relator’s petition for a writ of error coram nobis.
Relator’s petition now before this court represents that at a hearing had before the district court of Missoula county on his application for the writ, that considerable evidence was introduced tending to show that at the time of his arrest and arraignment on the charge of which he was convicted, that relator was then so intoxicated that he was devoid of reason and understanding and that at no time does he recall being asked if he desired counsel to represent him and that he had no counsel in the proceedings taken against him.
Relator further represents that in the proceedings had before the district court immediately preceding his conviction that much inadmissible and highly prejudicial evidence was introduced against him; that at the hearing before the district court on relator’s petition to that court for a writ that much evidence was introduced in relator’s behalf, and after hearing same the district judge “did agree and otherwise assert himself on the fact that relator’s arrest and subsequent conviction was conducted in a most irregular manner, ’ ’ but that notwithstanding such fact, said district judge denied relator’s petition for a writ of error coram nobis.
The petition filed in this court is duly verified by the relator but we have not been furnished with any transcript of the proceedings had before the district conrt at the time of relator’s arraignment, conviction and sentence or the proceedings subsequently had on relator’s petition to the district court for a writ of coram nobis.
The presumption is that the proceedings in the district court were regular and that the trial judge followed the law. The burden is upon the relator who charges prejudicial error to supply proof of such error and this he has failed to do. Ac-' cordingly this proceeding is ordered dismissed.
|
[
46,
-8,
21,
31,
2,
-65,
-2,
-7,
-72,
49,
-20,
-50,
-11,
7,
-2,
-7,
36,
50,
27,
-50,
27,
-42,
-34,
73,
3,
40,
-1,
-2,
7,
18,
-5,
-16,
-13,
-46,
19,
-13,
-2,
-34,
1,
43,
11,
4,
37,
18,
-68,
-3,
-35,
35,
21,
-34,
33,
-34,
2,
25,
34,
14,
31,
-6,
-8,
-3,
30,
16,
-5,
1,
20,
-17,
-14,
35,
-16,
5,
59,
-4,
10,
-50,
8,
-6,
-27,
-36,
28,
42,
-5,
-2,
-15,
23,
15,
-25,
-26,
-35,
25,
-24,
12,
8,
-31,
38,
0,
-39,
-54,
47,
19,
6,
-64,
-11,
-17,
44,
2,
6,
-49,
7,
29,
62,
-7,
62,
13,
48,
-29,
-11,
-69,
-30,
26,
-41,
-1,
-18,
7,
23,
50,
-15,
-50,
57,
12,
-26,
-4,
2,
22,
-8,
-29,
-33,
-41,
10,
18,
24,
-4,
-16,
55,
38,
35,
9,
40,
12,
-34,
13,
-19,
-5,
36,
62,
38,
-33,
30,
-58,
-40,
16,
71,
34,
-16,
13,
27,
25,
-11,
-40,
5,
-101,
-10,
7,
-30,
66,
26,
-1,
-23,
-13,
65,
-6,
-18,
22,
12,
1,
22,
-39,
24,
-49,
-2,
0,
-9,
-2,
6,
15,
79,
-7,
-19,
12,
39,
11,
-77,
7,
15,
57,
23,
-8,
22,
-30,
21,
-16,
-12,
-77,
15,
-14,
18,
-62,
-13,
20,
-41,
41,
-63,
29,
16,
-10,
-41,
-16,
-3,
17,
-19,
-9,
5,
-76,
-19,
-33,
47,
-32,
30,
38,
12,
46,
-19,
22,
29,
-4,
45,
-8,
-18,
-12,
-27,
-14,
-24,
-29,
19,
-12,
-67,
-52,
40,
11,
-36,
-22,
-15,
-28,
28,
-9,
-44,
-55,
-4,
-11,
20,
31,
-8,
10,
6,
-20,
7,
3,
-38,
18,
33,
9,
-9,
-26,
33,
29,
9,
17,
-8,
4,
-52,
-15,
2,
-28,
25,
-42,
6,
-36,
-22,
-6,
-16,
34,
-44,
5,
-29,
-45,
-57,
-17,
17,
-14,
-12,
2,
23,
6,
13,
39,
-7,
22,
-14,
23,
65,
-11,
0,
24,
-5,
-29,
-20,
-7,
-25,
18,
22,
-16,
6,
-15,
-41,
42,
-11,
20,
23,
-14,
-18,
10,
9,
-2,
-30,
15,
-28,
59,
5,
50,
-9,
6,
20,
40,
21,
13,
-11,
-3,
-50,
-37,
22,
-2,
27,
12,
-20,
-33,
8,
-23,
-28,
9,
20,
-10,
3,
-12,
7,
6,
19,
-5,
-5,
0,
14,
-6,
-32,
-13,
16,
-2,
-22,
20,
-61,
-34,
-1,
-1,
-17,
25,
-49,
-41,
-13,
12,
1,
5,
-22,
27,
21,
9,
60,
52,
13,
-47,
-5,
60,
-3,
-2,
47,
20,
19,
19,
34,
-15,
-32,
-20,
0,
-58,
-10,
-7,
40,
-83,
38,
7,
-12,
24,
-1,
-16,
3,
-3,
-48,
55,
35,
36,
-43,
-25,
-3,
7,
39,
20,
-37,
-6,
23,
-3,
-49,
-36,
19,
3,
39,
19,
-21,
-43,
19,
66,
23,
30,
4,
-33,
-13,
16,
-7,
40,
33,
-14,
18,
-31,
-22,
49,
52,
0,
-45,
-2,
-10,
38,
10,
-33,
46,
-31,
-49,
-20,
-6,
-7,
-2,
8,
33,
-36,
-41,
34,
-49,
-9,
-17,
48,
-19,
16,
-42,
-8,
19,
20,
-29,
40,
-50,
23,
22,
30,
19,
11,
-1,
7,
-37,
1,
0,
45,
-8,
18,
22,
-56,
7,
4,
24,
22,
44,
-25,
-65,
26,
-16,
26,
-53,
26,
-13,
-44,
-38,
-35,
-37,
7,
22,
17,
-25,
-27,
35,
-15,
22,
18,
9,
6,
-34,
3,
1,
12,
-11,
-7,
17,
-3,
-14,
11,
28,
-10,
-21,
-33,
46,
24,
-2,
6,
-45,
-1,
-81,
-17,
27,
-23,
-12,
-17,
30,
-60,
-9,
17,
-16,
-9,
44,
14,
36,
52,
24,
-26,
-37,
-39,
16,
-1,
43,
17,
-49,
32,
-22,
-3,
-12,
0,
-50,
-14,
6,
-14,
-10,
34,
53,
31,
56,
13,
-2,
-16,
-12,
-19,
7,
39,
-31,
49,
-71,
43,
-3,
-43,
-5,
33,
-27,
-2,
6,
-22,
-27,
-46,
-48,
-64,
-29,
-1,
-58,
-25,
-26,
-26,
0,
9,
-64,
42,
8,
-6,
37,
27,
2,
-47,
-13,
11,
44,
25,
23,
-19,
33,
31,
32,
-6,
-35,
-27,
5,
-17,
31,
31,
-16,
24,
-66,
21,
-18,
25,
29,
-23,
-28,
12,
14,
-69,
-46,
-78,
21,
-26,
-54,
-28,
29,
-29,
-27,
-40,
50,
-2,
70,
1,
-18,
3,
7,
35,
-13,
18,
10,
52,
25,
15,
35,
-15,
-31,
18,
29,
-30,
43,
-21,
-26,
-11,
33,
-68,
-5,
-40,
5,
-13,
-29,
20,
-34,
-53,
4,
-18,
-22,
2,
-41,
10,
-10,
42,
4,
-64,
9,
-18,
-12,
-21,
16,
-7,
24,
-29,
-18,
21,
-39,
-10,
9,
38,
6,
-8,
-49,
-19,
-19,
-42,
33,
-22,
7,
-14,
14,
2,
-4,
27,
2,
66,
-6,
-95,
-11,
28,
19,
51,
-43,
20,
-51,
0,
-20,
-28,
12,
6,
21,
-28,
-20,
-9,
19,
22,
-13,
22,
53,
-15,
-8,
91,
-45,
-1,
13,
-20,
31,
-4,
-6,
10,
10,
10,
9,
14,
-5,
8,
-6,
66,
-54,
59,
42,
-2,
10,
3,
-12,
18,
0,
5,
-15,
103,
0,
40,
-21,
18,
2,
-25,
8,
-3,
20,
-43,
20,
8,
20,
-14,
43,
9,
-20,
-15,
18,
31,
9,
-9,
20,
52,
-25,
-45,
-2,
-12,
3,
-4,
55,
-12,
-9,
-7,
-33,
24,
19,
-40,
-10,
22,
33,
5,
-27,
10,
-9,
7,
13,
14,
-13,
18,
-34,
6,
33,
-36,
-15,
-10,
30,
11,
3,
21,
48,
-35,
8,
46,
11,
-15,
66,
-22,
-16,
32,
-1,
9,
40,
5,
-28,
6,
11,
-30,
-17,
20,
-11,
46,
-22,
-24,
-6,
-9,
-4,
-17,
-31,
-22,
10,
31,
-23,
58,
49,
-21,
-18,
6,
51,
0,
-39,
-22,
36,
0,
-25,
-44,
-48,
42,
1,
-1,
-43,
63,
43,
38,
-13,
14,
-22,
16,
-42,
45,
0,
2,
-23,
-38,
-3,
1,
10,
25,
2,
-10,
13,
-53,
12,
30,
5,
28,
10,
-40,
-42,
-7,
-38,
13,
-24,
24,
1,
1,
22,
-3,
24,
5,
-50,
38,
-78,
34,
-64,
27,
20,
17,
93,
9,
-48,
-4,
-45,
23,
-11,
53,
19,
-54,
-25,
29,
20,
3,
6,
-24,
-17,
-19,
18,
40,
-1,
5,
50,
52,
-15,
47,
58,
28,
-6,
-31,
-11,
-2,
10,
-4,
-20,
-12,
-3,
-33,
-41,
-3,
-5,
25,
36,
-47,
12,
-39,
-15,
18,
-2,
-6,
23,
48,
-53,
-17,
6,
13
] |
ME. JUSTICE FBEEBOUBN:
This is an appeal by the State of Montana from an order of the district court of Chouteau County, the Hon. C. F. Holt, district judge, presiding, determining inheritance taxes.
Moses F. McAnelly, also known as M. F. McAnelly, a resident of Montana, died, testate, on October 25, 1947. On May 14, 1951, the state board of equalization of the State of Montana filed written objections to the inventory and appraisement and to the 3-A report of Pearl Griesinger, the executrix of the estate of Moses F. McAnelly, deceased, and petitioned the said district court to have the inheritance tax determined.
In such objections and petition the board alleged: (1) That Moses F. McAnelly was the record owner of 5,506 acres of farmland having a clear market value of $110,150, which the estate has not returned for inheritance tax purposes, and which should be reported for such purposes at said value; (2) that the deceased was the record owner of 120 cows, 110 calves, 3 bulls and certain hogs of a clear market value of $30,640.55, and that the estate has returned a valuation thereon of only $8,974.16 for inheritance tax purposes; (3) that the deceased was the owner of a joint bank account in his name and that of Pearl Griesinger, executrix and heir in said estate, in the sum of $68,282.01, which account was created on November 25, 1944, less than three years before the death of deceased, and that such bank account should be included in its entirety for inheritance tax purposes, while, in fact, only $13,493.08 of such amount has been so included; (4) that the deceased was the owner of six United States savings bonds, having a face value of $5,000 each, with a taxable value at the date of death of $3,750 for each bond, making a total value subject to tax of $22,350, which total should be included for tax purposes, while the estate had not returned such amount for tax purposes; (5) that deceased was the record owner of certain farm machinery having a clear market value of $17,560 for tax purposes, while the estate has returned only $3,367.67 thereof; (6) that the board objects to the 3-A or final report and that part thereof whereby the estate seeks as a deduction the sum of $47,686.74 paid as federal estate tax, for the reason that the estate tax as found by and paid to the internal revenue department of the United States was $44,339.42, and that the difference between these two amounts, or $3,347.32, is the interest due to the United States Government which the estate had allowed to accumulate on the tax of $44,339.42, and that such interest is not deductible.
The district court was asked to find the gross estate of the deceased to be $280,094.86 and the total deductions for inheritance tax purposes to be $60,568.98.
The third amended final, 3-A report of the executrix had reported and the trial court found the gross estate to be $95,084.71 and the allowable deductions to be $63,916.30.
The testimony of George Campbell, real estate and farm implement dealer of Big Sandy, and a Montana resident for fifty years, tended to show the existence of a joint adventure by the McAnelly family since the year 1919. According to Campbell, he closed a trade in 1919 between M. F. MeAnelly and tbe Griesingers on tbe one band, and a Mr. Yan Alstine, of Chouteau County, on the other, whereby real and personal property in Idaho went to Yan Alstine and real and personal property in Chouteau County went to MeAnelly. Of the Idaho property, “Fred Griesinger and wife owned 287 acres on the river * * * which was turned in on this trade * * * and the 260 acre tracts west of these belonged to MeAnelly. * * * they made a trade. There was * * * cattle that MeAnelly owned * * * work and saddle horses * * * and the machinery * * *” Yan Alstine turned over “1200 acres of land and * * * some cattle” to Mc-Anelly. Yan Alstine took the Idaho land subject to encumbrance, “and the MeAnelly family took the Chouteau County land” subject to an encumbrance.
The MeAnelly family consisted of ‘ ‘ Pearl Griesinger, who is a daughter of M. F. MeAnelly, and Fred Griesinger, and then there was Alice MeAnelly [now Quinn] an unmarried daughter at that time i! * * Frank Maxwell, a grandson [of] * * * and Mr. and Mrs. MeAnelly.”
Mr. and Mrs. MeAnelly and Frank Maxwell came to Montana in 1919, and the Griesingers came the next year, bringing with them “a car load * * * some cattle in it and livestock * * * machinery and equipment and household goods * * * which was turned into the farm operations here in Chouteau County. ’ ’
Campbell had many business discussions with MeAnelly. He “sold him a lot of machinery, too. * * * I had quite a lot of business with M. F. MeAnelly. * * * the farming operations were handled as a family partnership or joint adventure. * * * Mr. MeAnelly always did the business, but it was thoroughly understood that it was a three-way ownership there. Griesinger and MeAnelly and the grandson all had their separate duties. At that time Griesinger looked after the cattle and ran the horses on the farm machinery. Maxwell ran the power machinery, and they all worked together. There wasn’t any question about that. * * * It was a partnership deal. ’ ’
Campbell had discussed with MeAnelly the fact that the title to the land was in McAnelly’s name, and testified: “It was for a credit standing, for one thing, that he kept it in his name. They had a lot of hard luck when they first came there. They hit the driest years we had for many years. They had to sell off all the cattle they had * * * Mr. McAnelly said he had to keep this all under one management in order to keep his credit and he had bought — they bought a lot of land * * * on payments * '* * it came out of this ranch.”
Up until McAnelly’s death on October 25, 1947, McAnelly, the Griesingers and Maxwell worked together as a unit in handling the ranch. “It was generally understood by everybody. The neighbors knew it and everybody else around there knew it.” That it was a family venture and the children owned respective shares. When machinery was bought they were all consulted.
As far as profit and loss were concerned, “everything went back into the outfit for years to keep it running. * *\* I know that they always said it was a partnership * * * Mr. McAnelly most always did the business. * * * they were using machinery out there that we sold them, and it was sold to the outfit, and Frank was using that. In fact, he ran most of the power machinery * * * He lived right there on the same land, and so did the Griesingers. They all lived around the same clump of buildings until Frank finally built back up on the hill, bought a place.”
Paul Green, who threshed for the McAnelly family “in the fall of 1920” said the farming operation was “always — in my opinion, it was a family venture. Frank Maxwell, the grandson, looked after the machinery and Fred the livestock, and it was-my opinion that Mr. McAnelly done most of the legal work.
* * * It was the general opinion of everybody I ever talked to that it was a family affair. * * * in the fall of 1920 when I was threshing for them * * * Mr. McAnelly and his wife one evening after supper * * * were talking about the place * * * he told me that his son-in-law, Fred, and his daughter Pearl were coming out and bringing their car and stuff and take over the farming.
* * * Everybody considered that it was a family venture that I ever talked to. * * * Tlie Griesingers and Maxwell and Mr. Mc-Anelly” all had an interest in it. Frank Maxwell and Fred Griesinger “worked all the time.” Frank “in the later years did some farming himself, but up until Mr. McAnelly’s death he was always working around the ranch. He looked after the machinery pretty near entirely, and Fred the stock. ’ ’
Mrs. Bessie Green, who lived near Big Sandy since 1910, her place being about five miles from the McAnelly place, knew the McAnelly family ‘ ‘ quite well. * * * I have visited them since the summer of 1920. * * * My understanding is, and it is a matter of common knowledge in the community, that their farm and ranch was conducted as a family partnership.”
Fred Griesinger, son-in-law of Mr. M. F. McAnelly since 1911, when he married Pearl McAnelly, testified that he had lived on the ranch near Big Sandy since 1920, coming there when he was 32 years of age. In 1912 he had 287 acres of land in the Kootenai Valley of Idaho, which adjoined McAnelly’s land, and which McAnelly leased and held “until we made the trade with Van Alstine. * * * Mr. McAnelly and I traded in land in Idaho for the Van Alstine land in Chouteau County. * * * I had $3,175.00 paid on it at the time we made the trade.” He had 200 acres in Boundary County, Idaho “and 287 acres additional on that” which was all turned in on the trade. He deeded to McAnelly and McAnelly deeded to Van Alstine.
The plan was, according to Griesinger, that when the trade was made, after his affairs in Washington were cleaned up, to come to Montana and become a part of the family venture in farming. Property “I sold — it amounted to $3,174.34 * * * was all put into our venture in Montana. * * * that was our own funds.” The value of the land turned over by the Griesingers in the Van Alstine trade, less the encumbrance, was approximately “four thousand dollars * * * I sent pa four hundred dollars to apply on our taxes and interest we had to pay. * * * I assumed my part of it, yes my half of it” of a balance due the State of Montana, on the Montana land, and also a mortgage on it of $3,500 due a St. Paul firm. In the fall of 1920, “I got a big immigrant ear and I put in my cattle, horses and hogs and household good and machinery, everything I could get into it, and what I couldn’t get in I sold in the sale.” As to the value of the stock and equipment which was in the immigrant car and which went into the joint adventure he said, “Well, a conservative estimate would be $2500.00. * * # I had $860 for working capital at the time I moved to Montana. This also went into the farm and ranch as part of the running expenses. ’ ’ His 1920 Ford was used in general operation of the ranch.
The cattle Griesinger brought and the one cow McAnelly had, in 1920, “was our starting point. * * * We saved our heifer calves as the years rolled by, we never sold our heifer calves, and just kept increasing the herd. * * * it was kind of a family affair, and as the years rolled by the herd got larger and larger, ” and they could not brand separately without a great difficulty and “I had to give that part of it up. I voluntarily used pa’s brand,” Mr. McAnelly’s.
Up to 1935, when the livestock was sold, each received a share of the proceeds. About 1935 “we changed to three-eighths to my wife and I, and three-eighths to Mr. McAnelly and two-eighths to Frank Maxwell.” That was the share of each of the respective parties up until McAnelly’s death.
In 1923, “I had a chance to rent what is known as the Carpenter place * * * from McKenzie & McKenzie of Great Falls. That is part of the holdings now. * * * Mr. McAnelly bought the property. He was doing the business part of it, with my consent. * * * I farmed that for four years” and-what he got out of it “all went for operating expenses. * * * McKenzie got right close to $4,000.00 in the four years for his share * * * one-fourth delivered * * * three times that, if we could have got it all in cash, * * * was all used in the one operation.”
For his share of the joint farming adventure, “we got our living expenses * * * and around seventy-five hundred * * * that would be in bonds. ’ ’ He and his wife, Pearl, received three groups of bonds of the face value of $5,000 each. The money that went into these bonds “came out of the general proceeds * * * of the earnings” after the year 1943. When he first came to Montana, “we ivas supposed to be fifty-fifty on our farm operations” under a verbal partnership agreement. Frank Maxwell was not included then; he came in later. The bonds ‘ ‘ absolutely” came from the proceeds of the lands.
Frank Maxwell, MeAnelly’s grandson, knew the Griesingers turned in the land on the Van Alstine trade. They turned in what “they call the Shively place * * * in Idaho” for which they received no compensation at the time. They also turned into the partnership what came in the immigrant car, “that was taken right to the ranch.” He contributed his services to the venture and-“all I got was my bare living expenses, is all I figured on. ® * * it looked to me ’ ’ that Mr. and Mrs. Griesinger got the same.
In the early years of the ranching venture each of them owned cattle separately but, ‘ after it got to be quite a few head it got to be quite a job to keep them separate so we, just let them all go in one bunch and under one brand * * * after we put them in one bunch we figured three-eighths to the Griesingers, three-eighths to Mr. MeAnelly and two-eighths to myself. ’ ’
It was about 1943 “before there was anything left over. Most of the money went to pay for the land, pay for running expenses and machinery. * * * it took pretty near everything there was. There wasn’t any surplus left at that time. * * * All the land that was bought under the folks there was bought under contract,” and paid for as money was earned out of the joint adventure.
“My line” of serving the venture was handling the farm machinery. Mr. Griesinger “took care of the livestock mostly.” They worked as a family unit, sharing in what was made and put back in the lands and equipment. He “owned one-third” of the farm machinery and “the Griesingers and the MeAnelly” each owned a third.
In 3945 or 1946 he received three'groups of $5,000, face value, bonds. “They were my bonds.” Mr. and Mrs. Griesinger and Alice Quinn “got practically the same amount.” Those bonds were tlieirs. They came from their share of the earnings from the land.
In 1943 the land was divided by McAnelly deeding to them. The earning capacity of each of the three tracts was about the same.
All family papers were first “kept in the drawer there and then later on, when they began to get a little more numerous * * * we purchased a steel box and put them all in that. * * * I had some of my own personal papers, as well as these others that was in there. That was kept in the house. * * * I put my stuff in there the same as the rest of them * * * abstracts, deeds, * * * my personal stuff. The bonds and deeds were kept in this box, which he had access to. The bonds with his and McAnelly’s name on were his bonds.” McAnelly had no interest in these bonds other than, “it was understood it was listed in his name, the bank put it on there. ’ ’ These bonds were always considered his and he had control over them.
Prior to 1942 or 1943 no profits were divided. “Most all the money that was made went for the payment of this land * * * that was what it was held together for, for that purpose, borrowing so we could run it. * * * We talked about that lots of times, keeping it in one name just so we could get some credit if we needed it. We needed it. * * *” The property was in Mc-Anelly’s name with his and Griesinger’s consent. He had an interest in the property all the time.
He, Mrs. Quinn, the Griesingers and McAnelly had each a one-fourth interest in the grain. “When new machinery began to come on the place it was divided three ways. *' * * I had one-third, Fred had one-third and Mr. McAnelly had a third * * * from the first new machinery that was bought. ’ ’ The agreement to share in the profits “was verbal.”
The testimony of Pearl Griesinger showed that she was the daughter of M. F. McAnelly and the wife of Fred Griesinger. Her testimony corroborated much of the testimony of Fred Griesinger and Frank Maxwell. She said the bank account was in her father’s name but was considered a family account." She liad a right to issue cheeks on this account, as agent of her father, over a long period of years. She never signed a check, using only her name, until the joint bank account was established. Two checks, in evidence, dated August 15, 1936, were signed, “M. F. McAnelly, By Pearl Griesinger.” According to her, earning's from the joint adventure were deposited in the family account in Mr. McAnelly’s name. This account was closed and the money therein went into the joint account, which stood in the names of M. F. McAnelly and Pearl Griesinger. This joint account had $68,282.01 in it at the time of McAnelly’s death. This account, she said, contained her and her husband’s share of the earnings of the farm venture over a long period of years. It also contained the entire earnings for 1947 of the whole joint adventure.
She. said they relied upon income tax returns to determine how much of this joint account belonged to each member of the family. From 1935 to 1939 they received no cash. Everything went into the family account as working capital. So she figured the fair share of herself and husband for 1935 to 1937 would be. $200 a month; and for the years 1938 and 1939, $250 a month. She claimed this amount of the. joint account as hers and her husband’s. She felt a fair share of the crops after the. deeds were executed in 1943 would be “well, we thought that would be a fair estimate of it, a fourth * * '* one-fourth to Frank and one-fourth to Mrs. Quinn,” and one-fourth to her father. The title to the lands was left in McAnelly’s name because, “the place wasn’t clear. We didn’t have the. debts paid and we had to clear the title before we made the deeds out. ’ ’ Money, borrowed from the Federal Land Bank in 1933, was not paid off until 1942; all the encumbrances were not paid off until 1942 or 1943.
The papers of all members of the family were kept first in the library table drawer; then in a steel box, kept in the house, to which all members of the family had access. All the bonds, “in' the amount, of $7500.00 each in actual value,” purchased with joint earnings, and belonging to different members of the family, were in this box. McAnelly had bonds in only his name in the box and these were listed as his in the inventory. Later the box was taken to the bank and placed in a safety deposit box to which all members of the family had access. Any member of the family could go “to the bank and take what he wanted out of the box.” She said the $7500 in bonds was a “fair” share for them of the earnings from the grain.
The deeds giving each of them certain lands were executed on December 1, 1943, and turned over to them and put in the box, from which they could have been taken and recorded at any time, “if we would have wanted to.” The property described in the Griesinger deeds was their share in the joint adventure, which was true of the deeds to Frank Maxwell and-Alice Quinn. She and Fred owned a third interest in the farm machinery “and so did Frank..”
The evidence -warrants the finding by the trial court that a joint adventure existed between M. F. McAnelly, Fred Griesinger, Pearl Greisinger, Alice Quinn, and Frank Maxwell for the purpose of conducting farming and livestock operations in Chouteau County.
A joint adventure has been defined to be a special combination of persons undertaking jointly some specific adventure for profit, without any actual partnership or corporate designation ; an association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill, and knowledge. 48 A. L. E. 1056; 48 C. J. S., Joint Adventures, sec. 1, pages 801, 802. See also, Rae v. Cameron, 112 Mont. 159, 114 Pac. (2d) 1060. The courts have not laid down any very certain, satisfactory, or all-inclusive definition of a joint adventure, being content, in most cases, to determine whether the given or conceded facts in the particular cases constitute a joint adventure. 138 A. L. R. 970.
The law requires little formality in the creation of a joint adventure, and in considering whether or not such a relationship has been created, the courts are guided not only by the spoken or written words of the parties, but also by their acts; and where from the facts there is no question but that the parties intended to go into the deal together so that each might derive profits therefrom, the fact that there is no definite agreement does not prevent the parties from having assumed the relationship of joint adventures. 138 A. L. R. 969. And the rule seems well settled that where the existence of the relationship of joint adventurers is in issue, and there is substantial evidence tending to prove that the parties intended to join their efforts in furtherance of the enterprise for their joint profit, the question is preeminently one of fact. 138 A. L. R. 969.
The fact that M. F. McAnelly appeared to control the joint adventure and to be the owner of the lands thereof, when he in fact was not such owner, did not change the status of the enterprise as a joint adventure.
For it is generally held that one joint adventurer may be entrusted with the actual control of the enterprise without changing its status as a joint adventure. 48 C. J. S., Joint Adventures, see. 2, page 811. See also, Gaspar v. Buckingham, 116 Mont. 236, 153 Pac. (2d) 892.
The evidence justifies the conclusion that the real property, described in the deeds, from McAnelly to the Griesingers, Quinn and Maxwell, and the bonds in the joint names of MeAnelly and the Griesingers, Quinn and Maxwell, came from the earnings of the joint adventure, and are the individual property of the Griesingers, Quinn and Maxwell, as their names appear thereon, and such real property and bonds are not part of the McAnelly estate and, therefore, not subject to inheritance tax.
On November 25, 1944, the money in M. F. McAnelly’s bank account went into a joint bank account in the names of Pearl Griesinger and M. F. McAnelly. At the time of McAnelly’s death the joint bank account balance was $68,282.01. Pearl Griesinger does not claim this money for herself, either by right of survivor-ship or by virtue of having deposited her own money in such joint account. The claim made is that the $68,282.01 is in fact the money of the joint adventurers which should be divided in such proportions as to leave only $13,493.08 as M. F. McAnelly’s share and subject to inheritance tax.
In determining how much each member of the family, as a joint adventurer, should have as his or her share of the $68,-282.01, resort was had to estimation, which resulted in a self-serving written summary of such estimations, which went into evidence by stipulation of the parties, the truth of which the state did not admit.
Pearl Griesinger, whose testimony alone tends to explain the joint bank account, said income tax returns were also relied upon in making- up the summary.
The summary, showing receipts and expenses of the ranch and farming adventure, lists the amount paid for labor each year as follows: 1940, $500; 1941, $500; 1942, $500; 1943, $600; 1944, $600; 1945, $600; 1946, $650, and 1947, $700, totaling, over the specified years, $4,650 as labor expense.
However, the income tax returns of McAnelly for the same years tell an entirely different story. The amount paid for labor, in each of the above years, as shown by McAnelly’s income tax returns, is as follows: 1940, $3,225; 1941, $3,447.75; 1942, $3,504; 1943, $4,967.09; 1944, $4,567.06; 1945, $4,618.70; 1946, $5,227.10, and 1947, $5,318.27, totaling, over the specified years as labor expenses, $34,873.97.
Since the members of the joint adventure, according to the evidence, performed the labor of the farm and ranch venture, the Griesingers apparently doing the greater part thereof, the only reasonable conclusion that can be drawn from the income tax returns of McAnelly for the years 1940-1947, is that the members of the joint adventure received from the earnings of the venture for the enumerated years not $4,650 as estimated in the written summary, but $34,873.97, as shown by such returns.
•The failure of the summary of estimations and the testimony of the witnesses, which conflict with the income tax returns of McAnelly, to show the true facts, make such estimation and testimony wholly unsatisfactory evidence upon which to deprive the state of claimed inheritance tax.
■McAnelly, by deed, gave each of the other members of the joint adventure their share of the lands, and in the form of bonds gave each member, as Pearl Griesinger put it, a “fair” share for them of the earnings from the grain.
By codicil to his will, dated November 26, 1945, he stated that ‘ ‘ one-fonrth of all wheat and grain on my farm belongs to Fred Gresinger and Pearl Griesinger * * * three-eighths of all cattle on my farm belongs to me * * * one-fourth of all hogs on my farm belongs to Fred Griesinger and Pearl Griesinger.” Yet, neither by codicil, nor otherwise, did he give any indication except by the forming of the joint bank account, that any member of the joint adventure other than himself, had or was entitled to share in the $68,282.01.
No evidence was introduced showing any statement made by McAnelly concerning the money in the joint bank account, or what his purpose was in creating it, and no bank official or employee testified relative to the same.
“The best evidence of the decedent’s state of mind at the time and his reasons for making the transfers are the statements and expressions of the decedent himself * * *. If the existence of an independent purpose desirable of achievement by the donor is not satisfactorily shown, the gift is presumed to have been testamentary in character and therefore taxable.” In re Wadsworth’s Estate, 92 Mont. 135, 11 Pac. (2d) 788, 791.
Under the circumstances of this case, and since the law, R. C. M. 1947, sec. 91-4405, considers money held in a joint account in the nature of a gift between the deceased and the survivor of one-half thereof, except as to that part originally belonging to the survivor and never belonging to the decedent; and since the law, R. C. M. 1947, sec. 91-4402, considers the gift made here as made in contemplation of death because made within three years prior to the death of McAnelly, the entire amount of $68,282.01 should be subject to inheritance tax. State Board of Equalization v. Cole, 122 Mont. 9, 195 Pac. (2d) 989. See also, In re Kuhr’s Estate, 123 Mont. 593, 220 Pac. (2d) 83.
R. C. M. 1947, sec. 91-4407, which specifies the deductions which are allowed in imposing an inheritance tax upon property passing by transfer, states: “* * * the following deductions, and no other shall be allowed; debts * * * expenses * * * all state, county and municipal taxes * * * and federal estate taxes due or paid. ’ ’ The statute is clear and direct and declares no deduction shall be allowed, excepting those specified therein. It does not say that interest paid on federal tax is deductible. Until the legislature sees fit to amend the law and makes such interest deductible, we shall have to hold that the statute means just what it says, and that the amount of $3,347.32 paid the federal government as interest on federal estate taxes is not an allowable deduction for inheritance tax purposes.
For the reasons stated the cause is remanded to the lower court with directions to subject the entire, joint bank account of $68,-282.01 to inheritance tax, and to disallow as a deduction the amount of $3,347.32 paid the United States Government as interest on federal estate taxes. In all other respects the judgment is affirmed.
MR. CHIEF JUSTICE ADAIR and ASSOCIATE JUSTICES BOTTOMLY, ANGSTMAN and ANDERSON, concur.
|
[
7,
13,
-25,
8,
36,
8,
34,
18,
-19,
0,
-17,
-46,
-24,
27,
-46,
28,
-21,
-75,
45,
-4,
2,
0,
-23,
-33,
29,
8,
-39,
15,
-9,
-22,
-11,
-22,
-49,
-27,
104,
1,
-7,
-53,
-6,
-35,
-26,
31,
-33,
29,
13,
-13,
-37,
11,
17,
30,
-33,
-90,
34,
-3,
44,
-26,
13,
-11,
-98,
12,
42,
-34,
33,
-23,
43,
47,
-22,
-19,
-21,
-49,
41,
14,
6,
25,
18,
-45,
-24,
-23,
-35,
13,
4,
20,
5,
-1,
-46,
-37,
-67,
-47,
-21,
8,
-30,
8,
-7,
7,
0,
9,
37,
55,
-8,
-15,
44,
4,
-11,
-1,
40,
-41,
-48,
13,
15,
49,
12,
-18,
11,
-1,
-14,
36,
-91,
39,
-15,
47,
-58,
-6,
-54,
-21,
-24,
-16,
24,
99,
0,
25,
35,
25,
-25,
-18,
-57,
-1,
-36,
-64,
-45,
18,
39,
-85,
11,
-32,
-18,
14,
-10,
-44,
6,
-14,
-2,
40,
-9,
48,
33,
-44,
38,
2,
23,
-9,
3,
-20,
58,
-3,
2,
-8,
0,
-23,
-22,
-12,
11,
6,
-28,
81,
-20,
46,
-12,
25,
8,
24,
-25,
7,
57,
-29,
-10,
-13,
16,
21,
-19,
-28,
-3,
-48,
47,
-8,
-52,
-9,
71,
-44,
-39,
27,
-14,
0,
31,
0,
42,
-2,
33,
-67,
-28,
-43,
0,
-59,
-6,
17,
-22,
37,
-21,
7,
-9,
-24,
64,
48,
9,
-7,
9,
-45,
-25,
19,
2,
-40,
-39,
27,
13,
17,
47,
-19,
22,
-1,
-68,
37,
-29,
-26,
-14,
-70,
43,
54,
-17,
-16,
-13,
22,
8,
0,
-12,
38,
36,
38,
13,
1,
39,
-54,
-28,
1,
11,
-3,
-31,
19,
-35,
-27,
42,
41,
70,
-14,
54,
28,
11,
-27,
16,
-36,
25,
10,
28,
-31,
-44,
42,
30,
-1,
-24,
-26,
-42,
-11,
-35,
10,
58,
-29,
36,
42,
0,
-73,
66,
1,
-52,
94,
39,
18,
23,
9,
-42,
-30,
41,
-16,
15,
26,
17,
60,
72,
5,
-9,
-29,
44,
18,
70,
-5,
-52,
25,
11,
52,
38,
13,
0,
92,
16,
-12,
18,
-33,
-25,
-27,
22,
-28,
-33,
-1,
25,
47,
52,
24,
-11,
-25,
-19,
60,
0,
27,
-12,
24,
31,
60,
-2,
32,
86,
3,
-9,
-5,
49,
2,
1,
-7,
-78,
35,
-71,
-18,
-7,
-53,
35,
24,
-19,
47,
25,
85,
0,
32,
-13,
-27,
13,
13,
-18,
72,
80,
65,
18,
19,
-23,
8,
13,
16,
-35,
44,
35,
-42,
15,
-27,
-20,
-22,
-16,
24,
-25,
0,
-45,
-20,
25,
42,
-14,
-2,
7,
13,
-15,
-22,
12,
-27,
5,
-8,
-36,
32,
61,
61,
0,
-37,
-2,
-69,
-34,
40,
-28,
-40,
-2,
45,
-66,
-3,
1,
-35,
28,
54,
39,
13,
33,
-3,
107,
4,
22,
-69,
-17,
-17,
28,
21,
3,
14,
-67,
-66,
-9,
21,
45,
-26,
5,
-42,
-7,
11,
-13,
-45,
4,
37,
18,
-5,
107,
12,
-25,
35,
6,
-61,
-24,
65,
16,
-68,
-3,
-4,
-13,
9,
-25,
-36,
19,
-17,
-38,
36,
2,
0,
-13,
-18,
-13,
18,
-56,
-16,
11,
-51,
65,
-75,
-23,
0,
23,
38,
-5,
-34,
-1,
-18,
-31,
-16,
37,
-23,
-10,
11,
-20,
69,
23,
32,
52,
31,
-4,
-13,
-38,
30,
50,
-21,
8,
40,
24,
-19,
-93,
-14,
-35,
-2,
-23,
26,
63,
53,
-44,
14,
0,
-24,
1,
-40,
-40,
22,
16,
50,
-17,
-12,
23,
-65,
-43,
26,
-40,
-31,
3,
-24,
-31,
-6,
73,
7,
-77,
-1,
-22,
-76,
-46,
-16,
5,
-28,
-36,
-54,
35,
-32,
30,
11,
-13,
-28,
21,
42,
35,
-7,
18,
-34,
16,
42,
-31,
77,
5,
26,
-31,
-24,
-39,
43,
17,
14,
1,
8,
-33,
-35,
-78,
13,
18,
3,
-39,
-15,
-4,
10,
19,
19,
-20,
56,
57,
34,
-32,
40,
-2,
-62,
17,
-11,
19,
11,
48,
-48,
21,
-1,
-17,
13,
7,
14,
-5,
-36,
41,
-1,
-44,
5,
-48,
-8,
-46,
-31,
-40,
-8,
-16,
-27,
25,
-47,
29,
-42,
34,
15,
-8,
8,
-26,
35,
-40,
-8,
59,
-52,
11,
11,
103,
33,
83,
15,
16,
9,
24,
26,
26,
52,
5,
-29,
-79,
-12,
-31,
-6,
-14,
-6,
46,
52,
-23,
9,
-10,
81,
25,
40,
3,
61,
-42,
4,
-15,
-78,
49,
18,
-30,
24,
-76,
-4,
-15,
9,
60,
25,
-30,
-5,
-67,
29,
8,
-20,
-50,
-34,
-79,
16,
36,
8,
-12,
-20,
51,
18,
9,
-44,
0,
-78,
-16,
-21,
63,
5,
-15,
7,
-17,
3,
-22,
38,
-56,
17,
9,
31,
-18,
-6,
5,
-35,
-5,
-34,
-41,
-7,
-13,
26,
-27,
-10,
4,
27,
-33,
37,
3,
20,
12,
-58,
12,
18,
9,
6,
34,
29,
-23,
35,
0,
-2,
7,
-15,
-21,
-12,
17,
19,
-75,
16,
-30,
-22,
-49,
-11,
19,
46,
-6,
10,
-28,
-12,
1,
-4,
-16,
35,
19,
17,
-14,
49,
10,
-20,
-22,
19,
-33,
-17,
-16,
-32,
-11,
-32,
17,
49,
41,
-48,
3,
34,
-63,
88,
-37,
-20,
19,
-65,
3,
-22,
-24,
23,
-65,
-19,
12,
29,
24,
-60,
2,
-14,
25,
71,
-37,
-7,
13,
-3,
-23,
-29,
-5,
-38,
22,
7,
18,
-46,
20,
-29,
-43,
-29,
-8,
51,
31,
-33,
-25,
-4,
-40,
30,
-14,
47,
-15,
-17,
14,
-24,
-16,
70,
7,
-36,
-24,
9,
3,
-7,
17,
-40,
-50,
42,
-21,
-4,
-38,
3,
-4,
-17,
22,
68,
20,
33,
39,
13,
-7,
23,
-45,
20,
59,
27,
26,
-65,
-5,
-69,
-17,
-40,
-30,
-8,
-4,
-15,
20,
-10,
-27,
-6,
-30,
-2,
-1,
4,
-1,
18,
65,
0,
13,
-20,
-28,
-42,
-58,
62,
-30,
19,
2,
43,
-9,
-39,
-54,
3,
30,
-24,
11,
-13,
-5,
34,
-22,
58,
6,
2,
-30,
-4,
12,
11,
-41,
-15,
-1,
50,
88,
2,
65,
52,
26,
-16,
-11,
-32,
68,
9,
13,
105,
37,
67,
-27,
-52,
28,
31,
-46,
-14,
-2,
24,
63,
-37,
-15,
0,
29,
15,
-56,
-40,
13,
11,
44,
13,
54,
-51,
4,
-40,
18,
-13,
-21,
27,
33,
-42,
11,
-39,
-8,
-2,
94,
-16,
-27,
7,
20,
18,
11,
23,
-23,
-37,
-10,
-48,
25,
-54,
22,
-14,
2,
-11,
2,
-33,
-44,
-51,
-77,
-12,
-11,
-28,
34,
79,
-36,
5,
-25,
-38,
-36,
46
] |
MR. CHIEF JUSTICE ADAIR:
Respondents’ motion to dismiss appeal and appellant’s praecipe for dismissal thereof having been filed,
It' is ordered that the above entitled cause be dismissed with prejudice.
|
[
-39,
-23,
5,
19,
102,
-4,
0,
-30,
-36,
-25,
-30,
-13,
-117,
29,
-62,
-23,
-63,
-97,
34,
-32,
51,
12,
24,
-82,
0,
-32,
-51,
-38,
18,
-34,
-17,
-5,
-66,
15,
28,
-67,
15,
-3,
-11,
37,
-3,
-16,
14,
-24,
20,
-49,
-65,
20,
-54,
85,
47,
14,
-100,
-51,
-75,
31,
-47,
-2,
26,
-9,
-28,
86,
-29,
-1,
2,
40,
3,
-50,
-41,
35,
-28,
-14,
51,
-12,
-14,
-26,
-33,
-57,
14,
22,
36,
14,
-10,
46,
49,
50,
58,
68,
-55,
34,
-2,
20,
21,
-54,
23,
56,
27,
59,
-18,
16,
12,
42,
13,
-29,
19,
-33,
-31,
13,
24,
30,
58,
0,
-79,
0,
15,
16,
5,
30,
34,
-22,
-15,
33,
25,
8,
-8,
61,
34,
16,
0,
51,
35,
31,
3,
-23,
34,
33,
62,
59,
-22,
13,
19,
-38,
36,
-5,
-76,
11,
-32,
-9,
-41,
-16,
48,
-30,
-69,
-2,
-10,
7,
45,
-55,
37,
19,
32,
50,
3,
4,
-3,
14,
-50,
-14,
30,
73,
56,
-30,
53,
15,
-30,
-23,
-48,
15,
23,
39,
78,
17,
17,
34,
9,
-4,
-9,
32,
15,
-12,
-23,
-32,
29,
15,
32,
23,
-23,
-32,
-38,
-13,
-24,
-5,
-24,
-12,
70,
-21,
-106,
-78,
4,
41,
-69,
13,
-12,
-2,
34,
51,
35,
-29,
67,
48,
39,
-24,
-7,
11,
40,
14,
-91,
-43,
59,
36,
-21,
0,
-72,
-36,
-15,
-7,
25,
31,
19,
-14,
-28,
49,
67,
-24,
-91,
44,
43,
40,
-10,
-38,
91,
-36,
70,
-6,
-27,
-30,
-6,
0,
11,
-89,
-2,
19,
0,
-36,
-60,
84,
5,
23,
7,
-53,
2,
65,
17,
67,
51,
15,
15,
-18,
39,
48,
-7,
-31,
-39,
-54,
-14,
9,
38,
-62,
23,
0,
-3,
23,
-14,
56,
23,
17,
-55,
46,
-17,
-27,
-7,
-7,
-22,
-16,
-16,
-7,
16,
-41,
10,
-1,
-35,
2,
0,
1,
-31,
24,
-12,
-9,
11,
0,
8,
-4,
-95,
-4,
3,
23,
50,
37,
30,
13,
5,
-62,
24,
-16,
-47,
15,
-6,
63,
5,
-3,
-23,
-27,
-13,
-14,
-12,
-17,
-6,
-25,
7,
9,
-68,
26,
-45,
-9,
18,
0,
-28,
-49,
9,
-16,
4,
22,
49,
10,
122,
43,
-27,
-7,
-65,
-5,
-57,
-86,
14,
-53,
32,
31,
-37,
-40,
9,
21,
16,
-37,
29,
-1,
-24,
62,
16,
90,
6,
-17,
18,
-24,
19,
-20,
6,
-15,
6,
-39,
1,
42,
27,
0,
-67,
-4,
-64,
14,
-4,
-36,
1,
-13,
-10,
11,
-18,
62,
63,
-22,
-38,
104,
8,
2,
68,
-44,
55,
48,
-23,
31,
0,
-79,
63,
-16,
2,
-1,
23,
-2,
32,
79,
56,
0,
36,
45,
-6,
-56,
4,
9,
-50,
-5,
-69,
51,
-30,
15,
-37,
-33,
26,
-19,
-10,
-26,
0,
32,
1,
-19,
-3,
-7,
-58,
-42,
-69,
1,
15,
35,
48,
9,
18,
-36,
10,
0,
10,
-10,
12,
-4,
3,
-24,
2,
-15,
51,
8,
-55,
28,
19,
-14,
59,
9,
-28,
-51,
-21,
-22,
-25,
-49,
12,
-30,
-32,
-32,
14,
-59,
-24,
-56,
64,
-46,
-49,
-15,
11,
5,
33,
-17,
26,
-18,
-17,
82,
-23,
12,
-4,
1,
7,
-22,
20,
-5,
76,
-64,
-43,
2,
63,
44,
-10,
14,
12,
24,
-11,
69,
-15,
-12,
71,
-68,
-31,
-10,
39,
-7,
-32,
45,
-15,
3,
13,
42,
44,
35,
-12,
66,
5,
-36,
-69,
-55,
35,
-26,
49,
-47,
-60,
-1,
-23,
24,
10,
-55,
12,
18,
50,
0,
-15,
25,
28,
-50,
37,
-13,
2,
-62,
-29,
-49,
-48,
-21,
-34,
-36,
-3,
-58,
42,
-15,
-62,
5,
23,
-38,
-14,
-27,
-4,
-2,
10,
77,
-57,
-29,
9,
1,
-10,
48,
30,
-15,
52,
10,
26,
41,
-78,
21,
-21,
-37,
-33,
-20,
13,
7,
13,
-3,
-19,
11,
20,
-22,
-39,
-18,
35,
26,
11,
73,
-33,
-42,
-45,
89,
-33,
-9,
-2,
-91,
-12,
-13,
12,
-39,
67,
-31,
25,
-45,
61,
27,
23,
70,
-30,
-49,
37,
21,
-22,
-2,
42,
-39,
-50,
-45,
53,
1,
34,
9,
46,
79,
-41,
-16,
5,
53,
-26,
-15,
-5,
3,
41,
-42,
-71,
-9,
-2,
-3,
18,
14,
-61,
-18,
43,
21,
-62,
35,
-25,
18,
-8,
3,
13,
47,
18,
32,
48,
0,
-11,
-13,
61,
-1,
-23,
-71,
23,
-19,
-20,
-20,
-8,
29,
-32,
-2,
66,
-32,
5,
-33,
17,
4,
-13,
24,
11,
8,
13,
-17,
18,
-45,
59,
30,
-40,
-28,
21,
4,
-72,
-34,
30,
-15,
-3,
50,
-18,
20,
20,
-8,
30,
80,
21,
17,
6,
-34,
41,
-90,
4,
14,
26,
16,
-9,
-14,
12,
41,
34,
-21,
1,
-14,
40,
66,
46,
11,
-29,
10,
-37,
-11,
38,
-41,
-101,
-10,
-27,
-39,
114,
27,
1,
-91,
-53,
50,
13,
51,
-40,
-1,
-1,
-87,
59,
29,
-28,
9,
45,
-20,
-24,
-63,
-57,
37,
14,
37,
34,
11,
57,
79,
-23,
33,
-45,
-29,
-56,
-14,
-35,
-32,
1,
23,
-39,
14,
-4,
-31,
2,
55,
16,
126,
1,
-6,
4,
-12,
21,
-1,
74,
-29,
9,
30,
-39,
-1,
28,
16,
17,
-27,
-50,
5,
4,
18,
18,
14,
-61,
-23,
2,
27,
-18,
28,
-25,
83,
-34,
-30,
14,
-36,
8,
-4,
29,
52,
63,
-61,
-7,
-7,
26,
-16,
32,
-45,
21,
-24,
58,
42,
37,
-35,
1,
-34,
32,
-1,
16,
-3,
-26,
20,
-5,
-6,
20,
-65,
0,
2,
20,
11,
45,
73,
-17,
72,
-25,
-24,
-8,
31,
20,
-13,
42,
-32,
-4,
-11,
-42,
28,
23,
58,
-31,
26,
97,
23,
38,
-6,
-23,
-60,
45,
-24,
50,
24,
-10,
0,
16,
-17,
29,
7,
20,
-47,
30,
27,
-1,
24,
-14,
-47,
-128,
-7,
-51,
67,
-36,
14,
-25,
-44,
35,
-13,
7,
-12,
-48,
20,
22,
-82,
-32,
27,
14,
39,
10,
-4,
49,
-23,
1,
-52,
-50,
3,
-20,
4,
-62,
6,
-7,
15,
-36,
58,
34,
0,
-39,
-26,
16,
-73,
-21,
49,
-7,
-39,
56,
-71,
-19,
-20,
0,
-6,
-11,
-47,
-24,
43,
-46,
-95,
-40,
36,
-12,
47,
53,
1,
21,
28,
21,
-45,
17,
16,
-7,
31,
-15,
0,
70,
16,
-18,
31,
-45,
-89,
-13,
-26,
-40,
0,
-12,
34,
0,
-20
] |
MR. JUSTICE ANDERSON:
This is an original application seeking a writ of prohibition against the respondents, the district court of Cascade County and the Hon. C.' F. Holt, a district judge thereof, challenging the jurisdiction of the respondent district court to try the relator on an information therein filed charging the relator with having committed a criminal offense to-wit, an attempt to commit rape. Relator seeks an order commanding the respondents to vacate a certain order overruling relator’s motion to quash the information against him and-setting a day for defendant’s trial in said district court on such information. An alternative writ issued and on the return day the cause was argued and submitted. It is admitted that Daniel Bresnahan was over 18 years of age at the time the alleged act is charged to have been committed.
Petitioner sought the order to quash and set aside the informa tion on the theory that he was under the age of 21 years and therefore the juvenile court, as distinguished from the district court, has exclusive jurisdiction concerning the offense or any offense committed by a person under 21 years of age. Chapter 6, sees. 10-601 to 10-633, R. C. M. 1947, being the law having to do with juvenile courts and juvenile delinquents, is the authority given for the position taken by petitioner and particularly those provisions fixing and determining the jurisdiction of the juvenile courts.
R. C. M. 1947, see. 10-603, reads in part as follows:
“Jurisdiction. The district courts of the several counties of this state shall have jurisdiction in all cases coining within the terms and provisions of this act. It is provided that the district court shall be called the juvenile court when acting under the juvenile courts laws.
“The juvenile court shall have exclusive original jurisdiction in proceedings: (a) concerning any child who is delinquent;
“(b) concerning any person under twenty-one (21) years of age charged with having violated any law of the state, other than those laws relating to the commission of or attempt to commit the criminal offenses mentioned in subdivision (2) (a) of section 10-602, or [see below] any person charged with having violated any ordinance of any city or town, prior to having lecome eighteen years of age * * Emphasis supplied.
Petitioner contends that the use of the disjunctive conjunction “or” in section 10-603, subdivision (b), supra, separates and denotes an alternative, and that which appears in the clause following cannot modify that which precedes the disjunctive conjunction “or”.
Petitioner cites State ex rel. Peck v. Anderson, 92 Mont. 298, 13 Pac. (2d) 231, as authority for this point. However, it is our view that this case is clearly authority for the opposite view when considered in the light of the entire juvenile statutes as we now find them.
“The rule of grammatical construction is merely an aid in interpretation, and if the text of the statute indicates a legislative intention contrary to that which would follow from the application of the rules of grammar, then the rule of grammatical construction must give way * * State v. Centennial Brewing Co., 55 Mont. 500, 179 Pac. 296, 298.
The early criminal law did not differentiate between the adult and the minor who had reached the age of criminal responsibility. The fundamental thought in our early criminal jurisprudence was not reformation of the criminals, but punishment; and this applied to children as well as to adults. Today, however, the child is taken in hand by the state, not as an enemy, but as a protector, as the ultimate guardian, because either the unwillingness or the inability of the natural parents to guide him toward good citizenship has compelled the intervention of the public authorities.
R. C. M. 1947, sec. 10-602, provides among other things: ‘ The word ‘child’ means a person less than eighteen years of age. The word ‘adult’ means a person eighteen years of age or older.”
It is the child to which the Act above referred to is primarily applicable and the one with whom the juvenile courts and authorities are ordinarily concerned. When such person arrives at the age of eighteen he is an adult and under the criminal laws of this state is subject to the same rules of society as is any other adult no matter what his age may be. Exceptions found in the Act are those regarding the person between eighteen and twenty-one and such exceptions have to do with detention of such person and trial of such person if the offense for which he or she is charged occurred prior to the time he or she reached the age of eighteen.
Wisely the legislature provided that if any person between the age of eighteen and twenty-one is charged with a crime allegedly committed before he was eighteen, then the juvenile court shall have jurisdiction of such a cause, but it would be folly to supply the intent to the legislation to conform with the theory propounded by the petitioner.
Section 10-603, supra, found its origin in sec. 3, Chapter 227, Laws of 1943, where it is provided that juvenile courts shall have exclusive jurisdiction: “Concerning* any person under twenty-one years of age within the county charged with having violated any law of the state or any ordinance of any city or town, prior to having become eighteen years of age”. It cannot be denied that the language, here used, referred to persons under twenty-one charged with a crime committed by said person prior to the time he or she became eighteen.
The history of the Act, the Act itself, and the rules of construction, as laid down by our predecessors, leave us but one thing* to do. The writ is denied and the proceeding is dismissed.
MB. CHIEF JUSTICE ADAIB, and MB. JUSTICE ANGST-MAN, concur.
MB. JUSTICE BOTTOMLY, (dissents.)
|
[
-43,
-12,
-8,
23,
29,
-28,
24,
24,
-55,
47,
-15,
-3,
-34,
10,
-31,
16,
-65,
27,
19,
-6,
61,
0,
53,
-19,
-34,
-70,
-10,
-13,
-22,
-19,
16,
-33,
-4,
2,
45,
10,
113,
-16,
71,
53,
16,
38,
29,
50,
-12,
-17,
-43,
14,
-21,
27,
32,
-39,
0,
74,
26,
7,
19,
3,
16,
79,
-49,
5,
-4,
-23,
-7,
-44,
14,
-15,
-2,
23,
43,
-12,
-52,
-3,
36,
41,
-101,
-18,
39,
79,
-33,
11,
1,
-25,
-13,
-34,
17,
17,
20,
13,
55,
-15,
-34,
-25,
4,
8,
25,
-26,
5,
-48,
40,
-23,
33,
-8,
4,
49,
-33,
-3,
46,
9,
34,
-11,
-19,
-31,
13,
-29,
-26,
0,
11,
6,
17,
24,
32,
-26,
-2,
-31,
-8,
17,
-13,
-19,
9,
4,
50,
22,
30,
16,
-29,
9,
54,
-7,
-4,
-44,
59,
44,
10,
-3,
2,
37,
-5,
33,
19,
-34,
-2,
29,
-41,
-19,
36,
-4,
22,
-4,
10,
-19,
-7,
-22,
-2,
-37,
-46,
26,
-22,
31,
5,
-7,
-3,
25,
9,
4,
-39,
15,
-8,
27,
9,
21,
32,
0,
-28,
27,
-29,
-28,
-14,
17,
7,
20,
1,
-32,
57,
5,
15,
23,
-21,
-15,
-7,
18,
16,
14,
25,
-33,
-6,
20,
8,
52,
-43,
-1,
-46,
75,
27,
2,
52,
26,
-5,
33,
-28,
29,
56,
7,
-45,
-23,
7,
14,
4,
15,
55,
-17,
-22,
48,
26,
-47,
67,
20,
2,
54,
15,
47,
7,
-41,
52,
50,
0,
3,
-3,
-45,
12,
-4,
11,
31,
-42,
4,
-10,
-66,
-18,
-37,
33,
-24,
-20,
0,
-70,
-31,
11,
16,
-44,
-12,
-10,
-22,
35,
23,
-7,
35,
52,
-14,
-8,
9,
10,
-2,
75,
65,
-10,
-5,
18,
31,
54,
10,
-28,
32,
-10,
-41,
8,
-6,
-6,
-40,
57,
6,
18,
-49,
-12,
21,
-51,
-47,
67,
4,
-6,
-21,
22,
20,
-68,
27,
-43,
-2,
-8,
29,
54,
-2,
32,
-18,
-21,
-42,
-31,
-5,
86,
-6,
-9,
-12,
36,
-4,
7,
-13,
-44,
16,
-1,
-38,
-15,
27,
66,
-25,
-41,
32,
9,
11,
7,
-13,
-8,
-35,
6,
7,
24,
-35,
5,
13,
-57,
-38,
44,
-57,
25,
45,
-32,
-92,
28,
-16,
52,
31,
-9,
-7,
-28,
-60,
-29,
-9,
41,
-43,
-6,
33,
5,
14,
24,
-23,
19,
-41,
51,
5,
-4,
-43,
6,
-41,
21,
49,
-12,
-5,
8,
-14,
-2,
3,
38,
-48,
4,
15,
48,
-27,
-47,
17,
-37,
47,
25,
7,
5,
45,
15,
51,
14,
50,
-83,
-23,
-21,
6,
8,
25,
18,
-15,
32,
15,
-29,
14,
53,
-6,
0,
23,
-65,
30,
22,
-41,
34,
0,
69,
22,
-19,
-58,
-19,
6,
2,
-42,
-9,
4,
20,
-15,
0,
37,
-30,
-49,
15,
36,
21,
53,
25,
-58,
-5,
-19,
-21,
15,
1,
-5,
-38,
-32,
-27,
26,
-11,
19,
-6,
-33,
-4,
34,
13,
38,
4,
25,
-25,
2,
-89,
20,
21,
-12,
57,
-30,
19,
36,
-28,
-22,
-17,
33,
-1,
-15,
-11,
-14,
25,
29,
13,
-13,
-35,
-11,
24,
7,
27,
42,
-7,
-10,
1,
38,
26,
-57,
-14,
9,
0,
27,
-11,
7,
37,
-6,
-8,
-13,
-38,
-16,
28,
-24,
-66,
-22,
28,
-51,
-5,
-4,
12,
-3,
30,
22,
27,
-1,
69,
-5,
34,
23,
-47,
-13,
-24,
-35,
-12,
32,
-55,
15,
47,
24,
-4,
24,
-7,
-78,
-30,
-73,
42,
37,
-5,
-49,
10,
29,
47,
7,
10,
4,
-12,
-37,
-29,
-23,
3,
-21,
-11,
-32,
29,
-23,
-10,
28,
-12,
-15,
24,
-15,
31,
-31,
40,
-1,
-78,
0,
-55,
-29,
8,
-13,
-27,
-5,
11,
17,
-40,
72,
83,
28,
73,
-11,
45,
17,
-9,
-34,
6,
27,
-14,
30,
21,
9,
-8,
-9,
-64,
2,
-18,
-20,
-5,
19,
-15,
-34,
-42,
-40,
-34,
-18,
-40,
-30,
12,
-31,
4,
-15,
-54,
31,
43,
-43,
10,
-39,
-27,
-28,
0,
-19,
80,
18,
12,
-7,
7,
10,
25,
-28,
44,
-7,
-98,
-48,
47,
1,
1,
-50,
-28,
-23,
2,
21,
11,
36,
-47,
3,
0,
-2,
-41,
5,
-30,
-14,
-60,
6,
37,
3,
-10,
30,
-2,
-93,
-3,
-7,
-3,
-7,
-18,
57,
23,
-24,
11,
46,
-4,
17,
-31,
0,
-73,
-10,
-33,
-15,
47,
-29,
-74,
-21,
30,
-25,
-8,
19,
-25,
45,
11,
40,
-6,
-36,
52,
-5,
-70,
36,
-19,
-60,
9,
20,
2,
8,
16,
1,
11,
18,
29,
-39,
30,
7,
71,
-26,
4,
-30,
82,
38,
-3,
-31,
-7,
-38,
17,
72,
16,
-51,
-42,
23,
5,
-17,
-34,
-9,
-37,
7,
19,
-47,
-4,
34,
15,
20,
65,
-3,
-20,
0,
-26,
33,
74,
19,
17,
-41,
14,
-8,
-45,
40,
-38,
-11,
-7,
-30,
-5,
42,
-47,
-61,
-2,
-31,
-18,
0,
-4,
7,
-12,
72,
1,
13,
-20,
1,
8,
16,
19,
21,
-25,
44,
8,
28,
-3,
23,
3,
-17,
-30,
21,
-25,
40,
-21,
0,
-24,
-38,
-29,
-9,
19,
-29,
23,
-15,
-1,
-15,
29,
22,
8,
-40,
-2,
-9,
2,
-1,
13,
7,
-13,
-71,
2,
-16,
42,
46,
20,
26,
16,
-49,
-31,
-66,
19,
-10,
18,
-55,
-33,
21,
-77,
11,
8,
-28,
28,
2,
-32,
20,
14,
2,
22,
-52,
-27,
-33,
30,
-8,
-22,
11,
10,
-44,
49,
51,
20,
-90,
-31,
-25,
-17,
13,
72,
0,
-8,
-31,
15,
-2,
-26,
3,
-11,
-35,
-48,
-2,
28,
35,
0,
94,
-72,
7,
-95,
-26,
22,
70,
5,
-26,
-56,
-62,
-6,
28,
-9,
-29,
-11,
-6,
15,
5,
10,
-6,
-43,
-21,
30,
-12,
9,
-20,
33,
22,
-3,
-45,
12,
28,
-17,
29,
-32,
7,
-42,
7,
-14,
18,
1,
-3,
-25,
7,
-58,
32,
-25,
-17,
39,
24,
-19,
-20,
-14,
-31,
-60,
-7,
32,
16,
-34,
4,
0,
43,
2,
14,
2,
41,
-13,
99,
-6,
15,
51,
-12,
21,
-59,
-52,
58,
2,
86,
-33,
-15,
45,
10,
13,
23,
-45,
0,
45,
-31,
-2,
58,
-3,
35,
-15,
-19,
-52,
-51,
19,
0,
-28,
33,
-35,
7,
3,
-56,
32,
30,
-55,
-18,
-2,
-38,
-41,
-1,
-2,
-26,
14,
-34,
32,
-12,
-2,
-35,
17,
-3,
-6,
-3,
26,
-12,
2,
-17
] |
Per Curiam.
Original proceeding for a writ of mandate to be directed to the respondent district court and judge presiding therein, commanding them to set aside an order theretofore made and entered appointing Robert J. Boyd, Esq., special prosecutor in a criminal action commenced October 15, 1955, and now pending in the district court of Deer Lodge County against the relator, Leo Scalise.
It is ordered that the writ and petition therefor be denied and that this proceeding be dismissed.
MR. CHIEF JUSTICE ADAIR and MR. JUSTICES ANGSTMAN, ANDERSON, DAVIS and BOTTOMLY, concur.
|
[
12,
-23,
65,
32,
-16,
10,
-25,
36,
-44,
-40,
-8,
-38,
-97,
66,
-14,
28,
-14,
-19,
53,
-28,
12,
50,
-10,
-36,
-14,
-7,
23,
21,
-39,
13,
-44,
-5,
8,
-8,
27,
-58,
49,
4,
42,
2,
-22,
7,
-3,
18,
-9,
-2,
-19,
6,
-3,
31,
-9,
7,
-64,
8,
-27,
17,
-13,
-104,
38,
-24,
-50,
-4,
10,
21,
4,
-59,
28,
-2,
31,
29,
15,
-4,
4,
-2,
22,
-17,
-62,
-92,
-21,
17,
10,
79,
51,
14,
-8,
-1,
-45,
13,
22,
0,
20,
-49,
-14,
-38,
-33,
59,
18,
-15,
-13,
3,
17,
7,
25,
27,
-36,
-39,
-10,
-28,
46,
34,
26,
-7,
-2,
-36,
10,
23,
-17,
-27,
32,
9,
-13,
20,
15,
-23,
-70,
-10,
1,
19,
6,
-13,
-17,
-1,
87,
26,
21,
51,
10,
-9,
42,
0,
-16,
-48,
55,
-8,
17,
6,
-12,
6,
-49,
24,
14,
57,
-24,
34,
21,
24,
-22,
-10,
-18,
83,
21,
-36,
-23,
-20,
-8,
28,
-77,
-9,
-59,
-10,
43,
-39,
-32,
-8,
-36,
-38,
-48,
48,
13,
-10,
44,
43,
38,
-27,
18,
27,
-27,
50,
-27,
9,
-34,
-18,
66,
3,
77,
11,
0,
-43,
-6,
69,
-10,
13,
1,
-38,
-12,
15,
1,
-4,
17,
14,
30,
-89,
-26,
24,
24,
50,
-25,
12,
0,
26,
-39,
-13,
42,
23,
73,
-60,
-43,
11,
1,
17,
35,
-39,
-85,
32,
6,
-18,
33,
-5,
-20,
34,
-49,
-8,
34,
2,
29,
8,
48,
44,
70,
8,
-6,
-37,
7,
20,
-19,
-16,
-10,
58,
14,
0,
7,
-7,
-3,
28,
-41,
30,
50,
0,
31,
15,
-6,
25,
10,
16,
57,
3,
24,
-24,
4,
-8,
-9,
48,
-31,
-23,
-1,
5,
-21,
-45,
37,
-8,
-15,
-30,
14,
4,
13,
17,
0,
-67,
2,
-51,
27,
20,
55,
18,
-29,
-82,
21,
-25,
56,
-16,
-35,
83,
22,
-42,
-79,
28,
-7,
10,
-12,
-67,
-19,
-26,
-11,
-6,
-9,
-25,
0,
41,
-6,
8,
-26,
-11,
20,
-21,
-31,
19,
6,
61,
2,
52,
6,
1,
-14,
73,
-41,
-33,
40,
7,
-35,
23,
6,
18,
15,
-27,
4,
17,
-26,
-5,
-1,
-32,
27,
35,
-17,
29,
37,
-9,
15,
31,
-41,
-10,
-44,
-5,
24,
-28,
-7,
-33,
-26,
14,
8,
-1,
-17,
-13,
60,
24,
12,
9,
31,
74,
38,
-33,
-7,
-20,
-50,
-3,
-17,
-26,
4,
20,
20,
45,
30,
-19,
40,
8,
-34,
-6,
-36,
58,
21,
40,
-4,
62,
15,
38,
23,
-6,
-81,
0,
50,
-3,
49,
-19,
-5,
-14,
2,
3,
-15,
-22,
30,
-39,
20,
-38,
4,
14,
-5,
-17,
-4,
-9,
51,
11,
-15,
10,
0,
-11,
-20,
-53,
11,
-32,
-3,
-51,
1,
28,
-6,
-58,
-52,
1,
35,
59,
-30,
-13,
-51,
6,
-29,
-26,
-13,
70,
-41,
24,
-2,
-19,
-3,
-1,
-13,
9,
-50,
-32,
-1,
3,
32,
-11,
12,
16,
-78,
-27,
-40,
-31,
54,
16,
23,
30,
16,
-57,
-1,
12,
-22,
10,
-75,
-12,
-27,
22,
40,
-3,
-12,
62,
10,
-13,
5,
8,
-20,
-13,
-6,
-53,
28,
14,
-44,
49,
37,
-8,
22,
-3,
34,
-12,
3,
-36,
12,
-20,
31,
17,
5,
0,
2,
-21,
16,
-17,
-73,
28,
-65,
-1,
-4,
-40,
20,
-4,
24,
6,
18,
-26,
-30,
-20,
-4,
12,
14,
14,
-19,
-6,
-18,
-12,
-13,
-32,
35,
-42,
22,
-14,
-13,
-19,
-10,
26,
-16,
42,
28,
26,
-2,
32,
12,
-24,
54,
6,
13,
1,
-26,
17,
26,
4,
-39,
17,
-2,
-58,
34,
-5,
-22,
9,
-83,
-41,
26,
15,
31,
1,
-42,
5,
6,
3,
-17,
0,
8,
11,
-6,
-53,
36,
16,
35,
-2,
43,
-23,
-34,
26,
11,
8,
-47,
-2,
6,
27,
-16,
-11,
23,
54,
1,
-1,
-60,
-46,
-7,
-10,
-8,
-19,
-37,
-18,
12,
-38,
-42,
48,
4,
-21,
-41,
35,
1,
-71,
-18,
-5,
36,
22,
86,
23,
26,
7,
-29,
-43,
40,
-37,
3,
-42,
37,
8,
-29,
-75,
-69,
-12,
76,
24,
-67,
6,
-34,
47,
33,
-2,
-41,
-81,
52,
-23,
39,
-8,
-18,
-34,
35,
70,
-21,
-30,
23,
-6,
11,
17,
-104,
102,
52,
26,
13,
12,
-9,
-62,
-50,
9,
5,
15,
8,
29,
-52,
53,
-3,
-33,
-32,
1,
-24,
-34,
-51,
-33,
-28,
13,
-38,
7,
-27,
-3,
-6,
-59,
-66,
10,
-30,
67,
23,
-10,
-38,
-15,
1,
11,
21,
-23,
27,
14,
-40,
-6,
-42,
-7,
-27,
-9,
2,
-16,
23,
10,
20,
-12,
-1,
14,
-19,
89,
15,
-28,
-51,
5,
-44,
-21,
31,
-9,
57,
71,
3,
1,
25,
58,
-2,
4,
-38,
11,
5,
2,
70,
-5,
25,
6,
-34,
33,
-26,
-19,
82,
50,
-27,
-27,
6,
-49,
30,
-2,
-78,
6,
-54,
10,
27,
-27,
39,
3,
-3,
5,
57,
27,
49,
22,
25,
99,
20,
-2,
62,
7,
-40,
17,
-78,
-24,
2,
0,
-38,
30,
-30,
-24,
-1,
-9,
6,
-44,
29,
1,
46,
-14,
33,
19,
-14,
-5,
-43,
34,
-2,
-1,
30,
-19,
-28,
-52,
9,
-14,
-54,
-1,
-26,
80,
10,
-1,
23,
18,
-22,
21,
16,
-18,
35,
47,
20,
33,
-12,
-21,
39,
-28,
10,
14,
-23,
11,
26,
-107,
-40,
-9,
0,
-4,
79,
47,
53,
2,
44,
47,
-13,
-42,
29,
14,
28,
-24,
7,
48,
-43,
-23,
-9,
-37,
-18,
-2,
-13,
-50,
48,
-27,
-49,
21,
26,
66,
-41,
36,
39,
35,
-12,
35,
17,
19,
-4,
13,
31,
9,
-4,
-37,
-37,
7,
-1,
22,
14,
-7,
-10,
36,
-6,
9,
75,
25,
-15,
40,
23,
-4,
32,
-54,
33,
-7,
3,
0,
-7,
30,
-29,
-44,
10,
0,
-4,
42,
-91,
-62,
-52,
10,
39,
44,
-2,
-58,
-24,
-19,
-11,
-51,
-58,
-26,
-68,
51,
34,
53,
26,
-24,
-25,
-25,
-13,
49,
-2,
-44,
5,
26,
-26,
-24,
-23,
40,
27,
37,
13,
-12,
-44,
12,
16,
79,
-37,
-27,
71,
-12,
-58,
64,
14,
16,
-23,
-37,
45,
9,
-27,
-51,
33,
58,
-8,
-14,
-9,
29,
-52,
-14,
34,
-27,
14,
47,
29,
-23,
-2,
-12,
11,
-38,
-8,
-36,
1,
32,
-18,
-15,
8,
-83,
-21,
-33,
-35,
-14
] |
Per Curiam.
Original habeas corpus proceeding brought pro se by Harold J. Goff, an inmate of the Montana State Prison where he was received on November 26, 1940, to serve for the term of his natural life for having committed the crime of murder in the first degree to the commission whereof he pleaded guilty in the District Court of Jefferson County, Montana, where sentence was pronounced November 26, 1940. It appearing that the application is without merit, the writ is denied and the proceeding is dismissed.
|
[
44,
-40,
52,
16,
-44,
-82,
-4,
-6,
-8,
-21,
-39,
-27,
-43,
9,
8,
38,
0,
-12,
31,
-63,
-4,
18,
-32,
55,
1,
-5,
-8,
50,
2,
6,
-10,
39,
-29,
-71,
42,
-36,
88,
-14,
-12,
33,
3,
-14,
60,
17,
-34,
0,
26,
13,
-40,
14,
8,
1,
27,
-45,
-86,
-30,
1,
-61,
-37,
36,
5,
29,
36,
-23,
-27,
-9,
29,
10,
62,
19,
48,
1,
-4,
16,
52,
-16,
-29,
-55,
27,
-11,
-23,
33,
57,
11,
-53,
-17,
-52,
-33,
12,
65,
3,
-3,
23,
-44,
-34,
3,
-4,
-50,
40,
38,
-45,
-60,
-16,
-20,
30,
-41,
-36,
18,
-18,
53,
-31,
1,
-5,
-53,
-10,
-28,
-65,
-29,
33,
-32,
-36,
55,
-4,
44,
-38,
-10,
-19,
-22,
78,
14,
4,
31,
31,
42,
-31,
34,
14,
-33,
32,
-63,
-42,
-42,
25,
-10,
-10,
-28,
24,
-9,
-13,
95,
-27,
39,
1,
-6,
20,
95,
4,
-8,
-34,
80,
6,
-43,
-23,
11,
60,
8,
-34,
25,
-7,
-32,
-40,
34,
12,
23,
-7,
-7,
-11,
30,
25,
21,
-2,
63,
32,
-15,
-31,
25,
-60,
47,
-7,
-14,
-22,
25,
46,
-10,
19,
39,
23,
18,
-12,
3,
-44,
26,
15,
-7,
-9,
0,
3,
-34,
57,
-56,
27,
-72,
39,
28,
8,
13,
-24,
-9,
10,
30,
-51,
4,
26,
27,
31,
-18,
58,
13,
-49,
-65,
25,
-44,
-22,
-38,
48,
-42,
-19,
-21,
-48,
28,
-86,
-37,
94,
0,
31,
-12,
-21,
37,
-13,
22,
-14,
19,
-2,
43,
-30,
-75,
22,
20,
11,
-27,
-19,
-61,
8,
9,
-55,
-46,
13,
-55,
4,
0,
35,
-2,
-15,
24,
40,
4,
-81,
22,
-20,
-27,
7,
8,
-33,
-55,
-9,
-65,
-26,
-52,
-33,
-23,
10,
-11,
39,
-56,
70,
28,
-16,
-12,
-2,
-62,
-24,
-14,
-12,
-28,
-4,
-11,
41,
-45,
1,
-3,
66,
66,
-24,
-21,
-50,
44,
0,
-10,
4,
-27,
-27,
-39,
-8,
-13,
-7,
24,
-25,
30,
-14,
45,
-24,
-18,
7,
-22,
-17,
5,
-39,
60,
5,
27,
0,
38,
-36,
39,
-29,
19,
36,
61,
-9,
-10,
-22,
26,
3,
-47,
-13,
-36,
-43,
11,
3,
-29,
25,
-5,
36,
24,
20,
-27,
-53,
-12,
5,
-24,
-3,
-23,
24,
-79,
-14,
73,
29,
-18,
-23,
32,
-37,
-7,
23,
64,
11,
69,
33,
55,
-18,
5,
-64,
-15,
-12,
-65,
3,
4,
30,
-3,
-7,
-6,
0,
-6,
27,
79,
35,
-55,
-29,
48,
14,
21,
28,
53,
23,
54,
42,
33,
-12,
-9,
79,
25,
31,
30,
16,
41,
-45,
7,
7,
-27,
-2,
-32,
79,
-27,
-2,
18,
54,
29,
-61,
31,
54,
28,
9,
-10,
19,
16,
10,
-34,
-10,
0,
-7,
-28,
-12,
-6,
-58,
-83,
-63,
75,
12,
60,
-37,
3,
-30,
21,
54,
-32,
19,
43,
-19,
0,
29,
49,
29,
10,
-44,
50,
-50,
-25,
16,
-17,
-9,
-31,
18,
-65,
0,
-55,
27,
-45,
27,
38,
2,
31,
-47,
-56,
16,
0,
-22,
32,
-15,
16,
5,
31,
-4,
29,
-55,
45,
27,
18,
16,
-16,
-20,
-20,
11,
35,
20,
37,
-2,
21,
113,
-28,
7,
-4,
-68,
-8,
16,
22,
22,
47,
63,
-10,
-8,
0,
-8,
-66,
-61,
-32,
-15,
-17,
-58,
-2,
-26,
-50,
1,
18,
98,
-26,
37,
20,
-31,
17,
-25,
-13,
-12,
35,
-12,
2,
-8,
-34,
-27,
-48,
16,
-20,
27,
8,
-28,
41,
-15,
-23,
-19,
38,
8,
13,
0,
25,
24,
-4,
34,
26,
24,
15,
-20,
1,
43,
7,
19,
-14,
-42,
6,
8,
1,
-7,
7,
-41,
15,
29,
-22,
12,
22,
-80,
-18,
-10,
32,
-22,
44,
14,
66,
5,
-29,
17,
1,
1,
-22,
36,
29,
-9,
22,
-37,
-3,
-12,
-3,
-40,
-35,
3,
-47,
4,
10,
-28,
-36,
-31,
-46,
-35,
22,
6,
-49,
-25,
19,
-20,
9,
-7,
33,
31,
-27,
15,
40,
0,
-23,
16,
-18,
45,
-56,
32,
22,
57,
18,
-80,
5,
5,
-13,
-14,
-31,
65,
-8,
-45,
0,
-62,
-44,
22,
3,
-4,
-34,
-44,
24,
18,
-78,
-62,
-65,
26,
10,
-14,
-9,
19,
-26,
46,
10,
-6,
22,
80,
6,
36,
26,
-45,
40,
16,
14,
-6,
6,
24,
-57,
-18,
-13,
-6,
82,
27,
8,
-35,
35,
22,
-41,
14,
-26,
-36,
-24,
-44,
-13,
16,
-14,
-27,
-43,
-64,
8,
29,
-20,
-5,
-4,
-5,
78,
-21,
-47,
-21,
5,
34,
-13,
-13,
-49,
-4,
12,
-8,
0,
19,
-10,
14,
-25,
-32,
-39,
-38,
-14,
-44,
-83,
10,
19,
36,
94,
30,
43,
-52,
46,
-12,
-20,
51,
-96,
-15,
29,
13,
23,
-28,
21,
-66,
23,
26,
-11,
13,
78,
12,
-8,
-13,
-35,
-11,
7,
-12,
-17,
59,
36,
-27,
-5,
28,
-33,
76,
27,
-1,
-5,
9,
-54,
15,
-6,
-16,
12,
-18,
6,
24,
10,
-20,
51,
13,
-29,
50,
-4,
-7,
-63,
-14,
17,
-73,
19,
-15,
38,
-39,
6,
-17,
-20,
26,
-63,
19,
-36,
56,
15,
25,
57,
82,
2,
46,
-28,
-3,
13,
-13,
-11,
31,
30,
-44,
-47,
19,
63,
-58,
49,
-9,
29,
78,
-14,
49,
44,
2,
-17,
6,
14,
39,
10,
-16,
63,
-37,
25,
52,
-37,
10,
-21,
-15,
-16,
53,
-10,
-29,
-1,
8,
-51,
-7,
13,
-8,
-3,
35,
30,
-6,
-6,
39,
39,
35,
1,
-37,
-23,
-4,
-11,
26,
-84,
5,
-31,
-35,
-13,
14,
-4,
-40,
20,
10,
9,
38,
-70,
-20,
25,
-26,
39,
19,
26,
45,
11,
9,
-60,
59,
32,
-11,
-28,
-25,
8,
12,
-45,
15,
51,
41,
-65,
-10,
39,
15,
47,
46,
4,
3,
-42,
-24,
23,
11,
9,
-44,
-46,
-36,
24,
81,
-58,
10,
31,
-38,
-44,
-24,
-12,
39,
32,
-28,
-109,
22,
-82,
15,
10,
-3,
13,
-54,
18,
75,
6,
18,
0,
-24,
2,
-21,
-11,
-39,
0,
35,
9,
2,
2,
-15,
-21,
29,
17,
28,
-30,
-12,
18,
5,
23,
-15,
-31,
-17,
-10,
-53,
-20,
27,
-3,
-23,
26,
65,
48,
-27,
18,
62,
56,
23,
-60,
-21,
-3,
8,
50,
-38,
-39,
42,
33,
2,
-4,
-8,
12,
15,
0,
-9,
-42,
-16,
14,
-25,
46,
7,
-13,
-36,
-37,
20,
-49
] |
MR. JUSTICE ANGSTMAN:
This action was brought to set aside a schedule of rates and charges for natural gas promulgated by defendant Commission by order No. 2395, Docket No. 4068, and which the complaint al~ leged were unlawful, unreasonable and unjust in particulars specifically alleged.
Defendants filed demurrers to plaintiff’s complaint. Plaintiff moved to strike the demurrers as unauthorized by law. The motion was denied.
After the motion to strike was denied, plaintiff filed amendments to the complaint. Demurrers were again filed by defendants to the complaint as amended. After argument the demurrers were sustained without leave to amend and judgment of dismissal followed. This appeal is from the judgment.
The demurrers question the right of Arnold H. Olsen to sue as appears from the face of the amended complaint in that there is not (1) any direction or authorization from the board of examiners, or (2) any direction or instruction from the governor so to do, or (3) any direction or instruction from any board or person having the power so to do, or (4) any provision of the Constitution empowering, authorizing or directing him so to do, or (5) any statute authorizing or directing him to do so, or (6) any authority whatever for him to institute such an action, or (7) any dissatisfaction on the part of the state with the order complained of.
The demurrers assert that the amended complaint discloses that the action was not brought by a party in interest within the meaning of E.C.M., 1947, section 70-128.
The demurrers assert that it appears on the face of the amended complaint that there is a defect in the alleged party plaintiff for want of allegation of any resolution, direction, authorization or instruction from the board of examiners, governor or any board or person having power to confer the authority to file the amended complaint or to institute the action or any Constitution, statute, or common law authorizing the attorney general to file the amended complaint or to institute the action.
Likewise the demurrers challenge the consistency of the attorney general in bringing the action because he is required to advise, represent and defend the public service commission in any action seeking to question, vacate and set aside any order of the defendant commission.
They also challenge the amended complaint as being ambiguous, unintelligible and uncertain because it fails to disclose in what manner the order complained of is injurious to or against the pecuniary interests of the public users, the State of Montana and the people of Montana.
The complaint as amended so far as material to a consideration of the questions raised by the demurrers contains these allegations :
“That the plaintiff herein is now and at all times mentioned herein was the duly elected, qualified and acting Attorney General of the State of Montana, and has brought and is maintaining the above entitled action in behalf of the State of Montana and the people of Montana, for the purpose of protecting the interests of the State and people of Montana, users of natural gas furnished by the Montana Power Company from an unwarranted, unlawful and unreasonable increase in rates awarded to defendant company by defendant Commission’s Order No. 2395 of Docket No. 4068; that the plaintiff Attorney General, State of Montana, and people of Montana are dissatisfied with the unlawful and unreasonable Order No. 2395 of Docket No. 4068 made by defendant Commission’s granting and approving the application for increased rates of the defendant company as said schedule of rates, tolls and charges are therein set forth.
“That pursuant to defendant company’s petition filed with the defendant Commission and proper notice of public hearing dated May 8, 1953, a public hearing was held in the matter of the application of the defendant company for authority to adopt new rates and charges for natural gas service; that said hearing commenced at 9 :30 A.M. on the 27th day of May, 1953, in the House Chamber of the State Capitol Building, Helena, Montana; that at the above mentioned public hearing the plaintiff herein appeared and protested in behalf of the State of Montana and the people of Montana against the increase in rates ap plied for by tbe defendant company; that tbe plaintiff there asserted and still asserts that the rates granted and sought are adverse to the interests of the State of'Montana and the people of Montana. * * *
“That Order No. 2395 of Docket No. 4068 is injurious to the public users, the State, and people of Montana, and against the pecuniary interests in that by this Order the defendant Company is enabled to obtain from the Montana users an additional revenue of about One Million Four Hundred Thousand Dollars ($1,400,000.00) annually. * * *
“* - * * that said defendant at all times mentioned herein owned, operated and controlled equipment and facilities for the transmission, delivery, furnishing and distribution of natural gas to the public and users in the cities of Cut Bank, Great Falls, Helena, Butte, Livingston, Bozeman, Big Timber, Anaconda, Deer Lodge and other communities in western Montana; further, that defendant company furnished, provided and sold natural gas to a large number of industrial consumers in or near the cities and communities above mentioned, and further that defendant company was at all of said times, and is now, engaged in the business of so transmitting, furnishing, distributing, selling and delivering such natural gas to its patrons in the areas above mentioned under and in accordance with schedules of' rates, tolls and charges or contracts therefor duly approved by the defendant Public Service Commission of Montana, and on file therewith as hereinafter alleged and set forth, and in the-conduct of said business said company is a ‘public utility’ within the meaning of Section 70-103, Revised Codes of Montana, 1947
“(c) That the tolls, rates and charges awarded defendant company by the defendant commission’s order applying to the general Montana user, including the state institutions, are unlawful in that they require from the general customers an excessive-rate in comparison with more favored customers and in direct-contravention of the laws of the State of Montana.”
The propriety of the court’s ruling on the demurrer depends upon the rights and powers of the attorney general.
What was said in case No. 9417 this day decided has equal application here. The court erred in sustaining the demurrer to the complaint. On the authority of that ease, State ex rel. Olsen v. Public Service Comm’n, ...... Mont......., 283 Pac. (2d) 594, 12 St. Rep......., the judgment is reversed and the cause remanded with directions to set aside the order sustaining and to enter an order overruling the demurrer and allowing defendants a reasonable time to further plead.
MR. CHIEF JUSTICE ADAIR and MR. JUSTICES ANDERSON and BOTTOMLY, concur.
MR. JUSTICE DAVIS, not participating.
|
[
0,
-28,
-28,
-5,
39,
7,
27,
-52,
-33,
63,
29,
13,
50,
19,
-10,
-28,
-4,
-29,
9,
-9,
21,
-52,
58,
1,
-5,
-26,
-5,
-6,
-41,
9,
34,
17,
-63,
14,
27,
8,
-69,
34,
-6,
12,
13,
-17,
24,
-5,
-4,
-19,
-60,
35,
25,
-12,
55,
2,
-21,
19,
-55,
-8,
-48,
-13,
-58,
-29,
-62,
20,
6,
17,
-5,
-35,
-51,
-21,
5,
7,
-20,
16,
60,
-2,
-33,
13,
-78,
-49,
-25,
9,
-25,
30,
-48,
-16,
39,
46,
14,
11,
15,
13,
-26,
20,
-37,
39,
69,
19,
-1,
-1,
45,
8,
7,
-4,
-62,
27,
14,
36,
-5,
-4,
4,
11,
-2,
29,
-70,
-47,
-56,
-5,
-4,
-7,
44,
-11,
57,
-34,
1,
62,
-32,
53,
-4,
79,
-18,
42,
-48,
107,
48,
29,
-31,
-2,
19,
-6,
9,
11,
4,
-74,
-2,
8,
13,
14,
46,
60,
11,
-22,
4,
-16,
54,
42,
-44,
-54,
42,
-52,
33,
-7,
47,
-8,
-27,
-34,
3,
19,
-18,
-11,
10,
-9,
0,
-23,
-6,
0,
-27,
5,
-52,
4,
22,
-52,
33,
10,
-7,
-19,
30,
32,
59,
-58,
-28,
1,
42,
-59,
-11,
6,
-12,
14,
-3,
14,
17,
-25,
12,
3,
1,
-13,
4,
12,
-12,
23,
14,
-34,
0,
-13,
-27,
-14,
-47,
6,
48,
-32,
-10,
6,
-22,
-15,
-2,
3,
17,
7,
20,
-13,
-13,
-47,
-32,
-8,
34,
4,
-48,
2,
71,
15,
57,
28,
-45,
17,
27,
-26,
11,
9,
-15,
-16,
-23,
19,
4,
-23,
46,
16,
17,
14,
23,
-21,
-44,
-27,
0,
-23,
-4,
-30,
-13,
0,
18,
21,
41,
9,
37,
-8,
45,
48,
-22,
-14,
-34,
-59,
58,
35,
11,
7,
24,
38,
-26,
54,
28,
55,
7,
-7,
-29,
-11,
36,
9,
14,
43,
75,
-13,
-1,
-5,
-75,
-38,
36,
-8,
4,
-8,
10,
3,
-30,
4,
4,
34,
-32,
-40,
31,
-9,
-10,
24,
7,
-71,
18,
17,
-14,
-8,
26,
2,
11,
26,
-15,
-44,
20,
-40,
30,
-31,
19,
-5,
-31,
-28,
0,
-25,
15,
15,
-14,
-15,
1,
12,
7,
-84,
7,
-44,
-19,
-27,
-48,
4,
34,
-14,
-15,
-83,
-18,
23,
-12,
36,
-44,
-72,
-2,
-19,
0,
14,
-24,
13,
-42,
-10,
-47,
-91,
-17,
14,
-13,
5,
-34,
13,
21,
-31,
-60,
-10,
73,
56,
22,
4,
9,
11,
-21,
11,
-12,
24,
24,
-45,
-4,
-56,
-14,
36,
52,
-9,
17,
4,
31,
1,
18,
0,
-13,
18,
47,
-38,
-22,
-7,
-3,
44,
48,
44,
63,
44,
32,
-30,
23,
-11,
14,
-57,
4,
-6,
-4,
26,
-61,
-29,
-16,
-40,
-25,
15,
3,
-56,
-11,
36,
31,
21,
-16,
-5,
7,
-8,
-15,
29,
0,
18,
-34,
-3,
9,
8,
-28,
22,
52,
19,
28,
-24,
-6,
45,
15,
19,
-31,
52,
25,
29,
-14,
26,
-31,
21,
-24,
15,
-16,
51,
-41,
-29,
8,
-7,
-50,
1,
-35,
-74,
-29,
25,
56,
12,
14,
-9,
36,
-3,
-3,
-34,
-2,
3,
-5,
-21,
1,
22,
-14,
-2,
-8,
-17,
9,
-50,
2,
-23,
11,
-31,
6,
36,
40,
-11,
6,
27,
39,
-24,
3,
-9,
9,
-22,
-15,
-81,
5,
33,
-36,
-2,
88,
-62,
4,
-27,
7,
-49,
-21,
9,
33,
-6,
21,
-1,
64,
46,
7,
63,
27,
-16,
-22,
20,
76,
-3,
38,
-1,
-8,
-21,
-26,
67,
-11,
-16,
11,
-16,
-8,
75,
-55,
-10,
17,
55,
-23,
-41,
-4,
-41,
1,
-6,
-6,
9,
0,
-25,
-12,
-72,
0,
-26,
-66,
7,
-59,
-39,
-61,
-6,
25,
27,
22,
-36,
-29,
-67,
-15,
-16,
41,
18,
-31,
-52,
39,
15,
5,
-3,
-25,
13,
-16,
-15,
-44,
30,
15,
11,
35,
17,
-14,
0,
18,
38,
-33,
-7,
10,
-18,
40,
-4,
36,
53,
24,
-11,
-9,
-61,
-42,
-3,
-2,
-49,
16,
-45,
-8,
-39,
1,
29,
15,
26,
22,
2,
13,
-49,
26,
-4,
49,
34,
-17,
2,
-6,
88,
15,
-22,
-35,
57,
3,
-40,
-14,
-62,
-5,
-15,
-15,
11,
-16,
-8,
53,
-2,
1,
-5,
23,
-10,
6,
23,
26,
-23,
-29,
-21,
-15,
31,
-21,
-18,
9,
-5,
-48,
10,
-15,
5,
-42,
-19,
64,
-9,
-7,
12,
9,
29,
9,
-59,
35,
15,
-28,
6,
5,
12,
-53,
-14,
-21,
-29,
45,
40,
33,
0,
-17,
-7,
75,
-41,
18,
-6,
-8,
-32,
-10,
4,
13,
26,
-21,
39,
59,
16,
-32,
-44,
-5,
23,
-5,
7,
-34,
-14,
-3,
-95,
11,
30,
81,
-13,
1,
-19,
14,
-23,
10,
11,
6,
1,
-7,
-28,
-41,
83,
-2,
5,
-42,
-12,
6,
-3,
75,
-16,
23,
-27,
-12,
-42,
-8,
-25,
30,
6,
3,
2,
34,
-22,
68,
34,
39,
-32,
-18,
-3,
-39,
42,
-20,
-25,
43,
-4,
10,
-4,
-25,
6,
10,
38,
11,
-33,
-28,
35,
-21,
-17,
-47,
-21,
0,
-25,
28,
29,
-10,
11,
8,
-5,
-3,
21,
-30,
-49,
19,
-11,
13,
-35,
-33,
34,
-16,
-41,
11,
35,
65,
67,
7,
-51,
-13,
3,
-9,
9,
55,
-23,
10,
24,
28,
15,
-20,
11,
29,
-16,
-2,
-26,
-39,
30,
-25,
22,
-41,
-16,
-20,
-38,
-25,
46,
-11,
32,
18,
-18,
24,
42,
-4,
-12,
27,
55,
41,
24,
30,
-68,
-74,
-3,
-55,
40,
6,
-25,
24,
10,
20,
-15,
3,
-66,
61,
-32,
-31,
0,
-21,
-47,
8,
-29,
19,
15,
-34,
70,
37,
-3,
-26,
3,
-22,
1,
0,
-60,
16,
7,
20,
1,
26,
16,
-24,
9,
7,
-39,
-88,
24,
34,
-16,
-3,
-9,
-24,
38,
49,
7,
48,
-30,
-15,
19,
-52,
-31,
-3,
-13,
-3,
60,
31,
44,
-12,
-15,
-41,
14,
20,
-30,
-14,
54,
-45,
50,
-20,
23,
49,
-66,
-12,
-24,
-52,
-50,
-27,
35,
-35,
-13,
-13,
45,
3,
39,
-8,
2,
-11,
-11,
-11,
8,
45,
-12,
20,
-46,
-8,
2,
-3,
-16,
-9,
30,
34,
-22,
-5,
-27,
-32,
-12,
7,
21,
-7,
17,
-10,
11,
27,
-3,
-28,
-57,
-27,
47,
18,
34,
7,
-55,
-9,
15,
-19,
43,
-2,
-28,
72,
58,
14,
7,
34,
-16,
8,
28,
59,
41,
-4,
-54,
-2,
49,
-7,
47,
-3,
-8,
20,
-25,
-8,
-33,
-72,
0
] |
PEE CUEIAM.
No copy of any notice of appeal in this cause appearing in either the transcript on appeal or the files of this Court herein or having been supplied to this Court, the purported appeal is hereby dismissed for want of jurisdiction shown. See E.C.M. 1947, section 93-5608.
|
[
-36,
-25,
-6,
-39,
7,
-69,
41,
-46,
-13,
14,
28,
-17,
-60,
6,
-59,
-44,
85,
-52,
12,
-53,
3,
55,
36,
0,
3,
-16,
4,
35,
17,
5,
33,
57,
-75,
34,
69,
-30,
43,
-33,
24,
-10,
-80,
57,
12,
-34,
-1,
-46,
-3,
45,
29,
61,
3,
-31,
-31,
-13,
-52,
19,
-14,
-26,
-6,
31,
-55,
29,
23,
46,
0,
3,
-18,
-48,
9,
-6,
-2,
-28,
-12,
-22,
0,
-92,
-44,
51,
44,
37,
68,
20,
17,
0,
57,
-10,
31,
1,
-34,
17,
-43,
-14,
-42,
2,
-24,
42,
21,
29,
-40,
23,
42,
71,
-29,
-13,
67,
9,
43,
26,
-82,
-4,
-35,
2,
-44,
7,
19,
-7,
-50,
-15,
38,
-4,
7,
-19,
0,
24,
58,
-4,
74,
53,
3,
45,
-86,
2,
19,
18,
-27,
-22,
60,
-11,
30,
5,
26,
1,
17,
-24,
29,
52,
25,
13,
-1,
-27,
91,
-5,
-47,
15,
-33,
35,
45,
-68,
0,
30,
55,
44,
-43,
31,
21,
62,
-29,
-12,
-18,
61,
27,
16,
-10,
29,
-29,
-2,
11,
2,
68,
0,
67,
11,
53,
17,
29,
47,
6,
-40,
1,
-13,
57,
25,
-25,
33,
0,
-82,
4,
-70,
79,
-59,
-51,
24,
-10,
-14,
34,
40,
-43,
11,
17,
16,
-34,
16,
0,
39,
29,
-8,
64,
-24,
47,
42,
-17,
65,
-43,
-70,
-28,
57,
-31,
65,
9,
53,
-14,
42,
-61,
-27,
32,
-7,
36,
19,
-4,
31,
-59,
35,
-2,
-48,
18,
43,
63,
56,
-10,
16,
74,
72,
76,
-54,
-18,
-39,
8,
50,
-41,
-36,
-9,
45,
7,
-5,
-114,
-5,
29,
-30,
-10,
9,
-26,
-15,
0,
-28,
54,
-46,
-5,
17,
58,
-2,
-20,
-31,
-31,
-33,
2,
-2,
-31,
14,
24,
40,
-95,
67,
-68,
76,
-40,
39,
35,
45,
-12,
45,
4,
-15,
-2,
18,
15,
-13,
49,
-50,
21,
24,
30,
16,
-8,
97,
-1,
77,
-3,
-37,
-18,
18,
7,
31,
-18,
20,
41,
-38,
27,
-28,
63,
0,
21,
-17,
1,
-20,
6,
52,
-28,
-18,
1,
-1,
-29,
25,
-33,
-6,
2,
-9,
-65,
63,
23,
49,
-38,
8,
33,
-49,
6,
-2,
-14,
-60,
11,
36,
23,
-20,
44,
-22,
58,
31,
-27,
48,
-38,
-36,
20,
-3,
-36,
-53,
-8,
19,
10,
-49,
-36,
-58,
-28,
-17,
4,
1,
-19,
72,
14,
-28,
37,
-7,
-27,
-12,
2,
16,
-18,
-62,
13,
23,
36,
-15,
18,
-21,
-13,
35,
5,
-59,
-3,
42,
-9,
10,
-13,
21,
-26,
14,
36,
45,
12,
-10,
18,
-31,
49,
10,
-37,
-62,
-81,
-29,
-47,
22,
28,
16,
-17,
-12,
-29,
-19,
7,
72,
62,
-87,
5,
5,
30,
-10,
-10,
-14,
-6,
-59,
21,
-6,
-47,
-3,
6,
-4,
-11,
-32,
21,
-38,
17,
19,
2,
-24,
0,
28,
-96,
-42,
-53,
42,
-35,
18,
-8,
23,
-70,
23,
-78,
-59,
-26,
-3,
17,
48,
4,
-11,
20,
6,
16,
-15,
19,
-17,
-16,
-42,
-18,
26,
-18,
-16,
39,
11,
-22,
-34,
-2,
-45,
2,
-11,
-40,
-41,
14,
-16,
23,
22,
21,
6,
33,
-17,
-45,
45,
36,
-41,
54,
57,
-47,
-36,
27,
-10,
3,
-27,
50,
-84,
35,
6,
-13,
1,
-3,
-9,
22,
-44,
10,
35,
23,
-16,
59,
10,
-57,
13,
22,
-28,
-11,
-2,
9,
22,
-14,
-6,
12,
34,
-20,
21,
-71,
4,
19,
-9,
0,
-19,
-45,
3,
3,
6,
-25,
-18,
-35,
45,
4,
8,
-41,
-48,
5,
3,
14,
-51,
-6,
-24,
2,
-47,
56,
3,
-4,
19,
3,
-24,
-37,
-22,
-27,
-18,
-39,
-69,
-11,
-16,
-21,
-11,
25,
53,
-86,
-9,
-45,
32,
-34,
-3,
49,
61,
-3,
25,
-38,
-13,
-4,
-17,
43,
70,
4,
16,
-90,
-47,
6,
39,
32,
-17,
2,
25,
16,
71,
-4,
-63,
-10,
-5,
8,
20,
3,
82,
2,
-53,
23,
22,
27,
-45,
25,
0,
24,
-41,
-19,
-73,
27,
-20,
15,
-92,
16,
47,
4,
9,
2,
-16,
-10,
45,
-25,
-46,
7,
42,
-100,
-43,
0,
23,
1,
-53,
-7,
14,
25,
-9,
-40,
-17,
-36,
60,
-80,
3,
-15,
-49,
-24,
-18,
28,
-47,
-8,
-49,
-15,
-50,
2,
30,
-60,
43,
21,
42,
2,
23,
12,
2,
28,
9,
40,
10,
18,
-70,
70,
47,
-63,
4,
-18,
-32,
15,
25,
-38,
27,
-55,
-17,
68,
-2,
53,
38,
7,
4,
1,
-23,
0,
56,
63,
6,
53,
9,
36,
51,
49,
24,
9,
-8,
-30,
-47,
-3,
-23,
6,
56,
-22,
0,
0,
-33,
38,
29,
8,
-67,
58,
0,
10,
-67,
-28,
-9,
8,
-12,
44,
-8,
22,
-13,
9,
-23,
74,
-46,
-14,
54,
-3,
-35,
35,
19,
-43,
-19,
8,
-19,
-19,
6,
-27,
-13,
27,
31,
-45,
-21,
-85,
90,
29,
41,
-33,
1,
-21,
-28,
4,
31,
-33,
-9,
14,
-18,
17,
-69,
-128,
6,
29,
-42,
14,
23,
-7,
22,
13,
20,
-13,
-7,
-20,
-36,
-6,
-45,
21,
6,
18,
-31,
41,
-58,
17,
-34,
6,
53,
-20,
20,
-42,
15,
-10,
38,
5,
-23,
40,
6,
-49,
-86,
18,
-42,
-10,
-20,
-24,
-23,
-70,
7,
-42,
-82,
-2,
14,
33,
6,
-34,
39,
-53,
-16,
22,
-36,
72,
6,
-26,
0,
42,
15,
67,
-14,
-26,
-24,
21,
5,
-65,
-42,
18,
-1,
-36,
2,
-37,
-8,
50,
6,
22,
37,
10,
-59,
51,
-49,
-47,
-52,
-69,
-14,
-23,
-11,
-17,
68,
8,
68,
33,
38,
17,
-31,
-28,
2,
8,
-30,
49,
-3,
-31,
-31,
4,
-28,
70,
34,
-13,
-33,
23,
-87,
69,
-2,
-21,
-31,
26,
-43,
21,
15,
10,
-7,
47,
-2,
-5,
-40,
36,
-3,
21,
17,
-50,
67,
14,
-1,
-57,
-32,
36,
83,
27,
29,
24,
1,
36,
-16,
-3,
0,
-26,
-37,
33,
-54,
5,
57,
-21,
76,
-5,
15,
23,
-19,
-43,
0,
-77,
-24,
-56,
-7,
-33,
76,
-6,
13,
0,
81,
67,
2,
27,
61,
-25,
-28,
-73,
7,
31,
9,
6,
-40,
-29,
-27,
-41,
31,
32,
-6,
31,
-11,
-3,
-21,
7,
-1,
46,
21,
41,
2,
57,
-9,
-31,
-50,
-2,
60,
-8,
-21,
-51,
-3,
-1,
15,
19,
11,
-45,
-56,
22,
-18,
-22,
14,
14,
-20,
15,
-38
] |
MR JUSTICE DAVIS:
On July 1, 1952, the district court for Missoula County, Honorable C. E. Comer, Judge, sentenced the relator Zumwalt to seven years in the Montana State Prison upon his plea of guilty to an information, which assumed at least to charge the crime of “Passing a False and Worthless Check,” a felony. Subsequently a hearing, -which began on January 6, 1953, or thereabouts, and continued intermittently for some two weeks, was bad in the district court upon a proceeding initiated by Znm wait in the nature of the common law writ of error coram nobis to inquire into certain errors alleged by him to have occurred in the course of his prosecution there. Because of these errors it was urged the judgment of conviction should be set aside. Evidently the court below concluded otherwise, because after the hearing had, at which Zumwalt was present in person and represented by counsel, the writ was by judgment or order of date January 30, 1953, denied.
No appeal was taken or attempted, so far as this record shows, from this disposition of the ease in the lower court. Rather on December 1, 1954, Zumwalt sued his writ out of this court upon the grounds, in brief, that his application or motion in the district court had been improperly denied, that he had in fact been deprived of his constitutional rights in the course of the prosecution, which resulted in his sentence below and consequent imprisonment, and that the judgment of conviction against him had been arbitrarily and unjustly entered under the wrong statute. He prayed our review.
Accordingly an alternative writ went down, commanding the respondents to show cause at a time specified why the challenged judgment ‘ ‘ should not be set aside, vacated and annulled and the said relator James R. Zumwalt be again arraigned on said information.”
To this writ the respondent court and judge have made return in no manner known to our law; but they are undoubtedly to be excused, because our writ is in itself not only novel but unknown to our practice or procedure heretofore. Yet in the view which we take of the matter the return before us, such as it is, is not material. The attorney general has interposed to the writ a motion to quash; to the petition, a demurrer; both on the ground among others that this court is without jurisdiction in the matter. His convincing brief leaves no other conclusion possible. We may not therefore reach the merits of the case with which the district court was concerned and upon which the dissent in this court touches.
Initially we note that it is not of importance whether the proceeding in the district court be denominated a motion, a petition for a writ of error coram nobis, or by some other equally mysterious title. For it ended in (1) an order or (2) a final judgment denying Zumwalt the relief he asked.
Nor is it here of importance either whether the proceeding below be construed (a) as a civil action brought after the fashion of the common law writ of error coram nobis to annul the challenged judgment of conviction, People v. Dabbs, 372 Ill. 160, 165, 166, 23 N.E. (2d) 343; Quinn v. State, 209 Ind. 316, 319, 198 N.E. 70; State v. Ray, 111 Kan. 350, 351, 207 Pac. 192; Newcomb v. State, 129 Neb. 69, 73, 74, 261 N.W. 348; Carman v. State, 208 Ind. 297, 311, 196 N.E. 78; Elliott v. Commonwealth, 292 Ky. 614, 620, 167 S.W. (2d) 703; Jones v. Dowd, 7 Cir., 128 F. (2d) 331, 333; Jones v. Squier, 9 Cir., 195 F. (2d) 179, 180, or (b) as a motion made in the criminal case itself to vacate that judgment, In re Paiva, 31 Cal. (2d) 503, 509, 510, 190 Pac. (2d) 604.
In either case the judgment or order entered might have been brought here by appeal for review consistent with our controlling statutes.
That is, if the denial below of Zumwalt’s prayer for relief be a final judgment in a civil action or special proceeding commenced in the district court, then by statute, B.C.M. 1947, section 93-8003, subd. 1, he was given his appeal to this court within six months after the entry of that judgment, B.C.M. 1947, section 93-8004, subd. 1. On the other hand, if the rule below be an order, then Zumwalt had his appeal likewise to this court as from an order made after judgment of conviction in the criminal case which affected his substantial rights, B.C.M. 1947, section 94-8103, subd. 3, to be taken by him within sixty days, B. C.M. 1947, section 94-8105. The remedy by appeal given here was both direct and adequate. There is accordingly neither need nor excuse for resort to the extraordinary writ now before us.
But the inquiry, which confronts us, reaches further than any question of the adequacy or inadequacy of Zumwalt’s remedy by appeal. The question really for decision is rightly put by the attorney general: Do we have jurisdiction in this proceeding to review the action of the respondent court and judge?
The answer returned by the attorney general is as conclusive as his argument is sound.
The writ issued by this court in this proceeding, whatever its name, is revisory in its purpose and appellate in its command; as much was conceded at the bar upon the oral argument.
Our power then to take appellate jurisdiction and review the case brought here pursuant to that writ stems from the Constitution of this state, Art. VIII, sections 1, 2, 3 and 15; or we do not have that power at all. Vet the grant there to us of appellate jurisdiction is in every instance circumscribed by the mandate as well as the prohibition of our Constitution, Mont. Const., Art. Ill, section 29, that it be exercised “under such regulations and limitations as may be prescribed by law”, Art. VIII, section 2, or “subject, however, to such limitations and regulations as may be prescribed by law”, Art. VIII, section 3, or “under such regulations as may be prescribed by law”, Art. VIII, section 15.
In State ex rel. Clark and Owens v. District Court, 128 Mont. 526, 278 Pac. (2d) 1000, 1001, and as recently as January 20, 1955, we adhered to the rule in a civil case that the party aggrieved who would appeal must comply with the statutes which limit as well as regulate his right of appeal to this court. Otherwise we said he would not be heard here. The following excerpt from our opinion in that case is peculiarly pertinent to Zumwalt’s appeal now before us: “The right of appeal though guaranteed under the Constitution may be exercised only in obedience to the statutory regulations applicable.”
Neither Zumwalt nor his lawyer obeyed in any particular the statutes of this state by which the legislature has constitutionally defined the limits of his right to appeal to this court for the review he asks of us.
In the Owens case our opinion continued: “Under the written law contained in the Constitution and statutes of Montana the defendants may not ignore and by-pass the statutes governing appeals and, in the absence of the taking of any appeal and by merely petitioning therefor, invest the supreme court with the requisite jurisdiction to review, set aside and annul District Judge Fall’s order refusing to dissolve the attachment so issued out of the district court.”
In the instant case, although the petitioner Zumwalt was present in person at the hearing in the district court, and was there represented by counsel, no appeal was taken or attempted consistent with our Constitution and Code of Criminal Procedure from the court’s order or judgment with which that hearing was closed. This we emphasize; for as we ruled in the Owens case jurisdiction of an appeal can not be vested in this court merely by filing a petition with us. We take jurisdiction in the case of a criminal appeal only in obedience to the applicable statutes which define and limit both our jurisdiction and the defendant’s right to be heard.
It may be that where the legislature has not spelled out the regulations and limitations, which are to bound our jurisdiction, we may act consistent with our own concept of the authority given this court by the Constitution. See State ex rel. Whiteside v. District Court, 24 Mont. 539, 563-564, 63 Pac. 395; State ex rel. Regis v. District Court, 102 Mont. 74, 77, 55 Pac. (2d) 1295. It is undoubtedly true also that if the case is exigent, this court may act to meet the emergency, even though the legislature has prescribed regulations adequate to review the ordinary ease by appeal, i.e., by framing and issuing its own original writ to fit the case. State ex rel. Whiteside v. District Court, supra, 24 Mont, at pages 562, 563, 63 Pac. at pages 339, 340. With these rules there is no quarrel.
Were we shown that Zumwalt’s case was exigent as for example that although innocent of any crime he was nevertheless arbitrarily sentenced and wrongfully imprisoned under that sentence, as is the suggestion made in the dissenting opinion of Mr. Justice Bottomly, and if then the existing remedies by appeal as prescribed by our statutes and as well the usual writs to which, this court customarily turns to prevent an injustice were found in truth inadequate, certainly we would not hesitate consistent with State ex rel. Whiteside v. District Court, supra, to design a further remedial writ out of this court that we might meet the emergency and attain the ends of justice, otherwise denied.
We think, however, we have no such ease here. The suggestion that Zumwalt has committed no crime is in our view wholly erroneous. If we are to inquire into the purpose of the latter part of section 94-2702, R.C.M. 1947, with which the dissenting opinion concerns itself, it is our opinion that this statute has to do only with the evidence which is sufficient to make out a prima facie case of intent to defraud. Again, if we are to consider the record of the proceedings had in the trial court, which is now before us, it is clear that Zumwalt’s intent to defraud was not seriously denied even by him. The drawee, it is true, to whom Zumwalt gave his worthless check did not in the end suffer any financial loss. But this fortunate result of Zumwalt’s scheming was not due to the absence of any intent in him to defraud. His guilt is not diminished because of the vigilance which his intended victim exercised to avoid the loss undoubtedly designed.
Grant that Zumwalt was intoxicated when he committed the crime for which he is now imprisoned. Nonetheless the uncontroverted fact is that his intoxication was the result of his own voluntary act. We may safely assume here and in all truth that this condition was not brought about by others against his will and without his consent. In short, intoxication is not involuntary; and on this record Zumwalt’s offense was neither mitigated nor excused thereby. Compare R.C.M. 1947, section 94-119, subd. 1; State v. Laughlin, 105 Mont. 490, 494, 74 Pac. (2d) 718.
Likewise it can hardly be denied that Zumwalt voluntarily committed the other crimes, for which he has previously served sentences in Wyoming, Oregon, Washington and Nevada. In passing we note at this point not only the right, but the duty also, of the district court, upon Zumwalt’s plea of guilty, to inquire into this record which he alone of his own deliberate choice had made. The judge who imposed sentence upon him would have been remiss in the discharge of his judicial duties, if he had not made the detailed inquiry which disclosed Zumwalt ’s record, and if he had not accordingly given weight to that record in imposing the sentence he did.
It seems that Zumwalt saw service during World War II in the United States Marine Corps as the dissenting opinion points out, and that while in that service he contracted a disease for which he was sent home. Here again however we find no excuse in law or in fact for his criminal conduct. Witness the thousands who served with him overseas and were wounded or diseased in that service, but who today are found among us civilians without moral blemish. Indeed Zumwalt himself puts his case in an entirely different light from that cast by the dissenting opinion; for upon inquiry made of him he conceded his discharge as a United States Marine was because of “bad conduct”, and nothing else.
In short we see no justification for interfering with the sentenee pronounced by the district court. That sentence appears to us to be neither arbitrary nor the result of a miscarriage of justice. It seems severe in the circumstances which the record discloses; but again that sentence is within the limits which the law fixes for the offense here. It is also within the limits of the discretion given the district court. If it is unduly severe, there is provision in our law for relief by application to our state board of pardons. It is to the sympathetic ear of that agency of our state government that Zumwalt and his counsel should address their plea.
For where, as is the case at bar, the legislature has given the aggrieved party a complete and efficient remedy by appeal, a remedy easily invoked, entirely adequate, and well understood by bench and bar, this court has no jurisdiction under our Constitution to override the plain command of the statutes enacted for our guidance and to the very contrary of their un mistakable intent invent an original writ, a true nullius films of the law, that we may undertake a review where we have no right to review at all. We are commanded by our Constitution in common with the executive and legislative branches of our state government to observe the limitations and regulations laid down for us by law. We are forbidden to proceed otherwise.
Here we should remember what Mr. Chief Justice Brantly said for a unanimous court in State ex rel. Whiteside v. District Court, supra, 24 Mont. at page 562, 63 Pac. at page 400:
“* * * As the appellate jurisdiction [of the Supreme Court] was granted for the purpose of revision and correction, and the original jurisdiction under these writs [habeas corpus, mandamus, quo warranto, certiorari, prohibition and injunction] was granted to enable us to render such relief as is appropriate under them, so the supervisory power was granted to meet emergencies to which those other powers and instrumentalities are not commensurate. It is independent of both, and was designed to infringe upon the functions of neither. * * ’ ’ Emphasis supplied. Compare State ex rel Regis v. District Court, supra.
An extended citation of authority is not called for. Compare State ex. rel. Clark and Owens v. District Court, 128 Mont. 526, 278 Pac. (2d) 1000; State v. Bosch, 125 Mont. 566, 588, 589, 242 Pac. (2d) 477; City of Bozeman v. Nelson, 73 Mont. 147, 162, 163, 237 Pac. 528; State ex rel. Treat v. District Court, 124 Mont. 234, 221 Pac. (2d) 436; 24 C.J.S., Criminal Law, section 1628, page 212 and section 1701, page 379; 17 C.J., Criminal Law, section 3262, pages 14, 15, and section 3356, page 93; 4 C.J.S., Appeal and Error, section 18, page 85, and section 425, page 881; 3 C.J., Appeal and Error, section 3, pages 299, 300, and sections 1031, 1032, pages 1039, 1040; 2 Am. Jur., Appeal and Error, section 5, page 845.
The motion to quash and the demurrer interposed to the writ and the petition, respectively, are sustained, the proceeding is dismissed.
MR. JUSTICES ANGSTMAN and ANDERSON, concur.
|
[
53,
4,
34,
20,
-43,
-52,
-12,
2,
-78,
39,
27,
-23,
-25,
2,
-14,
-4,
4,
4,
57,
-15,
6,
-68,
-24,
67,
18,
23,
-23,
-6,
-38,
20,
2,
-12,
15,
-44,
2,
13,
-18,
3,
14,
15,
-2,
-46,
8,
29,
-31,
-5,
-22,
38,
25,
-22,
60,
-43,
24,
16,
35,
-10,
4,
15,
-24,
-15,
24,
6,
17,
8,
8,
-21,
-30,
33,
-3,
-23,
60,
20,
7,
-39,
3,
-44,
-1,
-19,
-23,
7,
-22,
-15,
-1,
14,
26,
-52,
-21,
-39,
-4,
47,
8,
4,
-13,
-22,
30,
-36,
-35,
29,
-1,
2,
-24,
-25,
-30,
15,
-10,
5,
-61,
13,
20,
75,
7,
32,
-9,
11,
-22,
-11,
-55,
-5,
33,
-24,
15,
0,
-35,
34,
7,
7,
-90,
49,
33,
-7,
2,
13,
-5,
-26,
-37,
-12,
-65,
-26,
26,
0,
20,
-16,
54,
8,
11,
7,
42,
12,
-26,
11,
-54,
12,
49,
50,
17,
-17,
33,
-69,
-3,
8,
34,
39,
1,
-13,
20,
20,
-8,
-42,
23,
-72,
-42,
-12,
-17,
66,
13,
36,
-31,
10,
75,
28,
-49,
40,
-4,
3,
19,
-28,
31,
-2,
9,
39,
-5,
25,
25,
2,
36,
-10,
-20,
16,
41,
9,
-47,
-2,
6,
65,
6,
12,
54,
-16,
6,
9,
-40,
-79,
36,
-27,
-6,
-21,
-7,
2,
-3,
32,
-48,
28,
-25,
-5,
-34,
-22,
31,
44,
-7,
-34,
-7,
-13,
-5,
-10,
65,
-22,
14,
12,
-15,
44,
-34,
-21,
49,
11,
50,
34,
-30,
-28,
-21,
-11,
-25,
-39,
3,
1,
-29,
-8,
30,
25,
-41,
-30,
-6,
-5,
26,
-24,
-31,
-42,
10,
-12,
19,
35,
25,
-4,
33,
-6,
-12,
-18,
-22,
2,
55,
-50,
-10,
-52,
30,
65,
26,
1,
-16,
26,
-39,
-44,
13,
-19,
8,
-17,
30,
-43,
15,
-22,
-26,
13,
-56,
22,
-39,
-62,
-7,
-17,
-27,
-30,
3,
43,
2,
32,
23,
30,
-9,
31,
-22,
31,
59,
-10,
-13,
-10,
19,
-37,
-16,
-4,
14,
20,
5,
-1,
37,
2,
-44,
-4,
20,
-38,
26,
-6,
-43,
17,
-3,
-15,
4,
2,
-6,
67,
-2,
45,
-8,
13,
20,
19,
24,
31,
-30,
16,
-8,
-47,
-22,
-32,
10,
16,
-4,
-28,
8,
5,
-50,
-14,
45,
-5,
-10,
-26,
11,
-17,
4,
71,
7,
-11,
-3,
13,
-14,
-5,
0,
19,
-17,
44,
-21,
-14,
36,
12,
-27,
8,
-27,
-23,
22,
-50,
13,
-36,
-31,
25,
3,
-3,
40,
23,
8,
-39,
-22,
47,
-14,
-29,
43,
-1,
44,
16,
16,
-6,
-14,
3,
-33,
-55,
-30,
-20,
65,
-59,
38,
-25,
38,
24,
24,
-14,
38,
4,
-68,
0,
-12,
39,
-41,
3,
-7,
0,
41,
21,
-21,
28,
33,
-16,
-37,
-54,
14,
-18,
52,
33,
-22,
-36,
-4,
49,
35,
3,
-26,
-33,
-17,
6,
-40,
18,
9,
-4,
24,
-43,
6,
35,
88,
-11,
-44,
3,
-17,
53,
-13,
-9,
64,
-71,
4,
-3,
1,
-14,
1,
-24,
3,
-18,
-25,
15,
-23,
20,
-5,
0,
-20,
14,
-38,
-15,
25,
32,
-20,
14,
4,
13,
12,
31,
55,
-36,
-20,
46,
-11,
-1,
14,
49,
-10,
17,
56,
-41,
-7,
21,
31,
33,
32,
6,
-58,
26,
-34,
15,
-7,
10,
-8,
-2,
-25,
-37,
-14,
-1,
-28,
1,
-33,
-46,
-1,
-13,
34,
42,
11,
-32,
-19,
-13,
12,
-7,
6,
-11,
15,
-25,
-16,
15,
8,
20,
5,
-38,
70,
5,
7,
17,
2,
10,
-70,
-29,
2,
5,
12,
-7,
31,
-10,
-28,
-12,
5,
8,
25,
37,
15,
17,
-10,
-5,
-41,
0,
14,
7,
22,
27,
-8,
-3,
-35,
-18,
-5,
-10,
-31,
-10,
-2,
14,
-36,
13,
33,
35,
63,
0,
-6,
7,
-5,
-20,
-7,
1,
-21,
22,
-43,
3,
-20,
-57,
-20,
-10,
-21,
-7,
20,
-18,
18,
-49,
-61,
-34,
-27,
16,
-51,
-22,
-22,
26,
-23,
4,
-6,
26,
-8,
21,
27,
24,
0,
-24,
-19,
2,
-4,
-9,
19,
-23,
23,
22,
13,
0,
-45,
-25,
23,
7,
59,
25,
-5,
30,
-53,
-2,
-18,
41,
16,
-7,
-2,
-11,
39,
-75,
-30,
-59,
44,
-46,
-15,
-33,
11,
-29,
-39,
-19,
38,
12,
61,
-4,
-34,
-1,
-39,
47,
7,
11,
0,
42,
-9,
8,
38,
-50,
-8,
8,
26,
-13,
6,
-15,
-54,
5,
35,
-23,
-8,
-35,
-26,
7,
-46,
-27,
-33,
-44,
25,
-23,
-19,
13,
-24,
-21,
-33,
47,
7,
-20,
14,
12,
2,
-16,
1,
7,
-7,
-4,
-28,
32,
-31,
-16,
-21,
22,
6,
-21,
-55,
12,
-39,
-6,
20,
-34,
19,
-22,
36,
-6,
10,
20,
-39,
24,
-17,
-34,
-26,
0,
11,
49,
-8,
7,
-53,
7,
4,
-41,
0,
0,
18,
-49,
-41,
-18,
14,
8,
-12,
5,
50,
28,
-29,
52,
-56,
-7,
23,
-16,
3,
9,
13,
1,
10,
-22,
-13,
-5,
-10,
19,
-10,
26,
-49,
81,
26,
-10,
4,
1,
15,
-32,
26,
20,
-3,
87,
13,
49,
0,
21,
8,
-34,
17,
13,
-14,
-40,
15,
3,
17,
-28,
34,
-10,
-1,
5,
7,
22,
22,
23,
-7,
32,
-5,
-44,
19,
20,
0,
-3,
8,
-27,
-1,
-10,
-24,
29,
-13,
-15,
-10,
22,
20,
17,
-52,
-11,
-21,
-5,
37,
-52,
20,
42,
-58,
15,
18,
-22,
32,
-23,
10,
-6,
10,
17,
37,
-13,
40,
36,
-34,
7,
61,
-38,
27,
16,
-40,
21,
33,
11,
-7,
-39,
0,
-13,
-5,
2,
-3,
33,
-36,
-44,
26,
8,
-26,
-1,
-13,
-17,
44,
27,
5,
46,
53,
-11,
22,
14,
29,
32,
-10,
-20,
3,
-4,
-12,
-51,
-25,
47,
7,
-5,
-21,
40,
32,
59,
12,
9,
-28,
-8,
-7,
64,
-28,
19,
-28,
-42,
18,
12,
-5,
7,
21,
-19,
6,
-63,
23,
17,
31,
12,
5,
-46,
-54,
-4,
-4,
-3,
-7,
29,
28,
20,
-15,
6,
29,
-10,
-48,
17,
-43,
-34,
-29,
-5,
0,
19,
13,
29,
-24,
-6,
-30,
26,
0,
36,
29,
-21,
-12,
-19,
57,
39,
43,
0,
3,
-3,
20,
22,
6,
-5,
56,
34,
-30,
52,
16,
23,
-16,
-53,
2,
4,
41,
-8,
1,
-33,
18,
-30,
-18,
-13,
-8,
19,
19,
-38,
3,
-26,
-16,
19,
-26,
33,
11,
32,
-54,
-18,
-36,
15
] |
MR. JUSTICE BOTTOMLY-.
The defendant, Ernest McKnight, was charged by information filed on October 28, 1952, in the district court of Treasure County, with the crime of receiving stolen property knowing the same to have been stolen in that he did wilfully, unlawfully, knowingly and feloniously and for his own gain and to prevent the owners from again possessing their own property, buy and receive from one Albert Newman, sixteen yearling heifers and seven cows, the property of Homer A. Scott and Dan Scott, doing business as Scott Land and Livestock Company, and six cowsv the property of Padlock Ranch Company, Inc., all of said animals being branded FS on left ribs, all of which property had been previously stolen, and the said Ernest McKnight then and there knowing the same to have been stolen.
The defendant McKnight was tried in Treasure County in May 1953. The jury was unable to agree upon a verdict and was discharged. In September 1953 the court, on motion of counsel for the state and over objections of defendant, ordered the case transferred for trial to Big Horn County, wherein it was tried in December 1953. The jury returned a verdict of guilty. Prom the judgment of conviction and from the order denying the motion for a new trial the defendant appeals. (The court issued its certificate of probable cause and admitted defendant to bail in the sum of $2,500.)
The facts in this case are somewhat complex as the transcript comprises five volumes of over eleven hundred pages.
Prom the record we summarize the facts as follows:
The defendant Ernest McKnight was engaged in ranching in Gallatin County, where he had some 300 head of cattle. In December of 1950 he sold this ranch, moved to Billings and through realtor Tannehill, bought what was known as the “Carl Frazer Ranch” consisting of some 6,000 acres located in Treasure County, together with the farm machinery and some 195 head of cattle. The machinery was valued at about $12,000 and consisted of a combine, truck, three tractors, etc.
During this time defendant was buying and selling cattle and continued to live in Billings visiting the ranch in Treasure County off and on to help with haying and other ranch matters. He had working on the ranch one Everett Knowlton and one Robert Parks who moved on the ranch and took care of the ranch and cattle. Defendant took his cattle that had been running on the Gallatin ranch to this ranch in Treasure County and bought additional cattle.
In February of 1951 Tannehill, the realtor, took defendant from Billings to look over another ranch that he thought defendant might want to buy; it was the Albert Newman place which was adjacent to defendant’s ranch. Defendant with Tannehill and Newman spent an hour or hour and a half looking over the ranch. It was snowing and blowing. Tannehill stated he observed a small bunch of white-faced cattle, perhaps twenty-five, and that they were probably 100 yards from them.
Tannehill and defendant rode in the front seat and Newman in the rear seat. They discussed the land and the ranch in general. Defendant did not buy the Newman ranch.
Newman testified, inter alia, that in January 1951 he stole twenty-four head of cows from the Padlock and the Scott Land and Livestock Company, that in May 1951 he went back and stole eighteen or nineteen head of heifers; the cows and heifers were branded with the Padlock brand and the Bar-A-Bar or Bar-X-Bar, some with the Two-A-Bar and Padlock brand and other brands; he testified further that he stole forty-four head in all.
On January 17, 1951, Newman made application to the state livestock commission at Helena for a livestock brand for cattle, and used the name of Frank Saage as the applicant and gave the address as General Delivery, Billings, Montana.
The state livestock commission processed this application and issued on February 1, 1951, a certified recorded brand for cattle designating FS on left ribs, to Frank Saage, General Delivery, Billings, Montana.
Newman testified: “Q. What was your purpose for obtaining this brand? A. To brand these cows that I had got from the Padlock Land and Livestock Company. Q. And the heifers also ? A. Yes.”
Newman testified that he branded the cows and heifers which he had stolen within a week or so after receiving the certified recorded brand, branding them FS on left ribs, cropped their ears and barred out or vented and attempted to obliterate the brands then on the cattle.
Newman then made arrangements for and checked in these stolen cattle so treated and branded on the Froze-to-Death Grazing District in April or May 1951, together with other cattle he possessed. McKnight had some of his cattle running in this Froze-to-Death Grazing District this same year.
The Froze-to-Death Grazing District was a Taylor grazing district which was approximately 30 to 40 miles long and 25 to 30' miles wide and is located northerly of the then Albert Newman place and the place then owned by McKnight.
Arthur J. Fenton, witness for defendant, was the range rider for the Froze-to-Death Grazing District and testified, inter alia, that he was the range rider for the district in 1951, his duties, consisted of looking after the cattle that were turned into the district; seeing that the cattle did not get stuck in the mud holes, leading and running the roundup, and controlling the district; that in 1951 Albert Newman turned into the said district the stolen cattle branded FS on left ribs; that the cattle had other vented brands on them; that he as range rider had no suspicion regarding the propriety of the cattle bearing the FS brand being upon the district; that other ranchers had cattle there with several brands on them besides the owner’s brand, some carried as many as four or five brands; that the custom is when you buy cattle to go by the brand on the bill of sale that corresponds to the brand on the animal.
Along in November 1951 the ranchers who had cattle running on this grazing district, or their representatives, along with Newman and McKnight, which made up quite a crew of men on the roundup, gathered together the cattle to cut them out and take them off that range. Newman testified, inter alia, that he and McKnight made a deal in which he sold McKnight 39 head of the stolen cattle; that he told McKnight that these FS cattle were stolen; that there was no person by the name of Frank Saage, that he had applied for the FS brand in the name of Frank Saage; that he and McKnight were alone when the deal was made and in the deal it was figured out that McKnight would pay him about half price for the cattle, and to make the sale look like it was a legitimate deal, machinery was taken in at an agreed price; that the machinery was to be returned to Me-Knight; that the cows were priced at $250 and the heifers at $200 per head; that after the deal was made in Newman’s pasture, Newman drove the cattle from Newman’s pasture down to McKnight’s ranch which was about eight miles; that at that time Newman told McKnight he had to get a bill of sale from Frank Saage;
That Newman thereafter brought to McKnight a bill of sale completely made out for the 19 cows and 20 yearling heifers, the bill of sale being dated November 10, 1951, and signed by the name of Frank Saage as owner of the cattle branded with the recorded brand FS on left ribs. Newman testified that he signed the name Frank Saage to the bill of sale and signed the name R. L. Gunderson as a witness thereto.
All the cattle delivered to McKnight by Newman were branded FS on the left rib. McKnight gave a check in the sum of $3,950 to Newman, payable to Frank Saage, such cheek being thereafter endorsed by the name of Frank Saage, and Sid Newman, a brother of Albert Newman, and Albert Newman received the money from the said check.
Albert Newman then lined up pasture for the cattle he had transferred to McKnight at his uncle Alex Newman’s ranch, which was located some 25 miles distant. Albert Newman also helped drive the cattle to his uncle’s ranch.
On cross-examination Newman testified: That he had pled guilty to stealing the cattle before the first McKnight trial; that the agreed price when he sold the cattle to McKnight was to be at the rate of $200 per head for the heifers and $250 per head for the cows and that was about the going price.
On the sale of the machinery by McKnight to Newman, as the balance of the purchase price of the cattle, Newman testified:
“Q. And it was agreed that the truck should be taken in for $2500, that’s correct isn’t it? A. That was the value of the truck — about what it was worth.
“Q. And you agreed that $800 was the right price for the combine? A. Yes.
“Q. And you agreed that $500 was the right price for the tractor? A. Yes.
“Q. And you had borrowed $700 from McKnight in Billings to make a payment on a car? A. Yes.
“Q. And those, with what you had borrowed, the $700, and the $2500, and the $800, and the $400 for the tractor, and the $3950, made $8450, didn’t it? A. Well it is — the $700 I paid that back to him.
“Q. But with the $700, it would make $8450? A. Well I can’t add that fast.
“Q. Well, I can’t either, I had help here. I will take this piece of chalk. Do you want to look at the board and see if that is correct? A. Yes.
££Q. That seems to be correct, doesn’t it? A. Yes.
£ £ Q. And yon say the machinery part of this was just a phony deal, is that right? A. Yes.
££Q. Then if it was a phony deal, then why did you not give him back the combine? A. There was no way he could take it back.
££Q. Isn’t it a fact that you traded the combine in on a baler? A. My brother did, yes.
££Q. Well how did your brother get the combine? A. I gave it to him.
££Q. Well you gave it to your brother to trade in on a baler? A. Yes.”
As to the tractor taken by Newman from McKnight in part payment for the cattle, Newman testified:
££Q. The tractor at Joliet, after you received that, at the time you sold the cattle to McKnight, yon used the tractor did you not ? A. I never did use it, no.
££Q. Well, it was being used by you and your brother wasn’t it, one or the other? A. I don’t know, I guess maybe he did use it.”
There was a great deal of testimony in regard to the GMC truck that was purported to be taken in on the deal at the value of $2500. Suffice to say that under the disposition we make of this case nothing further need be said in regard to the truck and the different transactions connected therewith.
However, on cross-examination, Albert Newman testified in regard to the bill of sale as follows:
££Q. Didn’t yon testify at the trial in Hysham, as follows: Question, by Mr. Landoe— A. I wasn’t in the trial at Hysham—
“Q. (Quoting from the transcript of testimony given by Albert Newman at the first McKnight trial at Hysham) : £Q. Now I notice this bill of sale that is in evidence for these animals for which you made this deal is dated November 10th, 1951. You didn’t have that bill of sale with you when you came over to McKnight with the cattle did you? A. No. Q. You told Mr. McKnight that you would have to get a bill of sale from Frank Saage, isn’t that right? A. Yes.’ A. That’s Saage?
‘‘Q. From Frank Saage, isn’t that right, answer ‘yes’ — did you so testify ? A. Yes.
“Q. All right, if you testified at the last trial that you told McKnight that you had to get a bill of sale from Saage, when you delivered the cattle, that shows, doesn’t it, that you hadn’t told McKnight, as you said here today, out on the range, that you told him this bill of sale was phony, or you wouldn’t have told on the witness stand that you told him when he delivered the cattle, that you couldn’t give him the bill of sale because you had to get it from Frank Saage, isn’t that right? A. Well, his hired man was there.
“Q. Why did you say at the trial — A. (Interrupting) That’s what I told — that’s what I told him, just what I said.
“Q. You told him that you would have to get the bill of sale and couldn’t give it to him? A. Him and a couple of his hired men.
“Q. You didn’t say anthing about hired men at the other trial at that time? A. I guess I didn’t.
“Q. And after you said ‘Yes’ in response to that question. ‘You told McKnight that you would have to get a bill of sale from Frank Saage, isn’t that right?’ you answered ‘yes,’ and then the next question: ‘Q. That’s what you told him? A. Yes. Q. And when you brought it to him this was the bill of sale you brought, dated November 10th, 1951, is that right, this bill of sale here? A. Let me see it, yes that’s it. Q. And that was brought to Mr. McKnight on the 28th day of November, 1951, wasn’t it, the same day he gave you the cheek ? A. Yes.’ A. But he didn’t give me the check the same day.
“Q. Well, did you falsify there? A. I just made a mistake.
“Q. Made a mistake; you were under oath when you testified at the trial in Hysham, where Mr. McKnight’s liberty— were you not? A. Well there were several deals where people have had to correct their statements.”
Raymond Buckley, sheriff of Treasure County, called as a witness for the defendant, testified, inter alia, that he had lived all his life in said county except when in military service; that he brought Albert Newman back from the penitentiary to Hysham on May 10, 1953, to attend the trial there against Ernest McKnight and that he brought him by auto; that he had known Albert Newman since 1947; that on the way to Hysham, near Livingston, Newman stated to Sheriff Buckley, that “If McKnight would have dropped the mortgage, I would not have involved him in this case. ’ ’
Jack Welch, a witness called as a witness for defendant, testified, inter alia, that he had lived in Hysham all his life except for the time he was in the military service; that during the trial of Ernest McKnight at Hysham he held the official position of undersheriff and Raymond Buckley was sheriff; that he had known Albert Newman since 1948; that he talked to Albert Newman while the case against Ernest McKnight was being tried at Hysham and that on the second or third day of that trial Albert Newman, while in his custody, told him, “I went to see McKnight and tried to get him to cancel the mortgage, if he would have cancelled the mortgage, I wouldn’t have implicated him in this case.”
The main witness for the state was Albert Newman, the confessed thief, who was serving a sentence in the state prison for larceny of three head of cattle, and was brought back to testify in this case. On direct examination of Newman, after he had testified in detail, how he had told McKnight all about his stealing the cattle and that there was no person by the name of Frank Saage, how he had obtained the certificate for the FS brand, etc., the state then asked Albert Newman: “Q. Mr. Newman, did you ever sell or otherwise dispose of any of these cattle that you had purchased or that you had stole from the Scott Land and Livestock Company? A. Yes.” Emphasis supplied.
Thereafter on cross-examination the witness Newman testified relative to the sale to McKnight: “Q. And didn’t you at the place when you were discussing the heifers and the other animals in the pasture say to him that you had sold some of these cattle at that time, and that $250 for the cows and $200 for heifers was a fair price because that’s what you got on the market when you sold these same FS cattle?” Objection was made and overruled. “A. I don’t believe I did because the cattle I sold in Billings brought $300 apiece. Q. Some of these FS cattle ? ’ ’ Objection was made that this was incompetent, irrelevant, immaterial and improper cross-examination. The objection was sustained. The witness was then asked: “Q. Isn’t it a fact, Mr. Newman, that these FS cattle were approved by the inspectors when they were sold?” Objection was made and the court interposed,
“Court: I don’t know what cattle you refer to when you say ‘FS cattle.’
“Mr. Rankin: The cattle that were stolen from the Scott place, and he put the FS Frank Saage so-called brand on them.
“Court: You mean is your question that they were approved, that they were passed by the inspectors at the time of the sale to McKnight ?
“Mr. Rankin: At the time of the sale in the Billings yards, a number of them — in other words, to show that his possession was open and notorious and that even the inspectors didn’t recognize anything wrong about it, and therefore McKnight wouldn’t.
“Mr. Kronmiller: Same objection.
“Court: Objection sustained.”
Continuing the cross-examination of the witness,
“Q. I show you Mr. Newman, defendant’s Exhibit ‘U,’ purporting to be a check to Frank Saage, did you endorse that ? A. Yes.
“Q. Did you sign the name, ‘Frank Saage’? A. Yes.
“Q. And also the name ‘Albert Newman’? A. Yes, I did.
“Q. And what is that? A. That is a cheek for $1,156.56.
“Q. What is that for?”
Objection was made. “Mr. Rankin: I would like to ask another question first, if it please the court. Q. Mr. Newman, was this check in payment for some of the cattle that were stolen from the Scott Land & Livestock Company, the same as the cattle that were sold to McKnight?”
Objection was made and sustained. “Mr. Rankin: The defendant now makes Offer of Proof No. 4. ‘The defendant offers to prove by the witness Albert Newman on the stand, on or about April 15, 1951, he hauled four cows to the Billings Public Stockyards and that the animals were sold on the open market, the cheek in payment was made payable to Frank Saage, was received by the witness and the proceeds retained, and that said four cows were of the 44 head which the witness has heretofore testified that he stole from Scott Land and Livestock Company, a partnership, or from Padlock Ranch Company, Inc. ’ ’ ’
Objection was made and sustained, and offer of proof denied.
“Q. Did you sell the cattle with the F-S brand that you had put on, that you got from — stole from the Scott Land & Livestock Company, and from the same 44 head to the Farmers Union Livestock Association ? ’ ’
To which objection was made and sustained.
“Q. Mr. Newman, I show you defendant’s Proposed Exhibit marked ‘V’ and ask you whether or not you signed on the back of this check ‘Frank Saage’ ‘Albert Newman’? A. Yes.
“Q. And what is it? A. It is a check for $275.00.
“Q. And from whom?” Objection was made and sustained. “Mr. Rankin: We offer Defendant’s Exhibit ‘V’ in evidence.”
Objection was made and sustained and the offer denied.
Mr. Rankin then made defendant’s offer of proof No. 5 “Mr. Rankin: The defendant offers to prove by the witness Albert Newman on the stand that on or about August 13, 1951, he hauled one cow to the Billings Public Stockyards and that the animal was sold on the market, being the animal referred to in Defendant’s Proposed Exhibit T, that a cheek in payment for the animal was received by the witness; that the check was payable to Frank Saage, that the check was cashed by the witness and the proceeds retained; that said cow was one of the animals included among the 44 head which the witness has heretofore testified that he stole from Scott Land and Livestock Company, a partnership, or from Padlock Ranch Company, Inc.; said animal having either the Padlock Inc. brand or one of the Scott Land and Livestock Company brands, similar to that on the cattle later delivered to the defendant McKnight.” Objection was made.
“Court: All right, objection sustained, and offer denied.”
Defendant specifies error in the court’s refusal to admit evidence as to sales of the stolen cattle by Albert Newman to others than defendant McKnight; in its denial of the foregoing offers of proof; in its striking certain testimony of the state’s witness Burns given on cross-examination and in sustaining the objection to defendant’s offer of proof No. 7.
We are of the opinion that the court erred to the prejudice of the defendant in so limiting the cross-examination of the state’s witness Newman. The state opened the door wide in asking this witness on direct examination if the witness had ever sold or otherwise disposed of any of these cattle that witness had stolen from the Scott Land & Livestock Company, and the witness answered, “Yes.”
The defense was then entitled to examine as to any and all of the 44 head so stolen.
As stated in 58 Am. Jur., Witnesses, sec 632, page 352, ‘ ‘ Generally speaking, however, when the direct examination opens a general subject, the cross-examination may go into any phase, and may not be restricted to mere parts which constitute a unity, or to the specific facts developed by the direct examination. Cross-examination should always be allowed relative to the details of an event or transaction a portion only of which has been testified to on direct examination. As has been stated, ci’oss-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut, or make clearer the facts testified to in chief by the witness on cross-examination. ”
This court has said: “The right of cross-examination, as has been often said, is a valuable and substantial right, and the courts should incline to extend, rather than to restrict it. Cross-examination. is the most potent weapon known to the law for separating falsehood from truth, hearsay from actual knowledge, things imaginary from things real, opinion from fact, and inference from recollection, and for testing the intelligence, fairness, memory, truthfulness, accuracy, honesty, and power of observation of the witness. It has become a truism in the legal profession that- — -‘The testimony of a witness is not stronger that it is made by his cross-examination.’ ” State v. Ritz, 65 Mont. 180, 187, 211 Pac. 298, 300.
The sale by Albert Newman of any of the 44 head which he had stolen from the Scott interest besides’ those he had attempted to sell to McKnight, the price he obtained therefor, and the fact that the cattle so sold had been inspected for brands and passed by the state livestock commission’s expert brand inspectors were relevant in showing that defendant McKnight was no more culpable or blameworthy- in not recognizing and noting the vented brands than the state’s professional brand inspectors.
In State v. Howard, 30 Mont. 518, 527, 77 Pac. 50, 54, this court said: ‘ ‘ The right of cross-examination extends not only to all facts stated by the witness in his original examination, but to all other facts connected with them, whether directly or indirectly, which tend to enlighten the jury upon the question in controversy, and this right should not be restricted unduly. ’ ’ Emphasis supplied. Compare Sherrick v. State, 157 Neb. 623, 61 N. W. (2d) 358, 365.
In 70 C. J., Witnesses, sec. 792, page 619, it is stated: “* * * as a general rule, in the interests of truth and justice, a wide latitude should be permitted, in the cross-examination of an adverse witness; or as otherwise stated, a full cross-examination should be permitted.”
On the right of cross-examination, in Paulk v. State, 107 Tex. Cr. R. 174, 296 S. W. 588, 592, that court said:
“In the right of cross-examination is embraced the right £to have the assistance of counsel for his defense’ guaranteed by the Sixth Amendment to the Constitution of the United States and by the Bill of Rights, art. 1, see. 10, of the Constitution of Texas. Of it, it is said:
“ ‘The importance of the right of full cross-examination can scarcely be overestimated. * * * It is the clear right of the cross-examining party to elicit suppressed facts, which weaken or qualify the case of the cross-examining party.’ 1 Thompson on Trials, (2d) Ed., page 420, sec. 406.”
In Thompson on Trials, cited above, it is further stated: “ ‘A witness may be cross-examined as to his examination in chief in all its bearings, and as to whatever goes to explain or modify what he has stated in his examination in chief,’ and prejudice will be presumed when this right is denied.” See Wharton’s Criminal Evidence, 11th Ed., Witnesses, see. 1291, pages 2161, 2162, and sec. 1294, pages 2165, 2166. Compare Cossack v. United States, 9 Cir., 63 F. (2d) 511, 516. In Armstrong v. State, 131 Tex. Cr. R. 140, 97 S. W. (2d) 192, 193, that court said: ‘‘We think the court fell into error in rejecting said proof, as it tended to show that appellant received the automobile in good faith, believing that it was the property of Johnson.”
The fact that Newman, prior to the time that it is claimed he sold the cattle to McKnight, had sold five head of the same branded stolen cattle through the public market at Billings, where they had been inspected by the state inspectors of brands, and had informed McKnight of the same, would tend to support defendant’s claim that his purchase of the cattle was in good faith and that he believed said cattle to be the property of Frank Saage in whose name the recorded brand had been issued. This excluded testimony would show circumstances favorable to the defendant and he was entitled to have it considered by the jury. It was evidence of an independent fact, the door to which was opened by the state. See Harwell v. State, 22 Tex. App. 251, 2 S. W. 606, 607, cited in Armstrong v. State, supra.
Defendant predicated error on the court’s refusal to give defendant’s instructions Nos. 11,12 and 13, on the assumption that under the facts and circumstances the witness Albert New man was an accomplice of Ernest McKnight. The defendant’s instructions which were offered and refused are as follows:
No. 11. “You are instructed that a conviction cannot be had on the testimony of an accomplice unless he is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. ’ ’
No. 12 “Yon are instructed that it is a question of fact for the jury to determine from the evidence and from the law as given you by the court whether or not in this particular case the witness Albert Newman was or was not an accomplice within the meaning of the law.
“An accomplice is one who knowingly and voluntarily, with common intent with the principal offender, unites in the commission of a crime. One may become an accomplice by being present and joining in the criminal act, by aiding and abetting, with criminal intent, another in its commission or in being present by advising and encouraging its commission, but knowledge and voluntary action are essential in order to impute guilt. ’ ’
No. 13 “You are instructed that the testimony of an accomplice ought to be viewed with distrust. ’ ’
The state contends that Albert Newman is not an accomplice because he was the thief and that the thief cannot be an accomplice of the receiver under the rule announced in our Montana decisions, and that, “It is an elementary principle of law that the principal in a theft, or the person who actually steals the property, cannot be convicted of the crime of receiving, concealing, or aiding in the concealment of the property stolen.” Annotations, 136 A. L. It. 1088.
The jurisdictions are evenly divided on the question as to whether the thief is an accomplice of the receiver. Under our statute larceny and the knowingly receiving of stolen personal property are each a crime. R. C. M. 1947, sections 94-2704 and 94-2721.
Our statutes do not define an accomplice. However, R. C. M. 1947, sec. 94-7220, provides: “A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other ■evidence, which in itself, and without the aid of the testimony •of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof.”
It is true as the state contends that this court’s decisions have set forth the general rule that the theft and the receiving are two separate and distinct crimes; that the thief cannot receive from himself and therefore the thief is not and cannot be an accomplice of the receiver. We think this rule is too broad without limiting the rule to cases where the thief did not participate with the receiver in other subsequent acts in connection with the commission of the crime of receiving stolen property. Those cases which have passed upon this question and laid down the rule generally, that the thief is not an accomplice of the receiver within the rule requiring corroboration of the evidence of an accomplice, rest upon the assumption mainly that because larceny and receiving are separate offenses the thief cannot be charged with receiving. Such cases (none of which contained the facts and circumstances presented in this case) have overlooked our substantive statute, R. C. M. 1947, sec. 94-204, which does define principals: “All persons concerned in the commission of a crime, whether it he a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and ahet in its commission, or, not being present, have advised and encouraged its commission * * * are principals in any crime so committed.” Emphasis supplied.
Can it be argued that witness Albert Newman was not concerned in the commission of this crime? Can it be said that Albert Newman, the thief, did not aid in its commission? Can it be said said that Albert Newman was not concerned in, did not abet, encourage, instigate and countenance this crime? To ask the question is to answer in the affirmative. The thief, Al bert Newman, wbo took a check payable to a fictitious person, in whose name the brand was recorded, who forged the bill of sale, who made arrangements for the pasture for the stolen cattle, and who helped drive these stolen cattle to an area some 25 miles distant more than three weeks after he had placed the cattle with McKnight, and who had converted the machinery to his own use, and who, according to his own testimony, had entered into a conspiracy with defendant McKnight a year after he had delivered the cattle to prevent the true owner of the cattle from recovering the value from him of the stolen cattle by executing a fictitious mortgage on his cattle — all these acts of the thief Albert Newman were for his own gain and to prevent any inquiry being made and so to prevent the owner from again possessing his own property. To say that Newman participated in all these transactions, knowing all the time that the cattle were stolen, and then to say that he was not a principal in the receiving, for his own gain, only because Newman was the thief, is fallacious reasoning. This would be putting a premium on being a thief.
In State v. Huffman, 89 Mont. 194, 201, 296 Pac. 789, 791, it is said, “The crime of receiving stolen property, defined in section 11388 [Rev. Codes 1921, now R. C. M. 1947, sec. 94-2721, supra], is a distinct statutory crime, and one who, after the crime of larceny is completed, being present, aids and abets others in receiving the stolen property with knowledge that it was stolen, and with the intent, either for his own gain or to prevent the owner from again possessing the property, is a principal and properly prosecuted as such. ’ ’
Justice Pound in People v. Kupperschmidt, 237 N. Y. 463, 143 N. E. 256, 257, 32 A. L. R. 447, sets forth their penal law, section 2, which defines “principal” and their section 399, relative to corroboration of an accomplice’s testimony, both of said sections having substantially the same import as our sections 94-204 and 94-7220, supra.
The Justice states: “In perhaps a majority of the jurisdictions which have passed upon the question, the rule is that the thief is not an accomplice of the receiver within the rule requiring corroboration of the evidence of an accomplice. [Citing •cases.] These decisions rest on the assumption that because larceny and receiving are separate offenses the thief cannot be indicted for receiving. They disregard the New York definition •of principal.”
Quoting also from that case, “It is said that one cannot receive goods which he has himself stolen. Literally, but not in a legal sense, this may be true; but he is nonetheless ‘concerned in the commission of the crime’ of receiving, and, therefore, a principal. Penal Law, sec. 2. We are dealing with the legislative definition of guilty participation, not with the common meaning of words. * * * In this ease the court said in charging the jury that corroboration was not required because the crimes were different. Non sequitur. The charge was erroneous.”
We are of the opinion that under our section 94-204, supra, the facts and circumstances in this case demonstrate beyond argument that the thief Albert Newman was a principal and therefore an accomplice. 76 C. J. S., Receiving Stolen Goods, .sec. 14, page 20, states, * * however, one who steals personal property and sells it to another may, under a proper state of facts, be considered an accomplice of the buyer of the stolen property.”
It may be said, that, if in addition to having stolen the property, where the thief by his subsequent acts as in this case becomes an accomplice to the further crime of receiving stolen property, the two separate crimes do not become merged nor would the conviction for the theft save the thief from conviction as a principal or accomplice to the subsequent substantive crime of receiving the stolen personal property. See State v. Callaway, Wyo., 267 Pac. (2d) 970, 976. In State v. Rechmitz, 20 Mont. 488, 494, 52 Pac. 264, 266, this court said: “It is important to not allow the two offenses of larceny and of receiving stolen goods to be merged. ’ ’
In this case without the testimony of the confessed thief, Albert Newman, the conviction cannot be upheld. In 111 A. L. R. MOO, under the heading “View that corroboration is required— thief testifying against receiver,” it is stated: “Courts in an apparently increasing number of jurisdictions take the view that in a prosecution for receiving stolen property the thief is an accomplice of the defendant, so as to necessitate corroboration of the thief’s testimony. * * *”
In 45 Am. Jur., sec. 17, pages 402, 403, it is stated: “ * * * the-courts in an apparently increasing number of jurisdictions reach a contrary result from the application of the general tests, sometimes by reason of statutes broadening the definition of principals * * * in crime, and take the view that one who steals the-property is an accomplice of one who receives it from him with knowledge that it is stolen.” In the recent and well reasoned cow stealing case of State v. Callaway, supra [267 Pac. (2d) 975], it is said: “* * * the thief did not himself receive the property but, in fact, parted with it. The criminal intent necessary to make one an accessory [accomplice] to the crime here charged lies not in a criminal intent that the accessory [accomplice] knowingly receive the stolen property, but in the criminal intent to give aid and to abet another in that other person’s commission of that substantive crime.” See 2 Wharton’s Criminal Law, 12th Ed., sec. 1234, page 1551.
In State v. Vines, 49 Wyo. 212, 234, 237, 238, 54 Pac. (2d) 826, 833, 834, that court said: “We have no statute, and there-is no rule of the common law, that forbids a conviction on the uncorroborated testimony of an accomplice, but by a rule of practice it is the duty of the court to advise the jury not to convict upon such testimony. [Citing case.] The reason for the rule is the supposed promise or hope of conditional immunity. This supposition is clearly justified in the ease at bar.” Compare: State v. Sweet, Ohio App., 36 N. E. (2d) 13, 15, 16; Grady v. Commonwealth, 237 Ky. 156, 35 S. W. (2d) 12, 13; People v. Cummings, 293 N. Y. 841, 59 N. E. (2d) 437.
In the case of Johnson v. State, 144 Tex. Cr. 496, 164 S. W. (2d) 702, 703, the court said: “It is sufficient to say that, to show the constituent elements of the offense charged, that is, ■the theft of the cattle and the subsequent receipt thereof by •the appellant, with knowledge that they had been so acquired, the State depended primarily, upon the testimony of B. K. 'Collins, the thief who stole the cattle, and by and through whom the theft of the cattle, as also the delivery thereof to the appellant, was shown. The witness was an accomplice — not only by reason of his own admissions, but also because of the fact that he had been charged with, tried for, and convicted of, the theft of the cattle, and, at the time of the giving of his testimony, was a convict in the state penitentiary.”
In State v. Coroles, 74 Utah 94, 277 Pac. 203, 205, it was stated: “We see no escape from the conclusion that, where one ¡steals property, takes it, and delivers it to another who receives the property, knowing it to have been stolen, the thief is within the definition of principal and hence an ‘accomplice.’ He is concerned in a commission of the crime charged against the defendant. He aided and abetted in its commission. The evidence of such a witness comes from a tainted source. He is particeps criminis. Under the provision of our statute (section 8992, supra [Comp. Laws Utah 1917]), his testimony must be corroborated to sustain a conviction. In the instant case, therefore, proper instructions should have been given to the jury ¡defining accomplices, and stating the statutory rule with respect to corroboration.” Emphasis supplied.
In Stephenson v. United States, 9 Cir., 1954, 211 F. (2d) 702, 704, 705, the court states:
“The authorities are not agreed as to whether the thief is an ¡accomplice of one knowingly receiving stolen property. * * * An increasing number of jurisdictions follow the so-called minority view that the thief is an accomplice of one to whom he sells stolen property. People v. Kupperschmidt, 1924, 237 N. Y. 463, 143 N. E. 256, 32 A. L. R. 447; State v. Coroles, 1929, 74 Utah 94, 277 Pac. 203. The minority view is based either on a statute broadening the definition of principals or the proposition that one may be both a principal and an accomplice by the doing of separate and. distinct acts; the thief by the separate act of sale becomes an accomplice of the one who purchases from him, knowing the property to have been stolen.
“The logic and reasoning contained in the cases in jurisdictions following the minority rule has considerable appeal in view of the similar broad definition of ‘principals’ contained in sec. 2, Title 18, U. S. Code [‘ (a) Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.’], but under the circumstances of this case we find it unnecessary to rely thereon. * * *
“Under the circumstances of this case, the failure of the Court to give the accomplice testimony instruction is such plain error as to impel us to notice it under the provisions of Rule 52(b), Federal Rules of Criminal Procedure, Title 18, U. S. C. A. From a reading of the whole record, it affirmatively appears that such failure was highly prejudicial to appellant. Bihn v. United States, 1946, 328 U. S. 633, 66 S. Ct. 1172, 90 L. Ed. 1485. The Government’s case rested almost entirely upon the testimony of accomplice Tester, the thief. The jury should have had the benefit of the instruction in order to enable them to properly evaluate that testimony. We cannot say ‘with fair assurance after pondering all that happened’ that the judgment in this case would not have been different had the instruction been given. Kotteakos v. United States, 1946, 328 U. S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557.”
In the Stephenson Case the court also remarked, “Tester’s testimony came from a tainted source and was the character of evidence Congress considered unreliable and sought to protect against by sec. 58-5-1, A. C. B. A. 1949.”
We hold that, under section 94-204, supra, the facts and circumstances in this case, the witness Albert Newman, the convicted thief, was a principal in the receiving of stolen property, in that he was concerned in the commission of the crime, that he aided and abetted the same; that the refusal of the court to give proper instructions defining accomplices and the proper instructions with respect to corroboration, was highly prejudicial to defendant Ernest McKnight, and that the defendant did not have, under the law, a fair trial.
Other questions have been raised but we do not deem it necessary to go into the merits thereof since it does not appear likely they will arise upon another trial.
For the reasons stated, the judgment of conviction is reversed, with directions to grant defendant and appellant Ernest McKnight a new trial.
MR. JUSTICES ANGSTMAN and ANDERSON, concur.
MR. CHIEF JUSTICE ADAIR, dissents.
MR. JUSTICE DAVIS not hearing oral arguments took no part.
|
[
78,
38,
0,
56,
-9,
-67,
-8,
14,
-23,
7,
10,
-40,
3,
33,
-43,
30,
-5,
-61,
17,
-40,
12,
-59,
-52,
7,
8,
-9,
-15,
7,
-21,
-3,
-25,
56,
-23,
-43,
37,
31,
24,
13,
-53,
-7,
-35,
-13,
38,
-17,
20,
55,
-4,
-14,
-10,
-6,
-4,
-40,
35,
22,
-37,
3,
-18,
0,
-22,
15,
65,
0,
45,
-59,
16,
20,
-17,
-20,
-30,
-9,
53,
-29,
-15,
18,
23,
-52,
9,
-24,
34,
14,
25,
12,
43,
60,
-22,
-50,
-9,
-44,
-19,
-33,
-49,
11,
28,
48,
33,
-77,
3,
-6,
-21,
4,
-56,
-29,
-39,
-2,
45,
-20,
-24,
0,
-10,
50,
-61,
-16,
48,
-14,
19,
-11,
-28,
36,
-10,
0,
-1,
3,
19,
-21,
-28,
-18,
-34,
60,
33,
33,
5,
-31,
-40,
-3,
-8,
-26,
7,
-7,
-24,
-14,
14,
-29,
-24,
-21,
-33,
-4,
-37,
-47,
7,
88,
-32,
49,
-5,
12,
26,
-84,
-48,
35,
-64,
-30,
-10,
-49,
19,
22,
20,
30,
-1,
-48,
-8,
16,
-47,
15,
0,
47,
38,
-26,
13,
16,
0,
45,
18,
-14,
-30,
-4,
-8,
32,
31,
-3,
-53,
25,
-7,
20,
38,
-1,
-12,
-71,
9,
-61,
-35,
33,
19,
20,
13,
32,
30,
10,
29,
8,
57,
6,
-11,
-72,
36,
8,
22,
-12,
-20,
-21,
30,
-43,
-4,
22,
-1,
-4,
68,
-6,
49,
71,
8,
-5,
14,
16,
82,
-49,
-3,
-13,
-7,
-37,
-41,
17,
-14,
-71,
-8,
-60,
32,
-23,
-26,
-9,
-34,
56,
-45,
-48,
-69,
29,
-12,
59,
24,
25,
0,
6,
15,
-56,
77,
81,
12,
2,
-73,
10,
-38,
-8,
27,
-5,
0,
9,
-44,
0,
-12,
-11,
24,
-8,
98,
-37,
-9,
-51,
-7,
-17,
23,
51,
-31,
-79,
-62,
24,
17,
-39,
42,
21,
5,
-57,
16,
-18,
-57,
46,
-24,
-8,
11,
22,
-15,
-62,
-31,
0,
16,
-20,
46,
-8,
-54,
1,
34,
25,
35,
-9,
-5,
-19,
10,
29,
32,
10,
37,
-28,
3,
75,
46,
-49,
-23,
-12,
-20,
-42,
20,
-17,
51,
-19,
13,
-53,
43,
29,
-63,
24,
2,
36,
-64,
-4,
1,
-3,
-4,
-19,
34,
-54,
-6,
0,
-13,
2,
-5,
-35,
2,
16,
-14,
22,
-72,
-37,
27,
20,
37,
-10,
60,
48,
51,
46,
-32,
-1,
-35,
5,
-19,
-33,
-56,
44,
28,
-19,
4,
10,
-34,
24,
-49,
33,
-5,
24,
59,
-32,
-49,
-36,
-21,
-41,
-43,
41,
-19,
-10,
-40,
-27,
11,
-32,
33,
-35,
12,
-55,
20,
13,
10,
-22,
-9,
-28,
-1,
16,
42,
62,
32,
-76,
4,
25,
14,
4,
-32,
11,
47,
30,
8,
14,
45,
26,
-32,
65,
11,
-8,
54,
-27,
33,
25,
15,
-15,
17,
42,
46,
4,
1,
26,
-51,
-28,
-52,
64,
43,
7,
-37,
4,
48,
0,
14,
-65,
8,
7,
11,
-17,
-29,
63,
65,
14,
23,
-36,
-21,
3,
18,
11,
37,
-36,
-9,
-19,
7,
1,
-1,
-27,
-29,
7,
62,
56,
7,
63,
-10,
39,
7,
-13,
14,
35,
92,
12,
-17,
-16,
58,
19,
24,
44,
26,
-84,
-45,
46,
20,
30,
3,
-3,
33,
20,
46,
32,
-8,
33,
22,
-12,
-6,
48,
9,
-1,
18,
20,
-14,
-62,
-62,
-41,
-24,
30,
39,
4,
32,
46,
-7,
-29,
32,
-52,
88,
-6,
-38,
-4,
67,
-55,
-14,
-45,
-5,
14,
48,
-15,
-32,
-28,
-20,
34,
-48,
8,
-4,
-3,
11,
-27,
-25,
15,
-44,
-19,
-36,
24,
33,
-38,
32,
1,
25,
11,
-54,
12,
33,
79,
35,
39,
6,
22,
-27,
30,
22,
5,
14,
-11,
-8,
-2,
-23,
21,
-21,
-5,
-36,
-42,
-39,
-18,
15,
-10,
-10,
40,
65,
-25,
7,
4,
-31,
36,
2,
61,
61,
22,
-3,
-31,
21,
-75,
5,
-8,
39,
-58,
10,
13,
-6,
-54,
-18,
-9,
8,
-3,
-8,
-27,
38,
46,
-18,
-20,
-8,
25,
-43,
-1,
8,
-31,
-47,
4,
15,
12,
-32,
-58,
22,
-58,
-91,
0,
-22,
48,
-18,
-34,
-33,
-7,
24,
-65,
85,
49,
-53,
-7,
6,
-53,
-33,
-6,
45,
38,
24,
-66,
-43,
-10,
-14,
36,
14,
-14,
82,
-36,
32,
-9,
60,
37,
74,
15,
-13,
-4,
-31,
-8,
-57,
10,
33,
29,
30,
-28,
7,
10,
-28,
11,
23,
-6,
-31,
12,
28,
0,
17,
-83,
-41,
0,
-25,
17,
10,
-7,
-35,
-23,
3,
26,
-22,
-15,
-22,
-13,
12,
-45,
36,
-8,
24,
15,
23,
-23,
75,
36,
13,
-10,
-28,
78,
-72,
16,
-51,
-34,
2,
-90,
-6,
-19,
-29,
40,
33,
-5,
-28,
-4,
33,
71,
59,
-3,
-20,
-43,
31,
16,
-33,
-31,
24,
9,
-54,
-36,
-40,
26,
-22,
-63,
16,
-25,
1,
29,
-50,
23,
56,
14,
43,
-4,
35,
-2,
-22,
-7,
2,
-31,
52,
5,
-18,
32,
26,
8,
51,
-13,
64,
-46,
-85,
25,
-5,
0,
-57,
-26,
-4,
18,
9,
11,
31,
-79,
39,
26,
-76,
83,
-52,
-21,
12,
-1,
34,
-5,
21,
-8,
-21,
5,
18,
-5,
45,
-35,
-6,
35,
-15,
0,
0,
3,
-14,
-6,
-43,
34,
7,
-17,
-24,
-25,
-3,
29,
-1,
-2,
6,
-46,
19,
-29,
20,
-13,
3,
10,
3,
-22,
2,
-1,
-12,
-44,
-3,
-1,
-24,
1,
17,
-73,
-31,
-2,
-47,
-16,
47,
2,
-86,
35,
-21,
25,
-6,
21,
40,
-23,
46,
-20,
23,
-8,
-20,
5,
-36,
66,
5,
-10,
-27,
-18,
43,
-11,
-59,
-21,
-70,
15,
16,
12,
31,
-19,
2,
-10,
36,
1,
-37,
10,
-19,
-30,
2,
-25,
59,
-5,
-28,
-36,
-5,
10,
-87,
-36,
-58,
-7,
-55,
18,
-6,
-13,
-43,
103,
27,
-2,
6,
-26,
37,
68,
-52,
21,
-8,
-7,
-14,
33,
9,
-7,
47,
-11,
-4,
28,
30,
13,
27,
28,
-7,
-17,
-13,
-15,
72,
85,
-42,
33,
85,
12,
-21,
-87,
73,
-17,
-13,
36,
-10,
-51,
48,
-33,
-10,
33,
0,
14,
4,
-30,
-55,
6,
119,
-29,
-23,
94,
77,
-22,
-19,
-14,
-71,
7,
21,
-21,
-18,
-42,
-32,
80,
63,
6,
-17,
19,
3,
3,
31,
0,
-54,
-72,
-44,
-43,
-2,
-14,
8,
20,
53,
-17,
31,
-29,
-41,
-50,
-3,
-23,
16,
-25,
49,
47,
24,
49,
-59,
32,
-23,
90
] |
MR. JUSTICE DAVIS:
The appellant Hale was convicted in the district court for Missoula County under R.C.M. 1947, section 94-1805, of the crime commonly known as obtaining money or property by false pretenses. From the final judgment sentencing him to imprisonment for three years at hard labor and from the order denying him a new trial he appeals.
In the opinion written upon the former appeal in this case, State v. Hale, 126 Mont. 326, 249 Pac. (2d) 495, will be found a statement of the facts, not to be repeated here. We add only that upon the reversal and remand for a new trial the defendant asked, and by the trial court was granted, leave to withdraw his plea of “not guilty” that he might demur to the information. One ground of that demurrer was that the facts stated in the information do not constitute a public offense. See R.C.M. 1947, section 94-6703, subd. 4. After argument this demurrer was overruled. The defendant again pleaded “not guilty”; he was again tried and again convicted. Error is now specified by him that this ruling upon his demurrer was wrong.
Initially it is suggested that this contention as well as the demurrer interposed and overruled upon which that contention is made came too late. The argument is that because the accused did not demur to this information when arraigned before the first trial, he may not thus tardily raise the point upon the second trial that the information is bad, although granted by this court a new trial without restriction or limitation. We see no merit in this suggestion.
The rule is that when a first conviction is set aside, as is the case here, the defendant is not precluded upon a remand for a new trial “from attacking the indictment or information, and, on a second trial, he has the same right to challenge its sufficiency and regularity as he had before the first trial.” 42 C.J.S., Indictments and Informations, section 312, page 1344; 23 C.J.S., Criminal Law, section 1426, pages 1123, 1124; People v. Nitzberg, 289 N.Y. 523, 47 N.E. (2d) 37, 145 A.L.R. 482; State v. Butler, 72 Md. 98, 18 A. 1105. By R.C.M. 1947, section 94-7602, the “granting of a new trial places the parties in the same position as if no trial had been had.” Under a similar statute, N.Y. Code of Crim. Proc. section 544, the New York Court of Appeals has held precisely in point here that where an erroneous judgment of conviction is reversed on appeal -and there is a remand for a new trial the case stands as though the abortive judgment had never been entered, and accordingly that then the accused may challenge both the sufficiency and the regularity of the charge against him, even though he had not done so at all when the case was first tried. People v. Nitzberg, supra, 289 N.Y. at pages 530, 531, 47 N. E. (2d) 37. We agree with this statement of the law.
The first question then for decision in this court on this appeal is whether a public offense is charged in this information. We think not; and we reach this conclusion without finding it necessary to resolve the constitutional issue raised by the defendant’s counsel.
We summarize this information in these words, viz.,
(1) That the defendant “feloniously, lmowlingly and designedly, and with intent to defraud Missoula County” obtained from it $600’ with interest by presenting to the Missoula County Airport Board a “false and fraudulent claim” in the amount of $600, and in the name of Montana Engineering Company by one “H. B. Waite, Sec’y” for “designs, plans and specifications” covering a described project at the Missoula Airport.
(2) That “pursuant to approval by the Missoula County Airport Board a warrant was drawn upon the County Treasurer of Missoula County,” who “believing the representations upon the said warrant to be true, paid a Missoula County Warrant” made in favor of Montana Engineering Co., or order, in the amount of $600, with interest for “Designs, plans and specifications” etc.
(3) That the defendant deposited this warrant in a Missoula bank, and “received therefor credit for the sum of $600.79, lawful money”, etc.
Verbatim copies of the claim and warrant are set out in the information, and, as we construe its context, contain the various representations or pretenses by which it is said the county was defrauded.
But there is in this information no specification of any particular representation relied upon which was made by either the claim or warrant, nor of any particular in which any representation so made was false, unless it be that the adjectives “false” and “fraudulent”, which are employed to describe the claim, are to be taken as a sufficient averment of this essential fact. No such descriptive words are used to characterize the warrant. "We shall, nevertheless, assume for our purposes on this appeal that if this information sufficiently charges the falsity of any material representation made by the claim it is good.
We conclude that it does not, however, and that therefore the information is fatally defective.
More than once heretofore this court has said in civil cases that the use of words of malign import such as “false”, “fraudulent”, “fraud”, etc. is a waste of words, unless “accompanied by a statement of fact upon which the charges of wrongdoing rest”. Brandt v. McIntosh, 47 Mont. 70, 72, 130 Pac. 413; Mining Securities Co. v. Wall, 99 Mont. 596, 601, 45 Pac. (2d) 302; State ex rel. State Highway Commission v. District Court, 107 Mont. 126, 131, 132, 81 Pac. (2d) 347. In no case which we have found has this court held to the contrary. The authorities elsewhere agree. Owens v. Green, 400 Ill. 380, 392, 81 N.E. (2d) 149; In re Trigg, 46 N.M. 96, 105, 121 Pac. (2d) 152; Barni v. Kutner, 6 Terry 550, 45 Del. 550, 562, 76 A. (2d) 801; Betz v. Tower Savings Bank, 185 Wash. 314, 322, 55 Pac. (2d) 338; Giordano v. City of Ashbury Park, 3 Cir., 91 F. (2d) 455, 457; Venegoni v. Giudicy, Mo. App., St. Louis, 238 S.W. (2d) 17, 19; Buck v. Hurd, 281 App. Div. 115, 118 N.Y.S. (2d) 305, 307.
The rule in criminal prosecutions is no less rigorous. It has been directly applied to informations and indictments designed to charge the. crime of obtaining money -or property by false pretenses as well as similar crimes involving fraud and false tokens.
True, in Montana there is no case directly in point. But in this jurisdiction it has long been elementary that an essential element of the crime here is the falsity of the representations made. State v. Bratton, 56 Mont. 563, 566, 186 Pac. 327; State v. Brantingham, 66 Mont. 1, 16, 212 Pac. 499; State v. Woolsey, 80 Mont. 141, 155, 259 Pac. 826. And elsewhere it has been repeatedly held that the particulars in which the representations relied upon are false must appear from facts directly and positively set out, that to characterize a representation as “false” or “fraudulent” does not suffice to state the offense.
To this effect are the California decisions under sections of the California Penal Code, which at the time were substantially identical with the present Montana statutes. See People v. Carpenter, 6 Cal. App. 231, 91 Pac. 809, citing directly to the point where the charge involved the presentation of a false claim against a county, People v. Mahony, 145 Cal. 104, 106, 78 Pac. 354.
Elsewhere the decided eases accord. Harris v. State, 125 Ohio St. 257, 260, 181 N.E. 104; Du Brul v. State, 80 Ohio St. 52, 87 N.E. 837; State v. Van Gunten, 84 Ohio St. 177, 182, 183, 95 N.E. 662; Burke v. Knox, 59 Utah 596, 605, 206 Pac. 711; Wills v. State, 24 Tex. App. 400, 6 S.W. 316; Sasse v. State, 113 Tex. Crim. 513, 22 S.W. (2d) 941; State v. Palmer, 50 Kan. 318, 322, 323, 32 Pac. 29; Commonwealth v. Sanders, 98 Ky. 12, 32 S.W. 129; Commonwealth v. Wilson, 190 Ky. 813, 814, 815, 229 S.W. 60; Burnley v. Commonwealth, 274 Ky. 18, 117 S.W. (2d) 1008; State v. Bradley, 144 La. 459, 80 So. 657; Wimer v. State. 120 Tex. Cr. R. 576, 583 to 587, 48 S.W. (2d) 296; Moore v. State, 81 Tex. Cr. R. 606, 197 S.W. 728; People v. Winner, 80 Hun 130, 30 N.Y.S. 54; State v. Ruwwe, Mo., 242 S.W. 936; 35 C.J.S., False Pretenses, section 42c(l), page 690; 25 C.J., False Pretenses, section 60, pages 626, 627, 628.
Read in the light of these citations both in this court and from other jurisdictions the challenged information at bar charges only that Hale presented for allowance to the Missoula County Airport Board the described claim, which was approved, and upon which a warrant was drawn against the county, and that thereafter this warrant upon which the county treasurer relied was paid Hale in the sum of $600.79. This is not enough, The demurrer should have been sustained for failure to set out the facts upon which the charge of falsity rests.
In opposing this conclusion the attorney general argues that the information is in the language of the controlling statute, and is therefore good. We recognize the general' rule to be as stated. But to that rule there is an exception which is as well recognized as the rule itself, viz., that where the statute uses general or generic words in defining the offense the information or indictment bottomed upon that statute must specify the particular facts which constitute the offense. 42 C.J. S., Indictments and Informations, section 139g, pages 1042, 1043; 31 C.J., Indictments and Informations, section 264, pages 712, 713.
This exception has been recognized by this court. See State v. Wolf, 56 Mont. 493, 185 Pac. 556. This exception 'has been recognized in California as the rule where the charge is of fraud or false pretenses under statutes like ours. People v. Mahony, supra, 145 Cal. at page 106, et seq., 78 Pac. 354; People v. Butler, 35 Cal. App. 357, 361, 362, 169 Pac. 918; People v. Walther, 27 Cal. App. (2d) 583, 587, 81 Pac. (2d) 452; etc. This exception has met universal recognition in such cases in other courts as the decisions and authorities cited above indicate.
Moreover, we are persuaded further that our conclusion here is correct when we note the uniform practice heretofore in like cases brought to this court for review. We have examined the informations in State v. Hanks, 116 Mont. 399, 153 Pac. (2d) 220; State v. Foot, 100 Mont. 33, 48 Pac. (2d) 1113; State v. Woolsey, supra; State v. Brantingham, supra; and State v. Bratton, supra. In each the information expressly alleged the facts which made the stated pretense false. In none of these cases did the state rely upon the averment alone that the defendant made a “false” or “fraudulent” representation.
In the federal courts the practice is the same. Compare McCoy v. United States, 9 Cir., 169 F. (2d) 776, 778, 779.
It is a crime under Title 18, section 287, U.S. Code, for one to present a claim against the United States “knowing such claim to be false, fictitious, or fraudulent,” etc. The Federal Buies of Criminal Procedure (Rev. Ed. 1955), 18 U.S.C.A., where is found the ultimate in simplified criminal practice, prescribe this form for an indictment charging a violation of this statute:
‘ ‘ On or about the................day of............, 19. — , in the............, District of............, John Doe presented to the War Department of the United States for payment a claim against the Government of the United States for having delivered to the Government 100,000 lineal feet of No. 1 white pine lumber, and he then knew the claim to be fraudulent in that he had not delivered the lumber to the Government.” (Emphasis supplied). Fed. Rules Crim. Proc., Appendix of Forms, Form 10, 18 U.S.C.A.
It seems then that nothing less states an offense under section 94-1805, supra, of our Codes; and in the circumstances of this case we have found no authority which sustains an information or indictment which alleges less.
In this court State v. Phillips, 36 Mont. 112, 92 Pae. 299, 300, is the authority nearest in point with the state’s argument; and although this decision is neither cited nor noticed in the briefs or the oral argument at bar, we have given it consideration. There the pretense charged was that “the defendant was the brother of Charles Phillips”; the falsity of that pretense was averred by the recital: “ ‘Whereas said David Phillips [defendant] then knew said pretenses were false’ ”. This traverse was held sufficient, the information good. But there is no such traverse in the information now before us.
And, if there were, this citation would not help the state on this appeal; for it is plainly to be distinguished on its facts and by the authorities. It is one thing to allege a representation made that A is B’s brother; to deny by saying that representation is false. Here the denial that A is B’s brother is clear, certain and factual, and is so understood by anyone who reads the accusation. This may be a sufficient pleading.
It is another thing altogether, however, to allege that the defendant Hale presented a “false and fraudulent claim” without a specification of the facts, which show that at least some material representation made by that claim is not true. Without such a specification there is no traverse at all of any representation which the claim makes. The denial is wholly by way of conclusion, and is so understood by anyone who reads the charge. This is a fatally defective statement of the' offense. The authorities make this distinction.
In Wimer v. State, supra, the false representations alleged were rooted in eight promissory notes and a trust agreement by which these notes were assigned to create a fund for the payment and retirement of certain described investment certificates. In much greater detail indeed than in the information before us the charge in the Wimer Case attempted to traverse the truth of the representations made by these documents.
The Texas Court, however, said, 120 Tex. Cr. R., 584, 48 S.W. (2d) 299:
“It is the general rule that an averment that the pretenses were false is sufficient negation of the truth of the pretenses, unless the pretense is of such nature that the negation of the truth thereof requires allegations showing affirmatively in what the falsehood consisted in order that the accused may be apprised of the evidence he must meet. 25 Corpus Juris, page 627;, # ^ ^ J J
It was there held consistent with the authorities cited, 120 Tex. Cr. R. 586, 48 S.W. (2d) 301:
“The facts constituting the offense must be set forth so that the conclusions of law may be arrived at from the facts so stated..
Accordingly the indictment was quashed. We think the same rule is clearly to be applied to the information here against the defendant Hale.
We think the state’s position is unsound that in this case the prosecution may stand upon the language of the statute, which as reflected in this charge contains nothing but conclusions without any supporting facts to show the falsity of the specific pretenses relied upon for a conviction.
The state also argues that the real objection taken by Hale to the sufficiency of this information falls under subdivision 2 of section 94-6703, supra, to the point that the charge is uncertain, compare People v. McPheeley, 92 Cal. App. (2d) 589, 591, 592, 207 Pac. (2d) 651; People v. Burness, 53 Cal. App. (2d) 214, 217, 218, 127 Pac. (2d) 623; People v. McKim, 84 Cal. App. 663, 665, 258 Pac. 457, and does not therefore properly come under subdivision 4 that the facts stated do not constitute a public offense. This objection advanced at this time, if such were the case, must necessarily be considered waived under R.C.M. 1947, section 94-6711, because it is not specified as a ground of the demurrer before us.
But this argument also has no merit. The demurrer pointedly challenges the information for want of facts in the language of subdivision 4 of the statute; and we have so considered and ruled the question raised. Conversely there is no question here of a sufficient charge artlessly drawn; and we have neither considered nor answered any such question, which could properly be presented only under subdivision 2.
There is some suggestion in the argument of the defendant’s counsel that this information is designed to charge the offense denounced by R.C.M. 1947, section 94-3908, as well as the crime of obtaining money by false pretenses under section 94-1805, supra. If so, what we have said above is equally pertinent. The information as it is framed does not state an offense under either statute for the reasons we have given; the demurrer is good upon any construction of the charge.
But we do not agree with the further implication of counsel’s argument that an information which sufficiently states an offense under section 94-1805, supra, is necessarily duplicitous, because it must charge as well the crime of presenting a false claim against the county. An information which adequately avers the elements of the one offense does not charge the other as a separate crime. Upon this record we do not decide whether the latter may be included in the former. It would be idle to speculate upon the sweep of an accusation not before us. We hold only that an information may be drawn consistent with section 94-1805, which is not vulnerable to the objection that it is bad for duplicity.
For another reason wholly apart from the point made that the information does not state a public offense there must be a reversal in this case. The trial court erred in refusing to give in its entirety the defendant’s offered Instruction No. 26. This offer originally read: “You are instructed that if you believe from all of the evidence that the defendant performed the services for the county in supervising planning, preparing plans and specifications for the rebuilding of the airport runway and that the $600.00 claimed was compensation for such services actually rendered and that the defendant acted in good faith in performing such services and presenting said claim, then the state has failed to prove the criminal intent necessary to establish the offense charged, and you should find the defendant not guilty.” The court deleted the words “and you should find the defendant not guilty.”
As thus modified the instruction was then given. But as modified the instruction given was incomplete. The jury were not told what they must do with the case, should they find the facts as the instruction put them. In short by the deletion made the court effectively drew the teeth of this instruction and made it wholly pointless as a charge upon the sufficiency of the defense, if sustained.
Moreover, no other instruction given covered the point, or fairly put the defense before the jury. The accused was entitled to have the jury told that if the facts found were in ac cordance with this instruction he must be acquitted. Compare State v. Quinlan, 84 Mont. 364, 372, 275 Pac. 750; State v. McCracken, 93 Mont. 269, 275, 276, 18 Pac. (2d) 302; Little v. United States, 10 Cir., 73 F. (2d) 861, 867.
Since the case must then be remanded for another trial, other questions presented by the record must also be reviewed.
In the opinion in State v. Hale, 126 Mont. 326, 249 Pac. (2d) 495, written on the first appeal and again in the dissenting opinion of the Chief Justice on this appeal it is said that R.C.M. 1947, section 25-201, prohibits the county surveyor from obtaining anything as compensation for official services rendered other than his salary. We think this statute has no such effect. We think that this construction reads something into section 25-201 that the legislature never intended. That statute does not prohibit the collection of fees by county officers. All. that section does is provide for the disposal of fees which have been collected by them for official services rendered. This much clearly appears from its title reading: “Disposal of fees collected by county officers.” Likewise this is what the body of the section deals with. It provides: “No county officer shall receive for his own use, any fees, penalties or emoluments of any kind, except the salary as provided by law, for any official service rendered by him, but all fees, penalties and emoluments of every kind must be collected by him for the sole use of the county and must be accounted for and paid to the county treasurer as provided by section 25-203 of this code and shall be credited to the general fund of the county.” There is nothing in this statute which makes Hale’s claim here false merely because he presented it for the work he did.
Further in State v. Hale, 126 Mont. 326, 249 Pac. (2d) 495, again on the first appeal, it was also erroneously determined that the planning, construction and maintenance of the Missoula County Airport were county functions done for county purposes. R-.C.M. 1947, section 1-822, which was relied on as supporting that view, in fact states that these activities are “county functions and purposes as well as public and governmental.” (Emphasis supplied.)
That the business of the Missoula County Airport is not strictly and exclusively a county function is evidenced by the fact that its affairs are conducted not by the county commissioners, but by a separate board called the Airport Board. The $600 warrant in question here was not paid out of county funds, but was drawn on the “Airport Commission Fund”. This fund may be raised by taxation, li.C.M. 1947, section 1-816, or may result from federal or state aid, li.C.M. 1947, section 1-818.
We are not to be understood as being of the opinion that the defendant was justified in retaining the $600, paid him by the claim here presented, merely because these moneys were not strictly speaking county funds. What we do say is that the defendant had the right to be tried under proper instructions applicable to his case consistent with rules of law which fit his case. Specifically we are not aware of any statute that makes it the duty of the county surveyor to do the work of the airport board without compensation over and above his salary. Nor do we know of any statute which forbade the filing of the claim here by Hale. Here the record shows that it would have involved an expenditure of $2,500 to obtain someone else to do the work for which defendant charged $600. Had defendant put in a claim in his own name for $600, our attention has been directed to no statute which would prohibit its payment. As county surveyor he was not called up to render these services because of his office.
Nor do we think we are precluded on this appeal from changing our view, as we do, of the law applicable to Hale’s case as previously announced on the first appeal. The doctrine that the law there declared became the law of the case does not reach the third trial of this case when we are convinced of error in our previous opinion. In examining the record now before us we are bound by the legal principles there promulgated, for the reason that the trial judge should not be put in error because he followed the law there declared. Cases supporting this view are cited in State v. Gunn, 89 Mont. 453, 466, 300 Pac. 212.
But the rule that the law of the case is applicable to future proceedings had in the same case does not prevent the court of last resort from correcting a manifest error in its former opinion where to do so promotes justice without substantial injury to anyone. As some writers put it, the evils of adherence to the rule are sometimes greater than those of a departure from it. The cases are collected in the annotations at 1 A.L.R. 1270, 8 A.L.R. 1033, and 67 A.L.R. 1390. And see the case of Johnson v. Cadillac Motor Car Co., 2 Cir., 261 F. 878, 882-887, 8 A.L.R. 1023. Here we need not depart from the rule; but on the other hand we shall not extend that rule beyond the reason for it.
When, as here, we remand the case for a third trial we are not and should not be precluded from asserting the principles of law applicable which are to be applied prospectively upon the third trial, even though to do so necessitates overruling in part the opinion first promulgated; for we are convinced now that that opinion is wrong as we have pointed out above. Barton v. Thompson, 56 Iowa 571, 572, 9 N.W. 899, 41 Am. Rep. 119; Pennington v. Gillaspie, 66 W.Va. 643, 650, 652, 66 S.E. 1009; and see Wiggin v. Marsh Lumber Co., 79 W.Va. 651, 656, 657, 91 S.E. 532. In other words, the law of the case for the third trial is announced now on this the second appeal so far as our present opinion conflicts with what was said on the first appeal.
The judgment of the district court is accordingly reversed with directions to allow the defendant’s demurrer to the information, and thereafter to proceed under R.C.M. 1947, section 94-6707, and, if an amended information be filed, to a new trial as may be consistent herewith.
|
[
14,
-1,
25,
-11,
-32,
-25,
-8,
-62,
-39,
21,
33,
2,
-4,
-7,
7,
-7,
-37,
-9,
7,
-49,
26,
2,
13,
9,
29,
-31,
-18,
57,
-10,
-1,
66,
46,
2,
4,
33,
40,
30,
-16,
36,
47,
-16,
34,
-46,
-14,
-27,
-5,
-50,
14,
48,
-41,
44,
-13,
24,
19,
-6,
-16,
-11,
59,
1,
38,
-35,
2,
-3,
-25,
-17,
-37,
30,
-52,
-8,
-54,
-37,
-4,
9,
3,
-16,
-37,
-44,
17,
14,
-12,
-6,
0,
24,
-42,
37,
26,
94,
-75,
13,
7,
39,
-36,
16,
24,
45,
-15,
26,
-12,
3,
-11,
-10,
2,
-21,
16,
26,
38,
-44,
0,
-23,
37,
35,
17,
26,
-23,
-19,
-38,
-18,
1,
0,
-13,
5,
-47,
22,
51,
6,
-1,
13,
20,
-11,
-47,
-32,
10,
-10,
34,
-36,
-50,
-35,
-7,
35,
49,
4,
-35,
-20,
-2,
34,
48,
25,
49,
0,
21,
-14,
-19,
6,
36,
-11,
-56,
-19,
-44,
-64,
16,
34,
1,
-20,
13,
45,
42,
-21,
-46,
33,
-76,
-47,
-13,
-3,
48,
-12,
1,
-36,
-24,
23,
0,
-35,
35,
46,
1,
-20,
-13,
-13,
-10,
0,
15,
21,
59,
0,
36,
51,
7,
-48,
24,
53,
-36,
-25,
-57,
11,
41,
12,
33,
54,
-29,
41,
-38,
-46,
-52,
-1,
-22,
-51,
1,
15,
1,
14,
57,
-52,
0,
-1,
30,
-21,
40,
25,
40,
43,
39,
-17,
26,
-41,
-31,
-19,
-52,
33,
5,
48,
52,
-31,
-52,
22,
-53,
34,
31,
5,
7,
-61,
-16,
31,
-30,
42,
-1,
-72,
-22,
48,
-47,
-37,
-56,
-20,
54,
11,
19,
-60,
-34,
0,
36,
-21,
26,
10,
-37,
41,
2,
23,
-4,
-40,
11,
35,
39,
-40,
51,
47,
58,
-24,
9,
-75,
86,
52,
-17,
15,
-14,
-49,
-6,
8,
1,
20,
7,
-67,
30,
20,
-35,
17,
3,
-2,
-10,
38,
20,
-37,
27,
51,
30,
26,
-18,
12,
24,
2,
-25,
60,
-8,
3,
-24,
17,
-39,
19,
-11,
1,
-36,
-46,
-19,
22,
-25,
-10,
-6,
-26,
-2,
10,
-67,
26,
6,
-26,
-47,
0,
-59,
32,
0,
-37,
3,
-34,
13,
30,
49,
7,
-16,
31,
-24,
-19,
-75,
28,
-81,
18,
13,
3,
-32,
-10,
-2,
-15,
10,
52,
8,
9,
-61,
-48,
8,
-29,
19,
9,
-27,
-27,
-24,
-36,
-17,
10,
-17,
14,
40,
30,
-15,
0,
30,
-4,
3,
-42,
-34,
8,
4,
13,
-24,
39,
-70,
13,
30,
70,
1,
34,
-20,
12,
19,
-10,
9,
2,
36,
33,
54,
-8,
-16,
-40,
-65,
-25,
31,
33,
-39,
-2,
-2,
43,
43,
-46,
67,
0,
-45,
18,
-29,
-31,
-74,
-70,
24,
-15,
-47,
54,
-1,
-38,
60,
-15,
-22,
4,
0,
-20,
-42,
43,
10,
-40,
6,
-26,
-58,
-14,
42,
24,
28,
5,
-13,
64,
22,
-16,
11,
36,
22,
-8,
-51,
-3,
53,
44,
4,
-8,
-35,
14,
43,
-16,
-6,
9,
0,
-1,
16,
-13,
-32,
7,
4,
-19,
-38,
12,
-4,
-43,
-6,
-8,
31,
-25,
13,
-9,
-35,
11,
47,
-51,
-41,
-15,
-23,
38,
40,
48,
-88,
44,
14,
27,
41,
4,
-20,
3,
-25,
65,
-51,
7,
39,
58,
-15,
35,
-14,
-9,
2,
-27,
-9,
12,
11,
19,
-40,
-32,
-85,
58,
-16,
-12,
12,
1,
12,
0,
59,
0,
49,
6,
26,
64,
-4,
28,
-2,
-29,
54,
23,
19,
-33,
19,
8,
-15,
46,
-11,
8,
-24,
7,
-3,
22,
50,
-24,
-28,
-35,
32,
50,
-15,
-59,
12,
-21,
24,
48,
5,
4,
3,
36,
38,
-19,
-29,
-33,
42,
6,
55,
37,
-29,
-19,
-15,
31,
-16,
-22,
52,
-45,
-41,
-27,
51,
9,
-5,
-54,
6,
24,
-41,
28,
44,
48,
13,
45,
-22,
-24,
-12,
4,
51,
-18,
-29,
-62,
49,
-20,
-31,
16,
-3,
54,
-33,
-48,
-9,
-88,
-23,
-20,
-13,
0,
20,
-53,
-55,
32,
13,
21,
-23,
22,
61,
17,
-35,
13,
-6,
70,
9,
38,
-9,
-55,
-3,
10,
-61,
15,
-1,
-10,
3,
27,
-9,
-25,
-13,
-32,
-4,
-18,
-7,
-24,
-45,
28,
-37,
15,
-101,
-21,
45,
26,
-11,
-16,
-45,
51,
-73,
-1,
-20,
-44,
-27,
-12,
-21,
-10,
-25,
13,
59,
-20,
-42,
-34,
34,
69,
13,
50,
-39,
-4,
23,
-21,
12,
11,
3,
-26,
-15,
-44,
-43,
-12,
-48,
-9,
11,
-25,
-40,
-35,
-14,
11,
17,
0,
-15,
-12,
-34,
37,
60,
53,
-1,
37,
39,
6,
-38,
34,
-6,
-44,
73,
2,
11,
-12,
5,
25,
52,
0,
-53,
8,
-23,
-32,
35,
16,
-41,
46,
-44,
64,
8,
-6,
49,
-33,
54,
19,
-44,
-83,
-56,
35,
73,
7,
-30,
-50,
-30,
-39,
-64,
26,
35,
-58,
-27,
30,
65,
8,
-5,
-3,
54,
36,
40,
67,
41,
-39,
25,
7,
-9,
-14,
-7,
25,
-1,
-36,
0,
-4,
69,
-10,
-7,
-20,
-17,
-17,
8,
20,
33,
6,
17,
-36,
-13,
42,
31,
-3,
0,
22,
2,
-6,
64,
13,
-74,
1,
-59,
28,
-11,
-12,
0,
-2,
-48,
-11,
25,
7,
-26,
-9,
-10,
12,
-15,
25,
42,
22,
-33,
15,
39,
0,
8,
23,
-2,
-29,
14,
-32,
36,
28,
5,
4,
13,
-10,
50,
-31,
-59,
-56,
-6,
61,
6,
36,
8,
28,
-25,
2,
23,
4,
-50,
29,
28,
25,
-47,
9,
20,
-1,
52,
2,
50,
-10,
18,
19,
-4,
-5,
7,
18,
38,
1,
-6,
-18,
-70,
-37,
-47,
8,
30,
-3,
-31,
-15,
-10,
17,
-8,
-9,
-13,
42,
1,
-41,
46,
59,
-30,
-58,
-15,
-38,
48,
-52,
-30,
-1,
8,
46,
-11,
-12,
-11,
36,
-27,
-1,
56,
13,
48,
-15,
-3,
6,
0,
-81,
14,
-27,
35,
-48,
-11,
57,
44,
38,
-45,
-6,
15,
-55,
9,
-17,
-9,
-70,
-33,
-48,
-40,
-6,
-21,
-57,
16,
30,
41,
-54,
14,
11,
10,
48,
-50,
-25,
51,
-7,
-31,
13,
28,
-31,
-10,
22,
-18,
0,
-78,
-34,
-9,
25,
12,
-11,
-57,
-48,
-2,
30,
18,
29,
-13,
-12,
-24,
23,
40,
15,
-69,
50,
-24,
-9,
64,
-35,
2,
-15,
-1,
28,
-4,
-28,
26,
47,
-25,
2,
-27,
25,
37,
11,
-29,
4,
-28,
-19,
-3,
-65,
35,
-18,
22,
11,
16,
-12,
55,
-14,
29
] |
MR. JUSTICE ANDERSON:
The decedent, William P. Bargler, died on November 18, 1951, at Elliston, Montana. The record discloses that he left no known relatives either in the State of Montana or elsewhere. Prior to 1949, and while living at Elliston, Montana, the decedent subsisted on old age assistance benefits and lived in a cabin in that town. In 1949 the decedent’s brother, Charles Bargler, died in Leadville, Colorado. After the death of Charles Bargler, William Bargler went to Leadville, Colorado, and there he remained for approximately 14 months. As a result of the death of Charles Bargler, William Bargler came into a rather substantial estate, it having been left to him by Charles.
On January 19, 1950, William Bargler made and executed his last will and testament in Leadville, Colorado. In this will many bequests were made, some to charitable institutions in Colorado and some to charitable institutions in Montana and some to residents of Colorado and some to residents of Montana, and the residuary estate was to be divided between a resident of North Dakota and a resident of Montana.
The last will and testament of William Bargler, on its face, indicated that he was a resident of Leadville, County of Lake, State of Colorado.
In 1950 William Bargler left Leadville, Colorado, and returned to Elliston, Montana, where he resided until his death. The property belonging to the decedent at the time of his death was both in Montana and in Colorado.
Patrick L. Cummings, believing that William Bargler was a resident of Colorado at the time of death, filed in the county court of Lake County, Colorado, the decedent’s last will and testament and petitioned the court for letters testamentary. Thereafter Patrick L. Cummings qualified, and letters testamentary were granted to him on the 29th day of January 1952.
On March 30, 1952, Patrick Cummings filed a petition for probate of the last will and testament of William Bargler in the district court of the third judicial district of the State of Montana, in and for the County of Powell. A copy of the will and the probate thereof in the Colorado court, duly authenticated, were filed with said petition.
Patrick L. Cummings, on the advice of his Montana lawyers, in his petition filed in Montana, alleged that the decedent was a resident of and domiciled in Powell County, Montana, at the time of his death, and that after due study of the facts he was wrong, in having thought in the first place, that the decedent was in fact a resident of Colorado. However, no effort, so far as this record shows, was made in the Colorado court to vacate the letters testamentary there granted to the petitioner and the proceedings in Montana are in all respects ancillary proceedings, without notice, based on authenticated copies of the Colorado court proceedings.
The State of Montana filed its written objection to the application for ancillary probate of decedent’s will as a foreign will and to the appointment of Patrick L. Cummings as executor thereof.
Counsel for petitioner contend that the attorney general is not a party aggrieved by the proceeding and thus has not sufficient interest to complain. Although merit may be given to this argument in certain eases, here however the court below was completely without jurisdiction to proceed by way of ancillary administration in Montana. Without jurisdiction, the orders by the court which would satisfy the state’s interest and claims would be void and of no moment. Thus the State of Montana was indeed a very interested party. See In re Smith’s Estate (Vance v. Groff), 126 Mont. 558, 255 Pac. (2d) 687, 691.
Quoting from 3 Beale, Conflict of Laws, section 470.1, page 1467: “Although the courts of another state have found the domicil of the deceased to be there, this does not conclude another court from investigating the question anew, since the fact of domicil is a jurisdictional fact * * *”
In the instant cause there was no reason to inquire into the domicil of the deceased, in that petitioner admits that the decedent was a resident of Montana at the time of his death.
The order admitting the foreign will to probate without notice as provided by law in primary probate proceedings and appointing Patrick L. Cummings as executor thereof in Montana was dated October 6, 1952. On that date, certain opinions found in the California courts, based upon an identical statute as that in Montana, sustained the position of the learned judge below.
However this court on April 7, 1953, rendered its decision in the case of In re Smith’s Estate, supra. The very question and the statutes here involved were squarely decided in that case. The court said unequivocally that: “Under the provisions of subdivision 1 of section 91-701, supra [E.C.M. 1947], it is the declared public policy of this jurisdiction that the first, the primary or the original probate of a will should be made in the county in which the decedent was a resident and domiciled at the time of his death.”
The petitioner pleaded in his petition that William Bargler was a resident of Montana upon his application for letters in this state. That being a jurisdictional fact the court below was without authority to issue what amounted to ancillary letters to petitioner and if petitioner was entitled to letters testamentary at all he would have been entitled to primary letters testamentary under the record here.
Tbe judgment of tbe district court is reversed witb directions to proceed in tbe estate in sncb manner as may not be inconsistent witb tbe rulings herein announced.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES ANGSTMAN, DAVIS and BOTTOMLY, concur.
|
[
16,
16,
24,
-19,
53,
-57,
40,
48,
19,
-24,
-27,
-51,
-3,
3,
-70,
-12,
-31,
20,
14,
13,
-63,
-1,
-53,
-1,
99,
10,
4,
27,
-72,
-7,
67,
7,
-40,
-61,
66,
71,
21,
-92,
-3,
50,
-18,
-2,
74,
41,
48,
47,
-22,
0,
-43,
-21,
21,
-33,
62,
26,
23,
-19,
33,
9,
-26,
21,
-27,
-70,
13,
-9,
25,
53,
51,
51,
-1,
-1,
13,
-35,
0,
38,
7,
-75,
43,
-27,
-50,
23,
-1,
-40,
-2,
-35,
-39,
-72,
-91,
-29,
38,
36,
28,
-6,
50,
-14,
-7,
-21,
-31,
25,
3,
15,
31,
-61,
23,
-32,
-33,
-3,
-35,
44,
40,
-1,
-52,
7,
-25,
46,
-11,
35,
-67,
-69,
2,
34,
-40,
-16,
24,
-80,
-8,
-8,
-64,
40,
37,
46,
-1,
10,
-31,
-56,
-44,
32,
-77,
-72,
-4,
-52,
16,
-49,
21,
-91,
15,
21,
-25,
12,
34,
15,
-35,
17,
0,
25,
53,
-4,
47,
-11,
25,
18,
36,
-62,
71,
-15,
15,
29,
-19,
-1,
10,
-23,
-63,
5,
-17,
30,
50,
67,
29,
-37,
-9,
-9,
16,
-11,
38,
-45,
-40,
-30,
1,
38,
-2,
65,
0,
-22,
88,
18,
-38,
-13,
-2,
-48,
12,
-23,
-2,
-55,
61,
26,
-57,
13,
3,
40,
54,
-51,
57,
-110,
-21,
24,
-13,
25,
-25,
-54,
20,
-12,
23,
24,
9,
-4,
27,
-8,
-19,
-65,
-40,
-99,
4,
-22,
-25,
-8,
-12,
7,
-26,
-79,
-63,
0,
30,
-75,
21,
-21,
39,
58,
-44,
4,
-67,
2,
-45,
-20,
-19,
63,
71,
-11,
-8,
7,
-43,
-43,
-40,
-5,
32,
19,
42,
13,
-18,
-77,
8,
39,
74,
-14,
53,
-87,
-23,
5,
66,
-24,
-14,
-72,
37,
-19,
53,
-2,
6,
-24,
-85,
25,
-79,
-46,
-37,
-9,
62,
-102,
5,
35,
64,
-31,
7,
-71,
-9,
51,
0,
11,
-20,
-1,
15,
-21,
10,
-35,
-15,
15,
15,
44,
59,
20,
-38,
13,
-6,
63,
31,
-55,
33,
13,
-13,
51,
-57,
81,
59,
93,
-3,
9,
-15,
16,
16,
-61,
1,
37,
-23,
10,
-38,
-9,
-1,
-14,
-4,
-2,
44,
47,
-92,
-20,
-13,
-10,
-10,
-5,
-23,
-9,
-30,
11,
24,
0,
40,
2,
-15,
18,
-29,
-71,
-18,
1,
5,
-54,
27,
41,
-1,
-8,
62,
72,
-12,
14,
-1,
-8,
-100,
20,
8,
26,
25,
0,
18,
6,
2,
30,
6,
-4,
-43,
6,
4,
24,
-1,
-13,
-51,
-12,
-43,
69,
-36,
-13,
16,
6,
-23,
-6,
-1,
14,
25,
6,
48,
-7,
74,
-28,
-9,
-17,
-43,
81,
-13,
59,
12,
20,
0,
-39,
-17,
55,
-51,
-50,
56,
33,
15,
56,
23,
-28,
-61,
21,
39,
-13,
-11,
-24,
89,
21,
19,
6,
-40,
0,
21,
-63,
-4,
67,
-65,
22,
-35,
15,
47,
26,
-55,
16,
-5,
28,
15,
-15,
37,
22,
15,
-11,
-22,
75,
32,
-36,
-74,
-46,
-23,
18,
25,
-7,
38,
-27,
41,
-51,
-63,
32,
28,
-72,
6,
-16,
-4,
-9,
29,
-15,
-35,
-9,
-7,
-24,
-83,
-14,
61,
43,
12,
-12,
10,
48,
-15,
-20,
33,
-12,
-17,
39,
23,
-38,
4,
0,
-20,
-7,
99,
21,
-14,
18,
46,
12,
-33,
37,
-26,
-49,
53,
20,
17,
2,
-98,
-58,
-33,
-4,
-66,
-47,
8,
33,
-50,
-14,
38,
-18,
75,
29,
-72,
31,
3,
-28,
-31,
-40,
-14,
-7,
19,
-24,
17,
14,
28,
27,
-23,
-2,
36,
24,
3,
-33,
11,
-5,
-25,
50,
-19,
18,
3,
-23,
47,
-28,
-1,
17,
-2,
8,
5,
16,
-4,
-3,
60,
11,
-10,
6,
26,
-33,
51,
60,
-60,
67,
-37,
35,
-45,
-10,
-10,
-23,
0,
-20,
-44,
16,
32,
38,
-20,
18,
-3,
-19,
4,
-41,
0,
22,
-14,
11,
-9,
14,
38,
-40,
28,
-21,
-22,
-25,
30,
-18,
35,
15,
-38,
31,
-14,
52,
16,
-47,
-31,
42,
-30,
-10,
34,
-2,
-48,
3,
-19,
-38,
10,
-10,
-69,
1,
60,
-33,
58,
-33,
-13,
-18,
-57,
85,
-14,
-1,
6,
2,
33,
31,
-17,
-4,
6,
-10,
-4,
63,
-5,
-4,
50,
33,
71,
-14,
-95,
-65,
-55,
7,
-18,
-5,
88,
4,
30,
0,
51,
35,
38,
-20,
15,
19,
-22,
94,
32,
-48,
-18,
67,
-31,
29,
-48,
-49,
30,
5,
18,
-1,
-50,
29,
-25,
-28,
1,
-49,
-36,
-39,
-99,
26,
8,
-71,
-61,
-2,
37,
-13,
29,
-15,
-39,
-22,
10,
-29,
0,
-20,
29,
-24,
-27,
-25,
61,
-12,
29,
30,
39,
-17,
-10,
-28,
-24,
-35,
-10,
-93,
-33,
54,
11,
-9,
-5,
-40,
29,
-60,
50,
71,
5,
23,
-4,
0,
14,
85,
11,
-31,
63,
88,
9,
2,
-34,
-35,
-38,
5,
-34,
-8,
20,
37,
-65,
-29,
-16,
3,
7,
7,
11,
29,
40,
9,
3,
32,
54,
36,
15,
35,
44,
-15,
-3,
21,
50,
33,
-40,
-57,
-2,
-11,
15,
41,
32,
13,
36,
50,
47,
-38,
34,
42,
-91,
77,
22,
7,
13,
-27,
-38,
-31,
24,
4,
-1,
13,
1,
-60,
50,
-30,
45,
34,
-45,
-20,
-47,
-22,
-6,
1,
-26,
-42,
49,
-54,
0,
84,
6,
-25,
-5,
13,
26,
-37,
-7,
22,
54,
-26,
14,
24,
18,
-1,
-6,
43,
-71,
-12,
-18,
-40,
10,
61,
-9,
-36,
21,
-1,
-27,
16,
69,
37,
-1,
37,
-35,
-9,
14,
7,
0,
12,
26,
4,
13,
-56,
-60,
99,
-50,
34,
17,
71,
47,
-55,
10,
26,
-46,
-70,
-60,
-9,
-35,
-1,
-64,
49,
-21,
-1,
-14,
1,
-28,
-45,
30,
16,
52,
34,
19,
20,
10,
-35,
-14,
-18,
-3,
-38,
9,
37,
-24,
10,
18,
-7,
7,
23,
-22,
46,
10,
-35,
-26,
73,
-26,
34,
-52,
-27,
35,
21,
-5,
38,
-28,
5,
53,
78,
-18,
39,
43,
109,
30,
-64,
-10,
6,
21,
-8,
42,
46,
22,
50,
12,
7,
38,
-29,
-33,
-58,
8,
33,
22,
-18,
-65,
-12,
42,
-4,
-49,
-22,
-18,
-34,
86,
-36,
28,
2,
74,
-18,
-12,
-45,
9,
-16,
-30,
73,
-27,
-73,
37,
-18,
44,
-3,
-63,
26,
45,
-29,
-4,
-67,
-71,
-3,
8,
-75,
-32,
9,
32,
-36,
-56,
-56,
0,
-9,
-61,
8,
-1,
-81,
-17,
6,
25,
72,
36,
37,
-40,
-69,
15,
-29
] |
MR. JUSTICE DAYIS:
Appeals from orders denying a motion to strike from the files and settling a final account in probate.
Charles Hansen died testate on January 31, 1951, at Baker, Montana. On June 22, 1951, by order dated June 15, 1951, two writings were admitted to probate in the district court for Fallon County as the decedent’s last will, and a son, Floyd Y. Hansen, was appointed executor, letters testamentary to issue to him upon qualifying and giving a bond in the sum of $1,500.
On August 13, 1951, and before letters were issued to the son, an appeal to this court was perfected from this order by one Inga Hansen, the decedent’s widow. On March 23, 1953, this appeal was sustained; the lower court was reversed. By that reversal inter alia the appointment of Floyd V. Hansen as executor was vacated. See In re Hansen’s Estate, 126 Mont. 522, 254 Pac. (2d) 1073.
Subsequently consistent with our decision the lower court appointed Inga Hansen the executrix of her husband’s will. Promptly she qualified and entered upon the administration of the estate. In the meantime, however, and on January 9, 1952, the son had taken letters testamentary under the order of June' 15, 1951, and thereafter pending the determination of the appeal from that order had himself assumed to administer upon his father’s estate as executor, particularly by securing the appointment of appraisers, by returning an inventory and appraisement of its property, by publishing notice to creditors, by approving creditors’ claims, etc. Inga Hansen in her capacity as executrix, after her appointment, moved, to strike these proceedings from the court files.
Further, after the remand of the matter to the lower court Mr. Hansen as executor filed there what he styled his final report and account of his administration, and prayed its approval and thereupon his final discharge. To this final account and to the hearing had thereon on May 20, 1954, Inga Hansen as executrix objected.
The substance of both this motion and these objections was that because of the appeal taken on August 13, 1951, to this court (1) the district court was divested of jurisdiction to issue letters testamentary to Floyd V. Hansen, and (2) he was therefore without authority to administer upon the Hansen estate.
By separate orders the lower court denied the motion to strike, and after overruling the objections of the executrix settled the final account of Floyd V. Hansen as the executor of the estate in office as such until the order by which he was appointed had been reversed by this court.
From these orders Inga Hansen has again appealed, this time as the executrix under her husband’s will.
The order denying her motion to strike is not appealable. R. C. M. 1947, sections 93-8003, 93-8004; In re Tuohy’s Estate, 23 Mont. 305, 58 Pac. 722. Compare State ex rel. Smotherman v. District Court, 50 Mont. 119, 145 Pac. 724; Weed v. Weed, 55 Mont. 599, 179 Pac. 827; State ex rel. Cotter v. District Court, 34 Mont. 303, 87 Pac. 614. The attempted appeal from that order is dismissed.
The appeal from the order settling the final account of Floyd V. Hansen as executor is however well taken. Sections 93-8003, subd. 3, 93-8004, subd. 4, supra. By that appeal there is brought here for solution one question, which answered disposes of this controversy:
Were the letters testamentary issued to Floyd Y. Hansen on January 9, 1952, and the proceedings thereafter had by him under these letters in the administration of the Hansen estate void for want of jurisdiction because of tbe appeal taken on August 13, 1951?
It is familiar law that an appeal to this court divests the district court of jurisdiction over the order or judgment from which the appeal is taken. Thereafter the lower court is without jurisdiction to proceed upon any matter embraced therein. Glavin v. Lane, 29 Mont. 228, 229, 74 Pac. 406; Hynes v. Barnes, 30 Mont. 25, 27, 28, 75 Pac. 523; Moreland v. Monarch Mining Co., 55 Mont. 419, 421, 178 Pac. 175; State ex rel. O’Grady v. District Court, 61 Mont. 346, 349, 202 Pac. 575; Stewart v. First National Bank, 93 Mont. 390, 394, 18 Pac. (2d) 801; Moore v. Capital Gas Corp., 117 Mont. 148, 155, 158 Pac. (2d) 302.
The principle of these decisions is crystallized first in R. C. M. 1947, section 93-8011, to the effect that in the eases mentioned there an appeal perfected “stays all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein.” Then R. C. M. 1947, section 93-8014, which is a statute of general application, restates broadly (with certain exceptions not material here) the principle of section 93-8011, which is thereby extended to other appeals not previously covered. These precedents in this court and statutes of this state are in our view controlling of the case before us. See further, 3 Cal. Jur. (2d), Appeal and Error, section 209, page 704; 4 C. J. S., Appeal and Error, section 662, pages 1149, 1150, and cases collected in note 55; section 674, pages 1157, 1158; 3 C. J., Appeal and Error, section 1446, page 1315; section 1448 (3), page 1319; California Code Civ. Proc. sections 946, 949 (1953); In re Estate of Stough, 173 Cal. 638, 640, 642, 161 Pac. 1; In re Estate of Woods, 94 Cal. 566, 29 Pac. 1108; In re Estate of Hultin, 29 Cal. (2d) 825, 833, 178 Pac. (2d) 756; In re Estate of Lee, 26 Cal. (2d) 295, 158 Pac. (2d) 193.
That is, the case in hand comes to this: When on August 13, 1951, Inga Hansen, the widow, appealed to this court further proceedings in the district court on the order from which that appeal was taken were necessary before Floyd V. Hansen could take letters testamentary upon tlie estate of his father. This is so, because it was only by qualifying pursuant to that order that he could have letters on this estate at all. This is so also, because it was only by the authority of this order that the clerk of the district court could issue letters testamentary on this estate to anyone. The issuance of these letters on January 9, 1952, was clearly a proceeding upon the order appealed from, and likewise clearly a proceeding upon a matter embraced therein.
The necessary conclusion then upon the premise of these facts and under the authorities and statutes, which we have noted, is that the letters testamentary issued to the son were void, because the district court and its clerk were at the time without jurisdiction. The judge below thought, however, that B. C. M. 1947, section 93-8016, took this case out of the general rule, and accordingly held to the contrary. This was error.
■Section 93-8016, supra, reads: “When the judgment or order appointing an executor, or administrator, or guardian is reversed on appeal, for error, and not for want of jurisdiction of the court, all lawful acts in administration upon the estate performed by such exeeutor, or administrator, or guardian, if he have qualified, are as valid as if such judgment or order had been affirmed.” (Emphasis supplied.)
On its face this section does not conflict with sections 93-8011, and 93-8014, which come before, at least under the facts of this case; and we are concerned with no other. Nor on its face does section 93-8016 give jurisdiction to the lower court under these facts where our decisions in other cases have said there is none.
The point at bar has not been expressly ruled heretofore in. this court. But California has held in Be Estate of Stough,, supra, that the issuance of letters testamentary after an appeal! had been taken from the order of appointment and as well all! acts done pursuant to the letters so issued were beyond jurisdiction and therefore void. In effect in California at the time were statutes identical with our sections 93-8011, 93-80.14, 93-8016, supra. See California Code Civ. Proc. 1907, sections 946, 949, 966.
In Ee Estate of Stough. the order appointing one Fishburn executor was made August 2, 1916. On August 4, 1916, an appeal was taken from this order to the California Supreme Court. On September 21,1916, letters testamentary were issued to Fish-burn, who on September 28, 1916, as executor commenced an action to quiet title to certain estate property. These facts are substantially the same as those which appear in the record here. Upon motion made to stay Fishburn from proceeding as executor with the probate of this estate the California court concluded, 173 Cal. 642, 161 Pac. 2: “* * * that all of the proceedings had in the court below after the filing of the notice of appeal, and looking to the conferring of the powers of an executor upon Fishburn, and all steps taken by said Fishburn as executor were without authority and void.” Compare In re Estate of Woods, supra; In re Stratton, 133 Cal. App. 738, 24 Pac. (2d) 832; In re Estate of Lee, supra, 26 Cal. (2d) at page 296, 158 Pac. (2d) 193 (after repeal of section 966, supra, and the enactment of section 1241, Cal. Prob. Code, by Cal. Stat. 1933, c. 969, page 2498); In re Estate of Hultin, supra, 29 Cal. (2d) at page 833, 178 Pac. (2d) at page 760 (semble).
The reasoning of these opinions in California is sound.
In reaching the same conclusion in this case it is not necessary that we decide what is the meaning in all cases of the clause “if he have qualified”, which is contained in section 93-8016 of our Codes, and which also found an exact counterpart in the California Codes when In re Estate of Stough was decided. Here in our yiew Floyd V. Hansen never qualified as executor of the Hansen Estate, because when he attempted to do so the the district court had lost jurisdiction of the matter entirely, such that there was then in effect neither an order pursuant to which he might qualify nor an order under which letters might issue to him.
Section 93-8016 then could not reach his ease to take it out of the sweep of sections 93-8011, 93-8014. That statute does not apply to this case because of its own language. It would be a strange reading indeed which would hold that an executor had qualified within the meaning of that statute, although his letters were in law nullities, and his qualification contrary to law and void. "We shall adopt no such unreasonable construction.
Rather we approve what the Supreme Court of California has said in Re Estate of Stough to the point that the general rule •embodied in our sections 93-8011 and 93-8014 is applicable to this case. Because the district court here proceeded without jurisdiction when its clerk issued letters testamentary to Mr. Hansen, we conclude further that neither his letters nor his acts dune thereunder are saved by section 93-8016 inasmuch as he never qualified. Further we need not go in construing section 93-8016 to dispose of this appeal.
Coburn v. Hynes, 161 Cal. 685, 120 Pac. 26, which the district judge thought decisive of the right of Floyd 'V. Hansen to administer, is for us neither persuasive nor controlling. There the point for decision on this appeal was not an issue and was not passed upon. The language of the Coburn case upon which reliance is had by the respondent and in the opinion below is dictimn. It has been so considered since by the California Supreme court itself.
In Hellman Commercial Trust and Savings Bank v. Alden, 206 Cal. 592, 608, 275 Pac. 794, 801, that court said: “The question of suspending the effect of the adjudication of incompetency was not involved in that ease. [Coburn v. Hynes, supra.] The court merely held that, since the statute did not authorize a guardian to take charge of the estate pending an appeal, he had no such power.” Compare also Security-First National Bank v. Superior Court, 100 Cal. App. 702, 705, 280 Pac. 995.
Further it appears beyond dispute from the opinion in Co-burn v. Hynes that there the court gave no consideration at all to sections 946, 949, California Code Civ. Proc. 1907, then in force, which as we have already noted were substantially the-same as are now sections 93-8011, 93-8014, of our 1947 Codes. Nor is there to be found in that opinion mention of any authority such as Grlavin v. Lane, supra, and its companion decisions, which we have cited above, and which in this court are directly to be applied to tbe problem presently for solution by us. In these eireumstanees we are not to consider certainly that these statutes are not applicable to the case at bar solely because of the obiter dictum of the Coburn case.
For like reasons the citation of In re Rohkramer’s Estate, 113 Mont. 545, 131 Pac. (2d) 967, lends no support to the respondent’s case. There the problem which this record presents under sections 93-8011 and 93-8014 was not touched at any point. Compare Webster v. Fall, Secretary, etc., 266 U. S. 507, 45 S. Ct. 148, 69 L. Ed. 411; Bales v. Brome, 53 Wyo. 370, 380-382, 84 Pac. (2d) 714.
Finally, if Coburn v. Hynes as construed, applied and relied upon by the trial court were ever pertinent to the facts before us now, its force was spent when the California Supreme Court decided In re Estate of Stough five years thereafter, and accordingly unquestionably repudiated any implication to the contrary of the Stough opinion which otherwise might be read in the Coburn decision. Indeed to read the Coburn opinion and the later California cases where it has been noticed is to conclude, as we have, that Coburn v. Hynes has never been accepted in California as even persuasive of the correct answer to the question which we meet here.
But were the case otherwise, the decisive holding in Re Estate of Stough would entirely destroy the authority of the Coburn case as a precedent upon which to rest our opinion turning this appeal. Our conclusion to this point disposes without more of this controversy.
We therefore reverse the order of the lower court which settled this final account with directions to sustain the objections of the executrix to the final report, account and petition of Floyd Y. Hansen as executor, and thereupon to dismiss for want of jurisdiction. It is so ordered. The appellant shall recover her costs of appeal.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES ANGSTMAN, ANDERSON, and BOTTOMLY, concur.
|
[
35,
-5,
-1,
-47,
2,
-9,
26,
39,
-6,
34,
-8,
40,
-16,
-12,
-63,
-44,
1,
-1,
-1,
-46,
-8,
6,
-72,
-25,
38,
3,
-33,
-22,
2,
-17,
-24,
-77,
-10,
-13,
32,
41,
59,
-39,
45,
-10,
10,
-42,
43,
19,
-103,
-9,
-56,
-4,
-50,
-29,
-28,
16,
-17,
5,
32,
32,
40,
-5,
-12,
-29,
-9,
-40,
36,
41,
18,
106,
8,
-19,
-42,
-38,
-26,
-37,
80,
57,
5,
-35,
-48,
-9,
-46,
20,
-20,
46,
-73,
10,
14,
-27,
-32,
-1,
28,
6,
-51,
2,
-4,
27,
-10,
14,
-10,
-27,
39,
40,
65,
-13,
-54,
-38,
5,
-38,
-52,
48,
-2,
36,
17,
19,
26,
59,
-7,
12,
-14,
-21,
13,
-11,
0,
13,
16,
-34,
39,
5,
16,
82,
68,
9,
-24,
17,
30,
-8,
-20,
25,
-19,
-97,
-54,
-46,
1,
-30,
-23,
-51,
23,
4,
-9,
14,
-43,
-48,
-15,
20,
37,
27,
47,
-6,
49,
-5,
67,
27,
0,
-40,
27,
-66,
17,
2,
30,
-5,
6,
-49,
13,
7,
-34,
-57,
15,
96,
21,
7,
20,
-8,
-8,
50,
19,
-80,
-25,
26,
-4,
67,
5,
38,
-44,
-18,
42,
42,
9,
14,
15,
-6,
20,
16,
-17,
27,
0,
8,
-54,
-8,
25,
-20,
-5,
-47,
22,
-45,
-16,
18,
-53,
30,
2,
-9,
-60,
15,
49,
58,
5,
-16,
16,
6,
-5,
-58,
1,
2,
22,
-19,
-25,
-12,
13,
19,
17,
47,
-53,
-27,
6,
-46,
-28,
-52,
-11,
32,
-28,
10,
47,
-10,
9,
-22,
27,
2,
7,
20,
7,
-54,
-9,
-17,
57,
11,
18,
-3,
-10,
3,
17,
4,
4,
-40,
17,
-7,
71,
-20,
6,
-15,
37,
-46,
-28,
-6,
24,
-47,
-4,
-11,
-50,
-7,
5,
-41,
1,
25,
19,
6,
6,
-31,
13,
0,
7,
-61,
-8,
-70,
-65,
-20,
23,
55,
1,
26,
-17,
-21,
30,
10,
7,
6,
2,
-29,
70,
0,
-61,
-42,
-41,
-11,
19,
-5,
-44,
42,
5,
71,
-84,
49,
22,
61,
-37,
25,
-42,
-21,
-27,
-7,
6,
35,
-60,
17,
-8,
4,
-21,
-7,
-7,
-7,
48,
7,
39,
-36,
-13,
-15,
-23,
20,
-41,
31,
27,
-65,
-23,
52,
-1,
-25,
-21,
15,
-16,
21,
-36,
4,
22,
-53,
19,
34,
15,
-61,
38,
33,
-4,
13,
30,
-14,
-45,
-6,
-17,
-2,
62,
-18,
31,
55,
-35,
13,
18,
16,
-18,
-40,
-22,
26,
32,
-9,
-32,
-17,
-30,
58,
9,
18,
14,
-46,
-40,
-39,
13,
12,
34,
-3,
-9,
20,
61,
14,
5,
-14,
6,
43,
43,
12,
-52,
2,
4,
-53,
-32,
1,
30,
-13,
24,
20,
11,
-23,
-4,
-20,
8,
36,
1,
8,
25,
7,
72,
33,
-7,
7,
8,
-42,
-19,
4,
-36,
32,
3,
11,
-54,
14,
52,
46,
-35,
-34,
22,
29,
33,
1,
-49,
45,
73,
-5,
9,
39,
-45,
-3,
-16,
-16,
-24,
0,
-8,
-55,
-4,
-48,
-33,
21,
33,
33,
11,
92,
0,
-69,
-5,
-41,
11,
-21,
18,
-15,
-30,
-21,
-20,
-68,
26,
-28,
-36,
-25,
24,
20,
24,
-52,
53,
9,
10,
22,
-1,
-51,
35,
-5,
-18,
42,
56,
11,
11,
40,
4,
-11,
-6,
-26,
2,
-2,
44,
-1,
-27,
-36,
-21,
-29,
-12,
-46,
-2,
-16,
17,
2,
-23,
-15,
0,
-39,
21,
37,
-26,
67,
-2,
-1,
1,
-28,
30,
-21,
13,
-11,
0,
44,
72,
-18,
-33,
11,
17,
22,
-68,
0,
-29,
-40,
-48,
15,
-53,
8,
25,
13,
33,
-12,
2,
-38,
15,
-23,
43,
-17,
-15,
19,
-26,
-11,
-10,
12,
23,
22,
11,
0,
-42,
-16,
-40,
-18,
-75,
22,
-20,
0,
21,
-8,
-35,
27,
25,
13,
-84,
-28,
0,
42,
31,
-69,
-1,
32,
-31,
22,
-2,
-15,
13,
-15,
68,
-12,
-4,
10,
56,
1,
-1,
-22,
-6,
-38,
80,
11,
12,
-29,
27,
21,
-37,
7,
29,
-15,
-56,
-18,
12,
20,
-20,
-26,
-22,
-16,
82,
-79,
60,
7,
6,
18,
-40,
28,
18,
-66,
39,
-34,
9,
39,
-26,
-8,
-26,
-31,
15,
43,
-22,
56,
27,
4,
24,
13,
-12,
-53,
-60,
30,
-15,
39,
43,
31,
-6,
4,
-4,
24,
-5,
-22,
44,
58,
-13,
5,
-8,
-3,
19,
9,
0,
62,
12,
18,
4,
-18,
-2,
41,
6,
102,
-42,
-38,
-41,
8,
-43,
-55,
14,
24,
-7,
-71,
-7,
-31,
30,
-28,
24,
-30,
-6,
-43,
-52,
-42,
-12,
45,
0,
-7,
37,
-41,
42,
-31,
-9,
-8,
-10,
-32,
41,
-58,
46,
49,
-23,
-25,
7,
-7,
0,
-3,
-15,
-36,
-20,
-15,
15,
28,
18,
40,
9,
16,
22,
0,
66,
0,
35,
-30,
-16,
53,
-36,
53,
-38,
-9,
0,
-23,
-11,
10,
6,
2,
8,
-1,
13,
52,
100,
30,
-54,
-16,
-1,
73,
28,
-5,
-12,
32,
22,
33,
-18,
-2,
-6,
-2,
-6,
13,
-72,
-114,
-7,
-35,
32,
-40,
47,
11,
24,
-64,
-39,
60,
-29,
2,
0,
6,
-23,
-72,
-44,
-11,
-8,
0,
-41,
-4,
-3,
-29,
58,
-15,
1,
-31,
28,
13,
-4,
96,
-26,
2,
15,
-8,
8,
-36,
15,
80,
-7,
-32,
-54,
-1,
25,
-7,
25,
-10,
37,
8,
64,
10,
12,
-3,
-12,
61,
-14,
-46,
-43,
-49,
28,
-32,
12,
-4,
18,
-29,
31,
-34,
-13,
-1,
-29,
52,
-37,
-37,
6,
29,
-21,
0,
39,
-36,
25,
-38,
1,
75,
-32,
-15,
-23,
13,
35,
64,
-16,
0,
-10,
-27,
-47,
32,
-10,
0,
14,
-88,
39,
63,
-21,
-74,
34,
-34,
37,
12,
23,
24,
25,
36,
27,
10,
-34,
-53,
20,
7,
2,
53,
4,
12,
34,
-22,
-32,
-11,
61,
25,
16,
-15,
-10,
76,
25,
49,
14,
-15,
-20,
-14,
-2,
29,
-55,
19,
20,
-22,
-9,
-3,
46,
57,
36,
-43,
-41,
28,
-9,
-3,
-20,
3,
-3,
100,
17,
-46,
-74,
50,
-54,
-34,
26,
31,
74,
-29,
-32,
21,
17,
-18,
-44,
-30,
-11,
-22,
-2,
0,
20,
-21,
78,
-2,
-12,
-24,
-15,
17,
-23,
-10,
-15,
-14,
14,
10,
5,
22,
9,
-12,
53,
17,
4,
12,
-2,
33,
-9,
-5,
19,
38,
16,
-1,
5,
-18,
-78,
52,
-25,
-32,
-53,
-23,
-39,
-83,
54,
-8,
24,
20,
-60,
-81,
-13,
11
] |
MR. JUSTICE DAVIS:
Appeal from an order of the district court for Fallon County, which set aside a judgment by default and permitted an answer upon the merits.
The pertinent facts are few. The plaintiffs (appellants here) commenced an action under R.C.M. 1947, section 93-6203 et seq., to quiet their title to certain described lands against Stondall Land and Investment Company, a corporation of the State of Minnesota, joining also as defendants all persons “unknown claiming or who might claim any right, title, estate or interest” adverse to the plaintiff’s ownership, etc.
Personal service of summons was had pursuant to R.C.M. 1947, section 93-3008 et seq., as amended, upon the named corporate defendant, which had previously qualified to do business in Montana. Service by publication upon all defendants as required by statute then followed. It nowhere appears that the corporation itself did not receive the copies of the summons and complaint which the record shows were mailed it.
On December 14, 1951, a judgment by default was entered, quieting the plaintiffs’ title and adjudging particularly that they were the “owners absolute and in fee simple of all of the minerals in and under the premises” described.
The integrity and regularity of these proceedings are not challenged.
But subsequently the respondents appeared and moved under R.C.M. 1947, section 93-3905, to set aside this judgment because of their excusable neglect, etc. In support of their motion as amended there were filed two amended affidavits, the one by their attorney, the other by a third person, one Sessions, who “was interested in purchasing an oil and gas lease on certain properties in Fallon County, Montana,” as he describes himself. This motion and these affidavits recited that the respondents were the sole heirs at law of one Albert M. Stondall, the president and sole stockholder at the time of his death of Stondall Land and Investment Company, and had accordingly succeeded to all his interests in said corporation, that they did not have actual notice of the action in time to make a defense, but had acted promptly thereafter to set aside the default decree rendered against the corporation, and that they had a prima facie defense, etc. No affidavit or other evidence given by the respondents personally appears in the record.
With their motion the respondents tendered for filing a proposed amended answer and cross complaint made “for themselves and as the sole stockholders of said Company”, in which they alleged inter alia,
“® * * that the said Stondall Land and Investment Company ever since the 3rd day of November, A.D. 1919, has been and now is vested with the absolute title to all of the coal, iron, oil and natural gas and asphalt in and under the lands described herein # #
Thereon they prayed a decree, adjudging that these mineral interests are “owned absolutely by the defendant, Stondall Land and Investment Company,” and that the title of that defendant thereto accordingly be quieted.
This motion the lower court granted, thereby vacating the judgment or decree of December 14, 1951, against the corporation.
From that order the plaintiffs have taken this appeal.
Of the several questions raised or suggested and argued by counsel we find one which in our view is decisive of this controversy. It is therefore unnecessary for us to discuss any other.
That question is: May the respondents who variously describe themselves as (1) the sole stockholders, and (2) the heirs at law and successors to the interests of the sole stockholder of the defendant corporation appear in their own names and upon their own motion vacate the judgment against their corporation, thereafter answer to the merits in their own names but for the corporation, and thereupon in their own names prosecute the corporation’s cause of action to quiet its title to the minerals in issue ?
Upon the showing made we conclude they may not.
The short answer to the question put is that as a general rule stockholders may not sue upon a cause of action belonging to their corporation whether in their own names or in the name of the corporation itself. Nor generally may they defend for it an action brought against the corporation as defendant.
The point has not been heretofore presented to this court by the sole or majority stockholders of a corporation.
But this court has repeatedly reached this conclusion where a minority stockholder has sought to sue for the corporation. Noble v. Farmers Union Trading Co., 123 Mont. 518, 216 Pac. (2d) 925; Cobb v. Lee, 80 Mont. 328, 260 Pac. 722; Allen v. Montana Refining Co., 71 Mont. 105, 121, 122, 123, 227 Pac. 582; Deschamps v. Loiselle, 50 Mont. 565, 573, 148 Pac. 335; Brandt v. McIntosh, 47 Mont. 70, 73, 74, 130 Pac. 413. See also 18 C.J.S., Corporations, section 559, pages 1272 et seq., section 560, page 1276; 14 C.J., Corporations, section 1444, pages 924 et seq., section 1447, pages 929 et seq.; 13 Am. Jur., Corporations, sections 461, 462, pages 504 et seq. The exceptions to this rule are as well defined as the rule itself. They are noted in the citations above, particularly in Noble v. Farmers Union Trading Co., supra, 123 Mont, at page 529 et seq., 216 Pac. (2d) 925. But none of these exceptions fits the respondents’ case, primarily because they are not minority stockholders. Taken at their word they are either the sole or majority stockholders of Stondall Land and Investment Company, or what is the same thing the heirs at law and successors to the interests of the sole or majority stockholder of that corporation. In either case they control the corporation.
And for this reason no decision which we have found in this or any other court of last resort where the common law obtains permits them to sue or defend for the corporation. The corporation itself must in such circumstances appear and plead; or there may be neither suit nor defense for it.
The underlying reason is, of course, that because the majority stockholders control the corporate machinery, they necessarily control the corporation and through its officers and directors the defense and the prosecution of any litigation involving the corporation. The sole or majority stockholders then have no need to resort to the indirection of a stockholders ’ suit by grace of a court of equity to protect the corporate interests. Equity will deny them any such relief, if asked, because their remedy within the corporation is adequate.
To turn specifically to the case in hand, we take judicial notice from the statutes of the State of Minnesota, R.C.M. 1947, section 93-501-2, where this corporation is domiciled, (1) that as stockholders the respondents may elect a board of directors who will be entirely responsive to their wishes in any corporate matter, (2) that if they choose, they may elect themselves directors and so manage their corporation in person, 2 Minn. Stat. 1949, Chap. 301, section 301.28, M.S.A., (3) that they may remove the entire board of directors, or any individual director by a majority vote with or without cause, 2 Minn. Stat. 1949, Chap. 301, section 301.29, M.S.A., (4) that by their own board of directors so chosen they may dictate the choice of the corporate officers, 2 Minn. Stat. 1949, Chap. 301, section 301.30, M.S.A., and (5) that they may thus effectively chart the course of this litigation by the corporation itself through the corporate officers and in the corporate name as the real party in interest and as R.C.M. 1947, section 93-2801, requires.
It follows that the respondents have no standing in a Montana court to sue for the corporation upon its cause of action pleaded in the proposed cross complaint at bar, or to defend for the corporation against the plaintiffs’ suit as is the proposed answer. Brandt v. McIntosh, supra, 47 Mont. at page 73, 130 Pac. 413; Cobb v. Lee supra, 80 Mont., at page 337, 260 Pac. 722; Noble v. Farmers Union Trading Co., supra, 123 Mont. at page 534, 535, 216 Pac. (2d) 925; Allen v. Montana Refining Co., supra, 71 Mont, at page 122, 227 Pac. 582.
Stated otherwise, the respondents may not assert in this suit the corporation’s cause of action or defense, because unlike the minority stockholder who sued and was sustained in Sullivan v. Mountain, 117 Mont. 224, 160 Pac. (2d) 477, they cannot truthfully allege that the corporate officers and directors, whom they elect, control and may summarily remove, would not sue and defend in the name of the corporation and for it, if the respondents demanded that they do so. It is equally certain that they did not, because they could not, allege that such a demand made was refused.
Fundamentally they cannot make the required showing, because as the sole stockholders of the defendant corporation they dictate corporate action, which wholly distinguishes their case from that of the minority stockholder in Sullivan v. Mountain, supra. There equity did for him what he could not do for himself. Here equity will not do for the respondents what they clearly can do for themselves.
And if they may neither sue nor defend here for Stondall Land and Investment Company, it follows that they may not move to vacate this judgment against it, even though they had sought to do so in the corporation’s name. Hamill v. Great Northern Copper Co., 52 S.D. 271, 217 N.W. 195, decided under a statute substantially identical with section 93-3905, supra.
To sustain this conclusion further we need not resort to the opinions of other courts written in like cases. The decisions of this court suffice, for they are directly in point and therefore controlling. Compare Holt v. Sather, 81 Mont. 442, 445, 446, 264 Pac. 108. Nevertheless we find our view in accord with the precedents elsewhere. To the authorities noted heretofore we add Fletcher, Cyclopedia of the Law of Private Corporations (Perm. Ed.), Vol. 13, Chap. 58, section 5945 et seq., pages 301 et seq.
Some argument is made by counsel that the respondents should be admitted to defend in this action as unknown persons summoned under our statutes, section 93-6203 et seq., or as possible successors to the corporation’s title upon the expiration of the corporate life, i.e., by force of R.C.M. 1947, section 15-1102.
Moreover the dissent in this case views the record from this premise. There it is argued the respondents are not yet stockholders, but at best are only the heirs or next of kin of stockholders to whom distribution of their ancestor’s estate has not yet been made, but who have acted here to protect their potential interest in the corporation. As we read the moving papers the short answer to this suggestion is that no such facts appear in the record.
Heretofore we have taken the respondents at their word that they are stockholders. But if we are mistaken in our appraisal of that record, our further answer to this argument is that the respondents’ case is then weaker than we had thought. For whatever may be said of the right of a stockholder to sue in this case, there is certainly no rule of law which in any case permits an action or defense for the corporation to be maintained by one who is neither an officer nor a stockholder however bright his prospects may be that some day he may become a member of the corporate family. If distribution has not been made to the respondents of the stock owned by Albert M. Stondall in his lifetime, the personal representative of his estate is then the “stockholder”; and these respondents are utter strangers to both the corporation and this record.
In such circumstances there is no precedent which permits them to represent the corporation in litigation involving corporate interests only, solely because they anticipate becoming the distributees of stock presently held by the estate of a deceased stockholder. And our attention has been directed to no case which supports a suit or defense by a stranger under any such circumstances.
It is equally futile as we read the record before us to speculate that the corporate life of Stondall Land and Investment Company has expired, and that therefore there is vested in the respondents a present interest or title to what was corporate property. All the facts set out in the motion, the affidavits, and the proposed answer and cross complaint of the respondents are to the contrary. An absolute title in the corporation alone is pleaded. Affirmatively it is alleged that “no person whomsoever has ever acquired any title to the said minerals, oil or natural gas from the Stondall Land and Investment Company”.
In the affidavit of Tom L. Sessions, which appears among the moving papers here, it is said:
That “he [Sessions] made immediate investigation to determine whether or not said company [Stondall Land and Investment Company] is still in existence and that he discovered Albert M. Stondal, one of the incorporators and largest stockholder thereof, resided at Madison, Wisconsin; that he [Sessions] immediately made an effort to contact the said Albert M. Stondall, bnt he [Sessions] discovered that he [Albert M. Stondall] was deceased, and that he thereafter contacted Alice M. Stondall, Helen B. Stondall and Mrs. Robert J. Hogan, three of the heirs-at-law of the said Albert M. Stondall and explained to them that it was his opinion that the Stondall Land and Investment Company was still the owner of the minerals under the above described lands # * *”
And despite the investigation made, the explanations given, and the effort put forth by Sessions there is no statement in his affidavit or anywhere in this record that the corporation itself is no longer in existence. In this connection it is to be remembered that the immediate purpose of the investigation undertaken by the affiant Sessions was to determine the present existence or nonexistence of the corporation and was not to find the heirs or next of kin of its president and principal stockholder. Indeed, if the corporation was not in existence when these proceedings were had in the trial court, the papers upon which the respondents moved to vacate this decree were at the greatest pains to conceal that fact in language which admits of nothing but the contrary conclusion.
Certainly we are not called upon to conjecture in the face of the positive recitals of fact before us what the respondents’ rights would be, if the case stated were that the life of their corporation had expired. Nor need we speculate on the record before us whether the respondents might appear and defend, if they had pleaded a personal interest in the described lands distinct from the absolute title of their corporation, or if they claimed to have succeeded to the corporation’s title upon its dissolution. No such facts are presented for our decision.
The order of the district court is reversed with directions to reinstate the judgment of December 14, 1951, and to deny the respondents’ motion to vacate, etc.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICE BOTTOMRY concur.
|
[
-10,
34,
38,
-15,
8,
-8,
21,
-16,
-17,
31,
42,
-13,
0,
7,
-17,
-18,
-43,
10,
51,
-14,
6,
-29,
-20,
4,
21,
-69,
-54,
-4,
0,
-23,
-11,
3,
-47,
-34,
18,
35,
-2,
19,
-25,
23,
9,
63,
35,
2,
17,
-8,
-49,
-20,
-26,
-40,
53,
-8,
-10,
-13,
-2,
-36,
-46,
-6,
26,
-25,
-24,
-6,
56,
16,
20,
28,
1,
-15,
8,
12,
-29,
17,
-2,
19,
41,
-19,
15,
-28,
-5,
-20,
-4,
19,
15,
6,
-43,
-32,
2,
13,
22,
23,
-25,
0,
-32,
-21,
12,
12,
24,
-23,
-4,
-8,
27,
-16,
3,
16,
9,
-7,
-45,
-26,
35,
43,
3,
-43,
-2,
1,
-12,
27,
2,
-4,
9,
-33,
20,
-45,
-6,
-4,
-23,
28,
21,
62,
-20,
61,
2,
-46,
28,
-8,
3,
-23,
-38,
-56,
-9,
16,
41,
-20,
17,
10,
-18,
44,
19,
2,
-29,
17,
13,
15,
36,
56,
2,
-22,
0,
-2,
39,
-46,
63,
20,
-16,
-8,
-5,
24,
-19,
-4,
-59,
-24,
4,
-65,
-49,
9,
7,
-18,
31,
-11,
-29,
9,
-5,
11,
-19,
-7,
0,
39,
52,
3,
9,
46,
-3,
1,
48,
14,
-36,
-16,
4,
40,
18,
3,
17,
-31,
-15,
12,
0,
21,
42,
33,
28,
-5,
-7,
-8,
-1,
5,
-2,
-19,
22,
-16,
-3,
-41,
-2,
12,
-40,
23,
-15,
-1,
12,
-2,
-55,
-6,
-12,
0,
-3,
-17,
0,
-36,
39,
-7,
5,
8,
9,
-10,
2,
-3,
9,
15,
-22,
-50,
-20,
23,
-6,
-31,
-36,
3,
0,
-8,
-6,
-3,
-16,
-44,
42,
24,
-21,
-8,
-7,
-37,
-19,
-5,
-4,
10,
-9,
-17,
31,
-9,
-23,
-35,
38,
-23,
-19,
-51,
26,
-28,
1,
21,
-47,
34,
10,
11,
-46,
13,
-52,
7,
-23,
24,
13,
-5,
31,
-51,
41,
-3,
-23,
28,
-21,
-29,
-1,
8,
-41,
10,
0,
14,
48,
43,
-35,
0,
1,
12,
0,
-14,
32,
-82,
53,
25,
22,
-7,
12,
25,
35,
-6,
-30,
24,
-30,
-3,
-26,
-20,
-23,
-10,
26,
6,
-26,
5,
11,
-30,
12,
-21,
8,
34,
-11,
-9,
-13,
20,
-9,
-32,
-8,
19,
0,
-32,
35,
-60,
-33,
27,
26,
-33,
-28,
-23,
-17,
9,
-46,
-23,
31,
4,
-29,
9,
20,
-34,
15,
12,
-2,
-22,
-34,
26,
-16,
-46,
1,
6,
44,
-2,
4,
-4,
-31,
14,
-22,
14,
0,
23,
18,
-55,
0,
-12,
-31,
40,
-7,
19,
-10,
-5,
-43,
-30,
-15,
-1,
-21,
6,
9,
-21,
11,
12,
-2,
6,
2,
1,
49,
42,
29,
13,
-8,
-50,
-7,
-32,
38,
-3,
-32,
13,
-4,
15,
-40,
42,
10,
30,
-31,
-18,
-39,
35,
14,
29,
-23,
-18,
4,
-43,
-1,
-10,
45,
31,
-6,
55,
-29,
-10,
-29,
63,
51,
-42,
-6,
-76,
36,
41,
5,
-3,
2,
30,
28,
-28,
-3,
32,
34,
60,
9,
4,
2,
43,
-5,
1,
-3,
-38,
7,
5,
-48,
15,
0,
23,
7,
27,
11,
57,
12,
11,
-32,
-27,
-54,
-27,
-22,
-27,
30,
-6,
11,
-13,
-3,
2,
15,
18,
25,
-27,
-72,
33,
13,
-13,
63,
0,
-9,
75,
49,
8,
1,
27,
19,
5,
-6,
-36,
-32,
-36,
-22,
30,
41,
-45,
-46,
10,
-7,
6,
-3,
30,
-9,
20,
-58,
-18,
31,
17,
-9,
8,
-28,
-14,
0,
7,
0,
-31,
-35,
8,
-22,
31,
2,
19,
5,
-32,
-26,
-5,
-8,
30,
21,
-21,
14,
-1,
-58,
-34,
-34,
-3,
-12,
37,
0,
-45,
29,
5,
-29,
-25,
-36,
39,
-54,
-16,
-33,
-40,
-13,
-18,
10,
16,
-4,
-7,
-26,
-32,
3,
-20,
-8,
12,
0,
0,
-9,
61,
-55,
13,
-16,
-21,
18,
-30,
26,
-25,
-6,
-9,
-17,
22,
16,
29,
24,
2,
26,
-59,
46,
14,
1,
-10,
16,
0,
41,
-2,
-13,
-11,
-52,
15,
-9,
-32,
-4,
42,
23,
11,
-21,
44,
-34,
-19,
13,
-10,
25,
-4,
25,
-40,
56,
3,
52,
-3,
-28,
29,
52,
-34,
-8,
25,
11,
-18,
44,
-10,
81,
20,
-2,
3,
65,
-12,
3,
31,
46,
41,
25,
-26,
-17,
1,
27,
-18,
23,
-60,
8,
19,
-37,
47,
-27,
-8,
14,
-13,
-7,
-8,
-23,
0,
1,
9,
5,
16,
-43,
-34,
1,
-8,
0,
-33,
-8,
46,
24,
50,
-18,
16,
0,
6,
-19,
0,
-16,
-31,
-24,
-8,
-22,
-2,
48,
25,
-39,
-24,
-2,
-48,
-28,
24,
14,
27,
11,
48,
-2,
5,
16,
29,
-11,
47,
5,
-23,
-9,
-56,
-71,
35,
29,
-62,
10,
27,
-13,
32,
26,
-3,
-28,
22,
13,
5,
0,
56,
-7,
-53,
-49,
9,
25,
-40,
42,
-36,
6,
19,
-36,
-29,
-5,
-11,
-27,
-12,
14,
7,
-3,
-47,
-1,
30,
62,
40,
42,
24,
-17,
-2,
-12,
11,
7,
-48,
-21,
4,
5,
21,
11,
-20,
1,
-35,
-34,
-17,
-20,
35,
-14,
40,
1,
10,
20,
32,
37,
-22,
-15,
0,
3,
38,
-28,
-15,
33,
7,
-18,
-48,
-61,
7,
7,
-21,
-28,
-21,
27,
18,
-17,
-5,
9,
12,
23,
48,
-22,
-24,
-4,
17,
8,
0,
31,
6,
10,
-40,
-32,
-26,
-42,
-30,
14,
14,
-23,
20,
-6,
28,
-12,
17,
27,
40,
8,
-26,
7,
-68,
-19,
34,
23,
27,
-19,
18,
12,
-29,
19,
9,
-39,
5,
7,
35,
18,
62,
8,
-11,
19,
-20,
28,
-23,
-14,
34,
-40,
26,
-19,
8,
24,
3,
16,
17,
1,
0,
-6,
-19,
13,
-33,
7,
-79,
-5,
-7,
-8,
12,
3,
41,
9,
12,
-15,
20,
39,
21,
1,
-16,
-7,
-3,
4,
15,
-15,
-19,
-21,
53,
5,
0,
-33,
16,
6,
39,
8,
57,
15,
63,
-25,
9,
-32,
2,
36,
19,
-46,
-10,
-26,
16,
-28,
-35,
33,
-13,
15,
-16,
-9,
0,
-22,
18,
34,
5,
8,
41,
-14,
37,
-30,
3,
23,
-23,
-31,
20,
-18,
8,
-4,
-59,
-35,
-15,
10,
-31,
-8,
-40,
29,
-4,
-18,
21,
8,
28,
-11,
12,
-5,
-3,
14,
-1,
12,
-14,
9,
-27,
22,
-23,
48,
-18,
19,
5,
35,
46,
-4,
0,
5,
-45,
32,
-9,
-18,
-55,
36,
6,
-6,
21,
34,
24,
-53,
-57,
-16,
-17,
-13,
19,
22,
-9,
7,
19,
3,
1,
6,
8
] |
MB. JUSTICE BOTTOMLY:
This is an appeal from a judgment in favor of plaintiffs and against defendants, the A. A. Oil Corporation, L. C. Stevenson, Sweet Grass Apex Syndicate, L. C. Stevenson, trustee, and John Beynolds.
The plaintiffs filed and prosecuted a quiet title action. Trial was had before the court without a jury October 21 and 22, 1949, resulting in the court’s findings of fact and conclusions of law which were incorporated in its judgment made and entered on the 7th day of August 1951. Thereafter a motion was made by defendants for a new trial. A hearing was had thereon after which the court made his order denying the same on October 5, 1951.
This appeal followed.
The plaintiffs, John Fey, also known as John G. Fey, and Bosa J. Fey, were and are husband and wife. The A. A. Oil Corporation was and is a corporation, organized under the laws of Montana. L. C. Stevenson, Sweet Grass Apex Syndicate, was a business trust estate and L. C. Stevenson was and is the trustee of said estate.
The record shows that at all times pertinent to this controversy John Fey was owner in fee simple of certain real property situated in Toole County, Montana; that at all times pertinent hereto Bosa J. Fey was the owner in fee simple of certain real property situated in Toole County, Montana; that the plaintiffs John Fey and Bosa J. Fey were at all times herein the owners in fee simple as tenants in common of certain real property situated in Toole County, Montana, all of said lands being set forth and particularly described in the complaint of the plaintiffs herein.
There is no dispute as to the ownership of the lands. The record further discloses that on or about the 4th day of April 1940, the plaintiffs, John Fey and Eosa J. Fey, made, executed and delivered to defendant John Eeynolds an oil and gas lease, covering the described premises consisting of 9,265 acres, more or less, as described in plaintiffs’ complaint.
All of the above mentioned lands were subject to the rights of the defendants under the terms of a certain oil and gas lease made, executed and delivered to defendant John Eeynolds on the 4th day of April 1940, and the amendments and extensions thereof as of April 14, 1941, and June 24, 1941.
This original oil and gas lease was duly assigned by John Eeynolds to the A. A. Oil Corporation and L. C. Stevenson, Sweet Grass Apex Syndicate, L. C. Stevenson trustee. There is no dispute in regard to the original lease nor the assignments thereof.
The lease of April 4, 1940, contained the following provisions: “It is agreed that this lease shall remain in full force for a term of five years from this date and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee.
“First. To deliver to the credit of lessor, free of cost in the pipe line to which lessor (lessee) may connect the wells, the equal l/10th part of all oils produced and saved from the leased premises.
‘1 Second. To pay the lessor ten per cent royalty dollars each year, in advance for the gas from each well where gas only is found; while the same is being used off the premises [emphasis ours], and lessor to have gas free of cost from any such well for stoves and inside lights in the principal dwelling house and all other buildings on said land during the same time by making his own connections with the well at his own risk and expense. * * * If no well be commenced on said land on or before the 4th day of April, 1941, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to lessor’s credit in the First International Bank of Sweet Grass [Montana] or its successors * * * the sum of 12% cents per acre every six months in advance, which shall operate as a rental and cover the privilege of deferring the commencement of a well for six months from said date. In like manner and upon like payments or tenders the commencement of a well may be further deferred for like periods of the same number of months successively. And it is understood and agreed that the consideration first recited, herein, the down payment, covers not only the privilege granted to the date when said first rental is payable as aforesaid, but also the lessee’s option of extending that period as aforesaid and any and all other rights conferred. ’ ’
During the years of 1940 and 1941 and the following years drilling equipment was almost impossible to get owing to war conditions and regulations which allocated metals and casings to the most critical projects. After strenuous efforts being made on behalf of the defendants, and no material available, they met with the plaintiffs at Gold Butte, Montana, and executed the following instruments: “Gold Butte, Montana, April 14, 1941. To L. C. Stevenson, Helena, Montana, as representative and fiscal agent, John Reynolds and the A. A. Oil Corporation:
“It is hereby agreed now that in event the A. A. Oil Corporation as operators and successors to John Reynolds, for their own and said Reynolds’ account, find that it is empowered and its management duly authorized to and desires to during the next ensuing three months resume payment of rentals, etc., in amounts and under the terms as set out in the original oil and gas lease referred to on reverse side hereof, I, we agree to then accept same for amounts due for first and second six months or half year portions and periods of said original lease and will apply said rentals henceforth to purchase shares if and as then offered for subscription of equal or equivalent amount at not to exceed par value of $1.00 per share in the said A. A. Oil Corporation, of Montana; and as further consideration in such event I we agree to extend the life term of said lease for one year additional beyond its original life term on the same general terms as provided in its original form.
"[Signed] John G. Fey
"Rosa J. Fey
"Witness: John Reynolds”
At the same time and place the following instrument was
executed:
"Gold Butte, Montana, April 14, 1941
"To L. C. Stevenson, Helena, Montana, as representative for parties agreeing to do development work henceforth on the Rogers Island Apex Structure areas in northeast Toole County, Montana. In consideration of $.1.00 good faith money received and of services to be rendered and conditional upon performance of the development work and other conditions herein stipulated to be done and met, and the further considerations to be received, as hereinafter provided, I/we, hereby confirm the existence of and declare in good standing now and grant continuance in force as per its term, for one year without rental execpt as herein otherwise provided, oil and gas lease dated 4th day of April, A. D., 1940, given by John G. Fey and Rosa J. Fey of Gold Butte, Montana, to John Reynolds of Great Falls, Montana, covering: lands in Toole County in Township 37, north of range two and three east of Montana Principal Meridian; and lands in north half of Township' 36, north of range two and three east Montana Principal Meridian, provided that unless an oil gas test well was commenced on a location on above described lands or on some other lands within the structure area mentioned in Township 37 north range two and three east of Montana principal Meridian as soon as the necessary leases can be put in order and in no event later than July 15, 1941, this agreement shall be of no force or effect; and, also unless such well when so commenced or another in the event of the loss of the first hole is thereafter prosecuted with reasonable diligence to completion to the Madison limestone formation or to commercial production at the lessor depth, this agreement shall at my/our option become null and void and of no effect as to waiver of any part of rentals, and I/we shall then be entitled to receive all such rentals in full or else to have said lease terminated upon written notice of default as above, unless within five days of written notice of default being served work be not resumed as herein called for; provided, further that if said test well is not located and drilled on my/our land herein referred to, then whenever said first structure test well is duly completed and put on production, lessee, his/its successors or assigns shall commence a test well upon my/our lands herein described on or before ninety days thereafter or resume payment of regular rentals until such test well is commenced on my/our lands; provided, also, that in any event the first structure test well, wherever located and drilled on the structure, is to be completed and (if said first test is not on my/our land) a test well commenced on my/our land herein described not later than one year from this date, or regular rental payments resumed at each and every regular rental date thereafter as provided in said lease until such test well on my/our land shall be commenced and drilled, or the lease terminated as provided herein; provided, also, that if the development operations and other conditions are performed and complied with in entire good faith, all as herein set out, then a one-year extension in the terms of said lease is hereby given; but not otherwise.
“[Signed] John G. Fey
“Rosa J. Fey”
“Witness: John Reynolds”
On June 24, 1941, another instrument was executed by John G. Fey, the A. A. Oil Corporation, L. C. Stevenson, president, and John Reynolds, as follows:
“Receipt for lease rentals and considerations. Receipt is hereby acknowledged from the A. A. Oil Corporation, for itself and John Reynolds, of lease rentals and considerations, accrued and to accrue to and including July 1st, 1942, on that certain oil and gas lease dated 4th day of April, A. D., 1940, given by John G. Fey and Eosa J. Fey, lessors, of Gold Butte, Montana, to John Eeynolds, lessee, of Great Falls, Montana covering all lands in Toole County in Township Thirty-Seven (37) north Eange Two (2) and Three (3) east of MPM; and all lands in north half of Township Thirty-six (36) north of Eange Two (2) and Three (3) east MPM; and in further consideration of said payment made and of services to be done by lessee and assigns, I/we stipulate the following amendments and provisions in said lease; which are agreed and assented to by lessee and assigns by signing this instrument. A. That the time of said lease shall be increased or extended to five years from and after July 1st, A. D., 1941, subject to compliance with its original and herein amended conditions; B. That the special written in clause with respect to lessee paying lessors’ taxes on said lands is hereby eliminated, and in lieu thereof the regular rental clause is amended to read: ‘Seventeen and one-half cents (17%f!) per acre’ as the semi-annual rental, instead of ‘Twelve and one-half cents (12%^) per acre,’ as originally made out; C. That in event any gas well drilled by lessee or assigns is not regarded by lessee as a commercial gas well and abandonment by lessee is contemplated, lessor may by paying lessee the reasonable value of casing and other equipment necessary to leaving and maintaining said well in good oil and gas field condition, have the use of production from same for his own purposes on said leased lands, but not for commercial sale on or off said lands; likewise, as to any substantial producing water well, land reservoirs for storing waters, drilled, built, repaired and maintained by lessee who also shall have right of use on or off said lands without charge; D. That in event lessor has occasion to charge that lessee or assigns may not be carrying out his or its obligations under intent of terms of lease and amendments thereof timely and in good faith for any reason lessor shall notify lessee in writing specifying the alleged breach and lessee shall have the full period of 45 days from and after date of service of such notice within which to remedy the existing breach, if the same be of such nature that it can be remedied within said period of time, and otherwise to commence action reasonably required and prosecute the same with diligence until such breach is fully cured; failing in which, and at the expiration of said 45 days, following service of such notice, in writing lease shall terminate at the option of the lessor; E. That it is understood and agreed that the commencement of operations for development of oil, and/or gas production upon said lands by lessee or assigns within the term of said lease and amendments thereof shall operate to extend same and lessee’s rights, privileges and interest as hereunder for and during such period of time as lessee or assigns shall prosecute such operations with reasonable diligence after the term expiration thereof, and in the event oil and/or gas in commercial quantities be discovered as a result thereof, this lease shall thereupon be and thereafter remain as fully in force and effect as though such discovery had been accomplished within the term hereof as herebefore stated; F. That it is agreed and understood that lessee shall be obligated to and have exclusive right to handle and sell all of the natural gas and/or oil produced, saved and not used for fuel in operation upon the lands covered hereby, and domestic purposes on said lands as provided in the lease, including royalty oil and gas; shall pay the royalty owner or owners in cash exchange, monthly, the reasonable market value of all royalty gas or oil produced and marketed during the next preceding calendar month, which at no time shall be fixed at any price or value proportionately less than lessee may receive for his/its share for crude oil or crude natural gas marketed from said lands, or proportionately less than the field price if any. In witness whereof we sign this the 24th day of June, 1941.”
The record also shows that on the same day, that is June 24, 1941, there was issued to John G. Fey a check drawn on the First National Bank & Trust Company, Helena, Montana, dated June 24, 1941, and payable to the order of John G. Fey, in the sum of $4,053. This check was signed by the A. A. Oil Corporation, Helena, Montana, L. C. Stevenson, President, and countersigned by E. O. Stevenson, Assistant Secretary-Treasurer. This check was endorsed payable to the order of Fiscal Agent, the A. A. Oil Company or Corporation and signed by John G. Fey. On the same day, that is June 24, 1941, John G. Fey of Gold Butte, Montana, made application and subscribed for 4,053 shares of stock in the A. A. Oil Corporation, which certificate of shares in said amount was issued by the A. A. Oil Corporation to John G. Fey by L. C. Stevenson, President, E. O. Stevenson, Assistant Secretary-Treasurer, on the 14th day of September, 1941. This certificate for the 4,053 shares of said stock was assigned on November 1, 1941, by John G. Fey to L. C. Stevenson of Helena, Montana.
It is defendants’ contention that the three amendments to the original lease became the lease and are to be considered together under R. C. M. 1947, section 13-708. See Lyon v. Dailey Copper M. & S. Co., 46 Mont. 108, 120, 126 Pac. 931.
The record shows that thereafter the defendant A. A. Oil Corporation and associates moved an oil and gas drilling rig and other materials onto the above described Fey land, established a camp, and started actual drilling of a well known as Fey No. 1 on September 21, 1941, and finished drilling July 31, 1942. The well was drilled to a depth of 1,550 feet. At the trial it was testified to and it is conceded by all parties that the gas flow as measured was between one million and one million five hundred thousand cubic feet per 24 hours, on an open flow basis, with rock pressure which varied from 215 pounds per square inch when well shut in and 173 pounds per square inch on test. The well has been capped and shut in since completed and no gas has been marketed therefrom.
The defendants then moved their rig to the other side of the structure on the lands owned by the Purcells and there started another well, which was lost, and another gas well, Purcell No. 2, was completed thereafter as a producing gas well. Thereafter the defendant, L. C. Stevenson, returned to the Fey leases and he and Mr. Fey decided on the location of another well on the Fey properties. However, when Stevenson checked the legal description of this location he found it was on other lands belonging to John Fey’s son. He then attempted to have John Fey accompany him in locating a well site for the second Fey well, but Mr. Fey did not go with him and Stevenson spotted a location. Stevenson then wrote to John Fey, explaining to Fey that he, Stevenson, had attempted to contact Fey in regard to the location of the second well, but had been unable to do so. That Stevenson had finally obtained casing and would be moving onto the Fey lands to do more drilling. Mr. John Fey did not testify that he did not receive this letter.
Stevenson had engaged a company to furnish equipment and transport the same with housing and other material at considerable expense, with which to establish a camp for drilling the second well on the Fey lands, and when they arrived at the gate leading into the Fey lands they were met by Mr. John Fey who forbade them entering upon his lands. Mr. Fey testified on redirect as to this matter as follows:
"Q. On October 23rd when you tallied with Mr. Stevenson at the time those building were brought up? A. Yes.
“Q. Did he make any statement there then as to where he intended to drill? Did he make any statement then? A. No. No. He wanted to locate a camp, naturally.
“Q. Well, I am only asking what he said. A. Well, he never told me anything about wanting to drill. It was October 23rd, and with the equipment that he had at that time, why he couldn’t have done much drilling. The 23rd of October and winter was practically on and these buildings needed a lot of repair to be livable.”
On recross-examination John Fey testified:
“Q. At that time did he tell you that he was moving, or was going to move the buildings on your land to establish a camp for a drilling program on the land? A. I don’t know. He wanted to bring the buildings in there. He never told me anything about it. He just wanted to bring the buildings on there. Never said anything about drilling, never had anything to drill with.
‘ ‘ Q. What did he tell you that he wanted to bring the buildings there for? A. I suppose to establish a camp.
“Q. And that would be incident to drilling wells? A. In our conversation we never got to that because I stopped him.
“Q. You didn’t give him a chance to tell you what he was moving the buildings on for, is that right? A. I think it is.
' ‘ Q. In other words, before he got to tell you what he wanted to do with the buildings then you told him to keep off the land, is that true? A. Yes, that is true.”
After Stevenson was prohibited from going upon the Fey property to continue drilling operations, he proceeded to the Purcell lease and drilled the Purcell No. 1-A and the Ida Murray No. 1 well, both of which are gas producers, then drilled the Murray-Johnson No. 1 well to a depth of 2,447 feet. This well is a non-producer. At the time of trial he was down 2,500 feet on the Gordon Christian No. 1 well.
On or about December 7, 1946, E. J. McCabe wrote Mr. John Fey, Gold Butte, Montana, informing him that the lessees under the lease had requested him to write in reference to the interference by the lessors in preventing the lessees from entering on the lands, stating that by such interference, “you have further delayed the present owners from exercising their rights under the said oil and gas lease.” The letter also requested that the writer be notified whether or not the said letter set forth substantially a true statement of the facts of the refusal of the owners to allow lessees to enter upon the lands for further developments, and to please notify the writer whether or not lessees will be prevented entrance on said lands to drill for gas and oil. The letter ended by stating: “That it is the sincere hope of the present owners of said oil and gas lease that there has been a mistake as it is their desire to fully comply with all requirements of said oil and gas lease and that the attempts in the future by their representatives to enter upon your lands for the purpose of drilling oil and gas wells thereon will not be interfered with or prevented by you or your authorized agents or employees. ’ ’ No reply was received to this letter.
The record shows that shortly after Stevenson determined to drill the structure, and up to the time of trial, he had contacted the officers of the different pipe line companies operating in the area, among them being B. B. Coolidge of the Treasure State Pipe Line Co., the Northwest Natural Gas Co., and the Montana-Dakota Utilities Co. They all refused to build in at that time, as the material for building a pipe line, especially piping, was allocated and unobtainable except in certain cases; labor was scarce and hard to obtain. As soon as conditions changed they “would be glad to talk business.”
On or about May 8, 1948, plaintiffs served defendants with “Notice of Breach of Lease,” setting forth therein a full description of all the lands described in plaintiffs’ complaint herein. Said breach of the terms of said lease, as amended, consists of the following:
1. Failure of the lessee, his successors and assigns to drill an exploratory well to the usual oil producing stratum in the area where the land covered by said lease is situated;
2. The failure of the lessee, his successors and assigns to drill additional wells after the completion of the alleged well No. 1 in the SW/^ SW^ of Section 22, Township 37 North, Range 2 East;
3. Failure of the lessee, his successors and assigns to diligently and properly operate the alleged well No. 1, and failure of the said lessee, his successors and assigns to produce any oil or gas from said well;
4. Failure to market any oil or gas from said well;
5. Failure to pay or tender to the lessors or to the lessors’ credit the delay rentals specified in said lease for the privilege of deferring further drilling.
June 15, 1948, a letter by B. J. McCabe was written to Mr. John G. Fey, Gold Butte, Montana, and the same letter to Mrs. Rosa J. Fey, Gold Butte, Montana, in which each was informed that: “It is the claim of lessees that the oil and gas lease mentioned and described in said ‘Notice of Breach of Lease’ has been fully performed in all particulars and respects to date, and that all requisites to date to be performed by the lessees under said lease have been fully performed.” The letter recites again that on or about September 17, 1946, Mr. Stevenson on behalf of his principals, “wrote you a letter, calling your attention to the fact that he had theretofore been to your place-for the purpose of obtaining your help in exact location of a gas well, that he missed you each time, that he had been able-to buy casing and had other casing on order from National Supply Company; that he would try to see you at an early date-to fix exact location for well. That Stevenson had notified you several times of his intention to move additional buildings and equipment onto the leased lands to carry out a well drilling program thereon; that you stopped them at the gate onto his-property. You notified him not to attempt entering any part, of your lands.”
The letter continues: “The persons I represent desire to be informed whether it is your intention to continue to prevent them from entering upon the lands in the future for the purpose of continuing on their part the performance of the terms' and provisions of aforesaid oil and gas lease. I shall appreciate if you will have your attorney notify me of what your intention is in this respect.
1 ‘ It has been and now is the earnest desire of my clients at all times to fully comply with the terms of said oil and gas lease.”
These letters were sent by registered mail; no answer was received thereto.
On or about August 4, 1948, a “Notice of Forfeiture and Demand for Release” signed John G. Fey by Louis P. Donovan, his attorney, and Rosa J. Fey by Louis P. Donovan, her attorney, to the defendants was received by them, in which notice the lands affected are set forth and described as in the plaintiffs’ complaint herein, it is declared that John Fey, also known as John G. Fey, and Rosa J. Fey, his wife, are the owners of the land described and that they “have declared and hereby do declare forfeited and terminated that certain oil and gas lease made and given by John G. Fey and Rosa J. Fey, his wife, as lessors, to John Reynolds, as lessee, dated the. 4th day of April, 1940, and the alleged amendments thereof being dated June 24, 1941. Said oil and gas lease being of record in the office of the County Clerk and Recorder of Toole County, Montana, in Book 18 of Oil and Gas Leases, at page 453 thereof, and the amendment or alleged amendment to said lease is recorded in the office of the County Clerk and Recorder of Toole County, Montana, in Book 18 of Oil and Gas Leases, at page 455 thereof.” The notice then demanded of defendants that they release of record the said oil and gas lease and surrender possession of the leased premises to John G. Fey and Rosa J. Fey, and then set forth the grounds of forfeiture.
September 7, 1948, plaintiffs filed their quiet title action against defendants.
Finally on October 17, 1950, a contract was signed by the A. A. Oil Corporation as vendor and the Montana-Dakota Utilities Company as party of the second part, whereby the utilities •company agreed to build into and take all commercial gas produced by the A. A. Oil Corporation on the lands herein described, which contract was filed by defendants as a part of the record for a rehearing with the affidavit of L. C. Stevenson, President of the A. A. Oil Corporation, in which affidavit lie states that as of August 1951, the said utility has now built its pipe line into the structure and is purchasing the available gas from the A. A. Oil Corporation in accordance with its contract, and has paid the A. A. Oil Corporation and the landowners, upon whose lands natural gas producing wells are located, and that the only producing gas well controlled by the A. A. Oil Corporation, under oil and gas leases from which no gas was taken by said utility company is the Fey No. 1 well, and the utility company is ready, willing and able to extend its pipe line to and purchase natural gas from said Fey No. 1 well, and from other natural gas wells which may be drilled by the said A. A. Oil Corporation, or its successors or assigns, upon the lands of the plaintiffs described in their complaint; that the A. A. Oil Corporation has at all times been ready and willing and able to drill to completion additional wells for the production of natural gas and oil upon the plaintiffs’ lands in accordance with the terms of the oil and gas lease and amendments and modification thereto.
Plaintiffs contend that defendant should have marketed the gas from the Fey No. 1 well; that defendants should have drilled further wells and that defendants should have drilled to deeper depths and tested for oil, and that defendants not having fulfilled the foregoing implied covenants of the lease, the lease should be forfeited or cancelled.
While it is true that oil and gas leases in cases of ambiguity or uncertainty are generally construed in favor of the lessor and against the lessee and that it is the policy of the law to favor the forfeiture of oil and gas leases in order to prevent lands being burdened by profitless and unworked leases, see Abell v. Bishop, 86 Mont. 478, 284 Pac. 525; McNamar Realty Co. v. Sunburst Oil & Gas Co., 76 Mont. 332, 247 Pac. 166; Bowes v. Republic Oil Co., 78 Mont. 134, 252 Pac. 800, still “One who seeks to enforce a forfeiture must himself be free from blame.” 37 C. J. S., Forfeitures, section 5 a. page 11. The rule is clear that the lessor who intends to claim forfeiture, where development is an element, has the duty to demand that development proceed or commence. 58 C. J. S., Mines and Minerals, section 205, page 502; Storm v. Barbara Oil Co., 177 Kan. 589, 282 Pac. (2d) 417; Spikes v. Weller, 159 Kan. 597, 156 Pac. (2d) 540. There is no written notice of lack of development nor any notice to proceed therewith in this record until the notice of breach of lease of May 8, 1948. Yet on May 8, 1948, nor at any other time subsequent to October 23, 1946, nor at any other time has plaintiff or either of them ever notified defendants or either of them that defendants would be permitted to enter upon plaintiffs lands to continue drilling for oil or gas, or at all. Neither of plaintiffs have at any time notified defendants or either of them that plaintiffs had rescinded the order of October 23, 1946, given to defendants by plaintiffs “to keep off their land.” Mr. John Fey’s testimony at the trial is self-explanatory on that point. See Williston on Contracts, section 1334, page 3748; Restatement of the Law of Contracts, section 320, page 482.
The record is replete with the efforts of defendants to get an explanation from plaintiffs as to why plaintiffs refused permission to defendants to go upon their lands to continue drilling and other operations of the lease and whether plaintiffs would permit defendants to do so; that defendants continually endeavored to obtain oil and gas drilling equipment and to interest a pipe line company to build into the structure and buy the gas. The plaintiffs may not complain that defendant A. A. Oil Corporation did not drill more wells when plaintiffs refused to allow defendants entrance to their lands to drill more wells. “No one can take advantage of his own wrong.” R. C. M. 1947, section 49-109. Where a lessee, as in this case, was ready, able and willing to drill further wells and develop the lessor’s property, an attack upon the lessee’s title by lessors will relieve the lessee of the duty either to proceed with the drilling operations or the payment of the delay rentals specified during the contest of his title. See Twyford v. Whitchurch, 10 Cir., 132 F. (2d) 819, and cases cited. Compare Hudson v. Lyons, 199 Okl. 348, 186 Pac. (2d) 309, which is a case of somewhat similar facts, where lessors interfered with lessees moving equipment upon the leased premises. The court held: Where lessors of oil and gas lands have brought suit against the lessee for cancellation of the lease, they are not in a position to complain of the inactivity of the lessee during pendency of such suit. Steven v. Potlatch Oil & Refining Co., 80 Mont. 239, 257, 260 Pac. 119; Brooks v. Arkansas-Louisiana Pipe Line Co., 8 Cir., 77 F. (2d) 965, 970; Elsey v. Wagner, 199 Okl. 449, 183 Pac. (2d) 829; Hudspeth v. Schmelzer, 182 Okl. 416, 77 Pac. (2d) 1123; Spikes v. Weller, 159 Kan. 597, 156 Pac. (2d) 540. Lessor’s repudiation if not withdrawn is a continuing legal excuse for lessee’s refusal to perform. Williston on Contracts, section 1334, page 3748; Restatement of the Law of Contracts, section 320, page 482; Merrill, Covenants Implied in Oil and Gas Leases, (2d) Ed., section 70, page 177; Alphonzo E. Bell Corp. v. Listle, 74 Cal. App. (2d) 638, 169 Pac. (2d) 462.
Here the application of the equitable maxim should be applied, that he who comes into equity must come with clean hands, and the concept that he who seeks redress for the violation of such a contract resting upon mutual and dependent covenants must himself have performed his part of its obligations.
The lessee did not expressly agree in the lease to build a pipeline to market the gas, and no authority has been found under the facts in this case and the terms of this lease wherein an implied covenant has been held or enforced. Summers, Oil & Gas, Perm. Ed., vol. 2, section 415, page 382, states: “But whether this duty to market be expressed in general terms or implied, the performance thereof must be tested by what amounts to reasonable diligence under all the facts and circumstances of the particular situation. In some of the decisions it is said that the diligence of the lessee is to be measured by what a reasonably prudent operator would have done under the circumstances, having in mind his own interest as well as that of the lessor.”
The very nature of this wildcat field and the cost of piping the gas to the nearest point of delivery for sale, rendered such a project prohibitive, even if the necessary piping and labor could have been obtained.
Courts of equity are not bound by cast-iron rules. The rules by which they are goverened are flexible and adapt themselves to the exigencies of the particular case. Relief will be granted when, in view of all the circumstances, to deny it would permit one of the parties to suffer a gross wrong at the hands of the other party who brought about the condition. See Parchen v. Chessman, 49 Mont. 326, 142 Pac. 631, 146 Pac. 469.
There is no element of fraud in this case. Courts must interpret contracts as made by the parties, not make new ones for them, no matter how unreasonable the terms may ap pear after they have been consummated; merely because the plaintiffs may have reason to regret their bargain, or that they can now make a better bargain, affords them no ground to avoid the obligation assumed. See McConnell v. Blackley, 66 Mont. 510, 515, 214 Pac. 64.
It is conceded that the defendants brought in a gas well capable of producing gas in marketable quantities and, as plaintiff John Fey testified, was a producing gas well. To say that they shall be declared in default and shall forfeit their lease if they do not market the product, when there is at the time no profitable market, would be contrary to equitable principles and to any express terms of the lease. It would amount to saying, the defendants have drilled a producing well which furnishes gas in marketable quantities, but as there is no market the well is not producing. The contract is not reasonably susceptible to any such intrepretation. “The lessors will not be heard to complain of their own folly, if folly it was, in granting such a lease. ’ ’ Steven v. Potlatch Oil & Ref. Co., supra [80 Mont. 239, 260 Pac. 123].
The plaintiffs may not in equity insist upon the performance of the terms of the lease and at the same time prevent the performance thereof. One who prevents the performance of the terms of a contract cannot avail himself of the non-performance which he himself prevents. See Smith v. Gunniss, 115 Mont. 362, 144 Pac. (2d) 186; 12 Am. Jur., Contracts, section 329, page 885; Stevens v. Potlatch Oil & Ref. Co., supra; Merrill, Covenants Implied in Oil & Gas Leases, Effect of Prevention by Lessor, section 21, page 67.
"Whether due diligence has been exercised depends upon the facts and circumstances of each case. The question here is whether or not the lessees under the facts and circumstances exercised due diligence to operate the lease. Keeping in mind that this was a wholly wildcat field, war conditions prevailing with all casing and materials under government control, with labor almost impossible to obtain, the lessors had much to gain at no cost and little to lose in granting the lease. The lessees were entering upon an uncertain, expensive and speculative venture, which might result in heavy loss. All of the,land of the lessors had to be explored, hence the five-year term and as long thereafter as gas or oil or either of them was produced. Yet a gas well was completed of about 1,500,000 cubic feet per 24 hours of production within the time; other wells were drilled on the structure to obtain sufficient gas to attract a pipe line and market, all at considerable expense of over $100,000 to the lessees, and strenuous efforts were being made at all times to obtain enough gas on the structure and the group of leases held by lessees.
The positive testimony of Mr. Stevenson was not controverted that from the time he started development of this wildcat structure until the trial he had talked with officials of the Treasure State Pipe Line Co., Mr. E. B. Coolidge, the Northwest Natural Gas Co., the Montana Power Co., and the Montana-Dakota Utilities Co. Mr. E. J. McCabe testified of his different trips to Minneapolis to contact and interest the Montana-Dakota Utilities Co. and others in building a pipe line to the structure and lands defendants had under lease. All this negotiation finally culminated in the signing of a contract, dated October 17, 1950, by the Montana-Dakota Utilities Co. with the A. A. Oil Corporation, above referred to. The record is replete with the efforts of defendants to procure a pipe line company that would take the gas at a profit to lessors and lessees. When at last a market was obtained for the gas, the lessees only find that the plaintiffs have attempted to withdraw their lands. This does not square with the equitable principles involved.
The paramount duty of the court is to ascertain the intent of the parties at the time the contract was entered into and to give effect thereto consistent with legal and equitable principles.
The acts of the parties showing that each has by acquiescence or otherwise placed the same construction and understanding thereon, should be given weight, as they at the time or times are assumed to know best the terms and tenor of the contract. The record here shows that with the discovery of gas on other lands of the structure and the block of leases of lessees showing a sufficient volume, a contract was signed with a pipe line company, all of which was beneficial to the plaintiffs. The lessees under their lease were not bound to produce both oil and gas; they were required to produce either oil or gas; this they did by bringing in a producing gas well in time. The record does not show that the defendants ever refused to drill a test well for oil to the oil horizon in that field, but the record does show reasonable diligence by defendants to test the structure for gas, which has been done. The test for oil was not permitted by plaintiffs.
While there was considerable delay in the completion of Fey No. 1 well, and in the subsequent unsuccessful attempt to drill the second well on the Fey lands by the Feys’ refusal to allow defendants entrance to drill, the further circumstances of the inability of defendants to obtain materials for the drilling were not controverted. During those war years all operators were restricted by the government’s strict allocation of iron and steel products. The lessees proceeded to develop the properties under all the circumstances with reasonable diligence and in accordance with what a reasonably prudent operator would have done.
In considering an appeal in an equity case, this court has the duty under E. C. M. 1947, section 93-216, of reviewing the evidence and of determining if such justifies the findings, conclusions and judgment of the trial court and under the facts and circumstances of a particular case to determine where the equities and the preponderance of the evidence lie. That is particularly true here where there is little if any conflict in the evidence. This being an equity case, and no cause appearing why a new trial or the taking of further evidence should be ordered, it is our duty to finally determine the same. Compare Rooney v. Ford, 127 Mont. 92, 256 Pac. (2d) 1090, and cases therein cited; Prewitt v. Prewitt, 127 Mont. 407, 265 Pac. (2d) 198.
The amendment and modification of June 24, 1941, provided that: “Receipt is hereby acknowledged from the A. A. Oil Corporation for itself and John Reynolds, of lease rentals and considerations accrued and to accrue to and including July 1, 1942, on that certain oil and gas lease dated fourth day of April A. D. 1940, given by John G. Fey and Rosa J. Fey, lessors of Gold Butte, Montana to John Reynolds lessee of Great Falls, Montana * * * and in further consideration of said payment made and of development and services to be done by lessee and assigns, I (we) stipulate the following amendments and provisions in said lease: * * *
“ (a) That the term of said lease shall be increased or extended to five years from and after July 1st, A. D., 1941, subject to compliance with its original and herein amended conditions.” See full text of agreement above.
Since defendants brought in a producing commercial gas well within the time provided, Steven v. Potlatch Oil & Ref. Co., supra, the lease was validated in its entirety and was valid on the date this action was instituted.
The evidence supports the lower court’s findings that at all time in the complaint mentioned the plaintiff John Fey was the owner in fee simple of the real property described in paragraph IV of plaintiffs’ complaint; and the plaintiff Rosa J. Fey was at all times mentioned the owner in fee simple of the tracts of land described in paragraph V of plaintiffs’ complaint herein; and the plaintiffs, John Fey and Rosa J. Fey, were at all of said times the owners in fee simple, as tenants in common, of the lands described in paragraph VI of plaintiffs’ complaint herein, subject however, to the rights of the defendants under the terms of that certain oil and gas lease, a copy of which is attached to the answer of defendants, the A. A. Oil Corporation and L. C. Stevenson, Sweet Grass Arch Apex Syndicate, and the finding that the said oil and gas lease, dated April 4, 1940, was still valid and in force and effect as to the southwest quarter of the southwest quarter of section twenty- two, township thirty-seven north, range two east, M.P.M., in Toole County, Montana.
The evidence preponderates against the court’s finding that the said oil and gas lease of April 4, 1940 should be forfeited, cancelled and annulled as to all of the lands of the plaintiffs except the last above described forty acres, and the finding and conclusion that defendants have no right, title or interest in the plaintiffs’ lands, other than said forty acres.
The court made no finding and apparently did not take into consideration the written amendments and modifications of said lease of April 4, 1940, which were executed on the 14th day of April 1941, and on June 24, 1941. The first two of these instruments or amendments were executed by John G. Fey and Rosa J. Fey, the third amendment of June 24, 1941, was signed by John G. Fey, and in her reply to defendants’ answer the plaintiff Rosa J. Fey admitted the execution of this third amendment of June 24, 1941, and thereby adopted and ratified it as her act. This was no longer a controverted question in the ease. The rule is that parties are bound by and estopped to controvert admissions in their pleadings. Compare Weatherman v. Reid, 62 Mont. 522, 524, 525, 205 Pac. 251; Frank v. Symons, 35 Mont. 56, 63, 64, 88 Pac. 561.
We conclude that the said lease made, executed and delivered by John Fey and Rosa J. Fey, dated April 4, 1940, and the. amendments thereof dated April 14, 1941, and June 24, 1941, covering 9,265 acres of land in Toole County, Montana, being particularly described in plaintiffs’ complaint filed herein is now and has been since the 7th day of September 1948, a valid, subsisting and enforceable lease; that defendants be put into possession of said premises under the terms of said lease and amendments; that the period of time from the 7th day of September 1948, being the date of the filing of the complaint herein, until the final determination of this cause, shall not be counted against defendants in determining their rights under the said lease and the amendments thereof.
For the reasons stated the findings of the trial court which are in conflict with this opinion are ordered vacated. The judgment is reversed and the cause remanded with directions to enter judgment herein in favor of defendants in conformity with the views herewith expressed.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES ANGSTMAN and ANDERSON, concur.
MR. JUSTICE DAVIS, not participating.
|
[
47,
45,
2,
8,
41,
-9,
18,
-68,
-17,
-30,
24,
-74,
-21,
0,
32,
0,
-18,
-3,
57,
-20,
6,
-72,
-10,
44,
67,
-23,
16,
-1,
4,
-26,
-11,
-4,
-35,
-20,
16,
10,
-23,
7,
-52,
-4,
-1,
58,
11,
0,
-15,
-8,
-28,
-37,
58,
-25,
18,
2,
45,
25,
-53,
-52,
27,
26,
-37,
26,
-9,
3,
-2,
39,
62,
33,
12,
-35,
-17,
40,
-23,
10,
28,
5,
0,
-12,
25,
-20,
16,
0,
-32,
78,
29,
37,
-25,
12,
-34,
0,
14,
30,
-60,
-11,
-10,
14,
-6,
24,
-21,
-49,
-10,
18,
26,
-28,
8,
19,
-27,
46,
-15,
3,
16,
45,
-79,
20,
26,
27,
-22,
-36,
-7,
-8,
-25,
7,
-60,
11,
24,
-19,
-38,
-7,
-27,
36,
-29,
30,
-46,
4,
48,
21,
-24,
-8,
46,
-52,
-30,
-26,
14,
-43,
-20,
6,
34,
26,
44,
-35,
-10,
7,
-17,
24,
36,
61,
21,
-39,
32,
-15,
49,
-34,
43,
-17,
18,
0,
17,
-12,
31,
-5,
9,
42,
19,
-8,
-45,
7,
10,
-4,
13,
-2,
-26,
-17,
-17,
12,
-52,
5,
31,
23,
37,
11,
-39,
4,
4,
-30,
48,
-13,
-72,
-47,
8,
11,
28,
1,
50,
-3,
-10,
-15,
33,
38,
39,
30,
69,
10,
-19,
-23,
6,
-4,
-57,
34,
-7,
-13,
57,
-40,
19,
-32,
-35,
10,
36,
12,
53,
-18,
-13,
-58,
-24,
-48,
37,
8,
-18,
-21,
-46,
-34,
-7,
-28,
-14,
-10,
-1,
10,
-24,
-4,
9,
-15,
-8,
78,
-21,
-7,
-15,
60,
-23,
-21,
-24,
-57,
3,
-35,
12,
-24,
-13,
16,
-16,
10,
-46,
-27,
6,
-9,
-16,
-23,
-7,
19,
-45,
-54,
20,
-91,
9,
-14,
32,
13,
-20,
0,
5,
23,
-2,
47,
-43,
-9,
-38,
25,
0,
-46,
65,
-21,
38,
-35,
3,
-11,
-25,
22,
-15,
8,
-29,
61,
-14,
-23,
15,
-2,
32,
18,
12,
-35,
-13,
-33,
12,
12,
8,
-84,
24,
7,
-17,
27,
45,
38,
55,
1,
30,
66,
24,
-31,
-11,
20,
-48,
-29,
-6,
-9,
11,
48,
6,
5,
-3,
-20,
41,
33,
52,
13,
0,
-16,
-33,
-15,
-2,
5,
-35,
-16,
38,
-29,
-40,
23,
19,
-64,
20,
-3,
-20,
-12,
-48,
-25,
-7,
37,
-34,
29,
20,
1,
63,
20,
-13,
-1,
3,
-7,
41,
0,
45,
22,
19,
4,
31,
-12,
-24,
-12,
-45,
17,
-30,
53,
7,
-21,
-33,
-15,
-32,
0,
29,
16,
-22,
-2,
-20,
-90,
4,
15,
48,
-65,
36,
-42,
14,
15,
-13,
10,
-39,
11,
19,
44,
37,
-17,
-37,
-50,
18,
-12,
60,
-18,
-7,
0,
-59,
111,
-58,
18,
38,
44,
-41,
6,
0,
29,
13,
52,
29,
-27,
-14,
-62,
10,
-7,
14,
61,
1,
15,
37,
0,
-80,
0,
65,
37,
7,
2,
25,
44,
28,
-57,
-15,
6,
32,
8,
-51,
56,
20,
69,
-7,
-39,
31,
41,
14,
-12,
-9,
-73,
2,
-17,
-80,
15,
23,
4,
18,
51,
42,
22,
-3,
16,
-9,
-28,
0,
-47,
-20,
-8,
16,
-32,
6,
-82,
41,
5,
18,
42,
10,
-42,
-24,
46,
66,
-23,
14,
23,
31,
37,
17,
35,
21,
40,
-29,
-6,
16,
-16,
30,
-79,
42,
-21,
44,
-63,
-79,
-24,
-35,
-21,
45,
-5,
11,
30,
-69,
-8,
7,
-34,
13,
12,
-78,
19,
50,
-21,
-5,
-19,
3,
7,
-12,
-14,
12,
-26,
-23,
-9,
-11,
-4,
-15,
29,
-46,
-44,
22,
13,
-23,
-6,
44,
15,
7,
59,
63,
-5,
19,
-12,
-48,
-29,
-50,
47,
-46,
-2,
-3,
-34,
-47,
25,
-4,
20,
-22,
-14,
-78,
-30,
0,
6,
1,
13,
-24,
-22,
-21,
10,
-82,
11,
-16,
-27,
-50,
39,
8,
7,
1,
37,
-10,
43,
4,
-13,
22,
-3,
29,
-50,
54,
-44,
71,
4,
15,
1,
47,
2,
-14,
9,
-33,
56,
-20,
-47,
-45,
35,
56,
-49,
-1,
43,
-23,
6,
38,
-68,
-9,
-37,
5,
-31,
12,
-41,
18,
-9,
-2,
0,
-14,
-31,
-22,
57,
2,
-4,
-17,
4,
11,
-10,
0,
13,
-29,
-55,
32,
2,
55,
7,
10,
8,
-10,
-2,
39,
14,
31,
-5,
0,
59,
0,
-45,
26,
26,
39,
44,
-18,
14,
-11,
-18,
-25,
44,
5,
42,
-33,
-35,
28,
-15,
12,
0,
27,
1,
17,
60,
-6,
28,
20,
-22,
3,
9,
44,
-56,
26,
30,
5,
-24,
20,
10,
-19,
-44,
-19,
-30,
-52,
13,
-32,
62,
-7,
4,
-4,
20,
-1,
40,
-3,
38,
-55,
16,
-19,
-69,
-19,
-2,
18,
0,
11,
3,
-34,
-7,
23,
0,
-9,
3,
-33,
20,
-16,
58,
10,
-48,
-20,
26,
-25,
-26,
50,
-8,
-7,
-20,
-21,
-20,
-26,
-48,
-40,
-7,
-7,
29,
-38,
-9,
44,
-15,
-35,
39,
17,
28,
7,
-10,
-17,
14,
-17,
-16,
36,
8,
26,
36,
-18,
-5,
57,
-84,
-77,
-7,
-31,
3,
-46,
-66,
4,
25,
-9,
34,
22,
-65,
17,
9,
-10,
-1,
-45,
-20,
78,
-40,
-22,
8,
-88,
-27,
1,
4,
-10,
-11,
18,
42,
5,
1,
6,
-17,
-1,
40,
53,
-39,
1,
28,
-5,
0,
40,
-14,
0,
-13,
-31,
-9,
-78,
-10,
32,
-21,
-16,
36,
1,
0,
1,
13,
-9,
68,
-29,
-28,
-8,
-12,
-21,
50,
29,
-51,
-24,
25,
-18,
-19,
35,
-5,
-28,
39,
-8,
6,
19,
40,
7,
0,
16,
-25,
43,
-27,
-76,
30,
-45,
9,
-8,
-9,
30,
-24,
0,
37,
1,
-39,
-58,
-29,
-57,
18,
54,
-54,
9,
10,
-41,
-17,
7,
26,
-3,
-13,
-24,
19,
-3,
-6,
-27,
-61,
35,
-7,
-22,
43,
-15,
15,
-27,
47,
38,
-7,
-28,
68,
-4,
28,
-38,
33,
72,
71,
-23,
-20,
8,
-51,
37,
40,
-20,
-1,
4,
-28,
8,
3,
43,
5,
-29,
16,
7,
-52,
-40,
25,
23,
36,
-12,
81,
-7,
-3,
-11,
14,
64,
-52,
-11,
32,
18,
-8,
9,
-50,
-40,
76,
20,
-22,
-27,
-14,
62,
31,
24,
37,
-1,
-6,
55,
-21,
-12,
-22,
-58,
17,
8,
-38,
-55,
-12,
1,
50,
1,
-20,
25,
13,
47,
76,
-20,
39,
32,
-76,
10,
-7,
-30,
0,
-28,
39,
1,
-26,
59,
20,
-34,
-76,
2,
-23,
-25,
11,
49,
-12,
-13,
12,
-86,
-35,
-21,
6
] |
MR. JUSTICE ANG-STMAN:
Relator has applied for a writ of habeas corpus. He is an inmate of the state prison where he is serving a life sentence imposed upon him by the district court of Silver Bow County on June 22, 1938, for the crime of murder of which he was duly convicted upon his plea of guilty.
On September 17, 1945, an information was filed against relator in the district court of Powell County, charging him with the crime of escape from the state prison on June 26, 1945. To this charge he also entered a plea of guilty and the court attempted to impose a penalty of one year imprisonment in the state prison to commence at the end of the sentence imposed for the crime of murder.
He alleges in his petition here that his imprisonment is illegal and unlawful in that the commitment for one year for escape is contrary to R.C.M. 1947, section 94-4203, which has to do with an escapee who was sentenced for a term less than for life and not to one committed for life, and that the district court of Powell County subsequently in habeas corpus proceedings found the commitment of one year for escape to be illegal.
He likewise contends that his confinement is illegal because of section 12 of Chapter 153, Laws of 1955, which in part provides: “No convict, serving a life sentence, shall be paroled until he shall have served twenty-five (25) years, less the good time allowances off, as provided in section 80-740.” Section 80-740 was amended and sections 80-739 and 80-741 were repealed by Chapter 117, Laws of 1955. Section 80-739 granted certain definite periods of good time to any convict who shall well behave himself. But section 80-741 provided that “The name of no convict who attempts to escape must be sent to the board for the commutation herein provided.”
But, as before stated, section 80-741 was repealed by Chapter 117, Laws of 1955, and section 80-740 was amended so as to place in the board of prison commissioners discretion regarding the amount of good time that may be allowed, subject to a maximum of 10 days per month, and then contains this clause, “provided, that an attempted escape by the convict, or such violation of the rules and regulations so prescribed, as in the judgment of said board should be punished by forfeiture of such extra good time, shall operate as forfeiture of all extra good time as may have been allowed by said board of prison commissioners, now authorized in this act.” We do not agree that relator’s restraint and imprisonment are illegal. In so holding we, like the district court, do not attach any importance to the one-year commitment attempted to be imposed for the crime of escape. There is no question here of the fact that relator did escape and that he was and is guilty of that crime. Hence under section 80-740, as amended by Chapter 117, Laws of 1955, the board was warranted in forfeiting all good time allowed by it to relator.
Then again under section 12 of Chapter 153 the board has. wide discretionary powers as to how much good time, if any, may be allowed to any prisoner, and the courts ought not to interfere with that discretion. Until the board acts in allowing sufficient good time to entitle the convict to be released, the warden must hold the prisoner. Stephens v. Conley, 48 Mont. 352, 366, 138 Pac. 189, Ann. Cas. 1915D, 958 State ex rel. Fuhrman v. District Court, 125 Mont. 330, 238; Pac. (2d) 904.
The record here does not show that relator’s restraint is illegal, hence his petition is denied and the proceeding dismissed..
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES. ANDERSON, and DAVIS, concur.
MR. JUSTICE BOTTOMLY, dissents.
|
[
65,
33,
-53,
64,
0,
-63,
-15,
-19,
-50,
33,
39,
5,
-36,
-40,
8,
9,
-1,
20,
-24,
38,
-15,
-5,
23,
46,
26,
-2,
12,
18,
-46,
42,
51,
-5,
-2,
-81,
48,
-8,
35,
-64,
71,
41,
-42,
1,
22,
-5,
-41,
30,
11,
58,
34,
-47,
17,
6,
27,
57,
17,
51,
-22,
-21,
-52,
60,
25,
-13,
-28,
-30,
6,
0,
51,
24,
-14,
-1,
74,
-44,
-5,
6,
-6,
20,
13,
-17,
46,
28,
-44,
60,
-52,
-49,
1,
0,
-37,
-58,
28,
-13,
-2,
26,
3,
-14,
-2,
-33,
-75,
-3,
13,
-36,
-26,
-47,
-44,
26,
41,
4,
-44,
9,
33,
32,
-48,
48,
8,
16,
-8,
-72,
-70,
-51,
7,
6,
-7,
-38,
47,
9,
15,
-47,
11,
-7,
61,
-21,
-25,
41,
63,
-6,
-70,
30,
-3,
47,
45,
-17,
-104,
-8,
48,
6,
31,
31,
46,
-2,
30,
38,
-22,
29,
16,
60,
12,
-28,
-6,
16,
-76,
42,
28,
16,
-4,
39,
32,
-10,
-41,
-33,
-3,
-36,
-29,
8,
-2,
93,
-1,
5,
-17,
54,
47,
34,
-21,
48,
-39,
14,
8,
-36,
-9,
7,
-18,
-12,
0,
13,
15,
9,
57,
-10,
-53,
-12,
17,
15,
-37,
25,
13,
76,
15,
-42,
-5,
28,
54,
-17,
-57,
-90,
0,
-1,
-55,
-12,
-39,
20,
3,
22,
-59,
-27,
23,
5,
57,
-25,
54,
38,
40,
-19,
40,
-22,
-1,
6,
-11,
-32,
8,
23,
14,
63,
-17,
-22,
18,
0,
47,
-1,
-15,
-17,
-39,
-7,
-15,
-5,
0,
30,
-73,
22,
34,
-13,
-34,
-29,
0,
-39,
33,
20,
-39,
-7,
-67,
-33,
-13,
3,
21,
-11,
25,
-12,
0,
0,
5,
33,
37,
-27,
26,
15,
36,
-11,
0,
-33,
15,
-8,
-10,
-32,
14,
-24,
25,
-23,
17,
-7,
54,
-3,
-5,
40,
-5,
-2,
-67,
-27,
0,
-15,
56,
-17,
25,
21,
37,
-10,
10,
14,
-50,
-13,
30,
29,
33,
-27,
-20,
36,
17,
3,
42,
13,
34,
49,
17,
36,
0,
-76,
-67,
-16,
7,
32,
-62,
31,
11,
33,
24,
-20,
-29,
9,
0,
21,
17,
45,
-53,
-30,
-11,
-13,
-23,
-5,
-15,
-25,
-63,
-21,
41,
-21,
62,
-46,
-14,
-46,
2,
-26,
6,
-7,
28,
12,
55,
-19,
16,
-20,
51,
46,
7,
-24,
-37,
-9,
-2,
36,
0,
23,
24,
-10,
-24,
-57,
13,
5,
-58,
14,
-50,
-77,
-2,
10,
27,
-5,
23,
-72,
-20,
-5,
36,
12,
26,
-20,
-86,
102,
-11,
1,
6,
40,
26,
39,
24,
-49,
-47,
-34,
-1,
-54,
22,
-13,
69,
-9,
-12,
27,
-21,
-22,
-26,
1,
47,
-14,
-32,
38,
-8,
-13,
-35,
11,
39,
-16,
-23,
-25,
56,
-18,
-2,
4,
-33,
-60,
37,
-16,
-49,
17,
-30,
-41,
-55,
56,
34,
88,
-12,
-16,
-11,
2,
6,
38,
7,
-40,
-35,
-29,
-17,
46,
20,
24,
-16,
48,
-3,
-43,
-5,
26,
39,
-17,
-55,
-60,
-50,
18,
-1,
-9,
2,
-11,
-5,
16,
7,
-29,
24,
32,
0,
1,
8,
-1,
48,
10,
-69,
-3,
-29,
0,
37,
55,
23,
-36,
55,
0,
39,
-2,
-26,
19,
16,
-31,
44,
-49,
-14,
23,
-9,
-17,
51,
-21,
-13,
8,
-3,
4,
-45,
-8,
4,
-96,
-63,
-30,
0,
-4,
10,
-21,
-48,
-48,
36,
3,
28,
21,
-29,
12,
9,
10,
-3,
18,
-22,
23,
-5,
13,
11,
-7,
4,
3,
-26,
-31,
56,
25,
-5,
15,
-59,
41,
-27,
11,
-9,
14,
47,
-25,
7,
36,
-6,
-3,
-31,
-23,
42,
58,
64,
54,
-39,
5,
-11,
-8,
-6,
19,
28,
24,
-23,
23,
-22,
-17,
2,
35,
-28,
-25,
10,
30,
-12,
42,
26,
38,
57,
-25,
21,
-57,
4,
3,
-12,
1,
-39,
37,
-8,
26,
38,
-38,
-46,
30,
48,
-63,
22,
17,
-50,
-68,
-36,
-49,
-30,
-4,
-29,
10,
-5,
0,
0,
-30,
9,
66,
13,
-2,
-3,
19,
23,
-49,
-33,
13,
64,
0,
0,
11,
33,
-34,
-38,
6,
5,
-22,
-23,
-10,
42,
17,
-37,
26,
-11,
-32,
32,
-9,
-6,
2,
-51,
8,
9,
-58,
-11,
-41,
-32,
7,
-41,
-76,
45,
-24,
0,
-17,
-3,
-25,
9,
-2,
-25,
-21,
-5,
78,
-16,
40,
5,
70,
27,
18,
35,
5,
-24,
77,
-19,
-51,
25,
14,
-45,
-36,
5,
-67,
1,
-33,
-52,
-27,
14,
0,
16,
-57,
-15,
-49,
-26,
45,
-34,
-21,
-22,
56,
67,
-7,
10,
15,
35,
11,
63,
-2,
-2,
-42,
35,
-21,
-46,
-19,
54,
-7,
-39,
-7,
-19,
-15,
-13,
-2,
-45,
-48,
-23,
13,
38,
18,
-26,
-5,
-65,
29,
22,
-39,
-29,
18,
27,
17,
2,
18,
-54,
-3,
-2,
-39,
24,
23,
-3,
0,
9,
4,
9,
17,
-8,
60,
36,
32,
-20,
87,
-51,
-33,
0,
-15,
-28,
-36,
36,
-40,
-14,
20,
26,
18,
-27,
29,
24,
14,
-24,
35,
39,
49,
-26,
31,
9,
-38,
54,
38,
-40,
36,
-37,
35,
13,
48,
-17,
-67,
-4,
-30,
41,
2,
-23,
-43,
44,
-45,
15,
25,
24,
7,
10,
19,
1,
17,
9,
65,
-15,
-54,
10,
25,
-15,
-23,
35,
-5,
55,
-49,
-40,
-19,
11,
-61,
25,
-6,
31,
-2,
-72,
17,
-50,
6,
16,
-21,
35,
-37,
-18,
3,
62,
-27,
-23,
-15,
0,
19,
-22,
0,
16,
-51,
56,
42,
-23,
30,
19,
-3,
23,
-30,
-13,
-18,
49,
35,
13,
9,
-33,
-23,
-32,
-12,
-55,
34,
-40,
-12,
-29,
11,
-3,
-11,
-64,
-28,
40,
30,
-48,
-1,
15,
-33,
-29,
0,
54,
35,
-12,
-8,
-38,
-32,
-16,
-49,
-50,
16,
-16,
-38,
-38,
0,
39,
16,
32,
12,
-34,
11,
-13,
46,
10,
13,
1,
-26,
13,
47,
31,
-43,
-3,
-19,
-65,
-10,
-27,
35,
-4,
65,
7,
-50,
-41,
-23,
-27,
26,
28,
59,
20,
5,
8,
-18,
11,
3,
-28,
11,
6,
-10,
5,
31,
-15,
11,
-6,
-29,
-15,
-22,
8,
51,
56,
33,
32,
-10,
23,
-35,
10,
-7,
-4,
-7,
-25,
-30,
32,
5,
-12,
14,
51,
10,
10,
25,
53,
13,
23,
-60,
-28,
-3,
-10,
-9,
37,
-11,
41,
-12,
-7,
3,
36,
-4,
19,
-42,
36,
-40,
-26,
55,
17,
18,
16,
56,
-28,
-13,
-20,
-28
] |
MR. CHIEF JUSTICE ADAIR:
Commencing at 7 :31 o’clock on the evening of December 28, 1955, Austin B. Middleton, one of the relators herein, sitting before a television set in Butte, Montana and viewing a television program then being telecast and broadcast over the facilities of Station KXLF-TV 6 Butte, Montana, heard the respondent Arnold H. Olsen, then and now the Attorney General of the State of Montana and sole participant on such program, deliver a public address, which inter alia, touched on public utility rate increases and regulations in the State of Montana.
Thereafter, on January 10, 1956, the relators Austin B. Middleton, Leonard C. Young and Paul T. Smith, representing that they were acting individually and as members of the Board of Railroad Commissioners of the State of Montana and ex-officio members of the Public Service Commission of Montana, commenced in this court this original proceeding by filing herein their joint accusatory affidavit and joint petition charging that in uttering said public address the respondent Arnold H. Olsen became, was and is in contempt of this court and the relators request this court to issue a warrant of attachment or order to show cause directing the respondent Arnold H. Olsen to appear before this tribunal and there show cause why he should not be punished for such alleged contempt.
Relators’ joint accusatory affidavit and their joint petition fail to show acts or conduct on the part of respondent constituting- contempt of this court or that would justify the issuance of either the warrant of attachment or the order to show cause so sought by relators. The proceeding, lacking in merit, is ordered dismissed.
MR. JUSTICE BOTTOMRY concurs.
|
[
9,
-19,
35,
43,
42,
-48,
25,
17,
-25,
9,
0,
-30,
7,
-18,
-18,
-28,
7,
-44,
34,
45,
33,
-59,
-26,
-14,
28,
-6,
-3,
-3,
-81,
-5,
40,
-12,
-36,
-10,
70,
-4,
4,
12,
8,
-48,
26,
2,
-1,
-14,
16,
7,
15,
46,
-48,
-29,
41,
14,
-15,
21,
-14,
22,
-17,
-54,
-59,
12,
-74,
-22,
2,
3,
27,
-42,
12,
26,
13,
27,
17,
-2,
-22,
-11,
61,
7,
-43,
-54,
-22,
13,
-41,
42,
-20,
9,
2,
-10,
-5,
-49,
9,
41,
-11,
1,
-49,
28,
21,
-53,
-46,
-15,
13,
-5,
9,
14,
-23,
-1,
7,
18,
-42,
-32,
28,
31,
-41,
26,
-22,
-50,
-9,
50,
-49,
6,
25,
-15,
27,
-14,
6,
27,
-39,
39,
7,
60,
-50,
26,
-61,
26,
43,
-20,
-29,
21,
-6,
-40,
9,
-12,
4,
6,
34,
-5,
43,
29,
13,
36,
3,
12,
2,
-25,
23,
70,
-39,
-27,
17,
-44,
46,
-26,
21,
-11,
-2,
-26,
-10,
29,
-10,
-21,
-37,
-14,
-13,
-17,
-9,
43,
29,
-39,
-41,
18,
0,
22,
26,
-5,
-6,
-42,
43,
-1,
74,
-1,
-2,
-35,
-17,
-34,
57,
10,
-51,
-30,
27,
-7,
-11,
-2,
-12,
11,
-11,
30,
-40,
-14,
-6,
23,
36,
41,
22,
2,
-7,
-5,
24,
7,
-30,
-40,
23,
-3,
27,
0,
7,
16,
-20,
7,
19,
-2,
-7,
1,
13,
-3,
0,
31,
24,
19,
0,
-3,
22,
18,
-29,
-1,
14,
-33,
27,
17,
-42,
-60,
-55,
-13,
31,
-41,
-1,
55,
-22,
-11,
37,
-14,
-20,
-10,
6,
-35,
0,
45,
-17,
-12,
5,
-20,
60,
1,
43,
31,
58,
-35,
-73,
-9,
24,
-81,
12,
8,
20,
-28,
-33,
-4,
0,
-48,
-11,
-14,
-27,
-13,
15,
-50,
46,
-46,
8,
38,
42,
19,
-32,
-80,
-51,
34,
-34,
-33,
42,
-15,
-41,
-25,
-4,
28,
5,
17,
-48,
-32,
17,
0,
1,
102,
7,
-62,
8,
12,
-16,
-30,
-19,
9,
-24,
34,
10,
-39,
-2,
-33,
-9,
15,
32,
0,
25,
14,
21,
-14,
28,
12,
-6,
-5,
-35,
40,
3,
44,
-30,
-1,
-14,
-31,
-5,
-9,
-5,
-20,
-41,
-41,
-16,
-59,
-33,
16,
-41,
-31,
-7,
-5,
-29,
-34,
6,
-46,
4,
-10,
0,
-35,
32,
45,
20,
35,
-49,
13,
-7,
-11,
-44,
46,
42,
-23,
-12,
20,
-50,
13,
-13,
-10,
-62,
8,
48,
10,
30,
-27,
-19,
37,
34,
37,
-8,
24,
-20,
-67,
49,
24,
7,
-3,
23,
-36,
6,
0,
55,
24,
-14,
31,
52,
4,
31,
22,
72,
59,
17,
-10,
31,
4,
-4,
-7,
31,
-11,
16,
-23,
-10,
42,
-27,
39,
-27,
-5,
59,
31,
23,
36,
25,
-9,
7,
13,
-20,
-32,
1,
42,
16,
-20,
-34,
7,
61,
11,
5,
-15,
-21,
14,
16,
16,
37,
-6,
26,
-19,
-1,
23,
28,
27,
-21,
43,
-49,
57,
8,
-52,
3,
-76,
-24,
-24,
-35,
-32,
14,
9,
22,
-16,
60,
7,
31,
30,
-49,
-22,
-44,
4,
6,
-59,
26,
-15,
3,
-13,
0,
-34,
-12,
-2,
0,
32,
-35,
-17,
32,
1,
25,
3,
-44,
82,
28,
-38,
-13,
18,
19,
56,
8,
-97,
-60,
-11,
-21,
-40,
48,
-57,
-14,
-1,
16,
-37,
1,
-34,
63,
-10,
2,
-3,
69,
-17,
8,
26,
26,
-12,
-16,
20,
10,
-10,
0,
16,
-12,
-18,
-47,
46,
-24,
1,
-39,
41,
16,
36,
11,
-15,
28,
59,
-48,
39,
33,
-34,
24,
23,
5,
-18,
19,
42,
-33,
-5,
4,
44,
71,
-8,
-59,
-35,
-56,
-33,
35,
-3,
-45,
0,
-24,
-33,
-38,
25,
10,
27,
1,
13,
-62,
-14,
-5,
-33,
4,
43,
40,
19,
-33,
2,
1,
6,
8,
-16,
37,
25,
6,
62,
-45,
-40,
30,
-89,
-12,
-22,
30,
-34,
5,
-50,
-72,
-28,
-4,
-39,
-18,
-5,
-61,
-37,
28,
-29,
35,
39,
13,
-12,
-8,
44,
-6,
-39,
50,
-10,
35,
62,
35,
22,
8,
-6,
9,
-24,
-21,
22,
8,
36,
47,
-16,
10,
52,
-11,
-25,
-43,
-8,
76,
8,
-7,
0,
50,
-10,
-28,
-5,
29,
-42,
9,
-40,
49,
16,
40,
-2,
22,
-24,
9,
24,
3,
38,
-44,
58,
20,
-7,
-9,
29,
40,
-17,
-17,
-84,
37,
-24,
-7,
5,
36,
-31,
-10,
5,
-27,
-19,
39,
67,
12,
-8,
-9,
22,
13,
3,
7,
9,
-51,
-29,
-22,
-32,
-7,
23,
-23,
1,
46,
-3,
-25,
34,
-13,
32,
22,
-21,
-11,
16,
-72,
-23,
6,
46,
15,
-26,
-30,
-3,
-34,
5,
8,
-6,
-39,
-20,
6,
21,
16,
10,
-7,
-30,
-36,
29,
-10,
-24,
95,
-19,
-8,
11,
-48,
6,
27,
-32,
5,
-25,
63,
-39,
-23,
-30,
-33,
2,
-13,
48,
38,
23,
-7,
18,
-46,
-42,
0,
9,
-8,
68,
14,
-14,
-4,
9,
30,
-36,
-28,
36,
-4,
-5,
-24,
45,
2,
-10,
-15,
-14,
-53,
-46,
9,
16,
-74,
22,
-40,
-13,
-20,
-8,
10,
-22,
-33,
31,
-35,
-14,
6,
8,
37,
31,
-3,
-15,
-12,
9,
1,
19,
4,
30,
21,
-18,
-25,
16,
31,
-20,
4,
44,
2,
23,
-19,
-10,
-16,
49,
9,
7,
17,
11,
-27,
66,
-28,
29,
31,
0,
-14,
4,
41,
32,
-46,
1,
-24,
-22,
28,
-81,
22,
-41,
0,
27,
29,
-7,
62,
1,
-28,
-92,
6,
-22,
53,
-21,
3,
4,
25,
-35,
-3,
-19,
15,
-48,
5,
46,
-1,
-48,
-46,
-2,
19,
-33,
-40,
-4,
-27,
54,
-37,
3,
24,
1,
13,
27,
23,
-12,
34,
51,
67,
-16,
-35,
-13,
-32,
-18,
-8,
37,
28,
36,
5,
37,
-16,
67,
9,
-17,
7,
-30,
-30,
23,
-39,
-11,
4,
-22,
20,
43,
-23,
57,
34,
9,
-26,
-20,
52,
0,
42,
32,
-35,
-55,
9,
-26,
25,
53,
-14,
14,
-3,
72,
-26,
6,
13,
-60,
-15,
-1,
10,
-6,
-7,
-11,
-15,
30,
-35,
-17,
5,
2,
-36,
25,
-18,
44,
0,
-14,
-12,
8,
-8,
46,
12,
65,
40,
-7,
0,
3,
-21,
14,
44,
23,
-17,
-44,
-14,
-9,
0,
-44,
35,
-44,
39,
-9,
-5,
-90,
38,
-6,
-22,
10,
60,
41,
32,
-34,
-9,
-16,
-18,
23,
-14,
-42,
31,
-13,
-82,
-12,
18,
-41
] |
MR. JUSTICE ANGSTMAN:
This action was brought seeking determination as to whether certain intra-state rates for telephone service ordered' by defendant Commission after hearing are reasonable and lawful.
Plaintiff’s second amended complaint was stricken on motion of defendants, without leave to amend, and judgment of dismissal was entered from which plaintiff appealed.
The first point urged by plaintiff is that the court erred in not sustaining plaintiff’s motion to strike defendants’ demurrers to the first amended complaint, it being plaintiff’s contention that defendants have no right to file a demurrer to the complaint and thus to postpone the time when the case shall be at issue.
Reliance is placed on that part of R.C.M. 1947, section 70-128, reading: “The commission and other parties defendant shall file their answer to said complaint within thirty days after the service thereof, whereupon such action shall be at issue and stand ready for trial upon twenty days’ notice to either party.”
The same contention under a statute practically identical with the above quoted part of section 70-128 was made in the case of Wisconsin Hydro Elec. Co. v. Public Ser. Comm’n, 234 Wis. 627, 291 N.W. 784, 786, and tbe court held against the contention by saying: “However, we see no reason why the commission may not properly demur to a complaint upon grounds which raise only questions of law that are preliminary to a consideration of the ease upon the merits.” We agree with the Wisconsin court in this respect. As to the contention that this results in the delay of the trial it is sufficient to say that ■ it is proper for the court to extend the time for answering and hence for the trial as it did here for a reasonable time after disposition of the demurrer.
Plaintiff’s second contention is that the court erred in sustaining the motions to strike the second amended complaint. The motions were upon the grounds that the second amended complaint did not amend the first amended complaint and that it was sham and frivolous.
The amendments made by the second amended complaint which will be alluded to more fully later herein, had to do with the question of who is plaintiff in the action and whether plaintiff is a party interested and as such entitled to maintain the action.
Paragraph V of the first amended complaint alleged: “That the plaintiff herein is and was the duly elected qualified and acting Attorney General for the State of Montana * *
Paragraph V then continued with this allegation: “ * * * and as such represents the State and many public and state institutional users of telephone service furnished by the Mountain States Telephone and Telegraph Company, and is dissatisfied with the Order No. 2396 of Docket No. 4064 of the Public Service Commission granting and approving the application for increased rates of the defendant company as said schedule of rates, tolls and charges are therein set forth.”
The second amended complaint eliminates the last above quoted paragraph and substitutes in lieu thereof the following: “* * and has brought and is maintaining the above entitled action in behalf of the State of Montana and the people of Mon tana, for the purpose of protecting the interests of the State and the people of Montana, users of telephone service, from an unwarranted, unlawful and unreasonable increase in rates awarded to defendant company by defendant commission’s Order No. 2396 of Docket 4064; that the plaintiff Attorney General, State of Montana and people of Montana are dissatisfied with the unlawful and unreasonable Order No. 2396 of Docket 4064 made by defendant commission granting and approving the application for increased rates of the defendant company, as said schedule of rates, tolls and charges are therein set forth. ’ ’
Likewise in paragraph VI after referring to the hearing before the commission there was added in the second amended complaint the following: “That at the above mentioned public hearing, the plaintiff herein appeared and protested in behalf of the State of Montana and people of Montana against the increase in rates applied for by the defendant company. That the plaintiff there asserted and still asserts the rates granted and sought are adverse to the interests of the State of Montana and the people of Montana.”
Likewise in the second amended complaint paragraphs X and XI were added reading:
“X. That Order No. 2396 of Docket 4064 is injurious to the public users, the State and people of Montana, and against their pecuniary interests in that by this order the defendant company is enabled to obtain from the Montana users an additional revenue of $1,288,300 annually.
“XI. That the evidence introduced by the defendant company did not support such an increase, and did not indicate that the financial stability and integrity of the defendant company was imperiled in any way by the rate structure existing prior to said rate order.”
The rule is, an amended pleading which is substantially a repetition of a former pleading may be stricken. Collisaw v. American Smelting & Ref. Co., 121 Mont. 196, 190 Pac. (2d) 673, and authorities therein cited.
Striking a pleading is a harsh remedy and should be resorted to sparingly and every fair intendment will be indulged in favor of tbe pleading. Collishaw v. American Smelting & Ref. Co., supra; 71 C.J.S., Pleading, section 450, pages 897, 898.
The fact that additional allegations were made in the second amended complaint, standing alone, is not sufficient to place the court in error in striking it.
Unless the additional allegations have some relevancy and pertinency to the statement of a cause of action, they do not save the pleading from proper attack by motion to strike.
Hence, it becomes material and necessary to determine whether the new and additional allegations help plaintiff in the statement of a cause of action. Solution of this question depends upon the rights, powers and duties of the attorney general.
R.C.M. 1947, section 82-401, enumerates the duties of the attorney general and so far as material here provides: “It is the duty of the attorney general: 1. To attend the supreme court and prosecute or defend all causes to which the state, or any officer thereof, in his official capacity, is a party * * *. ’ ’
This case having originated in the district court at the instigation of the attorney general, R.C.M. 1947, section 82-401, subdivision 1, gives no authority for him to institute the action there. Rather, R.C.M. 1947, section 16-3101 provides who may commence an action in the district court on behalf of the state. That section makes it the duty of the county attorney to “Attend the district court and conduct, on behalf of the state, all prosecutions for public offenses and represent the state in all matters and proceedings to which it is a party, or in which it may be beneficially interested, at all times and in all places within the limits of his county * * *. ’ ’
However paragraph 5 of section 82-401, supra, gives the attorney general supervisory power over county attorneys and paragraph 8 of section 16-3101, supra, makes it the duty of the county attorney when ordered or directed by the attorney general to “institute and diligently prosecute in the proper court, and in the name of the state of Montana, any criminal or civil action or special proceeding,” and provides that the supervisory power of the attorney general shall extend to “all matters pertaining to the duties” of the county attorney. Likewise paragraph 7 gives him the right “When required by the public service, or directed by the governor, to assist the county attorney of any county in the discharge of his duties.” None of the foregoing statutes authorized the institution of an action in the district court by the attorney general on behalf of the state. Rather they specifically state that such an action must be brought by the county attorney of the county.
However this court has repeatedly held that the attorney general has common-law powers and duties.
In State ex rel. Nolan v. District Court, 22 Mont. 25, 55 Pac. 916, 917, this court said: ‘ ‘ The Attorney General is the principal law officer of the state. His duties are general. His authority is co-extensive with public legal affairs of the whole community.”
In State ex rel. Ford v. Young, 54 Mont. 401, 170 Pac. 947, 948, the court had before it the question whether the attorney general could institute abatement or injunction proceedings to close buildings used as common brothels or bawdy-houses when the controlling statutes provided that “the county attorney must, or any citizen of the county may” maintain an action in equity for that purpose “in the name of the state of Montana upon the relation of such county attorney or citizen.”
The court answered that the attorney general could bring such action saying in part: “The office of Attorney General is of ancient origin. The powers and duties appertaining to it were recognized by the common law, and the common law has been a part of our system of jurisprudence from the organization of Montana territory to the present day. Bannack Statutes, page 356; Compiled Statutes, page 647; Revised Codes, section 3552. In this state the office of Attorney General is created by our state Constitution (sec. 1, Art. VII), which also provides that the incumbent of the office ‘shall perform such duties as are prescribed in this Constitution and by the laws of the state. ’ The Constitution enumerates certain duties, and section 193, Re vised Codes, certain others, and then concludes by imposing upon the Attorney General ‘ other duties prescribed by law. ’ It is the general consensus of opinion that in practically every state of this Union whose basis of jurisprudence is the common law, the office of Attorney General, as it existed in England, was adopted as a part of the governmental machinery, and that in the absence of express restrictions, the common-law duties attach themselves to the office so far as they are applicable and in harmony with our system of government.” In speaking of the effect of the statute making it the duty of the county attorney to suppress the nuisances named, the court said: “It does not create a new remedy, but makes certain the extent of the relief obtainable. It does not supplant the attorney general as a proper party who may invoke the remedy on behalf of the state, but extends the law by conferring upon the private citizen the right, and upon the county attorney the duty, to suppress the particular nuisances mentioned, by the restraining process of a court of equity.”
The Ford Case is in line with the rule generally.
In discussing the powers of the attorney general the court in Darling Apartment Co. v. Springer, 25 Del. Ch. 420, 22 A. (2d) 397, 403, 137 A.L.R. 803, 811, had this to say: “The authorities substantially agree that, in addition to those conferred on it by statute, the office is clothed with all of the powers and duties pertaining thereto at common law; and; as the chief law officer of the State, the Attorney General, in the absence of express legislative restriction to the contrary, may exercise all such power and authority as the public interests may from time to time require. In short, the Attorney General’s powers are as broad as the common law unless restricted or modified by statute. ’ ’
A general statement of the duties of the attorney general is found in 5 Am. Jur., Attorney General, section 6, page 235, as follows: “Moreover, it is generally held that the attorney general, in addition to the powers and duties conferred and imposed upon him by statute, is clothed and charged with all the common- law powers and duties pertaining to his office as well, except in so far as they have been expressly restricted. The duties of the office are so numerous and varied that it has not been the policy of the state legislatures to attempt specifically to enumerate them; and it cannot be presumed, therefore, in the absence of an express inhibition, that the attorney general has not such authority as pertained to his office at common law. Accordingly, as the chief law officer of the state, he may, in the absence of some express legislative restriction to the contrary, exercise all such power and authority as public interests may, from time to time, require, and may institute, conduct, and maintain all such suits and proceedings as he deems necessary for the enforcement of the laws of the state, the preservation of order, and the protection of public rights.” To the same general effect is 7 C.J.S., Attorney General, section 5, page 1222.
“The common-law duties of the attorney general, as chief law officer of the state, when not restricted or limited by statute, are very numerous and varied. In England, the Attorney General was the chief legal adviser of the Crown and was intrusted with the management of all legal affairs and the prosecution of all suits, civil and criminal, in which the Crown was interested. * * m Such being the nature of the rights and duties that attached to the position at its inception, it is generally held that in the exercise of his common-law powers, an attorney general may not only control and manage all litigation in behalf of the state, but he may also intervene in all suits or proceedings which are of concern to the general public.” 5 Am. Jur., section 5, page 234, 235. And see 7 C.J.S., Attorney General, section 8, page 1226.
“Obviously there can be no dispute as to the right of an attorney general to represent the state in all litigation of a public character. The attorney general represents the public and may bring all proper suits to protect its rights.” 5 Am. Jur., Attorney General, section 8, page 238.
Is the instant action one which affects the public interests or which has for its purpose the protection of public rights ?
The fact that defendant Telephone Company is a public utility presupposes that its business is effected with a public interest.
Its rates and charges could not be regulated or controlled if its business were not affected with a public interest. H. Earl Clack Co. v. Public Service Comm’n, 94 Mont. 488, 22 Pac. (2d) 1056; New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S. Ct. 371, 76 L.Ed. 747.
In the early case of Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77, 84, the court referred to the common-law of England as stated by Lord Chief Justice Hale to the general effect that property such as that used by a public utility was affected with a public interest and hence subject to regulations as to prices and rates and said: “Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control. ’ ’
That case established the rule that the business of common carriers and public utilities is affected with a public interest.
Later cases adhere to that principle. Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 67 L.Ed. 1103, 27 A.L.R. 1280; Tyson & Bro.-United Theatre Ticket Offices v. Banton, 273 U.S. 418, 47 S.Ct. 426, 71 L.Ed. 718.
The action taken by the attorney general questioning the reasonableness and lawfulness of the rate is a proceeding affecting public interests and properly maintainable by him.
“If, in his judgment, there is good cause to believe that any public service corporation, the regulated and fixed charges of which for services rendered to the public under its franchise have been disregarded, or that unreasonable, extortionate, and excessive charges have been made for public service, it becomes his duty as a member of the executive department of the state to institute proceedings before the judicial department of the government whereby the rights of the state, exercised in behalf of all the people, may be preserved and vindicated. This is a well-recognized power and duty of such an officer both in England and in this country.” State v. Pacific Express Co., 80 Neb. 823, 115 N.W. 619, 623, 18 L.R.A., N.S., 664. And compare Attorney General v. Chicago & M. Ry., 35 Wis. 425; Attorney General v. Old Colony R., 160 Mass. 62, 35 N.E. 252, 22 L.R.A. 112; Hart v. Atlanta Terminal Co., 128 Ga. 754, 58 S.E. 452.
Hence public interest being affected the state is a party in interest and the attorney general under the broad powers given him by the common law may represent the state in the litigation. Furthermore, aside from the public interest generally, allegations are made to the effect that the state and its institutions are required to pay what is alleged to be an unlawful and unreasonable rate. That is sufficient to show the interest of the state. United States v. Public Utilities Comm’n, 80 U.S. App. D.C. 227, 151 F. (2d) 609. The state being an interested party it is generally ruled that the attorney general is the proper party to determine the necessity and advisability of undertaking or prosecuting actions in its behalf. 5 Am. Jur., Attorney General, section 10, page 239, and see State ex rel. Peterson v. City of Fraser, 191 Minn. 427, 254 N.W. 776.
It is contended that since the attorney general is the attorney for the commission he may not take action questioning its decisions.
This is not a new thing in the judicial history of this state. The attorney general formerly was a member of the state board of equalization and yet brought court proceedings against the board to compel the making of certain assessments. State v. State Board of Equalization, 56 Mont. 413, 185 Pac. 708, 186 Pac. 697, and see State ex rel. Dunbar v. State Board of Equalization, 140 Wash. 433, 249 Pac. 996.
This same contention under similar fact situations was made in the case of Petition of Public Service Coordinated Tranport, 5 N.J. 196, 74 A. (2d) 580, 586, and there held to be without merit. The court there said: “This concept of the positions of the Attorney General and the Board on this appeal is a mistaken one. Clearly the Board is not here under attack; the appeal is in no way directed against it. As the court stated in Public Service Interstate Transporation Co. v. Board of Public Utility Commissions, 129 N.J.L. 94, 95, 28 A. (2d) 199 (B. & A. 1942), wherein the Board itself sought to take an appeal: ‘¥e are clear that it has no status as such. It is in no sense a party whose interests are adversely affected, but obviously a subordinate statutory tribunal which made a legal decision reviewable by certiorari like those of other special statutory tribunals.’ The Board is not a party to this proceeding and its prerogatives are not being usurped by the Attorney General. To hold otherwise would be tantamount to holding that a trial court is a party to an appeal from a judgment entered therein, or that the Legislature is a party to a proceeding in which the constitutionality of a statute is contested.”
The mere fact that the commission is named a party to the proceeding as declared by our statute, R.C.M. 1947, section 70-128, does not call for a different conclusion from that reached by the New Jersey court. It is not the real party in interest. It has no financial interest in the outcome of the proceeding.
In the New Jersey ease the governor had ordered the attorney general to take the steps which he did, but we think in this state no such order either from the governor or the board of examiners or any other board is necessary as a condition precedent to action on the part of the attorney general, which he deems necessary or advisable to protect the interests of the state and the public.
In Muench v. Public Service Comm., 261 Wis. 492, 53 N.W. (2d) 514, 55 N.W. (2d) 40, the court rejected the contention that the state could not intervene in an action through the attorney general because it was the duty of the public service commission and not the attorney general to represent the state.
While the statutes are not the same, what was said in Attorney General v. Trustees of Boston El. R. Co., 319 Mass. 642, 67 N.E. (2d) 676, 685, has application here. It was there said: “The Attorney General represents the public interest, and as an incident to his office he has the power to proceed against public officers to require them to perform the duties that they owe to the public in general, to have set aside such action as shall be determined to be in excess of their authority, and to have them compelled to execute their authority in accordance with law.”
Since the second amended complaint is an attempt in apparent good faith to meet the objection lodged against the first amended complaint wherein the court in ruling on the demurrer thereto stated, “the Attorney General is not the real party in interest herein.” it should not have been stricken where as here it contained a fuller and more explicit statement of the facts relied on to show the interest of the state and the public and where it contained matter material and relevant to a statement of a cause of action.
We may say that the complaint is not definite that the state is the party plaintiff. The allegation that “plaintiff is the duly elected, qualified and acting Attorney General” is tantamount to a direct allegation that he, the attorney general is plaintiff.
As a matter of fact what he evidently intended was to allege that relator is the duly elected, qualified and acting attorney general. That however, is a matter that may be cured by amendment and the court, if relying on that point, should have granted leave to further amend rather than to dismiss the action without leave to amend.
The contention is made that the complaint is defective in not alleging that this action was commenced by a party in interest within the meaning of B.C.M. 1947, section 70-128.
The second amended complaint as above noted alleged that at the hearing before the commission “the plaintiff herein appeared and protested in behalf of the State of Montana and people of Montana against the increase in rates applied for by the defendant company.”
This allegation is likewise indefinite as to who the plaintiff is. Here again the word “plaintiff” was evidently intended to mean “relator”. In construing pleadings the rule is that whatever is necessarily implied in, or is reasonably to be inferred from, allegations is to be taken as directly averred. Clem v. Clem, 97 Mont. 570, 36 Pac. (2d) 1034; Griffiths v. Thrasher, 95 Mont. 210, 26 Pac. (2d) 995; Johnson v. Johnson, 92 Mont. 512, 15 Pac. (2d) 842; Mining Securities Co. v. Wall, 99 Mont. 596, 45 Pac. (2d) 302.
Liberally construed the above allegation is sufficient to admit proof that the State of Montana, through the attorney general’s office, appeared before the commission and protested the increase in rates sought so as to constitute it a party in interest within the meaning of R.C.M. 1947, section 70-128. This conclusion is not altered by the fact that at the hearing the following appearance was made: “ C. W. Leaphart, Assistant Attorney General, Helena, Montana, appearing for the Attorney General’s Office as Assistant Attorney General”. The amended pleading tenders the issue that the attorney general’s office, no matter who appeared on behalf of the attorney general, was in fact appearing on behalf of the State of Montana.
The judgment is reversed and the cause remanded with directions to set aside the order sustaining, and to enter an order denying the motions to strike and allowing defendants a reasonable time within which to further plead to plaintiff’s second amended complaint.
MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICES ANDERSON and BOTTOMLT, concur.
MR. JUSTICE DAVIS, not participating.
|
[
10,
-1,
-58,
-7,
49,
-8,
19,
-58,
-4,
82,
6,
37,
15,
-44,
38,
-25,
-34,
-53,
59,
-9,
3,
-16,
27,
-5,
-9,
20,
-68,
-33,
-20,
-17,
43,
52,
-67,
26,
-1,
-40,
-8,
19,
-45,
39,
41,
-49,
30,
-1,
44,
-23,
-4,
41,
34,
-49,
73,
21,
-63,
15,
-64,
-20,
-13,
36,
-34,
25,
-61,
16,
-8,
-42,
22,
3,
28,
-33,
-9,
-21,
-17,
26,
40,
6,
5,
17,
-87,
-57,
-7,
41,
0,
-7,
-35,
-36,
17,
17,
49,
-7,
9,
38,
10,
8,
-19,
0,
46,
-17,
44,
7,
24,
0,
21,
-14,
-53,
-16,
-42,
41,
-20,
-26,
-35,
35,
5,
34,
-85,
-30,
-31,
50,
18,
19,
34,
-5,
53,
-13,
10,
79,
-14,
20,
-22,
83,
20,
26,
-31,
83,
38,
-34,
17,
-19,
-27,
-46,
21,
-14,
-6,
-76,
29,
19,
22,
-33,
10,
43,
1,
-27,
-12,
9,
3,
34,
-44,
-78,
17,
-82,
49,
-8,
79,
14,
-55,
2,
-18,
23,
5,
-16,
42,
-2,
-45,
-63,
12,
0,
-10,
7,
-30,
-6,
42,
-29,
33,
32,
38,
-28,
52,
32,
44,
-55,
17,
-14,
25,
-33,
-3,
7,
-19,
27,
18,
36,
-1,
-27,
-43,
-41,
-16,
44,
-29,
39,
17,
-23,
52,
-4,
-3,
-9,
-87,
-26,
-13,
-17,
45,
-34,
-17,
11,
0,
-7,
31,
30,
-19,
-8,
27,
-12,
10,
-19,
-4,
10,
9,
-14,
-8,
-1,
30,
10,
41,
15,
-4,
-9,
32,
0,
12,
40,
-30,
-21,
-49,
-12,
34,
-9,
70,
23,
18,
-30,
26,
8,
-57,
-67,
0,
14,
-13,
-40,
-3,
-43,
-9,
14,
35,
15,
38,
23,
25,
36,
-49,
-45,
-17,
-18,
87,
35,
-17,
1,
7,
43,
-36,
46,
22,
37,
-5,
27,
-37,
-22,
23,
-1,
-46,
41,
45,
30,
-31,
-5,
-41,
10,
-11,
-9,
-22,
-25,
-37,
11,
0,
-13,
-23,
48,
-44,
-14,
21,
18,
-7,
39,
45,
-78,
64,
11,
42,
-5,
-35,
-29,
35,
-16,
-15,
-31,
9,
-34,
-1,
-33,
58,
-23,
1,
-43,
-54,
0,
32,
-2,
6,
-8,
11,
68,
23,
-74,
10,
7,
-24,
-8,
-23,
-1,
13,
-7,
-52,
-68,
-1,
3,
3,
26,
-13,
-86,
3,
16,
-12,
-28,
9,
48,
-73,
-29,
-33,
-39,
-57,
32,
6,
14,
-52,
47,
17,
-25,
-63,
9,
54,
57,
-37,
19,
-9,
20,
5,
-2,
0,
39,
64,
-10,
-28,
-70,
-19,
28,
19,
3,
19,
38,
37,
10,
-14,
-5,
6,
74,
36,
-46,
0,
0,
-13,
5,
-13,
30,
46,
17,
18,
-13,
-5,
-10,
-8,
-11,
43,
-10,
-11,
9,
-5,
9,
-39,
-1,
-14,
69,
15,
-60,
-17,
15,
3,
39,
-27,
-32,
-7,
-8,
-33,
16,
27,
-6,
3,
18,
24,
-14,
17,
20,
47,
22,
4,
-4,
35,
-16,
-14,
35,
18,
3,
34,
-11,
-2,
84,
14,
-6,
9,
61,
0,
50,
-44,
-11,
10,
3,
-65,
-23,
17,
-39,
-38,
-17,
33,
-31,
32,
34,
18,
-6,
-19,
-25,
-39,
-8,
-35,
17,
-25,
41,
-30,
-39,
53,
-16,
-19,
-39,
19,
-44,
13,
-17,
17,
24,
42,
-33,
-6,
20,
77,
8,
-8,
9,
-14,
-43,
9,
-69,
-44,
37,
23,
-38,
41,
-65,
8,
-7,
27,
-35,
5,
-2,
-3,
-5,
0,
-16,
47,
51,
-18,
54,
28,
7,
-19,
20,
72,
12,
26,
-5,
-6,
6,
-11,
25,
-37,
-6,
46,
-44,
28,
63,
-15,
-4,
-4,
42,
-36,
-45,
-9,
-16,
-38,
9,
-5,
12,
-55,
-43,
34,
-82,
25,
-30,
-21,
-2,
-52,
-40,
-20,
-48,
7,
-22,
48,
34,
-30,
-14,
16,
-23,
40,
48,
2,
-63,
20,
2,
17,
-7,
-42,
2,
1,
4,
-50,
0,
58,
46,
3,
11,
-20,
-9,
11,
0,
-15,
-16,
13,
-11,
40,
-18,
63,
39,
-4,
-44,
10,
-63,
-83,
-10,
-1,
-24,
43,
-43,
-32,
-52,
10,
16,
12,
20,
-1,
-19,
26,
-19,
7,
10,
13,
57,
-11,
-18,
1,
58,
-1,
-55,
-19,
41,
14,
-13,
11,
-7,
6,
-42,
6,
11,
-53,
-9,
26,
-8,
-2,
11,
42,
-43,
17,
25,
24,
-50,
18,
-62,
-18,
31,
-51,
-18,
40,
-33,
-27,
3,
25,
-23,
-26,
-20,
24,
-20,
-6,
1,
-1,
16,
26,
-22,
16,
-8,
-10,
11,
17,
-32,
-44,
30,
-24,
-24,
15,
6,
7,
-3,
-14,
-46,
4,
-14,
-4,
17,
-5,
2,
21,
19,
37,
7,
-14,
22,
1,
-26,
-11,
-29,
-31,
8,
-34,
30,
-49,
8,
-10,
-92,
-34,
36,
44,
4,
39,
-22,
13,
-26,
-1,
-10,
-12,
0,
20,
-20,
13,
19,
-5,
16,
-34,
7,
-30,
22,
102,
30,
11,
-45,
6,
-36,
26,
-38,
-8,
-26,
-23,
-52,
37,
-23,
62,
27,
-7,
-35,
7,
-18,
-8,
51,
-33,
5,
50,
15,
60,
-13,
-31,
11,
23,
-16,
9,
-36,
-40,
11,
-28,
-17,
0,
-37,
16,
-26,
48,
-13,
-28,
24,
17,
4,
-25,
-24,
-20,
-32,
30,
10,
-24,
-38,
-34,
26,
-7,
-49,
-11,
2,
46,
44,
19,
-28,
-19,
-7,
20,
18,
64,
-11,
8,
-8,
-2,
23,
8,
4,
20,
18,
9,
-11,
-36,
22,
0,
42,
0,
-5,
-10,
-29,
-34,
66,
-44,
-2,
-11,
23,
-39,
-7,
10,
16,
1,
97,
13,
-1,
64,
-95,
-21,
-10,
-19,
-7,
26,
-5,
27,
4,
-19,
-58,
-11,
-38,
48,
-35,
-44,
35,
2,
-11,
-34,
-30,
29,
16,
-51,
68,
19,
29,
-28,
5,
-3,
-18,
-7,
-32,
21,
12,
5,
60,
35,
11,
-2,
-6,
5,
-37,
-55,
53,
57,
-29,
22,
-35,
0,
21,
-8,
14,
34,
-14,
-29,
12,
-1,
-12,
-5,
20,
-9,
19,
5,
9,
-16,
23,
-28,
17,
4,
-6,
-17,
36,
-62,
28,
-38,
-24,
56,
-18,
-18,
19,
-43,
-32,
-5,
47,
-29,
-20,
72,
52,
19,
31,
11,
0,
45,
-28,
-10,
13,
58,
3,
38,
-45,
4,
-9,
-24,
9,
-23,
-1,
-21,
-13,
-13,
58,
0,
-38,
-8,
27,
4,
26,
9,
-12,
49,
29,
-34,
-28,
-40,
-18,
27,
40,
-22,
-62,
-29,
-18,
-10,
-24,
23,
2,
17,
35,
1,
4,
45,
-24,
41,
26,
9,
10,
-16,
-5,
-17,
17,
-24,
-2,
9,
-32,
-18,
-11,
10,
56,
-44,
5
] |
MR. JUSTICE ANGSTMAN:
Joe Spoya died testate on the 8th day of May 1949, a resident of Missoula County. By his will he devised and bequeathed certain described property to certain named residents of Montana and then bequeathed a bank account in the Western Montana National Bank of Missoula, share and share alike, to six nieces residing in the Republic of Croatia, which forms with other territories the Republic of Yugoslavia.
The only question here involved is whether the nieces may take this bequest. The question arose on the petition of the executor for distribution of the estate. The district court ruled that they are entitled to receive it and the state has appealed from the judgment. Judge Taylor we are told in the brief of respondent reached the same conclusion in another ease on substantially the same evidence.
The first contention of the state is that the court erred in overruling its objection to the filing of an appearance on the part of the consul general of Yugoslavia for the foreign heirs. The court did not err in this respect. There was filed without objections powers of attorney signed by all the foreign heirs appointing the consul general their attorney. The power of at torney was acknowledged before tbe president of tbe district court, an officer authorized to administer oaths.
Tbe consul general, Rufo Ivancevic, also testified as a witness. He testified tbat be is appearing in bis official capacity as representative of tbe six nieces; tbat be bas powers of attorney from them and tbat they all reside in Croatia. He testified without objection tbat Yugoslavia grants rights of inheritance to heirs or beneficiaries who are residents and citizens of tbe United States out of estates of persons who die in Yugoslavia and whose estates are in Yugoslavia. He testified tbat if the court were to decree tbe bequest to tbe nieces they would receive the entire bequest.
There was sufficient evidence to establish tbe existence and identity of tbe legatees. The testator named them in bis will. All tbe other beneficiaries under tbe will who reside in Montana filed a stipulation tbat tbe named legatees of tbe bank account are residents of Yugoslavia and tbat they are entitled to share in tbe estate. Tbe court properly permitted tbe consul general to enter an appearance on behalf of tbe foreign heirs.
Tbe next contention of tbe state is tbat tbe court erred in receiving over the state’s objection evidence of reciprocity. Specifically tbe state contends tbat before an estate may be distributed, as was sought by tbe petition here, there must have been a judicial determination of heirship which eoncededly had not been bad.
Tbe state relies on subdivision 6 of section 91-520, R. C. M. 1947, which came into tbe statute by an amendment made by Chapter 31, Laws of 1951. It reads: “No estate in which alien heirs, devisees and/or legatees have a distributive share shall be considered to be in a condition to petition for final distribution, unless, tbe court enters a written order in such estate decreeing tbat an action for determination of heirship bas been instituted in which tbe State of Montana was made a party-defendant and that a decree determining heirship bas been entered and filed in said action.”
Since this statute treats of devisees and legatees, as well as heirs, it seemingly was the legislative intent to have it apply to an estate passing by will as well as by the laws of succession in case of intestacy, and this notwithstanding that the testator and not the court determines who shall take the estate of testator. However, since the estate passed at the time of death which was in 1949, this amendment made in 1951 can have no application to this estate. In re Nosen’s Estate, 118 Mont. 40, 162 Pac. (2d) 216; In re Gaspar’s Estate, 128 Mont. 383, 275 Pac. (2d) 656.
Furthermore at the time of the death of testator R. C. M. 1947, sec. 91-3901, provided: “Whenever all the heirs or devisees of any estate who are residents of the United States shall agree that any nonresident of the United States is a lawful heir or devisee of said estate and is lawfully entitled to share therein, said agreement may be reduced to writing and filed with the clerk of the court in the matter of said estate, and thereafter it shall not be necessary for any such nonresident heir or devisee to institute any proceedings to determine his rights of heirship.” In 1951 the last above quotation was designated as paragraph 2 of section 91-3901, supra, and paragraph 3 was added reading: “The provisions of subdivision 2 shall dispense with the proceedings provided for by section 91-3801, insofar as such section relates to establishing heirship, but shall not dispense with the necessity of establishing proof of reciprocity as required in estates in which nonresident aliens are claiming as heirs, legatees and/or devisees.” Paragraph 3 simply states what the rule would have been without it so far as proceedings to determine heirship are concerned.
On the issue of reciprocity the testimony of William B. Stern was relied on, which was to the effect that an American citizen is permitted to take by inheritance property of an estate of one dying in Yugoslavia, and the state contends that the evidence given by him was inadmissible.
It was sought to qualify the witness to give oral testimony of the laws of Yugoslavia under R. C. M. 1947, sec. 93-1001-14, reading: “The oral testimony of witnesses skilled therein is admissible as evidence of the unwritten law of a sister state or foreign country, as are also printed and published books of reports of decisions of the courts of such state or country, or proved to be commonly admitted in such courts.”
R. C. M. 1947, sec. 93-1001-11, defines unwritten law as follows: “Unwritten law is the law not promulgated and recorded, as mentioned in section 93-1001-8, but which is, nevertheless, observed and administered in the courts of the country. It has no certain repository, but is collected from the reports of the decisions of the courts and treatises of learned men.”
It was shown that William B. Stern is the foreign law librarian of the Los Angeles County Law Library. He studied law at Wuerzburg, Munich and Berlin, Germany, from 1928 to 1932. He received a degree of Doctor from the University of Wuerzburg. For about a year and a half he was in the Bavarian state service for jurists. Later he served as clerk in his father’s law office for about six months. He came to America in 1935 and entered the University of Texas, and later that same year became a graduate student in the political science department of Johns Hopkins University in Baltimore, Maryland. In January 1937 he became an employee at the University of Chicago Law Library, where he served until April 1939. The Los Angeles library has about 200,000 volumes, about one-half of which are books on foreign law. Mr. Stern has been subpoenaed in numerous cases to testify on foreign law in courts in California and Oregon. He has also been retained as an expert on foreign law questions by the attorney general of California and particularly on questions of reciprocity with various European countries. He has studied the subject of reciprocity of inheritance rights concerning a number of countries including Yugoslavia and concerning the procedure of courts in Yugoslavia. He testified that he is the Dr. Stern who testified as an expert in the case of In re Miller’s Estate, 104 Cal. App. (2d) 1, 230 Pac. (2d) 667. Contention is made by the state that before a person can be an expert in the field of foreign law he must have been admitted to practice law in some jurisdiction, and the record shows that Dr. Stern was not admitted to practice in any jurisdiction. This contention is not well taken.
It was made in the case of In re Estate of Faber, 168 Cal. 491, 143 Pac. 737, 739, and the court disposed of it by saying: “The court sustained an objection to this question, and refused to allow him to testify further on the subject, basing the ruling upon the proposition that the laws of a foreign country cannot be proven by the testimony of a witness who was not engaged in the practice of law therein. In this we think the court erred. Section 1902 of the Code of Civil Procedure provides that: ‘The oral testimony of witnesses skilled therein is admissible as evidence of the unwritten law of a sister state or foreign country.’ It does not declare that such witness must be engaged in the practice of the law in such country, or as a professor of law therein. It is sufficient if it appears that he was skilled therein.” To the same effect is Murphy v. Bankers Commercial Corp., D. C., 111 F. Supp. 608.
In holding that Dr. Stern was sufficiently qualified to testify as an expert on the laws of Norway in the case of In re Johnson’s Estate, 100 Cal. App. (2d) 73, 233 Pac. (2d) 105, 109, the court had this to say: “The qualification of a witness to testify as an expert is a matter within the sound discretion of the trial court, and where there is no showing of a clear abuse of that discretion the ruling of that court will not be disturbed on appeal, 10 Cal. Jur. 963; 5 Cal. Jur. [10-Yr.] Supp. [1944 Bev.] 693 and eases there cited, nor will the ruling be disturbed if there is any substantial evidence to support it. Humiston v. Hook, 86 Cal. App. (2d) 101, 194 Pac. (2d) 122. In view of the qualifications of Mr. Stern as hereinabove set forth, this court cannot say as a matter of law that a clear abuse of discretion occurred in the trial court. And while residence within the jurisdiction of Norway and first-hand observation of the customs of the country might go to the weight of Mr. Stern’s testimony, it does not go to its admissibility and the position of appellant that the lack thereof disqualified Mr. Stern as an expert witness is untenable. ’ ’
We have held that a person need not be licensed to practice medicine in this state in order to testify as an expert. State v. Harbins, 85 Mont. 585, 281 Pac. 551. The court did not abuse its discretion in admitting the testimony of Dr. Stern.
The state contends that the court erred in overruling its objection to exhibits 1, 3, 4, 6, 7, 8 and 9, admitted for the purpose of showing reciprocity. Exhibit 1 was a photostatic copy of portions of the Constitution of the Republic of Yugoslavia with a certificate by Dr. Sergije Makiedo by direction of the ambassador counselor that the translation from the Serbo-Croat language into English is true and correct to its original text.
The department of state of the United States certified that Dr, Sergije Makiedo was a consular of the embassy of the Federal People’s Republic of Yugoslavia at Washington. The record shows that originally a certified copy of the entire Constitution of 1946 was introduced. Respondent asserts that it was certified to by the Minister of Justice of Yugoslavia. This original exhibit by agreement was withdrawn and Articles 18 and 80 of the Constitution as above certified to were substituted.
It was not error to receive in evidence the portions of the Constitution of Yugoslavia relied on. The only portions of the Constitution involved were those providing that “inheritance of private property is guaranteed. The right of inheritance is regulated by law. ’ ’ These were relied on and proved substantially as here in In re Arbulich’s Estate, Cal. App., 248 Pac. (2d) 179.
Exhibits 3 and 4 introduced over the state’s objection were certificates made by Sava N. Kosanovic, the ambassador extraordinary and plenipotentiary of Yugoslavia to the United States to the effect that the Constitution and laws of Yugoslavia and treaties between Yugoslavia and the United States accord to citizens of the United States the reciprocal right of inheritance equal to those accorded to citizens of Yugoslavia. Error is assigned in the admission of these exhibits. They were properly received in evidence. In re Blak’s Estate, 65 Cal. App. (2d) 232, 150 Pac. (2d) 567; In re Arbulich’s Estate, supra. In the last cited case the ambassador was also called as a witness but that was for the purpose of obtaining evidence not contained in the certificates. His oral testimony was not the cause for admiting the certificates in evidence. The certificates there considered were identical with those here involved.
The state next contends that it was error to admit in evidence over its objection exhibit No. 9. This exhibit is a copy of a decision rendered on August 18, 1949, by the Supreme Court of the Federal People’s Republic of Yugoslavia at Belgrade. It is certified as a true copy in the Serbo-Croat language by the Yugoslav minister of foreign affairs. The translation into English was certified to be correct by the counselor of the Yugoslav Embassy in Washington, Mirko Sardelic, and there is attached a certificate by the department of state at Washington that Sardelic was the counselor to the Yugoslav Embassy when he made the certificate. The decision affirms the right of citizens of the United States to inherit property in Yugoslavia. There was oral testimony that the Supreme Court of Yugoslavia renders advisory opinions without having parties litigant before it and that is the character of the judgment in question. This exhibit did not meet all the requirements of R. C. M. 1947, sec. 93-1001-19, as to the admissibility of foreign records since it does not contain the seal of the court or the signature of the legal keeper of the original, but it was not prejudical error to receive the exhibit since there was ample evidence without it to sustain the reciprocity issue.
Exhibits 10, 11 and 12 are certified copies of decisions of district courts showing in substance that in the cases under consideration American citizens either inherited property from the estate of one dying in Yugoslavia or the decisions otherwise respected property rights of American citizens in property in Yugoslavia. These exhibits contained the seal of the court properly authenticated and were in substantial compliance with R. C. M. 1947, sec. 93-1001-19, and hence properly received in evidence.
The state contends that the court erred to its prejudice in overruling its objections to exhibit No. 12A. Exhibit 12A was a receipt in the form of a letter signed by Lucy Ninkovich residing at Sanger, California, being the widow and sole surviving heir of Tom Ninkovich, deceased, acknowledging receipt of $577.82 from the consul general in Yugoslavia and referred to in exhibit No. 12 which was a court decree of a Yugoslavia court. Consul general Ivancevic testified that in the course of his official duties he remitted the sum of $577.82 in American dollars to Mrs. Ninkovich on August 14, 1951, and that he received exhibit 12A in the regular course of the mail. The court did not err in admitting this letter in evidence. While ordinarily a letter is not admissible in evidence without proof of its authenticity, a well recognized exception to this rule is where a letter is received in due course of mail in reply to another communication proved to have been sent to the purported author of the letter sought to be introduced in evidence. 32 C. J. S., Evidence, sec. 706b, page 609; 20 Am. Jur., Evidence, sec. 956, page 806.
The state next contends that the court erred in receiving exhibit 14 in evidence. Neither exhibit 13 nor 14 is before us. We are told in one or the other of the briefs that exhibit 13 was a copy of a decree of the district court at Orebic, Croatia,. Yugoslavia, entered February 24, 1940, adjudging two sons and a daughter to be the heirs of Mate Vodopic who died in America on January 11, 1934, leaving real estate in Yugoslavia. The decree was not properly authenticated and it was not admitted in evidence until and unless it was further certified. Exhibit 14, we are told, is a copy of the records in Yugoslavia showing that pursuant to the decree of the court, title to the real property had been transferred ana recorded in the names of the two sons and daughter residing at Ferry, South Dakota. It was conceded that this record was not properly certified and legalized, but that further proof would be made before decision should be made by the court. This we are informed in the respondent’s brief was done but since the exhibits are not before us we cannot rule upon their admissibility. Whether admissible or not, there was ample other evidence in the record to sustain the ruling made by the trial judge, and if error were committed in admitting exhibit 14 it was harmless.
Complaint is made that exhibit 19 was admitted over the objection of the state. This exhibit was a copy of the Yugoslav Foreign Assets Law of 1946. It was certified as being a correct translation of the law into English from the Serbo-Croation text. Dr. Stern explained that this law as published in the official Gazette of the Yugoslav Government constituted the law of Yugoslavia covering the subject of foreign funds control. The court properly admitted this exhibit in evidence.
The state made objection to other exhibits that were received which tended to prove reciprocity. No useful purpose would be subserved in passing upon the question whether the court erred in admitting them. There was ample evidence, without the exhibits complained of, to prove reciprocity and were we to say that some of such exhibits were inadmissible, still we would have to say that the rulings were harmless since reciprocity was otherwise amply proven to make out a prima facie case to sustain the court’s ruling. There was no evidence to the contrary.
There being no conflict in the evidence, and finding substantial, credible and sufficient evidence in the record in support thereof, we may not interfere with the trial court’s findings and judgment. It becomes unnecessary in this case to say what this court may do in an equity case under section 93-216 where the evidence is conflicting or where there is room for different conclusions by the trier of the facts, a subject comprehensively discussed in Volume XII, pages 36 et seq. of the Montana Law Review, and the late cases of Bond v. Birk, 126 Mont. 250, 247 Pac. (2d) 199; Sanders v. Sanders, 124 Mont. 595, 229 Pac. (2d) 164; Miller v. Miller, 121 Mont. 55, 190 Pac. (2d) 72, and other cases.
The judgment is affirmed.
MR. JUSTICES ANDERSON and DAVIS, concur.
MR. CHIEF JUSTICE ADAIR, dissents.
|
[
34,
20,
3,
-7,
9,
-57,
28,
47,
-14,
-6,
-31,
-28,
24,
25,
-53,
10,
-48,
17,
24,
-3,
14,
-60,
-66,
20,
17,
4,
3,
19,
-6,
-94,
13,
-34,
-24,
-68,
9,
58,
33,
-26,
24,
-44,
19,
-46,
7,
31,
-39,
51,
-11,
-28,
-24,
3,
27,
-5,
48,
51,
15,
18,
-7,
-43,
-25,
17,
0,
-4,
37,
0,
20,
-5,
36,
33,
-36,
-38,
23,
-15,
29,
18,
-6,
22,
-57,
10,
7,
-10,
13,
-34,
11,
-19,
-85,
-43,
-42,
-2,
4,
34,
-22,
7,
-6,
-6,
14,
30,
85,
33,
0,
8,
2,
-38,
-3,
23,
20,
2,
-47,
-35,
59,
35,
-9,
-5,
12,
53,
-18,
34,
-53,
-1,
-34,
-22,
-60,
-21,
-51,
-48,
4,
-6,
13,
29,
62,
24,
15,
38,
2,
29,
-66,
20,
-25,
-79,
25,
-33,
40,
-40,
38,
-10,
31,
-33,
34,
-22,
50,
-21,
-23,
15,
-11,
30,
50,
-5,
-13,
-4,
29,
-1,
-20,
-58,
16,
-1,
38,
-13,
-12,
-21,
38,
-17,
-57,
-38,
-21,
-21,
54,
14,
19,
-29,
-37,
-2,
-22,
92,
47,
-57,
-4,
-11,
6,
-25,
22,
11,
11,
-10,
46,
62,
-47,
57,
1,
-20,
18,
-13,
-24,
-15,
38,
15,
45,
-19,
5,
-13,
7,
-42,
68,
-46,
4,
16,
-31,
-43,
-49,
37,
-62,
26,
53,
36,
-22,
-30,
-2,
1,
17,
-21,
12,
-29,
-5,
-6,
29,
28,
62,
7,
-35,
-42,
-16,
-13,
14,
-50,
30,
-14,
23,
11,
-26,
-20,
-11,
6,
0,
6,
3,
46,
2,
-22,
15,
44,
-42,
-55,
-17,
-44,
-59,
-12,
-17,
35,
7,
-63,
8,
18,
23,
0,
91,
-68,
-40,
0,
19,
-42,
1,
-43,
-7,
22,
1,
-10,
-11,
10,
-35,
0,
-49,
10,
-5,
23,
10,
-21,
35,
-41,
16,
-51,
-5,
0,
-17,
45,
48,
20,
20,
-3,
-16,
-2,
-11,
39,
29,
-3,
-16,
-12,
38,
33,
-36,
-28,
36,
47,
16,
20,
21,
-7,
34,
30,
-52,
-6,
-17,
34,
-36,
-6,
-16,
-2,
-9,
-43,
6,
0,
-26,
-10,
27,
-14,
11,
-62,
-28,
-27,
20,
-18,
-7,
-16,
19,
54,
-33,
15,
-31,
50,
34,
12,
6,
47,
19,
-12,
7,
29,
-60,
-46,
-17,
6,
23,
-43,
35,
-11,
11,
-4,
-32,
66,
-23,
8,
8,
27,
-54,
-9,
-35,
20,
29,
-5,
11,
2,
24,
8,
-6,
-1,
-30,
5,
50,
12,
-18,
-5,
-46,
-19,
-49,
75,
34,
8,
-56,
-9,
-1,
10,
2,
31,
42,
-44,
30,
-25,
-1,
-4,
-35,
-31,
-26,
25,
-37,
32,
7,
36,
41,
-55,
-44,
23,
-17,
3,
2,
34,
-19,
2,
20,
-17,
13,
7,
-57,
20,
48,
28,
55,
-6,
-21,
2,
-16,
-32,
13,
-12,
43,
40,
-41,
-23,
0,
4,
29,
8,
1,
0,
-9,
6,
16,
32,
18,
-16,
42,
-3,
14,
24,
-14,
10,
-47,
-3,
36,
71,
-22,
-22,
-6,
-59,
-36,
-26,
34,
-29,
15,
1,
-21,
9,
-45,
-3,
-26,
-22,
23,
18,
-34,
-14,
-35,
-27,
54,
-46,
37,
25,
34,
-12,
-46,
-22,
28,
-37,
-113,
-38,
16,
-63,
-2,
19,
-24,
47,
70,
22,
-21,
44,
13,
-28,
30,
35,
36,
13,
-50,
-4,
2,
-76,
-78,
2,
12,
6,
-12,
-55,
10,
21,
-15,
-36,
-36,
-19,
20,
52,
-21,
7,
4,
-2,
25,
-34,
4,
-89,
-17,
-40,
58,
-18,
22,
38,
-45,
-28,
11,
23,
-51,
-5,
19,
-60,
-48,
-16,
10,
-34,
4,
2,
29,
-10,
22,
6,
46,
-5,
-1,
16,
17,
9,
43,
-3,
-16,
30,
3,
73,
25,
41,
5,
12,
-15,
29,
27,
1,
-26,
-18,
-33,
5,
-19,
4,
37,
-4,
41,
9,
-9,
-16,
37,
-15,
-1,
38,
22,
28,
-36,
62,
-19,
-36,
41,
-41,
-14,
22,
49,
-45,
13,
9,
4,
-30,
8,
-29,
34,
-48,
-1,
16,
23,
-2,
-10,
-17,
3,
-43,
-9,
-23,
24,
-16,
-33,
1,
56,
20,
59,
0,
-3,
16,
-10,
23,
-19,
54,
-6,
-20,
39,
0,
60,
27,
1,
12,
-45,
44,
37,
-14,
20,
34,
61,
-16,
-5,
-44,
45,
21,
-66,
1,
12,
-7,
-23,
0,
29,
53,
-21,
31,
45,
-28,
-1,
-15,
4,
30,
16,
25,
-1,
9,
9,
2,
33,
50,
13,
15,
-39,
-21,
-50,
18,
-11,
26,
0,
-6,
0,
-13,
8,
17,
-38,
26,
79,
-38,
-42,
-9,
-52,
-58,
-59,
-40,
21,
22,
0,
30,
-23,
18,
0,
-6,
-44,
54,
1,
-4,
-68,
-39,
12,
6,
8,
47,
4,
6,
-42,
11,
-27,
-38,
-10,
0,
16,
2,
26,
3,
-40,
-30,
-34,
48,
-17,
3,
36,
30,
-27,
62,
0,
-7,
13,
-7,
-56,
-19,
-13,
-47,
-41,
-26,
-37,
-20,
24,
32,
67,
19,
20,
30,
-21,
9,
96,
10,
15,
-40,
18,
52,
-40,
-16,
21,
-4,
2,
-2,
9,
27,
37,
-25,
6,
-29,
49,
40,
41,
3,
-7,
59,
9,
37,
-22,
-55,
-4,
-46,
-37,
-22,
10,
11,
35,
-15,
-7,
-23,
31,
-3,
-10,
21,
-29,
-8,
-6,
-2,
14,
-17,
-49,
-42,
-32,
-24,
19,
3,
-9,
-44,
72,
24,
-61,
39,
13,
-13,
-9,
-22,
-9,
-5,
12,
-12,
43,
53,
2,
-20,
-24,
-47,
37,
68,
-8,
-40,
-26,
-28,
-6,
-75,
74,
8,
3,
82,
27,
0,
0,
19,
31,
-69,
61,
25,
-19,
-34,
-42,
71,
-52,
-1,
-32,
26,
58,
22,
0,
-37,
5,
-37,
-69,
-39,
-7,
-8,
9,
-63,
-23,
-10,
25,
-11,
-12,
-30,
-22,
-14,
-5,
55,
34,
81,
37,
-5,
45,
-53,
4,
4,
0,
8,
-1,
43,
-27,
8,
-63,
52,
0,
0,
27,
-49,
-60,
42,
26,
22,
-30,
-26,
52,
2,
1,
68,
-6,
0,
0,
0,
-11,
35,
46,
47,
6,
-65,
-35,
-31,
74,
3,
-36,
100,
10,
23,
-23,
-53,
17,
25,
-9,
18,
0,
71,
-11,
-97,
-47,
-32,
82,
3,
-33,
18,
-16,
-24,
41,
-44,
28,
-4,
26,
-29,
-2,
1,
-33,
18,
26,
-16,
27,
-17,
-35,
-27,
21,
18,
-56,
-26,
20,
14,
36,
-18,
-39,
-61,
33,
-13,
-32,
-10,
-32,
-24,
-12,
7,
1,
-5,
-21,
-21,
-48,
-9,
21,
-21,
31,
5,
24,
65,
-41,
-67,
7,
14
] |
MR. CHIEF JUSTICE ADAIR:
Appeal from decree of divorce.
Irene Mortenson, on May 9, 1953, commenced this suit for divorce against her husband Paul J. Mortenson.
The husband, on June 19, 1953, appearing by counsel, interposed a general demurrer to the wife’s complaint and made written demand for a bill of particulars. The court overruled the demurrer and, although not a proper case therefor, a bill of particulars was furnished.
Thereafter the husband filed an answer and cross complaint wherein he denies the charges of extreme cruelty made against him and prays that his wife take nothing and that he “be granted a decree of separate maintenance enabling him to live separate and apart from the Plaintiff.”
On October 29, 1953, the parties, by their respective counsel, entered into a written stipulation that the suit “may be tried before Hon. J. W. Speer, sitting without a jury.”
On Monday, May 24, 1954, at 2:00 o’clock p. m., the suit came on regularly for trial before the Honorable J. W. Speer, a district judge presiding in the district court of Cascade County, Montana, at which time Julius J. Wuerthner, Esq., appeared as counsel for the wife and Gene B. Daly, Esq., appeared as counsel for the husband.
At the opening of the trial defendant’s said counsel interposed a motion “to either vacate the hearing at this time and try it later * * * on the basis that Mr. O’Connell [then Mr. Daly’s law partner] is the counsel for the defendant in this case, and he checked Saturday noon with the clerk’s office and was under the impression that a damage action would be tried ahead of this case today, which I understand had been settled today. Therefore, he is not able to be present in court and I have been taken by surprise. We do not have witnesses that are able to be here on such short notice, which are out of the State, and I would like the Court to consider that motion at this time. We are not able to proceed. ’ ’
The wife’s counsel opposed the granting of the above motion and represented to the court that plaintiff had in attendance two witnesses from Butte, Montana, and also the principal of one of the Great Falls schools for whom a substitute had to be obtained to enable such witness to attend the trial.
The record shows:
“The Court: Well, I talked with Mr. O’Connell Saturday and told him this case was set for trial and there would have to be some stipulation before noon so I said I would call in Judge Hattersley if agreeable; otherwise, I would hear it myself and because no stipulation was made and no telephone call was made to me the motion now made by such counsel is not sufficient to grant a continuance in the ease; therefore the case will have to proceed.”
As one of his three specifications of error the husband assigns the refusal of the trial judge to vacate the setting of the trial because of the absence from the trial of one of the husband’s two attorneys of record herein.
The husband’s counsel had ample notice in advance of the time set for the trial of this suit. If the husband had any defense thereto it was up to him and his counsel to come forward with his witnesses and proof and to do this on the day and at the time theretofore set by trial judge for the trial. The suit was then over a year old and we find no abuse of the discretion reposed in the trial judge in requiring the parties and their counsel to proceed at the time and on the day so assigned for the trial.
When the case was called it was represented to the trial judge that the original papers filed in the office of the clerk of the district court “have been lost” and that the clerk had no receipt from anyone covering the missing papers.
Thereupon the wife’s counsel applied to the trial judge for leave to substitute and introduce carbon copies of the original papers and pleadings for the originals so “lost” whereupon Mr. Daly of counsel for the husband again asked for a further postponement of the trial which request was denied, the record thereon being as follows:
“Mr. Daly: At this time I would like to move the Court for additional time so that Mr. O’Connell can examine these substituted pleadings; he made the pleadings in the case. I am not qualified, not being the attorney for these people, to know whether or not these pleadings are accurate and correct, or what was in the file that was lost, and at this time I would like to have the pleadings being used as substituted pleadings held up until such time as Mr. O’Connell can examine them.
“The Court: There is no excuse for Mr. O’Connell not being here; he knew this ease was set and it was his duty to watch the calendar. I will deny the motion. ’ ’
The husband specifies as error the action of the trial judge in proceeding to trial upon the substituted carbon copies of the papers and pleadings rather than the originals. There is no merit whatever in the specification. R. C. M. 1947, section 93-8702, provides: “If an original pleading or paper be lost, the court may authorize a copy thereof to be filed and used instead of the original.” This statute supplied the authority for the trial judge to proceed with the trial on the substituted papers and pleadings.
At the time of the oral argument of the appeal before this court we were orally advised that the “missing” papers and file had subsequently “turned up” in the office of the clerk of the district court but that no one seems to know from whom or from whence they came and there is no showing that any prejudice resulted to anyone by the use of the carbon copies of the original papers contained in the clerk’s file.
At the trial the wife and six other witnesses were sworn and testified on her behalf. Documentary evidence also was introduced. The husband’s counsel introduced no evidence whatever in support of his answer and cross complaint. After hearing all the evidence in the case the trial court gave and entered its decree dissolving the bonds of matrimony and granting to the plaintiff Irene Mortenson an absolute decree of divorce from the defendant Paul J. Mortenson.
On his appeal to this court the husband’s counsel contends that the district court did not have jurisdiction to make and enter such decree of divorce in that the wife “had failed to prove that she was a resident of the State of Montana for one year next preceding the commencement of her action on May 9, 1953, as required by Sec. 21-134, R. C. M. 1947.”
As before shown the trial of this divorce suit was had on Monday the 24th day of May 1954.
At the trial the witness Olaf Dale, who resides at 705 Twenty-first Street North in Great Falls, Montana, testified that he had then known the plaintiff Irene Mortenson three or four years. He further testified: “Q. You know she has been a resident of Great Falls, Montana for at least three or four years, do you! A. Yes sir.”
The witness Andrew E. Nelson testified as follows:
“Q. You may state your name? A. Andrew E. Nelson.
“Q. Where do you live? A. 118 Seventh Street South.
“Q. How long have you lived in Great Falls? A. At least twenty years.
“Q. Are you acquainted with the plaintiff, Mrs. Irene Mortenson? A. Yes.
‘ ‘ Q. How long have you known her ? A. Four years or more.
“Q. Do you know that during that time she has been a resident of the City of Great Falls, State of Montana? A. I do.
“Q. Are you also acquainted with the defendant, Paul Mortenson? A. Yes.
“Q. How long have you known him? A. About the same length of time.”
The plaintiff Irene Mortenson testified that she and the defendant Paul J. Mortenson were married on June 2, 1924, at Glendive, Montana, and that continuously from that date to May 24, 1954, being the date of the trial, the two were husband and wife; that at the time of the trial she resided at 412 Fifth Avenue North and that ever since 1944 she owned and conducted the Johnson Hotel Beauty Shop.
Plaintiff further testified: “Q. How long have you been a resident of the State of Montana? A. Since 1909 with exception of a little over a year I was living out of the State. Q. You have had a bona fide residence in Montana for a period of more than one year before you started this action, is that true? A. Yes. Q. That is correct? A. Yes sir.”
In view of the undisputed evidence in the record before us it is idle to contend that the plaintiff wife “had failed to prove that she was a resident of the State of Montana for one year next preceding the commencement of her action on May 9, 1953.”
We find no error in the record and no merit in the appeal.
It is ordered that the judgment and decree of the district court be and the same are affirmed and that remittitur issue forthwith.
MR. JUSTICES ANGSTMAN, DAVIS, ANDERSON and BOTTOMLY, concur.
|
[
-21,
-15,
-25,
2,
1,
-15,
-25,
5,
-14,
-17,
-4,
-48,
-45,
-13,
-60,
-27,
-97,
-6,
43,
-7,
-60,
-17,
-23,
11,
41,
-47,
-20,
-48,
-36,
-18,
13,
-7,
-31,
-4,
44,
5,
19,
-46,
-17,
56,
7,
-43,
10,
-13,
-18,
-21,
-34,
-8,
-71,
69,
14,
-102,
24,
10,
56,
-14,
-35,
67,
11,
-62,
-53,
12,
-8,
43,
32,
-6,
69,
-32,
-34,
-53,
-9,
-61,
34,
-24,
-31,
34,
13,
23,
-13,
25,
11,
-28,
-16,
-9,
-17,
-25,
-24,
50,
-31,
22,
-27,
45,
-28,
0,
37,
-59,
-65,
-10,
6,
38,
-19,
-32,
0,
-17,
8,
12,
-75,
52,
27,
50,
29,
-13,
80,
39,
24,
-12,
-33,
-53,
-12,
-78,
42,
-7,
-13,
22,
60,
15,
-29,
60,
42,
9,
-36,
-8,
37,
0,
-36,
-47,
-7,
-43,
-45,
-62,
70,
4,
58,
0,
-5,
47,
16,
8,
-21,
-2,
9,
-41,
21,
37,
34,
-54,
-24,
-37,
20,
0,
21,
14,
-61,
20,
87,
-11,
-15,
26,
-18,
-23,
22,
-16,
-64,
32,
13,
23,
-11,
1,
-3,
28,
44,
35,
8,
-83,
21,
33,
3,
-3,
-39,
19,
-7,
-94,
83,
16,
17,
6,
-4,
20,
57,
35,
16,
0,
4,
63,
1,
-8,
7,
36,
4,
-15,
-34,
15,
-2,
47,
-41,
-19,
-53,
-27,
-30,
-12,
18,
18,
-11,
-40,
-40,
-17,
43,
-1,
2,
38,
14,
36,
-13,
-32,
-5,
-53,
26,
23,
29,
10,
-47,
-40,
4,
-32,
7,
36,
-28,
23,
-20,
29,
1,
12,
-1,
5,
49,
29,
19,
10,
37,
29,
28,
-32,
43,
12,
23,
-30,
33,
-19,
6,
-30,
48,
36,
69,
-12,
-6,
-8,
-31,
0,
12,
3,
30,
-4,
-47,
23,
-6,
-25,
45,
-73,
-38,
-54,
-8,
-39,
-22,
-28,
32,
-11,
-38,
-52,
-35,
14,
-29,
-7,
-1,
39,
-7,
-25,
-85,
-71,
33,
-43,
-9,
37,
7,
-46,
55,
7,
-87,
29,
-37,
-1,
46,
-6,
-71,
27,
-13,
44,
-25,
59,
3,
37,
6,
30,
6,
-6,
37,
-27,
-12,
0,
-15,
-49,
-53,
7,
5,
39,
-49,
14,
6,
45,
10,
30,
-15,
-6,
-32,
17,
-30,
0,
54,
-64,
-46,
-39,
2,
18,
-20,
-34,
-14,
22,
-1,
-10,
26,
7,
-36,
-7,
11,
-40,
30,
0,
-18,
32,
-23,
48,
5,
9,
-30,
35,
-17,
81,
-31,
6,
-20,
-36,
-5,
-22,
32,
4,
77,
33,
8,
-13,
-49,
36,
-19,
12,
13,
16,
-62,
-25,
30,
3,
-15,
3,
67,
-20,
-20,
-5,
62,
-52,
0,
31,
-17,
12,
23,
-34,
9,
9,
15,
-1,
19,
-65,
71,
13,
13,
39,
-8,
41,
39,
-29,
-14,
60,
9,
5,
5,
-7,
49,
45,
19,
-19,
-3,
-5,
30,
36,
38,
20,
-1,
6,
-27,
-33,
-3,
37,
13,
-77,
14,
3,
-10,
-44,
21,
16,
-10,
-21,
-11,
43,
27,
-20,
28,
31,
14,
24,
31,
-28,
16,
-70,
-90,
3,
-54,
-15,
40,
59,
-7,
-22,
-10,
1,
4,
19,
-16,
28,
-37,
-59,
31,
-36,
13,
-28,
-42,
-10,
42,
26,
65,
6,
21,
10,
3,
43,
-29,
-45,
45,
-9,
-7,
46,
52,
-30,
41,
51,
-48,
46,
35,
19,
-2,
-61,
8,
-29,
5,
28,
-33,
45,
-62,
30,
-42,
43,
23,
-3,
1,
-6,
24,
-4,
8,
7,
36,
43,
-30,
0,
-30,
26,
56,
-37,
-21,
-16,
49,
-42,
-26,
0,
-12,
-3,
86,
-42,
-73,
-3,
-19,
6,
-51,
-7,
-19,
21,
-27,
38,
5,
-10,
43,
12,
-72,
-55,
-9,
23,
39,
-20,
-35,
-4,
-16,
-27,
19,
-28,
37,
28,
-51,
-26,
15,
43,
-48,
-6,
3,
14,
4,
8,
-64,
-23,
2,
-27,
-45,
46,
-21,
22,
40,
-69,
17,
-8,
11,
-9,
-4,
0,
-21,
-80,
1,
-15,
58,
-39,
11,
-10,
54,
-40,
18,
8,
-7,
-46,
-13,
0,
43,
9,
47,
21,
7,
29,
-38,
39,
26,
13,
-3,
-19,
-23,
-32,
34,
-40,
33,
-4,
47,
40,
-43,
-50,
22,
0,
44,
-7,
0,
-27,
-8,
-20,
2,
30,
25,
65,
16,
47,
-49,
93,
-5,
-5,
5,
12,
7,
-2,
-37,
-27,
1,
23,
32,
3,
-5,
-3,
0,
47,
85,
20,
8,
30,
-6,
-3,
0,
8,
4,
33,
37,
23,
-36,
6,
10,
1,
-8,
-10,
-28,
-7,
-1,
5,
-54,
8,
-61,
11,
-20,
-32,
-2,
-25,
74,
14,
10,
-24,
-7,
-15,
-42,
33,
-20,
-4,
-19,
25,
47,
16,
29,
15,
-41,
-26,
-23,
41,
9,
-29,
5,
8,
1,
-23,
38,
29,
-15,
58,
2,
-64,
3,
4,
7,
12,
32,
-10,
-1,
-23,
-12,
-7,
24,
-26,
65,
18,
-48,
-7,
-58,
-21,
8,
-11,
-12,
-27,
28,
21,
2,
-45,
11,
-47,
-9,
11,
71,
15,
-6,
-11,
-34,
0,
35,
20,
42,
6,
1,
-25,
-13,
-30,
44,
-56,
12,
27,
-52,
-11,
-28,
75,
21,
18,
38,
24,
34,
-2,
-67,
59,
-42,
0,
-20,
-16,
39,
-5,
-1,
21,
-38,
59,
0,
18,
-5,
-29,
-3,
22,
14,
-59,
0,
-10,
14,
20,
16,
-15,
33,
-36,
37,
-28,
30,
31,
-41,
-16,
-47,
40,
-54,
-13,
40,
-38,
35,
-30,
44,
-32,
-21,
46,
-32,
56,
-2,
-2,
-25,
8,
-4,
27,
-71,
-57,
-23,
-29,
30,
-45,
25,
-64,
21,
-4,
12,
-57,
4,
20,
0,
24,
33,
-19,
38,
-34,
-6,
-6,
-58,
23,
-35,
-5,
78,
72,
-1,
-28,
-29,
35,
58,
26,
-1,
18,
-61,
-40,
-68,
1,
-16,
-18,
68,
8,
37,
17,
-48,
82,
38,
1,
52,
2,
10,
24,
22,
24,
-7,
33,
44,
-4,
-7,
-35,
-52,
-4,
14,
5,
-26,
-16,
-16,
47,
2,
-25,
-41,
-44,
8,
-24,
-54,
85,
-48,
13,
-36,
-4,
-29,
-36,
66,
54,
48,
-24,
-50,
29,
6,
7,
-7,
22,
6,
29,
5,
-33,
64,
21,
-34,
-16,
-12,
-2,
0,
-53,
2,
41,
16,
-1,
-57,
3,
-40,
16,
-68,
18,
-1,
23,
14,
-23,
7,
50,
35,
4,
0,
4,
-17,
-47,
-26,
-2,
-16,
-5,
-6,
24,
21,
25,
-17,
-7,
25,
13,
-51,
-12,
13,
-20,
27,
-13,
-1,
8,
43,
6,
12,
-21,
-1,
-4,
-32,
-60,
25,
-46,
0,
-32,
-45,
-37,
-4,
26
] |
Per Curiam.
On motion and pursuant to written stipulation of counsel for the parties litigant, this appeal is ordered dismissed.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES ANGSTMAN, BOTTOMLY, concur.
|
[
-34,
-20,
44,
42,
50,
-10,
22,
-26,
-3,
-20,
-51,
0,
-67,
-54,
-59,
1,
1,
-38,
13,
-40,
6,
56,
29,
22,
17,
-14,
-22,
40,
69,
-10,
3,
-5,
-24,
31,
-24,
-39,
59,
7,
-23,
-35,
7,
24,
-1,
18,
-26,
-34,
53,
13,
11,
20,
-9,
12,
-54,
-20,
-61,
-9,
-54,
7,
48,
-6,
3,
28,
10,
-2,
-16,
-30,
62,
-42,
19,
62,
-23,
26,
65,
-5,
-16,
37,
-3,
-16,
-24,
36,
13,
60,
56,
33,
-1,
2,
47,
50,
4,
32,
-31,
4,
5,
-54,
-49,
48,
44,
-47,
2,
-1,
-16,
31,
44,
-16,
-13,
-53,
-12,
21,
1,
17,
-23,
19,
-24,
14,
7,
43,
19,
11,
25,
18,
-4,
15,
9,
-7,
-24,
18,
-6,
48,
12,
27,
17,
46,
5,
-1,
32,
40,
47,
24,
34,
-9,
8,
-23,
-9,
18,
-4,
-34,
-25,
30,
-18,
-26,
38,
21,
-35,
49,
29,
17,
-11,
-47,
64,
50,
17,
-6,
5,
5,
-4,
18,
-27,
-25,
-20,
51,
35,
-2,
45,
21,
-32,
-3,
-46,
31,
10,
14,
36,
49,
0,
-27,
-31,
-8,
-60,
35,
-17,
-38,
-77,
-38,
8,
-29,
8,
2,
30,
10,
-20,
-2,
-56,
-2,
-22,
-51,
-30,
-53,
-38,
-56,
2,
-13,
-8,
-11,
-34,
-10,
21,
75,
-6,
29,
9,
25,
23,
-47,
-6,
-8,
58,
-22,
-24,
26,
29,
27,
-16,
30,
-66,
18,
25,
-3,
39,
1,
6,
-46,
-45,
-20,
23,
-54,
-44,
26,
69,
79,
39,
-38,
56,
-12,
85,
-18,
-2,
-7,
-10,
78,
-51,
-52,
-2,
19,
-46,
-23,
-60,
105,
23,
4,
37,
-4,
-29,
31,
12,
54,
53,
-12,
-27,
-21,
-6,
69,
-26,
16,
26,
-39,
-6,
23,
5,
-28,
37,
-15,
9,
-10,
-18,
42,
42,
22,
-39,
49,
-40,
1,
-23,
0,
-13,
33,
44,
11,
-28,
-33,
24,
-50,
-53,
62,
44,
8,
-40,
63,
-73,
2,
5,
6,
-42,
-24,
-70,
1,
-19,
-63,
15,
19,
35,
-15,
25,
21,
34,
-30,
-38,
66,
8,
57,
75,
36,
-35,
-10,
-14,
-10,
-7,
-34,
19,
-16,
31,
32,
-63,
-17,
-28,
-37,
23,
-50,
-16,
-63,
-10,
-11,
-5,
1,
51,
18,
41,
43,
18,
42,
-33,
20,
-13,
14,
-9,
-24,
-46,
5,
13,
-14,
-3,
17,
-23,
4,
61,
16,
-7,
64,
-14,
70,
-36,
-12,
-36,
-42,
-17,
-30,
-8,
50,
19,
26,
35,
4,
42,
-48,
-25,
-29,
-15,
1,
19,
-22,
-5,
19,
-22,
48,
-28,
27,
86,
-10,
-20,
58,
48,
-13,
38,
-20,
-5,
40,
-51,
50,
12,
-44,
31,
3,
1,
-4,
26,
8,
-23,
33,
36,
18,
37,
92,
-22,
-11,
18,
-13,
-42,
-9,
-48,
19,
-35,
-11,
-15,
-40,
31,
-34,
6,
-24,
-21,
46,
-29,
-9,
13,
4,
-59,
-86,
-31,
-7,
21,
12,
-2,
-31,
-47,
-14,
15,
-1,
-6,
-20,
-21,
11,
-47,
-17,
75,
17,
-13,
7,
-41,
6,
31,
-1,
33,
-78,
-8,
-41,
-54,
-15,
-34,
-47,
-36,
-23,
-99,
-19,
36,
-19,
-48,
-7,
38,
-33,
-19,
-39,
13,
-33,
53,
-34,
32,
38,
12,
-9,
-19,
24,
7,
23,
-40,
-5,
-43,
3,
35,
-39,
-32,
0,
11,
43,
-44,
30,
-21,
7,
30,
32,
-36,
-21,
22,
-31,
-25,
0,
-9,
-2,
17,
57,
4,
70,
39,
4,
3,
12,
-50,
33,
8,
-44,
-75,
-30,
35,
-63,
6,
-56,
-24,
15,
-15,
67,
-22,
-10,
43,
18,
38,
-44,
23,
2,
24,
-51,
36,
-27,
-57,
-23,
-7,
25,
-85,
-11,
-41,
8,
-21,
-43,
19,
-43,
-68,
-5,
57,
-38,
-8,
-27,
5,
18,
-30,
77,
-38,
22,
32,
32,
-47,
8,
-17,
10,
24,
-39,
61,
39,
-53,
21,
0,
-68,
-32,
31,
-21,
35,
18,
51,
-33,
46,
78,
27,
-51,
-19,
-25,
56,
69,
52,
-24,
-30,
-8,
90,
-20,
43,
4,
-41,
-38,
-1,
-13,
-53,
105,
15,
31,
-45,
68,
27,
62,
66,
-11,
-41,
12,
-21,
-1,
-54,
2,
-27,
-24,
-45,
10,
-31,
-28,
41,
-15,
65,
-1,
-8,
26,
58,
26,
9,
42,
47,
38,
40,
-85,
-51,
49,
-18,
-20,
12,
7,
5,
29,
-16,
-69,
26,
-38,
43,
-29,
-32,
-6,
-35,
15,
58,
9,
15,
0,
-11,
38,
25,
-59,
-32,
-37,
25,
-20,
12,
-60,
-5,
-56,
28,
6,
-18,
-35,
-42,
8,
-64,
7,
18,
10,
-33,
-9,
-38,
2,
-49,
39,
8,
-13,
-43,
31,
24,
-10,
-15,
-55,
-29,
-23,
13,
-24,
-17,
25,
32,
39,
5,
-43,
47,
4,
-9,
38,
-75,
-14,
59,
12,
-4,
62,
2,
23,
48,
36,
-69,
-25,
51,
24,
22,
15,
18,
-67,
16,
0,
-3,
60,
-32,
-73,
-42,
-44,
35,
36,
17,
-14,
-59,
-42,
29,
30,
73,
-28,
-54,
-32,
-5,
65,
10,
12,
9,
36,
4,
-9,
-49,
4,
0,
10,
35,
54,
18,
25,
58,
-57,
35,
24,
-5,
0,
-19,
-34,
-16,
22,
85,
17,
-84,
6,
-22,
24,
16,
1,
69,
40,
-12,
59,
-12,
-30,
-23,
72,
-65,
-16,
76,
-32,
11,
1,
-21,
-6,
-1,
-79,
11,
-63,
15,
38,
48,
-25,
43,
-19,
-22,
9,
-20,
14,
43,
-13,
-30,
-15,
-24,
13,
-60,
30,
21,
-24,
-20,
-48,
-9,
-29,
-32,
32,
-1,
-39,
-29,
28,
3,
9,
-49,
24,
-17,
-15,
6,
5,
11,
-39,
-8,
12,
-21,
-12,
-58,
-59,
14,
38,
0,
3,
60,
24,
65,
-15,
-50,
37,
62,
-49,
22,
82,
26,
36,
7,
-86,
70,
52,
-17,
12,
51,
25,
30,
2,
-1,
-21,
-20,
17,
-24,
9,
71,
4,
-3,
26,
-21,
0,
7,
-21,
-5,
9,
-12,
0,
-15,
-25,
-38,
-15,
-8,
-66,
34,
-41,
-25,
-10,
13,
-5,
30,
-4,
-61,
-9,
-22,
31,
-39,
-29,
8,
-35,
-13,
20,
44,
0,
-20,
-29,
-28,
-35,
8,
-63,
-64,
-66,
16,
34,
18,
-17,
64,
47,
52,
-45,
-41,
-4,
2,
-8,
37,
-14,
-35,
37,
-33,
-59,
25,
-32,
11,
-29,
-56,
19,
5,
-5,
-102,
-20,
-19,
3,
2,
18,
18,
-39,
36,
28,
-64,
-17,
48,
27,
21,
14,
-12,
18,
25,
54,
-7,
58,
-77,
15,
-29,
0,
-8,
-13,
0,
-15,
-40
] |
Per Curiam.
It appearing by written stipulation this day filed in the office of the clerk of this court that the appellants Caleb C. Heath and Viola J. Heath, by and through their attorneys of record Nutter & Hebert, Sidney, and Leif Erickson, Helena, and the respondents C. R. Teter, ¥m. M. Hanlon and Rouene Hanlon, by and through their attorneys Leavitt & Lucas, Miles City, and F. F. Haynes, Forsyth, have stipulated and agreed that the appeal now pending before this court in the above entitled and numbered cause may be dismissed and that the appellants and the respondents pay their own costs.
Now therefore it is ordered that said appeal be and it is hereby dismissed and that appellants pay appellants’ costs and that respondents pay respondents’ costs herein.
MR. CHIEF JUSTICE ADAIR and MR. JUSTICES ANDERSON, DAYIS and BOTTOMLY concur.
|
[
-23,
-12,
-5,
17,
-2,
10,
2,
-24,
-10,
-36,
-37,
-11,
-21,
-29,
-53,
18,
-37,
-22,
29,
-7,
-15,
10,
-24,
17,
4,
-23,
4,
30,
-21,
26,
16,
6,
-18,
28,
28,
17,
36,
41,
-37,
36,
15,
38,
9,
-9,
-1,
12,
39,
6,
6,
25,
-4,
-12,
-51,
-49,
-37,
41,
-27,
-46,
-53,
2,
-7,
9,
34,
5,
23,
-11,
61,
15,
44,
33,
-24,
31,
27,
-16,
90,
-51,
-66,
-33,
-22,
15,
-2,
55,
5,
-43,
-2,
0,
1,
-5,
27,
56,
-43,
-8,
-6,
-35,
0,
69,
16,
-9,
24,
6,
2,
-32,
-12,
5,
23,
-40,
-10,
13,
11,
25,
2,
8,
2,
31,
-11,
53,
-24,
11,
5,
12,
0,
69,
-26,
14,
-15,
9,
26,
18,
-8,
-7,
20,
19,
-27,
-13,
32,
39,
13,
-79,
-17,
16,
45,
-19,
3,
32,
23,
11,
-19,
26,
-20,
-31,
38,
12,
15,
48,
34,
11,
17,
-21,
62,
2,
49,
-2,
26,
-39,
42,
51,
-22,
-5,
-8,
-24,
56,
-15,
1,
9,
17,
34,
17,
0,
45,
-7,
3,
9,
39,
-39,
-25,
44,
-25,
36,
-1,
-66,
-43,
-47,
-17,
-71,
-17,
-41,
64,
-16,
-21,
10,
-2,
-22,
3,
2,
-3,
-6,
-4,
-20,
24,
5,
20,
-18,
-13,
-6,
0,
66,
-14,
-46,
-53,
0,
-7,
-11,
-7,
-16,
-27,
-27,
15,
-7,
61,
-9,
-24,
-2,
-24,
48,
23,
-44,
-28,
-26,
25,
-25,
-60,
-48,
19,
-31,
-23,
42,
7,
26,
0,
7,
53,
27,
11,
43,
8,
-37,
48,
44,
-29,
-63,
-9,
-14,
-45,
6,
-11,
41,
24,
38,
42,
21,
-13,
75,
27,
4,
35,
-1,
13,
-12,
-7,
36,
-11,
-20,
-11,
-32,
-20,
4,
7,
7,
31,
-22,
0,
-50,
25,
-21,
64,
19,
-43,
34,
-18,
-32,
-27,
-21,
49,
7,
16,
19,
-38,
-4,
28,
-34,
-40,
51,
13,
-57,
-22,
58,
-45,
24,
-20,
13,
-28,
-14,
-65,
1,
21,
-40,
18,
-25,
-5,
-26,
23,
-8,
-8,
16,
-32,
10,
50,
12,
27,
-29,
30,
-13,
-41,
30,
-16,
-7,
-12,
9,
8,
20,
-66,
3,
-17,
32,
23,
-26,
0,
-59,
-35,
-33,
-3,
1,
45,
-34,
-30,
-10,
21,
10,
-2,
-8,
9,
5,
-16,
-11,
-5,
8,
19,
49,
-22,
12,
-21,
-10,
30,
-8,
19,
29,
-4,
30,
-58,
-49,
-9,
-19,
13,
19,
3,
-14,
-19,
-21,
19,
15,
48,
-20,
9,
26,
24,
-16,
-21,
17,
10,
7,
-16,
-6,
-25,
-1,
68,
53,
-41,
-11,
25,
24,
81,
37,
-5,
12,
-23,
41,
51,
12,
-21,
-22,
2,
-33,
36,
33,
2,
25,
2,
13,
-9,
32,
26,
44,
-31,
-19,
-33,
11,
11,
29,
17,
3,
0,
-42,
63,
-15,
-1,
-23,
15,
9,
-13,
-11,
-1,
49,
-5,
-23,
-17,
11,
3,
11,
5,
7,
-74,
17,
5,
0,
1,
-38,
-15,
-64,
-49,
-10,
2,
-23,
-27,
8,
-42,
43,
22,
8,
-8,
-12,
0,
-54,
-93,
-14,
-20,
-2,
-36,
-72,
-67,
-5,
8,
-10,
-48,
-29,
36,
-54,
-57,
-24,
27,
-61,
35,
-30,
44,
-12,
-46,
54,
29,
-6,
4,
18,
-14,
41,
-83,
-47,
104,
-15,
33,
6,
20,
46,
-50,
31,
-35,
-51,
-27,
-35,
2,
-22,
11,
-53,
21,
-5,
25,
24,
9,
37,
28,
34,
17,
-9,
8,
-35,
-57,
34,
21,
9,
-3,
-43,
-4,
-19,
-12,
-24,
-26,
-64,
30,
59,
6,
17,
-1,
27,
32,
-2,
-2,
-21,
23,
-31,
-9,
-11,
-37,
-11,
39,
1,
-72,
-31,
-70,
-32,
-1,
48,
6,
-8,
-52,
-19,
49,
0,
42,
5,
-2,
49,
9,
60,
-44,
22,
-5,
19,
-11,
29,
-94,
66,
32,
-26,
31,
33,
-12,
6,
-14,
-26,
5,
-2,
36,
-40,
0,
18,
9,
-7,
64,
-34,
-44,
0,
-69,
-12,
62,
1,
-27,
-21,
-25,
23,
16,
33,
25,
-42,
-18,
21,
-19,
-19,
58,
0,
62,
29,
58,
22,
18,
17,
6,
-15,
-10,
-2,
14,
-51,
0,
-27,
-10,
-21,
-19,
38,
-15,
44,
14,
1,
22,
50,
27,
34,
-20,
0,
56,
26,
26,
28,
-32,
-28,
30,
-26,
-10,
20,
-12,
-28,
16,
-26,
-38,
24,
27,
8,
-25,
-23,
-7,
-40,
-19,
35,
14,
30,
7,
28,
11,
23,
-7,
-22,
-90,
13,
-16,
46,
-25,
-32,
-42,
1,
-21,
-27,
-37,
23,
0,
-77,
16,
-5,
21,
-2,
12,
-31,
27,
-51,
13,
-7,
-5,
38,
5,
44,
-13,
-70,
-51,
1,
-4,
40,
-18,
9,
-13,
35,
-3,
0,
-9,
-6,
-75,
25,
11,
-42,
-15,
23,
22,
-24,
-21,
-36,
-10,
8,
38,
-20,
35,
62,
8,
11,
-39,
12,
-30,
-7,
-9,
12,
14,
-16,
10,
-47,
-7,
31,
30,
6,
33,
-44,
-46,
16,
-24,
48,
40,
-44,
14,
31,
6,
-14,
92,
-31,
-24,
-4,
-50,
-5,
-10,
3,
12,
39,
16,
8,
12,
59,
-45,
24,
-42,
8,
-5,
-18,
-55,
-9,
20,
7,
4,
-30,
-16,
-16,
9,
-6,
19,
82,
30,
-12,
1,
5,
1,
-21,
55,
-63,
-5,
29,
22,
6,
-9,
-10,
-22,
-2,
-13,
10,
-12,
-12,
11,
95,
15,
41,
13,
-15,
-32,
-8,
30,
44,
7,
-30,
-7,
-19,
37,
-1,
19,
-20,
-37,
-14,
-27,
0,
41,
-11,
30,
0,
-29,
-32,
28,
30,
-40,
-10,
71,
-15,
49,
-13,
5,
8,
-4,
-3,
23,
8,
-24,
-10,
-57,
36,
-7,
-20,
-38,
34,
7,
22,
-29,
-48,
-8,
61,
-17,
18,
57,
68,
32,
2,
-27,
24,
15,
-23,
11,
13,
-57,
4,
-10,
17,
-30,
12,
25,
2,
46,
46,
-18,
7,
-2,
13,
46,
-5,
-96,
5,
0,
-36,
13,
7,
-4,
-38,
21,
16,
-36,
31,
-50,
-15,
36,
-11,
-21,
20,
-12,
-49,
-32,
-37,
51,
-6,
12,
44,
-28,
25,
-3,
14,
17,
10,
-17,
-32,
18,
4,
-78,
-18,
3,
-1,
31,
5,
1,
27,
6,
47,
-16,
0,
-18,
8,
-20,
54,
-9,
-53,
55,
-8,
-67,
52,
-26,
-28,
9,
-41,
43,
22,
33,
-93,
32,
-16,
-12,
8,
30,
-38,
-47,
24,
-29,
-21,
-33,
-18,
-4,
21,
19,
-4,
-38,
14,
15,
-35,
54,
10,
-21,
-31,
9,
-43,
1,
-41,
8,
-52
] |
MR. JUSTICE RANKIN
delivered the opinion of the court.
Plaintiff, formerly a police officer of the city of Butte, was charged before the examining and trial board of the police department of that city with being intoxicated while on duty. The board, after trial and hearing on June 3Q, 1922, found him guilty as charged' and the day following the mayor approved the findings and dismissed him from the police force. Within sixty days he sought reinstatement, by instituting proceedings in mandamus directed against the mayor, upon whose application the proceedings were later dismissed. Thereafter, on November 25, 1922, he filed an action in the district court, under the provisions of section 5099 of the Revised Codes of 1921, against the mayor and the members of the examining and trial board to require them to reinstate him. The cause was tried to the court sitting without a jury, and in effect resulted in a judgment of dismissal, from which plaintiff appealed.’
The defendants urge that the^ trial court was without jurisdiction to hear - the cause, their contention being that the action was not commenced within the statutory period of sixty' days after the decision of the examining and trial board.
-Section 5099 provides: “ * * * The district court of the proper county shall have jurisdiction, however, in a suit brought by the officer or member, to determine whether the essential requirements of law have been complied with in the matter of his trial, but such’ suit must be brought by such officer or member within a period of sixty days following the de cisión of said board; * * * provided, further, that no action for the restoration to office by any member of the police department unlawfully or illegally removed or excluded from office shall be maintained unless the same is begun within a period of sixty days from the date of accrual of the cause of action. * * * ”
The complaint upon its face shows that this action was not instituted until November 25, 1922', nearly five months after the cause of action accrued. Plaintiff, however, contends that section 5099 is a statute of limitations, and that the defendants, having failed to plead it, waived its benefits. This brings us to the question whether the sixty-day limitation provided in section 5099 affects only the remedy or is one of the conditions upon which the right of action depends.
In the case of Dolenty v. Broadwater County, 45 Mont. 261, 122 Pac. 919, Mr. Justice Holloway said: “The rule is well settled in this country that whenever a statute grants a right which did not exist at common law, and prescribes the time within which the right must be exercised, the limitation thus imposed does not affect the remedy merely, but is of the essence of the right itself, and one who seeks to enforce such right must show affirmatively that he has brought his action within the time fixed by the statute; and, if he fails in this regard, he fails to disclose any right to relief under the statute. (25 Cyc. 1398; Bank v. Powhatan Clay Co., 102 Va. 274, 1 Ann. Cas. 83, 46 S. E. 294; Lambert v. Ensign Mfg. Co., 42 W. Va. 813, 26 S. E. 431; Taylor v. Cranberry I. & C. Co., 94 N. C. 525; The Harrisburg, 119 U. S. 199, 30 L. Ed. 358, 7 Sup. Ct. Rep. 140 [see, also, Rose’s U. S. Notes]; Hill v. Board of Supervisors, 119 N. Y. 344, 23 N. E. 921.)”
Adhering to the foregoing rule, this court, in the case of Eby v. City of Lewistown, 55 Mont. 113, 173 Pac. 1163, in construing an Act requiring the filing of written objections to improvement district proceedings within sixty days, said: “By many of the courts these provisions are classed as special statutes of limitation, in that the giving of the required notice is a preliminary step necessary to be taken to enforce the claim. (Schmidt v. Fremont, 70 Neb. 577, 97 N. W. 830; Belkin v. Iowa Falls, 122 Iowa, 430, 98 N. W. 296; Van Auken v. City of Adrian, 135 Mich. 534, 98 N. W. 15.) In our opinion, the better view is that the giving of the notice is of the essence of the right of action itself, without allegation and proof of which no recovery can be had. (Dolenty v. Broadwater County, 45 Mont. 261, 122 Pac. 919.)” (See, also, Pierson v. Davis, 70 Mont. 106, 224 Pac. 235.)
Illustration of the rule is found in Franklin v. Franklin, 40 Mont. 348, 20 Ann. Cas. 339, 26 L. R. A. (n. s.) 490, 106 Pac. 353, wherein this court approved of the following: “The statute on which the court below refused the decree in this case is not a mere statute of limitations. It enters into, and is a substantive part of, the right or cause of action, and the party seeking the relief for which it provides must affirmatively establish, before the decree of divorce can be granted, that the action was brought within the two years specified by the statute.”
In Vanderpool v. Vanderpool, 48 Mont. 448, 138 Pac. 772, in construing section 7525, Revised Codes of 1907, which provided, “All claims arising upon contracts * * * must be presented within the time limited in the notice, and any claim not so presented is barred forever,” this court said: “These statutes of nonclaim are special in character; they supersede the general statutes of limitations, and compliance with their requirements is essential to the foundation of any right of action against an estate upon a cause of action which sounds in contract.”
Similarly, in actions to recover for death by wrongful act, where the right to sue is not of common-law origin, but solely the creature of the “Lord Campbell’s Acts” of the several states, which contain conditional provisions requiring that suits’be instituted within a given time, it has been almost universally held that such provisions are not simply statutes of limitations which affect the remedy, but conditions upon which the right to sue depends. (McRae v. New York etc. R. Co., 199 Mass. 418, 15 Ann. Cas. 489, 85 N. E. 425; Anthony v. St. Louis, I. M. & S. Ry. Co., 108 Ark. 219, 157 S. W. 394; De Martino v. Siemon, 90 Conn. 527, 97 Atl. 765; N egaubauer v. Great Northern Ry. Co., 92 Minn. 184, 104 Am. St. Rep. 674, 2 Ann. Cas. 150, 99 N. W. 620; Wood on Limitations of Actions, 4th ed., par. 9, p. 41; Tiffany on Death by Wrongful Act, 2d ed., par. 121.)
General statutes of limitations were at one time regarded as statutes of presumption, upon the theory that the cause of action was presumed to have been disposed of upon the merits, or that it was originally invalid. The modern doctrine, however, is that they are statutes of repose, enacted to suppress stale and fraudulent claims, and intended for the relief and quiet of defendants by putting at rest controverted questions of fact. (3 Parsons on Contracts, c. 6; Anaconda Mining Co. v. Saile, 16 Mont. 8, 50 Am. St. Rep. 472, 39 Pac. 909; Kerrigan v. O’Meara, ante, p. 1, 227 Pac. 819; 25 Cyc. 893.) The principles underlying this later doctrine were forcibly expressed by Mr. Justice Story, in Bell v. Morrison, 1 Pet. (U. S.) 351, 7 L. Ed. 174 [see, also, Rose’s U. S. Notes], thus: “It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt, from lapse of time, but to afford security against stale demands, after the true state of the transaction may have been forgotten, or be incapable of explanation, by reason of the death or removal of witnesses. ’ ’
To take advantage of the general statutes of limitations as a defense, they must be pleaded specially. (Grogan v. Valley Trading Co., 30 Mont. 229, 76 Pac. 211; State ex rel. Kolbow v. District Court, 38 Mont. 415, 100 Pac. 207; American Min. Co., Ltd., v. Basin & Bay State Min. Co., 39 Mont. 476, 24 L. R. A. (n. s.) 305, 104 Pac. 525; Cullen v. Western Title Co., 47 Mont. 513, 134 Pac. 302.) The rule is otherwise in the case before us, where the sole and exclusive right of plaintiff to sue is found in section 5099, with the sixty-day limitation of time so closely interwoven with that right as to make it an integral part of it and a condition precedent to the maintenance of the action. In such eases the complaint must show affirmatively that the action was brought within the time fixed by the statute. Plaintiff, not having commenced the action within the statutory period, has failed to disclose any right to relief under the statute.
Plaintiff suggests that section 9054 of the Revised Codes of 1921 extended the time within which he was required to bring the action one year from the termination of the proceeding in mandamus. That section provides that, if an action commenced within the time limited by law shall fail for specified causes, the plaintiff may bring a new action within a year after the termination of the original action. It extends the time fixed by the general statutes of limitations for the commencement of the ordinary actions. It does not apply to a cause of action created by a statute which prescribes a special limitation period, where the time within which the suit must be brought operates as a limitation of the liability itself, and not of the remedy alone. It is a condition attached to the right to sue. (Dowell v. Cox, 108 Va. 460, 62 S. E. 272; Norton v. Erie R. Co., 167 N. Y. Supp. 177; Partee v. St. Louis & S. F. R. Co., 204 Fed. 970, 51 L. R. A. (n. s.) 721, 123 C. C. A. 292; Cavanaugh v. Ocean Steam Nav. Co., 13 N. Y. Supp. 540.)
Section 9054 had its origin in the Bannack Statutes of 1864, where it appears in part as section 17, page 469, and by amendment in 1895 it was enacted as it is now written. Section 5099 was passed in 1921, at which time the legislature, doubtless cognizant of the multiplicity of lawsuits and dilatory proceedings which theretofore had involved the right of removal of police officers in this state, and which form a part of the records of this court, made the sixty-day limitation of the essence of the right to sue and made that time limit final. When the legislative assembly enacted section 5099, it did not intend tbat by the application of section 9054 an extension of a year should be granted to a litigant who had slept on his rights, as a reward for inadvertence or laches.
Rehearing denied November 15, 1924.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Holloway, Galen and Stark concur.
|
[
-5,
37,
25,
43,
-17,
-7,
2,
-66,
9,
45,
-1,
1,
25,
-11,
81,
-30,
17,
21,
17,
-39,
1,
8,
-1,
-21,
-1,
45,
-70,
-9,
-18,
26,
16,
-53,
7,
22,
5,
14,
-52,
-7,
37,
45,
38,
24,
-20,
-14,
6,
33,
-30,
32,
-55,
-42,
0,
-24,
-52,
48,
-9,
-18,
-35,
-35,
16,
32,
-52,
43,
-31,
-22,
16,
42,
-40,
20,
16,
-40,
-18,
9,
-5,
-50,
18,
-5,
16,
-17,
20,
11,
-3,
19,
-5,
-11,
-27,
-21,
2,
-16,
-5,
-19,
16,
0,
24,
21,
-51,
-38,
-8,
-34,
13,
-33,
10,
-42,
-48,
-4,
-40,
-17,
-50,
15,
24,
-19,
-2,
81,
27,
22,
14,
-56,
-36,
7,
4,
28,
58,
28,
36,
0,
1,
-1,
-17,
85,
46,
53,
-37,
10,
60,
-16,
10,
3,
35,
9,
70,
5,
-7,
-29,
5,
-60,
19,
33,
27,
23,
0,
29,
-3,
23,
44,
25,
-20,
-12,
44,
-42,
16,
10,
-33,
-37,
3,
-32,
27,
10,
-11,
-22,
50,
-8,
-30,
52,
9,
42,
8,
-57,
-50,
6,
6,
-8,
-28,
-9,
4,
-62,
43,
-37,
-28,
-18,
8,
-8,
4,
-59,
29,
-7,
6,
-47,
29,
0,
23,
-45,
-19,
-9,
-17,
22,
-13,
65,
30,
40,
39,
-42,
-25,
-64,
29,
8,
14,
-32,
40,
11,
-9,
10,
8,
-8,
-3,
-4,
12,
19,
10,
38,
23,
-2,
-17,
1,
-17,
-29,
-5,
-44,
-32,
67,
22,
0,
-13,
34,
7,
12,
2,
28,
-4,
-51,
-43,
50,
35,
-12,
37,
-4,
1,
14,
-8,
-21,
13,
-1,
29,
31,
15,
-42,
3,
-53,
30,
50,
24,
48,
-2,
1,
34,
10,
-15,
-25,
17,
-26,
2,
37,
-34,
30,
64,
41,
-14,
0,
-18,
35,
21,
26,
-49,
0,
-90,
46,
27,
44,
45,
45,
7,
30,
-19,
-38,
-29,
32,
5,
-41,
-49,
10,
12,
-12,
9,
49,
21,
32,
-2,
30,
-3,
40,
2,
-54,
-16,
-13,
14,
-51,
-55,
-72,
56,
13,
2,
-48,
17,
-9,
-38,
17,
8,
20,
-18,
4,
-3,
-11,
-21,
-5,
8,
21,
14,
60,
-25,
-56,
23,
2,
-8,
-37,
1,
14,
-7,
-19,
-42,
-65,
-26,
-31,
3,
28,
-37,
0,
9,
-8,
-16,
-44,
-8,
-41,
36,
0,
-2,
-46,
-19,
-4,
45,
18,
-29,
36,
-4,
-40,
-27,
-21,
27,
8,
36,
-71,
-36,
-21,
-1,
42,
-1,
13,
35,
14,
24,
33,
8,
21,
-61,
10,
1,
-39,
-39,
-52,
-10,
32,
-27,
59,
25,
-1,
32,
17,
24,
-2,
-49,
-21,
12,
-48,
32,
2,
-14,
-11,
3,
22,
-22,
41,
17,
-32,
25,
15,
50,
-23,
-16,
35,
-22,
-35,
-40,
-8,
-4,
-12,
-21,
54,
-18,
1,
7,
11,
-2,
42,
4,
30,
24,
35,
-39,
32,
9,
5,
-15,
-10,
12,
-17,
-69,
21,
-14,
-22,
-40,
-6,
-3,
13,
-26,
-11,
24,
-45,
-60,
58,
-33,
17,
33,
-40,
13,
-9,
-19,
-18,
-17,
13,
-23,
-34,
25,
20,
23,
-19,
5,
19,
-31,
27,
-31,
-9,
-3,
-8,
-6,
13,
-7,
5,
-26,
-43,
38,
-13,
-42,
41,
-51,
35,
-26,
-17,
14,
-22,
28,
23,
26,
-31,
6,
6,
-66,
-1,
7,
12,
-30,
-37,
4,
-52,
-9,
-51,
-40,
-40,
-19,
92,
-26,
33,
-2,
-17,
52,
19,
19,
22,
-19,
17,
-14,
6,
19,
37,
-7,
47,
-48,
-9,
-10,
-50,
-41,
-21,
44,
35,
1,
31,
66,
45,
-26,
72,
-44,
-19,
24,
14,
17,
46,
16,
-10,
31,
17,
6,
6,
40,
-22,
11,
15,
-37,
30,
6,
-4,
33,
-45,
13,
-14,
22,
33,
24,
14,
0,
14,
-29,
-50,
-43,
-4,
0,
14,
-8,
46,
17,
7,
3,
-53,
-22,
19,
23,
38,
-37,
-46,
0,
0,
-24,
11,
1,
-28,
-52,
-19,
10,
-15,
-21,
-28,
-43,
-32,
-15,
-21,
30,
-43,
2,
-16,
-10,
-6,
23,
-9,
-23,
2,
-5,
28,
28,
42,
-24,
35,
34,
37,
5,
-53,
-43,
30,
-49,
-18,
5,
46,
-15,
-26,
37,
-25,
-5,
-2,
-53,
7,
-18,
33,
24,
-22,
-38,
-6,
45,
-27,
50,
11,
-12,
-62,
-5,
-18,
0,
-20,
-54,
-46,
-14,
-13,
-8,
10,
-13,
-5,
25,
34,
18,
-3,
-5,
30,
8,
79,
17,
-18,
3,
-42,
1,
-6,
-11,
-32,
-40,
7,
9,
11,
34,
-30,
-20,
-44,
-51,
-47,
3,
-47,
-1,
-37,
-7,
17,
-9,
-32,
-33,
26,
20,
64,
-9,
15,
5,
-39,
43,
23,
-42,
-7,
-5,
15,
-12,
26,
-22,
18,
21,
-14,
13,
-1,
23,
-21,
7,
-34,
0,
-7,
6,
-6,
1,
2,
-20,
14,
-2,
30,
-84,
-12,
24,
2,
20,
0,
-10,
14,
-11,
5,
17,
10,
41,
-37,
41,
-56,
48,
20,
6,
18,
3,
-22,
3,
45,
-36,
-27,
34,
-12,
3,
36,
-16,
38,
-9,
-41,
-12,
-15,
-14,
-15,
-37,
-22,
13,
42,
-10,
-30,
39,
-36,
44,
36,
62,
-17,
15,
1,
-18,
33,
-19,
36,
-9,
-35,
-18,
-20,
1,
-56,
-22,
6,
-28,
24,
60,
20,
49,
-31,
-32,
27,
-36,
-17,
-20,
-18,
-3,
-20,
-49,
-7,
-5,
20,
-31,
33,
9,
-1,
2,
84,
-37,
-1,
-52,
36,
27,
39,
-42,
-3,
-13,
42,
-3,
-5,
-8,
17,
28,
39,
38,
-69,
19,
5,
30,
-28,
-20,
46,
21,
7,
36,
2,
-27,
20,
-13,
6,
17,
-43,
3,
-33,
-30,
-50,
8,
28,
-15,
-13,
37,
33,
53,
28,
-23,
13,
15,
12,
-9,
54,
19,
-16,
17,
-4,
75,
9,
0,
-30,
0,
-40,
-40,
31,
12,
-34,
5,
-13,
54,
-9,
-50,
-10,
86,
-11,
28,
44,
-67,
13,
-61,
-14,
-19,
20,
-10,
36,
-65,
-11,
-3,
-8,
8,
31,
25,
-39,
-28,
-5,
-51,
-40,
21,
72,
6,
53,
18,
-28,
-15,
21,
-5,
0,
24,
35,
-3,
-54,
0,
10,
43,
-11,
-50,
16,
-22,
23,
-26,
-35,
10,
-58,
20,
37,
64,
-21,
45,
0,
-2,
24,
-43,
-10,
32,
-1,
-6,
-1,
-30,
-8,
28,
-2,
18,
-14,
-17,
-33,
9,
16,
47,
26,
0,
45,
-31,
-9,
0,
-6,
46,
57,
-53,
3,
11,
-51,
28,
-13,
0,
22,
25,
-9,
-8,
-49,
-41,
12,
23,
12,
-57,
21,
-8,
2,
-51,
-19
] |
MR. JUSTICE GALEN
delivered the opinion of the court.
By information the appellant, Newton L. Jackson, and one Charles Jarrett were jointly charged in the district court of Fergus county with the murder of Allison McKain on June 13, 1922. Demand for separate trials of the accused was made and granted. Upon plea of not guilty, the appellant was tried before a jury, which rendered verdict finding him guilty of the crime of murder in the first degree, and fixing his punishment at imprisonment for life in the state’s prison. Judgment was pronounced in accordance with the verdict, and, a new trial having been denied, appeal is taken from the judgment and from the order denying a new trial.
A brief statement of the facts will suffice for present purposes. On June 13, 1922, at about the hour of 3:50 P. M., the First National Bank of Roy was robbed by two men, who carried away with them $1,300.96 of the bank’s money, in specie and currency. Frank B. Stevens, the cashier, and the only person in the bank at the time in addition to the bandits, was by them locked in the bank vault, and thereupon the outlaws fled with the money in an automobile which awaited them at the rear of the bank building. Almost immediately after the flight commenced, Stevens was released from his imprisonment, raised the hue and cry, and about thirty minutes after the robbery gave rapid chase by automobile, accompanied by Allison McKain, William Olson and Grover Beale. The chase continued without intermission until the outlaws we?e overtaken near the hour of 5:30 P. M., at a point about thirty miles from the town of Roy. Here the car driven by the bandits disappeared over the brow of a hill about fifty yards ahead of their pursuers and stopped in the bottom of a coulee at the foot of the hill. Thereupon a man appeared at the rear of the automobile pursued, rifle in hand, and aiming his piece at the pursuers, deliberately fired a shot which struck Allison McKain. Suffering from the wound thus inflicted McKain lingered and thereafter died at Lewistown, August 3, 1922.
Evidence was introduced by the state tending to show that the bank at Roy was robbed in furtherance of a conspiracy entered into by the appellant and his codefendant, Charles Jarrett, and that the shot discharged and resulting in the death of Allison McKain was fired by the appellant at a time 'when the cashier of the bank and his companions, in posse, were striving to prevent the bank’s money from being carried away by the bandits. In defense, the appellant denies responsibility for the homicide. Additionally, he contends, that, if the proof be sufficient to establish his guilt, then it is wholly inadequate to establish the state’s theory respecting the degree of murder; i. e., that the homicide was perpetrated in connection with the commission of, or the attempt to commit, the crime of robbery, constituting first degree murder.
The trial of the case in the district court consumed more than one month, and in consequence the record is very voluminous, comprising fourteen large volumes. The appellant has assigned as grounds for reversal 367 alleged errors. We will not consider these separately, as only twelve of them have been briefed and argued to this court. It must be assumed that counsel for appellant have abandoned 355 of the alleged errors assigned, and now place reliance wholly upon the specifications of error by them argued. Of these, in our opinion, but three present questions, the solution of which is required in disposing of this appeal. They will be stated and determined in their order.
1. Was it error for the court to give instruction No. 16, speci fied as error in an assignment numbered 352? The in struction is as follows: “You are instructed that if you find from the evidence in the case, beyond a reasonable doubt, that the said Newton L. Jackson, associated with some other person, committed the robbery herein referred to, and, while escaping with the proceeds of said robbery upon being pursued, lay in wait, and, upon the pursuers’ approaching them, the said Jackson fired upon the pursuing party and inflicted upon Allison L. McKain a wound from which he subsequently died on the third day of August, 1922, then you are instructed that the crime of which the said Newton L-. Jackson would be guilty in such event is murder of the first degree.”
For the defendant it is argued that the instruction has no basis in fact, in that the shooting was not done nor committed in perpetration of, or attempt to perpetrate, robbery; and conceding that a robbery had been committed, that crime was fully accomplished before the time the shot was fired inflicting mortal wound upon Allison McKain. It is emphasized that the shooting took place at a point about thirty miles from the First National Bank of Boy and about one and a half hours after the money had been taken therefrom by the bandits. The state’s theory is that the crime of robbery was not complete while the bandits were being pursued, and that, since the shot was fired during pursuit, the resulting homicide occurred while the bandits were still engaged in perpetrating the crime of robbery.
The statute defining degrees of murder, section 10955 of the Bevised Codes of Montana of 1921, reads: “All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, or perpetrated from a deliberate and premeditated design, unlawfully and maliciously, to effect the death of any human being other than him who is killed, is murder of the first degree; and all other kinds of murder are of the second degree. ’ ’
Counsel for the state, as well as for the appellant, agree that the instruction was given on the theory that the shooting was committed “in the perpetration or attempt to perpetrate # * * robbery.” Eobbery is defined as “The felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Sec. 10973, Eev. Codes 1921.) Based upon the evidence introduced at the trial and the theory of counsel, the instruction was clearly warranted. For illustration, it would not be doubted that the shooting occurred in the perpetration of the crime of robbery if McKain had been in the bank with Stevens at the time the bandits entered, and was then and there shot by one of them as Stevens reached to recover the money taken. The fact that the shooting actually took place thirty miles from the bank, one and a half hours after the money was seized, does not indicate as a matter of law that the perpetration of the crime of robbery was entirely concluded. "When the facts are examined, it is apparent that from the moment the bandits left the bank, Stevens and his companions were in hot pursuit, disputing the right of the bandits to the money, and endeavoring, to recapture it, while on the other hand the outlaws were endeavoring to escape the imminent presence of Stevens and his associates, and at all times striving to carry away the money which they had taken. Indeed, action was unbroken and continuous fi’om the moment Stevens received the command to “stick ’em up” until McKain fell, mortally wounded; and so immediate and vigorous was the pursuit that it cannot be reasonably asserted that the bandits escaped the presence of Stevens and his party before the fatal shot was fired. That presence threatened the bandits until pursuit was abandoned after McKain was wounded.
Counsel argue that, under our statute, the crime is complete when there has been a violent and forcible taking, though the asportation of the goods may be ever so slight. It is true that our statute (sec. 10973, supra) defines robbery as “the feloni ous taking of personal property in the possession of another, from his person or immediate presence,” etc., and that asportation is not, in so many words, included in the offense. But the word “taking” included both seizure and movement, hence “It is quite clear that the crime of robbery is not complete without some carrying away, and the only question which can arise in this connection relates to the distance the goods must be carried, and the circumstances under which they are carried, in order to segregate the continued asportation from the crime itself. Though the crime of robbery is complete with only a slight asportation, yet, if the carrying away is in fact a long distance, the crime is still in process of commission if pursuit of the robber is immediately begun and continued without interruption until the flight has carried the perpetrator to a place of seeming security, or until uninterrupted pursuit is no longer continuously active. The mere fact of delay in beginning the pursuit until an alarm can be sounded and pursuit organized and instituted does not necessarily segregate the flight and prevent it being part and parcel of the crime.” (State v. Habig, 106 Ohio St. 151, 140 N. E. 195.)
■ From 1 McClain on Criminal Law, page 327, we quote: “The killing is committed in the perpetration or attempting to perpetrate one of the named felonies if it occurs at any time while the perpetrator is engaged in any acts immediately connected with such felony, even though the felony may have been already completed.” • '
In the case at bar, while the crime of robbery had sufficiently progressed to support a conviction against Jackson for that exime, he was nevertheless still engaged in his felonious purpose, that of carrying away the proceeds of his crime, and there had been no division of the spoils; neither had the conspirators reached a place óf seeming security, nor had their continuous flight come to an end. The alarm was so quickly ■sounded, the pursuit so immediately begun, and so continuously pursued to the point where the homicide was committed that the conclusion must be x*eached that the homicide was committed by Jackson while perpetrating the robbery, and as a part of the res gestae.
It cannot be said, therefore, as a matter of law, that the crime of robbery was complete at the time of the wounding of McKain, and it was entirely proper to submit the question for determination by the jury from all the facts proven. The cases of Conrad v. State, 75 Ohio St. 52, 8 Ann. Cas. 966, 6 L. R. A. (n. s.) 1154, 78 N. E. 957, and State v. Habig, supra, and in effect Francis v. State, 104 Neb. 5, 175 N. W. 675, support the above reasoning on facts exhibiting less continuity of action than are here presented.
People v. Huter, 184 N. Y. 237, 77 N. E. 6, Dolan v. People, 64 N. Y. 485, People v. Wardrip, 141 Cal. 229, 74 Pac. 744, cited and relied upon by the defendant, deal with murders perpetrated in connection with burglaries, and in each instance the shooting occurred, not while the bandit was in the act of breaking and entering, but after he had abandoned that course, or had effected a breaking and entering and was in flight. In other words, in those eases it can be argued that the felon’s original course of action and intent had ceased when the killing occurred, though the reasoning in Conrad v. State, supra, seems to us more persuasive. Here actions and intentions were in process of fulfillment. The decision in Griffin v. Western Mutual Benefit Assn., 20 Neb. 620, 57 Am. Rep. 848, 31 N. W. 124, rests on a refinement of analysis which we are unable to appreciate. It itemizes and separates the incidental movements in an unbroken action in much the same manner as slow motion pictures make fiction of fact. No authority is cited, and the facts stated in that opinion do not justify the conclusion there reached. There is nothing in Pleiming v. State, 46 Wis. 516, 1 N, W. 278, nor Hoffman v. State, 88 Wis. 166, 59 N. W. 588, inconsistent with the views here expressed.
While, as noted above, counsel have assumed that instruction No. 16 was formulated on the theory that the murder was committed in the perpetration of robbery, yet careful study of the language employed indicates that the trial court in giving the instruction proceeded on the theory that the alleged murder was perpetrated by the accused while “lying in wait.” The evidence furnishes ample foundation for this theory, and it goes unchallenged.
2. Was it error for the court to exclude the offered testi mony of Ethel Abbott, which we find assigned as error in specifications 301 and 302?
Frank Maybelle, a witness offered by the defense, gave testimony to establish an alibi. During the state’s rebuttal witnesses were called who testified that the general reputation of Frank Maybelle for truth and veracity in the community where he lived was bad. Conspicuous among and typical of these witnesses was A. W. Ogg. Attack was thus made by the state upon the general reputation of the witness Maybelle in order to discredit his testimony, and thereafter at the earliest opportunity, the defendant attempted to^ show by the witness Ethel Abbott, on surrebuttal, that the general reputation of the witness Maybelle was good. We are at a loss to understand the court’s ruling forbidding the reception of such evidence. In our opinion error was thus committed requiring a new trial.
The attorney general argues that the effect of the ruling, even though it be erroneous, was minimized because other witnesses gave testimony tending to impeach the witness Frank Maybelle. And he argues that such other testimony was sufficient to persuade the jury to place no credence upon May-belle’s evidence. This all may be true, but thereby we are brought into a field of conjecture and speculation. It is just as legitimate to guess that the other testimony had no effect on the minds of the jurors, and that, if they rejected May-belle’s statements at all, it was because of the highly damaging testimony respecting his general reputation in the community wherein he lived. A witness is presumed to speak the truth. This presumption, however, may be repelled, among other things, by evidence affecting his character for truth, honesty or integrity, the jury being made the exclusive judges of Ms credibility (sec. 10508, Rev. Codes 1921), and a witness may be impeached by the party against whom he was called, by evidence that his general reputation for truth, honesty and integrity is bad. (Id., see. 10668.) Evidence as to the character of a witness in any action is admissible only after his character has been impeached. (Id., sec., 10670.) This presumption of truth accompanied Maybelle’s testimony until diminished or repelled, if either, by the statements of the witness Ogg and others, but the law does not allow this result to be reached without giving the party who offers the witness opportunity to overthrow or rebut such impeaching testimony. It should be noted that no question arises here as to the impeachment of an impeaching witness. The offer of testimony through the witness Abbott was not as to the reputation of the impeaching witness Ogg, but as to the reputation of the witness Frank Maybelle. Sections 10508, 10668 and 10670, Revised Codes of 1921, permit the use of reputation as hearsay testimony indicative of one’s' character or moral constitution. (See, also, Wigmore on Evidence, 2d ed., 1609.) Of course there must be a limit to such collateral inquiry, for in most instances testimony for and against the reputation of a witness for truth and veracity could be recruited ad infinitum. Here, however, the defendant was prevented from offering any testimony against the attack which had been made on the reputation of the witness Maybelle. This was the denial to the defendant of a substantial right on the very threshold of the inquiry with reference to the reputation of Maybelle, a witness giving material testimony of great importance to the defendant, and constituted reversible error. (See. 10670, Rev. Codes 1921; In re Williams’ Estate, 52 Mont. 192, Ann. Cas. 1917E, 126, 156 Pac. 1087; Jones’ Commentaries on Evidence, sec. 865.)
3. Did the court err in giving instruction No. 30, urged as error in specification No. 362? The instruction is: “You are instructed that, when a crime has been committed, it is the duty of a citizen having knowledge of any fact or facts relative to the commission of such crime to impart such information to the prosecuting officers of the county in which said crime was committed.”
Section 11729, Revised Codes of 1921, provides as follows: “Every person who has reason to believe that a public offense has been committed and that a certain person has committed such offense, must make complaint of such person before a magistrate of the township in which the offense was committed, or if there is no magistrate in such township, before the nearest magistrate.”
The instruction above quoted may state a good social principle, but it is not warranted by the statute or the evidence in this case. It was based, apparently, on testimony offered by counsel for the state, who asked of witnesses offered to establish the defense of an alibi on part of defendant questions substantially as follows: “Did you tell any me that you had this information * * * ” or, “You know that the sheriff and I were at Winnett looking up evidence in connection with this case. Why didn’t you tell me [meaning the county attorney] or Sheriff Woods, what you know about this case?” It is plain that these questions were put to the witnesses for the purpose of discrediting them as unworthy of belief, because of conduct unbecoming good citizens. The statute (sec. 11729, supra), defines the obligation of citizens who have reason to believe that a public offense has been committed, and that a certain person is guilty, to make complaint before a magistrate; however, there is no duty placed on him to communicate to a magistrate or other persons evidence within his knowledge tending to disprove the guilt of a person under investigation. The failure of the witness to disclose such evidence does not permit of his being subjected to such discrediting examination. The court was in error in admitting such testimony over objection, and the instruction given was erroneous.
In passing we note that the assignments of error are not • specified in appellant’s brief and argument, and in con sequence it has been necessary for the court to identify various subheads of the argument contained in the appellant’s brief, with the particular specifications of error assigned.' We should not be required in the decision of cases to undertake this character of labor.
The judgment and order are reversed, and the cause is remanded to the district court c_' Fergus county for a new trial.
Reversed and remanded.
Me. Chief Justice Callaway and Associate Justices Holloway and Stark concur.
Mb. Justice Rankin, being disqualified, takes no part in the foregoing decision.
|
[
-5,
44,
1,
9,
-41,
-40,
-17,
-20,
10,
-7,
24,
-33,
-16,
-15,
24,
4,
-57,
-79,
42,
-7,
4,
-8,
-23,
-37,
-8,
-11,
4,
28,
-33,
38,
33,
22,
34,
10,
67,
30,
18,
-36,
30,
14,
28,
-15,
15,
1,
27,
25,
65,
-64,
-9,
-12,
14,
-73,
-21,
49,
-9,
6,
51,
0,
-24,
53,
32,
-35,
17,
-36,
30,
-24,
6,
2,
13,
-36,
11,
-23,
-17,
-26,
7,
-2,
-34,
-20,
-20,
-70,
-34,
1,
8,
-21,
-43,
-30,
-88,
-66,
-30,
40,
35,
40,
18,
-15,
54,
0,
-15,
-22,
-26,
-7,
25,
-74,
-52,
-6,
-3,
-33,
-24,
20,
72,
23,
8,
33,
53,
25,
-17,
-75,
-24,
12,
-29,
53,
-8,
55,
34,
-21,
28,
-16,
-19,
14,
74,
-12,
-23,
35,
60,
46,
-17,
-24,
5,
-41,
-58,
-23,
-35,
7,
-39,
14,
20,
59,
-25,
6,
5,
25,
-25,
-19,
2,
40,
0,
-46,
-41,
-17,
-30,
13,
-17,
-35,
97,
-1,
5,
8,
-24,
-55,
-6,
-67,
-37,
-10,
3,
45,
42,
35,
-6,
-50,
8,
-1,
9,
23,
25,
-14,
-23,
35,
27,
-14,
37,
-9,
0,
25,
-42,
-25,
-47,
-45,
22,
-76,
44,
26,
64,
-30,
20,
-41,
27,
-45,
32,
0,
51,
23,
7,
-19,
-10,
13,
-61,
38,
-3,
-28,
31,
-23,
7,
8,
-37,
6,
5,
-56,
4,
26,
-28,
-42,
33,
-18,
1,
15,
-4,
0,
-12,
-67,
-36,
-28,
19,
-75,
36,
-15,
43,
62,
5,
-30,
-19,
5,
23,
8,
5,
37,
-44,
94,
69,
-41,
-24,
-27,
6,
-25,
-33,
47,
6,
47,
-18,
17,
-38,
-11,
23,
-86,
34,
1,
8,
-51,
70,
-23,
3,
-20,
32,
17,
-25,
30,
14,
-35,
-22,
5,
4,
-7,
45,
-50,
-24,
21,
29,
7,
99,
-13,
-13,
21,
60,
0,
-13,
-18,
15,
15,
12,
-2,
-32,
0,
11,
33,
-38,
-35,
27,
-4,
-28,
32,
65,
9,
-14,
-14,
-2,
-40,
41,
21,
-3,
-4,
-62,
41,
46,
20,
-9,
19,
-43,
-13,
-3,
-15,
123,
-38,
23,
-95,
13,
21,
-5,
-9,
-35,
61,
-62,
-40,
5,
-14,
-3,
-3,
-13,
-25,
16,
3,
61,
-60,
68,
-55,
-19,
-11,
-5,
-16,
-12,
-52,
-24,
48,
29,
-4,
6,
16,
35,
44,
62,
0,
-30,
3,
-5,
39,
30,
-7,
17,
13,
55,
-86,
12,
11,
-13,
-6,
-26,
-19,
-13,
-44,
18,
-20,
11,
-109,
-108,
38,
-27,
-31,
-54,
14,
-70,
46,
0,
-50,
-16,
-6,
4,
7,
30,
19,
-2,
-6,
-2,
-35,
18,
21,
78,
11,
-14,
25,
17,
36,
-31,
-51,
50,
25,
9,
27,
-39,
3,
9,
44,
30,
-26,
-35,
46,
-61,
3,
-35,
14,
-6,
-58,
52,
9,
-1,
-16,
-20,
-44,
-67,
33,
18,
12,
39,
18,
36,
-13,
-13,
46,
3,
17,
-67,
-20,
-17,
1,
52,
-18,
5,
-6,
38,
18,
9,
23,
58,
-6,
-4,
-43,
-8,
12,
-18,
-35,
-99,
-47,
9,
19,
68,
19,
-20,
-32,
9,
-30,
30,
-4,
22,
-34,
-26,
-30,
4,
-19,
-33,
24,
23,
-47,
-10,
24,
73,
46,
-23,
-23,
-19,
-13,
-11,
38,
-12,
23,
30,
-9,
2,
18,
-22,
-11,
-26,
9,
-37,
-31,
-1,
6,
-14,
-22,
42,
8,
-10,
-35,
-10,
-46,
87,
-90,
26,
29,
-74,
31,
21,
2,
33,
22,
19,
12,
38,
-48,
-32,
-13,
-21,
-44,
-25,
-24,
12,
-10,
-35,
-4,
21,
17,
-19,
5,
8,
-75,
7,
34,
-7,
39,
-9,
-57,
10,
21,
-32,
90,
24,
-9,
-60,
25,
7,
-1,
18,
2,
-22,
30,
15,
-9,
-16,
51,
9,
-11,
3,
-11,
-15,
-23,
38,
-10,
-20,
56,
28,
-3,
-45,
-8,
16,
4,
-44,
14,
15,
20,
-25,
-12,
11,
-6,
-40,
-18,
12,
-7,
6,
-12,
25,
-28,
-48,
-39,
-9,
-5,
-8,
-11,
-2,
36,
-52,
11,
-2,
27,
-22,
-8,
-10,
13,
11,
-35,
-7,
12,
-31,
34,
7,
3,
-44,
-24,
-4,
-36,
-7,
55,
29,
2,
10,
0,
39,
62,
-50,
8,
2,
0,
18,
21,
-5,
76,
14,
4,
43,
-29,
-15,
60,
1,
32,
39,
17,
13,
-5,
3,
3,
-5,
10,
-24,
-42,
-28,
17,
-19,
44,
33,
16,
10,
-35,
8,
17,
-79,
-30,
61,
-43,
11,
16,
5,
19,
26,
-91,
-36,
17,
-46,
29,
-16,
-5,
-14,
-14,
22,
-21,
-27,
15,
-38,
-58,
20,
12,
33,
-3,
9,
57,
35,
39,
-2,
39,
-35,
77,
16,
25,
-29,
8,
1,
33,
-65,
26,
1,
10,
-37,
-9,
-19,
-32,
-1,
0,
47,
35,
21,
-29,
-32,
-7,
14,
24,
-27,
-18,
34,
22,
3,
-34,
-52,
-9,
-17,
3,
3,
-27,
13,
-49,
-26,
53,
2,
45,
-18,
-17,
4,
11,
22,
7,
-68,
-33,
21,
18,
-23,
70,
12,
20,
-40,
31,
4,
9,
-62,
15,
25,
-20,
-55,
46,
-22,
2,
3,
-19,
48,
-22,
70,
33,
-18,
28,
68,
27,
-2,
40,
0,
-5,
-1,
-42,
-56,
-39,
0,
-22,
52,
-37,
-4,
12,
6,
-6,
-50,
-12,
-39,
23,
-11,
-11,
32,
20,
14,
16,
-34,
5,
0,
0,
-9,
-12,
9,
-5,
23,
1,
22,
17,
2,
-11,
-43,
-37,
-78,
-47,
35,
9,
36,
13,
-8,
-23,
-17,
-22,
-5,
15,
46,
27,
-39,
35,
-37,
-9,
23,
46,
-38,
100,
62,
-62,
24,
39,
-8,
12,
-5,
43,
11,
-42,
-16,
11,
2,
-18,
-6,
-51,
-26,
-31,
-62,
7,
8,
1,
45,
-40,
-2,
-53,
-32,
48,
71,
-57,
47,
57,
29,
27,
5,
-14,
5,
-44,
-48,
19,
-43,
-9,
56,
45,
38,
25,
18,
65,
21,
-12,
-15,
6,
-22,
36,
-91,
27,
34,
-38,
12,
34,
0,
-17,
1,
-41,
-13,
21,
-26,
-3,
5,
-19,
30,
-33,
-40,
29,
52,
29,
-20,
63,
31,
17,
-30,
-20,
4,
-8,
-32,
-6,
40,
-23,
24,
35,
7,
15,
56,
-2,
11,
-5,
-11,
12,
16,
-2,
36,
14,
48,
-81,
1,
-7,
-20,
36,
28,
-59,
-2,
-12,
-28,
5,
6,
-28,
-17,
29,
-2,
47,
18,
-4,
8,
-38,
13,
-16,
41,
19,
-29,
-41,
-13,
8,
17,
19,
-19,
17,
-22,
-38,
18,
44,
-1,
40,
-15,
57,
-56,
21,
-41,
43
] |
PER CURIAM.
Relator’s application for writ of mandate herein is after due consideration by the court denied.
|
[
-21,
-66,
-7,
1,
41,
12,
6,
46,
20,
-50,
-59,
-4,
-25,
89,
-26,
77,
26,
63,
66,
-15,
1,
64,
34,
56,
-15,
-59,
62,
5,
46,
10,
-22,
-1,
-44,
15,
-73,
-69,
-8,
-31,
0,
14,
9,
22,
-3,
52,
-25,
-52,
12,
39,
0,
34,
-45,
1,
-96,
-20,
-23,
-3,
65,
-77,
-17,
-37,
-59,
51,
-6,
63,
1,
-58,
-71,
0,
21,
37,
43,
20,
14,
-25,
46,
-29,
-45,
-28,
13,
52,
36,
61,
11,
47,
25,
46,
-12,
22,
22,
19,
-11,
-42,
-43,
-5,
-104,
108,
29,
-50,
-17,
60,
0,
33,
63,
-61,
-115,
-52,
28,
48,
22,
18,
-29,
43,
-72,
-61,
3,
23,
-34,
-1,
58,
-38,
-79,
25,
-47,
-5,
29,
39,
-51,
26,
35,
-23,
46,
79,
109,
54,
3,
-32,
53,
-1,
-16,
0,
-41,
-1,
84,
-8,
-1,
-55,
42,
5,
-55,
-28,
63,
25,
-42,
19,
12,
11,
-1,
-33,
36,
39,
67,
15,
-102,
31,
61,
-9,
-25,
-11,
9,
6,
-3,
21,
-33,
-20,
-74,
-63,
-14,
17,
29,
13,
49,
43,
35,
44,
45,
8,
-18,
22,
14,
-60,
-24,
-32,
47,
75,
55,
28,
4,
-36,
0,
13,
-36,
34,
-68,
32,
30,
-36,
-1,
-104,
18,
-10,
-25,
-63,
-47,
-39,
44,
-38,
78,
32,
38,
62,
-12,
12,
-22,
-76,
23,
26,
37,
13,
-11,
-2,
-18,
-17,
-66,
20,
55,
-6,
9,
3,
7,
9,
-21,
34,
36,
19,
24,
-59,
-30,
46,
-13,
-19,
-24,
-11,
56,
-90,
0,
-37,
-91,
56,
59,
-74,
36,
36,
-11,
-56,
23,
-15,
77,
11,
53,
-21,
16,
0,
-16,
23,
63,
23,
33,
-39,
40,
-7,
-74,
52,
9,
25,
-14,
25,
16,
-22,
52,
18,
-15,
-27,
76,
-35,
-2,
-20,
-34,
-12,
-19,
12,
2,
55,
41,
19,
44,
-67,
6,
-6,
67,
-20,
2,
65,
-27,
5,
-18,
49,
-7,
-74,
-3,
-43,
-2,
-66,
1,
67,
-35,
-40,
-9,
22,
4,
-1,
87,
-1,
14,
6,
9,
52,
21,
70,
-58,
69,
-39,
64,
-83,
89,
11,
-46,
6,
-29,
29,
92,
-28,
-13,
-23,
-40,
21,
-7,
-20,
-50,
-71,
-1,
29,
52,
13,
15,
18,
-50,
43,
18,
0,
52,
-28,
-51,
58,
-24,
30,
-6,
-12,
36,
-26,
-59,
-69,
-74,
74,
54,
-42,
49,
2,
49,
65,
-49,
-19,
-15,
-22,
-5,
-1,
-8,
24,
80,
14,
86,
17,
-54,
-42,
69,
16,
-5,
-4,
12,
-37,
-3,
-44,
13,
-26,
17,
-18,
34,
0,
-12,
66,
19,
-70,
-32,
-61,
31,
-60,
3,
-21,
-21,
-16,
-16,
5,
-76,
-18,
-47,
-1,
29,
8,
-34,
42,
-16,
-3,
72,
-5,
-17,
5,
4,
-26,
-58,
-69,
10,
-17,
-15,
-13,
-72,
-41,
-23,
2,
38,
-1,
11,
-42,
8,
9,
4,
46,
4,
15,
16,
-64,
11,
22,
4,
-21,
-19,
-45,
23,
-89,
-19,
-14,
34,
-32,
10,
-27,
-79,
0,
27,
35,
-11,
-27,
6,
9,
1,
27,
63,
-50,
-30,
-21,
-23,
7,
12,
35,
82,
-10,
36,
19,
-27,
-27,
-7,
-46,
-60,
54,
-49,
21,
71,
35,
49,
19,
6,
-28,
-40,
-83,
-12,
-27,
-11,
-45,
25,
-28,
-20,
41,
80,
-47,
-47,
-94,
-36,
-30,
-39,
2,
66,
6,
10,
25,
32,
-6,
10,
36,
70,
-51,
-8,
10,
-49,
-49,
31,
12,
75,
-10,
-31,
-10,
-54,
1,
-32,
17,
-5,
-17,
7,
-69,
3,
7,
27,
12,
36,
-18,
-3,
-41,
15,
12,
-8,
47,
-19,
14,
-53,
-33,
42,
-40,
-53,
-40,
-64,
-58,
-4,
-43,
-47,
-66,
-38,
30,
-43,
22,
0,
-48,
-26,
10,
35,
-32,
52,
48,
37,
-32,
10,
37,
-12,
-6,
58,
42,
21,
-27,
0,
-15,
-16,
-9,
63,
34,
18,
9,
55,
-19,
37,
-7,
-17,
-47,
-53,
26,
29,
32,
60,
13,
-20,
1,
-32,
-61,
32,
17,
-39,
2,
8,
24,
-5,
-12,
0,
42,
-17,
30,
28,
63,
60,
4,
-38,
13,
-34,
-73,
-50,
42,
31,
-54,
-1,
-20,
31,
-29,
26,
-20,
18,
0,
52,
-15,
27,
62,
-53,
-5,
-76,
77,
-15,
18,
16,
9,
41,
-17,
0,
41,
-44,
-54,
0,
-49,
70,
52,
-44,
38,
29,
-1,
-8,
-43,
36,
22,
50,
-11,
-21,
-20,
-7,
-71,
-9,
-19,
-71,
-54,
-60,
-33,
-77,
-24,
-12,
49,
13,
-16,
-42,
39,
-27,
-8,
3,
-23,
23,
-27,
2,
2,
32,
47,
16,
7,
14,
80,
-2,
-41,
-66,
15,
-6,
41,
-40,
-31,
3,
-29,
-21,
20,
-15,
8,
5,
-19,
19,
23,
-45,
-62,
32,
-57,
-21,
-20,
-59,
95,
26,
23,
-7,
16,
3,
-3,
7,
-7,
-38,
-15,
61,
26,
-38,
32,
-11,
18,
23,
-22,
0,
101,
38,
-41,
-7,
-6,
51,
5,
14,
-3,
-37,
2,
-29,
49,
8,
3,
15,
43,
18,
-2,
18,
63,
9,
11,
-36,
46,
-13,
18,
54,
-93,
44,
-41,
34,
32,
-39,
-110,
70,
0,
25,
37,
21,
21,
-56,
13,
11,
0,
25,
34,
35,
1,
22,
1,
55,
23,
0,
0,
36,
-48,
-3,
3,
39,
-21,
0,
29,
13,
34,
-14,
33,
-13,
-47,
-1,
0,
32,
28,
-58,
46,
76,
-7,
10,
2,
4,
34,
-5,
-16,
40,
22,
-49,
-13,
-13,
32,
-29,
47,
22,
49,
-1,
40,
15,
53,
8,
33,
51,
-17,
30,
-41,
92,
0,
-12,
14,
-8,
-40,
-27,
-35,
-14,
73,
-6,
-35,
35,
69,
-69,
1,
16,
-36,
2,
-51,
-11,
9,
24,
25,
30,
23,
-12,
17,
-16,
-30,
18,
29,
-8,
46,
-68,
-40,
29,
-77,
-34,
0,
47,
-1,
-42,
-2,
-22,
7,
-19,
25,
-96,
31,
-32,
-87,
18,
-21,
-15,
10,
15,
-39,
17,
-7,
10,
4,
-32,
-60,
-28,
-40,
-18,
66,
-23,
0,
-71,
24,
-20,
-47,
-72,
34,
45,
31,
-32,
-13,
5,
-54,
77,
-91,
-7,
-14,
47,
-54,
3,
-25,
30,
28,
-11,
-31,
7,
-62,
-46,
-14,
17,
-11,
0,
35,
-7,
-75,
11,
-27,
56,
-24,
-83,
20,
32,
-20,
-89,
69,
-19,
-43,
40,
-4,
71,
-7,
8,
28,
-34,
-23,
57,
-34,
-61,
-6,
-1,
32,
54,
56,
1,
2,
-33,
13,
-15,
-12,
-20,
-5,
-41,
22,
-65
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was instituted by the plaintiff to enforce the specific performance of a contract for the sale of real estate.
On January 25-, 1921, plaintiff and defendants entered into a contract in writing, by the terms of which plaintiff agreed to sell to defendants, and defendants agreed to purchase from plaintiff, lots 4 and 5, block 10, original town site of Winnett. The contract provided that plaintiff should convey the premises “in fee simple, free of all encumbrances whatever” by a good and sufficient warranty deed, and should furnish an abstract showing “good and merchantable title in the grantor.” The contract and defendants’ checks were deposited in escrow with the First National Bank of Winnett under an agreement in writing that, if the abstract furnished disclosed a clear title in plaintiff, the checks should be delivered to him and the contract to the defendants; but, if “clear title cannot be furnished,” the checks should be returned to defendants and the contract to plaintiff.
' It is alleged in the complaint that. plaintiff fully complied with all the terms of the contract by him to be kept or performed; that he furnished to defendants an abstract “showing good and merchantable title in the plaintiff”; that he executed a warranty deed conveying the lots to defendants “in fee simple, clear of all encumbrances,” and tendered the deed to defendants, but that they refused to accept it or to pay the purchase price, and have demanded that the bank return the checks to them. In their answer defendants denied that the abstract submitted by plaintiff disclosed in him a clear title, good title or merchantable title, or that the property was free from encumbrances, and alleged that the abstract disclosed affirmatively certain defects in the title, which were set forth at length. They alsp undertook to plead mutual mistake and termination of the contract. To this answer the plaintiff interposed a general demurrer, and at the same time moved to strike the allegations which set forth the alleged defects in the title, the mutual mistake, and the termination of the contract. The minutes of the court recite: “The demurrer is 'by the court sustained and the motion to strike is granted.” The defendants, refusing to plead further, suffered judgment to be entered against them and appealed therefrom.
It is unnecessary to discuss the question of practice presented. If the matters attacked by the motion to strike be eliminated, the answer does not state a defense or counterclaim, and under the circumstances the motion and demurrer raised the same objection. It is elementary that, if the answer stated a defense or counterclaim upon any admissible theory, it was proof against a general demurrer, and in this instance it was likewise immune to attack by the motion to strike. In determining whether a defense or counterclaim was stated, we shall consider in their order the following subjects: Mutual mistake, defects in the title and termination of the contract..
1. It is alleged in the answer that the actual agreement between the parties was that the abstract should disclose in plaintiff a title satisfactory to the defendants, but by mutual mistake those terms were omitted from the writings and the terms employed substituted.
The contract to purchase and sell and the escrow agreement were executed contemporaneously and refer to the same subject matter; hence they will be construed together and as one instrument. While provision is made that plaintiff shall furnish an abstract showing clear title, good title and merchantable title, it is apparent that these terms were used interchangeably, and they are in fact synonymous. A clear title means that the land is free from encumbrances. (Roberts v. Bassett, 105 Mass. 409.) A good title is one free from litigation, palpable defects and 'grave doubts, comprising both legal and equitable titles, and fairly deducible of record. (Turner v. McDonald, 76 Cal. 177, 9 Am. St. Rep. 189, 18 Pac. 262; Reynolds v. Borel, 86 Cal. 538, 25 Pac. 67.) A clear title means a good title (Oakey v. Cook, 41 N. J. Eq. 350, 7 Atl.495), and a good title means a marketable or merchantable title (Irving v. Campbell, 121 N. Y. 353, 8 L. R. A. 620, 24 N. E. 821). A contract to convey in fee simple, clear of all encumbrances, implies a marketable title (Bell v. Stadler, 31 Idaho1, 568, 174 Pac. 129), and a marketable title is one of such character as assures to the purchaser the quiet and peaceable enjoyment of the property and one which is free from encumbrances (Barnard v. Brown, 112 Mich. 452, 67 Am. St. Rep. 432, 70 N. W. 1038).
A mistake to be ground for reformation must be material; that is, one which will affect substantially the rights and obligations of the parties. (23 E. C. L. 321.) In our judgment, the contract as written secures to the defendants everything to which they would be entitled if the reformation demanded were granted; hence it follows that the answer does not disclose that the defendants are entitled to have the contract reformed.
Decided cases may be found, among them Liberman v. Beck with, 79 Conn. 317, 8 Ann. Cas. 271, 65 Atl. 153, which apparently hold that an executory contract, providing that the title to the land intended to be conveyed shall be satisfactory to the purchaser, is to be construed to give to the purchaser an arbitrary right to repudiate the contract on the ground that the title, though perfect, is unsatisfactory to him, provided only that his dissatisfaction is honest. We decline to follow those cases. In our judgment common sense dictates the rule that a title satisfactory to the purchaser means a title to which there is no reasonable objection — such a title as a reasonable man should have been satisfied with; and, if the title is good and valid without reference to extrinsic evidence, the purchaser, as a reasonable man, should be satisfied with it, and should not be permitted to say that he is dissatisfied and thus avoid the contract, because, perchance, he has become tired of his bargain. We approve the rule announced in Duplex Safety Boiler Co. v. Garden, 101 N. Y. 387, 54 Am. Rep. 709, 4 N. E. 749, as follows: “That which the law will say a contracting party ought in reason to be satisfied with, that the law will say he is satisfied with.”
In Folliard v. Wallace, 2 Johns. (N. Y.) 395, Chancellor Kent said: “A simple allegation of dissatisfaction, without some good reason assigned for it, might be a mere pretext, and cannot be regarded. If the defendant were left at liberty to judge for himself when he was satisfied, it would totally destroy the obligation, and the agreement would be absolutely void. * * * The law in this ease will determine for the defendant when he ought to be satisfied.”
In Moot v. Business Men’s Inv. Assn., 157 N. Y. 201, 45 L. R. A. 666, 52 N. E. 1, it was said: “A good title must be regarded as a satisfactory one.”
In Fagen v. Davison, 9 N. Y. Super. Ct. 153, it was said: “A title, satisfactory to the party to whom it is to be given means a title to which there is no reasonable objection, and with which therefore the party to whom it is tendered ought to be satisfied. When such is its nature, so far from having a discretion to reject, he is bound to accept it.”
In support of our views, reference is made to the following additional authorities: Pennington v. Howland, 21 R. I. 65, 79 Am. St. Rep. 774, 41 Atl. 891; Latrobe v. Winans, 89 Md. 636, 43 Atl. 829; Dillinger v. Ogden, 244 Pa. 20, Ann. Cas. 1915C, 533, 90 Atl. 446; Whited v. Calhoun, 122 La. 100, 47 South. 415; Dean v. Williams, 56 Wash. 614, 106 Pac. 130; Giles v. Paxson (C. C.), 40 Fed. 283; Winter v. Stock, 29 Cal. 408, 89 Am. Dec. 57; 27 R. C. L. 487, and note to Ann. Cas. 1915C, 536.
2. It is alleged in the answer that the abstract disclosed that title to the lots in question was secured originally from the United States by Walter J. Winnett, and that the patent conveyed the land “subject to any vested and accrued water rights for mining, agricultural, manufacturing or other purposes, and rights to ditches and reservoirs used in connection with such water rights as may be recognized and acknowledged by local customs, laws, and decisions of courts, and also subject to tbe right of the proprietor of a vein or lode to extract and remove his ore therefrom, should the same be found to penetrate or intersect the premises hereby granted.” It is also alleged that the abstract disclosed that these lots were once owned by the Milwaukee Land Company, which conveyed them to Herbert F. Kuehl, a predecessor in interest of this plaintiff, by a deed which contained the following provision: “‘The premises hereby conveyed shall never be used for the carrying on of the business of a livery stable, blaeksmithing, carpenter or wagon shop during the term of five years from and after July 18, 1914.”
With respect to the reservations contained in the Winnett patent it is sufficient to say that they refer only to rights existing at the time Winnett became entitled to the patent; that when the patent issued it covered everything embraced in the land to which a prior right had not attached, and passed the entire title as against any subsequently acquired right. (Pacific Coast M. & M. Co. v. Spargo (C. C.), 16 Fed. 348.)
The abstract is not before us in its entirety. Plaintiff alleged that it disclosed clear title in him, and, so far as the present question is concerned, the only denial is found in the counter allegation that it disclosed the reservations in the patent quoted above. The contract to furnish an abstract showing a clear title in plaintiff means that plaintiff must show in the first instance a title free from doubt so far as disclosed by the records. (Maupin on Marketable Titles to Real Estate, 3d ed., sec. 295.) Since the reservations in the patent do not of themselves constitute encumbrances on the lots, we conclude that plaintiff fulfilled the terms of his contract so far as disclosed by the record.
The reservations contained in the patents considered in Nacey v. Cheney, 67 Mont. 56, 214 Pac. 647, were so far different from the reservations now under review that the decision in that case has no application here.
The reservation in the deed from the Milwaukee Land Com- pany to Kuehl presents an example of a common building restriction covenant. It is the general rule that “a building or other restriction as to the use of the land which will bind the land in the hands of the purchaser either at law or in equity, and which lessens the value of the land for general purposes, is regarded as a defect in the vendor’s title, giving the purchaser the right to reject the title and depriving the vendor of the right to compel the purchaser to perforan, where the vendor is under an obligation to make a good title free and clear of incumbrances.” (27 R. C. L., sec. 234. See, also, note to 38 L. R. A. (n. s.) 34; 39 Cyc. 1499; Maupin on Marketable Titles to Real Estate, p. 853.)
It follows, of course, that the marketability of a title is not affected by a restrictive building covenant no longer enforceable at the time the abstract is rejected. But, assuming that this covenant was enforceable until the expiration of eight years (the period of the statute of limitation) from July 18, 1919, it could be released, and there is not any allegation in the answer that it was not released or that the abstract failed to disclose a release; on the contrary, it is alleged in the answer that the abstract as first furnished was returned to plaintiff for correction, and before it was finally rejected “it showed the same reservations in the patent.” As indicated above, the abstract is not before us, and in our judgment the allegations of the answer are insufficient to show that plaintiff failed to furnish such an abstract as was contemplated by the contract or to raise an issue upon the plaintiff’s allegations that he did furnish such abstract.
3. It is alleged in the answer that, when the abstract was first furnished to defendants, they returned it to the plaintiff with a statement setting forth particularly their objections to it and a request that it be corrected; that plaintiff refused to have the corrections made and informed the defendants that, if they were not satisfied with the abstract as then presented, the bank would be instructed to return the checks to them; that on March 29, 1921, defendants availed themselves of and accepted this offer to terminate the contract, and “at that time it was agreed by and between the plaintiff and the defendants that the said contract should be waived, abandoned, and rescinded, and the plaintiff and the defendants then waived, abandoned, and rescinded the same.”
The right of the parties to an executory contract to terminate it by mutual consent exists independently of any provision in the contract permitting them to do so. (Subd. 5, sec. 7565, Rev. Codes 1921; 39 Cyc. 1353; Ashley v. Cathcart, 159 Ala. 474, 49 South. 75.) It is immaterial whether the termination be characterized as abandonment, cancellation, mutual rescission or waiver; the effect is the same: to discharge the parties from the obligations previously assumed. (13 C. J. 600.)
In Maupin on Marketable Title to Real Estate, section 234, it is sg,id: “The parties may at any time before conveyance rescind the contract by consent, which consent may be express or implied from the acquiescence of the one party in the acts of the other.”
In Mahon v. Leech, 11 N. D. 181, 90 N. W. 807, the court said: “That the mutual rights and obligations of the parties to a written contract for the purchase and sale of real estate may be waived, and the contract annulled and extinguished by parol, is well settled.”
In Lasher v. Loeffler, 190 Ill. 150, 60 N. E. 85, the court said: “A party demanding that a court of chancery shall exercise its jurisdiction to enforce the specific performance of a contract must show he has himself always been ready, willing and eager to perform the contract on his part, and he cannot have a decree for specific performance if it is made to appear he has consented to a rescission of the contract or has abandoned it.”
The answer sets forth facts sufficient to show mutual rescission of the contract, and this constitutes a good defense; hence the answer was proof against the general demurrer and the motion, to strike the allegations setting forth the rescission.
For the reason .given, the judgment is reversed and the cause is remanded for further proceedings.
Reversed and remanded.
Mr. Chief Justice Callaway and Associate Justices Cooper, Galen and Stark concur.
|
[
-31,
2,
31,
-18,
10,
-56,
14,
-19,
19,
28,
31,
25,
44,
16,
4,
19,
8,
-15,
-7,
9,
-1,
-67,
-8,
-25,
-7,
5,
-14,
-62,
-6,
26,
23,
-15,
-28,
64,
-27,
14,
-42,
-35,
33,
-41,
4,
39,
4,
-7,
46,
22,
37,
-48,
55,
-20,
6,
-33,
-5,
-14,
-68,
-11,
-33,
1,
-29,
17,
19,
-63,
27,
27,
-39,
-55,
22,
13,
71,
10,
-2,
-25,
32,
-19,
11,
-54,
-42,
19,
-55,
-10,
34,
-47,
28,
-22,
-19,
10,
7,
-31,
-5,
-6,
0,
15,
69,
23,
-4,
6,
-2,
7,
-3,
25,
-23,
-22,
-14,
45,
-13,
35,
0,
-12,
2,
19,
5,
39,
-1,
-12,
-39,
-27,
11,
10,
7,
24,
43,
20,
-2,
-29,
-29,
29,
-44,
-23,
-27,
-9,
27,
36,
-33,
82,
-24,
-16,
16,
45,
0,
0,
4,
-36,
-31,
-27,
-21,
-9,
55,
30,
-71,
-32,
-51,
4,
47,
45,
-4,
-29,
21,
-46,
-8,
-29,
51,
-13,
-5,
-2,
-10,
37,
-22,
-26,
36,
23,
-1,
-26,
-24,
-46,
15,
-9,
28,
-41,
20,
-66,
16,
22,
-8,
-20,
2,
-30,
22,
38,
13,
1,
28,
-19,
-49,
-6,
-52,
9,
-74,
10,
0,
-19,
1,
-50,
6,
-29,
-52,
-16,
-6,
-21,
31,
32,
-58,
-53,
7,
-7,
-5,
42,
38,
-11,
1,
-1,
-10,
-17,
-67,
24,
-35,
-15,
58,
-51,
53,
22,
-59,
-4,
-12,
20,
-18,
-8,
7,
-5,
23,
18,
-10,
-34,
4,
28,
-45,
-27,
-20,
1,
9,
-8,
-28,
17,
-6,
34,
57,
61,
-5,
-31,
-44,
-20,
44,
60,
-4,
-41,
12,
-71,
35,
-28,
9,
19,
-5,
-6,
-22,
67,
-27,
-31,
-11,
-29,
-32,
0,
-24,
-26,
-9,
58,
22,
14,
11,
51,
-42,
14,
33,
-18,
-28,
0,
23,
45,
24,
1,
-16,
5,
-68,
-83,
8,
9,
-14,
-20,
-18,
-19,
11,
-22,
20,
26,
2,
-3,
0,
33,
-15,
5,
5,
-17,
82,
20,
15,
20,
22,
-22,
-1,
-36,
-11,
20,
48,
-3,
20,
-3,
-17,
21,
21,
-46,
1,
-4,
-7,
48,
-13,
-17,
59,
28,
-7,
-61,
-2,
47,
-14,
-47,
-64,
-18,
-39,
-20,
-8,
15,
4,
17,
35,
83,
26,
-26,
-8,
29,
-14,
-7,
-5,
-4,
-10,
38,
-23,
-24,
-28,
-26,
-12,
-60,
-4,
59,
10,
-32,
0,
2,
57,
42,
20,
-68,
-7,
0,
-44,
44,
26,
49,
6,
-49,
16,
-26,
-62,
-13,
-7,
8,
-65,
-42,
-48,
-24,
32,
-4,
-44,
17,
-9,
-30,
-5,
-17,
-17,
44,
-3,
22,
60,
10,
-18,
-6,
-20,
53,
3,
-9,
34,
57,
-31,
32,
-30,
32,
43,
-26,
1,
-17,
-7,
8,
1,
80,
38,
53,
-88,
27,
-7,
-20,
16,
0,
25,
49,
27,
19,
10,
14,
38,
32,
78,
-17,
19,
-14,
43,
-17,
-13,
-19,
-19,
-24,
23,
-58,
-27,
43,
-11,
28,
28,
-26,
18,
54,
-58,
-54,
23,
11,
-42,
3,
20,
11,
0,
-8,
-45,
-46,
14,
-16,
33,
-1,
83,
-2,
-8,
-29,
-3,
-27,
-27,
-26,
18,
12,
2,
6,
-6,
4,
-8,
-8,
12,
60,
-11,
60,
0,
16,
50,
25,
17,
26,
-2,
-4,
42,
-10,
-36,
-61,
30,
6,
10,
65,
-7,
-21,
-50,
35,
-43,
-28,
21,
-9,
-2,
17,
39,
-45,
-38,
22,
-23,
51,
-49,
16,
-11,
8,
53,
7,
-7,
-34,
20,
16,
-54,
38,
-8,
-50,
24,
0,
2,
14,
23,
-15,
26,
12,
39,
-51,
-34,
9,
-55,
-48,
-13,
-14,
-19,
-49,
-35,
-28,
23,
-21,
-25,
17,
7,
-11,
12,
43,
21,
6,
1,
60,
29,
2,
33,
-30,
26,
-21,
2,
-3,
6,
20,
2,
30,
-32,
-1,
0,
-49,
-27,
38,
16,
-4,
-46,
5,
-6,
-12,
34,
40,
18,
-17,
8,
3,
44,
23,
-4,
-7,
10,
-17,
-38,
19,
-32,
43,
10,
-7,
21,
7,
-31,
-7,
-31,
-10,
-14,
-51,
-26,
17,
0,
18,
10,
-2,
-6,
35,
85,
-13,
-32,
37,
42,
-50,
44,
15,
34,
-10,
-5,
19,
3,
-41,
-40,
0,
2,
-45,
58,
-8,
6,
9,
39,
-9,
61,
-3,
12,
17,
15,
17,
44,
0,
25,
-25,
21,
20,
-35,
-44,
54,
-29,
-30,
38,
36,
0,
-53,
-32,
-20,
14,
11,
-3,
-23,
-8,
67,
-35,
-15,
-18,
-43,
51,
-30,
2,
-17,
-23,
29,
-43,
-76,
-35,
-11,
33,
-37,
-4,
-40,
-16,
4,
-33,
17,
-19,
-26,
15,
68,
39,
6,
36,
63,
17,
-34,
39,
-13,
39,
-63,
-27,
0,
-89,
-46,
43,
-12,
31,
-17,
-39,
-37,
54,
-11,
-66,
36,
-7,
13,
-4,
0,
-2,
-21,
-12,
-7,
-4,
-19,
30,
23,
12,
8,
9,
-29,
-39,
-53,
-24,
-25,
-30,
-58,
-12,
28,
11,
33,
-27,
10,
-5,
-2,
-6,
-19,
-31,
23,
-20,
31,
31,
33,
31,
-57,
16,
-29,
-42,
-61,
-25,
21,
67,
24,
-65,
-22,
9,
0,
33,
63,
5,
14,
6,
66,
-19,
-37,
-41,
19,
-25,
-1,
10,
-10,
16,
7,
-19,
-29,
45,
-23,
35,
9,
-10,
-1,
-24,
-98,
56,
19,
-53,
24,
12,
-5,
4,
27,
-11,
29,
-20,
-33,
-19,
-53,
78,
15,
-30,
-27,
5,
0,
-37,
-15,
-2,
47,
-41,
-42,
-5,
29,
17,
28,
-12,
-3,
30,
8,
20,
93,
-22,
-27,
20,
-23,
19,
34,
83,
9,
27,
-16,
-23,
16,
5,
79,
47,
-19,
10,
-45,
19,
-45,
16,
-4,
-11,
6,
9,
6,
-35,
-46,
-7,
28,
-11,
0,
-55,
67,
-48,
28,
-15,
11,
50,
-64,
-31,
35,
18,
18,
-3,
32,
-51,
-37,
-57,
-21,
0,
6,
-53,
45,
22,
42,
-1,
-53,
-11,
18,
-61,
-4,
24,
12,
52,
-25,
38,
24,
36,
-8,
-43,
27,
-10,
-10,
-37,
2,
-52,
100,
0,
-54,
-24,
21,
-29,
16,
4,
-32,
77,
21,
23,
-15,
5,
-35,
-20,
19,
-7,
-6,
48,
2,
-37,
12,
41,
87,
24,
-2,
-33,
-9,
5,
-8,
-32,
-62,
-7,
48,
-1,
-14,
-35,
13,
-2,
-6,
33,
29,
-3,
13,
-36,
9,
-31,
13,
-6,
42,
14,
-6,
-16,
21,
12,
16,
22,
4,
14,
-6,
-37,
-23,
-48,
13,
9,
-2,
-34,
-38,
-4,
13,
52,
-37,
75,
-44,
82,
-44,
16,
6,
-23,
-28,
57
] |
MR. JUSTICE STARK
delivered the opinion of the court.
On the afternoon of Sunday, December 16, 1923, C. S. Hanna and E. R. Small, special officers of the state of Montana, for the purpose of enforcing the laws of the state relating to intoxicating liquors, went into the defendant’s place of business, known as a pool-hall and soft-drink parlor, in Geyser, Judith Basin county, searched the premises, found a quantity of intoxicating liquors, and took possession of the same, together with the furniture and fixtures contained in and about the place, amongst the articles seized being a beer bottle partly filled with moonshine whisky and a whisky glass.
On the following day, December 17, Hanna made a return to the district court, setting forth a particular description of the liquor and property seized, and of the place where they were seized, accompanied by a complaint charging that, at the time and place in question, the laws relating to intoxicating liquors were being violated by the defendant, Gust Uotila, in that he did then and there have and possess intoxicating liquors, for the purpose of being sold, bartered, exchanged or disposed of; that the complainant detected a strong odor of liquor in said room, and, after having obtained permission from the defendant to do so, made a search of the premises, in company with said E. R. Small, and as the result thereof seized the articles mentioned in his return and arrested the defendant. The complaint concluded with a prayer that a warrant be issued, commanding the sheriff of Judith Basin county to keep and retain said liquor and property until discharged by process of law; that a hearing and adjudication be had thereon, upon said return and complaint, and for other appropriate relief.
On January 5, 1924, the defendant, Gust Uotila, filed an answer to the return and complaint, and also a verified claim for all of the property named therein, in which he denied that he was guilty of the offense charged against him, denied that he authorized said Hanna or any other person to search his premises, and alleged that such search was made without his consent and against his will; denied that the property seized was or had been used or kept by him or any other person with the intent to violate any law of this state relating to intoxicating liquor, claimed ownership of all said property, and asked that it be returned to him.
Upon this complaint and return, and the defendant’s answer and verified claim, a hearing was had before the court, at the conclusion of which, on January 16, 1924, judgment was duly given and made that all of said seized articles should be returned to the defendant, except the bottle containing the moonshine whisky and the whisky glass, which last-mentioned articles were referred to at the hearing and in the judgment as “Exhibit 3,” and they were confiscated, forfeited and ordered destroyed. From this judgment the defendant has appealed to this court.
1. Upon the hearing, over objection of the defendant, the state was allowed to introduce in evidence copies of the appointments and oaths of office of C. S. Hanna and E. R. Small as special officers of the state of Montana for the purpose of enforcing the laws relating to intoxicating liquors, certified by the secretary of state. These instruments showed that Hanna and Small were duly appointed as such officers on December 1, 1923, by the state board of examiners; that they took and subscribed their oaths of office on December 15, and filed the same in the office of the secretary of state on December 17.
Counsel for appellant contend that, because these oaths of office were not filed until December 17, Hanna and Small were not duly qualified officers on December 16 and that all of their acts performed on said day, on the assumption that they were officers of the law, are null and void. This contention is without merit. Section 11085, Revised Codes of 1921, amongst other things, authorizes the state board of examiners to appoint such officers, and provides that “before entering upon their duties they shall take and subscribe the oath of office in the same manner as a sheriff.” Section 430, Revised Codes of 1921, which is applicable to a sheriff, provides that before he enters upon the duties of his office he shall take and subscribe the constitutional oath of office, and section 432, which is likewise applicable to a sheriff, says that the oath of office must be taken, subscribed, and filed within thirty days aftej the officer has notice of his appointment. Neither of these sections makes the filing of the oath of office a condition precedent .to the officer’s entering upon the discharge of his duties of his office; but section 511 declares that, if he fails to file his official oath within the time prescribed, the office becomes vacant.
Under these statutory provisions, when one who has been duly appointed to an office takes and subscribes the official oath, he is fully qualified to perform the duties pertaining thereto, but, if he should fail to file the official oath within the time prescribed by law, his office would become vacant. From the fact that Hanna and Small proceeded to qualify under their appointments on December 15, it must be presumed that they received notice thereof prior to that time. If they had such notice on the day of their appointments, they would have thirty days from December 1 in which to file their oaths of office, so that on December 16 they were fully qualified to perform all the duties of their office.
2. It is next contended, on behalf of appellant, that the plaintiff failed to show that an offense was committed in the presence of Hanna and Small, so as to entitle them to make an arrest of the defendant and to seize the liquor and articles alleged to have been unlawfully used in violation of the law, under the provisions of section 11106, Revised Codes of 1921.
It is admitted that the defendant was the proprietor of the pool-hall or soft-drink parlor in question, and was likewise in possession of the bottle of whisky and whisky glass, designated as Exhibit 3, at the time in question. The complaint alleges that he had possession of the whisky contained in the bottle, for the purpose of selling, bartering, exchanging or disposing of it, and further alleges that the officers asked permission of the defendant, Uotila, to make a search of his place and that he granted such permission.
If one consents to having his premises searched by an officer without a search-warrant, he cannot complain of it as an illegal search (24 R. C. L. 723; McClurg v. Brenton, 123 Iowa, 368, 101 Am. St. Rep. 323, 65 L. R. A. 519, 98 N. W. 881; Smith v. McDuffee, 72 Or. 276, Ann. Cas. 1916D, 947, 142 Pac. 558, 143 Pac. 929; State v. Griswold, 67 Conn. 290, 33 L. R. A., 227, 34 Atl. 1046; Commonwealth v. Tucker, 189 Mass. 457, 7 L. R. A. (n. s.) 1056, 76 N. E. 127), and, if such, search, discloses that he is then -and there engaged in the commission of an offense against the laws relating to intoxicating liquor, the officer making the search has the same right to arrest the offender and take possession of any articles being used by him for the illegal purpose that he would have had, if he had known in advance of the search that an offense was being committed.
The testimony introduced at the hearing on behalf of the state tended to show that the officers were in and out of defendant’s place of business several times on the afternoon in question; that a large number of men and boys were congregated therein; that there was a strong odor of intoxicating liquor in the room, and the officers, being of opinion that the law relative to intoxicating liquor was being violated, informed the defendant that they were officers, that they had heard complaint about whisky being sold in his place and wanted to look it over; whereupon defendant said, “All right; go ahead.” Thereupon the officers went behind the bar, picked up the bottle in question, and, upon investigation, found that it contained intoxicating liquor, and so took it and the whisky glass into their possession. At this stage of the proceeding the defendant interrupted them and demanded to know whether they had a search-warrant. After some controversy, the officers continued the search and took possession of other property. Hanna and Small further testified that, when the defendant asked whether they had a search-warrant, Hanna showed the defendant his commission as special officer, and that he made no further objection to their continuing the search.
The defendant, himself, and several witnesses in his behalf denied that he, at any time, gave the officers permission to search, his place. There was a direct conflict in the evidence upon this point. Apparently the court concluded from the evidence that at the time the officers seized “Exhibit 3” they were conducting a search of the defendant’s place, with his permission, and such a finding was fully justified by the evidence. Under such a conclusion, the judgment entered, so far as it relates to “Exhibit 3,” was correct.
Whether the defendant’s interruption of the search being conducted by the officers amounted to a revocation of the permission theretofore granted to them is a matter of no concern on this appeal, because “Exhibit 3” was taken into possession of the officers prior to that time.
The possession of intoxicating liquor is prima facie evi d'ence that it is kept in violation of law, and the burden of proving lawful possession is upon the possessor. (Sec. 11079, Rev. Codes 1921.) • So that, when defendant was found in possession of this liquor, it was prima facie proof of the fact that he was violating the law relating to intoxicating liquors, within the purview of section 11106.
Ail of the errors argued in appellant’s brief are covered by the foregoing discussion.
We find no error in the record, and the judgment appealed from is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Holloway and Galen concur..
Mr. Justice Rankin, being disqualified, takes no part in the foregoing decision.
|
[
-34,
33,
33,
33,
-60,
-32,
-24,
63,
-31,
36,
22,
4,
-47,
1,
60,
-8,
-4,
19,
37,
1,
76,
-6,
-28,
-53,
17,
-27,
-61,
24,
-9,
-12,
-2,
16,
19,
-12,
38,
52,
42,
-16,
39,
-26,
22,
47,
-31,
21,
-8,
4,
-23,
-49,
43,
-32,
43,
-42,
33,
21,
30,
10,
-22,
26,
-10,
45,
-10,
7,
-2,
12,
31,
-3,
-10,
-8,
18,
-20,
49,
-15,
-18,
6,
-17,
30,
-38,
8,
13,
54,
-55,
19,
34,
6,
-28,
-20,
-4,
11,
11,
51,
35,
12,
-63,
23,
21,
-15,
-19,
-4,
0,
-8,
5,
-83,
-10,
20,
1,
28,
-16,
32,
-7,
6,
-2,
-1,
90,
-12,
35,
-32,
-13,
-4,
-29,
7,
31,
31,
34,
-12,
-31,
-49,
17,
7,
15,
-9,
-21,
8,
22,
-48,
2,
-13,
-76,
45,
11,
3,
1,
20,
32,
-30,
38,
3,
27,
50,
-40,
6,
-2,
11,
36,
36,
25,
-2,
64,
-28,
3,
-1,
-24,
-12,
26,
9,
34,
-31,
19,
-13,
-66,
9,
11,
-17,
-21,
52,
67,
11,
7,
-53,
-31,
43,
-33,
34,
54,
-32,
82,
-18,
33,
-9,
1,
10,
-45,
7,
-2,
-13,
-88,
-26,
19,
4,
0,
-35,
-2,
-9,
-50,
-23,
7,
-27,
8,
20,
30,
3,
-27,
24,
5,
-36,
-76,
-15,
-61,
-36,
22,
-5,
-16,
-20,
-11,
28,
-12,
-62,
62,
52,
29,
-1,
-71,
41,
1,
17,
35,
-27,
-5,
-26,
-7,
16,
40,
-2,
-66,
-21,
39,
33,
-32,
-12,
-37,
13,
20,
-18,
1,
30,
-1,
-6,
60,
-77,
36,
-16,
-13,
7,
17,
-5,
-31,
-16,
11,
-57,
-10,
62,
-34,
5,
21,
-19,
9,
-29,
20,
12,
29,
51,
5,
-29,
-2,
16,
5,
6,
-19,
-12,
-38,
-26,
-8,
1,
-24,
8,
13,
8,
-2,
-13,
9,
-9,
49,
20,
-27,
33,
-55,
-19,
-32,
23,
-42,
-40,
20,
-18,
-59,
33,
30,
-28,
-39,
22,
29,
4,
-17,
1,
2,
5,
0,
-52,
4,
11,
49,
-3,
9,
14,
-31,
18,
-55,
32,
35,
20,
42,
33,
18,
-20,
14,
-10,
-59,
40,
2,
0,
-3,
-58,
-5,
28,
64,
50,
-10,
53,
-9,
-19,
27,
-50,
26,
-28,
-12,
15,
29,
14,
-21,
23,
-21,
-42,
-3,
-12,
65,
-37,
14,
16,
-9,
-26,
-23,
35,
35,
-40,
20,
-13,
-39,
23,
31,
-52,
-39,
-14,
-16,
18,
-2,
21,
-5,
-16,
20,
-34,
22,
-51,
-42,
23,
62,
-26,
-58,
-16,
52,
75,
2,
-13,
5,
-41,
-34,
-11,
42,
-5,
-39,
54,
-32,
-13,
-1,
-2,
4,
19,
0,
-33,
-12,
20,
24,
23,
-34,
34,
-27,
28,
-34,
-17,
12,
41,
20,
-14,
-16,
-9,
-14,
21,
56,
-5,
6,
8,
41,
-27,
7,
14,
20,
15,
32,
51,
38,
24,
22,
-7,
5,
39,
-46,
-30,
-1,
-24,
-63,
-30,
-14,
30,
-34,
54,
31,
-71,
-37,
49,
34,
39,
-7,
-64,
15,
9,
15,
-4,
-13,
-12,
-16,
-39,
-4,
15,
47,
-12,
0,
-30,
-40,
-14,
7,
-53,
3,
22,
-10,
-3,
-45,
21,
-38,
12,
24,
68,
-7,
28,
17,
17,
-25,
-52,
-36,
-49,
16,
7,
1,
27,
42,
53,
33,
67,
-61,
-13,
29,
-64,
39,
-57,
-52,
13,
-20,
-7,
-6,
28,
94,
4,
3,
-38,
25,
-87,
16,
-31,
-17,
15,
-49,
-20,
32,
34,
-2,
27,
-24,
-38,
8,
-15,
-52,
-14,
-42,
9,
2,
-23,
-18,
-7,
24,
-39,
-46,
14,
20,
28,
-31,
65,
17,
-17,
16,
0,
-16,
-14,
-7,
25,
-6,
14,
8,
10,
-38,
49,
-1,
-3,
-37,
18,
-2,
-3,
-18,
48,
-20,
23,
-16,
23,
-51,
12,
-14,
3,
101,
-23,
-6,
23,
14,
7,
2,
52,
24,
50,
29,
-4,
-1,
43,
-15,
-12,
8,
19,
-13,
-15,
-24,
55,
23,
-8,
-59,
33,
15,
-12,
-78,
-39,
-1,
-13,
10,
36,
-3,
42,
-64,
12,
2,
-30,
-42,
11,
2,
37,
-37,
-10,
4,
14,
-8,
16,
9,
-20,
-36,
4,
-12,
-36,
52,
-38,
11,
26,
-53,
48,
-27,
28,
46,
25,
-12,
47,
28,
-43,
-6,
-38,
-21,
-21,
19,
19,
-16,
20,
11,
33,
37,
-31,
16,
33,
2,
4,
19,
-19,
-19,
37,
-2,
43,
-4,
40,
-23,
-1,
3,
-35,
21,
-3,
32,
1,
-8,
33,
9,
-68,
-45,
16,
-10,
-12,
-3,
27,
20,
-4,
24,
11,
-79,
0,
-48,
-70,
20,
45,
52,
-8,
-70,
45,
-13,
-21,
22,
-9,
16,
17,
24,
33,
-53,
9,
23,
28,
-34,
-6,
-8,
0,
0,
-22,
36,
11,
-4,
-41,
0,
-32,
26,
6,
33,
-8,
1,
26,
-57,
-21,
47,
30,
-21,
18,
-60,
21,
22,
-10,
0,
-14,
61,
-49,
-29,
-34,
-56,
-13,
-10,
5,
16,
22,
-5,
-21,
-51,
-79,
-7,
-24,
-10,
44,
40,
15,
-27,
3,
22,
-48,
-19,
6,
23,
-2,
-70,
-16,
-34,
-44,
45,
8,
26,
1,
25,
-12,
-24,
10,
-22,
-1,
47,
-47,
-5,
-35,
-24,
-20,
-17,
-37,
-4,
-37,
-23,
11,
17,
-42,
-32,
-23,
-44,
7,
-6,
11,
10,
-2,
-2,
-67,
34,
-25,
28,
32,
6,
11,
16,
34,
6,
-18,
43,
-18,
-6,
35,
-6,
7,
-15,
-18,
-39,
38,
30,
-35,
26,
49,
-18,
-19,
0,
-39,
-33,
-42,
57,
2,
-2,
60,
4,
-36,
14,
33,
-17,
38,
23,
-55,
9,
-8,
2,
-27,
12,
-44,
-14,
10,
-2,
-29,
18,
16,
11,
-13,
29,
-14,
-13,
30,
20,
-45,
10,
-15,
-18,
-17,
9,
37,
12,
-61,
42,
6,
44,
-12,
-25,
26,
-6,
-15,
13,
-2,
-61,
-33,
41,
32,
41,
34,
-16,
60,
-18,
44,
-44,
-19,
-32,
63,
-80,
23,
17,
-8,
-44,
48,
-6,
20,
34,
-41,
-41,
-22,
34,
10,
39,
28,
29,
-48,
27,
27,
7,
34,
-55,
35,
-17,
-45,
-18,
34,
-43,
18,
-37,
-11,
9,
27,
-98,
-4,
-12,
31,
65,
-13,
-23,
32,
16,
105,
-30,
64,
0,
15,
34,
8,
-42,
42,
-10,
-22,
41,
-44,
20,
17,
-38,
-11,
-50,
-9,
-14,
39,
35,
-8,
-44,
-29,
-44,
-31,
-15,
-36,
-42,
-56,
35,
-1,
0,
-19,
-9,
12,
-46,
-71,
12,
-19,
-22,
-6,
52,
29,
-40,
29,
-66,
27,
2,
1
] |
MR. JUSTICE STARK
delivered the opinion of the court.
This is an application for a writ of supervisory control. Upon filing of the petition an alternative writ was issued and made returnable on June 13, 1924, at 10 o’clock A. M. This writ was duly served, but respondents have not entered an appearance. For this reason we must accept the allegations contained in the petition as true.
From the petition it appears that on December 5, 1923, C. S. Purdy and W. K. Flowerree commenced an action in the district court of Judith Basin county against Charles Herbert Winner and Suzenne Winner, his wife, wherein they prayed that a certain contract for the sale of real estate be foreclosed. Summons was issued and personal service thereof made upon the defendants, but they did not appear in the action, and thereafter on January 25, 1924, their defaults were duly entered, and on February 4, 1924, such proceedings were had in the action that a judgment or decree of foreclosure and sale was duly given and made, the respondent Rudolph Yon Tobel sitting as the presiding judge. Said decree amongst other things provided: “It is further ordered, adjudged and decreed that the purchaser of the said premises at such sale be let into possession thereof, and that any of the parties to this action who may be in possession of the said premises, or any part thereof, or any person who, since the commencement of this action, may be in possession of the said premises under them or either of them deliver possession thereof to the purchaser or purchasers upon production of the sheriff’s certificate of sale to the said premises or any part thereof.”
On February 9 an order of sale was issued on said judgment, delivered to the sheriff of Judith Basin county, who regularly sold the property described therein, and subsequently made his return thereof to the effect that he had sold the same to the relator W. K. Flowerree. On March 15 the sheriff made, executed and delivered to the relator his certificate of sale. At the time of the sale of the property it was in the possession of Charles Herbert Winner and Suzenne Winner, his wife, defendants in the action. After receiving the sheriff’s certificate of sale the relator demanded possession of the property from Winner and wife, but they refused to surrender it. On May 3 he made application to the district court of Judith Basin county for a writ of assistance to put him in possession; whereupon, by an order of the district court, the respondent Judge Yon Tobel presiding, such a writ was issued commanding the sheriff of said county to place the relator in possession of the real estate described in the sheriff’s certificate of - sale. On May 12 the defendant Charles Herbert Winner appeared in the action by motion, and, upon grounds hereinafter stated, asked that the writ of assistance theretofore issued be quashed, and on May 19 the respondent Judge Yon Tobel made an order quashing said writ. In support of the application for the order to quash the writ the defendant Winner filed an affidavit reciting that he was in possession of the lands described in the writ of assistance, making the same a home for himself and his family, and alleged that he was entitled to the possession thereof during the period of redemption.
After a detailed recital of the foregoing facts the petition sets out circumstances which have satisfied us that the relator’s remedy by appeal from the order quashing the writ of assistance would be wholly inadequate because of the time necessary to prepare and have the same heard, and that to compel him to resort to that remedy would be tantamount to a denial of justice. Under the conditions set forth, we think it a proper case in which to grant relief by a writ of supervisory control. (State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 Pac. 395; State ex rel. Carroll v. District Court, 50 Mont. 428, 147 Pac. 612.)
The sole question presented for consideration is whether the respondents erred in sustaining the motion to quash and vacate the writ of assistance.
The defendants’ motion to dissolve the writ of assistance was based on the grounds:
(a) That the court was without jurisdiction to enter a decree prescribing that the purchaser of the premises should be entitled to the possession thereof prior to the expiration of the period of redemption, and that no sheriff’s deed had been issued to the purchaser.
(b) That no notice of the application or petition for the writ was served upon the defendants.
(c) That the petition for the writ did not state facts sufficient to authorize its issuance.
1. As to the first point it is only necessary to say that the district court had jurisdiction of the subject matter of the foreclosure proceeding involved and by personal service of summons upon the defendants acquired jurisdiction over their persons.
Under our statutes the purchaser at a foreclosure sale is, as against the judgment debtor, entitled to possession of the premises during the period of redemption, except when they are occupied by the execution debtor as a home for himself and his family. (Sec. 9449, Rev. Codes 1921; Citizens’ Nat. Bank v. Western L. & B. Co., 64 Mont. 40, 208 Pac. 893.) But the decree in this case made specific provision that the purchaser should be let into possession upon production of the sheriff’s certificate of sale, and we must presume for the purpose of this proceeding that it was properly made. If what the defendant Winner asserted in the affidavit filed in support of his motion to quash the writ of assistance was true and the provision inserted in the decree of foreclosure to the effect that the purchaser should be entitled to possession of the premises on production of the sheriff’s certificate of sale was not warranted by the allegations of the complaint, his remedy was by motion to modify the decree so as to make it conform to the pleading; he could not assail the decree collaterally on a motion to dissolve the writ of assistance.
2. When defendants have appeared in the action and are in possession of the premises, or where the premises are in possession of persons who were not parties to the suit, a writ of assistance should not issue until after notice of application for the writ and a hearing thereon. (2 Ency. Pl. & Pr. 984; 3 Cal. Jur. 341; 2 R. C. L. 735; 5 C. J. 1324; Hooper v. Yonge, 69 Ala. 484; San Jose v. Fulton, 45 Cal. 316; Ray v. Trice, 49 Fla. 375, 38 South. 367; Jones v. Hooper, 50 Miss. 510; Escritt v. Michaelson, 73 Neb. 634, 10 Ann. Cas. 1039, 103 N. W. 300, 106 N. W. 1016; Fackler v. Worth, 13 N. J. Eq. 395; Blauvelt v. Smith, 22 N. J. Eq. 31; Knight v. Houghtalling, 94 N. C. 408.) This seems to be the rule in all of the states whose decisions we have examined, except that in New York it is held that notice of the application for a writ of assistance is unnecessary. • (New York Life Ins. & Tr. Co. v. Rand, 8 How. Pr. (N .Y.) 35; New York Life Ins. & Tr. Co. v. Cutler, 9 How Pr. (N. Y.) 407; Lynde v. O’Donnell, 21 How. Pr. (N. Y.) 34.) And in Wisconsin, where the manner of obtaining the writ is left entirely to the wisdom of the court which may or may not require notice to the occupant of the property of the application for the writ as in its judgment may seem best. (Prahl v. Rogers, 127 Wis. 353, 106 N. W. 287.)
But in this case the defendants were in possession of the premises, and, although personally served with process, did not appear in the action until the motion to quash the writ of assistance was filed, and the judgment against them was taken by default. Section 9782, Revised Codes of 1921 provides: “After appearance, a defendant or his attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. But where a defendant has not appeared, service of notice or papers need not be made upon him unless he is imprisoned for want of bail.” In the motion to quash the writ of assistance it was not asserted that the defendants, or either of them, were within the exception noted in the statute, hence, being in default for want of appearance, they were not entitled to notice of the application for the writ.
3. We have considered the petition for the writ and are of opinion that its allegations are sufficient. In 1 Freeman on Executions, third edition, page 166, section 37E, speaking of the steps necessary to be taken to obtain a writ of assistance, the author says: “The acts now required of the purchaser in most of the states are: (1) Exhibit his deed to and demand possession of the parties against whom he wishes to proceed; (2) move the court to issue the writ, and upon the hearing of the motion establish such exhibit and demand, and that such parties remain in possession. Thereupon the writ will be ordered unless good cause is shown against its issuance” (citing cases).
While in order to entitle the purchaser to the possession of the premises it was necessary for him to perform the precedent conditions contained in the decree by producing the sheriff’s certificate of sale to the persons in possession (Ludlow v. Lansing, Hopk. Ch. (N. Y.) 231; Valentine v. Teller, 1 Hopk. 422; 2 Wilsey on Mortgage Foreclosure, p. 1065, sec. 726; Watkins v. Jerman, 36 Kan. 464, 13 Pac. 798; Oglesby v. Pearce, 68 Ill. 220; Howard v. Bond, 42 Mich. 131, 3 N. W. 289; Cochran v. Fogler, 116 Ill. 194, 5 N. E. 383), the relator’s petition does not specifically allege that he did so. It does, however, Mate: “That your petitioner has made demand upon the said Charles Herbert Winner and-Winner, his wife, who claim to be in possession of the aforesaid described lands but they have refused to deliver up the possession of the aforesaid described lands to your petitioner and have advised your petitioner that they intend to withhold possession of the aforesaid described land.”
Under a similar petition, to which a demurrer was filed, the ¡supreme court of Oregon, in Hald v. Day, 36 Or. 189, 59 Pac. 189, said: “If, under our statute, it may be said to be a prerequisite to the obtainment of the writ that the sheriff’s certificate of sale should be exhibited to the party in possession, it should accompany the demand, and would therefore ■characterize the mode or manner of making such demand; so that, when it is alleged that a demand was made for possession, and the same refused, it would let in proof of the exhibition of the sheriff’s certificate of sale. * * * It seems to us that, if issue had been joined upon the merits, all the facts, within these authorities, necessary to the obtainment of the writ, could have been shown under the affidavit filed in this cause. It was therefore sufficient upon which to base the order. The demurrer thereto must be overruled.” So in this case we are of opinion that under the allegations con-, tained in the above-quoted paragraph the relator would have been permitted to show that in connection with his demand for possession of the premises he produced and exhibited to the defendants the sheriff’s certificate of sale, thereby complying with the conditions of the decree.
Moreover, the motion to quash the writ was not based upon the failure of relator to produce and exhibit the sheriff’s certificate of sale, and apparently no objection was made to such failure since the petition recites that the defendants .asserted a right to remain in possession of the premises until (the expiration of the period of redemption. In the paragraph from Freeman on Executions above quoted from it is further said: “The exhibition of the deed may be rendered unnecessary by the conduct of the respondent, as where he announces his intention of withholding possession, notwithstanding such deed, and in defiance thereof.”
In the case of Knight v. Houghtalling, supra, it' was held that the presentation of the deed to the party in possession might be dispensed with when it was waived by the conduct of the parties by a refusal to surrender the possession based upon other grounds.
Since, under the decree, relator was entitled to possession of the premises after production of the sheriff’s certificate of sale and such possession was refused, the court acted properly in granting him a writ of assistance to gain possession, and its order quashing the writ after its issuance was erroneous.
For these reasons it is ordered that a writ issue directing the respondents to vacate and set aside the order made on May 19, 1924, quashing the writ of assistance issued on May 3, and to make and enter an order denying his motion.
Writ issued.
Mr. Chief Justice Callaway and Associate Justices Holloway and Galen concur.
Mr. Justice Cooper, being absent, did not hear the 'argu- • ment and takes no part in the foregoing decision.
|
[
-21,
11,
43,
35,
-24,
-16,
10,
36,
-10,
-16,
-10,
-42,
-40,
82,
-35,
-50,
57,
-24,
0,
39,
-27,
10,
4,
-8,
3,
-31,
-33,
-28,
-24,
16,
-26,
-15,
-10,
44,
4,
24,
-7,
-52,
51,
-35,
-6,
53,
-37,
8,
-11,
-6,
-20,
-65,
10,
0,
-18,
-22,
11,
6,
5,
15,
-7,
21,
-18,
-37,
-9,
-28,
-33,
16,
-2,
21,
-13,
-37,
15,
-44,
27,
-65,
17,
-59,
17,
-2,
-6,
7,
-12,
1,
-20,
-6,
16,
-22,
-39,
-30,
38,
-28,
6,
32,
-17,
33,
13,
23,
12,
29,
8,
11,
-18,
28,
-15,
-54,
-38,
14,
35,
16,
16,
4,
37,
-9,
-26,
-33,
15,
41,
-50,
-27,
-38,
-13,
-13,
-44,
-2,
38,
-24,
-65,
31,
38,
-26,
-8,
32,
-10,
13,
27,
6,
32,
-5,
0,
11,
-38,
14,
-41,
-14,
1,
-5,
-24,
2,
-41,
54,
-12,
-47,
24,
21,
-5,
15,
77,
47,
-9,
0,
-23,
-56,
2,
2,
-47,
51,
-9,
-3,
-16,
-3,
6,
-77,
17,
-9,
34,
0,
21,
3,
-52,
-16,
23,
-33,
50,
-1,
33,
4,
-7,
3,
-25,
20,
18,
48,
-15,
11,
13,
-3,
7,
-44,
-29,
-1,
-73,
25,
15,
-10,
20,
34,
-6,
-55,
-30,
-27,
-52,
26,
16,
-48,
-7,
-18,
-6,
-47,
36,
-21,
25,
31,
-12,
41,
28,
-41,
30,
14,
-16,
16,
-2,
11,
0,
-30,
-3,
-11,
37,
22,
18,
36,
-32,
-41,
18,
-12,
0,
6,
3,
-38,
42,
-2,
-24,
-5,
-26,
-48,
30,
-44,
13,
17,
42,
-22,
-19,
4,
-41,
48,
-23,
0,
26,
-10,
-50,
29,
-41,
-20,
-4,
13,
12,
-14,
21,
16,
-24,
32,
4,
10,
-23,
-22,
-40,
3,
48,
4,
7,
27,
-4,
-41,
-39,
12,
-17,
-1,
6,
-10,
-25,
-5,
-15,
4,
11,
-64,
-17,
-33,
-31,
6,
31,
-59,
-27,
-37,
19,
56,
13,
23,
3,
24,
18,
11,
-12,
7,
28,
34,
30,
-13,
4,
30,
11,
15,
-28,
-16,
50,
20,
32,
-27,
22,
37,
45,
17,
0,
6,
-1,
-20,
-5,
7,
37,
15,
-23,
6,
18,
-66,
17,
-45,
5,
-39,
38,
-42,
17,
0,
15,
-13,
11,
42,
-21,
-31,
31,
-27,
-1,
-8,
-36,
0,
7,
-1,
25,
30,
-13,
25,
-30,
-34,
-12,
26,
25,
20,
-22,
24,
21,
18,
42,
30,
-23,
2,
-43,
-22,
5,
-7,
29,
-30,
-35,
11,
-26,
4,
-44,
-61,
0,
-83,
-15,
-95,
38,
-24,
41,
-16,
-34,
13,
-5,
-12,
-8,
26,
2,
-7,
62,
0,
-15,
-22,
-29,
-20,
10,
-32,
-1,
37,
-11,
-47,
22,
-40,
59,
-21,
-12,
-10,
6,
9,
12,
-9,
14,
30,
31,
-13,
49,
22,
-19,
-34,
-22,
47,
-11,
-37,
-11,
28,
28,
15,
-9,
92,
-14,
-18,
-29,
41,
1,
-21,
13,
-20,
-3,
2,
-7,
-21,
9,
4,
51,
21,
22,
0,
34,
-30,
50,
12,
9,
-29,
29,
-28,
30,
-25,
28,
-44,
-35,
40,
3,
34,
-31,
32,
-5,
-20,
-34,
-4,
-34,
5,
21,
-18,
33,
3,
34,
28,
18,
-25,
-3,
-7,
52,
23,
16,
-21,
14,
-22,
4,
17,
25,
58,
24,
18,
-23,
-10,
23,
4,
6,
50,
58,
40,
-44,
-82,
33,
-16,
-22,
-3,
54,
-22,
3,
-6,
-49,
-18,
-9,
-20,
46,
-50,
47,
-31,
-25,
11,
-13,
30,
-17,
-37,
56,
4,
-5,
-14,
-21,
-46,
1,
1,
-13,
23,
-25,
33,
-30,
16,
31,
-81,
56,
36,
-48,
10,
-29,
54,
-28,
-55,
-10,
35,
-7,
30,
16,
-24,
-16,
6,
23,
-6,
15,
-9,
53,
14,
-4,
-12,
6,
-39,
6,
-67,
24,
-29,
16,
-59,
41,
0,
-6,
-10,
-27,
30,
45,
45,
-14,
-6,
4,
-12,
-8,
48,
36,
54,
-25,
1,
41,
35,
43,
-4,
25,
12,
-7,
-28,
35,
51,
51,
24,
10,
44,
-16,
-2,
-22,
-30,
-13,
-34,
-3,
-19,
28,
20,
-31,
-37,
-27,
0,
-63,
57,
6,
16,
-10,
26,
-62,
52,
21,
86,
-64,
26,
-65,
62,
-14,
-94,
22,
-5,
-23,
42,
59,
20,
65,
-9,
-25,
47,
-56,
0,
4,
65,
28,
27,
1,
38,
7,
-30,
28,
-23,
-14,
18,
-1,
-39,
18,
-40,
14,
-10,
46,
-39,
17,
-10,
27,
-1,
-10,
46,
-22,
9,
56,
-64,
51,
-6,
-51,
-8,
-37,
-15,
-30,
-36,
-48,
-2,
1,
33,
-18,
-20,
-15,
-55,
-60,
1,
-27,
40,
12,
54,
-10,
16,
12,
33,
33,
-28,
34,
3,
20,
-28,
0,
4,
-18,
-62,
6,
24,
38,
29,
-6,
27,
13,
-15,
-31,
42,
-24,
-32,
-56,
9,
-31,
-33,
36,
-37,
-26,
13,
12,
-23,
1,
10,
50,
-18,
-42,
-17,
-40,
-1,
-10,
-12,
-8,
17,
-14,
34,
-13,
49,
-12,
-40,
-24,
-24,
-50,
3,
3,
19,
63,
15,
43,
-2,
-14,
17,
-34,
-37,
52,
32,
12,
13,
2,
48,
66,
30,
18,
54,
22,
-6,
8,
-1,
33,
13,
-7,
35,
-29,
-20,
-21,
-18,
-5,
20,
-30,
4,
-41,
-10,
2,
-19,
4,
34,
28,
-33,
88,
10,
-47,
2,
41,
0,
-55,
13,
26,
23,
-44,
3,
-53,
15,
-19,
-2,
-30,
19,
-5,
-6,
10,
3,
-20,
40,
29,
-32,
-30,
17,
-32,
13,
-7,
45,
25,
-3,
-22,
-4,
-23,
22,
-20,
2,
40,
-6,
0,
-14,
31,
-9,
-20,
41,
-26,
35,
-32,
-63,
1,
-32,
26,
12,
60,
66,
-21,
-25,
45,
-27,
0,
-23,
30,
26,
-14,
44,
-33,
27,
-9,
-14,
10,
-8,
3,
13,
11,
9,
77,
6,
-15,
24,
-16,
-33,
-69,
-42,
36,
-5,
-74,
-1,
7,
42,
-6,
-51,
-17,
33,
-9,
-11,
2,
-12,
50,
-46,
0,
6,
-12,
3,
-1,
-21,
12,
1,
-9,
9,
-25,
16,
-4,
-13,
-16,
24,
-21,
-18,
11,
28,
7,
18,
7,
69,
9,
-33,
-25,
13,
-5,
-58,
-6,
46,
-88,
1,
9,
15,
10,
10,
-40,
43,
69,
9,
-18,
9,
-5,
29,
18,
53,
-16,
10,
35,
-2,
10,
18,
-35,
4,
-34,
-51,
-24,
32,
-8,
42,
0,
-1,
10,
-51,
-17,
-21,
12,
-17,
-15,
24,
-41,
7,
-31,
25,
-19,
17,
22,
-34,
-31,
13,
-17,
-24,
-18,
30,
1,
-26,
9,
-2,
11,
4,
4
] |
Opinion:
PER CURIAM.
The facts presented by this record are the same as those involved in State ex rel. Skrukrud v. District Court, ante, p. 570, 230 Pac. 1089, and upon the authority of that case a peremptory writ will issue herein in conformity to the prayer of the petition.
Writ issued.
|
[
16,
-62,
37,
-10,
44,
-17,
22,
-9,
0,
17,
10,
-60,
-40,
21,
-39,
46,
5,
-2,
46,
-47,
0,
44,
15,
8,
-19,
-34,
0,
-7,
28,
-34,
-16,
58,
-40,
6,
34,
-34,
40,
-50,
29,
20,
7,
48,
-12,
-22,
-34,
3,
-26,
56,
62,
6,
14,
-1,
-35,
-40,
-58,
41,
-31,
-25,
-12,
36,
-47,
-14,
60,
-5,
6,
-27,
33,
9,
14,
-43,
16,
46,
19,
-16,
22,
-13,
-40,
2,
18,
48,
24,
-6,
-19,
9,
-34,
0,
-14,
-8,
16,
-3,
18,
-46,
-17,
-19,
-30,
19,
77,
-6,
7,
45,
-44,
38,
20,
17,
-15,
-21,
15,
-33,
2,
8,
20,
-4,
34,
-37,
-1,
28,
-41,
11,
37,
-14,
-10,
-25,
-34,
27,
-25,
26,
-10,
34,
30,
-24,
17,
5,
22,
7,
49,
17,
40,
-8,
30,
31,
0,
-104,
23,
26,
17,
0,
75,
48,
-26,
-7,
42,
3,
21,
3,
25,
-3,
-48,
-103,
-5,
79,
21,
-46,
-35,
-9,
21,
39,
-33,
-58,
-14,
4,
-34,
-16,
20,
-7,
-5,
-52,
-28,
49,
-8,
22,
6,
68,
2,
-48,
-47,
79,
-82,
2,
-6,
-38,
-34,
30,
28,
-15,
40,
-18,
-11,
-13,
6,
0,
-63,
24,
49,
-45,
-19,
3,
-44,
-18,
1,
28,
43,
-51,
8,
8,
18,
4,
50,
39,
3,
24,
-16,
-18,
16,
-13,
32,
-10,
9,
31,
48,
10,
-9,
-31,
20,
-15,
46,
15,
39,
-16,
43,
-14,
-80,
25,
42,
-53,
41,
3,
61,
46,
43,
-7,
17,
33,
12,
-8,
4,
-46,
14,
44,
-8,
11,
-11,
-5,
0,
54,
-50,
-24,
38,
34,
9,
1,
36,
35,
3,
-39,
83,
11,
-60,
-7,
26,
-11,
12,
11,
6,
-43,
-21,
11,
-18,
25,
4,
-7,
-16,
34,
-29,
27,
-49,
9,
-16,
-54,
8,
13,
-1,
-62,
21,
-9,
37,
-52,
20,
18,
17,
18,
12,
37,
36,
-27,
-71,
52,
-18,
-11,
56,
-28,
-7,
12,
-17,
-61,
-19,
0,
33,
-52,
-67,
22,
42,
-7,
32,
-23,
-51,
52,
33,
18,
-42,
-24,
20,
59,
-33,
9,
2,
-9,
36,
30,
-35,
17,
-60,
17,
7,
15,
8,
-49,
-25,
-64,
47,
35,
-2,
16,
33,
-8,
8,
-34,
-11,
-12,
-20,
14,
31,
-25,
-40,
5,
3,
-37,
61,
-28,
28,
47,
-59,
-47,
-21,
6,
24,
60,
62,
7,
-16,
-26,
-36,
25,
-75,
-52,
-70,
-41,
-8,
4,
-48,
9,
7,
-3,
48,
40,
15,
16,
-2,
36,
32,
48,
-38,
52,
-90,
0,
52,
1,
-16,
22,
36,
-12,
-24,
-7,
-33,
16,
-2,
52,
-16,
14,
22,
-26,
0,
-14,
2,
73,
-22,
-27,
-22,
-35,
22,
-1,
50,
13,
-49,
51,
-78,
36,
-10,
-18,
-11,
30,
2,
-18,
19,
-39,
2,
45,
40,
-5,
9,
31,
-16,
36,
1,
-9,
-11,
86,
0,
19,
24,
-18,
14,
-13,
-81,
75,
-32,
-2,
-50,
-13,
88,
-60,
0,
-27,
-16,
-45,
-60,
9,
28,
20,
10,
15,
-62,
-51,
8,
-8,
-33,
-21,
-25,
-13,
-30,
25,
6,
61,
-57,
-11,
10,
22,
60,
-47,
11,
-26,
19,
27,
55,
42,
-6,
46,
72,
-47,
-51,
-51,
-43,
-42,
50,
-17,
51,
-16,
48,
27,
-41,
-31,
-40,
-5,
-41,
-5,
-5,
15,
9,
-21,
17,
-62,
-51,
6,
26,
-5,
54,
55,
50,
16,
-6,
23,
-39,
-5,
-66,
36,
-17,
-8,
-13,
11,
-15,
-81,
37,
-11,
-29,
-12,
0,
21,
25,
-37,
-59,
-16,
-20,
-36,
30,
-26,
43,
2,
-11,
-2,
20,
-43,
65,
37,
-26,
6,
23,
8,
24,
-8,
34,
-15,
-69,
-13,
19,
-37,
15,
21,
-75,
0,
64,
41,
3,
21,
19,
37,
42,
-43,
18,
28,
-17,
8,
46,
7,
-19,
21,
-23,
20,
-4,
40,
3,
-9,
-63,
35,
-8,
9,
49,
-59,
-42,
-96,
-49,
12,
-2,
20,
-33,
-40,
-1,
14,
-31,
-7,
23,
-21,
-45,
-9,
38,
-42,
21,
-41,
67,
-8,
80,
39,
50,
51,
-9,
-11,
23,
-29,
38,
-52,
10,
-53,
-43,
-36,
-52,
-13,
-35,
15,
-26,
-20,
-26,
36,
13,
13,
-6,
-14,
26,
-7,
-5,
-31,
-1,
-85,
39,
-5,
4,
28,
16,
-38,
53,
10,
-80,
-11,
-18,
-16,
-13,
37,
23,
-34,
-19,
3,
48,
25,
-7,
-17,
-34,
-7,
-53,
-26,
-20,
-11,
-22,
-39,
-17,
-61,
-49,
29,
-25,
-1,
43,
-15,
-22,
-37,
-21,
20,
-19,
50,
-67,
-28,
24,
15,
2,
35,
36,
0,
-1,
50,
15,
-50,
-25,
0,
-12,
-45,
13,
3,
5,
-41,
26,
26,
0,
32,
-82,
66,
33,
-20,
-10,
-10,
-13,
11,
13,
-62,
51,
48,
26,
29,
2,
41,
46,
12,
-24,
-48,
-70,
55,
19,
12,
5,
-33,
-21,
-7,
15,
-29,
110,
18,
-46,
-11,
-23,
13,
14,
9,
-4,
-42,
-25,
-18,
27,
5,
42,
-13,
10,
1,
35,
19,
20,
-2,
1,
-30,
43,
11,
32,
88,
-6,
30,
-21,
76,
-1,
-13,
-53,
-16,
-45,
30,
51,
-14,
20,
-65,
24,
-27,
59,
19,
7,
12,
14,
-46,
-14,
13,
62,
-29,
-41,
40,
-78,
-30,
7,
10,
-30,
27,
-26,
24,
30,
0,
-38,
-26,
-36,
23,
-3,
-31,
64,
36,
59,
53,
26,
-22,
16,
-22,
18,
20,
17,
-9,
56,
-16,
-13,
6,
9,
46,
7,
38,
27,
36,
-43,
16,
5,
-59,
30,
-6,
27,
34,
41,
24,
-38,
-21,
11,
33,
44,
-35,
-8,
-41,
25,
-23,
32,
35,
1,
42,
7,
-67,
-26,
24,
-55,
27,
38,
61,
20,
1,
-80,
-60,
-61,
25,
-17,
9,
17,
-4,
7,
-12,
-36,
1,
54,
-50,
8,
59,
-10,
-24,
-18,
-23,
44,
-14,
-63,
28,
-10,
-125,
-32,
33,
32,
-23,
27,
49,
20,
28,
-52,
-65,
-33,
23,
-22,
-55,
-63,
-51,
-18,
-35,
10,
41,
-21,
0,
-13,
-5,
37,
99,
11,
30,
5,
17,
-24,
24,
-58,
-75,
-32,
55,
44,
16,
6,
-6,
13,
-23,
19,
-57,
-43,
-11,
-20,
63,
-51,
-7,
-48,
-46,
-60,
-5,
1,
-12,
-11,
-21,
76,
21,
0,
-95,
-77,
-71,
-19,
18,
6,
-8,
-32,
12,
16,
-33,
-62,
-25,
4,
10,
-17,
26,
40,
37,
35,
14,
61,
-28,
-2,
-6,
30,
-9,
-2,
-57,
31,
-18
] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
This is an appeal by the defendant Margaret O’Meara from a judgment entered upon the verdict of a jury in favor of the plaintiff John Kerrigan. A number of errors are assigned and argued by counsel for defendant but the case turns upon whether plaintiff’s cause of action is barred by the statute of. limitations.
The facts relied upon for recovery and substantially as set forth in the second amended complaint, as amended, are that Pteter T. McDermott was indebted to plaintiff and John H. O’Meara jointly in the sum of $12,000 and interest. The money was collected from McDermott by H. L. Maury, Esq., the attorney for plaintiff and O’Meara. At a meeting held July 28, 1911, at Mr. Maury’s office, there were present plaintiff, John H. O’Meara, Margaret O’Meara, his wife, and Mr. Maury. On that occasion, according to plaintiff O’Meara “by force, intimidation, and threats, with a loaded firearm,” compelled Maury to pay him $10,388, and by the same means O ’Meara drove plaintiff from the room and prevented him from receiving any part of the money. On the same day O’Meara turned over to his wife, the defendant, $5,000 of the money he had received from Maury. Plaintiff alleges that she received the money with full knowledge of all the facts and converted the same to her own use; that “she knew that the money so received by said John H. O’Meara and the portion of the same received and converted by her, as aforesaid, was a trust fund in the hands of her said husband for the use and benefit of the said John Kerrigan and John O’Meara, and she received the said sum of $5,000 so received from her husband, John H. O’Meara, as aforesaid, without the knowledge or consent of the plaintiff herein, 'and she has at all times since then held and she now holds said money for her own use and benefit and has at all times refused and now refuses to recognize plaintiff’s right thereto, or any part or portion of the same, and has at all times refused, and now refuses, to pay said money so received by her, or any part or portion of the same, to plaintiff, and be has never, at any time, or at all, received any payment on aecount thereof; that this plaintiff did not know, prior to the twenty-fourth day of July, 1916, that said defendant had received any portion of said money from the said John H. O’Meara, as aforesaid, or otherwise or at all, or that she had said money, or any part or portion of the same.” “Wherefore, plaintiff demands judgment against defendant in the sum of $5,000, together with interest thereon at the legal rate from the twenty-eighth day of July, 1911, and for costs of this action.”
By answer defendant denied all the allegations of plaintiff’s complaint. Among other affirmative defenses she alleged that this action was not commenced until September 8, 1917, and pleaded the statute of limitations as a bar to plaintiff’s recovery. Plaintiff admitted that the action was not commenced until the time alleged by defendant but denied the plea as to the statute of limitations.
Upon the trial plaintiff gave evidence in substantial compliance with the allegations of his complaint. Respecting the occurrence in Maury’s office he said O’Meara “threatened to kill the two of us, myself and Maury, and reached for his gun and ordered me out of the room. Safely first, I went.” As to his knowledge of the receipt of the money by defendant he gave this testimony and none other: That on July 24, 1916, upon the trial of another lawsuit (of the character of which we have not any information), he heard Mrs. O’Meara testify that she received $5,000 of the money in question as a gift from her husband. “That is the first time I positively knew she had received a portion of these funds.” Defendant admitted having been present at Maury’s office on July 28', 1911, and that her husband had turned over to her the $5,000 in question on that day; also that on July 24, 1916, she had testified to receiving that sum of money from her husband; otherwise she denied plaintiff’s testimony throughout. She denied specifically that at Maury’s office she had heard a conversation in which plaintiff claimed an interest in the money about to be paid to O’Meara. She said: “There was no conversation of that kind or character that day. * * * There was no discussion had at that time with reference to Kerrigan’s having an interest in the $10,000 that was to be collected by O ’Meara. Maury opened the door and John left, and Kerrigan left too. My husband never packs a gun.” She denied that plaintiff had claimed an interest in the money at any time; on the contrary affirmed that he had said he had no interest in it.
"While a recitation of this testimony is not essential in view of the result reached it is given to show the condition of the record.
Is the alleged cause of action barred by the statute of limitations ?
By the provisions of subdivision 3 of section 9031, Revised Codes of 1921, “An action upon an obligation or liability, not founded upon an instrument in writing, other than a contract, account, or promise,” must be commenced within three years. Upon the face of the complaint that statute would seem to be controlling against the plaintiff. (Schaeffer v. Miller, 41 Mont. 417, 137 Am. St. Rep. 746, 109 Pac. 970.) But this his counsel deny. They rely upon section 9033, Revised Codes of 1921, which provides that the actions therein mentioned may be commenced within two years; subdivision 4 thereof relates to “an action for relief on the ground of fraud or mistake, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.”
For the purposes of this decision we shall assume to be correct plaintiff’s position that defendant in receiving the money as she did became an involuntary trustee thereof. “One who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner.” (Sec. 7886, Rev. Codes 1921.) At the outset of the trial a controversy arose between counsel as to whether this action was at law or in equity. After some discussion counsel for plaintiff; asserted it to be at law. Upon this assurance the court retained the jury which had been impaneled and proceeded with the trial, which was conducted by court and counsel as one in damages for a conversion. But whether the action was at law or in equity the same result is reached.
Following plaintiff’s theory, the defendant 'became liable to him on the day she came into possession of the money. She was a trustee by reason of her own wrong — ex maleficio. She was a trustee in iwvitum. She did not obtain the money as the result of any fiduciary or confidential relation existing between plaintiff and herself. The term “fiduciary or confidential relation” is one founded “upon trust or confidence reposed by one person in the integrity and fidelity of another, and precludes the idea of profit or advantage resulting from the dealings of the parties and the person in whom the confidence is reposed. ’ ’ In such relation the party in whom the confidence is .reposed, if he voluntarily accepts the confidence (see. 7882, Rev. Codes 1921), may take no advantage of the other party without the latter’s knowledge or consent. (Bacon v. Soule, 19 Cal. App. 428, 126 Pac. 384; 2 Words and Phrases, Second Series, p. 529; Ewing v. Ewing, 33 Okl. 414, 126 Pac. 811; Stahl v. Stahl, 214 Ill. 131, 105 Am. St. Rep. 101, 2 Ann. Cas. 774, 68 L. R. A. 617, 73 N. E. 319; 25 C. J. 1119.)
Here the defendant became the trustee of a constructive trust after her husband had by violence become a trustee and had repudiated the trust in the presence of the plaintiff himself. The fraud relied upon as against defendant consisted in her taking the money and converting it to her own use with knowledge of the facts. The plaintiff knew of the fraud perpetrated by John H. O’Meara, but he did not know of defendant’s fraud, not “positively,” until July 24, 1916. Why he did not take action against John IT. O’Meara does not appear. Why the existence of the fraud perpetrated by defendant could not have been readily ascertained plaintiff did not attempt to explain. Possibly, even probably, if he had sought for the facts lie might have discovered them readily. There is nothing to show that they were concealed by anybody. While under the circumstances shown mere silence on part of defendant was not concealment it does not even appear that she maintained silence. Unless there is some relation of trust or confidence between the parties which imposes upon a defendant the duty of making a full disclosure of the facts, there must be some active affirmative concealment of the fraud, something said or done to continue the deception or to prevent inquiry and lull plaintiff into' a sense of security, in order to postpone the running of the statute. (25 Cye. 1188.) Trustee ex. maleficio as she was, under the circumstances shown the law did not impose upon her any duty to speak.
Assuming the plaintiff’s pleading to be sufficient to admit the proof which would bring him within the exception provided by the statute for one who has been defrauded but who has not discovered the facts, how fares the plaintiff?
As a general rule, the statute of limitations begins to run from the time the right of action accrues (Yore v. Murphy, 18 Mont. 342, 45 Pac. 217), and not when the plaintiff who was ignorant before comes to a knowledge of his rights (Thomas v. White, 3 Litt. (Ky.) 177, 14 Am. Dec. 56; Smith v. Bishop, 9 Vt. 110, 31 Am. Dec. 607; Hecht v. Slaney, 72 Cal. 363, 14 Pac. 88).
We took the statute in question from California. In Sublette v. Tinney, 9 Cal. 423, Mr. Justice Field said: “The cause of action cannot be deemed to accrue upon the discovery of the fraud, in any other sense than that the statute will not be deemed to commence running until such period. Fraud is the substantive cause of action; upon its commission the right of action arises, not upon its discovery.” And as that great jurist said, the policy of the law is that actions upon the ground of fraud shall be commenced within two years, but that an innocent party may not suffer whilst in ignorance of his rights, the statute exempts him from the limitation until a discovery of the fraud. This clause of the statute is an exception to the general provision, and, whether it must be pleaded or not, it must be proved.
Now the word “discovery” as used implies that the facts have been concealed from the party relying upon the exception. “Discovery” and “knowledge” are not convertible terms, and whether there has been a discovery of the facts constituting the fraud within the meaning of the statute is a question of law to be determined from the facts proved. It is not enough for the plaintiff merely to say that he was ignorant of the facts at the time of their occurrence, and has not come into knowledge of them until within two years. “He must show that the acts of fraud were committed under such circumstances that he would not be presumed to have knowledge of them, it being the rule that if he has ‘notice or information of circumstances which would put him on inquiry which if followed would lead to knowledge, or that the facts were presumptively within his knowledge, he will be deemed to have had actual knowledge of the facts.’ ” (Davis v. Hibernia S. & L. Society, 21 Cal. App. 444, 132 Pac. 462; Lady Washington C. Co. v. Wood, 113 Cal. 482, 45 Pac. 809; Truett v. Onderdonk, 120 Cal. 581, 53 Pac. 26.)
The plaintiff must show when the fraud or concealment was discovered, and the circumstances of the discovery must be shown, so the court may see whether by ordinary diligence it might not have been made before. (Wood v. Carpenter, 11 Otto, 135, 25 L. Ed. 807 [see, also, Rose’s U. S. Notes]; Stone v. Brown, 116 Ind. 78, 18 N. E. 392; Lady Washington C. Co. v. Wood, supra; People ex rel. Post v. San Joaquin & A. Assn., 151 Cal. 797, 91 Pac. 740.)
“The fact that a person entitled to an action has no knowledge of his right to sue, or of the facts out of which his right arises, does not, as a general rule, prevent the running of the statute, or postpone the commencement of the period of limitation, until he discovers the facts or learns of his right theretunder. Nor does the mere silence of the person liable to the action prevent the running of the statute. To have such effect, there must be something done to prevent discovery — something which can be said to amount to concealment.” (17 R. C. L. 831; 25 Cyc. 1218; Haynie v. Hall’s Executor, 5 Humph. (Tenn.) 290, 42 Am. Dec. 427; Wood v. Williams, 142 Ill. 269., 34 Am. St. Rep. 79, 31 N. E. 681; Bates v. Preble, 151 U. S. 149, 38 L. Ed. 106, 14 Sup. Ct. Rep. 277 [see, also, Rose’s U. S. Notes]; Kennedy v. Baker, 59 Tex. 150; Brunson v. Ballou, 70 Iowa, 34, 29 N. W. 794.) And such was the rule even before statutes were passed basing an exception directly upon concealment of the cause of action. (Smith v. Blachley, 198 Pa. 173, 53 L. R. A. 849, 47 Atl. 985.)
There must be some affirmative act or representation, or what is equivalent thereto, designed to prevent, and which does prevent, discovery. (Wood on Limitations, sec. 276f (2); Lancaster v. Springer, 239 Ill. 472, 88 N. E. 272; Miller v. Powers, 119 Ind. 79, 4 L. R. A. 483, 21 N. E. 455; Waugh v. Guthrie G. L. F. & I. Co., 37 Okl. 239, 131 Pac. 174.)
In Van Ingin v. Duffin, 158 Ala. 318, 132 Am. St. Rep. 29, 48 South. 507, the court said: “Our decisions are that ‘ignorance of right, there being no more than mere passiveness, mere silence, on the part of his adversary, cannot be engrafted as an exception on the statute of limitations, without a destruction of its wise policy, and without an encouragement of mere negligence.’ ”
Why, after John H. O’Meara forcibly took the money to which plaintiff was entitled, plaintiff passively sat by doing nothing for five years is unexplained. Why he did not discover, or attempt to discover, what became of the money, he did not say. He did not testify as to why he remained in ignorance of the facts upon which he attempted to base a cause of action for nearly five years. All he said was that prior to July 24, 1916, he did not know them. He did not attempt to go anj»- further than this in his testimony. The question as to whether he did have knowledge of facts putting him on inquiry is suggested 'by his assertion that July 24, 1916, was the first time he “positively knew she had received a portion of these funds.”
In any view of the case upon the record presented the plaintiff is barred.
Rehearing denied July 12, 1924.
“Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose 'by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go together.” (Wood v. Carpenter, supra.)
The judgment is reversed and the cause is remanded to the district court of Silver Bow county, with directions to dismiss the action.
Reversed.
Associate Justices Cooper, Holloway, Galen and Stark concur.
|
[
-11,
4,
-5,
26,
9,
-21,
-23,
-56,
26,
-28,
51,
46,
-11,
9,
7,
5,
-39,
-62,
35,
32,
52,
-25,
-25,
-43,
-42,
27,
32,
16,
-28,
-24,
9,
-62,
21,
34,
-9,
-15,
25,
-7,
21,
-15,
3,
-11,
19,
24,
0,
12,
20,
-68,
36,
37,
25,
-32,
-11,
54,
-20,
-33,
-25,
-12,
-10,
12,
7,
-28,
24,
-11,
-2,
1,
62,
-31,
-27,
-10,
29,
0,
28,
-28,
-37,
-5,
-6,
-32,
-23,
-28,
-51,
12,
0,
24,
-5,
-33,
-20,
-20,
-52,
9,
-25,
71,
47,
35,
13,
34,
-35,
13,
-1,
9,
12,
-43,
-21,
14,
40,
6,
40,
-18,
24,
-6,
9,
23,
26,
-25,
-25,
-47,
-5,
-10,
-60,
-32,
9,
7,
11,
-56,
18,
-1,
0,
13,
60,
86,
-10,
10,
7,
9,
-29,
-13,
-25,
40,
43,
-1,
29,
-70,
-23,
-21,
-16,
19,
-4,
-17,
0,
-36,
-28,
7,
-5,
41,
66,
-11,
0,
16,
36,
-8,
26,
-8,
76,
-20,
-13,
-20,
-11,
-69,
26,
-9,
18,
-21,
-31,
-22,
-2,
27,
-2,
-22,
-20,
-4,
11,
67,
6,
0,
18,
12,
46,
1,
29,
-1,
-22,
-22,
-4,
8,
21,
40,
6,
-54,
0,
-1,
10,
-23,
44,
-20,
61,
-57,
19,
7,
-37,
-10,
-13,
0,
37,
25,
-96,
-28,
21,
5,
-53,
58,
22,
-12,
-33,
-16,
3,
-56,
16,
-39,
-51,
14,
-62,
-31,
-34,
15,
-17,
-4,
-23,
1,
-4,
-17,
-12,
-1,
23,
-54,
2,
37,
28,
-10,
0,
62,
-8,
51,
13,
36,
22,
53,
-15,
0,
39,
-48,
25,
8,
-65,
49,
6,
-34,
-14,
-4,
-2,
-4,
3,
-71,
32,
35,
37,
-37,
48,
-9,
-34,
39,
4,
10,
-17,
21,
-14,
2,
4,
12,
40,
-17,
30,
-2,
15,
38,
64,
2,
6,
31,
-39,
50,
-25,
-35,
48,
14,
20,
21,
46,
-3,
1,
-11,
-17,
40,
16,
17,
72,
23,
-47,
-4,
0,
21,
-12,
-57,
-10,
31,
47,
-37,
37,
-30,
-28,
8,
35,
38,
42,
15,
-28,
1,
8,
19,
7,
-24,
4,
20,
30,
-29,
-9,
8,
-39,
-33,
8,
34,
-37,
2,
-6,
45,
-12,
4,
63,
-21,
-20,
-6,
51,
1,
-27,
-55,
37,
13,
-19,
-31,
-41,
23,
23,
-22,
-12,
-24,
36,
1,
20,
-15,
-2,
41,
9,
-11,
-1,
4,
9,
-9,
-4,
-57,
39,
13,
-25,
30,
54,
15,
-3,
-28,
-19,
-13,
-22,
-14,
-67,
-42,
36,
-27,
-66,
-10,
-78,
51,
-41,
-37,
-6,
-4,
22,
13,
5,
-31,
0,
15,
15,
-38,
33,
2,
64,
0,
18,
-21,
10,
-49,
-1,
-57,
6,
-18,
-6,
-46,
-11,
32,
12,
20,
-3,
20,
4,
38,
8,
54,
30,
84,
11,
-64,
18,
76,
15,
-12,
60,
58,
-47,
5,
28,
18,
27,
-34,
69,
-25,
-44,
73,
-17,
-3,
-46,
-22,
-16,
26,
29,
14,
54,
-3,
2,
71,
52,
-1,
41,
35,
12,
-58,
11,
-6,
-27,
4,
-49,
-62,
-37,
-12,
50,
-46,
13,
13,
-4,
-46,
-25,
-63,
13,
-21,
-30,
-15,
68,
22,
1,
-34,
47,
-52,
-4,
39,
13,
13,
-35,
28,
22,
-40,
40,
21,
89,
62,
36,
-14,
0,
59,
-11,
-33,
-20,
-4,
-14,
-18,
10,
36,
-64,
-58,
-41,
19,
4,
-22,
-30,
-2,
6,
29,
11,
30,
-39,
-1,
2,
-11,
26,
33,
20,
-4,
48,
3,
-32,
-19,
-22,
-71,
-28,
-20,
-24,
-11,
-30,
-18,
28,
-3,
-21,
-66,
-12,
-17,
-5,
36,
-3,
-20,
20,
-60,
7,
-15,
19,
4,
7,
-25,
-34,
-20,
29,
43,
22,
3,
-21,
42,
49,
0,
-5,
31,
43,
13,
-17,
-44,
-10,
37,
6,
-56,
-16,
12,
-3,
-11,
-30,
12,
50,
-1,
5,
29,
-25,
-4,
-28,
-76,
-37,
7,
-16,
3,
40,
-20,
-10,
-20,
38,
-1,
-33,
-31,
-21,
15,
38,
-15,
22,
54,
-27,
48,
-66,
6,
-47,
-38,
19,
38,
-24,
51,
-24,
5,
12,
80,
-36,
-32,
26,
-22,
11,
-33,
-14,
21,
36,
0,
21,
14,
-1,
6,
16,
-11,
76,
13,
30,
23,
-53,
24,
19,
-34,
53,
-22,
42,
0,
-16,
-12,
4,
-60,
22,
-32,
0,
-5,
-58,
38,
-54,
-34,
-29,
37,
5,
-21,
-6,
42,
-38,
60,
23,
43,
-10,
4,
25,
-30,
-14,
51,
-36,
2,
31,
-10,
-11,
9,
-1,
-6,
-14,
-11,
18,
10,
53,
-15,
-44,
16,
-22,
-39,
9,
-21,
-54,
43,
-7,
25,
22,
15,
-25,
45,
-48,
18,
-34,
39,
-30,
-41,
-4,
55,
-59,
4,
7,
-42,
11,
-18,
-19,
-27,
50,
32,
18,
-1,
5,
12,
-24,
-7,
-26,
24,
11,
-27,
5,
45,
19,
-11,
-10,
0,
-13,
-15,
9,
-42,
0,
-53,
0,
55,
-18,
41,
-14,
79,
17,
-2,
31,
-6,
-74,
1,
53,
-6,
-25,
14,
11,
38,
-27,
7,
-45,
-22,
-24,
3,
-21,
12,
-15,
18,
-11,
33,
35,
-12,
38,
-34,
-8,
-2,
-26,
2,
-32,
-31,
18,
-9,
-69,
27,
-41,
12,
-21,
-1,
-15,
-41,
-27,
26,
31,
4,
-9,
39,
-58,
13,
12,
-14,
-23,
7,
2,
-22,
-19,
15,
-81,
-7,
17,
32,
-43,
31,
25,
6,
-67,
5,
11,
52,
2,
-12,
-34,
5,
-67,
-40,
13,
-4,
34,
-29,
-45,
-2,
-17,
-21,
-1,
0,
29,
4,
46,
-17,
-23,
-32,
-28,
-24,
23,
53,
4,
-59,
26,
32,
-39,
23,
-23,
22,
-2,
-32,
-14,
-6,
-24,
-8,
8,
12,
13,
-12,
-54,
14,
17,
-33,
30,
-41,
22,
-33,
1,
-22,
23,
42,
9,
51,
22,
33,
26,
-33,
37,
11,
-23,
42,
1,
-46,
41,
12,
5,
-18,
-11,
22,
-11,
-34,
0,
-75,
-45,
19,
-52,
-34,
13,
-24,
25,
-10,
-9,
-33,
11,
13,
10,
-18,
48,
66,
-23,
18,
22,
-39,
24,
75,
29,
-24,
-2,
79,
-42,
5,
9,
-42,
-30,
32,
-24,
39,
29,
-10,
74,
4,
-49,
-5,
50,
-28,
-34,
-19,
13,
24,
-65,
6,
87,
-5,
-20,
-21,
25,
8,
-35,
4,
-8,
-34,
3,
-9,
-28,
-2,
-11,
-38,
10,
21,
26,
9,
19,
-3,
33,
-13,
15,
-41,
39,
-11,
-11,
-23,
24,
36,
-4,
-73,
10,
3,
39,
-53,
-8,
0,
50,
12,
-66,
-5,
-19,
-8,
-31,
47
] |
MR. JUSTICE STARK
delivered the opinion of the court.
This case was tried to the court without a jury. At the close of the testimony, plaintiff and defendant each requested the court to make findings, and submitted such as he desired adopted. The court did not, in terms, adopt either, but made findings and conclusions of its own and entered a judgment in favor of the defendant. From this judgment the plaintiff has appealed.
Two causes of action are set forth in the complaint, the first. of which alleges that on or about the seventh day of January, 1919, the plaintiff became the owner of an option for the purchase of 8,600 shares of the stock of the Cascade Silver Mines and Mills Company, upon the following terms: 2,150 shares at thirty cents per share, payable on or before May 1, 1919; 2,150 shares at forty cents per share, payable on or before May 1, 1919; 2,150 shares at fifty cents per share, payable on or before July 1, 1919; and 2,150 shares at sixty cents per share, payable on or before August 1, 1919— and continued to be the owner of the option until it was exercised and disposed of as set forth in paragraph 2 of the complaint, which alleges that on or about the first day of May, 1919, the defendant stated and represented to him that inasmuch as he (defendant) and H. I>. Maury were partners engaged in, and contemplating engaging in, mining deals and similar transactions, and were going to make large amounts of money in such transactions, “that, if the plaintiff would split the said option belonging to plaintiff with the defendant fifty-fifty, the defendant would see that the plaintiff should and would receive a share equivalent to the amount of money the plaintiff gave the defendant, in any future mining or other venture that the defendant and said Maury may have, which proposition so made the plaintiff, the plaintiff then and there accepted, and thereafter, in accordance with said agreement between plaintiff and defendant, the plaintiff and defendant exercised their rights under said option and took up the stock described” therein, and during the months of May, June and July of said year sold said stock, and after paying the option price therefor, there remained the sum of $11,910, which sum of money the plaintiff and defendant divided, giving them $5,955 each.
It is further alleged that the defendant and Maury, subsequent to that time, engaged in mining deals and similar transactions which resulted in profits to them in a sum exceeding $40,000, the exact amount of which was unknown to the plaintiff; that the defendant, “since the receipt of said $5,955 in trust for the- uses and purposes described in paragraph 2 of this complaint, has not in any manner accounted to the plaintiff therefor”; that prior to the commencement of the action the plaintiff requested of the defendant an accounting of said sum of $5,955; that the defendant had refused to account therefor, and had disavowed any liability to the plaintiff under said agreement or otherwise, and has always refused and neglected to account to the plaintiff for any part of said money; that the plaintiff has elected to require the defendant to return the said sum, together with interest, and that it has never been paid, and that by reason thereof the defendant is indebted to the plaintiff in the sum of $5,955, with interest.
To this first cause of action the defendant filed an answer, in which he denied that the plaintiff became the owner of the option mentioned therein, but alleged that said' option was given to the defendant and the plaintiff; that it was taken and held in the name of the plaintiff, and that thereafter it was exercised by plaintiff and defendant, the stock mentioned therein sold, and the proceeds, after paying the option price as set out in the complaint and answer, divided between the plaintiff and defendant; admitted that the defendant and Maury were engaged in mining deals or mining enterprises subsequent to the seventh day of January, 1919, and denied all of the other allegations of the first cause of action.
Under the pleadings, it is admitted that the option was given; that it was exercised according to its terms; that the stock was sold; that, after paying the option price for the stock out of the proceeds of the sale, the balance was divided between plaintiff and defendant.
In passing, it may be observed that there is no dispute in the evidence over the amount received from the sale of the stock. Both plaintiff and defendant testified that, after deducting from the total selling price of the stock the amount paid to the company therefor and all expenses of sale, $11,910 remained, which was divided between them, each taking one-half. So that the primary inquiry arising under this cause of action is: Was the option in question given to the plaintiff for his sole benefit, or was it issued in plaintiff’s name for the joint benefit of himself and defendant?
The testimony introduced to sustain the first cause of action tended to show that the plaintiff for several years had occupied an office with the firm of Maury & Melzner and had rendered sundry services for them; that said firm, in addition to being engaged in the practice of law, was interested in a certain mining corporation known as the Cascade Silver Mines & Mills Company, and that during the year 1918 the plaintiff had rendered services for the company in the sale of stocks and bonds under an oral agreement with its vice-president that he should be compensated therefor by being given án option for the purchase of certain shares of its stock, and in fulfillment of this oral agreement, at a meeting of the board of directors of this corporation, on January 7, 1919, a resolution was duly passed and adopted, giving to the plaintiff the option set out in the complaint.
The plaintiff testified that these 8,600 shares of stock were issued and placed in the safe in the office of Maury & Melzner, to be delivered as paid for, and subsequent thereto, along about the 1st of May, the defendant came to him and suggested that they enter into an agreement for a division of the option; his testimony in that respect being that the defendant said to him: “You realize, Batchoff, Maury is a very brilliant man and capable of promoting mining deals. This is not going to be the only thing that is going to be promoted and carried to success in the office. There are other things coming up. You also realize that you are not recognized as a partner in those kinds of dealings, and how would you like to share in the future with us in any mining venture that we have?” To which the plaintiff replied that such an arrangement would be agreeable to him; whereupon the defendant said: “Well, if you do, split that option with me and I will let you in on any kind of a promotion that we may have in the future, that you' may share with us on the ground floor.” To which suggestion the plaintiff agreed, and says that thereupon, in pursuance of the agreement, he indorsed and turned over to the defendant the 8,600 shares of stock. The testimony also shows that soon after this conversation the stock mentioned was placed on the market and all disposed of during a period of three or four weeks, and the net amount received therefor was divided between the plaintiff and the defendant.
The plaintiff also testified that no consideration passed to him from the defendant for an assignment of a half interest in this option, except the agreement above mentioned; that about June 1, 1923, he demanded an accounting from the defendant for this money, or its proceeds, and the defendant denied any liability to him whatever on account of this transaction. There was no dispute as to the method of payment for the stock. The defendant testified: “Q. Did you pay for it, or did Batchoff pay for it? A. Oh, Batchoff paid for it in this way, that sales were made. * * * I would handle the thing as agent for Batchoff and Melzner. We paid the company for the stock, and it would be taken out. Batchoff paid for the option just as much as I did.”
The plaintiff introduced other testimony tending to sustain the allegations of the first cause of action, to which it is not necessary to make reference.
The testimony showed that prior to November, 1918, B. K. Wheeler was associated with Maury & Melzner in the practice of law, under the firm name of Maury, Wheeler & Melzner, and in connection with that business Maury and Wheeler had become possessed of certain shares of stock in the Cascade Silver Mines & Mills Company.
In support of his defense to the first cause of action, the defendant testified that about the 1st of November, 1918, the firm of Maury, Wheeler & Melzner was dissolved and was succeeded by the firm of Maury & Melzner.- At the time of the dissolution of the Maury, Wheeler & Melzner partnership, Wheeler was given 35,000 shares as his portion of the stock that had been received by the firm from the Cascade Silver Mines & Mills Company. Shortly after the Maury and Melzner partnership was formed, Maury suggested that they, together with plaintiff and one Brabrook, attempt to secure this stock from Wheeler. At that time neither defendant, Maury, Batchoff nor Brabrook had any money, and a plan was devised to secure the stock, which consisted of Batchoff making the actual negotiations with Wheeler, which he did, and reported that they could get it for $4,250. To raise the money, a note signed by Batchoff, Maury and defendant, ivas given to one Simon Bank who advanced $1,000 to the parties; and finally defendant proposed that he might be able to raise $3,000' of the money by placing a mortgage on his home. Some time in December defendant did arrange for a loan of that amount, which was not completed until the 3d of January, 1919, but he obtained an advance of $1,000 of the amount on December 21, 1918, which he gave to Batchoff, who already had the $1,000 secured from Bank. Batchoff then went to Wheeler and received from him a written agreement, which provided, in substance, that, in consideration of the sum of $2,000 paid to Wheeler, Batchoff had the right to purchase the 35,000 shares of Cascade stock for an additional sum of $2,250, at any time within fifteen days, and, further, that the stock should be deposited in the First National Bank of Butte in escrow, and upon payment of the balance should be delivered to Batchoff; that, in the discussion of the method of raising the money had between Brabrook, Batchoff, Maury and himself, Maury and Brabrook stated to him that Batchoff had previously sold some bonds of the Cascade Company, and that as officers and directors of the company they were in position to give him an option on some stock, and that if he (defendant) would furnish the balance of the funds to finance this deal they would issue this option to Batehoff, and that he and defendant could divide it equally for their services in securing the Wheeler option.
Defendant completed the loan, which gave him $2,000 additional to put in the deal. The remaining $250 was raised by sale of 1,000 shares of Wheeler stock. The balance of the purchase price was then paid, and the certificate for 35,000 shares turned over to the defendant; whereupon a written agreement was entered into concerning it, which recited the conditions of ' its purchase; that Melzner had paid $3,000 thereon, and provided that Batehoff and Maury should pay the amount due on the note to Simon Bank; that Melzner should hold the certificate for 35,000 shares until Maury, Batehoff and Brabrook should pay to him the sum of $2,000, and that the interest of each of the parties to the agreement should be one-fourth of the 35,000. The witness continued, “Immediately upon the securing of that stock, I took charge of the entire matter,” and proceeded to' sell off sufficient of the stock to repay the purchase price thereof, and thereafter the balance of the stock remaining was split up and divided between the parties to the agreement, in accordance with its terms.
Other testimony was introduced tending to support the defendant’s contention.
In rebuttal, the plaintiff and H, L. Maury both testified that there was no connection between the Batehoff option for 8,600 shares and the Wheeler option for 35,000; that there was no discussion whatever, as testified to by defendant, that he was to have a half interest in the Batehoff option, in consideration of his furnishing the funds to finance the Wheeler deal.
Upon this record the court made its findings as to the first cause of action. Responding to the primary inquiry with which our discussion began, namely, whether the Batehoff option was given to the plaintiff for his sole benefit, or whether it was issued in his name for the joint benefit of himself and the defendant, finding No. 8 recites the granting of this option to the plaintiff and concludes as follows: “This option ran to Batchoff personally and was, as the evidence shows, extended to him in consideration and recognition of services previously rendered by him in the sale and disposal of certain bonds of the Cascade Silver Mines & Mills Company. * * # ”
Finding No. 9 negatives defendant’s contention that this option was given to plaintiff and defendant in connection with the Wheeler transaction, and is as follows: “(9) That this transaction of 8,600 shares was not at the time involved in, connected with, founded upon, or agreed to be divided as an adjunct to, the Wheeler stock above mentioned, but, as stated, ran to Batchoff personally, and to no one else, and is the stock involved in the first cause of action stated in the complaint.” The court’s finding No. 10 is as follows: “That thereafter, the exact date not being disclosed by the testimony, but at some time during the period from January 7, 1919, until the eighth day of April, 1919, and during the time defendant Melzner was engaged in handling the Wheeler stock, the plaintiff and the defendant entered into an agreement as to the 8,600 shares referred to, and agreed that said stock should be bought and paid for and dealt with in the market, and that each was to receive one-half of any and all profits from their dealings in the market; that said defendant Melzner was to finance the deal and attend to the details regarding the sale and disposal of the same in the stock market, and to account to the plaintiff for a one-half part of any and all profits made in the handling of the 8,600 shares.”
Based on the contract set out in the last-quoted finding, the court’s findings 11 to 14 declare in effect that Melzner took over the Batchoff option stock and the Wheeler stock, disposed of enough Wheeler stock to repay the purchase price thereof, divided the balance amongst the parties entitled thereto, and also took over the Batchoff option stock, sold it on the market, divided the net proceeds between himself and Batchoff, thus closing the deal, and concludes that the plaintiff is not entitled to recover on the first cause of action.
By twelve specifications of error the plaintiff challenges findings 11 and 14 and the conclusions of law based thereon, upon the ground that they are inconsistent with findings 8 and 9. The correctness of findings Nos. 8 and 9 is not questioned on this appeal. Unless the conditions determined by these two findings 'were changed., then the court’s findings 11 to 14 were clearly inconsistent with them and entirely without justification upon the record.
In its finding No. 10 the court determined that these con- ditions were changed by a subsequent agreement which it recites. Plaintiff’s counsel, however, assert that finding No. 10 is unwarranted by either pleading or proof in the case. This contention must be sustained.
The foregoing summary of the pleadings demonstrates that no contract such as the one referred to in finding No. 10 was mentioned in either the complaint or answer; and a study of the entire record has failed to disclose that such a contract was referred to at any place. Counsel for respondent has not directed attention to any evidence which tends, in the least, to indicate that such an agreement as that referred to was ever made. It thus appears that the court found that a contract existed, in reference to which there was neither pleading nor proof, and which is wholly at variance with the claim of either plaintiff or defendant, and that this contract was made the basis of this judgment upon the first cause of action.
No rule of law is better established than that which declares
that it is beyond the power of a court to make agreements for parties, or to alter or amend those which the parties themselves have made. The duty of the court is to interpret contracts which are open to interpretation and to enforce them. (State Bank of Darby v. Pew, 59 Mont. 144, 195 Pac. 852; General F. E. Co. v. Northwestern Auto Supply Co., 65 Mont. 371, 211 Pac. 308; McConnell v. Blackley, 66 Mont. 510, 214 Pac. 84.)
Since the judgment of the court upon the first cause of action is based on the erroneous assumption that the plaintiff and defendant entered into a contract such as is set out in finding No. 10, it follows that it cannot be sustained.
The second cause of action set out in the complaint alleges that during the years 1919, 1920, 1921 and 1922 the defendant and H. L. Maury were engaged in business at Butte and elsewhere under the firm name of Maury & Melzner, and that during said time the plaintiff performed services for this firm without any agreement as to the amount of compensation which he was to receive therefor; that about April 1, 1922, it was agreed between said Maury & Melzner and plaintiff that, as payment for such services, said firm should and would transfer and deliver to plaintiff 1,611 shares of the capital stock of the Silver Dyke Mining Company, and in accordance with this agreement said firm delivered to the defendant 805 shares of said stock, to be turned over to plaintiff on demand, and that the defendant received and accepted said 805 shares of stock under said agreement; that prior to the commencement of this suit the plaintiff made demand upon the defendant for the delivery to him of said stock, which demand was refused. The prayer asks that the defendant be required to deliver said 805 shares of stock to the plaintiff, or for such other relief as plaintiff may equitably be entitled to.
The answer admits the partnership between Maury and Melzner, alleges that it was a partnership only for the practice of law, and admits that plaintiff performed services for said firm as alleged in the second cause of action, but asserts that he had been fully paid therefor.
The testimony upon the second cause of action covers several hundred printed pages. To epitomize it would unduly extend this opinion. It has all been read and considered. At most it presents substantial differences upon the theories contended for by the opposing parties.
After hearing the testimony of the witnesses, both for plaintiff and defendant, the court found as a matter of fact that the firm of Maury & Melzner never delivered to the defendant Melzner any shares of stock in the Silver Dyke Company for plaintiff’s benefit, that defendant never received or accepted any such shares of stock for the plaintiff, and that the plaintiff was not entitled to recover on his second cause of action. The evidence as to the second cause of action is in perplexing conflict. It cannot be said that it preponderates against the court’s findings, and for this reason they will not be disturbed upon appeal. (Nolan v. Benninghoff, 64 Mont. 68, 208 Pac. 905: Thomas v. Standard Dev. Co., 70 Mont. 156, 224 Pac. 870.)
For the reasons herein indicated, the judgment of the trial court upon the second cause of action set forth in the complaint of plaintiff is affirmed, and the judgment entered on the first cause of action is reversed and the cause remanded to the district court for further proceedings. Each party will pay one-half the costs of this appeal.
Mr. Chief Justice Callaway and Associate Justices Rankin, Galen and Holloway concur.
|
[
-8,
11,
15,
-17,
0,
-49,
0,
-16,
10,
22,
-3,
43,
-3,
26,
-3,
-13,
-15,
-84,
31,
-12,
-12,
3,
1,
-34,
-29,
-41,
-60,
18,
-2,
1,
24,
32,
-8,
31,
13,
85,
-27,
1,
-45,
1,
43,
32,
43,
6,
22,
14,
12,
-96,
36,
-6,
20,
-48,
36,
7,
12,
-49,
-51,
67,
13,
48,
15,
-80,
47,
-4,
32,
2,
45,
-33,
0,
-2,
-31,
-17,
22,
-8,
0,
-13,
-4,
-22,
-35,
-35,
-1,
-20,
11,
7,
-24,
34,
-4,
-10,
-40,
48,
2,
-25,
20,
28,
27,
59,
0,
17,
-70,
78,
127,
-71,
-52,
-77,
77,
30,
-13,
35,
29,
7,
-63,
-1,
55,
31,
-7,
-9,
-17,
-38,
-60,
-21,
5,
12,
-3,
-10,
2,
-27,
-23,
-16,
16,
-21,
3,
41,
-13,
80,
-8,
-11,
-38,
-14,
12,
6,
-44,
-46,
-30,
-27,
11,
39,
4,
-15,
28,
-1,
-7,
-55,
-12,
12,
-13,
-61,
-31,
22,
51,
-21,
68,
-41,
81,
34,
19,
2,
-22,
-65,
10,
-28,
-27,
-55,
-13,
-68,
-8,
33,
26,
-84,
-37,
11,
-26,
44,
-27,
-52,
0,
-22,
-9,
61,
33,
-26,
50,
1,
-15,
36,
-36,
-18,
2,
-24,
89,
32,
47,
-53,
-47,
13,
-48,
9,
-16,
10,
23,
40,
38,
37,
-12,
-42,
-22,
-7,
-21,
-49,
9,
-34,
41,
-51,
-22,
20,
36,
-66,
56,
-11,
-3,
-2,
-70,
-18,
-5,
38,
15,
2,
13,
-15,
-5,
-40,
-19,
-21,
-17,
-43,
21,
48,
-20,
-9,
3,
16,
-11,
19,
-29,
-29,
20,
13,
-24,
17,
0,
-67,
23,
43,
3,
63,
16,
-39,
-21,
-33,
-23,
6,
33,
-39,
15,
17,
-11,
-50,
1,
-6,
2,
-29,
7,
-19,
0,
29,
2,
-20,
-6,
-17,
-60,
-11,
10,
4,
82,
-34,
51,
-24,
-15,
23,
-14,
64,
-32,
15,
2,
38,
0,
41,
-32,
23,
-11,
-16,
6,
15,
7,
-7,
85,
-27,
11,
22,
60,
18,
10,
-22,
1,
-12,
72,
14,
70,
-68,
-30,
29,
39,
17,
19,
33,
-57,
-15,
-1,
62,
52,
-28,
2,
2,
5,
-39,
33,
-21,
-15,
-17,
-31,
-36,
-11,
-47,
-27,
41,
-55,
29,
-4,
1,
14,
-38,
40,
8,
21,
1,
-27,
47,
-54,
-2,
39,
47,
6,
56,
-13,
-44,
80,
-4,
35,
8,
-52,
45,
1,
3,
80,
0,
10,
52,
-9,
-23,
-13,
-49,
-82,
12,
16,
80,
-37,
15,
2,
-46,
-7,
-9,
0,
-16,
6,
-20,
-46,
-57,
17,
12,
-43,
-22,
0,
16,
-21,
-67,
5,
-43,
-32,
57,
-8,
67,
57,
2,
22,
-2,
28,
-53,
-29,
-30,
-31,
0,
-45,
14,
-11,
-4,
-20,
-7,
36,
-8,
5,
18,
-11,
40,
8,
24,
38,
-12,
-4,
-46,
58,
59,
13,
24,
63,
5,
-8,
13,
22,
-38,
24,
-17,
11,
-9,
62,
46,
-22,
-14,
0,
-19,
4,
62,
25,
71,
17,
27,
-2,
71,
-25,
3,
24,
8,
-49,
11,
5,
3,
-57,
-12,
-24,
-10,
9,
51,
31,
-17,
44,
-47,
-56,
-31,
10,
-32,
21,
-35,
-41,
10,
10,
14,
-39,
37,
39,
-55,
-11,
9,
19,
-50,
-28,
4,
13,
13,
-36,
-2,
44,
33,
-3,
0,
-7,
88,
-47,
-30,
5,
-40,
66,
-45,
-31,
23,
-34,
19,
5,
12,
12,
-22,
-29,
-21,
-20,
-56,
10,
-6,
2,
-39,
24,
-7,
43,
8,
16,
-22,
24,
51,
46,
23,
28,
30,
-8,
-16,
-11,
50,
-65,
-6,
11,
-59,
-33,
0,
-40,
1,
-27,
-1,
10,
23,
0,
-90,
5,
6,
17,
29,
1,
-10,
-15,
-19,
-78,
5,
17,
2,
-11,
28,
18,
-44,
-1,
40,
33,
-24,
26,
7,
-25,
32,
-39,
20,
-33,
-18,
-79,
-20,
-10,
25,
2,
5,
10,
25,
21,
28,
19,
-56,
22,
-19,
35,
27,
47,
-1,
-11,
2,
46,
-19,
-54,
13,
-77,
16,
-10,
-57,
41,
50,
-26,
41,
15,
7,
-68,
-2,
19,
-2,
35,
-37,
8,
-8,
-20,
5,
-10,
34,
-7,
43,
42,
-16,
-23,
13,
4,
1,
-2,
-43,
28,
17,
-37,
-2,
-12,
-23,
16,
22,
24,
1,
43,
-17,
31,
-68,
-3,
10,
50,
31,
7,
21,
-27,
47,
9,
19,
-21,
-38,
2,
50,
-1,
-9,
-7,
32,
-47,
6,
-68,
18,
34,
-47,
15,
0,
-39,
11,
-8,
52,
-10,
7,
-40,
-15,
-30,
4,
28,
-60,
-42,
14,
-22,
-19,
58,
-8,
-51,
-48,
-20,
-20,
73,
-8,
-3,
20,
-28,
34,
3,
40,
28,
54,
-25,
31,
-53,
70,
-10,
-51,
-37,
7,
0,
7,
-8,
-13,
-41,
-8,
-30,
-34,
23,
-7,
-3,
23,
1,
29,
18,
-44,
-47,
47,
-3,
-14,
10,
38,
-6,
-42,
-49,
42,
-19,
-53,
-26,
-45,
0,
-59,
-12,
55,
-23,
42,
5,
31,
34,
35,
-27,
-5,
-15,
-4,
-8,
-57,
31,
38,
51,
41,
-17,
2,
6,
-2,
-13,
17,
33,
35,
9,
-10,
16,
-25,
1,
-32,
87,
0,
41,
8,
31,
18,
-45,
-54,
29,
-18,
-21,
29,
-66,
-47,
34,
-17,
-41,
-59,
-22,
-20,
-5,
33,
-35,
25,
10,
-7,
76,
-31,
-25,
28,
39,
-11,
28,
-9,
-64,
-60,
5,
-5,
-77,
31,
51,
56,
-37,
7,
9,
1,
-17,
21,
29,
-20,
-72,
-45,
2,
-6,
46,
19,
15,
0,
-24,
53,
82,
5,
24,
14,
-39,
-8,
4,
24,
5,
-28,
-5,
10,
29,
-78,
29,
20,
-56,
10,
2,
4,
-15,
55,
76,
-6,
-19,
23,
-15,
-37,
-26,
-23,
-1,
-84,
57,
-33,
33,
17,
6,
-11,
-41,
21,
4,
43,
44,
41,
-35,
54,
67,
-24,
-9,
-26,
-38,
92,
28,
-3,
17,
34,
77,
-46,
-40,
21,
18,
-36,
-14,
32,
0,
53,
-11,
57,
30,
-47,
-13,
-19,
-32,
-6,
-53,
-4,
6,
-7,
43,
8,
11,
-78,
-3,
-28,
28,
27,
62,
28,
5,
55,
21,
-5,
-45,
8,
2,
-70,
-47,
-16,
14,
-42,
23,
16,
19,
-12,
23,
-66,
40,
0,
89,
-50,
-22,
10,
60,
-39,
-15,
-43,
50,
8,
-44,
-5,
77,
-48,
-73,
-7,
-23,
26,
9,
-4,
-6,
45,
5,
-5,
38,
-30,
16,
-16,
-48,
-29,
12,
23,
-47,
-7,
18,
-17,
8,
0,
-29,
-5,
29,
14,
-2,
47,
0,
17,
-49,
-42,
-44,
40,
3,
-19
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the .court.
• On December 12, 1922, Otto Jensen, of Edgar, Montana, sold and delivered to the Laurel Meat Company of Laurel merchandise of the value of $226.59, and on the same day, after banking hours, received the meat company’s check for the amount, drawn on the Citizens’ National Bank of Laurel. On the morning of the 13th Jensen indorsed the check in blank and deposited it with the Edgar State Bank, which forwarded It in the usual course of business through the Yellowstone-Merchants’ National Bank of Billings and the Federal Reserve Branch Bank of Helena to the Citizens’ National Bank of Laurel for payment, where it was received on December 17 or 18. Upon receipt of the cheek the Laurel bank marked it paid, charged the amount to the meat company’s account, and on December 18 issued its sight draft on the Montana National Bank of Billings in favor of the Federal Reserve Bank for the amount of this check and other checks, and the draft was transmitted by mail to the Federal Reserve Bank, which in turn sent it to the Montana National Bank of Billings, where on December 22 it was protested for'nonpayment, returned to the Federal Reserve Bank, and by it sent back to the Laurel bank on January 6, 1923. In the meantime, and on December 21, the Laurel bank failed and was closed by the proper authorities.
- From December 12 to 21 the meat company maintained on deposit with the Laurel bank funds sufficient to pay the check, and during the same period the Laurel bank was a going concern, with funds in its vault ample to pay the check, and, if a demand to that effect had been made, the cheek would have been paid in cash.
After the Laurel bank closed, someone assumed to credit back to the meat company’s account the amount of the check, and took the check from the pouch containing canceled checks of the meat company and returned it to Jensen through the same agencies by which it was transmitted in the first instance, and all without the knowledge or consent of the meat company.
Jensen then instituted this action to recover the purchase price of the merchandise, and prevailed in the lower court. The meat company appealed and now insists that upon the undisputed facts the judgment should have been in its favor.
Certain incidental questions suggested by the respective counsel may be disposed of somewhat summarily, and the case simplified materially.
(1) When the check was deposited by Jensen with the Edgar State Bank without any special agreement, the presumption is to be indulged that it was deposited for collection (2 Daniels on Negotiable Instruments, 6th ed., see. 1623), and the title to it remained in Jensen, even though he was given credit for the amount of it in his pass-book and permitted to draw against the deposit provisionally (2 Michie on Banks & Banking, sec. 159.)
(2) In accepting the check for collection, the Federal Re- serve Bank became Jensen’s agent, and, since the Edgar State Bank and the Yellowstone-Merchants’ National Bank served only as instruments for effecting the transmission, they may be eliminated from further consideration. (Federal Reserve Bank of Richmond v. Malloy, 264 U. S. 160, 68 L. Ed. 617, 31 A. L. R. 1261, 44 Sup. Ct. Rep. 296.)
(3) The meat company did not discharge its obligation to Jensen by delivering to him its check, for “a check is merely an order for money, and in the absence of any agreement to the contrary, its acceptance in discharge of an indebtedness is conditional upon its payment.” (United States Nat. Bank v. Shupak, 54 Mont. 542, 172 Pac. 324.)
(4) The Federal Reserve Bank was not negligent in sending the check for payment directly to the bank upon which-it was drawn. The imputation of negligence might have been-made prior to 1917, but by the enactment of section 6108, Revised Codes of 1921, any bank doing business in this state- and receiving a check for collection may send it for ■ payment-directly to the bank upon which it is drawn, and the failure of. the bank to which it is sent to account for the proceeds shall not render the forwarding bank liable if it “used due diligence, in making such collection.”
(5) There is not any charge of negligence or laches in presenting the cheek for payment. On the contrary defendant alleges in its answer that the cheek was duly forwarded to the Laurel bank in the usual course of business, and this constituted due diligence under the express provisions of section 6109, Revised Codes.
It is the contention of defendant that its check was paid- and its obligation to Jensen discharged when the check was received by the Laurel bank, marked “Paid,” the account of the meat company charged with the amount of it, and the Laurel bank’s draft issued to the Federal Reserve Bank; that-so far as defendant is concerned the transaction was then-closed, and neither the crediting back of the amount of the check to its account nor the return of the check to- plaintiff, nor the dishonor of the draft, nor the failure of the Laurel bank, nor all of these circumstances combined, could operate-to reopen it; that the money was on hand in the Laurel bank to pay the check, -and, if the cash was not received by Jensen-in point of fact, the failure can be attributed only to the negligence of his agent, the Federal Reserve Bank.
The drawer of a check undertakes that it will be paid upon due presentment (sec. 61, N. I. L.; see. 8468, Rev. Codes), and a first due presentment for payment fixes the rights and liabilities of the parties (Simpson v. Pacific Mutual L. I. Co., 44 Cal. 139). If, when due presentment for payment is made, the drawee is ready, able and willing to pay, and the holder permits the fund to remain longer in the hands of the drawee, or accepts in lieu of the money the drawee’s draft on another bank, he does so at his own peril. (Anderson v. Gill, 79 Md. 317, 47 Am. St. Rep. 402, 29 Atl. 527, 25 L. R. A. 200.)
And the reason for the rule is manifest. The check calls for the payment of money upon due presentation, and the drawer cannot be held to anticipate that settlement will be made in anything but money, or that payment will be postponed after due presentation is once made. If, then, when the check is first presented for payment, the drawer has on deposit with the drawee bank funds sufficient to meet it and the drawee is ready, able and willing to pay it in cash, the drawer has fulfilled his undertaking. If the holder sees fit'to disregard the mandate of the check and to settle the drawee’s liability upon terms other than those proposed by the drawer, he does so at his own risk, but he cannot extend the drawer’s liability.
When the Federal Reserve Bank sent the check to the Laurel bank, due presentment for payment was made as effectively as if the check had been sent by messenger and the messenger had presented it at the bank window during banking hours. And, since at that time the meat company had on deposit ample funds to meet it, and the Laurel bank was ready, able and willing to pay it in cash, the meat company had fulfilled its undertaking, and its rights were not prejudiced by the fact that the Laurel bank did not ship the currency to the Federal Reserve Bank, but, acting in virtue of a business custom or usage prevailing between the two institutions, for the sake of convenience transmitted its draft.
Nelson, who was teller in the Laurel bank at the time the draft was issued and who signed it on behalf of the bank, testified: “It was just the custom to remit by draft. I had been doing that way for some time, and the Federal Reserve Bank never took exceptions to my remitting that way.”
When the draft was received by the Federal Reserve Bank the Laurel bank’s method of settlement was not repudiated; on the contrary, the draft was accepted and forwarded to the Montana National Bank of Billings for payment. The only legitimate inference from the record is that the Laurel bank did just what the Federal Reserve Bank contemplated it would do, and just what it tacitly sanctioned in advance, viz., canceled the check, charged the amount to the meat company’s account, and issued and delivered its draft in favor of the Federal Reserve Bank. By these acts, done under the circumstances indicated, the check was paid, so far as the meat company was concerned (Malloy v. Federal Reserve Bank (D. C.), 281 Fed. 997; Bank v. Floyd, 142 N. C. 187, 55 S. E. 95; Nineteenth Ward Bank v. Bank of South Weymouth, 184 Mass. 49, 67 N. E. 670), and nothing done thereafter without its consent could operate to retract the payment.
The relationship existing 'between the Laurel bank and the meat company was that of debtor and creditor (sec. 7701, Rev. Codes; In re Williams’ Estate, 55 Mont. 63, 1 A. L. R. 1639, 173 Pac. 790), and by charging the check to the meat company’s account the bank reduced its indebtedness to the •meat company to the extent of $226.59. That amount was no longer subject to be withdrawn by the meat company (Farmers’ Bank & Trust Co. v. Newland, 97 Ky. 464, 31 S. W. 38), but was held by the Laurel bank to the credit of the Federal Reserve Bank (People v. Merchants & Mechanics’ Bank, 78 N. Y. 269, 34 Am. Rep. 532).
We are fortified in our conclusion by the further consideration that upon the facts disclosed by this record the Federal Reserve Bank became liable to Jensen for the amount of the cheek.
In the early case of Power v. First Nat. Bank of Fort Benton, 6 Mont. 251, 12 Pac. 597, this court adopted the so-called-New York rule to the effect that there is no- liability existing in favor of the owner of the check and against any collecting bank other than the initial bank of deposit — here the Edgar State Bank — but by -the enactment of section 6109, Revised Codes of 1921, that rule was set aside in favor of the so-called Massachusetts rule which is that the initial bank by the mere act of deposit for collection is authorized to employ subagents who thereupon become the agents of the owner and directly responsible to him for their defaults. (Federal Reserve Bank of Richmond v. Malloy, above.)
It is the general rule that a bank accepting a check for collection is authorized to receive money only and has no implied authority to receive a draft instead, and, if it does so, it assumes the risk that the draft will be paid and become liable to the owner for the amount of the check. (Bank of Antigo v. Union Trust Co., 149 Ill. 343, 23 L. R. A. 611, 36 N. E. 1029; Bank v. Ashworth, 123 Pa. 212, 2 L. R. A. 491, 16 Atl. 596.)
When the Federal Reserve Bank surrendered the check and accepted the Laurel bank’s draft, it made that draft its own, and its liability to Jensen became fixed, as much so as if it had received the cash. (National Bank v. American Exch. Bank, 151 Mo. 320, 74 Am. St. Rep. 527, 52 S. W. 265.) But it is idle to multiply the citation of authorities. The facts disclosed in Federal Reserve Bank of Richmond v. Malloy, above, are not distinguishable from the facts in the case now before us, and the supreme court of the United States there held the Federal Reserve Bank liable to- the owner of the check.
The fact that the Federal Reserve- Bank is liable to Jensen for the amount of the check is very persuasive, if not conclusive, that the meat company is not liable.
The payment of the check operated to discharge the indebtedness for which it was given, hence the defendant should lave prevailed.
The judgment is reversed and the cause is remanded, with directions to the district court to- enter judgment dismissing the complaint.
Reversed.
Mb. Chiek Justice Callaway and Associate Justices Rankin and Stark concur.
Mb. Justice Galen, being absent on account of illness, takes no part in the foregoing decision.
|
[
36,
21,
53,
-5,
-32,
9,
40,
24,
-16,
40,
28,
17,
19,
13,
-10,
11,
34,
-20,
41,
24,
19,
-46,
-23,
-35,
-15,
-18,
4,
5,
-30,
39,
3,
-9,
43,
6,
-20,
32,
-27,
1,
32,
-58,
-27,
9,
16,
11,
15,
38,
31,
-54,
-25,
-4,
21,
-51,
51,
-25,
8,
-23,
16,
-7,
-65,
47,
50,
-59,
72,
43,
68,
-19,
-34,
26,
-1,
45,
-8,
-28,
-32,
-66,
32,
-81,
-4,
-14,
-62,
-81,
-5,
-23,
21,
26,
-52,
12,
-64,
-11,
-6,
16,
22,
10,
-3,
-28,
34,
-22,
-14,
-2,
-25,
-6,
7,
-101,
-13,
30,
23,
40,
-63,
48,
0,
19,
-11,
11,
-2,
-14,
-4,
26,
-59,
37,
-55,
-44,
2,
72,
-54,
13,
0,
12,
-17,
34,
-11,
37,
-31,
0,
-14,
41,
-37,
-13,
-58,
-46,
-47,
-16,
9,
3,
-27,
9,
-17,
3,
45,
43,
-34,
0,
-17,
-25,
46,
26,
-14,
-68,
0,
-49,
32,
-25,
9,
-13,
-11,
40,
18,
57,
13,
-85,
-13,
-39,
-51,
50,
-59,
-9,
65,
25,
20,
-89,
61,
-9,
-46,
39,
-26,
42,
7,
45,
31,
1,
51,
-3,
-19,
-8,
20,
22,
-51,
-18,
-2,
-22,
40,
-7,
15,
7,
14,
-11,
-27,
15,
15,
-32,
30,
-8,
-4,
-21,
7,
7,
-70,
14,
-40,
-50,
44,
-1,
-5,
0,
-59,
19,
-16,
-48,
66,
25,
24,
-32,
-74,
43,
16,
6,
62,
3,
30,
-62,
-15,
-11,
-28,
-58,
-29,
-29,
0,
4,
-36,
-52,
19,
20,
-27,
-23,
2,
72,
-8,
38,
19,
-33,
-3,
-3,
0,
9,
17,
-22,
12,
-50,
10,
9,
-22,
3,
-19,
-63,
30,
-8,
-16,
-38,
36,
3,
-17,
-56,
15,
-73,
-4,
3,
16,
-19,
-7,
1,
-19,
10,
52,
16,
41,
1,
61,
17,
29,
-20,
7,
5,
-32,
-1,
-20,
7,
-14,
42,
-51,
-14,
-51,
-90,
28,
-53,
-41,
-22,
45,
0,
-42,
42,
28,
4,
76,
8,
35,
-11,
40,
-5,
-14,
-28,
19,
-13,
41,
14,
-26,
35,
-30,
-5,
5,
-6,
17,
17,
7,
-22,
28,
-13,
-37,
6,
-28,
28,
-26,
-26,
-6,
14,
4,
61,
16,
69,
42,
20,
-47,
2,
12,
-9,
-2,
20,
-30,
17,
-34,
-32,
-6,
-8,
2,
50,
5,
-25,
-7,
28,
-32,
-15,
-33,
8,
-26,
-19,
-1,
-37,
10,
25,
11,
-36,
-69,
-11,
9,
0,
-22,
77,
19,
-25,
-17,
-49,
-13,
-47,
-48,
38,
-20,
-47,
26,
-24,
2,
-12,
14,
26,
26,
-20,
-21,
-56,
-8,
4,
-12,
39,
14,
-39,
36,
6,
15,
19,
66,
-74,
50,
21,
-45,
-1,
-24,
-47,
-22,
-9,
-33,
16,
16,
15,
24,
-4,
45,
58,
-55,
1,
18,
1,
3,
17,
52,
5,
47,
-15,
-9,
-11,
-22,
26,
30,
-40,
-24,
-84,
4,
23,
-5,
-13,
22,
35,
50,
-16,
17,
25,
6,
-2,
11,
19,
-19,
21,
47,
4,
17,
-10,
-29,
15,
23,
-9,
-15,
-21,
-42,
-72,
-42,
40,
58,
45,
-42,
-5,
-11,
13,
17,
-54,
5,
17,
-20,
-33,
14,
-10,
-37,
-4,
15,
-46,
-11,
28,
25,
-18,
9,
-5,
-8,
24,
8,
67,
-20,
49,
29,
31,
-30,
21,
-50,
-15,
11,
10,
-3,
-85,
-56,
19,
-3,
-61,
49,
-32,
54,
7,
15,
-47,
-28,
-39,
62,
14,
-31,
-17,
18,
-26,
9,
-7,
12,
-43,
39,
-27,
14,
0,
-2,
30,
-11,
14,
-15,
52,
-13,
35,
25,
-9,
15,
41,
-3,
-21,
-15,
-6,
47,
18,
29,
5,
-4,
7,
4,
4,
19,
-33,
-36,
0,
-11,
52,
40,
50,
9,
-20,
56,
16,
6,
15,
19,
1,
4,
3,
-9,
18,
-23,
26,
2,
45,
-13,
-42,
-58,
50,
1,
34,
-22,
21,
32,
8,
-6,
-6,
-13,
-26,
26,
-39,
7,
5,
-10,
20,
15,
-47,
-45,
45,
12,
14,
-5,
-23,
49,
2,
-25,
3,
54,
7,
-34,
-60,
27,
16,
14,
-9,
-10,
-2,
9,
42,
31,
-20,
-14,
12,
21,
19,
-20,
16,
28,
-41,
24,
0,
29,
16,
-26,
13,
-41,
12,
4,
-10,
5,
19,
37,
-56,
55,
-55,
44,
-33,
-8,
0,
16,
14,
7,
14,
-27,
26,
32,
-23,
20,
-26,
6,
46,
0,
18,
-26,
54,
26,
6,
-6,
-21,
-26,
-36,
47,
-43,
-20,
7,
-1,
61,
-22,
6,
3,
8,
13,
-49,
-29,
-4,
-66,
-35,
46,
21,
-43,
-17,
-16,
-16,
17,
25,
26,
-15,
13,
25,
-30,
19,
-14,
23,
-43,
54,
8,
51,
-35,
3,
-20,
-7,
10,
17,
-1,
28,
-74,
2,
-33,
-24,
8,
-16,
29,
15,
10,
-39,
-8,
-27,
-7,
-16,
-49,
-49,
21,
-1,
-13,
20,
-33,
48,
22,
-18,
-26,
-26,
9,
-38,
-52,
18,
34,
26,
22,
-35,
59,
23,
-39,
-26,
20,
-23,
20,
-5,
23,
64,
59,
65,
-1,
-12,
20,
-7,
-43,
69,
20,
-14,
-29,
8,
-46,
-71,
26,
35,
50,
-9,
30,
-14,
2,
19,
-35,
7,
16,
-2,
37,
10,
0,
-33,
-30,
-27,
20,
30,
36,
-21,
50,
2,
-53,
-3,
-31,
30,
-9,
5,
-50,
-15,
-16,
31,
22,
-3,
6,
-32,
-6,
-27,
3,
18,
48,
32,
2,
33,
-57,
-7,
-25,
15,
14,
6,
-6,
6,
-28,
-25,
24,
35,
-1,
-12,
-35,
-7,
21,
-20,
-22,
-33,
-19,
-8,
-28,
33,
28,
-12,
-32,
20,
29,
-17,
18,
-12,
-32,
-52,
43,
3,
25,
-2,
-4,
19,
11,
20,
-21,
-54,
-52,
13,
55,
-57,
-19,
-10,
77,
5,
27,
-32,
35,
53,
10,
-16,
-4,
-12,
52,
30,
-1,
-20,
32,
-43,
-53,
37,
9,
19,
24,
0,
-2,
2,
-5,
36,
7,
42,
-9,
25,
7,
8,
-41,
49,
1,
-2,
-41,
8,
-15,
-8,
27,
3,
30,
-19,
24,
11,
-16,
-26,
9,
-35,
-18,
3,
47,
68,
-47,
47,
37,
-19,
-53,
0,
-19,
13,
-74,
18,
26,
6,
-6,
17,
20,
-37,
-21,
30,
11,
-9,
-4,
0,
-21,
23,
-13,
-24,
28,
-17,
24,
19,
-41,
39,
37,
-13,
3,
35,
-8,
4,
-4,
21,
-7,
12,
10,
-29,
18,
7,
14,
-57,
11,
-37,
-22,
-40,
-8,
-55,
-29,
-11,
-10,
-15,
-25,
-40,
-23,
-5,
13,
-4,
9,
30,
-11,
30,
-48,
-20,
-9,
48
] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
On June 30, 1923, we entered an order disbarring Thomas F. O’Connell from the further practice of law in this state. (67 Mont. 603, 227 Pac. 1118.) He now seeks reinstatement to the bar of this court by petition signed and verified by himself, supported by a petition signed by ninety-four members of the bar of Silver Bow county, among whom are three district judges, a former associate justice of this court, four former district judges, and other leading lawyers, Mr. O’Connell represents that since the date of his disbarment his conduct has been beyond criticism and that he is sincerely regretful of the error committed by him. He promises to conduct himself honorably and properly in the discharge of all his legal duties at all times in the future. The supporting petition represents that in the judgment of the petitioners Mr. O’Connell is a fit and proper person to practice law in this state and they say they believe that his conduct in the future will be such as not to merit criticism of any kind. In view of the present attitude of the petitioner, the fact that his conduct has been exemplary since the date of his disbarment, and relying upon his own representations1 and those of the members of the bar in his behalf, we are led to believe that he will conduct himself in the future as an honorable man and lawyer. Consequently, it is ordered that Thomas F. O’Connell be restored to the privileges of an attorney and counselor of this court upon his taking the usual oath of office.
Associate Justices Cooper, Holloway, Galen and Stark concur.
|
[
-25,
11,
17,
60,
-16,
-8,
-30,
-53,
16,
21,
47,
40,
-56,
-8,
-44,
9,
-27,
-69,
-5,
52,
-31,
-12,
44,
-37,
22,
12,
-35,
10,
-61,
29,
74,
12,
-13,
6,
46,
-6,
24,
-43,
50,
-6,
-7,
44,
3,
-41,
23,
71,
20,
-44,
-36,
21,
39,
-23,
-31,
27,
-11,
-2,
-34,
16,
-21,
20,
50,
3,
-29,
28,
27,
-14,
20,
7,
-13,
34,
-12,
-56,
-12,
-24,
-2,
39,
0,
-18,
-4,
-9,
0,
0,
34,
-60,
-34,
2,
23,
8,
7,
46,
35,
22,
53,
-24,
20,
-32,
-40,
-23,
-10,
-62,
-50,
-84,
18,
-49,
-2,
-1,
-35,
34,
96,
-7,
16,
33,
2,
-9,
0,
-35,
-21,
-46,
3,
24,
31,
65,
9,
-23,
-3,
-1,
21,
-18,
23,
-3,
-21,
-25,
9,
-14,
-47,
-64,
-20,
52,
25,
34,
-5,
4,
34,
-60,
-20,
15,
-37,
18,
13,
3,
83,
-7,
3,
69,
21,
-36,
25,
2,
3,
11,
8,
23,
72,
6,
17,
10,
-36,
-57,
-10,
32,
42,
13,
6,
89,
6,
3,
-9,
40,
0,
78,
23,
42,
40,
-37,
3,
8,
-32,
4,
22,
-47,
-13,
-24,
62,
-46,
-29,
-60,
-41,
-6,
25,
-6,
-34,
-19,
-10,
6,
6,
1,
0,
18,
-23,
10,
-56,
-16,
34,
-9,
-27,
5,
-5,
-60,
-31,
-30,
8,
0,
-17,
-32,
-12,
-2,
-19,
85,
-6,
-44,
-40,
47,
-29,
24,
50,
-15,
32,
13,
-2,
49,
-33,
15,
29,
-67,
-37,
0,
21,
53,
15,
49,
56,
0,
39,
7,
0,
127,
35,
-42,
-9,
-2,
20,
-4,
54,
34,
-53,
-43,
-20,
10,
42,
-10,
65,
-20,
47,
-3,
-27,
-19,
87,
-23,
10,
-28,
9,
-5,
-15,
63,
61,
3,
-8,
7,
-37,
-79,
-30,
-20,
-36,
91,
-7,
15,
1,
26,
-32,
-20,
-8,
-16,
-55,
14,
-26,
-12,
-35,
-8,
14,
-43,
28,
50,
24,
20,
31,
23,
-16,
84,
0,
42,
-38,
17,
-6,
-32,
31,
-43,
-30,
10,
21,
-31,
38,
3,
11,
17,
-15,
-3,
1,
19,
-25,
2,
12,
4,
-13,
-34,
-23,
11,
-22,
14,
-38,
38,
-19,
23,
4,
-13,
-27,
-43,
53,
-29,
15,
-74,
19,
-26,
33,
-22,
12,
46,
-18,
-8,
0,
-47,
24,
21,
2,
-9,
81,
-17,
1,
-16,
-46,
38,
-30,
-13,
-32,
-10,
34,
-20,
-30,
-12,
-48,
-15,
33,
33,
-75,
30,
-4,
-1,
26,
-39,
-18,
-36,
-57,
-26,
-29,
9,
-82,
-5,
-64,
23,
45,
-5,
-10,
11,
5,
13,
51,
-46,
-27,
62,
14,
17,
13,
-51,
64,
14,
21,
39,
34,
17,
-32,
-17,
7,
-55,
13,
29,
-9,
-8,
72,
29,
64,
5,
19,
22,
-13,
13,
-17,
21,
-7,
16,
26,
-42,
28,
41,
94,
24,
-40,
-36,
26,
61,
9,
-52,
35,
-3,
-89,
1,
-1,
51,
-51,
18,
-46,
7,
1,
29,
33,
4,
-39,
36,
57,
-43,
-20,
-31,
21,
-2,
-12,
37,
5,
-33,
-54,
-4,
-6,
-77,
-12,
-40,
-57,
-34,
-56,
-25,
-28,
-43,
-28,
0,
-3,
-25,
-88,
77,
-1,
27,
-19,
-36,
2,
15,
-4,
-9,
9,
4,
40,
-47,
46,
9,
60,
-8,
18,
31,
-18,
-1,
38,
-66,
-57,
12,
0,
-32,
-16,
-18,
-71,
-33,
-61,
70,
4,
-17,
-72,
-71,
49,
-35,
-2,
5,
-58,
-5,
-32,
26,
44,
58,
6,
37,
-40,
15,
-33,
-10,
-85,
-31,
13,
-40,
0,
-1,
19,
6,
-48,
60,
-22,
3,
-51,
-2,
-11,
-50,
14,
16,
73,
-19,
-23,
-23,
41,
-17,
27,
8,
-18,
37,
-18,
64,
-2,
-87,
25,
16,
19,
19,
-17,
24,
-20,
23,
-19,
54,
-6,
21,
-46,
40,
39,
70,
-23,
74,
12,
1,
22,
-30,
8,
-50,
-41,
-7,
-29,
22,
29,
28,
2,
32,
-18,
-26,
17,
17,
37,
-76,
-73,
15,
-24,
23,
66,
37,
14,
56,
-23,
33,
-64,
37,
-31,
15,
29,
-13,
-33,
-31,
-14,
34,
19,
79,
0,
34,
47,
8,
5,
-13,
28,
-20,
-27,
-2,
17,
-17,
0,
-39,
-4,
-9,
38,
78,
31,
97,
-37,
20,
12,
17,
-8,
-16,
-4,
11,
28,
53,
-29,
-26,
-20,
-1,
-5,
-1,
-38,
0,
-11,
18,
-9,
34,
-27,
24,
36,
32,
-29,
-13,
-25,
-14,
-25,
-49,
-15,
-47,
15,
7,
-16,
-36,
28,
-49,
-18,
-10,
2,
-23,
-40,
-4,
47,
-21,
15,
26,
-35,
26,
-17,
2,
16,
37,
41,
26,
-46,
20,
44,
-15,
73,
19,
0,
-12,
-34,
18,
-16,
-33,
-6,
12,
-60,
-9,
-32,
23,
23,
46,
-22,
-19,
-13,
-43,
31,
-45,
-38,
-43,
-13,
29,
35,
18,
-49,
16,
-28,
25,
11,
11,
-28,
57,
6,
-3,
-17,
21,
-14,
-15,
-8,
69,
-27,
2,
-47,
55,
26,
22,
-45,
-40,
-31,
-77,
6,
1,
-16,
22,
-36,
19,
-70,
-5,
-46,
29,
-26,
-31,
54,
15,
-26,
92,
-41,
23,
-18,
24,
57,
-24,
11,
-6,
-8,
24,
27,
48,
59,
3,
-28,
-103,
24,
-40,
-3,
-25,
-31,
-35,
45,
24,
43,
-38,
-30,
19,
-57,
-7,
-8,
-4,
-25,
37,
10,
-38,
-20,
20,
15,
3,
-40,
2,
-8,
-15,
15,
5,
0,
20,
0,
-13,
-53,
35,
-66,
-1,
-27,
-4,
-2,
-48,
-3,
-21,
2,
-5,
-12,
-27,
33,
17,
69,
-19,
16,
18,
2,
-9,
76,
-26,
-32,
37,
31,
-42,
47,
32,
-37,
-7,
-19,
-18,
33,
-16,
27,
-68,
16,
-24,
-15,
1,
41,
12,
-39,
22,
-16,
23,
-6,
48,
29,
-27,
37,
-15,
4,
10,
12,
38,
28,
-20,
11,
3,
0,
49,
5,
-35,
-9,
-34,
30,
3,
20,
-26,
17,
2,
0,
-59,
-36,
-30,
-13,
33,
-29,
54,
54,
-22,
-3,
25,
0,
-11,
-45,
-37,
14,
-15,
-6,
11,
-36,
13,
-1,
-23,
17,
17,
-14,
-18,
2,
75,
23,
-7,
-55,
9,
37,
17,
-31,
-17,
-47,
33,
-35,
0,
-56,
4,
7,
55,
12,
85,
-12,
109,
-40,
-4,
13,
-7,
-1,
-46,
-31,
5,
1,
32,
21,
63,
-24,
-3,
-10,
-56,
14,
-44,
-52,
55,
-2,
9,
31,
-39,
30,
-8,
-58,
-65,
-4,
-43,
36,
-21,
3,
2,
-12,
-25,
53,
-19,
11,
0,
-44,
34,
50,
48,
-7,
-1,
-18,
-47,
-65,
10
] |
PER CURIAM.
Relator’s application for writ of injunction herein is denied, Mr. Justice • Rankin dissenting.
|
[
-42,
-59,
-10,
-32,
92,
-13,
53,
48,
-13,
60,
9,
24,
21,
29,
-10,
6,
88,
36,
21,
-36,
10,
6,
17,
0,
-34,
-61,
0,
-11,
30,
6,
50,
-56,
-47,
-27,
-23,
-49,
-5,
-11,
47,
-60,
25,
7,
39,
59,
3,
14,
41,
26,
-35,
0,
-33,
9,
-16,
-4,
-61,
-2,
54,
-32,
10,
-4,
-10,
23,
28,
35,
14,
-55,
-11,
-11,
45,
35,
-44,
10,
26,
1,
-33,
-13,
9,
-10,
7,
27,
6,
67,
-78,
43,
-20,
43,
-63,
23,
10,
7,
10,
-63,
-90,
-22,
-53,
67,
18,
8,
-50,
18,
50,
63,
31,
-26,
6,
-38,
5,
31,
38,
10,
3,
17,
-57,
23,
30,
-10,
-30,
15,
4,
-59,
-36,
22,
-36,
0,
-21,
25,
12,
29,
26,
-16,
76,
34,
96,
22,
19,
8,
16,
-23,
1,
-25,
-21,
-23,
24,
23,
-16,
-48,
70,
-15,
-26,
14,
45,
-45,
-63,
13,
-19,
0,
16,
9,
37,
73,
46,
17,
0,
13,
62,
27,
-22,
-18,
7,
-44,
-16,
90,
-64,
-40,
-47,
-67,
-69,
-12,
11,
56,
24,
40,
-44,
-23,
-3,
0,
-12,
-12,
34,
-8,
-78,
-15,
59,
-1,
29,
8,
11,
-21,
10,
29,
-14,
84,
-69,
16,
7,
-55,
-30,
-31,
10,
-14,
-41,
-19,
-14,
-37,
94,
-22,
23,
25,
1,
59,
-9,
24,
-5,
-35,
-38,
-9,
31,
70,
-35,
-2,
-52,
-29,
-81,
-15,
35,
-33,
19,
32,
31,
29,
-83,
8,
4,
46,
16,
-77,
-8,
54,
22,
-17,
-63,
-1,
78,
-57,
-21,
-12,
-80,
55,
-19,
-5,
23,
-18,
-34,
-25,
0,
-14,
23,
5,
80,
-8,
-11,
6,
-17,
23,
35,
10,
46,
-24,
19,
15,
-26,
46,
-3,
-35,
9,
16,
67,
-45,
14,
20,
-1,
-6,
52,
-6,
-7,
40,
24,
-18,
-23,
25,
12,
-24,
-10,
40,
11,
-62,
20,
-25,
49,
-25,
0,
-9,
-18,
-27,
-10,
20,
-25,
4,
4,
-81,
-57,
0,
8,
18,
-22,
-9,
40,
25,
40,
22,
97,
57,
-10,
14,
19,
25,
0,
5,
-21,
40,
-107,
81,
-43,
37,
-4,
19,
6,
11,
34,
100,
27,
14,
10,
-48,
21,
26,
-22,
-68,
-47,
9,
16,
24,
36,
16,
1,
6,
0,
-17,
-26,
37,
-42,
-10,
15,
-29,
-28,
0,
2,
10,
-19,
-18,
-48,
-67,
64,
19,
-1,
37,
-12,
-29,
39,
19,
-55,
-70,
36,
-7,
0,
83,
30,
66,
41,
39,
4,
-94,
-71,
0,
29,
-6,
-3,
60,
-58,
37,
-49,
59,
-75,
39,
64,
31,
-26,
44,
67,
-58,
-78,
-56,
30,
39,
-40,
10,
-3,
-11,
8,
22,
-27,
-57,
1,
0,
-48,
-46,
69,
-1,
-14,
34,
22,
11,
20,
-54,
-9,
-26,
-35,
-49,
-58,
-37,
-9,
-2,
-20,
-13,
-47,
-28,
8,
38,
-10,
-31,
-22,
40,
-61,
23,
40,
-6,
22,
-23,
-25,
-13,
20,
-3,
6,
37,
-20,
30,
-104,
28,
-16,
-39,
-73,
5,
23,
19,
49,
57,
-7,
-17,
-15,
-26,
-13,
54,
14,
9,
-55,
-59,
-15,
-58,
-32,
43,
9,
54,
-13,
4,
28,
-32,
-13,
-24,
58,
-38,
86,
-48,
17,
21,
-35,
-9,
-13,
48,
-14,
5,
10,
-11,
18,
-63,
35,
45,
-110,
-19,
13,
36,
-67,
-51,
-21,
-16,
16,
-91,
84,
28,
35,
86,
32,
-7,
-20,
-2,
7,
49,
-67,
42,
-8,
2,
-18,
13,
-10,
64,
32,
0,
-28,
-41,
20,
-60,
49,
24,
-17,
36,
-4,
28,
0,
38,
11,
37,
2,
-7,
1,
-6,
-10,
12,
54,
-21,
38,
-24,
-55,
43,
-35,
-37,
-8,
-85,
-42,
-38,
-6,
-10,
-45,
-26,
0,
-26,
4,
-8,
-59,
0,
-10,
65,
10,
49,
47,
66,
-31,
18,
19,
-65,
42,
47,
56,
60,
-40,
12,
-18,
16,
-32,
3,
6,
-3,
54,
64,
-93,
-14,
-13,
-58,
-35,
-25,
-28,
13,
-22,
14,
25,
13,
-15,
30,
-21,
27,
-11,
-25,
-22,
-46,
25,
15,
-23,
-17,
44,
-81,
-13,
0,
65,
69,
-11,
12,
6,
-54,
24,
13,
-11,
-39,
-25,
7,
18,
19,
-81,
4,
-19,
41,
-30,
57,
-10,
19,
38,
3,
-15,
-32,
45,
-12,
18,
42,
11,
-36,
-15,
-38,
37,
-8,
5,
-16,
-29,
79,
48,
-61,
18,
-1,
-32,
-6,
-48,
-17,
2,
59,
9,
-55,
-3,
34,
-45,
-33,
17,
-48,
14,
-6,
-31,
-60,
0,
46,
36,
-56,
13,
-40,
4,
-28,
42,
15,
-13,
67,
-8,
-59,
43,
28,
34,
-4,
-11,
23,
75,
-16,
18,
-13,
4,
-19,
39,
-19,
-37,
45,
-18,
-49,
22,
-11,
1,
20,
49,
-25,
23,
6,
-68,
67,
-18,
-7,
-21,
-22,
86,
4,
22,
-56,
17,
16,
-10,
27,
3,
-15,
-9,
4,
7,
-45,
2,
0,
-5,
21,
-69,
62,
61,
37,
-41,
-12,
-23,
-10,
8,
2,
-36,
-40,
-35,
-29,
66,
-19,
-70,
4,
61,
-11,
-16,
29,
5,
63,
-32,
-20,
76,
31,
19,
-10,
-60,
15,
23,
57,
-7,
-58,
-61,
21,
15,
86,
-49,
0,
-9,
1,
47,
28,
9,
69,
103,
24,
1,
-29,
-37,
50,
12,
-5,
13,
77,
-112,
-57,
-12,
-3,
-11,
-75,
50,
-5,
-20,
26,
-21,
48,
-27,
51,
-36,
66,
29,
-64,
4,
74,
7,
-45,
6,
-35,
37,
53,
11,
97,
0,
-36,
35,
-5,
11,
-51,
75,
43,
101,
0,
89,
14,
30,
-11,
9,
61,
9,
90,
44,
44,
-30,
-16,
17,
-5,
-23,
-33,
23,
-45,
65,
-39,
-6,
12,
65,
-47,
19,
-39,
-11,
6,
-84,
-40,
42,
-3,
38,
-48,
33,
34,
35,
-15,
-52,
34,
-40,
-50,
2,
-38,
-40,
25,
-67,
-18,
8,
34,
-3,
-64,
-13,
-2,
-40,
-6,
-8,
-73,
76,
13,
-54,
-38,
-57,
-85,
27,
18,
-27,
49,
-39,
-32,
4,
-9,
9,
-30,
-69,
-17,
10,
0,
-30,
-53,
-6,
5,
-62,
-40,
30,
37,
37,
-10,
-38,
65,
-105,
41,
-39,
21,
2,
62,
-48,
-6,
-28,
2,
63,
-77,
-59,
-14,
-4,
-20,
-20,
-33,
53,
14,
-11,
-31,
-38,
-4,
-37,
38,
33,
-81,
22,
30,
-14,
-39,
31,
-10,
-14,
-12,
9,
29,
-52,
54,
-5,
-45,
-20,
45,
-3,
-30,
4,
-37,
35,
12,
29,
-29,
63,
-24,
9,
-3,
-2,
21,
13,
-83,
-7,
-91
] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
In the language of counsel for plaintiffs this is an action for damages sustained by plaintiffs by reason of their reliance upon a promise made by defendant without any intention of performing it at the time that he made it, whereby defendant willfully deceived plaintiffs with the intent to induce them to alter their position to their injury, which they, by reason of believing defendant’s promise, did do to their damage.
The action, if maintainable at all, rests upon these statutory provisions:
“Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his rights.” (Sec. 7573, Rev. Codes 1921.)
“One who willfully deceives another, with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.” (See. 7574, Id.)
“A deceit, within the meaning of the last section, is either: * * * (4) A promise, made without any intention of performing it.” (Seci 7575, Id.)
Proceeding upon the postulate that the quoted provisions are merely declaratory of common-law rules, to which respective counsel agree, it is contended in behalf of defendant that upon the facts stated plaintiffs have not any right of action. Defendant’s counsel says: “Do these statutes make one liable for damages for deceiving another, in the absence of any duty to speak, and in the absence of any relationship, contractual or otherwise? This question overlooks two important points: The first, that one may commit a breach of duty in deceiving another by speech; the second, that if a person “without contract” — irrespective of the existence of a contractual relation between him and another — -injures the person or property of the other, or infringes upon his rights, he does the other a wrong. For every wrong there is a remedy. (Sec. 8752, Rev. Codes 1921.)
It is also urged by counsel for defendant that “misrepresentation as to what will be done in the future, or statements' of intention, do not constitute fraud.” It is true, generally speaking, that in order for false representations to be the basis of fraud, they must be relative to facts theretofore or presently existing and not to those based upon promises as to future acts. But this rule does not apply to a promise accompanied with an intention not to perform it, made for the purpose of deceiving the promisee and inducing him to act where otherwise he would not. (Blackburn v. Morrison, 29 Okl. 510, Ann. Cas. 1913A, 523, 118 Pac. 402; Goodwin v. Horne, 60 N. H. 485; 1 Bigelow on Fraud, 485.)
Speaking of actionable fraud Lord Bowen in Edington v. Fitzmaurice, 29 L. R. Ch. Div. 459, observed: “There must be a misrepresentation of an existing fact: but the state of a man’s mind is as much a fact as the state of his digestion. It is true that it is difficult to prove what the state of a man’s mind at a particular time is, but if it can be ascertained, it is as much a fact as anything else. A misrepresentation as to the state of a man’s mind is, therefore, a misstatement of a fact.” (Hill v. Gettys, 135 N. C. 373, 47 S. E. 449.)
A promise to do an act in the future which is the medium of a deception and which the promisor has no present intention of performing will support an action of deceit. (Sallies v. Johnson, 85 Conn. 77, Ann. Cas. 1913A, 386, 81 Atl. 974; Olson v. Smith, 116 Minn. 430, 134 N; W. 117; Rogers v. Virginia-Carolina Chemical Co., 149 Fed. 1, 78 C. C. A. 615.)
In Kelly v. Ellis, 39 Mont. 597, 104 Pac. 873, this court said: “If the complaint had charged that the defendants entered into the written contract of April 17 without any intention of performing their part of it, or without any intention on their part of performing any one or more of the provisions therein made by them relating to a material matter, then, in either of those events, the plaintiff would show himself entitled to damages for the deceit.” (And see Buhler v. Loftus, 53 Mont. 546, 165 Pac. 601.)
The mere making of a promise which the promisor fails or refuses to perform does not ordinarily constitute actionable fraud (12 Cal. Jur. 734), but where by reason of the promise one has been induced to change his condition and relations so that it is impossible to place him in statu quo, a failure to fulfill the promise works a fraud which may entitle him to relief (Id., 735.)
Of course, the breach of an honest promise relating to something to be done in the future cannot be ground for an action for fraudulent deceit; but there is a wide distinction between the nonperformance of an honest promise and one made in bad faith and without any intention at the time of making it to perform it. (McLean v. Southwestern Assur. Co., 61 Okl. 79, 159 Pac. 660.)
Under the rule announced in Sweetland v. Barrett, 4 Mont. 217, 1 Pac. 745, Mayger v. Cruse, 5 Mont. 485, 6 Pac. 333, Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201, and Blankenship v. Decker, 34 Mont. 292, 85 Pac. 1035, in the absence of a showing to the contrary, a contract required to be in writing will be presumed to be. However, in the instant case it is not only inferable from the complaint that the contract was an oral one but the case has been argued and submitted upon that theory in this court. So it is urged that defendant’s promise to renew the lease for a period of three years was invalid under the statute of frauds, which provides that an agreement for the leasing of real property for a longer period than one year is invalid unless the same or some note or memorandum thereof be in writing' and subscribed by the party to be charged. (Sec. 7519, subd. 5, Rev. Codes 1921.) Such being the case the contract, unless removed from the operation of the statute by an exception, was not only invalid and unenforceable but evidence of its contents may not be received. (Sec. 10613, Rev. Codes 1921; Dreidlein v. Manger, 69 Mont. 155, 220 Pac. 1107.)
The general rule is that if one in order to prove his cause of action is driven to rely upon proving a contract barred by •the provisions of the statute of frauds, lie cannot maintain bis action. Upon tbe facts pleaded may plaintiffs prove their case notwithstanding the statute? The answer must be in tbe ■affirmative, for by tbe allegations of tbe complaint there was performance by plaintiffs of an essential part of tbe agreement.
Tbe pleading is that tbe defendant promised plaintiffs that if they would surrender tbeir option and remain on tbe premises of tbe defendant he would execute a new lease to them. They did surrender tbeir option because of bis promise and remained in bis building until be caused them to remove therefrom. Part performance which will avoid the statute may consist of an act done in performance of tbe contract which puts tbe party performing it in such a situation that tbe nonenforcement of tbe agreement would be a fraud upon him. (Armstrong v. Kattenhorn, 11 Ohio, 265; Eastburn v. Wheeler, 23 Ind. 305.) Tbe underlying principle for this ■rule is stated by Lord Redesdale in Bond v. Hopkins, 1 S. & L. (Irish Ch. Rep.) 433, as follows: “Tbe statute of frauds says that no action or suit shall be maintained on an agreement relating to lands which is not in writing, signed by tbe party to be charged therewith; and yet tbe court is in tbe daily habit of relieving where tbe party seeking tbe relief has been put ■into a situation which makes it against conscience in the other party to insist on a want of writing so signed, as a bar to his relief.” (Wood v. Rabe, 96 N. Y. 414, 48 Am. Rep. 640.)
‘The application of tbe principle would seem to be clear in a case where one in reliance upon an oral contract induced by the fraud of another has performed tbe contract on bis parf and thereby has changed bis situation to bis injury. (See, generally, Halligan v. Frey, 161 Iowa, 185, 49 L. R. A. (n. s.) 112, 141 N. W. 944; McKinley v. Hessen, 135 App. Div. 832. 120 N. Y. Supp. 257; Sears v. Redick, 211 Fed. 856, 128 C. C. A. 234; Wetmore v. White, 2 Caines Cas. (N. Y.) 87; Byan v. Dox, 34 N. Y. 307, 90 Am. Dec. 696; Martin v. Martin, 170 Ill. 639, 62 Am. St. Rep. 411, 48 N. E. 924; Stone Mountain Granite Corp. v. Patriole, 19 Ga. App. 269, 91 S. E. 286; McLeod v. Hendry, 126 Ga, 167, 54 S. E. 949; Atchison T. & S. F. Ry. Co. v. Hurley, 153 Fed. 503, 82 C. C. A. 453.)
In Jennings & Son v. Miller, 48 Or. 201, 85 Pac, 517, a case in some respects very similar to this, it was a part of the alleged contract of leasing that the plaintiff should surrender its option. The court said: “An act of part performance to take a case out of the statute of frauds must be done in pursuance of, or in execution of, the contract alleged, or must obviously be related to or connected therewith, and must be referable solely to such contract.” The facts pleaded here come fully within the quoted language.
Depending upon the briefs and arguments of counsel we have discussed this case upon the theory that the applicability of the statute of frauds to the facts presented may be raised by general demurrer. But we do not overlook the fact that the statute may be waived. (Christiansen v. Aldrich, 30 Mont. 446, 76 Pac. 1007; Mitchell v. Henderson, 37 Mont. 515, 97 Pac. 942.)
The judgment is reversed and the cause is remanded to the district court of Gallatin county, with directions to overrule the demurrer.
Beversed and remanded.
Associate Justices Rankin, Holloway, Galen and Stark concur.
|
[
-62,
-27,
-38,
-9,
72,
-60,
25,
-55,
20,
-19,
49,
3,
33,
10,
-13,
-56,
-22,
5,
26,
21,
25,
-54,
60,
-41,
-20,
-2,
44,
-24,
-4,
-10,
25,
58,
-11,
5,
-53,
-18,
22,
-19,
-9,
-13,
27,
9,
24,
-3,
15,
23,
36,
-56,
27,
-3,
53,
-13,
-24,
7,
-82,
-39,
-43,
42,
17,
-27,
-39,
-50,
58,
-67,
-37,
-79,
74,
28,
-17,
42,
-23,
48,
20,
-33,
-25,
-55,
-6,
-17,
-27,
-46,
7,
-17,
14,
-20,
-4,
29,
49,
-26,
-10,
-34,
-25,
10,
33,
-21,
-8,
23,
0,
28,
-10,
60,
9,
2,
-32,
27,
0,
46,
28,
-19,
3,
45,
-10,
-35,
-60,
-12,
-20,
-25,
-1,
-18,
0,
-36,
-43,
-32,
-16,
0,
-28,
46,
50,
-43,
33,
-17,
70,
23,
19,
60,
-64,
-1,
-44,
49,
60,
18,
13,
-58,
19,
-7,
12,
37,
-18,
25,
-58,
-36,
41,
-55,
-16,
22,
-29,
-46,
-27,
-23,
11,
-1,
89,
-23,
-28,
1,
-11,
31,
-42,
-29,
37,
-7,
34,
-64,
-29,
-49,
-47,
0,
0,
-34,
-27,
-41,
14,
64,
-29,
-48,
-19,
-59,
-1,
0,
1,
27,
27,
16,
-38,
12,
34,
83,
-83,
43,
19,
-61,
-19,
-16,
-31,
12,
17,
24,
-10,
-56,
10,
4,
-52,
-18,
-11,
-45,
53,
-23,
35,
-22,
-44,
17,
19,
-5,
-30,
46,
7,
-36,
1,
-47,
30,
17,
-20,
-7,
-61,
7,
-37,
14,
-9,
-17,
26,
37,
7,
5,
-18,
-55,
-30,
-20,
46,
46,
27,
-14,
-26,
-23,
93,
25,
-12,
10,
-8,
39,
-59,
-29,
16,
66,
-66,
19,
22,
-26,
-3,
-17,
-29,
-21,
-27,
-33,
0,
52,
4,
-47,
6,
6,
-20,
-18,
-21,
77,
9,
-21,
20,
-25,
-17,
63,
15,
-12,
3,
-7,
10,
36,
30,
42,
37,
15,
-35,
57,
31,
-50,
27,
86,
-62,
-12,
-23,
-13,
-6,
-48,
-32,
86,
6,
-20,
12,
46,
4,
7,
41,
-28,
2,
17,
17,
32,
-26,
-107,
45,
-42,
18,
50,
-1,
38,
37,
25,
41,
7,
11,
10,
-21,
-33,
19,
26,
50,
-37,
-31,
57,
0,
-28,
-40,
-12,
-14,
20,
-56,
-11,
-4,
24,
11,
-42,
6,
-9,
48,
25,
15,
-47,
21,
53,
-36,
11,
12,
66,
-33,
-47,
-53,
-12,
-24,
-34,
-24,
6,
-63,
69,
-5,
-11,
24,
-8,
39,
-5,
-107,
-10,
8,
0,
-69,
-66,
-1,
64,
-56,
56,
-25,
-6,
23,
-20,
14,
23,
-20,
-91,
-81,
58,
0,
-34,
-41,
28,
0,
70,
41,
-14,
-9,
7,
32,
12,
-9,
9,
40,
-4,
49,
18,
55,
6,
15,
31,
-49,
-14,
14,
5,
21,
7,
-1,
-21,
40,
-51,
-9,
5,
29,
6,
-10,
-29,
35,
29,
-11,
22,
5,
-2,
17,
-9,
47,
17,
11,
-9,
58,
20,
7,
-51,
22,
-41,
-61,
-22,
4,
-42,
-35,
-46,
-57,
8,
56,
-6,
38,
58,
-43,
29,
-50,
-45,
0,
13,
-18,
3,
52,
-38,
-72,
11,
16,
-25,
48,
-48,
-27,
-7,
3,
33,
-60,
-56,
-44,
17,
-17,
42,
44,
31,
-19,
6,
-13,
-8,
47,
-60,
35,
55,
15,
39,
43,
0,
49,
-20,
31,
19,
-6,
-12,
21,
-30,
-15,
-10,
-51,
-24,
-16,
33,
-6,
-55,
11,
-22,
-2,
-10,
-19,
37,
68,
7,
17,
-94,
-10,
27,
-15,
41,
40,
-26,
49,
11,
74,
6,
-20,
-4,
56,
7,
50,
48,
-7,
5,
43,
7,
11,
28,
27,
-34,
4,
57,
33,
-11,
-5,
-18,
-11,
-37,
-15,
-8,
-18,
-22,
30,
-75,
21,
-48,
-4,
-10,
-19,
-50,
-25,
30,
7,
-20,
42,
1,
15,
-2,
-9,
-13,
-10,
-26,
6,
-71,
-31,
68,
-4,
-4,
-46,
30,
23,
-1,
21,
-26,
36,
55,
27,
-11,
4,
0,
35,
-16,
-66,
9,
6,
77,
13,
1,
25,
26,
83,
-16,
-57,
2,
-44,
-70,
39,
22,
26,
38,
13,
-52,
-2,
57,
17,
18,
39,
43,
10,
30,
6,
1,
2,
42,
10,
-1,
24,
-14,
32,
-64,
15,
6,
4,
14,
-9,
20,
-38,
-53,
-18,
-11,
55,
20,
39,
5,
-1,
-25,
73,
-59,
5,
48,
50,
-10,
-1,
0,
37,
7,
-3,
-18,
25,
-16,
-51,
-16,
-59,
-44,
26,
21,
11,
-28,
-29,
-4,
32,
16,
46,
-39,
11,
12,
-21,
-66,
3,
-21,
-44,
-1,
5,
2,
-6,
13,
45,
-6,
-59,
-21,
12,
10,
-41,
47,
-41,
3,
-67,
18,
5,
-36,
-3,
-29,
44,
7,
26,
35,
13,
-14,
-38,
12,
-11,
18,
15,
9,
21,
-24,
49,
67,
28,
15,
0,
27,
-2,
29,
109,
46,
47,
-30,
11,
23,
-24,
40,
-21,
36,
-4,
0,
17,
57,
20,
-56,
-7,
2,
-30,
12,
-45,
-59,
-34,
-65,
5,
68,
-22,
10,
2,
8,
-38,
43,
30,
59,
-12,
19,
-15,
24,
61,
-2,
-16,
64,
3,
77,
-46,
17,
16,
11,
-18,
43,
40,
-32,
20,
33,
20,
1,
12,
-25,
-11,
-21,
48,
-24,
-22,
-33,
8,
-2,
-85,
-29,
-47,
-7,
12,
-39,
-11,
10,
-64,
2,
24,
-13,
-84,
-70,
-61,
-16,
11,
-40,
-3,
37,
-11,
48,
-39,
-9,
-47,
-7,
6,
26,
-93,
72,
52,
12,
-18,
-30,
-13,
-7,
3,
32,
25,
13,
-32,
-24,
3,
-8,
21,
-9,
-16,
-20,
-1,
-10,
56,
-43,
19,
-8,
-1,
-49,
17,
48,
10,
-26,
-2,
10,
5,
-41,
62,
61,
-18,
53,
-87,
-15,
-35,
-25,
3,
-93,
-38,
65,
66,
-12,
27,
39,
-7,
-17,
-45,
5,
20,
-52,
30,
-44,
-37,
-19,
0,
45,
43,
12,
-38,
31,
71,
-18,
32,
52,
13,
84,
26,
17,
19,
-38,
15,
1,
0,
-55,
-4,
-26,
-30,
42,
-30,
12,
-31,
-3,
-3,
34,
102,
-19,
-12,
-19,
3,
16,
-56,
-3,
13,
10,
-36,
-38,
-42,
-32,
8,
22,
-28,
84,
20,
78,
-38,
-36,
10,
-2,
-3,
-17,
-1,
43,
-49,
-7,
13,
-18,
1,
2,
-11,
-48,
32,
51,
68,
-42,
-71,
-59,
36,
-22,
-73,
-7,
-28,
-4,
-43,
60,
-4,
55,
-37,
-28,
0,
-33,
6,
-2,
-32,
-7,
-38,
-13,
21,
-37,
24,
-31,
-20,
5,
-44,
1,
-36,
-25,
55,
56,
82,
-47,
45,
-18,
70,
-9,
-70,
19,
-12,
40,
-44,
-52,
-27,
56,
8,
17
] |
The HONORABLE JACK L. GREEN, District Judge,
sitting for Mr. Justice Castles,
delivered the opinion of the court.
This is a wrongful death and survival action filed by the parents and personal representative to recover damages arising from the death of Stephen Paul Roberts, age 16. The district court, Yellowstone County, granted summary judgment on defendant’s motion.
The accident occured on March 20, 1972 at approximately 7:40 p. m. at a point within the city limits of Laurel, Montana, where a spur track of Burlington Northern Railroad which runs in a general north-south direction, crosses Railroad Street, which lies in a general east-west direction. The crossing is located 528 feet or approximately one-tenth of a mile from the intersection of Railroad Street and First Avenue South. The crossing was marked by a crossbuck, or railroad crossing sign, painted white with black lettering. There was no electric signal but a street light was located at the northeast corner of the crossing. The street light has a bulb with a green reflector and was on at the time. Railroad Street is paved, heavily traveled and almost level in the vicinity of the crossing except for a slight incline at the crossing itself. The pavement was dry and the weather was clear.
Stephen Roberts had lived all his life in Laurel and, at the time, was operating a 350 Yamaha motorcycle which he had owned one week. He was in the company of a friend, Steven Blohm, who was riding a 250 Suzuki motorcycle.
Defendant was operating a train unit of twenty gondola cars, with the locomotive at the south end, and was backing across the crossing in a northerly direction.
Jerry Malcomb Jones, a switchman for the Burlington Northern, was on the lead car of the train unit prior to and at the time of the accident. The train was moving at a walking speed, approximately three miles per hour. •
As the unit approached the crossing, Jones got off and went ahead of the train to the middle of the crossing. He was holding a hand flashlight or lantern. No traffic was coming and as the lead car was almost through the crossing (the front of the lead gondola car was about % over the crossing) he looked both ways, saw no approaching traffic, and climbed back on the lead car. He had climbed all the way up and was standing inside the lead gondola when he saw the two motorcycles turn from First Avenue onto Railroad Street. He started to waive his lantern and moved southerly inside the gondola.
The boys had been at Roberts’ home and were on their way to Blohm’s home. They turned from First Avenue and proceeded on Railroad Street in a westerly direction. They were traveling at about five miles per hour as they made the turn. Roberts then asked Blohm if he “wanted to race”. Blohm did not respond and Roberts began to accelerate more rapidly than usual. Blohm also accelerated and the boys were racing. As they proceeded along Railroad Street, Roberts started to pull away from Blohm, and, at least part of the time, was glancing back at Blohm. At one time, Blohm indicated his speed was 30 to 35 miles per hour and, at another time, stated it was 35 to 40 miles per hour. Blohm glanced up once and saw nothing unusual; he glanced up again and saw a light which he thought was a street light; he glanced up a third time and saw a light about 15 to 20 feet above the road and to the right of the center of the road, going up and down, but he kept going faster. He then applied his brakes, apparently seeing the white lettering on the side of the dark, rusted, red gondola car and turned left off the road between a telephone pole and the railroad track, went into a yard and drove back up on the road.
Prior to leaving the road, he had observed the brake light come on on Roberts’ motorcycle, which braked for a distance of 81 feet, then went over on its side leaving 30 feet of scrape marks and skidded into the rear wheels of the lead gondola. By the impact, Roberts was thrown to the right and the motorcycle to the left. Roberts was not wearing a helmet and received head injuries.
The switchman, Jones, estimated the motorcycle’s speed at 60 miles per hour before the brakes were applied and 10 miles per hour at the time of impact. Highway patrolman Carranco, based on his investigation, estimated the speed at 50 miles per hour when the brakes were applied. Dr. Robert J. McRae; a professor of physics at Eastern Montana College, estimated the speed at 40 to 48 miles per hour. The speed limit at that point was 25 miles per hour. Officer Carranco and Dr. McRae agreed that if Roberts had been traveling the speed limit he could have stopped in time.
Officer Carranco testified the crossing was visible from the light of the street light when standing at the intersection of First Avenue and Railroad Street one-tenth mile away. The view south of the crossing was obscured by buildings and vegetation.
There had been two other fatal accidents at the same crossing, one within 4Vi months prior to March 20, 1972 and one 9 months after.
Plaintiffs claim the crossing was extra hazardous and defendant was negligent:
1. In the manner in which the crossing was flagged. According to the testimony of Jones, it was the usual and customary practice to flag traffic at this spur crossing and to protect the crossing until the front of the movement had passed over the crossing.
2. In failing to maintain suitable electric or mechanical warnings at the crossing.
3. In failing to maintain adequate lighting at the crossing.
Defendant claims it was not negligent or, if negligent, its negligence was not a proximate cause of the accident. It further maintains Roberts was contributorily negligent in failing to keep a proper lookout, exceeding the 25 miles per hour speed limit and in racing in violation of law. Defendant further argues that summary judgment was properly granted on the basis of either contributory negligence or comparative negligence.
In Beierle v. Taylor, 164 Mont. 436, 439, 524 P.2d 783, 784, the Court said:
“Rule 56(c), M.R.Civ.P., provides that summary judgment is proper if:
“ ‘* * * the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to ■any material fact and that the moving party is entitled to a judgment as a matter of law.’
“The burden of establishing the absence of any issue of material fact is on the moving party. * * * But where the record discloses no genuine issue of material fact, the party opposing the motion must present substantial evidence raising such issue. [Citing cases]”.
In Barich v. Ottenstror, 170 Mont. 38, 550 P.2d 395, 397, the Court again said:
“In light of Rule 56, M.R.Civ.P., the party opposing a motion for summary judgment on a record which reveals no issue of material fact must present facts of a substantial nature. Conclu-sory or speculative statements are insufficient to raise a genuine issue of material fact.”
In the instant case, although the switchman, Jones, may have violated the rule in not remaining on the ground until the front of the movement had passed over the crossing, the front of the movement had passed over the crossing before Roberts began to approach the crossing. Therefore, if Jones’ action did constitute negligence, it could not be a proximate cause of the accident. Further, the crossing was visible from the street light from a distance of 528 feet, or approximately one-tenth mile. At the time the boys turned onto Railroad Street, the first car of the movement was across the crossing and visible from the intersection with First Avenue.
On the other hand, Roberts had the duty to exercise reasonable care, including the duty to keep a proper lookout. Sullivan and Miller v. Doe, 159 Mont. 50, 495 P.2d 193.
Section 32-2144, R.C.M.1947, provides that every person operating a vehicle shall drive at a rate of speed no greater than is reasonable and proper under the conditions, taking into account the condition of the surface and the freedom of obstruction to vision ahead. Further, it provides that in any urban district the speed limit is 25 miles per hour, but a driver shall:
“ * * * drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing * *
Section 32-2143.1, R.C.M.1947, provides:
“No race or contest for speed shall be held and no person shall engage in or aid or abet in any motor vehicle speed contest or exhibition of speed on a public highway or street without written permission of the authorities * * * having jurisdiction * * *.”
Violation of a statute or ordinance is negligence as a matter of law. Rader v. Nicholls, 140 Mont. 459, 373 P.2d 312.
Here the defendant met its initial burden under Rule 56 when it proved Roberts failed to keep a proper lookout, violated the speed limit and engaged in racing in violation of section 32-2143.1. The proof before the district court failed to support the plaintiffs’ contentions.
Under the facts, the district court was correct in granting summary judgment. It was incumbent on the plaintiffs to come forward with proof of their contentions to show that a genuine material fact issue existed.
Judgment is affirmed.
MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES JOHN C. HARRISON, HASWELL and DALY concur.
|
[
-12,
-2,
9,
-9,
56,
-22,
65,
4,
38,
-7,
-34,
-24,
24,
9,
27,
-29,
-49,
-31,
-9,
-67,
-27,
-22,
4,
-35,
-22,
3,
-15,
13,
-56,
28,
11,
-17,
-2,
-43,
23,
32,
-2,
-10,
11,
36,
15,
19,
-8,
-3,
17,
35,
21,
13,
16,
2,
-4,
-2,
38,
-34,
41,
14,
60,
22,
-49,
-43,
-16,
-64,
25,
-18,
27,
11,
25,
12,
-46,
16,
-36,
10,
-21,
55,
-16,
-21,
-4,
14,
-15,
6,
5,
15,
2,
-58,
-50,
-35,
-40,
-24,
8,
14,
-21,
-8,
-39,
-22,
34,
28,
-26,
-36,
-36,
-5,
-36,
5,
25,
-34,
-57,
-50,
-26,
-20,
55,
-5,
14,
38,
0,
31,
13,
25,
13,
-10,
36,
46,
-34,
-14,
-12,
5,
-66,
-14,
21,
69,
19,
14,
46,
-7,
4,
39,
1,
-22,
-64,
-89,
-15,
-3,
-21,
-3,
58,
22,
-30,
-76,
43,
-6,
-7,
25,
9,
51,
17,
-35,
33,
-42,
8,
-48,
57,
35,
66,
44,
67,
36,
-16,
-18,
25,
-13,
-8,
-30,
-13,
-10,
61,
-11,
70,
66,
7,
20,
-26,
37,
-18,
26,
-10,
17,
-77,
-51,
29,
38,
22,
3,
47,
-8,
0,
-43,
-14,
-4,
-11,
-33,
-7,
41,
9,
3,
-8,
25,
-105,
29,
5,
-26,
49,
13,
59,
-61,
-3,
-18,
-7,
23,
-12,
-30,
40,
-94,
-11,
25,
11,
-32,
-34,
-58,
-53,
-35,
-43,
0,
30,
-22,
-4,
-29,
-30,
-28,
-17,
-74,
-37,
22,
70,
-5,
47,
24,
65,
-21,
-43,
-64,
-7,
7,
-36,
-35,
-29,
0,
20,
-9,
43,
-5,
2,
-36,
-2,
32,
13,
9,
44,
-34,
-68,
-3,
9,
-34,
3,
-12,
43,
14,
4,
-33,
74,
29,
33,
17,
66,
2,
-37,
-7,
-22,
9,
-76,
-19,
11,
-3,
0,
-54,
61,
-18,
-17,
14,
56,
14,
-32,
-57,
78,
-15,
-66,
63,
4,
26,
-5,
-17,
8,
58,
-38,
-40,
-20,
-2,
23,
37,
-34,
17,
45,
-64,
-14,
7,
-17,
-35,
14,
66,
35,
41,
54,
54,
40,
79,
-9,
62,
-13,
-35,
4,
19,
-15,
4,
25,
0,
23,
-6,
-46,
6,
73,
61,
-76,
-27,
-66,
-52,
64,
-53,
-36,
-23,
65,
-36,
1,
7,
15,
-68,
-20,
-2,
26,
-51,
-24,
-14,
-68,
8,
8,
-31,
52,
3,
-4,
-29,
28,
38,
0,
74,
-41,
-40,
6,
-100,
-20,
-23,
-27,
-39,
-72,
45,
-1,
-78,
13,
33,
23,
64,
-32,
40,
-16,
-9,
32,
21,
10,
31,
12,
53,
4,
-1,
20,
13,
-63,
-39,
78,
-47,
67,
-22,
19,
21,
-87,
29,
12,
-15,
12,
-21,
-24,
21,
-35,
-6,
-34,
-35,
46,
40,
17,
23,
-6,
0,
0,
1,
-18,
-5,
5,
-29,
15,
13,
25,
3,
-36,
8,
39,
-21,
5,
22,
8,
59,
-2,
18,
-11,
23,
-45,
11,
-31,
23,
-7,
34,
13,
25,
32,
0,
84,
-17,
14,
42,
-76,
83,
-36,
-18,
-47,
25,
-24,
-22,
-54,
0,
-61,
28,
14,
-33,
4,
-5,
53,
-2,
15,
65,
-26,
3,
14,
15,
-54,
30,
-39,
-19,
-48,
-30,
9,
45,
27,
-8,
1,
-19,
-60,
-4,
31,
55,
2,
-77,
17,
-37,
-60,
4,
11,
-45,
31,
-17,
3,
13,
-37,
-70,
-22,
2,
1,
-56,
-20,
-25,
7,
6,
-25,
3,
37,
13,
45,
1,
35,
-9,
-18,
-63,
-4,
-52,
-41,
26,
16,
46,
81,
33,
34,
-14,
16,
-31,
19,
-23,
10,
-17,
86,
-8,
0,
-1,
-31,
22,
-17,
39,
22,
-32,
-54,
49,
13,
-55,
-39,
67,
-17,
88,
-60,
25,
11,
13,
-27,
41,
-30,
17,
21,
-16,
-33,
54,
-62,
5,
-18,
43,
27,
20,
11,
-22,
-20,
-45,
33,
-4,
10,
38,
70,
1,
-46,
-3,
-3,
16,
9,
21,
0,
36,
10,
7,
-14,
-23,
27,
-22,
-26,
-30,
0,
5,
-41,
18,
-47,
48,
-18,
18,
-50,
43,
-59,
-46,
35,
-29,
2,
15,
-3,
-22,
38,
8,
66,
-40,
-109,
-61,
-42,
23,
-24,
15,
-7,
-23,
-46,
-10,
-5,
50,
32,
41,
-83,
-15,
-25,
-8,
-22,
-11,
-61,
-22,
-7,
-52,
0,
34,
55,
-47,
-48,
20,
-34,
5,
0,
26,
23,
27,
51,
15,
-28,
-45,
8,
-39,
-37,
-13,
56,
14,
-97,
-10,
-29,
46,
-17,
34,
-20,
-9,
-79,
-22,
62,
18,
-15,
22,
17,
-8,
37,
-24,
-8,
76,
-21,
44,
-25,
-40,
3,
2,
-13,
-41,
-55,
-15,
7,
12,
-17,
-49,
-30,
-38,
36,
-5,
3,
-39,
-19,
50,
-59,
6,
-2,
-36,
28,
-30,
-16,
-30,
-34,
-44,
34,
58,
-65,
2,
17,
14,
-23,
-52,
-2,
39,
10,
-22,
26,
-44,
45,
25,
58,
-73,
57,
21,
-13,
19,
-26,
24,
-3,
-16,
-7,
6,
58,
73,
-46,
2,
7,
32,
13,
-80,
-7,
14,
-8,
27,
41,
15,
-22,
-20,
-58,
14,
12,
-18,
59,
62,
60,
14,
7,
-58,
-51,
20,
28,
17,
-27,
-1,
-9,
54,
16,
-37,
11,
19,
-12,
25,
-11,
45,
-23,
14,
24,
-4,
2,
0,
-19,
13,
71,
22,
13,
-11,
52,
15,
4,
-43,
28,
9,
20,
-13,
18,
-13,
-9,
1,
17,
-18,
-23,
-32,
42,
12,
-17,
-27,
8,
-45,
28,
-25,
36,
48,
8,
-6,
38,
-48,
-31,
2,
-10,
-26,
-30,
30,
-69,
-27,
-64,
-3,
-41,
20,
-20,
-36,
-80,
64,
0,
45,
3,
81,
-8,
-1,
62,
-34,
45,
-14,
12,
-92,
0,
20,
-9,
-31,
-1,
-57,
-1,
40,
-52,
-49,
-14,
-20,
-11,
-15,
-41,
38,
21,
0,
4,
53,
-14,
-9,
7,
-46,
16,
-27,
-21,
16,
-3,
26,
16,
-11,
-32,
24,
-30,
10,
27,
52,
-10,
19,
36,
2,
3,
60,
-31,
41,
-18,
60,
-34,
18,
28,
-56,
-14,
6,
3,
-13,
-34,
18,
54,
-45,
-17,
54,
50,
21,
12,
-42,
-44,
4,
27,
13,
-25,
72,
16,
-17,
31,
32,
5,
-28,
-28,
27,
20,
-18,
15,
-55,
30,
-30,
0,
-19,
-25,
51,
-34,
-30,
39,
6,
54,
3,
43,
-16,
1,
-28,
53,
-9,
12,
4,
-20,
-38,
28,
58,
-4,
-20,
-44,
3,
33,
29,
68,
-44,
-47,
-25,
-16,
-18,
-71,
7,
25,
21,
22,
22,
24,
-3,
-2,
6,
19,
-27,
61,
114,
-9,
4,
5,
21,
-6,
68,
98,
-1
] |
MR. CHIEF JUSTICE JAMES T. HARRISON
delivered the opinion of the court.
This is an original proceeding wherein relators seek an appropriate writ to review an order of October 6, 1976, entered by the respondent court in a cause pending in said court entitled: “Roger E. Bergmeier, Petitioner, vs. The Montana State Board of Personnel Appeals-, Brent Cromley, Chairman of said Board; the Montana State Department of Administration-, Jack C. Crosser, Director of said Department; and the Montana State Department of Natural Resources and Conservation, Gary Wicks, Director of said Department, Respondents.” Upon the filing of the application counsel was heard ex parte and the matter taken under advisement. Thereafter an order was issued for an adversary hearing. Such hearing has now been held, briefs filed, counsel heard in oral argument, and the matter submitted.
It appears that relators object to the order above referred to because they contend it is contrary to section 82-4209, R.C.M. 1947.
The facts as disclosed by the record before us are that Berg-meier, a state employee, appealed his wage classification. Being dissatisfied with the decision of the Board of Personnel Appeals he petitioned the district court for a judicial review as provided in section 82-4216, R.C.M. 1947. Subdivision (4) of that section provides:
“(4) Within thirty (30) days after the service of the petition, or within further time allowed by the court, the agency shall transmit to the reviewing court, the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.”
Section 82-4209, R.C.M. 1947, provides in subsection (5):
“(5) The record in a contested case shall include:
“(a) All pleadings, motions, intermediate rulings.
“(b) All evidence received or considered, including a stenographic record of oral proceedings when demanded by a party.
“(c) A statement of matters officially noticed.
“(d) Questions and offers of proof, objections, and rulings thereon.
“(e) Proposed findings and exceptions.
“(f) Any decision, opinion or report by the hearing examiner or agency member presiding at the hearing.
“(g) All staff memoranda or data submitted to the hearing examiner or members of the agency as evidence in connection with their consideration of the case.”
Subsection (6) of the same section provides:
“(6) The stenographic record of oral proceedings or any part thereof shall be transcribed on request of any party. Unless otherwise provided by statute, the cost of the transcription shall be paid by the requesting party.”
The Board did not transmit the record within the 30 days set by law, nor furnish a transcription of the stenographic record, but did file with the district court a tape recording. Prior to the issuance of the order of October 6, the 'district court had issued an order to show cause to the executive director of the Board requiring him to show cause why he should not produce the record of the oral proceedings before the Board.
At the show cause hearing the Board contended it could not afford to supply a transcript. Following the hearing the court entered the following order:
“In the above entitled action, the hearing to show cause why Robert R. Jensen, Administrator, Board of Personnel Appeals, should not be ordered to produce the written transcript of the above entitled administrative proceedings, having come- before this Court, and the Court having duly considered the same;
“IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Board of Personnel Appeals provide this Court with a written transcript of the oral proceedings before the Board of Personnel Appeals in the above entitled case.”
The Board argues that the court has shifted the responsibility of paying for the transcript from the parties involved in the proceeding, placing it upon the Board holding the hearing. However, the court’s order makes no provision that a written transcript of the oral proceedings be furnished, all as required by the statutory law.
In this situation the relief sought is denied and the proceeding is ordered dismissed.
MR. JUSTICES HASWELL, DALY and JOHN C. HARRISON concur.
|
[
3,
-59,
-11,
-15,
55,
-11,
28,
-3,
-40,
35,
36,
-42,
11,
-9,
29,
-46,
-16,
15,
25,
-34,
23,
16,
6,
63,
-11,
-15,
15,
-13,
22,
-24,
-33,
35,
-18,
-43,
9,
-32,
-12,
8,
5,
38,
27,
29,
6,
-21,
-59,
-37,
34,
11,
-19,
-6,
47,
15,
-9,
31,
45,
52,
-13,
-5,
-26,
9,
-26,
12,
39,
16,
67,
-4,
-17,
-15,
5,
-33,
-41,
3,
9,
15,
-7,
-40,
29,
-24,
-12,
28,
23,
8,
-35,
-12,
13,
22,
27,
24,
19,
18,
14,
-23,
-41,
-5,
4,
-40,
6,
-42,
48,
17,
-18,
33,
52,
-22,
-17,
-37,
-37,
36,
32,
31,
8,
13,
-31,
-68,
-40,
34,
-29,
37,
8,
-16,
16,
6,
-19,
48,
46,
20,
25,
3,
11,
49,
-26,
52,
32,
-3,
0,
-6,
0,
-42,
-61,
-19,
31,
-18,
43,
-57,
8,
-32,
0,
-4,
25,
-5,
4,
-16,
71,
55,
-22,
-43,
9,
-60,
88,
6,
49,
40,
-43,
21,
20,
49,
9,
-18,
-10,
-48,
16,
1,
25,
22,
12,
13,
-17,
20,
14,
22,
-46,
1,
31,
-51,
-69,
42,
-23,
-3,
8,
-6,
-41,
-29,
64,
-11,
47,
-15,
2,
41,
4,
6,
-42,
20,
4,
60,
-55,
-5,
-32,
-60,
-10,
22,
0,
20,
16,
4,
30,
-39,
-12,
-1,
17,
-4,
1,
-20,
0,
-2,
-9,
26,
35,
62,
2,
-22,
-17,
-2,
36,
-16,
27,
10,
39,
6,
39,
-39,
-17,
-22,
34,
10,
-31,
1,
0,
-54,
48,
-22,
4,
0,
11,
-19,
-10,
-33,
17,
2,
13,
-55,
3,
-54,
38,
7,
-21,
-43,
-15,
-1,
10,
-6,
-19,
16,
32,
-27,
-2,
3,
3,
-50,
54,
-10,
-37,
12,
-15,
-12,
-35,
22,
7,
-48,
-20,
35,
34,
-49,
-21,
8,
24,
-10,
-17,
23,
29,
-42,
-35,
-7,
-18,
-21,
-19,
5,
-38,
7,
7,
-43,
23,
-30,
-25,
26,
10,
-43,
-20,
-12,
25,
-46,
15,
21,
27,
-18,
-43,
33,
8,
34,
17,
-47,
-1,
6,
-25,
29,
28,
-26,
-13,
5,
18,
26,
-16,
29,
-10,
21,
-34,
48,
4,
-24,
0,
12,
20,
16,
-25,
60,
0,
0,
-31,
-74,
-17,
-4,
15,
-14,
3,
-54,
-42,
1,
-50,
-57,
15,
-30,
-7,
-1,
32,
-20,
-14,
-44,
20,
-11,
-6,
21,
-14,
3,
10,
-19,
-36,
-20,
-7,
20,
-15,
-39,
4,
-32,
-4,
27,
-38,
24,
43,
11,
13,
45,
2,
-6,
12,
45,
9,
-5,
23,
-1,
10,
40,
56,
28,
-41,
-9,
27,
-20,
9,
42,
47,
-22,
-52,
-46,
-26,
27,
20,
-2,
8,
-11,
21,
65,
-15,
1,
-25,
-4,
-42,
-6,
3,
-19,
-46,
-5,
1,
-18,
-28,
13,
-3,
-36,
2,
30,
11,
-5,
0,
-3,
2,
-25,
-22,
38,
38,
-3,
-11,
-20,
32,
23,
-20,
21,
47,
0,
13,
-22,
27,
31,
3,
10,
-5,
90,
-25,
-15,
0,
-49,
-6,
-38,
-6,
-25,
-29,
0,
-16,
24,
-27,
-31,
25,
44,
-38,
39,
-12,
-9,
-5,
3,
-26,
-61,
-18,
4,
-35,
23,
61,
-2,
22,
-38,
-1,
-30,
7,
31,
16,
8,
-3,
12,
5,
34,
-2,
-10,
-12,
-55,
21,
24,
53,
-15,
-38,
-27,
-42,
-50,
-12,
-5,
-38,
10,
12,
-24,
4,
37,
22,
4,
-2,
-8,
0,
-64,
9,
10,
8,
19,
4,
52,
25,
21,
59,
4,
29,
13,
2,
-37,
1,
12,
23,
-8,
11,
40,
-49,
23,
-23,
38,
-84,
-10,
18,
2,
11,
29,
-10,
14,
48,
-7,
-8,
-9,
11,
-6,
30,
-18,
32,
-22,
10,
-65,
48,
22,
27,
-25,
-64,
-40,
-42,
21,
-6,
11,
-54,
-3,
2,
13,
17,
34,
30,
6,
-13,
36,
35,
-25,
44,
4,
-47,
-11,
-12,
1,
-67,
57,
-19,
-49,
67,
2,
-17,
-3,
1,
-14,
-1,
-46,
-23,
-1,
-8,
-40,
-12,
-33,
35,
-43,
4,
-1,
-8,
-36,
-21,
1,
-1,
0,
13,
9,
15,
-55,
42,
42,
26,
-6,
55,
58,
16,
-55,
-15,
5,
80,
-24,
0,
2,
18,
-10,
-11,
14,
1,
2,
30,
8,
35,
20,
12,
25,
-33,
7,
16,
-42,
-1,
-21,
-7,
-2,
-17,
14,
10,
26,
7,
34,
39,
15,
-24,
44,
9,
14,
2,
30,
-10,
-28,
12,
28,
-7,
-42,
-22,
-52,
14,
-39,
26,
6,
-24,
-20,
24,
27,
-13,
-28,
-24,
40,
26,
-72,
-18,
-21,
-8,
-52,
-3,
4,
-3,
-6,
17,
1,
-2,
-12,
2,
-17,
0,
10,
-6,
-69,
-48,
9,
6,
9,
-7,
30,
57,
18,
-3,
0,
12,
29,
57,
7,
-50,
-6,
16,
30,
-11,
22,
7,
57,
-25,
-42,
-23,
10,
65,
-37,
-42,
30,
-31,
-50,
9,
-9,
-33,
-20,
27,
-4,
22,
-21,
31,
6,
-10,
19,
5,
0,
-28,
-42,
-63,
18,
15,
-58,
-30,
-40,
11,
-35,
5,
-7,
-30,
-69,
37,
34,
2,
-37,
-2,
4,
-30,
7,
35,
13,
7,
44,
-7,
21,
2,
40,
-13,
24,
0,
-42,
5,
-35,
-17,
25,
-16,
-72,
24,
-15,
22,
0,
45,
-16,
0,
-12,
41,
58,
11,
11,
5,
39,
1,
-48,
13,
-20,
22,
-18,
34,
-30,
-26,
-10,
46,
13,
-1,
-20,
-5,
-2,
-12,
29,
-6,
63,
30,
0,
4,
-44,
4,
36,
5,
74,
4,
-2,
41,
-13,
-39,
-2,
-6,
20,
21,
-24,
-12,
10,
-39,
-16,
41,
-9,
6,
15,
8,
-5,
15,
-55,
-14,
-9,
83,
37,
22,
4,
11,
-25,
21,
17,
-14,
-28,
15,
-39,
-64,
32,
-15,
34,
32,
67,
28,
4,
-52,
-27,
19,
91,
6,
-44,
-37,
-25,
10,
-1,
-17,
19,
52,
-7,
2,
19,
-21,
-23,
15,
-32,
28,
-34,
18,
30,
23,
-22,
1,
-37,
18,
32,
-30,
60,
-44,
-2,
-54,
-77,
47,
16,
2,
22,
-36,
-34,
-23,
0,
-1,
40,
-18,
23,
56,
18,
4,
27,
8,
-18,
-32,
25,
12,
37,
-54,
1,
-48,
3,
46,
23,
-13,
-24,
4,
-19,
-1,
62,
16,
-19,
18,
34,
-10,
16,
-21,
15,
-5,
-22,
-13,
-20,
35,
3,
12,
12,
2,
-37,
42,
32,
-55,
-9,
19,
2,
-2,
-5,
-56,
-57,
-19,
-7,
-50,
-24,
-28,
8,
62,
9,
-23,
-14,
14,
-7,
21,
-65,
-42,
5,
-40,
-15,
-19,
-49
] |
MR. CHIEF JUSTICE JAMES T. HARRISON
delivered the opinion of the court.
This is an appeal from the district court of Yellowstone County. The Union and Mrs. Ware instituted the action against the City of Billings. The district court ordered that the trustees of the Billings Public Library be made parties. The City cross-claimed against the trustees, who then counterclaimed against the City. The case was submitted to the district court on the following stipulated facts:
Respondent, Ruth Ware, was terminated from her job at the Billings City Library on September 10, 1974, by the library director with the approval of the appellants, the board of trustees of the Billings City Library. On September 26, 1974, the Billings City personnel director directed the appellants to reinstate Ruth Ware, however the appellants refused to comply with his directive. At this time a valid collective bargaining agreement existed between the respondent Union and the City of Billings, hereinafter referred to as the City. The termination of Ruth Ware conflicted with the terms of this agreement. The union had been established as the exclusive bargaining agent for the city employees in an election January 20, 1972, in which Ruth Ware participated. On April 8, 1974, the Board of Personnel Appeals made an appropriate unit determination of city employees, which included the library personnel. At the time of her termination, Ruth Ware was a dues paying member of the union. The appellants alleged that the agreement between the City and the union was not binding upon the appellants, because they had neither negotiated it nor ratified it. However, the district court held contrary to this position, and entered two judgments, one in favor of the union and Ruth Ware against the City and the appellants, the other in favor of the City on a cross-complaint, against the appellants. Appellants appeal both judgments.
The only issue determinative of this appeal is whether Ruth Ware’s “public employer”, within the meaning of the Collective Bargaining For Public Employees Act, sections 59-1601 et seq., R.C.M. 1947, was the City or the appellants. In the latter situation, the agreement would not be binding on the appellants, since a separate and autonomous employer cannot be bound to a contract he has neither negotiated or ratified. Fabijanic v. Sperry Gyroscope Division, 370 F.Supp. 62 (1974). On the other hand, should her “public employer” be the City, the appellants are bound by the agreement.
The appellants contend that they are the “public employer” of Ruth Ware by way of section 44-223, R.C.M. 1947, which states:
“* * * With the recommendation of the chief librarian the board shall employ and discharge such other persons as may be necessary in the administration of the affairs of the library, fix and pay their salaries and compensation and prescribe their duties.”
This is the first time we have been asked to define “public employer” within the meaning of the Collective Bargaining For Public Employees Act. The Act grants the right of collective bargaining to public employers and public employees in much the same manner as the Labor Management Relations Act, 1947, 29 U.S.C.A. § 141 et seq., does to employers and employees in the private sector. For this reason, we adopt the doctrine established by the United States Supreme Court to define such terms, as set forth in National Labor Rel. Bd. v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170, 1183:
“* * * In this light, the broad language of the Act’s definitions, which in terms reject conventional limitations on such conceptions as ‘employee,’ ‘employer,’ and ‘labor dispute,’ leaves ho doubt that its applicability is to be determined broadly, in doubtful situations, by underlying economic facts rather than technically and exclusively by previously established legal classifications.”
To properly define “public employer” we must appreciate the economic realities as well as the aims of the legislature sought by the Collective Bargaining For Public Employees Act and the Library Systems Act, sections 44-212, et seq., R.C.M.1947, and reconcile any differences if possible.
We cannot limit our examination of the legislative intent of the Library Systems Act to the section cited by the appellants, but we must consider the entire Act. When so analyzed the library and its board of trustees is not a wholly independent and autonomous entity separate and apart from the local governing body. The local governing body and its electors decide whether to create a library (section 44-219, R.C.M.1947); the mayor appoints the members of the board of trustees (section 44-221, R.C.M.1947); the local governing body establishes the levy, with certain limitations, for a special tax on the property owners to create a library fund (section 44-220, R.C.M.1947); the governing body decides whether to issue bonds for the erection and building of library buildings and the purchase of land therefor (section 44-220, R.C.M.1947); the board of trustees must submit an annual financial statement to the local governing body and also an annual budget indicating what support and maintenance will be required from public funds (section 44-222, R.C.M.1947); the treasurer of the city handles the library fund in accord with the orders and warrants of the board of trustees (section 44-220, R.C.M.1947); and the local governing body may create a library depreciation reserve fund from moneys allocated to the library during the year but not expended by the end of that year, and invest such moneys (sections 44-230, 44-231, R.C.M.1947). Con sidering the entire scheme of the Library Systems Act, the board of trustees of the Billings City Library is granted independent powers to manage and operate the library, but they are still an adjunct of the local government, the City of Billings. The same answer to this unique issue was reached by New Jersey in Board of Trustees of the Free Pub. Lib. v. Union City, 112 N.J.Super. 484, 271 A.2d 728. The New Jersey Court based its decision upon various facets of interdependence in their legislative scheme, which is very similar to ours.
The economic realities show that the City, not the board of library trustees, ultimately provides the salaries and wages of the library personnel. The City has a substantial legitimate interest in the operation of the library, which qualifies the City as the “public employer” of the Billings City Library personnel, including Ruth Ware.
We hold there is no inconsistency between the Library Systems Act and the Collective Bargaining For Public Employees Act. Under the Library Systems Act, as a whole, the board of trustees is given independent powers to manage and operate the library. However, this does not qualify the Board as a “public employer” within the meaning of the Collective Bargaining For Public Employees Act, but merely as “supervisory employees” as defined in section 59-1602(3), R.C.M.1947.
Finding the City to be the “public employer” of Ruth Ware, we also find the collective bargaining agreement between the City and the union was binding upon the appellants.
The judgments of the district court are affirmed.
MR. JUSTICE JOHN C. HARRISON and The HONORABLE PETER G. MELOY, District Judge, sitting for Mr. Justice Haswell, concur.
MR. JUSTICE CASTLES did not participate in this Opinion.
|
[
-11,
-53,
1,
55,
2,
-16,
16,
-78,
8,
4,
4,
7,
58,
-6,
-25,
-19,
-20,
40,
-11,
11,
2,
-3,
-50,
-13,
-5,
15,
4,
-32,
-8,
24,
13,
27,
4,
-59,
18,
8,
19,
28,
-11,
-59,
59,
51,
-25,
-28,
22,
2,
84,
38,
9,
-24,
-27,
36,
-58,
-25,
28,
-10,
33,
-30,
-17,
28,
-22,
-1,
39,
32,
41,
-52,
34,
41,
5,
-33,
18,
2,
-20,
-17,
18,
-47,
-3,
16,
-35,
40,
17,
-5,
-64,
-62,
-9,
1,
-57,
44,
18,
13,
-3,
9,
1,
49,
27,
37,
4,
-17,
18,
-15,
-94,
-21,
1,
11,
-9,
-23,
3,
11,
27,
46,
-49,
14,
25,
27,
12,
47,
56,
-2,
52,
32,
34,
36,
-43,
36,
-6,
-32,
-20,
26,
50,
14,
-24,
28,
-14,
-29,
39,
61,
20,
-36,
26,
13,
34,
-31,
-11,
6,
-68,
14,
-16,
69,
-32,
-15,
-19,
-26,
110,
-26,
-5,
-21,
48,
-34,
37,
37,
-15,
-32,
-15,
-7,
-2,
-16,
10,
43,
4,
-3,
-3,
-1,
-11,
28,
23,
0,
-43,
52,
-17,
-5,
-16,
-47,
-40,
-46,
-20,
19,
30,
2,
20,
17,
4,
-74,
-18,
-10,
11,
22,
24,
29,
-52,
-6,
12,
-4,
12,
34,
14,
-14,
51,
-35,
32,
5,
-24,
-29,
40,
12,
20,
21,
-53,
9,
-35,
-66,
15,
15,
-33,
37,
-73,
-6,
5,
19,
75,
-47,
8,
25,
49,
-31,
21,
16,
2,
25,
4,
11,
-58,
-43,
2,
29,
-19,
-33,
-72,
-21,
11,
29,
-5,
-12,
17,
53,
-37,
-69,
-34,
31,
-9,
-19,
18,
29,
10,
-16,
-10,
-55,
-9,
31,
-28,
25,
-45,
66,
73,
-2,
-42,
-11,
32,
-15,
53,
1,
-50,
1,
-53,
-42,
-16,
1,
31,
7,
-5,
-40,
3,
-29,
-32,
-12,
83,
-4,
9,
-1,
22,
-28,
-66,
-8,
6,
1,
-32,
-3,
-55,
16,
3,
-42,
-61,
-60,
-36,
-52,
-18,
-22,
-36,
18,
20,
-8,
-42,
0,
38,
-45,
-54,
-4,
-49,
14,
-2,
-20,
4,
61,
-53,
46,
22,
-3,
-6,
9,
9,
-32,
28,
36,
59,
22,
-34,
-22,
8,
73,
32,
-36,
2,
-19,
-12,
18,
-1,
-3,
7,
26,
-51,
-11,
-11,
46,
2,
-26,
-22,
7,
-5,
-12,
23,
-40,
-37,
13,
45,
-19,
12,
19,
27,
10,
27,
48,
-5,
-60,
19,
-32,
6,
-3,
28,
42,
-23,
-57,
-27,
-63,
-13,
44,
51,
23,
70,
14,
-52,
1,
20,
29,
-2,
-5,
-64,
-52,
19,
-58,
-55,
61,
35,
17,
-56,
-34,
28,
-34,
-10,
-28,
20,
33,
15,
-15,
6,
18,
17,
25,
30,
19,
-4,
-24,
-24,
13,
44,
-60,
-13,
5,
-3,
11,
-45,
32,
10,
-11,
-65,
-41,
1,
6,
-8,
-1,
0,
-1,
41,
67,
-18,
25,
21,
7,
-41,
24,
27,
-6,
-46,
35,
-10,
3,
58,
13,
6,
-28,
-39,
41,
-8,
-6,
-9,
10,
23,
-15,
-21,
-12,
-16,
-52,
42,
-5,
9,
55,
-4,
26,
-7,
-43,
-20,
22,
34,
-5,
-31,
-5,
5,
62,
55,
-3,
-2,
-3,
-31,
2,
-18,
-5,
-35,
-3,
-23,
-39,
11,
-29,
-25,
-23,
37,
15,
-30,
39,
-6,
21,
-32,
6,
-10,
57,
-48,
-25,
0,
19,
-15,
-3,
1,
25,
-55,
38,
-21,
-18,
0,
-48,
10,
75,
55,
-18,
37,
-12,
36,
17,
-42,
-15,
-15,
2,
8,
15,
11,
6,
-34,
-17,
63,
31,
24,
37,
63,
28,
-44,
8,
-25,
-21,
-40,
28,
-56,
9,
59,
35,
-31,
21,
7,
21,
50,
49,
11,
18,
21,
-31,
23,
-16,
18,
-14,
-3,
-61,
58,
-3,
15,
-14,
-17,
-101,
-4,
-24,
15,
3,
0,
37,
-47,
6,
23,
46,
24,
21,
-30,
2,
1,
-42,
19,
-37,
-56,
2,
21,
-13,
-47,
-47,
-13,
-37,
44,
-44,
-41,
39,
-20,
-45,
-26,
-18,
-20,
-18,
43,
-3,
-23,
-32,
12,
-33,
15,
-28,
18,
38,
8,
-2,
25,
7,
44,
30,
-45,
-21,
21,
-6,
11,
7,
32,
47,
-19,
-18,
9,
30,
-26,
-17,
0,
-65,
-9,
42,
-1,
11,
17,
35,
45,
6,
21,
5,
69,
19,
38,
-12,
58,
-51,
24,
-44,
-5,
-19,
-17,
25,
-21,
4,
2,
-8,
85,
33,
-14,
-59,
64,
16,
-15,
10,
5,
-21,
22,
-2,
-54,
-32,
-17,
-14,
-5,
-14,
1,
42,
-85,
-18,
0,
21,
31,
-27,
-12,
14,
-19,
10,
-1,
3,
4,
-18,
-40,
15,
-42,
-34,
-18,
-33,
33,
-47,
15,
30,
-20,
68,
-16,
11,
-29,
-11,
-11,
33,
22,
-3,
37,
36,
-11,
-1,
-80,
41,
-5,
-62,
-50,
-22,
-8,
-19,
-3,
-11,
17,
-25,
-29,
-3,
-33,
0,
7,
-45,
5,
63,
47,
11,
-16,
11,
42,
-45,
59,
15,
-9,
-45,
-45,
-9,
13,
4,
-60,
-50,
12,
-44,
26,
28,
9,
-26,
7,
39,
-46,
40,
-45,
-40,
68,
-48,
-3,
66,
-32,
34,
-23,
17,
-59,
26,
-22,
41,
9,
-1,
12,
1,
-6,
-20,
-64,
-9,
0,
-20,
79,
3,
-22,
33,
-33,
-7,
-1,
-29,
-71,
42,
23,
-76,
14,
-10,
-8,
55,
-8,
57,
0,
-3,
-31,
16,
-21,
19,
-20,
-9,
-32,
-41,
-15,
-43,
-8,
25,
25,
17,
15,
-33,
10,
11,
6,
17,
44,
23,
0,
-16,
70,
58,
-29,
22,
-53,
20,
-62,
27,
-29,
-45,
50,
-5,
-3,
6,
24,
21,
2,
-48,
14,
-2,
-4,
-37,
-16,
27,
3,
-20,
19,
15,
20,
-7,
42,
56,
-20,
-23,
-27,
-10,
-30,
4,
-22,
-6,
-21,
-30,
27,
22,
15,
-4,
-29,
24,
13,
-7,
28,
20,
-11,
26,
8,
-8,
36,
15,
-42,
14,
30,
43,
-9,
-21,
-17,
5,
-17,
26,
-21,
23,
-71,
43,
37,
48,
41,
6,
18,
9,
26,
45,
-33,
44,
-48,
-5,
-13,
-39,
0,
32,
-3,
-17,
11,
-34,
33,
-16,
63,
52,
-40,
-7,
-13,
-3,
23,
-33,
-13,
-6,
36,
-28,
9,
-38,
55,
-8,
55,
-21,
-26,
-42,
47,
-26,
3,
45,
-64,
10,
82,
46,
34,
-25,
-41,
28,
-32,
-7,
4,
-34,
-60,
-14,
45,
-25,
-11,
-39,
7,
-28,
-68,
-30,
48,
8,
46,
31,
-41,
-8,
-28,
11,
33,
-30,
23,
12,
28,
-21,
-19,
-57,
37,
-1,
-59,
23,
-59,
17,
-7,
2,
10,
30
] |
MR. JUSTICE JOHN C. HARRISON
delivered the opinion of the court.
This appeal comes from an order and judgment of the district court, Lincoln County, ordering the state superintendent of public instruction to provide funds to treat respondent, an emotionally disturbed child, out of special education monies.
The matter was submitted to the district court on an agreed statement of facts and issues.
The minor involved was a 15Vi year old male at the time of the order of May 19, 1976. His life from the time he was abandoned at birth by his mother, has been one of tragic circumstances. Due" to these circumstances he developed a serious behavioral pattern that brought him to the attention of the juvenile court system. John Doe has been in several institutions, including the Pine Hills School at Miles City, where psychological studies showed him in need of special treatment.
At the time of the hearing, John Doe was a student in high school, living with his stepmother and his stepbrother and stepsisters. A guardianship, was provided to care for him. Fortunately for this young person, Lawrence H. Sverdrup the attorney who was appointed as guardian, took a great interest in him and has gone to great lengths to find assistance for him. He found the school district had previously submitted a recommended special education plan to defendant state superintendent for another student; that such plan had been approved and that funds had been forwarded to the school district. The guardian further found that for some reason the plan never came into being and the money was held by the school district.
During this period, the guardian learned of a behavioral modification program of a Dr. Kuska in Denver, Colorado, that he felt was worth trying in an effort to save the boy. He applied for and received from the school board approval to use the above funds to treat John Doe in a special education program. The plan was to take the boy to Denver for two weeks treatment with the initial cost to be about $2,500 plus follow-up supportive costs of unknown amounts. The plan was submitted to the office of the state superintendent and turned down as an improper expenditure of educational funds under Chapter 78, Title 75, R.C.M.1947.
The issue before this Court is whether special education funding can be used to provide psychiatric-medical treatment outside the state of Montana?
Title 75, Chapter 78, R.C.M.1947, provides for special education for exceptional children in Montana. Section 75-7803 gives the superintendent of public instruction supervision over and coordination of the conduct of special education. Section 75-7803(8) specifically requires that the superintendent approve those special education classes or programs “which comply with the laws of the state of Montana, policies of the board of public education, and the regulations of the superintendent of public instruction”.
Section 75-7806(5) allows the local school board district trustees power to establish and maintain a special education program for “individual children requiring special education such as home or hospital tutoring, school-to-home telephone communications, or other individual programs”. (Emphasis added.) In addition, following the statutory position set by Title 75, Chapter 78, the State Board of Education adopted rules and regulations to implement the carrying out of the program. Rule 75, Chapter 78, the State Board of Education adopted rules and regulations to implement the carrying out of the program. Rule 7.5 of the special Education Rules and Regulations Reference Manual pertaining to out-of-district services states:
“The public school is only responsible for room and board and the educational kinds of costs. Other services such as psychiatric therapy and/or medical assistance must be deleted from the special education costs and borne by parents and/or other agencies.” (Emphasis added.)
This Court has on several occasions considered the interpretative regulations by administrative agencies charged with the duty of administering and enforcing a legislative act, for an understanding of the provisions that must be carried out. Butte Miner’s Union No. 1 v. Anaconda Copper Mining Co., 112 Mont. 418, 430, 118 P.2d 148; State v. King Colony Ranch, 137 Mont. 145, 151, 350 P.2d 841; Montana Consumer Counsel v. Public Service Commission, 168 Mont. 177, 541 P.2d 770, 774. While such administrative interpretations are not binding on the courts, they are entitled to respectful consideration.
Here, we find that Rule 7.5 is reasonable and entirely consistent with the carrying out of the legislative direction of Montana’s statutes set forth in Title 75, Chapter 78, 'R.C.M.1947.
The judgment and order of the district court is set aside and the motion to dismiss is granted.
MR. CHIEF' JUSTICE JAMES T. HARRISON and MR. JUSTICE HASWELL concur.
|
[
21,
7,
-8,
32,
9,
-6,
19,
28,
-80,
6,
-39,
5,
35,
-10,
-3,
-23,
-54,
-28,
-24,
29,
-19,
60,
-46,
19,
28,
-44,
61,
-6,
-65,
4,
39,
-34,
0,
-21,
6,
46,
8,
-19,
61,
27,
45,
-17,
-17,
-79,
0,
26,
44,
-19,
17,
45,
20,
28,
39,
16,
51,
20,
65,
-17,
-90,
-42,
-87,
4,
7,
-7,
39,
-24,
-27,
-2,
-22,
45,
-37,
85,
-20,
28,
67,
-24,
19,
-43,
52,
48,
12,
24,
-13,
5,
-25,
-24,
-27,
-7,
-16,
4,
14,
-33,
-24,
-20,
17,
41,
-7,
-3,
27,
-14,
1,
-22,
40,
33,
27,
-52,
3,
7,
30,
22,
-6,
-25,
-2,
-35,
-44,
29,
-27,
67,
-29,
11,
-8,
8,
-13,
-12,
56,
-3,
-32,
25,
29,
-15,
-40,
9,
13,
10,
-20,
-5,
-22,
-71,
36,
-29,
-41,
-16,
61,
-6,
1,
-15,
0,
-52,
21,
-6,
-22,
-20,
31,
50,
52,
-1,
13,
-28,
-14,
-24,
20,
-19,
-10,
27,
16,
-9,
-5,
44,
-9,
4,
-5,
59,
-17,
15,
38,
22,
27,
54,
0,
-3,
-32,
-20,
118,
-3,
-11,
-10,
11,
-6,
30,
16,
-36,
-5,
-38,
-73,
23,
-27,
64,
-16,
8,
-4,
-22,
53,
81,
91,
36,
-4,
-1,
-41,
27,
-42,
26,
30,
13,
14,
-40,
-40,
-15,
34,
-26,
9,
12,
15,
-3,
13,
-62,
-32,
-30,
38,
-12,
-84,
26,
11,
14,
-22,
4,
17,
-78,
13,
-20,
0,
-3,
-60,
17,
-14,
7,
36,
-19,
-51,
-1,
-22,
-36,
25,
-16,
17,
1,
9,
31,
4,
3,
-58,
9,
-22,
78,
-4,
-29,
45,
-8,
37,
14,
6,
-18,
-19,
31,
6,
-27,
-41,
3,
-45,
28,
-37,
43,
-28,
41,
45,
10,
17,
-12,
-3,
-1,
-25,
1,
-66,
110,
-78,
57,
-98,
33,
48,
-45,
-41,
0,
0,
-20,
0,
-21,
10,
13,
-2,
-1,
-21,
4,
7,
-52,
-24,
25,
-61,
-81,
-49,
-9,
-11,
8,
-35,
-20,
-6,
-14,
4,
18,
25,
-7,
1,
-14,
20,
16,
50,
55,
-5,
27,
-19,
25,
-12,
21,
29,
33,
-5,
-8,
1,
-15,
-4,
-37,
-16,
-6,
-51,
37,
3,
5,
24,
-33,
-25,
-7,
-3,
-6,
0,
1,
-48,
-41,
-13,
46,
8,
-37,
-47,
-1,
-55,
20,
29,
38,
-32,
31,
40,
-18,
-35,
-22,
15,
-1,
6,
2,
-17,
13,
7,
50,
-43,
48,
4,
26,
6,
-12,
-27,
8,
-28,
20,
-46,
76,
-26,
33,
20,
19,
-13,
14,
6,
48,
-35,
-29,
-15,
-22,
-41,
39,
-13,
3,
-23,
-33,
3,
10,
17,
54,
-52,
26,
-6,
-29,
17,
-28,
6,
2,
14,
-25,
17,
6,
-49,
-3,
14,
4,
-25,
6,
30,
-44,
50,
22,
9,
-34,
8,
43,
-14,
20,
-9,
-49,
2,
23,
26,
-11,
-12,
-21,
-37,
-38,
50,
30,
-13,
24,
-4,
8,
17,
-24,
-7,
-60,
1,
-72,
37,
66,
16,
-35,
14,
-15,
-26,
9,
-29,
-57,
-11,
36,
13,
-8,
-35,
-50,
37,
25,
10,
-44,
0,
27,
-3,
9,
48,
5,
22,
16,
-30,
73,
3,
5,
-46,
12,
54,
-81,
-50,
65,
34,
-16,
-16,
-25,
-5,
-15,
-43,
3,
36,
4,
60,
9,
-49,
13,
-1,
-26,
-21,
-4,
-22,
-38,
-12,
41,
13,
24,
13,
-14,
88,
-5,
-2,
37,
-69,
-2,
7,
44,
-34,
0,
48,
18,
-12,
56,
-19,
-11,
40,
-11,
-27,
2,
23,
-13,
-14,
9,
68,
-21,
-28,
-34,
6,
-29,
32,
0,
31,
10,
-9,
-12,
0,
-10,
-8,
3,
51,
0,
5,
56,
-1,
18,
-1,
-53,
-42,
59,
-5,
25,
1,
40,
-15,
-11,
34,
-59,
-12,
25,
22,
-40,
-15,
-54,
-14,
30,
-5,
55,
-5,
13,
-1,
14,
-68,
-6,
14,
40,
-49,
-45,
15,
-5,
15,
60,
-27,
-53,
-70,
36,
19,
-19,
5,
-54,
14,
3,
2,
-11,
-38,
-48,
13,
15,
-24,
29,
-23,
-17,
8,
-21,
40,
-8,
-6,
-46,
-8,
1,
27,
30,
-22,
-9,
-36,
-7,
-60,
-22,
18,
-34,
-41,
26,
-15,
0,
-19,
-15,
-6,
-27,
66,
32,
-9,
-7,
50,
-76,
61,
-35,
-7,
1,
-29,
-25,
9,
51,
-79,
-58,
-7,
-14,
-17,
6,
28,
26,
43,
-19,
12,
74,
-3,
26,
-2,
21,
-59,
-44,
43,
-29,
11,
-48,
16,
-15,
20,
-6,
35,
-49,
33,
-63,
45,
-10,
31,
-1,
36,
-67,
-58,
5,
-17,
-56,
-16,
-42,
22,
7,
70,
34,
5,
49,
-57,
-41,
-9,
-19,
20,
-42,
16,
-41,
68,
11,
5,
73,
-5,
39,
2,
-77,
15,
-34,
44,
1,
-14,
-56,
4,
27,
-28,
-28,
2,
-21,
-45,
22,
-6,
15,
11,
-2,
48,
-48,
23,
20,
0,
-16,
-25,
12,
-38,
49,
35,
-39,
-28,
16,
-34,
-16,
-14,
-12,
-47,
1,
59,
-10,
33,
-50,
-33,
-7,
29,
24,
10,
-35,
29,
47,
38,
29,
43,
-3,
20,
30,
-28,
10,
23,
12,
36,
-3,
15,
12,
17,
-61,
0,
-2,
57,
4,
12,
-24,
-49,
5,
-8,
-40,
-1,
86,
-43,
-35,
13,
20,
9,
-26,
24,
36,
8,
-29,
16,
15,
13,
-20,
-13,
0,
-24,
6,
51,
-22,
2,
25,
-68,
67,
30,
5,
-50,
49,
4,
-1,
-15,
-82,
-6,
55,
-24,
0,
16,
48,
57,
4,
22,
-7,
13,
19,
42,
17,
-35,
3,
6,
-60,
-37,
27,
54,
-38,
15,
-5,
-5,
14,
-8,
51,
-4,
48,
-2,
15,
5,
10,
-42,
91,
-17,
-46,
-46,
-36,
-35,
36,
0,
-59,
63,
-7,
-33,
14,
-21,
-49,
-13,
23,
-66,
71,
35,
15,
-13,
-17,
39,
31,
65,
-2,
-3,
-10,
3,
32,
-25,
-7,
-26,
3,
10,
10,
-24,
-15,
-36,
-48,
51,
2,
28,
-43,
-5,
17,
0,
31,
-7,
-2,
2,
26,
-4,
-10,
14,
33,
14,
37,
-62,
-12,
-40,
9,
26,
-18,
13,
-62,
5,
-32,
29,
13,
-23,
-32,
-2,
-24,
63,
-34,
-38,
32,
-10,
-4,
4,
-77,
20,
-45,
-25,
16,
21,
-9,
-33,
0,
27,
-33,
-35,
13,
-9,
-23,
30,
-6,
21,
-12,
-9,
28,
-27,
-8,
-17,
24,
20,
-26,
-17,
41,
-50,
-29,
35,
-38,
48,
-10,
17,
-2,
-7,
-10,
-6,
41,
-31,
-4,
-68,
79,
-17,
13,
27,
0,
20,
0,
29,
56,
5
] |
MR. JUDGE EDWARD T. DUSSAULT,
sitting for Chief Justice James T. Harrison, delivered the opinion of the Court.
This is an appeal from a judgment entered by the District Court, Pondera County, denying admission to probate of a typewritten document purporting to be the Last Will and Testament of Ella D. Patten, deceased, and denying that a handwritten instrument was a codicil republishing the Will.
Ella D. Patten, a widow, and a long-time resident of Pondera County, and mother of Donald W. Patten, proponent and appellant, and Robert D.- Patten, contestant and respondent herein, went to her doctor’s office in Conrad on July 6, 1970, in keeping an appointment with her physician, Dr. Fletcher.
On that occasion she brought with her a two-page typewritten document, and after being attended by her doctor, a request was transmitted to the office staff to witness her Will.
The typewritten document consisted of two pages dated July 6, 1970, with the signature of decedent at the bottom of the first page and the attestation clause, in the usual form, was at the top of the second page and contained the signatures of Norma San-gray, Alice G. Morley, and Grace E. Elings, all members of the office staff of decedent’s doctor in Conrad, Montana.
Also on the first page, in the second typewritten paragraph pertaining to “my executor hereinafter named,” there appears no typewritten name of any person, but instead, the name of “Donald W. Patten” in pen and ink and on the margin a signa ture, Ella D. Patten, and at the very bottom of the first page a signature, Ella D. Patten.
The other instrument consisted of a piece of paper on which appeared, all in handwriting, this statement: “I request that (name inserted is omitted) be not employed to probate my estate. Ella D. Patten, Feb. 14th, 197.3.”
Ella D. Patten died September 14, 1973, and the purported Will and handwritten instrument were found in decedent’s safety deposit box in a Great Falls bank by Donald W. Patten, proponent, who later filed the purported Will and Codicil for probate. Robert D. Patten contested the probate and subsequently the matter was heard before the District Court in Conrad, Pondera County, Montana, with a jury. The trial commenced on March 18, 1975. After the jury of twelve was selected and the opening statement of counsel for the proponent was made, the purported Will of decedent was marked as Proponent’s Exhibit 1, and the handwritten instrument was marked Exhibit 2.
Much of the testimony at trial centered around the circumstances of the execution of the Will — whether Ella D. Patten actually did subscribe or sign her name in the presence of the witnesses, or whether she acknowledged that the document had been signed by her prior to the signing by the witnesses, and whether she declared it to be her Will.
The handwritten instrument was not testified to at great length by the witnesses from the medical staff; whether it is a codicil republishing the Will or a simple request not to employ a certain attorney.
The first witness called for the proponent was Mrs. Norma Sangray, the Medical Assistant for Dr. Fletcher, who had been employed as such for about two years prior to July 6, 1970, and whose signature as a witness appeared first following the formal attestation clause. Upon being shown the second sheet or page of the purported Will, the witness recognized her signature and that of the other two witnesses but was unable to state that all three signed in the presence of the decedent and in the presence of each other, or that she really knew it was the decedent’s Will, because if it had been, “it would have been a very ceremonial thing and would have stuck in my mind.”
The second witness to be called by the proponent was Mrs. Alice C. Morley, who had worked for Dr. Fletcher since March 1970, a period of about four months, and her testimony was less effective than that of the other two witnesses. She likewise testified that she did not know the decedent; did not see the signature of the decedent or any part of the Will except the second page when all three witnesses signed.
The third witness to be called by proponent was Mrs. Grace E. Elings, who is a nurse in Dr. Fletcher’s office and had been for about five years prior to July 6, 1970, and was there on that date and identified her signature as the last one on page 2 of the document. She testified she had known the decedent nearly all her life and knew she had done legal work, and the manner of her folding the first page under the second was typical of the privacy she desired regarding her personal affairs.
Mrs. Elings further testified she did not see the first page of the purported Will, she did not read the attestation clause, that the witnesses did not sign in the presence of each other, and that Mrs. Patten stood all the time, this was going on and had stated to her “Everything is in order.”
Donald W. Patten, the proponent, was the last witness to be called and testified in his own behalf as to his finding the purported Will and the purported Codicil in his mother’s safety deposit box in a Great Falls bank, all among approximately 20 to 25 other papers and documents therein. He also testified that the handwritten document was not attached to the Will.
Thereafter, proponent moved the admission of Exhibits 1 and 2 into evidence, and that the Will of Ella D. Patten dated July 6, 1970, and the Codicil thereto dated February 15, 1973, be received for probate. This was resisted by counsel for contestant, and, after hearing arguments, the trial Court then admitted Ex hibits 1 and 2 for the purposes of the hearing and reserved its ruling with respect to admission of the two exhibits to probate.
The contestant then called Donald W. Patten, the proponent, as an adverse witness and elicited further information from him.
Following the close of the testimony the contestant moved for directed verdict on the grounds that: (1) Exhibit 2 on its face was not a codicil; (2) that Exhibit 2 is not a testamentary document and makes no testamentary disposition if there is to be any republication; (3) that Exhibit 2 was not physically annexed to nor endorsed on the Will, Exhibit 1, nor did it refer in any manner to Exhibit 1; (4) that Exhibit 1, the purported Will, was not executed in the manner provided by law.
The trial Court denied the motion in reference to Exhibit 2, stating it was probably a question of law and not of fact, but the question would be submitted to the jury as a fact-finding body, and that Exhibit 1 would be submitted also to the jury as to the facts surrounding its execution, under proper instructions and interrogatories to be included in a special verdict.
Contestant objected to interrogatories Nos. 3, 8, and 9 on the grounds there was no testimony supporting the interrogatory No. 3, and that interrogatories Nos. 8 and 9 would tend to invite speculation by the jury on questions of law alone.
The Court gave proponent’s instruction No. 4 as modified, at contestant’s request, as shown by the underlining thereof; which instruction reads as follows:
“With a few exceptions not involved in this case, a person making a Will may dispose of his or her property in any way he or she sees fit, provided the requirements of the law are followed.”
During its deliberations, the jury sent to the Court a note:
“In reference to Instruction No. 4, what are the requirements of the law pertaining to a Will?”
The Court returned a note to the jury reading:
“To the Jury:
It is not necessary that you have the requirements of the law to make a valid Will. If you answer the questions contained in the special verdict, the Court will determine whether or not the Will is valid as a matter of law.”
The special verdict contained the interrogatories as submitted and the answers, as follows:
“1. Did Ella D. Patten sign or subscribe her name at the bottom of the first page of the document Exhibit #1 in the presence of any two of the witnesses: Norma Sangray, Alice E. Morley, Grace E. Elings?
ANSWER: No.
“2. If your answer to question numbered 1 is ‘no’, did any two of the witnesses, Norma Sangray, Alice E. Morley, Grace E. Elings, actually see the name of Ella D. Patten now appearing at the bottom of the first sheet of the document?
ANSWER: No.
“3. Did any two of the three witnesses have an opportunity to see the signature now appearing at the bottom on sheet one of the document?
ANSWER: Yes.
“4. Did Ella D. Patten at the time any two of the witnesses, Norma Sangray, Alice E. Morley, Grace E. Elings, signed their names on the second sheet acknowledge to such witnesses that the document had been signed by her?
ANSWER: No.
“5. Did Ella D. Patten declare or by her acts or conduct communicate to two witnesses before their respective signatures were placed on Exhibit #1, sheet two, that the document was her will?
ANSWER: Yes.
“6. Did the witnesses, Norma Sangray, Alice E. Morley, and Grace E. Elings, each subscribe their respective names to sheet two of the document in the immediate presence of the other two witnesses?
ANSWER: No.
“7. Did at least two witnesses sign their names to Exhibit #1 at the request of Ella D. Patten and in her presence?
ANSWER, Yes.
“8. Did Ella D. Patten by placing Exhibit #2 in her safety deposit box with Exhibit #1 intend thereby to modify, refer to, or add to Exhibit # 1?
ANSWER.• Yes.
“9. Did Ella D. Patten intend to nominate Donald W. Patten as executor of her estate by writing in his name at paragraph ‘SECOND’ of exhibit 1?
ANSWER, Yes.”
After receipt of the special verdict, the court entered a judgment denying probate to the Will and ruled the codicil out as a testamentary document.
This appeal followed.
Appellant urges three basic propositions upon the Court in support of his appeal.
First- The Court erred in refusing the jury instructions on the law they needed to know in making their decision on the interrogatories, the text of which necessarily interweaves some law and fact.
Appellant has reference to his proposed instructions Nos. 2 thru 7.
The refused instructions read as follows when originally proposed with amendments suggested during the course of settlement of instructions:
Proponent’s proposed instruction 2:
It is the policy of the law to sustain Wills, if possible to do so, and every reasonable presumption will be indulged in favor of due execution of a Will.
Proponent’s proposed instruction 3:
The purpose of a statute and prescribing formalities for the execution of Wills is to guard against and prevent mistake, imposition, undue influence, fraud, or deception, and to afford means of determining authenticity. Therefore, a substantial, rather than literal compliance with each of the various statutory formalities is sufficient.
Proponent’s proposed instruction 4:
Our law does not require that the witness to a Will see (or remember having seen) the maker’s signature if the maker in any manner consistent with these instructions acknowledges the document to be his Will.
Proponent’s proposed instruction 5:
When one acknowledges a Will to be his, he necessarily acknowledges that his signature is thereon.
Proponent’s proposed instruction 6:
Acknowledgement of the subscription of a Will may be established by circumstantial evidence equally as well as spoken words. Proof of words, gestures or conduct is sufficient.
Proponent’s proposed instruction 7:
Acknowledgement of a Will by its maker can be made in any manner that conveys to the mind of a witness of reasonable intelligence the maker’s instruction to acknowledge its execution. Acknowledgement of a Will necessarily acknowledges the maker’s signature thereon.
Appellant cites as his authority In Re Bragg’s Estate, 106 Mont. 132, 76 P.2d 57 (1938).
The decision in the Bragg Case is not controlling. The big difference in Bragg was that the witness O’Connell read the first page and to the “best memory” of the witness, as distinct from his peculiar ideas about swearing, saw the signature thereon and therefor his testimony alone was sufficient to establish the Will under the cases cited by the majority of the Court.
Section 91-903, R.C.M.1947, specifically provides:
“The jury, after hearing the case, must return a special verdict upon the issues submitted to them by the court, upon which the judgment of the court must be rendered, either admitting the will to probate or rejecting it.”
All of the refused instructions, 2 through 7, are merely abstract statements of law.' The jury here, was not in a position to return a general verdict on the legal sufficiency of the execution of the two page document proposed for probate.
Further, the instructions were defective in some respects.
Section 91-107, R.C.M.1947, refers to a formal will and is in four readily understood parts:
“1. It must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto;
“2. The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his authority;
“3. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and,
“4. There must be two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the testator’s request, and in his presence.”
The requirement of part 1 as quoted above was not satisfied in this case. There is no proof whatsoever that there was any signature subscribed and the hasty assurance that everything concealed “was in order” does not help. It is true that the jury did find that the witnesses did have an opportunity to see the signature but that is not supported by any evidence. As Mrs. Elings demonstrated the folding of the first sheet under the second sheet made that physically impossible without insulting Mrs. Patten after she had carefully prepared the document to conceal the first page before any witness was called in. Also, Mrs. Patten did not acknowledge to any of the witnesses that the proposed Will had been signed by her.
The requirement of Part 2 of Section 91-107, quoted above, was likewise not satisfied in this case. The attestation clause of Mrs. Patten on Page 2, was not read by any of the witnesses.
The second basis urged by appellant is: the judgment of the court is not supported by the interrogatories; what the court did was tantamount to ignoring the interrogatories and the jury responses.
We believe we have covered this proposition by our discussion in connection with the first basis of proponent’s appeal.
The third basis of appellant’s appeal is: The court erred in failing to appreciate the significance of the holographic codicil which mooted all the questions presented about execution of the basic Will.
The note which appellant refers to as a codicil is clearly not a testamentary document. It does not refer to any Will, it was not attached to or made a part of the purported Will of Mrs. Patten. Clearly, the note of Mrs. Patten did not republish her Will. In Matter of Estate of Gudmunsen, 169 Mont. 53, 545 P.2d 146.
The writing of the name of Donald W. Patten on the first page of the Will is presumed to have been made after execution. The interlineation bears no date.
The interrogatories Nos. 8 and 9 were submitted over the strong objections of contestant. The intentions of Mrs. Patten were not questions for the jury. These are matters of law for the Court to decide. The cross appeal and cross assignments of error by the respondent clearly set this out.
After carefully reviewing all the authorities and statutes cited by appellant and respondent we affirm the judgment of the District Court denying probate.
MR. JUSTICES DALY, JOHN C. HARRISON and HASWELL concur.
|
[
-10,
-12,
26,
-20,
-8,
-7,
29,
25,
37,
-15,
-23,
-21,
51,
31,
-9,
16,
-9,
40,
8,
-2,
-21,
-18,
-51,
-15,
47,
-32,
23,
26,
-46,
-4,
65,
21,
-27,
49,
10,
23,
46,
-3,
18,
-4,
-29,
14,
19,
-1,
-21,
20,
-20,
32,
-36,
23,
-14,
-25,
-23,
-9,
-29,
23,
-18,
-8,
-3,
9,
-3,
-57,
57,
14,
9,
5,
67,
9,
-39,
15,
-18,
-43,
24,
19,
-28,
-38,
-23,
-13,
-47,
6,
-25,
-25,
-19,
10,
-3,
-38,
-46,
-7,
84,
-29,
10,
19,
-47,
26,
-10,
48,
8,
-12,
4,
34,
-8,
-14,
9,
32,
-8,
-17,
-12,
30,
23,
40,
-1,
17,
16,
31,
34,
17,
12,
8,
1,
-17,
-73,
5,
-29,
-23,
29,
19,
-12,
1,
41,
19,
-4,
6,
-6,
-39,
-14,
21,
-62,
-49,
-26,
-19,
44,
64,
3,
9,
7,
-10,
6,
-9,
-3,
8,
-7,
34,
5,
27,
11,
-63,
17,
-13,
-7,
-6,
31,
6,
16,
-4,
20,
28,
41,
16,
73,
-39,
-22,
43,
-35,
-2,
19,
27,
57,
-33,
-13,
16,
-13,
30,
12,
-35,
-7,
-17,
13,
-34,
32,
51,
-41,
-33,
39,
-40,
-33,
-58,
20,
-9,
-28,
28,
20,
27,
2,
12,
29,
-12,
-35,
-34,
-4,
-32,
26,
-13,
13,
46,
-15,
-9,
-38,
-31,
-37,
12,
-28,
10,
-10,
-34,
-8,
31,
7,
-70,
-10,
-39,
-28,
58,
-14,
-21,
30,
9,
0,
-72,
-10,
-27,
-31,
-5,
84,
22,
-23,
27,
-42,
-17,
-4,
36,
-56,
-5,
20,
28,
32,
13,
29,
18,
-24,
-35,
42,
-25,
-18,
3,
67,
-35,
59,
-65,
52,
-32,
42,
-8,
4,
-12,
-20,
-15,
32,
-62,
3,
-34,
12,
3,
-85,
-18,
23,
9,
7,
-8,
14,
13,
-6,
-2,
-9,
7,
25,
-9,
25,
-84,
-8,
-28,
-5,
9,
28,
15,
-1,
-6,
-64,
-32,
-9,
-19,
43,
-20,
20,
36,
16,
27,
-43,
-39,
-17,
26,
3,
3,
-1,
41,
-14,
56,
-75,
-1,
45,
63,
75,
47,
-33,
-3,
11,
-38,
49,
22,
-12,
-64,
-5,
-38,
5,
43,
-52,
18,
19,
68,
-28,
0,
0,
45,
32,
1,
-61,
-16,
9,
-8,
-74,
1,
-16,
48,
29,
43,
-12,
-9,
-12,
-4,
26,
-52,
-29,
31,
32,
-20,
-10,
-15,
19,
-3,
4,
2,
-67,
-37,
-27,
86,
-10,
0,
29,
-3,
28,
-2,
-26,
-23,
-18,
18,
10,
-5,
19,
-14,
-54,
-29,
-36,
59,
18,
-36,
-54,
14,
-68,
-16,
14,
11,
36,
-6,
10,
-43,
92,
1,
21,
-5,
-8,
54,
-37,
-1,
-29,
25,
-24,
-25,
-35,
19,
15,
-34,
7,
42,
43,
61,
13,
-8,
20,
27,
55,
22,
46,
1,
14,
31,
16,
-5,
29,
-33,
14,
3,
30,
26,
13,
-1,
-39,
-11,
56,
13,
-57,
-62,
0,
47,
15,
23,
69,
53,
-22,
5,
28,
7,
6,
35,
-10,
-76,
0,
39,
-9,
-4,
21,
-45,
-15,
-36,
-9,
-10,
80,
-1,
-29,
-55,
-41,
-34,
57,
9,
-31,
-64,
-51,
3,
-22,
-39,
6,
41,
-9,
-1,
-3,
36,
-31,
-20,
-44,
11,
-24,
8,
-1,
-13,
29,
31,
14,
40,
56,
16,
-28,
13,
84,
-16,
-38,
24,
7,
-24,
35,
13,
8,
-23,
-79,
11,
13,
-59,
-14,
2,
48,
4,
-18,
7,
-26,
20,
0,
8,
-39,
0,
-12,
8,
3,
-31,
34,
-49,
6,
-11,
14,
9,
57,
-28,
20,
-20,
54,
25,
-37,
-3,
41,
-27,
-43,
6,
-26,
-1,
-45,
-26,
-14,
-20,
39,
10,
-37,
-29,
-27,
26,
17,
-4,
3,
-1,
8,
-1,
7,
26,
2,
-38,
25,
-36,
-68,
8,
-57,
8,
-17,
24,
-46,
-42,
-20,
56,
49,
20,
-84,
42,
6,
-35,
1,
-53,
-36,
-17,
-59,
6,
-1,
14,
12,
-39,
39,
-52,
11,
-20,
27,
14,
3,
-41,
-37,
3,
41,
3,
46,
-10,
-30,
12,
-18,
-5,
-83,
33,
5,
-38,
0,
35,
56,
-35,
-8,
-33,
76,
-45,
55,
29,
28,
9,
0,
-29,
-67,
-7,
80,
-19,
-12,
18,
0,
33,
-40,
-2,
17,
35,
21,
33,
27,
66,
59,
-10,
-31,
-49,
-22,
-22,
43,
-24,
45,
-30,
64,
26,
35,
-10,
26,
-69,
-20,
4,
-31,
38,
11,
7,
-42,
27,
15,
-25,
-6,
42,
-22,
-1,
14,
16,
-16,
29,
24,
-7,
13,
2,
-5,
-29,
-35,
-28,
-31,
-18,
-35,
-68,
7,
-3,
57,
-79,
-1,
-12,
-37,
13,
-14,
-22,
1,
0,
-16,
57,
42,
14,
-12,
49,
22,
-21,
6,
4,
26,
23,
-58,
2,
-10,
27,
-17,
23,
3,
-22,
-30,
-21,
44,
11,
37,
16,
14,
3,
-42,
-3,
62,
-46,
9,
21,
17,
-8,
-31,
-3,
-26,
18,
-84,
25,
50,
44,
-4,
-27,
-41,
-36,
27,
-1,
45,
27,
15,
13,
-11,
-33,
22,
-8,
20,
41,
38,
3,
-24,
-24,
-48,
-3,
15,
-47,
-38,
-18,
-23,
15,
0,
-34,
71,
39,
-20,
-1,
-12,
45,
-59,
62,
-70,
12,
-2,
-45,
-61,
-62,
0,
21,
-32,
5,
30,
-70,
39,
38,
6,
30,
-12,
16,
-57,
71,
-10,
-1,
9,
-54,
-18,
-13,
37,
10,
1,
-54,
15,
22,
-16,
-2,
6,
-7,
90,
4,
-7,
-29,
10,
-8,
-3,
21,
-49,
-36,
-39,
13,
-29,
29,
11,
17,
4,
15,
28,
-27,
-23,
-20,
18,
-2,
-46,
-36,
1,
36,
17,
31,
32,
-18,
40,
-5,
-43,
37,
-50,
-12,
5,
-23,
34,
2,
14,
-8,
-34,
-14,
31,
-7,
35,
-37,
-9,
-47,
-26,
8,
-48,
-10,
-8,
12,
9,
-35,
7,
20,
57,
23,
36,
-25,
29,
-72,
7,
9,
-20,
31,
-76,
16,
2,
14,
-30,
5,
16,
12,
0,
12,
-31,
32,
40,
10,
-32,
-36,
-33,
4,
-34,
-2,
6,
25,
69,
12,
-16,
-11,
52,
39,
13,
-23,
-14,
54,
-17,
9,
38,
20,
-34,
71,
12,
-15,
-9,
59,
-75,
21,
17,
-5,
-1,
-77,
-40,
-12,
26,
-12,
-12,
8,
-13,
-17,
-37,
6,
31,
17,
-5,
-22,
23,
19,
-24,
36,
-39,
-9,
-16,
8,
-46,
-55,
21,
-1,
-44,
2,
98,
35,
23,
7,
-16,
33,
-2,
-48,
0,
23,
15,
15,
-12,
-14,
-3,
34,
-35,
6,
-35,
3,
32,
3,
19,
-59,
34,
7,
-40,
-40,
39,
-42
] |
MR. CHIEF JUSTICE BRANTLT
delivered the opinion of the court.
Action for damages for a personal injury which it is alleged the plaintiff suffered by reason of a fall upon a sidewalk on one of the streets of defendant, at a point thereon where there was an accumulation of ice and snow, forming a smooth, slippery and slanting surface. -The plaintiff had a verdict and judgment. The defendant has appealed from the judgment and an order denying its motion for a new trial.
The sufficiency of the complaint was questioned in the court below, both by general demurrer and by objection to the introduction of evidence at the opening of the trial. The action of the court in overruling the contention of defendant’s counsel in this behalf is assigned as error. After reciting the capacity of the defendant, its possession and control of the streets and sidewalks, etc., the complaint alleges:
“3. That the defendant, disregarding its duty in that behalf, did negligently, carelessly and knowingly allow and permit for a long time prior to the 6th day of February, 1909, water to overflow from the adjoining and abutting property, over and across the sidewalk on the north side of said East Broadway street covering a space of more than ten (10) feet; that by reason of the said overflow of said water, over and across said sidewalk as aforesaid, ice and snow accumulated on the said sidewalk at that point, and formed a smooth, slippery and slanting surface of about ten (10) feet wide.
“4. That said overflow of said sidewalk by said water was negligently allowed to wrongfully exist and had existed with the full knowledge of the defendant for a period of over one year; that said ice and snow formed by reason of said overflow were a source of danger to pedestrians passing on or over the said sidewalk, and during the long period of time which said ice and snow existed, said sidewalk was not protected by any guards, lights, barriers or signals of danger to notify persons traveling upon said sidewalk of the danger caused thereby; and that during all of said time said sidewalk was traveled by great numbers of people, the said sidewalk and street being one of the principal thoroughfares of the said city of Butte, and the said sidewalk was, at this particular point, used by pedestrians traveling thereon both day and night.
“5. That at. and during all the times herein mentioned, the defendant had full knowledge of all the facts and matters herein alleged.”
The following paragraphs allege the particulars and character of the 'injury, and notice to the defendant of the time and place of it, under the requirements of the statute.
Some question is made that the allegations touching the accumulation of ice and snow are insufficient to show that it was such an obstruction as to be a source of danger to persons traveling along the sidewalk; but similar allegations were considered in the ease of Townsend v. City of Butte, 41 Mont. 410, 109 Pae. 869, and were held sufficient.
The contention upon which defendant relies chiefly is, that there is no allegation of fact showing that it was guilty of negligence in failing to remove the alleged obstruction within a reasonable time after notice of its existence. A municipal corporation is held only to the exercise of ordinary care to make and keep its streets in reasonably safe condition. (Leonard v. City of Butte, 25 Mont. 410, 65 Pac. 423; Dillon on Municipal Corporations, 5th ed., sec. 1697; 28 Cyc. 1358.) This being the rule controlling its liability, it is entitled, after notice of a defective condition or of the existence of an obstruction in a street imperiling the safety of persons traveling thereon, to a reasonable opportunity to act in the premises. Hence, before it can be held liable for an injury resulting from the unsafe condition, it must appear that sufficient time has elapsed, after notice, to permit it to act. (28 Cye. 1362; Dillon on Municipal Corporations, 5th ed., sec. 1718.) The notice may be actual or constructive. The celerity of action is necessarily dependent upon the attendant circumstances in each case, vis.: location of the obstruction, use of the street, and the like; but mere knowledge, without any reasonable opportunity to act, does not determine liability. In this class of cases, therefore, liability depending, as it does, upon notice of the alleged unsafe condition and the failure to exercise ordinary care to remedy it, it is necessary to allege facts showing notice at a sufficient interval before the injury, to give the defendant reasonable opportunity to act. In other words, the facts stated must show defendant guilty of a legal wrong in failing to act with reasonable diligence. Tested by this rule, the complaint before us is. insufficient. It is alleged that “at and during all the times herein mentioned, the defendant had full knowledge of all the facts and matters herein alleged.” Read in connection with the preceding allegations, this can mean nothing more than that for some period of time the defendant knew of the accumulation of ice and snow and allowed it to remain without furnishing protection to pedestrians by guards, lights, barriers or danger signals. Was this period of time an hour, or a day or month? The allegation is but a conclusion which the pleader has left unaided by the statement of any specific fact to enable one to determine what the length of time was. Hence the complaint does not contain a statement of facts in ordinary and concise language (Rev. Codes, sec. 6532), and is insufficient to sustain a judgment. It' is true that the length of time during which water was permitted to overflow the sidewalk is specifically stated; but even so, no additional fact is stated justifying the inference that the city, through its officers, must have anticipated that the flow would by the intervention of the weather necessarily result in the formation of a dangerous obstruction, and therefore that it was bound to know the condition of the sidewalk as it was when the accident occurred. A municipality is not required under all circumstances to keep the streets free from accumulations of ice and snow. It must do so only when they imperil life or limb.
The statutory notice served upon the city council is set out in full in the complaint. It is argued that the demurrer should have been sustained, because it appears that the notice was not given by the plaintiff or anyone in her behalf, as prescribed by the statute. (Rev. Codes, sec. 3289.) This contention is without merit. The notice is signed by the plaintiff, “by Canning & Keating, her attorneys.” Upon its- face it purports to have been given in her behalf by the attorneys who brought the action for her. This, we think, is prima facie sufficient.
In view of the foregoing conclusion, it is unnecessary to notice the other errors assigned by the appellant. The judgment and order are reversed, with direction to the district court to sustain the demurrer.
Reversed.
Mr. Justice Smith and Mr. Justice Holloway concur.
|
[
-51,
62,
31,
-19,
15,
-33,
61,
-8,
48,
34,
21,
19,
32,
-31,
-13,
-59,
-69,
-37,
8,
10,
-67,
-14,
2,
-91,
-71,
8,
23,
-68,
-6,
19,
66,
2,
9,
3,
2,
19,
25,
19,
48,
30,
57,
-15,
-1,
-31,
47,
5,
-16,
-15,
9,
-15,
36,
44,
4,
23,
9,
-5,
-80,
50,
-30,
-19,
-26,
-21,
10,
-33,
38,
-15,
9,
-2,
3,
16,
-95,
59,
3,
-41,
-31,
35,
-36,
-1,
-83,
2,
-80,
1,
28,
31,
15,
-21,
-43,
-4,
-8,
-12,
19,
1,
56,
25,
-5,
7,
-26,
-34,
-49,
-5,
20,
-10,
9,
32,
-13,
-69,
-61,
-23,
29,
48,
-10,
92,
-32,
12,
-4,
-11,
61,
15,
-27,
-43,
13,
5,
0,
6,
-90,
1,
-32,
55,
42,
-22,
-35,
57,
19,
55,
-11,
1,
-44,
-15,
78,
4,
5,
-40,
2,
-16,
-21,
30,
19,
25,
-16,
-31,
-22,
-11,
8,
-67,
9,
-2,
-2,
-47,
80,
-4,
46,
-1,
-8,
-18,
6,
22,
-8,
30,
5,
4,
68,
-51,
24,
-77,
11,
5,
-8,
-2,
0,
31,
36,
33,
41,
-26,
-47,
-43,
-28,
-47,
21,
-23,
23,
-27,
-16,
-25,
-25,
1,
31,
-7,
27,
-57,
-6,
11,
-45,
-35,
-8,
0,
-3,
0,
13,
11,
25,
-28,
-12,
-14,
31,
4,
10,
-63,
-17,
0,
-1,
24,
-19,
-14,
2,
5,
-5,
-29,
-30,
-10,
6,
15,
-19,
-4,
93,
34,
1,
20,
-36,
-50,
16,
61,
-16,
-37,
28,
41,
-34,
-5,
5,
17,
30,
-60,
21,
-38,
-21,
4,
23,
-22,
-3,
-24,
54,
49,
42,
-14,
26,
21,
16,
1,
-33,
-32,
14,
21,
-4,
3,
-55,
-63,
11,
-31,
49,
79,
-15,
-7,
3,
-14,
-2,
14,
23,
18,
35,
-3,
13,
-23,
18,
46,
3,
52,
36,
-11,
-19,
4,
2,
-12,
-3,
62,
13,
11,
-12,
14,
3,
31,
5,
33,
-46,
-7,
6,
82,
-20,
23,
54,
30,
21,
7,
-23,
-14,
-30,
28,
9,
32,
-29,
-14,
47,
19,
-31,
44,
25,
-34,
65,
22,
-13,
-4,
4,
14,
8,
-46,
-30,
32,
14,
14,
-12,
5,
-62,
13,
-3,
-7,
-22,
6,
-10,
-49,
-6,
-1,
57,
-41,
16,
-10,
7,
15,
-10,
-29,
-18,
43,
-58,
-29,
-15,
-9,
-1,
-49,
33,
-8,
6,
60,
60,
-79,
2,
21,
-1,
32,
-1,
-11,
-23,
-1,
23,
30,
25,
50,
-1,
-10,
2,
-37,
-44,
-28,
27,
17,
54,
-15,
-58,
-40,
31,
-53,
-28,
-8,
-55,
-42,
26,
-20,
-13,
16,
25,
32,
-14,
4,
-5,
6,
67,
45,
24,
-3,
7,
-15,
-6,
16,
17,
15,
-34,
18,
0,
-58,
35,
-47,
0,
-46,
-13,
21,
15,
8,
23,
-25,
-4,
21,
-13,
-15,
31,
40,
42,
22,
-21,
17,
42,
-30,
78,
-33,
27,
1,
-74,
18,
8,
-34,
-48,
25,
-16,
9,
5,
19,
28,
23,
10,
49,
-5,
16,
-29,
2,
-30,
-31,
33,
-20,
-22,
-21,
85,
27,
0,
4,
52,
24,
-7,
-32,
-13,
-29,
-26,
0,
0,
-39,
-26,
-3,
-58,
-18,
-17,
-26,
43,
36,
24,
22,
7,
-11,
-9,
-4,
9,
28,
21,
-16,
-19,
-14,
-6,
-15,
-49,
34,
-31,
-18,
25,
4,
12,
10,
0,
-23,
-55,
14,
7,
24,
25,
36,
23,
-11,
4,
10,
25,
-5,
-4,
-1,
13,
38,
53,
48,
37,
-5,
-41,
19,
24,
-30,
-9,
-33,
10,
4,
3,
67,
-42,
-19,
43,
51,
26,
-23,
20,
-33,
-22,
20,
2,
-38,
-22,
-23,
-22,
-24,
-5,
-24,
-23,
-15,
-85,
-1,
-12,
55,
34,
-4,
-3,
59,
-5,
-8,
-26,
-14,
-57,
0,
-32,
-12,
-7,
2,
-8,
6,
-8,
23,
14,
-31,
-3,
-89,
48,
3,
46,
0,
-34,
21,
5,
0,
-2,
-2,
16,
-1,
-26,
-21,
17,
20,
1,
-4,
-87,
-9,
-82,
-9,
-20,
37,
7,
-6,
-25,
6,
21,
16,
-30,
20,
23,
12,
37,
-47,
-5,
5,
-33,
49,
-13,
-6,
31,
65,
30,
-61,
26,
-26,
56,
0,
-62,
6,
9,
4,
-35,
1,
-24,
31,
-7,
28,
-28,
-20,
21,
-24,
2,
-14,
0,
-46,
4,
33,
0,
4,
43,
-16,
4,
2,
-51,
-26,
-8,
48,
56,
9,
-15,
-8,
19,
-5,
-20,
61,
53,
-13,
-4,
-29,
-3,
-32,
25,
-16,
-19,
0,
25,
12,
-19,
11,
11,
6,
-37,
40,
33,
-1,
6,
-1,
-29,
21,
-14,
-27,
12,
-20,
1,
-21,
-2,
13,
2,
52,
-11,
49,
28,
6,
-14,
66,
14,
-14,
35,
-67,
34,
11,
-8,
21,
-43,
15,
71,
-27,
-36,
-40,
30,
-16,
29,
-44,
-34,
-54,
-26,
55,
-31,
7,
39,
-21,
34,
26,
-24,
0,
50,
-13,
-67,
-21,
-4,
-23,
19,
-35,
-66,
24,
25,
-24,
41,
1,
-58,
17,
-65,
-41,
5,
-2,
30,
13,
3,
14,
-1,
22,
-39,
-1,
-23,
-21,
-42,
1,
12,
21,
-41,
-18,
50,
-13,
5,
-10,
-20,
46,
37,
25,
2,
-6,
-3,
-66,
17,
-5,
6,
-1,
50,
-4,
0,
-31,
18,
5,
58,
4,
-2,
-26,
16,
-32,
44,
-31,
4,
45,
-8,
7,
6,
27,
27,
-5,
-26,
46,
-61,
49,
-14,
13,
-35,
-24,
-18,
-13,
13,
10,
15,
-12,
-12,
-19,
-59,
-44,
44,
0,
-26,
-11,
-23,
-40,
10,
0,
2,
-22,
-40,
29,
-7,
67,
21,
-7,
5,
26,
-31,
-75,
47,
-19,
-8,
2,
-5,
-6,
-30,
7,
9,
-30,
38,
48,
43,
7,
8,
-7,
-29,
-9,
-76,
32,
26,
11,
-18,
36,
38,
-24,
-62,
18,
-22,
-5,
10,
17,
41,
-69,
-21,
21,
8,
30,
-40,
28,
23,
27,
15,
16,
1,
9,
-42,
29,
-39,
0,
-13,
69,
-67,
7,
45,
1,
-21,
8,
-56,
-55,
-48,
-44,
23,
-29,
46,
7,
6,
-48,
-27,
-26,
-26,
34,
53,
5,
-49,
41,
7,
-39,
-39,
-12,
3,
-22,
-42,
-44,
17,
-15,
22,
9,
30,
-57,
6,
-45,
-12,
-5,
45,
0,
-59,
-3,
-10,
13,
-51,
-20,
40,
35,
33,
11,
-16,
-8,
3,
-14,
-38,
13,
-39,
29,
46,
-16,
-27,
-19,
-24,
4,
-26,
-5,
19,
22,
-17,
5,
18,
-7,
44,
43,
25,
-41,
4,
3,
49,
-1,
-29,
-10,
6,
21,
-7,
-14,
-39,
14,
3,
31
] |
L. C. GULBRANDSON, District Judge,
sitting for Chief Justice James T. Harrison,
delivered the opinion of the Court.
Defendant Evelyn Farnes appeals from a judgment of conviction for the crime of theft, tried in the District Court of the Thirteenth Judicial District, in and for the County of Yellowstone.
On February 8, 1975, one Bill Stumpf arrived at the Public Auction Market in Billings, Montana, with a number of other people, in a cream-colored Oldsmobile, towing a horse trailer. 'An unbranded sorrel mare was unloaded from the trailer, and was delivered by Stumpf to an employee of the Market at approximately 12:30 a.m., telling the employee to run the horse through “loose” at the sale that day. Horses which are run through “loose” are normally sold as canning horses, whereas horses which are ridden through the sales ring are normally sold as pleasure or working horse. Stumpf did not claim any ownership of the animal, but consigned the mare in the name of one Ray Tanner.
After the sale,- at about 5:15 p. m., February 8, 1975, a purported bill of sale to the animal signed by one Earl West to Ray Tanner was delivered to the Auction Market by the defendant Evelyn Farnes. The employee receiving the bill of sale testified that the defendant introduced herself as Ray Tanner’s wife, and when told that payment would be delayed until the following Monday wrote the name of Karla Reichert on the back of the bill of sale and told the employee to make payment to her friend Reichert. The employee receiving the bill of sale from the defendant testified over objection that approximately 30 minutes earlier he had received a phone call from a person inquiring what he needed for the horse, and the employee answered that a bill of sale would be required, and the caller responded thát a bill of sale would be delivered for the horse.
The local brand inspector testified that he photographed the mare on February 8, 1975, because he knew the mare was on her way to a dog food factory in South Dakota and that prior to the sale he put a stop on the check for the sale of the horse, and that at the sale he saw the defendant, in the company of Bill Stumpf, Buzz Feelay, and Karla Reichert.
The local inspector/detective testified that on February 10, 1975, he commenced an investigation regarding the sale of the horse, learning that Karla Reichert was the daughter of the defendant and the girl friend of Bill Stumpf. He further testified that he was unable to locate anyone by the name of Ray Tanner or Earl West, the persons named on the bill of sale delivered by the defendant.
On approximately February 25, 1975, Dr. Thomas Morledge reported a sorrel mare as missing from his winter pasture, and from photographs he had taken and the photograph taken on February 8 at the Auction Market, the horse was identified as the one delivered by Bill Stumpf.
The defendant testified as follows: that on February 7, 1975, at approximately 11:30 p. m. she and “Buzz” Feeley were drinking in a Billings bar when a man askéd Feeley to help him haul a horse to the Auction Market. Feeley agreed, and the defendant drove her vehicle, accompanied by Feeley and Billy Stumpf, to the North Yard where they picked up Feeley’s horse trailer. They then followed a dark pickup truck to a pasture near Alkali Greek where both vehicles stopped and the man in the pickup got out, crawled through a fence, and walked up to a horse, putting a halter on the horse, then leading it through a gate, and put it in the horse trailer.
She further testified that while “Buzz” and Billy Stumpf were outside of her car, the stranger came by the driver’s window of the car and handed her the bill of sale, saying, “You will need this to sell the horse.” The defendant then drove her vehicle, pulling the loaded horse trailer, back to the auction yards where Billy Stumpf unloaded the horse and took it in to the Market.
She further testified that she never saw the stranger again, that she did not call the Auction Market or have a call placed for her, but only delivered the bill of sale on the afternoon of February 8 to the Market because she assumed that they would need it, that she did not introduce herself as Ray Tanner’s wife, that she wrote her daughter’s name on the back of the bill of sale so she could hold the check until the stranger paid them $15.00 which she claimed he had promised in exchange for hauling the horse to market.
Karla Reichert, the defendant’s daughter, testified she knew nothing about the transaction or the bill of sale, and that her mother had never asked her to pick up the check at the Market.
Billy Stumpf’s testimony was corroborative of the defendant’s except he stated that he was not out of the car at Alkali Creek, while Mrs. Farnes stated that he was when the stranger handed her the bill of sale.
The appeal presents the following issues:
1. Was the evidence sufficient to support the conviction?
2. Did the district court err in refusing to give defendant’s offered instructions number 7 and 8?
Mrs. Farnes was charged and convicted of the offense of theft as defined in section 94-6-302(1) which reads as follows:
“(1) A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner, and:
(a) has the purpose of depriving the owner of the property; or
(b) purposely or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or
(c) uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner of the property.”
The term “knowingly” is defined in section 94-2-101(28):
“A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his conduct or that the circumstance exists. . . . When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence. Equivalent terms such as ‘knowing’ or ‘with knowledge’ have the same meaning.” (Emphasis supplied).
“Purposely” is defined in section 94-2-101(53) which reads in pertinent part:
“A person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is his conscious object to engage in that conduct or to cause that result. * * *”
The testimony presented at trial constituted direct evidence of every element of the crime of theft except intent. As in State v. Cooper, 158 Mont. 102, 489 P.2d 99 (1971) the element of intent may be, and generally is, demonstrated by circumstantial evidence. Citing State v. Madden, 128 Mont. 408, 276 P.2d 974 (1954) the Court stated:
“The element of felonious intent in every contested criminal case must necessarily be determined from the facts and circum stances of the particular case — this for the reason that criminal intent, being a state of mind, is rarely susceptible of direct or positive proof and therefore must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence * * *
“The question of intent is a question for the jury.”
The rules that govern the weight and sufficiency of circumstantial evidence are set out in the leading Montana case of State v. Cor, 144 Mont. 323, 396 P.2d 86 (1964) at page 326, 396 P.2d at page 88:
“Circumstantial evidence is not always inferior in quality nor is it necessarily relegated to a ‘second class status’ in the consideration to be given it. The very fact it is circumstantial is not a sufficient allegation to justify a reversal of the judgment for such evidence may be and frequently is, most convincing and satisfactory. In any criminal case, evidence that is material, relevant and competent will be admitted, ‘nothing more and nothing less.’ The test is whether the facts and circumstances are of such a quality and quantity as to legally justify a jury in determining guilt beyond a reasonable doubt. If such be the case, then the court should not, indeed cannot, set aside the solemn findings of the trier of facts.” (Emphasis supplied)
It is a well-established principle of law that in a criminal prosecution, the sufficiency of evidence to prove the main fact of guilt or any evidentiary fact looking thereto is a matter peculiarly within the province of the jury. More specifically, this court has stated that:
“The jury being the sole judges of the weight to be given to the testimony, the court should not tell them what particular weight to give to any portion of the testimony.” State v. Gleim, 17 Mont. 17, 29, 41 P. 998, 1001 (1895).
The rule is that if substantial evidence is found to support the verdict, then it will stand. State v. White, 146 Mont. 226, 229, 405 P.2d 761 (1965). The court in State v. Stoddard, 147 Mont. 402, 408, 412 P.2d 827, 831 (1966), stated:
First, we should note that this court is not a trier of fact * * * In view of the presumption of innocence at the trial, the jury must have been instructed to that effect, but on appeal after conviction the rule changes. Then, if the record shows any substantial evidence to support the judgment, the presumption is in favor of such judgment.” p. 408, 412 P.2d p. 831.
In State v. Medicine Bull, Jr., 152 Mont. 34, 445 P.2d 916 (1968), the court held that the jury is free to consider all the evidence presented and to pick and choose which of the witnesses they wish to believe. That if sufficient testimony was introduced to justify the jury’s finding, then their conclusion would not be disturbed unless there was a clear misunderstanding by the jury or a misrepresentation made to the jury.
The appellant is guilty of the crime of theft in this case if she was aware that the horse was stolen or if she was aware of a high probability that the horse was stolen. Under the weakest interpretation of the facts presented by the state, there is substantial evidence from which the jury could find that the defendant was aware of a high probability that the horse was stolen. We find that the evidence is sufficient to support the conviction.
Defendant’s second allegation of error would be grounds for reversal of the conviction if the exclusion of defendant’s proposed instructions 7 and 8 was erroneous and defendant was prejudiced by such exclusion.
Defendant’s proposed instruction number 7 reads as follows:
“You are instructed that a defendant may not be convicted on conjectures, however shrewd, on suspicions, however justified, on probabilities, however strong, but only upon evidence which establishes guilt beyond reasonable doubt; that is upon proof such as to logically compel the conviction that the charge is true.”
Defendant’s proposed instruction number 8 reads as follows:
“You are instructed that proof of illegal asportation is necessary to prove the crime of theft. By illegal asportation is meant the illegal taking of the animal. Therefore if you find that there is no proof beyond a reasonable doubt, that the defendant knowingly participated in the illegal asportation of the animal or proof beyond a reasonable doubt that she knew the animal had been stolen when she presented the bill of sale to the stockyards, she is entitled to an acquittal.
It is an established principle of law in Montana that when examining jury instructions on appeal to determine if prejudice has occurred by erroneous admission or erroneous exclusion of a jury instruction, all instructions must be read as a whole. State v. Bosch, 125 Mont. 566, 242 P.2d 477. Where jury instructions as a whole correctly state the law prejudice is not created because of a refusal of a proposed instruction. State v. Lukus, 149 Mont. 45, 423 P.2d 49.
Here the jury was instructed as to each of the elements of the crime of theft, as to circumstantial evidence, and as to the standard of proof necessary to convict.
Defendant’s proposed instruction number 7 is often given but here the same subject matter was covered in given instructions.
Objection to defendant’s proposed instruction number 8 was made on the grounds that it was an incomplete statement of law. Here proof of asportation was not essential to conviction and the jury was instructed as to the element of “control” necessary to convict.
Upon examining all instructions given we find that the jury was properly instructed and defendant was not prejudiced through the court’s failure to give defendant’s proposed instructions number 7 and number 8.
The appellant further interjected the issue of the admissibility of the telephone call made to the Market approximately one-half hour before the defendant arrived with the bill of sale. The caller was told that a bill of sale would be required before the proceeds of the sale could be paid. Evidence of the contents of the call did constitute hearsay, but was admissible as an exception to the rule, the call being made as an integral part of an overall criminal transaction. State v. McCracken, 93 Mont. 269, 18 P.2d 302 (1933).
The judgment of conviction is affirmed.
JUSTICES JOHN C. HARRISON, HASWELL and DALY concur.
|
[
23,
6,
46,
22,
3,
-19,
42,
7,
-30,
-4,
53,
33,
-28,
37,
-7,
0,
32,
-48,
24,
-8,
-19,
-39,
-64,
19,
4,
-5,
-3,
-19,
-17,
-2,
-3,
33,
56,
15,
30,
36,
-50,
16,
-42,
-33,
-22,
42,
-31,
-2,
45,
20,
34,
-37,
20,
-44,
-28,
-32,
3,
-23,
28,
-52,
1,
-12,
-73,
55,
45,
-57,
29,
-5,
-1,
-2,
-29,
-15,
-11,
-16,
38,
13,
0,
-2,
18,
-24,
26,
30,
13,
47,
49,
-7,
-38,
17,
30,
-19,
-23,
34,
0,
-61,
-96,
1,
0,
0,
-46,
-62,
31,
-14,
-51,
-35,
-55,
-39,
-66,
33,
61,
-49,
-70,
2,
-27,
30,
-15,
-38,
46,
-25,
42,
-22,
-28,
7,
-8,
36,
8,
-15,
-5,
39,
-9,
1,
-37,
57,
12,
-21,
2,
-38,
-6,
-6,
-3,
0,
-69,
-26,
-10,
-19,
50,
49,
-30,
-48,
19,
17,
-20,
-7,
-23,
32,
-46,
10,
49,
31,
11,
-82,
-38,
-4,
-35,
26,
1,
-33,
-42,
5,
12,
-6,
29,
-59,
-4,
-6,
6,
32,
4,
-6,
9,
-17,
-19,
1,
27,
-3,
25,
-5,
-89,
15,
-43,
7,
-4,
67,
-11,
71,
11,
-19,
4,
-2,
3,
-14,
46,
-8,
-31,
30,
12,
6,
18,
37,
27,
5,
-45,
-54,
41,
-43,
-67,
-26,
34,
-6,
-33,
-5,
-28,
-49,
-5,
-50,
-32,
1,
20,
40,
29,
-40,
0,
12,
42,
11,
-20,
63,
12,
-46,
-7,
-35,
-12,
-49,
-8,
31,
-39,
-71,
44,
-56,
11,
-37,
-72,
-21,
65,
4,
-39,
-23,
1,
59,
22,
14,
75,
-74,
8,
5,
16,
-29,
70,
35,
8,
5,
38,
19,
-40,
-27,
39,
7,
0,
5,
10,
-31,
14,
21,
-5,
-14,
85,
-48,
-17,
34,
-2,
-5,
47,
18,
-37,
-41,
19,
51,
5,
-8,
-33,
25,
-19,
-22,
8,
-9,
-41,
-17,
35,
-24,
1,
-13,
-21,
-10,
12,
-44,
-54,
-36,
29,
-51,
-20,
5,
-38,
-8,
32,
-29,
0,
-23,
33,
46,
-15,
3,
-46,
5,
35,
36,
45,
-12,
-83,
-36,
-13,
-22,
39,
16,
-32,
18,
-37,
22,
21,
15,
-50,
11,
41,
38,
0,
-18,
-33,
-7,
-15,
36,
21,
-3,
54,
9,
-15,
30,
-29,
43,
31,
-20,
-11,
-14,
-34,
-25,
-5,
-23,
-26,
0,
43,
-51,
51,
-17,
-16,
-13,
19,
-8,
54,
-41,
17,
40,
-11,
-72,
20,
-54,
-1,
39,
-17,
51,
-11,
56,
40,
0,
10,
-83,
-32,
-18,
-19,
34,
17,
-37,
-47,
-23,
9,
0,
-18,
-12,
32,
-54,
-7,
-34,
51,
-10,
-6,
19,
-13,
-9,
123,
21,
32,
24,
94,
-95,
49,
-39,
-9,
14,
18,
35,
-36,
5,
22,
21,
0,
0,
-38,
-2,
60,
-35,
28,
40,
5,
20,
16,
1,
51,
-13,
46,
2,
-5,
-16,
6,
37,
28,
-9,
-62,
4,
-14,
-17,
24,
-27,
28,
-2,
71,
3,
25,
77,
-3,
38,
104,
-15,
-34,
9,
-7,
-38,
43,
11,
-69,
29,
-23,
-16,
47,
4,
-36,
-71,
12,
61,
30,
-13,
-46,
-9,
6,
24,
-15,
27,
91,
4,
-33,
-74,
98,
77,
-13,
-47,
89,
-22,
2,
28,
54,
-4,
29,
22,
5,
22,
38,
-21,
-9,
43,
18,
-23,
-55,
12,
-20,
8,
26,
-61,
48,
-62,
-58,
15,
-14,
-53,
77,
11,
6,
39,
28,
-50,
34,
-4,
26,
-36,
-8,
-12,
85,
-36,
33,
-10,
67,
-12,
49,
1,
-16,
50,
-30,
-31,
12,
35,
34,
38,
27,
-4,
22,
-40,
12,
-34,
-11,
48,
9,
-60,
11,
30,
38,
-42,
-7,
-8,
-9,
59,
-38,
21,
-23,
26,
-25,
46,
49,
43,
-20,
-7,
-66,
-49,
32,
14,
-13,
8,
-43,
14,
-26,
20,
-16,
60,
-15,
74,
2,
-51,
-4,
34,
-56,
63,
-20,
27,
28,
-19,
33,
2,
-68,
-71,
28,
35,
-2,
-13,
-20,
44,
-18,
-37,
-26,
6,
58,
-66,
-5,
-52,
48,
17,
-4,
-37,
-15,
13,
-94,
-52,
-14,
-18,
-6,
-33,
-10,
-40,
-29,
-43,
31,
-30,
-25,
23,
-5,
-1,
-1,
15,
20,
-7,
-28,
-28,
29,
9,
-23,
0,
72,
-8,
6,
-7,
-52,
20,
40,
-51,
-47,
-54,
17,
-35,
85,
-20,
32,
-22,
25,
38,
12,
-5,
-64,
64,
-21,
36,
17,
-14,
-1,
5,
28,
71,
19,
8,
-15,
-77,
-67,
-7,
73,
24,
-62,
65,
36,
37,
-35,
-38,
-70,
18,
13,
-19,
-12,
61,
0,
-54,
15,
12,
-35,
-71,
-45,
13,
-19,
8,
18,
-34,
34,
57,
30,
32,
-9,
60,
-12,
5,
-51,
23,
-46,
21,
-21,
-39,
-67,
17,
36,
-14,
-30,
19,
7,
-17,
16,
-93,
22,
64,
29,
-18,
-19,
-6,
-24,
-47,
-2,
-69,
10,
37,
-42,
64,
5,
41,
-26,
-25,
18,
-31,
18,
25,
-54,
-17,
24,
-8,
44,
-17,
27,
0,
-6,
12,
-10,
12,
8,
46,
-11,
38,
44,
-10,
57,
-22,
-7,
-11,
-65,
0,
-24,
13,
-37,
-5,
-29,
-60,
1,
31,
-6,
-48,
-39,
3,
-28,
39,
-41,
-24,
8,
-81,
53,
0,
14,
3,
-39,
-17,
-50,
-10,
14,
-6,
-4,
-26,
-21,
-12,
10,
60,
-24,
0,
-24,
29,
27,
-1,
-2,
-47,
44,
13,
-47,
-17,
59,
-1,
26,
-35,
27,
20,
-43,
18,
-9,
2,
6,
47,
-37,
-8,
-38,
-28,
1,
29,
-12,
-72,
-20,
-25,
18,
-2,
7,
30,
0,
28,
29,
-25,
9,
44,
50,
5,
18,
-16,
8,
-13,
11,
-57,
-47,
29,
32,
-2,
54,
-39,
21,
-7,
-73,
2,
-42,
20,
57,
-3,
0,
-34,
47,
-68,
7,
13,
2,
-28,
7,
-16,
-45,
-18,
3,
35,
34,
2,
40,
-44,
-12,
59,
-56,
46,
-11,
-15,
41,
-15,
0,
60,
27,
41,
24,
-30,
1,
68,
-62,
38,
-28,
-21,
-50,
-30,
-52,
24,
10,
71,
24,
-2,
-16,
-20,
43,
-15,
-29,
-3,
24,
42,
53,
67,
-7,
35,
13,
-12,
-4,
-7,
51,
34,
-18,
9,
28,
-10,
36,
25,
53,
7,
-6,
26,
17,
-47,
-13,
-32,
0,
-23,
15,
38,
19,
0,
2,
25,
-29,
72,
63,
-18,
-12,
27,
-18,
28,
-22,
-22,
40,
44,
9,
-3,
-32,
11,
-47,
-47,
-23,
-47,
-42,
-59,
1,
23,
9,
-33,
6,
-32,
-56,
-100,
-46,
-4,
-25,
-5,
48,
-13,
11,
-7,
-34,
24,
50,
43
] |
MR. JUSTICE JOHN C. HARRISON
delivered the opinion of the court.
This is an appeal from summary judgment entered in favor of all defendants in a dental malpractice action in the district court, Yellowstone County.
Plaintiff Alan Llera brought action alleging malpractice resulting from an oral surgical procedure known as a partial glos-sectomy. Plaintiff alleges the malpractice occurred in the diagnosis of his problem and in the resultant operation. He alleges no informed consent was obtained nor were the risks and the alternatives to his tongue problem ever explained or discussed.
Plaintiff alleges Dr. Jon A. Jourdonnais, the referring dentist, gave Dr. Byron Wisner no referral information at the time; that Dr. Hurly, the admitting doctor at St. Vincent’s hospital found nothing wrong with his tongue but did find enlarged tonsils; that Dr. Hylton, the anesthesiologist and his agents were negligent in allowing the operation; that two nurses, D. Drake and M. Kemp, did not provide the proper care; and finally that St. Vincent’s Hospital failed to exercise the proper degree of care for plaintiff.
Plaintiff, a 20 year old man, went to see Dr. Jourdonnais, a Great Falls orthodontist, for treatment to reduce the gaps between his teeth. Dr. Jourdonnais, after treating plaintiff through the use of orthodontic appliances suspected that the space problem might be caused by what is known in the profession as “tongue thrust” which is an involuntary forward-thrusting movement of the tongue upon swallowing which forces the upper teeth apart. He discussed his conclusions with plaintiff and informed him of an operation that might help the problem. The doctor also informed plaintiff of a doctor in Billings, Montana who had special board certification as an oral surgeon, one Dr. Byron R. Wisner, who might perform the operation necessary to correct the tongue problem. Dr. Jourdonnais did not know Dr. Wisner personally, he had heard about him from another dentist. Plaintiff requested an appointment with Dr. Wisner in Billings.
Dr. Jourdonnais denied ever recommending an operation to plaintiff, but stated in his deposition that after discussing his diagnosis with plaintiff he merely made the appointment for him with Dr. Wisner. He sent Dr. Wisner his X-rays and a plastic mold of plaintiff’s teeth but did not send his written diagnosis. Neither did he tell Dr. Wisner of his diagnosis as “tongue thrust”.
Plaintiff’s appointment with Dr. Wisner was February 23, 1973, in Billings. Dr. Wisner’s diagnosis was “congenital macro-glassia” which in common terms is an oversized tongue. Dr. Wisner recommended surgery known as a partial glossectomy, which he performed on June 5, 1973 at St. Vincent’s Hospital in Billings. This operation consisted of removal of a wedged shaped piece of the tongue to reduce its size. Prior to the surgery and upon entrance into the hospital, plaintiff was examined by Dr. John Hurly, as required by the rules of the hospital for any patient who was to undergo surgery.
During surgery Dr. Wisner was assisted by a nurse,-M. Kemp, who was trained and employed by Dr. Wisner for oral surgery. The anesthesiologist and the anesthetist, Dr. Robert R. Hylton and J. McGarity, respectively, members of M.D. Anesthesia Services, assisted in the operation. One defendant, D. Drake was the circulating nurse and was an employee of St. Vincent’s. Plaintiff remained in the hospital five days before returning home to Great Falls. Although a schedule was set up for plaintiff to see Dr. Wisner after leaving the hospital, he returned only once, on July 20, 1973. In his deposition, Dr. Wisner testified that on that call plaintiff had no complaints. He also testified he did tell plaintiff there was a chance of some loss of tongue mobility, speech impairment, loss of taste, and possibly it might not cure his tongue thrust when he was informed by plaintiff that Dr. Jourdonnais had discussed the operation with him and he wanted the operation. However, Dr. Wisner did say he told plaintiff that it was a difficult procedure that should be done in the hospital. Plaintiff said his reason for wanting the operation was because of the spacing and flaring of his teeth and the operation might help remove the pressure on those teeth. While denied by plaintiff and his mother, Dr. Wisner stated in his deposition that she was in favor of her son having the operation.
During the one return visit to Dr. Wisner, no infection was noted in the tongue. On examination plaintiff also showed no taste nor sensory deficiency; the tongue had normal mobility and plaintiff could lick his lips.
The hospital records and depositions indicate that plaintiff lost from 1100 to 1500 cc of blood and that two blood transfusions were required. Plaintiff alleges that expert testimony would indicate that 200 to 300 cc is a normal loss in this type of operation and the loss of such a large amount is an evidentiary fact tending to prove the ultimate fact the operation was not performed properly.
Following the operation plaintiff returned to Great Falls and continued to have Dr. Jourdonnais do orthodontic work for him for some six months until plaintiff moved to Bozeman. Plaintiff stated in his deposition that when he went to see Dr. Wisner some six weeks after the operation his tongue was inflamed and that Dr. Wisner gave him some pills for the inflammation. Dr. Jourdonnais stated he had difficulty with plaintiff before and after the operation with plaintiff not keeping appointment dates, which interfered with his giving plaintiff constant care.
Some six months after the operation in Billings, plaintiff had his tonsils and adenoids removed in Great Falls by Dr. W. J. Roberts. In his deposition, Dr. Roberts stated that at the time of his removing the tonsils they were enlarged and infected and in his opinion this infection was chronic. However, he stated when he first examined plaintiff in October 1973, he found no acute infection. He further stated that while he doubted the tonsils would have interfered with the movement of plaintiff’s tongue, the recurring inflammation could cause the tongue to be sore.
Five issues are presented all directed to the granting of summary judgment to defendants. These issues can be summarized thus — Was summary judgment proper:
1) If there were genuine issues of fact as to any one or more of defendants?
2) Where plaintiff moved for a continuance to locate additional expert testimony?
3) Where there was expert testimony already before the court, or its equivalent?
4) As to any one or more, or all of defendants, as a matter of law as pertaining to any one or more of the three causes of action?
5) When defendants failed to comply with the notice requirements of Rule 56(c), M.R.Civ.P.?
We note here that plaintiff’s complaint against the defendants sets forth three causes of action, the first for lack of informed consent, the second for failure to use due care, (both sounding in tort); and the third against only defendant Wisner for breach of express warranty to obtain a specific result. Extensive discovery procedures followed the filing of the complaint, including seven depositions, several sets of interrogatories, numerous exhibits, and including articles from dental publications that considered the treatment of an “open bite” and “tongue thrust” condition.
We have carefully reviewed the posture of the cause at the time all defendants filed motions for summary judgment and at the time such motions were heard. We affirm such summary judgments as to six defendants without further discussion other than to note we find the record concerning these six totally fails to disclose genuine issues of material fact on any theory of pleading advanced by plaintiff. These six defendants are: Robert R. Hylton, M.D.; J. McGarity, C.R.N.A.; M.D. Anesthesia Services; M. Kemp, R.N.; D. Drake, R.N.; and Saint Vincent’s Hospital. See: Montana Deaconess Hospital v. Gratton, 169 Mont. 185, 545 P.2d 670; Collins v. Itoh, 160 Mont. 461, 503 P.2d 36; Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228; Davis v. Trobough, 139 Mont. 322, 363 P.2d 727.
The summary judgments granted Dr. Jourdonnais and Dr. Wisner, will be discussed individually.
As to Dr. Jourdonnais, the summary judgment resulted after no facts were developed that revealed any deviation from the established standards of treatment by orthodontists and after it was shown that no harm came to plaintiff resulting from the treatment by Dr. Jourdonnais. It is of import to note that the court did not grant this defendant’s motion for summary judgment until after plaintiff’s attorney told the court he could not produce any additional expert witness testimony against Jour-donnais other than that before the court.
The record is bare of any testimony of another orthodontist, dentist, medical doctor, or other expert that the professional service rendered plaintiff by this defendant was in any manner improper or negligent. In truth, plaintiff has no complaint as to the orthodontic work, but directs his complaints as to Jourdonnais’ diagnosis and his failure to warn plaintiff of the seriousness of the operation called a “partial glossectomy”.
Before the district court was the deposition of Dr. Morgan Allisbn, Ohio State University, an internationally recognized oral surgeon. His testimony shows clearly that there was no error in diagnosis by Dr. Jourdonnais and his treatment of plaintiff is a recognized and acceptable method of treatment.
Here we have a referring doctor being faulted on the referral, because plaintiff is dissatisfied. We find no case law cited by plaintiff or by our research of the question, that holds a recommendation of a physician to another will subject the latter to liability for the recommendation, absent a showing of partnership or employment or agency. The recommended physician is treated as an independent contractor, liable for his own torts. Graddy v. New York Medical College, 19 A.D.2d 426, 243 N.Y.S.2d 940; Oldis v. La Societe Francaise de Bienfaisance Mutuelle, 130 Cal.App.2d 461, 279 P.2d 184; Huber v. Protestant Deaconess Hospital Ass’n, 127 Ind.App. 565, 133 N.E.2d 864; Myers v. Holborn, 58 N.J.L. 193, 33 A. 389; 70 C.J.S. Physicians and Surgeons § 54(d), p. 978.
We do not find plaintiff’s allegation that defendant Jourdonnais was negligent due to the lack of informed consent supported by any evidence. Again we can find no case where liability for failure to inform is found against one other than the physician who undertakes the operation. Here, defendant Jourdonnais did not advise plaintiff on the surgical procedure because he did not have knowledge of it other than reading. He stated he explained to plaintiff that he knew of the procedure having been performed; he knew nothing about it; he did not recommend it; but if plaintiff felt his situation was serious enough in his own mind, and he wanted further information on the procedure, then he would put him in touch with Dr. Wisner. He told ‘plaintiff he would put him in touch with Dr. Wisner for information only. On this basis he contacted Dr. Wisner, made an appointment for plaintiff, and sent all his records to Dr. Wisner. The rule is that the physician who prepares to perform a medical or surgical procedure has the obligation to explain that procedure to the patient — not the referral doctor. Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617; Mitchell v. Robinson, (Mo.1960), 334 S.W.2d 11; Harwich v. Harris, (Fla.App., 1964), 166 So.2d 912.
The accépted view is that the sufficiency of the physician’s disclosure is a matter to be measured against acceptable medical practice. Plaintiff is required to produce expert testimony to establish a standard of medical practice and show defendant’s deviation from that standard. Zebarth v. Swedish Hospital Medical Center, 81 Wash.2d 12, 499 P.2d 1. The record presented to the district court in the instant case lacks any evidence of a standard for an orthodontist, or of one that refers patients to another specialist. The testimony of Dr. Schultz, an oral surgeon of Great Falls, does not supply the standard necessary to sustain plaintiff’s position here.
We find summary judgment proper as to defendant Jourdon-nais.
The general fact situation as it relates to Dr. Wisner has been heretofore set out. He is a board certified oral surgeon who before practicing in Billings, served a three year residency under Dr. Morgan Allison of Ohio State University. Dr. Allison in his deposition stated Dr. Wisner was fully qualified to perform the “partial glossectomy” and after reviewing all the depositions in this case, along with the records of the surgical procedure, he found no indication of any improper procedure on the part of Dr. Wisner in performing the operation.
With this background in mind, we review the background of this complaint. The operation was performed in June 1973. The complaint was filed March 5, 1975. Extensive discovery followed and the trial date of February 2, 1976 was continued to May 17, 1976 to complete such discovery. Motion for summary judgment was filed and served by defendant Wisner on May 7, 1976. After reviewing the depositions of Dr. Schultz and Dr. Jourdonnais, which showed that after examining plaintiff after his operation they found no residual damage or evidence to sustain the problems he complained of, the court granted the motion for summary judgment on May 17, 1976.
We note here that at the time of the hearing on summary judgment, the attorney for plaintiff did not object to notice on the hearing of less than the ten days allowed by statute, and admitted that “he had no qualified expert testimony other than the depositions which this Court has read”, all of which appears in the trial court’s judgment.
All parties to this action agree that four cases control the issues before us. Donathan v. McConnell, 121 Mont. 230, 193 P.2d 819; Negaard v. Feda, 152 Mont. 47, 446 P.2d 436; Montana Deaconess Hospital v. Gratton, 169 Mont. 185, 545 P.2d 670; Collins v. Itoh, 160 Mont. 461, 503 P.2d 36.
Donathan established that in Montana a dentist owes the same duty as a physician to his patient.
In Gratton this Court held summary judgment is proper:
* * if the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that- the moving party is entitled to judgment as a matter of law. * * *’ Rule 56(c), M.R.Civ.P.”
Also Gratton held that where no genuine issue of fact has been raised that the opposing party has the burden of presenting evidence of material and substantial nature raising such issue, noting that when plaintiff fails to do so, summary judgment must issue. The question of the establishment of a standard of care against which the acts or omissions could be measured to establish negligence is quoted from Evans v. Bernhard, 23 Ariz. App. 413, 533 P.2d 721, 723:
* * First, evidence must be presented to establish the applicable standard of medical practice in the particular type of case involved and second, it must also be shown that the doctor negligently departed from this recognized standard in his treatment of the plaintiff. In order to make this threshold breach of duty actionable, it must then be shown that the breach of duty was the legal cause of the plaintiff’s injuries. * * * The medical standard of care must be established by expert medical testimony unless the conduct complained of is readily ascertainable by a layman. * * * However, third party expert testimony is not always necessary as this standard can be established by the defendant doctor’s own testimony.’
Plaintiff in relying upon Donathan acknowledges that the rule established there controls this case. In a later case, Negaard the duties owed by a dentist were fully set forth, and those principles apply to the instant case.
At the time of the hearing on summary judgment, plaintiff here was in the same position as were the Grattons, appellants in Montana Deaconess Hospital in their appeal to this Court. Plaintiff complains of numerous factual issues principally relating to the diagnosis of his condition, the procedure used to correct it, and the treatment given him. If all the questions were resolved in his favor, he still could not prevail for he had no qualified expert testimony five days before trial date to show that defendant Wisner departed from the recognized standard of care in his treatment of plaintiff. The doctors he alleged as his experts were not “deposed” and several indicated no intent to travel to Billings to testify on May 17, 1976.
Plaintiff stated he intended to call, as experts, Drs. Baldwin and Roberts of Great Falls, however he previously admitted that Dr. Baldwin would not testify at trial or by deposition. So at the time of the summary judgment ruling, he was down to one possible witness Dr. W. J. Roberts, a physician whose testimony was to provide the standard of care for an oral surgeon. Dr. Roberts, a board certified ear, nose and throat specialist, under the standard set by this Court in Collins, could not qualify as an expert against Dr. Wisner as to the standard of care that is usually exercised by an oral surgeon. This is true too as to his testimony about the fact the tonsils created an infected area in the oral cavity that could have caused an infection to the tongue. This Court in Gratton noted:
“The presence of an infection following an operation or open reduction of a fracture does not establish negligence. [Citing cases].”
According to his deposition, Dr. Roberts knew nothing about, a partial glossectomy until after he examined plaintiff before removing his tonsils and the only knowledge he had was gained thereafter after discussing the procedure with oral surgeons in Great Falls.
Plaintiff claims “lack of informed consent”. There was nothing before the trial court in way of deposition or other documents which set forth the standard of dental care required of dentists in informing their patients with respect to risks that might result from the performance of an operation such as performed on plaintiff. No showing was made with respect to disclosure required of a dental practitioner prior to the performance of a partial glossectomy. In so far as could be determined, this may have been the first such operation in this area. Plaintiff recognizes that under Negaard expert testimony is required to establish the “informed consent” doctrine, but argues he has carried that burden of proof in the depositions of Jourdonnais, Wisner, Schultz, Roberts and Allison. As previously noted, these depositions do not present the necessary testimony from any qualified expert that establishes such standard.
We next consider the blood loss issue. We find no testimony showing the loss of blood during the operation could result in plaintiff’s alleged residual complications. Dr. Morgan Allison, defendant’s expert, testified in his deposition that this was unusual bleeding for the partial glossectomy but went on to state that plaintiff did not suffer any complications from this loss because of the transfusions he received. We find no testimony of any of those deposed alleging plaintiff suffered any compensable damage or complication resulting from an abnormal loss of blood.
Next we consider plaintiff’s allegations the operation was unnecessary and unwarranted. The record is devoid of any testimony supporting these allegations. Some doctors might have proceeded with a different treatment before resorting to the sur gery, but none testified that it was unnecessary or unwarranted. The choice was one of medical or dental judgment.
Plaintiff argues this Court’s holding in Baylor v. Jacobson, 170 Mont. 234, 552 P.2d 55, is authority to allow him to go to the jury. He alleges there was expert testimony or its equivalent in the record indicating the operation should be performed only after “everything else fails” and that the operation should not have been performed at all in this case. We do not agree. In Baylor the majority found an offer of proof of the required standard of care and the defendant’s breach thereof in the medical testimony of a Dr. Robert Tuby whose identity the plaintiff revealed in an amended answer, filed a day after the summary judgment. Here, no expert medical testimony is available to es-. tablish any general issue of material fact concerning the required standard of care Dr. Wisner allegedly deviated from.
In plaintiff’s' complaint, as a third cause of action he alleged he agreed to pay defendant Dr. Wisner $283.20, as consideration for his promise, warranty and performance of the operation. He alleges defendant breached this warranty, but plaintiff shows no reliance on same. The record indicates the amount plaintiff paid for thé surgical procedure (the operation) but shows no warranty. While it is the law of Montana that if the contract was merely that defendant was to perform a surgical operation, then the law requires that the defendant possess the skill and learning possessed by the average member of his profession in the community and to use those skills and learning in a reasonable and prudent manner. He does not become a guarantor of the results of such operation.
We find summary judgment proper as to defendant Wisner.
Plaintiff raises for the first time on appeal the failure to give at least ten days notice of time fixed for hearing the motions on summary judgments as required by Rule 56(c), M.R.Civ. P. However, plaintiff fails to recognize that he must timely object to the rule requirement. Failure to do so waives the defect. 10 Wright & Miller, Federal Practice and Procedure: Civil § 2719, p. 451; 6 Moore’s Federal Practice ¶56.14[1], p. 56-357. Also, plaintiff failed to raise his objection before the trial court. An objection raised for the first time on appeal is not timely and will not be considered by this Court. Berdine v. Sanders County, 164 Mont. 206, 520 P.2d 650; Carpenter v. Free, 138 Mont. 552, 357 P.2d 882. See also: Rule 61, M.R.Civ.P.
The orders of the district court-granting summary judgments are affirmed.
MR. CHIEF JUSTICE JAMES T. HARRISON, MR. JUSTICES HASWELL, J., and JACK L. GREEN, sitting for Justice Castles, concur.
|
[
-4,
22,
-73,
12,
9,
-42,
38,
15,
0,
8,
35,
-9,
61,
-22,
-32,
1,
-21,
-50,
30,
-22,
8,
-24,
-42,
-5,
27,
-6,
69,
-1,
7,
-8,
14,
43,
30,
0,
-55,
38,
47,
9,
-10,
-3,
79,
39,
4,
-3,
34,
43,
16,
-30,
23,
0,
51,
17,
-23,
-11,
-4,
-3,
117,
21,
-68,
-36,
-15,
37,
47,
58,
54,
12,
7,
57,
14,
13,
-39,
-22,
17,
-20,
13,
-40,
0,
-31,
-11,
55,
9,
2,
32,
20,
-4,
17,
63,
23,
12,
-4,
-18,
-37,
-20,
-60,
-22,
19,
-44,
-41,
18,
2,
-48,
28,
-14,
37,
23,
-31,
3,
-34,
68,
20,
-63,
21,
-21,
-39,
-1,
18,
12,
59,
39,
-5,
-64,
14,
-7,
28,
46,
29,
16,
13,
-12,
-32,
5,
-13,
-19,
7,
-1,
23,
-50,
-8,
45,
62,
5,
43,
44,
61,
30,
14,
-4,
-62,
31,
-15,
30,
-18,
-7,
15,
-5,
45,
-24,
-5,
10,
-37,
58,
-18,
-44,
36,
-3,
1,
29,
35,
91,
49,
25,
5,
12,
-64,
-12,
44,
-30,
-31,
-43,
-8,
18,
32,
56,
-34,
20,
-53,
36,
-49,
15,
-29,
-66,
-5,
-13,
-18,
-38,
6,
42,
7,
32,
-7,
35,
32,
7,
-8,
40,
25,
-18,
-49,
62,
64,
-21,
63,
22,
-10,
22,
-31,
54,
-18,
-33,
-36,
11,
28,
6,
-22,
-33,
24,
0,
-3,
-12,
-47,
-21,
37,
14,
10,
2,
-6,
-19,
17,
15,
-16,
-17,
2,
20,
5,
-20,
5,
-84,
-31,
-34,
-14,
-5,
39,
-4,
18,
-65,
-26,
35,
-17,
-37,
-28,
14,
2,
17,
1,
-20,
-39,
-11,
0,
45,
-35,
-96,
34,
5,
-52,
-23,
-35,
-18,
-42,
-4,
47,
33,
-6,
-58,
10,
5,
11,
47,
1,
-26,
16,
-4,
-16,
-11,
-64,
-9,
14,
-16,
-1,
-11,
-51,
73,
-56,
51,
42,
-53,
-4,
-31,
-5,
29,
46,
-4,
-1,
-54,
59,
44,
-35,
-77,
19,
-27,
-47,
-3,
65,
-27,
-44,
-30,
3,
-13,
-26,
-42,
0,
-1,
25,
-36,
60,
55,
-39,
43,
-36,
-13,
-25,
33,
-2,
-17,
0,
12,
24,
4,
41,
2,
-1,
-2,
38,
64,
-5,
-47,
29,
0,
-21,
-16,
-8,
7,
-40,
20,
-33,
-49,
12,
-9,
41,
-19,
53,
-87,
-35,
0,
-16,
-65,
-21,
3,
6,
-40,
28,
-6,
8,
43,
12,
-1,
24,
-14,
52,
23,
-41,
-31,
-46,
70,
71,
25,
13,
-17,
6,
-4,
-61,
42,
29,
43,
-13,
0,
-1,
10,
-15,
-5,
-16,
15,
-24,
4,
-46,
19,
-26,
30,
17,
-25,
0,
-41,
61,
-88,
-7,
61,
-29,
8,
23,
-44,
18,
23,
26,
-19,
-4,
42,
-8,
-50,
32,
8,
-3,
-45,
-32,
-64,
-8,
33,
2,
13,
53,
37,
77,
39,
42,
17,
11,
-10,
0,
0,
-27,
8,
21,
-63,
13,
-21,
-67,
5,
-11,
66,
-69,
-23,
-31,
-4,
23,
21,
24,
18,
21,
-63,
42,
-77,
-55,
-5,
-32,
32,
-12,
27,
67,
-47,
16,
-7,
-6,
-21,
10,
39,
-25,
-40,
-40,
7,
9,
4,
-19,
-30,
-44,
-29,
-2,
28,
-20,
37,
14,
24,
-7,
-45,
14,
30,
-44,
-53,
-2,
-11,
-14,
-36,
45,
-36,
5,
-19,
-1,
-69,
-8,
-46,
16,
45,
-75,
-50,
25,
-2,
-6,
13,
-15,
14,
-41,
-4,
-35,
7,
-45,
28,
-41,
46,
-28,
17,
63,
105,
-1,
23,
29,
38,
5,
-17,
48,
26,
2,
-3,
-6,
19,
49,
-17,
1,
32,
64,
-9,
-95,
22,
-13,
-71,
44,
-72,
4,
-14,
-38,
-18,
-19,
-13,
-55,
-35,
-29,
2,
-59,
-39,
10,
70,
-44,
-16,
1,
-57,
-10,
42,
18,
-12,
42,
-9,
-8,
-6,
-8,
-24,
28,
33,
-10,
-20,
22,
-23,
16,
58,
2,
-3,
24,
0,
-53,
-24,
-25,
16,
-15,
44,
22,
15,
0,
10,
-47,
28,
29,
-42,
-34,
-24,
-104,
-29,
22,
-56,
-63,
37,
-3,
-35,
35,
-4,
9,
41,
7,
21,
10,
16,
11,
50,
-14,
-26,
30,
55,
13,
-8,
-22,
-27,
35,
49,
-30,
-8,
5,
16,
4,
-18,
-11,
-43,
46,
-10,
12,
-1,
33,
0,
46,
18,
44,
53,
-94,
40,
27,
47,
-55,
-4,
-20,
93,
7,
-48,
32,
-30,
-18,
73,
6,
15,
45,
29,
-29,
32,
-3,
23,
19,
-12,
3,
7,
-16,
-22,
-7,
35,
22,
-29,
-23,
-75,
0,
30,
4,
-65,
60,
24,
-7,
6,
-4,
12,
-45,
-22,
-51,
-41,
2,
27,
-16,
-67,
18,
-29,
0,
-20,
-11,
97,
68,
-18,
-26,
43,
-1,
-33,
10,
48,
25,
-40,
44,
-24,
-21,
25,
42,
-25,
-76,
-35,
64,
-30,
-27,
-10,
-37,
11,
-13,
-6,
35,
21,
21,
5,
-23,
-52,
-36,
38,
36,
-84,
-22,
-11,
18,
36,
-28,
-35,
-41,
-37,
-17,
-40,
-10,
-9,
3,
-35,
5,
-27,
-20,
1,
72,
19,
27,
13,
-11,
19,
-17,
16,
-35,
-21,
-11,
-44,
-14,
4,
12,
57,
69,
-18,
-21,
-7,
-5,
47,
26,
-30,
-12,
66,
-16,
24,
-43,
-45,
-12,
-17,
-16,
14,
-20,
-35,
48,
65,
-27,
-20,
-3,
-10,
-6,
-56,
3,
23,
4,
-9,
-16,
6,
-23,
-23,
20,
-14,
69,
-9,
0,
51,
-51,
35,
-53,
50,
8,
-10,
0,
59,
17,
36,
-2,
-2,
-71,
-31,
37,
1,
-3,
-22,
14,
-4,
8,
43,
-23,
-6,
-1,
-2,
-40,
-12,
15,
-40,
30,
31,
-43,
9,
-14,
63,
-3,
-37,
-32,
-5,
-52,
-32,
29,
42,
6,
-23,
-34,
14,
-12,
27,
27,
-74,
47,
-14,
31,
-30,
-21,
16,
-15,
-50,
-7,
60,
24,
8,
0,
-44,
20,
3,
-9,
-59,
20,
12,
47,
-35,
12,
21,
44,
21,
-39,
-9,
-13,
-37,
-4,
-16,
25,
27,
35,
4,
-19,
16,
0,
55,
27,
-48,
8,
35,
-1,
84,
2,
19,
22,
-2,
-47,
3,
31,
11,
27,
-45,
21,
-13,
33,
40,
-42,
-16,
22,
-44,
15,
-30,
-19,
-47,
18,
21,
3,
100,
21,
11,
37,
-74,
-49,
-40,
-14,
-39,
-23,
49,
3,
-67,
-10,
-48,
36,
-52,
-2,
-37,
-50,
21,
-14,
-2,
0,
-66,
-26,
53,
4,
15,
-106,
19,
-10,
-34,
43,
0,
34,
-10,
29,
-1,
-21,
28,
34,
50,
9,
-17,
-70,
-18,
-12,
-23,
-29,
39,
4,
-54,
10,
44,
12
] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
The defendant was convicted of murder in the first degree and ■sentenced to undergo punishment by confinement in the state prison for life. He has appealed from the judgment and an order denying him a new trial. Two contentions are made in his behalf, viz.: That the evidence is insufficient to justify the verdict, and that the verdict is contrary to law.
The evidence is entirely circumstantial. The defendant at the time of the homicide was residing alone in a cabin a few miles northeast of the village of Giltedge, in Fergus county. He was the owner of cattle which ranged over the mountains to the north and west. The Spotted Horse and Cumberland mines are about two miles to the northwest of defendant’s home. The village of Maiden is to the west and some distance farther, so that its position with reference to Giltedge is northwest, and with reference to these mines southwest. The road from Giltedge to Maiden winds for a distance to the northwest through Maiden canyon, and then turns west. From this point a branch road leads northward up the canyon to the Spotted Horse mine, thence to the Cumberland, half a mile farther, and thence north over a low divide connecting with another road coming from the northeast, called the Ft. Maginnis road. On the right to one going up the canyon, about 700 feet directly east from the point where the road turns west to Maiden, and about 250 feet above the level of the road, in an open park, is situated the Hertford quartz claim, belonging to one Mellor. The ascent in that direction is precipitous and covered with timber. A person at work on the claim cannot be seen by one passing along the canyon nearer than from a point about 2,500 feet in the direction of Giltedge. The deceased, Thomas Burke, was a miner, and occupied alone a cabin in the canyon near the road leading to the Spotted Horse mine. The cabin is on a direct line between the mine boarding-house and the Hertford claim, about 700 feet from the former and 1,000 from the latter. The Cumberland boarding-house is several hundred feet to the northwest beyond the Spotted Horse boarding-house. The Hertford claim is not visible from any of these points. From it the surface of the country first ascends rapidly for somewhat more than a mile to the northeast and east, and then gradually descends to the level of the Ft. Maginnis road on the north and toward the home of the defendant to the east. It is rough and precipitous, so that in order to conveniently reach the Hertford claim from the home of defendant, either on foot or horseback, it is necessary to travel three or four miles around the base of the mountain toward the south and approach it by the road from Giltedge, or to go northward to the Ft. Maginnis road and come into Maiden canyon from the north over the divide, traveling about the same distance. One witness stated that the claim might be reached from defendant’s place by going directly across the mountain on horseback.
This brief description of the locality where the homicide occurred and the surroundings is necessary to an understanding of the evidence, of which the following is a summary:
On June 28, 1910, Thomas Burke was in the employ of Mellor, and engaged in doing discovery work on the Hertford claim. Its location seems not to have been completed. He was seen to leave his cabin with his lunch bucket about 8 o ’clock in the morning, taking the trail along the eastern wall of the canyon leading up to the claim. This was the last time he was seen alive by any witness. About 11 o’clock in the forenoon he fired a blast, the report of which was heard by several witnesses at the Spotted Horse and Cumberland mines. About 3 o’clock in the afternoon another report was heard in the direction of the claim, which, in the opinion of these witnesses, was made by the discharge of a shotgun. Mellor was in the employ of the Cumberland Mining Company. He went to the cabin of Burke on the evening of the 28th, but found no one there. He returned the following evening, and, finding no one there, wrote a note to deceased and left it for him. Later the same evening he again returned, and, finding that the deceased was still absent, went to the claim in search of him, thinking he might have been injured. On arriving there in the dusk, he found the body of the deceased lying face downward in an open cut in which he had been at work. He at once notified the sheriff and coroner. An examination made of the body the next morning revealed the fact that the deceased had been killed by a discharge of what appeared to be six buckshot, fired into his breast from the right and somewhat above and from a short distance, and that they all entered within a space of three inches square, tearing his heart into shreds. The nature of the wound and the position of the body indicated that he had probably been called by the assassin and shot down as he turned to answer. There was no evidence of a struggle. The lunch bucket was found empty. The surroundings indicated that the deceased had fired a blast, and that at the time he was killed he was engaged in shoveling the debris out upon the lips of the cut. Leading from the cut to a small tree below and toward the road were found the tracks of a man, and below the tree along the slope was the track of a small horse, which in the opinion of a witness was not very old, though he did not notice it closely enough to determine whether it was old or new. These led down toward the road in the canyon. On the 1st or 2d of July a deputy sheriff examined the ground in the vicinity. In a small park hidden in the timber across the road in the canyon he found a faint trail in the grass which appeared to have been made by someone going in and returning. On the left lip of the cut and toward the face of it there was picked up an ordinary twelve-gauge felt shotgun wad. This bore on one side the marks of buckshot. A day or two afterward a twelve-gauge cardboard shotgun wad was found in the loose dirt in the cut. It was of a pink or yellow color on one side and white on the other. It was shown that in addition to felt wads a wad similar in color and material is used by the manufacturer in loading what is known to sportsmen and the trade as “Peter’s Ideal shells.” It is placed over the shot. The pink or yellow color is the same as that of the outside covering of a Peter’s Ideal shell, no other manufacturer using it. On one side of 'the wad found were marks of small shot. Five shots were taken from the body, and upon examination some of them appeared to have been whittled down to make them chamber in a twelve-gauge shell.
The defendant was arrested upon a charge of murder on July 6. At his house was found, among his other weapons, a twelve-gauge double-barreled shotgun. The firing apparatus of the right barrel was out of repair. In the opinion of witnesses who examined it then, the left barrel had been recently fired, and streaks along the bore indicated that the last charge fired from it had consisted of buckshot or other large shot. Scattered about the premises outside the cabin were found several exploded Peter’s Ideal shells, all twelve-gauge in size. The following conversation occurred between him and the sheriff at the time of his arrest: “Q. You were here the other day, wasn’t you? A. No; I was over this way, but I was not here. Q. I heard you were here. I thought you were looking for me. I guess they haven’t got much evidence against me, have they?” Questioned as to his whereabouts on June 28, he did not give a definite answer. He remarked that he had heard someone telling that he had been at G-iltedge trying to buy buckshot. On the evening of June 14 he was at Lewistown in company with the witness Lang-doc. The two went to a restaurant to eat. On the way the defendant asked the witness if he could shoot coyotes with buckshot. The witness replied: “Yes; if you are close enough.” Defendant then said: “Well, I believe I will go to the hardware [store] and get some.” The witness stated that defendant then started toward the Judith Hardware Company’s store, but found the door locked. The next day a man called at the store and purchased two pounds of buckshot of different sizes mixed. The identification of this man as the defendant rests upon the testimony of the salesman, which is as follows: “ Q. Ask you to state whether or not it was to him [defendant] the sale was made. A. I cannot say definitely. Q. Well, say to the best of your judgment. A. Why, to the best of my judgment it is the gentleman. Q. And where did you next see the gentleman to whom you sold the shot? A. At the time I came with the sheriff up to his residence.” At another place in his testimony he stated that he had described the purchaser of the shot to the sheriff, and that his description “tallied very good with Mr. Suitor. * * * Well, he struck me as being a peculiar appearing and a typical western man.” He could not describe the defendant’s clothing further than to say that the hat he had on at that time seemed the same he had when arrested, “rather a western style of hat.” This witness had accompanied the sheriff at the time the arrest was made. At the preliminary hearing he had testified that he recognized the defendant by his beard, his movements, and his voice. This was the only witness, other than Langdoc, who testified concerning the purchase of the buckshot, or who spoke as to the identity of the defendant as the purchaser. The evidence is not definite as to what sizes were included in the lot, but it appears that there were probably some of sizes Nos. 3, 4, and 5, and perhaps 6. Nos. 5 and 6 chamber in a twelve-gauge shell, but No. 4 will not. Three of the shot taken from the body of de ceased weighed less than either No. 4, 5, or 6, and are referred to by one witness as Nos. 2, 3, and 4. A fourth weighed considerably heavier than any of the sizes mentioned. On the day of defendant ’s arrest and afterward on two different occasions, his house and premises were searched minutely. Besides the exploded shells already mentioned others were found scattered about. All bore evidence of having been exploded some time before. Among the ashes in the cooking stove, which was apparently also used for heating purposes, there was found the brass butt of a Peter’s Ideal shell which had been burned. That it had been exploded was apparent from the condition of the fuse. The point of the left firing-pin of defendant’s gun, either because of the shape of it or because it did not strike true, marked the fuse of a shell exploded by it at one side. Many of the shells found, including the one burned, bore this mark. There were found on a shelf near the stove a twelve-gauge gun wad and two paper wad covers. No buckshot were found nor any loaded shotgun shells, though there were cartridges for the other weapons — two rifles and an automatic pistol. Defendant usually wore a black hat. At about 11:30 on the morning of June 28 the same witness who had seen the deceased leave his cabin for work observed a man following the trail taken by deceased toward the Hertford claim. He wore a black hat, but no coat. His shirt was of a light color. The witness could not recognize him. He was carrying something which witness thought was a gun. In traveling over the range to look after his cattle, the defendant would sometimes go on horseback, but frequently walked. The horse he rode was of a dark color and traveled slowly. About 4 o’clock in the afternoon of June 28 a man dressed in dark clothes and hat was observed at the mouth of Maiden canyon on a dark horse proceeding along the road from the direction of Maiden in the general direction of the cabin of defendant. The road he was traveling turns east out of the road leading from Maiden to Giltedge through a deserted ranch, and theretofore had generally been used by defendant to reach his cabin from the direction of Maiden, though it was sometimes traveled by others, both on foot and on horseback. This witness was about 2,000 feet from the horseman. He did not undertake to identify him, nor did he observe where he went. The deceased was the owner of some mining claims to the north or northwest of defendant’s place, in or near what is called “Collar Gulch.” In order to reach them, he would go from his cabin northward over the divide, and thence eastward in the direction in which the Ft. Maginnis road leads. On June 27 the defendant was seen by a witness named McIntyre hurrying on foot from the direction of Collar Gulch toward his home. When he saw the witness approaching him, according to the statement of the witness, he got off the road into the brush. He was carrying a shotgun. The same witness stated that he had seen defendant frequently there before that day. He also saw him on horseback near the same place afterward but he then had no weapon. In September, 1909, the defendant procured the arrest of deceased in peace proceedings. The deceased could not furnish bond, and was detained in jail thereafter in default of bond, until March 7, 1910, when he was released. The nature of the difficulty between the defendant and deceased does not appear. On June 10, 1910, the defendant had a conversation with a witness near Giltedge. He inquired of witness whether the deceased had been trying to obtain from the sheriff some hounds, and why he wanted them. The witness replied that the deceased was afraid of defendant, and wanted the hounds to protect him at night. Defendant then said: ‘ ‘ The d-fool. If I wanted him, I could get him without going to the cabin.” He also remarked that the deceased was getting crazy because he himself had had a conversation with him, and that he had said that he would not fight because he was under bonds, but that when the time was up he would settle with defendant. On June 29, in a saloon at Gilt-edge, he invited several persons present there to drink, remarking: “Well, come on boys. Might as well have a drink. I have only got sixty days more to live, and Burke is going to kill me. ’ ’ He stated to a witness at Giltedge a day or two afterward that he expected to be arrested upon a charge of murdering deceased, the witness having told him about the evidence which had been gathered against him. Several witnesses testified that the recoil of a shotgun upon a discharge of buckshot is much greater than from a discharge of small shot, resulting frequently in a bruise upon the muscles of the arm and shoulder. On July 11 the pen-son of defendant was examined by the sheriff at the jail in Lewistown. A discoloration like a healing bruise was found on the muscle of his right shoulder. Defendant was in the habit of shooting from his right shoulder. On July 7 the defendant’s saddle-horse was examined by the sheriff and others. His legs were chafed and sore. In the opinion of one witness this condition was due to his “fighting hobbles,” which the defendant had put upon him some two or three weeks before.
The foregoing is gathered from the statements of witnesses introduced by the state. The defendant offered himself as a witness. He did not .controvert seriously any statement of fact made by any witness, except that he denied that he had made any inquiry about buckshot or had purchased any at the time or place mentioned by any of them, or elsewhere, and also that there was any mark or bruise upon his shoulder. He admitted that he had purchased buckshot, but not within two or three years. • He admitted, or did not deny, the conversations had with several witnesses about the deceased and also with the sheriff at the time -of his arrest. He offered the explanation, however, that he had heard he was suspected of the murder because of the strained relations existing between him and the deceased. He stated that he was present at his home during the whole day of June 28, engaged in making preparations for hay harvest, explaining that he did not give the sheriff a definite answer at the time of his arrest by saying that he did not then remember his whereabouts, but that, after thinking over the matter, he had become satisfied that he had not left his place on that day, stating particularly what he was doing. It appears from his own testimony and that of other witnesses examined in his behalf, and upon this point there is no controversy, that he was in the habit almost daily of looking over the range for his cattle which ranged mainly to the north of Maiden and the Spotted Horse and Cumberland mines, and that it was not an unusual thing for him to walk. He usually carried a gun of some sort to shoot coyotes, which killed many of his calves. He stated that he preferred to walk because it hurt him to ride. Touching the shells found about the cabin, he stated that he had had no loaded shells for some time; that he knew nothing about the remnant of the shell found in the stove; that he sometimes changed shot in shells from smaller to a larger size; that he would pick up and preserve for use in this connection wads when he found them dropped about the place as he fired his gun from time to time, but that he did not reload any shells. He explains the presence of the remnant of the shell in the stove by saying that he was in the habit of raking up chips where he chopped his wood, using them to light his fire, and that he had probably at some time accidentally gathered with them an exploded shell. He admitted that he had seen McIntyre near the mouth of Collar Gulch on June 27. He denied, however, that he had left the road to avoid a meeting, and said he had taken a cut-off trail leading through the brush to his home by a shorter route. It appears from McIntyre’s own statement that the two were not on friendly terms. He testified that he did not own a light shirt at all, and never wore one. The evidence is silent as to whether such a garment was found in his cabin. He was in Lewistown on June 14 and 15. It appears from his own statement and those of several other witnesses that he was then clean shaven. He denied that he was at the store of the Judith Hardware Company at all while he was in Lewis-town. His saddle-horse was shown to be very gentle, requiring neither hobbles nor picket rope because it would permit anyone to approach it. The condition of its legs when seen by the sheriff was accounted for by the statement that on July 4 there had been a severe hail-storm, and that in drifting before the storm the horse had run into a barb-wire fence, and hurt himself. He stated that he did not know anything about the whereabouts of the deceased on June 28 or anything of the discovery of the Hertford claim, other than what he had heard in the testimony of witnesses at the trial. At the time of the homicide he was fifty-nine years of age. He had been a resident of Fergus county since 1881, and had resided where he now lives for ten years. One other item of evidence which we omitted to state in its proper place we add here. The physician who examined the body of deceased on July 30 stated-that in his opinion death had occurred from twenty-four to forty-eight hours prior to the examination.
In summarizing the evidence we have observed the rule that every conflict in the statements of witnesses as to any material fact must be resolved in favor of the finding of the jury. That the deceased was foully murdered on the afternoon of the day he was seen going to his work at the Hertford claim, there is no room for doubt. Do the circumstances point out the defendant as the murderer so clearly as to exclude all reasonable doubt of his guilt? This question must be answered in the negative, unless the circumstances can bear the test required by the rule applicable to cases where a conviction is sought upon circumstantial evidence, to-wit: That all the circumstances proved must be consistent with each other and with the hypothesis that the accused is guilty, and at the same time inconsistent with any other rational hypothesis. (State v. Allen, 34 Mont. 403, 87 Pac. 177; State v. Northern Pacific Ry. Co., 41 Mont. 557, 111 Pac. 141; Smith v. State, 61 Neb. 296, 85 N. W. 49; Lancaster v. State, 91 Tenn. 267, 18 S. W. 777; State v. Asbell, 57 Kan. 398, 46 Pac. 770; Bryant v. State, 116 Ala. 445, 23 South. 40; 12 Cyc. 488.)
The theory of counsel for the state is that the defendant, being on unfriendly terms with the deceased, crept upon him while he was at work, and shot him, having previously extracted a charge of birdshot from a Peter’s Ideal shell, and replaced it with buckshot specially for this purpose. This inference they draw from circumstances which they insist are fully established, viz.: That the defendant had buckshot in his possession on June 15; that exploded Peter’s Ideal shells were found about his cabin; that such wads as are used in loading them were found near the body of the deceased; that there were on one of these impressions of buckshot and upon the other of smaller shot; that the burned butt of such a shell was found in the ashes of defendant’s stove, bearing indications that it had been exploded by defendant’s gun; that a loose wad and two remnants were found in the cabin; that the gun had recently been fired, and that streaks in the bore indicated that the last charge fired from it consisted of buckshot; that several days afterward the shoulder of defendant was bruised as if by the recoil of a gun, and that he was seen to go toward the Hertford claim on the morning of the day of the murder, and late in the afternoon was seen returning to his home from that direction. Of course, if all of these facts were clearly established, there would be ground for the conclusion reached by the jury; but when we subject the evidence to analysis it is not sufficient, to say the most, to warrant any conclusion other than that there is a strong suspicion that the defendant is guilty. No attempt was made by the witness who saw the man ascending the wall of the canyon toward the place of the homicide to identify him as the defendant. The facts observed as to the clothing and movements of this man do not tend to identify him as the defendant. He was then only a few hundred feet away from the Hertford claim. If he was the assassin, he was at that time evidently on his way to the place of his intended crime, in plain view of any person who happened to be on the road or about the mines to the north. Moreover, he must have remained in the vicinity for about four hours lying in wait. He was on foot, wearing a light shirt, evidently in his shirt sleeves, while the unidentified man seen going toward defendant’s home in the afternoon was dressed in dark clothes and was on horseback. It may be noted here, -also, that the witness who observed this man failed to state whether he had a weapon. From the presence of the horse and man tracks leading away from near where the body lay, and the faint trail found in the park to the west of the canyon road, counsel insist, also, that the inference should be drawn that the defendant, having come on horseback, hobbled his horse in the park, and went up on foot to the Hertford claim from the west. Assuming that the person seen in each instance was the defendant, we have him appearing first from the north on foot, without any effort of concealment, and then from the west with every effort to avoid being seen. In the meantime he had changed his clothes and obtained a horse. These circumstances, shown to furnish a basis for the inference that the defendant was in proximity to the place about the time the crime was committed, are inconsistent with each other. If the identification had been made by substantial evidence in either case, then the burden might have been upon the defendant to offer evidence to explain his presence there at that time. As it is, there is no basis in this feature of the evidence for the conclusion that the defendant's statement that he was at home during the whole of June 28 is untrue.
Nor do we think that, if it be assumed that the defendant purchased buckshot in Lewistown on June 15, the finding of the gun wads near the body, though they bore the marks they did, should impel a reasonable person to the conclusion that defendant fired the shot. It is not specially significant that exploded shells were found about his cabin.' Such as were found had been exploded long before June 28. It is not likely that having in his possession a single unused shell and at the same time other weapons which would have answered his purpose just as well, together with an ample supply of ammunition for them, he went to the trouble of loading it with buckshot in order to commit the murder, and then taking the precaution to conceal it by burning in the stove. It is true that this may have been done, but that it was done is a speculative conclusion, rather than a legitimate inference to be drawn from the facts established by the evidence.
The testimony of the salesman as to the identity of the man who purchased the shot on June 15 is exceedingly vague and indefinite. He stated substantially that he could not say whether the defendant was the same man, and, though he afterward said that according to his best judgment he was, the features by which he fixed the identity at the trial differed substantially from those upon which recognition was based at the coroner’s inquest. So that, though the testimony of Langdoc be accepted as true, as to the conversation had with defendant on the evening of June 14. the conclusion that the defendant was the purchaser rests upon very unsubstantial evidence. The same may be said of the streaks observed in the bore of the gun.
So, too, the evidence relied on to supply the motive for the murder is of little, if any, criminatory value. The fact that the defendant had the deceased arrested and confined in peace pro ceedings of itself tends to show the absence of motive. By this act be demonstrated tbat at that time he was not disposed to take the law in his own hands. He proceeded under the statute to prevent the deceased from carrying out threats of violence which he had evidently theretofore made. (Rev. Codes, sec. 8941 et seq.) This would seem to indicate a disposition on his part not to offer the deceased any personal violence. There is not a syllable of evidence tending to show animosity retained by the defendant toward the deceased, nor that the defendant at any time made any threats or expressed any ill-will toward him, nor that he feared personal violence from the deceased after his release from jail. "What motive, then, prompted the defendant to commit the crime ? This inquiry cannot be answered from the evidence. It is not indispensable that a motive be shown if the facts otherwise tend to show that the crime has been committed ; but its presence or absence is always more or less significant in the light of the facts of the particular ease. (State v. Lucey, 24 Mont. 295, 61 Pac. 994.) The absence of it is of special significance in a ease like the present, where the- conclusion of guilt, if sustained at all, must be sustained upon the statements of witnesses the truth of which is in many instances doubtful, and remote inferences the correctness of which is open to serious question.
The conversations had with the sheriff at the time of the arrest and a few days before with another witness at Giltedge are not, in view of the circumstances, to be construed as implied admissions of guilt. Before the defendant made the statement attributed to him at Giltedge, the witness had told him of the evidence obtained against him, and that he was suspected. Evidently the defendant had this in mind at the time he was arrested, and hence the question to the sheriff as to the amount of evidence the authorities had against him. Nor, in view of the habits of defendant, is any weight to be attached to the testimony of McIntyre as tending to show that defendant was lying in wait for deceased in the neighborhood of Collar Gulch on June 27.
Assuming that the shoulder of defendant bore the mark of a healing bruise at the time of his arrest, it is not reasonable to suppose that a single discharge of an ordinary sportsman’s shell, even though loaded with buckshot, would produce such an effect. This is contrary to common experience. But, assuming this to be true, the fact that the bruise was there is as consistent with the notion that it was produced by some other cause as it is that it was produced by the shot that killed deceased. The conversation had with a witness in relation to deceased and the hounds conveys the idea that the defendant had no fear of deceased, nor at that time any present intention of hunting him up in order to have a personal encounter with him. The evidence wholly fails to show that the defendant had any knowledge of the location of the Hertford claim or that the deceased was at work there at the time of his death.
Viewed separately, most of the circumstances adverted to are as consistent with the notion that defendant is innocent as they are with the hypothesis that he is guilty. Taken altogether, they do not exclude the hypothesis of his innocence, but, as already said, only go so far as to induce the conclusion that he is probably guilty. This is not sufficient to justify a conviction. In State v. McCarthy, 36 Mont. 226, 92 Pac. 521, this court said: “ There must be some substantive testimony to justify the judgment of a court. * * * Mere suspicions or probabilities, however strong, are not sufficient basis for a conviction of crime. ’ ’ (See, also, State v. Foster, 26 Mont. 71, 66 Pac. 565; State v. Duncan, 40 Mont. 531, 107 Pac. 510.)
This conclusion renders it unnecessary to consider the second contention made by counsel.
The judgment and order are reversed, with directions to grant the defendant a new trial.
jReversed and remanded.
Mr. Justice Smith and Mr. Justice Holloway concur.
|
[
19,
20,
18,
-18,
-58,
-10,
5,
21,
9,
-1,
4,
-26,
0,
-24,
29,
-35,
-59,
-51,
-8,
9,
-47,
-10,
-20,
-5,
-7,
-27,
-53,
29,
-60,
29,
-27,
49,
7,
-23,
56,
-1,
21,
29,
-15,
8,
10,
40,
-1,
-2,
60,
19,
-10,
-61,
-5,
2,
19,
-47,
7,
-17,
-4,
4,
-10,
19,
-19,
63,
59,
-31,
-3,
-55,
0,
13,
38,
-27,
18,
9,
4,
-1,
-1,
10,
27,
-35,
21,
-30,
-8,
11,
-43,
5,
-3,
10,
8,
-20,
-51,
-27,
-8,
26,
23,
-2,
7,
11,
18,
45,
-27,
-16,
-57,
19,
-13,
-4,
-24,
15,
-14,
-61,
-59,
-1,
76,
18,
-9,
31,
20,
-1,
-11,
-24,
-8,
-35,
-7,
19,
-19,
-20,
51,
29,
-18,
-25,
2,
17,
72,
-59,
-4,
-4,
37,
-16,
17,
-12,
-38,
-24,
-36,
-21,
-25,
-11,
11,
-19,
-6,
31,
-24,
3,
-11,
31,
-2,
1,
-1,
13,
34,
-43,
18,
-3,
-16,
6,
16,
-19,
48,
-9,
-52,
-21,
-3,
-17,
-35,
-16,
7,
39,
-16,
24,
47,
36,
-14,
2,
-11,
40,
0,
4,
-10,
-15,
0,
45,
33,
33,
22,
11,
-5,
17,
15,
-56,
-38,
1,
16,
-47,
-18,
14,
6,
21,
19,
3,
14,
-23,
-40,
-15,
13,
-27,
15,
-34,
-22,
51,
-45,
38,
-53,
-29,
44,
-15,
20,
50,
0,
0,
36,
0,
-1,
51,
19,
-38,
-1,
-7,
21,
-39,
-23,
-9,
-21,
-31,
-87,
-30,
-21,
-52,
26,
-12,
49,
46,
18,
-5,
-26,
42,
-13,
-28,
3,
46,
-4,
-6,
56,
-6,
0,
-54,
6,
3,
53,
67,
15,
35,
-59,
23,
-45,
-10,
2,
-33,
48,
7,
-35,
-20,
91,
-10,
11,
14,
35,
0,
1,
23,
9,
5,
-29,
19,
-27,
-20,
-13,
-43,
1,
27,
24,
-14,
52,
-40,
45,
-48,
50,
21,
-1,
16,
19,
30,
-12,
6,
-15,
-37,
29,
-11,
17,
19,
14,
-6,
14,
0,
17,
-21,
-47,
-31,
5,
-20,
48,
37,
20,
1,
-44,
39,
-4,
15,
7,
49,
-51,
-23,
-20,
74,
36,
-29,
4,
-87,
-2,
2,
-60,
9,
33,
54,
-29,
-20,
-19,
6,
26,
18,
-59,
-33,
1,
-12,
35,
-84,
10,
-56,
-9,
30,
-27,
-64,
-27,
-61,
24,
-8,
29,
-14,
34,
-9,
36,
-35,
60,
15,
-33,
13,
30,
16,
23,
15,
17,
43,
19,
-3,
-17,
9,
-11,
13,
0,
23,
-34,
-27,
13,
-12,
27,
-51,
-41,
-4,
0,
-41,
-51,
15,
-77,
-3,
4,
-31,
-18,
-45,
-17,
-15,
41,
-16,
-18,
50,
-12,
-1,
29,
50,
71,
3,
-1,
28,
-33,
4,
-44,
-8,
54,
22,
21,
42,
1,
-28,
-8,
67,
1,
-16,
-28,
10,
27,
9,
-7,
-17,
-29,
31,
24,
-47,
-2,
-22,
-16,
-8,
-64,
45,
43,
-59,
13,
-13,
8,
36,
2,
-13,
16,
-15,
-28,
-23,
10,
21,
53,
20,
25,
2,
15,
-27,
6,
55,
17,
14,
48,
-31,
2,
13,
27,
-6,
-34,
-28,
20,
47,
29,
-27,
-33,
-40,
-29,
22,
43,
5,
60,
2,
-54,
-22,
6,
-15,
-22,
7,
-17,
8,
-4,
46,
53,
-11,
1,
-39,
-12,
22,
-7,
-9,
-34,
-2,
21,
-18,
-3,
39,
18,
-31,
0,
-13,
48,
-44,
-43,
22,
-38,
11,
42,
17,
13,
-4,
-19,
-73,
5,
-60,
33,
-11,
-46,
7,
5,
-40,
24,
45,
31,
15,
-11,
9,
19,
-3,
-42,
-10,
14,
-22,
9,
0,
-41,
-33,
39,
-38,
-17,
40,
16,
-54,
8,
50,
4,
18,
23,
-43,
-30,
50,
-29,
64,
-10,
-14,
-46,
46,
-2,
14,
19,
4,
-23,
29,
-23,
10,
13,
27,
-37,
-60,
0,
15,
-21,
-6,
-4,
1,
-14,
54,
20,
11,
0,
-22,
24,
30,
-34,
10,
28,
45,
13,
18,
-1,
-61,
-8,
-2,
-21,
0,
-18,
6,
8,
11,
-36,
-9,
-18,
23,
-24,
-28,
-25,
48,
-29,
34,
18,
33,
-52,
-27,
12,
-30,
34,
-25,
7,
14,
-26,
2,
20,
-16,
-31,
18,
-3,
-25,
-3,
29,
9,
-3,
-20,
-1,
80,
35,
-38,
4,
-25,
0,
-47,
46,
2,
19,
10,
-26,
-5,
-51,
-33,
-5,
40,
-22,
44,
21,
18,
48,
18,
1,
20,
24,
-26,
46,
-25,
1,
-34,
44,
23,
19,
-16,
-26,
38,
-32,
-68,
-13,
25,
-11,
-22,
0,
58,
-14,
61,
-92,
-35,
-37,
-3,
-10,
19,
71,
-40,
-56,
-39,
-17,
0,
1,
5,
-10,
-2,
-41,
35,
-8,
-17,
52,
-10,
58,
28,
46,
-11,
46,
41,
-41,
-12,
61,
-33,
-20,
-32,
-36,
-39,
32,
-29,
24,
118,
-39,
-18,
-4,
59,
70,
0,
-41,
-18,
-67,
37,
26,
-16,
-35,
52,
-38,
-48,
-15,
-32,
-7,
-5,
-13,
6,
31,
53,
26,
-38,
19,
-1,
49,
-8,
20,
13,
-24,
-10,
6,
-5,
-26,
10,
-3,
-56,
26,
0,
6,
-9,
21,
-10,
3,
-30,
-43,
1,
-1,
-40,
88,
17,
0,
13,
13,
48,
-6,
32,
1,
-39,
64,
38,
42,
-9,
-8,
1,
-51,
1,
-32,
-12,
-7,
-12,
-39,
48,
-7,
11,
-12,
10,
3,
-27,
-4,
0,
21,
-42,
3,
58,
-41,
-34,
2,
0,
-7,
-7,
15,
39,
-64,
22,
-35,
-26,
1,
0,
41,
-8,
27,
-15,
4,
-53,
-30,
1,
-14,
0,
10,
-15,
-23,
-15,
-1,
-49,
-2,
44,
24,
-57,
4,
-36,
30,
0,
23,
-33,
68,
27,
9,
31,
-40,
-33,
-21,
-10,
20,
20,
5,
42,
-41,
41,
10,
24,
-56,
-24,
26,
-35,
-26,
2,
9,
-21,
-8,
9,
7,
10,
47,
46,
-50,
18,
-6,
46,
30,
-11,
0,
-66,
18,
-3,
47,
-41,
-21,
21,
17,
35,
37,
28,
56,
9,
41,
-18,
1,
-25,
52,
-49,
41,
-23,
-79,
-72,
46,
-26,
-24,
-13,
-34,
8,
35,
-25,
-6,
7,
19,
6,
-22,
-3,
7,
30,
54,
2,
75,
11,
10,
-42,
-37,
17,
-19,
-45,
30,
29,
-13,
8,
16,
-31,
26,
6,
-42,
5,
-7,
41,
-20,
67,
-26,
44,
64,
53,
-60,
21,
-40,
-16,
15,
10,
-28,
-24,
-67,
-46,
55,
-45,
0,
1,
29,
31,
12,
28,
-37,
-60,
-57,
7,
-29,
-11,
38,
11,
11,
-14,
6,
22,
-20,
-23,
-30,
17,
-13,
28,
23,
-23,
5,
20,
-5,
-8,
15,
-12,
-3
] |
MR. JUSTICE HASWELL
delivered the opinion of the court.
The State of Montana appeals from an order of the district court, Hill County, the Hon. B. W. Thomas presiding, suppressing as evidence marijuana found in the trunk of defendant’s car. The court found the evidence was seized in an illegal search without a search warrant, that the State had failed to prove defendant’s consent to the search was voluntary, and that there was no probable cause for a search of the car without a warrant. We affirm.
Officer Gillies of1 the Havre Police Department stopped a car for speeding 45 m. p. h. in a 25 m. p. h. speed zone at 2:20 a.m. on January 31, 1976, a Saturday. Defendant Brough, the driver, a Havre resident and former high school classmate of Officer Gillies, immediately got out of the car. Officer Gillies recognized Brough and called him by name. Gillies shone his flashlight inside the car and observed a C-B radio and car stereo on the floor on the driver’s side, a stereo on the back seat, and a screwdriver, pliers and wrench on the floor in the back. The CB radio matched the description of several C-B radios that had been reported stolen.
Defendant Brough and the passenger in his car, Cross, were taken into custody on suspicion of possessing stolen property. The car was impounded in the police garage. Defendant Brough and Cross sat in the police car outside the police station for 15-20 minutes alone and handcuffed. Then they were taken into the police station, relieved of their personal possessions, and placed in adjoining cells. Both were given the Miranda warning. During this time defendant Brough placed a tinfoil packet on the booking counter, said he did not know what it was, and it subsequently was determined to contain no dangerous drug or anything illegal.
Defendant Brough was not allowed to post bond on the traffic charge although the officers were authorized to receive bond. His appearance was set for the following Monday. Officer Gillies twice asked defendant Brough to consent to a search of his car and Brough was told he would remain in jail until his car was searched either with his consent or with a search warrant and that he would get out of jail if he consented to the search. Brough did not consent at this time.
Brough was not allowed to make a phone call. Brough’s father came to the police station about 4:00 a.m. and (1) was not allowed to see his son, (2) was not informed of the charge against his son, and (3) was not informed of the amount of bail. Brough was not informed of his father’s visit. The district court made an. express finding that Brough was held incommunicado in jail.
The next morning defendant Brough was taken to a small cubicle in the police station by Sgt. Stremcha and Officer Stin-son for the purpose of getting his consent to a search of his car. Brough was told that if he did not consent, a search warrant would be secured anyway his car would be searched, and that Brough’s consent would save them time and paper work. Brough was reluctant but finally gave his consent. Marijuana was found in the trunk of the car.
After consent was given, Brough was allowed to post $100 bond on the traffic charge and was released from jail. Later the reckless driving charge was reduced to careless driving and Brough pled guilty to it.
The issue on appeal is whether the marijuana was properly suppressed as illegally obtained. No search warrant was ever obtained. The State contends the consent was valid, or that lacking consent, there was probable cause for the search of the car’s trunk without a warrant.
The first determination is whether Brough’s consent was voluntarily given. We affirm the district court’s ruling that the consent was coerced.
The case of State ex rel. Kotwicki v. District Court, 166 Mont. 335, 532 P.2d 694 (1975), involved a similar situation, however, the facts of that case lack the coercive tenor of the police procedure here. Kotwicki was a transient picked up on the interstate highway for speeding, was offered bond but could not pay, was allowed to use the phone, and was only to be jailed until his friend arrived with the $ 15 bond money. His person was searched before being placed in a jail cell, and he spontaneously admitted a plastic bag found in his shoe contained marijuana. When asked if his car could be searched, he spontaneously admitted it was full of marijuana. He acknowledged a written statement of his right to refuse consent to the search.
The prosecution has the burden of proving by clear positive evidence that the individual freely and intelligently gave his unequivocal and specific consent to search, uncontaminated by any duress or coercion, actual or implied. State v. LaFlamme, 170 Mont. 202, 551 P.2d 1011, and cases cited therein. As was stated in Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854, 863 (1973):
“ * * * the question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. * * *”
The evidence as recided herein was sufficient to support the finding of the district court of lack of voluntariness.
The State next contends that even if the consent was invalid, there was probable cause to search without a warrant.
In support of its contention the State offers the following statements of fact and inferences: That many C-B radios had been stolen out of vehicles in the Havre area; that these radios are more easily stolen without detection of the thief in the early morning before sunrise; that Brough was out driving at 2:20 a.m.; that he was speeding; that when Officer Gillies turned on his red lights to pull him over, Brough continued to pass several cars; that when Brough finally stopped, he immediately emerged from the auto; that Officer Gillies observed a C-B radio and car stereo on the floor of the car on the driver’s side in a vertical position as if they had been supported by Brough’s leg; that in the back seat, partially covered, was a stereo tape player of the variety not usually found mounted in automobiles, and; also in the back seat were tools of the type commonly used in burglaries. The State argues that from all these facts a reasonably prudent man would infer that a theft had been committed and that evidence of the theft was to be found in Brough’s vehicle.
We affirm the district court’s finding that the police suspicions as to the possible stolen character of the C-B radio and stereo which they could see in defendant’s car, as well as the possible burglar tools, do not provide probable cause for a search of the trunk of the vehicle.
The following additional facts were before the Court. There was no high speed chase or attempt to flee. The officers had no reports of thefts occurring that night or descriptions tying defendant to any crime. The C-B radio and car stereo were mounted in the car and attached with screws.
Brough claims the C-B radio and car stereo are his and the tape player in the back seat belongs to his brother. No one else had claimed them or identified them as being stolen.
The screwdriver, pliers and wrench found on the floor in the back seat of Brough’s automobile add nothing. to the State’s claim as they are as equally usable for noncriminal purposes as they are for burglar tools.
In both State v. Spielmann, 163 Mont. 199, 516 P.2d 617, and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, the officers had information from eyewitnesses at the scene of the crime which was particular and reliable, which matched the defendants, their clothing and automobile when they were intercepted a short time after the crime.
This case is also distinguished from Hooks v. State of Oklahoma, 394 F.Supp. 1262 (D.C.1975), involving the search of a car stopped for speeding at 4:00 a.m. after it attempted to elude the pursuit. The officers saw four new tires in the back seat still bearing price tags. When the occupants gave an incredible account of them, the officers opened the trunk and found five more tires and a tool box later determined to be stolen from a service station that night.
Since we affirm the district court’s finding of lack of probable cause for the search, it is unnecessary to decide the question of whether the officers could proceed without a search warrant after impounding the car overnight at the police garage and admittedly having time to obtain a warrant in light of the recent decision of Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975), reversing White v. White (Tex.Cr.App. (1974) ) 521 S.W.2d 255, 257, which had held the exigencies required for a warrantless search of the car were not present 30 to 50 minutes after the car had been taken to the station and the defendant arrested.
The order of the district court is affirmed.
MR. CHIEF JUSTICE JAMES T. HARRISON, MR. JUSTICES JOHN C. HARRISON and DALY, and The HON. LEROY L. McKINNON, District Judge, sitting for Mr. Justice Castles, concur.
|
[
1,
6,
21,
9,
-17,
-7,
-8,
38,
11,
57,
81,
-19,
0,
-9,
45,
-37,
30,
40,
34,
-11,
9,
-15,
-12,
14,
-5,
-58,
19,
0,
-60,
47,
-2,
-9,
52,
-26,
-28,
39,
16,
-14,
22,
38,
30,
14,
-10,
-3,
-16,
-36,
-14,
12,
-24,
-25,
31,
-12,
14,
-14,
46,
53,
49,
3,
-13,
52,
-1,
17,
19,
12,
7,
22,
-5,
33,
-30,
-10,
-12,
-12,
-35,
0,
20,
-16,
27,
4,
2,
42,
14,
51,
15,
-11,
31,
-21,
-66,
-57,
-22,
-57,
-4,
-11,
-34,
-18,
24,
-13,
-31,
-61,
24,
-7,
-27,
10,
19,
29,
-5,
30,
-23,
13,
17,
-5,
-34,
33,
43,
-20,
10,
-7,
-48,
2,
32,
7,
4,
-19,
13,
3,
-12,
-78,
10,
-4,
9,
0,
-34,
14,
54,
-21,
-25,
9,
-42,
-34,
-17,
1,
3,
14,
53,
3,
35,
18,
44,
5,
-21,
44,
14,
-24,
6,
18,
-10,
-24,
13,
-59,
-24,
29,
-23,
9,
-17,
21,
35,
21,
-11,
35,
-32,
-16,
-6,
22,
-4,
38,
70,
7,
-26,
34,
-17,
0,
-9,
0,
14,
-1,
-31,
0,
28,
40,
-27,
-42,
-39,
-9,
-14,
-12,
10,
-21,
42,
4,
13,
-40,
4,
28,
11,
25,
-43,
-15,
17,
23,
45,
-11,
2,
-43,
27,
6,
-6,
-15,
-17,
8,
16,
-18,
17,
-23,
-4,
-15,
-15,
15,
-37,
82,
-11,
11,
-4,
35,
-14,
0,
-12,
-27,
-15,
-48,
6,
27,
17,
-49,
-24,
-15,
53,
5,
-12,
-38,
-17,
22,
35,
17,
29,
-5,
-20,
-58,
66,
-46,
23,
-5,
21,
15,
20,
-1,
-21,
-22,
10,
33,
-34,
-10,
-60,
2,
-11,
-67,
-36,
-2,
-25,
25,
37,
25,
17,
-41,
-23,
35,
-18,
0,
-12,
14,
-5,
-32,
-5,
-54,
-21,
21,
-11,
19,
63,
30,
-65,
40,
78,
25,
-52,
11,
-4,
-16,
-12,
23,
4,
58,
36,
-27,
-22,
84,
24,
1,
-34,
-55,
-19,
20,
-19,
7,
-29,
-15,
-16,
22,
0,
1,
2,
-37,
12,
-12,
-22,
-11,
-24,
-17,
-2,
47,
26,
48,
-44,
-16,
11,
0,
23,
-13,
-11,
77,
-54,
-42,
31,
36,
0,
6,
-26,
-2,
-22,
-21,
1,
-48,
29,
-21,
0,
35,
0,
-3,
34,
-9,
-40,
-13,
53,
-66,
42,
24,
16,
-25,
17,
-46,
-5,
30,
-1,
-36,
9,
-17,
-25,
7,
27,
-47,
-22,
-6,
16,
4,
9,
-12,
-30,
0,
33,
-1,
36,
17,
-29,
39,
21,
-20,
-17,
-57,
39,
28,
13,
-41,
-65,
1,
-15,
41,
26,
-9,
-28,
11,
-36,
-34,
-34,
19,
17,
-3,
21,
11,
-34,
35,
-14,
30,
52,
-34,
36,
-13,
-40,
-16,
-21,
-36,
11,
-13,
-25,
-1,
25,
19,
23,
-2,
8,
-5,
16,
4,
39,
2,
34,
-10,
-21,
82,
73,
6,
-20,
9,
-17,
-7,
-20,
-2,
10,
-15,
-2,
-60,
11,
-5,
36,
31,
-11,
-5,
7,
41,
-12,
12,
-23,
-40,
-34,
-24,
-2,
-18,
0,
0,
-38,
-27,
15,
86,
3,
33,
-21,
-22,
-1,
27,
16,
-28,
18,
-3,
-14,
12,
-54,
46,
16,
-13,
23,
38,
-25,
-18,
21,
53,
-19,
-30,
-44,
-10,
0,
-7,
1,
11,
50,
58,
19,
-12,
7,
10,
-14,
-75,
-42,
-59,
-25,
23,
12,
-4,
23,
-8,
27,
18,
22,
-20,
36,
-45,
-13,
-35,
-35,
-15,
36,
-9,
25,
5,
19,
13,
-27,
-5,
20,
-12,
-10,
30,
-27,
19,
-16,
-6,
22,
50,
3,
37,
-60,
42,
49,
35,
-14,
43,
11,
-9,
-3,
1,
8,
44,
-37,
16,
16,
33,
-16,
28,
-34,
-20,
-10,
17,
25,
-65,
-2,
-4,
4,
-5,
-5,
18,
-37,
-41,
-67,
-38,
-19,
40,
46,
58,
41,
-20,
53,
-14,
-30,
-14,
22,
28,
25,
-6,
-29,
46,
-51,
-28,
41,
-43,
-25,
-60,
-3,
-22,
-14,
-32,
-81,
30,
14,
-33,
-58,
-16,
7,
19,
13,
-6,
6,
32,
-52,
-27,
27,
19,
9,
-3,
32,
17,
53,
-9,
0,
-38,
-46,
13,
-50,
-23,
16,
13,
-37,
-23,
1,
-14,
28,
3,
-58,
1,
-35,
0,
-20,
0,
-20,
41,
7,
-30,
-21,
-37,
19,
0,
15,
-20,
10,
-22,
8,
-31,
20,
-38,
24,
10,
23,
0,
31,
10,
14,
35,
-10,
27,
2,
-12,
15,
-35,
-9,
-31,
5,
-20,
-28,
-27,
-36,
31,
-24,
-20,
-15,
46,
-52,
7,
-2,
-1,
7,
-48,
-26,
35,
-50,
1,
-29,
-33,
0,
18,
4,
-37,
-29,
-35,
-26,
-39,
28,
-3,
19,
-28,
7,
10,
33,
10,
35,
1,
-57,
9,
47,
-3,
5,
-24,
40,
-46,
-37,
-1,
48,
1,
26,
25,
-22,
9,
26,
-21,
-32,
-46,
53,
31,
34,
-4,
-13,
-4,
5,
21,
6,
-4,
36,
-35,
-14,
-39,
-18,
-20,
-21,
16,
33,
-17,
8,
-11,
-58,
9,
-10,
25,
-28,
30,
-7,
-12,
37,
12,
2,
-35,
43,
47,
28,
-19,
-8,
11,
38,
-13,
47,
-17,
22,
19,
12,
48,
12,
29,
-16,
33,
15,
-68,
31,
-45,
12,
-10,
2,
-35,
57,
-53,
-26,
-12,
1,
0,
21,
-22,
4,
-16,
-11,
38,
14,
34,
-43,
-18,
17,
-41,
38,
56,
18,
28,
7,
6,
7,
22,
30,
-5,
43,
51,
-23,
10,
-51,
8,
7,
14,
3,
21,
22,
19,
-29,
-13,
-37,
-9,
-22,
-32,
46,
-15,
-38,
-2,
-8,
-10,
29,
66,
-2,
-18,
62,
16,
-22,
4,
-3,
-23,
31,
38,
17,
-9,
-51,
-63,
26,
0,
-63,
-37,
-21,
-32,
-12,
24,
18,
24,
-35,
-13,
-5,
-30,
-33,
56,
52,
0,
18,
5,
2,
5,
-6,
-12,
3,
-10,
7,
20,
-42,
16,
92,
-23,
44,
35,
5,
66,
5,
-17,
-70,
-32,
-29,
61,
-37,
9,
-4,
-61,
-15,
19,
14,
35,
15,
-23,
-11,
-25,
-40,
19,
34,
44,
-8,
-14,
0,
20,
17,
27,
-51,
57,
8,
8,
-27,
-19,
19,
-26,
-89,
16,
-4,
-4,
-24,
25,
-19,
3,
4,
31,
7,
0,
7,
1,
23,
-4,
8,
40,
15,
-32,
-38,
15,
-8,
-2,
-3,
-11,
28,
15,
-75,
-7,
-32,
15,
-6,
39,
2,
10,
-37,
-37,
-5,
-18,
-10,
17,
-34,
1,
-7,
-24,
-31,
-18,
-20,
39,
-12,
-22,
-38,
-22,
-7,
-5,
-33,
-17,
0,
14,
-29,
3,
53,
5
] |
MR. CHIEF JUSTICE JAMES T. HARRISON
delivered the opinion of the Court.
This is an original proceeding in which relator seeks an appropriate writ to require the respondent court to dismiss an indictment filed therein on or about March 19, 1976.
A little background of the situation is to be found in State ex rel. Forsythe v. District Judge Alfred B. Coate, 169 Mont. 384, 546 P.2d 1060, which was an original proceeding wherein relator sought a writ of prohibition to disqualify the district judge, being the respondent in the instant case, from sitting upon a grand jury investigation and to have a special prosecutor appointed from outside the judicial district to assist the grand jury. We declined to assume jurisdiction on the first matter, but did on the second and we denied the relief sought and dismissed the petition.
A few months later Forsythe was again in this Court as relator in another original proceeding with the same district judge as respondent wherein he sought a writ of supervisory control to have himself reinstated as county attorney. The situation there •was that on May 19, 1976, the respondent district judge suspended Forsythe as county attorney following the return of an indictment charging relator with violating his duty to diligently prosecute public offenses by dismissing charges against four persons who were accused of participating in an illegal card game.
In the course of our opinion, State ex rel. Forsythe v. District Judge Alfred B. Coate, 170 Mont. 245, 552 P.2d 60, 62, we noted that the district court’s own records showed that it had granted the county attorney’s motion to dismiss the charges and we stated:
“The district court’s own records show that it granted relator’s motion to dismiss the charges. When a motion to dismiss criminal charges is made by the county attorney and approved by the district court, the stamp of judicial approval overcomes the statutory presumption leaving no room for discretion. Suspension, absent any indication of deception or fraud upon the court, is inappropriate.
“We also note that section, 94-7-401, R.C.M.1974, ‘Official Misconduct’, under subsections (1) (a) and (4), provides for a discretionary suspension. Here again the Court’s own records show judicial approval of the prosecutor’s actions.
“Therefore, it is ordered that relator, John S. Forsythe, shall receive all back pay to May 19, 1976, and be reinstated in his office pending final determination of the charges against him.”
On October 1, 1976, Forsythe moved to dismiss the indictment, alleging, among other things, “* * * that the charge of failure to diligently prosecute was known to be contrary to the facts and court records at the time of presentation to the court”. This motion was denied by Judge Coate on December 7, 1976, such order providing: “Defendant’s motion to dismiss is hereby denied; the opinion will be filed by December 21, 1976.”
On December 13, 1976, Forsythe, as relator, filed his original petition in this Court, again naming Judge Coate as respondent, seeking an appropriate writ to require the respondent district judge to dismiss the indictment with prejudice. Counsel was heard ex parte and following the conclusion of the hearing this Court issued an order calling for an adversary hearing on December 16, 1976.
On December 14, 1976, respondent district judge filed with this Court copy of findings of fact, conclusions of law and judgment which were dated December 8, 1976. Therein relator’s motion to dismiss the indictment was denied and it was ordered that judgment be entered accordingly. The district court noted that this Court was satisfied as to the sufficiency of the indictment because we had reinstated relator as county attorney “pending final determination of the charges against him,” the judge believing that the test of the sufficiency had been met. The situation was that counsel upon the original appearance was not sure whether there were other charges pending and this cautionary language was placed in our opinion for that reason. We gave no consideration to the sufficiency of the' indictment nor should any be inferred.
Respondent, in response to our order of December 14, 1976, has filed an answer and motion to quash. Counsel for all parties appeared at the adversary hearing and were heard in oral presentation and the matter was taken under advisement.
Relator seeks to dismiss the indictment, which charges him with the crime of official misconduct, a misdemeanor under section 94-7-401, R.C.M.1947, which was set forth in the following language:
“That on or about October 19, 1975, CLYDE V. THOMPSON, JOE OPP, LESTER LEISCHNER, and MARJORIE DOB-SON were each arrested and each charged with the crime of participating in an unauthorized card game, contrary to Section 62-703, R.C.M.1947;
“That on December 11, 1975, the said John S. Forsythe dismissed all the said charges of participating in an unauthorized card game;
“That Section 94-8-414, R.C.M.1947, requires the County Attorney to diligently prosecute all offenders of gambling statutes; that the dismissals were contrary to Section 94-8-414, R.C.M.1947; that by dismissing the said charges John S. For-sythe purposely or negligently failed to perform a duty as required by Section 94-8-414, R.C.M.1947, contrary to the form, force, and effect of Section 94-7-401, R.C.M.1947 OFFICIAL MISCONDUCT, a misdemeanor arid against the peace and dignity of the State of Montana.”
We find it unnecessary to restate the detailed factual situation surrounding these dismissals as set forth in our opinion in State ex rel. Forsythe v. District Judge Alfred B. Coate, 170 Mont. 245, 552 P.2d 60.
An examination of the statute governing dismissal of a criminal charge clearly establishes that the district court, and not the county attorney, has the authority to dismiss. Section OSITOS, R.C.M.1947, states:
“Dismissal on motion of court or application of attorney prosecuting. The court may, either on its own motion or upon the application of the attorney prosecuting, and in furtherance, of justice, order an action, complaint, information, or indictment to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes.” (Emphasis added.)
Further evidence of the district court’s authority to have the final say as to whether a prosecution must be completed, once started, is found in section 95-1303, R.C.M.1947:
“The county attorney not filing an information. If the county attorney determines an information ought not to be filed after the defendant has been held to answer following a preliminary examination or waiver thereof, or after leave to file has been granted, he must within thirty (30) days make, subscribe, and file with the clerk of the court a statement in writing containing his reasons in fact and in law for not filing an information. The court must examine such statements together with the evidence filed in the case, and if upon such examination, the court is not satisfied with the statement, the county attorney shall be directed and required by the court to file the proper information and bring the case to trial.”
The record of the dismissals, as set forth above, makes it clear that the district court, and not the relator, dismissed the charges. The only action of the relator was the motion to dismiss. Furthermore, the district court was fully aware of the facts and circumstances surrounding the motion to dismiss when such was presented and granted.
Under these circumstances, the relator could be prosecuted for official misconduct only if he had fraudulently misrepresented the circumstances and facts surrounding the motion to dismiss in order to gain the district court’s dismissal. Absent such a showing, we find that it would be unreasonable to hold a prosecutor criminally responsible for dismissal of a criminal matter when the district court gives its stamp of judicial approval and actually accomplishes the dismissal through its order.
The indictment in question does not charge the relator with deception or fraud upon the district court to gain the dismissals and in no way apprises the relator that such is the basis of the criminal charge.
For these reasons, the motion to quash is denied and we grant the writ of supervisory control sought by relator and direct the respondent district court to dismiss the indictment against relator with prejudice.
MR. JUSTICES DALY, JOHN C. HARRISON and HASWELL concur.
|
[
-11,
-8,
87,
45,
22,
-33,
-38,
-10,
-61,
46,
10,
0,
-38,
20,
-21,
-5,
38,
-13,
60,
-1,
44,
17,
42,
-39,
2,
-9,
-28,
29,
-4,
-17,
-15,
1,
25,
-11,
-6,
-34,
41,
8,
57,
-4,
3,
24,
-38,
-4,
-26,
17,
-19,
-7,
-32,
-55,
3,
18,
-38,
41,
-2,
-3,
-1,
-19,
57,
-25,
-44,
19,
-54,
-24,
-8,
15,
-26,
10,
-16,
28,
21,
-34,
-37,
-26,
-13,
19,
-23,
-43,
47,
5,
-19,
65,
-13,
4,
-7,
-37,
29,
-31,
18,
-14,
17,
5,
-43,
-1,
21,
-44,
11,
10,
-4,
-6,
-4,
19,
0,
7,
72,
1,
29,
-10,
59,
35,
-7,
13,
-23,
11,
0,
8,
37,
17,
22,
-7,
-2,
-20,
16,
48,
-36,
8,
-50,
-2,
26,
50,
8,
31,
64,
-19,
0,
-28,
20,
35,
20,
13,
-3,
-60,
69,
-34,
17,
-14,
9,
26,
-43,
63,
41,
-21,
50,
90,
-6,
-29,
11,
-33,
20,
44,
-10,
0,
-13,
17,
-7,
10,
-37,
-10,
-34,
11,
14,
35,
50,
27,
-29,
-90,
-64,
34,
27,
32,
28,
29,
-38,
-7,
17,
-12,
-7,
1,
41,
18,
-19,
-24,
17,
-53,
88,
-7,
-31,
29,
-25,
0,
6,
12,
-6,
19,
-58,
-8,
-34,
-55,
-6,
-30,
-58,
-8,
0,
-49,
-6,
-48,
-7,
1,
2,
30,
7,
-7,
41,
66,
0,
-38,
-44,
24,
37,
51,
50,
10,
-37,
24,
15,
20,
4,
2,
-4,
17,
-24,
61,
46,
-32,
-47,
6,
-18,
37,
-15,
-65,
-21,
-34,
5,
8,
2,
14,
12,
-8,
24,
-6,
48,
7,
-29,
23,
-65,
5,
22,
9,
-17,
-2,
13,
10,
17,
46,
43,
-9,
34,
-11,
29,
-6,
-59,
-2,
39,
18,
-10,
62,
-7,
-42,
9,
-20,
35,
-44,
-50,
82,
-18,
62,
39,
31,
29,
8,
-5,
34,
11,
-11,
-34,
-54,
-15,
9,
-49,
-47,
20,
45,
-20,
1,
-40,
-27,
4,
2,
65,
-56,
-23,
26,
6,
-65,
-30,
-26,
35,
25,
59,
-20,
5,
6,
-36,
23,
-49,
21,
-39,
23,
24,
0,
-28,
-31,
-14,
7,
-55,
3,
10,
21,
-5,
3,
-18,
-51,
-2,
5,
28,
-25,
-2,
18,
26,
-19,
-3,
63,
-30,
-5,
32,
13,
-2,
-25,
-43,
18,
-7,
-3,
-11,
-23,
25,
-38,
8,
-39,
31,
21,
-17,
-40,
8,
-12,
-10,
-40,
-6,
-23,
-55,
0,
-8,
50,
-23,
8,
-32,
36,
49,
3,
19,
3,
47,
7,
-19,
9,
-37,
-13,
-58,
47,
-4,
-15,
17,
13,
11,
33,
46,
-11,
-43,
29,
26,
-64,
32,
-24,
31,
-9,
37,
9,
-32,
-34,
-8,
-57,
29,
11,
16,
11,
1,
16,
18,
9,
10,
19,
24,
-40,
-35,
17,
3,
-33,
-13,
58,
30,
0,
-13,
14,
22,
-11,
-8,
40,
18,
-8,
-25,
-24,
19,
-19,
-13,
2,
-2,
-8,
-61,
55,
-41,
-10,
30,
6,
29,
48,
-11,
31,
6,
-23,
-2,
11,
-18,
-10,
8,
3,
-20,
37,
-1,
-92,
41,
40,
-39,
-62,
-54,
26,
-26,
-40,
12,
-18,
-45,
4,
-6,
32,
4,
-16,
20,
-1,
-25,
-6,
-42,
59,
17,
45,
1,
24,
39,
5,
34,
6,
-8,
-22,
11,
-5,
0,
-7,
-55,
-57,
-18,
-36,
-21,
2,
36,
23,
-4,
-54,
19,
74,
-14,
25,
37,
-54,
81,
-16,
31,
18,
-35,
-21,
-75,
-2,
38,
28,
16,
-14,
-30,
34,
4,
-43,
-21,
-39,
-50,
-4,
5,
21,
30,
8,
-36,
36,
-10,
-27,
20,
22,
38,
3,
-9,
-25,
30,
0,
-1,
-27,
46,
-37,
5,
18,
-62,
23,
49,
-37,
5,
-6,
-49,
-7,
-7,
-24,
-33,
0,
20,
-23,
-72,
9,
21,
-17,
-7,
100,
76,
13,
63,
24,
114,
-6,
24,
26,
35,
-12,
-27,
-18,
-4,
68,
-25,
-17,
-14,
46,
-14,
-26,
-22,
-13,
-10,
11,
-20,
15,
12,
-30,
-19,
-40,
0,
2,
-11,
-11,
-17,
0,
15,
-38,
-37,
41,
22,
-46,
-3,
-40,
9,
28,
14,
-19,
39,
-33,
33,
-45,
13,
-61,
-37,
3,
34,
-54,
0,
-28,
0,
-14,
17,
13,
31,
-10,
-9,
19,
24,
-34,
-36,
-30,
-6,
-42,
10,
-19,
13,
12,
-5,
37,
-37,
9,
-21,
71,
21,
17,
-24,
25,
-12,
34,
-3,
32,
9,
69,
-16,
-41,
-16,
-42,
-1,
11,
-28,
-7,
-77,
-6,
-22,
-33,
-26,
-22,
-19,
-15,
-35,
34,
-36,
-44,
16,
-70,
-69,
-20,
-5,
-11,
-25,
26,
12,
44,
45,
-23,
63,
-10,
26,
2,
-4,
-29,
-31,
17,
-10,
18,
18,
12,
-16,
21,
0,
-39,
19,
32,
3,
14,
-35,
-26,
51,
-55,
-51,
-2,
-21,
54,
8,
-31,
-13,
31,
23,
-31,
-13,
9,
-52,
19,
-11,
1,
12,
-14,
7,
-17,
59,
36,
-54,
38,
-27,
-32,
-24,
-54,
-4,
31,
-35,
-23,
-4,
-36,
-46,
22,
-8,
8,
33,
-15,
-24,
-21,
7,
23,
3,
58,
3,
57,
-39,
75,
-7,
-12,
-3,
41,
10,
11,
54,
-7,
36,
5,
3,
-24,
4,
-51,
-50,
-16,
5,
-39,
35,
-11,
11,
2,
16,
14,
29,
-8,
-19,
64,
-22,
-2,
17,
32,
-76,
-6,
-11,
-32,
-19,
6,
-30,
8,
-28,
-10,
-22,
5,
26,
36,
1,
7,
3,
27,
-58,
-17,
-2,
-28,
45,
-23,
-5,
18,
64,
50,
-10,
-117,
44,
-22,
41,
-29,
101,
7,
47,
-28,
79,
76,
-10,
-9,
28,
-27,
6,
-17,
15,
-20,
2,
7,
-10,
32,
26,
-66,
-9,
14,
20,
55,
-45,
-6,
-10,
19,
-10,
-30,
0,
-44,
25,
-27,
-3,
-35,
35,
5,
17,
0,
-23,
12,
30,
22,
51,
7,
-85,
-14,
-45,
-18,
56,
3,
40,
21,
-9,
18,
-14,
-4,
56,
-40,
13,
35,
0,
-38,
49,
-9,
2,
-35,
-46,
20,
-15,
-23,
-55,
10,
-40,
14,
16,
28,
-14,
-46,
9,
59,
-29,
-31,
5,
-17,
-29,
-42,
0,
4,
69,
-20,
11,
11,
-28,
8,
-70,
14,
3,
32,
-17,
-35,
4,
4,
31,
50,
0,
39,
22,
-16,
-30,
-30,
-48,
22,
18,
21,
29,
-13,
17,
83,
11,
-49,
-13,
-36,
-5,
7,
-2,
103,
-5,
-29,
1,
-2,
-20,
-14,
-12,
-38,
34,
-7,
-34,
29,
31,
7,
38,
-11,
17,
-31,
-23,
1,
27,
-81,
-50,
-51,
-62,
60,
13,
-21
] |
ORDER
PER CURIAM:
This is an appeal by respondents and intervenors from an order of the district court of Lewis and Clark County granting a writ of mandamus compelling the Secretary of State to place the Attorney General’s original explanatory statement or summary of Initiative No. 71 (the so-called nuclear siting initiative) on the ballot for the general election.
The order of the district court was orally entered by the district judge following hearing on September 22, 1976; the notice of appeal was filed September 23, the rules were suspended and the appeal was heard by this Court on the same day pursuant to written agreement and stipulation of counsel for all parties except the Secretary of State who did not appear; and the matter was argued, written briefs presented, and submitted to the Court for decision on September 23. It was represented to this Court by all appearing parties that this Court’s decision herein was necessary not later than September 24 to meet statutory and printing deadlines.
We now reverse the order of the district court. We hold that the second explanatory statement or summary of the Attorney General on Initiative 71 is entitled to be printed on the ballot and we order the Secretary of State to proceed accordingly.
The reasons for our decision are:
(1) The original statement or summary of the Attorney General, viz.
“This act would amend the Montana Major Facility Siting Act. The proposed amendment would require legislative approval, in addition to the approval of the Board of Natural Resources, for construction of a nuclear facility. The Board may refuse approval if it finds: that the facility’s liability is limited; that the facility’s safety system is not satisfactory; or that there is a reasonable chance that radioactive or chemically toxic waste may be released into the environment. The act would further require the governor to public procedures for evacuating affected communities and to establish emergency medical plans.”
does not satisfy the requirements of section 37-104.1, R.C.M. 1947, in that it is not “a * * * true and impartial statement of the purpose of the measure in plain, easily understood language and in such manner as shall not be an argument or likely to create prejudice either for or against the measure.” It could mislead the voters and is therefore illegal.
(2) The second statement of the Attorney General, viz.
“This Act would amend the Montana Major Facilities Siting Act by banning nuclear power plants in Montana until Congress removes federal liability limits. If this action takes place then further conditions must be met, or the ban of nuclear facilities would remain in effect. Such conditions include the comprehensive testing of substantially similar physical nuclear systems in actual operation and technical findings by the Legislature and the Board of Natural Resources that there is no reasonable chance of radioactive materials being released into the environment because of imperfect storage, earthquakes, acts of God, sabotage, act of war, theft, etc.”
satisfies the requirements of section 37-104.1, R.C.M.1947.
(3) Mandamus is a proper remedy. Section 93-9102, R.C.M.1947.
(4) The Attorney General has the power to revise his original statement or summary after the 10 day period provided in section 37-104.1, R.C.M.1947, by reason of section 37-106, R.C.M.1947, providing that the form of ballot shall be prescribed by the attorney general without time limitation.
Let remittitur issue forthwith.
|
[
16,
-2,
-16,
-27,
10,
-15,
16,
53,
-61,
24,
0,
3,
15,
18,
-7,
-27,
16,
-25,
47,
36,
-22,
5,
-60,
33,
-2,
-28,
-30,
0,
-33,
-10,
-18,
-31,
0,
-7,
28,
-8,
-2,
62,
25,
-29,
26,
-8,
-28,
-35,
-21,
-12,
-17,
19,
-13,
40,
17,
61,
-7,
6,
6,
-14,
10,
-27,
-72,
-10,
-39,
2,
20,
53,
49,
31,
4,
6,
16,
-27,
10,
41,
-30,
-67,
22,
-26,
49,
-16,
-50,
18,
-21,
15,
-19,
-59,
39,
-16,
-46,
28,
-19,
38,
-28,
-110,
-24,
-5,
11,
45,
9,
-46,
1,
1,
-11,
10,
-8,
-29,
-35,
-42,
-22,
4,
98,
-7,
46,
-3,
-72,
-32,
-12,
36,
15,
14,
-4,
-5,
-30,
-19,
-30,
51,
-40,
-54,
42,
19,
-43,
-11,
-33,
33,
3,
-13,
24,
47,
-22,
-72,
49,
-28,
50,
-81,
75,
-20,
21,
-13,
3,
23,
1,
18,
-21,
26,
-9,
60,
1,
24,
33,
-15,
47,
6,
24,
11,
-41,
-11,
-17,
11,
-34,
-4,
-38,
-50,
16,
-14,
-13,
28,
25,
31,
-14,
-8,
-27,
9,
-30,
-5,
17,
-10,
-42,
44,
-4,
11,
34,
19,
1,
-30,
77,
-33,
48,
8,
21,
106,
-2,
-5,
32,
-8,
53,
58,
-4,
27,
-12,
-1,
34,
-31,
-24,
-9,
-12,
15,
14,
-41,
-8,
2,
3,
-12,
-12,
10,
36,
5,
-8,
-5,
-24,
14,
-30,
-35,
5,
-10,
42,
10,
19,
-16,
-20,
6,
14,
14,
-2,
6,
30,
14,
24,
33,
10,
-44,
0,
-1,
43,
-34,
18,
16,
22,
-25,
-5,
6,
-68,
-37,
39,
-29,
9,
-40,
-23,
17,
-43,
-8,
5,
24,
-33,
101,
16,
16,
-60,
-2,
39,
-66,
-2,
-58,
0,
0,
9,
4,
-43,
4,
-10,
-8,
-25,
7,
-81,
0,
-5,
23,
-4,
8,
-16,
-16,
-29,
-16,
-7,
21,
1,
-12,
-6,
30,
-69,
11,
16,
-27,
-6,
37,
-38,
5,
-22,
-40,
-30,
29,
15,
-31,
22,
8,
31,
-16,
5,
4,
41,
33,
-46,
-24,
4,
11,
0,
-3,
16,
-18,
-9,
-3,
-49,
-2,
49,
-37,
50,
43,
-6,
39,
12,
32,
-8,
-3,
-7,
19,
20,
53,
-32,
2,
-20,
-43,
-20,
-47,
8,
-3,
-19,
-40,
-36,
12,
8,
17,
27,
-29,
-51,
-27,
39,
36,
41,
-21,
5,
76,
-10,
-20,
-36,
16,
28,
-22,
18,
57,
29,
22,
-15,
14,
29,
-51,
-7,
25,
58,
-12,
3,
-13,
42,
25,
45,
1,
8,
23,
4,
-4,
-18,
18,
-2,
31,
7,
27,
-56,
-16,
-6,
-21,
48,
20,
-16,
-12,
22,
5,
-5,
-68,
16,
-43,
1,
11,
12,
73,
-61,
23,
-50,
2,
-27,
14,
15,
-33,
-20,
-10,
23,
-43,
-39,
-31,
-18,
-66,
4,
-22,
16,
44,
-8,
40,
-39,
-62,
16,
37,
0,
-43,
-20,
-87,
-41,
6,
5,
0,
10,
-3,
4,
-50,
36,
-35,
3,
39,
20,
68,
-6,
26,
-34,
58,
-10,
-31,
12,
-35,
-29,
-24,
50,
-18,
24,
52,
-22,
14,
3,
33,
57,
-53,
-25,
26,
-25,
-74,
25,
2,
14,
-1,
-34,
36,
-30,
-33,
27,
22,
-40,
35,
20,
-10,
20,
10,
-39,
-3,
25,
-85,
-18,
47,
-17,
40,
-5,
-27,
8,
-8,
23,
-20,
10,
-9,
-40,
10,
18,
-56,
-50,
41,
-24,
63,
-25,
-16,
31,
14,
21,
27,
20,
-22,
-27,
4,
23,
-21,
35,
12,
-51,
22,
2,
26,
-20,
10,
-29,
18,
18,
16,
6,
17,
-9,
35,
-54,
-8,
24,
25,
-2,
24,
-30,
-50,
72,
48,
6,
6,
5,
39,
-3,
-29,
-12,
-34,
-27,
-90,
0,
23,
29,
-31,
-26,
-36,
-43,
31,
14,
12,
46,
-4,
-58,
-80,
-40,
-11,
24,
6,
43,
-22,
15,
-34,
51,
-8,
-48,
0,
-27,
44,
-38,
33,
4,
-42,
76,
-44,
-17,
12,
62,
-5,
50,
-30,
-49,
-1,
-2,
20,
-15,
-38,
3,
-59,
19,
-55,
11,
-18,
38,
-36,
0,
35,
-13,
-27,
1,
-9,
53,
2,
85,
34,
52,
37,
15,
-53,
6,
-20,
0,
30,
10,
29,
17,
-3,
52,
-51,
7,
36,
21,
-5,
37,
27,
53,
39,
-14,
-9,
34,
-16,
3,
9,
10,
14,
-36,
20,
-32,
-37,
35,
-2,
28,
33,
-30,
5,
45,
0,
22,
15,
17,
-18,
-48,
-25,
-29,
-48,
9,
0,
39,
3,
-49,
23,
50,
-30,
-18,
13,
6,
-15,
7,
-47,
15,
-68,
4,
-31,
-33,
-38,
-12,
26,
-39,
34,
-1,
-25,
-48,
-35,
3,
-13,
-55,
-9,
-3,
-2,
-13,
10,
49,
29,
22,
15,
38,
-6,
1,
-8,
-28,
38,
-10,
-31,
-14,
5,
4,
9,
0,
54,
-41,
18,
-60,
-3,
4,
11,
47,
-52,
-20,
7,
34,
-66,
1,
3,
9,
-20,
60,
6,
-12,
-19,
11,
-56,
5,
21,
3,
33,
-3,
-15,
7,
-16,
-15,
-26,
-14,
-4,
2,
0,
-4,
16,
12,
-57,
55,
58,
-53,
-3,
-14,
-2,
-33,
-48,
-28,
13,
11,
19,
-44,
48,
-27,
-1,
22,
2,
39,
-8,
37,
-51,
14,
45,
-56,
-46,
44,
11,
-16,
-6,
39,
-59,
42,
31,
-12,
14,
72,
42,
7,
-37,
46,
-33,
20,
22,
7,
20,
-11,
-10,
-16,
-49,
-24,
20,
40,
43,
44,
-4,
-23,
51,
-15,
29,
65,
60,
17,
-98,
2,
72,
11,
65,
8,
-8,
4,
-63,
2,
32,
-27,
87,
-6,
-42,
-1,
42,
-20,
-34,
-24,
-43,
18,
-52,
-37,
53,
8,
8,
15,
-46,
-32,
21,
60,
12,
43,
13,
-35,
28,
6,
41,
30,
-16,
-60,
0,
-49,
-7,
43,
48,
31,
45,
3,
25,
4,
0,
-20,
7,
37,
-11,
-38,
-21,
-15,
25,
16,
66,
28,
12,
-46,
-25,
-40,
1,
-29,
3,
-2,
11,
-57,
-15,
-6,
-50,
0,
-1,
7,
41,
1,
8,
-16,
-29,
10,
5,
38,
12,
-29,
-30,
-41,
0,
2,
2,
6,
11,
27,
8,
18,
7,
25,
-11,
-64,
38,
12,
31,
-30,
-30,
-35,
-3,
1,
6,
0,
-9,
-10,
56,
-11,
64,
-25,
-35,
-42,
36,
5,
-4,
63,
-52,
-4,
-16,
-5,
-5,
25,
-27,
4,
15,
6,
-53,
35,
21,
-74,
-53,
41,
-26,
61,
5,
-36,
-31,
-11,
25,
2,
-24,
25,
12,
-7,
-16,
5,
-28,
19,
-6,
-19,
-18,
9,
-55,
-3,
32,
14,
-25
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This is a suit in equity, brought to secure a .decree canceling a certain contract. Issues were joined upon the original pleadings and the cause brought to trial before the court sitting with a jury. By agreement of counsel and the approval of the court, after a portion of the evidence had been taken the jury were discharged, the parties permitted to reform their pleadings, and the cause was thereupon tried and submitted to the court. The plaintiffs filed an amended and supplemental complaint — referred to in the brief as the substituted complaint — and the defendant filed an answer thereto which contains certain admissions, certain denials and four affirmative pleas denominated “counterclaims.” From the record it appears that on May 1, 1907, the plaintiffs and the defendant entered into a contract in writing, by the terms of which the plaintiffs agreed to sell to the defendant, and the defendant agreed to purchase from the plaintiffs, certain real estate and personal property situated near Billings, Montana. The purchase price agreed upon was $37,000, payable in six installments: $2,000 upon the execution of the contract, and the balance, with interest, payable in five annual installments, the last payment to be made May 1, 1912, each of the deferred payments being represented by a promissory note. In the contract the land is described by legal sectional subdivisions and by government lots. As ground for a cancellation of the contract the plaintiffs allege breaches by defendant in the following particulars: (1) The failure and refusal of defendant to pay the installment and interest due May 1, 1908; (2) failure to pay the installment and interest due May 1, 1909; (3) failure to keep the buildings insured; and (4) the failure to pay certain assessments on stock in irrigation companies. Plaintiffs allege that after breach by the defendant they gave notice of their intention to terminate the contract as required by it, and they brought into óourt the promissory notes for cancellation and redelivery to defendant. They allege that the defendant has had free use and enjoyment of the property during the seasons of 1907 and 1908 and received a part of the crop for the year 1909. They allege that the fair rental value of the land was $1,500 per year, and that the defendant has had the use of the personal property, and has received in benefits from the use and occupation of the property more than he has paid to, or for the use of, plaintiffs. The answer admits that an installment of the principal and the interest were due on May 1, 1908, but there is apparently a denial that these amounts have not been paid. ‘There is an admission that the installment and the interest due May 1, 1909, have not been paid. Upon motion of plaintiffs the ■court struck out the first three of the so-called counterclaims, and ■upon the issues joined found for the plaintiffs and entered a ■decree, from which decree and an order denying his motion for •a new trial the defendant has appealed.
1. The first contention made is, that the complaint does not state a cause of action; that it is deficient in the following particulars: (a) It does not appear therefrom that the notes representing the deferred payments were tendered to the defendant before this suit was instituted. The complaint does allege that the notes were brought into court for cancellation and return to defendant, and we think this is sufficient. (Maloy v. Berkin, 11 Mont. 138, 27 Pac. 442; 6 Cyc. 313.)
(b) It is said that tbe complaint is open to attack because it fails to allege that tbe land mentioned in tbe contract was free from encumbrances and that plaintiffs were able to convey title. If this was an action to recover the purchase price or damages for a breach, such an allegation’ might be necessary; but in a suit to cancel the contract we are unable to understand what office such an allegation would perform. However, in paragraph 9 of the complaint, the plaintiffs allege facts sufficient to meet the rule for which appellant contends.
(c) It is further urged that the complaint is defective in failing to allege that plaintiffs have tendered to defendant the money paid by him under the contract. Upon the trial of this cause in the district court, and upon this appeal, both parties have proceeded upon the assumption that it is necessary for the complaint to contain an allegation that the plaintiffs have returned, or offered to return, to the defendant the moneys paid by him to or for plaintiffs’ use, or an equivalent allegation, and we shall determine this appeal upon the theory- of the parties as thus presented, reserving the question whether in a suit to cancel a contract of this character it is necessary for the plaintiff to place the defendant in statu quo, or to allege in his complaint that he has done so or made tender. Assuming for the purposes of this appeal that such an allegation is required, we .think the complaint sufficient; for it alleges that the defendant has had the use of the premises from the date of the contract to the commencement of the .action; that the rental value of the property exceeds the amounts paid by defendant to, and for the use of, plaintiffs. All that the law requires under the rule recognized by the parties hereto is that the defendant shall be placed in as favorable a position as he was at the date of the contract, and plaintiffs ’ allegations in that respect are sufficient. It would be idle to require the plaintiffs to return to defendant the amount of payments made, if a decree in plaintiffs’ favor would require defendant to account for an equal or greater amount. In Lytle v. Scottish Am. Mort. Co., 122 Ga. 458, 50 S. E. 402, it is well said: “He [the vendee] is not entitled to a return of his purchase money until he has allowed, as a deduction therefrom. all damages caused by Ms breach, one element of which will be the fair rental value of the property during the time he'occupied it, even up to verdict.” (29 Am. & Eng. Ency. of Law, 2d ed., 649, 652; Wilson v. Moriarty, 77 Cal. 596, 20 Pac. 134.)
2. It is insisted by appellant that at the time this action was commenced he sustained toward respondents the relationship of mortgagor to mortgagees, and that plaintiffs’ only remedy was by foreclosure, under section 6861, Revised Codes. This contract is not in form a mortgage but an agreement to sell; however, it is insisted that since notes were given for the deferred payments, the vendee let into possession and the legal title retained by the vendors, equity will treat the transaction as a mortgage, and cases are cited which appear to lend support to this view. An examination of the authorities, however, will disclose the distinguishing characteristic in every instance. Every such case must be determined on its own facts and circumstances; for it is a cardinal rule in equity that the intention of the parties must give character to their transactions. In Western Nat. Bank v. National Union Bank, 91 Md. 613, 46 Atl. 960, the court said: “An equitable mortgage results from different forms of transactions in which there is present an intent of the parties to make a mortgage, to which intent, for some reason, legal expression is not given in the form of an effective mortgage; but in all such eases the intent to create a mortgage is the essential feature of the transaction.” This contract purports to be an agreement by the plaintiffs to sell, and by the defendant to purchase, certain real and personal property upon the terms and conditions specified. It provides that time shall be of the essence of it; that the vendors may at their option terminate it for failure on the part of the vendee to comply strictly with its terms, and that upon such termination, the property involved and all payments made by the vendee shall be the property of the vendors, and the vendee shall not have any action to recover. In view of these provisions, for us to hold that the transaction evidenced by the contract amounted to a mortgage would be to make a new contract for the parties, and one widely at variance with their rnani fest intention — something a court of equity will not undertake to do.
3. It is next insisted that the relationship existing between the parties was that of landlord and tenant at will, and the notice to quit, given but eleven days before suit, was insufficient under section 4502 of the Revised Codes, and that this suit was brought prematurely. In speaking of the relationship existing between the parties to a contract to purchase real estate prior to default, the author of the article on Landlord and Tenant, in 24 Cyc. 884, says: “While in many cases a person in possession of premises under an executory contract of purchase has been said to be a tenant at will of the vendor, the rule supported by apparently the better authority is that, in a strict sense, the relation of landlord and tenant does not arise under such circumstances, it being said that there can be no implied contract from which the relation of landlord and tenant may arise in opposition to the express contract of sale.” And, speaking of the same subject after default, the author says: “After default in, or abandonment of, the contract of sale, further occupancy by the vendee may raise an implied tenancy at will, or, according to some cases, at sufferance. But in the absence of a provision in the contract of sale for the creation of a tenancy, such as an express agreement to pay rent upon default, the failure of the purchaser to comply with his contract, or of the vendor to fulfill upon his part, will not cause the occupancy under the contract to be regarded as having been as tenant.” It is elementary that the relationship of landlord and tenant arises out of contract, express or implied. (24 Cyc. 876.)
There is not any contention made — -and there could not be— that this contract in terms creates the relationship of landlord and tenant; but apparently the theory is that after default the vendee holds possession at the pleasure of himself or of the vendor, and by some process is converted into a tenant at will. There are authorities which uphold this view, but with them we do not agree. The decided weight of authority and the better reasoning support the view that there cannot be an implied agreement for the occupancy of the land, in the face of the express contract that the vendee holds possession under his right to purchase. (Carpenter v. United States, 17 Wall. (U. S.) 489, 21 L. Ed. 680; Griffith v. Collins, 116 Ga. 420, 42 S. E. 743; Quertermous v. Hatfield, 54 Ark. 16, 14 S. W. 1096; Brown v. Randolph, 26 Tex. Civ. App. 66, 62 S. W. 981.) The right of the vendee to purchase continued after breach by him and until such time as the vendors saw fit to exercise the option given them by the contract to terminate it; so that it cannot be said that the contract to purchase was in full force and effect, and at the same time there was in effect, also, an implied agreement that the vendee should hold as tenant. The action of the parties under this contract completely negatives the idea that either ever intended that their relationship should be that of landlord and tenant.
4. Complaint is made of the ruling of the trial court in striking out the so-called counterclaims. In the first of these it is alleged that the plaintiffs orally represented to the defendant that the land — the subject of the agreement — comprised 365 acres, whereas in truth and in fact there were but 340 acres; that plaintiffs knew the representations to be false but defendant believed them to be true, relied upon them and in consequence thereof executed the contract. It is alleged that the land was valued at $100 per acre, and defendant insists that, whether the contract be canceled or not, he should be given credit for $2,500 because of this deficiency in the quantity of' land. Assuming these allegations to be true for the purposes of this appeal, they do not constitute a counterclaim. If false representations were made by the plaintiffs as alleged, the vendee, upon discovering the fraud, might have had just cause for rescinding the contract, or might have had a cause of action for damages for the breach; but he cannot set them up as a' defense to plaintiffs ’ cause of action for a cancellation of the contract. ‘If plaintiffs were seeking to recover the purchase price, and defendant could prove these allegations, he would be entitled to be relieved from the payments pro tanto, but the allegations, if true, do not tend to diminish or defeat the plaintiffs ’ recovery in this action and were properly stricken out. (Osmers v. Furey, 32 Mont. 581, 81 Pac. 345.) The defendant does not allege that he was damaged by reason of the deficiency in the quantity of land, and it is difficult to determine upon what theory he asserts this claim.
5. The second so-called counterclaim is predicated upon the refusal of plaintiffs to permit the defendant to sell forty acres of the land for $6,000 and to approve the sale and credit defendant with the- amount of this purchase price. It is alleged that prior to the execution of the written contract of May 1, 1907, plaintiffs and defendant had negotiated for the sale and had reached an oral agreement. It is then alleged that at the time this oral agreement was made, the plaintiffs contracted orally to permit the defendant to sell quantities of the land in question for not less than $100 per acre, and to approve such sales and credit defendant with the amounts of such sale prices upon his contract price for the entire property. A breach of this oral agreement is then alleged, and defendant claims that he is entitled to be credited with $6,000. But this contract, if made, was superseded by the written contract of May 1, 1907, and since the written contract does not contain any provision for such transactions, defendant cannot be heard to assert any right under such oral agreement. It is not claimed that there is any mistake, or imperfection in the written contract with respect to such transactions, and the written agreement must be considered, therefore, as containing all the terms of their contract which had been agreed upon at the time the written contract was executed. (Rev. Codes, secs. 5018, 7873; Kelly v. Ellis, 39 Mont. 597, 104 Pac. 873.) Since evidence to prove this alleged oral agreement would not have been.admissible (Riddell v. Peck-Williamson Co., 27 Mont. 44, 69 Pac. 241; Armington v. Stelle, 27 Mont. 13, 94 Am. St. Rep. 811, 69 Pac. 115), the court properly refused to consider defendant’s claim arising from such agreement.
6. In the third so-called counterclaim stricken out by the court, it is alleged that at the time the contract was made the plaintiffs represented to defendant that the ditches for the irrigation of the land were in proper condition to carry and distribute the water over the land; that the defendant believed these representations and relied upon them, and planted crops of grain and lay which required irrigation; that when the irrigation season of 1907 arrived, defendant discovered that the ditches were wholly unfit for the purposes intended, and to repair them he was put to an expense of $403, and by reason of the delay incident to such repairing, his crops suffered from want of water and he was thereby damaged to the extent of $1,150. These facts, if true, do not tend to diminish or defeat the plaintiffs’ cause of action, and, therefore, do not constitute a counterclaim. Evidence of these facts, if admissible at all, was admissible under the general denial, as reflecting upon the question of the rental value of the land, for the purpose of enabling the court to determine whether the value of the use and occupation of the property by defendant equaled the amounts paid by him to, and for the use and benefit of, plaintiffs, and, as a consequence, to determine whether the parties were in the same relative positions as they were at the time the contract was executed. It appears from the record that the defendant introduced evidence, without objection, as to the condition of the ditches and the expense he was obliged to incur to repair them.- He did not offer any evidence as to the damage to his crops, and since he did not do so, we are not called upon to determine whether, if offered, such evidence would have been admissible.
The trial court disregarded the questions arising upon the alleged failure of defendant to keep the buildings insured or to pay the assessments upon the ditch stock; but found that the defendant had breached the agreement by his failure to make the payments due on May 1, 1908, and the payments due on May 1, 1909. The court also found that the value of the use and occupation of the premises by the defendant was $5,000, while the total amount paid by defendant to and for the use and benefit of plaintiffs was approximately $3,000. These findings are not attacked at all; and assuming that they are fully supported by the evidence, the defendant is not in a position to complain; for had the item of expense for repairing the ditches and the full amount of damages claimed by him as the result of injury to his crops been credited to him, it would still be found that he had received, in the use and occupation of the premises, an amount far exceeding the payments made by him, including the damages which he had suffered.
7. Our conclusions upon these specifications render it unnecessary to consider the remaining assignments, further than to say that we do not find any reversible error. *
The judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Smith concur.
|
[
-10,
28,
34,
11,
15,
-39,
41,
-13,
41,
40,
54,
-31,
43,
24,
13,
-27,
-19,
-47,
-2,
22,
-61,
-32,
-36,
-29,
24,
11,
-60,
-95,
-11,
9,
11,
12,
-26,
-6,
-16,
9,
-26,
2,
-18,
-16,
27,
6,
4,
-18,
37,
2,
10,
-3,
-10,
35,
5,
-51,
7,
-6,
-34,
-52,
-24,
3,
-41,
0,
-32,
-41,
45,
12,
21,
-2,
11,
22,
30,
9,
-12,
7,
22,
-44,
34,
-55,
3,
-32,
-58,
-40,
-3,
-24,
3,
-13,
-14,
18,
-13,
-10,
10,
38,
-38,
29,
26,
15,
-9,
-27,
18,
20,
-13,
29,
1,
-35,
-34,
38,
5,
-12,
-45,
-14,
0,
36,
1,
6,
12,
-20,
-20,
27,
-44,
45,
-27,
-45,
15,
55,
-52,
-4,
-42,
-4,
-17,
9,
6,
59,
-14,
-18,
-17,
56,
-32,
2,
0,
-25,
-30,
3,
18,
-31,
-19,
-8,
-4,
63,
20,
-12,
-81,
-42,
2,
2,
6,
43,
22,
-41,
26,
-50,
53,
-37,
61,
-16,
3,
5,
-12,
34,
3,
14,
19,
-12,
-10,
-9,
-60,
-36,
50,
-14,
8,
-35,
1,
-15,
-1,
21,
-42,
-81,
9,
-16,
9,
14,
3,
14,
-10,
-35,
-29,
5,
-48,
-10,
32,
13,
14,
-5,
-4,
-2,
-2,
11,
-44,
7,
25,
7,
36,
63,
-16,
4,
-28,
-10,
-8,
-5,
7,
14,
-5,
-17,
25,
-29,
-70,
31,
-19,
-18,
53,
-23,
27,
-23,
-45,
3,
38,
20,
32,
-9,
31,
15,
-45,
6,
-15,
-10,
-34,
-1,
5,
8,
-17,
-37,
3,
24,
-21,
-15,
-36,
54,
36,
1,
-31,
17,
-16,
-22,
11,
0,
-5,
-31,
31,
-47,
7,
-47,
24,
31,
-9,
3,
12,
4,
-37,
-45,
-10,
-32,
9,
0,
10,
-44,
-19,
29,
5,
14,
31,
42,
-36,
-16,
4,
-37,
36,
-8,
50,
8,
23,
-13,
30,
-11,
-67,
21,
22,
-10,
11,
38,
-43,
18,
-11,
-35,
-6,
1,
-40,
-27,
25,
-12,
-23,
10,
28,
-24,
58,
5,
-1,
31,
-21,
-2,
32,
-50,
-7,
30,
-6,
12,
-10,
24,
23,
-21,
44,
-40,
-34,
5,
20,
26,
20,
-22,
4,
79,
-20,
-22,
-39,
8,
-19,
-10,
-51,
28,
-20,
-14,
28,
1,
-18,
7,
21,
28,
-6,
-5,
3,
22,
-41,
-43,
-30,
12,
-6,
43,
-15,
-11,
38,
18,
13,
21,
-73,
57,
-11,
-43,
0,
49,
47,
17,
11,
-38,
-55,
-20,
-44,
29,
26,
57,
14,
-23,
4,
-24,
-54,
15,
18,
48,
-33,
-21,
-31,
-49,
21,
-54,
-50,
8,
15,
-51,
-23,
-58,
11,
28,
-19,
18,
33,
4,
29,
-26,
15,
52,
18,
-18,
94,
-41,
-40,
23,
-11,
44,
-6,
6,
15,
13,
-12,
6,
-50,
43,
-2,
51,
-19,
-6,
26,
-4,
42,
17,
22,
12,
53,
9,
-8,
1,
5,
-2,
51,
-20,
36,
-21,
42,
14,
-10,
-19,
-21,
0,
14,
-35,
18,
30,
4,
12,
-3,
7,
7,
19,
-31,
-20,
-41,
-27,
-16,
-38,
0,
15,
0,
40,
-47,
9,
4,
16,
0,
32,
13,
-14,
-46,
5,
26,
-69,
22,
-22,
-4,
-7,
-10,
5,
-29,
-17,
-5,
-32,
-42,
55,
-6,
-11,
12,
-25,
4,
53,
48,
-17,
22,
51,
4,
50,
-10,
-51,
-1,
5,
8,
15,
44,
-12,
-58,
19,
2,
-11,
-6,
-16,
10,
28,
10,
-29,
-30,
12,
30,
27,
-5,
0,
6,
6,
19,
22,
22,
-55,
5,
22,
6,
34,
17,
-2,
9,
14,
3,
31,
-11,
-26,
54,
31,
1,
-11,
-25,
27,
-45,
0,
28,
11,
3,
7,
-17,
6,
0,
21,
-18,
-14,
-30,
-16,
3,
17,
23,
32,
-12,
27,
2,
-43,
30,
-15,
-10,
-1,
39,
-20,
-44,
48,
9,
6,
-22,
10,
-25,
-1,
-33,
-21,
-1,
22,
-48,
18,
25,
13,
16,
22,
22,
-46,
52,
-23,
34,
-30,
24,
-19,
-9,
4,
-50,
5,
-33,
66,
-15,
-8,
46,
-7,
17,
3,
-3,
44,
-57,
-34,
8,
-14,
-20,
-19,
-4,
0,
3,
18,
75,
-44,
-15,
45,
27,
-53,
21,
5,
43,
-5,
33,
0,
37,
15,
-20,
16,
16,
-13,
38,
15,
-23,
-6,
55,
-4,
23,
7,
28,
-20,
51,
6,
33,
0,
23,
40,
-15,
21,
12,
-2,
37,
4,
6,
29,
41,
-16,
-28,
16,
-17,
-27,
2,
-10,
-28,
-9,
22,
-37,
-11,
-18,
7,
65,
-38,
46,
22,
25,
8,
-36,
0,
11,
-44,
4,
21,
30,
-76,
-43,
32,
-16,
15,
3,
-10,
-4,
27,
13,
-29,
19,
9,
45,
-16,
32,
-40,
54,
-32,
-18,
-29,
-65,
14,
3,
-16,
63,
-31,
14,
22,
1,
-30,
-30,
22,
2,
24,
24,
-14,
-45,
-60,
11,
2,
-5,
45,
22,
9,
39,
-13,
-9,
-4,
-53,
-32,
-25,
10,
-8,
-37,
-41,
7,
19,
10,
17,
3,
-16,
0,
-12,
-34,
2,
-24,
-25,
30,
35,
24,
65,
-2,
-21,
2,
-47,
-32,
0,
39,
0,
-3,
6,
-50,
-1,
13,
35,
25,
-9,
-27,
-1,
16,
-23,
-56,
-21,
7,
7,
34,
9,
-51,
1,
4,
-26,
-16,
-9,
1,
42,
19,
-26,
-28,
-17,
-46,
23,
59,
-45,
-2,
-2,
-42,
34,
30,
13,
-13,
-4,
-45,
-44,
-68,
-4,
35,
10,
-16,
15,
-5,
7,
-40,
-3,
20,
6,
-2,
-3,
-57,
-10,
28,
50,
-4,
-21,
-10,
28,
36,
-17,
12,
3,
-29,
29,
11,
20,
9,
-2,
-21,
-22,
2,
-12,
75,
-2,
-23,
11,
-41,
26,
-32,
8,
36,
16,
29,
53,
21,
-35,
-37,
4,
17,
-12,
-2,
-16,
29,
9,
22,
-14,
13,
0,
-29,
5,
-18,
17,
20,
41,
53,
-40,
-35,
-48,
-26,
12,
7,
-16,
-1,
47,
-4,
-3,
-44,
7,
13,
-2,
-8,
13,
15,
44,
-4,
38,
-28,
-6,
-2,
-24,
-8,
22,
20,
-26,
-5,
-43,
47,
-20,
0,
-17,
16,
-33,
-4,
-7,
31,
80,
35,
74,
30,
-6,
-68,
-4,
20,
-82,
-26,
16,
1,
-69,
10,
-7,
31,
11,
-6,
6,
43,
-49,
-5,
-6,
-32,
10,
29,
44,
-2,
-9,
13,
-5,
-28,
-4,
-13,
45,
34,
0,
-35,
-45,
26,
39,
12,
-19,
-17,
-15,
-28,
-4,
-27,
-12,
-4,
2,
-34,
-26,
-2,
-16,
13,
-28,
35,
-16,
-15,
-12,
28,
-37,
-11,
28,
-28,
2,
-20,
12,
3,
7,
38,
11
] |
MR. JUSTICE DALY
delivered the opinion of the court.
This is an original proceeding wherein relator James E. Murphy seeks a writ of supervisory control, on application from the district court of Fergus County.
The.facts are: At approximately 9:00 a.m. on April 29, 1975, James Murphy, Edwin Rasmussen and Gary Smith entered the Roy Bar located in Roy, Montana. Seated at the far end of the bar was Ray Hamann, the owner and operator. Hamann had had dealings with the three men before and was to testify at a pending trial in which the three were named as defendants. This involved an altercation with other persons that had previously taken place in the Roy Bar. While Murphy and Smith seated themselves at the bar some distance from Hamann, Edwin Rasmussen walked up behind Hamann and jerked him off his bar stool. Three separate attacks by Rasmussen on Hamann follow ed over a short period of time, the last resulting in Hamann’s death. During the course of these attacks, Gary Smith fled, but Murphy remained in the bar. After the third attack Murphy rendered assistance to Hamann and turned him over so that he would not choke on his own blood. He then told the barmaid Linda Alexander to call an ambulance. After the last attack on Hamann an unspecified amount of money was taken from the cash register by Edwin Rasmussen.
On May 5, 1975 motions supported by affidavits were made by the state for leave to file Informations direct, charging both Rasmussen and Murphy with deliberate homicide. The motions were allowed by the district court. An Information was filed against Edwin Rasmussen charging him with deliberate homicide pursuant to section 94-5-102, R.C.M.1947, as the result of his physical actions against Ray Hamann.
By separate Information Murphy was also charged with deliberate homicide by reason of his words and physical presence during the attacks on Ray Hamann. On May 15, 1975, an Amended Information was filed against Murphy, still charging him with deliberate homicide, but containing new allegations as to his role in the attacks. Specifically, he was charged:
“* * * as accessory and principal [in that he either] purposely or knowingly caused the death of Ray Hamann [or in the alternative] as accessory and principal [in that he] caused the death of * * * Ray Hamann while engaged in the commission of a Felony — Tampering with a Witness, which felony involved the use or threat of physical force or violence against * * * Ray Hamann, or during the commission of or flight after the commission of Felony — Robbery.” [Bracketed material paraphrased].
Subsequently the Information against Rasmussen was also amended to include additional charges of deliberate homicide as the result of robbery, and tampering with a witness.
Upon arraignment Murphy entered a plea of not guilty to the Amended Information. Rasmussen plead guilty to the charge against him and received a prison sentence. Thereafter, on April 15, 1976, Murphy filed several motions with the district court. These motions were:
1. Motion to dismiss the Amended Information upon the ground that the affidavit contained insufficient facts to support the filing of an Information.
2. Motion to suppress any statement or affidavit attributed to Ray Hamann.
3. Motion in limine to prohibit the state from asking certain questions of witnesses.
On April 23, 1976, the state filed an amended affidavit. On May 11, 1976, the district court denied all of Murphy’s motions.
It is from a denial of these motions and the further contention the amended affidavit is still insufficient to support the Amended Information, that application is made to this Court for a writ of supervisory control.
First, we consider whether sufficient facts were before the district court to support the granting of leave to file an Information direct, charging Murphy with deliberate homicide.
Section 94-5-102(1), R.C.M.1947 states:
“Deliberate homicide (1) Except as provided in section 94-5-103(l)(a), criminal homicide constitutes deliberate homicide if:
“(a) it is committed purposely or knowingly; or
“(b) it is committed while the offender is engaged in or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, sexual intercourse without consent, arson, burglary, kidnaping, felonious escape or any other felony which involves the use or threat of physical force or violence against any individual.”
Given the circumstances surrounding Rasmussen’s attack on Ray Hamann, including the admission in the amended affidavit that “no other person struck or hit the said Ray Hamann to cause any injury to him”, it necessarily follows that to determine whether sufficient facts exist to charge Murphy with deliberate homicide in either intentionally causing Hamann’s death by kicking and beating pursuant to section 94-5-102(1)(a), or as the result of tampering with a witness under section 94-5- 102{l)(b), we examine the statute on criminal accountability. That statute, section 94-2-107, R.C.M.1947, reads in pertinent part:
“Whqn accountability exists. A person is legally accountable for the conduct of another when:
“(1) having a mental state described by the statute defining the offense, he causes another to perform the conduct, regardless of the'legal capacity or mental state of the other person; or
“(2) The statute defining the offense makes him so accountable; or
“(3) either before or during the commission of an offense, and with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. * * *”
As to the sufficiency of the amended affidavit, we note it is well established that leave to file an Information direct may be granted only upon probable cause as evidenced by the affidavit before the district court, and any other evidence which the court may require. Section 95-1301 (a), R.C.M.1947; State ex rel. Bell v. District Court, 157 Mont. 35, 482 P.2d 557; State v. Dunn, 155 Mont. 319, 472 P.2d 288. Examination of the record reveals no supporting evidence other than the amended affidavit. Thus, in determining whether probable cause existed this Court is confined to the contents of the amended affidavit. Petition of Gray, 155 Mont. 510, 473 P.2d 532. The amended affidavit reads in relevant part:
“That prior to the attack by Edwin Rasmussen, there was a discussion between Edwin Rasmussen and Defendant, James Murphy, of the testimony of the said Ray Hamann to be given at a pending trial of State of Montana vs. Edwin Rasmussen and James Murphy on another charge (this according to admissions of the Defendant before your affiant and Sheriff Jack L. Songer); and,
“That immediately subsequent to said discussion the Defendant, Rasmussen and witness Gary Smith proceeded directly to the Roy Bar owned by the decedent and then Edwin Rasmussen, immediately upon entering, went forthwith to the decedent and attacked him, (this according to witnesses Alexander, Kalal and Smith); and,
“That thereafter Defendant, James Murphy, at no time took any physical steps to restrain Edwin Rasmussen but instead upon at least one occasion reprimanded the said Ray Hamann and said that he [Hamann] had this coming’ or words to that effect. (Statements of Linda Alexander)”
We fail to see how such allegations can suffice to establish probable cause that Murphy committed deliberate homicide intentionally or as the result of witness tampering. The definitions of deliberate homicide and criminal accountability contemplate a more active role before a person can be charged as a principal or accessory to murder. The amended affidavit does not state as fact that Murphy went to the bar with the purpose of harming Hamann; it merely states he had discussed with Rasmussen the fact that Hamann was to testify at their pending trial. The affidavit states Murphy was in fact in the bar during Rasmussen’s attacks on Hamann. However, this Court has long adhered to the principle that more than mere presence at the scene of a- crime is necessary to establish criminal responsibility. State v. McComas, 85 Mont. 428, 278 P. 993. Neither does the allegation that Murphy did little to stop the attacks but rather rendered an opinion that Hamann “had this coming” constitute sufficient evidence of criminal design and encouragement on the part of Murphy. The affidavit goes on to state as fact:
“That Defendant, James Murphy, 1) encouraged by words the said Edwin Rasmussen, 2) planned the initial contact with the said Ray Hamann by the Defendant and others. * * * ”
However such statements are not facts but only conclusions, conclusions not supported by other facts in the amended affidavit.
In summary, the Revised Commission Comment on section 95-1301, R.C.M.1947, is appropriate. It states in pertinent part:
“ * * * Obtaining leave to file an information is not a mere perfunctory matter * * *. The application must be complete in itself, and contain such salient facts as will allow the district judge to make an independent determination that an offense has been committed.”
See also: State ex rel. Bell v. District Court, 157 Mont. 35, 482 P.2d 557.
The amended affidavit before us fails this test, making an independent determination of probable cause by the district court impossible. This conclusion applies, to both the charge of intentionally causing, as an accessory or principal, the death of Ray Hamann and to the alternative charge of being an accessory or principal to the death caused by tampering with a witness by means of force or violence.
The question of whether probable cause existed to believe Murphy committed deliberate homicide during the commission of robbery or flight thereafter, the relevant portion of the amended affidavit reads:
“That in addition to the above, the said Rasmussen and Defendant, immediately after the attacks on Hamann, took and used certain cash money from the cash register and decedent’s wallet and Rasmussen took certain liquor from the bar * *
In light of this portion of the amended affidavit and the other theories advanced by the state in its claim that Murphy committed deliberate homicide, we note with approval the following guidelines as to the applicability of the felony-murder rule stated in 1 Wharton’s Criminal Law and Procedure (Anderson), § 252, p. 543:
“For the felony-murder rule to apply, it is necessary that the homicide be a natural and probable consequence of the commission or attempt to commit the felony; that the homicide be so closely connected with such other crime as to be within the res gestae thereof; or the natural or necessary result of the unlawful act; or that it be one of the causes. * * *
“Something more than a mere coincidence of time and place between the wrongful act and the death is necessary. It must appear that there was such actual legal relation between the killing and the crime committed or attempted that the killing can be said to have occurred as a part of the perpetration of the crime, or in furtherance of an attempt or purpose to commit it.”
Thus for the felony-murder rule to apply a causal connection between the felonious act and the death must be present. State v. Schwensen, 237 Or. 506, 392 P.2d 328; Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472; People v. Hardy, 33 Cal.2d 52, 198 P.2d 865; State v. Diebold, 152 Wash. 68, 277 P. 394.
Examining the amended affidavit as a whole and the section pertaining to the alleged robbery in particular, we find causal connection lacking for several reasons: First, the mere allegation that the robbery occurred “immediately” after the attacks is not sufficient by itself to establish probable cause to believe the attacks were in perpetration. Second, this is especially so in light of the inconsistent theory advanced by the state that the attacks were in fact retaliation for Hamann’s planned appearance as a witness at a pending trial. Third, if we are to believe that the attacks may have had a two-fold purpose, the intimidation of Hamann and robbery, the amended affidavit still contains insufficient facts upon which to base probable cause.
Holding that probable cause did not exist for filing an Information against relator Murphy under any of the theories advanced by the state, this Court does not reach the other issues raised by his application.
The writ will issue with direction to dismiss the charge under consideration with prejudice.
MR. JUSTICES HASWELL, JOHN C. HARRISON and CASTLES and the HON. GORDON BENNETT, sitting in place of Mr. Chief Justice Harrison, District Judge, concur.
|
[
30,
37,
19,
44,
-22,
-66,
-9,
-39,
-97,
36,
12,
7,
-40,
-34,
39,
-33,
-17,
-13,
-3,
-46,
30,
-49,
8,
0,
-1,
-11,
3,
37,
-63,
43,
32,
15,
57,
-29,
21,
55,
-8,
-53,
-29,
16,
-48,
29,
32,
-12,
30,
-3,
20,
3,
-10,
-35,
-23,
-14,
62,
21,
10,
-22,
-23,
-3,
11,
15,
-27,
-6,
-19,
3,
22,
-41,
27,
-23,
-8,
-35,
23,
-15,
-8,
27,
-16,
-15,
-52,
-15,
-1,
-82,
-29,
77,
-14,
48,
0,
-6,
-31,
-16,
-10,
11,
25,
46,
-44,
15,
17,
11,
-41,
-3,
-9,
-4,
33,
-65,
-104,
-37,
-4,
22,
35,
18,
66,
23,
-22,
-3,
24,
25,
2,
-79,
-42,
8,
-30,
78,
30,
3,
46,
27,
-25,
-3,
43,
1,
-6,
11,
-31,
-6,
33,
-48,
-26,
-31,
-67,
71,
-5,
-31,
-17,
-5,
5,
33,
21,
27,
-39,
40,
33,
32,
2,
-15,
79,
64,
-9,
-55,
-21,
-5,
-50,
52,
7,
-58,
40,
19,
30,
37,
0,
-27,
-84,
-3,
-23,
-12,
-37,
4,
57,
26,
27,
10,
0,
-10,
-7,
22,
-3,
-16,
17,
39,
41,
-48,
47,
-3,
-53,
-22,
0,
-42,
3,
-11,
40,
-33,
1,
12,
40,
-24,
49,
-28,
-5,
-79,
35,
-1,
43,
43,
10,
-7,
28,
11,
-15,
-21,
-27,
-49,
30,
-68,
-74,
-31,
-53,
0,
-32,
-34,
-16,
4,
-39,
-84,
27,
-48,
-16,
8,
1,
-76,
33,
-45,
44,
4,
18,
-39,
24,
-14,
39,
59,
11,
-16,
-3,
5,
25,
12,
7,
10,
-7,
15,
84,
-93,
59,
29,
-17,
-48,
28,
44,
17,
4,
59,
-9,
-51,
5,
26,
-17,
83,
4,
-54,
-15,
-9,
13,
35,
-12,
39,
-20,
-4,
79,
-2,
14,
-15,
13,
-41,
-65,
8,
-12,
-6,
23,
45,
10,
54,
-38,
1,
-3,
-29,
3,
-39,
-21,
-22,
1,
-21,
-30,
20,
-39,
29,
21,
-59,
-31,
9,
-32,
-20,
21,
60,
-2,
32,
-12,
22,
-38,
-6,
-48,
-24,
62,
-9,
39,
34,
34,
-17,
47,
-83,
17,
10,
9,
5,
-42,
5,
-42,
0,
31,
-61,
12,
-19,
92,
-36,
-87,
-15,
-46,
16,
34,
2,
39,
-20,
-6,
60,
-19,
39,
-67,
-69,
0,
-39,
-22,
-3,
0,
-34,
-3,
-2,
-42,
18,
-34,
33,
43,
12,
9,
16,
51,
6,
-39,
-23,
2,
-21,
7,
-2,
-94,
-34,
14,
-42,
0,
-28,
31,
0,
-40,
-31,
-29,
23,
-32,
-18,
-12,
31,
-12,
-39,
-19,
-18,
21,
73,
2,
-7,
-22,
3,
-20,
-12,
11,
-34,
-23,
-34,
22,
22,
17,
35,
-48,
56,
-24,
10,
30,
-7,
11,
-22,
12,
-7,
3,
28,
-42,
7,
-10,
5,
-31,
-21,
-41,
2,
19,
36,
2,
-40,
2,
40,
-30,
-7,
52,
29,
1,
-38,
69,
43,
-8,
1,
9,
-16,
37,
-23,
-8,
53,
28,
-41,
47,
-34,
31,
39,
10,
-6,
-24,
-31,
-13,
34,
-12,
31,
-9,
-33,
-36,
-13,
-30,
-16,
17,
5,
-86,
-1,
21,
78,
-1,
33,
34,
-42,
19,
0,
57,
-24,
0,
-27,
-30,
-30,
7,
-1,
-23,
29,
21,
-43,
-20,
-5,
-23,
-59,
0,
-20,
-15,
38,
-29,
-28,
-18,
53,
29,
50,
22,
-66,
-52,
-17,
1,
-19,
-97,
6,
35,
-33,
-40,
9,
78,
27,
-13,
-32,
-21,
82,
-55,
24,
28,
-10,
28,
76,
-45,
32,
71,
68,
-15,
13,
-27,
6,
36,
11,
-38,
-39,
-21,
13,
40,
-14,
43,
36,
14,
-61,
40,
51,
-35,
-52,
20,
26,
-7,
26,
22,
11,
30,
-42,
90,
27,
6,
35,
104,
-54,
7,
64,
-11,
10,
38,
-8,
-29,
-23,
18,
38,
6,
21,
20,
-53,
-42,
27,
6,
39,
20,
59,
-46,
-5,
-47,
20,
-15,
-51,
-25,
-27,
43,
-19,
-6,
-23,
-12,
-9,
22,
37,
-67,
-26,
15,
23,
-24,
-19,
-47,
85,
-19,
-60,
5,
22,
18,
44,
-27,
-54,
-47,
-5,
12,
0,
24,
5,
39,
35,
16,
-28,
29,
-11,
-31,
27,
-41,
9,
-27,
-37,
-1,
70,
-34,
31,
-1,
13,
79,
-50,
21,
0,
26,
72,
-18,
-52,
19,
15,
30,
31,
-17,
0,
-22,
-29,
-49,
17,
48,
11,
-8,
22,
-51,
1,
95,
-26,
-28,
-37,
51,
-7,
49,
5,
0,
28,
34,
8,
-30,
-59,
-25,
13,
-74,
-35,
-10,
22,
61,
12,
-95,
-52,
-20,
-45,
8,
-37,
35,
39,
17,
-29,
26,
-16,
3,
-74,
-32,
8,
-16,
97,
-20,
-21,
106,
-12,
-27,
38,
-50,
-35,
2,
-17,
63,
-17,
-8,
2,
65,
-13,
-1,
-10,
-9,
21,
-51,
-48,
-51,
20,
35,
8,
66,
22,
0,
6,
15,
60,
5,
11,
33,
66,
40,
-21,
-37,
-13,
-38,
15,
-23,
8,
-20,
9,
19,
-66,
23,
-19,
-35,
9,
-16,
20,
0,
-10,
0,
-39,
-7,
40,
1,
-12,
54,
33,
3,
-40,
27,
-10,
4,
-25,
26,
62,
1,
-12,
72,
-2,
14,
10,
10,
-15,
-47,
55,
0,
-26,
-6,
6,
42,
25,
28,
-29,
-14,
41,
-36,
-14,
-23,
37,
-37,
54,
-28,
4,
-67,
-48,
20,
-44,
17,
-76,
50,
6,
-23,
47,
16,
-29,
18,
-48,
62,
31,
33,
16,
28,
29,
-65,
41,
3,
5,
3,
-5,
8,
-43,
-31,
-28,
-31,
-34,
-29,
-10,
-13,
-52,
18,
0,
-36,
-87,
-22,
4,
47,
-43,
39,
-45,
-34,
36,
68,
-12,
16,
3,
-36,
-19,
20,
-2,
-29,
-29,
-10,
2,
13,
8,
16,
35,
12,
-8,
-2,
-15,
0,
0,
-16,
-1,
34,
6,
-31,
-45,
27,
14,
73,
99,
-48,
46,
-1,
79,
9,
6,
15,
51,
-6,
-15,
-13,
-39,
3,
59,
20,
15,
13,
3,
31,
37,
17,
-46,
-12,
-41,
58,
-26,
-9,
-23,
-19,
-55,
35,
-9,
-23,
-14,
11,
17,
44,
10,
34,
19,
-11,
-2,
-103,
-48,
12,
-2,
-22,
-69,
30,
30,
-14,
-28,
32,
-66,
18,
-18,
13,
13,
30,
-25,
-45,
-4,
-6,
-12,
-10,
-28,
-36,
20,
59,
-63,
0,
0,
26,
-3,
-47,
-20,
54,
65,
-2,
44,
53,
73,
23,
21,
16,
-55,
-3,
-28,
78,
49,
-12,
-61,
18,
21,
-9,
56,
36,
6,
4,
20,
5,
-42,
35,
28,
-30,
-28,
0,
-9,
-53,
-6,
-7,
4,
-12,
-19,
40,
-80,
1,
-44,
6
] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
John O’Neil died at Glendive, Dawson county, Montana, on September 22, 1908, at the age of sixty-eight years. He had neither wife nor children. He left a will dated August 12, 1908. designating the plaintiff, a brother, as his executor. By order of the district court in and for Dawson county, made on March 31, 1910, the will was admitted to probate, and the plaintiff, having qualified as executor, entered upon the discharge of his duties. Prior to his death the deceased had made deposits in different amounts with the defendant banking institutions, which were evidenced by certificates payable to himself and amounting in the aggregate to about $12,000. The deceased was a resident of the city of Helena, Montana, but the will was executed at Glendive, where he had stopped to visit the plaintiff and his family while on his way to Rochester, Minnesota, to secure special medical treatment, having for some time theretofore been in failing health. On August 20 he telegraphed to the defendant, James O’Neil, who resided at Hudson, Wisconsin, to meet him in St. Paul, Minnesota, to accompany him to Rochester. The two met in St. Paul on August 21 and proceeded at once to Rochester. They remained there together at a hotel until August 24, when James returned to his home. In the meantime the deceased was under treatment by his physician preparatory to undergoing a surgical operation which it was thought would probably aid his restoration to health. For safekeeping he put into the hands of one Fridell, the proprietor of the hotel, his watch and a wallet containing the certificates of deposit mentioned, together with other papers. On September 6 James O’Neil returned to Rochester, having been informed by the deceased by telegram that the operation would be performed within two days. On the next day, and before going to the hospital to undergo the operation, the deceased obtained the watch and wallet from Fridell and handed them to his brother. The certificates were not indorsed. The operation was performed on September 8. James remained at Rochester, spending a part of each day with the deceased at the hospital, until September 10; on that day he went to his home taking the wallet and its contents with him. He did not thereafter return to Rochester to see the deceased. After four or five days the deceased, having survived the operation though still weak from the effects of it and his illness, returned to the hotel and remained there until September 18, when he left, returning to Glendive, the home of plaintiff, where he remained until his death. He was accompanied- by a son of plaintiff whom he had summoned from Glendive by telegram to come to Rochester to attend him. Separate actions were brought by the plaintiff, as executor, against each of the banks to recover the amounts of the different deposits as assets belonging to his testator’s estate. James O’Neil was made defendant in all of them. The action against the Cruse Savings Bank was originally brought in Lewis & Clark county; the others were brought in Yellowstone county, the place at which the defendant institutions, other than the Cruse Savings Bank, are doing business. The first was by agreement of the parties transferred to Yellowstone county, whereupon all of them were consolidated and tried as one. Disclaiming any interest in the deposits, the defendant banks were permitted to pay into court the amount due from them respectively. James O’Neil alone answered. As a defense he alleged, in substance, that after the execution of his will and during the month of September the deceased was suffering from a dangerous illness; that in the hope of obtaining relief he was about to undergo a surgical operation; that prior to undergoing the operation, being aware of the attendant danger and apprehensive that death might result from his illness and the operation, the deceased gave to the defendant James O’Neil the certificates of deposit held by him; that immediately thereafter the deceased submitted to the operation; that he subsequently, on September 22, died of his illness, and that the defendant, having accepted the gift of the certificates, thereby became the owner of them and the amounts' due upon them. The issues made upon these allegations by the reply of the plaintiff were found by the jury by a general verdict in favor of the plaintiff. Judgment was rendered against each of the banks for the respective amounts due from them, and against James O’Neil for the costs of the actions. This defendant has appealed from the judgment and an order denying his motion for a new trial.
Some contention is made by counsel upon the question whether these actions are at law or. in equity, the appellant contending that they are in equity and hence that this court should examine the record and determine the questions of fact and law arising thereon, under the provisions of the Code applicable to such cases. (Rev. Codes, sec. 6253.) We are inclined to the view that the pleadings present strictly legal issues only, and that under the rule so often stated by this court, the finding of the jury must stand if any substantial support for it is found in the evidence. But assuming that the position taken by counsel for appellant is correct and giving him the benefit of the more liberal mode of review prescribed by the statute as it has heretofore been construed and applied (Bordeaux v. Bordeaux, 32 Mont. 159, 80 Pac. 6; Finlen v. Heinze, 32 Mont. 354, 80 Pac. 918; Pew v. Johnson, 35 Mont. 173, 119 Am. St. Rep. 852, 88 Pac. 770; Delmoe v. Long, 35 Mont. 139, 88 Pac. 778), we are nevertheless of the opinion that the contention — which is the principal one made by appellant — that the evidence is insufficient to justify the finding of the jury must be overruled.
The statute defines a gift as a “transfer of personal property, made voluntarily, and without consideration.” (Rev. Codes, sec. 4635.) It defines a gift causa mortis, or one made in view of death, as follows: “A gift in view of death is one which is made in contemplation, fear, or peril of death, and with intent that it shall take effect only in case of the death of the giver.” (Sec. 4638.) To constitute a gift inter vivos, within the statute, the donor must voluntarily deliver the subject of the gift to the donee with the present intention to vest the legal title in the donee, who must accept it. The essential elements are therefore: the delivery, the accompanying intent, and acceptance by the donee. Such a gift is made without condition, and becomes at once irrevocable. A gift causa mortis is subject to the conditions: (1) it must be made in contemplation, fear or peril of death, (2) the donor must die of the illness or peril which he then fears or contemplates, and (3) the delivery must be made with the intent that title shall vest only in case of death. While there is some conflict in the authorities upon the question whether the title vests upon delivery, subject to be -defeated by the recovery of the donor, or vests only upon the death, they uniformly agree that all these elements must concur to render the gift effective. (Leyson v. Davis, 17 Mont. 220, 42 Pac. 775, 31 L. R. A. 429; Daniel v. Smith, 64 Cal. 346, 30 Pac. 575; Zeller v. Jordan, 105 Cal. 143, 38 Pac. 640; Williams v. Guile, 117 N. Y. 343, 22 N. E. 1071, 6 L. R. A. 366; Ridden v. Thrall, 125 N. Y. 572, 21 Am. St. Rep. 758, 26 N. E. 627, 11 L. R. A. 684; Allen v. Allen, 75 Minn. 116, 74 Am. St. Rep. 442, 77 N. W. 567; Varley v. Sims, 100 Minn. 331, 117 Am. St. Rep. 694, 111 N. W. 269, 8 L. R. A., n. s., 828, 10 Ann. Cas. 473; Gourley v. Linsenbigler, 51 Pa. 345; Blazo v. Cochrane, 71 N. H. 585, 53 Atl. 1028; Larrabee v. Hascall, 88 Me. 511, 51 Am. St. Rep. 440, 34 Atl. 408; 3 Redfield on Wills, pp. 324, 326; Thornton on Gifts, sec. 25 et seq.; 1 Williams on Executors, 887, 20 Cyc. 1236.) Hence the statute, though in theory it makes the vestiture of title dependent upon the death of the donor, embodies the common-law definition recognized by the courts generally.
Counsel devote much of their argument to the question whether the evidence justifies the conclusion that the deceased was moved to make the gift of the certificates to his brother because, weakened as he was by his existing illness, he feared that he would die under the operation, or whether he was apprehensive that he would eventually die of his illness even though he might survive the operation. As we view the evidence, it is not of moment what his apprehension was. As appears from the instructions submitted to the jury, the court proceeded upon the theory— which is correct — that the burden was upon defendant to establish his claim. This required him to show, not only that the delivery to him by deceased was induced by fear of approaching dissolution, but also that the intention was to vest title in the defendant in case death occurred as he then feared. In other words, it was a question upon the evidence whether the deceased intended the delivery of the wallet and watch as a gift or merely as a deposit for safekeeping. The solution of this question, depending as it did upon the credibility of the witnesses as to what transpired at the time the delivery was made, was exclusively within the province of the trial court. A brief reference to some of the salient points in the evidence will be sufficient to demonstrate that its conclusion ought not to be disturbed.
The defendant testified: “In the hotel we came downstairs, me and John, and me and John went to the office and he asked the hotel man to telephone for a hack and look up his bill; he was going to the hospital. So the hotel man telephoned for a hack and looked up his bill, and in a minute the hack got there; so John paid his bill and Mr. Fridell says: ‘John, when you get well and so you will be able to leave the hospital I would like to have you come back and stay with us.’ John says: ‘I don’t believe I will be able to come back.’ So he says to Mr. Fridell, ‘I have got some papers and a watch in your safe. Will you please give them tome?’ Mr. Fridell opened the safe, unlocked, and handed the papers and watch to John, and John turns around to me — * * * Q. What did John say when— A. John said, ‘James, I don’t believe I will ever get well; I am afraid I am going to die. Here is some certificates of deposit and my watch, you take them and keep them and if I die they are yours. Q. How long did you remain in Rochester after the operation was performed on John? A. I stayed until September 10. Q. September 10? A. Yes, sir. The operation was performed the 8th. Q. On the 8th? A. Yes, sir. Q. Where did you then go ? A. Went back to the hotel. I went up every morning; had two hours in the forenoon and three hours in the afternoon. I would go up there and sit there. Q. After you left the hotel on the 10th, where did you go? A. I went home. I was sick myself; that is why I went home; I got the dysentery and I went home. Q. Did you afterwards go back? A. I intended to go back the next Saturday; but in the meantime I got a letter from my nephew, John O’Neil.” This letter conveyed to him the information that the deceased would leave St. Paul on September 18 on his way to Glendive. Though defendant’s home was only eighteen miles from St. Paul he did not go to meet deceased.
Fridell testified: “John and James came down in the afternoon, and John says, ‘Order me a hack and look up my bill,’ and he paid his bill, $9.50, I think it was. * * * He said, ‘I hardly think I will pull through, but if I do I will be glad to come back. Q. What else? A. He asked for his papers and watch; package of papers and watch, and I unlocked the safe and handed him his papers and watch. Q. Handed him this pocketbook? A. Yes, sir, and a watch. * * # Q. And were the certificates in this pocketbook that you had seen previously ? A. Yes, sir. Q. What did John do with them, and what did he say? A. He turned to his brother— Q. What brother? A. James O’Neil, and he said, ‘James, I don’t believe I will ever get well. Here is some certificates and my watch; you take them and keep them, if I die they are yours.’ He then felt that his Montana people — he said, ‘ That old stiff out in Montana has his mitt out for everything; he would not do a hand’s turn without he expected money.’ Q. What did James do? A. James put the certificates in his pocket. Q. When you say ‘ certificates ’ what do you mean? A. The watch and the pocketbook.”
If these statements stood alone and were not impeached by direct contradiction or by circumstances, it might well be argued that the finding of the jury was contrary to the evidence, for there is nothing inherently improbable in them. But when they are weighed in the light of the circumstances as they existed, the character and disposition of the deceased, and the subsequent conduct of the defendant and his witness Fridell, the truth of them is open to serious question. John O’Neil, it appears, was very averse to contracting indebtedness and was habitually prompt in the payment of his obligations. There is some testimony that when he went to Rochester he had in his wallet several hundred dollars in currency, besides the certificates. What became of the currency it is not important now to inquire. When his nephew reached him in Rochester in response to his telegram, he was wholly without funds, and it was necessary for the nephew to obtain them from home to pay the hotel bill and railroad fare. The hospital and surgeon’s bills were left unpaid. If James O’Neil’s story is true, he accepted as a gift from his brother all the funds he had to bear his expenses and after a day or two returned to his home, leaving his brother in the hospital wholly destitute. He omitted even to thank his brother for his generosity. He did not return, though the evidence shows that about the time the deceased left Rochester on his return to Glendive accompanied by his nephew, he sent to deceased a money order for five dollars. Why he did this the evidence does not disclose. Aside from this attention he seems not to have cared what became of his brother. He was present at the burial at Glen dive. On the next day the will was opened and read in the presence of plaintiff and the defendant. The defendant expressed dissatisfaction when he ascertained that under its provisions the son of plaintiff received a larger share of the estate than was given to him and his two sisters. He immediately announced his intention to contest the will. The fact that he had the certificates in his possession was mentioned, and though they were referred to as a part of the estate, and though he found fault with the valuation of the real property disposed of by the will, he did not then claim that the certificates had been given to him by his brother, nor did he thereafter, so far as the evidence discloses, claim them until a contest of the will instituted by him had been disposed of. Early in January, 1909, Mr. Hurley, one of counsel for plaintiff, visited Fridell at Rochester, Minnesota, to make inquiry concerning the certificates. In response to an inquiry as to what was said at the time the wallet and watch were delivered to the defendant, Fridell said: “The day that John O’Neil went to the hospital he asked me for the package of papers and I gave them to John and John handed them over to Jim.” Answering the question whether the deceased said anything about giving the papers to his brother, he said he did not. Questioned further he said that there was nothing said at that time that led him to think that the deceased intended to make his brother a gift, but that he supposed the papers were delivered for safekeeping only. He further said that he did not hear the deceased say that he expected to die or anything to indicate that he was laboring under apprehension of death. Subsequently, in a letter to the same witness in answer to similar inquiries addressed to him, he said: “I heard him (deceased) say that they are yours to keep, or words to that effect. ’ ’ It appears that the telegram received by the defendant from deceased, summoning him to St. Paul, was the only information he had received as to his brother’s whereabouts for nineteen years. There is nothing in the evidence showing that the deceased had a higher regard for the defendant than for his other kinsmen. The deceased was apparently intelligent and had had considerable business experience. He was able to attend to his business affairs notwithstanding the feeble condition of his health, and was not pressed for time; yet he did not indorse the certificates though he must have known that a transfer of a certificate is usually made by indorsement. "While the indorsement was not absolutely essential to the validity of the gift, because a delivery of such an instrument is sufficient to transfer the equitable title (Ridden v. Thrall, supra; Thornton on Gifts, pp. 229, 242 ; 20 Cyc. 1202), the omission of this formality was a fact for consideration by the court and jury.
Taking into consideration these circumstances, together with the fact that the defendant was an interested party, and, as appears from the evidence, further that Fridell exhibited a partisan interest in the result of the litigation, it cannot be said that the jury or the trial court arbitrarily disregarded their testimony or that the conclusion reached that the transaction did not amount to a gift, is unreasonable.
If it was not the intention of deceased to make a gift, then as heretofore stated, it is not of moment to inquire what was the cause of his death.
The court entertained the view that the validity of defendant’s claim was to be determined according to the law of the state of Minnesota relating to gifts causa mortis and instructed the jury accordingly, having ascertained it from reported decisions of the supreme court of that state which were introduced in evidence by counsel for plaintiff. Error is assigned upon the action of the court in this behalf, counsel insisting that though the case is one in equity, the view of the court was fundamentally wrong because, since the gift could not become effective until the death of deceased, and since the death occurred in Montana, the validity of the gift would have to be determined by the law of this state. Counsel also insist that the court erred in admitting in evidence the decisions from the state of Minnesota. The validity of a gift causa mortis is determined by the law of the place where it is made, without reference to the domicile of the donor. (Emery v. Clough, 63 N. H. 552, 56 Am. Rep. 543, 4 Atl. 796; Burt v. Kimbell, 5 Port. (Ala.) 137; Tarlton v. Briscoe, 7 Bibb (Ky.), 73; Thornton on Gifts, sec. 13; 20 Cye. 1243.) But it is not necessary to inquire whether the court’s view was correct or not. The definition of a gift causa mortis by the Minnesota court, as stated in the instructions to the jury, is in conformity with the common law, which, as has already been pointed out, is embodied in our own statute. (Allen v. Allen; Varley v. Sims, supra.) Hence the court did not err to the prejudice of the defendant, either by pursuing the method it did in ascertaining the law of Minnesota, or in instructing the jury in accordance with it.
The judgment and order are affirmed.
'Affirmed.
Mr. Justice Smith and Mr. Justice Holloway concur.
|
[
11,
-4,
14,
-31,
32,
-17,
62,
-14,
93,
10,
23,
-29,
17,
-8,
-13,
-7,
-69,
-56,
-18,
32,
4,
-71,
-32,
-25,
0,
-31,
-31,
22,
-3,
18,
61,
-28,
19,
9,
37,
32,
4,
-55,
21,
-15,
42,
1,
27,
36,
6,
32,
17,
-40,
-9,
17,
30,
-75,
29,
35,
39,
6,
-11,
41,
-47,
105,
16,
-78,
52,
-13,
16,
0,
21,
17,
-29,
13,
20,
21,
2,
39,
-3,
-7,
0,
-51,
-95,
0,
-15,
-39,
19,
-36,
-29,
-24,
-58,
-34,
5,
-5,
31,
31,
24,
-17,
3,
-3,
-8,
29,
-47,
0,
52,
-30,
27,
-15,
2,
-55,
-46,
5,
52,
9,
25,
56,
5,
-19,
-7,
0,
-39,
29,
15,
-14,
-27,
48,
-1,
-25,
-9,
16,
43,
32,
54,
-40,
10,
7,
-18,
-21,
-35,
-2,
-49,
-31,
31,
-2,
17,
1,
61,
2,
-28,
-20,
24,
11,
-17,
-6,
-33,
32,
-6,
38,
27,
-20,
-48,
-3,
11,
-20,
6,
-17,
70,
13,
10,
7,
15,
7,
14,
34,
23,
13,
-47,
-16,
56,
81,
51,
-41,
-19,
13,
6,
75,
34,
-3,
-15,
-14,
33,
-19,
45,
-22,
-41,
-43,
3,
-4,
-49,
-11,
28,
-70,
-23,
14,
31,
0,
42,
5,
11,
-7,
23,
-31,
-20,
48,
-25,
-26,
22,
27,
-65,
28,
-45,
-53,
-17,
-37,
10,
43,
-14,
-19,
-38,
-38,
57,
25,
-51,
0,
-66,
-3,
2,
5,
48,
3,
-6,
-23,
-36,
-13,
6,
-20,
17,
-41,
42,
19,
-5,
-33,
-6,
2,
7,
3,
14,
59,
-7,
19,
50,
-22,
10,
-56,
3,
-5,
-19,
19,
43,
-20,
2,
-57,
31,
-3,
-12,
-41,
64,
-45,
-18,
-43,
32,
-19,
-20,
-22,
33,
0,
-35,
45,
33,
-24,
-28,
-8,
-41,
15,
44,
14,
12,
-6,
26,
26,
22,
-48,
1,
-54,
5,
42,
14,
39,
3,
46,
-6,
0,
-3,
-52,
-2,
13,
-52,
38,
31,
5,
-67,
1,
19,
33,
31,
1,
-17,
-12,
-27,
32,
-30,
24,
-8,
32,
29,
44,
-7,
20,
-17,
-36,
31,
-2,
-8,
-23,
5,
-46,
-2,
-45,
-9,
-26,
59,
21,
-30,
5,
-22,
72,
27,
28,
-16,
42,
15,
-10,
24,
-5,
58,
-25,
37,
4,
-29,
-30,
-30,
-18,
-17,
-20,
62,
-13,
17,
-18,
26,
22,
-28,
13,
-13,
6,
-6,
3,
-3,
3,
-18,
63,
-40,
-33,
-50,
8,
10,
-14,
-32,
36,
-26,
2,
20,
-34,
-10,
-60,
-32,
36,
-13,
6,
-51,
-5,
8,
-55,
17,
-21,
-57,
-19,
0,
-54,
25,
-13,
9,
9,
-22,
-1,
-10,
8,
53,
34,
24,
-17,
-13,
51,
-29,
-31,
43,
39,
16,
37,
31,
-27,
-13,
21,
23,
11,
-9,
-36,
26,
45,
25,
59,
-10,
-53,
25,
33,
56,
24,
-8,
-3,
-13,
21,
28,
-23,
2,
7,
21,
1,
-36,
2,
28,
38,
-10,
-18,
61,
-6,
29,
11,
3,
-14,
4,
29,
40,
-2,
37,
-20,
12,
-7,
14,
-5,
0,
-11,
-54,
-14,
-25,
-29,
19,
-2,
-35,
-28,
-28,
-40,
-20,
-28,
8,
-72,
-6,
-23,
-3,
37,
-2,
-30,
-21,
-45,
-37,
20,
23,
-37,
12,
5,
-5,
-12,
28,
10,
-22,
26,
38,
9,
-38,
53,
28,
-32,
-52,
34,
8,
-40,
-81,
12,
14,
20,
-22,
-32,
41,
-15,
7,
-61,
1,
-20,
27,
49,
-37,
8,
12,
-14,
25,
25,
29,
-16,
24,
34,
0,
-25,
10,
-23,
-46,
-29,
24,
23,
-37,
-8,
22,
-57,
-61,
12,
13,
-49,
-62,
34,
-3,
25,
-15,
-7,
-14,
8,
-17,
21,
32,
18,
-45,
-18,
-10,
24,
-32,
-4,
-37,
9,
13,
22,
-20,
46,
-33,
-15,
-5,
-29,
-9,
-33,
-56,
-13,
10,
18,
-1,
0,
-56,
-30,
37,
-22,
-49,
47,
17,
17,
-38,
7,
16,
-2,
36,
-5,
35,
25,
19,
-45,
6,
32,
-55,
-7,
-28,
23,
32,
-7,
-46,
-2,
7,
28,
-92,
40,
2,
-25,
-11,
-12,
61,
2,
0,
20,
18,
11,
-13,
41,
40,
0,
38,
3,
-7,
26,
71,
7,
-4,
-6,
39,
-15,
-24,
-2,
-24,
55,
4,
53,
-8,
45,
35,
-3,
-21,
-33,
-28,
-46,
-10,
-6,
15,
5,
-26,
37,
11,
-8,
-32,
6,
-25,
-16,
4,
30,
-19,
0,
-22,
-1,
-18,
13,
-34,
54,
-36,
-27,
64,
-11,
32,
28,
-16,
-13,
-26,
-15,
-32,
-47,
-43,
4,
-6,
39,
-13,
11,
2,
-19,
-2,
-35,
-8,
-41,
-36,
-10,
23,
-23,
0,
40,
-52,
16,
-27,
-1,
-6,
10,
-4,
5,
0,
-7,
-25,
-19,
-27,
42,
16,
88,
-19,
20,
-33,
-18,
-15,
-31,
15,
54,
3,
-47,
-17,
-43,
12,
54,
28,
-43,
50,
35,
-1,
44,
-44,
-14,
5,
-7,
-95,
-24,
42,
-21,
-32,
25,
-20,
0,
0,
38,
64,
23,
5,
-11,
-22,
-18,
-22,
-47,
17,
52,
-6,
82,
-53,
29,
15,
8,
-29,
-59,
28,
5,
-4,
36,
-36,
13,
48,
26,
61,
-18,
2,
61,
-8,
61,
-8,
27,
33,
-23,
-64,
-56,
-36,
-40,
-9,
11,
42,
-22,
28,
-14,
10,
22,
-35,
-2,
-8,
13,
-17,
-14,
-53,
-39,
33,
10,
-24,
28,
-33,
-36,
-27,
52,
-45,
41,
38,
-10,
5,
-26,
-2,
-14,
-24,
-3,
-7,
14,
-49,
-31,
4,
-88,
44,
0,
-17,
-34,
-4,
22,
10,
-6,
24,
46,
-17,
32,
-41,
11,
13,
3,
-35,
10,
53,
-18,
32,
8,
6,
3,
-44,
33,
-34,
4,
58,
-51,
11,
15,
-14,
-54,
-22,
-29,
-10,
41,
-10,
15,
7,
-2,
-18,
8,
-40,
-2,
12,
25,
43,
56,
45,
19,
19,
-22,
-38,
-35,
-21,
14,
22,
-1,
0,
48,
10,
2,
-13,
17,
41,
12,
-26,
-33,
-62,
24,
-57,
41,
0,
-16,
-21,
-30,
-21,
-10,
-26,
-16,
51,
-4,
29,
24,
33,
20,
45,
-30,
6,
21,
11,
5,
-15,
82,
-10,
16,
-15,
-42,
39,
45,
-35,
3,
23,
-1,
39,
11,
-3,
12,
22,
-63,
-29,
-9,
-7,
-57,
0,
13,
96,
-2,
45,
-60,
42,
3,
-18,
13,
2,
19,
-8,
-5,
-51,
4,
0,
-8,
-58,
40,
45,
19,
35,
-28,
-28,
0,
14,
-48,
2,
33,
9,
-24,
-15,
53,
-4,
-70,
-40,
1,
-23,
-37,
-3,
6,
57,
48,
-43,
43,
-22,
-62,
26,
51
] |
Per Curiam.
It appearing that at the hearing had on the return of the writ of habeas corpus allowed by this court herein, that the petitioner above named is legally detained in custody by virtue of a valid warrant issued by the Governor of the State of Missouri under date of June 15, 1953 and by virtue of a warrant issued by the Governor of the State of Montana on July 15, 1953, authorizing Sheriff Everett Bowman of the County of Gentry, in the State of Missouri, and a guard, as agents of the Governor of Missouri to apprehend and convey the petitioner to the said State of Missouri to be- there tried for the crime of obtaining money and property of the value of $16.30, by means of a check dated May 25, 1953, signed Mat Turner, drawn on the First National Bank in "Wellington, Kansas and claimed to have been presented to said bank for payment and payment refused by reason that the drawer and the petitioner had no account, funds or credit in said bank for the payment of said cheek.
It is ordered that the petitioner Cleveland Roy Williams be and he is hereby remanded to the custody of said Sheriff Everett Bowman and guard as directed in the aforesaid Governors’ warrants.
|
[
47,
-18,
13,
54,
-23,
-20,
-10,
-50,
-46,
-33,
4,
-104,
-17,
-19,
-35,
41,
-28,
-6,
80,
-52,
-15,
-29,
3,
33,
26,
12,
-14,
90,
-6,
82,
0,
8,
16,
4,
7,
14,
35,
0,
59,
46,
-49,
-4,
-16,
12,
11,
-4,
-17,
19,
29,
-41,
22,
18,
11,
17,
-10,
-13,
-40,
-104,
9,
6,
28,
-33,
52,
41,
-4,
-33,
33,
35,
29,
41,
48,
6,
0,
51,
71,
38,
-73,
-29,
32,
2,
-4,
8,
-25,
9,
-21,
-5,
-72,
-77,
-30,
15,
-14,
10,
-20,
-43,
7,
12,
29,
36,
11,
22,
-32,
-73,
-5,
-5,
52,
-59,
-60,
-7,
-5,
52,
-65,
-43,
40,
-11,
-43,
-6,
-71,
-36,
25,
-14,
0,
-1,
37,
-12,
21,
-9,
-5,
-21,
37,
-2,
21,
18,
20,
-6,
-5,
0,
17,
11,
33,
-17,
-17,
-1,
4,
5,
51,
-30,
27,
21,
7,
28,
-66,
48,
33,
61,
10,
76,
-72,
-17,
-87,
33,
-4,
-37,
21,
-50,
4,
14,
-11,
-44,
-43,
-31,
-33,
5,
0,
68,
7,
-4,
-5,
39,
16,
-19,
41,
8,
13,
2,
-19,
54,
-29,
29,
24,
2,
-17,
39,
25,
-7,
-10,
-5,
-10,
-21,
-15,
-59,
-13,
-13,
29,
58,
17,
-44,
45,
-20,
30,
2,
-5,
-50,
39,
17,
-42,
13,
4,
-26,
21,
14,
-7,
5,
24,
18,
56,
-11,
55,
34,
12,
-48,
7,
-7,
-21,
-19,
5,
9,
9,
-71,
29,
48,
-33,
-100,
39,
-13,
22,
-20,
1,
1,
10,
26,
-16,
-9,
-54,
33,
9,
-2,
26,
20,
19,
-37,
14,
-18,
-8,
40,
-5,
18,
11,
27,
4,
21,
0,
-19,
37,
-24,
37,
26,
18,
-4,
2,
-46,
-7,
-38,
-33,
8,
5,
-58,
1,
3,
42,
-44,
-16,
-32,
-19,
-5,
15,
0,
-2,
18,
-5,
3,
10,
-25,
2,
-14,
27,
-41,
10,
18,
-21,
-10,
-10,
81,
19,
8,
-29,
-31,
15,
8,
-20,
19,
-58,
-41,
-32,
15,
80,
-10,
1,
32,
37,
-14,
45,
-53,
-7,
-27,
-55,
1,
25,
55,
32,
-28,
12,
-31,
-19,
32,
-42,
3,
-5,
4,
-61,
-51,
-31,
-34,
-5,
30,
-42,
3,
-39,
0,
8,
-25,
31,
31,
-19,
-10,
3,
-12,
-15,
0,
-12,
-34,
8,
-62,
52,
-34,
8,
32,
-42,
-33,
3,
-35,
-3,
-2,
39,
-9,
17,
-16,
-16,
10,
29,
-33,
-35,
-4,
-25,
-22,
-36,
-13,
-18,
-43,
60,
-53,
-56,
-44,
0,
57,
-42,
-32,
-10,
48,
-1,
-68,
8,
41,
-7,
67,
45,
-16,
-24,
31,
0,
-4,
10,
-12,
0,
-8,
12,
7,
-1,
20,
6,
-29,
63,
-22,
44,
-8,
10,
41,
-30,
1,
28,
8,
53,
-12,
-28,
19,
51,
-3,
-14,
-26,
20,
28,
10,
-10,
4,
-35,
-45,
59,
48,
43,
-65,
8,
-16,
35,
-2,
-4,
-4,
10,
21,
12,
22,
37,
46,
26,
-10,
-16,
-55,
-1,
9,
-7,
35,
1,
-22,
-5,
-27,
-35,
-6,
-34,
1,
-2,
2,
36,
-1,
-40,
-10,
39,
2,
-15,
-76,
9,
21,
34,
28,
11,
26,
54,
46,
21,
15,
36,
-26,
-16,
105,
-12,
0,
7,
-2,
15,
3,
-6,
27,
28,
-8,
3,
-25,
23,
39,
68,
4,
-6,
13,
32,
-71,
-45,
-46,
-37,
15,
-28,
-6,
-26,
-16,
-62,
21,
9,
9,
-10,
31,
9,
0,
-50,
-33,
6,
-24,
-10,
29,
-46,
-2,
-12,
-27,
-19,
30,
-11,
26,
53,
-2,
-3,
-12,
40,
-54,
34,
-23,
11,
37,
36,
-10,
37,
35,
12,
-34,
5,
-19,
34,
65,
-18,
-7,
-45,
-12,
2,
7,
-31,
-6,
-37,
-27,
-43,
41,
0,
-9,
15,
-73,
-11,
-10,
44,
-51,
-48,
-28,
24,
69,
-23,
-2,
53,
-17,
27,
15,
55,
27,
35,
-2,
14,
-9,
0,
-31,
4,
-50,
-32,
-26,
39,
26,
-47,
-80,
-55,
2,
-16,
7,
-24,
19,
39,
-37,
-25,
-33,
-8,
6,
-1,
-33,
67,
-6,
-24,
14,
0,
20,
6,
34,
27,
-5,
-20,
10,
25,
4,
-1,
10,
-43,
54,
-43,
1,
1,
-58,
9,
-2,
10,
5,
-19,
20,
44,
47,
-31,
21,
-41,
23,
8,
3,
-10,
31,
-50,
53,
16,
43,
10,
-19,
-6,
14,
-19,
-41,
10,
-10,
19,
14,
25,
28,
-40,
-9,
-25,
-46,
29,
34,
10,
-15,
6,
-27,
-7,
-22,
-16,
-35,
3,
-53,
-28,
-45,
10,
0,
-38,
-45,
-29,
-15,
-32,
-23,
-12,
16,
43,
38,
10,
16,
4,
-24,
4,
40,
14,
-17,
-7,
-2,
-10,
-36,
-23,
-26,
-4,
-31,
0,
17,
29,
15,
-20,
-21,
34,
-21,
55,
79,
20,
-36,
11,
-43,
39,
-22,
-5,
-29,
-29,
-13,
14,
-7,
-13,
-15,
1,
-35,
-34,
0,
20,
-12,
-36,
-28,
10,
-15,
-35,
-11,
5,
79,
-9,
30,
50,
-17,
0,
47,
12,
-92,
23,
12,
17,
53,
-27,
40,
-13,
-16,
53,
42,
-5,
33,
-19,
34,
49,
45,
21,
17,
24,
0,
24,
0,
2,
-8,
3,
-53,
21,
-9,
24,
22,
-2,
18,
-33,
24,
-5,
62,
-70,
-13,
99,
-14,
3,
-9,
22,
-55,
7,
-15,
35,
0,
-5,
21,
-6,
-61,
42,
65,
-28,
56,
-51,
7,
10,
6,
31,
15,
-5,
55,
44,
-26,
2,
-46,
12,
26,
-26,
9,
10,
-14,
18,
0,
-42,
-12,
-49,
26,
7,
19,
7,
31,
5,
0,
47,
-28,
-14,
108,
36,
40,
-45,
-44,
48,
46,
14,
35,
-15,
-58,
-80,
-31,
-39,
-70,
13,
-70,
-20,
-3,
2,
36,
-33,
-24,
-4,
21,
23,
-28,
26,
32,
8,
56,
41,
-16,
9,
-25,
7,
-15,
1,
-13,
-20,
25,
9,
65,
-43,
67,
22,
-9,
81,
3,
-13,
39,
-9,
1,
-5,
-20,
-6,
-64,
-13,
-3,
8,
41,
-14,
7,
21,
-42,
-10,
-44,
40,
-10,
42,
15,
-85,
18,
-33,
-13,
-1,
13,
7,
-19,
24,
24,
-12,
39,
2,
-23,
-40,
-15,
-4,
-34,
31,
1,
-12,
14,
14,
5,
-17,
-48,
17,
52,
-11,
10,
25,
32,
-1,
26,
-27,
-2,
37,
-36,
-37,
-16,
-12,
-69,
-46,
46,
2,
-24,
14,
59,
32,
-24,
-48,
6,
0,
-29,
-23,
23,
-14,
8,
-63,
2,
0,
-33,
-36,
24,
-26,
30,
-47,
-13,
2,
1,
-7,
27,
4,
-6,
-13,
-33,
42
] |
ME. JUSTICE ANGSTMAN:
This is an appeal by plaintiff from a judgment for defendant dismissing the action after a demurrer to plaintiff’s complaint was sustained and plaintiff elected not to plead further.
The sole question involved is whether the complaint states facts sufficient to constitute a cause of action.
The complaint contains two causes of action. They seek damages for personal injuries sustained by plaintiff as a result of defendant driving her automobile against him as he was crossing a street in Butte about midway between street intersections.
Each cause of action is based upon the last clear chance doctrine. The only difference between the causes of action is that in one it is alleged that defendant saw plaintiff crossing the street and in the other that she should have seen him in the exercise of reasonable care in time to avoid the injury.
The accident happened on Front Street in Butte which runs in an easterly and westerly direction. Plaintiff was crossing’ the street from south to north on the evening of September 29, 1952, at about 9 o’clock p. m. The place where he was crossing was alleged to be well lighted and near the Northern Pacific Depot and between "Wyoming Street and Utah Avenue.
Front Street is alleged to be approximately 60 feet wide and equally divided into lanes for east and west automobile traffic. In each cause of action it is alleged that before commencing to cross Front Street, plaintiff looked to see that there was no automobile traffic approaching him from the southwest on Front Street and that the traffic control signal at the intersection of Utah Avenue and Front Street controlling traffic at that intersection about one-half block to the east showed “red,” that he thereupon carelessly and negligently assumed that his path northward across Front Street would be unaffected by auto mobile traffic while he crossed and that while crossing he negligently became oblivious to traffic which might approach him on Front Street from the east and continued to be thus oblivious to such traffic until he was struck by defendant; that defendant approached in her car from the east traveling in a westerly direction at a speed of about 15 miles per hour.
In the first cause of action it is alleged that defendant while not less than 90 feet from plaintiff saw him traversing the street; that defendant then knew, or in the exercise of reasonable care should have known from plaintiff’s stooped posture and bearing that he was oblivious to traffic approaching him and might continue to walk across the street and into the path of defendant’s approaching car; that although defendant saw plaintiff in his position of increasing peril she carelessly and negligently continued to drive her ear southwesterly on Front Street toward him and suddenly ran upon him and struck him with great force “with the center of her car at a point about the middle of the lane for southwesterly bound traffic,” causing the injuries complained of.
In the second cause of action it is alleged that defendant was negligent in not maintaining proper lookout; that had she used reasonable care in maintaining a proper lookout she would have seen plaintiff crossing Front Street ahead of her at not less than about 108 feet and continuously thereafter and that she would have had sufficient time to take steps to avoid striking plaintiff; that without maintaining proper lookout and without warning to plaintiff by blowing the horn or otherwise and without turning to her left though there was space of 33 feet on Front Street available to her, she struck him with'the center of her car at about the middle of the southwesterly lane of traffic, causing the injuries complained of.
In considering the sufficiency of the complaint we keep in mind the rule that whatever is necessarily implied in or reasonably inferable from an allegation must be taken as directly alleged. Johnson v. Johnson, 92 Mont. 512, 15 Pac. (2d) 842; Gotzian & Co. v. Norris, 89 Mont. 307, 297 Pac. 489; Johnson v. Herring, 89 Mont. 156, 295 Pac. 1100; Cramer v. Deschler Broom Factory, 79 Mont. 220, 255 Pac. 346; Buhler v. Loftus, 53 Mont. 546, 165 Pac. 601.
Likewise a good pleading does not require nor permit pleading of the evidence relied on. Johnson v. Johnson, supra; Mining Securities Co. v. Wall, 99 Mont. 596, 45 Pac. (2d) 302; First State Bank of Philipsburg v. Mussigbrod, 83 Mont. 68, 271 Pac. 695; Enterprise Sheet Metal Works v. Schendel, 63 Mont. 529, 208 Pac. 933.
Plaintiff relies largely on the case of Pollard v. Oregon Short Line Ry., 92 Mont. 119, 11 Pac. (2d) 271.
That case established the rule in this state that the doctrine of the last clear chance has application to a case not only where defendant actually saw plaintiff in a position of peril in time to avoid the injury by the exercise of reasonable care but also to a case where in the exercise of reasonable care he should or could have discovered plaintiff in his perilous position in time to avoid the injury. True that was a case where the injury arose at a railroad crossing where there was a clear legal duty on the part of those operating trains to keep a lookout.
The rule was reaffirmed in Armstrong v. Butte, A. & P. R., 110 Mont. 133, 99 Pac. (2d) 223, also a crossing ease. Defendant takes the view that the complaint is deficient because it lacks allegation that plaintiff was crossing the street at a place where defendant had reason to anticipate his presence.
This contention cannot be sustained. Ordinary caution must be observed by drivers and pedestrians both at and between crossings. Carey v. Guest, 78 Mont. 415, 258 Pac. 236. Operators of motor vehicles are duty bound to keep a lookout for pedestrians and others using the streets. Johnson v. Herring, supra.
The fact that plaintiff was crossing the street between crossings and not at the crossing does not absolve defendant from the duty to exercise reasonable care to avoid injuring him. The doctrine of the last clear chance presupposes negligence on the part of plaintiff and even though his negligence may consist of the violation of a city ordinance prohibiting the crossing of streets between intersections yet the doctrine applies. Mansperger v. Ehrnfield, 59 Ohio App. 74, 17 N. E. (2d) 271; Sanchez v. Gomez, 57 N. M. 383, 259 Pac. (2d) 346.
It is contended by defendant that plaintiff was able to avoid the accident by the exercise of reasonable care on his part by stopping. Here it is alleged in the first cause of action that plaintiff was oblivious to traffic which might approach him on Front Street and that defendant knew or should have known this from his stooped posture and bearing. Defendant should have known, if these allegations be true, that plaintiff would not stop walking. He was then unaware or unconscious of his danger. Compare Mihelich v. Butte, Elec. Ry., 85 Mont. 604, 622, 281 Pac. 540; McIntyre v. Northern Pac. Ry., 56 Mont. 43, 180 Pac. 971.
He was struck, according to the complaint, by the center of the car at about the middle of the southwesterly lane of traffic. This would be after he had crossed the center line of the street by about 15 feet. The complaint alleges that defendant maintained a speed of 15 miles per hour which was alleged to be excessive and failed to sound the horn, failed to reduce her speed, failed to swerve to the left to avoid plaintiff or to stop her car.
It is fairly inferable from the allegations of plaintiff’s complaint that he stepped into the danger zone from westbound traffic the moment that he crossed the center line of the highway. He was struck after walking 15 feet past the center line. While it is not alleged how fast plaintiff was walking it is fair to assume that he did not exceed the usual gait of about three miles per hour. The automobile, which was traveling 15 miles per hour, in order to reach the point of impact would have traveled about 75 feet after plaintiff had stepped into its lane of travel. Under these circumstances it would be for the jury to say whether defendant had the last clear chance to avoid the injury.
We need not at this stage of the case determine whether plaintiff may recover.
We have not yet learned what the evidence will disclose. At this stage of the case we must presume that the allegations will be sustained by the evidence and “if there is a reasonable doubt as to the sufficiency of the allegations, the doubt must be resolved in favor of the complaint. ’ ’ Mihelich v. Butte Elec. Ry., supra. [85 Mont. 604, 281 Pac. 547.]
Here it is alleged in the first cause of action that defendant saw plaintiff traversing the street and knew or in the exercise of reasonable care should have known from plaintiff’s stooped posture and bearing that he was oblivious to traffic approaching him and yet did nothing to attempt to avoid running into him.
If these allegations be sustained by evidence, then they make out a sufficient case for the jury under the doctrine of last clear chance.
Most of the cases quoted from in the dissenting opinion are inapplicable here. Some of them are cases where the injured person ran suddenly ahead of the oncoming vehicle where the driver had no opportunity to avoid the injury; some discuss the question of sufficiency of the evidence to warrant recovery which is premature so far as this ease is concerned; others discuss the effect of contributory negligence, a question not involved here because the plaintiff readily admits that he was guilty of contributory negligence; still others discuss the question of the color of the clothing worn by plaintiff, making it difficult to distinguish him from the roadway, a question not involved here at this stage of the ease because there is nothing in the complaint to indicate what character of clothing was worn by plaintiff. Such of the cases relied on in the dissenting opinion as have application to a statement of facts such as those alleged in the complaint support the conclusion we have reached.
Neither is there any merit to the suggestion in the dissenting opinion that plaintiff’s complaint contains indirect and not direct allegations: The allegation is that defendant “knew or in the exercise of reasonable care should have known from plaintiff’s stooped posture and bearing that he was oblivious to traf-
fic approaching him.” That is a direct allegation of the essential matter of knowledge. It is immaterial that the knowledge came from circumstances indirectly alleged. Knowledge is what placed the duty on defendant to act to avoid the injury. The words “from plaintiff’s stooped posture and bearing” may be disregarded as surplusage and still the complaint states facts sufficient under the last clear chance doctrine.
The court erred in sustaining the demurrer to the complaint as to the first cause of action and in entering judgment of dismissal.
As to the second cause of action, it was sufficient within the ruling in the Pollard and Armstrong cases except that there is no allegation that had defendant kept a proper lookout she would have discovered from plaintiff’s stooped position and posture that he was unaware of the danger from the approaching automobile in time to avert the accident. But since such allegations appear in the first cause of action the court in the furtherance of justice should permit plaintiff to amend the second cause of action so as to incorporate such allegations in it. There is ample precedent for this procedure. 5 C. J. S., Appeal and Error, see, 1936, page 1452 et seq.
The judgment is reversed and the cause remanded with directions to set aside the order sustaining the demurrer as to the first cause of action and to enter an order overruling the demurrer as to it and to proceed with the second cause of action as herein stated.
MR. JUSTICES ANDERSON and BOTTOMRY, concur.
MR. JUSTICE DAVIS, not participating.
|
[
-61,
37,
-26,
10,
32,
-66,
76,
-26,
-15,
57,
-2,
53,
38,
-25,
-37,
-14,
-10,
-8,
18,
-6,
-50,
-24,
-1,
-68,
-10,
-2,
13,
-102,
-56,
3,
31,
-43,
-31,
27,
-31,
16,
33,
-36,
28,
10,
36,
21,
-2,
-36,
13,
-6,
-77,
-53,
-2,
-31,
3,
37,
5,
-10,
-6,
-46,
7,
48,
-25,
-12,
-8,
-26,
29,
-20,
-3,
37,
33,
-21,
-35,
31,
-63,
15,
27,
-33,
-42,
-12,
12,
-9,
3,
-7,
-26,
30,
20,
-18,
72,
5,
-18,
11,
-44,
-47,
30,
-14,
15,
-11,
1,
36,
-26,
-17,
3,
9,
43,
42,
-33,
-37,
-23,
0,
-39,
-18,
-10,
2,
-20,
67,
-2,
4,
6,
10,
34,
5,
18,
-3,
8,
-30,
10,
7,
-34,
32,
6,
36,
-11,
62,
-5,
64,
54,
56,
-24,
2,
-58,
-41,
25,
28,
-16,
-14,
-17,
-11,
6,
41,
7,
37,
32,
-54,
-37,
50,
-16,
-26,
5,
-86,
29,
-41,
41,
21,
47,
17,
11,
69,
11,
26,
-50,
4,
5,
4,
-4,
-29,
44,
-34,
-5,
35,
10,
-5,
-77,
0,
17,
10,
33,
22,
-24,
-65,
-2,
-10,
18,
19,
46,
-58,
3,
50,
41,
35,
14,
-26,
53,
-108,
36,
-12,
-26,
3,
-76,
32,
-19,
4,
62,
-2,
13,
-32,
-31,
-30,
29,
-27,
57,
-18,
28,
-22,
-20,
10,
13,
-31,
-8,
-66,
-49,
-57,
-58,
21,
24,
-9,
-55,
-15,
5,
-27,
23,
8,
-34,
-2,
71,
47,
37,
-4,
3,
3,
7,
-18,
2,
0,
35,
-21,
-19,
-38,
11,
-30,
23,
23,
13,
-28,
45,
77,
42,
7,
-12,
2,
-15,
12,
-41,
-42,
4,
7,
28,
14,
-47,
-37,
-4,
-5,
67,
17,
-1,
-26,
-3,
4,
-25,
21,
17,
12,
12,
-28,
-21,
-107,
-18,
14,
-9,
39,
60,
-2,
-61,
-18,
25,
-44,
1,
22,
15,
-8,
0,
-36,
-7,
60,
-69,
-20,
4,
-14,
27,
60,
37,
-30,
45,
-23,
22,
47,
-44,
5,
8,
42,
-4,
21,
-45,
5,
21,
25,
-2,
63,
28,
-43,
2,
-4,
7,
3,
2,
27,
32,
-53,
8,
22,
41,
35,
5,
-31,
-53,
-6,
-34,
-70,
-44,
-38,
6,
-59,
-13,
31,
-5,
0,
-4,
-23,
-3,
-10,
8,
-27,
-92,
50,
-23,
-62,
10,
-50,
-32,
-42,
28,
15,
-15,
57,
29,
-54,
7,
-22,
22,
0,
-12,
-45,
-39,
7,
-47,
-12,
77,
21,
10,
-1,
-47,
4,
-12,
6,
-24,
13,
36,
-21,
-43,
-24,
42,
-11,
-47,
4,
-47,
-33,
41,
24,
40,
8,
8,
10,
-47,
8,
49,
45,
36,
1,
9,
-12,
-29,
-51,
-19,
-7,
37,
-19,
-9,
-2,
-36,
12,
17,
-58,
-7,
-46,
-34,
-5,
-2,
46,
-3,
16,
-13,
-54,
3,
-14,
10,
61,
73,
21,
-19,
22,
35,
38,
20,
-1,
28,
-34,
-6,
1,
-5,
-59,
18,
-5,
25,
-2,
58,
16,
-52,
5,
10,
57,
-26,
44,
-30,
-32,
-108,
-32,
56,
-9,
-26,
0,
52,
31,
29,
23,
56,
-21,
-32,
2,
-22,
-15,
-30,
38,
-3,
-41,
-28,
21,
-54,
2,
24,
-43,
97,
34,
0,
-27,
-43,
3,
-3,
-36,
25,
43,
-2,
-4,
-3,
8,
-34,
-15,
9,
-53,
-36,
-15,
-10,
-18,
8,
-37,
35,
-34,
-12,
4,
0,
48,
50,
3,
-7,
9,
-1,
30,
-18,
-28,
-8,
-11,
45,
81,
81,
27,
-3,
26,
40,
9,
48,
-13,
-25,
-29,
-3,
-5,
-15,
6,
-28,
31,
-34,
73,
-11,
-1,
17,
4,
-51,
40,
12,
-62,
-35,
-9,
-17,
-6,
-12,
-4,
-10,
-27,
-119,
0,
-44,
17,
47,
0,
-2,
-2,
-17,
24,
41,
4,
31,
44,
-18,
-39,
-27,
10,
30,
-23,
-17,
68,
30,
-19,
-27,
-38,
69,
1,
13,
49,
-13,
31,
20,
-53,
-42,
30,
50,
-17,
-2,
-41,
40,
23,
-24,
-9,
-8,
14,
-30,
-42,
1,
-20,
-18,
-68,
-26,
-21,
22,
41,
-21,
-4,
17,
64,
60,
-8,
-60,
-34,
-9,
28,
-21,
-42,
-22,
14,
-52,
-29,
-3,
30,
-26,
24,
-51,
3,
-28,
-23,
-8,
-57,
-20,
6,
1,
-12,
-13,
3,
41,
-37,
24,
17,
47,
-13,
-4,
45,
30,
0,
3,
-78,
30,
-1,
-28,
-37,
-2,
7,
61,
2,
-4,
17,
-22,
22,
-21,
91,
56,
-62,
0,
2,
-8,
-59,
-61,
23,
-35,
-29,
29,
-24,
24,
11,
24,
4,
5,
-29,
-12,
1,
26,
-46,
-24,
0,
2,
13,
-9,
-65,
36,
33,
42,
0,
37,
-3,
43,
37,
-38,
-7,
-37,
9,
82,
-82,
-13,
-22,
-12,
0,
48,
20,
-7,
-46,
-21,
-40,
19,
-67,
-8,
-6,
41,
-4,
-11,
-30,
11,
54,
-3,
-36,
89,
-22,
53,
32,
-28,
32,
0,
-30,
-1,
-3,
-49,
-6,
13,
-45,
-66,
87,
24,
-79,
63,
-1,
-28,
32,
-45,
41,
32,
28,
-14,
11,
11,
-6,
6,
40,
5,
-28,
6,
-5,
-33,
-53,
31,
-17,
21,
-36,
24,
45,
15,
-31,
10,
108,
52,
-47,
-28,
-17,
-1,
-50,
-6,
19,
24,
19,
-10,
-48,
-9,
-34,
-18,
27,
30,
19,
-35,
-37,
71,
-3,
24,
-18,
5,
31,
-49,
50,
58,
4,
-57,
-46,
35,
50,
-59,
-4,
24,
-12,
13,
-10,
41,
-3,
-35,
18,
16,
-13,
-3,
-4,
-59,
0,
-3,
18,
11,
-26,
-29,
-22,
26,
-51,
-7,
35,
-84,
-26,
27,
32,
5,
21,
19,
-20,
-2,
-60,
44,
-17,
10,
-9,
4,
51,
-56,
-46,
3,
30,
-33,
97,
3,
16,
0,
-36,
-61,
-23,
-93,
26,
40,
-24,
-12,
33,
38,
9,
22,
2,
-22,
65,
-65,
33,
37,
-43,
30,
0,
26,
29,
-56,
30,
34,
53,
30,
14,
-17,
-1,
-16,
86,
-45,
24,
-11,
51,
-19,
34,
2,
25,
35,
-17,
-4,
-38,
-83,
23,
70,
-9,
-1,
20,
6,
-40,
5,
-22,
-46,
14,
22,
-13,
-43,
75,
30,
-33,
16,
-31,
40,
-32,
7,
-9,
24,
-16,
39,
-21,
35,
-18,
28,
38,
-61,
-23,
30,
25,
-17,
24,
-33,
-50,
-18,
5,
30,
43,
29,
19,
-2,
-15,
12,
-30,
-18,
20,
-48,
39,
-53,
14,
-3,
-22,
-10,
5,
4,
-27,
-7,
25,
38,
-11,
58,
14,
40,
31,
44,
25,
12,
36,
31,
28,
10,
11,
-6,
20,
-31,
3,
-19,
84,
-2,
-11
] |
Per Curiam.
On aplication of the appellants and the respondent, and stipulation filed;
It is hereby ordered that the appeal herein from the order denying a motion for change of venue in the above entitled cause be and it is dismissed.
MR. CHIEF JUSTICE ADAIR and MR. JUSTICES ANGSTMAN, ANDERSON, DAVIS and BOTTOMRY, concur.
|
[
-41,
-36,
19,
36,
29,
-16,
1,
11,
-11,
-28,
-10,
3,
-73,
-41,
-47,
4,
-26,
-14,
1,
-15,
-35,
14,
14,
32,
14,
8,
-3,
44,
17,
0,
18,
-47,
-27,
47,
7,
-4,
15,
20,
-5,
-27,
-13,
-16,
-6,
20,
-26,
18,
8,
42,
-10,
47,
20,
32,
-80,
15,
-72,
13,
-58,
-13,
64,
6,
-34,
37,
-21,
9,
21,
-65,
48,
-71,
14,
27,
-20,
-24,
56,
-25,
49,
-4,
-54,
-35,
-73,
26,
2,
63,
46,
14,
-15,
26,
37,
52,
22,
15,
-23,
-1,
9,
-49,
-66,
79,
48,
-41,
26,
-9,
-23,
-27,
27,
-8,
-2,
-35,
-18,
40,
6,
-27,
22,
2,
14,
2,
20,
54,
17,
21,
75,
19,
-8,
2,
5,
37,
-19,
26,
8,
48,
19,
-3,
-16,
-7,
-12,
3,
47,
27,
54,
20,
-3,
-20,
18,
2,
35,
33,
6,
-9,
10,
43,
-60,
-33,
58,
24,
-26,
60,
41,
65,
-23,
2,
32,
95,
7,
-7,
-30,
3,
13,
15,
-64,
-27,
-10,
44,
42,
2,
51,
26,
-44,
10,
-39,
42,
-17,
-10,
16,
39,
47,
-35,
-12,
1,
-30,
32,
6,
-30,
-46,
-31,
2,
-10,
22,
-17,
15,
-6,
-23,
12,
-59,
13,
-18,
-61,
11,
-45,
-31,
-37,
-1,
27,
-23,
-24,
-46,
-16,
65,
52,
37,
17,
11,
57,
14,
-9,
21,
-12,
18,
17,
-14,
43,
-5,
37,
-20,
-47,
-39,
27,
42,
-13,
37,
46,
-34,
-33,
-9,
1,
63,
-9,
-66,
15,
76,
84,
54,
-24,
48,
12,
40,
-2,
13,
-4,
-25,
56,
-73,
-44,
30,
5,
-41,
-4,
-11,
98,
14,
-10,
33,
-7,
-30,
43,
4,
21,
26,
-4,
-19,
-19,
30,
67,
-15,
50,
36,
-26,
-28,
2,
13,
-17,
36,
16,
-46,
40,
4,
50,
15,
-14,
-39,
28,
-60,
-42,
-24,
15,
0,
3,
20,
7,
-31,
-25,
43,
-30,
-36,
61,
46,
-48,
-51,
71,
-32,
17,
-8,
-23,
-23,
-17,
-48,
13,
-9,
6,
34,
-15,
18,
-5,
14,
-5,
39,
-3,
-52,
42,
6,
59,
22,
61,
-25,
-25,
-35,
-39,
27,
-20,
0,
-12,
13,
-10,
-50,
15,
-17,
-36,
19,
-58,
7,
-60,
-17,
-6,
-18,
-12,
41,
-14,
50,
4,
-4,
45,
-21,
-52,
-24,
-29,
-22,
-33,
17,
18,
43,
13,
10,
2,
-5,
-24,
40,
10,
25,
22,
18,
32,
9,
-18,
0,
-52,
-9,
-38,
-9,
78,
34,
9,
41,
-15,
58,
-14,
-35,
3,
-10,
2,
35,
-6,
-8,
36,
-14,
21,
-14,
7,
52,
65,
-78,
37,
33,
10,
56,
-11,
-8,
31,
-51,
30,
7,
-66,
21,
7,
-25,
-21,
25,
28,
-49,
83,
16,
1,
-3,
75,
-4,
-17,
-55,
-43,
-97,
37,
-41,
20,
-59,
-3,
-10,
-10,
21,
-53,
20,
-12,
-6,
55,
-29,
-8,
38,
-9,
-75,
-63,
-42,
24,
-20,
16,
17,
-41,
-66,
1,
-10,
-9,
-36,
-24,
-23,
4,
-59,
-4,
64,
24,
-13,
1,
-33,
-12,
6,
53,
47,
-17,
-21,
-39,
13,
-21,
-39,
-45,
-34,
-8,
-76,
-7,
13,
-47,
-42,
-4,
47,
-45,
-14,
-55,
25,
-47,
32,
-52,
22,
53,
59,
-9,
0,
-9,
8,
1,
-5,
-27,
-47,
-58,
64,
27,
-24,
39,
22,
15,
0,
-8,
-20,
-26,
5,
-16,
-31,
-11,
31,
18,
-17,
23,
-13,
44,
35,
42,
12,
51,
37,
0,
30,
17,
-48,
-10,
-25,
-50,
-62,
-52,
25,
-55,
-7,
-11,
-30,
17,
19,
58,
-4,
-34,
17,
48,
16,
-17,
19,
-35,
-14,
-46,
45,
-29,
-63,
-17,
-25,
10,
-35,
-18,
3,
9,
-36,
-20,
19,
8,
-91,
1,
71,
-11,
10,
-1,
-7,
5,
11,
46,
-42,
-28,
28,
20,
-15,
-38,
-8,
18,
52,
-55,
-7,
2,
-73,
29,
-62,
-24,
-53,
56,
17,
13,
-41,
66,
-8,
65,
50,
6,
-35,
-10,
-26,
58,
50,
56,
18,
-65,
-32,
35,
-11,
20,
0,
-60,
-67,
21,
-4,
-40,
36,
10,
47,
-50,
54,
50,
78,
60,
-23,
-27,
25,
-22,
-20,
-51,
31,
-10,
-71,
-44,
-3,
-31,
3,
21,
-32,
40,
7,
-68,
13,
69,
-3,
18,
24,
50,
17,
52,
-57,
-31,
28,
6,
-42,
4,
3,
-33,
12,
-29,
-52,
57,
1,
-18,
-18,
-52,
35,
-57,
-20,
15,
8,
0,
33,
-20,
69,
33,
-38,
-19,
-24,
-3,
-18,
-1,
-89,
24,
-28,
-1,
10,
-12,
6,
-24,
31,
-29,
22,
46,
8,
-10,
7,
0,
9,
-11,
61,
-30,
-23,
-21,
31,
23,
-32,
-64,
-50,
-39,
2,
1,
-26,
-47,
26,
33,
0,
12,
-39,
22,
-49,
13,
48,
-60,
-19,
57,
-23,
-43,
19,
9,
55,
43,
55,
-65,
-25,
60,
-3,
5,
18,
-9,
-38,
55,
22,
-8,
45,
-14,
-68,
-30,
-16,
0,
39,
36,
-21,
-56,
-16,
-3,
25,
33,
-27,
-23,
-52,
-30,
34,
16,
-25,
5,
-19,
-36,
-63,
-59,
49,
56,
-35,
42,
29,
15,
3,
51,
-55,
33,
-18,
-50,
5,
-5,
-56,
1,
-13,
41,
16,
-13,
-38,
-29,
41,
31,
12,
55,
54,
-42,
59,
-10,
-26,
33,
85,
-45,
14,
30,
0,
12,
37,
26,
-5,
-9,
-48,
33,
-18,
40,
-3,
41,
-61,
72,
-30,
-12,
-39,
33,
-14,
24,
-15,
-11,
-4,
-47,
1,
-11,
30,
19,
28,
-20,
-52,
10,
-20,
-19,
4,
53,
5,
-32,
44,
29,
8,
-19,
-3,
20,
2,
19,
-18,
-3,
-47,
16,
13,
-42,
-32,
35,
-63,
-10,
46,
2,
-4,
79,
33,
49,
-39,
-41,
0,
13,
-61,
36,
68,
7,
17,
29,
-74,
46,
30,
-36,
-44,
55,
-17,
6,
57,
-5,
-25,
-28,
19,
-33,
32,
75,
-36,
-11,
-29,
-3,
20,
-31,
2,
-13,
-10,
8,
-4,
-41,
-13,
-45,
-10,
-5,
-24,
57,
-46,
-21,
26,
14,
-27,
-30,
-24,
-34,
-17,
-9,
23,
-39,
-35,
-9,
-34,
14,
11,
9,
38,
-22,
-8,
7,
7,
15,
-16,
-29,
-48,
-2,
13,
70,
-41,
30,
79,
50,
-2,
-44,
-16,
11,
12,
54,
-6,
-28,
63,
-42,
-68,
31,
-33,
12,
13,
-52,
24,
-13,
-11,
-73,
-16,
24,
-27,
-1,
12,
16,
-35,
37,
11,
-67,
-16,
46,
24,
-4,
-24,
-2,
30,
0,
37,
14,
18,
-38,
19,
25,
16,
-7,
14,
-78,
-30,
-48
] |
MR. CHIEF JUSTICE ADAIR:
This is an appeal from a judgment entered in an action of unlawful detainer.
Morris Lipsker and Frieda Lipsker, trustees under the will of Hyme Lipsker, deceased, and Frieda Lipsker, individually, plaintiffs and appellants herein, are the owners of the Babcock Building in Billings, Montana.
In 1951 said owners by a duly executed written agreement leased to Billings Boot Shop, a Montana corporation, defendant and respondent herein, certain ground floor and basement space in said building known and designated as 120 North Broadway for a term of five years from and after July 1, 1951, at a monthly rental of $250.
The lease agreement sets forth twelve consecutively numbered covenants the sixth whereof reading:
“And for the purpose of this lease it is hereby expressly covenanted and agreed as follows, to-wit: * * *
“6. That the lessee will not assign this lease, or any interest hereunder, and will not permit any assignment hereof by operation of law, and will not sublet the said premises or any part thereof, and will not permit the use of said premises by any other parties than the lessee and the agents and servants of the lessee, without, in each and every ease, the written consent of the lessors first had and obtained.
“The sale and transfer by the present stockholders of fifty per cent (50%) or more of the stock issued by the corporation shall be considered an assignment of this" lease and in violation of the restrictions of this paragraph.”
The instant action stands or falls upon the meaning and legal effect of the above quoted sixth covenant.
The lease agreement was originally made with the defendant Billings Boot Shop, a corporation, which corporation from the beginning was and still is the lessee of the demised property.
At the time the lease was entered into there were but 213 shares of the capital stock of Billings Boot Shop, the defendant lessee, issued and outstanding same being held as follows:
L. S. Wolcott 187 shares
Frances E. Wolcott, his wife 1 share
Frank Strickland 25 shares
Total 213 shares
Shortly after the lease was entered into L. S. Wolcott decided to withdraw from the business. With this end in view Wolcott, Strickland and Billings Boot Shop, the lessee corporation, agreed Wolcott would transfer to the Billings Boot Shop all the outstanding shares of stock held by him (Wolcott) and his wife for a consideration of $9,702.70 in cash and the cancellation by the Billings Boot Shop, a corporation, of an indebtedness of $9,-552.27, owed by Wolcott to such corporaiton.
Under date of November 6, 1951, the Lipskers, who executed the original lease agreement with the Billings Boot Shop, made and gave their written consent to the above transfer which consent reads:
“Consent to Remodeling and Reorganization
“We, Morris Lipsker, Executor and Frieda Lipsker, Executrix of the Estate of Hyme Lipsker, deceased, having heretofore on the 1st day of September, 1951, entered into a lease agreement with Billings Boot Shop, Incorporated, a Corporation of Billings, Montana, agree as follows:
“1. It is understood that L. S. Wolcott intends selling his corporate stock to the corporation and retiring said stock retaining only one share of said corporate stock and his directorship in said corporation, and in accordance with the terms of the lease, the transfer of this stock might be considered as a breach of the covenants thereof. We, therefore, agree that the transfer of the stock of L. S. Wolcott to the corporation, the same to be retired by the corporation shall not be considered a breach of said lease and consent to this transfer.
“2. We further understand that the corporation intends certain remodeling consisting of closing in the present stairway, constructing a new visible front to the building and contemplates the installation of new furniture and fixtures consisting of shelving, rugs and furniture, and we hereby consent to this remodeling.
“In witness whereof, We have hereunto set our hands this 6th day of November, 1951.
/s/ Morris Lipsker
Morris Lipsker, as Executor
/s/ Frieda Lipsker
Frieda Lipsker, as Executrix”
Following the execution of the above written consent the L. S. Wolcott shares of stock were cancelled and retired and of the 25 shares originally issued to him Frank Strickland transferred two shares to his wife, Ethel Strickland, and one share to L. S. Wolcott. The remaining 22 shares were retained by Strickland.
To finance the acquisition of Wolcott’s shares, the remodeling of property and the purchase and installation of new furniture, Billings Boot Shop borrowed from Shoenterprise Corporation of St. Louis, Missouri, the sum of $26,500, which loan was evidenced by a note secured by a pledge agreement under which all the twenty-five shares of stock issued and outstanding of the Billings Boot Shop were pledged as security for the payment of such loan and Strickland, his wife and Wolcott endorsed in blank and delivered their said certificates of stock, representing all the issued outstanding stock of Billings Boot Shop, the lessee corporation, to said Shoenterprise Corporation to hold as security.
Upon making the above loan the Billings Boot Shop, Strick land, Ms wife and Wolcott executed an agreement with said Shoenterprise Corporation to the effect that said Boot Shop will engage in the retail shoe business at Billings, Montana, and conduct such business strictly according to the requirements of the Merchant Service Department of International Shoe Company. It appears that the Lipskers did not consent to the above pledge of the stock and that they had no knowledge of it.
In late January or early February 1953, when Billings Boot Shop was not otherwise in default, Shoenterprise, deeming itself insecure, and acting under the insecurity clause in the note, declared the balance due. Payment was not made and on February 28, 1953, Strickland, his wife and Wolcott all resigned as officers and directors of the Boot Shop and surrendered their shares to Shoenterprise and its nominees in full satisfaction of the outstanding indebtedness.
The lessee corporation Billings Boot Shop has made timely tenders of all rent due since this controversy arose but the plaintiff lessors have refused such tenders.
On February 28, 1953, the Shoenterprise Corporation executed a receipt to Mr. and Mrs. Strickland and Wolcott for their 25 shares of stock and stated therein that said promissory note for $26,500 was cancelled.
Since February 28, 1953, Billings Boot Shop, the lessee corporation, has been and now is in the control of said Shoenterprise Corporation, which is now the holder of all the issued and outstanding stock of said Billings Boot Shop, and since February 28, 1953, neither Strickland nor his wife nor Wolcott have had any share or interest in said Billings Boot Shop.
On March 3, 1953, the Lipskers caused a written notice to be prepared and on March 4, 1954, caused the sheriff to serve same upon the Billings Boot Shop, which notice reads as follows :
“Billings, Montana
“March 3, 1953
‘ ‘ To the Billings Boot Shop, a corporation
“120 North Broadway
“Billings, Montana
“Gentlemen:
“Beference is made to lease dated September 1, 1951, between Morris Lipsker and Frieda Lipsker, as executors of the estate of Hyme Lipsker, deceased, and you covering premises in Babcock Building, Billings, Montana, known as 120 North Broadway, and particularly to the second paragraph of paragraph 6 of said lease which provides:
“ ‘The sale and transfer by the present stockholders of fifty per cent (50%) or more of the stock issued by the corporation shall be considered an assignment of this lease and in violation of the restrictions of this paragraph.’
“We are informed that there has been a transfer by Frank Strickland and his wife of their stock in the Boot Shop in satisfaction of certain indebtedness, which stock at the time of transfer constituted more than 50% of the issued and outstanding stock of the Boot Shop.
“We have not consented to such a transfer and we consider such a transfer a violation of the terms of the lease resulting in a termination of the lease.
“We, therefore, give you notice that if such a transfer has occurred, you are required to surrender possession of said premises within four days after the service upon you of this notice, excluding the date of service.
“If such a transfer has not occurred, please furnish us reasonable proof within that time that no such transfer has been made.
‘ ‘ If you fail to furnish such proof or if you fail to surrender possession within the time specified, we shall assume such trans fer has occurred and shall hold you for damages for unlawful detainer.
“Yours very truly,
Morris Lipsker and Frieda Lipsker
Trustees under the will of Hyme Lipsker.
/s/ Morris Lipsker
Morris Lipsker
/s/ Frieda Lipsker
Frieda Lipsker
“Frieda Lipsker, Individually
By /s/ Frieda Lipsker”
“P.S. We are returning herewith your check dated February 21, 1953, for March rent.”
On March 28, 1953, a similar notice addressed to the Billings Boot Shop was written by counsel for plaintiffs and served by the sheriff on the Billings Boot Shop. The notice stated that if possession of the property was not surrendered on or before three days from the date of such notice, an action will be commenced against the lessee corporation to recover the premises and damages.
Possession was not surrendered by the Billings Boot Shop and on April 7, 1953, the plaintiffs and appellants herein commenced in the Justice Court of Billings Township before Emil Borberg, Justice of the Peace, this action of unlawful detainer. Upon a trial had before a jury in his court, said justice of the peace assumed to “direct” a verdict for the plaintiff lessors and then entered judgment for plaintiffs ordering the defendant lessee to surrender possession of the leased property and to pay damages at the rate of $250 per month from March 1, 1953. However the justice of the peace declined to treble such dam-’ ages. From such judgment the defendant appealed to the district court of Yellowstone County where, upon the agreed case submitted, the, district court found and entered judgment for the defendant lessee from which judgment the plaintiff lessors have appealed to this court.
The briefs of both the appellants and the respondent disclose that this entire ease depends upon the construction of the above quoted sixth covenant of the lease and upon whether the agreed ease shows a violation by defendant of such sixth covenant.
It is agreed that at the time the Shoenterprise Corporation decided to declare the unpaid balance due on its loan, the defendant Billings Boot Shop was not in default and also that it had made timely tenders of all rent due which were refused by the plaintiff lessors.
R.C.M. 1947, section 58-212, provides: “Conditions involving forfeitu,re — how construed. A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created.” See Finley v. School District No. 1, 51 Mont. 411, 416, 153 Pac. 1010; Henderson v. Daniels, 62 Mont. 363, 373, 205 Pac. 964.
The construction of the sixth covenant of the lease, in the light of the above statutory rule, wholly fails to show any voluntary assignment of the lease that is violative of such covenant.
The transfer of the 187 shares of stock of L. S. Wolcott to the Billings Boot Shop, to be cancelled and retired by said corporation, was not an assignment of the lease and such transfer was made with the express written consent of the plaintiff lessors as shown above. Compare Ser-bye Corporation v. C. P. & G. Markets, 78 Cal. App. (2d) 915, 179 Pac. (2d) 342, 345; Burrows Motor Co. v. Davis, D.C. Mun. App., 76 A. (2d) 163, 165; Wagner v. Shapona, 123 Cal. App. (2d) 451, 267 Pac. (2d) 378, 385; Alabama Vermiculite Corp. v. Patterson, D.C., 124 F. Supp. 441, 445.
The landlord’s consent to the assignment of a lease obviates-, the necessity of consent to subsequent assignments. Aste v.. Putnam’s Hotel Co., 247 Mass. 147, 141 N.E. 666, 667, 31 A.L.R. 149 and note at page 153.
In the Aste case, supra, the court said: ‘ ‘ The principal exception taken by the defendant was ‘to the ruling of the court that, where consent had been given to one assignment of the lease, no> other consent was necessary, and that there was no necessity to get written consent thereafter.’ ” Citing a number of cases in support of such statement.
The Aste case, supra, is followed in Barber v. Hyder, 52 N.M. 421, 200 Pac. (2d) 717, 719, and in Webb v. Jones, 88 Cal. App. 20, 263 Pac. 538, 541. In the Webb case, supra, the court said: “In relation to assignments by lessees under a lease containing a covenant against assignment without consent such as found in the lease under consideration, our courts have held that the covenant is personal, binding only upon the lessee, and does not run with the land. Such consent once given by a lessor discharges the covenant, and subsequent assignments may be made without such consent unless there is appropriate language in the lease making the covenant binding upon the subsequent assignees. Miller v. Reidy [85 Cal. App. 757], 260 Pac. 358, and cases cited therein. See, also, Ericksen v. Rhee, 181 Cal. 562, 185 Pac. 847; Rothrock v. Sanborn, 178 Cal. 693, 174 Pac. 314.”
In Crowell v. City of Riverside, 26 Cal. App. (2d) 566, 80 Pac. (2d) 120, 123, the court recognized the rule as stated in the above cases and said: “As applied to assignments of leases, we understand this doctrine of single or continuous conditions to mean substantially this: that where a lease contains a covenant by the lessee not to assign without the lessor’s permission and provides that a violation thereof shall entail a forfeiture, but such covenant is not, in terms, stated to be binding on the lessee’s assigns, or on the lessee’s heirs, successors and assigns, there the covenant is said to be single, that is, to inhibit no assignment other than one by the lessee. In such a case, therefore, if the lessee obtains permission to assign, and does so, his assignee is under no inhibition to make further assignments because the original lease only inhibits the original lessee from assigning and does not by its terms inhibit his assignee from doing so. Chipman v. Emeric, 5 Cal. 49, 63 Am. Dec. 80; German American Sav. Bank v. Gollmer, 155 Cal. 683, 102 Pac. 932, 24 L.R.A., N.S., 1066.”
Appellants lay much stress on the last sentence of the above quoted sixth covenant of the lease. However such last sentence limits the sale or transfer, “by the present stockholders of fifty per cent (50 %) or more of the stock issued” in order to be considered an assignment in violation of the restrictions of the covenant.
As shown above, on September 1, 1951, at the time the lease was entered into there were 213 shares of stock issued and outstanding of which L. S. Wolcott owned 187 shares. Fifty per cent of these 213 would be 106% shares of stock. However, the agreed case shows that on November 6, 1951, the plaintiffs made and executed their written consent to the selling by Wolcott of 187 shares of his stock to Billings Boot Shop, the defendant corporation.
The remaining 25 shares of the stock of the defendant corporation owned by Strickland, his wife and Wolcott were pledged by them to the Shoenterprise Corporation on November 12, 1951, as security for the payment of a promissory note for $26,500 but such pledge did not constitute a violation of the provisions of the last sentence of the sixth covenant of the lease, especially when, as shown above, the Shoenterprise Corporation, in February 1953, when the defendant was not otherwise in default deemed itself insecure and declared the balance of the note was due, whereupon the three directors of the defendant corporation resigned as officers and surrendered their 25 shares of stock to the Shoenterprise Corporation in full satisfaction of their indebtedness to it. This transaction did not constitute a violation of the last sentence of said sixth covenant as it was not a sale and transfer by 50 per cent or more of the stockholders who signed said lease in September 1951. The transaction were merely a surrender of the 25 shares of stock that had been pledged as security for the payment of the $26,500 loan, made to finance the purchase by defendant of the 187 shares of stock owned by Wolcott and to finance the remodeling of the store and the acquisition of new furniture for the store. By such demand for payment the Shoenterprise Corporation became the owner of the 25 shares of stock but still left the defendant Bil lings Boot Shop in possession of said store and business and Billings Boot Shop continuously remained in possession of said building and store until the action for unlawful detainer was commenced by plaintiffs on April 7, 1953, and since such time such defendant corporation lessee had and has made timely tenders of all rent due up to that time which tenders were refused by plaintiffs.
Upon filing in the district court of the agreed case and the briefs of counsel for the respective parties the district judge made and filed, at the time of entering the judgment in favor of the defendant, a memorandum opinion reviewing the agreed facts which memorandum, in part, recites:
“In such a case, the courts, as well illustrated by decisions cited in the briefs, have held that forfeiture of rights under leases, are not favored and such agreements for forfeiture must be strictly construed. Whatever may have been the intention of the parties, at the time the lease was made, we must be governed by the language used, and cannot put into that language something which is not there. There were 213 shares of the capital stock of the defendant ‘issued and outstanding’ at the time the lease was entered into. (See first Paragraph, Page 2, Agreed Statement.) Under the lease, the sale and transfer of more than 50% of the stock must be made by ‘the present stockholders.’ The stock referred to, unless we resort to speculations, must refer to the stock issued at the time the lease was made. In view of the strict construction required and of the fact that forfeiture is not favored, I can come to no other conclusion than that under the strict terms of the lease, there has been no sale and transfer by the ‘present stockholders of 50% or more of the stock issued by the corporation’ referring to the time of the lease, except the sale by Wolcott, which was approved and consented to by the plaintiffs. As repeatedly found in the cases cited, the rule is well settled that a forfeiture may never take place by implication, but must be effected by plain, unambiguous language. ’ ’
It is clear that the pledge of the 25 shares of stock by de fendant to the Shoenterprise Corporation, when so demanded for security on said $26,500 note, was an involuntary transfer and not an assignment, sale or transfer constituting a breach of the sixth covenant of the lease. Also the surrender of said stock when demanded by said Shoenterprise Corporation was an involuntary transfer.
In 3 Thompson on Real Property, section 1431, page 665, it is said: “Effect of Transfer by operation of law. — It is universally held that a provision restraining the assignment of a lease includes only voluntary assignments, and is not operative against an assignment effected by law, or through an order of court. So, an ordinary covenant against subletting and assignment is not broken by a transfer of the leased premises by operation of law * * * ” See also 51 C. J.S., Landlord and Tenant, section 33d (2), page 545; 32 Am. Jur., Landlord and Tenant, section 335, page 300; Chapman v. Great Western Gypsum Co., 216 Cal. 420, 14 Pac. (2d) 758, 760, 85 A.L.R. 917; Miller v. Bankers’ Mortgage Co., 130 Kan. 543, 287 Pac. 618; McDonald v. Farley & Loetscher Mfg. Co., 226 Iowa 53, 283 N.W. 261, 263.
The judgment of the district court was “that the plaintiffs take nothing by this action and the defendant have and recover his costs herein as provided by Section 93-9502, R.C.M. 1947 * *
The record shows the costs of defendant, prior to the trial were $10.
Finding no reversible error herein the judgment is affirmed.
MR. JUSTICE BOTTOMLY concurs.
|
[
56,
28,
-4,
31,
-9,
-27,
53,
21,
0,
14,
36,
22,
4,
-23,
27,
8,
-5,
18,
19,
-14,
4,
-51,
-68,
-19,
21,
12,
-13,
-5,
5,
31,
13,
14,
7,
-60,
-39,
62,
42,
-26,
-3,
-34,
4,
6,
9,
-16,
25,
10,
-15,
-21,
43,
-37,
39,
-1,
39,
42,
21,
-32,
-68,
-11,
-7,
73,
1,
-31,
87,
32,
32,
-28,
64,
10,
17,
-37,
2,
-29,
-10,
11,
20,
-45,
-6,
1,
-56,
-37,
40,
0,
8,
7,
-76,
21,
-37,
-2,
15,
-12,
-20,
-2,
-8,
-1,
-11,
19,
-31,
-18,
-27,
28,
-17,
-38,
-12,
-1,
23,
-38,
-46,
-1,
36,
30,
-59,
43,
27,
43,
0,
27,
-11,
17,
-13,
-14,
3,
3,
-12,
-7,
10,
-11,
-3,
-11,
11,
23,
-26,
22,
-13,
22,
2,
28,
20,
-27,
-7,
3,
55,
-5,
-15,
-2,
-6,
47,
-8,
19,
-58,
-19,
-29,
28,
17,
-1,
13,
-6,
13,
47,
4,
-16,
20,
-65,
17,
9,
0,
41,
-24,
48,
-54,
8,
-4,
12,
-22,
-30,
-18,
44,
26,
1,
-11,
-11,
-15,
12,
-7,
-39,
-4,
18,
58,
-9,
33,
6,
22,
-27,
-5,
-6,
-31,
-28,
-27,
28,
-24,
-32,
-15,
-6,
20,
41,
6,
-20,
52,
33,
31,
-7,
-24,
15,
-11,
-23,
2,
17,
-18,
39,
-1,
-25,
14,
-30,
-51,
71,
1,
-26,
44,
-14,
-18,
-51,
-67,
-22,
-8,
38,
32,
-15,
-22,
7,
-24,
0,
-16,
-27,
-20,
35,
-33,
-12,
-68,
25,
-1,
6,
-27,
-1,
-26,
62,
24,
-22,
-4,
24,
-50,
-55,
-3,
3,
-25,
30,
50,
-19,
40,
-45,
-16,
35,
-34,
31,
7,
28,
-41,
-25,
6,
-44,
38,
-50,
28,
-29,
27,
38,
-44,
-29,
62,
29,
-60,
-21,
-36,
26,
31,
-17,
66,
-9,
-40,
-3,
8,
17,
-39,
-4,
4,
5,
3,
53,
-21,
13,
26,
2,
-18,
-20,
-7,
-43,
-20,
38,
11,
65,
-9,
-41,
32,
10,
2,
17,
48,
-3,
37,
11,
17,
-4,
6,
-32,
-36,
15,
-74,
14,
36,
-39,
-1,
39,
5,
7,
49,
-36,
9,
9,
-7,
-4,
-22,
-24,
-19,
-43,
-12,
24,
-16,
27,
10,
32,
0,
14,
65,
-14,
-17,
-7,
-43,
-19,
-27,
-20,
36,
-20,
13,
21,
5,
-18,
14,
9,
0,
-30,
-48,
63,
20,
-13,
1,
9,
29,
8,
9,
-29,
9,
-39,
-66,
-21,
34,
45,
11,
-65,
-21,
-3,
-12,
-47,
-14,
17,
-28,
-13,
-19,
-57,
54,
17,
-36,
10,
-20,
-10,
-30,
-19,
-26,
-7,
-64,
-18,
-11,
8,
23,
-39,
34,
28,
1,
-32,
9,
5,
-53,
-6,
-53,
9,
-34,
3,
-4,
-6,
-16,
1,
-13,
-15,
15,
37,
-36,
0,
25,
7,
-35,
23,
8,
17,
33,
-8,
17,
-34,
-30,
13,
22,
2,
34,
8,
63,
-22,
18,
-16,
33,
30,
25,
-59,
-12,
34,
2,
14,
25,
8,
11,
31,
-29,
3,
18,
-20,
1,
5,
11,
74,
-21,
11,
-23,
4,
-6,
11,
49,
54,
33,
-41,
-20,
6,
-28,
-29,
33,
13,
-10,
-25,
-22,
15,
-29,
-7,
3,
-21,
0,
37,
7,
-56,
18,
23,
-31,
43,
6,
15,
16,
74,
49,
31,
0,
15,
-16,
24,
76,
18,
36,
-14,
-22,
-16,
-19,
-31,
-2,
-1,
69,
-6,
23,
-23,
0,
-8,
-32,
-4,
-12,
1,
2,
27,
10,
-24,
18,
-36,
-16,
2,
15,
2,
2,
14,
-28,
38,
12,
77,
-8,
-24,
15,
18,
-71,
-47,
23,
9,
-17,
33,
0,
5,
-30,
-11,
-13,
28,
-23,
-39,
15,
41,
10,
-72,
-33,
25,
2,
53,
-42,
32,
-43,
-53,
-7,
-23,
-38,
-51,
2,
23,
-57,
49,
-27,
8,
8,
-38,
-30,
-44,
-18,
-2,
35,
0,
1,
6,
-26,
-1,
0,
13,
20,
-20,
11,
-28,
-13,
4,
-32,
-49,
10,
8,
-42,
-17,
-3,
30,
-7,
-25,
14,
-12,
28,
-6,
0,
-12,
-36,
-46,
7,
10,
3,
-21,
9,
-15,
27,
16,
45,
1,
8,
-8,
30,
-1,
40,
6,
14,
-13,
17,
-21,
15,
30,
-24,
34,
58,
-30,
-13,
-57,
20,
13,
41,
27,
-6,
24,
80,
34,
6,
-61,
-1,
12,
-6,
-2,
-50,
-42,
44,
-42,
66,
-12,
29,
8,
-11,
-24,
-18,
-1,
-19,
20,
-5,
18,
19,
29,
15,
-39,
25,
37,
-1,
34,
-31,
29,
-51,
17,
13,
-11,
20,
-8,
25,
-3,
-25,
5,
-22,
-26,
-6,
0,
3,
-3,
-8,
-28,
4,
-19,
-34,
7,
6,
6,
4,
-6,
1,
-16,
-20,
-36,
22,
-23,
-3,
16,
-28,
57,
-57,
-2,
32,
-32,
7,
25,
27,
-3,
-6,
2,
8,
-5,
-83,
-54,
-47,
8,
9,
-14,
-37,
60,
1,
40,
6,
-27,
-5,
-36,
15,
2,
-65,
40,
-86,
25,
26,
61,
23,
7,
14,
-15,
-53,
-1,
29,
16,
15,
39,
40,
53,
-2,
27,
32,
-41,
-27,
69,
-6,
49,
24,
-21,
-27,
7,
2,
-4,
30,
-24,
7,
13,
-5,
-12,
-80,
-67,
17,
-21,
7,
17,
14,
16,
2,
4,
15,
-24,
-11,
47,
19,
-9,
-13,
-12,
12,
16,
25,
-28,
-4,
17,
-28,
-8,
33,
11,
1,
-33,
18,
10,
-32,
-1,
17,
-8,
-1,
-29,
-9,
-20,
6,
36,
-20,
-8,
-24,
27,
32,
-8,
19,
43,
-9,
16,
-35,
11,
-22,
-26,
9,
-53,
0,
56,
-54,
33,
29,
28,
17,
-13,
11,
4,
9,
-14,
-12,
68,
-2,
0,
2,
34,
34,
39,
-7,
-35,
10,
19,
-58,
14,
8,
3,
-7,
-41,
-17,
10,
1,
19,
21,
35,
-21,
41,
27,
68,
66,
33,
32,
-7,
-3,
-17,
-38,
39,
-41,
11,
2,
23,
14,
-26,
-66,
47,
19,
30,
-12,
19,
-19,
3,
-13,
19,
4,
-26,
3,
-3,
5,
3,
-59,
18,
-46,
-14,
55,
8,
8,
9,
24,
-34,
3,
-71,
34,
37,
2,
58,
-9,
57,
-26,
-23,
-44,
15,
-44,
36,
2,
14,
38,
-39,
22,
-26,
21,
-29,
-31,
-56,
35,
38,
-38,
24,
-32,
-15,
9,
11,
27,
19,
-44,
28,
-24,
19,
-25,
22,
-41,
-2,
31,
-5,
-7,
8,
11,
3,
-18,
9,
26,
-38,
-15,
-29,
-6,
-32,
-49,
-22,
-1,
-19,
30,
-38,
-37,
15,
23,
8,
0,
-49,
-62,
2,
-25,
26,
-51,
-5,
-31,
8
] |
MR. JUSTICE DAYIS:
On June 29, 1954, the relator Estes pleaded guilty in the re ■spondent justice court before tbe respondent justice of tbe peace for Boulder Township of Jefferson County to a charge of operating a motor vehicle while under the influence of intoxicating liquor. He was fined $150, surrendered his driver’s license, and went his way.
From the undenied recitals of the petition and answer or return thereto, which are before us, and from the oral argument made at the bar we gather these undisputed facts: After Estes had learned that his driver’s license stood revoked for one year by order or rule of the Montana State Highway Commission (Montana Highway Patrol Board), he moved on August 21, 1954, in the respondent justice court for an order vacating and setting aside the judgment of conviction entered against him on June 29, 1954, and for leave to withdraw his plea of guilty.
This motion was made upon various grounds detailed in his supporting affidavit which summarized were (1) that his plea of guilty was not voluntary, but had been entered to avoid publicity, (2) that he was ignorant of the law, and had been misled by the respondent justice of the peace, and (3) that he was subjected to great personal inconvenience in the pursuit of his vocation as a musician and music teacher, because he could not drive his automobile.
On August 31, 1954, this motion was heard. On September 1, 1954, it was denied.
On September 2, 1954, Estes appealed from the denial to the district court for Jefferson County. There on September 22, 1954, he was heard, evidence was taken, briefs were filed, and his motion was again submitted for a ruling, which followed on October 2, 1954, that the order of the justice court be affirmed and his appeal dismissed.
On October 28,1954, Estes sued out of this court what is styled an “Alternative Writ of Error Coram Nobis and Order to Show-Cause,” which went down to the respondent justice court and justice of the peace to review the proceedings there. The district court was bypassed.
Return has been made to this writ in this court: briefs have- been filed; oral argument at the bar has been had; and the matter is now submitted for decision.
The relator’s petition here and writ by whatever name it may be known seek to bring up for review and revision in this court the order of the respondent justice court, which denied the relator’s motion to set aside his conviction and withdraw his plea of guilty.
For us thus to review and revise, as the relator prays, means that we must exercise appellate jurisdiction and reverse the order below. Otherwise stated, if Estes is to be sustained in the position which he takes in this court, then the respondents were in error in denying his motion, that error we would correct by our writ.
This we may not do, for we have no such appellate jurisdiction to review the judgments or orders of the justice courts of this state. The appellate jurisdiction which this court has comes from the Constitution of the State, and is vested in us, “subject, however, to such limitations and regulations as may be prescribed by law.” Constitution of Montana, Art. VIII, section 3. "We are admonished further that save for certain exceptions here of no importance this court has (1) “appellate jurisdiction only,” and (2) a “general supervisory control over all inferior courts, ’ ’ both of which are, however, to be exercised “under such regulations and limitations as may be prescribed by law.” Constitution of Montana, Art. VIII, section 2. We are then told also in no uncertain language that we may entertain writs of error and appeals only from the decisions of the district courts of the state “under such regulations as may be prescribed by law.” Constitution of Montana, Art. VIII, section 15; State ex rel City of Helena v. Helena Waterworks Co., 43 Mont. 169, 172, 173, 115 Pac. 200. Here, too, we are always to bear in mind that we are commanded also by our Constitution, Art. Ill, section 29, to take the jurisdiction given us, that we are forbidden thereby to assume any other. Compare State v. Driscoll, 101 Mont. 348, 358, 360, 54 Pac. (2d) 571.
We must then turn to our Codes and statutes to find the regu lations and limitations which bound our appellate jurisdiction before we may take tbe relator’s case and hear what is to all intents and for all purposes his appeal. Of course, we are not now considering what the case would be, if the legislature had enacted no statutes for our guidance; nor what would be our jurisdiction if we were unreasonably restricted in its exercise by the Codes. Compare State ex rel. Schneider v. Cunningham, 39 Mont. 165, 101 Pac. 962; Jordan v. Andrus, 26 Mont. 37, 66 Pac. 502, 91 Am. St. Rep. 396.
To the contrary we find in the Revised Codes of Montana 1947, comprehensive and adequate provision for appeals to this court from the judgments and orders of the district courts in criminal eases, R.C.M. 1947, sections 94-8101 to 94-8104, and in civil cases, R.C.M. 1947, sections 93-8001 to 93-8003. We find there the time limited for these appeals, R.C.M. 1947, section 94-8105, 93-8004, and the detail of the procedure to be followed to take an appeal, R.C.M. 1947, sections 94-8106, 94-8107, 93-8005, and to make that appeal effective, R.C.M. 1947, sections 94-8109 to 94-8114, etc.; 93-8006 to 93-8025.
But nowhere in the Codes or statutes of the state is there to be read authority for an appeal to this court from either the judgment or order of a justice court or justice of the peace. The limitations constitutionally put upon our appellate jurisdiction by the legislature, the regulations constitutional prescribed by it for our exercise of that appellate jurisdiction speak only of a review by us of the judgments and orders of the district courts.
And well this may be, for as we have been at pains to point out above the only appeal to this court which our Constitution permits is from the decisions of the district courts. Indeed,, such must be the case, for the Constitution is equally explicit in its mandate that appeals “shall be allowed from justices’' courts, in all cases, to the district courts, in such manner and under such regulations as may be prescribed by law.’’ Constitution of Montana, Art. VIII, section 23. The prohibition here laid by Article III, section 29, supra, means precisely that- because appeals from the justice court to the district court are authorized by the Constitution, direct appeals to this court from the justice court are forbidden.
It follows with certainty that the appellate review which Estes seeks perforce of our writ at bar is beyond our jurisdiction, (1) because it is not authorized by the Codes, and (2) because it is forbidden by the Constitution of the state.
In reaching this conclusion we have not overlooked the general supervisory power which is given us by Article VIII, section 2, supra. That power is not invoked in this proceeding, for there is no suggestion that the case here is exigent within the rule of State ex rel. Whiteside v. First Judicial District Court, 24 Mont. 539, 562, 563, 63 Pac. 395; State ex rel. Thelen v. District Court, 93 Mont. 149, 156, 17 Pac. (2d) 57, and like decisions. If the argument for the relator were otherwise, however, our rule would necessarily be the same, viz., that np facts are made to appear which disclose an emergency sufficient to call for an exercise of our extraordinary power of supervisory control on the relator’s behalf. Again we measure the case by the authority given us under the Constitution and find we are without jurisdiction.
The alternative writ issued is vacated and quashed, the proceedings are dismissed.
MR. JUSTICES BOTTOMLY, ANGSTMAN and ANDERSON, concur.
|
[
44,
9,
-5,
1,
-9,
-34,
-10,
-26,
-45,
51,
1,
-40,
1,
-49,
-20,
-35,
-5,
39,
31,
-18,
-22,
-41,
0,
23,
59,
-2,
-14,
32,
-86,
-1,
16,
-23,
-48,
-11,
30,
-15,
8,
-50,
40,
11,
-37,
-30,
-30,
5,
-42,
13,
-33,
2,
-5,
-20,
5,
8,
17,
24,
41,
13,
-21,
48,
-43,
-23,
0,
22,
-35,
-32,
12,
-10,
-12,
-14,
-17,
-9,
-12,
-13,
28,
29,
-14,
0,
0,
-42,
29,
15,
-21,
3,
1,
5,
-16,
28,
4,
-11,
17,
-21,
42,
10,
-8,
-2,
35,
-55,
-61,
-27,
9,
-20,
-39,
-24,
3,
0,
3,
-32,
-74,
12,
17,
48,
-21,
30,
86,
18,
13,
3,
-17,
-16,
11,
-40,
-1,
-69,
23,
-13,
-56,
-34,
-56,
42,
-45,
21,
-15,
30,
84,
-16,
-8,
12,
-46,
-30,
15,
-27,
34,
-50,
48,
11,
18,
-25,
-32,
38,
17,
55,
-19,
21,
65,
30,
21,
-37,
67,
-59,
25,
24,
-5,
17,
0,
-22,
53,
16,
-12,
-8,
2,
-95,
-23,
-49,
14,
29,
56,
6,
7,
19,
14,
52,
-37,
-1,
22,
-42,
-23,
-18,
9,
-8,
-42,
7,
-27,
43,
50,
-42,
7,
4,
-55,
-15,
7,
-32,
-56,
-9,
-41,
53,
5,
40,
-5,
19,
55,
11,
-10,
-61,
30,
-2,
-14,
-25,
44,
21,
23,
2,
-13,
6,
12,
-5,
35,
-11,
33,
48,
-1,
14,
-5,
-11,
27,
-20,
8,
-1,
30,
-7,
-11,
39,
-16,
-20,
27,
-16,
0,
56,
18,
-25,
-31,
8,
23,
-13,
-4,
-18,
-96,
0,
63,
2,
-5,
-25,
67,
-13,
74,
19,
-63,
25,
-48,
34,
-6,
0,
-11,
15,
48,
1,
-36,
-10,
0,
0,
21,
-21,
50,
-40,
-17,
53,
-4,
0,
-11,
16,
-18,
-35,
-2,
-26,
-50,
-8,
-23,
4,
40,
38,
-77,
-28,
22,
32,
-39,
0,
-37,
-32,
-4,
-19,
16,
-8,
7,
0,
73,
-1,
30,
2,
3,
10,
33,
-41,
-21,
-14,
8,
8,
-1,
44,
-6,
27,
-8,
-11,
-15,
0,
-25,
-18,
4,
-49,
15,
15,
-9,
-8,
2,
-25,
-18,
22,
-56,
41,
29,
43,
-25,
-22,
-16,
-59,
-4,
-22,
-23,
-33,
-4,
-83,
4,
-18,
12,
0,
20,
5,
36,
1,
-35,
-18,
7,
-27,
51,
1,
46,
-26,
23,
-13,
-10,
-24,
-43,
-11,
-25,
-19,
-21,
-21,
-3,
-26,
-5,
-36,
-59,
-8,
-24,
31,
-33,
-48,
41,
36,
51,
-34,
14,
-5,
1,
27,
50,
9,
17,
-40,
0,
33,
18,
-46,
27,
-33,
23,
13,
70,
-28,
-29,
21,
-61,
-15,
-37,
-19,
7,
-67,
16,
5,
1,
44,
18,
23,
80,
-11,
-22,
10,
17,
-7,
2,
24,
-11,
-26,
86,
34,
-16,
32,
18,
-46,
-16,
13,
2,
28,
17,
78,
-2,
-15,
-19,
55,
7,
71,
7,
-43,
-24,
53,
-11,
0,
21,
-6,
19,
7,
-10,
48,
27,
28,
-45,
29,
-56,
29,
-3,
-35,
26,
-42,
-1,
-19,
11,
-14,
9,
26,
-13,
-47,
2,
19,
-4,
-19,
-53,
0,
-25,
-40,
-48,
9,
14,
42,
-9,
9,
-20,
6,
-3,
23,
31,
31,
2,
32,
0,
0,
40,
-6,
-2,
-11,
19,
-15,
-7,
7,
4,
49,
49,
-48,
8,
-31,
-6,
-36,
-27,
-65,
-14,
-47,
-22,
-46,
-28,
29,
42,
54,
13,
9,
35,
2,
-3,
3,
-3,
-8,
-58,
22,
-1,
29,
17,
57,
2,
-32,
-18,
-56,
-18,
-28,
-6,
28,
52,
25,
-6,
0,
-44,
77,
-75,
9,
2,
-10,
-31,
12,
22,
-24,
-33,
18,
-37,
-43,
-8,
12,
71,
2,
-10,
0,
-12,
-24,
27,
-36,
34,
-24,
-12,
35,
0,
23,
-7,
29,
-28,
-9,
-30,
1,
20,
-5,
22,
60,
39,
-9,
19,
-31,
7,
-21,
30,
45,
-11,
26,
-16,
17,
-22,
-51,
46,
0,
28,
-10,
40,
24,
8,
-53,
-54,
-31,
-65,
32,
-18,
0,
-36,
24,
-36,
-18,
3,
46,
-19,
3,
16,
6,
2,
-30,
-15,
0,
12,
11,
20,
-41,
-54,
18,
-65,
-23,
-24,
-2,
4,
10,
-10,
0,
6,
15,
-39,
0,
-21,
-2,
27,
2,
16,
9,
34,
-61,
-5,
-70,
7,
-32,
-42,
-3,
20,
35,
2,
-41,
10,
-19,
42,
9,
53,
49,
4,
29,
-26,
55,
-3,
12,
-3,
39,
65,
-22,
-39,
7,
-21,
6,
-9,
32,
-35,
-11,
-5,
-53,
17,
-12,
-50,
-9,
-24,
-6,
-24,
-60,
10,
-20,
-13,
46,
-38,
4,
-40,
17,
49,
6,
3,
-43,
-5,
-41,
78,
4,
1,
-64,
-17,
11,
-8,
-33,
12,
17,
11,
-51,
-15,
28,
-11,
-25,
6,
-7,
15,
-29,
19,
33,
23,
26,
34,
14,
44,
-2,
-16,
-12,
50,
17,
-9,
30,
-70,
41,
-12,
-30,
21,
40,
-24,
32,
11,
-23,
39,
0,
-22,
-4,
74,
-25,
-2,
0,
-37,
-48,
-1,
0,
-3,
19,
36,
-6,
14,
-6,
-7,
-2,
-31,
-24,
11,
-21,
-29,
0,
-9,
19,
7,
23,
59,
-45,
2,
47,
12,
75,
-7,
81,
10,
-22,
-8,
-35,
-42,
-34,
1,
-15,
46,
-20,
21,
13,
45,
19,
-28,
2,
17,
26,
4,
-34,
-12,
13,
-25,
6,
30,
-14,
-43,
-8,
40,
-2,
17,
-48,
-13,
34,
60,
-4,
60,
33,
20,
42,
-51,
69,
-32,
-3,
20,
-6,
41,
-3,
-11,
-29,
-35,
-31,
38,
-1,
43,
-21,
-2,
20,
31,
-6,
63,
37,
-2,
-17,
47,
-18,
46,
-58,
-14,
-35,
32,
23,
-28,
-21,
18,
-36,
-13,
30,
-31,
17,
-47,
-15,
4,
-44,
-53,
17,
-18,
-7,
45,
16,
-6,
22,
1,
-61,
-10,
20,
21,
11,
13,
-34,
-39,
-39,
-11,
-76,
-46,
80,
8,
0,
18,
37,
9,
37,
19,
52,
-46,
37,
-27,
79,
20,
27,
-36,
-74,
-30,
42,
26,
51,
-61,
-49,
26,
-18,
16,
17,
5,
66,
-7,
-35,
-68,
26,
-34,
14,
-27,
33,
0,
27,
-26,
30,
54,
-9,
-10,
0,
-44,
44,
-41,
-35,
-5,
5,
42,
28,
-9,
37,
-40,
59,
27,
38,
6,
-13,
62,
-6,
-35,
9,
8,
4,
20,
-4,
2,
5,
-18,
-14,
-16,
0,
-27,
31,
26,
-4,
-14,
-9,
-17,
-32,
11,
-27,
-44,
-6,
8,
-20,
27,
0,
25,
21,
4,
-45,
14,
-2,
11,
22,
50,
31,
26,
13,
-53,
-24,
-39,
17
] |
PER CURIAM.
This is a Habeas Corpus proceeding in which Mack Kitchens, also known as Herbert Abbott seeks release from the State Prison.
At a hearing this day held where the petitioner was present in person and represented by his counsel, Michael J. Whalen, and. the Warden" of the State Prison was represented by the Attorney General and Emmet T. Walsh, Assistant Attorney General.
And it appearing that in Appeal No. 9539; entitled the State of Montana, respondent, v. Mack Kitchens, alias Herbert Abbott, alias Frank Peterson, alias Harry Harrington, appellant, the majority opinion of this court, pronounced August 5, 1955, 286 Pac. (2d) 1079, 1085, determined that the Judgment of conviction theretofore entered against the appellant in the District Court of Yellowstone County, the Honorable Guy C. Derry, District Judge, presiding, was reversed and the cause remanded with the specific direction that:
“If a new trial is to be had under this information, the district court will first make prompt inquiry into Kitchens’ sanity consistent with this opinion and as R.C.M. 1947, sections 94-9302 to 94-9307, require. If this prosecution is dismissed, the defendant will be delivered to the custody of the district court for Cascade County, which under its commitment of April 21, 1954, and R.C.M. 1947, section 91-4818, has continuing jurisdiction to inquire into his mental condition and to make such disposition of him as may be required by law. ’ ’
And it further appearing that so far as the petitioner, his counsel, the Attorney General or this court are concerned, that nothing has been done by the Honorable Guy C. Derry, District Judge, presiding, or the County Attorney of Yellowstone County, toward granting a new trial or setting the cause on the trial calendar, or dismissing the prosecution, or inquiring into Kitchens’ sanity and mental condition.
And that at all times since the pronouncement of said opinion by this court the petitioner has been and still is in the custody of the Warden of the Montana State Prison.
Now Therefore It Is Ordered that F. O. Burrell, Warden of the State Prison, promptly deliver the petitioner Mack Kitchens, alias Herbett Abbott, into the custody of the Sheriff of Yellowstone County, there to be promptly dealt with as directed in said majority opinion of this court so pronounced on August 5, 1955.
|
[
69,
33,
-36,
72,
-29,
-21,
-3,
16,
-69,
20,
-34,
-47,
-20,
-60,
-37,
41,
4,
-38,
36,
-9,
16,
1,
-38,
33,
19,
-28,
25,
16,
-72,
-3,
28,
24,
2,
-15,
42,
-18,
102,
-10,
51,
49,
-39,
24,
-57,
28,
-4,
-1,
-42,
41,
81,
35,
-15,
-13,
28,
17,
34,
0,
32,
12,
-83,
30,
-46,
0,
1,
0,
37,
-48,
49,
-36,
-4,
-61,
0,
22,
-36,
16,
11,
-14,
-41,
-33,
64,
22,
-3,
8,
-30,
9,
25,
-57,
9,
-41,
7,
7,
-32,
21,
-21,
-29,
17,
-21,
-40,
4,
72,
-56,
-22,
-41,
-23,
-24,
29,
-20,
-40,
39,
-37,
95,
-16,
-14,
49,
-22,
-15,
-34,
-25,
4,
-12,
25,
-34,
-1,
-18,
-12,
1,
-46,
-47,
31,
83,
-24,
-68,
33,
41,
-8,
-75,
24,
17,
-30,
-17,
-13,
-9,
-21,
20,
-37,
2,
52,
-4,
-9,
19,
28,
24,
4,
-7,
54,
-24,
44,
0,
41,
-77,
93,
-3,
-46,
-17,
-34,
95,
26,
-27,
13,
-4,
-80,
-63,
32,
-43,
87,
30,
68,
-20,
53,
0,
30,
-8,
-13,
17,
-74,
-16,
35,
23,
34,
-24,
-10,
-36,
46,
45,
-35,
26,
-48,
29,
-17,
11,
30,
-12,
43,
37,
23,
18,
11,
76,
-14,
83,
-45,
-12,
-21,
38,
21,
-39,
29,
1,
-37,
9,
40,
-34,
19,
13,
-7,
88,
-5,
75,
16,
0,
-44,
24,
-17,
-1,
-24,
-20,
-6,
11,
-31,
24,
24,
-26,
-85,
18,
-59,
54,
26,
-43,
-12,
-34,
23,
33,
-33,
-7,
18,
-13,
9,
20,
32,
-31,
-34,
-6,
-81,
53,
17,
-77,
46,
-14,
-42,
29,
48,
37,
0,
45,
6,
-53,
50,
-2,
12,
-3,
-28,
41,
-45,
24,
-31,
-11,
-94,
-37,
-46,
-43,
-58,
-9,
-68,
7,
-58,
3,
-12,
-7,
-9,
12,
-14,
0,
5,
-25,
-20,
0,
-12,
-22,
16,
27,
-24,
32,
22,
-31,
-31,
9,
-64,
24,
64,
-31,
-38,
-26,
-2,
-5,
-39,
48,
-1,
-60,
47,
-30,
41,
29,
-42,
-29,
21,
-38,
32,
31,
48,
42,
5,
37,
1,
0,
9,
-53,
28,
-5,
107,
-45,
-25,
-1,
-37,
-11,
16,
38,
0,
-29,
9,
-33,
-18,
-11,
-111,
-32,
-12,
-36,
-7,
-7,
-32,
42,
-43,
-20,
-18,
24,
-31,
-40,
63,
28,
-20,
-52,
-24,
9,
34,
-4,
24,
-30,
-28,
12,
9,
43,
23,
-56,
-30,
-12,
-65,
5,
-22,
-17,
3,
26,
-31,
16,
-24,
13,
34,
28,
-34,
-10,
20,
60,
26,
7,
41,
12,
81,
24,
3,
-3,
32,
-47,
10,
19,
-1,
18,
-29,
29,
23,
-36,
1,
1,
-14,
36,
-26,
-14,
27,
-9,
21,
-30,
-15,
46,
-38,
-28,
-20,
3,
-28,
28,
-20,
21,
-13,
27,
17,
-6,
29,
-40,
-12,
-78,
84,
45,
18,
-55,
-69,
-21,
21,
-18,
-6,
48,
40,
-17,
21,
-16,
44,
14,
31,
17,
6,
-44,
0,
44,
1,
72,
-58,
-23,
-19,
-53,
54,
27,
-29,
-23,
29,
-23,
15,
22,
0,
-14,
29,
-25,
9,
4,
49,
44,
13,
-16,
-15,
19,
30,
24,
-11,
45,
-3,
4,
1,
8,
8,
28,
-49,
-29,
-24,
64,
-20,
5,
44,
10,
41,
17,
-35,
-52,
-1,
25,
8,
-3,
-42,
-2,
-60,
-53,
-4,
-2,
-65,
3,
25,
-24,
-51,
56,
-35,
12,
-20,
-3,
30,
-38,
20,
-30,
-15,
12,
-1,
-1,
-19,
10,
-18,
-9,
1,
47,
51,
67,
-55,
-6,
20,
-30,
40,
-84,
26,
-5,
38,
25,
57,
-29,
5,
30,
14,
-18,
-25,
25,
78,
16,
14,
27,
-34,
-55,
-24,
11,
10,
13,
-43,
-68,
-75,
-28,
-26,
-18,
57,
-44,
21,
-6,
-8,
-2,
-2,
-10,
19,
76,
0,
18,
-30,
3,
10,
-5,
23,
20,
25,
-42,
51,
-10,
-75,
-48,
9,
4,
-62,
18,
7,
3,
-33,
-39,
-32,
33,
-42,
4,
4,
55,
-17,
25,
-9,
19,
20,
9,
10,
-35,
75,
-36,
-48,
-47,
-5,
55,
1,
9,
0,
25,
-9,
-64,
33,
-8,
-32,
25,
11,
57,
3,
-24,
19,
-20,
-2,
5,
-1,
-15,
-30,
10,
27,
23,
0,
-61,
49,
29,
43,
-22,
-21,
28,
-61,
-36,
-5,
1,
6,
41,
-21,
47,
19,
-44,
57,
-19,
0,
22,
16,
67,
-54,
-11,
-2,
-22,
0,
-4,
-32,
-14,
57,
24,
17,
-75,
-70,
-65,
-37,
-65,
14,
18,
11,
-7,
-16,
-7,
12,
17,
-35,
-39,
-56,
-34,
30,
57,
-7,
-3,
28,
-24,
-39,
43,
-24,
26,
52,
-27,
52,
-24,
10,
16,
26,
-6,
-44,
-48,
-16,
-7,
7,
-13,
-12,
12,
40,
61,
16,
-4,
41,
-50,
-13,
50,
-14,
-42,
14,
52,
37,
-38,
-10,
-31,
3,
7,
-31,
-7,
26,
0,
14,
-4,
1,
-46,
-8,
-22,
78,
70,
1,
-17,
-6,
-74,
10,
-7,
24,
-13,
-2,
-33,
-25,
-47,
-2,
56,
15,
-11,
-4,
44,
-78,
-76,
5,
8,
-25,
25,
32,
-37,
-99,
56,
24,
-51,
37,
-3,
34,
1,
13,
8,
-31,
16,
9,
-21,
-11,
50,
-53,
-15,
-25,
2,
-68,
15,
14,
18,
-26,
-7,
23,
33,
31,
12,
10,
22,
3,
-48,
34,
-7,
15,
73,
-54,
-14,
25,
29,
4,
41,
13,
59,
34,
-86,
16,
-41,
-8,
16,
-7,
43,
6,
-46,
8,
24,
-24,
-38,
14,
34,
-74,
-28,
26,
-37,
-38,
80,
49,
12,
62,
23,
14,
46,
-28,
-24,
7,
5,
8,
47,
-8,
-34,
-45,
3,
-39,
-49,
23,
-45,
13,
10,
62,
-45,
6,
-40,
-7,
-5,
11,
5,
-5,
49,
-18,
11,
44,
33,
35,
9,
30,
10,
32,
34,
12,
-43,
74,
13,
-45,
-33,
46,
14,
86,
25,
-52,
-9,
-41,
-2,
48,
2,
17,
-19,
-47,
-28,
17,
37,
-20,
-14,
19,
6,
28,
-24,
-15,
11,
74,
19,
-36,
-26,
-25,
3,
46,
-7,
6,
9,
74,
29,
21,
24,
-13,
-54,
-48,
-32,
-22,
-5,
-18,
-23,
9,
-68,
-13,
-32,
-14,
-53,
11,
69,
67,
-5,
41,
29,
24,
-32,
-3,
-15,
32,
-10,
5,
-4,
-57,
-31,
-6,
106,
32,
18,
75,
31,
23,
5,
-59,
-9,
-4,
-29,
14,
14,
-14,
17,
26,
-30,
-10,
-3,
-22,
40,
-37,
5,
-85,
-50,
-2,
-14,
4,
31,
52,
-77,
-14,
-3,
-31
] |
Per Curiam.
Original habeas corpus proceeding brought by Worth Clarke Belgard, an inmate of the Montana State Prison, where he was received March 4, 1953, to serve a term of seven (7) years for having committed the crime of robbery and for which he was found guilty and sentenced in the District .Court of Silver Bow County, Montana. It appearing that the application is without merit, the writ is denied and the proceeding is dismissed.
|
[
32,
-1,
49,
52,
-26,
-37,
13,
-54,
-33,
-40,
-13,
-5,
-33,
-43,
-13,
19,
-46,
-29,
8,
-32,
-13,
-43,
-9,
61,
-16,
0,
48,
110,
9,
71,
16,
22,
20,
-35,
-7,
9,
52,
-21,
16,
25,
10,
32,
11,
1,
-44,
8,
-12,
36,
-17,
13,
-20,
3,
-13,
-27,
-24,
-12,
2,
-43,
-80,
59,
12,
-10,
-9,
29,
37,
28,
10,
-25,
16,
-35,
100,
-2,
9,
16,
75,
-23,
4,
-60,
37,
0,
-36,
23,
-11,
35,
-8,
-27,
-69,
-33,
6,
-3,
13,
-18,
-6,
-38,
-29,
17,
-25,
-25,
-8,
-17,
-79,
-6,
-2,
-31,
16,
-83,
-44,
18,
-39,
42,
-12,
11,
3,
-59,
6,
-11,
-78,
-33,
26,
-12,
-36,
24,
19,
47,
-20,
-59,
-44,
-26,
71,
-28,
-17,
-12,
-19,
-2,
-52,
11,
14,
-8,
37,
-18,
-25,
-81,
10,
-8,
31,
-62,
-11,
-22,
0,
38,
-13,
85,
-16,
8,
8,
48,
-51,
40,
-30,
22,
-49,
-47,
2,
10,
91,
-2,
0,
-12,
7,
-32,
-58,
-12,
-17,
15,
35,
25,
-25,
59,
23,
7,
34,
51,
60,
17,
-79,
4,
-62,
46,
-37,
-34,
-14,
57,
-7,
-19,
32,
30,
36,
-15,
-9,
21,
-16,
14,
47,
18,
-5,
-2,
30,
-87,
35,
-42,
14,
-92,
36,
51,
-7,
17,
-8,
-17,
17,
36,
-36,
-5,
-5,
33,
55,
-22,
40,
52,
-37,
-35,
54,
-12,
41,
-59,
25,
-15,
19,
-29,
6,
47,
-49,
-30,
51,
-42,
55,
16,
-18,
63,
15,
35,
-35,
-9,
-58,
30,
-29,
-58,
17,
-19,
0,
-7,
-14,
-42,
33,
10,
-23,
30,
49,
0,
-16,
-13,
21,
26,
6,
-16,
25,
38,
-21,
31,
5,
5,
36,
-2,
-42,
-71,
-33,
-73,
-13,
-57,
-8,
-59,
-22,
15,
39,
-49,
66,
19,
-61,
-58,
-20,
-34,
-27,
0,
-26,
18,
13,
-39,
47,
-15,
63,
-30,
36,
30,
-14,
-26,
-45,
-17,
42,
-26,
-36,
-15,
-4,
-8,
0,
-4,
-36,
41,
-40,
13,
-11,
49,
4,
11,
-28,
-16,
-33,
5,
17,
89,
-3,
6,
40,
46,
-42,
21,
-23,
13,
18,
74,
0,
32,
-32,
16,
10,
-8,
19,
-52,
-8,
-12,
-7,
-4,
39,
-24,
41,
2,
-19,
-48,
-43,
12,
0,
-13,
-15,
-25,
26,
-59,
8,
58,
1,
41,
8,
28,
-1,
-13,
45,
63,
10,
-8,
14,
3,
-26,
-14,
-78,
-19,
-6,
-31,
16,
-6,
-12,
-2,
37,
-19,
15,
-14,
16,
29,
17,
-47,
-42,
32,
39,
18,
5,
28,
34,
25,
38,
16,
4,
-2,
19,
56,
31,
20,
5,
32,
-38,
31,
19,
-30,
0,
13,
95,
-15,
0,
-13,
23,
28,
-42,
-60,
46,
29,
45,
2,
28,
-23,
40,
-3,
-20,
-3,
-20,
-11,
-12,
-18,
-49,
-63,
-61,
74,
40,
66,
-28,
-5,
-12,
19,
-17,
-15,
52,
6,
-23,
-8,
15,
19,
-7,
12,
-26,
41,
-21,
7,
36,
-1,
22,
-3,
3,
-15,
-31,
-21,
19,
-31,
-33,
19,
-25,
29,
18,
-4,
15,
28,
-30,
19,
-66,
17,
30,
8,
-12,
-8,
-8,
15,
55,
-15,
9,
-8,
-53,
-5,
13,
-34,
35,
-6,
-31,
8,
65,
-55,
-2,
33,
-58,
12,
-26,
42,
12,
-5,
20,
-30,
-13,
7,
-19,
-57,
-81,
1,
-29,
-54,
-2,
19,
-36,
-34,
28,
-43,
77,
31,
-11,
47,
6,
31,
-23,
7,
-6,
10,
64,
14,
-3,
-35,
-22,
-33,
13,
-29,
0,
33,
-42,
-17,
1,
24,
13,
28,
-6,
51,
-2,
8,
44,
35,
39,
-23,
-27,
2,
-2,
23,
51,
14,
-13,
-13,
-46,
-16,
-10,
-33,
-9,
-8,
-39,
14,
26,
-19,
8,
50,
-61,
-9,
14,
0,
-20,
45,
-27,
77,
26,
-30,
9,
-13,
6,
-13,
48,
11,
8,
32,
-56,
10,
-2,
-4,
-1,
0,
59,
-43,
-2,
0,
-2,
-52,
-76,
-83,
-23,
15,
6,
-2,
-9,
-18,
-26,
0,
-55,
75,
-18,
13,
-3,
20,
29,
-18,
-3,
15,
52,
-12,
28,
37,
67,
5,
-68,
22,
-17,
-28,
-25,
-9,
47,
-31,
-35,
24,
-61,
-17,
-28,
13,
-16,
-2,
6,
44,
29,
-75,
-51,
-49,
20,
-1,
17,
-42,
27,
-53,
46,
-7,
7,
21,
-16,
-5,
-6,
64,
17,
42,
-15,
12,
23,
23,
49,
-36,
-16,
28,
-67,
96,
-15,
5,
-14,
13,
5,
-30,
-19,
-43,
-59,
-70,
-51,
10,
9,
27,
20,
-14,
-76,
30,
42,
-31,
13,
-50,
0,
38,
-31,
-41,
-28,
-2,
27,
26,
19,
0,
50,
-2,
-37,
-10,
-26,
-14,
24,
-45,
-54,
-46,
2,
2,
-50,
-6,
-33,
-18,
-27,
70,
60,
48,
-67,
25,
-61,
-23,
20,
-17,
50,
-21,
5,
55,
-12,
43,
-23,
10,
-17,
-30,
23,
52,
6,
30,
-33,
-14,
29,
-17,
-34,
47,
57,
-8,
-19,
3,
-16,
16,
42,
21,
17,
12,
10,
-25,
34,
15,
21,
24,
7,
41,
-24,
-35,
-16,
-28,
12,
37,
30,
-6,
22,
2,
-25,
71,
-68,
22,
11,
42,
-40,
15,
26,
-20,
34,
15,
-4,
-11,
32,
-28,
25,
13,
65,
-12,
37,
-20,
-14,
16,
0,
-9,
14,
51,
13,
-32,
-29,
35,
-24,
18,
9,
-8,
72,
6,
25,
-42,
-23,
-13,
30,
0,
8,
18,
-37,
2,
-33,
-30,
61,
-54,
32,
-55,
-35,
-58,
-19,
-15,
-64,
-26,
41,
-20,
7,
27,
8,
16,
45,
17,
-23,
-6,
46,
35,
1,
0,
-34,
1,
-11,
-4,
5,
-50,
-47,
-80,
-74,
-41,
-50,
-24,
-79,
37,
-3,
22,
-2,
-43,
-42,
18,
19,
55,
22,
-1,
42,
20,
27,
-1,
53,
28,
10,
-11,
-31,
20,
11,
-5,
9,
43,
21,
-42,
7,
49,
16,
44,
16,
5,
13,
-63,
-58,
56,
-2,
57,
-47,
-28,
-9,
5,
50,
-31,
-2,
54,
-11,
-53,
0,
-6,
24,
36,
10,
-70,
-6,
-42,
1,
0,
-26,
11,
-52,
29,
43,
2,
28,
4,
-2,
0,
-14,
-35,
-12,
51,
-3,
-2,
-34,
29,
-33,
21,
-1,
0,
60,
-46,
-44,
42,
64,
47,
-41,
-28,
4,
-10,
-48,
-20,
-12,
-19,
-15,
13,
39,
62,
8,
36,
97,
-1,
75,
-61,
-6,
16,
-12,
-5,
-3,
-43,
28,
-8,
11,
-37,
-29,
14,
8,
-20,
-9,
-36,
-15,
24,
-39,
29,
17,
26,
-56,
-25,
47,
-1
] |
Per Curiam.
It is ordered that the petition for writ of prohibition and the writ applied for, be and they are denied and this original preceeding in this court is dismissed.
|
[
-36,
-62,
50,
-11,
51,
-40,
0,
18,
21,
-1,
-15,
-3,
-70,
26,
-28,
82,
-9,
-8,
29,
-55,
18,
66,
26,
-10,
-17,
-26,
10,
66,
34,
24,
-9,
-29,
-19,
45,
-13,
-51,
33,
0,
49,
1,
-25,
9,
13,
80,
-58,
-61,
-28,
19,
7,
23,
-38,
-32,
-25,
-28,
-84,
22,
5,
-51,
35,
9,
-20,
21,
-24,
1,
0,
-11,
3,
-7,
0,
50,
-8,
13,
30,
-3,
-4,
11,
-10,
18,
-37,
51,
-10,
75,
27,
44,
-28,
22,
23,
50,
0,
-24,
-1,
-49,
-45,
-54,
-89,
3,
4,
0,
-29,
-5,
35,
13,
33,
-46,
-4,
-65,
47,
57,
-47,
0,
10,
-30,
-36,
-13,
3,
14,
-31,
32,
-2,
47,
6,
19,
12,
15,
-27,
28,
-28,
27,
0,
-7,
67,
48,
20,
47,
6,
2,
24,
68,
3,
-52,
-12,
-46,
45,
51,
-9,
-96,
-6,
67,
0,
-31,
15,
5,
-46,
10,
-4,
67,
4,
-58,
52,
29,
-3,
-7,
21,
-5,
49,
6,
-28,
-12,
6,
17,
0,
-44,
-6,
23,
-25,
-33,
-8,
13,
29,
26,
39,
42,
22,
20,
-6,
-23,
-50,
19,
-7,
-24,
-56,
3,
63,
17,
43,
-38,
13,
0,
35,
20,
-76,
25,
-50,
-33,
-5,
-24,
-44,
-55,
5,
36,
-31,
-25,
27,
0,
33,
-12,
0,
3,
49,
53,
19,
-9,
18,
-1,
37,
-30,
31,
27,
-3,
46,
-10,
-8,
-9,
8,
79,
-38,
55,
14,
-24,
15,
-38,
87,
-8,
-13,
-56,
-37,
14,
106,
85,
-8,
70,
8,
47,
-32,
-20,
-27,
-48,
3,
32,
-43,
-1,
32,
-17,
-57,
-59,
26,
72,
20,
42,
13,
-23,
2,
-31,
40,
72,
37,
-35,
-40,
14,
57,
-47,
23,
12,
19,
-12,
3,
-1,
-34,
0,
-27,
7,
36,
-33,
7,
19,
29,
-36,
24,
-47,
-29,
-54,
-14,
-13,
47,
-11,
-44,
29,
-25,
49,
-65,
-19,
36,
12,
35,
-78,
42,
-33,
-26,
-2,
-38,
5,
-34,
-62,
8,
-42,
-5,
-3,
32,
66,
40,
60,
13,
-17,
-32,
-52,
74,
53,
46,
-17,
52,
-4,
28,
-65,
74,
0,
-8,
38,
-14,
32,
34,
-45,
37,
23,
-41,
38,
-44,
-11,
-53,
12,
14,
6,
4,
70,
76,
88,
-11,
5,
41,
9,
-17,
-17,
35,
1,
-61,
-4,
-5,
-13,
0,
12,
-36,
-19,
-48,
86,
36,
25,
44,
30,
27,
-46,
-28,
-18,
-1,
-40,
-24,
-80,
37,
-7,
25,
20,
52,
39,
-31,
-37,
-2,
-17,
-44,
-15,
63,
12,
-7,
-70,
24,
-4,
-19,
77,
47,
-28,
21,
60,
-9,
-9,
21,
-55,
52,
-25,
-2,
-25,
-25,
37,
19,
-14,
-21,
36,
14,
-81,
8,
30,
-7,
47,
54,
6,
-14,
-1,
0,
-31,
23,
-47,
-38,
-32,
2,
-31,
-9,
-62,
-34,
14,
21,
19,
100,
-29,
42,
8,
-14,
-24,
-67,
-63,
56,
6,
-19,
-12,
-27,
-8,
-13,
-23,
-44,
-92,
-8,
20,
10,
-53,
-22,
33,
26,
-9,
-54,
-21,
-7,
-5,
16,
-33,
-16,
-2,
-38,
33,
38,
-21,
-49,
-67,
-60,
-71,
59,
35,
24,
-56,
38,
33,
28,
14,
20,
-2,
-11,
14,
-13,
28,
-19,
-2,
24,
13,
0,
-7,
-13,
-46,
-3,
-54,
-17,
-31,
-6,
39,
-51,
27,
25,
-40,
-24,
-48,
-34,
-36,
-5,
12,
21,
-4,
-11,
0,
0,
52,
39,
47,
34,
-32,
55,
19,
9,
-78,
8,
-25,
-8,
-43,
0,
-32,
-30,
21,
-11,
-18,
-49,
-65,
11,
7,
69,
35,
12,
-6,
74,
-19,
-9,
3,
22,
39,
-9,
52,
-37,
-22,
-35,
-7,
0,
-30,
5,
39,
-6,
-20,
-12,
-48,
-25,
-39,
13,
28,
-56,
19,
26,
-56,
-9,
-1,
50,
-10,
27,
56,
85,
-56,
-8,
36,
45,
-24,
8,
81,
62,
-39,
9,
-21,
12,
-6,
41,
36,
46,
21,
23,
-75,
54,
18,
-9,
-73,
-50,
36,
57,
-21,
74,
43,
-23,
-53,
57,
-29,
61,
-21,
-81,
0,
20,
4,
-92,
19,
7,
64,
-19,
37,
64,
50,
48,
-25,
-36,
15,
-70,
-33,
-75,
42,
-30,
-113,
-24,
-31,
-23,
-45,
32,
-17,
15,
-45,
42,
4,
18,
-29,
-55,
13,
-13,
53,
57,
-37,
-81,
-21,
22,
20,
32,
-14,
-40,
19,
-3,
-60,
72,
47,
-2,
-27,
26,
-20,
12,
-53,
27,
6,
18,
19,
-33,
23,
65,
-46,
-27,
-14,
-23,
-37,
-5,
-39,
-20,
-35,
18,
38,
-49,
9,
21,
36,
-99,
16,
-16,
15,
40,
-22,
-52,
-18,
0,
28,
-25,
21,
-66,
68,
0,
-29,
-50,
-19,
-6,
16,
-55,
-7,
-31,
2,
-64,
30,
-53,
-37,
74,
7,
-8,
27,
-43,
-44,
78,
5,
-12,
40,
-74,
38,
25,
20,
-13,
11,
40,
-21,
58,
-17,
-1,
-10,
28,
32,
-39,
46,
-21,
-26,
21,
-89,
-13,
88,
36,
-70,
-76,
-12,
26,
31,
-6,
8,
-12,
0,
-39,
35,
-18,
-9,
63,
26,
-9,
-24,
-23,
41,
-49,
12,
-17,
12,
-31,
5,
85,
-67,
44,
-65,
9,
-16,
21,
-33,
6,
7,
34,
11,
-46,
-17,
-28,
6,
21,
23,
51,
31,
-22,
-11,
-24,
-10,
17,
68,
-27,
33,
2,
-85,
-23,
11,
-23,
13,
-30,
-60,
16,
-15,
49,
14,
-11,
-34,
33,
-5,
36,
-26,
-26,
36,
64,
-5,
4,
36,
-54,
-18,
5,
45,
-46,
71,
-91,
-18,
-14,
16,
-1,
10,
23,
4,
-53,
51,
4,
3,
-31,
50,
-34,
3,
18,
31,
34,
-25,
-41,
3,
-17,
7,
-49,
-54,
-29,
74,
-11,
-4,
72,
82,
13,
20,
-50,
-5,
68,
-26,
-39,
38,
16,
10,
-5,
-3,
14,
42,
-50,
-34,
24,
-22,
26,
41,
-37,
9,
-13,
21,
-68,
68,
74,
0,
-13,
-14,
13,
25,
-10,
27,
-49,
36,
-8,
5,
38,
-62,
-83,
21,
50,
32,
15,
-80,
22,
36,
-46,
16,
-31,
-30,
-33,
48,
-44,
9,
-11,
2,
-43,
-88,
-16,
20,
118,
-2,
-6,
8,
12,
-49,
80,
-70,
16,
-22,
68,
24,
21,
8,
66,
49,
20,
-39,
-44,
-21,
18,
6,
70,
-22,
-46,
22,
-50,
-52,
-15,
0,
50,
36,
-24,
-8,
44,
-47,
-65,
-13,
3,
-21,
38,
-22,
76,
-3,
-41,
-14,
-43,
12,
17,
3,
-43,
-54,
-34,
-5,
-21,
18,
15,
5,
-34,
32,
19,
-18,
-21,
-21,
4,
22,
-36
] |
Per Curiam.
On application of the appellants and the respondent, and stipulation filed;
It is hereby ordered that the appeal herein from the order denying a motion for change of venue in the above entitled cause be and it is dismissed.
MR. CHIEF JUSTICE ADAIR and MR. JUSTICES ANDERSON, ANGSTMAN, DAVIS and BOTTOMLY concur.
|
[
-51,
-39,
23,
29,
32,
-23,
14,
6,
-15,
-33,
-8,
5,
-75,
-52,
-58,
1,
-35,
-11,
8,
-16,
-35,
10,
17,
41,
18,
21,
0,
52,
29,
1,
11,
-45,
-26,
47,
8,
-5,
26,
6,
-14,
-26,
-11,
-13,
-6,
26,
-30,
13,
6,
38,
-9,
40,
17,
28,
-76,
16,
-70,
13,
-59,
-13,
68,
0,
-38,
36,
-14,
8,
19,
-51,
57,
-72,
24,
35,
-21,
-12,
69,
-17,
45,
4,
-54,
-33,
-70,
18,
8,
63,
39,
20,
-17,
25,
33,
59,
26,
9,
-24,
-8,
12,
-58,
-64,
59,
55,
-49,
22,
-2,
-21,
-26,
33,
-7,
-8,
-42,
-22,
35,
3,
-26,
15,
2,
15,
-1,
10,
60,
9,
22,
67,
18,
0,
6,
9,
31,
-22,
36,
7,
55,
19,
1,
-11,
-6,
-9,
-5,
47,
25,
45,
30,
-4,
-21,
26,
0,
35,
26,
4,
-13,
14,
46,
-59,
-21,
56,
35,
-23,
59,
30,
56,
-28,
-1,
33,
98,
10,
-10,
-22,
1,
10,
17,
-58,
-27,
-17,
50,
41,
1,
45,
25,
-39,
11,
-43,
38,
-21,
-8,
13,
39,
49,
-36,
-21,
2,
-43,
34,
-7,
-30,
-57,
-38,
7,
-9,
21,
-20,
19,
0,
-23,
6,
-52,
4,
-19,
-65,
2,
-52,
-29,
-37,
2,
23,
-27,
-20,
-49,
-17,
76,
51,
36,
29,
5,
56,
15,
-13,
25,
-9,
22,
13,
-7,
33,
-4,
41,
-15,
-28,
-42,
19,
40,
-18,
36,
42,
-28,
-32,
-7,
-4,
59,
-16,
-63,
5,
71,
85,
53,
-21,
48,
11,
47,
-1,
11,
-14,
-28,
54,
-72,
-40,
29,
7,
-44,
-7,
-20,
98,
12,
-8,
34,
-12,
-20,
44,
9,
16,
29,
-3,
-21,
-18,
27,
70,
-12,
46,
34,
-31,
-31,
0,
14,
-21,
35,
11,
-45,
36,
-5,
40,
20,
-2,
-31,
33,
-68,
-51,
-25,
13,
0,
10,
25,
9,
-33,
-27,
36,
-31,
-35,
58,
50,
-41,
-56,
71,
-42,
1,
-10,
-17,
-29,
-27,
-51,
7,
-2,
5,
32,
-23,
25,
-8,
5,
0,
42,
-14,
-49,
52,
15,
64,
33,
61,
-22,
-22,
-47,
-42,
29,
-19,
0,
-9,
8,
-8,
-51,
12,
-15,
-44,
17,
-73,
3,
-58,
-20,
-15,
-6,
0,
42,
-9,
54,
23,
1,
45,
-20,
-44,
-21,
-32,
-12,
-39,
1,
20,
38,
7,
13,
5,
-5,
-29,
40,
11,
24,
24,
5,
41,
2,
-16,
0,
-65,
-12,
-33,
-14,
82,
27,
14,
40,
-20,
66,
-16,
-32,
7,
-7,
3,
34,
-15,
-5,
40,
-15,
25,
-13,
10,
72,
59,
-75,
28,
32,
11,
53,
-6,
-8,
29,
-59,
31,
-2,
-59,
27,
14,
-18,
-26,
31,
24,
-42,
76,
12,
3,
-9,
82,
5,
-10,
-51,
-40,
-100,
36,
-40,
17,
-54,
-4,
-9,
-12,
30,
-50,
14,
-17,
-5,
58,
-38,
0,
41,
-13,
-75,
-61,
-40,
15,
-11,
27,
15,
-37,
-62,
3,
-14,
-4,
-34,
-27,
-19,
-1,
-64,
-11,
70,
17,
-12,
-7,
-36,
-16,
10,
59,
52,
-23,
-19,
-35,
6,
-17,
-42,
-41,
-38,
-4,
-85,
-11,
18,
-40,
-43,
6,
50,
-37,
-21,
-46,
26,
-55,
40,
-55,
30,
50,
58,
-10,
1,
0,
4,
-4,
-15,
-31,
-47,
-43,
59,
30,
-32,
30,
26,
15,
0,
-10,
-22,
-20,
16,
-8,
-30,
-12,
35,
3,
-19,
30,
3,
44,
43,
41,
21,
46,
36,
6,
32,
30,
-48,
-18,
-23,
-39,
-78,
-40,
25,
-58,
-9,
-7,
-26,
23,
22,
62,
0,
-36,
18,
50,
10,
-17,
20,
-34,
-14,
-46,
34,
-26,
-60,
-19,
-24,
5,
-40,
-16,
3,
16,
-36,
-26,
27,
8,
-92,
4,
72,
-10,
11,
0,
-8,
7,
0,
54,
-43,
-23,
24,
33,
-12,
-36,
-1,
13,
42,
-60,
-9,
9,
-72,
29,
-44,
-27,
-52,
56,
7,
18,
-39,
76,
-15,
72,
55,
2,
-36,
-10,
-27,
53,
54,
55,
11,
-66,
-37,
39,
-9,
21,
-12,
-47,
-72,
20,
-3,
-41,
46,
7,
37,
-53,
55,
45,
68,
67,
-31,
-23,
25,
-21,
-34,
-47,
35,
-10,
-70,
-48,
-3,
-33,
7,
31,
-27,
41,
6,
-66,
16,
64,
-5,
14,
31,
47,
15,
58,
-56,
-31,
27,
10,
-42,
13,
11,
-32,
7,
-25,
-50,
60,
-13,
-8,
-13,
-47,
39,
-54,
-8,
31,
6,
-1,
30,
-19,
62,
17,
-37,
-20,
-19,
4,
-13,
-3,
-88,
27,
-27,
0,
13,
-8,
0,
-25,
25,
-28,
14,
52,
5,
-18,
8,
-9,
8,
-6,
65,
-31,
-16,
-35,
28,
16,
-27,
-57,
-52,
-39,
-1,
1,
-27,
-40,
31,
29,
-4,
12,
-42,
35,
-46,
27,
53,
-63,
-21,
49,
-20,
-50,
28,
14,
57,
40,
46,
-53,
-18,
58,
-2,
7,
27,
-7,
-38,
57,
21,
-18,
49,
-22,
-67,
-26,
-15,
0,
35,
31,
-22,
-48,
-3,
-4,
38,
48,
-33,
-27,
-46,
-28,
33,
11,
-27,
6,
-14,
-32,
-67,
-61,
33,
67,
-25,
48,
31,
17,
7,
52,
-60,
36,
-18,
-51,
3,
-11,
-55,
1,
-9,
42,
28,
-16,
-36,
-36,
38,
31,
19,
57,
55,
-41,
55,
-7,
-24,
32,
76,
-49,
7,
36,
-5,
8,
36,
24,
-13,
-11,
-46,
32,
-32,
40,
-1,
35,
-64,
61,
-38,
-15,
-32,
34,
-2,
27,
-13,
-20,
-10,
-65,
2,
-21,
25,
11,
23,
-19,
-56,
5,
-17,
-18,
10,
46,
-1,
-25,
29,
20,
6,
-23,
1,
20,
4,
2,
-7,
1,
-42,
7,
16,
-45,
-33,
21,
-60,
-9,
40,
2,
-2,
75,
38,
45,
-41,
-55,
-3,
31,
-69,
43,
69,
8,
17,
28,
-77,
43,
26,
-35,
-41,
56,
-25,
18,
60,
3,
-22,
-41,
19,
-30,
41,
78,
-38,
-7,
-29,
-2,
29,
-37,
0,
-3,
-5,
11,
-20,
-38,
-14,
-44,
2,
-14,
-32,
56,
-53,
-27,
28,
9,
-22,
-25,
-13,
-39,
-10,
-15,
14,
-33,
-40,
-12,
-32,
1,
15,
17,
33,
-13,
-11,
4,
5,
5,
-20,
-32,
-52,
-2,
16,
68,
-40,
27,
80,
45,
-11,
-58,
-19,
10,
14,
68,
-23,
-31,
62,
-44,
-66,
29,
-25,
-2,
15,
-42,
32,
-17,
-21,
-74,
-10,
12,
-19,
0,
14,
17,
-24,
38,
15,
-68,
-27,
43,
24,
-8,
-11,
-4,
37,
9,
42,
11,
19,
-44,
15,
25,
16,
-8,
12,
-60,
-29,
-45
] |
MR. JUSTICE ANGSTMAN:
Argo Woodard, a resident of Meagher County, died intestate July 9, 1939; his wife, Emma Woodard, died October 5, 1946, also without leaving a will. Each owned in their own name separate pieces of real estate. No proceedings for the probate of the estate of Argo took place prior to the death of his wife Emma. After the death of Emma Woodard, James Shook, a grandson, was appointed administrator and later on October 8, 1947, the letters issued to him were revoked and George Woodard, a son, was appointed administrator of both estates. The plaintiffs are respectively the son and daughter of a deceased daughter of Argo and Emma Woodard, and defendant Mable Woodard Eyman is a daughter of Argo and Emma Woodard.
The inventory and appraisal filed in the estate of Argo Woodard disclosed that he had a quarter section of land valued at $960 and personal property valued at $5,433. It contained a notation to the effect that title to the personal property was disputed, the administrator claiming to be the owner of all of it. Plaintiffs brought this action to litigate that claim, and the amended complaint and answer presented the issue as to the ownership of the disputed personal property; the complaint likewise sought a general accounting in equity of the property of' the estates alleged to be concealed and converted to their own use by the defendants.
An answer constituting a general denial with two affirmative' defenses was first filed and afterwards motion was made to file an amended answer by inserting a third affirmative defense and counterclaim, which, defense and counterclaim was in substance as follows: That Argo and Emma Woodard, about the year 1923, informed defendant George Woodard that by reason of their advancing age and physical illness they found it difficult to care for and operate the ranch and that in consequence they asked defendant George Woodard to assume the manage- . ment and control of the real property and to make suitable provision for their support out of the income and profits derived therefrom - that defendant George Woodard at that time owned a quarter section of land of his own and was the owner of certain cattle, horses and sheep, and in consequence of the request made by Argo and Emma Woodard, his parents, he sold his ranch and assumed control of the ranch belonging to Argo and Emma Woodard.
It is then alleged that the defendant George Woodard assumed control of the ranch under the promise of Argo and Emma Woodard that all their right, title and interest in and to the real property owned by them should be his after their death; that in reliance on this promise he assumed the management and control of the Argo and Emma Woodard property, and operated it and made provision for their care and maintenance during their life, and made certain improvements upon the property.
It is alleged that defendant, as administrator, sold the real estate belonging to the decedents for prices aggregating more than $10,000, which is now in his possession except he has disbursed certain sums therefrom for premiums upon his official bonds and expenses of administration.
It is alleged likewise in the third affirmative defense and counterclaim that approximately a year prior to the death of Emma Woodard the defendant Mable Eyman was visiting her mother and was told by her that she wanted all her property to go to her son George Woodard with the exception of certain personal effects, and defendant Mable Woodard Eyman thereupon requested her mother to go without delay to Harlowton .and see an attorney and have him prepare a will which would give effect to her wish and intention, and that the decedent Emma Woodard thereupon promised defendant Mabel Woodard Eyman that she would do so.
The prayer of the third affirmative defense is that upon final settlement of the estate all moneys in the hands of the administrator be paid to the defendant George Woodard, less counsel fees and expenses of administration.
Leave to file the amended answer was granted. After hearing the court found that all of the personal property involved, including the livestock and machinery, excepting a 1928 automobile, belonged to the defendant George Woodard. The court further found that the defendant George Woodard has not produced strong, clear or satisfactory evidence sufficient or competent to establish an enforceable contract between him and Argo Woodard whereby defendant George Woodard was to obtain the real estate upon the death of Argo; and that he has not produced sufficient evidence to establish an enforceable contract between him and Emma Woodard to the effect that he was to obtain her land upon her death in consideration for services, maintenance and care as alleged. The court likewise found that defendant George Woodard be required to account to the estate of Argo Woodard for the reasonable value of the use of the lands owned by Argo Woodard from the date of his death until April 26, 1948, that being the date when the real estate was sold by defendant as administrator, and that he account to the estate of Argo Woodard for a 1928 automobile converted to his own use and which he sold for $25.
The court also ordered defendant George Woodard to account to the estate of Emma Woodard for the reasonable value of the use of her lands from the date of her death to April 26, 1948.
Defendants have appealed from the judgment and plaintiffs, filed a cross-appeal.
Before discussing the merits of the appeal, questions of procedure are presented, arising from the following facts: On the 13th day of May 1955, and before the case was reached for argument, defendants filed a motion to supplement the transcript on appeal so as to show that a notice of appeal had been served and filed, the transcript on file not showing that fact. An order was made by this court granting defendants’ motion. When the case was reached for argument, counsel for plaintiffs called attention to paragraph 6 of Rule VI of this court requiring notice to be served upon the adverse party before a supplemental transcript could be allowed. Thereupon this court vacated its order allowing defendants to supplement the transcript until notice was given to plaintiffs’ counsel. Thereafter, and on May 25, 1955, defendants again filed a motion to supplement the transcript on appeal by showing that notice of appeal had been filed and served. This motion was served on counsel for plaintiffs. Plaintiffs filed a motion to dismiss the appeal and to amend the minutes of this court to show that the case was actually submitted to the court before the notice of appeal was incorporated in the transcript. The several motions were set for argument at the same time that the case was reset for argument on the merits.
There is no merit in plaintiff’s motions. This court is committed to the policy of hearing and deciding appeals on their merits. Under our rules no appeal will be dismissed for failure to file the record within time unless the motion to dismiss shall have been filed and notice given to appellant prior to the filing of the record. Rule VI, Par. 2. And the rules are liberal in the provisions available for the correction of errors in the record. Rule VI, Par. 6.
The motion of defendants to supplement the transcript is granted and plaintiffs’ motions to dismiss the appeal and to amend the minutes of the court are denied.
As before noted, the court found that the personal property here involved belonged to the defendant George Woodard. Plaintiffs by their .cross-appeal question the propriety of this finding. There is ample proof in the record to sustain the finding of the court in this respect. No useful purpose would be subserved in alluding to the evidence bearing upon the point. We do not find the court erred in finding that the personal property belonged to George Woodard.
Likewise we find that the court’s finding with respect to lack of clear, satisfactory and convincing evidence regarding the title to the real estate must be sustained. At the time of the hearing’ for the appointment of administrator defendant Woodard gave this testimony which was introduced in evidence here:
“Q. (By the Court) By what means do you claim to be the owner of this land, or do you claim to be the owner? A. Well, I have money in it; when it was bought I had money-in the place.
“The Court: And your father owned it too, owned an interest in it? A. I was under age and he had the business and I left him this money of mine to buy in on this place.
“The Court: You loaned him the money? A. Yes, sir.
“The Court: That is, but he owned the land? A. It was in his name, yes.
“The Court: If you loaned the money to buy it, it was in his name? A. Yes.
“The Court: And he owned it? A. Yes.
“The Court: How do you claim it? A. From this money I loaned him to buy it and it never been paid back.
“The Court: Well, that of course might be a foundation for a claim, but would it be foundation for ownership? That’s your idea that you own it? A. I should have my money back some way.
“The Court: That’s another question from the ownership of the land. I think you are getting confused as to the legal consequences of this matter. In other words, if you loan me money to buy land and I buy it, it is true you have a claim to get the money back, but I own the land. A. Yes.
‘ ‘ The Court: Is that what you had in mind when you thought you had a claim to the land? A. It seems like I should have, yes, should have some.”
We find, however, that it was error for the court to require the defendant George Woodard to account to the estate of Argo Woodard for the reasonable value of the use of the lands and real estate owned by Argo Woodard from July 9,1939, to April 26, 1948.
It is shown by the evidence that the ranch was operated as a family undertaking, the decedents contributing their land and labor, and the defendants contributing livestock, labor and tools as alleged in the affirmative defenses. This arrangement commenced in about the year 1912 or 1913. The record shows that after the death of Argo, the defendant George Woodard contributed labor, livestock and tools for the welfare of himself and his mother, and that this was done pursuant to the arrangement entered into many years before with his father and mother for the maintenance of the home for the benefit of the family. True, defendant George Woodard gave some testimony that he expected to receive the real property in consideration for his services in providing a home for his parents who desired to live on the ranch, but as before stated and found by the Court, the evidence is not convincing that such was the contract. This evidence is, however, sufficient to negative the notion that defendant was obligated to pay any rental for the use of the property. There is nothing in the record to indicate that defendant George Woodard was obligated to pay rental to any one for the use of the real estate, or to make any division of possible profits over and above the cost of supporting the parents. The sum and substance of the evidence supports the conclusion that he was to have the use of the real estate in consideration for his services in providing a home for his parents and for improving the property.
There is nothing in the record to indicate that the account between defendant Woodard and his father was not squared at the time of the latter’s death. The same holds true as to the account between defendant Woodard and his mother at the time of her death. The arrangement for the support of the parents was carried out after the death of Argo without any apparent objection on the part of plaintiffs or either of them, and was continued until the death of Emma Woodard with her consent.
Upon the death of Argo, his property, being valued at less than $1,500, should have passed directly to his widow under RC.M. 1947, section 91-2406. “That which ought to have been done is to be regarded as done, in favor of him to whom, and against him from whom, performance is due.” R C.M. 1947, section 49-121. This is another way of saying that equity regards that as done which ought to have been done. Likewise under RC.M. 1947, section 91-2401, the widow was entitled to the possession of her husband’s homestead and to a reasonable sum for her support. Hence under the statute the possession by defendant George Woodard of Argo’s land after his death and until the death of his widow was in legal effect possession by the widow.
Under these circumstances there was no obligation upon the part of George Woodard to pay any rental for the use of Argo’s property. After the death of Emma Woodard of course there was an obligation upon the part of the administrator to conserve all the property for the use of all the heirs. He should be required to account in the probate proceedings as the administrator for any use of the property or any rental obtained from the property of both estates by him from and after the death of Emma Woodard until the property was sold in the probate proceedings.
The court properly concluded that all the real estate was owned as follows: An undivided one-third interest by George Woodard, an undivided one-third interest by Mable Woodard Eyman, and an undivided one-sixth interest each by plaintiffs James E. Shook and Ella Novak. The money now in the administrator’s hands should be distributed accordingly after the payment of the expenses of administration and allowed claims.
The judgment should be modified in accordance with the views herein stated and as thus modified the same will stand affirmed with the costs of the trial and of the appeal allowed to defendants.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES DAVIS, BOTTOMRY and ANDERSON, concur.
|
[
60,
32,
15,
29,
44,
-21,
0,
61,
47,
-58,
-9,
-50,
-4,
55,
36,
23,
-19,
8,
-26,
-47,
-24,
-46,
-34,
-20,
-1,
-1,
-12,
-9,
0,
-59,
-11,
1,
-39,
-2,
64,
66,
29,
-22,
-97,
13,
-4,
-4,
20,
58,
24,
82,
-32,
-21,
-45,
9,
-33,
-29,
5,
20,
-30,
-30,
0,
18,
5,
-14,
60,
-65,
58,
-32,
-8,
73,
10,
9,
-9,
-21,
101,
-26,
45,
18,
-21,
-57,
44,
-52,
63,
-10,
-18,
-4,
1,
47,
-23,
-46,
-6,
-19,
-21,
-28,
-51,
82,
25,
22,
-26,
9,
26,
43,
2,
93,
-4,
-16,
-84,
-10,
21,
-14,
-30,
-8,
6,
21,
-36,
22,
20,
10,
18,
17,
-23,
-6,
-51,
-53,
-69,
-34,
-8,
-36,
-4,
26,
-49,
33,
50,
46,
8,
38,
0,
12,
44,
8,
-24,
6,
-20,
-71,
19,
-19,
40,
-56,
-1,
15,
21,
-24,
-43,
27,
11,
9,
-47,
7,
55,
-2,
60,
41,
-16,
1,
17,
-62,
21,
-24,
-19,
-12,
24,
-27,
0,
-33,
1,
23,
-23,
-54,
0,
-20,
1,
-39,
-28,
39,
34,
43,
-64,
-2,
-4,
-41,
28,
-6,
-17,
50,
20,
-47,
29,
38,
-4,
12,
18,
-36,
-12,
-2,
-5,
32,
-1,
4,
97,
36,
-18,
-36,
-14,
8,
63,
-2,
10,
-29,
-52,
-8,
-25,
0,
-26,
18,
31,
12,
-5,
61,
38,
-11,
29,
-1,
3,
15,
26,
-14,
42,
4,
-36,
-51,
-57,
-30,
-65,
13,
27,
-43,
55,
-92,
36,
-18,
-15,
23,
-35,
72,
-51,
2,
-50,
27,
9,
-19,
-8,
-9,
1,
-14,
-11,
-18,
-32,
32,
37,
0,
-21,
3,
-25,
28,
-8,
-90,
-11,
19,
-6,
-30,
-13,
38,
-23,
-40,
25,
-9,
2,
-29,
-16,
-17,
19,
0,
-6,
-33,
2,
20,
-19,
-24,
2,
4,
-7,
17,
56,
19,
-11,
85,
11,
4,
17,
25,
23,
-56,
-18,
-25,
45,
27,
47,
9,
-46,
33,
1,
-45,
-4,
-19,
19,
-7,
8,
41,
58,
-6,
30,
-19,
-28,
111,
-10,
28,
-41,
-14,
-2,
-59,
21,
-15,
75,
28,
18,
-27,
67,
33,
-28,
-24,
1,
-4,
-16,
55,
-45,
5,
-44,
-50,
-11,
-15,
26,
-9,
10,
33,
0,
-13,
12,
14,
-26,
-1,
-33,
2,
6,
5,
49,
13,
12,
-21,
9,
62,
-91,
17,
44,
-5,
-41,
-10,
-3,
65,
9,
59,
24,
-27,
36,
49,
-5,
27,
45,
36,
-8,
24,
-22,
8,
-55,
-18,
-33,
29,
-13,
-22,
-48,
-16,
-45,
47,
-25,
-17,
33,
-68,
44,
21,
15,
78,
-55,
15,
0,
53,
79,
-21,
4,
61,
-9,
-10,
-23,
-39,
-31,
37,
-18,
17,
-46,
18,
103,
-6,
8,
43,
11,
82,
73,
-1,
27,
20,
-26,
12,
17,
35,
71,
-26,
18,
12,
-60,
46,
-66,
-16,
47,
22,
8,
-9,
9,
-7,
68,
11,
39,
5,
-46,
59,
-48,
31,
16,
18,
-18,
-31,
-45,
5,
0,
6,
-19,
-26,
-28,
-21,
41,
46,
9,
-7,
-36,
-20,
41,
-29,
24,
-26,
-17,
40,
5,
-42,
-34,
-2,
80,
-60,
-6,
0,
30,
18,
21,
-12,
-57,
-68,
-29,
37,
8,
-38,
-5,
21,
41,
3,
72,
-32,
7,
-14,
67,
-37,
-1,
28,
10,
-22,
48,
42,
17,
-54,
-17,
-57,
-30,
5,
-59,
-12,
0,
78,
19,
-52,
20,
47,
57,
42,
-54,
2,
36,
-89,
13,
-29,
51,
-48,
-15,
29,
-1,
18,
-28,
-48,
-60,
1,
63,
-27,
-25,
-58,
30,
8,
-40,
-51,
20,
43,
-4,
-28,
-8,
-72,
14,
-35,
-33,
-20,
0,
22,
-38,
-26,
6,
20,
-46,
18,
23,
56,
-73,
7,
7,
16,
8,
-14,
47,
-23,
-29,
-60,
-17,
35,
31,
22,
19,
40,
30,
-5,
46,
-28,
-15,
53,
35,
67,
2,
-13,
1,
33,
31,
-37,
-36,
26,
28,
3,
-37,
-35,
29,
34,
6,
-3,
48,
16,
66,
-51,
-2,
73,
7,
-17,
-18,
24,
-11,
-93,
17,
-16,
-26,
-48,
-36,
11,
-44,
-128,
15,
-26,
-65,
47,
-25,
27,
-19,
16,
-2,
-41,
-66,
9,
46,
-46,
-32,
28,
18,
-16,
-14,
24,
-32,
27,
0,
-42,
-22,
-21,
4,
56,
-24,
11,
26,
-8,
4,
26,
68,
-12,
55,
39,
-2,
17,
-17,
0,
-37,
-69,
31,
48,
-33,
38,
-22,
10,
52,
9,
19,
3,
-11,
71,
-18,
13,
-25,
-49,
-42,
-49,
0,
-29,
23,
-35,
-17,
0,
34,
-38,
-27,
0,
-18,
12,
-43,
-58,
-23,
-3,
42,
2,
23,
-67,
37,
19,
-37,
14,
-45,
1,
0,
-37,
-97,
-26,
-28,
-3,
31,
24,
1,
-35,
4,
0,
38,
-9,
51,
21,
-25,
21,
0,
-47,
-22,
44,
29,
-69,
8,
-14,
-10,
6,
-50,
77,
-44,
-11,
14,
27,
10,
-22,
-48,
9,
34,
18,
80,
4,
16,
22,
24,
-6,
-2,
25,
4,
48,
-10,
-41,
-15,
36,
-26,
-33,
-42,
2,
-56,
-1,
-21,
-7,
-82,
-87,
18,
-5,
5,
31,
76,
-32,
38,
9,
5,
-5,
-56,
-10,
83,
-53,
-39,
-83,
-15,
48,
-3,
-7,
7,
-39,
49,
43,
-8,
30,
1,
-13,
14,
16,
16,
-67,
-44,
8,
-3,
8,
-27,
69,
-9,
16,
25,
47,
-11,
7,
3,
-14,
-26,
28,
-43,
-30,
24,
-49,
-30,
9,
-62,
-82,
20,
-12,
-2,
-47,
18,
7,
-9,
-6,
-63,
-34,
25,
3,
-12,
-13,
-7,
2,
2,
10,
47,
-26,
41,
-16,
-7,
50,
-47,
74,
-91,
51,
-38,
62,
-34,
-4,
-20,
-21,
22,
-20,
-28,
18,
-26,
33,
37,
-20,
52,
13,
14,
28,
15,
-82,
-36,
-40,
28,
-56,
20,
5,
86,
-3,
-32,
-45,
-51,
-6,
1,
29,
-57,
-8,
25,
-57,
-68,
47,
-13,
-12,
47,
25,
-18,
31,
-17,
-1,
-19,
0,
-39,
60,
28,
37,
25,
-9,
50,
-5,
-2,
-1,
37,
1,
23,
-36,
-63,
18,
-1,
-7,
51,
52,
-11,
-13,
-12,
-26,
37,
-13,
0,
-9,
-7,
54,
45,
-50,
61,
60,
-30,
-24,
1,
-44,
-11,
21,
42,
-12,
0,
21,
32,
9,
-26,
60,
-65,
8,
45,
-9,
-50,
-40,
-37,
66,
-10,
48,
-43,
31,
30,
25,
17,
23,
-47,
-49,
-21,
-15,
3,
8,
0,
-13,
3,
12,
15,
-60,
-103,
-34,
17,
-20,
-45,
4,
66,
3,
-37,
16,
-89,
-1,
19,
10
] |
PER CURIAM.
This is an original proceeding here commenced by Mack Kitchens, a layman, acting for himself and without counsel, which on return of the writ of habeas corpus allowed by this court was heard on the same date as was Kitchens’ appeal No. 9539, State v. Kitchens, 129 Mont. 331, 286 Pac. (2d) 1079.
By information filed August 6, 1954, in the District Court of Yellowstone County, Montana, the petitioner Mack Kitchens, charged by the information to be sometimes known as Herbert Abbot, was accused of the crime of forging the name of C. J. Hanson to a $20 Bank of America traveller’s cheque.
By a jury’s verdict Kitchens was found guilty of the offense and by judgment rendered and entered December 3, 1954, he was sentenced and that day committed to and received at the Montana state prison to serve a term of five years at hard labor.
In January 1955 and while an inmate of the state prison, Kitchens, without the aid or benefit of any attorney or counselor at law, with pen and ink printed and caused to be filed in the office of the clerk of this court his application for a writ of habeas corpus.
Thereafter Kitchens, again without the assistance of any counsel, with pen and ink printed and caused to be filed in the office of the clerk of this court his memorandum of authorities in support of his aforesaid petition.
At his trial in the District Court of Yellowstone County Kitchens was represented by a court-appointed attorney who on March 18, 1955, caused to be filed in this court a transcript on appeal from the judgment of conviction so entered against Kitchens, being appeal No. 9589.
The return on the writ of habeas corpus allowed in this orig inal proceeding No. 9520 and the arguments of the attorney general and of Kitchens’ court-appointed counsel handling petitioner’s appeal No. 9539, were heard on one and the same day.
On August 5, 1955, the majority opinion of this court determining the appeal No. 9539 ordered the judgment of conviction reversed and on August 18, 1955, remittitur duly issued. See State v. Kitchens, 129 Mont. 331, 286 Pac. (2d) 1079.
No action having been taken by the county officials of Yellowstone County following the issuance of the above remittitur and it appearing that Kitchens continued to be held and confined in the state prison under the reversed judgment and the commitment issued thereon, Kitchens petitioned this court for and was allowed another writ' of habeas corpus following which and after hearing had this court ordered that the warden of the state prison promptly deliver Kitchens into the custody of the sheriff of Yellowstone County to be there dealt with as directed in the majority opinion theretofore pronounced on appeal No. 9539. See Application of Kitchens, 129 Mont. 418, 288 Pac. (2d) 1094.
It now appears that the warden of the state prison complied with this court’s order by delivering Mack Kitchens so committed to his keeping under the name of Herbert Abbott, to the sheriff of Yellowstone County, that the petitioner Kitchens is no longer held or restrained in the state prison or by the warden thereof and that Kitchens is now in Yellowstone County, Montana, and there detained by the sheriff of said county awaiting further action in and by the district court of Yellowstone County.
Now therefore and by reason of the foregoing facts, conditions and circumstances, it is hereby ordered that this original proceeding, supreme court No. 9520 be and it is dismissed without prejudice.
|
[
20,
34,
-3,
21,
-66,
-20,
-18,
9,
-43,
33,
-47,
-7,
0,
-64,
-50,
8,
-47,
-30,
-14,
-16,
65,
-52,
-62,
-8,
33,
-8,
46,
23,
-56,
-8,
36,
10,
18,
-18,
21,
-15,
69,
19,
8,
25,
17,
-12,
-46,
47,
7,
31,
4,
8,
71,
14,
27,
-15,
29,
-21,
16,
11,
17,
-32,
-91,
58,
-4,
4,
21,
-8,
41,
-74,
62,
-30,
6,
-36,
15,
-19,
-33,
-6,
33,
-50,
-24,
-19,
3,
14,
-35,
-1,
4,
11,
-7,
-63,
27,
-41,
0,
-6,
-11,
9,
8,
-38,
22,
-29,
-42,
20,
23,
-45,
2,
-70,
-25,
-26,
45,
-15,
-61,
9,
-53,
83,
12,
-16,
49,
-20,
-13,
-31,
-18,
39,
-5,
-33,
-17,
18,
-26,
-11,
-35,
-23,
-62,
20,
61,
-16,
-28,
33,
8,
4,
-72,
51,
-28,
-34,
-33,
-37,
-17,
-10,
4,
7,
12,
2,
-12,
6,
13,
-15,
11,
-15,
41,
22,
-12,
61,
-15,
19,
-43,
45,
-2,
-59,
0,
-54,
74,
57,
-20,
16,
17,
-102,
-67,
-32,
-49,
-11,
68,
40,
-16,
9,
-4,
12,
2,
48,
34,
-57,
-7,
31,
-7,
6,
-27,
-18,
-25,
57,
38,
-66,
28,
-37,
9,
-9,
36,
51,
22,
0,
43,
13,
18,
25,
58,
-9,
60,
-2,
-13,
-82,
26,
34,
-37,
38,
11,
-59,
-5,
50,
-10,
18,
-6,
-6,
69,
-4,
81,
22,
29,
-25,
-45,
-25,
20,
-32,
-22,
-15,
1,
-28,
11,
54,
-44,
-86,
13,
-40,
60,
48,
-38,
-7,
-32,
25,
23,
-17,
-46,
20,
-5,
7,
30,
29,
-22,
-43,
-8,
-66,
48,
-17,
-88,
27,
-28,
-32,
-1,
36,
-33,
-34,
51,
27,
-32,
41,
-29,
29,
-24,
-23,
15,
-10,
34,
-20,
-25,
-71,
-50,
-30,
-50,
-45,
1,
-60,
23,
-35,
44,
13,
-5,
-16,
-16,
-18,
-1,
-11,
-3,
-23,
-8,
-17,
-27,
43,
22,
-37,
27,
-5,
-45,
-40,
22,
-40,
28,
68,
-16,
-26,
-54,
-6,
-4,
-48,
32,
2,
-53,
-2,
-37,
48,
26,
-10,
0,
20,
-7,
-3,
49,
62,
19,
25,
40,
-14,
20,
-16,
-57,
13,
-2,
70,
-23,
4,
26,
-53,
5,
15,
56,
-16,
-17,
18,
-36,
-9,
1,
-81,
-34,
-26,
-54,
-9,
-27,
-36,
44,
-5,
-16,
4,
24,
-31,
-42,
67,
22,
-19,
-45,
22,
-13,
22,
0,
-5,
-36,
-12,
25,
18,
9,
10,
-82,
-8,
10,
-37,
5,
-2,
10,
15,
19,
-28,
-4,
10,
44,
-20,
2,
-55,
-23,
31,
47,
13,
18,
24,
26,
40,
13,
15,
-3,
28,
-19,
19,
6,
8,
25,
-12,
31,
-5,
-13,
28,
-8,
-40,
57,
-50,
-16,
5,
10,
26,
-49,
6,
42,
19,
-9,
-12,
-23,
-9,
39,
-8,
12,
5,
36,
23,
27,
42,
-38,
-6,
-25,
51,
51,
30,
-25,
-84,
-35,
63,
-9,
-10,
36,
28,
-34,
0,
-35,
39,
20,
-14,
6,
19,
-49,
20,
55,
-12,
40,
-57,
-13,
-23,
-45,
57,
17,
-15,
-32,
23,
-58,
14,
13,
8,
-41,
36,
-35,
11,
-22,
28,
33,
14,
-32,
14,
18,
14,
24,
-7,
10,
-23,
5,
24,
-14,
0,
60,
-65,
-12,
22,
40,
-1,
6,
24,
11,
57,
4,
-8,
-70,
8,
1,
12,
-5,
-24,
-4,
-35,
-70,
-4,
-19,
-100,
9,
-10,
-24,
-70,
10,
-35,
62,
12,
-6,
30,
-71,
-12,
-13,
-4,
23,
-6,
21,
-36,
-39,
-20,
8,
13,
6,
53,
57,
-32,
-10,
1,
-16,
41,
-57,
22,
1,
18,
16,
51,
-9,
12,
17,
39,
-47,
-35,
17,
45,
46,
48,
23,
-63,
-53,
-20,
32,
62,
15,
-22,
-70,
-49,
1,
-79,
18,
46,
-49,
7,
23,
9,
27,
15,
-31,
30,
58,
-35,
5,
3,
-8,
-8,
27,
35,
20,
53,
1,
21,
-5,
-79,
-36,
18,
1,
-43,
7,
0,
8,
-16,
-60,
-30,
29,
-51,
39,
14,
29,
-24,
0,
-24,
5,
27,
2,
3,
-7,
58,
-38,
-37,
-51,
13,
76,
-3,
2,
-14,
24,
-7,
-39,
22,
16,
-29,
45,
-3,
19,
-31,
-8,
14,
4,
25,
11,
-16,
-9,
-18,
38,
25,
39,
-31,
-12,
34,
24,
33,
-17,
1,
57,
-74,
-30,
8,
7,
-25,
35,
-52,
69,
6,
-47,
30,
-14,
40,
-13,
3,
77,
2,
9,
15,
-63,
13,
-16,
-40,
-17,
79,
34,
3,
-39,
-63,
-21,
-47,
-29,
-17,
-4,
-3,
-28,
3,
-28,
29,
-12,
-13,
-32,
-60,
-38,
10,
34,
-52,
-39,
15,
-25,
27,
14,
-15,
37,
73,
-10,
8,
-18,
-32,
23,
35,
-3,
-27,
-40,
-11,
-8,
-33,
-22,
4,
59,
46,
50,
54,
-34,
25,
-44,
-12,
48,
-24,
-44,
10,
47,
43,
-40,
17,
-62,
32,
27,
3,
23,
6,
-11,
-21,
-15,
5,
-48,
35,
-10,
68,
104,
-9,
4,
2,
-68,
11,
0,
17,
-5,
26,
-6,
23,
-66,
-30,
48,
-4,
-36,
-11,
10,
-43,
-41,
12,
0,
-38,
47,
19,
-12,
-75,
40,
1,
-48,
13,
-40,
22,
5,
0,
-7,
-5,
24,
-35,
-4,
-15,
64,
-15,
-27,
-9,
23,
-42,
-16,
-3,
-25,
4,
-36,
21,
25,
33,
26,
1,
-2,
0,
-48,
33,
6,
32,
64,
-30,
-26,
38,
25,
33,
69,
3,
33,
33,
-23,
-8,
-13,
3,
34,
-8,
45,
8,
-14,
-4,
-3,
-19,
-32,
12,
33,
-52,
6,
18,
-24,
8,
68,
36,
-11,
45,
58,
-6,
31,
7,
-25,
2,
13,
21,
35,
0,
-57,
-7,
-25,
-41,
-27,
-5,
-40,
-2,
26,
19,
-2,
-1,
-15,
0,
16,
16,
-10,
-38,
37,
10,
44,
59,
22,
45,
50,
33,
-42,
33,
20,
5,
-23,
89,
17,
-9,
-1,
35,
4,
75,
40,
-31,
-20,
-41,
-21,
61,
3,
32,
-3,
-37,
-16,
13,
38,
-13,
33,
-2,
-18,
-8,
20,
9,
-3,
56,
0,
-23,
-16,
-29,
-31,
63,
3,
3,
-21,
32,
13,
17,
12,
-25,
-51,
-10,
-3,
18,
-5,
4,
3,
-19,
-39,
14,
-40,
-5,
-31,
-10,
59,
37,
-16,
36,
33,
-1,
14,
-5,
-18,
11,
-22,
10,
-9,
-66,
-11,
-7,
107,
49,
26,
16,
56,
-6,
28,
-90,
-21,
-2,
-22,
6,
-6,
-8,
-11,
14,
6,
2,
-14,
0,
0,
-48,
21,
-42,
-71,
5,
-50,
47,
3,
29,
-73,
-26,
22,
31
] |
Per Curiam.
On application of the appellants and the respondent, and stipulation filed;
It is hereby ordered that the appeal herein from the order denying a motion for change of venue in the above entitled cause be and it is dismissed.
MR. CHIEF JUSTICE ADAIR and MR. JUSTICES ANDERSON, ANGSTMAN, DAVIS, and BOTTOMLY concur.
|
[
-51,
-39,
25,
29,
32,
-22,
14,
5,
-14,
-34,
-8,
4,
-75,
-52,
-58,
1,
-37,
-11,
7,
-16,
-33,
10,
17,
41,
16,
22,
2,
54,
31,
0,
12,
-44,
-26,
47,
7,
-4,
28,
7,
-16,
-25,
-10,
-13,
-6,
25,
-31,
14,
7,
37,
-8,
38,
15,
28,
-75,
16,
-70,
14,
-58,
-12,
68,
0,
-39,
35,
-14,
8,
18,
-52,
58,
-70,
23,
35,
-20,
-13,
71,
-18,
44,
3,
-52,
-33,
-71,
18,
7,
64,
39,
21,
-17,
24,
34,
59,
27,
7,
-26,
-8,
11,
-58,
-64,
58,
57,
-48,
23,
-1,
-20,
-25,
30,
-8,
-8,
-42,
-19,
35,
3,
-26,
15,
2,
15,
0,
6,
59,
8,
21,
65,
18,
0,
3,
7,
30,
-22,
37,
7,
54,
19,
2,
-11,
-3,
-8,
-6,
47,
26,
43,
29,
-3,
-21,
26,
0,
33,
27,
6,
-12,
13,
49,
-59,
-20,
56,
37,
-23,
58,
28,
58,
-28,
-1,
32,
98,
10,
-12,
-21,
0,
10,
18,
-59,
-28,
-18,
52,
41,
2,
46,
22,
-39,
9,
-46,
37,
-23,
-7,
13,
40,
47,
-37,
-22,
3,
-45,
36,
-9,
-30,
-60,
-38,
8,
-10,
21,
-18,
18,
0,
-22,
7,
-51,
3,
-19,
-67,
2,
-52,
-30,
-36,
1,
23,
-28,
-19,
-49,
-15,
76,
50,
36,
31,
6,
57,
15,
-13,
24,
-7,
23,
13,
-6,
35,
-5,
40,
-13,
-28,
-43,
18,
42,
-18,
35,
41,
-28,
-31,
-9,
-5,
60,
-17,
-65,
5,
72,
84,
52,
-20,
47,
11,
47,
0,
11,
-15,
-29,
54,
-73,
-40,
29,
7,
-43,
-6,
-21,
99,
12,
-7,
33,
-12,
-20,
45,
8,
17,
30,
-2,
-22,
-18,
26,
68,
-14,
45,
34,
-34,
-32,
0,
14,
-21,
35,
12,
-44,
35,
-6,
40,
22,
-2,
-31,
33,
-66,
-52,
-27,
13,
0,
11,
24,
10,
-34,
-28,
36,
-31,
-36,
59,
52,
-41,
-54,
70,
-44,
1,
-11,
-16,
-30,
-28,
-50,
4,
-3,
2,
32,
-23,
23,
-7,
5,
1,
42,
-13,
-49,
51,
15,
64,
33,
63,
-22,
-23,
-46,
-42,
29,
-19,
0,
-8,
9,
-7,
-51,
12,
-15,
-44,
17,
-72,
2,
-59,
-20,
-16,
-7,
0,
41,
-10,
54,
23,
1,
45,
-20,
-44,
-20,
-30,
-13,
-39,
1,
21,
37,
6,
14,
6,
-7,
-27,
41,
10,
25,
24,
6,
41,
0,
-18,
1,
-67,
-12,
-32,
-14,
84,
25,
14,
41,
-21,
65,
-16,
-31,
6,
-6,
2,
34,
-15,
-6,
41,
-14,
25,
-12,
10,
73,
61,
-74,
31,
34,
11,
53,
-5,
-8,
30,
-59,
32,
-2,
-59,
27,
14,
-18,
-27,
32,
24,
-43,
76,
12,
2,
-8,
82,
5,
-9,
-51,
-40,
-99,
35,
-38,
16,
-53,
-4,
-9,
-12,
29,
-50,
13,
-18,
-4,
58,
-40,
0,
40,
-12,
-75,
-60,
-41,
17,
-12,
28,
14,
-37,
-62,
2,
-14,
-4,
-33,
-27,
-19,
-1,
-63,
-11,
69,
16,
-11,
-7,
-35,
-14,
11,
58,
51,
-24,
-19,
-36,
6,
-20,
-41,
-40,
-38,
-3,
-86,
-11,
18,
-39,
-43,
5,
50,
-36,
-20,
-47,
27,
-56,
39,
-57,
28,
51,
58,
-12,
0,
0,
5,
-4,
-17,
-31,
-49,
-41,
60,
30,
-32,
30,
25,
15,
0,
-10,
-24,
-19,
17,
-7,
-30,
-13,
35,
3,
-18,
29,
4,
43,
45,
41,
20,
48,
36,
5,
33,
30,
-49,
-19,
-21,
-39,
-79,
-41,
26,
-57,
-10,
-7,
-25,
21,
21,
63,
0,
-35,
17,
51,
10,
-16,
20,
-35,
-13,
-46,
33,
-25,
-60,
-18,
-22,
6,
-41,
-18,
4,
16,
-36,
-24,
28,
7,
-92,
6,
71,
-9,
10,
0,
-7,
7,
1,
53,
-42,
-24,
25,
34,
-11,
-35,
-1,
13,
42,
-60,
-9,
9,
-73,
27,
-42,
-27,
-51,
55,
6,
18,
-39,
76,
-15,
72,
57,
2,
-37,
-11,
-29,
50,
55,
54,
8,
-66,
-37,
39,
-8,
21,
-11,
-45,
-73,
21,
-3,
-42,
48,
8,
37,
-53,
55,
43,
69,
66,
-31,
-24,
26,
-21,
-34,
-48,
34,
-10,
-68,
-48,
-3,
-34,
9,
32,
-27,
41,
6,
-66,
16,
66,
-5,
15,
31,
47,
17,
59,
-56,
-28,
28,
11,
-43,
13,
11,
-35,
8,
-24,
-50,
60,
-13,
-7,
-12,
-45,
40,
-53,
-8,
32,
5,
-1,
29,
-19,
60,
17,
-36,
-21,
-20,
3,
-14,
-3,
-89,
25,
-28,
-1,
13,
-6,
1,
-25,
25,
-27,
15,
53,
5,
-19,
8,
-9,
6,
-6,
64,
-32,
-17,
-35,
27,
17,
-26,
-58,
-51,
-37,
0,
-1,
-28,
-39,
31,
29,
-5,
11,
-42,
36,
-46,
27,
53,
-62,
-20,
50,
-21,
-48,
29,
15,
56,
42,
46,
-53,
-18,
59,
-2,
7,
28,
-6,
-38,
57,
21,
-17,
50,
-22,
-67,
-27,
-16,
0,
32,
30,
-21,
-47,
-3,
-4,
39,
48,
-32,
-27,
-46,
-27,
34,
8,
-27,
7,
-13,
-33,
-67,
-62,
33,
66,
-24,
47,
33,
18,
7,
53,
-60,
35,
-17,
-50,
5,
-11,
-54,
0,
-8,
43,
28,
-17,
-36,
-35,
39,
28,
18,
57,
54,
-41,
55,
-9,
-23,
32,
78,
-49,
5,
37,
-5,
9,
35,
24,
-13,
-11,
-48,
33,
-33,
40,
0,
34,
-63,
61,
-37,
-15,
-32,
36,
0,
28,
-12,
-19,
-9,
-65,
2,
-20,
24,
11,
22,
-21,
-57,
5,
-16,
-17,
12,
46,
-3,
-24,
30,
19,
6,
-25,
3,
22,
4,
3,
-7,
1,
-42,
7,
18,
-43,
-32,
19,
-60,
-9,
40,
2,
-2,
75,
37,
46,
-42,
-57,
-3,
31,
-70,
43,
70,
9,
18,
29,
-76,
43,
24,
-37,
-41,
55,
-25,
18,
58,
1,
-21,
-41,
19,
-31,
41,
80,
-38,
-7,
-28,
-2,
28,
-37,
0,
-2,
-4,
10,
-21,
-39,
-15,
-42,
4,
-14,
-29,
56,
-55,
-27,
29,
8,
-23,
-25,
-14,
-40,
-11,
-15,
12,
-31,
-39,
-13,
-33,
1,
15,
17,
32,
-12,
-11,
5,
5,
7,
-21,
-31,
-53,
-3,
16,
68,
-38,
27,
79,
46,
-13,
-58,
-21,
8,
15,
68,
-24,
-31,
63,
-44,
-66,
29,
-25,
-2,
16,
-42,
32,
-15,
-21,
-73,
-10,
13,
-20,
0,
14,
18,
-27,
36,
15,
-68,
-28,
44,
23,
-9,
-12,
-4,
37,
9,
41,
9,
21,
-45,
15,
24,
16,
-9,
12,
-60,
-28,
-46
] |
MR. JUSTICE DAYIS:
Appeal from an order by the district court for Cascade County in a suit for divorce which awarded the wife temporary alimony, attorneys’ fees, and the custody pendente lite of the minor daughter of the parties.
On April 29, 1953, Clifford I. Walker, the husband and plaintiff below, sued Mary P. Walker, the defendant wife, for a divorce absolute on the grounds of desertion and extreme cruelty.
Upon the wife’s motion and after a hearing had at which the parties offered testimony the court ordered (1) that the husband pay the wife temporary alimony of $85 per month, (2) that the husband pay the wife upon a specified contingency the sum of $60 for the rent of her apartment, and (3) that the husband pay the wife $125 as attorneys’ fees to enable her to defend the suit. By this same order the court gave the wife the temporary care, custody and control of the daughter, then of the age of two years and three months, “during the pendency of the action and until further order of the court.”
The husband has appealed to this court specifying errors in this award of the custody of his daughter, and in the allow anee of temporary alimony and attorneys’ fees, in the latter specifically because of the provision therein that he pay for two months the rent of his wife’s apartment, if as the order is phrased she were “required to pay the sum of Thirty Dollars ($30.00) per month during the months of August and September 1953, for the use of the apartment which she was occupying at the time”.
It is doubtful that an appeal lies from that part of this order which gives the wife the temporary custody of the daughter. R. C. M. 1947, section 93-8003, subds. 1 and 2; 27 C. J. S., Divorce, section 324(b), pages 1254, 1255; Brunn v. Brunn, 166 Minn. 283, 207 N. W. 616; Green v. Green, St. Louis Mo. App., 240 S. W. (2d) 741, not to be officially reported.
Counsel for the wife have not, however, raised the question. Accordingly without more we pass to the errors specified.
The record submitted contains none of the evidence or proeeedings had at the hearing upon which the order reviewed was made; that is, in addition to this order this court has before it only the moving papers including the wife’s affidavit by which initially she supported her motion. We indulge the presumption therefore that competent, credible and sufficient evidence was before the lower court to sustain the order in all particulars as entered. Consistent with that presumption we must affirm, unless on the face of the order itself there is disclosed some fatal defect. Tiffany v. Uhde, 123 Mont. 507, 513, 216 Pac. (2d) 375; Haley v. McDermott, 45 Mont. 217, 218, 121 Pac. 1060; Kellogg v. Kellogg, 170 Cal. 84, 148 Pac. 518.
Further in this same connection we must presume, if the order reviewed does not find support in the motion originally presented as the record shows, that that motion was amended by the evidence taken at the hearing to conform to the proof received and to the order entered thereon. McBride v. School District, 88 Mont. 110, 113, 290 Pac. 252; Skillin v. Harris, 90 Mont. 389, 392-393, 3 Pac. (2d) 1054. For, any pertinent matter actually litigated by the parties at the hearing below upon which the order here reviewed was entered was properly heard and ruled by the court even though beyond the issues actually tendered by the wife’s motion as first made. Curtis v. Zurich General A. & L. Ins. Co., Ltd., 108 Mont. 275, and authorities cited at page 282, 89 Pac. (2d) 1038, at page 1011.
Measured by these controlling decisions the husband’s specifications of error in the award of the temporary custody of the daughter to the wife are without merit. In substance these specifications are that the order giving the mother this custody is erroneous, because the motion heard by the court did not request that custody.
On this record, however, and within the rule of the citations noted, we must presume here that the issue of the temporary custody of the child was actually litigated at the hearing, that competent and credible evidence sufficient to sustain the court’s order was received and considered by the court, and that the motion heard and determined was thereby amended to conform to the proof thus submitted. Otherwise on the face of the order itself there is apparent no infirmity. Indeed, it would require a strong showing to warrant the court in taking the custody of a two year old girl from her mother. No such showing is here suggested or made.
The other branch of this appeal brings before us the award of temporary alimony and attorneys’ fees to the wife, which is a final judgment within the meaning of section 93-8003, subd. 1. See State ex rel. McGrath v. District Court, 82 Mont. 463, 465, 267 Pac. 803; Stoner v. Superior Court, 67 Cal. App. (2d) 760, 761, 155 Pac. (2d) 697; St. Laurent v. St. Laurent, 35 Cal. App. (2d) 315, 316, 95 Pac. (2d) 475; 27 C. J. S., Divorce, section 284, pages 1100, 1101; 19 C. J., Divorce, section 757, page 326, note 20; 16 Cal. Jur. (2d), Divorce & Separation, section 155, pages 417-119, sections 273, 274, pages 565, 567; 1 Cal. Jur., Alimony & Separate Maintenance, .section 20, page 966.
Again in the absence of the evidence before the trial court we may review only errors apparent on the face of the order itself. But such an error is there to be found, the husband argues consistent with his specification, because he is ordered to pay two months’ rent for the wife’s apartment, if she finds herself personally indebted for that rent. Because of the condition here, he says, the whole order for temporary alimony and attorneys’ fees becomes so uncertain and indefinite that it is unenforceable and therefore void.
We do not agree. The language of the paragraph for the payment of rent is informal. But we think it nevertheless intelligible. As we understand that paragraph it requires the husband to pay rent for two months at the rate of $30 a month for the apartment where the wife was living at the time of the hearing, but only if it develops later that the wife is in the first instance herself beholden for that rent. What the facts behind the record may be we do not know. Nor are we called upon to inquire beyond the text of the paragraph construed.
But certainly no shadow of ambiguity is cast upon the requirement that the husband pay temporary alimony of $85 a month, because elsewhere he is directed to pay rent in the contingency stated. Nor is there any question suggested on the face of the order that the award of attorneys ’ fees amounting to $125 is because of this provision either uncertain or unenforceable.
On the other hand it should not be difficult to apply this paragraph itself to the facts as they arise, and thereupon to determine first whether the wife is liable herself to pay the rent of her apartment for the months specified. If so, it is clearly then the obligation of the husband to meet this rent as would be the case were he ordered to pay her grocery bill for these same months, or her accounts for clothing purchased or for any similar necessity of life. The problem involved in the one ease is no different than in the other, and in neither is there to be found any uncertainty so great that we must hold this order in any part unenforceable.
Error is not shown. The order reviewed is in all things accordingly affirmed. The respondent shall har^e her costs of appeal.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES ANGSTMAN, ANDERSON and BOTTOMLY, concur.
|
[
5,
17,
-44,
3,
0,
-48,
-54,
10,
13,
-20,
-32,
-19,
-7,
-41,
-13,
-20,
-4,
6,
48,
-15,
-21,
9,
7,
20,
69,
84,
-33,
-45,
-19,
1,
32,
32,
-22,
33,
-24,
12,
53,
-24,
-8,
40,
9,
-84,
-4,
55,
0,
6,
45,
39,
-12,
-46,
-30,
-26,
4,
6,
53,
24,
-1,
2,
44,
-15,
-7,
-5,
-28,
13,
18,
-32,
49,
42,
9,
-38,
34,
-58,
7,
-21,
-19,
-15,
17,
22,
-37,
22,
-11,
-41,
-46,
-36,
-19,
-18,
-6,
41,
-33,
56,
-10,
78,
36,
6,
-8,
16,
10,
-5,
8,
48,
-2,
-68,
55,
0,
-18,
50,
-11,
-6,
-24,
54,
13,
-2,
85,
75,
-11,
-32,
9,
-68,
32,
-16,
121,
-19,
26,
-35,
34,
-25,
-64,
55,
47,
-3,
-5,
19,
7,
8,
14,
-53,
-37,
-78,
31,
-14,
-7,
-35,
4,
25,
64,
23,
-3,
-14,
-47,
-47,
5,
-46,
25,
34,
99,
-31,
-6,
10,
48,
-14,
55,
-48,
-58,
-22,
-4,
-51,
6,
53,
0,
-56,
41,
-34,
-32,
-6,
17,
54,
5,
-5,
41,
17,
26,
46,
-24,
-62,
37,
22,
-19,
-47,
26,
-65,
-42,
1,
-18,
16,
24,
1,
31,
10,
56,
-24,
-9,
-48,
11,
55,
23,
-31,
28,
34,
21,
25,
38,
0,
-3,
-24,
-39,
-2,
-6,
-23,
-69,
-1,
15,
-30,
14,
-6,
-66,
-31,
0,
-13,
-15,
-3,
-11,
26,
-11,
19,
25,
-20,
-6,
6,
-40,
-18,
20,
-19,
-56,
14,
10,
14,
-53,
25,
-12,
5,
12,
11,
-45,
15,
35,
2,
7,
10,
26,
-36,
-45,
27,
1,
42,
26,
15,
-32,
17,
4,
-13,
42,
2,
41,
-60,
1,
-46,
-25,
34,
-13,
0,
-43,
-44,
-6,
2,
-8,
-23,
24,
14,
13,
-6,
-6,
-58,
0,
-60,
1,
9,
-23,
-2,
-3,
39,
-26,
8,
34,
25,
-51,
-4,
-46,
-17,
-3,
21,
19,
38,
11,
1,
23,
33,
-61,
-28,
9,
20,
34,
1,
-83,
50,
73,
-8,
-26,
-12,
-41,
-2,
-27,
28,
-7,
-24,
27,
-20,
-16,
32,
32,
-26,
11,
18,
0,
-4,
11,
13,
-3,
-12,
13,
-2,
-54,
-21,
-55,
13,
-71,
-49,
20,
-79,
-19,
-42,
-11,
11,
-13,
-37,
3,
84,
23,
0,
17,
-2,
38,
19,
13,
-26,
33,
14,
5,
20,
20,
-18,
-41,
1,
-20,
42,
7,
27,
-28,
-34,
14,
-21,
-17,
16,
54,
-6,
20,
-2,
-7,
-38,
-16,
-26,
-23,
-12,
32,
35,
11,
-70,
-19,
32,
-47,
17,
-5,
-23,
16,
48,
28,
32,
-41,
-13,
-19,
15,
73,
-1,
54,
-9,
50,
5,
10,
-42,
46,
41,
-4,
46,
-49,
-11,
44,
-18,
0,
0,
-60,
-2,
57,
76,
26,
1,
-44,
-7,
-6,
-14,
16,
36,
40,
3,
11,
57,
18,
-55,
10,
20,
-24,
-29,
26,
50,
28,
-1,
-19,
-32,
-31,
28,
-45,
42,
-2,
-13,
30,
-12,
42,
14,
-58,
-7,
15,
30,
-63,
-18,
-33,
56,
-31,
28,
18,
-19,
-15,
7,
59,
-31,
-10,
55,
-11,
-60,
-16,
-13,
0,
-13,
-40,
-1,
35,
0,
17,
-11,
52,
46,
30,
-6,
28,
-33,
29,
13,
12,
21,
52,
-14,
66,
46,
-29,
22,
25,
-37,
26,
14,
52,
-49,
-45,
26,
-24,
30,
-5,
-5,
-17,
4,
8,
12,
2,
-28,
63,
-2,
18,
-7,
-13,
13,
-19,
9,
18,
9,
-5,
-70,
-30,
-30,
32,
13,
-26,
55,
-52,
-41,
3,
18,
-35,
1,
-5,
-33,
-42,
-11,
-43,
-15,
-5,
-26,
-1,
-26,
-29,
-44,
-31,
-58,
-15,
17,
-2,
22,
-66,
18,
-32,
-43,
24,
53,
34,
19,
-37,
-24,
6,
24,
-9,
-26,
-23,
15,
-6,
15,
-14,
4,
-33,
-29,
-6,
-19,
3,
69,
53,
-29,
11,
-45,
-2,
-29,
20,
-26,
-31,
-28,
15,
-6,
-9,
21,
13,
23,
42,
-25,
-22,
-1,
-43,
56,
22,
4,
87,
14,
-3,
37,
92,
9,
-38,
15,
17,
36,
10,
30,
-38,
44,
3,
-12,
42,
-38,
-2,
39,
36,
6,
7,
-47,
-8,
-26,
-26,
33,
-36,
-16,
1,
29,
36,
15,
-25,
11,
-43,
-10,
-27,
15,
37,
12,
-13,
10,
-53,
-19,
65,
4,
32,
-19,
-20,
-40,
-30,
-9,
45,
-19,
-19,
-37,
-5,
-32,
-14,
2,
-18,
39,
50,
15,
8,
31,
-4,
23,
-3,
-12,
-54,
57,
-36,
10,
-41,
-22,
-43,
9,
-44,
-29,
-22,
21,
53,
-18,
-58,
-9,
-44,
39,
-14,
-14,
32,
-3,
5,
-13,
31,
-62,
-10,
34,
-34,
14,
-28,
8,
-51,
-29,
-54,
34,
19,
-2,
4,
1,
-6,
-22,
-6,
-35,
-44,
-2,
44,
-13,
28,
24,
-20,
-9,
-26,
-8,
-23,
4,
3,
18,
-1,
33,
-6,
-3,
-17,
-19,
51,
-51,
-9,
3,
-7,
11,
-31,
-23,
-11,
56,
0,
-31,
47,
8,
-21,
5,
-8,
-22,
83,
-4,
38,
25,
-26,
-60,
25,
-36,
-18,
22,
-33,
-17,
0,
-34,
66,
60,
21,
-31,
35,
52,
-31,
-11,
-19,
-8,
-11,
-26,
16,
29,
-48,
40,
-12,
49,
7,
25,
35,
-15,
-26,
-3,
23,
-38,
-17,
28,
-29,
21,
11,
-49,
34,
-15,
-10,
15,
55,
5,
-2,
25,
39,
-14,
-41,
13,
15,
35,
39,
8,
43,
-25,
21,
-17,
-4,
-11,
11,
-14,
-17,
25,
7,
-2,
-21,
-13,
8,
-1,
3,
-18,
21,
0,
-7,
-42,
37,
-9,
-6,
-2,
10,
-15,
91,
30,
24,
2,
-52,
34,
-23,
-5,
5,
22,
-16,
55,
-60,
12,
0,
56,
26,
-7,
26,
-23,
-25,
-79,
-10,
1,
7,
-7,
16,
-12,
1,
12,
-33,
25,
43,
-12,
1,
-6,
-39,
-15,
33,
14,
-16,
47,
11,
-18,
-24,
-44,
-42,
4,
-24,
30,
-34,
9,
-10,
69,
-8,
-33,
1,
0,
29,
20,
-48,
24,
-29,
-17,
-45,
-26,
17,
-6,
45,
-12,
20,
-55,
-36,
0,
-11,
56,
32,
12,
-2,
30,
-21,
-46,
78,
18,
-75,
12,
22,
-35,
15,
-24,
71,
36,
2,
-53,
-1,
-40,
1,
-21,
-2,
24,
62,
4,
38,
-55,
56,
20,
-14,
-7,
-16,
9,
10,
10,
-38,
0,
-11,
-24,
22,
-3,
26,
-7,
8,
-75,
46,
-12,
-46,
-13,
-3,
1,
-10,
-54,
28,
14,
-65,
34,
-10,
-14,
6,
-19,
-5,
-21,
-20,
-44,
29,
-28,
0,
20,
7,
6
] |
HON. PHILIP C. DUNCAN, District Judge,
sitting in place of Mr. Justice Bottomly who deemed himself disqualified:
Plaintiff brought this action for the purpose of obtaining a declaratory judgment that certain real estate consisting of city lots in Glasgow, Valley County, Montana, be declared forfeited to the State of Montana as of August 1, 1931, under the provisions of the Alien Land Law, R. C. M. 1947, sections 67-1001 to 67-1008, and that Valley' County has no claim for taxes against the property from that date.
The complaint, filed December 31, 1943, in the district court of Valley County alleges that J. T. Kotaki, a resident and national of Japan, died testate in Japan on or about August 1, 1931, leaving the real property involved; that by the terms of his will the decedent devised all of this property to Akiyoshi Kotaki as his adopted son, a person born in Japan and a Japanese national; that defendant county treasurer claims certain delinquent taxes, penalty and interest are owing Valley County on the property; that defendant Friedlund is the administrator with the will annexed of the estate of the decedent; that decedent left surviving three brothers and three sisters, all residing in Japan; that under the Alien Land Law, supra, all of the property has belonged to the State of Montana since the death of decedent on August 1, 1931, and is not taxable by Valley County.
Defendants appeared and in June or July of 1953 the ease was submitted to the court sitting without a jury upon a ‘ ‘ Stipulation of Facts”, without the taking of any actual testimony, under which it was agreed, so far as pertinent here, that J. T. Kotaki, a resident and national of Japan, died testate in Japan on or about August 1, 1931, leaving the real property involved which is being probated in the estate of decedent; that decedent left a will by the terms of which he devised the property to Akiyoshi Kotaki who was his nephew and adopted son and who is now and has been for a great number of years a resident and taxpayer of the State of Montana, although he was born in Japan and is a Japanese national; that defendant Friedlund is the duly qualified and acting administrator with the will annexed of the estate of the decedent; that certain taxes are owing to Valley County; that the State of Montana has commenced this action for a declaratory judgment that the property should es-cheat to the state under the Alien Land Law; that the only question in this ease is whether or not the state can, under that law, compel the property of the late J. T. Kotaki, deceased, to escheat to the state.
Upon this stipulation of facts the district court on July 29, 1953, entered its findings of fact and conclusions of law under which it determined: That decedent was a resident and citizen of Japan at time of death; that at the time of his death he was the legal owner of the property; that he died testate and his will was admitted to probate in said district court and defendant Friedlund is the duly qualified and acting administrator with the will annexed of the estate of decedent; that decedent devised all of the property to his nephew and adopted son, Akiyoshi Kotaki, who is now and has been for many years a resident and taxpayer of the State of Montana, and a citizen of Japan, and since June 27, 1952, eligible for American citizenship; that the Alien Land Law is unconstitutional under both the Constitution of the United States and the State of Montana; that the county treasurer of Valley County is entitled to collect all back taxes on the property, but that defendants are entitled to a decree adjudging- that the property is the property of Akiyoshi Kotaki, subject to probate and the tax lien of Valley County. In conformity with these findings and conclusions and on August 8, 1953, the court entered its judgment determining- that the deceased was at the date of his death the legal owner of the property; that the state has no interest therein; that Akiyoshi Kotaki is now the owner of the proerty subject to probate and the tax lien of Valley County.
Upon appeal the state takes the position that the decedent was not the owner of the property at the time of his death, and that the burden was upon the respondents to prove that decedent was the lawful owner of the property under either (a) the Treaty of Feb. 21, 1911 between the United States and Japan, 37 Stat. 1504, or, (b) that the decedent acquired the property prior to the enactment of the Alien Land Law in 1923, or, (c) that decedent acquired the property under certain special provisions of the Alien Land Law, that is, by inheritance, in good faith under a mortgage, or in the ordinary course of justice in the collection of debts.
However, it is evident from the foregoing statement of the proceedings had in the trial court that no such position was taken by the plaintiff or anyone else, previous to appeal, either in the pleadings or the stipulation of facts placed before the trial court; that there it was alleged and agreed that the decedent owned the property at the time of his death and the real issue was whether or not the State of Montana could, under the provisions of the Alien Land Law compel the property to escheat to the state for the reason the property was devised by the decedent to an alien incapable of holding the title against the state. The complaint alleges in its paragraph "I” that the decedent died testate, "leaving the following described real estate * * *”, in its paragraph "VI” that by the provisions of the Alien Land Law, "all of said real estate does and has since the death of J. T. Kotaki, on August 1, 1931, belonged to the State of Montana * * and in its prayer plaintiff asks that forfeiture be declared as of August 1, 1931. At no place does the complaint so much as hint that the deceased was incapable of acquiring title to the property or was not the lawful owner at the time of his death, as he might well have been under either the Alien Land Law or the Treaty. In fact it is implicit in the allegations of the complaint that the state considered the decedent the lawful owner of the property at the time of his death, and this is bolstered by the stipulation of facts entered into and submitted by all of the parties to the trial court wherein it is agreed that the decedent died, “leaving the following described real property * * and no statement whatsoever from which it could even be implied that one of the questions to be determined was whether or not decedent acquired the property outside the terms of the Treaty or in contravention of the Alien Land Law, with a positive answer in either case resulting in a possible escheat, rather than whether or not escheat should be worked from the devise of decedent to his adopted son. In this connection it may also be pointed out, as it was by counsel for respondents on oral argument, appellant’s brief on the first page states, “In substance, the Complaint alleges that J. T. Kotaki, a resident and national of Japan, died in Japan on or about the 1st day of August 1931, seized and possessed of certain real estate * * *” (the real property here involved).
Such being the situation, it is unnecessary to consider appellant’s contention that decedent was not the lawful owner of the property at the time of death, or that the burden of proof was on respondents to prove decedent had lawfully acquired the property within the terms of the Treaty or not in contravention of the Alien Land Law. “It is well settled that the theory upon which the ease was tried in the court below must be strictly adhered to on appeal or review. Under this rule a party will not be permitted, in the appellate or reviewing court, to assume a position inconsistent with that occupied by him in the trial court with respect to the grounds or theory of recovery or relief or of defense or opposition, the nature or sufficiency of pleadings, the admissibility or sufficiency of evi denee, or the burden of proof.” 3 Am. Jur., Appeal and Error, section 253, pages 35, 36 and 37.
The only remaining question then to be decided is that upon which the action was tried in the lower court and upon which it was decided, that is, the constitutionality of the Alien Land Law itself, and this court now finds the Alien Land Law, comprising sections 67-1001 to 67-1008, inclusive, Revised Codes of 1947, unconstitutional and void as being in contravention of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States for the reasons given, and which we find no necessity to repeat or extend, by the Supreme Courts of the State of California and of the State of Oregon in their very learned and extensive opinions wherein they found their respective Alien Land Laws, similar to those of Montana, invalid as infringements upon the equal protection clause of the Fourteenth Amendment. Sei Fujii v. State, 38 Cal. (2d) 718, 242 Pac. (2d) 617, 645; Kenji Namba v. McCourt, 185 Ore. 579, 204 Pac. (2d) 569. Reference is also had to the reasons given by Mr. Justice Black, with whom Mr. Justice Douglas agrees, and by Mr. Justice Murphy, with whom Mr. Justice Rutledge concurs, in their special concurring opinions in Oyama v. State of California, 332 U. S. 633, 68 S. Ct. 269, 92 L. Ed. 249. See also Haruye Masaoka v. People, 39 Cal. (2d) 883, 245 Pac. (2d) 1062, wherein the Supreme Court of California reaffirmed its decision in the Sei Fujii Case, supra.
The judgment is affirmed.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES ANGSTMAN, FORREST H. ANDERSON and DAVIS, concur.
MR. JUSTICE BOTTOMLY, deemed himself disqualified.
|
[
-7,
36,
5,
-27,
40,
-60,
35,
3,
-9,
38,
-59,
2,
-20,
-41,
-39,
-49,
-10,
-9,
22,
-13,
35,
-33,
-44,
-4,
65,
4,
-22,
26,
-27,
-67,
-12,
2,
-33,
-15,
54,
58,
-29,
-1,
-10,
-19,
22,
-19,
4,
20,
-33,
27,
-56,
-12,
-20,
18,
-24,
-37,
48,
91,
-4,
-15,
-37,
13,
29,
18,
24,
-50,
52,
-3,
29,
-1,
28,
-18,
34,
17,
1,
-49,
5,
-6,
0,
20,
-2,
-27,
-19,
44,
-27,
-17,
21,
-25,
-26,
-72,
-22,
2,
10,
-10,
-37,
-42,
21,
44,
-29,
-33,
-29,
21,
-25,
-7,
-21,
-63,
8,
42,
-39,
-87,
-51,
16,
53,
18,
60,
-32,
49,
58,
54,
23,
-2,
-22,
-33,
-5,
-2,
-95,
25,
19,
12,
5,
11,
51,
26,
47,
55,
-1,
-24,
-34,
-58,
-5,
-47,
-41,
0,
-4,
71,
-25,
2,
11,
-7,
-12,
-5,
-3,
10,
-7,
-67,
4,
27,
60,
40,
-2,
36,
22,
35,
-43,
-19,
-24,
22,
4,
22,
44,
-33,
24,
-48,
-18,
15,
20,
-31,
-13,
26,
36,
13,
-21,
14,
21,
-52,
4,
-19,
-51,
3,
-19,
15,
12,
-6,
77,
21,
-39,
19,
17,
-31,
48,
45,
27,
-37,
-14,
50,
3,
25,
-3,
26,
19,
56,
33,
14,
0,
-37,
-77,
28,
12,
-59,
1,
-4,
-4,
22,
8,
22,
11,
-10,
24,
72,
-22,
33,
-6,
-1,
-11,
-9,
60,
59,
-25,
32,
-73,
-4,
26,
-35,
22,
-11,
-29,
13,
39,
34,
9,
-38,
-21,
-73,
5,
-7,
-36,
-23,
63,
11,
-9,
12,
-27,
-11,
-22,
14,
-46,
5,
-11,
-19,
-44,
-2,
-39,
37,
35,
2,
43,
38,
11,
-38,
-36,
40,
-59,
-18,
-25,
17,
-43,
31,
24,
5,
22,
12,
-18,
-34,
5,
-85,
25,
3,
28,
5,
-10,
32,
-53,
74,
18,
-43,
21,
-6,
5,
-12,
-37,
2,
-27,
11,
45,
42,
-65,
-14,
-4,
38,
31,
-49,
-20,
5,
-30,
-9,
26,
45,
26,
23,
70,
-6,
12,
14,
0,
25,
-34,
-55,
-6,
6,
-63,
24,
-40,
-23,
-31,
21,
-19,
31,
27,
11,
36,
1,
23,
-21,
-33,
3,
16,
21,
28,
-41,
67,
48,
-2,
-39,
17,
2,
30,
-4,
-33,
-27,
-10,
-55,
-18,
36,
15,
19,
4,
35,
25,
31,
16,
-5,
26,
-73,
69,
-31,
38,
-20,
63,
44,
43,
27,
-84,
-22,
-15,
-38,
6,
-12,
27,
63,
15,
-7,
-44,
-27,
-2,
-14,
54,
-11,
18,
-55,
-49,
12,
-45,
-52,
-18,
30,
-44,
-13,
-79,
31,
5,
20,
-20,
-1,
23,
-15,
31,
-22,
-24,
-6,
-19,
-33,
8,
37,
12,
32,
20,
-35,
-5,
36,
4,
-3,
65,
-12,
50,
25,
10,
109,
0,
-1,
-48,
-14,
11,
13,
0,
-42,
41,
-44,
-13,
-1,
5,
20,
-11,
-25,
-18,
-2,
-9,
32,
15,
-18,
-49,
26,
0,
28,
33,
-43,
32,
-14,
-39,
-2,
21,
21,
-44,
10,
-74,
-15,
13,
-20,
-12,
48,
4,
-24,
4,
-13,
18,
-32,
-7,
-18,
14,
-40,
-5,
-43,
0,
77,
6,
-29,
30,
25,
55,
-60,
-45,
19,
1,
-71,
33,
-48,
-66,
0,
30,
6,
28,
50,
-17,
-43,
39,
31,
47,
-49,
-44,
57,
0,
-21,
27,
37,
-10,
-38,
-17,
2,
8,
-45,
-14,
48,
56,
-6,
8,
-3,
3,
0,
20,
-33,
18,
-62,
-4,
0,
9,
67,
-23,
-30,
8,
-17,
5,
7,
-22,
-48,
-37,
1,
38,
-14,
-37,
-11,
1,
-29,
4,
-19,
-28,
-10,
4,
23,
-87,
7,
28,
-39,
-1,
6,
44,
-64,
3,
40,
-4,
-32,
7,
21,
63,
44,
13,
-15,
15,
1,
43,
-63,
-25,
-75,
44,
-55,
-27,
-59,
-69,
26,
-8,
1,
-27,
-12,
-27,
42,
-10,
-27,
60,
-32,
47,
41,
-1,
36,
-76,
47,
-13,
21,
-31,
36,
43,
-22,
-49,
-46,
52,
-17,
5,
-11,
-14,
-20,
26,
27,
2,
0,
3,
-34,
3,
34,
-5,
-10,
46,
-46,
-7,
15,
-58,
-6,
-46,
7,
-27,
-47,
29,
-2,
-15,
18,
-6,
40,
19,
42,
26,
-1,
23,
-30,
67,
32,
32,
10,
59,
29,
-67,
-10,
-26,
-22,
-42,
-25,
-10,
9,
18,
47,
23,
-26,
30,
18,
11,
-51,
-14,
32,
13,
-8,
29,
1,
45,
0,
50,
-6,
-21,
7,
66,
2,
9,
-9,
101,
-50,
41,
0,
-11,
-9,
-57,
-42,
-11,
27,
23,
-56,
-3,
24,
-42,
-31,
-5,
3,
-58,
24,
10,
77,
50,
-16,
5,
6,
27,
55,
8,
20,
5,
34,
-27,
24,
2,
-26,
15,
-18,
-61,
24,
50,
-8,
51,
-3,
-5,
-30,
-53,
-33,
50,
17,
19,
-1,
-53,
17,
64,
3,
10,
60,
-9,
-20,
33,
-31,
57,
17,
-14,
-7,
7,
-11,
40,
-39,
9,
-31,
-24,
1,
-27,
58,
40,
0,
-27,
43,
-4,
-25,
-12,
-27,
18,
48,
26,
-23,
14,
32,
11,
-38,
-28,
-21,
11,
-18,
85,
-37,
17,
1,
86,
-27,
-15,
-1,
-13,
-34,
49,
-13,
0,
-28,
-49,
-29,
0,
31,
8,
-10,
-11,
-2,
-44,
38,
-36,
12,
-46,
-65,
-37,
26,
-7,
-3,
-38,
22,
-12,
-38,
14,
67,
36,
-19,
-48,
13,
19,
-65,
-52,
-13,
-10,
-10,
-16,
0,
-15,
11,
10,
-19,
64,
-19,
17,
7,
-76,
-2,
6,
18,
-66,
-17,
-48,
-6,
-11,
1,
15,
-40,
78,
32,
10,
0,
39,
5,
-40,
31,
2,
4,
-60,
0,
-13,
-65,
-43,
-49,
30,
9,
-32,
24,
42,
3,
20,
-2,
-41,
24,
26,
-10,
-24,
-19,
17,
34,
39,
12,
-86,
-63,
-27,
17,
-2,
4,
41,
5,
-47,
-27,
-24,
-35,
12,
28,
-35,
-21,
45,
-15,
-9,
-66,
-4,
-10,
-25,
18,
0,
4,
54,
-31,
60,
-37,
16,
20,
-14,
-49,
13,
-13,
11,
0,
-65,
71,
-48,
4,
-9,
36,
-32,
4,
0,
8,
14,
-30,
38,
8,
14,
-44,
-48,
53,
-32,
-8,
68,
29,
-1,
43,
-21,
-17,
29,
19,
-21,
-4,
-11,
24,
55,
24,
9,
28,
56,
10,
20,
50,
37,
-38,
6,
0,
-37,
23,
-41,
5,
26,
30,
-66,
-71,
6,
75,
35,
35,
-21,
-31,
-26,
23,
-22,
11,
-19,
64,
-12,
-28,
-46,
29,
15,
-49,
1,
16,
4,
6,
22,
81,
2,
43,
10,
-6,
-49,
3,
-43
] |
MR. JUSTICE COOPER
delivered tbe opinion of tbe court.
On November 8, 1919, Matilda Dunning was conducting a business in tbe city of Great Falls known as tbe South Side News Stand. It appeared that while she was sick and unable to give her personal attention to tbe business she entrusted its management to her nephew, who converted some of tbe moneys to Ms own use. Because of this and tbe fact that tbe business fell off and her indebtedness increased, the creditors met, and between them it was agreed that Mrs. Dunning should make an assignment for the benefit of all her creditors. On the date named, pursuant thereto, she executed and delivered to defendant a deed of assignment in which it was provided that, as assignee, defendant should take possession of all the property of the concern and sell and dispose of it with all reasonable diligence, either at public or private sale and for the best prices that could be obtained therefor. It further provided that the assets should be “converted into money,” all debts due Mrs. Dunning collected, the reasonable expenses and costs of executing the trust should be paid, and all debts owing by her as assignor satisfied and discharged. If the proceeds of the sale of the property wrere not sufficient to pay the debts and liabilities and interest, then the money derived from a sale thereof was to be “distributed among the creditors” proportionately. The defendant accepted the trust and agreed to carry out the obligations imposed thereby. Mrs. Dunning, at defendant’s request, remained in possession of the business and conducted it on behalf of the defendant as assignee, until the business was finally closed out.
The complaint alleges that between November 10, 1919, and August 6, 1920, plaintiff sold to defendant goods, wares and merchandise of the value of $528.45, which it agreed to pay. The defense pleaded in the answer was that the defendant was acting as assignee for the benefit of the creditors of Mrs. Dunning; that at the request of the plaintiff and the American Bank & Trust Company of Great Falls, two of the largest creditors of the assignor, it accepted the trust and proceeded with its execution; that it secured an order of court authorizing it, as such assignee, to continue the business as a going concern on a cash basis, both as to purchasing and selling merchandise ; that the order so obtained required the defendant as assignee to make “return of its proceedings within three months.” The answer further alleged that defendant was not personally liable for the debt sued on by plaintiff, and that Mrs. Dunning never informed it of plaintiff’s claim, nor did defendant learn of its existence until August 6, 1920, and that the goods, if sold at all, were sold to Mrs. Dunning personally and not to the defendant as assignee. The reply was a general denial of all the allegations of the answer.
The court found in favor of the plaintiff and entered judgment against the defendant for the amount demanded.
Defendant’s appeal is based upon two alleged errors of the trial court in considering the evidence, which its counsel claim shows that (1) the merchandise was sold to Mrs. Dunning personally and not to defendant; and (2) that the business was being conducted under the management of Mrs. Dunning for the defendant as assignee, and that defendant in purchasing the goods sued on was acting solely as the agent of the plaintiff and the American Bank & Trust Company.
Upon the evidence in the record it appears that two days after the deed of assignment was made by Mrs. Dunning and filed-for public record, the defendant caused to be delivered to each and all of the creditors of the assignor a written announcement reading:
“At a meeting with the heavily interested creditors this matter was discussed, and Mrs. Dunning felt that if she were given an extension of time, she would be able to pull the business out. With this in mind an assignment for the benefit of creditors was executed, and the business will be operated under our supervision, with Mrs. Dunning in charge, until such time as it is found that the business cannot foe made to pay, when it is the opinion of the larger creditors, it should be sold in order to pay off all creditors. While the business is being operated under our supervision, we will ask that any orders for magazines and papers that may be on file with you, be billed to Mrs. Dunning, care of the Northern Montana Association of Credit Men, as it is our purpose to pay the current purchases out of the first receipts of the business, provided it is found not to be on a paying basis. These statements we would request you to send us weekly, so that they may be taken care of promptly.
“As you are listed in her statement as a creditor, we will kindly ask that you send us an assignment on the blank at tached hereto, together with a correct statement o£ your account, which will be filed against the estate and used as a basis for the pro rata of any moneys accumulating under the assignment.
“Trusting that you will give your immediate attention by filing your claim promptly, and arrange for the sending of your publications on order as heretofore, we are.
“Very truly yours,
“Northern Montana Ass'n of Credit Men.”
Accompanying the letter was a blank form of assignment, as suggested in the body of the letter, transferring the account to the defendant association for collection.
A letter which was mailed by the defendant and received by the plaintiff, dated September 20, 1921, reads as follows:
“Answering your letter of September 17th, we regret to state that we cannot give you a definite answer on account against the South Side News Stand. Our directors state that as a moral obligation we will be obliged to pay the accounts which accrued during the operation of the store by the association and we are endeavoring to straighten the matter out to determine just what is owing for that period. Please send us your statement for goods shipped as indicated and we will try to take care of it in the near future.
“Yours very truly,
“Northern Montana Ass’n oe Credit Men.
“E. E. Leonard, Manager.”
In addition to the foregoing, the following interrogatories were addressed to W. L. Ignatius, who was the business manager of the defendant corporation during the time covered by the transaction in question: “Q. After looking at that letter of August 23', did you not advise the Spokane News Company, the plaintiff here, that you wanted an itemized statement of their account from November 10, 1919, showing the payments made thereon, as well as returns, etc., so that we, meaning the association, may have our auditor check up-, following which we will see that you receive your prompt remittance? Q. Did you write such a letter to them ? A. I imagine I did. * * * Q. When the business was finally closed out, what became of the fixtures? A. They were sold to Mr. Prescott on contract sale. Q. Where are they now? A. I understand they are in storage.
“The Court: Have they been sold yet? A. No.
“The Court: Do they still belong to the credit association? A. Yes, sir. There is some stock there too, cigars and stuff.”
Besides the foregoing, James A. Nelson, the authorized agent of the plaintiff Spokane News Company, testified as follows:
“Q. What instructions did Mr. Ignatius, acting for defendant in this action, give you with reference to sending these periodicals and merchandise you are suing on? A. We were to continue shipments to the South Side News Stand as in the past, sending the same order we had been sending to Mrs. Dunning, that he would personally cheek her and see that all receipts and disbursements were taken care of and that they would be responsible — the association. Q. That is, the association would pay it? A. Yes, sir.”
The contention of appellant that, because plaintiff knew the assignee was authorized by the order of the court to continue the business as a going concern for three months, defendant was not liable for goods sold to it as assignee, cannot be sustained. The order authorizes the assignee to conduct the business “as a going concern on a cash basis.” That the defendant did not respect the limitations of its authority is apparent from the fact that Mrs. Dunning, while acting for defendant as assignee, and wdth its knowledge, ordered and received the goods sued for on credit and not on a cash basis as provided in the court’s order. Of this there is abundant evidence in the record, as well as of the fact that the defendant knew Mrs. Dunning was not paying for the goods as she received them.
Even if it could be assumed that the assignee was empowered by the court’s order to purchase goods for the purpose of continuing the business as a going concern, it did not authorize the assignee to carry on the business on a credit basis.
Judge Ewing, wbo was familial’ with the transactions, decided the case upon conflicting evidence, and under the well-established rule his findings will not be disturbed by this court.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway, Associate Justices Galen and Stark and Honorable William L. Ford, District Judge, sitting in place of Mr. Justice Holloway, disqualified, concur.
|
[
-15,
18,
4,
0,
-19,
-30,
56,
-3,
32,
-12,
2,
9,
19,
13,
1,
-37,
-4,
-18,
9,
-13,
-1,
-36,
-14,
-2,
-8,
-8,
-12,
-17,
10,
-24,
3,
37,
-15,
22,
29,
52,
-37,
-23,
19,
-35,
31,
70,
37,
47,
32,
6,
21,
-79,
66,
-45,
58,
-43,
0,
24,
-30,
-31,
-15,
35,
2,
56,
59,
-57,
43,
-44,
28,
-44,
17,
11,
16,
13,
-32,
-10,
1,
8,
-6,
-23,
8,
22,
-51,
-31,
0,
-90,
-28,
-14,
-77,
19,
-16,
30,
16,
12,
28,
5,
27,
19,
14,
19,
12,
-45,
-32,
14,
-66,
-71,
-8,
70,
26,
20,
0,
-23,
0,
39,
-48,
0,
29,
33,
-20,
36,
4,
-62,
-11,
60,
12,
18,
-53,
-15,
40,
-6,
-7,
-4,
19,
-28,
-26,
37,
-2,
9,
-44,
-21,
-45,
1,
-4,
29,
-3,
-8,
-15,
-11,
0,
53,
1,
26,
10,
25,
-36,
4,
57,
46,
3,
-92,
-16,
-27,
12,
-23,
13,
-37,
49,
-10,
-17,
24,
8,
2,
-41,
15,
-10,
2,
-28,
-10,
-27,
6,
-9,
-82,
-31,
-17,
27,
-20,
-11,
-9,
-27,
-34,
80,
-27,
37,
0,
2,
-4,
-29,
9,
-90,
-2,
10,
-7,
7,
7,
1,
38,
-53,
8,
-39,
-30,
-50,
0,
31,
0,
0,
2,
-6,
-19,
0,
-13,
-26,
-63,
-46,
4,
5,
6,
6,
31,
8,
-27,
46,
-60,
-44,
-17,
11,
-33,
-6,
38,
11,
-25,
43,
4,
-35,
-17,
-53,
-45,
29,
1,
-25,
13,
-37,
-9,
34,
-26,
-59,
13,
-19,
51,
18,
34,
3,
-3,
-21,
-36,
9,
54,
-41,
24,
2,
-27,
-13,
11,
-10,
-1,
20,
39,
49,
-1,
-3,
-29,
-19,
14,
31,
-1,
-7,
-70,
19,
-7,
41,
-19,
-24,
24,
-52,
8,
-8,
12,
30,
-18,
29,
24,
-16,
2,
20,
24,
-30,
-42,
12,
46,
8,
8,
-18,
-44,
-18,
-7,
35,
7,
-11,
-45,
56,
28,
-3,
-2,
26,
53,
79,
18,
-40,
21,
23,
17,
-27,
-41,
-15,
-15,
24,
18,
-25,
-26,
-29,
-5,
20,
0,
19,
-44,
37,
-13,
43,
-17,
11,
6,
2,
2,
-28,
30,
-51,
49,
-7,
50,
43,
-31,
57,
28,
-25,
3,
11,
47,
68,
-34,
15,
-6,
-8,
21,
38,
4,
-14,
66,
-1,
-32,
-3,
-12,
-45,
0,
-19,
33,
26,
-25,
-36,
-3,
27,
0,
28,
0,
-23,
-18,
-41,
14,
-15,
94,
-21,
-41,
-44,
-54,
-76,
-67,
29,
65,
-12,
0,
-15,
-20,
-1,
-45,
33,
31,
-27,
-81,
24,
-37,
0,
-40,
0,
-44,
14,
25,
-1,
-49,
56,
28,
10,
-28,
60,
23,
-47,
8,
-13,
42,
19,
15,
-26,
-25,
-3,
18,
11,
21,
32,
40,
-44,
16,
17,
14,
22,
-9,
64,
-22,
49,
7,
26,
-2,
52,
-4,
23,
11,
0,
-15,
58,
-2,
31,
67,
-4,
8,
69,
-51,
-1,
46,
-8,
0,
-15,
-38,
41,
48,
-55,
-36,
-39,
24,
36,
7,
18,
-21,
0,
21,
-26,
-48,
-72,
-9,
46,
17,
-14,
-12,
-20,
-28,
0,
15,
29,
-9,
-11,
-48,
30,
0,
-52,
-15,
7,
-70,
8,
18,
14,
7,
29,
70,
21,
29,
-2,
12,
2,
34,
42,
59,
-63,
28,
38,
7,
66,
30,
73,
0,
-80,
4,
-25,
-5,
24,
-22,
34,
1,
26,
-9,
24,
-3,
21,
25,
-35,
13,
1,
21,
22,
-21,
-18,
-72,
18,
-24,
63,
20,
-18,
-5,
45,
20,
-25,
57,
-37,
-37,
95,
-33,
-13,
-76,
-43,
-42,
-35,
-31,
-17,
-18,
-52,
-26,
-8,
-40,
14,
-11,
-26,
-36,
0,
-37,
-9,
45,
42,
11,
-52,
53,
27,
-47,
-54,
33,
27,
-57,
9,
18,
-42,
-7,
6,
-8,
9,
0,
-27,
-64,
0,
-5,
29,
-7,
9,
-26,
7,
23,
-38,
-3,
10,
-35,
7,
-13,
-21,
43,
-1,
36,
-6,
-13,
-47,
20,
-32,
33,
-4,
-26,
69,
17,
-44,
0,
28,
-2,
-41,
-38,
-47,
40,
69,
-7,
-9,
-29,
19,
20,
31,
-4,
-37,
20,
17,
0,
-26,
-31,
24,
-21,
31,
-32,
13,
-2,
-50,
-17,
39,
-1,
7,
2,
60,
22,
15,
-76,
20,
-24,
10,
14,
-30,
44,
69,
18,
-9,
-20,
-45,
64,
-44,
-87,
43,
16,
-38,
44,
18,
-11,
-61,
50,
-12,
6,
-9,
35,
-25,
-13,
14,
4,
-30,
31,
-2,
26,
-87,
7,
-34,
-12,
-3,
-18,
-15,
-19,
-7,
-14,
25,
-11,
-10,
-25,
-40,
-7,
46,
-18,
17,
-11,
16,
0,
-16,
-6,
63,
38,
-17,
39,
28,
-18,
-59,
8,
-36,
-12,
44,
35,
-38,
6,
-62,
30,
28,
19,
-13,
-37,
49,
77,
39,
4,
15,
-2,
8,
-4,
-19,
-35,
2,
68,
23,
13,
25,
28,
-15,
-38,
-41,
-48,
-37,
34,
-35,
27,
5,
42,
39,
14,
39,
-43,
12,
-34,
-42,
-45,
-5,
9,
53,
26,
69,
-2,
-74,
20,
-2,
-23,
-50,
-11,
0,
19,
-53,
-50,
5,
-9,
0,
-7,
23,
-11,
11,
39,
-28,
28,
-21,
0,
14,
-39,
23,
-17,
0,
14,
-29,
-7,
-28,
-16,
-12,
-10,
-15,
-44,
-57,
26,
-16,
36,
-17,
-13,
-38,
-18,
-26,
7,
83,
5,
30,
-18,
7,
-36,
-99,
9,
16,
18,
20,
-4,
-10,
18,
-31,
-11,
-1,
-24,
-24,
-17,
-23,
32,
45,
15,
37,
23,
-66,
38,
2,
14,
15,
-63,
19,
30,
-46,
108,
12,
1,
-14,
31,
-13,
23,
48,
-27,
-26,
13,
9,
8,
-6,
37,
16,
4,
28,
38,
-40,
-49,
-32,
-12,
22,
-49,
-41,
-45,
21,
-48,
14,
-20,
-18,
16,
-28,
-13,
-24,
32,
41,
26,
5,
-16,
-62,
38,
12,
34,
1,
-57,
24,
5,
5,
-45,
-6,
50,
11,
28,
-20,
50,
-53,
88,
-45,
41,
-22,
25,
-21,
-12,
-20,
-14,
2,
-14,
-4,
4,
6,
-12,
15,
-21,
45,
-10,
27,
0,
14,
33,
20,
40,
7,
19,
-45,
-19,
-38,
22,
-60,
45,
18,
-30,
61,
15,
23,
-11,
78,
-42,
-41,
-26,
10,
-29,
-38,
10,
12,
-15,
-2,
-27,
73,
-10,
-36,
69,
28,
-16,
12,
3,
12,
-13,
23,
-28,
2,
18,
-32,
9,
7,
-13,
-7,
-9,
9,
-19,
-14,
-39,
-11,
-66,
-26,
9,
6,
-37,
13,
6,
19,
40,
1,
-3,
9,
45,
-14,
5,
14,
16,
-2,
7
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was commenced in 1923 to recover installments alleged to be due upon the purchase price of real estate. The ¿plaintiff prevailed in the lower court, and defendant appealed from the judgment.
In January, 1919, the parties to this action entered into an agreement in writing the material portions of which -are the f ollowing:
“If the said party of the second part [defendant Johnson] shall first make the payments and perform the covenants hereinafter mentioned on Ms part to be made and performed, ,the said party of the first part [plaintiff Wandell] hereby covenants and agrees to convey and assure to the said party of the second part, in fee simple, clear of all encumbrances Whatever by a good sufficient deed” 163.73 acres of land in Richland county, particularly described. “And the said party of the second part, hereby covenants and agrees to pay to the said party of the first part the sum of forty-eight hundred dollars” as follows:
“The sum of $480.00 on the first day of November, 1920, hnd the sum of $480.00 on the first day of November of each and every year following until the full amount due under the terms of this contract shall have been paid, with interest at the rate of six per cent per annum, payable annually, on the whole sum remaining from time to time unpaid; and to pay W1 taxes, assessments, or impositions that may be legally imposed upon said land, subsequent to the year 1917. And in case of failure of the said party of the second part to make either of the payments, or interest thereof or any part thereof, ior perform any of the covenants on his part hereby made and entered into, then the whole of said payments and interest shall, at the election of said first party become immediately due and payable, and this contract shall, at the option of the party of the first part, be forfeited and determined by giving to the said second party thirty days’ notice in writing,” which notice “shall be sufficient to cancel all obligation hereunto on the part of the said first party and fully reinvest him with all right, title and interest hereby agreed to be conveyed, and the party of the second part shall forfeit all payments made by him on this contract, and all his right, title and interest in all buildings, fences or other improvements, whatsoever, and such payments and improvements shall be retained by the said party of the first part, in full satisfaction and in liquidation of all damages by him sustained, and he shall have the right to re-enter and take possession of the premises aforesaid.”
It is admitted that Johnson took possession of the land immediately upon the execution of the contract and retained ^possession thereafter; that he paid the interest and $438 upon the first installment of the principal, but failed to pay anything further.
It is the contention of the defendant that the agreement lacks mutuality of obligation, and in any event forfeiture of the contract, retention of the money paid, and re-entry into possession constitute the only remedy available to plaintiff.
1. The contention that the agreement lacks mutuality is predicated upon the language employed in the first paragraph quoted above. It is insisted that Wandell did not bind himself to sell the land, but agreed only to sell if Johnson first performed fully all the terms mentioned to be performed by him, and since Johnson failed to perform fully, Wandell never assumed any liability whatever.
Speaking generally, mutuality of obligation is an essential ingredient of an enforceable contract (Raiche v. Morrison, 37 Mont. 244, 95 Pac. 1061), and mutuality is lacking, of course, when only one of the contracting parties is bound to perform (6 Cal. Jur. 211; 13 C. J. 331). Whether a contract is .bilateral or unilateral depends upon the intention of the parties, and when, as in this instance, the contract is in writing, the intention is to be ascertained from the writing alone, if ¡possible (sec. 7530, Rev. Codes); that is to say, the language (of the contract is to govern its interpretation if the language is clear and explicit and does not involve an absurdity (see. 7529).
No one would have the temerity to suggest that the language of this agreement is either clear or explicit. Indeed, dt would be difficult to conceive of a contract expressed more clumsily; hence we are required to resort to the usual rules /of construction to ascertain, if possible, what the parties meant by the language they employed. (Sec. 7528.)
It is a general rule that “a contract should be construed in such a way as to make the obligations imposed by its terms mutually binding upon the parties, unless such construction is wholly negatived by the language used.” (Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85. 31 L. R. A. 529, 43 N. E. 774; 13 C. J. 539; see. 7534, Rev. Codes.)
Paraphrased, the first provision of this agreement declares that if Johnson first performs all the terms by him to be performed, Wandell will convey the land by good and sufficient deed. Defendant lays much emphasis upon the word “if,” and though primarily it imports a condition (Alexander’s Estate, 149 Cal. 146, 85 Pac. 308), it means “at the time when; whenever” (Funk & Wagnall’s Standard Dictionary); and the particular meaning assigned to it will depend upon its- association with other terms employed in the Same instrument (Sutton v. West, 77 N. C. 429). That Johnson was absolutely bound to pay the purchase price of the land does not admit of doubt; and while it is true that Wan-dell did not in express terms agree to sell, the only fair inference from the entire agreement is that both parties intended that he should do so and understood that he promised to do so. In 39 Cyc. 1207, the general rule immediately applicable is stated as follows: “Where there is a promise to sell or to purchase, as the case may be, it is not necessary in order that there may be mutuality that there shall be an express promise on the other side, but it is sufficient if upon a fair consideration of the agreement such a promise can be implied.”
These parties did agree expressly that if Wandell elected to declare a forfeiture of the contract for breach by Johnson, thirty days’ notice should be sufficient for that purpose and sufficient to reinvest Wandell “with all right, title and interest hereby agreed to be conveyed.” If this is an executory contract for the sale of the land, Wandell parted with and Johnson secured the equitable title. (39 Cyc. 1302.) If defendant’s theory be accepted, Wandell did not part with anything; but to say that he did not part with anything does violence to the language employed, for in that event there would not be -anything with which he could be reinvested. Furthermore, Johnson went into possession and paid a part of the pinchase price, which was accepted by Wandell. These considerations lead us to the conclusion that the parties intended this agreement to be an executory contract for the sale of the land in question; that Wandell bound himself to sell and that the execution and delivery of the deed only were contingent upon Johnson performing his part of the contract; in other words, that the initial provision of the contract .means that when Johnson fully performed, Wandell would execute and deliver the deed (Sharp v. Behr (C. C.), 117 Fed. 864), and the fact that the agreement provides for a forfeiture of the contract and of all payments made upon the purchase price does not affect the mutuality of the obligation (Le Vine v. Whitehouse, 37 Utah, 260, 109 Pac. 2).
2. It is contended further that the contract itself provides an exclusive remedy, hence plaintiff cannot maintain this action, and Wing v. Brasher, 59 Mont. 10, 194 Pac. 1106, is relied upon to support the contention. In the case cited the contract specifically provided certain remedies for the vendor in case of the vendee’s default, and concluded: “And that should the said party of the second part [vendee] default in any payments that may become due and payable under this contract, this contract shall be the only course of settlement thereunder.” No such provision is contained in the contract now before us. On the contrary, the right to declare a forfeiture of the contract and payments already made is expressly declared to be “at the option of the party of the first part.” In Alexander v. Wingett, 63 Mont. 254, 206 Pac. 1087, the contract involved provided for a forfeiture in ease of default by the vendee, but did not provide that the remedy by forfeiture should be exclusive. In disposing of the same contention as that now made, this court said: “We are of the opinion that the forfeiture clause in the contract of sale was for the benefit of the vendor; and that the failure of the vendee to make the payments when due did not render the contract void so as to preclude an action for the purchase price of the real estate or so much thereof as was due when this action was commenced.” The decision in that case is conclusive upon the question now under consideration.,
The provisions of the contract that the payments made by Johnson and the improvements placed upon the land by him “shall be retained by the said party of the first part in full satisfaction and in liquidation of all damages by him sustained, and he shall have the right to re-enter and take possession of the premises aforesaid,” could become operative only in the event that Wandell elected to declare a forfeiture. The language is too plain to admit of controversy ■ over its meaning. A forfeiture was not declared; hence Wandell was free to treat the contract as in full force and recover the amount of the installments then due. (Rock Island L. & M. Co. v. Fairmount Town Co., 51 Kan. 394, 32 Pac. 1100; Rourke v. McLaughlin, 38 Cal. 196.)
The judgment is 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.
|
[
-33,
31,
18,
11,
-22,
-10,
9,
-19,
41,
27,
2,
11,
8,
14,
42,
11,
-1,
-33,
-17,
23,
-26,
-15,
20,
-35,
3,
8,
-32,
-25,
25,
9,
-6,
17,
-17,
19,
11,
40,
-41,
-22,
18,
-76,
-1,
26,
-29,
17,
48,
51,
38,
-58,
46,
14,
-41,
-62,
-24,
-11,
-16,
18,
-42,
-1,
-33,
3,
-14,
-53,
11,
7,
-10,
-9,
-19,
32,
54,
-48,
14,
-36,
36,
-37,
39,
-12,
-17,
0,
-27,
-48,
11,
0,
14,
-2,
-58,
4,
7,
-47,
-5,
49,
-14,
23,
82,
20,
-17,
0,
6,
18,
-41,
14,
-47,
-60,
29,
48,
-15,
3,
1,
-8,
22,
20,
26,
-12,
33,
14,
-24,
-16,
13,
-39,
-4,
24,
7,
38,
31,
-24,
-14,
19,
9,
-30,
-24,
-21,
9,
21,
-32,
41,
9,
-60,
27,
-11,
30,
24,
-10,
-28,
-20,
-45,
-6,
23,
27,
17,
-74,
-17,
2,
1,
50,
23,
-4,
-50,
35,
-9,
-27,
-34,
41,
-52,
-10,
-15,
-22,
10,
-2,
-14,
-1,
31,
35,
-11,
5,
-35,
10,
-35,
-28,
-33,
46,
18,
6,
-35,
-42,
-25,
-30,
-21,
34,
43,
13,
2,
6,
-25,
-21,
4,
-37,
-13,
-52,
0,
-25,
2,
-26,
-1,
-6,
24,
-41,
-35,
-9,
36,
32,
50,
-20,
-70,
12,
9,
6,
19,
23,
45,
9,
8,
14,
-42,
-65,
7,
-23,
-20,
41,
1,
59,
6,
-75,
79,
24,
43,
-4,
-20,
3,
-3,
-15,
-9,
-1,
-22,
-21,
1,
-25,
14,
13,
-14,
33,
21,
-76,
-2,
-36,
40,
49,
79,
-10,
-15,
-4,
-18,
14,
25,
-15,
-19,
37,
-31,
6,
-40,
5,
41,
-25,
6,
-40,
37,
-46,
-34,
9,
14,
-50,
21,
-25,
-35,
39,
28,
19,
63,
-3,
91,
-43,
-3,
29,
-31,
-6,
33,
17,
20,
54,
4,
31,
28,
-67,
-15,
-6,
11,
31,
-32,
-15,
-7,
-12,
-19,
-16,
18,
16,
-29,
-5,
3,
-6,
3,
35,
-19,
21,
30,
17,
31,
6,
-42,
13,
-45,
-29,
19,
1,
-25,
14,
25,
-1,
17,
-19,
24,
3,
-1,
13,
52,
65,
23,
39,
28,
-10,
-32,
-51,
68,
-28,
-42,
-58,
11,
-63,
-9,
-1,
24,
27,
-9,
35,
41,
38,
-22,
-43,
22,
8,
-33,
-10,
-24,
40,
60,
-37,
0,
7,
27,
0,
-39,
-19,
41,
-2,
-21,
-29,
36,
60,
49,
0,
-49,
-54,
7,
-50,
-2,
-5,
47,
-24,
-65,
41,
-18,
-16,
-40,
21,
6,
-88,
-1,
-49,
32,
11,
-7,
-36,
-31,
-18,
-44,
-17,
-42,
-36,
37,
-8,
47,
28,
22,
20,
-15,
-4,
6,
-34,
-22,
51,
28,
-33,
35,
6,
-2,
64,
-11,
36,
-16,
-13,
33,
-53,
69,
18,
52,
-30,
53,
-30,
1,
-8,
60,
24,
27,
42,
-24,
11,
37,
45,
24,
52,
-47,
18,
-29,
60,
-18,
-6,
14,
-31,
5,
8,
30,
-64,
20,
11,
42,
40,
7,
-2,
10,
-51,
-58,
24,
16,
14,
-23,
-59,
33,
-12,
25,
-59,
-42,
26,
14,
20,
1,
4,
-28,
-6,
-26,
-12,
7,
-10,
-9,
-1,
42,
24,
18,
-47,
-19,
-23,
-16,
-16,
46,
41,
10,
-27,
-15,
6,
1,
14,
-19,
23,
0,
56,
7,
-55,
-6,
34,
-14,
-10,
66,
-8,
7,
-76,
7,
-16,
-39,
-41,
-16,
5,
58,
2,
-50,
-9,
14,
-23,
52,
-80,
26,
-27,
-19,
36,
23,
1,
-39,
-38,
11,
-14,
8,
-71,
-40,
6,
3,
23,
45,
45,
-15,
55,
21,
15,
-11,
-37,
23,
-22,
-26,
24,
-10,
26,
-39,
-77,
-37,
-7,
0,
-27,
5,
-4,
3,
20,
71,
66,
16,
26,
51,
-2,
30,
24,
-7,
-1,
-59,
-11,
-14,
-31,
-27,
-29,
17,
-52,
29,
55,
-57,
0,
3,
-47,
30,
-37,
26,
-2,
22,
30,
51,
58,
-29,
-5,
-15,
-16,
47,
-19,
-11,
47,
8,
-56,
28,
-43,
75,
28,
33,
30,
15,
-14,
51,
18,
-14,
-37,
-41,
-27,
-14,
-75,
-3,
18,
4,
-30,
5,
61,
-3,
5,
36,
2,
-24,
12,
26,
51,
-1,
1,
-36,
76,
-21,
-49,
8,
-5,
-40,
31,
28,
0,
13,
-7,
-25,
14,
-30,
13,
19,
30,
42,
71,
30,
34,
-7,
-22,
9,
-64,
-47,
29,
-13,
-55,
66,
32,
-11,
-22,
9,
-28,
-5,
2,
35,
0,
18,
40,
-21,
19,
2,
-21,
86,
-50,
35,
-18,
-31,
6,
-36,
-87,
0,
-58,
53,
14,
-7,
-33,
-24,
40,
-3,
6,
-5,
50,
1,
15,
54,
25,
29,
47,
31,
-64,
14,
-25,
-2,
-81,
7,
-26,
-58,
-28,
14,
-17,
45,
-25,
-33,
0,
51,
-50,
-34,
53,
-32,
13,
-20,
-32,
-31,
0,
10,
-19,
-22,
-7,
26,
-8,
43,
30,
17,
4,
-71,
-27,
-8,
-12,
28,
-44,
9,
61,
35,
-3,
-1,
-8,
-5,
7,
-8,
-28,
-92,
-15,
-1,
22,
34,
41,
54,
-65,
-32,
6,
-14,
-14,
-25,
4,
41,
32,
-57,
-29,
13,
-29,
21,
50,
27,
21,
-13,
51,
26,
-15,
-5,
52,
16,
17,
19,
1,
-5,
5,
5,
-32,
25,
-34,
45,
30,
5,
-9,
9,
-60,
59,
7,
-44,
-26,
12,
-44,
-13,
-9,
13,
21,
-2,
-19,
-45,
-66,
0,
-9,
25,
-42,
5,
-28,
-29,
0,
-25,
8,
-11,
-52,
7,
29,
-7,
-5,
0,
27,
3,
26,
58,
15,
25,
11,
21,
-47,
42,
-35,
40,
35,
-10,
-1,
-5,
13,
-2,
61,
50,
-47,
-32,
-28,
11,
-38,
43,
-45,
-18,
10,
4,
-8,
-8,
-5,
-5,
16,
-33,
32,
-44,
31,
-28,
52,
10,
13,
10,
-40,
-27,
-1,
-27,
-3,
0,
17,
-55,
-18,
-35,
-128,
10,
-37,
-82,
60,
1,
56,
24,
-55,
-8,
22,
-33,
-12,
2,
-17,
27,
-32,
46,
-33,
22,
-14,
-23,
23,
-11,
2,
-50,
-1,
-14,
0,
-10,
-31,
-33,
13,
-11,
7,
-5,
-19,
89,
30,
36,
49,
-47,
-55,
25,
10,
9,
-35,
32,
-10,
-48,
2,
5,
36,
44,
-22,
-19,
-9,
-5,
15,
-6,
32,
7,
34,
31,
-5,
-13,
-14,
1,
-16,
54,
28,
-9,
33,
-17,
-16,
-33,
50,
-15,
29,
-24,
-67,
-8,
-5,
-6,
20,
-10,
14,
-33,
-17,
6,
-17,
-74,
31,
7,
24,
-30,
-58,
70,
15,
-41,
-20,
89,
-48,
55,
-30,
-2,
31,
-26,
-19,
32
] |
MR. JUSTICE STARK
delivered the opinion of the court.
The defendant in this ease was charged with the unlawful possession and the unlawful sale of intoxicating liquor. The information also alleged that defendant had theretofore been convicted of the crime of illegally selling intoxicating liquor. The defendant entered a plea of not guilty, and upon the trial of the case the jury returned a verdict finding him guilty of unlawfully selling intoxicating liquor, and also found that the charge of a previous conviction, as alleged in the information, was true. Upon this verdict a judgment and sentence of fine and imprisonment was pronounced. Defendant moved for a new trial which was denied, and has appealed to this court from the judgment and the order denying his motion for a new trial.
Counsel’s first specification of error relates to the giving of the court’s instruction No. 1. An examination of the record discloses that no objection to the giving of this instruction was interposed by the defendant in the lower court. Under the provisions of subdivision 4 of section 11969, Revised Codes of 1921, this court is prohibited from reversing a case for any error in instructions not specifically pointed out and excepted to in the court below. Since defendant did not comply with this statutory provision, we are not in position to consider the error complained of in this instruction.
Complaint is made of the action of the court in admitting certain testimony offered by the state for the purpose of showing the interest of a witness, Phares, • who testified on behalf of the defendant. One of the state’s witnesses, Graham, had testified that he bought the liquor in question from the defendant, and that Phares was with him when he did so. In his testimony Phares disclosed that he was foreman of a gang of men working near Stevensville, in which place the liquor was alleged to have been purchased. He had also testified that he had no interest in the outcome of the case. By testimony, of which defendant does not complain here, Phares on cross-examination had shown that shortly before the trial he had quarreled with Graham because the latter had been instrumental in causing the arrest and prosecution of the defendant, and had stated to Graham that he (Phares) would never report any man for selling whisky. In course of the cross-examination the county attorney asked Phares if he had not made the statement, referring to defendant’s selling whisky, “They think they have got him stopped, but he will be in business for a long time, ’ ’ and also whether he had not stated with reference to the business men of Stevensville, “I think it -is up to you business men to have the officers lay off on us; if you don’t, we will spend our money some place else.” Over the objection of the defendant the witness was required to answer these questions, and denied having made either of the statements. The county attorney in rebuttal called a witness who, over objection, testified that Phares had made the statements to him.
In determining the credit to be given to the testimony of a Witness it is always competent for the jury to take into consideration whether he has any interest in the result of the trial. Phares had testified that he had no interest in the case. The fact, however, that he had quarreled with Graham because the latter was instrumental in instituting the prosecution of the defendant and that he had sought to have the officers refrain from enforcing the law against the sale of liquor, if true, were proper matters to be taken into consideration by the jury in determining his interest or lack of interest in the result of the trial. There was no error in admitting this testimony.
The court did not err in overruling defendant’s motion for a new trial upon the ground of newly discovered evidence. The affidavit filed in support of this ground of the motion is insufficient in at least two particulars: (1) It show? that the newly discovered evidence, if produced at the trial, would only tend to impeach the credit of one of the state’s witnesses; and (2) it fails to show that the defendant would be able to produce the evidence- upon another trial of the action. (State v. Matkins, 45 Mont. 58, 121 Pac. 881; State v. Van Laningham, 55 Mont. 17, 173 Pac. 795.)
It is further contended that the evidence is not sufficient ta sustain the verdict. We have carefully reviewed the testimony given at the trial. It is in sharp conflict. We shall not attempt to set it out in detail, since to do so would not serve any useful purpose. There was sufficient competent evidence to justify the jury in arriving at the conclusion which they reached, and this court cannot disturb their finding.
' Other errors specified by defendant are not -argued in his brief, and are therefore deemed abandoned.
■ No error appearing in the record, the judgment and order appealed from are affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Hoi • loway and Galen concur.
Mr. Justice Rankin, being disqualified, did not hear the argument and takes no part in the foregoing decision.
|
[
-57,
3,
44,
-16,
-58,
-54,
-13,
-18,
-49,
41,
31,
-17,
-13,
30,
54,
-43,
-16,
-21,
36,
0,
77,
-30,
-2,
-13,
-13,
-55,
-52,
70,
-2,
-10,
5,
40,
3,
-12,
48,
22,
-37,
-1,
42,
-14,
-7,
79,
-43,
9,
-33,
-25,
-24,
-55,
52,
-40,
38,
-48,
18,
1,
-15,
8,
-5,
18,
-11,
18,
36,
12,
-38,
-16,
-13,
-53,
-32,
-11,
-2,
1,
-19,
-4,
4,
-6,
-18,
6,
-10,
-15,
-8,
-15,
-70,
29,
17,
36,
-31,
25,
30,
-41,
-14,
-8,
59,
-16,
-25,
1,
18,
-23,
-14,
58,
-23,
-13,
-10,
-43,
-66,
20,
33,
27,
-26,
35,
-26,
24,
12,
-26,
57,
24,
8,
-49,
22,
-28,
-46,
18,
13,
4,
63,
-33,
-17,
-45,
54,
-5,
8,
-11,
58,
29,
6,
18,
-26,
-15,
-23,
54,
-11,
16,
13,
-22,
15,
-8,
77,
-13,
46,
26,
-23,
12,
-62,
2,
2,
-28,
-15,
-1,
37,
-73,
-5,
6,
5,
-3,
29,
3,
2,
-18,
-22,
-27,
-26,
-28,
-24,
-33,
19,
15,
21,
-18,
-15,
-48,
-38,
2,
0,
-10,
17,
-9,
37,
-27,
-9,
4,
-3,
-10,
-15,
49,
-39,
25,
0,
-4,
-2,
-11,
69,
21,
-21,
-10,
-14,
7,
2,
-16,
-26,
-2,
29,
-3,
-29,
-66,
-47,
-5,
-30,
-34,
-38,
36,
40,
-1,
-42,
-14,
-20,
-24,
8,
-52,
37,
40,
-25,
42,
-43,
38,
-7,
6,
19,
-86,
8,
-22,
25,
61,
-28,
-21,
-41,
-39,
11,
15,
12,
-3,
-8,
-3,
10,
-2,
30,
-7,
-32,
-1,
51,
-37,
-23,
-5,
17,
51,
-21,
59,
-17,
-31,
20,
-10,
-3,
56,
-26,
-44,
7,
48,
7,
-14,
-10,
59,
19,
54,
-16,
50,
23,
30,
22,
30,
-6,
38,
-12,
16,
37,
15,
-36,
20,
46,
30,
34,
40,
-73,
40,
40,
48,
-42,
10,
-53,
3,
19,
-5,
-39,
-24,
37,
-47,
-10,
2,
8,
7,
-1,
3,
42,
-54,
-71,
-21,
16,
10,
-20,
-29,
29,
-1,
22,
-23,
21,
30,
1,
55,
-49,
7,
58,
47,
50,
55,
-36,
0,
1,
-8,
-30,
20,
-36,
-37,
-26,
-1,
-13,
9,
32,
43,
6,
13,
-27,
-25,
49,
-46,
17,
-1,
-5,
24,
28,
16,
-29,
18,
-36,
34,
-9,
-1,
-21,
14,
-36,
-19,
1,
-31,
-57,
35,
11,
15,
21,
-36,
-24,
20,
1,
-74,
-66,
21,
-7,
27,
26,
0,
-1,
-17,
32,
-8,
49,
-21,
-20,
23,
35,
-11,
-29,
0,
-8,
55,
14,
-32,
-41,
-14,
12,
19,
9,
2,
-41,
-9,
-11,
-11,
17,
-6,
17,
4,
54,
-50,
14,
38,
11,
23,
-15,
13,
17,
34,
-57,
14,
19,
22,
16,
-3,
-89,
8,
-63,
-5,
40,
-38,
-54,
12,
63,
-8,
22,
1,
55,
5,
38,
41,
46,
7,
73,
0,
51,
-2,
-50,
-17,
25,
-14,
-53,
-65,
-30,
8,
-47,
42,
27,
-19,
-36,
16,
49,
-4,
-15,
-7,
9,
30,
-23,
-8,
0,
-24,
-5,
-73,
-15,
-3,
69,
-28,
32,
6,
-35,
-26,
-9,
-7,
-3,
25,
-60,
-4,
-56,
-12,
-45,
20,
31,
7,
57,
48,
16,
33,
-44,
13,
-11,
-37,
-6,
-4,
18,
19,
57,
-7,
-26,
2,
-29,
13,
-6,
-27,
30,
-70,
-18,
28,
-20,
-7,
15,
27,
45,
42,
-23,
-23,
20,
-41,
10,
-1,
-13,
19,
-6,
-29,
34,
24,
-1,
30,
14,
-31,
-39,
-20,
-23,
2,
-34,
-10,
-7,
23,
-11,
5,
66,
-9,
-29,
0,
51,
-10,
16,
10,
10,
19,
21,
-38,
-14,
-62,
19,
-10,
31,
6,
26,
14,
-20,
31,
2,
2,
-31,
14,
-50,
73,
-10,
36,
0,
-35,
-51,
-17,
-42,
34,
-17,
-20,
54,
28,
57,
-30,
16,
16,
-23,
45,
59,
47,
-4,
-12,
2,
32,
-23,
-16,
-43,
62,
11,
16,
-30,
18,
49,
-3,
-35,
-27,
11,
18,
-34,
-17,
5,
-6,
14,
33,
-41,
38,
-51,
-29,
5,
-32,
-7,
-3,
35,
20,
0,
42,
30,
-20,
-40,
7,
23,
-24,
-57,
0,
22,
-14,
1,
-10,
38,
20,
-34,
59,
6,
-2,
40,
-18,
-8,
54,
18,
-62,
3,
-82,
15,
-2,
37,
3,
19,
-20,
-30,
-32,
25,
-3,
-1,
-3,
-27,
6,
-7,
25,
-42,
38,
6,
27,
-38,
61,
18,
-6,
-24,
-24,
18,
-1,
70,
0,
-30,
34,
15,
-66,
19,
-37,
5,
-7,
-49,
51,
1,
11,
30,
-17,
-56,
19,
-32,
-39,
44,
-16,
19,
-27,
-1,
43,
54,
-1,
30,
-9,
20,
59,
40,
-10,
-43,
-25,
-22,
19,
-27,
1,
-16,
-55,
15,
-33,
26,
-2,
-6,
-26,
20,
-16,
11,
-1,
-7,
-5,
25,
-20,
-49,
-43,
8,
27,
22,
-19,
-16,
68,
-5,
5,
-13,
45,
8,
-64,
23,
-1,
-14,
51,
-5,
-13,
-14,
10,
-13,
-13,
-55,
-54,
0,
11,
0,
16,
12,
11,
0,
-13,
-19,
0,
-12,
3,
25,
28,
-15,
-25,
-14,
0,
39,
-9,
81,
20,
21,
-8,
38,
44,
-4,
4,
45,
-23,
-5,
-42,
-28,
-51,
0,
14,
-15,
17,
-17,
25,
0,
-23,
-31,
2,
-28,
-19,
-5,
-16,
-5,
46,
4,
-45,
2,
-13,
-19,
-43,
14,
16,
-21,
61,
-9,
-3,
15,
-27,
-32,
-29,
29,
21,
-9,
-99,
-47,
35,
62,
-33,
22,
35,
4,
-9,
-14,
-61,
14,
-22,
10,
-7,
-10,
19,
-26,
-9,
29,
23,
-15,
10,
-23,
-33,
-3,
33,
3,
-42,
11,
-14,
13,
0,
7,
-55,
-1,
21,
24,
31,
-14,
-8,
-43,
-3,
20,
26,
46,
-33,
51,
-8,
-19,
41,
23,
-80,
38,
-19,
-30,
23,
-31,
-24,
5,
-23,
0,
28,
-30,
-61,
61,
-20,
63,
17,
-17,
47,
0,
35,
-2,
22,
-23,
20,
-52,
-4,
29,
-37,
-34,
9,
24,
-19,
0,
-24,
-45,
-14,
13,
-15,
29,
-19,
-17,
-42,
-20,
28,
-14,
2,
-5,
54,
-19,
-38,
-12,
22,
37,
29,
-3,
53,
-23,
15,
-30,
47,
0,
55,
37,
-5,
-20,
23,
59,
51,
-15,
44,
26,
-18,
30,
-23,
-25,
18,
-7,
34,
20,
-56,
28,
35,
-7,
12,
-42,
-8,
48,
59,
-11,
34,
-34,
-1,
-34,
-17,
2,
-16,
-50,
-12,
25,
-49,
-41,
39,
-49,
-9,
-64,
-65,
13,
-17,
-44,
18,
7,
18,
-67,
4,
-12,
95,
13,
12
] |
MR. JUSTICE STARK
delivered the opinion of the court.
On December 24, 1923, an information was filed in the district court of Yellowstone county charging the defendant in this action with the crime of transporting intoxicating liquor. On the same day the defendant, with his counsel, Grimstad & Brown and H. C. Crippen, appeared in open court, and, after being arraigned, entered a plea of not guilty. Thereafter the case was set down for trial on January 9, 1924, but by reason of the illness of the defendant two continuances were granted, and the same finally set down for trial on January 26, 1924. The record shows that during this time the defendant was confined in St. Vincent’s Hospital, in Billings, under the care of Dr, Hanley.
On the afternoon of January 19 Charles A. Taylor, an attorney, without having consulted either Grimstad & Brown or Mr. Crippen, appeared before Robert C. Stong, one of the judges of the above court, at his chambers in the courthouse, and arranged to withdraw defendant’s former plea of not guilty and to enter a plea of guilty instead. Thereupon Judge Stong, the county attorney, and Taylor repaired to the courtroom; Taylor entered his appearance as counsel for defendant, withdrew defendant’s plea of not guilty, entered a plea of guilty, waived time for sentence and demanded that sentence be pronounced at once. The court then pronounced its judgment that defendant pay a fine of $700 and be imprisoned in the county jail for a period of sixty days, and in default of payment of said fine that he be confined in the county jail of Yellowstone' county until the same was fully satisfied, not to exceed one day for each two dollars of said fine.
On January 24, 1924, the said attorney, Charles A. Taylor, made a motion to set aside the judgment entered on January 19 and to permit him to withdraw the plea of guilty so entered and to enter a plea of not guilty in lieu thereof. This motion was based upon an affidavit of the defendant, verified by him on January 21, which recited in substance that he had a conference with said Taylor at his room in the hospital on the afternoon of January 19, in which the charge pending against him was discussed, and as a result of which defendant authorized Taylor to appear in said case and change his plea from not guilty to guilty only upon the condition that the judge should agree to impose a penalty of not to exceed a fine of $300 and a jail sentence of not exceeding sixty days. This motion was heard by the court and denied on January 26.
Thereafter on February 1, 1924, defendant by his regularly employed counsel, Messrs. Grimstad & Brown, filed with the court a motion for leave to reopen the motion filed on January 24 for the purpose of permitting him to present further affidavits and evidence; that said judgment and sentence be set aside; that he be permitted to withdraw the plea of guilty and enter a plea of not guilty to the information filed against him. This motion was based upon all the records and files in the case, and upon the affidavits of Fred Dow, Steffie Dow, his wife, Charles A. Taylor and 0. King Grimstad.
Fred Dow’s affidavit sets out at greater detail the circumstances connected with his authorizing Taylor to appear for him in this action and the extent of his authority. He says that he was taken to the hospital prior to January 9, and had •been sick in bed under the care of a doctor ever since; that on January 19 Taylor came to see him at the hospital, and said that he (Taylor) could get a judgment or sentence in this ease of not to exceed $300 and sixty days in jail, with jail sentence suspended, if defendant would permit Taylor to see Judge Stong, the judge before whom the case was pending; that he told Taylor that Grimstad & Brown and H. 0. Grippen were his attorneys, and that nothing should be done without consulting them; that Taylor said it would not be necessary to see the other lawyers, but that he would go directly before the judge, and would be able to obtain such a judgment and sentence if he were authorized to enter a plea of guilty. Defendant further says that he had never before been under arrest, and was wholly unfamiliar with court procedure; that considering his physical condition he thought it better to enter a plea of guilty under the named conditions than to go through the trouble of a trial; that Taylor was authorized to enter a plea of guilty only upon those conditions; that he stated to defendant that he would see Judge Stong at once and report back to defendant what could be done; that defendant, during this time, on account of being confined to his bed, was unable to communicate with his regular counsel by telephone. Thereupon Taylor left defendant but went back to see him about 8 o’clock the same evening, and informed him that the judge would not accept such a plea, and would not give him such a sentence; that he then assumed that the matter was ended so far as Taylor was concerned; that he did not know of the fact that Taylor had entered a plea of guilty in the action until his wife, having read an account of the court proceeding in a newspaper, advised him of it on the following day. He further says that he has been advised by his counsel, Grimstad & Brown, that he has a good and meritorious defense to the action and that his motion and affidavit are not made for the purposes of delay but that justice may be done in the premises.
Mrs. Dow’s affidavit corroborates the statements made in her, husband’s affidavit. She says: “On January 19, 1924, Chas. A. Taylor came to the room of my husband in St. Vincent’s Hospital at Billings, Montana, and stated to him, in my presence, that, if my husband would change his plea of not guilty to guilty, the said Chas. A. Taylor could get the court to give him not more than sixty days, and to suspend the sentence, and fine him not more than $300, and that the said. Chas. A. Taylor would be glad to see the judge and see if this couldn’t be done, and that both myself and my husband thereupon informed him that if he could get such a sentence that my husband would be willing to change his plea of not guilty to guilty, but under no circumstances should he change his plea of not guilty to guilty except under those circumstances.”
Charles A. Taylor filed an affidavit in support of this motion, in which he said 'that in his talk with the defendant the latter mentioned a fine not to exceed $300 and a jail sentence not to exceed sixty days, and that his authority to change defendant’s plea of not guilty to guilty was limited to doing so if he could get such a sentence. The affidavit then relates at some length an account of Taylor’s interview with Judge Stong which culminated in the judgment and sentence against the defendant, which we do not consider material to a decision of the matters presented on this appeal.
The affidavit of 0. King Grimstad recites that he is a member of the firm of Grimstad & Brown, attorneys for the defendant; that he first learned of the entry of defendant’s plea of guilty on Sunday, December 20, by reading an account of it in the newspaper, and on said day was requested by defendant’s wife to call upon the defendant at the hospital; that he was requested by defendant to investigate the circumstances surrounding the entry of defendant’s plea of guilty, and did so; that he interviewTed Taylor, who stated to him that he would have the judgment and sentence set aside, and that he (Taylor) had the assurance of Judge Stong that such action would be taken; that on either the 21st or 22d of December he had an interview' with Judge Stong, Taylor and the county attorney at the courthouse in Billings, immediately following which, he also had a conversation with Judge Stong in the corridor of the courthouse, in which the judge advised him to make an application to have said judgment vacated; that later he received a copy of the motion made by Taylor to have said judgment set aside, etc., and that Taylor informed him that he had positive assurance from Judge Stong that said motion would be sustained and the defendant’s plea of guilty would be withdrawn and a plea of not guilty substituted therefor, and that such action would be had upon that day, and, relying upon these statements, he assumed that it had been done, and did not know anything to the contrary until Tuesday, January 29, and that he then communicated with Judge Stong, and the latter agreed to allow the matter to remain in statu quo until affiant could make further investigation of the facts, and he thereupon filed the last-mentioned motion.
There was no denial of the facts set forth in these affidavits.
After the filing of this motion, the county attorney filed a motion to strike the same, together with the supporting affidavits, from the files upon various grounds which need not be enumerated, since they are not urged by respondent on this appeal. These motions were presented to the court, and on February 6 an order was made and entered denying the defendant’s motion.
On February 7, 1924, the defendant, by his counsel, duly served and filed his notice of appeal to this court from said judgment made and entered on January 19, 1924,.and from the order denying his motion to set the same aside and the whole thereof.
Appellant’s first specification of error challenges the sufficiency of the information on the ground that it does not state facts constituting the offense sought to be charged in ordinary and concise language and in such a manner as to enable a person of common understanding to know what is intended, as required by section 11843; Revised Codes of 1921, for the reason that it does not state what kind of liquor was being transported; where it was being transported other than in Yellow stone county; the time of day when or the means by which the transportation was being made.
The information charges that the defendant at the specified time in Yellowstone county “did then and there, willfully, wrongfully, and unlawfully carry, convey, and transport intoxicating liquor.”
Section 11845 provides that an information must be direct and certain “as it regards * * #. (3) the particular cir-
cumstances of the offense charged, when they are necessary to constitute a complete offense.”
The statute under which this defendant was prosecuted makes it an offense to “transport” intoxicating liquor, but does not undertake a more particular or specific definition of the prohibited act. Neither the time of day, the means of conveyance, the particular brand of intoxicating liquor transported, nor the termini of the route over which it is carried are made constituent elements of a completed offense under the statute. Under the liberal rule of pleading in cases of this character announced in sections 11078 and 11111, Revised Codes of 1921, we are of opinion that the information states a public offense. If the defendant desired additional details he could have applied to the court for a bill of particulars. (See State v. Fredericks, 65 Mont. 25, 212 Pac. 495; State v. Griebel, 65 Mont. 390, 211 Pac. 331; State v. Jenkins, 66 Mont. 359, 213 Pac. 590.)
Appellant’s second assignment of error is: “The court erred in overruling defendant’s motion to set aside the judgment of conviction and to permit the defendant to change his plea of guilty to not guilty.”
Section 11907, Revised Codes of 1921, provides that: “There are four kinds of pleas to an indictment or information, a plea of 1. Guilty; 2. Not guilty; 3. A former judgment of conviction or acquittal; * * * 4. Once in jeopardy.”
Section 11908 provides: “Every plea must be oral, and entered upon the minutes of the court in substantially the following form: 1. If the defendant plead guilty: ‘The defend ant pleads that he is guilty of the offense charged. * * * ” There is no provision of the statute which authorizes the defendant in a criminal action to enter a conditional plea; the court has no authority to receive one, and the entry of such a plea is a nullity. (Wolfe v. State, 102 Ark. 295, Ann. Cas. 1914A, 448, 144 S. W. 208.)
Since an attorney at law is the agent of his client, the rules of law applicable to principal and agent are generally applicable to the relation of client and attorney. If the attorney acts within the scope of his authority, express or implied, the client is bound; if the attorney exceeds such authority the client is not bound. (3 Cal. Jur., p, 644, sec. 51; 1 Thornton on Attorneys at Law, pp. 351, 352.)
A careful examination of the affidavits submitted to the court in support of the defendant’s motion to set aside this judgment and to allow the plea of guilty entered by Taylor to be withdrawn and a plea of not guilty to be substituted therefor discloses that the authority which the defendant gave to Taylor was a conditional one; that is, he was authorized to withdraw the defendant’s former plea of not guilty and enter a plea of guilty only upon the condition that the court would agree to impose a penalty of not to" exceed sixty days’ imprisonment in the county jail and a fine not to exceed $300, with the jail sentence suspended. Under this arrangement Taylor was only authorized to say to the court: “The defendant withdraws his former plea of not guilty, and enters a plea of guilty only upon the express condition that the penalty to be imposed under this plea shall not exceed a fine of $300 and a jail sentence of sixty days, which jail sentence shall be suspended by the court.” If defendant had appeared in court and tendered a plea such as he authorized Taylor to enter, the court would have been obliged to decline to receive it as being wholly unauthorized. If he could not have entered the plea himself he could not lawfully authorize another to enter it for him. Since Taylor’s authority was limited to that specific plea, it follows that he was not authorized to enter any plea which the court could entertain. When he- assumed to •appear for the defendant and enter an unconditional plea of guilty he exceeded the authority which had been delegated to him. Under the provisions of section 8994, Revised Codes of 1921, upon these facts being established, the court should have summarily relieved the defendant from the consequences of Taylor’s unauthorized acts, and the failure to do so was error.
The foregoing conclusion renders it unnecessary to consider the other specifications of error.
For the reasons above set forth the judgment is reversed and the cause remanded to the district court of Yellowstone county, with directions to sustain defendant’s motion and allow him to withdraw the plea of guilty heretofore entered and substitute a plea of not guilty in lieu thereof.
Reversed and remanded.
Mr. Chief Justice Callaway and Associate Justices Galen and Holloway concur.
Mr. Justice Rankin, being disqualified, did not hear the argument and takes no part in the foregoing decision.
|
[
-39,
24,
44,
70,
-110,
-44,
-23,
-10,
-33,
18,
-1,
-16,
11,
-39,
38,
1,
-48,
-8,
34,
29,
-6,
-19,
-45,
-19,
8,
-36,
-47,
33,
5,
4,
44,
66,
45,
-12,
13,
44,
33,
-1,
24,
-6,
35,
0,
-50,
-25,
13,
-18,
-15,
-10,
-11,
-22,
15,
-67,
20,
-18,
50,
37,
3,
8,
-40,
39,
-13,
-38,
-35,
33,
28,
-47,
6,
0,
-6,
-30,
21,
11,
-11,
5,
21,
45,
3,
-21,
16,
51,
-68,
-6,
21,
25,
-19,
-24,
12,
-34,
28,
23,
56,
-26,
0,
9,
9,
-5,
-28,
-13,
-13,
-38,
-39,
-105,
-24,
59,
24,
26,
-33,
69,
-5,
30,
-20,
0,
39,
-10,
-10,
-105,
-15,
-6,
-10,
12,
31,
13,
43,
5,
-34,
-7,
13,
18,
55,
-28,
28,
12,
12,
-27,
4,
-14,
-65,
-7,
28,
3,
-20,
14,
-12,
19,
6,
14,
-3,
37,
-27,
55,
-21,
1,
47,
6,
14,
5,
21,
-24,
-22,
13,
0,
13,
14,
19,
10,
-16,
-19,
2,
-9,
-4,
-13,
30,
-41,
53,
48,
1,
-11,
-60,
-11,
34,
-43,
35,
31,
-25,
19,
-3,
14,
20,
5,
8,
-25,
26,
-19,
-20,
-40,
-26,
1,
-32,
16,
26,
0,
-16,
-33,
23,
-40,
-12,
-25,
42,
38,
-6,
-27,
-41,
45,
6,
-44,
15,
-60,
-18,
22,
-19,
-5,
-23,
-7,
34,
-11,
-11,
40,
34,
23,
-53,
-50,
113,
29,
-4,
32,
-12,
5,
-20,
-6,
6,
-23,
-50,
-45,
-27,
5,
47,
2,
-16,
-56,
-17,
12,
-47,
7,
35,
-28,
52,
70,
-42,
-15,
-22,
-20,
15,
30,
64,
-9,
-13,
-10,
-12,
37,
8,
17,
-25,
14,
-12,
-1,
-4,
-24,
40,
57,
60,
-2,
-57,
5,
25,
25,
-13,
-36,
37,
-31,
-33,
58,
-45,
-1,
-10,
37,
3,
29,
17,
-44,
-49,
-12,
-1,
-42,
41,
-17,
15,
-34,
34,
-31,
-49,
28,
-25,
-24,
5,
32,
-18,
1,
21,
8,
-58,
-50,
-19,
-24,
-7,
-36,
56,
5,
28,
-3,
-5,
14,
5,
-33,
12,
-21,
-11,
12,
22,
7,
22,
-19,
-12,
-3,
-24,
-110,
46,
9,
0,
-32,
-32,
-45,
-20,
45,
47,
-43,
18,
-26,
-31,
14,
-70,
1,
-37,
17,
25,
10,
-3,
-3,
-24,
6,
-13,
30,
4,
6,
-54,
-29,
-13,
47,
9,
-55,
2,
14,
-32,
15,
35,
6,
52,
-37,
-31,
-42,
3,
32,
41,
-4,
14,
-16,
5,
3,
0,
-8,
-61,
-27,
23,
73,
-6,
2,
-16,
4,
46,
25,
-6,
15,
-26,
-24,
-13,
61,
-3,
-2,
11,
-38,
-37,
28,
4,
13,
-3,
13,
-3,
51,
6,
-8,
-44,
31,
27,
17,
47,
1,
-4,
-19,
34,
27,
-42,
10,
-3,
34,
45,
54,
9,
8,
28,
19,
2,
-15,
1,
6,
10,
-20,
34,
26,
11,
1,
-38,
-4,
29,
-18,
-42,
-6,
33,
-6,
-60,
-13,
54,
-12,
9,
-3,
-41,
-48,
-13,
36,
-51,
-7,
-41,
3,
-23,
2,
31,
9,
-4,
-7,
-86,
-15,
24,
34,
14,
-52,
-15,
-45,
19,
-8,
-21,
-16,
5,
-30,
0,
-95,
26,
-18,
-32,
22,
25,
-18,
30,
56,
33,
-1,
-29,
23,
-32,
31,
-45,
6,
15,
15,
103,
9,
16,
-50,
-24,
0,
-45,
-21,
-38,
-38,
-25,
-33,
-33,
4,
-16,
44,
27,
21,
-23,
46,
-40,
12,
-7,
-25,
-17,
-12,
-11,
21,
7,
-6,
30,
37,
8,
-10,
-30,
-6,
-4,
-34,
30,
46,
-21,
-5,
-26,
-9,
-5,
-27,
-1,
18,
-52,
9,
52,
-34,
62,
19,
16,
-33,
10,
20,
18,
45,
30,
7,
19,
-22,
30,
26,
30,
-29,
14,
7,
33,
-2,
36,
-10,
24,
-4,
-6,
-27,
21,
-43,
-27,
47,
28,
26,
37,
-13,
0,
6,
14,
4,
51,
32,
-4,
6,
47,
-7,
-23,
-34,
35,
-43,
-41,
56,
24,
22,
-64,
-79,
10,
-11,
2,
-55,
-17,
14,
14,
-9,
51,
7,
45,
-58,
25,
1,
37,
35,
-17,
16,
33,
0,
-38,
-24,
-13,
18,
4,
-19,
-8,
-18,
1,
69,
2,
37,
-39,
34,
79,
-65,
23,
-37,
2,
36,
26,
28,
73,
7,
-23,
-20,
-33,
-39,
-63,
36,
1,
46,
1,
31,
18,
17,
-16,
-33,
-23,
-21,
23,
26,
21,
-23,
62,
-6,
66,
13,
37,
19,
-30,
-21,
-5,
1,
-6,
56,
-16,
-23,
17,
-5,
-39,
-24,
-40,
20,
29,
-40,
21,
2,
9,
16,
20,
-57,
5,
-55,
-61,
-6,
55,
72,
8,
-14,
23,
15,
-4,
25,
-13,
11,
25,
24,
11,
-23,
16,
21,
33,
-21,
-28,
-37,
34,
26,
3,
23,
17,
-8,
-15,
26,
40,
45,
6,
-14,
-9,
45,
-33,
-67,
-27,
23,
29,
-38,
23,
-52,
40,
3,
-11,
-11,
-3,
15,
-1,
16,
-40,
-3,
20,
-23,
1,
-23,
6,
8,
-23,
-44,
-59,
-26,
-9,
8,
72,
21,
5,
-18,
-48,
1,
4,
-33,
-22,
-4,
-17,
-58,
25,
16,
14,
44,
48,
-44,
14,
22,
31,
-12,
35,
-31,
53,
54,
-19,
-27,
-78,
-15,
-30,
-11,
-17,
-28,
-6,
11,
16,
0,
-14,
-37,
15,
-36,
-5,
-5,
20,
18,
-35,
40,
-4,
17,
-19,
-21,
2,
20,
-5,
18,
-6,
4,
15,
47,
-31,
-2,
22,
12,
0,
-41,
-24,
-68,
26,
48,
-46,
18,
50,
-49,
-41,
-23,
-18,
6,
-1,
35,
-39,
-49,
37,
-24,
0,
36,
0,
-51,
40,
16,
-25,
41,
-30,
7,
-67,
9,
-1,
34,
9,
-29,
-50,
30,
17,
-10,
-14,
-11,
19,
-17,
-13,
0,
16,
14,
-8,
22,
-19,
17,
30,
-25,
-78,
24,
18,
27,
-22,
-11,
-9,
-37,
27,
-27,
24,
-61,
-5,
34,
-6,
0,
40,
-11,
46,
-8,
46,
-26,
17,
-27,
39,
-31,
5,
-25,
-61,
-49,
5,
34,
-9,
30,
-11,
-35,
13,
16,
27,
7,
41,
2,
-57,
13,
3,
-2,
47,
-25,
23,
-11,
-44,
26,
1,
57,
31,
-38,
-2,
8,
0,
-61,
67,
-13,
-15,
57,
16,
19,
7,
-26,
9,
24,
30,
40,
-9,
32,
0,
18,
16,
-20,
-28,
16,
-19,
7,
35,
-25,
25,
0,
1,
-37,
23,
14,
28,
31,
-17,
-40,
-44,
16,
-22,
5,
8,
7,
-23,
-34,
7,
-13,
9,
11,
-36,
-48,
-56,
-60,
16,
31,
27,
-13,
-5,
-25,
-8,
9,
17
] |
MB. JUSTICE GALEN
delivered the opinion of the court.
This is an action in injunction to restrain the defendants from removing the county seat or their offices from the town of Poplar to that of Wolf Point. The individual defendants named comprise the board of county commissioners and other officers of Boosevelt county. The case involves the location of a permanent county seat growing out of an election held November 7, 1922, whereat the towns of Poplar and Wolf Point were contenders for the county seat of Boosevelt county. Poplar had been the temporary county seat from November 2, 1920. On the face of the election returns Wolf Point won by a majority of 192 votes and was duly declared to have been selected as the site of the permanent county seat. Misconduct on the part of certain of the judges of election, illegal voting, corrupt practices and fraud in several voting precincts are charged.
Upon the filing of plaintiff’s complaint Judge C. E. Comer issued. a temporary restraining order enjoining the removal or attempted removal of the county seat from Poplar to Wolf Point. Cause, if any existing, was required to be shown, by the defendants in the action before Judge John J, Greene why the injunction should not be continued until final judgment on the merits. A hearing was had pursuant to this order before Judge Greene. Oral testimony was introduced, and at the conclusion of the hearing the court refused to vacate the temporary restraining order and ordered the issuance of an injunction pendente lite. Appeal was prosecuted to this court by one of the defendants, George Leeson. Upon such appeal we held that the issuance of a temporary injunction is largely a matter of discretion on the part of the district judge and in the absence of a showing of abuse thereof refused to interfere therewith. (Atkinson v. Roosevelt County, 66 Mont. 411, 214 Pac. 74.)
Answer was made and filed by certain of the defendants, and R. J. Moore, a resident taxpayer and elector of the town of Wolf Point, asked and was granted leave to intervene in the action. Thereupon he filed a complaint in intervention wherein he traversed the material allegations of plaintiff’s complaint, alleged affirmative matter and prayed that the injunction be dissolved and Wolf Point declared to be the permanent county seat. Issue having been joined by reply made to the answer of the defendants and the complaint in intervention, the matter came on regularly for trial on the merits before Honorable George A. Horkan, Judge of the fifteenth judicial district, without a jury. Subsequently, on February 11, 1924, Judge Horkan filed with the clerk of the court his findings of fact and conclusions of law in the cause, which are in favor of the defendants, whereby the injunction was ordered dissolved. On February 13, 1924, a judgment was regularly signed by Judge Horkan vacating and setting aside the injunction pendente lite and decreeing that the county seat of Roosevelt county be removed from the town of Poplar to that of Wolf Point. The judgment was regularly filed and entered February 15, 1924. On February 13, 1924, the plaintiff filed his notice of appeal to this court from the order dissolving the injunction and on February 19, 1924, perfected an appeal from the judgment. The appeal from the order was accomplished on February 22, 1924. By order of this court these appeals were consolidated and permission granted to file a single record. The record comprises ten large volumes, and the errors assigned by plaintiff’s learned counsel number 155.
By plaintiff’s assignments of error on this appeal the findings of fact and conclusions of law made by the trial court are vigorously attacked upon the following grounds, to-wit:
(1) The recognition of votes of electors in certain of the precincts wherein such electors did not reside; (2) violations of the Corrupt Practices Act in certain of the precincts sufficient to nullify the election held in such precincts; (3) the holding of the election in precinct No„ 31, at Cogswell’s store, a trading post, contrary to the provisions of section 552, Revised Codes of 1921; (4) giving recognition to the votes cast at Bainville, precinct No. 4, whereat there was, for an appreciable length of time, but a minority of the judges of the election present; (5) illegal recognition given to the election held at Wolf Point in precincts Nos. 23 and 24, notwithstanding there was proof of willful misconduct on the part of the judges of election in knowingly receiving illegal votes; (6) unlawfully sustaining the election held at Bainville in precincts 2, 3 and 4, wherein illegal votes were accepted in favor of Wolf Point and legal votes in favor of Poplar rejected; (7) error in the admission and rejection of evidence; (8) error in refusing to rule on the admission of evidence, the court’s rulings having been reserved at the time the proof was admitted; (9) that the court’s findings are contrary to the evidence; (10) that the court was in error in holding the plaintiff to be estopped to challenge the legality of the election held in precinct No. 31 at Cogswell’s store, by failure to challenge the same prior to the canvassing of the returns.
At the outset we are confronted with motions made by the defendants and the intervener to strike the record on appeal from the files and to dismiss both appeals. Admittedly there is no bill of exceptions contained in the record. The judgment-roll is properly before us, and question arises as to the propriety of considering the testimony as presented. A transcript of the stenographer’s notes of the evidence introduced at the trial and of all of the original exhibits has been filed in this court. Appellant’s counsel justifies the record by reference to section 9745, Revised Codes of 1921, which reads in part as follows: “On an appeal from an order, except an order granting a new trial, the appellant must furnish the court with a copy of the notice of appeal of [from] the judgment or order appealed from, and of all papers and evidence used on the hearing in the court below. Such papers, files, and evidence, when certified by the clerk of the court to be correct and accompanied by a certificate of the judge that such records have been used at the hearing in the district court, may be considered on appeal without further identification.” The court stenographer has certified that the transcript contains a true, correct and complete record of the testimony and proceedings in the case, as did also the judge and the clerk of the court. Bight volumes thereof are devoted to testimony introduced at the trial running from page 1 to 3Ó98, inclusive. Volume 9 is certified to contain true and correct copies of. all of the exhibits introduced at the trial of the cause. Volume 10 is certified by the presiding judge and the clerk of the court to constitute the judgment-roll.
Are we in position, in view of the character of the record ■before us, to consider and pass upon the several assignments of error grouped as above indicated? We are satisfied that as respects the appeal from the judgment we are not at liberty so to do, and, as to the appeal from the order, it is necessary for us to determine from an examination of the record whether there was sufficient testimony before the court to warrant its order vacating the injunction. The transcript may be used for the latter purpose since the statute permits it. (Sec. 9745.) It may be that the record is unfair to the defendants, since the testimony was not settled in a bill of exceptions, but, as the statute allows an appeal from such an order, on a record of the character here presented, we are constrained to give recognition to it. But in connection with the appeal from the judgment it serves no useful or other purpose. By section 9390, Revised Codes of 1921, the party appealing from a final judgment, if he desires to have the proceedings at the trial reviewed, must have the same incorporated in a bill of exceptions. And such have been the oft-repeated decisions of this court, most recently in the cases of Montana Mausoleum Co. v. Fava, 66 Mont. 128, 212 Pac. 515; In re Bitter Root Irr. Dist., 67 Mont. 436, 218 Pac. 945; Midland Nat. Bank v. Hegna, 68 Mont. 544, 219 Pac. 628; Weibush v. Jefferson Canal Co., 68 Mont. 586, 220 Pac. 99. And where requisite papers are not furnished on the appeal it may be dismissed. (See. 9747.)
The vote as canvassed and declared by the board of county canvassers is 2,003 in favor of Wolf Point and 1,811 in favor of Poplar, a majority in favor of Wolf Point of 192. The court found that there were 1,987 legal votes cast in favor of Wolf Point and 1,790 legal votes for Poplar, a majority of 197 in favor of Wolf Point.
In the district court the plaintiff assumed the burden of proving the invalidity of the election on the grounds upon which his complaint is predicated in the precincts in which the election is attacked, by a preponderance of the evidence; and on appeal he assumed the burden of showing that the evidence clearly preponderates against the findings of the trial court. We enter upon a consideration of this appeal, indulging every presumption in favor of the findings and judgment of the court, as is our duty; and. if substantial conflict exists in the evidence on what are deemed the determinative questions involved, we will not interfere with the findings made by the trial court. (Bordeaux v. Bordeaux, 32 Mont. 159, 80 Pac. 6; Finlen v. Heinze, 32 Mont. 354, 80 Pae. 918; Delmoe v. Long, 35 Mont. 139, 88 Pac. 778; Watkins v. Watkins, 39 Mont. 367, 102 Pac. 860, and many other eases.)
“To set aside the returns of an election is one thing; to set aside the election itself is another and very different thing. The return from.a given precinct being set aside, the duty still remains to let the election stand, and to ascertain from other evidence the true state of the vote. The return is only to be set aside # * * when it is so tainted with fraud, or with the misconduct of the election officers, that the truth cannot be deduced from it. The election is only to be set aside when it is impossible from any evidence within reach to ascertain the true result — when neither from the returns nor from other proof, nor from altogether, can the truth be determined. It is important to keep this distinction in mind.” (McCrary on Elections, 4th ed., sec. 519.)
The burden not only rested upon the plaintiff to prove illegal votes cast, but to show how they were cast, for if the latter showing is not made by the evidence, how is a court to know what deductions to make from the votes cast? It would be manifestly unjust and unfair to disfranchise 100 or more lawful voters in a precinct because of ten illegal votes cast,' simply because the court is unable to determine for which candidate the illegal votes were cast; and in our opinion the apportionment rule given recognition in the case of Heyfron v. Mahoney, 9 Mont. 497, 18 Am. St. Rep. 757, 24 Pac. 93, is not properly applicable.
Mr. Paine in his work on Elections (page 433) says: “The party who demands the exclusion of votes actually cast and canvassed for his opponent, on the ground of their illegality, must show, not only that illegal votes were cast, but also that they were canvassed for his competitor. If they were cast for the party making the demand, they are not to be subtracted from the vote of his opponent, upon mere proof of their illegality. That would be double robbery, and yet that is a possible, not to say, probable, result of the rule to permit a party to make mere proof of the illegality of votes cast, and stop there, without showing for whom they were cast, or canvassed, and demand the apportionment of the fraud among the candidates.”
In Jaycox v. Varnum, 39 Idaho, 78, 226 Pac. 285, the supreme court of Idaho held that the rule of apportionment is purely arbitrary, decides nothing, and is justly subject to the criticism given it by Mr. Paine in his work on Elections. This accords with our views.
It was incumbent on the plaintiff to show by a preponderance of the evidence the number of illegal votes, received by Wolf Point in each precinct in which illegal voting was charged, and that number must be sufficient, if rejected, to change the result. Where the ballots cast by illegal voters are capable of identification or where satisfactory proof is given as to how the votes were cast, proper deductions should be made by the court so as to determine the correct result. But where votes are shown to have been cast illegally in a given precinct, neither the entire election nor that of a precinct should be annulled, if it may be by the court avoided under the facts. Each case, however, must be determined upon its own peculiar facts.
The election must be sustained unless votes cast for a candidate are found to be illegal in number sufficient to change the final result. The court has made its findings based on evidence before it, and has thereby excluded as illegal certain votes cast in several of the election precincts in favor of Poplar, as well as votes in favor of Wolf Point.. By the court’s findings after holding certain votes illegal as to each of the contestants, the majority in favor of Wolf Point was increased five votes. As to illegal votes cast, the court found, based upon sufficient evidence before it, that the plaintiff failed to prove by competent evidence that a sufficient number of illegal votes were cast in favor of Wolf Point at the election, which, after deducting illegal votes cast for Poplar, would change the result of the election, and that therefore the plaintiff failed to prove his case.
In precincts numbered 2, 3, 4, 25 and. 31 the plaintiff urged as ground for the disqualification of voters that certain persons named had not been residents of the precinct in which they voted for thirty days immediately preceding the election, or for other causes were not entitled to> vote. There were thirty-five such voters in these precincts. The court found five had removed from the county prior to the election and were not entitled to vote, that four were not citizens and therefore their votes illegal, and that a vote cast in precinct 4 was illegal because the elector-took a sample ballot into the election booth with her. Of these ten votes it was found that the last mentioned constituted a ballot in favor of Wolf Point, and that as to the other nine there was no proof as to whether they were cast in favor of Wolf Point or Poplar. In precinct 25 Joseph C. Boyer was duly registered as a voter but by mistake of the county clerk his name appears in the check register as Joseph S. Boyer. He was a resident of the precinct, and the court held his vote legal. Fourteen were held entitled to vote because registered in the particular precinct in -Which they voted, although they had removed their residence to another precinct before the election, and generally the court made the following pertinent finding: “The court finds as a court of equity that his [the plaintiff’s] hands are not any cleaner than the hands of the partisans of Wolf Point, and that in a court of equity he is not entitled to benefit by the alleged misconduct on the part of the partisans of Wolf Point, the evidence conclusively showing that 'he and other partisans of Poplar committed or caused to be committed like acts.”
As to those voters who had removed from the precincts in which they voted prior to the election, it was stipulated by counsel during the trial that they were duly registered in the precinct wherein they voted, and did not cast a vote in any other precinct; that they were citizens of the United States and had been residents of the state for more than one year and of the county more than thirty days prior to the election, although they had removed from the precinct in which they voted prior to the election. The court found as to them that they were legally qualified to vote. Whether the court was correct in its decision on this question is not necessary to be decided, for these votes may be all eliminated as illegal and deducted from Wolf Point’s majority and the result of the election remain unchanged.
In precinct No. 23 there were four impersonations of registered voters and votes east therein by persons not entitled to vote, and in precinct No. 24 one Joe Mclntee was given a ballot by the judges of election and signed the check register on a line upon which appeared a record of the registration of his father, John Mclntee,.who died August 22, 1922. It appears, however, that Joe Mclntee acted in good faith, under a belief that he had been duly registered and was entitled to vote, and that the judges acted in good faith and did not discover the mistake in the identity of the voter at the time he called for a ballot, signed the cheek register, and voted. The court found all five of these votes to have been cast in favor of Wolf Point and that they were illegal. Accordingly they were excluded from the court’s computation of the correct total vote cast for Wolf Point. As to these five illegal votes the court found specifically as to the four cast in precinct No. 23 that the judges of election were not guilty of fraud, and that there was nothing to indicate that any of the persons impersonating registered electors in voting were other than the registered elector, and that the election was honestly and fairly Held. With respect to precinct No. 4, it was found by the court that permitting Joe Mclntee to vote in the name of John Mclntee was an inadvertence on the part of the judges of election and a mistake on the part of Joe Mclntee; that there was no fraud connected with the casting of his vote on the part of the judges, or clerks or tbe voter, nor was there intention on the part of the judges, the clerks or the voter, that an illegal vote should be thus east. There is ample evidence to support these findings, and they must be sustained, in view of the further finding made by the court, based on evidence, as to each and all of these precincts, in substance: That no mistakes or irregularities on the part of any judge or clerk of election complained of by the plaintiff were committed pursuant to any fraudulent act or purpose on the part of any elector or with any design or intent on the part of the judges or clerks of election or any elector to violate any law relating to elections, and did not in any respect affect the result of the. election.
This disposes of group assignments of error 1, 5 and 6.
Group assignments of error 3, 4 and 10 involve questions respecting irregularities in holding the election in precincts numbered 4 and 31. In our opinion, there is no merit in these assignments. Electors will not be disfranchised simply because of the failure of officers charged with the conduct of elections to perform the duties imposed upon them by law. We stated the correct rule applicable in the case of Thompson v. Chapin, 64 Mont. 376, 209 Pac. 1060, which we now reaffirm, as follows: “The general rule laid down by this court, which appears to be- universally recognized, is that the right of our citizens to vote at an election cannot be defeated because of the failure of election officials to perform an administrative duty in the conduct of the election, specifically imposed upon such officials. (State ex rel. Brooks v. Fransham, 19 Mont. 273, 48 Pac. 1; Lane v. Bailey, 29 Mont. 548, 75 Pac. 191; Carwile v. Jones, 38 Mont. 590, 101 Pac. 153; Stephens v. Nacey, 47 Mont. 479, 133 Pac. 361; Harrington v. Crichton, 53 Mont. 388, 164 Pac. 537.) * * *
“Ignorance, inadvertence, or even intentional wrong on the part of the judges of election should not be permitted, in the absence of fraud or collusion, to disfranchise an elector, much less an entire precinct. While it is true that irregularities invite a concealed fraud, yet, where the fault lies with the elec tion officials rather than the elector, they should be disregarded, unless the statute expressly declares that the same is fatal to the election, or unless they are such as in themselves change or render doubtful the result of the election. The voter should not be deprived of his right to vote nor the successful candidate suffer, if by any reasonable interpretation of the statutes governing elections it can be prevented.”
As to precinct No. 31, there was a total of 152 votes cast, five being in favor of Poplar and 147 for Wolf Point. Were the total vote in this precinct to be excluded, the final result of the election would remain the same; however, because of the votes challenged in other precincts, we have concluded to give this assignment more than passing notice. Were the election in this precinct found to be illegal, and enough votes in other precincts also found to be illegal, the aggregate might be sufficient to change the result of the election. Counsel’s contention is that the election held in this precinct is void, because an Indian trading post was the polling place.
The statute is directory as respects the duty of the board of county commissioners in establishing election precincts and does not invalidate an election or disfranchise lawful voters after the fact, simply because of the failure of the board to heed its directions. The statute reads: “No officer of this state * * * shall establish a voting precinct within or at the premises of any Indian agency or trading post.” (See. 552, Rev. Codes 1921.)
It will be noted that the statute in question relates to the establishment of election precincts, whereas, plaintiff’s objection to the election held at Cogswell’s store is because of the polling place designated by the board of county eommissieners. There is a very clear distinction drawn in the statutes between an election precinct and a polling place (secs. 545, 546, 548, 550 and 551, Rev. Codes 1921), but we are not called upon in this case to differentiate them. The court found, based upon evidence, that this precinct had been created' 'by the board of county commissioners and Cogswell’s store designated as the polling place; that, although the land embraced in the precinct was formerly a part of the Fort Peck Indian Reservation, that reservation was by the government thrown open for settlement long prior to the date of the creation of Roosevelt county, and that prior to the year 1908', Indian title to the land upon which Cogswell’s store was situated had been extinguished; that after the opening of the reservation to settlement the land within this precinct was either allotted to the Indians, or made subject to entry by any person who might apply therefor, and that much of the land was patented prior to November 7, 1922, and was subject to taxation in Roosevelt county; that all electors entitled to vote in the precinct, who desired to vote, were afforded no other place than Cogswell’s store at which to cast their ballots, and that no person in the precinct was deprived of his vote by reason of the polling place being established at Cogswell’s store, and every qualified elector was notified by the county clerk prior to the election that he must cast his ballot in precinct 31 at Cogswell’s store; that until this action was commenced no one 'had ever questioned the validity of the establishment of the precinct or the designation of Cogswell’s store as a polling place, and that all electors in the precinct were lulled into the belief that their votes were legally cast by the failure of any person to question the right of anyone to vote in that precinct at the polling place designated; that the election was honestly and fairly held in that precinct, and the votes cast thereat correctly canvassed, counted and returned; and that such returns are free from fraud, material irregularities or errors, and are unimpeached.
Group assignment of error No. 2 is based upon the alleged violation of the Corrupt Practices Act at Bainville, in precincts 2, 3 and 4. The total vote cast in these three precincts was 375, divided as follows:
2. 3. 4.
Poplar ...........16 Poplar ........... 9 Poplar ........... 26
Wolf Point.......85 Wolf Point....... 66 Wolf Point.......173
In his complaint the plaintiff alleged that by reason of corrupt practices sixty-one persons who voted in precinct 2, forty-three in precinct 3 and eighty-one in precinct 4 were unlawfully induced to vote for Wolf Point. During the course of the trial and after the plaintiff had rested, the court, either upon the stipulation of counsel or motions made by the defendants, struck from the plaintiff’s complaint the names of all persons alleged to have been influenced to vote by corrupt practices except thirty in precinct 2, thirteen in precinct 3 and seventeen in precinct 4. Of such action by the court no complaint is made by the plaintiff. The ground of attack against the votes cast in these precincts' is that a free lunch was served and a free dance given ask Bainville four days before the election, the expenses incident to which were paid by partisans of Wolf Point, and that automobiles were used to convey electors living in these precincts to the polls, the expense incident to which was paid by the partisans of Wolf Point. It appears that on the night of November 3, 1922, a meeting was held in the Bluebird Theater at Bainville, at which speeches were made in favor of Wolf Point; a lunch consisting of sandwiches, cake and coffee was served free of charge, and dancing was participated in by some residents of these precincts who attended the meeting. The lunch was served by Mrs. Mary Provost, president of the Catholic Altar Society, with a view of securing money with which to pay debts of the Catholic church, and it was paid for by W. L. Young, one of the defendants in this action, a partisan of Wolf Point.
For two or three days preceding the election and a part of election day a severe snow and rain storm had raged in the vicinity of Bainville, making it difficult to travel. A number of residents of Bainville furnished their automobiles in order to aid electors to get to the polls, and it was agreed that the people of Bainville would donate sufficient funds to pay for the gasoline and oil used by such automobiles; the owners being required to drive their own cars or furnish drivers therefor. There were at least twenty automobiles and drivers so furnished, and the expense incident thereto was paid by William Powers, a long-time resident of Bainville and a partisan of Wolf Point. In hauling electors to the polls no discrimination was made as to persons known to favor one town or the other in the county seat election.
Whether or not the Corrupt Practices Act (secs. 10773 to 10820, inclusive, Rev. Codes 1921) applies to county seat elections is not necessary to decide, as this is a suit in equity, and the district court has found on ample evidence that the plaintiff has failed to prove corruption or fraud in the election held in the several precincts involved, that the sandwiches, cake and coffee were not served with the hope or intent to influence any person or persons to vote for Wolf Point and that none of the persons partaking thereof were in any manner thereby influenced to vote for Wolf Point, and further that those participating in such lunch did not accept or receive the same with the understanding or belief that it was furnished with the intent or hope of influencing them to vote for Wolf Point. Further, it was found by the court, from evidence before it, that the oil, gasoline, automobile equipment and repairs furnished free to the owners of automobiles and their drivers in connection with the use of automobiles to haul electors to the polls were not furnished with the intent to influence the persons carried to the polls to vote for Wolf Point, and that such electors were not thereby so influenced, and that the general purpose in furnishing such transportation to electors was to enable voters generally to reach the polls in order to express their choice for the permanent county seat of Roosevelt county; and the general concluding finding of the court as to each of these precincts is substantially as follows: That the election held in the precinct was fairly and honestly conducted; that the judges of election performed their duties honestly and in good faith; that the votes cast were correctly canvassed, counted and returned, and express the will of the respective electors upon the question of the selection of a per manent county seat; that no mistakes or irregularities on the part of any judge or clerk of election complained of by the plaintiff were committed pursuant to any fraudulent act or purpose on the part of any elector, or with any design or intent on the part of the judges or clerks of election or of any elector to violate any law relating to elections, and did not in any respect affect the result of the election; and that the returns of the precinct are free from fraud, material irregularities or errors, are unimpeached and correctly show the result of the election held in the precinct as found by the court as to the number of votes east in favor of Wolf Point, and those in support of Poplar. Since there was ample evidence to sustain the court’s findings, they must be upheld on this appeal.
Groups of error 7 and 8, assigned by the plaintiff, relate to the admission and rejection of evidence by the trial court. We have carefully considered these and find them to be without merit. Plaintiff’s rights were not prejudiced by the court’s rulings on the admissibility of testimony; at any rate, he has failed to point out wherein he suffered prejudice. It is commanded by statute that the court shall disregard any error which does not affect the substantial rights of the parties. (Sec. 9191, Rev. Codes 1921.) The statute is imperative in its mandates and must be heeded. (Kipp v. Burton, 29 Mont. 96, 101 Am. St. Rep. 544, 63 L. R. A. 325, 74 Pac. 85.) The contention that the court erred in reserving its rulings on the admission of evidence at the time testimony was introduced is of no avail to the plaintiff in avoidance of the court’s order setting aside the injunction. This is an equity case, and whether incompetent evidence was admitted by the court in given instances or rulings were by the court reserved on the admissibility of testimony, the presumption is that the court in making its order considered only the competent evidence before it. (King v. Pony Gold Min. Co., 28 Mont. 74, 72 Pac. 309; State ex rel. Rankin v. Martin, 68 Mont. 392, 219 Pac. 632.)
Finally, it is plaintiff’s contention that the court’s findings are contrary to the evidence. The evidence was sufficient to justify the court in making its order dissolving the injunction pendente lite; and, having satisfied ourselves of this fact, we need go no further in consideration of the several specific findings made by the court.
This case having been twice before us on appeal, we now feel that we are thoroughly conversant with the facts and the law applicable. The expressed will of a majority of the electors of Roosevelt county in the selection of a permanent county seat has been so long delayed because of this litigation, it is ordered that a remittitur issue forthwith.
The judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Callaway, Associate Justices Holloway and Stark and Honorable A. J. Horsky, District Judge, sitting in place of Mr. Justice Cooper, disqualified, concur.
|
[
-45,
17,
28,
49,
-38,
3,
-15,
-28,
-36,
-47,
-20,
-24,
-66,
65,
52,
-9,
-19,
-29,
25,
2,
-46,
-42,
36,
-50,
3,
2,
-115,
-16,
-9,
4,
37,
-17,
19,
44,
36,
-16,
-56,
19,
-8,
-49,
58,
-39,
-27,
-44,
49,
58,
-38,
49,
-23,
-60,
-21,
41,
-30,
22,
-66,
7,
-18,
-8,
7,
5,
-9,
3,
-9,
13,
3,
-16,
35,
15,
-9,
47,
18,
-92,
-17,
-66,
33,
40,
-69,
13,
-39,
72,
-13,
44,
-3,
0,
-18,
3,
-23,
45,
-52,
99,
26,
38,
-2,
25,
29,
32,
-29,
6,
-15,
-1,
14,
-4,
-29,
19,
9,
39,
-18,
58,
1,
-29,
-32,
19,
-35,
4,
6,
-6,
0,
-17,
35,
25,
75,
18,
18,
42,
-13,
64,
-36,
52,
39,
-64,
-28,
50,
89,
18,
28,
17,
0,
-43,
15,
3,
25,
-15,
-27,
19,
9,
-11,
-2,
24,
-1,
34,
-27,
36,
36,
7,
-21,
-16,
65,
5,
19,
15,
24,
35,
-3,
-4,
-59,
-69,
-22,
36,
-32,
21,
36,
24,
-18,
10,
-18,
-43,
-74,
-16,
-7,
26,
21,
-16,
20,
-14,
12,
-35,
17,
-1,
60,
34,
57,
2,
70,
-79,
-17,
-53,
-49,
37,
-36,
25,
42,
-56,
9,
4,
-36,
-48,
32,
-19,
15,
57,
-78,
-70,
18,
-24,
38,
34,
-42,
-16,
32,
-20,
61,
8,
6,
29,
-22,
21,
-2,
23,
18,
-19,
3,
23,
10,
53,
-21,
-8,
-22,
-14,
-23,
7,
0,
-9,
64,
46,
-33,
10,
2,
31,
-13,
42,
9,
-16,
-49,
19,
-12,
80,
-19,
-17,
3,
32,
22,
1,
-2,
32,
3,
0,
-1,
6,
18,
-5,
7,
4,
75,
-6,
-7,
13,
20,
-65,
30,
-20,
-22,
29,
18,
7,
60,
33,
14,
13,
3,
-47,
-83,
8,
-40,
28,
-13,
43,
27,
-56,
59,
-41,
-61,
42,
-19,
22,
-20,
-7,
-34,
17,
17,
12,
-14,
30,
-16,
7,
5,
59,
4,
126,
-10,
2,
24,
54,
-42,
7,
-3,
59,
-5,
-25,
-1,
-29,
10,
-33,
-12,
32,
-15,
-9,
-28,
5,
0,
-25,
58,
-15,
16,
14,
-21,
16,
-35,
10,
-14,
-6,
-19,
-29,
4,
0,
-83,
-23,
-44,
-2,
32,
-28,
-8,
9,
-34,
-20,
11,
-58,
17,
19,
10,
-88,
-12,
50,
20,
-51,
48,
21,
-17,
-36,
-26,
18,
14,
9,
10,
-35,
23,
55,
-20,
-43,
10,
-39,
-23,
-6,
-50,
70,
-3,
36,
11,
-74,
-4,
-63,
7,
-10,
-47,
-19,
-25,
72,
-46,
33,
38,
13,
72,
-62,
14,
-67,
39,
-1,
-59,
18,
55,
-35,
31,
45,
-1,
22,
7,
-6,
11,
-13,
4,
-33,
-37,
31,
-67,
20,
32,
74,
0,
41,
21,
14,
35,
0,
16,
-30,
-4,
18,
-26,
67,
12,
-18,
-33,
78,
40,
-9,
4,
13,
45,
-4,
-17,
-33,
10,
51,
-50,
-7,
-10,
37,
-45,
23,
-55,
31,
-26,
69,
9,
-34,
-21,
-18,
-12,
45,
-7,
-26,
28,
-51,
21,
5,
-25,
-1,
50,
5,
-33,
8,
16,
-20,
83,
16,
11,
-29,
8,
37,
36,
65,
9,
8,
-33,
-29,
-5,
-15,
-17,
41,
16,
-13,
68,
-41,
-16,
32,
20,
-24,
-6,
-8,
31,
15,
-5,
-14,
-5,
-71,
-51,
53,
30,
-19,
0,
-17,
-28,
3,
-40,
73,
-15,
51,
16,
2,
-41,
-13,
92,
-21,
29,
17,
20,
-48,
-7,
-42,
42,
-1,
-29,
9,
-108,
-45,
-10,
9,
-83,
-68,
3,
-15,
16,
-10,
-27,
4,
51,
-11,
-62,
6,
15,
-26,
-2,
-2,
-8,
-8,
26,
19,
-59,
-80,
-15,
19,
-27,
-33,
-42,
12,
42,
-13,
0,
-31,
-44,
45,
82,
-17,
-33,
62,
9,
23,
-47,
89,
-44,
-26,
18,
36,
17,
17,
-9,
-63,
-7,
30,
33,
59,
-50,
-6,
1,
8,
-5,
39,
11,
41,
-12,
33,
41,
5,
0,
32,
-6,
-67,
-31,
-43,
-41,
24,
-2,
-17,
11,
12,
-17,
-6,
15,
22,
33,
-27,
17,
-40,
-14,
-42,
1,
63,
9,
-48,
-11,
38,
-24,
3,
-21,
-10,
-29,
22,
-77,
-17,
60,
-2,
2,
-7,
-32,
-21,
-60,
-71,
-34,
-46,
6,
-46,
0,
19,
-32,
-53,
-96,
-22,
61,
43,
-20,
83,
77,
62,
-14,
2,
42,
-71,
57,
30,
-43,
-18,
19,
40,
-40,
-31,
13,
-1,
-59,
-30,
-3,
-16,
46,
16,
7,
-10,
-78,
25,
74,
0,
-9,
4,
23,
7,
-53,
21,
1,
-10,
53,
-35,
6,
66,
-60,
9,
-43,
2,
-14,
2,
8,
-25,
28,
32,
33,
27,
-30,
15,
-44,
5,
-1,
44,
-19,
-1,
-30,
-88,
-45,
-12,
23,
-2,
72,
9,
-50,
-71,
6,
-46,
36,
-28,
-23,
-17,
26,
0,
-63,
13,
55,
-27,
-37,
-3,
12,
9,
6,
-37,
-27,
0,
45,
-26,
-88,
-25,
27,
-26,
12,
-81,
-41,
11,
8,
-4,
7,
-50,
29,
12,
42,
-12,
-17,
-41,
-19,
-40,
-40,
-72,
-31,
16,
30,
45,
51,
74,
77,
49,
-6,
29,
-44,
22,
-12,
31,
-35,
11,
-48,
21,
48,
-22,
63,
-78,
55,
34,
-23,
-35,
-7,
-1,
31,
-2,
34,
-22,
16,
-72,
-25,
-23,
59,
37,
-8,
-86,
40,
-47,
11,
28,
6,
27,
-8,
17,
4,
-56,
8,
-4,
21,
17,
-34,
5,
-35,
6,
46,
-30,
-48,
20,
3,
-17,
-3,
20,
2,
-41,
35,
-35,
-6,
-5,
-13,
-15,
-30,
40,
50,
-6,
8,
42,
-15,
-8,
18,
9,
5,
-47,
-51,
25,
59,
8,
0,
-52,
19,
-17,
-18,
35,
2,
27,
19,
77,
-12,
70,
-9,
-37,
-24,
14,
-49,
-7,
26,
9,
-86,
-7,
86,
-5,
46,
28,
-24,
-12,
25,
-40,
4,
-20,
-36,
-49,
16,
20,
62,
-37,
4,
43,
-97,
6,
-55,
17,
3,
50,
-69,
-12,
-7,
11,
-11,
27,
31,
37,
-12,
-9,
-3,
-4,
-53,
-4,
-59,
34,
1,
-32,
-50,
-4,
41,
-1,
24,
38,
-65,
10,
-15,
-86,
16,
28,
-9,
68,
49,
-29,
-10,
32,
55,
-24,
14,
51,
-28,
37,
47,
60,
-36,
-25,
-57,
10,
42,
6,
-41,
59,
37,
7,
-15,
-39,
-10,
-33,
-44,
43,
-15,
-27,
-25,
-58,
12,
54,
3,
-62,
-38,
-36,
7,
35,
26,
-31,
16,
1,
20,
54,
25,
48,
37,
-69,
-36,
-28,
7,
29,
32,
10,
23,
-5,
0,
-31,
-41,
29
] |
MR. JUSTICE DALY
delivered the opinion of the court.
Defendant Louis Arthur Anderson appeals from a final judgment of conviction for the crime of operating a motor vehicle upon a public highway while under the influence of intoxicating liquor following a jury trial in the district court, Ravalli County.
On the evening of December 18, 1974 defendant was stopped by Montana Highway Patrol Officer Stotts when defendant failed to dim his bright headlight beams for oncoming traffic. Upon observing defendant’s speech and behavior, Officer Stotts and Officer Buck, the other investigating officer, concluded defendant was intoxicated. Officer Stotts cited defendant for driving a motor vehicle upon a public highway while under the influence of intoxicating liquor.
Defendant appeared before the Ravalli County justice court on January 30, 1975 and a six man jury found defendant guilty as charged. The decision of the justice court was appealed by defendant to the district court, Ravalli County.
On December 2, 1975, a twelve man jury returned a verdict finding defendant guilty. Defendant appeals and presents three issues for this Court’s review:
1. Did the district court err when the court refused defendant’s proposed instruction No. 3?
2. Did the district court err when it permitted the arresting highway patrolman to demonstrate to the jury the manner in which the defendant walked at the scene of the arrest?
3. Did the district court err when the court denied defendant’s motion for an order allowing defendant to appeal his conviction with a partial transcript containing only the arresting highway patrolman’s testimony?
Defendant’s first issue concerns refusal of his proposed jury instruction No. 3, which in effect defined driving while under the influence of intoxicating liquor as the lessening of the ability of the driver of an automobile to control the vehicle. The record discloses defendant was not stopped on the evening of December 18, 1974, for failing to exercise reasonable control over the movement of defendant’s vehicle on the road, rather defendant was stopped by Officer Stotts because he failed to dim his bright headlight beams for oncoming traffic. Defendant’s proposed- instruction No. 3 was inapplicable under these particular facts. If given, the jury might be misled to believe that in order to show that defendant violated section 32-2142, R.C.M.1947, the state must prove that defendant was under the influence of intoxicating liquor, that defendant was driving a motor vehicle on the highways of Montana and that being under the influence of intoxicating liquor affected defendant’s driving ability. This would be an incorrect statement of the applicable law.
Where jury instructions as a whole correctly state the law prejudice is not created because of a refusal of a proposed instruction. State v. Bosch, 125 Mont. 566, 242 P.2d 477; State v. Lukus, 149 Mont. 45, 423 P.2d 49.
Upon examining all of the instructions presented to the jury by the district court, we conclude the jury was properly instructed as to the applicable law in defendant’s case and defendant incurred no prejudice through the exclusion of proposed instruction No. 3.
Defendant’s second allegation of error involves the district court’s permitting Officer Stotts to demonstrate to the jury the manner in which the defendant walked at the scene of the arrest on the evening of December 18, 1974.
The particular question of whether a witness may demonstrate the physical mannerisms of a defendant before a jury in a criminal matter would appear to be a matter of first impression in the state of Montana. Other jurisdictions acknowledge that a witness may give testimony showing that the accused, at the time of his arrest, appeared intoxicated. Millican v. State, 143 Tex.Cr. R. 115, 157 S.W.2d 357; Green Lake County v. Domes, 247 Wis. 90, 18 N.W.2d 348. There is also recognized authority that a skilled or expert witness may use his own body, or a member of his body, or an article to illustrate or explain the evidence. State v. Atwood, 250 N.C. 141, 108 S.E.2d 219.
Defendant objected to the demonstration of Officer Stotts on the grounds there was no adequate foundation for admission of the demonstration and the demonstration would not be on the record for appellate purposes.
Whether the proper foundation for admission of the demonstration was presented and whether defendant would be substantially prejudiced by the admission of the demonstration is a preliminary question addressed to the discretion of the district court. As stated in State v. Medicine Bull, Jr., 152 Mont. 34, 45, 445 P.2d 916, 922:
“* * * the solution of the question of admissibility of the evidence must in every case be left largely to the sound legal discre tion of the trial court, subject to review only in case of manifest abuse.”
Defendant’s contention there was inadequate foundation for allowing the demonstration by Officer Stotts would appear to be without merit. The record discloses Officer Stotts had ample opportunity to observe the defendant walking at the time of the arrest and at the time of the trial Officer Stotts had good recollection of the manner in which defendant walked on the evening in question. Defendant was allowed the opportunity to cross-examine Officer Stotts prior to the demonstration.
Defendant’s objection that the demonstration would not be adequately represented in the trial record is without merit. Officer Stotts’ demonstration was accorded the same formalities of recordation as any other introduction of non-verbal evidence. We find no abuse of discretion in the admission of this demonstration.
Defendant’s final allegation of error concerns the district court’s denial of defendant’s request to use a partial transcript for purposes of appeal. Defendant cites section 93-8018, R.C.M. 1947, in his appellate brief as authority for the use of partial or abbreviated records on appeal.
Section 93-8018 (superseded by appropriate rules in Montana Rules of Appellate Civil Procedure), was applicable to abbreviated records on appeal in civil actions.
Defendant’s motion for a partial transcript for purposes of appeal would be appropriately made under section 95-2408(b), R.C.M. 1947, which provides in pertinent part:
“Unless the entire transcript is to be included, the appellant shall, within the time above provided, file and serve on the respondent a description of the parts of the transcript which he intends to include in the record and a statement of the issues which he intends to present on the appeal.”
Defendant’s motion for partial transcript, dated February 25, 1976, is defective since it does not set forth those issues which defendant intended to present on the appeal. The purpose for setting out the issues on appeal in the motion for partial transcript is to notify the court and opposing parties as to what areas of the record will be needed to argue the issues on appeal.
Even if defendant’s motion for partial transcript was not found to be fatally defective, it was within the sound discretion of the district court to determine that only by the examination of a complete record could it be determined whether or not a miscarriage of justice occurred. State v. Hay, 120 Mont. 573, 194 P.2d 232. We find no abuse of discretion.
The judgment is affirmed.
MR. CHIEF JUSTICE JAMES T. HARRISON, MR. JUSTICES HASWELL and JOHN C. HARRISON, and The HON. L. C. GULBRANDSON, District Judge, sitting for Mr. Justice Castles, concur.
|
[
-16,
58,
24,
19,
-47,
-91,
-9,
28,
-57,
59,
-7,
0,
11,
-11,
48,
-57,
-2,
12,
5,
-16,
-8,
-27,
-39,
-11,
-9,
-14,
-16,
11,
-31,
33,
22,
-17,
-5,
-37,
44,
45,
23,
24,
25,
-28,
37,
82,
-65,
17,
-56,
-41,
-45,
-58,
-32,
14,
-38,
-26,
10,
0,
45,
2,
13,
27,
-74,
19,
27,
6,
-3,
26,
25,
7,
7,
1,
-43,
-8,
-31,
-5,
-48,
5,
-13,
17,
-10,
7,
10,
2,
-66,
28,
41,
30,
32,
-41,
-29,
-22,
-16,
-13,
-13,
-12,
-1,
6,
-11,
7,
6,
-62,
41,
-10,
0,
-70,
17,
-4,
11,
27,
-44,
5,
10,
0,
12,
24,
33,
9,
-24,
8,
-1,
1,
24,
15,
25,
-7,
35,
34,
-58,
-73,
23,
61,
-8,
-13,
2,
-6,
32,
-16,
-7,
9,
-61,
-14,
13,
42,
11,
24,
28,
17,
-7,
-1,
20,
2,
-22,
28,
-7,
1,
26,
-17,
-10,
-46,
33,
-48,
-12,
4,
-10,
-7,
12,
31,
65,
-7,
-24,
6,
-36,
-24,
1,
-30,
11,
34,
66,
-12,
-12,
-32,
-39,
1,
-28,
17,
-3,
30,
6,
-13,
-25,
53,
-4,
-10,
-26,
21,
9,
-28,
-3,
12,
22,
0,
-6,
43,
-9,
2,
-4,
19,
-23,
7,
-66,
48,
63,
28,
11,
-24,
19,
13,
36,
-31,
-31,
-28,
-3,
-61,
-15,
-5,
16,
-18,
7,
-42,
-26,
2,
-4,
36,
-6,
66,
-7,
18,
11,
-56,
2,
-29,
23,
24,
25,
-1,
-4,
-34,
45,
30,
-36,
-51,
11,
-37,
32,
-41,
-10,
-33,
-34,
-21,
104,
-30,
48,
-2,
44,
19,
34,
-3,
-38,
-27,
19,
-21,
-24,
6,
6,
-24,
47,
6,
-29,
1,
-13,
31,
9,
61,
44,
-67,
19,
29,
8,
12,
-4,
23,
-37,
-30,
1,
-38,
-47,
30,
-10,
-10,
39,
32,
-44,
1,
37,
25,
-65,
48,
-21,
-21,
-33,
51,
-23,
27,
-6,
-38,
-13,
25,
46,
-31,
-10,
0,
2,
-46,
-31,
16,
3,
-61,
1,
19,
23,
5,
4,
-23,
-5,
33,
-9,
28,
8,
-15,
-23,
44,
-1,
39,
-23,
-49,
8,
20,
-30,
34,
14,
63,
-22,
-34,
-55,
-30,
47,
-11,
0,
-41,
-11,
-31,
0,
-48,
-11,
-46,
-10,
31,
43,
28,
38,
-13,
-26,
-22,
-10,
-36,
16,
-6,
11,
-14,
31,
-13,
-38,
16,
7,
-29,
-21,
-63,
-14,
-27,
-10,
-73,
-77,
18,
-25,
55,
-34,
-14,
45,
26,
63,
-17,
21,
-10,
-6,
17,
27,
-37,
-52,
-12,
36,
37,
-7,
-31,
-48,
-31,
1,
11,
69,
18,
-21,
-7,
-58,
-44,
13,
21,
66,
-27,
44,
13,
10,
5,
26,
3,
36,
5,
21,
-9,
-39,
-19,
37,
7,
13,
4,
-22,
-32,
26,
59,
15,
-24,
8,
-13,
-1,
4,
0,
32,
27,
13,
1,
76,
52,
14,
-47,
-9,
9,
8,
-25,
-10,
26,
-25,
-29,
6,
6,
-23,
-17,
28,
26,
-27,
-41,
17,
2,
0,
-38,
-47,
-19,
-40,
-9,
-10,
29,
-17,
-12,
-19,
-15,
67,
15,
27,
-9,
-15,
-22,
-17,
-1,
9,
6,
-37,
-10,
-10,
-61,
15,
-27,
-29,
24,
62,
-25,
5,
-11,
78,
24,
-16,
-12,
-32,
-9,
0,
43,
19,
33,
11,
12,
8,
-55,
-21,
-27,
-44,
-13,
-70,
13,
10,
8,
-23,
15,
29,
26,
46,
10,
-28,
46,
1,
-12,
-17,
-15,
-4,
2,
-33,
24,
19,
20,
30,
24,
-38,
3,
-28,
-15,
-28,
-58,
11,
58,
23,
7,
52,
-8,
29,
-36,
-11,
97,
-14,
7,
50,
-29,
-33,
7,
48,
-25,
12,
-42,
11,
39,
30,
-1,
28,
-53,
19,
48,
11,
-38,
-37,
15,
47,
31,
19,
14,
22,
-24,
6,
-78,
4,
18,
0,
77,
85,
80,
9,
47,
-38,
-9,
-8,
21,
54,
42,
58,
0,
21,
-50,
-34,
11,
-18,
-8,
-10,
-12,
23,
-32,
5,
-58,
17,
3,
-3,
-66,
-5,
-15,
-1,
-1,
49,
-26,
49,
-44,
-34,
12,
10,
38,
6,
7,
8,
15,
-4,
-24,
-28,
-49,
24,
-45,
-55,
-17,
-18,
10,
-31,
-13,
16,
59,
59,
-26,
-24,
-11,
-20,
-1,
2,
-5,
28,
17,
-69,
-24,
5,
0,
-5,
11,
3,
-23,
-8,
-10,
-4,
-15,
-66,
9,
42,
-26,
28,
87,
25,
-9,
53,
-7,
42,
-39,
43,
64,
-34,
-43,
-56,
26,
-1,
5,
9,
-59,
32,
14,
-63,
-13,
22,
-27,
53,
-8,
26,
-5,
-1,
50,
0,
-77,
16,
-47,
-51,
-26,
15,
21,
-32,
-55,
21,
31,
-3,
40,
-7,
20,
-4,
36,
-16,
34,
-8,
28,
3,
-27,
-17,
18,
23,
5,
-15,
-16,
-32,
-3,
-61,
-8,
30,
25,
-18,
-26,
11,
35,
10,
-5,
-53,
43,
-7,
-17,
42,
-49,
29,
32,
57,
6,
20,
19,
-42,
16,
-87,
-50,
20,
27,
8,
-5,
-23,
-25,
34,
-3,
-6,
2,
18,
-58,
31,
-5,
15,
22,
15,
30,
29,
-12,
-14,
-16,
12,
-6,
46,
-19,
5,
31,
6,
36,
-31,
27,
24,
21,
0,
-9,
38,
52,
2,
55,
-11,
5,
14,
-30,
-33,
33,
-18,
5,
33,
25,
-31,
40,
17,
-15,
31,
-9,
26,
38,
25,
-20,
-29,
53,
-23,
17,
8,
8,
34,
-10,
23,
3,
5,
52,
-5,
14,
78,
-9,
2,
-27,
-23,
-10,
28,
-24,
-38,
-6,
68,
10,
-33,
-37,
-23,
-5,
6,
42,
-10,
-40,
58,
-5,
-8,
49,
39,
3,
34,
-1,
-55,
-1,
8,
11,
-106,
19,
24,
37,
-34,
-54,
-20,
14,
27,
-47,
19,
22,
-9,
-48,
-12,
-37,
23,
16,
-71,
15,
11,
-36,
-2,
30,
-51,
-7,
25,
26,
12,
-13,
9,
24,
-14,
-11,
2,
-102,
-23,
10,
10,
7,
33,
-39,
45,
-6,
22,
-53,
-37,
-1,
27,
-28,
10,
20,
-48,
-46,
42,
-19,
-22,
-19,
-37,
-11,
17,
-42,
74,
68,
19,
16,
-17,
-59,
10,
-2,
-5,
-54,
20,
47,
-37,
-33,
24,
17,
17,
-39,
8,
5,
11,
-9,
-5,
-9,
-3,
-10,
32,
-46,
-12,
-10,
30,
15,
35,
-9,
-15,
0,
-36,
-51,
7,
26,
-31,
31,
-51,
2,
47,
-3,
41,
-19,
-30,
-10,
44,
13,
27,
-31,
-7,
4,
-24,
49,
6,
-38,
-33,
50,
0,
-8,
-10,
24,
17,
-7,
-48,
-45,
-61,
-8,
0,
39,
-16,
-21,
33,
-77,
21,
12,
-23
] |
MR. JUSTICE HASWELL
delivered the opinion of the court.
Defendant Ronald Emmett appeals from an order of the district court, Dawson County, revoking his deferred imposition of sentence and sentencing Emmett to two and one-half years in Montana State Prison.
On March 24, 1975 defendant Emmett was charged with felony possession of marijuana in violation of section 54-133, R.C.M. 1947. That same day he pled guilty and the court ordered imposition of sentence deferred for three years provided defendant complied with a number of conditions during that period. After compliance with the conditions for three years, the charges would be dismissed.
On September 30, 1975 Emmett’s probation officer reported to the county attorney alleged violations of conditions of Emmett’s deferred sentence. The county attorney in turn petitioned the court to revoke the deferral and impose sentence of five years in prison. Other violations subsequent to the filing of this first petition were alleged prior to the hearing.
Hearing was held December 23, 1975. The court found Emmett violated the terms of his deferred sentence, revoked the deferral, and sentenced him to two and one-half years in Montana State Prison with credit for thirty days previously served in the Dawson County jail.
The issues are:
(1) Did the district court have authority to revoke the deferred sentence and impose sentence?
(2) Was there sufficient evidence to find defendant violated the conditions of his deferred sentence and to warrant imposing the two and one-half year prison sentence?
Defendant’s argument on the first issue is that the district court had relinquished its jurisdiction to the Board of Pardons by its order of March 24, 1975, deferring imposition of sentence. Condition 10 of that order reads:
“10) The Defendant is placed under the supervision and control of the State Board of Pardons and is to abide by their rules and regulations”.
Defendant relies on the language of the last paragraph of section 95-2206, R.C.M.1947, which reads:
“Any judge who has suspended the execution of a sentence or deferred the imposition of a sentence of imprisonment under this section, or his successor, is authorized thereafter, in his discretion, during the period of such suspended sentence or deferred imposition of sentence to revoke such suspension or impose sentence and order such person committed, or may, in his discretion, order the prisoner placed under the jurisdiction of the state board of pardons as provided by law, or retain such jurisdiction with this court. Prior to the revocation of an order suspending or deferring the imposition of sentence, the person affected shall be given a hearing.” (Emphasis supplied.)
The trial judge followed the provisions of section 95-2206, R.C.M.1947. He deferred sentence. Condition 10 of the court’s order placed Emmett under the supervision of a probation officer, and the rules and regulations of the Board of Pardons. Thereafter the court held a hearing, found Emmett had violated the conditions, and in its discretion imposed sentence of imprisonment.
Any uncertainty was eliminated by the court’s remarks to defendant when he deferred imposition of sentence to the effect that if defendant did not abide by the conditions of deferral, the court would impose a sentence of imprisonment and by the following provision of the court’s order of March 24:
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if the Defendant fails to comply with any of the above conditions a bench warrant of arrest will be issued, the Defendant apprehended and the said Defendant will be required to appear before this Court for further proceedings.”
Defendant’s argument on the second issue is that there was no credible evidence of a violation of the conditions of the deferred sentence. Additionally, he argues the evidence presented did not warrant the imposition of a prison sentence and he was “violated” because the parole officer and county attorney believed he had a bad attitude.
In support of its order imposing sentence the court made these findings of fact:
“1) The Court hereby finds from the testimony and the admission of the Defendant that while on probation he was in the Jordan Hotel, Lulhaven Bar, Glendive Moose Club and Beer Jug, all of which places serve Intoxicating liquors.
“2) That September 8, 1975, he was present at the scene of aggravated assault upon police officers and that he joined in the yelling and encouraged others to ‘do a good job’.
“3) The testimony of witnesses and admission of the Defendant indicates that he shouted obscenities or profanities at a Police Department dispatcher while incarcerated in the Dawson County jail on April 6, 1975.
“4) That Condition #2 of the Court’s prior judgment was violated in that the Defendant failed to reimburse Dawson County for the costs of his jail incarceration or attorney’s fees.
“5) That the evidence and admission of the Defendant indicates he pleaded guilty to a charge of reckless driving while on probation, that he was involved in an accident, and that liquor was found in his vehicle.
“6) That the Defendant admitted he forfeited bond for speeding while on probation.
“That the admission of the Defendant and the evidence at the hearing, as set forth above, are violations of the terms and conditions of the defendant’s probation.”
There is no real conflict as to the underlying facts.
Condition 5 of defendant’s deferred sentence was that he “not frequent any place where intoxicating liquor or beer is sold.” Emmett admitted going into the Jordan Hotel dance hall one night to attend a dance where drinks could be brought in from the bar in another room. He testified he did not have any intoxicants and he had permission from his probation officer. The probation officer testified against Emmett but did not deny this statement. Emmett admitted going into the Lulhaven Bar to tell another man he could come to work for Emmett’s employer. Defendant admitted he had been at the Moose Club one night to attend a wedding dance but that he was not drinking. He testified he went into the Beer Jug on a Sunday afternoon and had a sandwich and a 7-Up soft drink at the lunch counter.
Condition 7 was:
“The Defendant shall conduct himself in a law abiding manner and shall not violate any law of the United States or of the State of Montana or the ordinance of any city or town during said term.”
At the wedding dance at the Moose Club an altercation broke out involving several police officers and a number of young people. Subsequently Emmett testified for the defense of two young men charged with assault against the police officers. He admitted being in the crowd and shouting encouragement, but also testified that he prevented another young man from hitting an officer and that he left early.
Emmett was required to serve thirty days in jail as a condition of deferment. He admitted that once during that time he shouted obscenities at the female police dispatcher when his meal was a couple of hours late.
Emmett testified he received a reckless driving citation when he and a friend saw each other on a street and attempted to pull their cars alongside each other resulting in a serious collision. He claimed the empty bottles and liquor found in his car at that time were probably left from when a friend borrowed his car. He admitted receiving a speeding citation and forfeiting bond on another occasion.
Conditions 2 and 3 were “the Defendant pay his own costs of incarceration including board at the rate of $3.00 per day” for the thirty days served in jail and that “the Defendant within a reasonable time, reimburse Dawson County for the fees charged by his court appointed attorney”. He testified he consulted his court appointed attorney on three occasions concerning this and concluded he had to pay within the three years of his deferred sentence unless he was asked to pay sooner, which he was not.
Defendant argues that his probation officer’s negative feelings towards him and his views on the marijuana laws are the real source of his difficulty. He argues that over the nine month period the probation officer should have admonished him for his visits to the bars and should have requested the ordered payments be made to the county before charging him with violations for these shortcomings.
The state argues the evidence was sufficient to support the court’s finding that Emmett violated the conditions imposed by the court and that although none of these acts singly need lead to a revocation of the deferred sentence, their cumulative effect indicates a contempt for the court’s order, the rules and regulations of the Board of Pardons, and the laws of the state of Montana.
Although part of the evidence supporting some of the alleged individual violations is questionable, we find there was substantial evidence to support the district court’s conclusion that Emmett violated the terms of his deferred sentence.
Defendant further argues that his acts do not warrant a sentence of imprisonment in the Montana State Prison for two and one-half years. However that may be, the sentence is for conviction of a felony for which the statute provides a possible sentence of imprisonment not to exceed five years. Section 54-133(c), R.C.M.1947. We hold the sentence legal and the court acted within its discretion. We leave to the Sentence Review Division a review of the equities of the sentence.
Accordingly, the judgment is affirmed.
MR. CHIEF JUSTICE JAMES T. HARRISON, MR. JUSTICES JOHN. C. HARRISON and DALY, and The HON. LEROY L. McKINNON, sitting for Mr. Justice Castles, concur.
|
[
24,
-11,
-12,
-9,
-24,
-7,
-42,
-27,
-29,
35,
-10,
-28,
46,
7,
39,
15,
-27,
-9,
10,
32,
-4,
20,
11,
86,
1,
-11,
-60,
19,
2,
58,
30,
-4,
19,
5,
-3,
20,
-55,
-26,
28,
-25,
10,
27,
-46,
25,
-40,
-10,
-31,
31,
0,
-25,
-31,
26,
40,
-18,
-6,
39,
-8,
-40,
-17,
115,
-38,
-13,
-44,
2,
3,
-2,
-8,
37,
-18,
-7,
16,
-9,
-17,
38,
7,
4,
26,
3,
21,
44,
8,
23,
-38,
3,
-2,
-24,
-61,
-36,
8,
26,
-11,
-17,
-6,
6,
-38,
-71,
15,
27,
15,
-26,
-30,
-15,
32,
19,
-43,
-35,
48,
19,
46,
29,
-19,
-3,
-33,
-12,
-32,
-59,
-11,
17,
3,
0,
39,
-3,
30,
67,
62,
-59,
58,
-2,
58,
-30,
-12,
32,
10,
-42,
-43,
9,
22,
49,
-6,
25,
14,
-76,
61,
-1,
5,
-36,
32,
28,
-5,
25,
-21,
-16,
18,
14,
0,
15,
38,
-41,
-66,
10,
6,
28,
-71,
-31,
-10,
-21,
-51,
1,
-11,
2,
0,
47,
37,
49,
24,
1,
-4,
27,
28,
39,
-53,
11,
1,
-11,
10,
48,
34,
18,
-19,
-27,
-51,
20,
9,
-46,
43,
-43,
44,
13,
3,
56,
-35,
15,
27,
66,
21,
23,
4,
33,
14,
-19,
-86,
-63,
52,
28,
9,
-47,
23,
25,
9,
-1,
-47,
-1,
27,
44,
-24,
-9,
-2,
114,
7,
-37,
2,
74,
52,
-14,
31,
-2,
-21,
4,
-1,
30,
-11,
-25,
11,
4,
17,
12,
9,
-4,
-20,
-24,
-32,
15,
24,
47,
-10,
3,
-5,
-68,
-29,
-10,
29,
-17,
19,
-47,
29,
24,
-2,
12,
4,
15,
12,
-17,
8,
-5,
-3,
49,
6,
-15,
19,
-63,
15,
-27,
16,
46,
-23,
-6,
-3,
52,
-15,
-8,
71,
-14,
-62,
55,
-10,
20,
34,
8,
-38,
-29,
15,
13,
-62,
-22,
14,
10,
6,
87,
-14,
-16,
18,
-21,
-55,
42,
-4,
-49,
-2,
-8,
-1,
-27,
-38,
26,
19,
-45,
-45,
4,
7,
26,
-22,
6,
0,
-29,
-60,
-30,
26,
27,
-12,
38,
-49,
-6,
18,
-34,
2,
59,
-8,
19,
30,
31,
-23,
22,
-3,
13,
-5,
-11,
-98,
16,
-43,
-33,
0,
-3,
-6,
-1,
-27,
-36,
6,
-29,
43,
16,
21,
-27,
27,
1,
31,
-59,
34,
16,
6,
-29,
-36,
-15,
-11,
23,
15,
26,
33,
-6,
-35,
-41,
22,
-19,
-19,
16,
-76,
-32,
-24,
-20,
17,
-5,
27,
20,
11,
-21,
-15,
-11,
25,
-64,
-11,
-13,
14,
3,
-34,
34,
7,
-25,
16,
-4,
-27,
-10,
-13,
-13,
-3,
18,
48,
-45,
45,
7,
17,
2,
-9,
-4,
36,
5,
22,
6,
-3,
49,
-17,
-30,
-14,
8,
-19,
-39,
-6,
-18,
13,
6,
20,
-80,
0,
-11,
5,
24,
-20,
-54,
8,
56,
13,
0,
-7,
18,
34,
33,
-66,
-1,
50,
1,
8,
-16,
-12,
30,
-2,
55,
15,
27,
-20,
-16,
-11,
-8,
18,
22,
26,
-27,
-36,
-2,
37,
-4,
-26,
-42,
-43,
24,
-20,
2,
9,
-20,
-14,
53,
-20,
-10,
13,
0,
-33,
-16,
-29,
43,
32,
4,
25,
0,
-14,
22,
18,
52,
24,
-19,
5,
-35,
50,
-59,
-21,
15,
56,
0,
-39,
-44,
-4,
4,
-28,
-15,
13,
8,
-14,
11,
-8,
-20,
13,
48,
-57,
46,
31,
-67,
71,
-15,
25,
4,
-9,
0,
23,
-2,
43,
-7,
17,
6,
17,
-11,
-16,
-44,
-4,
-14,
52,
-4,
13,
65,
11,
35,
-44,
-16,
-50,
-12,
-11,
30,
1,
30,
-54,
19,
32,
22,
-12,
27,
8,
31,
-4,
11,
-21,
0,
-6,
13,
17,
0,
47,
-6,
-40,
20,
-4,
-9,
-47,
-32,
-52,
-34,
6,
50,
-22,
58,
22,
30,
88,
-10,
41,
-35,
-29,
43,
14,
16,
-49,
-11,
6,
65,
-34,
-26,
-17,
31,
-27,
-57,
2,
-30,
-47,
-57,
-91,
-57,
19,
-2,
-4,
-47,
54,
-1,
-18,
-9,
-89,
14,
-36,
-15,
19,
39,
24,
-8,
8,
-4,
65,
30,
-18,
-8,
-3,
0,
-69,
-19,
7,
5,
10,
26,
19,
26,
19,
14,
-69,
-35,
-27,
8,
-24,
40,
-32,
-4,
-7,
2,
-26,
-48,
-18,
-33,
-1,
-29,
8,
-40,
-87,
24,
-33,
-21,
-43,
4,
-9,
-18,
28,
28,
33,
13,
13,
32,
12,
19,
-7,
9,
-67,
48,
21,
-3,
-3,
-19,
-65,
-6,
-21,
1,
-8,
8,
-38,
42,
17,
29,
-16,
-59,
17,
-36,
-67,
-4,
-26,
-26,
-27,
41,
-8,
-16,
-3,
-25,
1,
-11,
46,
11,
20,
2,
11,
-11,
-7,
41,
21,
37,
18,
-15,
-9,
6,
-19,
73,
6,
-10,
-60,
-51,
60,
0,
-2,
14,
-66,
35,
52,
-47,
-16,
-25,
10,
33,
-37,
50,
-36,
-22,
28,
31,
65,
1,
2,
15,
26,
-6,
0,
-27,
-19,
-6,
-31,
-22,
-23,
15,
-49,
-20,
18,
-31,
-26,
18,
-42,
-23,
-16,
-29,
23,
27,
15,
37,
9,
19,
13,
-6,
-20,
-35,
-24,
-16,
15,
23,
41,
-1,
8,
3,
10,
35,
40,
41,
46,
-26,
42,
6,
-17,
-36,
34,
-8,
-41,
16,
0,
-16,
11,
-30,
-35,
-1,
-32,
8,
42,
40,
-13,
-35,
-11,
3,
-6,
-27,
-13,
-27,
19,
-14,
32,
-24,
41,
-42,
-7,
22,
49,
-38,
-88,
16,
-25,
6,
19,
-68,
-9,
15,
3,
13,
19,
-34,
12,
10,
27,
-7,
-74,
8,
-57,
-36,
39,
35,
-40,
-4,
52,
-23,
-10,
-19,
29,
-50,
47,
25,
39,
-52,
-69,
-55,
9,
25,
-26,
2,
-67,
12,
-6,
55,
33,
-22,
4,
4,
15,
-32,
-31,
-24,
45,
-39,
58,
37,
35,
25,
-26,
34,
-2,
4,
56,
-30,
-4,
10,
81,
-7,
-35,
75,
4,
56,
-25,
-27,
1,
13,
-3,
22,
-13,
46,
21,
-59,
-36,
-26,
3,
21,
18,
-38,
-25,
11,
-31,
24,
-13,
38,
-2,
-11,
21,
4,
4,
18,
-22,
27,
1,
-49,
12,
37,
42,
-20,
-27,
-5,
-23,
-13,
2,
26,
-14,
14,
-42,
13,
11,
-61,
14,
-10,
36,
16,
8,
3,
14,
-22,
-40,
-32,
-38,
14,
16,
22,
34,
54,
-12,
-53,
28,
-14,
32,
64,
31,
74,
-37,
-52,
-44,
32,
45,
-31,
-57,
-26,
16,
-15,
-39,
15,
6,
42,
-1,
-29,
-53,
-29,
5,
54,
14,
13,
-31,
21,
-2,
-21,
20,
39
] |
MR. JUSTICE DALY
delivered the opinion of the court.
This is an appeal from a judgment of the district court, Hill County, sitting without a jury, Hon. LeRoy McKinnon, presiding. The judgment modified a divorce decree entered March 1, 1974, increasing a child support for the youngest and only remaining minor child from $125 per month to $200, and specifying the length of the visitation period the father is entitled to have with the child annually.
Plaintiff Martha Burris was granted a divorce from defendant Billy Burris on March 1, 1974. The divorce granted plaintiff mother $250 per month alimony, plus $125 per month child support for each of the three minor children of the marriage. Child support was to continue until each child reached his majority. Defendant was to have reasonable visitation rights with the children, and plaintiff was granted custody.
At the end of the school year in 1974, plaintiff mother and the three minor children moved to Oklahoma. She currently is employed there as a teacher’s aide and is paid $2.10 per hour during the school year. Two of the children have now reached majority and the mother now receives support payments only for the youngest.
In May 1975, defendant father brought an action to modify the original decree requesting the alimony obligation be stricken and the visitation rights be more clearly defined. The mother filed a cross-petition in response requesting modification of the decree increasing the amount of support for each of two children who. were minors at that time. The district court’s judgment increased the child support for the remaining minor child and .granted the father six weeks visitation rights each summer. The issue for review on this appeal is whether the evidence is sufficient to support the court’s judgment.
This Court’s function in review of a determination of the district court is not to substitute its judgment in place of the district court’s, but rather it is confined to determining if there is substantial credible evidence to support the district court’s determination. Hornung v. Estate of Lagerquist, 155 Mont. 412, 420, 473 P.2d 541. The fact that there may have been conflicts in the testimony does not mean there is not substantial evidence to support the verdict. Davis v. Davis, 159 Mont. 355, 361, 497 P.2d 315. Transamerica Ins. Co. v. Glacier Gen. Assur. Co., 163 Mont. 454, 461, 517 P.2d 888.
In the instant matter evidence was presented by each party and, of necessity, was in part conflicting. However, there was substantial credible evidence of a change of circumstances since the original decree — increased expenses on the part of the plaintiff mother and increased income of the defendant father.
There was sufficient credible evidence to support the trial court’s judgment, and therefore we find no abuse of discretion and the judgment is affirmed.
MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES HASWELL and JOHN C. HARRISON and JACK SHANSTROM, District Judge, sitting for Mr. Justice Castles, concur.
|
[
-24,
27,
2,
10,
-19,
-5,
-18,
-8,
22,
11,
-8,
24,
-3,
-2,
3,
-18,
-29,
15,
80,
-64,
-90,
75,
33,
25,
51,
6,
-3,
-15,
-27,
13,
-14,
-30,
-7,
-6,
-8,
-24,
43,
-12,
42,
1,
20,
27,
-42,
-4,
2,
-5,
52,
-17,
-6,
32,
-60,
-74,
-6,
-33,
12,
32,
26,
33,
24,
17,
-2,
16,
25,
28,
12,
-34,
33,
-36,
69,
-61,
-18,
-31,
9,
-60,
0,
-37,
20,
12,
4,
34,
25,
-16,
0,
0,
17,
-43,
-34,
62,
-31,
72,
-49,
18,
-36,
16,
-6,
-2,
8,
-31,
25,
22,
-34,
-63,
-12,
15,
33,
60,
18,
9,
-7,
-22,
62,
-6,
58,
11,
-16,
42,
8,
4,
-13,
-82,
26,
76,
10,
0,
44,
-26,
-28,
31,
72,
0,
-77,
33,
1,
-2,
34,
-85,
4,
-57,
-29,
-11,
-10,
-40,
34,
19,
-9,
33,
-30,
-30,
-32,
15,
26,
5,
67,
37,
65,
-98,
-37,
-38,
1,
-48,
26,
6,
-64,
36,
15,
-30,
-6,
-3,
-31,
-27,
-1,
10,
-16,
10,
19,
29,
-16,
-23,
11,
7,
-1,
23,
-10,
-43,
0,
82,
1,
14,
-32,
-12,
-41,
-11,
-1,
-29,
16,
-56,
69,
-11,
7,
-14,
-15,
-18,
65,
2,
-10,
5,
9,
-17,
0,
-3,
67,
14,
15,
29,
-45,
-5,
-43,
-23,
-87,
14,
-8,
-58,
-4,
-43,
-47,
-25,
5,
10,
0,
56,
-15,
39,
0,
-64,
10,
13,
-77,
-47,
13,
24,
5,
-33,
-1,
-65,
38,
44,
0,
20,
12,
7,
-85,
54,
-12,
36,
42,
-13,
54,
28,
-27,
6,
16,
22,
17,
-4,
14,
-33,
18,
-7,
6,
60,
49,
-24,
49,
-16,
43,
-35,
-12,
3,
5,
6,
0,
-23,
-36,
40,
-5,
16,
52,
0,
40,
0,
-13,
-19,
-9,
-28,
-6,
0,
-12,
7,
-2,
40,
32,
-39,
20,
63,
-23,
-25,
-41,
-17,
-7,
0,
53,
26,
-8,
-2,
-14,
10,
-68,
-26,
15,
-21,
0,
-8,
31,
10,
5,
15,
25,
-32,
-37,
6,
19,
50,
42,
28,
50,
-1,
-22,
30,
50,
-42,
9,
-10,
45,
16,
41,
4,
-36,
30,
5,
28,
-37,
19,
37,
-1,
-19,
-60,
37,
-42,
-4,
-27,
-6,
-19,
-12,
-65,
0,
49,
70,
-22,
6,
-36,
-26,
-1,
2,
34,
35,
-41,
20,
24,
17,
26,
-62,
0,
-40,
-5,
6,
2,
13,
-17,
-11,
-53,
23,
-10,
71,
4,
50,
8,
-12,
26,
-11,
-15,
-96,
-46,
1,
-30,
5,
33,
-13,
0,
-60,
-13,
25,
8,
-19,
5,
52,
29,
47,
-45,
-7,
22,
11,
38,
20,
4,
-9,
18,
-14,
-44,
15,
-32,
-33,
-2,
5,
35,
30,
-13,
66,
-30,
-36,
15,
-25,
47,
16,
16,
-35,
16,
-2,
-59,
44,
-20,
10,
-7,
38,
22,
36,
-35,
-1,
-54,
0,
-45,
72,
4,
5,
45,
23,
-4,
-75,
43,
-39,
56,
-6,
27,
32,
15,
33,
52,
-8,
3,
20,
-31,
-13,
-32,
-93,
21,
52,
95,
-17,
-79,
-48,
44,
-28,
-26,
11,
42,
-6,
-22,
26,
35,
-8,
-35,
-8,
-10,
42,
-31,
11,
-7,
4,
-30,
1,
-37,
47,
-19,
4,
-23,
-46,
3,
57,
25,
45,
-26,
0,
12,
-26,
-2,
-9,
4,
-4,
23,
-33,
38,
1,
102,
-8,
15,
-14,
22,
1,
40,
-19,
-33,
76,
16,
16,
-24,
-3,
-17,
48,
13,
-30,
-23,
54,
-64,
11,
5,
30,
-26,
0,
31,
-45,
-44,
41,
27,
4,
3,
-2,
2,
-46,
-51,
-76,
-15,
-38,
-15,
18,
-32,
57,
5,
-41,
-17,
-21,
11,
-4,
44,
-64,
9,
-40,
1,
48,
46,
38,
-14,
-16,
-9,
-3,
25,
7,
-79,
10,
-10,
6,
-44,
20,
71,
37,
-30,
-22,
8,
-33,
-1,
-22,
-50,
28,
5,
-8,
-36,
75,
-46,
28,
1,
-18,
-33,
-5,
-9,
-6,
-19,
24,
-19,
-4,
-5,
-43,
-13,
11,
-60,
53,
4,
40,
-53,
-7,
7,
6,
-5,
-13,
59,
34,
90,
-1,
-37,
23,
-4,
-31,
-61,
24,
24,
-2,
-55,
-20,
14,
10,
-64,
-17,
10,
58,
0,
2,
57,
12,
1,
12,
86,
15,
34,
-81,
-5,
9,
56,
14,
45,
-3,
70,
27,
5,
-11,
9,
-49,
26,
-24,
25,
11,
33,
4,
-59,
-10,
-7,
3,
53,
-30,
1,
-18,
45,
-58,
10,
6,
-9,
-32,
-32,
3,
58,
18,
21,
-12,
5,
-48,
4,
10,
2,
-32,
-37,
83,
-1,
-22,
-28,
-15,
55,
-50,
15,
-30,
44,
64,
24,
-3,
-32,
-11,
31,
-32,
8,
-15,
17,
9,
-5,
-4,
4,
19,
-39,
2,
0,
-31,
114,
3,
-24,
-45,
30,
17,
-41,
3,
-22,
-47,
16,
42,
29,
54,
-32,
28,
20,
28,
53,
0,
-18,
-17,
-13,
5,
-60,
37,
3,
13,
26,
27,
8,
28,
5,
-35,
-76,
-27,
29,
27,
16,
47,
-36,
58,
7,
-12,
36,
21,
-3,
35,
-13,
62,
30,
-38,
-9,
-21,
-50,
29,
48,
34,
46,
24,
52,
-37,
-22,
-25,
44,
-15,
-26,
22,
30,
-3,
-42,
38,
8,
-42,
-26,
41,
-13,
-36,
25,
38,
2,
-8,
38,
-21,
-9,
32,
-43,
34,
30,
-20,
-3,
11,
14,
18,
6,
7,
-24,
-34,
-66,
3,
43,
-9,
-24,
29,
-41,
11,
8,
35,
-19,
11,
-57,
1,
9,
24,
3,
-29,
30,
-5,
21,
-22,
48,
32,
-14,
18,
13,
-32,
-34,
-6,
18,
-16,
28,
53,
-41,
-28,
24,
2,
-1,
-47,
-22,
17,
-52,
15,
5,
-5,
32,
-17,
-1,
78,
-43,
-23,
37,
-52,
-64,
-36,
-23,
-35,
-12,
-8,
-20,
32,
-28,
-22,
22,
-14,
-20,
24,
25,
44,
-16,
-5,
19,
0,
-43,
0,
-18,
-1,
-52,
-28,
7,
-7,
-53,
-58,
7,
-72,
42,
0,
-18,
-87,
-32,
54,
-20,
-44,
-7,
-2,
12,
-35,
-52,
-15,
11,
4,
-1,
-39,
-48,
-33,
-7,
-2,
17,
-43,
30,
1,
-63,
-6,
25,
46,
48,
-46,
58,
20,
-21,
4,
-83,
-9,
41,
-61,
-54,
3,
-21,
-20,
-17,
-8,
-34,
16,
27,
1,
1,
-50,
38,
-1,
-6,
-38,
30,
-39,
3,
5,
-8,
35,
-18,
30,
8,
3,
-25,
0,
-56,
3,
-21,
-69,
32,
-6,
-28,
15,
-72,
-52,
-13,
-5,
26,
18,
0,
-9,
-15,
22,
-36,
-7,
-19,
-17,
-5,
10,
1,
9,
-18
] |
MR. CHIEF JUSTICE JAMES T. HARRISON
delivered the opinion of the court.
This is an appeal from a judgment of the district court, Lewis and Clark County, awarding plaintiffs funds that had escheated to the State of Montana.
Plaintiffs are the nieces and heirs at law of Frank O’Blak who died intestate in Billings, Montana, on June 24, 1970.
The estate was administered by public administration, and after finding no known heirs, it was ordered paid to the state treasurer as escheated funds in the amount of $8,693.93.
When the heirs in Yugoslavia learned of their uncle’s death they filed this action to claim the funds. The district court ruled the heirs were within the exception to the two-year statute of limitations even though the action was filed more than two years after the escheated funds had been received by the state treasurer.
The heirs were granted judgment for the escheated funds.
The issue before this Court is whether the exception to the two-year statute of limitations for citizens of the United States' beyond the limits of the United States, applies to citizens of Yugoslavia resident in Yugoslavia.
The statute .in question, section 91-509, R.C.M.1947, reads in pertinent part:
“* * * Such action must be brought within two (2) years from the date on which the money or property is received by the state treasurer, saving, however, to infants and persons of unsound mind, or citizens of the United States beyond the limits of the United States, the right to commence their action at any time within the time limited or two (2) years after their respective disabilities cease.” (Emphasis supplied.)
Plaintiffs are not citizens of the United States, but are citizens and residents of the Peoples Republic of Yugoslavia. It is ad-' mitted for this case that reciprocity of inheritance rights and reciprocity of transfer of funds exist between the United States and Yugoslavia.
It is settled by Kolovrat v. Oregon, 366 U.S. 187, 81 S.Ct. 922, 6 L.Ed.2d 218, and Estate of Spehar, 140 Mont. 76, 367 P.2d 563, that under the reciprocity provisions of an 1881 treaty and its “most favored nation” clause, Yugoslavian claimants have the same right to inherit their relatives’ personal property as they would if they were American citizens living in Montana. The relevant portions of the treaties directing that result are set out in the footnotes to the report of Kolovrat.
The district court held that the Yugoslavian heirs are entitled to the same exemption that American citizens have who are outside the United States until their disability ceases and that their disability reasonably ceased in this case upon actual notice of the death of their uncle. The Court also indicated that section 91-502, R.C.M.1947, requires the state to hold escheated property in trust for 10 years within which time it may be claimed by filing an action.
We hold that the statute applies to these Yugoslavian claimants as it would to Montana residents. There is no question they are entitled to inherit property on the same basis as residents. This is in accordance with Kolovrat.
However, they are not included in the class of United States citizens outside the United States. We do not feel compelled to go beyond the holding in Kolovrat and judicially designate them as within that class and entitled to the exception.
This exception was enacted in 1943. At that time large numbers of our citizens were called to duty outside the United States. Presumably this exception was enacted for their benefit until they could return to their homeland.
We are referred to the general rules that limitation statutes making exceptions in favor of persons under disability must be strictly construed and that courts will not read into statutes of limitation an exemption or disability which has not been embodied therein.
If we were to accept plaintiffs’ argument that the statute did not run until they received notice of the death, we would be reading into the statute an additional requirement. Notice of the death of a deceased is not a disability or exception to the statute.
We also point out that the statute in question here is a limitation statute and affects the remedy to assert the right, not the right itself. The right of these heirs to inherit is not in question and is established.
The case is remanded to the district court with direction to apply the two-year statute of limitation in accordance with this opinion.
MR. JUSTICES JOHN C. HARRISON and CASTLES concur.
|
[
13,
39,
-4,
0,
12,
-17,
48,
-15,
-2,
14,
-7,
-16,
5,
10,
-17,
2,
-53,
0,
1,
30,
-14,
-29,
-56,
16,
22,
-20,
28,
12,
10,
-35,
10,
-69,
-8,
-64,
32,
15,
-4,
-20,
13,
-16,
17,
-60,
-18,
28,
-33,
20,
18,
-26,
5,
13,
27,
2,
32,
50,
17,
33,
22,
-38,
-42,
49,
-16,
-19,
48,
13,
39,
6,
20,
40,
-21,
-32,
40,
-26,
4,
7,
36,
2,
-21,
9,
17,
28,
39,
-25,
5,
-32,
-47,
-34,
-48,
2,
17,
27,
-87,
-47,
-3,
11,
-24,
32,
58,
10,
-35,
-8,
-8,
-23,
62,
58,
21,
-16,
-1,
-44,
41,
-1,
-34,
18,
-43,
21,
-38,
51,
-47,
10,
-42,
-19,
-61,
6,
-4,
9,
34,
-33,
-6,
-4,
76,
19,
7,
-11,
5,
0,
-61,
65,
33,
-99,
-8,
-47,
-10,
-54,
-13,
-41,
15,
-13,
83,
-32,
60,
-17,
-38,
19,
-8,
53,
27,
-41,
-15,
-12,
23,
-36,
20,
-74,
5,
-10,
35,
-10,
-22,
-36,
21,
-8,
-3,
3,
-43,
7,
58,
53,
71,
-15,
-52,
60,
-19,
97,
30,
-4,
-30,
11,
-37,
-8,
18,
30,
0,
-34,
51,
75,
-52,
30,
13,
0,
-16,
15,
20,
-32,
83,
50,
23,
6,
51,
-58,
5,
-48,
27,
-37,
33,
43,
-40,
-57,
-39,
14,
-32,
23,
15,
18,
10,
-13,
9,
11,
23,
-26,
-18,
-14,
-49,
-11,
-20,
15,
49,
0,
-73,
-12,
-13,
-27,
31,
-36,
5,
-38,
39,
9,
-7,
-33,
-3,
23,
8,
18,
-22,
57,
43,
-5,
0,
22,
18,
-62,
-18,
-40,
-34,
-66,
-25,
-15,
-15,
-46,
5,
-12,
4,
7,
87,
-32,
-45,
-60,
33,
-16,
8,
-27,
-6,
-5,
-1,
11,
4,
-4,
-12,
0,
0,
28,
11,
22,
15,
-18,
17,
-17,
6,
-14,
44,
4,
-71,
33,
9,
-17,
42,
2,
14,
-2,
22,
17,
15,
-25,
-12,
-30,
10,
40,
-38,
-25,
27,
8,
32,
51,
45,
12,
27,
49,
-27,
-14,
3,
15,
-17,
-1,
-13,
11,
13,
-52,
37,
-10,
-68,
10,
41,
5,
18,
-36,
13,
-12,
8,
-13,
-2,
46,
4,
33,
10,
48,
-6,
74,
29,
22,
-48,
38,
35,
-14,
-19,
9,
-53,
-18,
4,
21,
5,
-35,
5,
-8,
32,
-5,
0,
24,
-28,
42,
7,
14,
-10,
-5,
-26,
-24,
31,
-28,
-1,
9,
2,
-26,
-25,
-21,
16,
30,
63,
22,
7,
-31,
-32,
-39,
-47,
45,
56,
-32,
-22,
-29,
19,
0,
-8,
-9,
4,
-38,
0,
-45,
-11,
-23,
6,
-24,
3,
-21,
21,
28,
-13,
-17,
23,
-47,
-33,
47,
-41,
-1,
33,
38,
-31,
-18,
-2,
-16,
-16,
-5,
-60,
-4,
32,
32,
53,
-6,
14,
2,
-30,
-43,
65,
47,
33,
7,
-14,
11,
-4,
-9,
44,
-27,
-40,
-8,
4,
19,
17,
49,
28,
-6,
-7,
-23,
56,
27,
-16,
60,
-41,
51,
-2,
37,
-17,
-19,
7,
0,
-5,
-32,
-17,
-40,
27,
-10,
25,
-2,
-47,
-13,
0,
-14,
37,
20,
-12,
1,
-61,
-2,
30,
-62,
-7,
-14,
62,
4,
-4,
-49,
34,
-56,
-128,
-3,
9,
-66,
-29,
14,
-15,
28,
62,
-5,
35,
43,
-30,
-24,
18,
52,
16,
-26,
-37,
29,
8,
-35,
-98,
-18,
-31,
-35,
-19,
-20,
30,
4,
-43,
-23,
-10,
-2,
47,
50,
-45,
14,
20,
8,
18,
-38,
3,
-57,
7,
34,
42,
-39,
17,
44,
-11,
-47,
19,
46,
-22,
-31,
-43,
-55,
-44,
-50,
-23,
17,
2,
38,
30,
-13,
14,
30,
26,
-12,
20,
25,
32,
4,
10,
-40,
0,
13,
3,
41,
13,
16,
46,
-5,
-25,
49,
43,
54,
-29,
-24,
-32,
-10,
-23,
22,
24,
-23,
28,
0,
-14,
-21,
7,
-13,
-8,
127,
7,
19,
-17,
2,
0,
-11,
60,
-77,
-12,
-15,
35,
-4,
-11,
-8,
-22,
0,
-39,
-4,
42,
-7,
-45,
-29,
27,
-20,
-14,
-17,
-21,
-36,
-49,
63,
47,
63,
-47,
-44,
93,
21,
59,
-17,
-4,
7,
19,
-1,
-33,
35,
4,
-28,
58,
0,
14,
-6,
4,
-30,
-33,
41,
36,
-17,
9,
50,
27,
-20,
-5,
-21,
31,
-23,
-47,
-20,
2,
-21,
-33,
10,
0,
-12,
-24,
59,
-19,
-36,
24,
50,
-10,
-1,
-16,
10,
-58,
8,
-12,
28,
16,
62,
16,
22,
-23,
-10,
-49,
-9,
-72,
8,
-28,
25,
-60,
-2,
20,
2,
-25,
9,
47,
-66,
-61,
-25,
-42,
-73,
-25,
-45,
-12,
-19,
-2,
-13,
-58,
20,
-31,
15,
-34,
18,
4,
-8,
-18,
-5,
36,
8,
-11,
43,
30,
30,
-13,
29,
-45,
-3,
-43,
-29,
-16,
12,
22,
-23,
-50,
-46,
-79,
67,
11,
-38,
49,
35,
24,
72,
-24,
-26,
-17,
-35,
3,
-43,
-12,
0,
-38,
-15,
-25,
-29,
2,
80,
65,
-15,
-10,
23,
-11,
-7,
59,
-45,
33,
-41,
22,
81,
-31,
-18,
53,
-35,
-12,
28,
-44,
62,
47,
-33,
-69,
-39,
14,
86,
49,
17,
7,
46,
-53,
24,
-36,
-28,
13,
-12,
-46,
-12,
2,
52,
16,
7,
25,
-37,
-28,
23,
24,
39,
-31,
17,
-24,
15,
-14,
-33,
-20,
8,
-18,
-38,
15,
10,
1,
-30,
62,
-10,
3,
0,
39,
37,
-41,
-2,
24,
-6,
10,
-26,
-16,
50,
0,
31,
-29,
-79,
13,
50,
0,
-42,
-23,
-17,
-34,
-36,
53,
22,
-20,
92,
25,
-9,
-20,
9,
13,
-32,
47,
28,
5,
-53,
-41,
50,
-43,
-4,
-21,
15,
58,
-12,
27,
-28,
-8,
-2,
-52,
-18,
13,
-10,
-9,
0,
38,
1,
9,
7,
-3,
-33,
-5,
11,
-6,
51,
30,
37,
62,
-16,
33,
-28,
15,
-17,
-30,
-6,
-28,
65,
14,
2,
-68,
12,
-25,
-33,
53,
0,
-40,
23,
0,
42,
-25,
-28,
89,
-17,
-11,
31,
1,
-22,
10,
-25,
13,
28,
5,
74,
19,
-50,
11,
25,
66,
-24,
-11,
103,
3,
11,
10,
-27,
9,
31,
-28,
37,
0,
46,
30,
-63,
-16,
-22,
75,
21,
-55,
-17,
-12,
-4,
36,
19,
12,
-22,
-4,
-29,
36,
-10,
-39,
19,
-3,
4,
-36,
-2,
-23,
2,
42,
30,
-38,
-10,
42,
35,
18,
-48,
-16,
-55,
7,
-32,
21,
-37,
-24,
-4,
0,
-16,
12,
-43,
-10,
9,
-49,
-63,
48,
0,
42,
37,
-32,
20,
-14,
-36,
32,
23
] |
MR. JUSTICE JOHN C. HARRISON
delivered the opinion of the cou t.
This is an appeal from a directed verdict for defendants by the district court, Flathead County.
Plaintiff Scott Parrish was visiting the mobile home of Leo McDonald in early April 1973, to help a friend move her belonging^. As he walked to the mobile home from his pickup, carrying a small child, a sudden rain began. He testified that as he trotted up the wooden walkway leading to the mobile home he slipped, slid two or three feet, the walkway tilted, his foot became anchored and as he twisted to keep the child from harm, he fell, suffering a severe broken leg.
Plaintiff filed a complaint which set out two claims for relief. The first named Rodney D. and Shirley Witt, the owners of the mobile home court, as defendants. The second named the McDonalds as defendants. The second claim was settled out of court and trial was had on the first claim. That trial ended with a directed verdict for defendant owners.
These defendants, Mr. and Mrs. Witt, are owners of the Greenwood Mobile Home Terrace near Whitefish, Montana. Mc-Donalds were tenants, living in the newly constructed portion of the mobile home court. When McDonalds moved in they brought with them a section of wooden walkway which they installed in front of the steps leading to the mobile home. As a courtesy to the tenants, because the area would become muddy as spring progressed, the manager of the mobile home court constructed and delivered additional walkway sections.
When the sections were delivered to the McDonald residence they were placed approximately in line with the other section of walkway but there was no attempt to put them in final position or stabilize them. This occurred four to six weeks prior to the accident. In the time between the delivery of the additional walkway sections and the accident, plaintiff visited the McDonald residence. Mrs. McDonald testified she had noticed these additional sections were unstable and that she had reported this to the court manager.
The issue raised on appeal is whether the directed verdict was properly granted.
In Slagsvold v. Johnson, 168 Mont. 490, 544 P.2d 442, 443, this Court quoted with approval a prior case as stating the law of Montana on directed verdicts:
* * as a general rule, the issues of negligence and contributory negligence must be decided by the jury under appropriate instructions * * * and the settled rule is that a case should not be taken from the jury unless it follows as a matter of law that plaintiff, cannot recover upon any view of the evidence, including the legitimate inferences to be drawn from it; every fact will be deemed proved which the evidence tends to prove.’ ”
Other cases have set out this general proposition in the form of three rules: 1) The evidence introduced by the plaintiff will be considered in the light most favorable to him. 2) The conclusions sought to be drawn from the facts must follow as a matter of law. 3) Only the evidence of the plaintiff will be considered. Hannifin v. Retail Clerks, 162 Mont. 170, 511 P.2d 982; Mueller v. Svejkovsky, 153 Mont. 416, 458 P.2d 265; Pickett v. Kyger, 151 Mont. 87, 439 P.2d 57; Johnson v. Chicago, M & St. Paul Ry., 71 Mont. 390, 230 P. 52.
The question then becomes — whéther, considering only the plaintiff’s evidence in a light most favorable to him, it follows as a matter of law from the facts proven that there is no duty running from the landlord to the tenant’s guest?
This Court in discussing liability of the landlord for injuries occurring on leased premises in Gray v. Fox West Coast Service Corp., 93 Mont. 397, 18 P.2d 797, said:.
‘In the case of injuries to third persons resulting from the condition or use of these premises, it is a general rule that prima facie the breach of duty, and therefore the liability, is that of the occupant and not of the landlord, and that in order to render the latter liable more must be shown than merely that the premises on which or from which the injury arose were leased to him by another.’ ”
To avoid this general rule plaintiff must show more, he must show that he falls within one of the exceptions to this rule. In this case plaintiff relies on the exception which holds the lessor liable for repairs or improvements which are negligently made. The elements which must be shown in order to fall into this exception are set out in 2 Restatement of Torts 2d, § 362, Negligent Repairs by Lessor:
“A lessor of land who, by purporting to make repairs on the land while it is in the possession of his lessee, or by the negligent manner in which he makes such repairs has, as the lessee neither knows nor should know, made the land more dangerous for use or given it a deceptive appearance of safety, is subject to liability for physical harm caused by the condition to the lessee or to others upon the land with the consent of the lessee or sub-lessee.”
It is clear that to find a duty on the part of the landlord four elements must be present: 1) The landlord must make a negligent repair or improvement. 2) That repair or improvement must make the land more dangerous or give a deceptive appearance of safety. 3) The lessee can neither know nor should he know of the danger. 4) There must be physical harm caused by the condition to the lessee or those on the land with his consent.
Here, it is clear that the evidence shows the lessee knew of the condition that plaintiff claimed was dangerous. Even assuming that the lessee did not know the condition was present, it is at least arguable he should have discovered the dangerous condition in the four to six weeks after the new sections were delivered. Once the tenants knew of the condition they ,have the responsibility to protect themselves and those who enter on to the premises from harm. The liability of the landlord remains only as long as the tenants had no knowledge of the danger, his duty was to warn of the danger, and once the tenants knew of the danger the warning is no longer necessary. After tenants know of the danger, they have the duty to either make the premises safe or to warn. It is from this fact the conclusion that the landlord had no duty running to the plaintiff, follows as a matter of law.
The district court’s order directing a verdict for defendant owners is affirmed.
MR. CHIEF JUSTICE JAMES T. HARRISON and -MR. JUSTICES HASWELL and CASTLES concur.
|
[
-20,
33,
5,
-22,
-27,
-27,
7,
32,
-12,
47,
-17,
20,
31,
15,
-33,
-5,
-59,
-1,
13,
-2,
2,
-21,
-60,
7,
-29,
-43,
11,
-36,
-13,
14,
31,
0,
2,
15,
-13,
37,
68,
-17,
9,
-9,
100,
54,
19,
-60,
34,
23,
20,
-13,
52,
-10,
-16,
-28,
12,
-54,
-6,
-7,
-10,
63,
-22,
28,
-41,
25,
-4,
-32,
67,
-39,
64,
-41,
9,
-14,
-3,
27,
10,
-5,
5,
33,
-44,
-13,
-1,
5,
-15,
-8,
45,
3,
-62,
-19,
-9,
-50,
-42,
48,
-49,
11,
21,
-2,
3,
-1,
50,
-15,
-17,
-6,
-23,
8,
49,
28,
4,
-33,
-27,
-18,
33,
61,
-19,
2,
-27,
-8,
-27,
-13,
75,
57,
-17,
3,
33,
32,
4,
-9,
1,
2,
56,
8,
26,
-7,
35,
-3,
-42,
8,
-4,
37,
-19,
-14,
16,
25,
33,
-1,
54,
3,
-52,
7,
-55,
-72,
-30,
-44,
10,
19,
34,
24,
59,
-72,
-25,
44,
-2,
14,
44,
-41,
-7,
53,
17,
-27,
-18,
66,
-19,
25,
32,
-31,
-2,
-47,
37,
50,
30,
-30,
-35,
-16,
20,
13,
64,
23,
-29,
6,
-14,
-36,
21,
-33,
12,
-25,
-36,
-8,
-29,
-14,
17,
-31,
7,
53,
1,
-20,
26,
-18,
11,
42,
-26,
-1,
37,
-72,
30,
-43,
-27,
-20,
39,
24,
-5,
-47,
-29,
-46,
-25,
8,
4,
-25,
-44,
-4,
-31,
-29,
-7,
-1,
-33,
3,
34,
-31,
25,
-17,
-34,
-49,
17,
-13,
63,
-61,
-35,
-38,
-15,
26,
-49,
-11,
-34,
1,
19,
-29,
-15,
-20,
25,
11,
25,
47,
-17,
-19,
51,
-23,
22,
7,
21,
24,
-6,
-23,
-27,
-2,
-16,
28,
21,
-6,
-48,
-54,
-5,
35,
38,
40,
4,
-24,
38,
-35,
-12,
8,
-9,
39,
-54,
-26,
1,
-10,
2,
13,
-2,
-48,
-20,
-49,
-26,
-8,
6,
6,
10,
8,
16,
-1,
-46,
-16,
-11,
-4,
29,
-26,
-17,
4,
5,
11,
13,
10,
49,
-39,
13,
31,
19,
5,
-34,
-12,
0,
-46,
-40,
7,
21,
42,
-4,
0,
69,
-6,
58,
18,
-10,
0,
2,
-17,
8,
-20,
-37,
36,
77,
18,
-5,
2,
-19,
-8,
10,
-45,
7,
19,
-10,
-37,
-44,
5,
21,
-36,
-32,
-19,
-36,
-16,
2,
-39,
-36,
36,
-33,
5,
50,
12,
-35,
-47,
5,
27,
-34,
37,
28,
0,
21,
-10,
-4,
-37,
-21,
-25,
-50,
50,
-52,
-68,
36,
32,
21,
-22,
-22,
-6,
7,
-40,
17,
27,
-7,
-38,
-36,
3,
17,
-55,
17,
-40,
-11,
-16,
-3,
-7,
2,
41,
35,
-14,
-48,
-12,
22,
19,
30,
-41,
35,
-2,
50,
5,
-3,
0,
21,
51,
-12,
-14,
29,
40,
-5,
19,
4,
19,
-36,
-3,
-4,
-19,
21,
-12,
5,
10,
3,
11,
5,
34,
1,
16,
-30,
22,
66,
-59,
-15,
-81,
36,
4,
-1,
-41,
39,
-25,
-18,
-32,
7,
-4,
-17,
31,
45,
-25,
71,
26,
15,
60,
-46,
-22,
-31,
-23,
-2,
45,
-5,
-7,
10,
32,
12,
10,
43,
43,
-70,
21,
-32,
-39,
-38,
59,
3,
-54,
-17,
-35,
9,
21,
87,
-67,
1,
-35,
16,
50,
-9,
3,
47,
16,
-18,
3,
43,
-25,
19,
-6,
32,
-28,
-35,
-72,
-4,
-44,
-19,
23,
-3,
-57,
-92,
17,
16,
5,
0,
29,
1,
19,
19,
-16,
23,
-10,
-3,
-43,
47,
51,
-5,
8,
35,
-26,
63,
2,
11,
21,
20,
-39,
-34,
19,
5,
23,
18,
45,
11,
16,
-20,
-4,
0,
-43,
39,
0,
-33,
27,
-3,
-12,
-34,
-14,
-36,
-3,
-6,
-6,
13,
29,
25,
0,
-18,
-3,
41,
21,
-3,
17,
-30,
-8,
40,
3,
-13,
28,
-11,
-29,
-31,
-46,
-4,
-29,
-29,
19,
50,
-32,
8,
-26,
35,
-4,
15,
20,
-20,
-2,
1,
-3,
35,
-62,
14,
26,
14,
-38,
28,
7,
-56,
-6,
-17,
40,
-31,
-20,
19,
29,
-9,
-52,
7,
39,
-63,
-10,
-29,
-18,
-24,
47,
0,
31,
-13,
-28,
6,
-6,
-42,
0,
-46,
36,
-10,
11,
19,
8,
59,
10,
-15,
-14,
19,
27,
-5,
15,
-18,
-9,
4,
2,
45,
78,
-9,
40,
-27,
89,
19,
-18,
-1,
-11,
4,
-42,
6,
-60,
57,
-25,
12,
-7,
-18,
-33,
30,
-24,
-51,
8,
13,
31,
5,
37,
-12,
63,
37,
-28,
0,
-1,
-33,
10,
-19,
71,
-24,
-36,
-6,
-11,
-24,
88,
-12,
18,
-33,
78,
-17,
-4,
-30,
-41,
-4,
-23,
-36,
-41,
52,
-62,
34,
8,
22,
12,
-40,
43,
11,
72,
-16,
27,
-4,
26,
4,
-18,
-27,
-4,
6,
15,
0,
13,
9,
17,
-8,
-41,
14,
14,
-6,
-41,
8,
-44,
21,
7,
5,
19,
41,
-45,
-29,
28,
-37,
-30,
44,
6,
-18,
-58,
-47,
47,
-14,
-35,
-54,
18,
65,
-11,
30,
-40,
-15,
8,
24,
7,
-12,
17,
42,
33,
6,
17,
-5,
13,
12,
0,
-10,
-25,
-12,
2,
-63,
-17,
-23,
-24,
42,
-2,
-22,
-28,
-1,
13,
40,
2,
5,
-52,
18,
29,
13,
-5,
3,
7,
3,
17,
62,
-36,
-12,
-26,
20,
-42,
5,
-11,
13,
6,
27,
-43,
-44,
11,
-1,
-29,
23,
10,
42,
-27,
-16,
13,
-52,
-2,
20,
-8,
19,
19,
35,
4,
-20,
-28,
29,
-35,
-3,
1,
14,
-9,
15,
41,
34,
-19,
-61,
43,
-42,
-39,
19,
-34,
-70,
56,
-7,
24,
14,
34,
-1,
34,
-23,
-29,
26,
5,
23,
-11,
-31,
28,
-3,
-5,
6,
13,
12,
6,
-24,
22,
-30,
32,
-17,
2,
-15,
-16,
16,
-50,
-19,
18,
-38,
-20,
18,
-32,
27,
15,
5,
2,
-43,
15,
17,
26,
-45,
42,
-42,
22,
14,
36,
-12,
21,
-35,
21,
12,
0,
-34,
3,
29,
70,
-28,
6,
-29,
15,
-42,
-15,
-34,
-27,
-25,
-33,
-8,
12,
27,
30,
-14,
-41,
50,
-29,
-68,
14,
24,
-6,
-27,
22,
70,
36,
-20,
-12,
26,
35,
-40,
16,
-16,
-12,
41,
-62,
7,
-31,
-11,
-24,
4,
-23,
-6,
-70,
38,
13,
-2,
-2,
-23,
-19,
18,
7,
27,
-1,
-7,
11,
-34,
-47,
-20,
-13,
16,
-7,
49,
21,
11,
-1,
-9,
1,
17,
-11,
22,
29,
-37,
-34,
22,
63,
26,
-2,
4,
20,
-38,
2,
-7,
-25,
31,
33,
-13,
25,
9,
17,
-14,
-14,
22,
12
] |
ORDER
This Court having received a handwritten petition for a writ of habeas corpus in this matter with supporting documents and it appearing that the allegations therein should be investigated and determined by the district court,
It is now ordered:
(1) That the district court of the thirteenth judicial district, Stillwater County, is hereby directed to investigate and act upon the five motions listed in said petition and additionally upon a pending petition for writ of habeas corpus previously filed in said district court by petitioners, if the same has not been previously acted upon.
(2) That said district court and the presiding judge thereof is directed to notify this Court concerning what action, if any, is being taken pursuant hereto.
(3) The clerk of this Court is directed to mail all papers herein to the district court of the thirteenth judicial district, Stillwater County, State of Montana, for filing and shall mail a true copy of this order to the presiding judge thereof, petitioners personally and all counsel.
|
[
4,
33,
3,
-15,
40,
-33,
35,
48,
-57,
49,
-36,
1,
-41,
14,
-29,
10,
-42,
-32,
72,
-83,
-25,
-15,
5,
7,
-16,
35,
-37,
-43,
-50,
-27,
-68,
47,
12,
-32,
22,
-3,
108,
-12,
43,
-17,
-23,
43,
17,
-20,
-8,
-33,
-6,
17,
-3,
-2,
29,
-5,
-23,
-29,
-17,
14,
-2,
-54,
6,
10,
-59,
34,
73,
28,
-11,
3,
15,
-40,
15,
-35,
0,
2,
-24,
-27,
4,
45,
-2,
-56,
7,
66,
29,
35,
-66,
30,
34,
-31,
-60,
7,
53,
-24,
-4,
-8,
-82,
-11,
55,
-35,
-11,
16,
39,
49,
-83,
-15,
-17,
29,
-27,
-16,
-51,
19,
-12,
17,
17,
-22,
-35,
-25,
-39,
-33,
-21,
32,
30,
-60,
32,
45,
-28,
60,
-61,
58,
27,
-20,
74,
45,
-22,
-75,
36,
-16,
-8,
-1,
-28,
-11,
6,
16,
16,
-55,
58,
12,
-4,
-36,
12,
28,
-29,
29,
63,
94,
11,
51,
24,
6,
-18,
-8,
-5,
46,
14,
34,
0,
15,
11,
25,
45,
-15,
1,
0,
-20,
5,
1,
25,
39,
15,
-76,
41,
46,
-14,
43,
17,
10,
-38,
-29,
76,
-30,
0,
-7,
2,
-71,
33,
50,
-19,
37,
-5,
-22,
-10,
-40,
-26,
-24,
-18,
18,
-46,
-43,
1,
55,
-23,
33,
-37,
-32,
-30,
9,
79,
-44,
-18,
4,
-46,
-63,
-10,
-24,
-6,
65,
58,
0,
-3,
52,
-5,
-32,
-49,
27,
10,
-1,
-61,
32,
7,
-18,
-14,
-18,
40,
-25,
-22,
4,
-1,
59,
24,
-23,
-25,
-29,
-38,
37,
29,
-41,
34,
35,
-44,
37,
5,
-49,
5,
4,
-45,
62,
25,
-66,
-22,
35,
-13,
20,
28,
-25,
34,
31,
-41,
-11,
51,
48,
-9,
0,
0,
7,
-62,
-39,
-42,
9,
1,
18,
-97,
-22,
-13,
-106,
23,
-27,
-4,
-35,
12,
-3,
-50,
21,
-82,
-16,
-7,
-2,
-11,
-22,
-20,
32,
-1,
-24,
-17,
53,
57,
-73,
31,
-63,
-6,
6,
32,
6,
11,
37,
-4,
-15,
-35,
-38,
42,
-46,
-10,
-10,
53,
0,
-19,
-35,
15,
11,
48,
54,
-7,
-42,
-5,
27,
2,
10,
75,
-34,
32,
21,
28,
-48,
-23,
-45,
5,
1,
42,
-21,
-25,
-59,
22,
44,
85,
0,
-8,
20,
-31,
0,
-55,
38,
2,
4,
-37,
-39,
-43,
65,
-66,
-22,
12,
-59,
-12,
19,
29,
-78,
39,
-15,
-12,
70,
7,
-22,
-2,
-22,
-40,
10,
32,
-14,
66,
-28,
-16,
-53,
-23,
45,
-35,
-2,
61,
31,
50,
-28,
16,
31,
-12,
71,
76,
57,
-29,
-57,
-17,
34,
-60,
-40,
39,
-39,
-45,
-26,
12,
-41,
-65,
85,
25,
47,
-2,
-30,
28,
2,
4,
1,
13,
29,
-5,
-32,
-8,
-2,
-19,
22,
-47,
-17,
16,
-55,
-64,
13,
24,
-12,
0,
34,
22,
-68,
-32,
26,
56,
1,
61,
-48,
-45,
-32,
-7,
9,
-5,
-19,
83,
6,
-33,
-12,
63,
-79,
3,
-19,
19,
-37,
-9,
23,
-3,
50,
-11,
-9,
26,
-16,
53,
48,
29,
-16,
22,
-24,
34,
-22,
-32,
-82,
65,
-5,
40,
-30,
19,
43,
40,
33,
0,
-23,
53,
26,
37,
22,
29,
-29,
-17,
29,
-41,
34,
-94,
-17,
34,
31,
-51,
-50,
38,
-3,
-4,
-34,
-34,
4,
-12,
92,
-12,
-45,
9,
-16,
-25,
-24,
9,
-44,
-20,
20,
-4,
-11,
-51,
59,
-67,
48,
-11,
0,
-18,
-45,
-32,
20,
6,
33,
17,
1,
8,
28,
17,
9,
-27,
-33,
-13,
1,
-33,
-22,
-11,
-6,
28,
-31,
15,
-28,
-22,
26,
83,
14,
30,
7,
30,
-53,
-12,
21,
-15,
11,
-25,
1,
-20,
19,
-17,
51,
8,
-29,
2,
-27,
15,
-25,
5,
-17,
42,
6,
-13,
50,
21,
-5,
20,
21,
6,
56,
2,
-14,
13,
13,
-73,
-42,
2,
52,
67,
-4,
22,
30,
-24,
10,
39,
-54,
-124,
18,
29,
5,
-17,
17,
1,
54,
-47,
-56,
10,
58,
-46,
17,
22,
-64,
22,
28,
-56,
3,
29,
-11,
-58,
-4,
-32,
4,
-14,
32,
15,
62,
9,
-22,
-11,
13,
-14,
59,
4,
48,
61,
36,
-51,
-26,
32,
-22,
13,
-1,
34,
47,
78,
19,
-1,
-83,
-17,
-46,
1,
-34,
-29,
27,
-41,
17,
51,
-17,
3,
7,
-13,
111,
55,
-50,
-42,
-10,
14,
0,
45,
74,
-12,
-11,
4,
-51,
10,
60,
-5,
-26,
3,
-2,
-21,
-68,
25,
-14,
20,
-55,
56,
9,
11,
-1,
-18,
5,
18,
57,
-17,
-32,
-9,
-27,
36,
9,
-34,
-23,
17,
-19,
2,
32,
-14,
27,
0,
-6,
7,
-10,
9,
-21,
17,
-4,
-37,
15,
-44,
26,
23,
49,
-3,
-21,
18,
64,
-31,
0,
15,
-33,
-7,
34,
-90,
18,
-19,
90,
13,
23,
-6,
22,
-14,
26,
-9,
-10,
-7,
60,
-7,
-17,
-39,
11,
-21,
-13,
-6,
65,
-59,
0,
-45,
22,
-21,
53,
8,
1,
34,
-51,
0,
56,
-39,
44,
-43,
41,
50,
12,
3,
-67,
78,
22,
1,
26,
23,
-87,
49,
-24,
47,
-61,
30,
0,
-26,
15,
-64,
0,
-25,
27,
14,
0,
-58,
0,
-89,
57,
8,
-8,
11,
-23,
-37,
1,
-6,
27,
19,
47,
-54,
-31,
7,
-13,
-33,
-18,
31,
-1,
1,
44,
-75,
13,
4,
29,
56,
56,
4,
7,
96,
-29,
0,
-24,
1,
43,
-23,
-25,
32,
19,
17,
49,
-35,
-30,
-13,
-10,
-10,
3,
24,
39,
-58,
-28,
74,
47,
-31,
33,
52,
35,
-27,
-3,
15,
9,
-5,
-40,
21,
-35,
7,
-25,
3,
-36,
-17,
-18,
72,
-14,
72,
-45,
-93,
-18,
21,
15,
27,
30,
-18,
21,
-11,
-5,
7,
18,
29,
5,
34,
1,
-20,
-19,
-12,
-5,
-53,
60,
-11,
18,
11,
-18,
29,
-32,
63,
-22,
16,
8,
-8,
-33,
13,
-46,
-44,
-13,
-21,
35,
-1,
-21,
12,
-17,
-1,
22,
-48,
33,
71,
-7,
-28,
-48,
16,
-45,
-2,
18,
-4,
-3,
60,
-2,
1,
19,
-4,
-16,
-43,
22,
7,
-30,
-19,
-68,
16,
-19,
1,
-32,
75,
-46,
31,
57,
-13,
-7,
-31,
61,
29,
-24,
-26,
-5,
-36,
37,
76,
13,
-22,
-35,
-28,
57,
-13,
-25,
-71,
-16,
27,
-20,
-54,
-32,
-13,
29,
-15,
-25,
-10,
13,
-56,
-32,
-14,
7,
54,
-37,
-52,
-18,
1,
-36,
-25,
22,
-68,
39,
21,
-45,
-42,
78,
55
] |
MR. JUSTICE HASWELL
delivered the opinion of the court.
Defendant appeals from his conviction of theft, aggravated assault, and two counts of sale of dangerous drugs in the district court, Missoula County.
On June 5, 1975, Officer Bill Olsen, of the Region One Anti-Drug Team, Missoula sheriff’s office, and Keith Sorenson of the Glasgow police department, met defendant in Missoula.
According to Olsen’s testimony, Hendricks said he would sell him 1,000 hits of speed. Olsen didn’t have enough money, so then Hendricks said he could get some cocaine. The officers did not have enough money for this either, so Hendricks said he would get them some crystal methamphetamine. Officer Olsen and defendant went to a Missoula bar where Hendricks entered and returned. Hendricks then gave Olsen a paper packet containing powder in exchange for thirty dollars, representing it to be crystal methamphetamine. It was from this transaction that one count of sale of dangerous drugs resulted. The powder later proved to be caffeine, an uncontrolled substance.
The second count of criminal sale of dangerous drugs arose from an incident occurring in the early morning hours of June 8, 1975.
A couple of days after buying the packet of powder, Officer Olsen and Hendricks encountered each other on the street in Missoula. Hendricks asked the undercover officer if he had his money this time. The officer answered that he did, but when he refused to show it Hendricks poked him with a knife, later resulting in the aggravated assault charge. Olsen then pulled his gun. Olsen testified that Hendricks, upon seeing the gun, ran from Olsen shouting “Don’t shoot! * * * Let’s make a deal, * * * I’ve got the dope. * * *”
After Hendricks produced two paper packets from the trunk of his car and handed them to Olsen, Olsen attempted to place Hendricks under arrest. A scuffle and foot chase ensued. After Hendricks had been apprehended, Olsen returned to the Hendricks’ car. A young woman passenger in the car was gone and the paper packets and knife could not be found.
The theft charge resulted after Hendricks’ brother-in-law reported to police he had found items in the trunk of his car that proved to be stolen.
Defendant presents two issues for review:
(1) Did the evidence introduced at trial support the convictions of two counts, sales of dangerous drugs, under section 54-132(a), R.C.M.1947?
(2) Is it manifest error entitling defendant to a new trial on all issues, when a brother-in-law of the trial judge becomes a member of the jury?
With respect to the first issue defendant argues the prosecution failed to prove Hendricks intended to sell dangerous drugs when the one packet contained caffeine and the contents of the other two packets were not recovered.
Section 54-132(a), R.C.M.1947, provides:
“A person commits the offense of a criminal sale of dangerous drugs if he sells, barters, exchanges, gives away, or offers to sell, barter, exchange or give away, manufactures, prepares, cultivates, compounds or processes any dangerous drug as defined in this act.” (Emphasis added.)
The two counts of the information by which defendant was charged in the present case alleged defendant “offered to sell” dangerous drugs on June 5 and again on June 8, 1975.
The jury was instructed as follows on this point:
“You are instructed that if you find in your deliberations that the defendant offered for sale what he believed to be a dangerous drug, you must find him guilty irregardless of whether or not the substance was in fact a dangerous drug.”
This instruction states essentially what defendant argues the law to be. Its meaning is essentially the same as defendant’s offered instruction, but it is more clearly worded.
Defendant’s argument is on a factual basis. Counsel argues that defendant knew the powder was not an illegal drug in spite of what he may have represented the contents of the paper packets to be when he sold them to the undercover officer. Counsel argues defendant’s only intent was to obtain money.
Such a factual determination was for the jury and will not be set aside by this Court if there is substantial evidence to support the verdict.
We find there is substantial evidence to justify the jury’s verdict that defendant thought he was selling dangerous drugs on June 5 and June 8, 1975.
On June 5, defendant obtained the substance from his source only seconds before he delivered it to Officer Olsen. He therefore did not have the opportunity to test it. The substance in fact looked like crystal methamphetamine. Within a block of the point that defendant and Officer Olsen got in the car after obtaining the substance, defendant insisted that Officer Olsen try some of it. Had defendant known that the substance was not crystal methamphetamine, it is reasonable to believe, he would not have made such a request.
The encounter on June 8 occurred by accident. Defendant was headed south on Ryman Street and Officer Olsen was driving north. Defendant made a U-turn and drove up behind the officer. Had defendant thought that he had sold Officer Olsen caffeine and sugar on June 5, defendant would probably have attempted to avoid him by continuing south on Ryman Street.
Defendant displayed the caution which is characteristic of one who deals in drugs. He wanted to see Officer Olsen’s money before allowing the officer to see where he kept the drugs. One could certainly infer from this conduct that defendant was afraid that Olsen would seize the drugs and leave without paying. Defendant knifed the officer when he demanded to see the drugs first. If defendant thought that he had only worthless powder in the trunk, he would not have needed to be so cautious.
Concerning the second issue, defendant’s contention is that he was deprived of a fair trial by an impartial jury because the trial judge’s brother-in-law served on the jury.
Defendant alleges the prosecuting attorney, Ed McLean, asked the entire jury panel on voir dire whether any of them were related to any of the court officials and none responded. McLean however, on oral argument, denied he asked the question. The juror in question stated under oath he would have made his relationship known if he had been asked, as he did in the form questionnaire sent to prospective jurors.
Defendant’s unsupported allegation to the contrary will not support his claim of erroneous answers on voir dire examination of this juror. State v. Thomson, 169 Mont. 158, 545 P.2d 1070, (1976). (Habeas corpus granted on other grounds, 33 St.Rep. 681.) There is no record of the voir dire examination before us.
It is the practice in Missoula County to send a form questionnaire to prospective jurors as to their qualification for jury service. On this questionnaire,- the juror in question indicated that the Hon. E. Gardner Brownlee, the trial judge in the case, was his brother-in-law. Defendant did not make timely objection on voir dire nor exercise his option to a peremptory challenge of this juror. v
Defendant has not shown authority for disqualification of this juror. Section 95-1909(d)(2), R.C.M.1947, sets forth the grounds for challenge for cause. Relation to the trial judge is not one of the grounds as was stated in State v. Thomson, 545 P.2d at p. 1073, 169 Mont. at p. 165.
“* * * unless the juror falls within one of the categories of section 95-1909, he will not be removed for cause without a showing of partiality. * * *”
There is no showing of partiality here.
Defendant also contends that' the trial judge spoke with his brother-in-law on the jury during the course of the trial resulting in prejudice. The most that can be made of this allegation is that the juror may have commented to the judge that jury service was a demanding and tiring experience.
If defendant seriously contends there was a discussion of the merits of the case, we find no indication it occurred. Rather, the record indicates the juror and the judge conducted themselves with honor and propriety with a highest regard for fairness to the accused.
Defendant has shown neither error nor prejudice, therefore we affirm the convictions.
MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES CASTLES and JOHN C. HARRISON concur.
|
[
5,
0,
10,
32,
-31,
-32,
2,
33,
-47,
27,
-39,
6,
34,
-11,
26,
32,
22,
19,
50,
-9,
57,
-75,
-24,
8,
11,
-38,
9,
44,
-24,
38,
28,
-3,
75,
-38,
34,
75,
3,
-9,
20,
-8,
-11,
-6,
19,
25,
-9,
-3,
-25,
16,
11,
-33,
69,
-33,
18,
9,
37,
39,
29,
-34,
-20,
-25,
-55,
-35,
-21,
-20,
3,
-11,
-20,
0,
0,
-63,
-18,
12,
-8,
32,
26,
-12,
-5,
37,
-13,
9,
-12,
42,
46,
11,
4,
34,
-7,
-73,
23,
-52,
51,
-6,
0,
-26,
35,
-21,
-14,
-8,
24,
-24,
-49,
-30,
-53,
-16,
25,
-3,
27,
27,
38,
29,
-13,
2,
43,
2,
-2,
1,
-53,
-18,
-8,
56,
5,
-33,
17,
35,
-4,
-36,
3,
10,
-6,
-35,
-44,
27,
32,
29,
-30,
-28,
-33,
36,
20,
15,
-26,
38,
20,
-18,
12,
3,
36,
14,
11,
41,
-85,
-74,
15,
39,
-17,
-70,
10,
-33,
-12,
6,
-3,
-36,
-24,
-37,
22,
6,
35,
-3,
-34,
-12,
-7,
-20,
13,
41,
78,
34,
-25,
27,
5,
-42,
1,
12,
-5,
-29,
-38,
-40,
61,
-10,
-6,
-30,
-10,
24,
-41,
-25,
2,
-31,
9,
31,
18,
-43,
29,
-32,
12,
17,
-21,
39,
-3,
15,
77,
19,
24,
-12,
38,
-62,
-16,
-18,
-37,
1,
-11,
-41,
-5,
-65,
-28,
38,
-22,
-56,
-9,
6,
-37,
-9,
-6,
20,
12,
1,
-22,
-42,
-21,
-42,
22,
0,
3,
-41,
-82,
-1,
40,
1,
-42,
-41,
21,
2,
-41,
8,
8,
20,
-66,
-35,
46,
-85,
6,
-12,
2,
62,
6,
41,
1,
4,
9,
35,
-53,
55,
-54,
-19,
-26,
-22,
-13,
-6,
-27,
36,
14,
43,
44,
-29,
59,
-9,
-9,
-14,
-31,
63,
7,
-28,
8,
-10,
3,
-34,
19,
28,
40,
26,
-45,
22,
-32,
16,
-67,
0,
22,
-37,
39,
-11,
4,
0,
24,
1,
32,
-4,
-27,
-3,
-19,
2,
37,
-32,
7,
12,
-35,
-15,
-35,
-25,
-23,
-5,
34,
-15,
7,
24,
-10,
-13,
-61,
0,
-6,
-5,
31,
-13,
-59,
-24,
43,
-36,
13,
28,
-2,
63,
-31,
-78,
23,
-29,
24,
18,
10,
-14,
-9,
7,
45,
-57,
26,
9,
7,
-11,
-34,
0,
22,
-21,
-30,
-6,
0,
-32,
7,
22,
22,
1,
51,
-47,
26,
11,
17,
-23,
57,
-8,
8,
-8,
8,
-46,
-26,
24,
-40,
31,
-16,
-28,
-13,
-47,
-18,
-30,
35,
-9,
6,
24,
70,
30,
-5,
-38,
16,
0,
2,
-33,
-64,
-31,
8,
-5,
33,
5,
12,
-3,
-32,
-10,
14,
33,
31,
-31,
34,
-2,
-37,
35,
2,
15,
16,
13,
28,
-12,
-55,
-43,
-41,
-24,
-10,
9,
10,
-8,
-42,
40,
55,
42,
-40,
-22,
10,
14,
32,
-37,
5,
39,
-5,
86,
46,
5,
18,
-5,
14,
-10,
-31,
32,
43,
-33,
-10,
-74,
38,
21,
39,
62,
-22,
-17,
-7,
48,
-1,
-25,
41,
-15,
1,
20,
-8,
28,
20,
-40,
-49,
-69,
-4,
60,
65,
-10,
5,
18,
-25,
-7,
34,
23,
5,
21,
-37,
-26,
-16,
26,
-10,
26,
73,
36,
-6,
10,
33,
103,
-60,
-56,
-23,
-27,
-32,
-27,
-35,
15,
67,
27,
28,
0,
7,
-21,
14,
-52,
-56,
-55,
-14,
3,
30,
-74,
56,
-2,
57,
26,
39,
-4,
32,
-61,
-34,
-21,
-39,
1,
25,
7,
46,
26,
-12,
58,
27,
-32,
29,
1,
37,
35,
-65,
22,
-63,
56,
8,
45,
44,
19,
22,
4,
56,
27,
-43,
52,
-4,
-26,
-20,
0,
-9,
21,
-32,
50,
29,
33,
11,
14,
-22,
-6,
30,
-12,
10,
-9,
14,
-13,
24,
18,
-38,
1,
-36,
-24,
-54,
-10,
82,
-30,
-30,
26,
50,
-57,
-23,
1,
2,
19,
4,
25,
7,
-34,
-49,
86,
-35,
-13,
18,
-26,
-10,
-36,
2,
31,
-13,
-18,
-82,
-39,
-15,
-14,
-47,
-53,
44,
-3,
-17,
-9,
20,
1,
-98,
-58,
6,
38,
21,
27,
41,
5,
-47,
16,
16,
-37,
-6,
0,
-33,
-51,
6,
43,
10,
33,
-12,
-26,
-34,
54,
-66,
-43,
16,
12,
36,
-54,
-40,
3,
7,
-40,
-3,
-44,
62,
-4,
-8,
-18,
36,
-2,
1,
-47,
8,
3,
-54,
9,
10,
-42,
9,
31,
0,
76,
24,
-9,
25,
-5,
1,
5,
-33,
-67,
49,
7,
-40,
17,
-9,
56,
17,
2,
-15,
13,
-41,
25,
-65,
-19,
-77,
-51,
-48,
-3,
-24,
-15,
-54,
-38,
17,
34,
19,
-36,
45,
0,
-19,
-34,
40,
-25,
5,
-15,
4,
40,
-46,
29,
-12,
21,
-23,
29,
4,
-21,
-31,
-17,
4,
-65,
27,
-25,
55,
22,
44,
42,
-17,
-3,
20,
25,
-46,
-37,
9,
77,
-23,
-25,
-6,
-10,
-22,
-20,
-5,
8,
-32,
-21,
-47,
-17,
23,
18,
-47,
-3,
-6,
-18,
17,
-12,
-80,
17,
-7,
33,
5,
34,
3,
49,
-6,
11,
-13,
-13,
-21,
-15,
8,
3,
56,
-49,
36,
-25,
45,
-47,
7,
39,
29,
9,
0,
7,
-8,
23,
49,
-23,
21,
10,
-11,
-55,
-10,
-16,
52,
-22,
-5,
-24,
-24,
29,
-13,
-15,
-50,
-11,
-22,
18,
55,
42,
-39,
0,
9,
-58,
6,
52,
47,
15,
34,
70,
66,
4,
42,
-18,
28,
15,
5,
-34,
-39,
-16,
-38,
29,
-53,
33,
30,
43,
6,
5,
-70,
12,
26,
-9,
39,
6,
-60,
25,
6,
-6,
58,
69,
6,
9,
-5,
-24,
-34,
-20,
21,
-62,
37,
-8,
1,
-38,
-34,
-21,
0,
-7,
-92,
-51,
-39,
-65,
-37,
-66,
34,
1,
68,
-30,
49,
-20,
-51,
68,
69,
-3,
32,
15,
-4,
3,
23,
-28,
52,
34,
0,
-32,
-46,
5,
88,
19,
15,
85,
28,
66,
39,
16,
-45,
-23,
-60,
23,
-73,
13,
-27,
-27,
2,
36,
51,
18,
-33,
20,
-16,
10,
16,
36,
32,
25,
21,
-14,
-14,
41,
17,
14,
-31,
46,
-25,
51,
7,
16,
27,
16,
-40,
20,
-44,
-13,
-21,
3,
10,
24,
16,
1,
31,
-71,
3,
-9,
61,
-8,
11,
5,
0,
-2,
-54,
0,
22,
13,
42,
-6,
27,
71,
-41,
9,
-69,
11,
11,
-3,
-29,
29,
-28,
-16,
-13,
-52,
3,
-21,
-39,
-8,
-2,
-15,
34,
-15,
8,
17,
22,
-32,
-18,
-48,
4,
37,
-10,
39,
-68,
50,
-73,
63,
24,
45
] |
MR. CHIEF JUSTICE JAMES T. HARRISON
delivered the opinion of the court.
This is an appeal from a jury verdict entered in the district court, Gallatin County.
On December 31, 1974, two men robbed the Oakes Bar in Bozeman, Montana. The men wore stocking caps and ski masks throughout the robbery. The taller of the two men with a gun in his left hand controlled the robbery, while the other man remained near the back of the bar in the shadows, also armed with a gun. The shorter man was referred to as “Michael” by the taller man. The owner described the taller man as 5' 10" to 6' tall, 185-220 lbs., brown shoulder length hair, wearing glasses, a blue or green down jacket, and a stocking cap. The two men left through the rear door after the robbery.
At about this time a man outside the Oakes Bar observed two men, one carrying a gun, run out the rear door of the Oakes Bar and enter a brown GM type car with a white top, having no rear license plate. This witness was joined shortly by the owner of the Oakes, whereupon they watched this car proceed in an easterly direction. The police were notified and an all points bulletin was issued giving a description of the car and the two robbers.
Shortly thereafter, a brown GM type automobile with a white top, bearing no license plates was stopped east of Bozeman. Three men were in the car, Gary Radi, John Michael Miner, and defendant, Bryon Paul Beaudette. Defendant was 6' 1" tall, weighed 220 lbs., had long brown hair, and wore glasses. In the back seat of the car was a blue down jacket, later worn by Beaudette when questioned in Livingston.
On January 2, 1975, the owner of the Oakes Bar, three patrons present during the robbery, and the witness who observed the get-away car were asked to make a photographic identification. One at a time these witnesses were asked to look at three pictures, and were told that all three men were suspects. The owner and one patron selected Beaudette as the taller robber. The other witnesses were unable to make any identification whatsoever.
At trial, the prosecution presented evidence of the pretrial photographic identification of defendant, as well as a positive in-court identification by the owner, and a tentative in-court identification by one patron. At the time of the in-court identifications, defendant was not seated at the defense counsel table, but in the fourth row of the spectator portion of the courtroom. Defendant was convicted by the jury and sentenced to 40 years in prison.
Defendant now appeals that judgment raising a single issue: Whether the conviction resulted from photographic identification procedure that was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification?
Leading United States Supreme Court cases dealing with pretrial identification procedures and subsequent in-court identifications are Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247, 1253; Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402; and Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 34 L.Ed.2d 401, 410.
In Neil there is dictum that there are two distinct tests, a more stringent one requiring inadmissibility of evidence of pretrial identification, and a more lenient one applied to cases such as Simmons, where only an in-court identification is relied upon. A thorough analysis from Stovall through Neil is provided by Justice Friendly in Brathwaite v. Manson, 527 F.2d 363 (2nd Cir. 1975). As Justice Friendly points out, there is sound policy to require inadmissibility of evidence of an impermissibly suggestive pretrial identification, since more probative value is often times given to such than an in-court identification. The reason is that the pretrial identification is usually made immediately after the crime, when it is still fresh in the minds of the wit nesses, and such identification is not subject to cross-examination as is the in-court identification.
However, in this case we are confined to the admissibility of the in-court identification, since defendant did not object to the pretrial photographic evidence, and his proposed instruction questioned only the reliability of the in-court identification. Therefore, we must apply the appropriate test for those cases where the prosecution relies solely upon an in-court identification, as mandated by Neil, citing Simmons:
‘ * * * we hold that each case must be considered on its own facts, and that convictions based on eye-witness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ ” (Emphasis supplied.)
The photographic identification procedure used here (only 3 pictures presented, and each witness informed that such pictures were of the robbery suspects) cannot be praised by this Court, since it was somewhat suggestive. However, considering the entire record, such procedure was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification in court (at which time defendant was not seated at the defense counsel table, but in the fourth row of the spectator portion of the courtroom). What does appear from the record is that there are, similar to State v. Borchert, 156 Mont. 315, 319, 479 P.2d 454, sufficient material facts, other than the in-court identification, to support this conviction.
Two men robbed the Oakes Bar, the taller of the two held a gun in his left hand, wore a blue or green down jacket, and was described as 6' tall, 185-220 pounds, wore glasses, and had brown shoulder length hair. The two men got into a brown GM type car with a white top, without rear license plates and headed east. Shortly thereafter, a brown GM type car, with a white top and no license plates in which defendant was riding was stopped east of Bozeman. At this time defendant was 6' 1" tall, weighed 220 lbs., had long brown hair, wore glasses, and was left-handed. Also there was a blue down coat on the back seat of the car which was worn by defendant later in Livingston. During the robbery, the taller man referred to the shorter one as “Michael”. Also in the car was John Michael Miner, sometimes referred to as “Mike” by friends. The witness who observed the get-away car, testified this car was identical to the one he saw leave from the back of the Oakes. When the car was stopped, a highway patrolman observed a box partially under the front seat. When the car was searched in Livingston, the box was missing. Furthermore, a second eyewitness made a tentative in-court identification.
Where there is substantial evidence to support the jury’s verdict, this Court will not reverse. State v. Miner, 169 Mont. 260, 546 P.2d 252.
The judgment is affirmed.
MR. JUSTICE HASWELL, JOHN C. HARRISON and DALY and HONORABLE ROBERT C. SYKES, sitting for Mr. Justice Castles, concur.
|
[
62,
3,
35,
1,
-21,
-60,
0,
-17,
-25,
31,
56,
-22,
9,
-42,
16,
-4,
-61,
29,
15,
-31,
8,
-54,
-66,
-6,
19,
-49,
9,
27,
-74,
7,
2,
23,
40,
-63,
11,
71,
10,
-13,
-49,
-24,
15,
43,
-56,
-6,
4,
-20,
0,
-9,
-33,
1,
16,
-53,
51,
-14,
-20,
37,
32,
21,
-2,
14,
26,
7,
34,
-6,
52,
-67,
15,
-46,
19,
-21,
36,
-4,
-11,
5,
-4,
-65,
7,
-20,
2,
-15,
-5,
12,
17,
21,
18,
-20,
38,
-21,
-9,
3,
-10,
4,
-42,
2,
53,
-33,
-16,
-12,
-15,
-17,
-36,
-56,
-23,
-33,
19,
22,
-10,
2,
40,
26,
-2,
-23,
123,
51,
-10,
31,
-12,
20,
-7,
27,
-2,
28,
25,
46,
-19,
-84,
-32,
-22,
-19,
9,
1,
0,
-14,
5,
-49,
6,
-40,
40,
-101,
-31,
17,
8,
13,
41,
-14,
27,
-17,
23,
32,
20,
4,
-7,
-15,
39,
-14,
12,
-40,
-29,
-15,
0,
30,
-74,
15,
20,
46,
39,
-20,
11,
-49,
-4,
-31,
-25,
40,
21,
40,
63,
-27,
-26,
13,
-25,
13,
-20,
-40,
24,
-10,
-36,
33,
14,
16,
5,
-37,
24,
-19,
-25,
-17,
-4,
74,
-38,
-32,
-23,
69,
-10,
22,
14,
-47,
-17,
73,
11,
25,
39,
23,
46,
36,
-2,
9,
-18,
-14,
-46,
16,
-32,
-53,
-45,
-68,
-26,
-30,
-30,
9,
52,
-27,
21,
-12,
-31,
6,
-3,
0,
-48,
0,
-84,
1,
25,
27,
-57,
5,
-31,
44,
35,
-38,
-22,
13,
14,
23,
21,
-45,
39,
-23,
-11,
111,
-27,
53,
-13,
-22,
-4,
27,
-13,
13,
57,
-1,
5,
-49,
23,
-4,
-22,
22,
14,
-19,
-20,
13,
51,
21,
1,
49,
-23,
-43,
23,
39,
-51,
-33,
-4,
-30,
-27,
-22,
-20,
-4,
-15,
14,
-39,
5,
40,
15,
14,
6,
39,
-37,
-34,
-27,
4,
-4,
-3,
-8,
-5,
17,
14,
6,
-25,
47,
-18,
-7,
46,
-12,
-24,
-12,
-20,
34,
-19,
38,
15,
-13,
46,
24,
21,
-1,
12,
-51,
38,
-23,
-2,
57,
33,
77,
31,
-59,
-23,
42,
-29,
-14,
32,
-59,
28,
-69,
-68,
2,
11,
58,
23,
28,
-16,
-21,
-8,
-8,
-50,
59,
-60,
-19,
56,
14,
-12,
-37,
0,
3,
-28,
-48,
-17,
42,
-8,
22,
3,
53,
6,
-20,
35,
37,
-37,
-36,
-89,
-28,
-11,
-9,
-98,
-42,
13,
-81,
-12,
8,
8,
10,
31,
-23,
-47,
80,
-53,
-98,
38,
-11,
-18,
-81,
-7,
-7,
43,
14,
-76,
-36,
-5,
25,
1,
19,
45,
-16,
12,
-89,
9,
-18,
-13,
14,
-48,
12,
-41,
10,
-11,
-36,
5,
39,
-8,
-12,
26,
-1,
-52,
-6,
-24,
8,
-32,
-34,
-84,
-24,
10,
30,
47,
0,
8,
43,
12,
12,
49,
-5,
-46,
-33,
64,
47,
9,
-9,
2,
56,
13,
-61,
-1,
53,
5,
-52,
-39,
-32,
3,
28,
1,
12,
-4,
-31,
16,
44,
-6,
-85,
-1,
11,
-24,
42,
16,
-55,
-69,
-11,
-12,
36,
85,
45,
41,
47,
-54,
13,
-4,
-31,
18,
8,
-47,
-47,
9,
-23,
15,
13,
-3,
26,
48,
-59,
87,
-28,
37,
-18,
-27,
-50,
-40,
8,
39,
-44,
7,
59,
29,
79,
57,
-26,
22,
-4,
-32,
14,
-30,
-57,
15,
-14,
7,
31,
11,
56,
54,
24,
-40,
29,
-48,
5,
-20,
-27,
-1,
16,
-24,
27,
-20,
55,
1,
39,
-20,
22,
-31,
-17,
-15,
-33,
-12,
33,
41,
19,
5,
3,
46,
-32,
22,
57,
3,
-76,
79,
-14,
-11,
3,
-4,
-14,
28,
-8,
56,
36,
8,
-19,
53,
-56,
15,
7,
-6,
-51,
38,
-14,
0,
15,
50,
5,
32,
-30,
27,
-55,
-14,
17,
-8,
54,
35,
80,
-13,
3,
-47,
3,
28,
16,
13,
5,
27,
-41,
26,
-36,
-35,
14,
-5,
50,
-34,
23,
57,
9,
-4,
-39,
7,
41,
-29,
-42,
-47,
-17,
12,
20,
-21,
-1,
18,
-63,
21,
-4,
22,
29,
31,
14,
-39,
-41,
12,
35,
-48,
-55,
-22,
-1,
-22,
0,
17,
10,
4,
-20,
24,
-5,
66,
-74,
-3,
40,
0,
16,
-19,
59,
62,
55,
-34,
-12,
-10,
10,
-2,
5,
4,
23,
-4,
19,
-1,
-7,
8,
-37,
29,
0,
-19,
26,
14,
-37,
-8,
-39,
-36,
13,
9,
6,
-14,
-65,
-38,
-5,
-12,
6,
-37,
9,
39,
14,
-62,
8,
18,
-32,
45,
-28,
24,
42,
-75,
-41,
5,
-3,
16,
-1,
-13,
-21,
13,
56,
7,
-15,
14,
-2,
11,
-10,
30,
-17,
-50,
-11,
59,
-34,
-6,
-37,
19,
-76,
-17,
31,
72,
-2,
-29,
22,
-52,
12,
-20,
37,
61,
-8,
-37,
8,
8,
0,
93,
-6,
-36,
63,
10,
-7,
14,
-76,
4,
9,
0,
10,
-41,
-28,
-12,
-40,
61,
-43,
-3,
7,
-47,
8,
-10,
13,
-35,
-33,
23,
13,
40,
-23,
28,
-26,
-10,
-4,
7,
27,
-29,
-59,
-8,
42,
10,
25,
5,
18,
67,
60,
30,
70,
-37,
55,
36,
9,
-32,
-14,
-15,
57,
-26,
16,
-7,
-24,
-42,
-2,
-36,
20,
-22,
33,
-6,
0,
2,
-92,
-45,
-6,
5,
-41,
-3,
34,
0,
-1,
20,
-7,
-36,
22,
10,
56,
6,
-40,
29,
58,
-20,
38,
-17,
-25,
26,
-10,
16,
-9,
-19,
-5,
6,
34,
-20,
25,
19,
9,
-25,
-40,
16,
-42,
-42,
82,
-6,
-38,
45,
-2,
-3,
10,
60,
-19,
41,
20,
-12,
41,
-42,
-2,
-14,
-10,
3,
-2,
-30,
15,
-50,
36,
2,
-48,
0,
-45,
-7,
8,
-26,
-36,
22,
38,
-15,
4,
35,
-75,
-15,
63,
-13,
35,
7,
29,
27,
65,
24,
22,
-8,
9,
-5,
-16,
0,
22,
27,
20,
-1,
15,
29,
26,
22,
-14,
2,
-47,
68,
-42,
50,
30,
-64,
-29,
31,
-8,
0,
1,
0,
-30,
-9,
-36,
35,
45,
33,
-4,
-43,
-1,
18,
8,
-19,
-4,
24,
60,
10,
-41,
3,
18,
12,
-25,
56,
3,
-27,
-17,
-17,
9,
-24,
-6,
29,
-24,
-18,
8,
3,
10,
21,
-33,
43,
20,
-21,
-39,
20,
9,
16,
29,
21,
-39,
51,
-12,
68,
-62,
13,
-45,
23,
38,
25,
7,
-14,
-50,
6,
-16,
9,
2,
-30,
14,
13,
19,
10,
15,
-16,
-37,
-72,
-18,
-51,
4,
-35,
14,
44,
-22,
32,
-89,
4,
-9,
6
] |
MR. JUSTICE SMITH
delivered the opinion of the court.
After this case was remanded for a new trial (see O’Meara v. McDermott, 40 Mont. 38, 104 Pac. 1049), the defendant amended his answer by pleading a former adjudication, predicated upon the judgment entered in favor of the defendants in the action brought by O ’Meara and Kerrigan against McDermott and wife for an accounting of the profits resulting from the sale of the mining claims mentioned in the former opinion of this court, as alleged partners of McDermott. The amended answer -also contains the allegation that by the commencement and prosecution of the so-called partnership action for an accounting, O’Meara elected to rely on his claim that he was a partner and to pursue such remedies as were open to him for the enforcement of that claim, and that, by reason of so electing, he is now estopped from prosecuting this action. The second trial resulted in another verdict against the defendant in the sum of $12,000. Judgment was entered accordingly, and appeals were taken from the judgment, and from an order denying a new trial.
1. Appellant’s contention that the judgment in the former action is a bar to the prosecution of this cause is untenable. The judgment and findings of fact made by the court disclose that the sole question decided was that the alleged agreement of partnership was never entered into between the parties. The court filed a “decision” wherein the findings of fact are made. We shall treat this “decision” as findings of fact, which doubtless it was intended to be. Therein the court speaks of the circumstance that a note for $12,000 was given, and says he is “persuaded this was done with O’Meara’s and Kerrigan’s full knowledge and consent as settlement for whatever services and information they gave McDermott in the sale of the claims.” This language negatives the idea that the court decided that O’Meara had no claim of any kind against McDermott. At the second trial the court told the jury that on the former trial it was determined “that there never was any agreement of partnership between the parties hereto in relation to such matter, and that plaintiff was not a partner with defendant in such enterprise.” We think this language fairly and fully construes the judgment, and that the court in submitting the issues to the jury at the second trial correctly held, in effect, that the plaintiff was not estopped by the first judgment.
2. The court also instructed the jury as follows: “In order to make a note or other written obligation binding upon the party signing the same, it must not only be delivered to the payee or obligee, or to someone for him, but it must be accepted by him; that is, he must receive it into his possession intending to hold and enforce it against the payor or obligor pursuant to some precedent agreement in accordance with which it is delivered. If, accordingly, you find that the plaintiff on receiving from the defendant the instrument sued on, and acquainting himself with its contents, declined to accept it, and offered to return it to the defendant, and did not thereafter, and prior to bringing suit upon it, in some way signify to the defendant his acceptance of it pursuant to the agreement in accordance with which it was given to him, he cannot recover on it, and your verdict must be for the defendant.” It is now asserted in appellant’s brief that “the evidence clearly shows that the plaintiff abandoned the instrument in writing sued on in this action.” At the second trial the stenographers who reported the testimony at the first trial were placed upon the stand, and they testified as to certain alleged statements made by the plaintiff during the course of his examination. The substance of the testimony was that O’Meara then testified that he offered to return the note, but McDermott refused to take it back. O’Meara denied that he so testified, and said, among other things: “I didn’t offer it to him, to have him take it back. I didn’t hand it back to him either. I know positively that I never tried to force the note back on him. I know that particularly, because I never offered it to him.” O’Meara gave other testimony which tends greatly to lessen the effect of that just quoted, but in all the circumstances of the case we think the court properly submitted the question to the jury for decision.
3. It is contended that in electing to bring an action for an accounting as an alleged partner O’Meara estopped himself from afterward asserting that the note was given in payment for services rendered in any other capacity; and incidentally the claim is made that he abandoned and repudiated the note and violated the agreement under which it was given, when he elected to sue as a partner. The first contention is thought to be established as a matter of law from an inspection of the record, and the second is deemed to be disclosed by the testimony as a fact; complaint being made in this connection that the court below refused to give certain instructions to the jury on that subject.
In the case of Thompson v. Howard, 31 Mich. 309, the court said: “A man may not take contradictory positions, and where he has a right to choose one of two modes of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge, or the means of knowledge, of such facts as would authorize a resort to each, will preclude him thereafter from going back and electing again.” In that case' the plaintiff’s son was enticed away by a neighbor, and the father brought suit for the value of his services on the basis of an implied contract. The jury disagreed, and he thereupon discontinued that suit and began an action in tort for enticing the boy away. The court held that the latter action could not be maintained, for the reason that in bringing the first suit the father had impliedly admitted that the services were performed with his assent.
In Warren v. Landry, 74 Wis. 144, 42 N. W. 247, Mr. Chief Justice Cassoday said: “The rule is universal that where a party has a choice between two inconsistent remedies or causes of action, and he deliberately adopts the one, such election becomes conclusive upon him and precludes him from subsequently adopting the other.” (See, also, Rowley v. Towsley, 53 Mich. 329, 19 N. W. 20; Bradley v. Brigham, 149 Mass. 141, 21 N. E. 301, 3 L. R. A. 507; Lamar v. Pearre, 90 Ga. 377, 17 S. E. 92; Bryan-Brown Shoe Co. v. Bloch, 52 Ark. 458, 12 S. W. 1073; Bank of Beloit v. Beale, 34 N. Y. 473; Sanger v. Wood, 3 Johns. Ch. (N. Y.) 416; Morris v. Rexford, 18 N. Y. 552; JohnsonBrinkman C. Co. v. Missouri Pac. Ry. Co., 52 Mo. App. 407; Nanson v. Jacob, 93 Mo. 331, 3 Am. St. Rep. 531, 6 S. W. 246; Long v. Long, 111 Mo. 12, 19 S. W. 537; Bauman v. Jaffray, 6 Tex. Civ. App. 489, 26 S. W. 260; Welch v. Seligman, 72 Hun, 138, 25 N. Y. Supp. 363.) The foregoing cases are all more or less in point as illustrative of the rule above quoted from” Michigan and Wisconsin, and are relied on by the appellant. It will be found on examination, however, that each decision is predicated upon a situation wherein the plaintiff had choice of remedies for the same act or omission of the defendant, as, for instance, where he ratified a fraudulent sale of his goods by bringing action for their value, or where he elected to sue in trespass rather than in assumpsit, and like cases.
The case principally relied on by the appellant, however, is Sacker v. Marcus, 43 Misc. Rep. 8, 86 N. Y. Supp. 83. In that ease an action was brought to recover a sum of money for breach of a contract of employment and the wrongful discharge of plaintiff from the employ of the defendant. The answer, besides a general denial, contained an allegation that the plaintiff had begun another action, which was still pending upon the same contract, declaring that it was a contract of partnership, and praying for an accounting. The court said: “It is to be observed from its language that this defense is not a plea of the pendency of another action for the same cause. The action at bar is for damages for breach of a contract for employment. The action referred to in this defense is an action in equity for the dissolution of a copartnership and an accounting. It is true that the plaintiff bases his two suits on the same contract, thus taking two views of the legal effect of that contract; but the views are absolutely inconsistent with each other. Both theories cannot be correct. It follows, therefore, that the plaintiff, having elected to bring his action on this contract in the supreme court on the theory that it created a partnership, elected and resorted to that remedy, and is bound by that election, and cannot afterward, and during the pendency of the former action, bring an action upon the theory that the same contract was one of employment.” It will be noted that, after expressly stating that the defense was not a plea of another action pending for the same cause, the court says that the plaintiff may not prosecute the instant case during the pendency of the former action. We do not know what importance the learned judge who wrote the opinion attached to the fact that the action in equity was still pending. Certainly, if the decision is given the effect claimed for it by the appellant here, the result would be that even the dismissal of the former action would not place the plaintiff in a situation to prosecute the latter. That such is not the law in this state will presently be shown. The New York case is somewhat different from this in its facts also, as in that case the plaintiff was alleging at the same moment of time that the contract between himself and his opponent was one of employment and also of partnership.
The facts in this ease are somewhat peculiar. In the action based upon an alleged partnership agreement, the complaint contained the following averment: “That he [McDermott] has refused to make any account, though he has acknowledged in writing and agreed to pay the plaintiff O’Meara the sum of $12,000, when the payments shall be made by Galiger & Clymo, but he has not agreed to pay Kerrigan anything.” Either one party or the other produced the note now in suit at the trial of action for an accounting, and O’Meara was examined with reference to the circumstances under which it was given. The court in its decision said: “Later McDermott gives a note for $12,000 to O’Meara, who is to give and does give his note for $2,000 to Kerrigan. I am persuaded by the evidence that this was done, and with O’Meara’s and Kerrigan’s full knowledge and consent as a settlement for whatever services and information they gave McDermott in the sale of the claims.” In this ease O’Meara testified: “I did not bring suit upon this note afterward, instead of bringing an action for partnership profits, because that note was not due at the time that suit was instituted.” And again: “Q. Were you satisfied with it when you read it ? A. No; not satisfied with the amount. ’ ’ McDermott testified: “When I delivered the note, I certainly intended to pay it, * * # if I got my commission out of the Burke & Balaklava deal. I am the one who first suggested raising it from $10,000 to $12,000.” From the testimony of O’Meara above quoted and the excerpt from his complaint, it is at once apparent that he did not intend to abandon the note or rescind the contract therein expressed. On the contrary, it is clear that he considered the note as evidence of a subsisting indebtedness on the part of McDermott either growing out of a partnership arrangement or a contract of employment. In Kyle v. Chester, 42 Mont. 522, 113 Pac. 749, this court said: “Ordinarily, when the conduct of a person is such as to raise a clear presumption that he does not intend to do a cértain thing, he will not thereafter be charged with such intention by implication.” (See, also, State Bank v. Forsyth, 41 Mont. 249, 108 Pac. 914, 28 L. R. A., n. s., 501.)
The doctrine of election of remedies is conceived to be founded in the very just idea that a party ought not to be needlessly harassed with litigation. But a person who prosecutes an action or suit based upon a remedial right which he erroneously supposes he has, and is defeated because of the error, has not made a Conclusive election, and is not precluded from prosecuting an action or suit based upon an inconsistent reme •dial right. (15 Cyc. 262.) In the case of Sullivan v. Ross' Estate, 113 Mich. 311, 319, 71 N. W. 634, 76 N. W. 309, on rehearing it is said: “If, in choosing his remedy, the plaintiff has made a mistake, and for that reason failed, he is not cut off from pursuing the right remedy.”
The rule as to conclusiveness of election “is not inconsistent with the practice of bringing a second and different action where it appears that the plaintiff never had a right of action as first brought, and therefore could not have elected. There is a difference between an election of remedies and a mistake of remedy, and the law has not gone so far as to deprive parties of meritorious claims merely because of attempts to collect them by inappropriate actions, upon which recovery could not be had.” (McLaughlin v. Austin, 104 Mich. 489, 62 N. W. 719. See, also, Agar v. Winslow, 123 Cal. 587, 69 Am. St. Rep. 84, 56 Pac. 422.) And so in this case the plaintiff first brought his action for an accounting, alleging that he was a partner of the defendant. As evidence that some amount was due him, he pleaded and produced the note now in suit. The court found that no partnership existed, but that the note was given as evidence of an indebtedness arising out of a contract of employment. Having prevailed in that case solely on account of the fact that plaintiff mistook his remedy, the defendant is not now in a position to urge that the plaintiff has no right to have a competent court try the question whether anything is due under the contract of employment.
This court, in Kaufman v. Cooper, 39 Mont. 146, 101 Pac. 969, said: “There is a rule of law well established which is that if a person prosecute an action based upon a remedial right which he erroneously supposed he had, but which in fact he did not have, and he is defeated because of his error, he will not be held to have made an election of remedies, and will not be precluded from asserting one which he has, even though it be inconsistent with that which he supposed he had but did not have. A review of the history of the first case (Kaufman v. Cooper, 38 Mont. 6, 98 Pac. 504, 1135) convinces us that in that instance Kaufman merely made a mistake as to the remedy available to him, and it ought not to be said that by making such mistake the admitted indebtedness of Cooper and Archibald to him was thereby satisfied. The law does not recognize that method o'f discharging one’s liabilities.”
We think the district court was correct in holding that O ’Meara was not estopped as a matter of law.
4. But it is said that the court erred in refusing to charge the jury that if the note was given pursuant to an agreement between the parties, whereby they sought to adjust and settle any and all claims which O’Meara might have against McDermott, either as a partner or otherwise, and thus avoid litigation, and the plaintiff violated that agreement by beginning his action for an accounting, he could not recover on the note. We have carefully examined the evidence, and fail to find any testimony on the part of either O’Meara or McDermott that would have justified the court in giving these instructions. McDermott testified: “I could see trouble was brewing. I said to him: ‘I have never been in trouble before, and I don’t want to have any. If you and Kerrigan will give me a written satisfaction in full of all demands, I will give you a note for $12,000.’ The character of trouble that I was expecting to get into in view of these demands that they were making, and the kind of talk that they put up, was after I saw their attitude and language, and I thought that they would start a suit of some character, and it might prevent the company from completing their payments, and completing their contract, and so rather than have any trouble — as I told them at the time I never was in court — at the time I was willing to give this note for a written satisfaction. * * * I asked him then for a written satisfaction, and he said he would make it out and hand it to me. I subsequently had a talk with him about getting the written satisfaction.” After the note was given he says he told O’Meara that he understood he was going to bring suit against him and Bishop Carroll, and O’Meara replied that he did not intend to bring suit. Again he testified: “I never made any proposition except this, and this was given for full satisfaction. The proposition that I have told about the clause, the matter had of the terms specified in this note to be given in exchange for the satisfaction, was the only proposition that I made him.” It is to be observed that the testimony of the defendant is to this specific effect: that he stipulated for a written satisfaction of all claims against him; that plaintiff agreed to give it and afterward violated the agreement. Plaintiff, in effect, denied that any such agreement was made. The court fairly submitted to the jury the question whether there was such an agreement, and they found for the plaintiff. It may be that McDermott had in mind a desire to avoid litigation, or “trouble,” as he expressed it, and, if he did, he might well have stipulated that no suit growing out of previous transactions between himself and O’Meara should be commenced in case the note, was given, but he claims no such agreement, and the general verdict against him determined that the note was given unconditionally.
Again, it is claimed that the motion for nonsuit should have been sustained on the ground that the respondent’s testimony in chief disclosed the fact that such an understanding as we have been discussing was had between the parties and that he violated it; but, as heretofore stated, we do not think his testimony, confused and unsatisfactory as it is in many respects, will bear that construction, and appellant’s version of the transaction specifically negatives the idea that such was the understanding of the parties.
5. Contention is made that the court erred in refusing to give the following instruction: “ (8) It was determined and adjudged in the action referred to that no agreement of partnership was ever entered into between the parties hereto in reference to the Burke and Balaklava claims, or in connection with the effort to procure a purchaser for the same, and that no sum was ever due from the defendant to the plaintiff upon any agreement of partnership in such enterprise. If you find accordingly that the note in suit had no consideration other than a part or the whole of what was supposed to be due to the plaintiff as a partner on the transaction referred to, it is wanting in any legal consideration and your verdict must be for the defendant.” This instruction was properly refused. The court did charge the jury: “However firmly you may believe that the plaintiff is entitled to have something from the defendant either as a partner or for services, your verdict must be for the latter, unless you find that plaintiff is entitled to recover on the note.”' There never was any question that the note was given in payment for whatever services O’Meara had performed in connection with the sale of the Burke and Balaklava mining claims. He at first contended that he was a partner, and, in fact, he still so claims, notwithstanding the decision against him. But it is immaterial in this ease how the relationship of the parties is characterized. Appellant will not be heard to say that the consideration for the note was services performed as a partner.
6. That payments were made on the Galiger & Clymo lease and option, substantially as agreed upon, is the law of the case. (See former opinion cited, supra.)
7. We find nothing in the affidavits on motion for a new trial which would warrant the court in reversing the judgment and order on account of misconduct of counsel during the argument to the jury. The question of the propriety of applying epithets to litigants or opposing counsel is one which each attorney has the right to decide for himself, in accordance with his. own ideas on the subject, and the facts in the ease. The trial court will exercise a wise legal discretion in controlling such matters. We find no prejudicial error in that regard in this, record.
The judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
Rehearing denied, May 20, 1911.
|
[
-1,
-3,
-65,
-34,
23,
-42,
19,
-49,
-11,
40,
51,
36,
48,
-14,
15,
-11,
0,
-58,
11,
-38,
19,
3,
-9,
-20,
-42,
28,
-7,
-21,
10,
-5,
-26,
-22,
-13,
12,
2,
29,
10,
44,
-37,
-17,
32,
58,
17,
5,
-3,
7,
-37,
-114,
-15,
-22,
77,
-56,
0,
54,
-11,
-28,
-44,
59,
-44,
22,
18,
-19,
-8,
24,
7,
-44,
30,
-35,
11,
-1,
-35,
29,
24,
6,
-63,
-35,
-4,
-26,
-1,
-36,
-8,
10,
38,
-49,
17,
17,
31,
-32,
-17,
32,
2,
-3,
8,
41,
5,
56,
-25,
11,
-30,
40,
81,
-4,
-40,
-37,
17,
-18,
2,
-15,
67,
32,
8,
36,
0,
-45,
4,
-62,
-6,
-29,
-36,
-40,
-42,
-5,
16,
-11,
23,
-67,
24,
14,
1,
-10,
-3,
-8,
-6,
18,
-39,
-32,
57,
46,
28,
29,
20,
-54,
-34,
-42,
8,
55,
-5,
-60,
-76,
-36,
9,
-30,
33,
-13,
-6,
-49,
-36,
27,
54,
-39,
49,
17,
73,
-2,
-11,
31,
25,
-84,
6,
-41,
16,
-18,
-60,
-27,
-19,
38,
19,
-17,
0,
-12,
-4,
62,
13,
20,
52,
61,
1,
-3,
33,
-1,
19,
7,
-24,
54,
15,
-27,
7,
2,
23,
16,
-28,
-12,
12,
45,
-14,
0,
13,
5,
15,
21,
20,
9,
-35,
-33,
-34,
15,
30,
-4,
-5,
10,
-3,
-23,
-35,
-50,
-21,
-30,
70,
-10,
-34,
1,
-53,
-31,
-36,
-4,
-29,
-56,
2,
14,
24,
-19,
-22,
-23,
11,
-47,
74,
-4,
52,
13,
49,
35,
-14,
-17,
37,
11,
-4,
5,
9,
15,
-34,
-50,
4,
78,
-62,
11,
-18,
-84,
0,
-15,
19,
14,
-4,
-67,
26,
32,
-4,
-42,
28,
2,
-16,
40,
1,
52,
30,
31,
12,
29,
-40,
30,
-2,
-25,
23,
9,
40,
-25,
72,
-38,
18,
-9,
-15,
92,
0,
-17,
39,
81,
51,
18,
14,
47,
-7,
19,
-5,
6,
13,
39,
40,
9,
9,
7,
41,
17,
37,
-51,
41,
-16,
20,
-56,
71,
-62,
-50,
19,
44,
4,
14,
22,
-65,
-38,
11,
1,
28,
-37,
-8,
-20,
-12,
-69,
-14,
4,
-35,
0,
-2,
11,
-44,
-7,
-26,
27,
30,
4,
9,
-66,
-8,
-79,
18,
-46,
-38,
-33,
-5,
27,
-5,
12,
13,
98,
-32,
24,
-33,
23,
-13,
-39,
43,
-28,
-82,
1,
-21,
35,
39,
-7,
32,
22,
-22,
-33,
12,
-22,
-21,
36,
10,
22,
-15,
28,
0,
-34,
-26,
0,
9,
-4,
11,
-33,
-28,
-14,
-35,
-26,
-55,
-44,
-50,
33,
-47,
-13,
-20,
-35,
-6,
-29,
-21,
18,
50,
-57,
-11,
-21,
-49,
-34,
-27,
-26,
-30,
-29,
-41,
-2,
-27,
-30,
-12,
-4,
-1,
11,
-21,
54,
-1,
50,
-36,
9,
-3,
41,
-19,
-3,
38,
24,
2,
6,
-30,
25,
-39,
40,
5,
-56,
26,
-10,
72,
-2,
17,
29,
-2,
-58,
17,
-68,
-51,
98,
50,
20,
56,
73,
8,
41,
16,
62,
45,
49,
-2,
12,
0,
28,
-45,
-61,
-17,
-15,
-4,
38,
45,
15,
40,
2,
-67,
-28,
31,
-32,
42,
-9,
-41,
-7,
14,
27,
-8,
-5,
51,
-42,
23,
11,
39,
23,
35,
9,
12,
-12,
8,
47,
42,
74,
-15,
-50,
-17,
10,
0,
-18,
-69,
8,
27,
-25,
46,
17,
-13,
-28,
2,
30,
33,
-31,
-26,
16,
-13,
35,
-42,
9,
-25,
45,
31,
-9,
48,
-4,
0,
-29,
9,
87,
-20,
41,
-9,
-39,
-28,
-68,
-20,
-2,
-41,
-4,
42,
-24,
-25,
4,
19,
1,
11,
-14,
-3,
0,
36,
-103,
7,
28,
-3,
41,
-11,
4,
15,
22,
-45,
20,
10,
-54,
12,
-5,
19,
-34,
5,
4,
22,
-21,
2,
-50,
-49,
20,
33,
-26,
-63,
-21,
-30,
-57,
-32,
23,
25,
13,
10,
59,
-36,
-6,
29,
-53,
35,
-22,
-5,
62,
33,
27,
-21,
-43,
47,
25,
-18,
-23,
-14,
52,
-9,
-43,
-5,
31,
7,
34,
-60,
33,
-5,
-26,
98,
-19,
-10,
36,
25,
18,
10,
18,
16,
-20,
58,
18,
25,
-34,
-7,
17,
4,
0,
36,
-4,
25,
-1,
-6,
5,
28,
-23,
-15,
43,
8,
54,
18,
-21,
45,
-14,
46,
25,
24,
-75,
0,
11,
11,
-48,
1,
-44,
7,
9,
-45,
-33,
-24,
-8,
-44,
46,
-44,
-11,
-90,
18,
54,
1,
10,
-20,
-4,
-53,
36,
54,
-10,
1,
40,
-25,
2,
9,
23,
-36,
19,
32,
-5,
13,
-35,
27,
-54,
-68,
-17,
-66,
57,
-14,
-5,
-18,
-19,
57,
-6,
15,
11,
11,
12,
20,
41,
28,
33,
-11,
-47,
84,
4,
-14,
-8,
0,
19,
14,
8,
-4,
-1,
33,
13,
4,
7,
82,
-20,
9,
-38,
34,
-27,
11,
2,
23,
-27,
0,
21,
-21,
-41,
-50,
28,
-9,
17,
4,
-7,
85,
14,
89,
19,
68,
7,
39,
32,
33,
-48,
-12,
-16,
-61,
8,
-37,
-3,
22,
-22,
61,
7,
11,
18,
2,
-30,
-1,
-8,
21,
14,
29,
2,
30,
15,
-7,
-3,
2,
73,
32,
-5,
-19,
37,
13,
-18,
20,
-78,
-50,
31,
-38,
-39,
-16,
-17,
-23,
2,
-16,
-14,
24,
-12,
-23,
7,
3,
-55,
57,
59,
10,
-40,
44,
-85,
-31,
20,
-52,
-33,
44,
6,
-3,
-104,
53,
-27,
-60,
1,
43,
29,
-10,
-73,
-7,
-32,
-44,
28,
-4,
-14,
-8,
-17,
34,
38,
-37,
19,
43,
-19,
-45,
1,
14,
-14,
-2,
46,
51,
7,
-62,
-24,
40,
-40,
59,
-31,
24,
-10,
-43,
74,
-37,
-25,
-27,
-18,
15,
20,
-52,
-43,
-47,
28,
-33,
-13,
-22,
-24,
6,
-29,
18,
45,
45,
-16,
26,
47,
55,
47,
5,
83,
26,
-2,
14,
4,
-25,
5,
27,
49,
-18,
-40,
2,
-16,
-16,
-19,
13,
-51,
18,
-50,
25,
44,
-32,
5,
-28,
-34,
-45,
-61,
14,
12,
-65,
0,
-3,
-18,
-51,
-15,
-32,
48,
48,
19,
29,
-12,
56,
-65,
21,
7,
-3,
9,
-1,
-28,
44,
-44,
-6,
34,
-10,
-68,
0,
36,
-36,
43,
0,
34,
-15,
-75,
3,
44,
-19,
-23,
-65,
37,
26,
17,
-10,
-6,
-24,
-34,
-7,
-12,
26,
-10,
2,
5,
25,
-2,
-1,
57,
-3,
36,
-60,
4,
32,
0,
-41,
-22,
34,
-9,
54,
0,
-43,
-6,
-12,
39,
-30,
-27,
38,
-45,
2,
-78,
15,
-23,
6,
-50,
41
] |
Per Curiam.
Original habeas corpus proceeding brought pro se by Clarence and Morris Dionne, inmates of the Montana State Prison, where they were received September 15, 1953, each to serve at hard labor for the term of twenty (20) years for having committed the crime of burglary in the first degree to the commission whereof they pleaded guilty in the District Court of Valley County, Montana, where sentences were pronounced on or about September 14, 1953. It appearing that the appli cation is without merit, the writ is denied and the proceeding is dismissed.
|
[
51,
-19,
32,
45,
-28,
-23,
-13,
-21,
-23,
-10,
-26,
-9,
-8,
-3,
-14,
19,
-22,
-24,
9,
-23,
7,
5,
-35,
72,
1,
-25,
39,
101,
1,
80,
19,
-3,
-21,
-50,
1,
-39,
29,
-9,
27,
25,
6,
23,
14,
-16,
-36,
-15,
10,
49,
-40,
31,
16,
-16,
30,
-14,
-9,
13,
-3,
-77,
-52,
32,
-2,
19,
39,
-3,
13,
-19,
10,
0,
5,
18,
95,
7,
-2,
1,
68,
-10,
-36,
-53,
-4,
-11,
9,
46,
24,
0,
-50,
-25,
-55,
-66,
30,
37,
10,
-13,
-8,
-19,
-24,
-19,
-39,
-3,
29,
-13,
-41,
-49,
7,
-9,
-11,
-33,
-46,
30,
-11,
51,
-26,
-15,
30,
-40,
-6,
9,
-61,
-40,
6,
-63,
-5,
20,
-32,
31,
-37,
-26,
-24,
14,
10,
33,
0,
12,
-15,
12,
-53,
40,
14,
0,
7,
-55,
-22,
-40,
7,
23,
23,
-6,
-32,
17,
-6,
34,
9,
19,
-2,
48,
21,
94,
-25,
9,
-28,
38,
-17,
-35,
-27,
19,
77,
30,
-27,
-7,
-14,
-59,
-64,
17,
-15,
13,
-17,
24,
-10,
1,
57,
15,
3,
14,
44,
-26,
-18,
-3,
-44,
63,
-32,
-21,
-15,
45,
24,
-7,
3,
-22,
51,
-18,
11,
-17,
-46,
1,
3,
12,
-2,
-16,
13,
-26,
78,
-22,
10,
-47,
8,
-1,
-9,
14,
7,
-39,
33,
48,
-25,
-10,
-37,
29,
35,
-42,
41,
41,
-26,
-46,
33,
17,
22,
-20,
70,
-45,
7,
-18,
0,
91,
-63,
-51,
15,
-16,
35,
46,
-20,
16,
-2,
18,
3,
8,
-69,
37,
-29,
-56,
51,
-10,
-28,
-58,
-17,
-53,
-13,
26,
-21,
-9,
38,
8,
-3,
47,
48,
36,
-38,
-32,
42,
39,
-33,
50,
-25,
-21,
-1,
-3,
-27,
-24,
-9,
-92,
-12,
-53,
-29,
-29,
-22,
-32,
24,
-52,
71,
4,
-1,
-21,
-22,
-16,
-34,
10,
-2,
-30,
-28,
-39,
9,
15,
52,
-25,
23,
75,
18,
-15,
-47,
2,
-2,
30,
-22,
-6,
-58,
3,
14,
0,
4,
-16,
-4,
22,
2,
23,
30,
1,
-17,
-33,
-13,
26,
-18,
72,
27,
-1,
16,
36,
-12,
5,
-20,
6,
7,
48,
-23,
43,
3,
-28,
17,
-9,
40,
-42,
-29,
-18,
-14,
-7,
22,
-22,
10,
22,
-12,
-19,
-28,
-11,
44,
-26,
-33,
-14,
23,
-6,
8,
86,
28,
12,
-8,
-3,
-5,
-17,
34,
33,
31,
0,
2,
-4,
-18,
-24,
-68,
-7,
-23,
-45,
32,
-1,
8,
-12,
34,
-8,
-30,
-4,
-2,
78,
14,
-52,
-29,
46,
0,
-10,
23,
26,
-17,
20,
28,
36,
-29,
-10,
40,
23,
6,
9,
24,
33,
-44,
22,
19,
-37,
19,
2,
64,
-15,
-29,
-10,
47,
13,
-75,
-20,
46,
18,
4,
19,
22,
-7,
44,
-25,
6,
-36,
10,
16,
-43,
18,
-37,
-108,
-40,
72,
18,
76,
-56,
20,
-45,
26,
41,
-8,
27,
28,
-5,
-39,
12,
28,
-1,
0,
-14,
36,
-52,
-1,
-22,
-10,
-34,
-26,
-2,
-26,
-9,
-15,
31,
-47,
1,
20,
-4,
6,
-30,
-58,
25,
36,
-11,
14,
-45,
-41,
8,
24,
0,
28,
-33,
45,
28,
0,
-8,
20,
-8,
31,
3,
-3,
44,
17,
-39,
12,
94,
-36,
13,
39,
-22,
37,
-6,
6,
-17,
48,
59,
-11,
-19,
12,
-13,
-53,
-29,
22,
-7,
-61,
-10,
18,
-1,
-26,
17,
10,
46,
45,
39,
48,
-46,
38,
-38,
-20,
9,
2,
15,
-23,
10,
-46,
-8,
-47,
14,
4,
28,
-20,
-24,
8,
25,
69,
8,
72,
0,
26,
15,
51,
-8,
17,
15,
12,
22,
6,
-8,
15,
48,
34,
-17,
-14,
-19,
-42,
-8,
0,
-30,
-20,
-73,
-41,
22,
-30,
16,
0,
-61,
-32,
41,
49,
-12,
16,
5,
29,
-17,
-48,
17,
-23,
6,
-9,
20,
29,
-34,
24,
-18,
48,
-30,
-31,
4,
-5,
34,
0,
-8,
9,
-34,
-17,
-44,
-62,
-28,
28,
18,
20,
-1,
7,
-24,
33,
12,
33,
-2,
-44,
19,
45,
18,
-4,
24,
0,
65,
-39,
45,
15,
10,
15,
-38,
16,
1,
12,
-2,
-31,
44,
-16,
-23,
48,
-27,
1,
5,
-2,
-2,
-15,
-19,
34,
34,
-52,
-38,
-39,
33,
13,
40,
0,
50,
-55,
74,
6,
-31,
4,
38,
-19,
32,
28,
-40,
26,
-26,
-4,
6,
15,
64,
-54,
1,
10,
-14,
44,
-10,
2,
-3,
45,
2,
-23,
-16,
-48,
-56,
-44,
-70,
-21,
1,
28,
-38,
-51,
-50,
21,
45,
-49,
-1,
-63,
-15,
86,
-38,
-37,
18,
0,
2,
32,
15,
-23,
-2,
9,
26,
-11,
-44,
0,
-22,
-37,
-54,
-61,
-45,
12,
25,
-70,
-50,
-3,
16,
69,
28,
58,
-63,
21,
28,
-15,
-2,
-71,
-31,
-1,
6,
20,
-4,
31,
-83,
-14,
-2,
-18,
11,
15,
-26,
-23,
20,
-27,
-8,
-19,
-4,
37,
47,
30,
1,
11,
-14,
-12,
19,
12,
5,
-14,
27,
-2,
13,
0,
0,
18,
-20,
40,
9,
-7,
1,
28,
43,
-8,
47,
0,
-5,
0,
-43,
28,
-55,
56,
-4,
33,
-74,
49,
9,
18,
-37,
-20,
50,
-45,
11,
-3,
35,
19,
60,
41,
56,
-25,
-15,
10,
10,
-11,
24,
18,
-22,
-18,
-29,
19,
-39,
26,
-24,
-19,
65,
6,
33,
23,
-23,
29,
16,
41,
39,
-24,
-27,
49,
-19,
6,
31,
-37,
40,
-26,
2,
-27,
25,
-11,
-25,
-25,
17,
-37,
-19,
28,
-5,
7,
38,
29,
14,
-59,
42,
21,
30,
15,
-17,
-24,
-36,
12,
14,
0,
-45,
-20,
-49,
-24,
-18,
-51,
-59,
-4,
8,
-32,
17,
-57,
-12,
28,
-3,
56,
-4,
15,
17,
10,
4,
27,
55,
-3,
4,
3,
-52,
-27,
19,
-13,
-3,
63,
-14,
-45,
16,
43,
49,
37,
4,
7,
-23,
-44,
-50,
32,
10,
17,
-13,
-66,
-15,
5,
80,
-36,
28,
18,
-37,
-55,
-5,
-36,
6,
50,
16,
-73,
3,
-63,
33,
-18,
9,
-22,
-21,
83,
16,
-30,
24,
-18,
-36,
29,
-8,
-22,
-36,
27,
16,
-51,
-16,
-6,
-9,
-5,
-27,
-30,
22,
-23,
-24,
31,
51,
71,
9,
-54,
-27,
21,
-26,
-28,
2,
9,
-32,
-25,
77,
27,
4,
9,
55,
6,
22,
-90,
-21,
19,
-35,
32,
-1,
-10,
31,
-8,
11,
-40,
18,
-1,
-6,
17,
14,
-11,
21,
-9,
-21,
7,
18,
1,
-51,
-69,
26,
-4
] |
MR. JUSTICE ANGSTMAN:
Defendant appealed from a judgment of conviction entered upon a verdict of a jury finding him guilty of selling liquor to a minor and from an order denying his motion for a new trial.
Jerry Gallagher, a minor, went with the probation officer, Jordan Gore, the county attorney of Fergus County and the state liquor inspector, Marion McCullum, to the town of Grass Range, where the defendant operated a bar. Upon arriving there at about 9 p.m. on March 5, 1953, the probation officer gave Gallagher a ten dollar bill and told him to “go in and buy me a bottle of whiskey.” Gallagher went to defendant’s bar. The county attorney and the liquor inspector placed themselves in a position in front of the window of the bar and they testified that they saw defendant sell a bottle of whiskey to Gallagher.
After Gallagher purchased the whiskey he returned to the car wherein Mr. Gore had stayed and gave the whiskey to Mr. Gore along with $4.00. Both of the witnesses at the window testified that' they had observed Gallagher talking to defendant, receiving a bottle of whiskey from defendant and exchanging what they believed to be money and leaving the bar with the whiskey. The transaction in connection with the purchase of the whiskey took but two to four minutes.
The bottle of whiskey was properly marked for identification and was introduced in evidence at the trial.
The defendant testified that he had known Jerry Gallagher and that he was positive he did not sell him whiskey on the night in question.
Mrs. Parr and two other witnesses called for the defense testified to the same general effect.
The defendant assigns sixteen specifications of error, some of which are repetitious and overlapping, but in the aggregate they present the following legal questions:
1. Did the act of the officers in enlisting the aid of a minor to purchase liquor from the defendant constitute entrapment so as to entitle defendant to an instruction on that subject?
2. Was it reversible error for the state not to subpoena Gallagher as a witness?
3. Do the verdict and judgment rest upon the uncorroborated testimony of accomplices?
The court was right in refusing to instruct the jury on the question of entrapment. In the case of State v. O’Brien, 35 Mont. 482, 90 Pac. 514, 520, the court said: “The defendant’s motion for direction of a verdict in his favor at the close of the state’s case was properly denied. The evidence submitted shows, prima facie, a sale of whisky in violation of the statute. The question of defendant’s guilt was one for the jury. But it is argued that it appeared therefrom that the county attorney had furnished the money with which the purchases were made by the state’s witnesses, and that, since the prosecuting officer had himself thus induced the violation of the law, a conviction could not be had. Such evidence is always competent (In re Wellcome, 23 Mont. 450, 59 Pac. 445), and it is no defense to a prosecution of this kind that the purchase was made by a spotter, a detective, or hired informer. 23 Cyc. 184; 12 Cyc. 447.”
In 18 A.L.R. 162, it is said: ‘ ‘ The great weight of authority supports the view that a person making an unlawful sale of liquor is not excused from criminality by the fact that the sale is induced for the sole purpose of prosecuting the seller.”
This rule has been applied in many cases in this state involving matters other than the sale of intoxicants, some being State v. Neely, 90 Mont. 199, 300 Pac. 561; State v. Neidamier, 98 Mont. 124, 37 Pac. (2d) 670; State v. Snider, 111 Mont. 310, 111 Pac. (2d) 1047, and State v. Wong Hip Chung, 74 Mont. 523, 241 Pac. 620.
In the Snider case [111 Mont. 310, 111 Pac. (2d) 1049] the court pointed out the “ ‘distinction between inducing a person to do an unlawful act and setting a trap to catch him in the execution of criminal designs of his own conception.’ ”
In the case of Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 212, 77 L.Ed. 413, 86. A.L.R. 249, the court stated that “the fact that officers or employees of the government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution.”
In 15 Am. Jur., Criminal Law, section 335, at page 24, it is said: “It may therefore be stated as a general rule that where the doing of a particular act is a crime regardless of the consent of anyone, the courts are agreed that if the criminal intent originates in the mind of the accused and the criminal offense is completed, the fact that an opportunity is furnished or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him therefor constitutes no defense. To the argument that the act is done at the instigation or solicitation of an agent of the government, the courts have responded that the purpose of the detective is not to solicit the commission of the offense, but to ascertain if the defendant is engaged in an unlawful business. It is no defense that a person, acting as a decoy, furnished an opportunity for the commission of the offense. Such conduct is held not to procure the offense to be committed, the theory being that the offender acts of his own volition and is simply caught in his own devices. ’ ’
Counsel for the appellant contends this case falls within an exception to the general rule. He contends that where the decoy is one of concealed disability the entrapment is a defense to the prosecution. He relies on United States v. Healy, D. C. 1913, 202 F. 349, and Voves v. United States, 7 Cir., 1918, 249 F. 191.
The record here does not show any concealed disability on the part of Jerry Gallagher, the minor. The only evidence bearing on the subject is that Gallagher had the usual “kid” whiskers. He had no false whiskers, nor was he in any way disguised. There was no evidence that he looked older than 21 years (even though it be assumed that such fact would be material). Even the defendant, who testified that he knew him well, would not say that he thought he was over 21 years of age. He testified:
“Q. You know he is a minor, you know he is under the age of 21 years? A. I don’t know that, he’s pretty well growed up.
Q. You know he is under 21. A. I thought he was around 21.”
Defendant’s counsel contends that some of his offered evidence of concealed disability was improperly excluded. He contends that it was error to exclude a photograph of Jerry Gallagher taken about one year and two months after the purchase of the whiskey here involved, and which was offered in evidence as a part of the cross-examination of Jerry’s mother. This was objected to as being improper cross-examination and as serving no purpose. The court properly excluded this offered exhibit. It was improper cross-examination, and the photograph having been taken more than a year after the offense was committed was no evidence of Jerry’s appearance at the time he purchased the whiskey from defendant (if that be material). Neither the evidence which was received nor that which was offered and excluded showed any concealed disability so as to bring this case within the cases relied on by appellant’s counsel.
In the case of United States v. Healy, D.C., 202 F. 349, relied on by appellant, it was stated by the court that “nothing in the latter’s [speaking of the decoy] dress, speech, manner, or appearance served to put him [defendant] on inquiry therein”. Here, so far as this record is concerned, Jerry’s speech, manner and appearance were typical of those of a boy of his age. Defendant’s own testimony was sufficient to place him on inquiry when he said he thought he was around 21. It was his duty before selling whiskey to him to make sure that he was over 21.
The case of Voves v. United States, 7 Cir., 249 F. 191, is also much different from this case. There the government’s conduct misled the defendant into believing that the Indian decoy was a Mexican. Here the government made no respresentation whatsoever. Something more than the mere use of decoys by the government is necessary to raise an issue of entrapment or estoppel. Goldstein v. United States, 7 Cir., 256 F. 813; Casey v. United States, 276 U.S. 413, 48 S. Ct. 373, 376, 72 L.Ed. 632. Even the dissenting opinion of Mr. Justice Brandéis in the last cited case, so strongly relied on in the dissenting opinion of Mr. Justice Davis herein, states: “The government may set decoys to entrap criminals. But it may not provoke or create a crime and then punish the criminal, its creature.” In that case there was evidence that the officers instigated and induced the commission of the crime, or at least that is the basis upon which the opinion of Mr. Justice Brendeis rests. No one provoked or created the crime here, other than the defendant himself.
There is nothing in the record to indicate that Jerry or the officers did anything in the way of inducing or procuring defendant to sell the whiskey to Jerry other than to place him at the bar with money in hand to purchase the whiskey in the ordinary course of trade. The evidence here comes squarely within the rule stated in the majority opinion in the Casey case written by Mr. Justice Holmes wherein he stated: “Furthermore Casey according to the story, was in no way induced to commit the crime beyond the simple request of Cicero to which he seems to have acceded without hesitation and as a matter of course. * * We are not persuaded that the conduct of the officials was different from or worse than ordering a drink of a suspected bootlegger. ’ ’ The court in the Casey case divided on a fact issue as to whether the officers instigated or induced the crime. There is no evidence of inducement or instigation here.
The decided weight of authority holds that defendant’s ignorance that the buyer was a minor, or bona fide belief that he was of legal age, is no defense unless expressly made so by statute. Annotation 115 A.L.B. 1230. Our statute does not recognize this as a defense.
The defense of entrapment is an affirmative one, and the burden of proving it is on defendant if he would rely on it. People v. Braddock, 41 Cal. (2d) 794, 264 Pac. (2d) 521; People v. Gutierrez, 128 Cal. App. (2d) 387, 275 Pac. (2d) 65; People v. Lee, 9 Cal. App. (2d) 99, 48 Pac. (2d) 1003. There being no proof in the record sustaining the theory of entrapment the court properly refused to instruct the jury on the question.
Also it should be noted that defendant himself did not suggest that he was induced or lured into the offense through entrapment. He denied that he sold liquor to Gallagher. The rule is that the defense of entrapment is not available to one who denies commission of the offense. Annotation 33 A.L.R. (2d) 910. Had the issue of entrapment been properly presented in the ease by some evidence on behalf of defendant, then it would also have been proper for the state to show, as it attempted to do here, that the officers were acting-in good faith and in the belief based upon reasonable information that defendant was engaged in selling- whiskey to minors contrary to law. Compare Annotation 33 A.L.R. (2d) 908.
The suggestion that the officers of the law acted in violation of the law declared in R.C.M. 1947, section 10-617, in procuring the evidence against defendant is far fetched. But if they did violate the law, that does not give the defendant here the green light to violate the law with impunity.
The defendant attempted to show that the testimony which would have been given by the witness Gallagher was wilfully suppressed by the state, and that as a result of this the jury should have been admonished that the so-called suppressed evidence should be presumed to be adverse to the state.
There was no obligation upon the state to call the witness Gallagher. The witness was available to either party. Upon the trial of a misdemeanor as is the charge in this case the state may not be compelled to call any particular witness even though his name is endorsed on the information. Compare State v. Vandervoort, 57 Mont. 540, 189 Pac. 764. See C. J., Criminal Law, section 2132 et seq., page 845; 23 C.J.S., Criminal Law, section 1017. Counsel for the defendant may comment in his argument to the jury upon the failure of the state to put a witness upon the stand, as undoubtedly defendant’s counsel did in this case. The point is not that the state has suppressed evidence. The issue is rather what weight the jury shall give to the prosecution’s witness, absent the testimony of Gallagher.
There is no merit in the argument that the state’s case presented only the evidence of accomplices. See State v. Jenkins, 66 Mont. 359, 213 Pac. 590.
The record does not show that there was any evidence offered by defendant and excluded tending to show that Gallahger appeared of legal age as stated in the dissenting opinion of Mr. Justice Anderson, aside from the possibility that Jerry’s photograph taken more than a year later might have had that tendency. Adroit counsel for defendant does not contend that there was any evidence excluded by the court which tended to show that Jerry Gallagher appeared of legal age aside from his photograph. As before stated, that exhibit was properly excluded.
We have considered other questions discussed in the briefs but find no prejudicial error in the record.
The judgment and order appealed from are affirmed.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICE BOTTOMLY, concur.
|
[
21,
31,
-18,
23,
-27,
-57,
1,
-18,
-86,
53,
39,
-6,
-34,
22,
14,
-22,
-41,
-24,
8,
-48,
66,
-24,
-5,
20,
23,
-34,
0,
12,
-41,
-6,
22,
31,
0,
-35,
50,
24,
56,
-30,
54,
12,
-20,
81,
-3,
13,
-53,
-15,
-68,
-108,
-4,
-1,
53,
-51,
21,
31,
-12,
-8,
18,
17,
25,
4,
-3,
31,
0,
-17,
37,
-52,
-11,
-46,
-73,
9,
-19,
-25,
-9,
-3,
-14,
16,
-40,
18,
11,
23,
-30,
37,
49,
23,
10,
27,
28,
-12,
0,
-30,
-3,
32,
-5,
-15,
9,
-37,
-19,
29,
23,
-44,
-3,
-10,
-12,
-10,
48,
95,
-28,
9,
-20,
34,
-37,
-68,
58,
-17,
-30,
-52,
6,
-5,
-54,
46,
35,
-3,
43,
-36,
2,
-19,
63,
10,
-38,
-13,
-1,
21,
29,
13,
-86,
4,
-31,
63,
-23,
6,
1,
-33,
51,
-44,
40,
-5,
-14,
11,
0,
23,
-12,
-24,
-22,
-5,
35,
-33,
-66,
-37,
-8,
-19,
2,
14,
10,
9,
28,
-16,
0,
-28,
-61,
-23,
-13,
-47,
12,
2,
12,
23,
52,
-26,
-22,
-31,
-6,
31,
22,
44,
33,
72,
-10,
4,
-31,
49,
-35,
11,
-26,
22,
-28,
22,
39,
-9,
32,
6,
-55,
-35,
2,
-17,
41,
-22,
-37,
-19,
13,
-11,
-24,
-62,
-5,
9,
-52,
-67,
-18,
-20,
31,
-4,
-69,
-10,
-4,
-20,
10,
-34,
-7,
40,
-68,
62,
25,
-24,
37,
9,
19,
-56,
21,
-18,
30,
50,
9,
-25,
-18,
-48,
2,
-16,
20,
-20,
9,
7,
18,
24,
-19,
-34,
-57,
12,
9,
-65,
1,
-20,
62,
48,
-1,
67,
-64,
15,
6,
36,
-45,
16,
20,
-65,
20,
56,
19,
17,
3,
50,
3,
30,
46,
13,
20,
33,
-35,
18,
-53,
94,
6,
-10,
48,
-7,
-27,
-4,
55,
-2,
-20,
36,
-31,
50,
19,
29,
22,
69,
-57,
-6,
71,
8,
1,
-6,
25,
-24,
-18,
1,
19,
2,
8,
6,
19,
38,
-1,
-52,
5,
21,
67,
-29,
29,
15,
-8,
3,
4,
-26,
0,
-1,
-80,
-16,
-10,
8,
42,
44,
1,
-7,
11,
-21,
22,
18,
-27,
13,
-4,
-62,
14,
-45,
-13,
-10,
46,
-22,
35,
-33,
23,
-26,
34,
-43,
-62,
-12,
49,
12,
-34,
21,
-35,
64,
13,
-25,
15,
-30,
-34,
-42,
-23,
-15,
-72,
0,
-48,
-3,
-11,
-4,
15,
-44,
0,
-55,
-65,
31,
-7,
44,
-11,
-24,
26,
-19,
-17,
-6,
43,
-45,
-34,
26,
60,
-17,
-26,
-58,
-49,
79,
2,
-12,
-22,
-44,
25,
10,
-9,
-3,
-8,
3,
-21,
-23,
13,
11,
0,
-37,
72,
-22,
32,
-4,
12,
17,
13,
6,
26,
-23,
6,
19,
11,
-4,
25,
2,
0,
-1,
-67,
25,
50,
-13,
-37,
-15,
22,
34,
1,
48,
7,
-5,
-30,
83,
33,
15,
-10,
-23,
61,
10,
-30,
-52,
-4,
4,
-10,
-13,
-63,
10,
6,
-4,
34,
-44,
-34,
64,
83,
-13,
4,
-6,
-45,
25,
-1,
0,
-19,
-89,
3,
-45,
15,
9,
26,
-55,
-9,
-15,
-25,
-37,
-2,
14,
41,
10,
-41,
-21,
19,
29,
-8,
-7,
52,
-15,
13,
15,
-26,
43,
-16,
-38,
65,
-36,
-18,
4,
53,
45,
68,
6,
-10,
11,
-19,
1,
-59,
-61,
-14,
-28,
7,
-17,
4,
-25,
22,
8,
49,
44,
-18,
-24,
57,
-24,
-5,
55,
0,
15,
3,
-45,
28,
2,
2,
72,
20,
2,
-12,
27,
-29,
-50,
-23,
-69,
-40,
30,
0,
13,
-8,
25,
-49,
-8,
18,
8,
17,
47,
4,
-2,
27,
-46,
-1,
-7,
34,
56,
5,
38,
11,
-35,
-11,
41,
11,
9,
-17,
-7,
-33,
44,
0,
45,
49,
26,
-36,
-59,
-2,
60,
-3,
22,
27,
32,
23,
-104,
-21,
22,
-15,
52,
83,
51,
13,
-6,
-24,
-62,
-35,
-17,
-25,
9,
42,
19,
-35,
29,
31,
6,
-34,
-13,
-9,
-34,
40,
-15,
14,
0,
16,
15,
-69,
41,
-29,
-46,
41,
-49,
-79,
-15,
24,
-4,
48,
55,
41,
-38,
-53,
-19,
35,
-12,
-3,
-51,
-92,
-23,
27,
0,
-27,
15,
-34,
5,
28,
8,
11,
-35,
-32,
35,
32,
-19,
-58,
-46,
-9,
53,
-27,
-13,
15,
-6,
-8,
-38,
42,
-19,
21,
-18,
-62,
-39,
7,
9,
-48,
27,
25,
21,
-17,
37,
16,
3,
-6,
-67,
-1,
-43,
53,
20,
13,
-10,
71,
-54,
-26,
25,
-8,
19,
-46,
79,
63,
-12,
7,
27,
-54,
10,
-82,
25,
32,
-31,
30,
13,
-12,
-4,
71,
-42,
38,
-25,
18,
47,
4,
40,
-23,
-89,
2,
17,
-28,
-3,
-7,
-51,
16,
-28,
-25,
-12,
-2,
-1,
21,
5,
3,
50,
18,
10,
70,
2,
-30,
-38,
11,
40,
-43,
18,
-49,
36,
-12,
-26,
31,
15,
-35,
-61,
30,
-8,
0,
15,
7,
18,
29,
-37,
32,
23,
-15,
-37,
48,
52,
-38,
1,
42,
-17,
-22,
32,
-27,
38,
-16,
-4,
18,
7,
-18,
25,
-33,
-29,
40,
-12,
61,
-42,
55,
6,
-23,
-18,
-6,
23,
26,
-16,
-2,
-25,
7,
-86,
-9,
-21,
19,
17,
8,
-36,
-8,
-21,
-13,
-18,
-53,
5,
-59,
28,
-5,
-20,
57,
9,
21,
-18,
-37,
2,
22,
63,
-4,
11,
-10,
6,
-17,
-17,
-38,
48,
0,
-26,
-10,
-55,
-16,
9,
19,
23,
1,
7,
-33,
8,
43,
-8,
-22,
-33,
2,
6,
-14,
-18,
15,
-56,
26,
-7,
28,
59,
37,
-52,
33,
-31,
16,
17,
0,
18,
-11,
-19,
-21,
13,
0,
41,
1,
64,
-18,
7,
-20,
-63,
2,
-2,
10,
-36,
56,
-55,
-21,
20,
25,
-78,
-12,
50,
1,
23,
-1,
2,
84,
19,
30,
-54,
-60,
-63,
-8,
-25,
26,
1,
-68,
53,
7,
33,
34,
6,
-26,
48,
-30,
1,
22,
39,
-25,
8,
0,
-1,
20,
22,
-72,
-9,
-19,
28,
-24,
22,
-3,
-44,
-5,
33,
21,
-18,
-66,
81,
-19,
4,
-30,
23,
-13,
19,
23,
40,
-3,
53,
6,
5,
-12,
28,
49,
6,
-14,
55,
42,
53,
-23,
17,
8,
11,
20,
11,
-19,
2,
-17,
-27,
30,
13,
21,
32,
1,
20,
-38,
-69,
13,
63,
-5,
17,
-6,
3,
6,
-58,
45,
-30,
-59,
-15,
2,
-4,
-36,
3,
-47,
-65,
-33,
-85,
31,
-16,
-36,
9,
74,
25,
-53,
20,
-32,
14,
-22,
51
] |
MR. JUSTICE DAVIS:
This is an appeal by S. A. Anderson and Florence V. Anderson, the defendants below, from an adverse judgment in favor of the plaintiff and respondent Richland County entered upon the verdict of a jury which awarded damages amounting to $27,-473.33. Twenty-eight errors are specified and argued by counsel for these appellants as grounds for the reversal of this judgment. Hereafter we shall refer to the parties as they appeared in the district court.
The errors specified present for our consideration three general questions:
(1) Whether the complaint states facts sufficient to constitute a cause of action against either defendant;
(2) Whether the evidence is sufficient to support the verdict and judgment against (a) Florence V. Anderson, and (b) S. A. Anderson, her husband;
(3) Whether the trial court was in error (a) in giving over the objection of the defendants, and (b) in refusing upon the offer of the defendants, certain instructions to the jury upon the law of the case.
The facts disclosed by this record are substantially the same as those in the companion case of Farmers Union Oil Company v. Anderson, No. 9461, 129 Mont. 580, 291 Pac. (2d) 604. They will not be restated here; but as other matters pertinent to this appeal become relevant note will be made of them in the course of the opinion which follows.
(1) The complaint is sufficient. The specifications of error to the contrary are without merit. Initially it appears that the defendants each challenged this complaint by demurrer, one of the grounds of which was that a cause of action was not stated. These demurrers were however both withdrawn without a ruling by the lower court. Thereafter the case went to trial without objection by either defendant to the introduction of evidence under this complaint and without objection likewise that any evidence offered was inadmissible under its allegations.
The first ruling below upon the sufficiency of this pleading was made when the defendant, Florence Y. Anderson, moved for a nonsuit. Her motion was denied; but this denial came too late to present the question whether the complaint stated a cause of action; i.e., if when this motion was made, the evidence itself made out a cause of action against her. For, if so, the complaint must be deemed amended to conform to the proof; and against her husband also, who challenged its sufficiency not at all. State ex. rel. Olsen v. Sundling, 128 Mont. 596, 281 Pac. (2d) 499; Bennett v. Dodgson, 129 Mont. 228, 284 Pac. (2d) 990; Donich v. Johnson, 77 Mont. 229, 258, 259, 250 Pac. 963; Bray v. Cove Irrigation District, 86 Mont. 562, 566, 567, 284 Pac. 539. In short if the plaintiff’s proof makes a case, the complaint, which is amended thereby, will be taken to state that case for the purposes of this appeal against both defendants.
(2) We turn then next to the evidence to determine whether the plaintiff did in truth make out a ease for the jury. As against Mrs. Anderson we think it did, and that her specifications of error to the contrary are not to be sustained.
The record is not clear precisely when Mrs. Anderson took possession of the upper Anderson dam and reservoir, which broke on March 26, 1951, and which is the foundation of the plaintiff’s claim for damages. It does appear moreover in this connection that at the time of this break a tenant, one Clifford Jensen, was farming the Anderson ranch upon a crop share basis under a verbal lease from Mrs. Anderson.
There is however no dispute on this record or between the parties and their counsel that when the upper dam broke Mrs. Anderson was herself in the actual possession and control of both that dam and the reservoir behind it, and was responsible for the repair and maintenance of these structures. The tenant Jensen had neither possession nor control: For their re pair and maintenance he was charged with no responsibility. Such was the theory upon which the case was tried in the district court, concurred in by the plaintiff, the defendants and the counsel for both. Such then is the case which we shall review.
Thus viewed we think the evidence is sufficient to sustain findings by the jury:
(a) That the upper dam with its spillway as it was enlarged in 1947 and 1948 by August Yaux, Mrs. Anderson’s father from whom she took title in July 1949, was not reasonably safe for the storage of the water impounded thereby in the reservoir behind it, and accordingly involved an unreasonable risk of harm to persons and property below on Lone Tree Creek;
(b) That when Florence Y. Anderson took possession of this dam and reservoir sometime after July 1949 and before March 26, 1951, she would have known of the dangerous condition thus created by these structures and of the risk of a break involving injury to others, including the plaintiff county, if she had had a reasonable inspection made for her by a person skilled in such matters;
(c) That because she did not have such an inspection made, and accordingly did not acquaint herself with the danger inherent in this dam and reservoir, she was guilty of negligence, specifically in using these structures after she came into possession and control; or, what is the same thing, that in the exercise of ordinary care she would have known that the upper dam and its spillway were negligently constructed as the evidence tends to prove and accordingly would not have used this dam and reservoir until they had been made secure; and
(d) That her negligence here was a proximate cause of the break and flood of March 26, 1951, which damaged the plaintiff’s property.
On the other hand we think the evidence is not sufficient to sustain a finding that Mrs. Anderson was negligent in any other particular, and that the case as tried below was in fact put to the jury upon the theory of her liability as we have outlined above the controlling issues of fact, which we find in the record.
We have in Montana no case precisely in point. But authority elsewhere directly sustains the conclusion which we reach upon the sufficiency of the case against Mrs. Anderson. Restatement, Torts (Negligence), section 364, pages 987-991; section 366, pages 993-995; Frederick v. Hale, 42 Mont. 153, 112 Pac. 70; Walsh v. East Butte Copper Mining Co., 66 Mont. 592, 214 Pac. 641; Dover v. George Power Co., 46 Ga. App. 630, 168 S.E. 117; Carlson v. A. & P. Corrugated Box Corp., 364 Pa. 216, 72 A. (2d) 290.
Of course the impounding of water for the irrigation of the Anderson ranch was a public use. Constitution of Montana, Art. Ill, section 15; Donich v. Johnson, supra. Certainly neither the original construction and subsequent enlargement of the upper dam here in issue nor the use of that dam and the reservoir behind it, particularly by Mrs. Anderson, was a nuisance, but to the contrary a lawful undertaking. Jeffers v. Montana Power Co., 68 Mont. 114, 217 Pac. 652. Mrs. Anderson was not an insurer against all damage which under any circumstances might be occasioned by this reservoir and dam. Jeffers v. Montana Power Co., supra; King v. Miles City Irrigating Ditch Co., 16 Mont. 463, 41 Pac. 431, 50 Am. St. Rep. 506; Fleming v. Lockwood, 36 Mont. 384, 92 Pac. 962, 14 L.R.A., N.S., 628, 122 Am. St. Rep. 375; Bray v. Cove Irrigation District, 86 Mont. 562, 284 Pac. 539.
She was however obligated in her use and maintenance of these structures after she came into possession and control to exercise reasonable care for the safety of the persons and property of others. Compare Fleming v. Lockwood, supra; Watts v. Billings Bench Water Association, 78 Mont. 199, 215, 218, 253 Pac. 260; Bray v. Cove Irrigation District, supra; Newman v. Bitter Root Irrigation District, 95 Mont. 521, 529, 530, 28 Pac. (2d) 195; Billings Realty Co. v. Big Ditch Co., 43 Mont. 251, 257, 261, 115 Pac. 828. Measured by this rule there is substantial evidence, as we have already said, upon which the jury may find Florence V. Anderson guilty of negligence. Here we do not intimate that the jury must make such a finding, and no other. The evidence upon the issue of negligence vel non is sharply conflicting. That evidence considered as a whole will clearly support a finding consistent with Mrs. Anderson’s contention that she exercised due care. Compare United States v. Ure, 9 Cir., 225 F. (2d) 709. In short this issue if resolved by the jury for either party finds solid support in the record, which precludes this court from disturbing the verdict for want of evidence to sustain it. Burns v. Eminger, 81 Mont. 79, 261 Pac. 613; Pierce v. Safeway Stores, 93 Mont. 560, 20 Pac. (2d) 253; Wise v. Stagg, 94 Mont. 321, 22 Pac. (2d) 308; Cannon v. Lewis, 18 Mont. 402, 45 Pac. 572; Heckamon v. Northern Pac. Ry., 93 Mont. 363, 20 Pac. (2d) 258.
We conclude accordingly that we may not overturn the verdict and judgment against Mrs. Anderson upon the ground that no case is made out against her. Her motions for non-suit and a directed verdict were properly denied.
As to the defendant, S. A. Anderson, the case is however otherwise. We shall assume, as the evidence tends to prove, that on occasion Mr. Anderson acted as agent for August Vaux, the owner of this reservoir and dam when these structures were built and enlarged, and also for the defendant, Florence V. Anderson, his wife, who took title from August Vaux in July 1949, and as owner was in possession and control at the time of the break on March 26, 1951, and for some time theretofore. We shall assume further that whatever Mr. Anderson did in connection with the upper dam, the reservoir there, and the Anderson ranch, while his wife was the owner, was done by her authority, on her behalf and in her interest.
Specifically we shall accept as true the testimony that Mr. Anderson had on occasion before March 26, 1951, acted for Mrs. Anderson in connection with this dam and reservoir, and her ranch, that he interviewed the commissioners of Richland County for August Vaux while Mr. Vaux owned these prem ises, and obtained for him permission to intersect the county-road with the spillway which was then built from the upper dam, that at one time the witness Wier cleaned out this spillway under instructions from Mr. Anderson to do the-work, that after the upper dam had been enlarged the plans for the work done and for the spillway there were turned over to Mr. Anderson, and that the tenant Jensen telephoned Mr. Anderson on the evening before the break to let him (Anderson) know that water was running out of the reservoir over the upper dam.
If all this evidence is however given its broadest possible effect, it falls short of satisfying the rule of Hagerty v. Montana Ore Pur. Co., 38 Mont. 69, 98 Pac. 643, 25 L.R.A., N.S., 356, and like decisions upon which counsel for the plaintiff stand. For in the Hagerty ease the agent Wilson was the superintendent of the corporate principal and its alter ego in Montana, in possession and in control for it of its mine where the plaintiff Hagerty was injured. That is, Wilson was the corporation in Montana, who on the ground was in the actual possession of the premises with full authority to manage, control and repair and with the means immediately at hand particularly to make repairs. In these circumstances consonant with settled principles of the law of negligence liability attached to Wilson individually not because he was the agent of the owner, but because while occupying and controlling the premises where Hagerty was asked to work he (Wilson) failed to exercise reasonable care for Hagerty’s safety. Compare Restatement, Torts (Negligence), section 343, pages 938-944.
That here is the nub of the opinion in the Hagerty case is made plain by the authorities cited for the conclusion which this court there reached. Particularly the reference to Mechem on Agency (1st Ed.), section 572, page 403, is most significant. For the quotation from this treatise to which this court gave its approval, and which applied by this court held the agent Wilson responsible for Hagerty’s injury has been restated by this same author in a subsequent edition, 1 Mechem on Agency (2d Ed.), section 1474, page 1093, in words which are equally de cisive of the case made against the agent here, S. A. Anderson ; i.e., that he is not liable on the facts of this record.
We quote this text in point: “On analogy to cases already considered, the agent should be held responsible for injuries caused by the condition of premises in the possession or under the control of the agent where the condition is one for which he is responsible and the injury is such as he would be liable for if he were controlling the premises on his own account. Thus, if an agent, having control of premises, should permit or maintain a nuisance thereon for which he would be Rabie if he were the principal in the transaction, he should be equally liable notwithstanding the fact that he is but an agent.
“For similar reasons, the agent should be held responsible for injuries caused by his neglect to keep in repair premises under his control where he is charged by his principal with the duty to repair and has the necessary means, in any case in which he would be liable for the same injury if he were controlRng the premises on his own account. In these cases in which the agent has both the duty (to his principal) and the power to repair, and fails to do so, the injury can fairly be regarded as the consequence of his own act. # ”
More directly applied to the agent’s ease presently before us on this appeal the text of this authority continues at page 1096, section 1475, to this effect: “It is, of course, essential to the liability of the agent in these cases, that he shall be responsible for the condition. If the premises were in the defective condition when they came under his charge, and he has neither the power nor the authority to change them, or if the defect arose while they were in his charge, but he had no power or authority to correct it, he could ordinarily not be held responsible. Thus, where an agent who was carrying on a mill was charged with responsibility for injuries caused by maintaining the dam at too high a level, but it appeared that the dam was erected at that height long before he became agent and he had no power or authority to change it, it was held that he was not liable.”
In Brown Paper Co. v. Dean, 123 Mass. 267, the decision referred to here by Professor Mechem, the damage of which the plaintiff complained was caused by backwater from a dam which as it was alleged had been built too high. The defendant was the agent Dean in charge of the dam and the adjacent premises for his principals, who had taken title from a previous owner by whom this dam, a permanent structure, had been erected. On these premises the agent conducted a tannery. Like the defendant, S. A. Anderson, as far as this record goes the defendant Dean had neither ownership, possession, nor such control as would authorize him to alter or meddle with the offending dam. Accordingly the Massachusetts court held that the plaintiff’s injury was caused by no act of the defendant agent, “authorized or unauthorized, connected with either the erection or maintenance of the alleged obstruction.” We think the reasoning and the rule of this authority control the case of the agent Anderson here before us.
Nowhere does the evidence show that he was in possession or in control of the upper Anderson dam or the reservoir there. Certainly by anything that appears here he was not charged with the maintenance or the repair of either; nor was he furnished by his wife, the principal, with the means either to maintain or repair. In short the evidence in this case does not indicate that S. A. Anderson was ever authorized to do anything other than from time to time to execute for his wife, or his father-in-law, the specific missions upon which he was sent by the one or the other.
To the contrary the record is all one way that the possession and the control of this dam and reservoir was on March 26, 1951, and immedately theretofore with Mrs. Anderson, and with her alone. Her own witness Jensen, her tenant or sharecropper at the time upon the Anderson ranch, testified specifically and without contradiction to this effect. Mrs. Anderson’s testimony in her own behalf permits of one conclusion only, viz., that it was she who was in control of this dam and reservoir, who directed its use, who possessed the premises upon which these •structures were built, and who was alone responsible for maintaining them in repair. There is no substantial evidence otherwise. Specifically there is no substantial evidence to sustain ■a finding that the possession or control on March 26, 1951, of •either the upper dam or reservoir was with S. A. Anderson, the husband.
These facts accord not at all with those of the Hagerty decision in this court where the agent was held to liability. Nor do these facts satisfy at any point the rule of law for which the Hagerty opinion stands. What we have already said makes the distinction without more.
To the same effect that here a case against the agent Anderson is not made out see Restatement, Agency, section 355, pages 779, 780, 781; Restatement, Torts (Negligence), section 387, pages 1035, 1036; Hill v. Caverly, 7 N.H. 215, 26 Am. Dec. 735; Ulmen v. Schweiger, 92 Mont. 331, 355, 356, 12 Pac. (2d) 856; Caldarola v. Moore-McCormack Lines, Inc., 295 N. Y. 463, 68 N.E. (2d) 444, affirmed in Caldarola v. Eckert, 332 U.S. 155, 67 S. Ct. 1569, 91 L. Ed., 1968; Cullings v. Goetz, 256 N.Y. 287, 176 N.E. 397, 398, where Cardozo, Chief Judge, wrote that “liability in tort is an incident to occupation or control”; Mollino v. Ogden & Clarkson Corp., 243 N.Y. 450, 455, 456, 154 N.E. 307, 49 A.L.R. 518, citing Mechem on Agency (2d Ed.), Vol. 1, section 1474; Kaumans v. White Star Gas & Oil Co., 92 Utah 24, 39, 40, 63 Pac. (2d) 231 (holding agent in control liable); Goodman v. Fernald, 154 Or. 654, 658, 660-661, 61 Pac. (2d) 1253; 2 Am. Jur., Agency, section 334, pages 263-264; 56 Am. Jur., Waters, section 173, pages 639, 640; 35 Am. Jur., Master and Servant, sections 586, 587, pages 1023-1025; 3 C.J.S., Agency, section 221 (a) page 131; 57 C.J.S., Master and Servant, section 577, pages 345-348; 39 C.J., Master and Servant, section 1512, pages 1311, 1312.
The judgment against the defendant, S. A. Anderson, must be reversed and remanded for dismissal as to him. His motions for nonsuit and dismissal (directed verdict) were good.
(3) There remain for consideration the errors specified by the defendant, Florence V. Anderson, in the instructions, given and refused. Instruction No. 35 offered by the plaintiffs and given by the court is as follows: “You are instructed that the Plaintiff is entitled to recover in this action, if you find by a preponderance of the evidence that the upper Anderson dam and reservoir was not originally enlarged in such a. manner as ordinary care and prudence and skill required, having regard to the particular locality, the drainage area above' said dam, its liability to frequent and extraordinary runoffs-which could be anticipated, or if after its enlargement it was not kept and maintained in such a condition and repair as ordinary and reasonable prudence and care called for.”
To this instruction there was objection upon various grounds, one of which was in substance that Mrs. Anderson was not liable for negligence in the construction of the upper dam by Mr. Vaux, unless she knew, or in the exercise of ordinary care should have known, when she acquired title that it had been defectively constructed. This objection should have been sustained; for it clearly pointed out the particular in which the instruction incorrectly states the law within the rule of the authorities cited heretofore in this opinion.
Indeed, although elsewhere the court told the jurors that the owner of a dam was not liable as an insurer against injuries sustained because of a break, this instruction effectively made Mrs. Anderson nothing less than an insurer against any negligence of her father in enlarging the upper dam as he did in 1947 and 1948, which it is conceded was before Mrs. Anderson took possession or control. Under this instruction for his negligence she is to be held to liability without fault on her part. As applied to the admitted facts we see no escape from this conclusion.
Moreover this error was not cured by any other instruction given. Particularly instruction 33 given over objection did not remedy the defect manifest in instruction 35, primarily because instruction 33 also should not have been given at all. It clearly assumes the existence of a dangerous condi tion upon the premises to which it refers as the objection of counsel points out. Accordingly as applied to the facts of this case, a disputed issue, which is of the very essence of the plaintiff’s claim for damages, was withdrawn from the jury. The objection interposed was good, and should have been sustained.
If however instruction 33 were correct as given, instruction 35 was not aided thereby. In reaching this conclusion we have not overlooked the familiar rule that the instructions given the jury are to be read as a whole; a rule which the trial judge properly incorporated in his charge. Compare Rohan v. Sherman & Reed, 61 Mont. 519, 202 Pac. 749; Adams v. Durfee, 67 Mont. 315, 322, 215 Pac. 664; Rose v. Intermountain Transportation Co., 127 Mont. 493, 267 Pac. (2d) 122. We recognize the ultimate test to be “ 1 “how and in what sense, under the evidence before them, and the circumstances of the trial, would ordinary men and jurors understand the instructions as a whole.” ’ ” Rose v. Intermountain Transportation Co., supra, 127 Mont. at page 498, 267 Pac. (2d) at page 125.
But when we apply this test to the evidence here and all the instructions which the trial court gave on the predicate of that evidence we find nothing which would give a juror any different or broader understanding of instruction 35 than that apparent on its face upon a first reading. For there the jurors were told precisely what facts standing alone and without more entitled the plaintiff to “recover in this action”; i.e., if they found (1) that the upper Anderson dam and reservoir were not originally enlarged as ordinary care required, or (2) that after enlargement these structures were not maintained in such repair as ordinary care demanded. Liability follows, if either the one or the other of the stipulated conditions is satisfied, and without reference to the settled principle of the law of negligence that Mrs. Anderson must herself be at fault in some particular to charge her with liability.
To the contrary of this rule by express language Mrs. Anderson must respond in damages under this instruction for any want of ordinary care by her father in enlarging or maintaining the upper dam, even though her father was then the owner-in possession and control, and even though when thereafter she-came into possession and control she neither knew nor in the-exercise of ordinary care should have known that because of negligence on his part there was danger of a break and resulting harm to others.
No juror could obey instruction 35 as written, and at the same time heed in any part instruction 33, which at best is in direct conflict with it. Both instruction 33 and instruction 35 are open to objection for other reasons than those stated by counsel; but the grounds put in the objections made were enough. These instructions should have been refused. For this error Mrs. Anderson’s motion for a new trial should have been granted. Accordingly here there must be a reversal and remand that she may have the new trial to which she is enttiled.
Consistent with R.C.M. 1947, section 93-216, we are now called upon to determine the other questions of law involved in this case and presented upon this appeal, which are necessary to a final determination of the litigation. Court’s instruction No. 25 offered by the plaintiff and given over objection to the effect that due care is not always shown when the usual custom is followed in “constructing, maintaining and operating a dam’’ was not open to the objection made, which accordingly was properly overruled by the trial judge. As applied to the evidence in this case, however, this instruction amounts to a comment upon the weight of specific evidence before the jury. It should not therefore be given when the cause is tried again.
What the effect may be of the testimony which is said to reflect a custom in building dams of a kind with that here we think lies exclusively with the jury. In their deliberations they should not be hampered by any statement given as the law of the case that custom may or may not be sufficient to make out due care or the converse, which is negligence.
Instruction 23, which is in the precise language of R.C.M. 1947, section 89-701, should not be given upon the retrial ordered. This statute has no application to the facts here under the theory of common-law negligence upon which the plaintiff has sued and tried its case. Compare Frederick v. Hale, supra, 42 Mont, at page 168, 112 Pac. 70.
Specifically, as an abstract statement of law this instruction directly conflicts with the other instructions given by the court to the effect that Mrs. Anderson could be held to liability for the plaintiff’s loss only upon proof of negligence on her part in some particular which proximately caused that loss, and impliedly conflicts with the court’s other instruction that Mrs. Anderson is not liable as an insurer.
Finally, if the substance of this statute were applicable to this case, it should not have been given in the abstract without note of the factual issues which the evidence raises. In other cases we have criticized such an instruction, particularly where, as here, the facts and the issues presented by them are not easy of solution. Newer v. First National Bank of Harlem, 74 Mont. 549, 557, 558, 241 Pac. 613; Hunt v. Van, 61 Mont. 395, 399, 202 Pac. 573.
The objection made at the trial to this instruction should have been sustained. For the further reasons which we have given also this paragraph should have no place in the court’s charge to the jury when the case is tried again.
By instruction 31 the court assumed to tell the jury that either the plaintiff county under its complaint, or Mrs. Anderson under her cross-complaint could recover upon proof of any one or more of the acts of negligence alleged which proximately caused the damage sustained, that it was not necessary for either party to prove all the negligent acts set out in its or her pleading. The point of the objection made to this instruction was that concurrent negligence is charged by the plaintiff such that no one negligent act specified “is alleged to have caused” the damage done. We think this objection and the specification of error thereon without merit. As amended by the proof made at the trial the complaint is not subject to the construction counsel puts upon it. See Watts v. Billings Bench Water Ass’n., supra, 78 Mont. 212-215, 253 Pac. 260. The reasoning of that authority and the rule stated there control here. But as drawn this instruction is contradictory and unintelligible. It should not therefore be given upon a new trial in the language found in this record.
By instruction 38 the jury were told what damages, if any, the plaintiff was entitled to recover. Here the court specifically advised the jury that proof of the damages alleged must be made by a preponderance of the evidence to warrant a recovery. The jury were given also the measure of the damages claimed which they were to apply. If this instruction is open to challenge upon any ground the point was not covered by the objection interposed. The trial court was not in error in overruling that objection.
The court properly refused to give the defendants’ offered instruction 2. The plaintiff is not required to prove the allegations of its complaint, and as well something else in addition thereto, i.e., to entitle it to a verdict. This offer is also incomplete, because Mrs. Anderson’s liability for negligence in her use of this dam and reservoir is there too narrowly stated. Our summary above of the grounds upon which she may be held responsible for the plaintiff’s loss indicates as much.
For a like reason the trial court was not in error in refusing to give defendants’ offered instruction 9. Elsewhere in his charge the trial judge told the jury that the owner of a dam and reservoir used for irrigation purposes is not an insurer. To this extent the requested charge is repetitious. In addition again the care required there of Mrs. Anderson does not accord, under the language of this offer, with our view of her responsibility.
Nor was the defendants’ offered instruction 11 a correct statement of the law. It was properly refused. That August Vaux may have employed skilled engineers and contractors in building and enlarging his dams and reservoirs, that these structures may have been built consistent with the plans, speci fications and usage of ordinarily prudent, careful and experienced persons so as to impound and reasonably handle the waters of Lone Tree Creek in any ordinary season are matters which are not decisive here, if in fact there was negligence in the enlarging of the upper dam and reservoir in 1947 and 1948, and if when Mrs. Anderson took possession and assumed control she should have learned of the danger there. August Vaux is no party to this action. If he is liable at all to the plaintiff for the break of March 26, 1951, it is for different reasons and perhaps upon broader grounds than those which spell out Mrs. Anderson’s responsibility. Yet what he did cannot relieve Mrs. Anderson, if the upper dam was in fact negligently enlarged, and if Mrs. Anderson when she came into possession and control should accordingly have known of the danger inherent in that structure.
The defendants’ offered instructions 23a and 25 which assumed to define the duty of the plaintiff to build its bridge over the spillway from the upper dam in a careful and prudent manner were incorrect in their statement of the applicable law, and under the facts of this case were properly refused. However, we agree with the trial court that on this record Mrs. Anderson has made a case for the jury under her cross-complaint.
Upon a new trial therefore she will be entitled (1) to an instruction which limits her liability for the damage done the plaintiff’s property as we have outlined in this opinion the only grounds upon which she can be held responsible for that loss on the evidence before us; and also (2) to a further instruction defining her right to recover under her cross-complaint for her loss, (a) if the county was guilty of negligence in building its bridge across the spillway at the upper dam which was a proximate cause of the break, and (b) if Mrs. Anderson herself was not guilty of negligence proximately contributing to that break.
A further appropriate instruction defining contributory negligence as a defense in terms applicable to the plaintiff county as well as to the defendant, Florence V. Anderson, should also be given to supplement the instructions covering the liability of each party respectively to the other for negligence as the jury may find consistent with their view of the evidence.
The defendant’s offered instructions 4 and 36 were designed to state the grounds of Mrs. Anderson’s liability for any negligence of her father, who as the previous owner had enlarged the upper dam and built the spillway in 1947 and 1948. Neither instruction was technically correct. Both were properly refused. Upon a new trial consistent with the view which we take here of Mrs. Anderson’s duty owed the plaintiff county in connection with this dam and reservoir there will be no necessity for any instruction covering the point of these offers, i.e., if the jury is elsewhere told the grounds upon which Mrs. Anderson may be held to liability, if at all, as we have defined her responsibility above.
Other questions discussed in the briefs of counsel or suggested by this record should not present themselves again upon the new trial to be had.
The judgment of the district court and its order denying a new trial are reversed with directions to dismiss as to the defendant, S. A. Anderson, and to proceed with a new trial of the issues made against Mrs. Anderson as may be consistent herewith.
MR. JUSTICES ANDERSON and BOTTOMLY, concur.
HON. W. W. LESSLEY, District Judge, sitting in place of Mr. Justice Angstman.
|
[
-49,
16,
25,
4,
20,
-33,
-8,
-40,
-28,
37,
1,
-7,
2,
37,
-5,
-38,
13,
29,
21,
-55,
49,
-32,
17,
22,
-53,
-29,
-21,
11,
-13,
5,
15,
5,
-26,
-16,
44,
25,
-15,
35,
-9,
-73,
-52,
12,
50,
11,
-31,
68,
10,
38,
-11,
43,
25,
-37,
-19,
-23,
-3,
-18,
-12,
4,
-24,
-31,
2,
11,
11,
31,
24,
-12,
-17,
-40,
-25,
37,
5,
-7,
55,
-16,
21,
-56,
-35,
-44,
-18,
9,
-35,
39,
39,
-14,
10,
11,
17,
2,
-8,
46,
-47,
31,
-20,
-1,
12,
44,
14,
-38,
-13,
13,
15,
-21,
18,
18,
-17,
60,
16,
37,
21,
41,
32,
35,
4,
57,
-33,
49,
74,
-41,
-5,
-21,
-2,
56,
42,
24,
-16,
10,
37,
19,
13,
10,
28,
28,
27,
3,
-4,
-42,
-3,
-32,
23,
30,
16,
-30,
-1,
3,
13,
44,
46,
56,
-13,
-30,
-19,
-3,
9,
4,
-4,
-34,
49,
-9,
29,
-11,
46,
30,
-9,
-35,
34,
-2,
-19,
-15,
26,
6,
25,
-26,
-6,
-4,
-16,
2,
-55,
-28,
-29,
17,
4,
-37,
-16,
-5,
-28,
14,
18,
44,
-32,
1,
38,
-28,
-33,
-18,
18,
27,
-16,
8,
65,
-21,
-15,
-25,
-26,
11,
-12,
5,
-49,
26,
40,
38,
21,
-24,
-23,
-4,
24,
-26,
34,
-7,
-53,
34,
-8,
8,
-15,
3,
-25,
-17,
23,
-5,
-12,
-12,
-50,
29,
6,
-7,
-19,
-59,
6,
25,
27,
35,
-40,
15,
-6,
22,
-44,
2,
15,
11,
10,
17,
11,
30,
-19,
8,
16,
-12,
-13,
2,
-33,
-19,
23,
27,
-42,
5,
-11,
-7,
0,
-35,
-4,
18,
-2,
-8,
15,
37,
-18,
-11,
-3,
10,
-18,
36,
-26,
-1,
32,
-26,
-15,
7,
7,
40,
39,
15,
-16,
-24,
-25,
-7,
20,
-15,
56,
-25,
-23,
-22,
-45,
3,
-16,
-62,
-34,
-6,
-30,
-25,
-49,
36,
-16,
28,
9,
-42,
2,
27,
0,
9,
-2,
-83,
-6,
47,
-24,
-47,
24,
-52,
17,
-60,
-13,
-20,
-13,
-4,
45,
-11,
-22,
28,
-27,
14,
10,
42,
-2,
4,
-24,
20,
5,
16,
38,
-33,
15,
43,
3,
-51,
-31,
-12,
-5,
-31,
13,
-16,
-12,
15,
8,
22,
42,
-23,
-27,
22,
40,
-11,
14,
20,
-7,
-48,
-46,
0,
5,
43,
1,
4,
47,
-6,
28,
-8,
-2,
-69,
32,
13,
61,
-25,
-59,
18,
-25,
8,
22,
-6,
-3,
-34,
-20,
-12,
8,
34,
15,
10,
17,
37,
-42,
2,
-9,
-22,
-42,
-6,
-28,
-40,
41,
46,
37,
12,
-46,
-7,
17,
-21,
32,
13,
5,
-37,
-14,
-15,
51,
0,
-15,
-9,
-24,
12,
-36,
26,
44,
30,
1,
0,
-7,
51,
13,
50,
-18,
28,
-51,
33,
47,
32,
32,
27,
32,
9,
59,
-14,
62,
26,
42,
-10,
9,
-41,
48,
0,
-28,
30,
-46,
58,
22,
-6,
-22,
15,
7,
73,
17,
0,
-16,
-4,
-21,
-31,
36,
-55,
9,
12,
-22,
-11,
2,
23,
-3,
-12,
8,
-41,
21,
-20,
-47,
7,
-26,
6,
12,
-33,
-37,
-33,
-59,
0,
-6,
-40,
28,
9,
-15,
-25,
64,
31,
-1,
4,
7,
-39,
-1,
-24,
24,
19,
28,
-18,
1,
-26,
-36,
-80,
20,
-17,
-44,
29,
0,
-27,
35,
3,
-24,
-37,
-18,
-33,
-49,
22,
23,
-11,
-7,
59,
5,
54,
-41,
-20,
10,
-39,
40,
52,
19,
13,
-27,
13,
42,
41,
-44,
-50,
-14,
-25,
7,
20,
-63,
-13,
85,
20,
31,
-8,
77,
-1,
31,
0,
10,
-43,
6,
1,
-23,
-36,
-8,
-39,
-23,
17,
-16,
-36,
-39,
-3,
67,
17,
-12,
-16,
-52,
-45,
27,
-30,
26,
3,
-71,
-47,
29,
20,
-19,
-4,
19,
52,
74,
-9,
-29,
25,
2,
-46,
2,
1,
-20,
1,
25,
-24,
-47,
-2,
-38,
-44,
12,
26,
13,
13,
18,
-3,
-33,
-20,
-54,
-4,
21,
2,
-2,
-38,
-20,
32,
7,
44,
-56,
-20,
18,
2,
4,
-1,
6,
-55,
30,
-30,
3,
-13,
18,
9,
-9,
-26,
-30,
18,
30,
-17,
-52,
-42,
28,
-20,
10,
-13,
4,
-16,
-5,
45,
-9,
-28,
5,
-34,
-13,
23,
33,
19,
1,
49,
0,
6,
54,
-52,
-38,
-37,
-39,
-33,
22,
26,
-51,
-3,
-15,
-4,
7,
36,
-29,
25,
48,
-26,
-13,
-58,
38,
2,
-15,
20,
-25,
8,
-61,
-38,
41,
-32,
-29,
22,
-85,
-70,
-58,
-21,
30,
-20,
-20,
-19,
19,
-31,
-21,
8,
-81,
-2,
55,
49,
57,
11,
17,
33,
0,
54,
-18,
-18,
-38,
-39,
-23,
4,
39,
9,
21,
7,
17,
-16,
-17,
-32,
-34,
-30,
50,
-31,
5,
22,
-32,
-24,
2,
34,
-4,
-81,
44,
-6,
11,
-35,
-20,
15,
-22,
-16,
-26,
23,
-6,
6,
81,
19,
-8,
33,
27,
2,
22,
15,
-33,
18,
-26,
10,
-7,
-9,
-4,
3,
9,
21,
5,
6,
0,
-29,
5,
-19,
-40,
54,
9,
-14,
-5,
58,
-8,
54,
-3,
20,
23,
18,
22,
34,
-6,
4,
11,
-15,
24,
35,
-83,
25,
9,
2,
3,
-12,
-15,
66,
42,
15,
20,
4,
-20,
11,
24,
-58,
-28,
65,
20,
-19,
37,
40,
-43,
-43,
8,
45,
-57,
30,
10,
7,
-2,
63,
29,
-24,
23,
-9,
21,
-9,
2,
13,
40,
-50,
26,
47,
22,
28,
-11,
-30,
-11,
32,
15,
-19,
-41,
30,
-3,
29,
7,
30,
6,
13,
-26,
-42,
17,
57,
-1,
-43,
-77,
21,
-15,
-19,
-38,
2,
27,
2,
-11,
37,
45,
19,
-40,
-33,
-4,
-45,
26,
-59,
6,
7,
9,
11,
-23,
-45,
-32,
1,
-62,
-28,
-17,
2,
18,
-40,
-6,
18,
-11,
-71,
38,
-8,
14,
-19,
7,
-6,
4,
-22,
-3,
37,
-42,
23,
30,
3,
-18,
-13,
8,
-14,
5,
-35,
-51,
27,
32,
-23,
48,
-2,
-30,
-41,
-35,
12,
-68,
12,
22,
-18,
8,
40,
5,
52,
-3,
14,
29,
26,
-49,
16,
-10,
18,
14,
17,
8,
35,
-45,
-12,
-3,
-46,
51,
-19,
-9,
14,
12,
-24,
-47,
23,
12,
-25,
-43,
17,
45,
-72,
-19,
-14,
11,
21,
28,
-30,
85,
-59,
-31,
53,
-32,
-30,
25,
-25,
11,
24,
1,
26,
21,
-20,
6,
11,
11,
29,
-32,
1,
-3,
-37,
-19,
2,
-12,
-29,
-7,
-5,
-15,
28,
6,
-5
] |
Per Curiam.
Original proceeding wherein the defendant in a criminal cause petitions the appellate court for a writ directing the District Court of Sweet Grass County to either sustain defendant’s demurrer to the information accusing him of having committed manslaughter or show cause why said trial court should not sustain such demurrer. The court deems the petition to be without merit and on the authority of State v. Gondeiro, 82 Mont. 530, 268 Pac. 507; State v. Souhrada, 122 Mont. 377, 204 Pac. (2d) 792 and State v. Bosch, 125 Mont. 566, 242 Pac. (2d) 477, the writ is denied and the proceeding dismissed.
|
[
-20,
-41,
11,
-15,
15,
-12,
30,
-90,
-17,
29,
-9,
-68,
-53,
47,
-13,
83,
-2,
-30,
1,
-41,
-20,
11,
37,
-24,
0,
-34,
11,
9,
0,
-46,
-44,
14,
-61,
23,
56,
-48,
-10,
-30,
34,
30,
-11,
32,
19,
-8,
27,
2,
-21,
0,
44,
1,
10,
0,
-34,
-33,
-77,
3,
15,
-48,
-27,
-20,
-8,
76,
-10,
-25,
-24,
6,
-22,
-23,
-9,
8,
14,
-8,
26,
20,
5,
-5,
-29,
-9,
-46,
45,
18,
77,
47,
49,
-21,
-8,
-18,
-12,
24,
45,
-9,
-8,
-14,
-1,
-19,
38,
-11,
-23,
-7,
36,
-18,
20,
25,
-32,
-27,
-6,
28,
5,
4,
-7,
-25,
-8,
-47,
-12,
-38,
-4,
-47,
-62,
7,
-7,
-25,
0,
60,
38,
-9,
-8,
-4,
52,
-2,
23,
17,
38,
38,
16,
12,
-8,
24,
-10,
19,
-6,
-7,
-55,
40,
7,
17,
0,
28,
3,
-9,
20,
48,
12,
0,
25,
37,
39,
37,
-76,
1,
30,
16,
30,
35,
-28,
-7,
47,
-35,
-2,
-26,
-56,
-15,
-12,
13,
-14,
-3,
-61,
-23,
55,
29,
-32,
39,
39,
0,
10,
-15,
63,
-75,
-15,
-39,
27,
-18,
-16,
23,
-52,
30,
-16,
62,
-16,
18,
-29,
-21,
-16,
38,
-18,
3,
8,
-40,
-25,
38,
8,
27,
-128,
24,
21,
5,
2,
21,
-4,
8,
33,
-49,
25,
23,
-52,
45,
-16,
-16,
-27,
-10,
13,
12,
-62,
4,
-57,
0,
-49,
57,
-42,
6,
39,
-60,
16,
64,
-5,
40,
19,
65,
68,
55,
30,
18,
27,
-40,
5,
-24,
-51,
-28,
-31,
23,
-25,
12,
29,
22,
29,
-38,
3,
4,
39,
-21,
-19,
-6,
-19,
-16,
0,
30,
-7,
-11,
-37,
-19,
28,
-5,
39,
18,
-12,
-1,
20,
-34,
15,
32,
-9,
-12,
-36,
-41,
9,
32,
30,
12,
-20,
3,
-15,
-32,
-66,
9,
-27,
-37,
-64,
38,
-27,
6,
-32,
9,
115,
22,
-1,
-69,
69,
27,
-73,
-16,
0,
-15,
-53,
-59,
-10,
18,
2,
32,
-12,
15,
41,
-9,
9,
32,
-43,
-38,
31,
-52,
38,
-13,
-61,
53,
17,
-67,
105,
4,
19,
-3,
45,
5,
24,
-39,
-1,
36,
-67,
6,
-49,
11,
-51,
25,
14,
-14,
16,
26,
-10,
25,
-36,
8,
26,
-16,
1,
-31,
24,
-11,
-34,
-11,
-30,
-3,
12,
40,
-9,
-8,
-24,
9,
-2,
50,
21,
58,
51,
10,
-33,
-20,
-2,
-21,
-41,
-34,
15,
-22,
0,
-6,
14,
42,
-11,
18,
-24,
3,
-45,
-26,
45,
42,
-1,
51,
17,
25,
56,
31,
0,
-48,
-19,
60,
34,
55,
6,
-46,
-14,
-47,
27,
-9,
20,
-20,
-53,
32,
6,
0,
34,
49,
41,
-26,
-17,
58,
64,
45,
13,
4,
-29,
-44,
-24,
-23,
4,
4,
-37,
4,
-32,
-5,
-25,
-19,
46,
55,
98,
-33,
12,
-3,
29,
-12,
-4,
-2,
80,
0,
11,
19,
23,
-19,
15,
-38,
-25,
-17,
-6,
-39,
-23,
7,
-21,
24,
1,
-4,
-51,
-5,
4,
14,
34,
-9,
16,
-38,
-55,
27,
-7,
12,
-13,
-31,
-1,
-21,
53,
36,
-13,
-21,
-32,
91,
20,
-17,
-2,
-9,
-17,
7,
5,
38,
-2,
45,
73,
27,
-12,
13,
-56,
-80,
-63,
-70,
-58,
86,
-7,
54,
5,
3,
3,
-8,
-74,
-45,
-63,
-6,
6,
-80,
22,
-18,
4,
16,
30,
46,
38,
13,
62,
11,
-25,
7,
28,
-25,
21,
-32,
-59,
-31,
-3,
-12,
-76,
50,
-67,
-37,
-1,
-36,
-5,
51,
58,
18,
10,
-24,
37,
-5,
40,
2,
-62,
8,
11,
-32,
-27,
-27,
13,
30,
5,
-40,
0,
-38,
-5,
-19,
-19,
30,
25,
-90,
18,
57,
-39,
25,
19,
-85,
-45,
31,
1,
-24,
65,
12,
37,
13,
26,
-8,
48,
-17,
-39,
43,
31,
-29,
0,
2,
-56,
-2,
15,
-18,
4,
27,
-11,
4,
30,
35,
-39,
-40,
-48,
-15,
19,
29,
-38,
-20,
-16,
-37,
-38,
-37,
69,
-6,
-20,
-10,
31,
10,
-12,
25,
-35,
21,
16,
9,
-1,
-8,
49,
-46,
-46,
-7,
44,
-13,
-25,
-30,
-38,
-43,
-21,
-74,
-7,
-28,
35,
4,
17,
-4,
30,
-10,
-32,
-40,
-56,
7,
3,
-18,
38,
31,
-71,
67,
-32,
17,
44,
-2,
-32,
25,
28,
-51,
-2,
32,
33,
-34,
48,
8,
-58,
-29,
-3,
-49,
3,
24,
18,
-51,
66,
-17,
-51,
-18,
-45,
-24,
-37,
-51,
-27,
-63,
8,
14,
-73,
-29,
18,
23,
-28,
-6,
3,
25,
38,
-34,
-7,
13,
-6,
48,
-22,
46,
-41,
33,
39,
-15,
-10,
0,
-44,
-3,
-3,
-12,
-34,
-5,
-9,
-11,
-23,
7,
53,
10,
37,
32,
-18,
-86,
92,
10,
-22,
61,
15,
32,
-20,
37,
16,
12,
-17,
-25,
-43,
-46,
-13,
53,
39,
-18,
38,
29,
-8,
78,
13,
-41,
-11,
37,
-5,
22,
-16,
17,
-6,
49,
34,
-57,
0,
0,
-13,
45,
6,
-27,
-1,
-6,
-24,
18,
12,
-15,
24,
53,
20,
44,
30,
22,
44,
-11,
17,
-18,
25,
47,
15,
-39,
55,
28,
39,
-1,
-20,
-2,
-48,
34,
20,
71,
22,
40,
18,
29,
-28,
-27,
-15,
9,
-52,
37,
-21,
0,
-64,
-20,
10,
-39,
43,
17,
35,
32,
-22,
30,
-29,
-6,
33,
31,
22,
-19,
13,
-4,
40,
-23,
-15,
1,
3,
-29,
-31,
53,
-3,
-13,
-2,
-49,
-16,
1,
5,
14,
0,
8,
22,
3,
60,
3,
-7,
27,
-4,
3,
-15,
-15,
-5,
-37,
5,
-7,
-24,
-80,
-71,
-47,
19,
29,
0,
2,
37,
52,
0,
-6,
-71,
4,
-5,
-40,
45,
46,
14,
12,
4,
0,
15,
-31,
22,
-51,
-61,
-15,
40,
-16,
-21,
-20,
22,
31,
-40,
58,
61,
20,
-18,
-4,
-51,
-6,
50,
-17,
42,
-9,
-9,
-37,
-18,
-19,
-38,
60,
-46,
4,
52,
16,
-5,
52,
-17,
18,
18,
-39,
-56,
-3,
-18,
17,
-45,
0,
22,
-37,
-17,
55,
64,
15,
23,
11,
32,
16,
13,
-36,
-4,
-28,
44,
2,
50,
-32,
8,
26,
42,
12,
-17,
-47,
59,
22,
52,
-43,
-99,
-17,
-82,
-90,
45,
-12,
-45,
16,
0,
-17,
34,
1,
-15,
11,
59,
-22,
-24,
-3,
-4,
-11,
25,
-46,
27,
41,
0,
-7,
-42,
-51,
52,
-17,
-13,
7,
-3,
24,
48,
-18,
7,
10,
-28,
6,
-23,
-25,
-7
] |
MR. JUSTICE ANGSTMAN:
This appeal is by applicant from a decree in habeas corpus. Appellant was formerly the wife of respondent and the mother of three minor children of the parties. Appellant and respondent were divorced in Oregon by decree entered on June 19, 1952, wherein the appellant was given the care and custody of the minor children.
It is alleged in the petition for the writ that respondent had persistently refused to surrender the children to the custody of the petitioner and has removed and secreted them for many months; that the said minor children are now in the care and custody of the respondent and his agent, Lauretta Gable, near Thompson Falls, which care and custody is in violation of the order of custody given and made in the decree of divorce.
Upon the filing of the petition for the writ and the hearing of some oral evidence, ex parte, on the 25th day of April 1954, the court issued the order granting the writ and made it returnable on the 26th day of April at 9:30 a.m. On the return day the respondent appeared and through his counsel requested a continuance of the hearing in order to enable him to prepare his defense and to obtain witnesses, many of whom resided in the State of Oregon. This request was granted and the hearing continued until May 10th at 9:30 a.m. The court however proceeded to hear the evidence submitted on behalf of applicant, the substance of which was to sustain the allegations of her petition. On advice of counsel respondent refused to testify as a witness for appellant on the ground that his testimony might tend to incriminate him. The court by its temporary order granted the custody of the children to the mother until the 10th day of May, and allowed her to take them without the State of Mon tana and to the State of Oregon with the promise and assurance that they would be in court at 9:30 a.m. on the 10th day of May.
On the 10th day of May applicant failed to appear at the hearing in person, and failed to present the children in court. Her counsel announced to the court that he had a telegram from his client stating that she was unable to be present at the hearing but giving no reason for her inability to be there. In the meantime, and on May 7th, respondent filed his answer in which he denied most of the allegations of plaintiff’s petition and alleged affirmatively that the Oregon court was without jurisdiction to award custody of the children for the reason that the children were without the State of Oregon at the time the decree of the court was rendered. It also alleged that petitioner is not a fit and proper person to have the care and custody of the minor children and that she abandoned them on the 5th day of October, 1951, without cause and left them in the care and custody of respondent.
On the 10th day of May the court proceeded to hear evidence offered on behalf of respondent in support of the allegations of his answer. Applicant offered no further evidence but her counsel cross-examined some of respondent’s witnesses. The court, by its decree, declared that petitioner is an unfit person to have the care and custody of the minor children; it found that the respondent is a fit and proper person to have the custody -r that applicant is in contempt of the court for failure to comply with the order made on the 26th of April, permitting her to take the children to Oregon for a period of two weeks; it denied the writ of habeas corpus to applicant and awarded the custody of the children to respondent. This appeal is from that decree.
At the hearing it developed that the respondent did not contest the divorce action in person, but did employ a lawyer who appeared in his behalf. Respondent’s testimony was to the effect that while-the divorce action was pending his lawyer advised him that he could do nothing for him and that “if you want to keep' those children your only chance is to get away from her, because it’s a spite case on her part, and if she can’t reach .you then I think she will let you alone. ’ ’ Acting on this advice, respondent left the State of Oregon in May 1952 and took the children with him, first to Idaho and then to the State of Montana.
His contention that the Oregon court had no jurisdiction to .award the custody of the children while they were thus absent from the State of Oregon is without merit. The rule applicable is stated in 27 C.J.S., Divorce, section 333, page 1299, as follows: “Where the court has jurisdiction of the parties and subject matter, removal of the children of the parties from the .state prior to the decree does not deprive the court of jurisdiction to fix the custody of such children or disentitle the decree to recognition in another state.” To the same effect is the note in 4 A.L.R. (2d) 31.
As was said in Roberts v. Roberts, 300 Ky. 454, 189 S.W. (2d) 691, 692 (a case which we cited and quoted from with approval in Talbot v. Talbot, 120 Mont. 167, 181 Pac. (2d) 148), “To hold •otherwise would make it virtually impossible to arrive at a final determination of the custody of a child in a divorce proceeding, because all that the party who had the custody of the child would have to do would be to remove the child from the jurisdiction of the court before judgment was entered, even though the issues had been joined, proof taken and the cause submitted.”
We have recognized this rule in a case where the children were removed from the state wrongfully after the decree was entered in State ex rel. Nipp v. District Court, 46 Mont. 425, 128 Pac. 590, Ann. Cas. 1916B, 256. Contrary to the contention of respondent, these children were never residents of the State of Montana, but at all times have been residents of the State of Oregon. The mother, who was awarded the custody of the children, had the right to fix their residence. In re Metcalf’s Estate, 93 Mont. 542, 19 Pac. (2d) 905; R.C.M. 1947, section 61-121. And the mother’s residence determines that of the children. 28 C.J.S., Domicile, section 12, page 22, note 37. Certainly they were residents of the State of Oregon when the Oregon court awarded the custody to their mother. Their residence could not be changed except by the mother. Ex Parte Lorenz, 194 Or. 355, 241 Pac. (2d) 142, 242 Pac. (2d) 200. And this, was never done. The Oregon court had jurisdiction to decree the custody of the children in the divorce action. That decree is entitled to full faith and credit here. Art. IV, section 1, of the United States Constitution. Any question of the fitness of the mother to have the care and custody of the children and her claimed abandonment of them should have been brought to the attention of the Oregon court before the award of custody was made.
We call attention to the fact that most of the evidence of unfitness relates to the time when the custody of these children was first awarded to the mother by the Oregon court. What the conditions are today is entirely a different matter. It appears that the applicant has since married another man and from aught that appears in the record she may now be entirely fit and proper to have the custody of the children. At any rate that is a subject that must be presented, if at all, to the proper court of the State of Oregon, which has jurisdiction over the custody of these children.
We point out also that this is not a case where the respondent father rightfully removed the children from the State of Oregon as in the ease of In re Enke, Mont., 287 Pac. (2d) 19.
Though the answer of respondent raised no such issue, he was permitted to testify that no summons was ever served on him in the divorce action. He admitted however that a copy of the complaint in the divorce action was served on him. The failure to serve a copy of the summons was immaterial where, as here, it appears from the face of the Oregon decree that respondent appeared generally in the divorce action through his counsel. By thus appearing generally therein respondent submitted to the jurisdiction of the Oregon court for all purposes.
With respect to the order of the court declaring applicant to be in contempt of court, it is sufficient to say that no such adjudication can stand in the absence of a citation for contempt and an opportunity to defend. Applicant may have a perfectly legitimate excuse for not being present at the hearing so as to purge her of any contempt charge. Her conduct, if contemptuous, would furnish no justification for changing the custody of the children but would furnish the basis for proper contempt proceedings. Evans v. Taylor, Tex. Civ. App., 128 S.W. (2d) 77.
On the record applicant is entitled to the custody of the children in question here, all is provided in the decree of the Oregon court. Appellant’s conduct in disregarding the order of the court is by no means condoned, even though she but followed the example set by respondent in removing the children from the State of Oregon. Her unjustified refusal to comply with the court’s order should not deprive her of the benefits of the Oregon decree which had jurisdiction to award the custody of the children.
The decree is reversed and the cause remanded with directions that the court order the children to be committed to the custody of applicant all as provided in R.C.M. 1947, section 94-101-21.
|
[
41,
27,
-14,
28,
1,
-89,
-47,
-14,
-8,
-13,
-21,
22,
-25,
-23,
-63,
-13,
45,
-5,
79,
-36,
-30,
22,
2,
28,
60,
-2,
-4,
-37,
-49,
4,
17,
-26,
-7,
-29,
1,
30,
52,
-32,
59,
14,
-29,
-70,
8,
7,
-31,
17,
-26,
19,
-55,
10,
26,
-26,
13,
46,
5,
-12,
7,
-19,
22,
13,
-28,
25,
-41,
28,
-15,
-3,
40,
5,
27,
-31,
14,
-57,
6,
-8,
-37,
-45,
-30,
30,
52,
31,
0,
37,
-53,
-47,
49,
-8,
-13,
22,
-26,
56,
0,
11,
-22,
-7,
-33,
18,
0,
-13,
31,
22,
-6,
-24,
-23,
-25,
21,
33,
0,
31,
34,
43,
52,
9,
-12,
30,
-26,
-18,
2,
-53,
-48,
-57,
14,
8,
-18,
-2,
47,
-35,
-33,
-1,
33,
23,
-48,
39,
84,
-3,
18,
-23,
48,
-72,
-7,
-63,
-10,
-62,
59,
17,
20,
27,
26,
23,
15,
-29,
38,
-28,
-16,
37,
56,
-26,
9,
-20,
2,
-19,
9,
2,
-45,
-32,
41,
-17,
-17,
-7,
4,
-5,
18,
3,
0,
41,
0,
4,
-29,
32,
-19,
-29,
9,
27,
4,
-26,
28,
23,
-23,
14,
-35,
-60,
-40,
-7,
63,
10,
47,
11,
-1,
12,
49,
-13,
-35,
55,
31,
47,
13,
-12,
46,
47,
1,
-29,
14,
33,
-22,
-38,
-17,
-42,
-4,
29,
-39,
49,
4,
-28,
9,
-56,
3,
5,
45,
19,
15,
10,
-6,
-19,
3,
14,
-2,
-2,
33,
-9,
-21,
-21,
-15,
29,
32,
-11,
28,
69,
-38,
20,
-25,
22,
1,
31,
-12,
35,
28,
-24,
-23,
43,
6,
-33,
31,
-23,
21,
-6,
-19,
-14,
1,
-29,
27,
4,
44,
27,
8,
-32,
24,
8,
-20,
48,
-11,
-9,
21,
35,
40,
33,
16,
-14,
53,
-15,
52,
15,
-36,
-8,
-12,
-31,
37,
-13,
-32,
-17,
-24,
47,
15,
-51,
31,
5,
6,
-7,
14,
10,
-14,
5,
48,
49,
-17,
-24,
-2,
63,
-30,
-68,
-22,
19,
35,
36,
-36,
-20,
49,
30,
-1,
1,
20,
6,
-3,
14,
-15,
-25,
12,
23,
-48,
-1,
9,
-4,
41,
-5,
-26,
32,
-18,
25,
-17,
19,
0,
4,
-20,
3,
-22,
-33,
-75,
-43,
-36,
-84,
35,
2,
16,
13,
-19,
-4,
-22,
55,
37,
-16,
26,
-13,
-45,
-34,
-11,
-21,
-26,
27,
-10,
3,
20,
-19,
-10,
-9,
-9,
2,
27,
17,
-2,
-5,
28,
-62,
11,
0,
-2,
-46,
38,
-24,
3,
2,
40,
-31,
-61,
-47,
21,
22,
15,
-22,
3,
45,
-53,
-10,
10,
10,
15,
72,
62,
-21,
-55,
-17,
6,
19,
8,
-34,
11,
17,
0,
26,
-2,
-63,
0,
61,
8,
30,
-23,
20,
10,
-25,
7,
-17,
-18,
56,
0,
26,
-21,
26,
18,
-15,
-24,
-36,
21,
5,
-33,
11,
-29,
9,
4,
-3,
6,
32,
10,
-2,
-9,
-11,
17,
0,
0,
-14,
-7,
8,
-39,
8,
31,
16,
9,
30,
7,
124,
-19,
38,
-4,
10,
-35,
-49,
-39,
-32,
0,
74,
-31,
-1,
-5,
0,
-17,
-3,
53,
33,
-22,
-58,
-8,
-38,
37,
-12,
15,
14,
17,
-1,
62,
13,
56,
22,
-23,
-14,
-3,
-11,
33,
-52,
-6,
17,
36,
5,
21,
47,
-26,
10,
39,
-3,
1,
22,
78,
-4,
-77,
2,
34,
41,
-67,
-7,
5,
-41,
17,
-35,
15,
-6,
32,
-9,
22,
11,
-55,
0,
27,
-38,
-18,
5,
5,
-1,
-20,
35,
25,
13,
-34,
-7,
-41,
-62,
35,
1,
-29,
-36,
-29,
-34,
-27,
28,
-56,
45,
8,
-35,
-31,
7,
31,
2,
-33,
8,
5,
-28,
-13,
-9,
-76,
4,
-36,
-18,
-7,
46,
0,
-24,
-57,
0,
-31,
-48,
13,
-41,
-46,
-63,
18,
25,
-77,
53,
12,
-28,
-12,
4,
9,
43,
-7,
-43,
17,
45,
-36,
-9,
-4,
-2,
-8,
6,
-19,
1,
44,
-8,
-24,
20,
35,
-24,
-10,
-6,
-1,
-1,
21,
-30,
64,
30,
-11,
-29,
3,
2,
14,
-3,
33,
62,
-22,
-31,
-8,
-55,
65,
-44,
32,
0,
80,
39,
5,
-28,
42,
-47,
-28,
-43,
-24,
87,
-19,
-51,
-17,
-10,
35,
-3,
-4,
61,
-58,
3,
-39,
8,
28,
35,
-3,
32,
-19,
57,
15,
-17,
-28,
-35,
-3,
-14,
-52,
18,
62,
31,
-10,
22,
21,
2,
31,
14,
-26,
56,
19,
28,
-17,
33,
-52,
9,
5,
-53,
-50,
18,
16,
18,
6,
10,
-4,
42,
14,
15,
-40,
-29,
61,
-40,
-40,
-14,
-16,
43,
-19,
-38,
50,
44,
37,
-10,
30,
3,
61,
22,
22,
-12,
-4,
-6,
7,
-58,
25,
6,
34,
-38,
4,
-11,
40,
35,
-31,
-60,
-22,
-19,
31,
-54,
-10,
25,
-47,
8,
3,
-1,
-15,
28,
23,
1,
17,
16,
-27,
-12,
-47,
-49,
44,
3,
-13,
-32,
18,
0,
-1,
-30,
-38,
29,
40,
-29,
-75,
62,
-41,
3,
72,
-7,
5,
-3,
-4,
26,
-6,
-13,
5,
5,
18,
72,
-29,
7,
-6,
-15,
60,
30,
16,
31,
4,
6,
-40,
13,
-27,
-2,
-42,
-7,
-14,
5,
-8,
-6,
25,
-4,
29,
-3,
24,
-53,
22,
32,
17,
18,
-9,
39,
37,
-32,
6,
-44,
39,
46,
-60,
19,
52,
-13,
2,
13,
-8,
24,
-16,
-78,
38,
35,
22,
5,
31,
-38,
38,
-22,
51,
66,
-27,
-65,
-34,
31,
9,
-5,
-61,
45,
13,
-64,
10,
-36,
20,
-40,
26,
0,
3,
-76,
8,
37,
-1,
-31,
37,
29,
-7,
16,
24,
34,
-68,
-6,
-13,
-17,
-23,
56,
-61,
-25,
-19,
34,
34,
7,
-31,
81,
-33,
-62,
-83,
4,
-16,
27,
-8,
-22,
-24,
-32,
-50,
42,
60,
-4,
41,
-11,
6,
-49,
32,
7,
-3,
22,
-12,
-35,
26,
-29,
-22,
14,
-12,
-40,
-32,
-11,
-21,
46,
-14,
-4,
-13,
-13,
63,
-4,
-14,
18,
-21,
-1,
-28,
-38,
-6,
22,
17,
24,
13,
-68,
-68,
-31,
32,
16,
-7,
17,
-3,
37,
-3,
-11,
0,
7,
-13,
5,
-2,
23,
-4,
-49,
47,
32,
-26,
-33,
-16,
17,
-19,
1,
-47,
-32,
23,
-22,
36,
10,
11,
31,
-40,
-3,
-31,
-1,
-12,
-22,
-85,
-57,
39,
6,
72,
-23,
72,
-3,
-44,
-54,
-5,
-5,
-20,
-4,
16,
-24,
3,
-57,
-42,
0,
5,
-8,
39,
-46,
24,
-56,
-23,
-18,
-28,
13,
26,
-10,
-26,
-34,
21,
19
] |
THE HON. JACK R. LOUCKS,
District Judge, sitting for Mr. Justice Davis who deemed himself disqualified.
This is an appeal from a judgment of the district court of Yellowstone County, wherein the relators below sought and obtained a peremptory writ of prohibition. Involved is the construction of R. C. M. 1947, section 75-1606, relating to the nomination and election of school trustees and sections 90-401 and 90-407, prescribing the statutory rules for computing time.
The facts are undisputed and are these:
In the spring of 1954 the terms of three of the seven school trustees of district No. 2 in Yellowstone County were to expire and candidates for the offices were to be nominated. Public school district No. 2 in Yellowstone County is a district of the first class.
The law of this jurisdiction requires that an annual election of school trustees be held in each school district in the state on the first Saturday of April of each year. R. C. M. 1947, section 75-1603. The first Saturday of April in the year 1954 was April 3rd and thus the day of election was April 3, 1954.
Under our statutes in districts of the first class no person shall be voted for or elected as trustee unless he has been nominated therefor at a bona fide public meeting, held in the district not more than sixty days nor less than forty days before the day of election. R. C. M. 1947, section 75-1606.
The transcript on appeal reveals that three bona fide meetings were called and held in public school district No. 2 of Yellowstone County, said meetings being called pursuant to call and notice previously given to the general public. The meetings were held for the purpose of nominating candidates for the office of school trustee of the district at the annual election of April 3, 1954. Each meeting was attended by twenty or more qualified electors.
The first of such public meetings was held on the evening of February 9, 1954, in the Junior High School Auditorium located in district No. 2, at which meeting Richard "W. Burns, Wil liam S. King and Alice D. Ryniker were nominated as candidates for school trustees in the district and on February 18, 1954, the names of such three nominees were duly certified to the clerk of the district by certificate that day presented and filed.
The second public meeting was held at 7 :45 o’clock p.m. on February 22, 1954, in the Northern Hotel in Billings, located in district No. 2, at which meeting Sterling M. Wood, M. R. Colberg and Earl E. Tiffany were nominated as candidates for school trustees in the district and on February 24, 1954, the names of such last mentioned three nominees were duly certified to the clerk of the district by certificate that day presented and filed.
The third public meeting was held at 8:00 o’clock p.m. on February 22, 1954, in the Junior High School Auditorium in district No. 2 at which Sterling M. Wood, M. R. Colberg and Earl E. Tiffany were nominated as candidates for school trustees in the district and on the same date, namely February 22, 1954, the names of such last three nominees were duly certified to the clerk of the district by certificate that day made, presented and filed.
The public nominating meeting of February 9, 1954, was held 53 days before the day of election (April 3, 1954). Thus was the first public nominating meeting held “not more than sixty (60) days nor less than forty (40) days before the day of election” as is prescribed by section 75-1606, supra.
To prohibit the calling or holding of any election whatever in 1954 for the purpose of selecting school trustees of district No. 2 or the placing of the names of the nominees of the nominating meetings of February 22, 1954, on any ballot and to compel the immediate certification of their own election as trustees of the district, the relators, Richard AY. Burns, AYilliam S. King and Alice D. Ryniker, being the three nominees of the first nominating meeting, commenced in the district court of Yellowstone County this action against the board of trustees of school district No. 2 and the clerk of such district asserting that the second and third nominating meetings of February 22, 1954, and the nominations there made and certified are void under the provisions of E. C. M. 1947, section 75-1606, claiming that such meetings were held less than forty days before the day of election.
The second and third sentences of E. C. M. 1947, section 75-1606, read:
“The nomination and election of any person shall be void, unless he was nominated at a meeting as above provided * * * and his nomination certified and filed as aforesaid * * *. In the event there be held only one (1) such public meeting, and only one (1) candidate be nominated for each term to be filled then and in that event no election need be held and the clerk of such district shall certify such facts to the board of trustees of the district, acting as a board of canvassers who shall thereupon certify the election of such persons to the county superintendent of schools.”
On March 11,1954, the district court issued an alternative writ of prohibition directing the board of trustees of the district and the clerk thereof to desist from doing or performing any of the acts complained of and directing that such board and clerk show cause on a day certain why such writ should not be made permanent.
The board and the clerk interposed a motion to quash the writ and dismiss relators’ affidavit and application for a writ, which motion was based upon the records and files in the proceeding and made on the grounds, inter alia, that the facts set forth in relators’ affidavit and application are insufficient to authorize the issuance of the writ. Upon the disallowance of their motion the board and its clerk made return and answer to the writ alleging, inter alia, that E. C. M. 1947, section 75-1606, is invalid and violative of the State Constitution for the reasons set forth in the above motion.
A hearing was had and on March 15, 1954, the district court made and filed written findings of fact and conclusions of law which were incorporated in its judgment that day made and entered, which judgment ordered that a peremptory writ of pro Mbition issue against tbe board and clerk of tbe school district commanding: (1) That they desist from calling, noticing and holding an election on April 3, 1954, for the purpose of selecting school trustees; (2) that they refrain from placing the names of Wood, Colberg and Tiffany on any ballot provided for the election of school trustees for such school district; (3) that they withdraw and cancel the certificates of the said Wood, Colberg and Tiffany as regularly nominated candidates for trustees of such school district; (4) that the clerk desist from certifying to the board of school trustees any names as candidates for school trustee other than the names of the relators, Burns, King and Ryniker; (5) that the clerk certify to the board of trustees of the district acting as a board of canvassers (a) that only one legal public meeting was held within the time required by law, (b) that only the three relators, Richard W. Burns, William S. King and Alice D. Ryniker have been nominated at such meeting for the offices to be filled (6) and further commanding the board of school trustees under such certification to proceed as provided in section 75-1606 in the matter of the election of trustees for the district.
This is an appeal by the clerk and the board of school trustees of the school district from the judgment so entered against them.
In its finding of fact No. 7 the district court found “that the meetings held at the Northern Hotel and the Junior High School Auditorium on the 22nd day of February, 1954, hereinbefore mentioned, were and each of them Avas held less than forty (40) days before the day of election in said School District.”
This finding presents the question determinative of this appeal, namely:
Were the public nominating meetings held February 22, 1954, in time ?
This presents a simple problem in simple arithmetic. Its correct solution supplies the answer to this law suit.
“Time is computed according to the Gregorian or new style; and the first of January in every year passed since seventeen hundred and fifty-two, or to come, must be reckoned as the first day of the year. ’ ’ R. C. M. 1947, section 90-401. Emphasis supplied.
Under the above section of the Revised Codes of Montana of 1947, Friday, the first day of January 1954 “must be reckoned as the first day of the year” 1954 and each succeeding day thereafter had its own separate number to and including, Friday, December 31, 1954, which was the last, or 365th day, of the year 1954.
A day is a division of time or a unit of measuring it. 25 C. J. S., Day, page 1006.
The law provides: “Fractions of a day are to be disregarded in computations which include more than one (1) day and involve no questions of priority.” R. C. M. 1947, section 19-103, subd. 4. See Kelly v. Independent Pub. Co., 45 Mont. 127, 133, 122 Pac. 735, 38 L. R. A., N. S., 1160, Ann. Cas. 1913 D, 1063.
The computations here include more than one day and involve no questions of priority, hence the above quoted provisions of the concluding sentence of subdivision 4 of section 19-103 apply.
Saturday, April 3, 1954, “the day of election”, section 75-1606, was the 93rd day of the year 1954 and Monday, February 22,1954, being the day on which both the second and third public nominating meetings were held was the 53rd day of the year 1954. Consult the 1954 Lawyers Calendar supplied gratis to the bench and bar of this state by Bancroft-Whitney Company, law book publishers, whereon each day of the year is numbered from the first of January which was the 1st day of the year to the thirty-first of December which was the 365th day of the year. Subtraction shows: 93 minus 53 is 40. Thus the nominating meetings had on the 53rd day of year were held precisely “forty (40) days before the day of election” which election day fell on the 93rd day of the year.
The act which the law provides be done on a day certain is the holding of the annual election of school trustees, section 75-1603, while the act which the law provides shall be done on a day “not * '* * less than forty (40) days before the day of election” is the holding of a public caucus or nominating meeting. Section 75-1606.
How must the time from the day of election April 3, 1954, to-the day of the nominating meetings held on February 22, 1954, be computed?
General Buie. In computing a designated number of days for the purpose of ascertaining the last day on which an act may be done the general rule is to exclude the first terminal day and to include the last. 86 C. J. S., Time, section 13(1), page 848.
Common-laiv Bule. “The general rule is that the time within which an act is to be done is to be computed by excluding the first day and including the last, that is, the day on which the act is to be done; and in many jurisdictions this rule has been adopted by statutes which have been held to be merely declaratory of' the existing common-law rule.” 86 C. J. S., Time, section 13(1), page 849, notes 66 and 67. Emphasis supplied.
Statutory Buie. In 1864 the First Legislative Assembly of' the Territory of Montana by the enactment of Section 430 of the Bannack Statutes at page 130 incorporated into the law of this jurisdiction the above common-law rule and formula for computing time by excluding the first day and inchiding the last which at all times since has been and now is the written law of' this jurisdiction.
The law of Montana expressly provides:
“Computation of time. The time in which any act provided by law is to be done is computed by excluding the first day and including the last * * 11. C. M. 1947, section 90-407. Emphasis supplied.
In Schnepel v. Mellen, 3 Mont. 118, 126, the court quoted with approval from In re Goswiler’s Estate, 3 Pen. & W., Pa., 200, wherein it is said that, “whenever by rule of court or any act. of the legislature a given number of days are allowed to do an act, or it is said that an act may be done within a given number of days, the day in which the rule is taken or the decision made is excluded, and if one or more Sundays occur within the time, they are counted, unless the last day falls on Sunday, in which case the act may be done on the next day. ’ ’ Emphasis supplied.
The question for determination involves the computing of time, — the counting back of the days from April 3, 1954, the day of election, to February 22, 1954, the day of the holding of the two challenged public nominating meetings. See State ex rel. Earley v. Batchelor, 15 Wash. (2d) 149, 130 Pac. (2d) 72, 74; Luedke v. Todd, 109 Colo. 326, 124 Pac. (2d) 932, 934; Cosgriff v. Board of Election Com’rs, 151 Cal. 407, 91 Pac. 98, 99; Barron v. Green, 13 N. J. Super. 483, 80 A. (2d) 586.
The Legislature, by the enactment of R. C. M. 1947, section 90-407, has prescribed the one and only lawful rule or formula for computing both the maximum and the minimum number of days designated in section 75-1606, supra. Section 90-407 says compute “by excluding the first day and including the last” day.
“Where the statute requires the filing of a petition not less than twenty days before the primary, the computation is made by counting back twenty days, excluding the day of election, and a petition filed on the twentieth day is in time * * 18 Am. Jur., Elections, section 130, pages 262, 263. Emphasis supplied.
Here the two terminal days are (1) April 3rd and (2) February 22nd, so by counting the days backward from April 3rd, which day is excluded from the count, it will be found that February 22nd was 40 days before the day of election, which latter day is included in the count in compliance with the provisions of section 90-407, supra. Thus were the challenged nominating meetings of February held on precisely the 40th day before the day of election and therefore within the time prescribed. Being within time they are valid. See State ex rel. Earley v. Batchelor, supra; Luedke v. Todd, supra, and Cosgriff v. Board of Election Com’rs, supra.
As was said in the concluding paragraph of Barron v. Green, 13 N. J. Super. 483, 80 A. (2d) 586, 589, “In view of the authorities cited, we must conclude that the plaintiff, having filed his petitions in due form on the fortieth day before May 8, 1951,. is entitled to have his name placed on the ballot * * *.”
In the phrase “nor less than forty (40) days before the day of election” appearing in section 75-1606, supra, the word “less” means not a fewer or smaller number of days than 40 days before the day of election. Forty days are 40 days and not 39 days nor 38 days nor any fewer or smaller number of days than 40. Forty dollars is precisely $40 and not $39.99 or any smaller or lesser amount than $40.
To better illustrate the computation the portions of the calendar for the months of February, March and April 1954, involved in the instant computation, are here set out:
3
It is clear that when the time is computed in the manner required by section 90-407 the last day on which the public nominating meeting could be held was February 22nd, such day being the 40th and last day of the period allowed therefor under the provisions of section 75-1606, supra.
In Kelly v. Independent Pub. Co., 45 Mont. 127, 135, 122 Pac. 735, 737, 38 L. R. A., N. S., 1160, this court, after quoting the Montana statute, section 90-407 (then section 8067, Rev. Codes of 1907) said that its purpose “was to establish a general rule for the computation of time, in order that confusion may be avoided and harmony prevail.”
Confusion was avoided and harmony did prevail in the decisions of this court so long as it computed the time in which an act provided by law is to be done in the manner and in conform ity with the rule so prescribed by the legislature in section 90-407 of the Revised Codes of Montana of 1947.
However, in 1927, confusion came with State ex rel. St. George v. Justice Court of Silver Bow Township, 80 Mont. 53, at page 62, 257 Pac. 1034, at page 1037 wherein the court, speaking through Mr. Justice Myers, declined to either follow or apply the statutory rule which requires “excluding the first day and including the last,” section 90-407, then section 10707, Rev. Codes of 1921, and in lieu thereof adopted and declared a different rule which excludes both terminal days from the computation and thus produces a different result than does the stattory rule, R. C. M. 1947, section 90-407.
In ignoring and rejecting the statutory rule of computation prescribed in R. C. M. 1947, section 90-407, the court observed that it believed the rule which excludes from the computation both terminal days “to be the sounder and based on the better reasoning”, 80 Mont, at page 63, 257 Pac. at page 1038, thereby overlooking: (1) That this court is not a lawmaking body; (2) that it cannot supply deficiencies in legislation, State ex rel. Koefod v. Board of County Com’s, 56 Mont. 355, at page 361, 185 Pac. 147; (3) that with the accuracy or wisdom of the legislative view this court may not concern itself, Hill v. Rae, 52 Mont. 378, at page 386, 158 Pac. 826, L. R. A. 1917A, 495, Ann. Cas. 1917E, 210; (4) that this court cannot substitute judicial opinion of expediency for the will of the legislature, State v. Centennial Brewing Co., 55 Mont. 500, at page 513, 179 Pac. 296; (5) that the policy of the law is a matter for legislative control and does not concern the courts, Wheeler & Motter Mercantile Co. v. Moon, 49 Mont. 307, at page 314, 141 Pac. 665; (6) that it is the duty of this court to construe the law as it finds it, Great Northern Utilities Co. v. Public Service Commission, 88 Mont. 180, at page 206, 293 Pac. 294; and (7) that to construe a statute is to ascertain the intent of the legislature and not substitute the court’s discretion for the clearly expressed intent and mandate of the legislature, R. C. M. 1947, section 93-401-15; General Finance Co. v. Powell, 112 Mont. 535, at page 540, 118 Pac. (2d) 751.
The legislative assembly has expressly provided that, “In the construction of a statute * * * the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has teen omitted, or to omit what has teen inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.” Emphasis supplied. R. C. M. 1947, section 93-401-15.
The case of State ex rel. St. George v. Justice Court, supra, is obviously and fundamentally unsound, yet it has been cited with approval and followed in three subsequent cases, viz.: State ex rel. Bevan v. Mountjoy, 82 Mont. 594, 268 Pac. 558; Novack v. Pericich, 90 Mont. 91, 300 Pac. 240, and State ex rel. Sullivan v. District Court, 122 Mont. 1, 196 Pac. (2d) 452, all of which ignore and reject the valid written law of this jurisdiction duly and regularly enacted by the legislative department and assume to adopt and declare another and different rule of computation that has no legislative sanction whatever and that is entirely out of harmony with the provisions of the statute, section 90-407, supra, which sets forth and is the written law of this jurisdiction.
Law is a solemn expression of the will of the supreme power of the state and is expressed (1) by the Constitution and (2) by the statutes. See R. C. M. 1947, sections 12-101 and 12-102.
The written law of this state is therefore contained in its Constitution and statutes and in the Constitution and statutes of the United States. R. C. M. 1947, section 93-1001-9.
The voritten law of this state must prevail as against the declaration or promulgation by this court of.an opposing rule at variance with and contrary to such written law.
In Novack v. Pericich, 90 Mont. at page 94, 300 Pac. at page 241, the justice assigned to write the court’s pronouncement reluctantly followed the St. George and Bevan cases, supra, but stated that in the opinion of himself and another' justice “the St. George and Be van eases, supra, are fundamentally unsound, and we subscribe to the conclusion here announced solely on the ground of stare decisis.”
The later case of State ex rel. Sullivan v. District Court, supra, rests upon the same insecure foundation and is equally unsound for it like its three predecessors neither follows nor applies the clear mandate and plain provisions of section 90-407 which form a part of the written law of this jurisdiction.
“The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the court, and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong be the result.” 21 C. J. S., Courts, section 193, pages 322, 323.
In Coleman v. Page’s Estate, 202 S. C. 486, 25 S. E. (2d) 559, 560, the court said: “Where conflicting decisions appear to have been made by inadvertence or otherwise, and the position of the Court is thereby rendered uncertain, the rule of stare decisis does not necessarily apply.”
In United States v. State of Minnesota, 8 Cir., 113 F. (2d) 770, at pages 774, 775, the court said: “The strong respect for precedent which inheres in our legal system has its qualifications and limitations. It does not call for a blind, arbitrary and implicit following of precedent, but recognizes * * * that it is more important as to far reaching judicial principles that the court should be right than that it merely be in harmony with its previous decisions. Such a respect for precedent balks at the perpetuation of error, and the doctrine of stare decisis is, after all, subordinate to legal reason and is properly departed from if and when such departure is necessary to avoid the perpetuation of error. ’ ’
In In re Murphy’s Estate, 99 Mont. 114, at page 125, 43 Pac. (2d) 233, at page 237, this court said that “a former decision of this court * * * will not be followed if not founded upon correct reasoning. [Citing case.] In other words, this court will overrule a former decision of this court * * when convinced that such decision is not sound.”
Courts are not inclined, any more than men out of courts, to admit that they have erred but where the court has fallen into error upon a question controlled and determined by a valid, unambiguous statute with which certain of this court’s decisions are in direct conflict then it becomes the plain duty of the court to retrace its steps and overrule such clearly erroneous decisions. Accordingly the St. George, Bevan, Novack and Sullivan cases, supra, are overruled.
While it has been urged that section 75-1606, supra, is violative of the Constitution, yet it is elementary that this court will determine the constitutionality of a statute only when such determination is necessary to a decision in the case before it. Durocher v. Myers, 84 Mont. 225, 233, 274 Pac. 1062; State v. Tesla, 69 Mont. 503, 507, 223 Pac. 107; Monarch Min. Co. v. State Highway Commission, 128 Mont. 65, 270 Pac. (2d) 738.
Here it is wholly unnecessary to a determination of the instant ease to pass upon the constitutionality of the provisions of section 75-1606, R. C. M. 1947. Clearly there should have been an election held in public school district No. 2 on April 3, 1954, at which the names of Richard W. Burns, William S. King and Alice D. Ryniker, the nominees of the public caucus held February 9, 1954, and the names of Sterling M. Wood, M. R. Colberg and Earl E. Tiffany, the nominees of the public nominating meetings held February 22, 1954, should have been placed on the ballot so that the qualified electors of public school district No. 2 be afforded the opportunity to vote for their choice of the candidates for the office of school trustees of the district.
Accordingly the order disallowing appellants’ motion to quash and the district court’s judgment are vacated, set aside and reversed, the peremptory writ of prohibition is dissolved, — the application therefor made to the district court is dismissed, — respondents’ motion for their costs and attorney’s fees is denied,— the appellants are allowed their costs in the district court and on this appeal and remittitur will issue forthwith.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICE BOTTOMLY, concur.
|
[
41,
29,
36,
11,
-4,
12,
3,
45,
-33,
30,
-40,
-50,
25,
25,
-45,
9,
-38,
-12,
58,
-18,
24,
20,
-77,
5,
54,
7,
-57,
21,
-33,
13,
38,
-2,
-7,
-53,
37,
12,
15,
29,
24,
-37,
-1,
-43,
-56,
0,
0,
-3,
-1,
-15,
-51,
-6,
20,
18,
25,
11,
26,
30,
-33,
-11,
-24,
19,
-29,
35,
49,
-10,
45,
-29,
4,
41,
29,
-35,
-9,
-17,
-33,
-4,
58,
10,
-3,
-4,
2,
66,
1,
6,
40,
-19,
-15,
-60,
2,
24,
10,
-25,
0,
6,
-28,
26,
25,
-75,
6,
-2,
48,
5,
1,
-55,
35,
-1,
-29,
-100,
-40,
37,
40,
9,
9,
-1,
19,
2,
10,
17,
1,
73,
16,
5,
14,
-17,
-8,
27,
-1,
37,
-37,
77,
9,
-10,
-62,
25,
42,
-10,
-16,
3,
-36,
-62,
18,
-34,
41,
11,
27,
-8,
-58,
-55,
-9,
28,
-21,
17,
-23,
14,
50,
6,
-9,
13,
54,
-50,
40,
-40,
-41,
-4,
-62,
-7,
13,
14,
16,
-20,
22,
-6,
-33,
22,
1,
47,
9,
-9,
22,
6,
19,
30,
-17,
-23,
42,
11,
-10,
11,
-5,
1,
9,
54,
-30,
-20,
10,
-43,
4,
-43,
-32,
66,
-12,
41,
5,
23,
-21,
60,
0,
22,
5,
15,
14,
0,
-55,
-33,
67,
40,
20,
17,
-41,
63,
11,
-41,
29,
23,
3,
71,
-12,
-22,
-30,
-23,
6,
30,
39,
58,
22,
-43,
52,
-19,
-34,
19,
36,
12,
-24,
-73,
30,
70,
12,
-17,
-38,
-30,
-12,
49,
10,
-22,
14,
37,
-21,
28,
-1,
-53,
-6,
-34,
12,
-36,
28,
-16,
-55,
-43,
4,
57,
60,
-15,
-36,
25,
38,
4,
-20,
19,
11,
-59,
-7,
-26,
13,
-31,
3,
40,
-51,
12,
4,
-11,
0,
-22,
-60,
7,
4,
1,
12,
-53,
27,
53,
16,
-92,
-53,
52,
-23,
3,
-23,
3,
-50,
-86,
58,
48,
29,
-54,
-16,
14,
2,
-20,
-6,
52,
-32,
-33,
10,
-57,
10,
13,
-72,
51,
-25,
73,
-14,
29,
-50,
-54,
-66,
-19,
57,
-17,
46,
10,
-25,
-20,
52,
7,
45,
38,
-7,
4,
-16,
20,
11,
24,
22,
-16,
45,
-12,
-52,
28,
52,
21,
32,
-19,
-4,
12,
38,
-17,
12,
-34,
3,
-4,
51,
-74,
-21,
-37,
61,
-30,
30,
-10,
8,
3,
21,
9,
-67,
12,
19,
11,
-17,
-4,
50,
38,
-42,
-15,
24,
15,
-47,
-3,
68,
15,
27,
-31,
-49,
-20,
-17,
21,
22,
11,
0,
-19,
-66,
-34,
40,
24,
44,
11,
12,
-77,
64,
-60,
-15,
27,
-2,
8,
-3,
4,
-11,
0,
6,
-7,
29,
37,
22,
-29,
9,
-14,
-47,
7,
7,
-18,
-3,
9,
-19,
-7,
79,
-30,
52,
13,
-11,
-12,
11,
27,
25,
63,
20,
55,
-68,
-29,
-26,
27,
16,
26,
0,
-52,
12,
52,
-5,
21,
-9,
88,
39,
-18,
-38,
5,
-20,
-2,
-37,
-11,
-1,
8,
-33,
-46,
55,
-61,
10,
-17,
-10,
-16,
-24,
-44,
7,
-29,
-44,
46,
36,
6,
-29,
-27,
-30,
25,
23,
-13,
25,
28,
5,
17,
12,
-29,
-48,
10,
17,
-12,
-82,
-16,
20,
-10,
72,
-28,
7,
27,
58,
-36,
-21,
21,
8,
15,
-48,
-53,
-46,
24,
46,
45,
0,
-39,
-70,
-19,
29,
24,
13,
22,
26,
47,
-35,
-18,
65,
-13,
42,
30,
34,
-36,
-54,
-33,
25,
-24,
42,
20,
-65,
-31,
-41,
13,
12,
-9,
8,
30,
37,
20,
53,
-44,
-34,
15,
-28,
-17,
-36,
0,
7,
-37,
-13,
13,
31,
-1,
17,
10,
-6,
60,
63,
6,
-21,
12,
9,
-14,
54,
-37,
-17,
29,
-30,
-57,
-68,
66,
-10,
12,
30,
79,
28,
-9,
-74,
39,
20,
24,
53,
-49,
-7,
16,
20,
-26,
-39,
-8,
53,
12,
-15,
-16,
-19,
18,
51,
-66,
-1,
-48,
97,
-15,
20,
-33,
-15,
20,
-4,
-19,
2,
-34,
-30,
-2,
0,
-43,
-7,
2,
-15,
-7,
40,
-21,
-9,
-37,
-11,
-21,
1,
-2,
32,
-18,
30,
-63,
-14,
-76,
11,
-13,
8,
8,
-1,
-18,
11,
-12,
-32,
4,
-38,
19,
4,
14,
1,
22,
23,
-18,
20,
-14,
6,
-28,
47,
-22,
0,
-39,
-27,
0,
-90,
-46,
30,
-43,
67,
-2,
-41,
-7,
48,
24,
6,
12,
-3,
-3,
-16,
-40,
-79,
-10,
-4,
-13,
7,
54,
-48,
-19,
0,
3,
-52,
31,
-26,
-1,
-20,
-1,
-24,
-58,
-12,
23,
-19,
37,
-35,
18,
-16,
62,
23,
5,
0,
-54,
5,
-21,
4,
29,
-73,
-17,
2,
-6,
23,
10,
69,
24,
1,
-39,
-15,
3,
-9,
51,
-14,
-12,
-43,
7,
-33,
19,
17,
-17,
-14,
-22,
-15,
-20,
47,
-26,
31,
7,
-61,
54,
-6,
-10,
30,
20,
1,
-31,
80,
0,
-55,
-40,
29,
-70,
-60,
-49,
-22,
9,
10,
-2,
13,
-25,
52,
-12,
-16,
28,
27,
-54,
-41,
-67,
56,
-12,
-68,
27,
-56,
-17,
4,
-16,
-47,
-23,
2,
59,
-14,
-16,
2,
15,
-92,
43,
-40,
2,
-10,
-23,
-15,
-27,
2,
-1,
-32,
-20,
30,
-39,
43,
2,
38,
23,
25,
-2,
-16,
20,
12,
38,
50,
-33,
2,
-78,
-68,
33,
43,
28,
-40,
20,
11,
-72,
-35,
-15,
35,
-15,
-4,
12,
-30,
44,
-46,
23,
63,
0,
69,
-77,
35,
40,
-7,
-9,
14,
4,
-18,
24,
47,
-18,
-47,
48,
-19,
-50,
-2,
50,
-47,
22,
4,
8,
-2,
-85,
-18,
30,
18,
-12,
24,
-4,
-3,
-18,
69,
11,
-29,
5,
-44,
49,
37,
50,
41,
6,
-79,
3,
-8,
25,
-42,
-61,
-39,
-53,
35,
39,
59,
25,
9,
0,
-39,
-28,
21,
-14,
-25,
-16,
-14,
48,
-12,
-34,
-35,
4,
7,
51,
-22,
-2,
22,
70,
-3,
36,
-16,
-26,
-16,
72,
4,
32,
0,
33,
-32,
-33,
21,
-21,
60,
19,
10,
13,
-28,
-21,
3,
4,
-13,
28,
-30,
31,
-27,
12,
65,
32,
-12,
14,
19,
46,
38,
-36,
-39,
-26,
-27,
6,
10,
-8,
-27,
47,
26,
55,
-16,
-7,
22,
15,
-5,
-21,
27,
-21,
-4,
45,
-28,
-19,
0,
-32,
48,
-47,
17,
-34,
-30,
19,
-55,
-78,
35,
0,
73,
-12,
-43,
-47,
16,
-16,
28,
-37,
17,
31,
-18,
-91,
-45,
-31,
-9,
-7,
69,
-26,
9,
-24,
-18,
-6,
-1,
9
] |
Per Curiam.
The application of relator for a writ of mandamus to vacate the judgment entered by respondent court and for other relief was heard on October 24, 1955, and by permission of the court, the Attorney General’s office was permitted to show that an appeal is pending from the judgment of respondent court, and it appearing to the court that the relief here sought can be granted by this court on the appeal from the judgment;
It is ordered that the application for the writ of mandamus be and the same is hereby denied.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES ANGSTMAN, ANDERSON, DAVIS and BOTTOMLY, concur.
|
[
-30,
-54,
12,
52,
20,
-21,
-41,
-18,
-42,
-37,
-10,
-76,
-36,
-23,
-64,
3,
53,
-11,
53,
13,
11,
45,
2,
5,
29,
-1,
52,
27,
-11,
-53,
-2,
-51,
-24,
17,
20,
-13,
5,
-42,
14,
-21,
3,
7,
-1,
39,
-26,
-18,
-25,
41,
-39,
-11,
6,
27,
-58,
4,
-31,
-8,
13,
-70,
-11,
5,
-7,
68,
-37,
51,
0,
7,
-15,
-65,
-19,
43,
28,
-35,
40,
-27,
3,
13,
-49,
-5,
16,
10,
-8,
59,
8,
59,
-4,
39,
2,
22,
10,
-14,
-23,
-15,
-11,
13,
-64,
23,
-64,
-24,
1,
29,
-6,
2,
-8,
5,
30,
-41,
-13,
-1,
25,
10,
18,
17,
10,
-4,
26,
50,
-50,
-33,
86,
0,
18,
-39,
-10,
-15,
7,
57,
-31,
27,
40,
-22,
-36,
66,
24,
43,
-27,
-28,
28,
13,
-8,
-58,
1,
-47,
22,
-11,
19,
0,
42,
21,
-25,
7,
20,
18,
-23,
45,
-12,
5,
8,
-21,
29,
12,
29,
-3,
-50,
-24,
31,
7,
-49,
10,
47,
-1,
4,
-16,
-15,
74,
-35,
-41,
-20,
4,
9,
22,
4,
41,
6,
46,
63,
-4,
43,
40,
26,
-49,
-15,
-46,
40,
-8,
28,
-5,
-38,
-22,
18,
29,
-21,
-25,
-25,
-3,
68,
-25,
-62,
-19,
17,
56,
-29,
-54,
-21,
-19,
48,
-21,
66,
22,
32,
74,
2,
-2,
-11,
-24,
37,
62,
15,
9,
22,
49,
-33,
-46,
-55,
70,
44,
-22,
11,
9,
4,
-1,
-44,
39,
-24,
0,
-4,
40,
2,
38,
7,
-42,
-15,
2,
-2,
-34,
-8,
35,
-11,
35,
-5,
-50,
36,
5,
-47,
20,
-14,
11,
19,
-35,
29,
-6,
-16,
25,
13,
-18,
18,
-26,
-45,
0,
0,
-25,
-45,
6,
-15,
-3,
-14,
28,
4,
-61,
-16,
4,
8,
-72,
-2,
23,
8,
21,
-14,
-46,
-26,
2,
-50,
18,
1,
24,
-8,
-18,
-1,
-31,
12,
-22,
-24,
13,
41,
11,
2,
30,
-35,
42,
-30,
-41,
9,
0,
-22,
20,
-18,
40,
6,
40,
-18,
2,
-6,
-7,
-24,
11,
-14,
67,
-54,
98,
28,
76,
-9,
53,
-35,
14,
-17,
-13,
-24,
-27,
30,
82,
2,
-47,
-16,
-35,
14,
-42,
-26,
-35,
-41,
3,
33,
28,
-54,
-18,
40,
-10,
-18,
14,
-4,
-54,
28,
9,
-11,
-54,
59,
4,
31,
-2,
-31,
0,
7,
-41,
13,
-7,
25,
-8,
-21,
52,
-15,
-22,
-22,
-29,
-31,
-65,
28,
-16,
51,
0,
11,
47,
12,
-40,
-45,
23,
24,
-17,
-5,
108,
-24,
0,
25,
34,
-22,
54,
37,
15,
-45,
20,
20,
-31,
14,
7,
28,
-5,
-16,
9,
60,
-62,
20,
40,
42,
-60,
20,
38,
-30,
23,
3,
-29,
-14,
13,
17,
2,
14,
21,
-21,
-4,
-45,
-37,
-29,
37,
-4,
17,
13,
-38,
-42,
2,
48,
12,
4,
-42,
12,
-9,
-39,
3,
10,
-11,
5,
29,
-44,
-45,
-24,
-5,
-17,
2,
-19,
-3,
-15,
8,
21,
-60,
10,
-7,
-11,
-9,
12,
59,
0,
-11,
-45,
24,
-23,
-33,
-12,
53,
-18,
-28,
-35,
-64,
-15,
-20,
22,
15,
-6,
16,
34,
-7,
-42,
7,
39,
-3,
-4,
16,
-17,
38,
40,
24,
11,
21,
6,
31,
-39,
-28,
40,
-50,
-27,
54,
-42,
-15,
6,
21,
21,
-54,
-19,
-42,
-14,
-18,
-10,
-3,
3,
17,
34,
-17,
-14,
53,
13,
22,
-35,
-6,
2,
18,
8,
13,
-8,
21,
-38,
-16,
-46,
-25,
15,
-15,
41,
16,
-18,
38,
1,
46,
10,
-17,
-10,
34,
-2,
-41,
20,
20,
57,
-12,
-19,
-58,
0,
-1,
-39,
48,
-58,
-14,
7,
-42,
-16,
-52,
1,
-19,
-60,
2,
26,
-44,
17,
38,
-58,
52,
-44,
36,
-32,
22,
14,
20,
-3,
-12,
16,
15,
25,
-11,
42,
24,
-83,
19,
-76,
-26,
-42,
16,
45,
-31,
28,
31,
-56,
16,
23,
-24,
-43,
-46,
15,
-7,
-7,
18,
-6,
-24,
30,
41,
-17,
57,
-30,
-30,
-56,
16,
19,
-52,
26,
31,
46,
-25,
-3,
30,
53,
18,
10,
-27,
-34,
-30,
16,
-38,
41,
-65,
-24,
-44,
-22,
-84,
-5,
16,
-23,
54,
-34,
-30,
30,
19,
0,
3,
34,
-2,
-16,
26,
14,
-24,
-44,
-34,
-62,
-25,
9,
-9,
19,
5,
-54,
65,
22,
-7,
-26,
-6,
46,
37,
15,
44,
6,
56,
7,
-32,
46,
9,
-76,
-12,
-5,
0,
23,
-39,
-38,
-20,
-78,
-13,
17,
-6,
42,
-74,
-13,
-3,
-17,
8,
-28,
35,
-17,
-22,
29,
-25,
3,
15,
12,
-10,
48,
-21,
-3,
-22,
-46,
-26,
1,
18,
9,
-7,
10,
-3,
-7,
-5,
-25,
-25,
-13,
46,
0,
-38,
-37,
73,
0,
8,
-59,
-44,
30,
-9,
77,
-31,
-11,
51,
-86,
35,
19,
-26,
39,
34,
25,
-79,
61,
-27,
-10,
13,
0,
30,
57,
18,
-43,
9,
-91,
24,
32,
-29,
-30,
-39,
-21,
-2,
20,
28,
-44,
-28,
-6,
3,
-13,
-36,
30,
52,
15,
55,
62,
-18,
41,
-18,
-24,
48,
-18,
-1,
-20,
-56,
-33,
11,
-24,
53,
5,
1,
1,
-55,
15,
19,
-44,
56,
-11,
56,
58,
40,
0,
69,
-7,
-76,
52,
59,
-34,
-29,
29,
-15,
8,
-50,
49,
49,
-34,
-8,
-6,
28,
-50,
49,
8,
25,
33,
-38,
10,
92,
7,
-15,
49,
-26,
36,
-25,
16,
50,
11,
-42,
-14,
8,
-29,
-10,
39,
3,
75,
-40,
58,
4,
11,
-12,
37,
-10,
27,
0,
0,
30,
21,
-22,
-18,
26,
4,
-10,
2,
-12,
68,
23,
-15,
70,
44,
-11,
-42,
-5,
-51,
-20,
-54,
-37,
26,
27,
-30,
26,
56,
13,
62,
36,
22,
19,
-9,
-40,
67,
-20,
-19,
6,
14,
-4,
26,
18,
-14,
-30,
3,
-45,
3,
14,
0,
-30,
2,
-28,
-7,
3,
-12,
-43,
-33,
41,
11,
15,
-49,
2,
22,
36,
-20,
25,
2,
-53,
1,
-9,
15,
-61,
16,
-1,
-7,
59,
33,
7,
22,
19,
-57,
21,
14,
48,
48,
26,
-47,
22,
22,
9,
-36,
4,
67,
45,
-65,
-23,
0,
-27,
-22,
-15,
37,
6,
30,
-14,
-9,
-6,
8,
85,
2,
-38,
68,
6,
-13,
-41,
65,
26,
-38,
18,
20,
26,
-26,
7,
31,
-81,
0,
16,
-17,
23,
-2,
-16,
38,
9,
26,
6,
-8,
-43,
12,
20,
15,
-4,
1,
-97,
-68,
-46
] |
MR. JUSTICE ANGSTMAN:
Plaintiff brought this action to recover compensation for the death of her husband who was employed by the defendant company as a truck driver at the time of his death. After hearing before the industrial accident board, that board denied compensation. An appeal was taken to the district court and the court sustained the action of the industrial accident board. This appeal followed.
The board found:
“V. That competent medical evidence established that at the time immediately prior to the death of Paul G. Rathbun, there were no unusual atmospheric conditions constituting a risk to the deceased, and there were no sudden changes in his working environment that constituted any physical danger to a person in his circumstances.
“That the deceased was subjected to no undue strain or exertion during the time immediately preceding his death, which would tend to increase the burden on his heart.
“VI. That competent undisputed medical testimony established that the death of the deceased, Paul G. Rathbun, was caused by a failure of the heart by reason of its previously diseased condition.”
The board concluded:
“I. That the death of Paul G. Rathbun on December 4, 1952 did not occur by reason of injury from a fortuitous event as defined by section 92-418, R.G.M. 1947, but was the result of a condition of disease.
“II. That the death of Paul G. Rathbun did not arise out of his employment in accordance with Section 92-614, R.C.M., 1947.”
Among other findings the court found, “That the decedent died while operating a tank truck belonging to the employer, and that while so proceeding along the highway the deceased suddenly collapsed and died at the wheel of his truck; that at the time, or immediately prior to his death, there were no unusual conditions nor sudden changes in his working environment; and that said Paul G. Rathbun was not subjected to any kind of accident or undue strain or exertion during the period immediately preceding his death, but that from all of the evidence in this case, it appears that the death of the deceased, Paul G. Rathbun, was caused by a failure of the heart by reason of his previously diseased condition, and not as the result of any accident or fortuitous event. ’ ’
As before stated, Rathbun was a truck driver. At the time of his death he was 35 years of age, having a wife and two children. He started work for the defendant company in July 1951. He left Great Falls driving one of the trucks on the eve ning of December 3, 1952, between seven and eight o ’clock in the evening. At the Union Oil Refinery in Cut Bank he loaded a load of gasoline for transportation to Poison. He drove the truck and trailer all night over the Marias Pass, which is a winding road with many sharp curves and was at that time slippery and icy. There is evidence that by reason of the condition of the highway he must have been subjected to unusual stress and strain in driving the truck over these roads.
He arrived in Poison about seven-thirty in the morning of December 4th. He then appeared exhausted and tired out. He had breakfast at Poison at the home of his father, while his gasoline was being unloaded. He did not rest while at Poison, but left about ten o’clock in the morning on the return trip. "When he reached Cut Bank he received orders to go to Kevin and load his truck at that point and take it into Great Falls.
He arrived at Kevin about six o’clock in the evening. While his truck was being loaded he rested in the cab of the truck. After the truck was loaded and about seven o ’clock in the evening he started from Kevin on his way to Great Falls. Approximately four miles east of Kevin, and about 500 feet westerly from Four Corners, where the road intersects the Shelby-Oilmont road, he was found dead sitting at the steering wheel of the truck. The truck had gone off the road into a borrow pit. As he sat at the steering wheel his head had dropped to his right, and his left hand was on the seat of the truck, and his feet were on the floor of the truck.
The trailer, which was attached to the truck, was on the slope of the highway with the left rear wheel still on the shoulder of the road. The engine of the truck was still running, the lights were on and the gear had been shifted into neutral. The air brakes were partially on, and the ventilator window on the driver’s-side of the cab was open. There was evidence that his clothing showed signs of perspiration at the time, but there were no marks of violence, bruises or cuts on his body. The tachometer of the car showed that the driver had revved up the motor as was customary at about this point on the highway because it was near the top of a knoll. The point where the truck went into the borrow pit was about 100 feet easterly from the knoll, and tachometer showed that when the truck went over the grade it was going three or four miles per hour. The horn is sounded by pulling a cord situated a little over the driver’s head. Mr. Yandeberg, who lives near where the truck ran into the borrow pit, stated by affidavit before the board that there was a blast of the horn just before the truck reached a point opposite his house. There is evidence that in the 11 months preceding his death, Rathbun had worked long hours without regular sleeping periods. Many trips would require 16 hours or more of driving time. During those 11 months he gained in weight from 180 or 185 to 220 or 225 pounds. Also during that time he developed coughing spells to the extent that during rest periods his coughing would awaken him. Dr. Keenan examined him on March 20, 1952, pursuant to regulations of the interstate commerce commission and found his heart normal at that time. The evidence shows heavy turnover of drivers because of the strain “and a good many of them just can’t take it.” The standing orders to the drivers were to “get on the road and get back as soon as possible.”
Two days before he met his death, Mr. Rathbun made a similar trip to Poison and return. That trip covers approximately 600 miles and takes about 20 hours of driving time out of 25 or 26 hours necessary for the trip. Between the last two trips made by Rathbun, there was a rest period of about 24 hours. Mr. Rathbun was paid 12^ per mile for every loaded mile that he traveled, and received nothing while traveling empty. The drivers were given the privilege of stopping and resting or sleeping at any time they desired and sleeping accommodations were provided in the truck. Usually the drivers have a rest period of about 30 hours between trips. No collision accident or unusual happening of any kind occurred on the last trip taken by Mr. Rathbun, save his unexpected death while at the wheel and in the line of duty.
Dr. Fallon examined Rathbun’s body within a few minutes after his death, and he gave it as his opinion that the cause of death was myocardial infarction and that long hours of physical exertion “would generally predispose to such a condition.” Dr. Powers testified that any man with a bad heart should not continue to work, and he should be in bed and that exertion is one thing people with bad hearts should avoid. Among other things he said, “Long hours, no matter even if a person is sitting down in an office for long hours, is a strain and the added strain of driving would, in my estimation, be something that would aggravate his heart condition because there is a certain amount of worry. A man driving along, if you have kids to think about you have to be on tension all of the time. Any man driving 16 to 20 hours a day I think that’s a strain on a normal man. I don’t think they can take it very long.”
The doctor testified that any strain, such as the act of applying the brakes, tooting the horn and placing the car in neutral would constitute exertion. He said the mere fact that he reached up to pull out the light might cause him to “blow his heart” if he were in the throes of a ventricular fibrillation. He said there is a reasonable medical probability that the doing of those acts either hastened the man’s death or caused it. He said it would aggravate it and it could have caused the death. He said any exertion for a man with a bad heart will tend to contribute to aggravate the condition. Dr. Powers, in response to hypothetical questions, thought Rathbun had some evidence of a rhythmic trouble such as ventricular fibrillation.
The evidence as to the cause of death stands undisputed unless the different names applied to the immediate cause of death given by the doctors for plaintiff may be said to raise a conflict. But both doctors reached the conclusion that driving with lack of sleep produces a nervous tension, and, as Dr. Powers put it, adds up to “hasten a man’s death with a bad heart.”
Defendant’s only witness Taber raised a conflict on immaterial matters having to do with the conditions of employment, but there was nothing to dispute the essential facts of long working hours producing stress and strain on the drivers.
In the state of the record there is no conflict in the evidence on the essential matters on which the right of recovery depends.
In fact both the board and the court apparently denied compensation on the theory that the undisputed facts disclosed no fortuitous event or accident since death followed from the usual work in which the decedent was engaged. The propriety of the conclusion reached from undisputed facts is what is drawn in question here.
Do the foregoing facts show a compensable industrial aecident? Section 92-418, R.C.M. 1947, defines “injury” within the meaning of the Workmen’s Compensation Act as follows: “ ‘Injury’ or ‘injured’ refers only to an injury resulting from fortuitous event, as distinguished from the contraction of disease.” Not many states have a similar statutory definition of “injury.” This court however has defined a “fortuitous event” in the case of Nicholson v. Roundup Coal Mining Co., 79 Mont. 358, 257 Pac. 270, 274, by saying: “The phrase, ‘injury arising out of and in the course of his employment, ’ means that the injury or death resulted from an industrial accident arising out of and in the course of the employment, Wiggins v. Industrial Acc. Board, 54 Mont. 335, 170 Pac. 9, L.R.A. 1918F, 932, Ann. Cas. 1918E, 1164; while the word ‘fortuitous,’ used in section 2870 [now 92-418], means ‘happening by chance or accident; coming or occurring unexpectedly or without known cause; chance; accident’ (Webster’s New International Diet.), and therefore the ‘fortuitous event’ referred to is synonymous with ‘industrial accident.’ ”
Essentially then the question is reduced to one as to whether a heart failure may be classified as an industrial accident. The courts throughout the country are not in accord on this question. More and more, however, they are coming to the view that heart failure brought about by unusual stress and strain in employment amounts to an industrial accident for which an award of compensation should be made under workmen’s compensation acts substantially the same as ours, when we consider that “fortuitous event” means an industrial accident.
The recent case of Hoage v. Royal Indemnity Co., 67 App. D.C. 142, 90 F. (2d) 387, 390, is a case dealing with facts substantially the same as we have here. In that case the injured employee was employed as a claims adjustor. He worked long hours and, in many instances, not only during the day but at night. He worried over his work and often suffered from fatigue, headaches, insomnia, and heartburn. One morning, while sitting at his desk using the telephone, he suffered a heart attack and was taken to the hospital. Since that time he remained away from his employment and was totally incapacitated for labor. He filed a claim for compensation, basing his claim upon overwork and- worry for nine months or more culminating in his disability on May 5th. The claim was denied on the ground that he did not suffer an accidental injury within the meaning of the compensation law, the same being 33 U.S.C.A. section 902. The appellate court', in holding that claimant was entitled to compensation, stated:
“We think that the testimony in the record fully considered tends to show that Mr. Rennie by reason of mental strain, worry, and long and excessive hours of labor suffered a collapse which resulted in his total disability as found by the Deputy Commissioner. We think this collapse constituted an accidental injury within the purview of the statute. His case is comparable to that of a manual laborer whose heart collapses as a result of long continued physical strain or overwork resulting from excessive exertion. * * *”
The court adopted the holding in Thompson v. City of Binghamton, 218 App. Div. 451, 218 N.Y.S. 355, to the effect that the death of a janitor resulting from acute dilation of the heart weakened by chronic myocarditis, and caused by excitement and exertion of answering a false fire alarm at the schoolhouse, was compensable as an accidental injury notwithstanding the absence of a traumatic injury.
It likewise referred to the case of Pickerell v. Schumacher, 215 App. Div. 745, 212 N.Y.S. 899, and to the case of Klein v. Len H. Darling Co., 217 Mich. 485, 187 N.W. 400, in both of which it was held that there was an industrial accident though there was no external physical injury to the deceased. The court then concluded its opinion by saying, “It is well known that nervous shock, continued anxiety, and excessive exertion at work under trying circumstances may contribute toward the collapse of persons who are already suffering from hardening of the arteries. ’ ’
In Pan-American Airways, Inc. v. Willard, D.C., 99 F. Supp. 257, 259, the court stated its conclusion as follows: “One may sustain an accident while performing the usual and normal incidents of his employment; it is the occurrence of the event which must be unusual, unexpected and undesigned, not the nature of the work being performed. Thus, ‘an accidental injury may occur notwithstanding the injured is then engaged in his usual and ordinary work’. Commercial Casualty Ins. Co. v. Hoage, 64 App. D.C. 158, 75 F. (2d) 677.”
In the case of Jones v. Hamden, 129 Conn. 532, 29 A. (2d) 772, the court reached the conclusion that there may be an accidental injury even though it is incurred in the course of the employee’s ordinary work, and that an injury incurred by a workman while performing his work in the normal ordinary way may be an accidental injury and compensable.
The State of Washington in 1911 adopted a statute identical with our section 92-418, so far as it defined an injury as used in the Act. Their statute was later amended. The original and the amended statutes are set forth in the case of McCormick Lumber Co. v. Department of Labor & Industries, 7 Wash. (2d) 40, 108 Pac. (2d) 807, 815. In the opinion in that case the court reviewed all its prior decisions dealing with the question so far as heart cases were concerned. The court concluded that an accident arises out of the employment when it is produced by exertion. The court went further than we need go here and said:
“To say now that some unusual effort or strain is necessary to render death compensable would not only be in direct conflict with the plain and emphatic language of our holdings, but would also introduce an element of uncertainty and confusion, in that every ease would present a problem as to the standard to be used in determining whether or not, in a given instance, the exertion was unusual, and whether or not the workman was expending only the ordinary exertion required in a particular line of employment.”
In Jones v. California Packing Corp., Utah, 244 Pac. (2d) 640, 642, the court had before it a heart ease apparently caused by long working hours without adequate rest. The court held it constituted an industrial accident, and compensable, notwithstanding the injury did not result from some incident which happened suddenly and though the incident could not be identifiable to a definite time and place.
The court said: “It is settled beyond question that a preexisting disease or other disturbed condition or defect of the body, when aggravated or lighted up by an industrial accident, is compensable under the act [citing cases]. And also that an internal failure brought about by exertion in the course of employment may be an accident within the meaning of Sec. 42-1-143, U.C.A. 1943, without the requirement that the injury result from some incident which happened suddenly and is identifiable at a definite time and place. Robertson v. Industrial Comm., 109 Utah 25, 163 Pac. (2d) 331; Thomas D. Dee Memorial Hospital Ass’n v. Industrial Comm., supra [104 Utah 61, 138 Pac. (2d) 233]; Hammond v. Industrial Comm., 84 Utah 67, 34 Pac. (2d) 687; Purity Biscuit Co. v. Industrial Comm., 115 Utah 1, 201 Pac. (2d) 961, 966. In the latter case, Mr. Justice Wade stated: * * this court is definitely committed to the proposition that where an employee suffers an internal failure or breakdown which results from overexertion in the course of his employment that such is a compensable accidental injury * * *.’ Citing cases.”
Speaking on the same subject, the Supreme Court of Florida, in Gray v. Employers Mut. Liability Ins. Co., Fla., 64 So. (2d) 650, 651, had this to say: “We wish to make clear, however, that we do not interpret the Workmen’s Compensation Law, F.S.A. section 440.01 et seq., as requiring that an injury ‘by accident’ proceed from an unexpected cause. Section 440.02 (19) of tbe law defines ‘accident’ as ‘an unexpected or unusual event, happening suddenly.’ The Thorndike-Barnhart Dictionary defines ‘event’ as ‘1. a happening, 2. result; outcome.’ To like effect are the definitions given in The Oxford English Dictionary and [1] Bouv. Law Diet., Rawle’s Third Revision, page 101. It is enough, then, if there is an unexpected result, even though there was no unexpected cause, such as a slip, fall or misstep, in order to constitute an ‘accident’ within the meaning of the Workmen’s Compensation Law; and insofar as the McNeill [McNeill v. Thompson, Fla., 53 So. (2d) 868] and Peterson [Peterson v. City Comm., Fla., 44 So. (2d) 423] cases, supra, hold that an injury is not compensable if it happens while the claimant is performing his ordinary work in the usual manner, these decisions are hereby modified, and we re-affirm the rule laid down in Duff Hotel Co. v. Ficara, 150 Fla. 442, 7 So. (2d) 790, that an unexpected injury received in the ordinary performance of a duty in the usual manner is an injury ‘by accident’ within the purview of the Workmen’s Compensation Law, without the showing of anything fortuitous. * * * It is the unexpected and intentional effect of the strain or exertion that is covered by the Workmen’s Compensation Law as an injury ‘by accident’ and a literal showing of an ‘accident,’ such as a slip, fall or misstep is not a prerequisite to recovery.” To the same effect are Furtardo v. American Export Airlines, Inc., 274 App. Div. 954, 83 N.Y.S. (2d) 745; Masse v. James H. Robinson Co., 301 N.Y. 34, 92 N.E. (2d) 56; Cavanaugh v. Murphy Varnish Co., 130 N.J.L. 107, 31 A. (2d) 759; United States Fidelity & Guaranty Co. v. Industrial Comm., 96 Colo. 571, 45 Pac. (2d) 895; Geltman v. Reliable Linen & Supply Co., 128 N.J.L. 443, 25 A. (2d) 894, 139 A.L.R. 1465; Choctaw County v. Bateman, 208 Okl. 16, 252 Pac. (2d) 465, and 8 N.A.C.C.A. Journal 55; Gavula v. Sims Co., 155 Pa. Super. 206, 38 A. (2d) 482; Andrews Min. & Mill. Co. v. Atkinson, 192 Okl. 322, 135 Pac. (2d) 960; Carden Min. & Mill. Co. v. Yost, 193 Okl. 423, 144 Pac. (2d) 969; Guay v. Brown Co., 83 N.H. 392, 142 A. 697, 60 A.L.R. 1284; Carroll v. Industrial Comm., 69 Colo. 473, 195 Pac. 1097, 19 A.L.R. 107. The foregoing cases, though the statutes involved are not the same as ours, sustain the conclusion that where there is an unexpected internal failure of the system to function normally caused by unusual stress and strain in the employment, the requirement of an “accident” is met within the meaning of the acts allowing compensation for injuries or death from accident. For the same reason an unexpected internal failure from such stress and strain constitutes a “fortuitous event” within the meaning of our statute.
If, as the board found, the death was caused by a failure of the heart by reason of its previously diseased condition, the evidence sustains the conclusion that the previously diseased condition of the heart was accelerated and aggravated by the extraordinary stress and strain that Rathbun endured in his employment and comes well within the rule of the Nicholson case, supra, and kindred cases by this court.
That it is sufficient to render collapse from a heart attack compensable when caused by strain or exertion occurring while performing the usual and normal incidents of the employment is recognized in Larson on Workmen’s Compensation Law Vol. 1, section 38, page 516 et seq., and cases therein cited showing that this rule is sustained by most of the courts. Id. page 577. The heart cases are similar in principle to the exposure cases which we have recognized and followed in this state. See Wiggins v. Industrial Acc. Board, 54 Mont. 335, 170 Pac. 9, L.R.A. 1918F, 932, Ann. Cas. 1918E, 1164; Birdwell v. Three Forks Portland Cement Co., 98 Mont. 483, 40 Pac. (2d) 43; Ryan v. Industrial Acc. Board, 100 Mont. 143, 45 Pac. (2d) 775. It is true in those cases the principle is stressed that before there can be an award for compensation the injured person must have been subjected to more than the ordinary hazards confronting people generally. But that rule if applicable to a case such as this is met by the fact that decedent worked such long hours and without getting his regular sleep. Nor is the fact of importance that sleeping accommodations were available to Mr. Rathbun. The fact that he did not take advantage of the sleeping facilities is likewise unimportant. “It is the unexpected and unintentional effect of the strain or exertion, not its external or internal character, that is covered by the compensation law, regardless of how negligent or inadvisable one’s conduct may be, provided that there is no intention on the part of the employee to harm or injure himself or another.” Glens Falls Indemnity Co. v. Henderson, 5 Cir., 212 F. (2d) 617, 618.
Contributory negligence and assumption of risk are no defenses under the Workmen’s Compensation Act, nor is it essential that the employer be guilty of negligence in order to entitle claimant to recover. Nicholson v. Roundup Coal Mining Co., supra [79 Mont. 358, 257 Pac. 276], The rule declared in the last cited case is applicable here wherein it was said: “In this class of cases the English rule is that, ‘if it appears that the employment was one of the contributing causes, without which the accident which actually happened would not have happened, and if the accident is one of the contributing causes, without which the injury which actually followed would not have followed,’ an employee is entitled to compensation.”
Without encumbering the record with further citation of authorities, we hold that the evidence was sufficient to show that Rathbun suffered an industrial accident within the meaning of the Workmen’s Compensation Act, and that plaintiff is entitled to recover.
The judgment is reversed and the cause remanded with directions to enter judgment in favor of plaintiff.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES ANDERSON and BOTTOMLY, concur.
|
[
33,
-7,
-2,
-6,
48,
-41,
0,
-53,
58,
-29,
-8,
-52,
24,
-42,
29,
21,
26,
5,
-1,
-26,
14,
-36,
7,
-26,
-64,
-15,
5,
-36,
-53,
24,
35,
11,
-7,
-20,
7,
54,
58,
-84,
-16,
52,
-20,
5,
1,
-47,
32,
60,
54,
-7,
32,
-13,
-38,
-7,
25,
-21,
22,
4,
56,
43,
3,
79,
8,
-66,
48,
-16,
38,
10,
31,
-1,
-38,
45,
-23,
-24,
9,
55,
12,
-34,
53,
19,
21,
-9,
-7,
51,
22,
-61,
-67,
-18,
-60,
32,
-29,
-17,
56,
-24,
29,
24,
-65,
56,
-48,
-7,
-99,
56,
9,
31,
13,
-52,
-24,
-20,
-2,
48,
7,
37,
19,
86,
-7,
64,
47,
-36,
73,
18,
-3,
94,
-3,
-58,
0,
-62,
13,
43,
-37,
48,
23,
0,
60,
41,
-11,
0,
-24,
-85,
-35,
-48,
-38,
36,
-49,
3,
-46,
-40,
16,
11,
45,
2,
-20,
-32,
-42,
77,
16,
-96,
-5,
-6,
8,
33,
23,
-3,
-30,
-29,
120,
60,
-7,
6,
-13,
-3,
-27,
-110,
-77,
7,
51,
-26,
51,
80,
39,
10,
-48,
25,
27,
-1,
-2,
3,
2,
-11,
-20,
5,
85,
-25,
33,
-105,
-40,
25,
-12,
-17,
-11,
-41,
51,
30,
70,
-36,
-23,
-3,
7,
81,
-54,
39,
74,
-15,
77,
-25,
46,
12,
-64,
17,
-59,
-88,
8,
-36,
-58,
-62,
33,
-71,
-14,
-9,
0,
-36,
-12,
-11,
-10,
-52,
9,
-11,
-26,
-13,
-14,
-64,
67,
28,
18,
4,
19,
18,
-6,
-30,
-18,
-10,
-11,
-12,
-7,
10,
35,
5,
-13,
20,
-6,
0,
-29,
-49,
9,
57,
5,
80,
52,
-32,
18,
2,
17,
-66,
42,
-49,
35,
1,
-7,
-14,
37,
3,
50,
21,
-45,
24,
-24,
-111,
-29,
29,
-35,
-12,
-46,
-26,
67,
-42,
11,
-8,
-17,
15,
45,
4,
-34,
26,
37,
22,
-37,
18,
-34,
35,
-39,
15,
0,
37,
7,
-19,
-17,
84,
37,
40,
37,
-53,
26,
0,
-1,
27,
-48,
34,
7,
19,
-86,
-3,
11,
71,
1,
11,
-44,
51,
-57,
-79,
-12,
119,
63,
45,
-72,
54,
29,
48,
-9,
-5,
57,
83,
25,
-15,
-37,
11,
32,
-71,
-59,
-14,
91,
10,
6,
40,
-6,
-41,
-32,
44,
-63,
-31,
-37,
-30,
-49,
-9,
38,
41,
-3,
-69,
19,
48,
3,
11,
26,
-12,
25,
50,
27,
-71,
-88,
65,
26,
10,
-3,
63,
-36,
1,
51,
12,
10,
51,
-22,
47,
-31,
54,
-30,
-36,
-27,
9,
77,
-33,
-29,
-21,
-36,
-5,
-89,
-27,
17,
-25,
31,
-25,
16,
-2,
-39,
-47,
21,
-5,
37,
-43,
-79,
-41,
-5,
16,
-21,
-22,
10,
-29,
24,
-8,
-36,
-24,
24,
-57,
62,
25,
8,
-32,
24,
18,
-20,
84,
5,
31,
37,
-39,
1,
-14,
34,
42,
-19,
54,
31,
9,
-24,
22,
-50,
-15,
43,
-32,
86,
1,
1,
7,
35,
-8,
22,
-31,
-12,
-56,
1,
-33,
9,
1,
51,
-92,
-60,
31,
0,
1,
-36,
-56,
-19,
0,
26,
15,
78,
7,
-81,
7,
-36,
-14,
-25,
44,
-8,
-71,
-12,
-42,
-4,
7,
37,
-30,
19,
-42,
-35,
-50,
1,
13,
-51,
22,
48,
-57,
-19,
52,
32,
-23,
-23,
0,
-26,
39,
7,
-39,
-29,
-19,
9,
-84,
30,
-59,
0,
16,
5,
-33,
40,
21,
-8,
-35,
32,
11,
-35,
8,
-35,
-13,
40,
44,
49,
31,
12,
-5,
22,
17,
27,
-14,
41,
-63,
-6,
21,
22,
12,
-10,
47,
5,
-31,
-64,
32,
84,
-29,
-17,
14,
50,
-14,
18,
12,
-17,
-20,
-5,
-20,
26,
-51,
3,
25,
-89,
15,
1,
-27,
-14,
-77,
51,
43,
-22,
25,
35,
-5,
32,
-22,
-51,
-44,
65,
-33,
-12,
64,
27,
47,
-24,
-41,
52,
-47,
-34,
-34,
-23,
-17,
-71,
-76,
-41,
-37,
1,
44,
12,
40,
-49,
-11,
-44,
47,
-22,
-42,
-11,
-3,
9,
-10,
-42,
-24,
-34,
-64,
-27,
-12,
-9,
-15,
-2,
-13,
78,
34,
-42,
-53,
-12,
0,
-39,
0,
-7,
-10,
-79,
56,
-88,
1,
42,
-34,
-78,
-48,
-36,
7,
13,
-15,
3,
10,
1,
-19,
-57,
-12,
48,
7,
-50,
16,
18,
6,
-50,
-11,
36,
18,
28,
-68,
14,
40,
5,
-2,
3,
-50,
7,
-74,
-54,
46,
2,
67,
21,
46,
17,
0,
-34,
-20,
38,
0,
-68,
18,
-37,
18,
-3,
-48,
-8,
1,
-6,
-7,
-22,
-52,
36,
47,
44,
-71,
-7,
-43,
-11,
-28,
-54,
-15,
-22,
7,
53,
17,
-50,
-30,
9,
-34,
-19,
-7,
35,
-70,
65,
22,
-4,
-9,
2,
9,
62,
-22,
17,
-48,
-6,
-9,
55,
35,
28,
-49,
-21,
-26,
33,
2,
42,
-12,
4,
-21,
40,
-1,
24,
30,
-18,
45,
27,
47,
-34,
-13,
3,
91,
27,
-15,
2,
35,
-51,
-52,
12,
28,
0,
-28,
14,
10,
2,
-29,
-54,
34,
-15,
0,
25,
74,
84,
-21,
10,
-15,
-56,
16,
20,
48,
36,
40,
13,
3,
48,
-7,
60,
50,
22,
43,
-24,
-16,
41,
-8,
-14,
0,
26,
29,
-6,
5,
12,
46,
1,
-34,
5,
32,
2,
-44,
58,
-53,
-30,
-58,
-16,
19,
-1,
32,
16,
66,
-71,
-83,
65,
67,
-4,
46,
-25,
-18,
-4,
2,
-42,
-29,
-11,
-16,
9,
26,
-40,
-18,
19,
-18,
-18,
8,
12,
-43,
-43,
11,
-4,
-10,
-31,
21,
-27,
23,
18,
28,
17,
6,
-7,
3,
0,
-4,
9,
-33,
0,
-12,
62,
9,
-19,
-10,
22,
-38,
-58,
7,
-24,
52,
-29,
4,
-26,
-19,
6,
28,
37,
24,
-46,
41,
51,
33,
-52,
-16,
-19,
-128,
-47,
44,
-31,
0,
17,
-26,
-44,
52,
-13,
30,
30,
-37,
-34,
-48,
-5,
38,
-1,
-39,
-27,
-12,
-51,
48,
-6,
-36,
37,
7,
24,
4,
5,
-9,
-68,
-22,
49,
6,
-13,
22,
57,
-12,
47,
-60,
-5,
5,
62,
26,
48,
53,
-10,
1,
54,
-30,
74,
43,
2,
-23,
-21,
62,
87,
-10,
46,
10,
-61,
25,
-5,
34,
-11,
-15,
56,
-26,
52,
5,
8,
-29,
9,
-7,
-48,
20,
28,
-102,
6,
-89,
-21,
83,
-6,
17,
8,
76,
21,
16,
42,
-44,
48,
-25,
12,
-13,
-46,
21,
16,
40,
-10,
31,
19,
-21,
-19,
67,
-83,
-29,
-6,
40,
16,
-70,
-2,
3,
-25,
-4,
-27,
-61
] |
Per Curiam.
It is ordered that the writ be denied and that this proceeding be and it is dismissed.
MR. CHIEF JUSTICE ADAIR and MR. JUSTICES ANDERSON, DAVIS, and BOTTOMLY, concur.
MR. JUSTICE ANGSTMAN: I think the alternative writ should issue.
|
[
4,
-52,
20,
34,
57,
-15,
53,
-28,
-29,
45,
1,
3,
-32,
-18,
-74,
46,
-3,
-37,
16,
-69,
-18,
19,
19,
36,
-20,
-31,
1,
32,
18,
13,
-9,
-21,
-36,
22,
-14,
-9,
34,
-28,
-21,
-50,
-41,
-10,
34,
35,
-52,
-31,
-29,
42,
-31,
12,
-27,
-60,
-33,
-14,
-43,
1,
-10,
5,
47,
-8,
-16,
0,
-3,
24,
-34,
-25,
9,
-46,
-13,
33,
-16,
43,
76,
-17,
-71,
-6,
4,
-31,
-45,
-18,
-4,
66,
39,
35,
49,
21,
42,
46,
49,
-26,
10,
-16,
-14,
-67,
-46,
52,
50,
-6,
-23,
46,
-3,
3,
35,
-74,
-38,
-13,
-44,
-6,
3,
0,
-7,
3,
-14,
-9,
-19,
44,
25,
-4,
9,
16,
-10,
18,
-35,
3,
-65,
102,
-23,
39,
-2,
25,
34,
6,
34,
47,
-12,
19,
32,
21,
25,
-28,
15,
-18,
62,
36,
-48,
-68,
51,
60,
-86,
-11,
21,
34,
-43,
3,
-47,
37,
-7,
-54,
25,
57,
57,
17,
10,
-24,
34,
24,
-9,
14,
24,
60,
-5,
-28,
-3,
35,
-18,
10,
-49,
15,
28,
-18,
37,
79,
-22,
21,
-31,
57,
-33,
25,
-1,
-13,
-71,
-3,
49,
18,
51,
-7,
32,
-12,
28,
-11,
-37,
46,
-39,
-5,
-14,
-44,
-4,
-46,
-1,
44,
-11,
18,
-58,
-1,
53,
35,
48,
-31,
13,
2,
7,
-59,
22,
-18,
47,
-51,
46,
8,
9,
-11,
-11,
32,
-14,
22,
67,
-29,
65,
-31,
-50,
-3,
-45,
1,
-16,
-3,
-44,
-23,
-8,
64,
55,
37,
6,
-18,
52,
-6,
-18,
-7,
-48,
59,
-55,
-38,
-10,
12,
-44,
-35,
-40,
68,
46,
3,
54,
-33,
-6,
15,
-48,
64,
74,
26,
-54,
-1,
-32,
-4,
-2,
56,
35,
14,
-38,
17,
26,
-49,
37,
-25,
29,
11,
-22,
23,
23,
-15,
17,
-47,
-4,
-19,
-62,
-29,
25,
0,
23,
-32,
-15,
-49,
16,
-47,
-35,
71,
22,
-36,
-5,
56,
-94,
-7,
-30,
-43,
-49,
-12,
-27,
-83,
-10,
37,
35,
-14,
-7,
-23,
62,
32,
38,
-24,
-39,
48,
2,
7,
14,
45,
-44,
-10,
-66,
6,
-11,
-42,
0,
-73,
-10,
24,
-47,
-7,
-6,
-24,
41,
-31,
-49,
-20,
17,
-10,
-14,
45,
55,
33,
27,
13,
-20,
24,
15,
-7,
20,
-24,
-29,
-14,
-28,
26,
58,
19,
19,
4,
-33,
-34,
17,
21,
3,
64,
-3,
18,
-13,
-25,
-45,
-28,
-37,
15,
-41,
0,
-14,
-15,
27,
40,
48,
-63,
-39,
6,
-6,
-13,
26,
-1,
-18,
28,
-19,
33,
-29,
33,
46,
18,
-40,
49,
64,
6,
5,
-38,
11,
-13,
-22,
-15,
5,
-34,
42,
14,
5,
9,
16,
22,
-36,
-19,
13,
-18,
48,
56,
8,
-2,
10,
6,
-49,
22,
-15,
7,
-55,
-16,
-34,
-17,
-36,
-80,
9,
21,
1,
70,
-12,
31,
-29,
-28,
31,
-57,
-31,
37,
3,
18,
-8,
-4,
5,
-8,
-17,
-23,
-47,
-17,
-8,
2,
-28,
-13,
8,
50,
-40,
-80,
-41,
33,
14,
-11,
22,
-56,
-18,
-26,
-34,
-9,
-35,
-28,
-29,
-50,
-77,
51,
49,
15,
-17,
3,
1,
-10,
-6,
-36,
-7,
-45,
43,
-10,
45,
40,
30,
-36,
-13,
8,
1,
15,
-46,
-38,
-39,
-21,
37,
15,
-47,
-47,
-1,
22,
-19,
-1,
-18,
-2,
5,
-21,
7,
-41,
19,
10,
-32,
33,
28,
34,
17,
49,
-16,
23,
32,
29,
-53,
2,
-15,
-1,
-18,
-38,
-12,
-41,
23,
-65,
0,
-47,
-55,
16,
14,
46,
0,
16,
14,
31,
32,
-60,
12,
48,
16,
-61,
45,
-6,
3,
3,
-38,
14,
-90,
-13,
2,
-22,
-39,
-58,
-20,
-10,
-72,
-23,
-3,
-53,
-3,
25,
-27,
11,
9,
42,
-45,
15,
34,
52,
-27,
-11,
52,
-9,
-40,
-35,
23,
50,
-14,
12,
0,
-36,
-61,
32,
23,
0,
29,
47,
-26,
65,
35,
-29,
-16,
-33,
36,
28,
32,
9,
24,
4,
-30,
47,
-25,
56,
-18,
-33,
-12,
13,
54,
-62,
60,
-11,
50,
-52,
57,
39,
94,
41,
-4,
-24,
21,
-41,
-6,
-28,
11,
-55,
-6,
-22,
4,
-9,
-28,
85,
-12,
66,
-23,
-6,
24,
11,
22,
-61,
19,
9,
33,
46,
-30,
-37,
4,
10,
-14,
51,
-9,
-28,
22,
18,
-86,
25,
-6,
0,
13,
-1,
-2,
-53,
-18,
52,
-14,
40,
-2,
-53,
-5,
63,
-47,
-33,
9,
38,
15,
-27,
-36,
-20,
-52,
-22,
18,
-41,
34,
-17,
31,
-38,
21,
-16,
0,
37,
-10,
-16,
-2,
-11,
68,
-22,
3,
-34,
58,
21,
-42,
-19,
-56,
-85,
-5,
13,
12,
-18,
39,
-22,
47,
-9,
-9,
-7,
-17,
17,
40,
-50,
-35,
55,
-27,
16,
50,
-10,
60,
28,
55,
0,
20,
14,
-41,
39,
-30,
-8,
-43,
49,
16,
-11,
45,
-41,
6,
-25,
-10,
7,
108,
61,
-44,
-21,
-8,
45,
34,
15,
-39,
-34,
-79,
1,
84,
19,
6,
74,
12,
-37,
-40,
-37,
11,
57,
-12,
5,
36,
-11,
23,
47,
-83,
72,
-11,
28,
-6,
-4,
-44,
30,
2,
76,
-39,
-18,
-20,
-1,
-11,
10,
39,
37,
14,
-23,
36,
-17,
33,
29,
53,
-25,
-10,
-12,
-45,
5,
9,
-12,
29,
-39,
-53,
24,
-54,
12,
29,
27,
-32,
80,
-31,
-2,
6,
-9,
27,
48,
10,
-57,
-16,
-40,
-8,
-3,
38,
38,
0,
-47,
16,
-5,
-32,
-14,
25,
22,
34,
-14,
33,
-21,
36,
-22,
52,
-30,
2,
-1,
-8,
55,
-25,
6,
33,
-47,
2,
-26,
-58,
-7,
87,
8,
25,
37,
-2,
45,
-10,
-64,
-10,
61,
-31,
0,
82,
13,
66,
21,
-71,
48,
17,
0,
28,
18,
32,
-10,
39,
-35,
20,
-17,
-55,
-50,
37,
40,
21,
-35,
44,
-8,
4,
2,
0,
1,
-26,
12,
-19,
-8,
-12,
-65,
26,
-1,
-58,
77,
-83,
-53,
19,
-11,
5,
-1,
-64,
-30,
18,
-62,
35,
-21,
12,
-9,
-2,
31,
18,
6,
28,
3,
0,
-36,
6,
15,
-35,
-25,
-32,
49,
21,
15,
-32,
57,
65,
-13,
-37,
-29,
1,
-24,
-17,
53,
-5,
-28,
-5,
-10,
-30,
10,
-11,
82,
-25,
-15,
-29,
26,
-53,
-75,
-11,
15,
-29,
50,
-19,
32,
1,
33,
36,
-80,
21,
27,
-7,
-12,
2,
-2,
26,
-15,
37,
22,
65,
-71,
1,
-9,
52,
11,
-13,
-12,
-3,
-46
] |
Per Curiam.
Original habeas corpus proceeding brought pro se by William A. Campbell, an inmate of the Montana State Prison, wherein after a hearing held November 10, 1954, before the Honorable C. E. Comer, District Judge presiding in the District Court of Missoula County, Montana, an order was made revoking a suspension of a sentence theretofore imposed by said judge upon petitioner to serve a term of four years in the Montana State Prison upon petitioner’s plea of guilty to an information charging him with the crime of burglary, of which crime a judgment of conviction was entered against petition in said district court and petitioner was committed to the state prison thereunder. It appearing that the application is without merit, the writ is denied and the proceeding dismissed.
|
[
55,
-15,
36,
35,
-41,
-35,
-32,
-44,
-29,
9,
-25,
-26,
-49,
3,
-45,
26,
-20,
-14,
34,
12,
0,
17,
-32,
35,
-30,
-11,
-6,
52,
1,
49,
30,
-29,
-6,
-33,
23,
-29,
50,
-17,
30,
5,
-26,
35,
15,
7,
-44,
-12,
-21,
49,
-26,
14,
-12,
-23,
10,
-19,
-37,
-7,
-4,
-74,
-45,
37,
10,
25,
27,
-13,
20,
20,
29,
-1,
47,
3,
67,
4,
21,
-6,
34,
0,
-39,
-40,
11,
28,
-42,
6,
7,
32,
-18,
0,
-39,
-20,
11,
27,
-13,
-30,
-13,
-37,
-39,
-8,
-34,
-33,
49,
-7,
-57,
-47,
10,
-43,
15,
-66,
-45,
35,
-23,
54,
0,
-15,
-6,
-39,
-12,
-13,
-44,
-19,
35,
-42,
2,
35,
0,
18,
-15,
-65,
-49,
16,
56,
-3,
-32,
-7,
-3,
36,
-44,
52,
53,
9,
12,
-45,
-36,
-40,
29,
6,
14,
13,
-40,
23,
-13,
-3,
2,
35,
-16,
30,
34,
85,
-21,
23,
-58,
61,
0,
-20,
-31,
13,
71,
41,
3,
-12,
2,
-63,
-8,
28,
-27,
36,
34,
21,
-15,
58,
42,
-27,
8,
23,
92,
-31,
-37,
-8,
-64,
74,
-16,
11,
-18,
27,
6,
-28,
20,
-10,
49,
1,
7,
29,
-54,
-9,
9,
34,
-13,
-24,
25,
-43,
60,
-35,
25,
-50,
-10,
8,
3,
37,
1,
-37,
2,
36,
-27,
-32,
4,
37,
30,
-12,
46,
16,
-26,
-42,
24,
-21,
8,
-83,
45,
-29,
-3,
-13,
19,
30,
-51,
-15,
28,
-24,
33,
29,
-12,
37,
6,
7,
23,
-3,
-19,
48,
25,
-72,
7,
-7,
-14,
-46,
-13,
-30,
24,
16,
-53,
-19,
22,
-13,
23,
27,
23,
26,
-4,
16,
24,
15,
-21,
12,
14,
-50,
7,
-17,
-1,
-7,
-1,
-90,
-11,
-77,
-22,
-30,
6,
0,
-5,
-41,
30,
9,
-23,
-13,
-50,
-10,
-26,
30,
-13,
-24,
-28,
-21,
23,
32,
72,
-48,
39,
66,
-19,
14,
-23,
5,
9,
43,
-33,
11,
-13,
-11,
-12,
3,
-25,
-15,
3,
12,
-12,
-1,
-31,
-13,
-30,
-2,
18,
39,
13,
79,
-6,
14,
47,
15,
-21,
25,
-53,
20,
-4,
58,
-41,
48,
-40,
12,
-17,
-26,
19,
-8,
-45,
-7,
-24,
-13,
8,
4,
1,
2,
10,
-32,
-36,
-13,
35,
-12,
-51,
-30,
26,
-40,
-23,
73,
14,
8,
-15,
-13,
-24,
1,
46,
53,
16,
15,
22,
15,
-19,
-30,
-42,
-23,
-35,
-49,
21,
-12,
26,
0,
5,
21,
5,
0,
11,
52,
10,
-92,
-35,
89,
0,
16,
29,
92,
10,
40,
44,
43,
-34,
-11,
33,
-5,
13,
31,
-3,
37,
-40,
21,
12,
-45,
27,
-3,
84,
-35,
11,
-7,
11,
5,
-63,
-1,
40,
11,
-19,
-31,
-24,
-20,
31,
-27,
-10,
-41,
6,
-6,
-23,
4,
-68,
-68,
-39,
67,
42,
68,
-30,
-34,
-42,
19,
-9,
1,
19,
45,
4,
-36,
11,
54,
-4,
11,
-8,
46,
-38,
-16,
14,
8,
-32,
-32,
-7,
-29,
-24,
20,
38,
-4,
7,
27,
-1,
32,
-16,
-45,
28,
29,
-9,
23,
-53,
-27,
20,
46,
-7,
10,
-21,
24,
63,
-12,
30,
9,
6,
10,
14,
-18,
32,
9,
-29,
10,
73,
-69,
32,
37,
-34,
12,
6,
-1,
-11,
58,
68,
-21,
0,
39,
-34,
-58,
-57,
4,
-18,
-63,
-17,
51,
-32,
-46,
13,
-5,
55,
1,
19,
41,
-22,
20,
-47,
-14,
-10,
27,
11,
1,
-16,
-42,
-1,
-22,
25,
6,
36,
-19,
-30,
17,
-3,
45,
29,
68,
-21,
61,
9,
11,
20,
-29,
46,
19,
41,
25,
7,
5,
31,
21,
5,
-23,
-7,
-83,
8,
4,
12,
13,
-67,
-9,
35,
-36,
-25,
28,
-66,
-12,
28,
38,
-55,
10,
36,
43,
0,
-21,
32,
-11,
12,
7,
36,
24,
-32,
0,
-30,
47,
-22,
-24,
-10,
0,
21,
-39,
18,
-17,
-6,
-59,
-70,
-54,
7,
-19,
12,
-31,
-6,
13,
-35,
5,
-30,
10,
-15,
-25,
13,
51,
1,
-14,
26,
9,
76,
-21,
38,
16,
36,
40,
-51,
3,
16,
-5,
-14,
-42,
66,
-4,
-60,
26,
-39,
4,
-8,
37,
-5,
-2,
-35,
21,
22,
4,
-34,
-73,
0,
11,
23,
-14,
24,
-59,
25,
13,
-10,
-5,
35,
-5,
17,
48,
-16,
41,
15,
-9,
10,
0,
49,
-57,
-31,
0,
-16,
54,
8,
-7,
8,
60,
14,
-17,
-22,
-35,
-25,
-29,
-78,
-8,
0,
-16,
-26,
2,
-16,
34,
-3,
-47,
16,
-52,
-7,
66,
-32,
-22,
-15,
-18,
5,
21,
14,
-64,
28,
10,
-29,
-33,
-48,
-2,
51,
-20,
-32,
-72,
-37,
12,
7,
-24,
-43,
1,
11,
55,
28,
-7,
-62,
48,
-12,
-14,
9,
-45,
-7,
-12,
23,
14,
-16,
42,
-40,
-6,
8,
8,
42,
39,
-4,
-21,
-8,
-57,
-5,
-12,
-29,
27,
46,
20,
-19,
-5,
-39,
0,
22,
17,
-24,
7,
1,
-33,
16,
26,
46,
20,
13,
32,
27,
-8,
-11,
43,
36,
1,
56,
-16,
17,
-9,
-28,
35,
-73,
30,
-25,
15,
-58,
55,
23,
34,
23,
-22,
16,
-45,
7,
23,
-5,
33,
60,
-3,
39,
-17,
-16,
29,
-1,
-44,
25,
36,
25,
-23,
-1,
43,
-23,
32,
-26,
0,
89,
-29,
38,
-18,
-10,
1,
14,
27,
19,
3,
-52,
41,
-33,
31,
26,
-64,
65,
-13,
-21,
-13,
41,
-36,
-19,
-23,
22,
-25,
23,
39,
-6,
-32,
46,
48,
-36,
-40,
10,
31,
17,
0,
-6,
-5,
4,
39,
20,
-26,
-29,
-54,
-27,
-30,
-44,
-17,
-44,
31,
12,
32,
-8,
-28,
-28,
4,
-11,
51,
48,
-1,
25,
11,
-10,
19,
34,
-1,
-41,
-14,
-23,
-27,
30,
-5,
-33,
74,
0,
-71,
9,
33,
27,
64,
-6,
39,
5,
-34,
-31,
6,
28,
14,
-36,
-39,
-21,
0,
64,
-24,
1,
1,
-32,
-74,
-29,
-19,
6,
39,
5,
-74,
1,
-62,
12,
-17,
25,
-15,
-38,
30,
46,
-9,
44,
-17,
0,
-20,
-33,
-2,
-58,
23,
-15,
-10,
-18,
2,
-46,
-1,
-34,
-2,
38,
-2,
-12,
44,
26,
67,
-3,
-45,
1,
-17,
-58,
-12,
4,
5,
1,
-15,
72,
48,
10,
44,
79,
4,
-15,
-54,
-2,
32,
0,
13,
-27,
-46,
69,
-36,
-12,
-42,
-10,
7,
3,
-10,
7,
-37,
20,
-4,
-34,
31,
2,
-2,
-20,
-55,
26,
-10
] |
MR. JUSTICE ANGSTMAN:
Defendants as sheriff and undersheriff were charged with collecting illegal fees from Missoula County by falsely representing expenses for boarding Missoula County prisoners.
The information contained 13 separate counts, each setting forth a monthly claim for a different month, and each giving an itemized list of named vagrants and the date when each was alleged to have been served meals by defendants and the number of days or fraction of days for which a charge was made for such board. Each count alleged that the part of each claim made up of these items for alleged vagrants “had not, nor had any portion thereof been furnished Missoula County prisoners. That the alleged prisoners aforesaid, if such named inmates of the county jail in Missoula County, Montana, ever did exist, were not prisoners of Missoula County at the time or times claimed. That there are no records nor files in Missoula County courts showing that a complaint was nor had ever been filed against the alleged prisoners aforesaid on the date or dates claimed; that in fact there is nothing of record in Missoula County courts showing the alleged prisoners aforesaid were, nor had ever been committed to the said jail under process of Missoula County courts, discharged or otherwise, on the date or dates claimed.”
Defendants on February 26, 1954, pleaded not guilty. Trial was set for April 5th, and on that day, but before selecting a jury, the state challenged the jury panel. The state’s motion was sustained and the case reset for trial April 8th. Defendants then asked leave to withdraw their pleas in order to attack the information by demurrer. This motion was granted and each defendant filed a separate, but identical, demurrer, on grounds both general and special. The court sustained the demurrer on the general ground and overruled it as to the other grounds. The state declined to amend. Judgment of dismissal followed. The state has appealed from the judgment.
The state contends that the court erred in granting leave to withdraw the pleas of not guilty. The general rule is that whether a plea of not guilty may be withdrawn in order to attack the information by demurrer is a question addressed to the discretion of the court. 22 C.J.S., Criminal Law, section 421(d), page 648. But appellant contends that nothing was shown by defendants to move the court’s discretion and hence that the court erred in allowing the plea to be withdrawn and the demurrer interposed.
“* * *■ where the ground of demurrer is that the indictment or information does not charge a crime, it is not improper to entertain the demurrer during the trial, nor is it prejudicial to refuse to permit the filing of the demurrer after commencement of the trial, since the objection may be raised at any time.” 42 C.J.S., Indictments and Informations, section 220, page 1219, note 96.
Some questions are waived by entering a plea but there is no waiver of the objection that the information fails to set forth facts sufficient to constitute a public offense. 42 C.J.S., Indictments and Informations, section 307, page 1337, and see R.C.M. 1947, section 94-6711; State v. Wehr, 57 Mont. 469, 188 Pac. 930; State v. Smith, 58 Mont. 567, 194 Pac. 131; State v. Fowler, 59 Mont. 346, 196 Pac. 992, 197 Pae. 847.
So far as the general ground of demurrer is concerned, the court did not abuse its discretion in permitting withdrawal of the plea of not guilty and the filing of the demurrer. Whether it was proper to permit other grounds to be raised by the demurrer after once entering a plea is not necessary to be decided here.
The court did not abuse its discretion in allowing the pleas to be withdrawn and the demurrers filed. In sustaining the demurrer the court’s minute entry recites that the demurrers were “sustained as to paragraph 1 of each of the demurrers and with particular reference to that portion of count 1 of the information concerning [here the court referred to the language of the information quoted above].” Paragraph 1 of each demurrer was “that the facts stated in the information as a whole do not constitute a public offense.” The same ruling was made as to each count of the information.
The state contends that the particular language of the information which we have quoted above should be treated as surplusage and that the information is good without it. We do not agree with the state’s contention in this respect.
The information charges that defendants presented for allowanee to the board of county commissioners a ‘ ‘ certain false and fraudulent monthly report concerning board furnished Missoula County prisoners.” This is a conclusion of law and is insufficient to state an offense unless accompanied by a state ment of facts upon which the charges of falsehood or fraud rest. State v. Hale, 129 Mont. 449, 291 Pac. (2d) 229.
The further allegations which we are now asked to treat as surplusage were designed to show wherein the claim was false and fraudulent. Are those allegations sufficient to show that the claim was false or fraudulent ? We think not. The information does not allege that the persons for whom board was charged were not confined in the Missoula County jail. It does not allege that they were not properly confined in jail. The charge that they were not prisoners of Missoula County does not amount to a charge that they were not “prisoners confined in jail” and under the charge of the sheriff within the meaning of R.C.M. 1947, section 25-227.
Since all criminal prosecutions are made in the name of the State of Montana, R.C.M. 1947, section 94-4804, it is doubtful whether any prisoner may strictly be classified as a county prisoner. The fact too that it is alleged that no proceedings in the courts of Missoula County show that the named prisoners were committed to jail by the Missoula County courts is of no avail since the sheriff must accept federal prisoners, R.C.M. 1947, section 16-2807, prisoners from other counties, R.C.M. 1947, sections 94-5904 to 94-5906, witnesses to be used in criminal cases, R.C.M. 1947, section 16-2803, and even must hold prisoners upon demand of the executive authority of another state, R.C.M. 1947, section 94-501-7 et seq.
Likewise it is proper in this state under certain circumstances for a peace officer to make an arrest without a warrant. R.C.M. 1947, section 94-6003. Also he may make an arrest upon an oral order of a magistrate. R.C.M. 1947, section 94-6005.
It is true that when an arrest is made without a warrant the person arrested must without unnecessary delay be taken before the nearest or most accessible magistrate in the county and a complaint must be made before such magistrate. R.C.M. 1947, section 94-6016. However, if after an arrest is made without a warrant it is discovered that the person arrested has committed no crime he can be released without the filing of any complaint. "While retained in custody by the sheriff the latter must provide his board and is accordingly entitled to present a claim for so doing. If the sheriff abuses his authority in making arrests, or converts the jail into a flop house, then the county’s liability to the sheriff might be affected, compare Nolan County v. Yarbrough, Tex. Civ. App., 34 S.W. (2d) 302, but there is no such allegation made in the information before us. So far as the information before us is concerned, the arrests were made in good faith, the prisoners were actually fed by the sheriff, and he properly included their board in his claim to the county.
The information does not charge directly or indirectly that the named prisoners were not legally confined in the Missoula County jail and is insufficient to constitute an offense under R.C.M. 1947, section 25-229, which is the section under which the state contends the charge is prosecuted.
The court properly sustained the demurrer to the information. Other contentions made require no consideration.
The judgment appealed from is affirmed.
MR. JUSTICES ANDERSON and DAVIS, concur.
|
[
26,
28,
-17,
-7,
20,
-53,
8,
-28,
-91,
88,
10,
12,
-11,
-16,
-38,
-23,
-42,
-51,
35,
-40,
10,
-20,
-42,
33,
9,
13,
-3,
2,
-27,
1,
10,
19,
-27,
-33,
24,
1,
0,
-21,
-36,
40,
-15,
7,
12,
-17,
14,
13,
-47,
29,
30,
-3,
63,
-31,
0,
11,
-20,
0,
-28,
-17,
-29,
9,
-16,
32,
-12,
-3,
-15,
-26,
-24,
-58,
-9,
-50,
32,
19,
-32,
-11,
-9,
15,
-62,
-39,
34,
92,
35,
18,
-16,
5,
8,
-15,
40,
-36,
50,
-16,
-4,
7,
-10,
21,
72,
-77,
2,
42,
47,
-38,
-36,
-28,
-19,
-9,
34,
-1,
2,
1,
-30,
37,
-44,
15,
9,
-29,
-22,
-6,
-38,
-69,
3,
-37,
58,
-52,
-13,
43,
-18,
-10,
2,
75,
16,
46,
5,
-12,
-4,
-21,
-59,
-4,
-16,
-13,
-1,
10,
34,
-56,
26,
5,
-6,
6,
29,
21,
22,
35,
-43,
0,
43,
51,
13,
3,
25,
-20,
-25,
-19,
28,
-5,
-28,
-22,
49,
18,
-11,
-22,
36,
-88,
-53,
-19,
9,
81,
28,
53,
-23,
-4,
66,
-52,
-37,
12,
2,
-16,
21,
-18,
31,
4,
-38,
0,
25,
1,
21,
-29,
63,
-3,
25,
2,
18,
-14,
0,
-16,
34,
37,
4,
41,
56,
-22,
59,
-34,
-40,
-54,
21,
-17,
-27,
-29,
-3,
-57,
-41,
-33,
-50,
35,
-36,
51,
-24,
10,
9,
40,
3,
27,
-17,
16,
46,
-12,
19,
-100,
12,
-20,
27,
30,
-48,
-46,
-27,
-27,
59,
81,
-44,
-44,
-77,
21,
28,
-10,
-51,
48,
-49,
-35,
67,
-11,
-60,
-12,
-81,
-26,
6,
-4,
-31,
-10,
-9,
0,
2,
40,
39,
8,
10,
-29,
1,
-13,
-25,
65,
0,
-16,
27,
-15,
48,
0,
-10,
-4,
-49,
37,
-25,
-12,
-48,
16,
7,
-8,
28,
28,
61,
24,
29,
31,
-59,
8,
-2,
-37,
-55,
-13,
-11,
15,
-15,
14,
8,
42,
-35,
-10,
33,
-30,
12,
-3,
75,
13,
-12,
-19,
22,
-15,
-30,
3,
-5,
0,
-8,
-10,
7,
-55,
-21,
-26,
11,
-15,
-9,
-38,
-20,
-6,
15,
-10,
-23,
-36,
44,
45,
-45,
0,
-46,
-13,
32,
35,
8,
29,
58,
-52,
-35,
-27,
0,
-36,
-10,
10,
-23,
-14,
1,
-42,
-32,
0,
61,
-7,
2,
0,
-12,
-60,
-38,
67,
-36,
-5,
-43,
21,
-46,
-14,
-48,
-7,
35,
3,
-8,
-56,
10,
53,
-23,
12,
-44,
-22,
87,
11,
3,
-26,
10,
8,
5,
30,
33,
61,
11,
-59,
5,
-4,
-3,
28,
8,
-16,
10,
5,
16,
-25,
-37,
1,
-26,
-1,
69,
2,
44,
-65,
51,
30,
39,
9,
17,
-13,
6,
-13,
-28,
-11,
34,
55,
-70,
-53,
-4,
0,
53,
-6,
3,
-2,
61,
-13,
13,
22,
26,
7,
-4,
76,
-29,
-93,
21,
58,
9,
19,
-58,
-26,
64,
17,
-14,
30,
45,
-13,
-10,
-51,
33,
65,
16,
13,
-8,
-9,
-4,
46,
37,
-7,
49,
3,
-15,
-17,
-6,
-13,
25,
-6,
-2,
-3,
-7,
42,
-12,
-34,
-52,
53,
-31,
26,
-40,
18,
43,
33,
-74,
3,
2,
23,
26,
20,
54,
-42,
-6,
28,
-2,
37,
41,
-22,
-21,
-11,
76,
-13,
15,
24,
4,
29,
-6,
-76,
-18,
25,
-1,
-18,
21,
5,
-23,
-31,
5,
14,
-19,
-60,
30,
6,
0,
0,
69,
27,
60,
40,
47,
-11,
-20,
-8,
12,
-28,
27,
-7,
1,
-10,
-14,
21,
-51,
-53,
39,
-20,
-23,
34,
-8,
-33,
7,
16,
-35,
-17,
-24,
10,
18,
1,
-10,
2,
-35,
26,
-34,
-49,
40,
-10,
35,
30,
33,
-19,
-14,
0,
29,
2,
51,
20,
-26,
-42,
5,
-22,
46,
8,
-60,
-5,
27,
23,
-9,
23,
-21,
25,
31,
-26,
-25,
-9,
13,
-1,
16,
14,
-11,
19,
-33,
84,
-27,
-50,
-13,
24,
35,
-72,
26,
7,
-5,
-43,
-22,
-54,
-24,
-24,
-22,
-40,
33,
5,
-18,
0,
2,
13,
-24,
30,
-5,
29,
-13,
0,
11,
-19,
11,
-25,
27,
-33,
-38,
49,
-2,
-10,
-20,
23,
-22,
17,
49,
-23,
20,
31,
-32,
20,
-41,
-11,
55,
-46,
34,
28,
59,
-93,
-57,
-5,
13,
-27,
-24,
-23,
3,
-24,
-2,
23,
5,
1,
-32,
-22,
49,
7,
5,
2,
9,
14,
-15,
57,
41,
-25,
41,
-43,
1,
2,
27,
1,
49,
9,
-49,
-17,
-35,
-27,
-16,
29,
-45,
45,
-12,
-28,
-39,
-30,
-64,
67,
-14,
42,
-22,
-13,
8,
54,
26,
-68,
83,
-52,
-50,
-20,
35,
41,
-10,
9,
6,
39,
-24,
-12,
-26,
47,
36,
-58,
-3,
-37,
4,
-7,
-30,
-64,
10,
-3,
25,
21,
-9,
91,
-14,
1,
2,
-2,
-37,
-73,
58,
71,
22,
-12,
-66,
-43,
-8,
7,
28,
3,
-39,
-12,
-13,
-74,
67,
9,
-13,
15,
-1,
11,
42,
26,
-44,
-18,
13,
-6,
9,
15,
-40,
19,
-3,
11,
2,
-5,
-43,
11,
-13,
-14,
-96,
58,
21,
41,
-10,
61,
-15,
-19,
23,
22,
-26,
63,
-21,
-11,
16,
13,
4,
-34,
-36,
25,
-7,
-68,
24,
9,
-5,
38,
0,
-12,
-25,
-42,
-13,
-10,
19,
-25,
30,
0,
12,
-27,
0,
23,
-29,
-9,
-43,
-29,
-12,
8,
-7,
-17,
15,
-40,
-11,
13,
15,
36,
-24,
5,
-31,
12,
20,
20,
4,
29,
0,
-26,
60,
-7,
0,
3,
93,
-37,
-39,
0,
5,
8,
-1,
71,
-13,
-34,
3,
-25,
0,
0,
13,
-31,
-4,
28,
23,
-30,
4,
-41,
-27,
30,
7,
-2,
-32,
17,
34,
-5,
-3,
-50,
3,
-9,
104,
11,
-9,
-40,
14,
-21,
19,
9,
-3,
83,
-10,
-7,
9,
0,
18,
-20,
-1,
41,
67,
-26,
-39,
32,
33,
32,
-38,
28,
-21,
-31,
2,
46,
-60,
18,
-47,
-31,
0,
40,
6,
-11,
1,
55,
-6,
-14,
32,
-9,
-22,
76,
25,
-28,
-11,
17,
-7,
6,
46,
13,
45,
64,
-6,
-53,
57,
4,
-10,
-6,
-45,
-32,
-9,
-12,
-40,
-17,
23,
44,
-50,
14,
-16,
-30,
66,
49,
7,
-9,
11,
5,
54,
-18,
-11,
-32,
13,
34,
-10,
-2,
-10,
20,
80,
13,
12,
-13,
4,
-6,
-32,
-81,
-9,
-24,
43,
-3,
-15,
-36,
10,
-38,
26,
29,
48,
32,
7,
-86,
2,
-27,
-55,
-15,
29,
52,
-27,
17,
-27,
8,
-5,
84
] |
MR. JUSTICE BOTTOMRY:
This is an appeal from a judgment of the district court for Lewis and Clark County, which judgment affirmed the order of the Montana Industrial Accident Board in which the claim of Leslie L. Gaffney under the Act was denied.
The claimant Gaffney, an ex-service, unmarried man of about 54 years of age, was employed by the Montana state apprenticeship council, which was enrolled under Plan Three of the Compensation Act.
The record sets forth that on December 17, 1948, claimant, in his employment as a fieldman of the Montana state apprenticeship council, in ascending the stairs of the Jordan Hotel in Glendive, Montana, leading from the lobby to his room, and carrying a heavy bag or suitcase, slipped and stumbled on the stairstep throwing the weight on his left leg and thigh, rupturing the muscle therein and also striking his head on the top step; that with the assistance of the bellboy he got on his feet and did make it to his room, suffering a great deal of pain in the left thigh and leg and in his head; that when he reached Billings he went to Dr. Biehn who diagnosed the injury as ruptured muscle in his left thigh. For a period of months after' December 17, 1948, he was treated by Dr. Biehn; that the-muscles in his left' leg gave him considerable pain and his locomotion was affected. The left arm and side of neck were impaired. This made it difficult and lessened his ability to drive-a car, and his head continued to bother him.
September 13, 1949, claimant notified tbe Industrial Accident Board in substance that the accident at Glendive on December 17, 1948, resulted in a permanent disability and asked for a claim blank to file. The claim blank was furnished to claimant and was filed with the Board. A hearing on his claim was had on October 28, 1953, before the chairman of the Board, and at that hearing the chairman stated: “May I say that the Board, on September 15, 1949, wrote a letter to Mr. Gaffney in which was enclosed a claim blank with directions to Mr. Gaffney to fill out, and it also shows on October 19, 1949, Gaffney’s claim for compensation was duly filed and there is no question of the timeliness of the filing of the claim.”
The record discloses that the only sworn evidence presented at the hearing before the chairman of the Board was by the claimant Gaffney and Dr. Paul R. Sehiewe.
Dr. Sehiewe, physician and surgeon of the Veterans’ Administration, Port Harrison, Montana, was called as a witness by claimant. Dr. Sehiewe had reviewed the files of claimant from the Veterans’ Administration Hospital at Miles City, Montana.
Since December 17, 1948, it has been necessary for claimant to enter the Veterans’ Administration Hospital at Miles City and Port Harrison for treatment for his injury and general physical condition. Dr. Sehiewe testified at the hearing before the Board, inter alia, that he had Leslie Gaffney under observation within the last past month at the Veterans’ Hospital at Port Harrison; that during the time he has made and had made clinical tests of the patient; that the records of the previous treatment of the Veterans’ Administration Hospital at Miles City were examined; that at Port Harrison Gaffney had a complete history and physical examination, laboratory studies and X-ray, as well as a complete evaluation of his medical illness; that it was shown that Gaffney was suffering from Parkinsonism or Parkinson’s disease; that Gaffney’s record shows he has, during the past six or seven years, had several falls and an automobile accident; that his reactions caused by Parkin son’s disease would cause a greater tendency to fall; that a fall such as he described at the hotel in Glendive could possibly speed up his disability from. Parkinson’s disease; that the Miles City X-rays taken of his neck and shoulder, in the doctor’s opinion, showed that considerable de-mineralization was present and that he “wondered if there was destruction in the joint” itself.
Dr. Schiewe further testified that in his interpretation in the curvical spine there were arthritic changes which could be due to trauma or age itself; that this condition is not synonymous with a herniated disc, but the usual disc has this association in X-ray findings — the joint space may be narrow; that a fall could cause it, and an injury to the neck or head could cause it; that it would be possible for an individual to have such an injury and have it lay dormant and thereafter a fall would aggravate it.
That a patient with Parkinson’s disease, should he fall, regardless of the injury, such fall “might lead to a bone or soft tissue or the tendons, and their ability to recuperate is imapaired”; that a person with Parkinson’s disease, if he falls and sprains his wrist, that wrist may become stiff, “ends up being stiff”; that atrophic changes occur rapidly and the patient ends up with a progressively greater amount of disability. When Dr. Schiewe was asked, “In other words, a person with Parkinson’s disease who suffers an unusual fall, will aggravate his deterioration from the Parkinson’s disease?” he replied: “I think I could say yes to that statement.”
On cross-examination by the chairman, Dr. Schiewe was asked: “ Q. There is some possibility a fall which Mr. Gaffney sustained in ’48 might have aggravated or lighted up a preexisting condition of Parkinson’s disease, is that right? A. Possibly. The way in which you put the question makes it sound to me like an infection type of disease; because I am not an authority on the disease, I would have to answer the question in the affirmative. In other words, I am unable to deny it. ’ ’
In the doctor’s opinion, Gaffney could have had Parkinson’s disease since 1918. He pointed out that multiple diseases are frequently present and have to be kept in mind all the time. “Q. Then, doctor, how would you answer this question: would this fall sustained by Mr. Gaffney in 1948, of itself, now cause him to be totally and permanently disabled, as we acknowledge he apparently is? A. You say, could the fall in ’48 cause the permanent disability he now has?
Q. Yes, and I’d like to have you make as definite an answer as you can. Either you can relate it to his present condition, or you cannot relate it to his present condition. A. I feel that I honestly cannot relate the fall to his present 100% disability. That statement might have some weak points. Do you want a clarification? Q. No, that is sufficient.”
The doctor’s testimony is not as clear as one would like it to be; nevertheless in dealing with such elusive diseases as Parkinson’s disease and cerebral arterial sclerosis and the effects of traumatic injuries in aggravating and accelerating such afflictions, even the most learned authorities may differ. However, taking all of Dr. Sehiewe’s testimony, he leaves no doubt that the fall of December 17, 1948, suffered by Gaffney, was and is a contributing cause to his present total and permanent disability, which condition the Board acknowledges. There is no sworn medical testimony in the record to the contrary. The only sworn witnesses before the district court were Leslie L. Gaffney and one Bryan D. Beauchamp. The respondent Industrial Accident Board offered no evidence. Such additional evidence as was adduced before the district court is unimportant and we therefore consider the matter as determined on the record made before the Board.
There is no dispute in this case as to the facts as found by the Board as follows:
“I. Leslie L. Gaffney, claimant herein, was injured in an accident arising out of and in the course of his employment by the Montana State Apprenticeship Council on or about the 17th day of December, 1948, at Glendive, Montana.
“That at the time of the accident the employer was enrolled under the Workmen’s Compensation Act of the State of Montana, Plan Three. That the defendant herein is the Industrial Accident Board.
“II. That following his accident and injury, which resulted from a fall on a stairway in the Jordan Hotel in Glendive, Montana, the claimant continued to work at his regular employment without loss of time or wages until he left the employment of the Montana Apprenticeship Council. That the claimant’s claim for compensation resulting from the said accident was filed with the Industrial Accident Board on October 19, 1949, and alleged that the claimant’s daily earnings had not been reduced by the injury.”
In connection with his earnings Gaffney testified that he had stayed on the job and worked the best that he could, as he was directed to do, until he could not continue. The fact that after the accident, Gaffney could not do his job as well as before, and that he was instructed to continue and do the best he could, certainly brings into play subdivision 3 of section 93-1301-6, R. C. M. 1947. Lindblom v. Employers’ Lability Assur. Corp., 88 Mont. 488, 295 Pac. 1007, 1010.
At the hearing before the chairman of the Board, on cross-examination the chairman of the Board asked Gaffney if he remained on the payroll steadily after the accident so Gaffney would not have to claim compensaton and Gaffney answered that he did not claim compensation at the time, although he filed the report of the accident and that he was kept on the payroll because he was entitled to leave time which he had accumulated. These statements in Gaffney’s testimony stand undisputed. His employer did not testify.
The Industrial Accident Board founded its denial of Gaffney’s claim on its deductions “that competent undisputed medical evidence established that the claimant is suffering and has been suffering for many years from a condition known to medical science as Parkinson’s disease and, also, cerebral arterial sclerosis, both of which conditions have gradually progressed until the claimant is now at least partially permanently disabled from remunerative employment. That competent medical evidence establishes that the claimant’s accidental injury of 1948 is not the cause of his present disability, but that the main cause of his symptoms is Parkinson’s disease and cerebral arterial sclerosis which are not the result of bodily injury, but are progressive diseases of a degenerative nature.”
The district court adopted the findings of the Board and in the judgment entered ordered, “It is ordered and adjudged that the Industrial Accident Board of the State of Montana, respondent, regularly pursued its authority in denying the claim for workmen’s compensation of Leslie L. Gaffney, applicant, that the findings of the Board are reasonable under all the circumstances of the case and are sustained; and that the appeal of Leslie L. Gaffney, appellant, is denied.”
We cannot agree with the findings of the Industrial Accident Board or with the findings and judgment of the district court under the facts, circumstances and the evidence in this record.
We state again the holding set forth in Lindblom v. Employer’s Liability Assur. Co., supra, “The Workmen’s Compensation Act was enacted for the benefit of the employee * * The correctness of this conclusion is universally conceded. The Industrial Accident Board is a state board. The Act directs that the Board’s first duty is to administer the Act so as to give the employee the greatest possible protection under the purposes for which the Act was enacted. The spirit and intent as well as the letter of the Act must be considered. Compare, Miller v. Aetna Life Ins. Co., 101 Mont. 212, 53 Pac. (2d) 704. There is no substantial sworn evidence in the record to sustain either the findings of the Board or the findings of the court. The evidence in the record preponderates against the findings.
At the threshold it should be noted that the rule in cases involving the Workmen’s Compensation Act is that the Act is to be liberally construed to effect its purposes, and when in doubt the doubt is to be resolved in the employee’s favor. R. C. M. 1947, sections 12-202, 92-838; Grief v. Industrial Acci dent Fund, 108 Mont. 519, 93 Pac. (2d) 961. “Liberal construction of the act is commanded in order that the humane purposes of the legislation shall not be defeated by narrow and technical construction * * Tweedie v. Industrial Accident Board, 101 Mont. 256, 53 Pac. (2d) 1145, 1148.
The employer takes the employee subject to his physical condition when he enters his employment. Compensation laws and payments are not made solely for the protection of super physical persons nor for employees in normal physical condition, but for those also who are in subnormal condition who are accepted for employment. No standard of health or physical fitness for an employment is prescribed by our law or statute in this kind of case to entitle an employee to compensation for an injury arising by accident out of and in the course of his employment; therefore none may be arbitrarily set.
The rule that the employer takes the employee as he finds him is well established. Compare Peitz, v. Industrial Accident Board, 127 Mont. 316, 264 Pac. (2d) 709; Jones v. California Packing Co., Utah, 244 Pac. (2d) 640; 1 Honnold on Workmen’s Compensation, section 98, page 302. The fact that an employee was suffering from a pre-existing disease or disability does not preclude compensation if the disease or disability was aggravated or accelerated by an industrial injury which arose out of and in the course of the employment. See Nicholson v. Roundup Coal Min. Co., 79 Mont. 358, 380, 257 Pac. 270; 1 Larson, Workmen’s Compensation Law, section 12.20, citing federal cases and 38 states supporting this rule. The reason for the rule is simple justice to human beings.
It is generally held that the fact an injury contributes to a preexisting disease in bringing disability does not affect the right to compensation where the accidental injury occurred in the course of employment. In Big Muddy Coal & Iron Co. v. Industrial Board, 279 Ill. 235, 241, 116 N. E. 662, 664, the court said: “This incapacity is proximately due to the accident operating upon his diseased physical condition, and not to his ailment independently of such injury.” Compare, Gilcrest Lumber Co. v. Rengler, 109 Neb. 246, 190 N. W. 578, 28 A. L. R. 200; Spencer v. Industrial Commission, 87 Utah 336, 40 Pac. (2d) 188.
In Hills v. Oval Wood Dish Co., 191 Mich. 411, 158 N. W. 214, 215, the court said: “Assuming that such disability is being prolonged by the disease, there is yet no point at which the consequences of the injury cease to operate. * * * The consequences of the injury extend through the entire period, and .so long as the incapacity of the employe for work results from the injury, it comes within the statute, even when prolonged by preexisting disease.” Compare Hanson v. Dickinson, 188 Iowa, 728, 176 N. W. 823.
There is no question but that Gaffney up to the time of his injury was performing his duties in a satisfactory manner, and that from and after his accidental injury his ability to do his work diminished and at the time of the hearing before the Board he was not able to perform any gainful work, being totally incapacitated. In Woodbury v. Frank B. Arata Fruit Co., 64 Idaho 227, 130 Pac. (2d) 870, 875, the court said: “The rule is well established in this jurisdiction that injury, resulting partly from accident and partly from a pre-existing disease, is compensable if the accident aggravated or accelerated the ultimate result; and it is immaterial that the claimant would, even if the accident had not occurred, become totally disabled by reason of the disease. [Citing cases.]” In Kauffman v. Cooperative Refinery Ass’n, 170 Kan. 325, 225 Pac. (2d) 129, 133, the court said, “The workmen’s compensation act prescribes no standard of health or physical perfection for a workman. Carney v. Hellar, 155 Kan. 674, 127 Pac. (2d) 496. Accidental injuries are compensable where the accident only serves to aggravate or accelerate an existing disease, or intensifies the affliction. [Citing cases.] ” Compare Jacobson v. Department of Labor and Industries, 37 Wash. (2d) 444, 224 Pac. (2d) 338, and cases cited.
In Levo v. General-Shea-Morrison, 128 Mont. 570, 280 Pac. (2d) 1086, 12 St. Rep. 77, this court affirmed what was said in McCoy v. Mike Horse Min. & Mill. Co., 126 Mont. 435, 252 Pac. (2d) 1036, at page 1039, to-wit: “A liberal construction of tbe Compensation Act is commanded in order that the humane purposes of tbe legislation shall not be defeated by narrow and technical construction, and tbe intention of sucb requirement is for tbe benefit and protection of tbe injured workman * * *.”
In Hunter v. Wm. Peper Const. Co., 46 Ariz. 465, 52 Pac. (2d) 472, 474, tbe court said, “It is of course true, under our decisions, that if some form of physical injury aggravates any already existing physical disease or condition, tbe injured workman is entitled to compensation to the extent of tbe disability caused thereby in the same manner as though bis condition bad been produced originally and directly by tbe injury.”
It is tbe rule and familiar law in most states that when preexisting diseases are aggravated by an injury and disabilities result, such disabilities are to be treated and considered as tbe result of tbe injury.
Under tbe procedure of tbe Industrial Accident Board of having tbe bearings on a claim for compensation before tbe chairman of tbe Board only, or before one member of tbe Board, or an examiner or referee, it is only natural for one individual to give more weight to some particular thought or bit of evidence, or more credence to some particular point, in writing bis findings, and with tbe press of other duties tbe members of tbe Board, not seeing tbe witnesses nor bearing tbe evidence in sucb cases cannot contribute their knowledge nor reasoning to the same. Tbe full participation of all members of tbe Board is vital to tbe questions coming before it, and tbe work load has increased to tbe point where it appears that a full time board should function continually as required by tbe first sentence of R C. M. 1947, section 92-109, which provides that “A majority of tbe board shall constitute a quorum for the transaction of any business.” It is apparent that a full board should hear and determine sucb cases. Certainly, tbe examiner or referee, or one member of tbe Board, and be may not be an at torney, is in no better position to pass upon the technical questions presented than a majority of this court.
In this class of cases the rule is that the burden of proving that the injury was a contributing cause of the condition of the claimant may be proved by circumstantial evidence or inferences having a substantial basis in the evidence. 1 Honmold on Workmen’s Compensation, section 126, pages 464, 466, 467, citing cases from Michigan, Illinois, West Virginia and Massachusetts. The only sworn testimony before the Board, from which a rational finding can be made, is that the injury received by claimant was a contributing cause of his present total and permanent disability. The frank admission of the testifying doctor that he could not state positively one way or another need not bar the claimant from recovery if on the whole record it can be said that he is entitled thereto. The law does not require the impossible. A fact may be established by indirect evidence or that which tends to establish the fact by proving another which, though true, does not of itself conclusively establish that fact, but which affords an inference or presumption of its existence. R. C. M. 1947, section 93-301-10. Compare Moffett v. Bozeman Canning Co., 95 Mont. 347, 356-359, 26 Pac. (2d) 973.
The reasonable deductions from the record are that Gaffney was in reasonably fair condition physically, capable of and performing his duties prior to his accident, and that following the injury his health began to deteriorate, until at the time of the hearing the affliction from which he suffered and now suffers has rendered him totally and permanently disabled. Dr. Schiewe’s testimony and the uncontradicted testimony of Gaffney, in our judgment, is evidence sufficiently substantial and competent to sustain the deduction that the accident was a contributing cause of Gaffney’s present condition. In other words, the rule that the claimant must show that the injury was a contributing cause of his present condition does not require demonstration of an undemonstrable proposition, but merely that he produce sufficient evidence, direct, indirect or circumstantial to canse in the unprejudiced mind a conviction that such was the fact. R. O. M. 1947, section 93-301-4.
Just because medical science has not advanced to the point where one learned therein can honestly and positively say that “the injury has contributed to and is the proximate cause of claimant’s total incapacity” or that “the injury has not contributed to and is not the proximate cause,” is one who admittedly has sustained an injury in the course of and arising out of his employment, following which he becomes totally incapacitated for work, to be denied compensation? We think not.
It is equally true that where the employer seeks to attribute the disability of the injured employee to causes for which the employer is not responsible, the burden of proof in that regard is on the employer. Compare Marshall v. C. F. Mueller Co., 135 N. J. L. 75, 50 A. (2d) 158. In the instant case the employer made no showing whatsoever.
From what has been said, we hold that the findings of the Board and of the district court are contrary to the preponderance of the evidence, and the judgment is therefore reversed and the cause remanded to the district court with instructions to remand the proceedings to the Industrial Accident Board for allowance of such compensation to Leslie L. Gaffney as is provided by statute.
MR. CHIEF JUSTICE ADAIR, concurs.
|
[
51,
3,
-21,
58,
26,
-48,
40,
-5,
4,
26,
-28,
-27,
34,
-116,
21,
55,
0,
-23,
5,
0,
14,
-23,
-35,
8,
-8,
28,
-33,
-25,
-104,
22,
27,
20,
-23,
-6,
-72,
-2,
37,
-26,
-25,
13,
-31,
10,
11,
-25,
20,
-11,
0,
22,
28,
-13,
-28,
18,
47,
12,
9,
-3,
35,
-8,
-26,
8,
-42,
2,
73,
-42,
48,
-10,
59,
-17,
-42,
7,
-14,
9,
-4,
-6,
-2,
-18,
3,
38,
-9,
0,
-4,
-18,
-7,
-18,
-29,
6,
-80,
42,
-22,
0,
-23,
-28,
28,
24,
-25,
-25,
-49,
-11,
15,
8,
-45,
8,
14,
-54,
5,
-60,
-4,
-10,
10,
49,
-76,
-34,
15,
21,
2,
-13,
53,
7,
-19,
69,
37,
-24,
-3,
-30,
-48,
-21,
12,
12,
-1,
68,
-7,
3,
-26,
27,
-38,
2,
-14,
-73,
-18,
-61,
7,
6,
17,
-20,
-8,
26,
-14,
-12,
26,
-24,
-27,
9,
42,
-50,
29,
15,
-6,
50,
44,
0,
14,
-25,
50,
25,
16,
13,
22,
-9,
40,
0,
-41,
-15,
22,
0,
67,
105,
91,
15,
-47,
65,
-72,
-23,
38,
-58,
17,
-4,
10,
-12,
46,
14,
-16,
4,
-25,
36,
-12,
-38,
47,
-24,
35,
-14,
26,
2,
-8,
3,
11,
56,
29,
20,
70,
8,
20,
-58,
29,
-10,
28,
47,
1,
-28,
7,
-43,
-16,
72,
-2,
14,
-15,
0,
0,
-19,
-12,
-62,
-23,
-5,
45,
15,
55,
-40,
-21,
5,
2,
1,
6,
-13,
-15,
17,
-2,
7,
-40,
-74,
-32,
-26,
41,
30,
-33,
-27,
26,
-20,
53,
5,
-5,
-64,
-1,
-4,
19,
52,
72,
-63,
1,
0,
17,
-20,
13,
-15,
44,
5,
-31,
-84,
48,
-15,
50,
-23,
1,
-34,
-35,
-4,
-23,
-33,
-18,
-17,
-61,
-4,
16,
-66,
40,
-8,
13,
6,
28,
-7,
-26,
-13,
-9,
-14,
-5,
8,
-9,
68,
-41,
-54,
20,
3,
-32,
-1,
31,
1,
51,
-17,
18,
0,
20,
-45,
24,
21,
-2,
-13,
24,
-16,
1,
15,
-2,
1,
-22,
-25,
-19,
40,
2,
-37,
15,
-9,
-25,
3,
-2,
40,
21,
30,
-82,
66,
25,
18,
43,
-22,
-1,
-47,
35,
-22,
-30,
39,
79,
-23,
-53,
73,
8,
-17,
-60,
21,
-47,
-25,
-69,
11,
50,
36,
-17,
-6,
66,
-62,
17,
-22,
14,
18,
15,
46,
39,
21,
-3,
-50,
-29,
9,
-6,
-38,
-12,
26,
-40,
-4,
26,
-4,
35,
24,
-15,
2,
-31,
41,
-20,
-12,
3,
19,
21,
-66,
-12,
-8,
-16,
-14,
-13,
13,
-29,
-14,
22,
-35,
2,
5,
-42,
-1,
50,
4,
1,
-64,
25,
20,
24,
16,
-26,
-34,
7,
-6,
-5,
-10,
-8,
-48,
-27,
-5,
-14,
-32,
21,
-39,
23,
-9,
43,
-11,
12,
33,
24,
-23,
8,
35,
22,
14,
9,
26,
-23,
22,
-9,
-7,
-8,
-6,
31,
-17,
80,
7,
-1,
-41,
47,
0,
63,
-14,
-47,
-1,
33,
-3,
12,
-30,
31,
-39,
-45,
-5,
-20,
20,
-3,
-24,
9,
45,
36,
32,
70,
8,
-45,
-25,
-52,
33,
-21,
28,
-15,
-22,
-80,
-36,
-18,
18,
11,
-52,
12,
-10,
-28,
44,
-55,
-15,
3,
-14,
40,
27,
37,
1,
15,
3,
-3,
60,
-4,
11,
-16,
-60,
-21,
6,
32,
-51,
-22,
-34,
11,
7,
14,
10,
45,
27,
-41,
-25,
32,
26,
6,
-30,
15,
-45,
-54,
74,
44,
42,
-2,
0,
48,
-26,
-14,
-6,
64,
15,
14,
11,
55,
18,
-26,
29,
-23,
27,
-17,
3,
-12,
-45,
-48,
56,
32,
-28,
-7,
0,
-7,
31,
-29,
9,
37,
5,
39,
-5,
-55,
-57,
-18,
-9,
-15,
43,
-53,
-17,
11,
39,
17,
21,
-52,
35,
-44,
0,
-43,
-26,
11,
28,
7,
25,
-27,
-7,
84,
-40,
-60,
22,
-3,
-33,
-53,
-61,
-41,
-5,
68,
-10,
28,
-4,
36,
16,
-43,
25,
-43,
-16,
-62,
30,
-22,
52,
0,
-18,
-25,
48,
0,
17,
2,
-3,
0,
-35,
2,
-13,
-23,
-67,
7,
25,
-38,
-39,
-22,
18,
-81,
-18,
-30,
17,
24,
65,
-49,
19,
-30,
68,
-20,
-21,
-4,
5,
26,
-33,
-10,
-1,
31,
37,
-1,
-17,
33,
-1,
-45,
-5,
1,
-9,
15,
-23,
56,
-26,
5,
17,
-4,
-4,
8,
-35,
-46,
42,
-10,
7,
-22,
60,
3,
-58,
0,
-23,
-17,
-15,
-51,
58,
-2,
3,
-6,
-26,
-36,
12,
2,
12,
13,
-45,
68,
50,
3,
38,
-35,
-52,
-53,
-15,
0,
16,
0,
37,
8,
4,
-24,
-21,
0,
-12,
-34,
0,
-44,
-2,
8,
2,
0,
8,
45,
-41,
14,
52,
-44,
-31,
-3,
-43,
18,
-5,
-12,
33,
-31,
9,
61,
-63,
-1,
-33,
22,
45,
42,
-38,
17,
7,
-37,
10,
4,
6,
0,
-4,
16,
110,
-11,
-25,
-33,
-19,
8,
-27,
11,
36,
13,
-38,
8,
31,
-41,
-27,
-50,
43,
23,
-6,
-29,
37,
12,
-42,
22,
-11,
-12,
-42,
-40,
37,
-2,
-8,
-31,
33,
55,
-78,
41,
29,
-36,
-29,
-14,
16,
10,
3,
-36,
-26,
40,
18,
-10,
37,
9,
42,
-16,
-29,
46,
-50,
-22,
31,
5,
4,
-50,
-21,
14,
-12,
53,
38,
50,
-9,
-43,
3,
28,
51,
-26,
17,
54,
-33,
12,
14,
11,
29,
0,
-20,
-19,
36,
7,
3,
13,
-78,
-33,
35,
15,
-20,
-33,
-16,
-12,
-30,
-10,
-36,
-65,
36,
30,
-6,
-13,
-28,
0,
-7,
35,
67,
89,
-1,
22,
-44,
-23,
10,
7,
23,
10,
25,
25,
-10,
44,
11,
-16,
-8,
-18,
-60,
-27,
-1,
2,
17,
-24,
25,
0,
64,
-23,
-36,
-28,
-58,
22,
52,
5,
-1,
9,
-13,
11,
23,
-26,
67,
-11,
62,
-2,
-10,
0,
7,
-9,
34,
-14,
18,
12,
63,
-2,
-24,
-10,
-35,
49,
44,
-1,
-9,
-21,
-14,
54,
50,
40,
39,
-61,
-41,
24,
-19,
5,
24,
60,
53,
16,
51,
36,
21,
-28,
-18,
23,
25,
-21,
25,
-30,
23,
6,
-5,
-10,
-47,
35,
-50,
1,
19,
-14,
18,
19,
50,
36,
-26,
45,
-11,
50,
-36,
-22,
15,
0,
-22,
-12,
-82,
15,
-24,
-25,
-31,
-10,
45,
40,
-10,
-35,
-25,
16,
-24,
17,
-45,
-26,
17,
-4,
14,
42,
-51,
54,
5,
1,
28,
-31,
-43,
39,
9,
-46,
-39,
-21,
-17,
2,
-43,
14,
-44
] |
MR. CHIEF JUSTICE ADAIR:
Portus Frank Winter was accused, tried bj a jury, convicted and sentenced in the district court of Gallatin County, Montana, for selling beer to a seventeen-year old boy. This appeal is from the judgment of conviction and order denying Winter a new trial.
By information filed in the district court of Gallatin County, Montana, the defendant, Portus Frank Winter, was accused of the crime of misdemeanor in that said defendant, at Karst’s Kamp on Highway 191 near Gallatin Gateway, in the County of Gallatin, State of Montana, on or about the 8th day of May 1953, did unlawfully sell to a specifically named boy then “a minor of the age of seventeen (17) years, one bottle of beer All of which is contrary to the form, force and effect of the statute in such, case, made and provided and against the peace and dignity of the State of Montana.” The information was signed by the county attorney and had the names of six witnesses for the state endorsed thereon.
The defendant Winter, accompanied by his counsel, appeared in open court, — waived the reading of the above information, a true copy whereof was then and there delivered to him— waived time in which to plead and entered a plea of not guilty.
Thereafter on duly noticed motion of the county attorney, over defendant’s objections and after hearing oral arguments of counsel for both the state and the defendant thereon, the district court granted leave to endorse upon the information the name of Peter Karst as an additional witness for the state and also granted leave to amend the information by writing and inserting after the word “beer” and before the word “All” in the above quoted portion of the information the following italicized words, namely: “the said Portus Frank Winter bemg then and there an employee of Peter F. Karst, said Karst being then and there a retail beer dealer licensed under the laws of the State of Montana.”
Defendant specified as error the action of the court in allowing the above amendments. The amendments were made well in advance of the trial. They caused no delay of the trial. There is no evidence of any bad faith on the part of the county attorney, — the defendant suffered no prejudice therefrom and we find no abuse of discretion on the part of the trial judge in allowing the amendments. R. C. M. 1947, section 94-6207; State v. Calder, 23 Mont. 504, 507, 59 Pac. 903; State v. Biggs, 45 Mont. 400, 403, 123 Pac. 410; State v. Harkins, 85 Mont. 585, 281 Pac. 551.
“Any person who shall sell, give away or dispose of intoxicating liquors to any person under the age of twenty-one (21) years” commits an offense and violates the law, R. C. M. 1947, section 94-35-106, and the phrase “intoxicating liquor” includes beer, R. C. M. 1947, section 94-35-107. It matters not whether the defendant Winter was employer or employee, — whether he worked for Peter F. Karst or anyone else, — whether he or Karst or anyone else had a retail beer license, — whether he was winter keeper, horse wrangler, watchman, bartender, guest or intruder, the fact remains that both before and after the amendment of the information Winter was a person and the one and only person accused of the offense of selling beer to the named minor being the one and only offense charged. Clearly the information was sufficient both before and after its amendment. We consider the added italicized words to be mere surplusage. Compare State v. Gaffney, 106 Mont. 310, 312, 77 Pac. (2d) 398; 42 C. J. S., Indictments and Information, section 250, page 1266, and cases cited including State v. Finley, 72 Mont. 42, 46, 231 Pac. 390; Commonwealth Public Service Co. v. City of Deer Lodge, 96 Mont. 15, 21, 28 Pac. (2d) 472; Fitzpatrick v. Stevenson, 104 Mont. 439, 444, 67 Pac. (2d) 310; People v. McInerney, 30 Cal. App. 283, 158 Pac. 128.
The defendant interposed a demurrer to the information as amended, urging as grounds that it appears from the face thereof : (1) That the district court has no jurisdiction of the offense charged; (2) that the amended information does not substantially conform to the requirements of It. C. M. 1947, sections 94-6403, 94-6404 or 94-6405; (3) that more than one offense is charged therein; (4) that the facts therein stated do not constitute a public offense and (5) that the amended information contains matter which, if true, constitutes a legal bar to the prosecution. After a hearing had thereon the defendant’s demurrer was disallowed.
Defendant contends that the amended information is insuffieient in that it fails to allege the percentage of the alcohol in the beer which he is accused of having sold to the minor but we find no merit in the contention. R. C. M. 1947, section 94-35-107, defines “intoxicating liquor” and it includes beer without stating the percentage of alcohol therein. Under the provisions of R. C. M. 1947, section 94-35-106, the amended information was sufficient without alleging the percentage of the alcohol in the beer sold. Compare 30 Am. Jur., Intoxicating Liquors, section 382, page 460; Welsh v. State, 126 Ind. 71, 25 N. E. 883, 9 L. R. A. 664; State v. Sedlacek, 74 Mont. 201, 205, 239 Pac. 1002; State v. Miller, 69 Mont. 1, 220 Pac. 97.
Following the overruling of defendant’s demurrer the case came on for trial at the outset whereof the defendant again challenged the sufficiency of the information as amended by objecting to the introduction of any evidence urging all the grounds theretofore urged in his demurrer. The objections were overruled and the cause proceeded to trial before the court and a jury.
Six witnesses were called and testified on behalf of the state and the state rested its case in chief whereupon defendant’s counsel moved for a directed verdict grounded upon the claimed insufficiency of the state’s evidence which motion was denied.
After calling and examining three witnesses the defendant rested his case and the court then proceeded to settle the instructions.
Defendant specifies as error the giving, over his objections, of the court’s instruction No. 26 which reads:
“You are instructed that under the law of the State of Montana any person who shall sell, give away or dispose of intoxicating liquor to any persons under the age of twenty-one (21) years, shall for the first offense be subject to punishment not exceeding five hundred dollars ($500.00) fine or by imprisonment not to exceed six (6) months in the county jail, or by both such fine and imprisonment * * * ”
The above is merely a statement of those provisions of section 1 of Chapter 143, Laws of 1949 (now R. C. M. 1947, section 94-35-106, Yol. 8, Cumulative Pocket Supplement to Revised Codes of 1947) pertinent to this particular case. Defendant objected to the instruction upon the ground “that the State of Montana has heretofore set forth the prosecution was under the provisions of Section 4-330, as amended by Chapter 166, Session Laws of 1951, that that was the law then and there applicable on the 8th day of May, 1953; that this is an attempt to define the first time punishment in an offense under a different
statute; it’s in violation of the Constitutional rights and Statutory rights guaranteed to a defendant by the Laws of the State of Montana.”
Instruction No. 26, supra, correctly states the law here applicable and the trial court’s ruling disallowing defendant’s objections was correct.
After being instructed by the court, — -hearing the arguments of counsel and considering the evidence, the jury returned its verdict finding the defendant guilty and leaving his punishment to the court. Defendant’s counsel thereupon interposed a motion in arrest of judgment which motion was disallowed and defendant was sentenced to serve 15 days in the county jail and to pay a $500 fine.
Defendant made a motion for a new trial which was disallowed whereupon he appealed to this court listing and arguing nineteen separately numbered specifications of error.
Defendant here contends that the trial court committed error: (1 and 15) In allowing the amendment of the information; (2) in disallowing defendant’s objection to the introduction of any evidence in the case; (3) in overruling the demurrer to the amended information; (4) in denying defendant’s motion for dismissal of the case made at the close of all the state’s evidence; (5) in disallowing defendant’s motion in arrest of judgment; (6) in refusing to grant a new trial; (7) in ruling that the district court had jurisdiction of the offense charged; (8, 9 and 14) in allowing defendant’s prosecution and in sustaining his conviction; (10 and 11) in pronouncing sentence on defendant under B. C. M. 1947, section 94-35-106, as amended and (12 and 13) in giving the court’s instruction No. 26, supra. Finally in his specifications Nos. 16, 17, 18 and 19 the defendant contends that the verdict rendered by the jury in his case was contrary to: (a) the law; (b) the court’s instructions and (c) the evidence, and (d) that such verdict was based upon conjecture, surmise, bias and prejudicial statements and evidence aliunde the record.
State’s Evidence. The state’s evidence is undisputed. It is to the following effect.
Friday, May 8, 1953, was what is known as “Ditch Day” in the Gallatin County High School at Bozeman and it was observed by members of the senior class with a class picnic held at Old Faithful in Yellowstone National Park. On the way home from such picnic four teen-aged boys stopped their automobile at Karst’s Kamp on highway 191 in Gallatin County.
At that time the state’s witness, Peter F. Karst, was the owner of said Karst’s Kamp where he engaged in the retail beer and liquor business pursuant to the authority conferred upon him by retail beer license No. 839 and retail liquor license No. 839 issued to him by the Montana state liquor control board for the fiscal year commencing July 1, 1952, and ending July 30, 1953.
One of the buildings at Karst’s Kamp housed a coffee shop, —a dining room and a kitchen. In the coffee shop and at the rear thereof was the Karst Kamp bar. Upon walking into the building from highway No. 191, one would first enter the combination coffee shop and bar, — next the dining room and finally the kitchen.
Upon leaving their automobile the four high school students walked through the coffee shop to the rear thereof where they observed the defendant Portus Frank Winter behind the bar.
The witness Peter F. Karst testified that at the time the youths drove up the witness Karst was about two or more hundred feet away from the building housing his bar; that he was then engaged in cutting and piling wood and that he saw the youths stop. Karst testified: “They said they wanted some sandwiches and they went in the building; they did, yes.”
Upon entering the building three of the boys stopped at the bar where they were served beer by the defendant Portus Frank Winter.
The fourth youth, being the driver of the automobile in which all were travelling, walked past the bar and into the kitchen where he ordered and obtained a ham sandwich. Upon being handed the sandwich he returned to the bar where he ate it and where he observed, the other three boys “having their beer on the bar.” He testified: “I went in there and ate my sandwich and they wanted one so I went back to the kitchen and got them one. * * * I was in the kitchen most of the time. They said they’d like one. I think I asked them if they wanted one.”
On further questioning the witness testified:
“Q. Do you know Mrs. Karst? A. Yes. I have seen her.
“Q. Did you see her and talk to her? A. She brought — she was in the kitchen and I talked to her for a minute when I got the sandwiches.
“Q. Did you see any of the other boys talking to her? A. If I recall she came out when we were sitting there before we got ready to leave.
‘ ‘ Q. Do you remember them visiting quite a bit with her ? A. Just talking with her.
“Q. Wasn’t anybody else around to visit with was there? A. There was two or three other people there but I think on the other side or other part of the bar.
“Q. Strangers? A. Strangers to me.”
The minor named in the information as the one to whom the defendant Winter is accused of having sold beer on May 8, 1953, testified that he was born May 15, 1935; that on the day charged in the information he and his three classmates were in the bar at Karst’s Kamp at which time and place the defendant Winter sold and served beer to him.
The record of his testimony at the trial is, in part, as follows :
Q. * * * were you at the Karst Ranch or Kamp in Gallatin Canyon, in Gallatin County, situated right off Highway No. 191, on the 8th day of May, 1953? A. I was. * * *
‘ ‘ Q. Did you at that time and place go within the bar premises at the Karst Kamp? A. Yes, we did.
“Q. Did you see a man there at or near the bar? A. Yes.
“Q. Did you — Was he at any time on that date behind the bar? A. Yes.
“Q. And do you know who that man was? A. Yes.
“Q. Who was he? A. It was Portns Winters.
“Q. Do yon see Portus Winters in the courtroom? A. Yes.
“Q. * * * did you have any beer at the Karst bar, the place where you have just mentioned in your testimony? A. Yes.
“Q. On the 8th day of May, 1953? A. Yes.
“Q. And how did you obtain that beer? A. I just asked for it and paid for it.
“Q. Who did you ask for the beer * * *? A. Mr. Winter.
“Q. And Mr. Winter served you the beer then, did he? A. Yes.
“Q. And you paid him for the beer? A. Yes, I did. * * *
“Q. * * * had you seen Mr. Winter before that day? A. Yes, I had.
“Q. About what time was that? A. Oh. I don’t know, I’d been up there two or three times before.
“Q. Had you had conversations with Mr. Winter prior to the 8th of May, 1953? A. Yes.”
The testimony of the above witness was fully corroborated by that of his three companions, each of whom appeared and testified as witnesses for the state. Bach testified that at the time in question he was a minor. Bach testified that the driver of the automobile in which all were travelling drank no beer but that on May 8, 1953, each of the other three obtained beer at the Karst Kamp bar from the defendant Winter who was the bartender there at that time.
At the trial the youth who drove the automobile pointed out the defendant Winter as the man he saw tending bar when the boys entered the tavern on May 8, 1953, and he testified that he there observed the other three boys having their beer on the bar.
The defendant Winter did not take the witness stand nor was any evidence introduced that in wise or manner refutes or contradicts the proof so submitted by the state.
The evidence stands undisputed that on the day charged the defendant did sell beer to the minor named in the information. Thereby did defendant violate E. C. M. 1947, sections 94-35-106 and 94-35-106.1.
The record shows that at the trial the state’s witness Peter F. Iiarst, in part, testified:
“Q. And on May 8, 1953, you were a licensed beer retailer at the Karst Kamp in Gallatin County, is that right? A. Yes, sir; that’s right.
“Q. Mr. Karst, were you at the Karst Kamp on May 8, 1953? A. Yes. I was there.
“Q. Did you have in your employ on that day one Portus Frank Winter? A. Well, he was there but he was not employed at the time.
“Q. Mr. Karst, was he doing any work about your premises at the Karst Kamp on May 8, 1953? A. Well, he had his own business to tend to but whatever there was done, why, he would do. * * *
“Q. Mr. Karst, you have testified that whatever there was done he would do. What were those things? A. Well, that was hard to tell. He was winter keeper up there and took care of his own business. I was gone a good deal of the time.
“Q. Mr. Winter was a winter keeper? A. Yes.
“Q. What is involved in the work of a winter keeper? A. Well, there wasn’t anything involved excepting that people come along and wanted gas, why, there was somebody there to take care of it.
“Q. That was at your camp, the Karst Eanch? A. That’s right.
“Q. You had a gas pump there did you, sir? A. Yes.
“Q. And if he sold any gas that would be for you would it? A. Yes.
‘ ‘ Q. How long, Mr. Karst, did Mr. Winter serve at the Karst Kamp as winter keeper with reference to the— A. Well, we had made kind of a proposition by which he would be the winter keeper and he started right after the hunting season and kept on through until the 1st of June. * * *
“Q. Mr. Karst, did Mr. Winter have a right to be in and about other premises besides the gas pump? A. Why, yes, he had access to all of the buildings at that time to take care of them or to look after them. Whatever happened, in case of fire or robbery or something like that.
“Q. That was likewise at the Karst Kamp was it? A. Yes, sir.
“Q. Mr. Karst, when you say he had access to all of the buildings, would that include the bar premises that you say you conducted at the Karst Kamp? A. Yes.
“Q. He had a right to be there too? A. Oh, yah.
“Q. Mr. Karst, did he, did Mr. Winter act as your bartender during that period of time sometimes?
“Mr. Bohart: To which I object upon the ground and for the reason that this is incompetent, irrelevant and immaterial; the proper foundation has not been laid.
“The Court: Overruled.
“Q. You may answer? A. Well, you know, he’d do whatever there was to do. If there was anything around there to do, why, he’d do it as it happend. I wasn’t there. Whenever somebody comes, why, he would be there and take care of it. * * *
“Q. If there were some bartending to do he would do the bartending too, would he? A. Yes, sir.
“Q. And he did on occasions during the period of time that you have mentioned in your testimony? A. Yes, sir.
“Q. Was Mr. Winter paid anything for the service of winter keeper? A. Well, no, there was no pay only he was to get the horses the nest spring starting sometime in May; had the concession of the camp. * * *
“Q. Were you in the bar premises at the Karst Ranch or Kamp on May 8, 1953? A. No, I was not. * * *
“Q. Do you know whether Mr. Winter was in your bar on May 8, 1953, at the Karst Kamp? A. Well, I think — I was not in the bar, no; I was outside.
“Q. You were outside where? A. Oh, I was about two or three hundred feet away from there piling wood and cutting wood.
“Q. And was Mr. Winter in the bar on that date, May 8, 1953? A. I think he was.
“Q. He was in the bar while you were outside cutting wood, on that date? A. Yes, sir. * * *
“Q. The bar premises at the Karst Kamp were open of' course? A. Well, yes * * *
“Q. He [Winter] was obligated to act as your winter keeper was he not, Mr. Karst? A. Well, he took care of it as-the winter keeper would. If there was any snow to shovel,, why, he’d maybe do it. It was up to him to do it if he wanted.
‘ ‘ Q. And you expected him to do it while you were absent or away from the premises? A. Yes, I had much faith in him, I knew he’d do it.
‘ ‘ Q. He stood in your place as to things that had to be done-when you were away, is that true? A. His what?
“Q. He took your place as to things that had to be done while you were absent or away, did he? A. Yes.
“Q. Including tending the bar if anyone dropped in? A, Yes.”
The evidence supplied by the six witnesses who testified on behalf of the state is ample to establish the offense of unlawfully selling beer to the named seventeen-year old boy as is alleged in the information.
In his objection to the introduction of any evidence in the case defendant’s counsel also stated that, “at the time of the; amending of the information in this case over the objection of the defendant the county attorney assured the court that thig‘ was a prosecution under the provisions of section 4-330, as amended.” The state’s brief herein denies that the county attorney so assured the trial court and we find no such statements or remarks of the county attorney in the record before us.
In State v. Tursich, 127 Mont. 504, 267 Pac. (2d) 641, 643, this court said: “In 27 Am. Jur., Indictments & Informations, section 99, page 659, it is said: ‘An indictment which properly charges an offense under a statute is good, although the of fense charged is not the one which the prosecuting attorney liad 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.”
Whether the defendant Winter was an employee of Peter F. Karst or merely an accommodating neighborly fellow residing at the Karst Kamp and tending bar there without compensation is wholly immaterial for if he sold beer to the named minor as charged he thereby violated the law and committed the ■offense charged against him in the original information and also in the information as amended. See R. C. M. 1947, sections '94-35-106 and 94-35-106.1, supra.
Under the above statutes the selling to the minor was an offense without regard to whether the defendant had license to sell •or not. Compare Commonwealth v. Vaughn, 101 Ky. 603, 42 S. W. 117, 45 L. R. A. 858.
Defendant’s counsel contends “that the District Court did not have jurisdiction to try the defendant * * * in an original proceeding for a misdemeanor for the reason that original jurisdiction of the District Court under the Statute [section 94-35-106] which the State was prosecuting no longer existed by virtue of the passage of Chapter 71, Session Laws of 1953, which repealed all other laws in conflict therewith.”
R. C. M. 1947, section 94-35-106, supra, was amended by ■Chapter 143, Laws of 1949, the second section whereof (section '94-35-106.) provides: “Section 2. In cases of prosecution for first offenses under this act, the justice courts and district •courts of the State of Montana shall have concurrent original .jurisdiction. In all other cases the district courts of the State of Montana shall have exclusive original jurisdiction for violation of the provisions of this act. ’ ’
Chapter 71, Laws of 1953, enacted by the Thirty-third Legislative Assembly, 1953, R. C. M. 1947, section 4-413, fails to prescribe or fix a time whereon the act shall take effect, hence it did not take effect until July 1, 1953, under R. C. M. 1947, section 43-507, which provides: “Every statute, unless a dif ferent time is prescribed therein, takes effect on the first day of July of the year of its passage and approval.”
The information charges and the evidence shows that the offense of which defendant stands convicted was committed on May 8, 1953, being prior to July 1, 1953, the effective date of Chapter 71, Laws of 1953.
R. C. M. 1947, section 43-514, provides: “The repeal of any law creating a criminal offense does not constitute a bar to the indictment or information and punishment of an act already committed in violation of the law so repealed, unless the intention to bar such indictment or information and punishment is. expressly declared in the repealing act.”
Under the provisions of R. C. M. 1947, sections 43-507 and 43-514, supra, the provisions of Chapter 71, Laws of 1953, have no application whatever to the offense for which defendant was convicted, which offense had already been committed prior to the effective date of Chapter 71, Laws of 1953.
Defendant contends that R. C. M. 1947, section 4-330, as amended by Chapter 166, Laws of 1951, repealed section 94-35-106, supra.
Chapter 166, Laws of 1951, pages 324-335, in its title and also in section 12 thereof, expressly enumerates and lists the' various sections of the Codes that the legislature intended to. repeal and section 12 of the Act also provides: “All acts and parts of acts in conflict herewith are hereby repealed.” Had it been the intent to also repeal section 94-35-106, supra, the Act would have so stated and this it did not do. The sections of the Codes that are enumerated and listed as repealed or amended are all sections of the Montana Beer Act being Chapter 3 of Vol. 1, Revised Codes of Montana of 1947, at pages 563 to 581, containing sections 4-301 to 4-356, inclusive.
There is nothing in either the title or the Act itself to suggest that in enacting Chapter 166, Laws of 1951, it was the intent of the legislature to repeal section 94-35-106, hence if this penal statute be repealed it is only by implication and in this jurisdiction it is well settled that repeals by implication are not favored. Tipton v. Sands, 103 Mont. 1, 14, 60 Pac. (2d) 662, 106 A. L. R. 474; Fletcher v. Paige, 124 Mont. 114, 119, 220 Pac. (2d) 484, 19 A. L. R. (2d) 1108.
Defendant relies very strongly upon the case of State v. Holt, 121 Mont. 459, 194 Pac. (2d) 651, decided in 1948, but the very next legislature dispelled all doubt as to its intent by promptly enacting Chapter 143, Laws of 1949, now appearing in the Cumulative Pocket Supplement to Yol. 8 of the Revised Codes of Montana of 1947, as sections 94-35-106 and 94-35-106.1, whereby original jurisdiction of the offense of selling of intoxicating liquor to any minor is expressly conferred upon the district courts of the state.
Likewise the Montana Beer Act, being section 48 of Chapter 106, Laws of 1933, as amended by section 16 of Chapter 46, Laws of the Extraordinary Session of 1933 and now R. C. M. 1947, section 4-344, expressly confers upon the district courts concurrent original jurisdiction with justice courts in prosecutions for violations of such Act.
Defendant complains of the absence of evidence as to the alcoholic content of the beer sold. When used in its ordinary acceptation and without qualification, as here, the term “beer” implies a malt liquor and an intoxicating beverage which is recognized as an article of commerce made and used in most of the European countries as well as in America. 30 Am. Jur., Intoxicating Liquors, section 8, pages 256, 257.
R. C. M. 1947, section 94-35-106, makes it a crime and fixes the penalty for selling, giving away or disposing of intoxicating liquors to any person under the age of twenty-one years and R. C. M. 1947, section 94-35-107, provides that the phrase “intoxicating liquor shall be construed to include alcohol, brandy, whiskey, rum, gin, beer, ale, porter and wine without fixing any percentage of alcohol that the said above named liquors and beverages including beer should contain in order to constitute an offense. Clearly the information herein sufficiently charges and the evidence is ample to show an offense without any showing as to the percentage of alcohol contained in the beer that was sold and supplied to the minor named in such information.
Briffitt v. State, 58 Wis. 39, 16 N. W. 39, 40, 46 Am. Rep. 621, holds that upon the trial of the defendant charged with having sold intoxicating liquors without a license when a witness uses the word “beer” in his testimony the court will take judicial notice that the witness means a malt and an intoxicating drink. The Supreme Court of Wisconsin said:
“When the question was asked whether malt is used in ordinary beer, the court said: ‘I do not think it is necessary. I think a man must be almost a driveling idiot who does not know what beer is. I do not think it necessary to prove what it is.’ The charge of the court on the same subject was substantially of the same import. It was proved that the defendant had sold ‘beer.’ * * *
“ * * * malt liquor, as ale or beer, was made and used as a beverage before the time of Herodotus, and has continued to be made and used all along down the ages, and in various countries, until the present time. At the present time we all know that this malt liquor, under the generic name of 'beer,’ is made and used in most of European countries, and in our own, and is a common beverage. As long as laws for licensing the sale of intoxicating liquors have existed, brandy, whisky, gin, rum, and other alcoholic liquids have been held to be intoxicating liquors per se; and why? Simply because it is within the common knowledge and ordinary understanding that they are intoxicating liquors. By this rule of common knowledge courts take judicial notice that certain things are verities, without proof; * * * . If a witness on the stand were asked whether whisky is intoxicating, he would be apt to smile as at a joke, and an intelligent witness, when asked the same question in relation to beer, might smile with equal reason. * * #
“# * # js true that, to a limited extent, there are other kinds of beer, or of liquor called beer, such as small beer, spruce beer, ginger beer, etc.; but such definitions are placed as remote and special, and not primary or general. So it may be said of other substances having a common name and meaning, such as milk or tea. * * * When asked to take a drink of milk or cnp of tea, it would not be necessary to prove wbat it meant. Why is it more necessary to prove what is meant by a glass or drink of beer? When beer is called for at the bar, in a saloon or hotel, the bartender would know at once, from the common use of the word, that strong beer — a spirituous or intoxicating beer —was wanted; and if any other kind was wanted, the word would be qualified, and the particular kind would be named, as root beer or small beer, etc. When, therefore, the word ‘beer’ is used in court by a witness, the court will take judicial notice that it means a malt and an intoxicating liquor, or such meaning will be a presumption of fact, and in the meaning of the word itself there will be prima facie proof that it is malt or intoxicating liquor that is meant.
“When the witnesses in this case testified that the defendant sold to them beer, the prosecution had sufficiently proved that he had sold to them a malt and intoxicating liquor, for both qualities are implied in the word ‘beer.’ ” Compare 48 C. J. S., Intoxicating Liquors, section 1, page 135; People v. Rosseau, 100 Cal. App. 245, 279 Pac. 819; State v. McGregor, Iowa, 266 N. W. 22; State v. Schrader, 243 Iowa 978, 55 N. W. (2d) 232 at page 237; United States v. Standard Brewery, D. C., 260 F. 486, 487; State v. Li Fieri, 6 Boyce 597, 29 Del. 597, 102 A. 77; Moffitt v. People, 59 Colo. 406, 149 Pac. 104, 107; Hoskins v. Commonwealth, 171 Ky. 204, 188 S. W. 348; Barnett v. O’Connell, 279 App. Div. 449, 111 N. Y. S. (2d) 166, 167.
In Holmes v. Cavicchia, 29 N. J. Super 434, 102 A. (2d) 788, 789, it is said:
“As heretofore stated, the minors testified that they ordered beer by the glass and that in response to their orders Holmes served them and received payment. There is an implication that a purchaser has received that which he has ordered and paid for. [Citing authorities.]
“We are of the opinion that in this day and age where through the mediums of radio, television, magazines, newspapers and other propagandizing facilities, the public is introduced to the sensual experiences o£ the advertised article and, in particular, beer and other alcoholic beverages, the listening, viewing and reading public become aware of these products quite early in life. In addition, we would expect that the minors, in the matter sub judioe, being normally subjected to the aforementioned mediums and having been frequenters of appellants’ tavern on prior occasions and being known to the bartender, were not unaware of beer nor hampered in their ready recognition that the beverage received was that advertised and generally known to be beer.
“The fact that ‘beer’ is presumed to contain alcohol is not a novel principle to the courts of this State. In the case of Murphy v. Inhabitants of Montclair Tp., 39 N. J. L. 673 (Sup. Ct. 1877), the issue was the alleged violation of statute prohibiting sale of ‘ale, porter, beer or other malt or spirituous liquors as a beverage,’ without a license. The court stated at page 675:
“ ‘The words “ale, porter, beer,” when used in statutes relative to licenses, have no uncertain meaning. Each means a certain liquor made from malt, containing a certain percentage of alcohol.
“ ‘Had the state of demand charged the sale of two glasses of porter, it would hardly have been seriously argued that an assertion that it was a malt or spirituous liquor, would have been essential. But it is said that beer may mean either a malt liquor or an innocent beverage, known as spruce beer, small beer, ginger beer, etc.
“ ‘I think there is nothing in this, for even if the court can judicially recognize the existence of the various distinctions in the quality of these beverages, yet the word “beer,” as here used, has a well-defined signification. The words “by night,” in the Crimes Act, (sec. 93,) have no more a distinctly ascertained meaning than either of these words, when used as here in an act concerning licenses.
“ ‘As there is no need of specifying that “by night” was meant the portion of the natural light within the twilights, (State v. Robinson, [35 N. J. L. 71] 6 Vroom [71] 73,) so, in this instance, there is no need of asserting that the word “beer” meant what the word usually implies when used in statutes to regulate the selling of malt or spirituous liquors. * * *’ [Citing authorities.]
“We find decisions holding that technical proof may be required to establish the alcoholic quantity of beer where there is evidence that the beverage was ‘qualified beer,’ i. e., spruce beer, small beer, ginger beer, near beer, and the like but where there is no evidence that the beverage is other than that generally known as ‘beer’ the courts have held the implied alcoholic character to be recognized and judicially noticeable. [Citing authorities.] ”
In support of his motion for a new trial the defendant filed the affidavits of his counsel and of two of the jurors who tried his case.
The affidavit of the juror Lois Lylan Schauer states that she believed the verdict of guilty so returned was contrary to the facts and the instruction; that one of the jurors, when sworn was biased and prejudiced against the defendant and that “immediately upon retiring to the jury room, such juror declared that her mind was made up.” Of course at the time the jurors were allowed to retire to the jury room to consider their verdict they had heard all the evidence in the case as well as the arguments of counsel and the instructions of the court and they were in a most advantageous position to have and to express their reactions, opinions and conclusions drawn from and shown by the undisputed evidence which the state’s witnesses had given during the trial.
The affidavit of the juror, Mila Church, states that one of the jurors who voted “guilty” was prejudiced against the defendant because a teen-aged son of such juror had recently been in difficulty in school because someone had sold the youth beer and that this boy’s mother greatly influenced the other jurors to return a verdict of guilty. By such affidavit Juror Church plainly shows that she voted “not guilty” and that she was doing her utmost to aid the defendant and his counsel to procure a new trial. Such affidavits so setting forth speculations, conjectures and conclusions as to why the defendant was not acquitted are clearly insufficient to warrant the granting of a new trial. Compare Le Grand v. U-Drive It Co., Mo., 247 S. W. (2d) 706, 712; McDonald v. F. W. Woolworth, 66 R. I. 488, 20 A. (2d) 250, 251; 81 C. J. S., Speculation, page 815.
Eight jurors concurring were sufficient to find a verdict in this case. R. C. M. 1947, section 94-7002. The record shows that ten jurors voted “guilty” while only two voted “not guilty.” Thus, two more than the required number voted for the verdict of guilty.
In State v. Mott, 29 Mont. 292, 307, 74 Pac. 728, 733 (cited and followed in State. v. Poole, 68 Mont. 178, 194, 216 Pac. 798, and State v. Ingersoll, 88 Mont. 126, 130, 292 Pac. 250), this court said:
“In this case the district judge heard the voir dire examination of the juror; observed his demeanor while testifying, as well as during the trial of the case; passed upon the affidavits filed on behalf of the defendant and on the part of the state; and overruled the motion for a new trial. In the light of the statute and of the showing made upon this appeal, we cannot say the court erred.
“While it is imperative that the accused shall have a trial by an impartial jury, the mere possibility or even probability that one of the jurors was incompetent is not sufficient to overturn the verdict. After verdict the accused has the laboring oar. ‘Error will not be presumed. It must be affirmatively made out.’ People v. Scott, 56 Mich. 154, 22 N. W. 274. A trial having been had under the rules prescribed by law, the presumption is in favor of its validity. In passing on a motion for a new trial based upon the alleged incompetency of a juror, the lower court is called upon to exercise a sound legal discretion. In the absence of a clear showing of error in this regard, the appellate court will not interfere.”
The trial judge heard the voir dire examination and was familiar with the conditions which obtained at the trial. The motion for a new trial and the affidavits filed therewith were insufficient to warrant a new trial under the provisions of section 94-7603, R. C. M. 1947, which section is the same as section 1181, Cal. Pen. Code. See also 23 C. J. S., Criminal Law, section 1446 b (1), page 1171, and cases cited.
In People v. Galloway, 202 Cal. 81, 259 Pac. 332, 336, the court said:
“We think the proper rule is this: That under section 1181, subd. 3, it is within the power of the trial court to grant to an accused a new trial because of misconduct of a juror whether such misconduct consists of a failure to disclose a prejudicial mind at the time he is sworn or whether such misconduct arises after he is sworn as a member of the trial jury, subject, of course, to the qualification that such misconduct will not be considered sufficient where the accused has failed to exercise diligence in the premises or has knowledge prior to the verdict of such misconduct; nor will it avail an accused when, from a consideration of the whole case, it can be seen that he has suffered no injury therefrom. * * * And as far as we can ascertain, the decisions of practically all of the states are to the same effect. Cases in states having statutes identical with our own and sustaining the conclusion herein announced are State v. Mott, 29 Mont. 292, 74 Pac. 728 * *
The trial court upon the record before it did not abuse its discretion in denying the motion for a new trial.
Appellant’s specifications of error have been carefully considered but we find no prejudicial error committed by the trial court. Accordingly the order denying a new trial and the judgment of conviction are affirmed.
MR. JUSTICES ANGSTMAN, ANDERSON and BOTTOM-LY, concur.
MR. JUSTICE DAYIS, not participating.
|
[
20,
13,
56,
14,
5,
-86,
-13,
76,
-89,
53,
-44,
-1,
33,
-18,
61,
-16,
1,
1,
43,
-25,
15,
-24,
-16,
40,
-22,
-4,
-48,
55,
-3,
-36,
15,
12,
-13,
-58,
-24,
29,
86,
-7,
39,
-10,
44,
-14,
32,
76,
1,
-39,
-37,
-16,
40,
1,
30,
-63,
44,
-10,
26,
-33,
2,
-9,
-11,
62,
-5,
45,
43,
-7,
54,
-60,
31,
-17,
-6,
3,
12,
-2,
-26,
22,
34,
-10,
-30,
-31,
-10,
35,
-24,
-3,
67,
22,
-8,
1,
-45,
10,
-11,
42,
26,
-49,
6,
-60,
12,
-8,
-18,
-14,
-32,
-32,
-24,
-65,
-9,
4,
32,
-24,
-62,
4,
-9,
55,
-21,
6,
52,
-31,
-10,
-29,
-12,
-31,
5,
-14,
36,
8,
29,
25,
-74,
-61,
-54,
3,
-5,
-44,
-14,
-34,
0,
31,
8,
40,
-34,
10,
-12,
-22,
22,
-41,
-1,
-7,
46,
31,
-13,
12,
3,
15,
-83,
-8,
32,
-6,
19,
11,
35,
-48,
-5,
-58,
16,
-26,
-4,
7,
56,
5,
-23,
-2,
-71,
-30,
-50,
9,
5,
33,
33,
22,
-2,
-56,
7,
93,
-20,
25,
72,
16,
-9,
63,
1,
-28,
24,
-32,
-27,
4,
15,
-9,
-36,
-21,
8,
6,
25,
-38,
-47,
20,
0,
22,
47,
-31,
-11,
-3,
23,
-21,
-7,
-41,
37,
-8,
17,
-16,
-28,
2,
-52,
-4,
-1,
-15,
8,
56,
-19,
-45,
25,
34,
-58,
-21,
-25,
5,
32,
22,
0,
-19,
-16,
-22,
-18,
65,
24,
-34,
-35,
-73,
29,
69,
-60,
-16,
-30,
34,
29,
-34,
-27,
12,
-10,
-30,
4,
-50,
-13,
12,
17,
-27,
52,
14,
-58,
50,
0,
-6,
7,
27,
-11,
-15,
75,
10,
-57,
12,
21,
9,
-2,
18,
29,
35,
9,
-46,
8,
13,
-40,
11,
-60,
-56,
-8,
36,
0,
-15,
37,
28,
-45,
-15,
-1,
-15,
9,
0,
7,
40,
-36,
-28,
-9,
-5,
17,
-12,
22,
-19,
-20,
-37,
-9,
19,
15,
-11,
69,
-9,
44,
-28,
22,
13,
14,
-20,
-17,
15,
25,
19,
2,
-18,
-35,
-24,
-55,
-50,
42,
16,
19,
50,
12,
17,
11,
19,
-45,
26,
23,
42,
-52,
-62,
-34,
-36,
104,
13,
-39,
37,
-60,
-28,
21,
-21,
8,
-45,
-34,
-17,
8,
1,
-46,
21,
-20,
-5,
-56,
21,
48,
-19,
-39,
-11,
-17,
-7,
-4,
19,
53,
-11,
-12,
9,
45,
49,
1,
-26,
-10,
15,
17,
3,
12,
7,
11,
0,
2,
-52,
38,
-35,
18,
-2,
62,
-43,
-35,
2,
27,
40,
0,
19,
67,
-30,
21,
0,
0,
27,
-6,
14,
-39,
25,
19,
21,
56,
-16,
31,
-95,
48,
32,
-13,
16,
9,
15,
-37,
46,
27,
-12,
1,
31,
21,
0,
-33,
0,
3,
-7,
73,
-38,
-23,
10,
35,
8,
8,
40,
-19,
-18,
7,
63,
-11,
31,
-2,
-33,
-10,
42,
-26,
-40,
25,
-23,
-34,
-26,
-34,
31,
-17,
16,
28,
12,
-21,
49,
82,
-23,
25,
22,
-8,
21,
-49,
23,
-7,
-47,
9,
33,
-14,
29,
11,
-31,
0,
1,
-38,
-8,
-17,
24,
9,
8,
-19,
-43,
-84,
-12,
-38,
13,
55,
54,
-15,
6,
-8,
1,
-3,
-56,
-12,
1,
3,
-4,
-39,
32,
-34,
-21,
-14,
28,
-72,
-7,
17,
-39,
-3,
12,
24,
-25,
-28,
6,
13,
-31,
47,
25,
-1,
-7,
51,
-44,
48,
-10,
-7,
17,
15,
36,
26,
-9,
37,
0,
-27,
2,
-36,
28,
-34,
18,
36,
-34,
33,
83,
-54,
-4,
-21,
19,
-23,
-19,
66,
-1,
11,
39,
-3,
-13,
-19,
1,
-28,
-34,
32,
35,
-5,
4,
64,
-7,
-38,
54,
10,
-27,
34,
-9,
-48,
16,
10,
43,
-11,
-42,
7,
9,
-69,
44,
18,
6,
44,
5,
37,
-1,
-39,
-1,
-29,
39,
42,
21,
23,
21,
9,
-2,
-25,
-66,
-35,
20,
-32,
-41,
-14,
0,
63,
-8,
-80,
-62,
18,
-1,
-63,
-65,
-24,
-35,
-3,
-8,
-3,
58,
-11,
-11,
-11,
-47,
20,
-49,
-17,
22,
37,
11,
-1,
-26,
9,
13,
-30,
28,
-32,
-64,
-79,
-37,
26,
-18,
-15,
46,
-44,
21,
24,
-2,
87,
-7,
-9,
-17,
59,
-29,
-63,
-24,
19,
-8,
8,
51,
23,
49,
-4,
3,
58,
-11,
16,
28,
45,
19,
15,
-46,
2,
43,
11,
19,
-8,
47,
-7,
-17,
-29,
-6,
-30,
-46,
24,
9,
-16,
-14,
43,
-52,
7,
51,
26,
12,
-1,
61,
59,
-19,
-54,
11,
-7,
1,
-79,
5,
7,
-25,
-19,
-73,
-30,
43,
4,
23,
-13,
11,
30,
12,
12,
58,
-38,
-43,
72,
-8,
4,
-38,
31,
-3,
-55,
0,
19,
-38,
39,
-7,
42,
56,
27,
21,
-7,
7,
50,
-1,
-73,
44,
34,
5,
-5,
24,
14,
20,
64,
-12,
8,
-7,
-14,
-28,
-76,
-15,
-34,
8,
-46,
9,
36,
-43,
32,
-29,
-38,
-24,
19,
56,
46,
37,
47,
-29,
-3,
2,
20,
-52,
-18,
19,
-34,
53,
-15,
-41,
-20,
-11,
36,
-11,
32,
-26,
61,
-5,
19,
1,
-30,
-5,
37,
-44,
4,
36,
-30,
10,
-18,
18,
22,
-80,
-15,
-1,
-9,
-18,
-28,
-17,
22,
-27,
46,
15,
0,
52,
-23,
-25,
27,
-18,
-3,
-8,
31,
39,
46,
8,
-3,
-51,
53,
16,
3,
-19,
19,
30,
-47,
-27,
40,
19,
46,
-67,
29,
57,
5,
-32,
-65,
14,
2,
-75,
19,
-41,
-48,
30,
5,
-55,
65,
36,
-19,
9,
-3,
9,
26,
-28,
17,
58,
33,
-23,
5,
-25,
-32,
-61,
36,
-22,
-18,
-19,
-65,
5,
16,
0,
-28,
-7,
-27,
-5,
-29,
0,
66,
-46,
-20,
-60,
7,
-51,
17,
12,
9,
-12,
-6,
56,
-27,
-23,
-44,
19,
71,
-48,
9,
20,
-15,
74,
-32,
29,
-29,
-30,
-3,
57,
-40,
20,
-21,
-29,
-30,
49,
-39,
-3,
17,
-5,
-13,
12,
-2,
-24,
44,
50,
-11,
-61,
31,
-57,
-18,
75,
-15,
10,
32,
-48,
-15,
41,
12,
51,
-13,
52,
-46,
57,
-45,
0,
21,
21,
17,
8,
5,
42,
12,
125,
-17,
26,
18,
24,
46,
19,
-67,
15,
-15,
6,
-51,
10,
-61,
1,
-43,
19,
5,
-1,
4,
22,
61,
17,
-22,
-10,
-31,
-71,
9,
-7,
-76,
-68,
-10,
26,
-17,
34,
21,
-4,
-18,
-128,
2,
-9,
-50,
-30,
-31,
45,
35,
33,
-83,
10,
-12,
-18
] |
MR. CHIEF JUSTICE ADAIR:
Appeal by defendant wife from decree of divorce entered against her.
The parties intermarried July 23, 1946, at Weisbaden, Germany. They have no children. He came from Conrad, Montana — she from Cleveland, Ohio. At the time they were wed both were serving overseas in the armed forces of the United States. He was a sergeant in the army, — she a clerk-typist with the rank of sergeant in the air force. Shortly after the wedding the wife obtained a discharge from further military service on the grounds of the marriage. Since then she has had civilian status while her husband continued in the army. Apparently there has been much domestic discord and strife in the couple’s married life from the very beginning.
Because of such disharmony, and before the husband had completed his military assignment in Germany, he petitioned the army to be returned to duty in the United States. He testified: “I petitioned for the reasons I thought there was a possi bility we could be reconciled and make a go of our marriage. So they allowed me to come home earlier, at that time. ’ ’
In May 1948 the couple returned to this country.
The wife testified:
“Q. At whose instance was that return made? A. Mine, I requested transportation back home.”
The husband was first put on thirty days leave. He then was assigned as first sergeant at the Great Falls Air Base at Great Falls, Montana. He testified that he spent part of his leave in Cleveland, Ohio, where his wife’s folk live and the remainder in Conrad, Montana, whereof he was a resident at the time, he first enlisted in the army.
The husband was stationed at the Great Falls Air Base for about three months during which time his wife remained in Cleveland. He testified: “We separated before I actually turned in for my leave and she returned to Cleveland.”
In the latter part of 1948 the husband was assigned to duty in the organized reserve corps at Helena, Montana, where he was stationed for about three years. During this assignment his wife came to Helena.
He testified that his wife “definitely did not like Montana. She harrassed me continually to try to get a reassignment. * * * We never did get along in Helena, Montana; I believe we separated approximately 10 times while I was here. I would continually have to move out of the housé and go downtown to one of the hotels. We had a rented apartment in the Hustad Apartments, which was fine, but I couldn’t afford to maintain two residences. My rent in Helena was $70.00 a month, plus utilities, and my house rent and grocery bill went on, and on my salary, I could not maintain two different places. I couldn’t live at home and the army wouldn’t relieve me of that duty, or assignment at that time. * * * She continually talked about my army friends and she didn’t like my grade in the army, — it wasn’t high enough to suit her. At one time I moved out after one of our spats and I came back in Sunday afternoon. And she said to me: ‘I am going to put you in jail.’ I said: ‘That is impossible when you don’t have any grounds.’ She walked out of the house and a while later two policeman came. I was not very well acquainted with the operation but one of them said: ‘We have to take you in. ’ And they said: ‘Your wife made a complaint against you.’ They put me in jail * * * I was bailed out. Major Ambrose Ryan came down and got me out with Attorney Clarence Hanley. * * * Major Ryan immediately sent a letter to the Montana Military District, requesting my relief from this type of duty due to the notoriety. The Montana Military District forwarded it to the Office of the Army with approval and the Office of the Army in turn sent the complete correspondence back to Helena with a request that full investigation be made. In the meantime we had a new officer, Colonel Ward, who came in and completed the investigation. He contacted several people in Helena of high standing as to my character and efficiency. He sent the complete correspondence back to the Office of the Army and they sent it back and said the matter would be dropped. Q. Did all that help your relations with the army? A. It definitely did not, it appears in my 201 File. That is the personal file of a soldier which follows him all over, to every new assignment. * * * Q. Now, in that connection, then your 201 File follows you and your commanding officer would see it? A. That is the one thing they look at when the soldier comes into a new unit; that is the only way they have of cheeking his background and determining what type of person he is. * * Every new assignment I have had in the army, I was called on the carpet. As soon as I got a new assignment, the commanding officer has said that he didn’t want any of that type of trouble in his outfit.”
The husband further testified:
“Q. You spoke of being arrested. What was the reason your wife had you arrested in Helena, Montana? A. Well, she failed to appear the next morning to press charges.
“Q. So you really don’t know. A. I have no idea.
“Q. You say it was without cause? A. I say it was without cause. ’ ’
In April 1951 the couple removed to Camp Stoneman, California, to which the husband had been assigned. There disharmony again held sway until finally on October 22, 1952, on the advice of the judge advocate, the husband and wife, in the presence of three attesting witnesses, entered into and signed a property settlement and separation agreement following which the wife returned to her home in Cleveland and the husband applied for and was granted a transfer to Korea where he was sent and where he remained on duty in the United States Army until the expiration of his then term of enlistment when he returned to the United States.
The husband testified:
“Q. At Camp Stoneman, did you have any difficulty with your wife? A. Continual difficulty, the same as I have always had. I had post quarters that cost me $85.00 a month and I did all my trading and buying groceries at the post commissary, which averaged $90.00 a month, the grocery bills. After one of our fights, she went over to the Red Cross on the post and borrowed $25.00 and got a receipt for it. She took the receipt, went up to the post commander, left it on his desk and claimed I failed to support her. He didn’t call me in, the post commander * * * but he contacted my commanding officer and requested an investigation. My commanding officer called me in and he said: ‘Bissell, I have talked to you about this trouble before.’ I knew it was coming to a head and at the time I was ready to do anything and I put in to go to Korea, I requested assignment to the far east. * * *
“Q. As a result of that what happened? A. I requested either to get rid of my wife or get out of the service of Colonel Jack Dinnon. At the time I was a warrant officer on reserve status and the commanding officer has a right to request that any of his officers with that type of status be relieved of active duty, if he feels it is for the good of the service.
“Q. Now, did you make a property settlement with your wife at that time? A. Yes. The Judge advocate section at Camp Stoneman called me in and asked my wife in for a conference and made a legal separation in which. I was supposed to sell my automobile, a 1948 Chevrolet * * * >
“Q. I will ask you if, as a result of that settlement, she got all of your property? A. She got everything I had.
“Q. Then you left for Korea. Is that Correct? A. She returned to Cleveland and I had my orders for Korea.”
This is an action brought by the plaintiff husband for an absolute divorce from the defendant wife on the grounds of extreme cruelty. The complaint also prays for such other and further orders as to the court may seem just.
The wife interposed a pleading designated as an “Amended Answer and Cross-Complaint” which consists of (1) “amended answer to the complaint,” (2) “a further and separate defense to the said complaint” and (3) a “cross-complaint against the plaintiff. ’ ’
In her “amended answer” she admitted the marriage, — that at the time of the commencement of the action and for more than one year immediately preceding the institution of suit plaintiff was a bona fide resident of the State of Montana and that there are no issue of marriage but denies all of the charges of extreme cruelty made against her.
In her “further and separate defense” she charged her husband with extreme cruelty and wilful neglect and alleged that the sum of $250 is a reasonable sum to be allowed her to enable her to defend this action and that the sum of $150 per month is a reasonable sum to be paid her as temporary support money during the pendency of this action and as permanent support money thereafter.
In her “cross-complaint” she again charged her husband with extreme cruelty and wilful neglect and again alleged that $250 is a reasonable sum to be paid her for attorney fees, $150 per month for her support and $500 for doctor and hospital expenses claimed to be necessary to her health. .
By her prayer she asks that plaintiff take nothing, that his action be dismissed, that she may live separate and apart from plaintiff and that he be required to pay to her the sums and amounts as above specified.
Upon issue joined by reply the suit was tried by the district court sitting without a jury.
After hearing and considering the evidence the trial judge made and filed written findings of fact and conclusions of law and in accordance therewith, on March 13, 1954, rendered and caused to be entered a decree granting the husband an absolute divorce.
Findings of Fact. There are but six findings of fact. Therein the trial court found:
“I. That the Plaintiff and the Defendant intermarried at the City Weisbaden, Germany on the 23rd day of July, 1948 and ever since that day have been and now are husband and wife.
“II. That the Plaintiff and Defendant have been separated from time to time during the course of their marital life and that the married life has been intermittent on the part of both of them.
“III. That for a period of more than one year preceding the commencement of this action the Defendant herein has been guilty of inflicting grievous mental suffering upon the Plaintiff by a course of conduct towards and treatment of the Plaintiff existing in and persisted in for a period of more than one year before the commencement of this action for divorce, which justly and reasonably was and is of such a nature and character as to destroy the peace of mind of the Plaintiff and to render the continuance of the Marital relations between the parties to this action perpetually unreasonable and intolerable to the Plaintiff.
“IV. That the Plaintiff and the Defendant have previously had a property settlement and that the Plaintiff has paid the Defendant a considerable sum of money. That the Defendant has been put to some expense to defend this action but that she is now working and that she has available to her Veterans Medical service and that she is able and competent to support herself.
“V. That no children have been born to said marriage.
“VI. That the Plaintiff should pay to the Defendant some money to pay her expenses in the maintenance of the divorce action and in moving from California to Ohio which should be paid by the month.”
Conclusions of Law. Upon the foregoing findings of fact the trial court made the following conclusions of law:
“1. That the Plaintiff have judgment against the Defendant for a divorce absolute.
“2. That the Plaintiff pay to the defendant the sum of Twelve Hundred Fifty and No/100 Dollars ($1,250.00) to be paid at rate of Fifty and No/100 Dollars ($50.00) per month, through her Attorney, Ralph J. Anderson of Helena, Montana beginning with the date of the entry of Judgment.
“3. That the Plaintiff pay to the Defendant the sum of Two Hundred Fifty and No/100 Dollars ($250.00) for Attorneys fees for maintaining this suit, also to be paid at Fifty and No/100 Dollars ($50.00) per month.”
Judgment. By the judgment entered the trial court
“Ordered, Adjudged and Decreed: that the Plaintiff have judgment against the Defendant for a divorce absolute and that the marriage relationship between the Plaintiff, Floyd H. Bissell, Jr. and the Defendant, Mary Rose Bissell, be and the same is hereby dissolved.
“2. That the Plaintiff pay to the Defendant the sum of Two Hundred Fifty and No/100 Dollars ($250.00) as an Attorneys Fee to be paid at the rate of Fifty and No/100 Dollars ($50.00) per month.
“3. That the Plaintiff pay to the Defendant the sum of Twelve Hundred Fifty and No/100 Dollars ($1,250.00) to be paid at the rate of Fifty and No/100 Dollars ($50.00) per month beginning with the date of judgment, all such payments to be made to the office of Ralph J. Anderson, the Attorney for the Defendant at Helena, Montana.”
This is an appeal by the wife from the above judgment.
The wife assigns as error the making of the trial court’s finding of fact No. Ill, supra. At the trial the husband ap peared and testified as the only witness in his behalf. His testimony amply sustains the trial court’s finding No. Ill in its entirety. The wife coming from her home in Cleveland, Ohio, also appeared and testified as the only witness in her behalf. As to the acts and conduct charged against the wife and testified to by the husband some were admitted while others were either denied, minimized or attempted to be justified by the wife in her testimony. Thus were presented issues of fact to be determined by the trial judge, the trier of the facts. The resolution of the conflict in the evidence was for him. We find in the record before us sufficient substantial and competent evidence, if believed, to sustain the trial court’s Finding No. III.
The wife assigns as error the making of the trial court’s finding of fact No. IV, supra. There is no merit whatever in this assignment. That the parties did on October 22, 1952, at Camp Stoneman, California, execute a property settlement agreement and that pursuant thereto the husband did pay the wife a considerable sum of money stands undisputed in the record before us. Both parties so testified and at the trial, the wife over the husband’s objection, introduced such duly executed settlement agreement in evidence.
The agreement, in part, provides: The wife “shall receive all the furniture and all personal effects, including trinkets and personal property which are now in her possession”; that she “shall receive the sum of One Hundred Fifty Dollars ($150.00) per month until such time as the family automobile * * * shall be sold”; that the family automobile shall be sold and that the wife “shall receive the * * * price of the vehicle with the deduction of a One Hundred Nineteen Dollar ($119.00) loan which is the present encumbrance”; that the husband “will pay, or cause to be paid, for the use and benefit of his said wife * * * from and after the month of October 1952, the sum of One Hundred Fifty Dollars ($150.00) per month until such time as the family automobile * * * shall be sold” from which “time on the wife * * * shall receive One Hundred Twenty-Five Dollars ($125.00) per month.”
In the property settlement agreement the parties “further mutually stipulated and agreed that if said wife * * * or said husband * * * shall initiate an action for divorce or separation within a court of law, and said decree be legally adjudged by any court, such agreement as entered into on this day shall no longer be binding on either of the parties to this agreement.”
As before shown, the husband testified that as a result of the above settlement his wife got all the property that he had.
On her cross examination at the trial held December 22, 1953, the wife testified:
“Q. Now, you have full veteran’s benefits, do you not? A. I believe so, sir, but there is a new ruling came out they are only for service connected veterans. * * *
“Q. In addition to that you received $125.00 a month from your husband didn’t you? A. Until about three months ago when he stopped paying. * * *
“Q. Now, Mrs. Bissell, you are working at the present time, aren’t you? A. Yes, sir.
“Q. Now, Mrs. Bissell, Mr. Bissell sold his automobile in 1952, did he not? A. I think he did.
“Q. And gave you the money? A. No, sir, not all of it.
“Q. How much did he give you? A. He gave me about $500.00; that was in the agreement.
“Q. And that was in the fall of 1952 he gave you that $500.00? A. Yes, sir.
“Q. About what month? A. December.”
The wife assigns as error the making of the trial court’s conelusion of law No. 2 to the effect that the husband pay to the wife the “sum of $1,250 to be paid at the rate of $50 per month through her Attorney * * * beginning with the date of the entry of judgment. ’ ’ This was not an allowance to the wife for her support within the meaning of R. C. M. 1947, section 21-139. The trial court expressly found in its finding of fact No. IV that “the Defendant has been put to some expense to defend this action.” Because of such expense and other outlay, the trial court further found that “the Plaintiff should pay to the Defendant some money to pay her expenses in the maintenance of the divorce action and in moving from California to Ohio which should be paid by the month.” The $1,250 which the trial court concluded should be paid to the wife was for these outlays and expenses and was in no sense an award for the wife’s support.
Bischoff v. Bischoff, 70 Mont. 503, 226 Pac. 508, and the other cases cited and relied upon by the defendant are readily distinguishable from the instant ease both on the facts presented and the law that governs. Such cases are not applicable for here the sums to be paid to the wife were and are for the expenses incurred by her in defending the action and in prosecuting her cross complaint and, under the provisions of R. C. M. 1947, section 21-137, upon timely and proper application therefor made in advance of the performance of the professional services and incurring of the expenses, rested within the discretion of the trial court regardless of whose acts and conduct were responsible for the granting of the divorce. The same is true of the $250 for attorney’s fees to enable the wife to pay her counsel for the professional services rendered in the suit.
The trial court determined that the wife was the offender, hence gave its decree for the husband. There is sufficient substantial and competent evidence supporting such conclusion. By necessary implication the court determined that the husband was not the offender for otherwise the wife would have prevailed in the suit and this she did not do.
Notwithstanding that defendant’s counsel made no request whatever of the trial court for any findings on any phase of the case he here urges that in its finding of fact No. II, supra, the trial court “impliedly at least, found that there was recrimination” and that under the provisions of R. C. M. 1947, section 21-118, divorce must be denied upon such ground. We do not so construe either the finding or the statute.
R. C. M. 1947, section 93-5305, provides: “No judgment shall be reversed on appeal for want of findings at the instance of any party who, at the close of the evidence and argument in the cause, shall not have requested findings in writing, and had such-request entered in the minutes of the court; nor in cases tried by the court shall the judgment be reversed on appeal for defects in the findings, unless exceptions be made in the court below for a defect in the findings or in a finding.”
R.C.M. 1947, section 93-5306, provides: “In cases of exceptions for defective findings, the particular point or issue upon which the party requires a finding to be made, or the particular defect to be remedied, shall be specifically and particularly designated; and upon failure of the court to remedy the alleged defect, the party moving shall be entitled to his exceptions, and the same shall be settled by the judge as in other cases.”
R. C. M. 1947, section 93-5307, provides: “Such exceptions shall be filed in the court and served on the attorney of the adverse party within five days after receiving from or giving to the adverse party a written notice of the filing of the findings. ’ ’
In the record before us we find no compliance whatever with the plain provisions of the above mandatory statutes.
In Bordeaux v. Bordeaux, 32 Mont. 159, 163, 80 Pac. 6, 7, in construing section 1114, Code of Civil Procedure, now R. C. M. 1947, section 93-5305, the court said: “There is in the record no bill of exceptions showing that the defendant, at the close of the evidence and argument in the cause, made written request for findings upon the subject of recrimination, or any other issue, and had the request entered in the minutes of the court, nor that any exception was taken to the action of the court in refusing to make the requested findings, as provided in section 1114 of the Code of Civil Procedure. Under these circumstances the judgment may not be reversed because of any defect in the findings, or any failure on the part of the court to make a finding upon any particular issue (section 1114 [now R. C. M. 1947, section 93-5305]) * * *.” The Bordeaux case, 32 Mont. 159, 80 Pac. 6, above quoted, has been repeatedly cited and followed in later eases. See Farwell v. Farwell, 47 Mont. 574, 578, 133 Pac. 958, Ann. Cas. 1915C, 78; City of Helena v. Hale, 38 Mont. 481, 484, 100 Pac. 611; Rogers-Templeton Lumber Co. v. Welch, 56 Mont. 321, 326, 184 Pac. 838. Compare Bilger v. Bilger, 54 Cal. App. (2d) 739, 129 Pac. (2d) 752. See also Bordeaux v. Bordeaux, 43 Mont. 102, 108, 115 Pac. 25.
The record herein fails to show that defendant made any request for any findings in the trial court or that she therein took any exception to any finding made. See Park Saddle Horse Co. v. Cook, 89 Mont. 414, 419, 300 Pac. 242; Mahoney v. Lester, 118 Mont. 551, 168 Pac. (2d) 339; Leake v. Hooten, 88 Mont. 70, 289 Pac. 1043; Nicholson v. Roundup Coal Mining Co., 79 Mont. 358, 368, 257 Pac. 270; Joyce v. McDonald, 51 Mont. 163, 165, 149 Pac. 953; State ex rel. Quintin v. Edwards, 40 Mont. 287, 299, 106 Pac. 695.
Finally the wife contends divorce must be denied upon her showing of recrimination.
“Strictly, recrimination is an affirmative defense which must be specially pleaded or set up in the answer as a defense in order that the defendant may have the right to give proof of such defense.” 17 Am. Jur., Divorce and Separation, section 325, page 314.
The doctrine of recrimination is that if both parties have a right to divorce, neither party has. The principle is of ancient origin and reaches back to the Mosaic Code and beyond. Read Deuteronomy 22:13-19. Although the Roman law did not allow divorce yet some legal historians trace the rule back to the “compensation criminum” of the Roman law relating to property settlements. The ecclesiastical courts of England adopted the principle from the canon law and then injected it into proceedings for separation from bed and board.
It has been said that the doctrine of recrimination rests on the equitable maxim that he who comes into equity must come with clean hands. 27 C. J. S., Divorce, section 67, page 624.
‘ ‘ The maxim is based on conscience and good faith. It is not strictly or primarily a matter of defense, but is invoked on grounds of public policy and for the protection of the integrity of the court. ” 30 C. J. S., Equity, section 93, page 477.
“Important developments of the past several decades have made it increasingly clear that the courts can no longer decline to exercise the discretion inherent in the clean hands doctrine.” So said the Supreme Court of California in the recent case of De Burgh v. De Burgh, 39 Cal. (2d) 858, 867, 250 Pac. (2d) 598, at page 603, as it proceeded to recognize and sanction the right of the trial judge, in the exercise of a sound discretion, to grant divorce even though both parties have been shown guilty of such misconduct as constitutes grounds for divorce. Also see Mueller v. Mueller, Cal. App., 276 Pac. (2d) 693.
When the record clearly shows “the legitimate objects of the marriage have been destroyed” then the parties are entitled to have the marriage dissolved. As was said in Phillips v. Phillips, 41 Cal. (2d) 869, 264 Pac. (2d) 926, 931: “No public policy would be served by denying a divorce because each party was guilty of extreme cruelty toward the other. It is a degradation of marriage and a frustration of its purposes to use it as a means of punishing the parties to the divorce action. In our opinion, the trial judge should not have denied the parties a divorce on the ground that recrimination had been shown.”
In Hendricks v. Hendricks, 125 Cal. App. (2d) 239, 270 Pac. (2d) 80, at page 82, the court said:
“It is fundamental that a marriage contract differs from other contractual relations in that there exists a definite and vital public interest in reference to the marriage relation. The ‘paramount interests of the community at large’, quoting from the Phillips case, supra [cited above], is a matter of primary concern. The instant case presents a picture of long continued strife * * *. Public policy cannot well be served by denying a divorce to both parties. Since both parties are, under the evidence, entitled to a divorce on the ground of cruelty, they should be granted that relief without further litigation.”
The statute in Montana provides that a divorce “must be denied upon showing: * * * Recrimination. ” R. C. M. 1947, section 21-118.
“Recrimination is a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff’s cause of divorce.” R. C. M. 1947, section 21-128.
The California and the Idaho statutes on recrimination are the same as ours.
In Howay v- Howay, 74 Idaho 492, 264 Pac. (2d) 691, 694, 695, which has our unqualified approval, the court said:
“The doctrine of recrimination is said to be based upon the equitable precept that he who comes into equity must come with clean hands. But it cannot be compared to that precept if it must be applied mandatorily by the divorce court in every case where improper conduct on the part of the plaintiff appears, without regard to consequences or other considerations having an equal claim upon the conscience of the chancellor. Equity lias always regarded itself free to apply or refuse to apply the maxim in & particular case, depending upon the consequences and a due regard for other considerations involved.
‘1 ‘ The clean hands maxim has its limitations. It does not operate so as to repel all sinners from a court of equity, nor does it apply to every unconseientious act of a party. * * * equity will consider the conduct of the adversary, the requirements of public policy, and the relation of the misconduct to the subject matter of the suit and to defendant.’ 30 C. J. S., Equity, section 98.
“In Stewart v. Stewart, 158 Fla. 326, 29 So. (2d) 247, 248, 170 A. L. R. 1073, where the misconduct of both parties was established * * ® the court referring to recrimination said:
“ ‘It is not an absolute, but a qualifying doctrine. If it were-to be applied strictly great inequity would be done, for it so. often happens that neither party to a suit has been free from fault. * * *
“ ‘The principle is most applicable when a party seeks to take-ad vantage of an act or omission which he has himself induced. ’'
“The annotation to the Stewart ease, 170 A. L. R. 1076, calls, attention to the trend toward relaxation of the doctrine of recrimination and the underlying reasons prompting the courts to-take that course. The trend which the annotator said was not. ‘marked’ at that time, 1946, has since had considerable expansion. * * *
“ ‘To affirm that a guilty spouse is never entitled to a divorce is a position difficult tó apply to the facts of life. It is seldom, perhaps never, that any wholly innocent party seeks a divorce against one who is wholly guilty. Awareness of this fact and the giving of attention to the social implications of divorce has given rise to various exceptions and limitations on the doctrine of recrimination.’ Hendricks v. Hendricks, Utah, 257 Pac. (2d) 366. * * *
“In some jurisdictions divorce is granted to both parties. Flagg v. Flagg, 192 Wash. 679, 74 Pac. (2d) 189; Simmons v. Simmons, 122 Fla. 325, 165 So. 45; Burch v. Burch, 3 Cir., 195 F. (2d) 799.
“The opinion in Burch v. Burch, supra, contains an excellent review of decisions involving recrimination. We quote:
“ ‘The doctrine of recrimination has been rested upon the equitable maxim that he who comes into equity must do so with clean hands, upon the doctrine that divorce is a remedy for an injured spouse, not for a guilty one, and upon the contract theory that he who seeks redress for the violation of a contract resting on mutual and dependent covenants must himself have performed the obligations on.his part. But the doctrine of recrimination in divorce has been much criticized in recent years. For it ignores the fact that marriage is not a mere private contract but rather a status of such basic importance in the social structure that the state has a vital interest in its proper continuance and appropriate termination. From a social point of view it is hard to defend the rule that recrimination is an absolute bar to the granting of a divorce for it requires that parties who are guilty of conduct which makes their marriage impossible of success shall continue their impossible marital relationship as a sort of punishment for their mutual guilt. For this reason the application of the doctrine has been relaxed as an absolute bar to divorce in a number of jurisdictions.’ At page 809, of 195 F. (2d).”
The Howay case, supra, 265 Pac. (2d) at pages 695-697, continues:
‘ ‘ Our statute on recrimination appears to be mandatory in its terms except for the phrase ‘in bar of the plaintiff’s cause of divorce.’ If by this the legislature left to the court the determination of when a recriminatory defense is established so as to bar plaintiff’s right to a divorce, then recrimination, like clean hands, and the mutual dependent covenants of contract doctrine, would allow equity to have regard for the public interest and the consequences to the parties and others in its application. * * *
“It is unnecessary for us here to adopt any so-called rule of ‘compartive rectitude’, or to go to the extent that the California court did in the De Burgh ease [cited above]. Here the question is .squarely presented as to whether or not the acts and conduct of the plaintiff were such as to require the district judge to conclude that a cause of divorce was established in the defendant. While it is true that, standing alone, the court may have concluded that a cause was thus shown, he was not required by the facts to do so. ’ ’
In Hendricks v. Hendricks, Utah, 257 Pac. (2d) 366, 367, it is said:
“The factual background of this case reveals circumstances which often lead to domestic distress and end in the divorce court. * * *
“The court, counsel and the parties all seem to agree that this marriage is hopelessly on the rocks; that the marriage relationship has become so intolerable that both would be happier, if they were free to go their separate ways. * * *
“The principle that a divorce will ordinarily not be granted where both parties are at fault is of ancient origin and has. long persisted, although in modern times it is probably true that it has been more honored in the breach than in the observance. There are undoubtedly some circumstances, such as mutual conviction of a felony, adultery or other serious offenses which may justify a court of equity in refusing to grant either party relief. Whether this be regarded as recrimination or an application of the basic precept that one who seeks redress for violation of a contract resting upon mutual covenants must have performed his own, or merely of the ‘clean hands’ doctrine of equity is of no importance here. * * *
“A realistic approach to it is indicated by the court in the case of Dearth v. Dearth [141 Pa. Super. 344, 15 A.2d 37], wherein it concluded that where mutual delinquencies of husband and wife made further living together intolerable, a divorce should be granted and the court was not called upon to balance such delinquencies but only to determine which party was least at fault in causing the bad situation. This is based upon the doctrine of ‘comparative rectitude’ which is often used and has been given tacit recognition by this court. Although some statutes specify that a divorce may be granted to ‘the party not in fault’ our statute wisely contains no such provision. Our policy has been to take consideration of the practical exigencies of such situations, and in eases such as the instant one, where both are at fault, approve the granting of a divorce to the one least to blame.
“From anything that appears in the instant case, no good purpose either social, moral, ethical or legal could be served by refusing to grant a divorce and settle the property rights of the parties. It would be but a mockery of the true concept of matrimony to thus purport to compel these two people, clearly ill-suited and maladjusted to each other to continue to retain the legal relationship of husband and wife.
“In view of the fact that neither spouse is accused of the commission of a felony, adultery or any other heinous offense but the reciprocal claims rest upon various acts and omissions alleged to constitute cruelty to the other, the trial court would best perform its function in the administration of justice by determining which party was least at fault, granting a divorce and adjusting their rights, giving due consideration to the applicable factors outlined in our recent opinion of McDonald v. McDonald [Utah, 236 Pac. (2d) 1066].”
In Bressie v. Bressie, Mo. App., 266 S. W. (2d) 24, at page 27, it is said:
“It is also contended that there was no proof that Bressie was the innocent and injured party. It is true that he struck defendant on the day of the separation, but he was apparently goaded to exasperation by her assertions that the marriage of twenty years was in fact a nullity and her further statement that she desired to be single. We have repeatedly held that the term 'innocent and injured party’ does not mean a party without fault.”
In Saunders v. Saunders, 140 Conn. 140, 98 A. (2d) 815, 817, it is said:
“A divorce is, of course, not to be denied a party merely because his or her conduct appears to the court to deserve censure. ’ ’
In Boter v. Boter, 388 Mich. 187, 61 N. W. (2d) 64, 65, it is said:
“It is true, as defendant claims, that neither party was entirely blameless. But we have held that where the acts of cruelty on the part of one party are so far greater than those of the other, the latter is entitled to a divorce.”
Vincent v. Vincent, 208 Okl. 470, 257 Pac. (2d) 512, at page 515, holds that a divorce may be granted in the court’s discretion although the parties are in equal wrong.
In Hensley v. Hensley, 213 Ark. 755, 212 S. W. (2d) 551, the appellate court held that where the evidence established that conditions between the husband and wife were unbearable and there was no hope of amelioration and that the conduct of the husband was chiefly responsible, the wife was entitled to a divorce notwithstanding she was not without fault.
In McFadden v. McFadden, Tex. Civ. App., 213 S. W. (2d) 71, at page 74, the appellate court said:
“The doctrine of recrimination is observed in a number of jurisdictions in this country and, under it, where it is shown in divorce cases that both parties have been guilty of cruel treatment, a divorce will not be granted. It is now well settled however, that in this state, as well as a number of others, the rule is relaxed and that of comparative rectitude is recognized. In such cases the court has the duty of weighing the conduct of the respective parties and is authorized to grant a divorce to the one who is lesser guilty.”
In Fritz v. Fritz, 179 Or. 612, 174 Pac. (2d) 169, at page 173, the court said:
“In divorce proceedings relief is not invariably denied when the record discloses that neither party is entirely free from fault. ’ ’
In Thompson v. Thompson, 82 U. S. App. D. C. 325, 164 F. (2d) 705, at page 706, the appellate court said: “Appellant contends that since the appellee was guilty of misconduct, he should have been denied relief. We held in Vanderhuff v. Vanderhuff [79 U. S. App. D. C. 153, 144 F. (2d) 509] that recrimination is not an absolute bar to a divorce. We pointed out, however, that special circumstances might exist where this defense would be relevant in a determination as to which party was entitled to a divorce in a case where both sought a decree, and so evidence as to appellee’s misconduct was relevant here. The court admitted it, and the record shows that it was carefully considered. The court had before it the complaint, the cross complaint, and all the evidence which either party cared to present. It reached the conclusion which eventuated in the judgment for the husband. There is nothing in the record to indicate that this conclusion was erroneous as a matter of law. ’ ’ Compare Pavletich v. Pavleitch, 50 N. M. 224, 174 Pac. (2d) 826; Stewart v. Stewart, 158 Fla. 326, 29 So. (2d) 247, 170 A. L. R. 1073, and Burch v. Burch, 3 Cir., 195 F. (2d) 799.
The judgment of the trial court is affirmed.
MB. JUSTICE BOTTOMLY, concurs.
|
[
29,
-17,
-27,
76,
-27,
-80,
-59,
-5,
-16,
-51,
-51,
-7,
-13,
-44,
-18,
-27,
-40,
-15,
31,
-49,
-31,
-48,
-48,
70,
46,
64,
-24,
12,
-39,
-10,
36,
11,
-36,
-34,
37,
-3,
44,
-71,
-3,
-21,
-12,
-67,
-14,
6,
-53,
31,
22,
-12,
-50,
13,
32,
-53,
18,
57,
53,
0,
-53,
41,
19,
-36,
-25,
13,
-14,
-6,
20,
-18,
90,
60,
-4,
-5,
8,
-110,
35,
-64,
-30,
0,
15,
28,
-52,
0,
8,
-40,
2,
7,
-12,
4,
4,
88,
-29,
59,
22,
14,
14,
-13,
7,
-29,
-35,
21,
19,
23,
4,
-20,
-2,
2,
12,
-14,
-55,
-4,
47,
29,
46,
37,
37,
26,
40,
7,
-15,
-32,
-39,
-36,
10,
38,
-3,
7,
68,
-34,
-37,
-14,
51,
-1,
-25,
-22,
38,
-12,
-39,
-41,
6,
-48,
-23,
-65,
45,
-42,
82,
27,
92,
18,
27,
-18,
-55,
-38,
-27,
-42,
13,
28,
50,
-28,
18,
36,
-8,
-24,
10,
-10,
-10,
20,
28,
-10,
0,
44,
-12,
-6,
31,
24,
-23,
37,
14,
25,
-4,
16,
43,
40,
-25,
41,
0,
-103,
47,
-7,
11,
-5,
-19,
-15,
-18,
-43,
100,
29,
43,
57,
-24,
37,
-2,
-7,
-11,
-6,
16,
57,
8,
-32,
32,
51,
25,
4,
28,
-16,
63,
-24,
-34,
0,
-52,
11,
-46,
17,
40,
-71,
-54,
-1,
-24,
-30,
4,
19,
-16,
2,
-27,
-7,
15,
3,
21,
-31,
17,
20,
5,
-20,
-18,
-46,
46,
35,
-1,
-8,
-72,
15,
16,
13,
15,
4,
-30,
0,
15,
-23,
-4,
26,
55,
-10,
-5,
-9,
38,
22,
-10,
26,
28,
-39,
35,
-28,
39,
17,
36,
-31,
-9,
11,
-1,
33,
16,
25,
1,
44,
-60,
43,
-23,
-49,
25,
-15,
23,
-18,
23,
-35,
-53,
-24,
-16,
-35,
1,
-8,
-54,
33,
-7,
1,
32,
45,
-39,
0,
-49,
-50,
0,
12,
23,
11,
67,
-13,
22,
23,
17,
31,
-53,
16,
-10,
41,
-8,
15,
-22,
57,
-73,
27,
-3,
-22,
-27,
31,
-49,
60,
-10,
-46,
-16,
-13,
11,
-25,
-36,
-15,
34,
2,
-19,
13,
-12,
17,
14,
10,
-4,
13,
14,
11,
-44,
40,
0,
-57,
-14,
-61,
-10,
-19,
-56,
-13,
-61,
4,
13,
-49,
44,
-6,
13,
-26,
27,
5,
14,
33,
34,
1,
31,
40,
-3,
11,
-32,
47,
-47,
35,
-8,
-26,
6,
-21,
-41,
-34,
2,
-34,
34,
-6,
48,
0,
-24,
10,
-16,
-8,
-8,
43,
25,
-9,
4,
1,
-51,
-23,
52,
-19,
-26,
44,
82,
3,
-41,
62,
16,
3,
12,
7,
9,
26,
-20,
-10,
-36,
-43,
28,
16,
23,
0,
-14,
-14,
13,
-56,
-48,
73,
-17,
34,
-1,
14,
-6,
61,
-30,
0,
-28,
-1,
25,
-12,
2,
6,
-19,
-27,
0,
-21,
-8,
15,
-32,
-55,
7,
4,
23,
-26,
58,
-12,
-29,
-55,
-33,
53,
59,
-12,
20,
81,
5,
15,
26,
-47,
3,
-100,
-64,
-36,
-39,
0,
-28,
2,
-20,
5,
67,
22,
-21,
-3,
-34,
10,
-40,
-37,
-1,
-30,
-9,
-33,
-15,
7,
36,
-18,
72,
-8,
19,
1,
-10,
11,
17,
-79,
-26,
17,
4,
-4,
9,
-3,
2,
17,
-4,
43,
75,
-36,
33,
-13,
11,
-18,
-6,
37,
-48,
42,
-36,
-11,
-4,
23,
53,
2,
-14,
-59,
16,
9,
-11,
3,
-12,
36,
-34,
15,
-19,
33,
53,
-20,
6,
-3,
28,
-92,
-54,
20,
-27,
-12,
47,
11,
-41,
9,
-47,
-3,
-67,
15,
-8,
-23,
-5,
12,
-4,
4,
38,
0,
0,
-1,
-44,
15,
-4,
4,
-41,
-22,
1,
-40,
-1,
22,
8,
6,
-89,
-3,
-17,
42,
21,
-15,
-13,
-7,
-45,
57,
6,
-66,
3,
20,
-3,
23,
7,
44,
31,
-28,
12,
-10,
6,
-20,
-36,
48,
-33,
-66,
-17,
-18,
-4,
8,
-38,
-22,
4,
-62,
-4,
10,
-17,
-36,
11,
18,
66,
1,
23,
34,
45,
-33,
-3,
17,
72,
20,
-7,
15,
-11,
-21,
64,
-22,
7,
-15,
62,
38,
-37,
-12,
11,
25,
21,
-28,
5,
23,
-54,
25,
67,
52,
37,
28,
13,
32,
-48,
-5,
-30,
12,
6,
5,
36,
17,
-3,
-48,
23,
2,
1,
-12,
8,
16,
-11,
34,
57,
-20,
-36,
19,
-22,
-19,
-6,
38,
-17,
4,
-22,
54,
-23,
40,
13,
-64,
-33,
-7,
-1,
18,
-14,
-2,
-13,
24,
-44,
34,
22,
-12,
2,
-33,
62,
-29,
-13,
32,
-23,
57,
-37,
18,
-15,
-28,
-30,
-35,
29,
18,
45,
22,
-27,
-56,
-71,
-13,
-36,
-18,
28,
26,
6,
-13,
13,
36,
-13,
37,
2,
-77,
7,
-36,
-10,
25,
32,
-37,
1,
-8,
-4,
-10,
-18,
1,
73,
8,
-42,
13,
-99,
10,
-2,
-25,
6,
27,
-17,
3,
-41,
-4,
-43,
-27,
0,
50,
38,
6,
-32,
-21,
-55,
-30,
35,
13,
53,
29,
51,
4,
6,
-21,
18,
-53,
-23,
32,
-24,
-29,
-31,
25,
-9,
24,
16,
7,
53,
-31,
-24,
38,
-24,
56,
-18,
23,
3,
-34,
-33,
15,
23,
26,
16,
20,
18,
-5,
-4,
37,
-18,
2,
-31,
-6,
-41,
4,
3,
-1,
50,
1,
-40,
9,
63,
-12,
-26,
-13,
22,
40,
-6,
-28,
63,
42,
24,
2,
42,
-8,
-2,
22,
0,
32,
-3,
6,
-8,
31,
-8,
-20,
-81,
-17,
-9,
-48,
21,
-36,
44,
-60,
72,
43,
39,
-29,
11,
36,
9,
-21,
89,
-15,
42,
2,
-18,
4,
4,
12,
-7,
38,
42,
47,
-55,
-17,
1,
44,
-2,
4,
-65,
8,
23,
-14,
-34,
28,
32,
24,
13,
35,
17,
-8,
-39,
44,
10,
8,
16,
-19,
-47,
1,
7,
45,
-15,
18,
40,
-10,
0,
-38,
-28,
-2,
-8,
16,
-37,
-26,
-6,
39,
34,
-12,
-53,
-62,
30,
56,
-48,
78,
-16,
-11,
-31,
-9,
-21,
12,
17,
47,
10,
-42,
4,
-13,
17,
47,
12,
42,
-27,
35,
8,
-44,
23,
2,
-22,
23,
-17,
-9,
-44,
-65,
-26,
26,
6,
-67,
-7,
-20,
28,
12,
5,
-9,
11,
11,
32,
39,
14,
53,
17,
39,
12,
-36,
-19,
-26,
-59,
-39,
1,
-5,
-7,
20,
31,
33,
17,
-47,
38,
8,
-41,
-85,
21,
-39,
-5,
-32,
-53,
-23,
9,
12,
22,
-19,
3,
0,
-25,
-40,
-22,
18,
15,
-3,
-22,
-53,
22,
20
] |
Per Curiam.
The application for the writ herein is denied and the proceeding ordered dismissed without prejudice.
MR. CHIEF JUSTICE ADAIR and MR. JUSTICES ANGSTMAN, ANDERSON and DAVIS, concur.
MR. JUSTICE BOTTOMLY:
In my opinion the writ should issue.
|
[
-5,
-49,
28,
25,
61,
-3,
57,
7,
-25,
64,
-37,
-24,
-40,
-3,
-74,
33,
23,
-26,
7,
-63,
-20,
4,
21,
24,
-13,
-4,
0,
83,
14,
17,
-32,
-7,
-29,
33,
-6,
-24,
1,
-13,
-12,
-50,
-33,
0,
50,
26,
-30,
-29,
-26,
15,
-51,
25,
5,
-69,
-42,
-36,
-61,
11,
-3,
-25,
13,
-6,
-34,
32,
6,
12,
-45,
-36,
33,
-35,
24,
68,
9,
23,
33,
-6,
-33,
-44,
-3,
-52,
-62,
-9,
18,
33,
28,
64,
23,
6,
12,
39,
45,
-15,
-10,
-23,
-2,
-32,
-51,
69,
49,
-18,
-43,
37,
-13,
13,
36,
-47,
-16,
-40,
-39,
-4,
26,
-5,
-11,
10,
-18,
9,
0,
34,
36,
-1,
44,
19,
-42,
37,
-24,
-3,
-63,
61,
-44,
56,
40,
12,
42,
24,
20,
27,
2,
-4,
44,
42,
40,
-52,
14,
-54,
59,
30,
-23,
-60,
47,
34,
-83,
19,
-7,
36,
-58,
17,
-49,
60,
8,
-37,
27,
27,
25,
-5,
42,
-39,
56,
22,
-28,
2,
15,
33,
-18,
-5,
-22,
59,
0,
-6,
-39,
13,
3,
-16,
38,
57,
-37,
43,
-26,
47,
-8,
13,
-13,
-35,
-66,
-9,
42,
25,
36,
6,
9,
-37,
22,
-15,
-24,
21,
-27,
-14,
7,
-42,
-26,
-50,
20,
17,
-52,
32,
-30,
4,
74,
45,
37,
-7,
12,
2,
8,
-29,
4,
-10,
42,
-20,
-6,
-18,
15,
-19,
-42,
8,
-43,
18,
96,
-21,
57,
-22,
-21,
39,
-51,
15,
-13,
-3,
-50,
-68,
2,
52,
72,
51,
18,
-12,
53,
14,
-30,
-19,
-28,
41,
-47,
-40,
-26,
50,
-47,
-25,
-39,
44,
22,
14,
36,
-39,
7,
17,
-37,
61,
85,
34,
-38,
-12,
0,
-17,
-13,
43,
32,
1,
-42,
-14,
8,
-81,
28,
-10,
-16,
15,
-18,
30,
7,
-2,
18,
13,
-28,
-11,
-29,
-39,
18,
-2,
25,
-64,
-21,
-47,
8,
-34,
-57,
64,
23,
-24,
-35,
30,
-33,
-35,
-56,
-36,
-45,
-24,
-50,
-59,
-3,
-4,
29,
17,
-7,
9,
80,
15,
37,
7,
-52,
52,
25,
30,
44,
38,
-47,
3,
-87,
12,
11,
-63,
-2,
-61,
3,
56,
-47,
1,
-16,
-32,
39,
-25,
-57,
-44,
-20,
0,
-23,
44,
63,
33,
7,
28,
-9,
6,
0,
4,
25,
-32,
-26,
3,
-10,
42,
79,
0,
-4,
9,
-2,
-38,
19,
58,
-8,
93,
11,
32,
5,
-18,
-51,
-33,
-43,
9,
-32,
1,
-24,
17,
44,
29,
16,
-64,
-65,
1,
22,
-30,
5,
11,
-17,
3,
-24,
14,
-16,
31,
44,
27,
-34,
74,
42,
22,
-6,
-25,
12,
-12,
-48,
-6,
-3,
-9,
41,
10,
-7,
7,
30,
20,
0,
-19,
19,
4,
38,
56,
26,
-13,
9,
0,
-37,
-8,
0,
20,
-49,
-17,
-33,
-33,
-28,
-84,
-14,
-6,
7,
64,
-18,
32,
-31,
-53,
18,
-40,
-24,
44,
-4,
7,
2,
-35,
-7,
2,
-34,
-23,
-34,
-6,
-16,
8,
-28,
9,
7,
55,
-26,
-101,
-74,
25,
26,
-15,
53,
-37,
-22,
-36,
-23,
-35,
-33,
-23,
-5,
-32,
-70,
11,
44,
25,
-27,
-25,
6,
-33,
-22,
-17,
-22,
-46,
51,
5,
20,
20,
43,
17,
-2,
17,
-19,
43,
-37,
-27,
-14,
10,
43,
32,
-59,
-34,
-6,
24,
-32,
8,
-31,
8,
21,
-12,
24,
4,
62,
5,
-56,
45,
-4,
10,
6,
70,
-20,
3,
26,
30,
-57,
24,
-18,
21,
-1,
-11,
-33,
-51,
18,
-51,
18,
-41,
-11,
1,
-12,
46,
10,
15,
11,
-6,
11,
-53,
4,
35,
5,
-70,
56,
-13,
10,
-2,
-64,
11,
-71,
-22,
-18,
-32,
-64,
-63,
-28,
-12,
-90,
-34,
22,
-42,
-13,
18,
-45,
36,
0,
31,
-60,
46,
36,
44,
-28,
21,
66,
-24,
-17,
-37,
14,
77,
-22,
25,
4,
-59,
-46,
35,
34,
-10,
11,
58,
-37,
41,
5,
-27,
-18,
-44,
12,
-14,
24,
16,
20,
-8,
-14,
60,
-37,
65,
-7,
-40,
-25,
-26,
54,
-40,
60,
-11,
36,
-62,
71,
45,
100,
52,
-24,
-9,
2,
-21,
-28,
-21,
16,
-70,
15,
-16,
-5,
-20,
-48,
91,
-6,
61,
-35,
-4,
2,
26,
21,
-35,
0,
5,
31,
55,
-5,
-25,
1,
3,
-9,
29,
-18,
-43,
20,
26,
-63,
7,
-13,
6,
13,
9,
12,
-26,
-14,
65,
-17,
27,
12,
-57,
-24,
60,
-54,
-27,
-19,
6,
-5,
-58,
-57,
-36,
-50,
-27,
17,
-58,
14,
-45,
56,
-29,
18,
0,
-4,
27,
-46,
-24,
26,
19,
44,
21,
-2,
-21,
48,
18,
-19,
-33,
-42,
-64,
13,
-4,
-1,
15,
32,
7,
19,
17,
-2,
-17,
-9,
53,
39,
-53,
-24,
33,
-28,
-24,
36,
8,
86,
25,
21,
-14,
-3,
41,
-33,
61,
-40,
-19,
-37,
53,
-3,
-32,
48,
-56,
2,
-17,
-4,
9,
105,
58,
-52,
-30,
-26,
61,
30,
16,
-40,
-34,
-27,
8,
81,
36,
-33,
47,
28,
-44,
-12,
-20,
26,
55,
-21,
23,
32,
7,
30,
53,
-68,
49,
8,
49,
-6,
-22,
-55,
-3,
-21,
56,
-14,
-10,
9,
-27,
6,
47,
37,
55,
23,
2,
33,
-35,
11,
33,
41,
-35,
-8,
45,
-56,
0,
24,
-7,
60,
-2,
-37,
23,
-67,
21,
33,
14,
-55,
44,
-29,
4,
35,
5,
17,
76,
18,
-46,
3,
-86,
1,
-10,
43,
39,
13,
-65,
9,
-25,
1,
-25,
12,
10,
35,
13,
28,
-33,
36,
-24,
53,
-5,
28,
-9,
-9,
39,
-32,
24,
24,
-9,
-21,
-43,
-1,
-1,
104,
1,
20,
45,
18,
33,
-1,
-41,
-18,
49,
-26,
0,
91,
40,
19,
15,
-49,
36,
16,
-2,
-5,
-5,
59,
-17,
44,
-9,
-8,
-29,
-40,
-58,
15,
40,
34,
-49,
36,
1,
5,
16,
-25,
-21,
-33,
23,
-26,
-25,
-31,
-43,
18,
14,
-76,
86,
-78,
-53,
29,
-15,
-3,
-2,
-63,
-21,
-6,
-46,
20,
-44,
4,
0,
-12,
35,
21,
17,
56,
-4,
-10,
-23,
-25,
21,
-33,
-2,
-19,
35,
41,
4,
-18,
50,
68,
0,
-26,
-46,
0,
-31,
-24,
59,
19,
-39,
-15,
-7,
-23,
3,
8,
42,
-8,
-50,
-3,
-9,
-31,
-68,
0,
4,
-35,
42,
-7,
12,
22,
65,
6,
-66,
17,
55,
11,
-12,
2,
-20,
39,
-3,
13,
39,
78,
-74,
-16,
-47,
12,
7,
24,
33,
-14,
-60
] |
MR. JUSTICE ANGSTMAN:
This action was commenced on April 8, 1952, to quiet title to sections 6 and 8 in Township 20, North, Range 51, situated in Dawson County.
Defendant George W. Fillner filed an answer in which he alleges in substance that he is the owner of the south half of section 6. The reply put in issue the allegations of the answer. Upon leave of court the plaintiff was permitted to file an amended reply in which he asserted the doctrine of laches and adverse possession, together with the fact that plaintiff has paid all the taxes and assessments levied and assessed upon the lands since the year 1944.
The cause was tried to the court sitting without a jury and the court made findings of fact and conclusions of law in favor of the plaintiff and against the defendants. The answering defendants George W. Fillner and his wife, Verna Fillner, have appealed from the judgment.
So far as material here the substance of the court’s findings is as follows: that the defendant Verna Fillner is the wife of George Fillner and her only interest in the property is that of her inchoate right of dower; that defendant George Fillner acquired title to the south half of section 6 by a United States patent on the 25th day of January, 1919; that the taxes for the years 1923 to 1929 became delinquent and unpaid; that Dawson County gave notice by registered mail to George W. Fillner of application for a tax deed.
That on the 9th day of December, 1930, the clerk and recorder filed an affidavit showing the manner in which the notice had been given to the effect that the deed would be applied for December 30, 1930; that on the 30th day of December, 1930, the county treasurer of Dawson County executed and delivered a tax deed to Dawson County for the south half of section 6, which deed was duly recorded; that for the years 1930 to 1941 the south half of section 6 was not assessed to anyone because the record title thereto stood in the name of the county; that from the year 1938 until the year 1942 the land was leased to Daniel Killen and his partner Fred W. Woolsey, and was used for grazing purposes in the manner customary in that territory at that time.
That on the 9th day of February, 1942, Dawson County entered into a written contract with Daniel Killen for the sale of section 6 to him, which contract was filed in the office of the county clerk and recorder of Dawson County February 9, 1942; that on the 12th day of November, 1943, Dawson County executed and delivered to Daniel Killen a quitclaim deed to section 6, reserving to Dawson County six and one-fourth per cent of all oil, gas and minerals recovered and saved from the land, which deed was recorded November 12, 1943.
That on March 28, 1944, Daniel Killen executed and delivered to plaintiff, Jacob Hentzy, a quitclaim deed to section 6, which was duly recorded on March 28, 1944; that Hentzy, by and through his predecessors in interest, entered into the possession and control of all of section 6 in 1938; that ever since that time plaintiff and his predecessors in interest have continuously used, possessed and controlled the land for the purposes of husbandry and pasturage and for the purpose of making improvements thereon and for the purposes for which the lands were best adapted and in the manner in which the lands in that particular community were used; that the plaintiff and his predecessors in interest built and maintained fences on the premises involved, and that the possession of plaintiff and his predecessors in interest was actual, visible, exclusive and continuous for more than the statutory period; that the plaintiff and his predecessors in interest have paid all taxes levied on the land from the year 1942 to the date of trial.
From these findings the court concluded that the plaintiff acquired title to the land by adverse possession, and that the defendants have no right, title, claim or interest in the land. The court likewise found in accordance with the mutual agreement of all parties that the tax deed issued to Dawson County for the south half of section 6 is void. Judgment was entered decreeing plaintiff the owner of the property, but saving to Dawson County six and one-quarter per cent of all the oil and gas and other mineral produced and saved from the land pursuant to the agreement of the parties.
The determinative question involved on the appeal is whether, under the undisputed facts in the case, the claim of adverse possession as to the south half of section 6 is good under our statutes. R. C. M. 1947, section 93-2508, provides in part as follows: “When it appears that the occupant, or those under whom he claims, entered into the possession of the property under claim of title, exclusive of other right, founding such claim upon a written instrument, as being a conveyance of the property in question, * * * and that there has been a continued occupation and possession of the property included in such instrument * # * under such claim, for ten years, the property so included is deemed to have been held adversely # * *.”
And under R. C. M. 1947, section 93-2509, it is provided in part that land is deemed to have been possessed and occupied in the following cases: “1. Where it has been usually cultivated or improved. 2. Where it has been protected by a substantial inclosure. 3. Where, although not inclosed, it has been used for the supply of fuel, or of fencing timber, either for the purpose of husbandry, or for pasturage, or for the ordinary use of the occupant.”
R.C.M. 1947, section 93-2513, provides in substance that adverse possession shall not be considered established unless the party claiming shall have paid the taxes legally levied and assessed on the land.
Appellants contend that the possession under a contract for a deed is not under color of title within the meaning of R. C. M. 1947, section 93-2508 since it provides that the adverse possession must be founded upon a claim upon a written instrument, “as being a conveyance of the property in question.” The difficulty with that contention is that here the instrument in writing upon which adverse possession was founded is a tax deed running to the county and hence is a written instrument which purports to be a conveyance of the property. The possession taken by the tenant and vendee of the county was under the law possession by the county under its tax title. Sullivan v. Neel, 105 Mont. 253, 73 Pac. (2d) 206.
This court has held that a tax deed though void is ample as color of title so as to sustain the claim of adverse possession. See Morrison v. Linn, 50 Mont. 396, 147 Pac. 166; Horsky v. McKennan, 53 Mont. 50, 162 Pac. 376. To the same effect by necessary inference is the case of Fitschen Brothers Com. Co. v. Noyes’ Estate, 76 Mont. 175, 246 Pac. 773; and Pritchard Petroleum Co. v. Farmers Co-op. Oil & Sup. Co., 121 Mont. 1, 190 Pac. (2d) 55.
Here it was shown that after the county obtained the tax deed it leased the land in 1938 to predecessors in interest of the plaintiff. The county then entered into a contract for the sale of the land in February 1942 to Daniel Killen, and later and in 1943 deeded the property to him by quitclaim deed. He in turn in 1944 gave a quitclaim deed to plaintiff. Thus it is shown that the County of Dawson had color of title to the land in question from December 30, 1930, the date it received the tax deed, until in 1943 when the county deeded the property to Daniel Killen. Furthermore, contrary to the contention of appellants, the rule is that color of title may be evidenced by a contract for the sale of land. 1 Am. Jur., Adverse Pos session, section 196, page 901; 2 C. J. S., Adverse Possession, section 130 b, page 688. An instrument which purports to convey the land or the right to its possession is sufficient color of title as a basis for adverse possession if the claim is made in good faith. Fitschen Brothers Com. Co. v. Noyes’ Estate, supra, and Sullivan v. Neel, supra.
In reliance on a statement in 2 C. J. S., Adverse Possession, section 72, page 606, defendants contend that possession under a void tax deed is of no avail to the possessor during the time when title is in the government. The author cites the case of Wright v. Louisville & N. R. Co., 203 Ala. 118, 82 So. 132, in support of the text. Neither the text nor the Wright case has application here. The government is not involved in this case. It is not sought here to show adverse possession against the government. Here it is sought to show the county’s adverse possession, through its tenant and vendee under a lease and contract of sale, against the original owner, the defendant George Fillner.
Appellants contend that the evidence does not show open, actual, exclusive, hostile and notorious possession of the land for the ten-year period. They concede that there was sufficient possession to sustain a claim of adverse possession since 1944, the time when plaintiff acquired title to the land. Their contention is that the possession prior to the year 1944 was not sufficiently established. We have carefully considered the evidence in the ease and find there is ample evidence in the record sustaining the finding of the trial court on the subject of adverse possession for the statutory period.
The evidence bearing upon the question of possession before 1942 shows that Daniel Killen and Fred W. Woolsey, two sheep-men from Miles City, leased the lands from Dawson County on a yearly cash basis. The lease also covered section 8. They operated a sheep business together and ranged the sheep under the care of a sheepherder upon the lands here involved as well as other land in the summer time, but wintered the sheep in the valley on sugar beet toDS and alfalfa liar. The sheen were at all times kept tinder control by tbe use of tbe herder, a camp tender and sheep dogs. The herder and the dogs kept other straying livestock off the premises in the summer time in order to save the grass and water for the sheep. No one attempted to assert title to the land at any time during the occupancy by Fallen and Woolsey. Fallen entered into a contract with Dawson County to purchase section 6, and about the same time Woolsey entered into a contract to buy section 8. Each thereafter acquired a quitclaim deed from the county.
After their purchase on the contracts of sale from Dawson County, they commenced paying the taxes on the property. After the contract to purchase was made to Fallen, the land here involved was used in the general and customary manner for grazing sheep in the area. While Mr. Woolsey testified on cross-examination that he was not sure that he could pick out section 6 at the time he and Fallen were running sheep, yet he said; “There would be no occasion for me to have to pick it out, I had a man representing me and he looked after the business. Q. The man on the field knew the facts and you relied on him? A. That is right, he and I were partners.”
Plaintiff also testified that he has lived in the vicinity of the lands for many years and that Fallen and Woolsey grazed the lands with sheep in the forties prior to the time he bought it and that the sheep were herded in the usual manner. There is ample evidence showing that the land was used for the ordinary use of the occupants within the meaning of subdivision 3 of section 93-2509, for more than the statutory period of 10 years before this action was commenced. See Sullivan v. Neel, supra.
Other contentions of appellants have been considered, but we find no reversible error in the record.
Finding ample evidence in the record to sustain the trial ■court’s findings and conclusions, the judgment appealed from is affirmed.
MR. JUSTICES ANDERSON, DAVIS, and BOTTOMLY, concur.
MR. CHIEF JUSTICE ADAIR, dissents.
|
[
20,
42,
-2,
13,
23,
-47,
27,
34,
2,
22,
-30,
-36,
-18,
-17,
41,
-16,
-14,
-16,
43,
-13,
1,
-88,
-18,
-31,
50,
33,
-11,
36,
-35,
22,
12,
62,
-59,
-25,
2,
27,
44,
-21,
-29,
-29,
-40,
0,
15,
9,
-7,
44,
-53,
7,
-3,
-31,
41,
-22,
29,
22,
-23,
-39,
18,
3,
-14,
-3,
36,
-19,
-4,
53,
35,
25,
21,
-9,
-23,
-38,
24,
-42,
-10,
-2,
4,
-30,
-1,
13,
-39,
47,
-6,
13,
61,
-6,
-15,
-53,
-63,
-11,
6,
38,
-55,
-9,
-2,
36,
0,
-7,
38,
10,
-1,
5,
7,
-6,
24,
22,
13,
-4,
-48,
15,
41,
23,
-45,
-30,
10,
2,
-4,
-18,
55,
3,
0,
17,
2,
-24,
19,
33,
-2,
37,
-9,
-22,
17,
10,
-42,
20,
13,
-1,
-20,
-35,
33,
-27,
5,
34,
0,
6,
1,
-41,
28,
-20,
45,
6,
36,
-10,
-17,
28,
66,
29,
32,
-64,
49,
9,
-18,
-66,
-6,
-41,
18,
-38,
-13,
50,
39,
-13,
-9,
23,
-2,
-37,
23,
33,
-16,
-27,
15,
-16,
0,
5,
52,
-41,
-6,
0,
37,
-13,
20,
7,
22,
50,
45,
-51,
38,
-50,
-7,
25,
-14,
7,
-36,
-25,
33,
3,
2,
17,
11,
15,
29,
9,
31,
10,
-3,
-42,
-11,
10,
-3,
-4,
14,
15,
-11,
-10,
9,
16,
-11,
1,
27,
15,
59,
-36,
-14,
-21,
8,
-28,
14,
5,
-116,
-18,
36,
-58,
-54,
-8,
-29,
-14,
25,
17,
-13,
25,
-62,
-31,
-62,
34,
-49,
-21,
-81,
68,
5,
-10,
39,
-31,
-33,
-27,
9,
-1,
-14,
27,
3,
-26,
-6,
-61,
4,
-1,
-21,
-4,
44,
18,
-57,
-18,
3,
-28,
4,
-35,
26,
8,
25,
8,
6,
48,
-20,
44,
-18,
6,
-20,
-31,
-22,
-46,
35,
19,
32,
-53,
78,
28,
-10,
66,
9,
-11,
-5,
-28,
-25,
-41,
7,
28,
-19,
25,
-9,
-4,
0,
0,
51,
17,
12,
-2,
53,
27,
-18,
34,
-13,
40,
-52,
-9,
8,
35,
-40,
-16,
-43,
7,
-7,
-44,
-45,
-20,
36,
0,
8,
-10,
-7,
48,
49,
28,
-21,
-6,
-36,
-2,
-26,
-15,
-18,
20,
-83,
-5,
6,
23,
72,
-20,
10,
29,
32,
-29,
-44,
-11,
-40,
-37,
0,
-14,
-9,
0,
25,
-2,
21,
18,
-25,
-15,
9,
-14,
-7,
7,
-28,
3,
5,
20,
-10,
-28,
0,
-13,
-41,
-45,
-33,
9,
8,
-45,
44,
-5,
-17,
-15,
-11,
17,
24,
37,
-66,
-3,
-2,
-3,
-27,
20,
19,
-36,
17,
-9,
31,
2,
-48,
31,
40,
28,
-9,
-16,
11,
-44,
10,
-82,
56,
0,
4,
0,
10,
64,
-16,
7,
66,
10,
-18,
23,
13,
43,
11,
12,
18,
7,
-11,
17,
-36,
80,
34,
3,
12,
26,
-32,
-18,
-5,
35,
65,
-42,
6,
41,
-6,
28,
-1,
-24,
25,
-43,
2,
-10,
-35,
37,
32,
39,
2,
-10,
-11,
39,
-9,
-16,
74,
-49,
12,
-58,
-60,
-46,
-34,
-33,
-67,
32,
11,
48,
41,
20,
-15,
-17,
9,
-56,
18,
-21,
81,
50,
-15,
9,
45,
32,
4,
53,
-16,
2,
-22,
79,
4,
-29,
-9,
-15,
15,
-9,
33,
22,
-9,
-16,
-25,
-12,
11,
3,
8,
-9,
33,
17,
21,
-23,
0,
-41,
-16,
16,
-51,
19,
26,
18,
-55,
-17,
28,
8,
19,
20,
-60,
-15,
5,
-39,
25,
-27,
23,
-32,
0,
-2,
-32,
5,
-25,
-53,
-35,
-32,
49,
0,
-14,
-36,
-4,
6,
-38,
-33,
-11,
-29,
11,
-23,
25,
-24,
36,
17,
-68,
-19,
0,
27,
2,
-32,
31,
-4,
-8,
17,
31,
29,
-6,
22,
-28,
-14,
-42,
1,
48,
-36,
-5,
12,
-13,
-26,
-30,
-7,
-2,
10,
70,
8,
-10,
16,
25,
31,
-15,
9,
19,
29,
45,
41,
8,
-47,
15,
-31,
21,
13,
20,
-4,
-5,
27,
-33,
31,
-30,
-20,
16,
-23,
9,
10,
35,
-5,
20,
0,
-28,
7,
13,
-63,
-51,
4,
-25,
1,
-9,
-27,
18,
2,
38,
-6,
-20,
-1,
13,
-14,
-40,
-22,
15,
-10,
46,
-13,
-2,
-11,
-18,
-18,
34,
-50,
-25,
-14,
4,
-50,
-39,
10,
-24,
-1,
-9,
19,
39,
-25,
55,
-16,
50,
48,
17,
-23,
37,
6,
-26,
-3,
50,
44,
36,
59,
-53,
7,
-10,
24,
-21,
-4,
48,
43,
3,
-23,
11,
47,
63,
-26,
-32,
6,
6,
-9,
0,
-6,
-32,
-1,
19,
-26,
-25,
19,
-14,
-9,
-73,
-91,
29,
27,
35,
-13,
-3,
5,
78,
49,
-35,
-41,
0,
10,
-29,
-15,
-23,
5,
54,
-36,
-15,
57,
-4,
-19,
7,
-12,
-10,
-17,
14,
-3,
6,
20,
0,
-4,
-39,
-2,
-39,
-74,
33,
55,
-56,
-35,
-6,
-18,
-21,
-33,
-44,
8,
-12,
25,
-38,
-55,
32,
-13,
-32,
-58,
31,
4,
23,
1,
0,
-64,
18,
24,
22,
45,
8,
13,
-39,
-13,
39,
-44,
-57,
22,
9,
1,
-13,
-3,
8,
65,
18,
19,
14,
22,
-23,
66,
-32,
22,
-57,
0,
28,
-63,
-45,
0,
-7,
88,
-20,
-22,
33,
-20,
0,
-14,
15,
13,
1,
-3,
-15,
25,
17,
-10,
-38,
11,
5,
-28,
13,
4,
-50,
-26,
34,
-4,
-39,
-20,
-4,
-9,
10,
-5,
31,
18,
-38,
11,
3,
-10,
-40,
-40,
6,
34,
-30,
46,
68,
14,
14,
-42,
-31,
-6,
44,
10,
-15,
47,
-18,
20,
24,
31,
36,
-21,
-5,
8,
24,
9,
-42,
31,
-16,
9,
-19,
10,
9,
87,
-6,
25,
-24,
23,
-27,
-3,
-60,
7,
30,
-56,
-34,
-37,
3,
21,
7,
-4,
7,
-29,
40,
10,
77,
22,
15,
-33,
-2,
-16,
-54,
-68,
-14,
-34,
2,
18,
25,
-18,
-45,
10,
-17,
0,
5,
1,
16,
58,
-17,
60,
-29,
5,
61,
35,
-55,
-4,
-15,
-51,
35,
16,
26,
29,
-5,
16,
41,
-46,
-4,
13,
27,
4,
39,
47,
22,
42,
-64,
-58,
34,
-22,
-10,
26,
1,
-25,
31,
-66,
-2,
26,
-17,
5,
-10,
-11,
24,
0,
34,
38,
-5,
65,
89,
-19,
17,
7,
-27,
28,
32,
15,
-23,
-40,
-57,
-30,
10,
12,
-20,
-21,
28,
53,
10,
-12,
-15,
-27,
32,
-52,
-27,
-10,
-3,
-46,
32,
-7,
39,
5,
-42,
-45,
-2,
-71,
0,
61,
4,
0,
-17,
13,
-21,
-37,
-85,
13
] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
Jerry Sawyer, twice having been convicted of unlawfully possessing intoxicating liquor, was again accused of that of fense. The prior convictions were alleged and these he admitted at his trial. He denied committing the instant offense bnt the jury found him guilty as alleged in the information. His motion for a new trial was denied. From the judgment and order denying the motion for a new trial, he has appealed.
The facts are that on February 5, 1924, a dep,uty sheriff and two policemen acting under a search-warrant made search of the premises occupied by defendant in the city of Bozeman. They did not find any liquor in his residence, but in an outhouse, “a combination woodshed and toilet,” they found six jugs or containers, in three gunny-sacks, two containers in each sack. Moonshine whisky was in the containers. There was a well-beaten path in the snow leading from the kitchen door of the residence to the outhouse, which had but one door without a lock upon it. There was no other toilet on the premises. During the morning of the day in question defendant had been working upon some logs which he intended to build in’to a garage. These were ‘ ‘ right back of the toilet. ’ ’ He quit work about 11, went “up town,” and remained there until 4 in the afternoon. Just before going to town he went into the outbuilding.
Defendant testified that to the best of his knowledge, there were not any containers or jugs in there at that time. He did not put any there, and did not authorize anyone to put any there. After his return home from town, and before his arrest, he had not been to the outhouse. He denied all claim to or knowledge of the liquor. His counsel contends that if defendant was not the owner of the liquor, or if he did not put it in the building or authorize its being put there, he cannot be found guilty of unlawfully possessing the same. There was no testimony to indicate that anyone else but defendant had entered the outhouse.
While the search was going on defendant engaged in conversation with one of the policemen. According to that officer’s testimony defendant then said he did not own the outhouse. On the trial defendant denied that he had made any such statement. ,
The fact remains that moonshine whisky was found in a building of which defendant had possession and control, and which was a necessary adjunct to the house in which he lives. The legal presumption is that he had possession and control over the whisky found therein. (State v. Arrigoni, 119 Wash. 358, 27 A. L. R. 310, 205 Pac. 7; State v. Parent, 123 Wash. 624, 212 Pac. 1061.) The presumption was rebuttable, but defendant, in the judgment of the jury, did not overcome it. The jury had the advantage of hearing the witnesses and of observing their appearance and demeanor upon the stand. The demeanor of defendant, his manner of testifying, the tone of his voice, the working of his face, the expression of his eyes, all were observed by the jury; these manifestations may have contributed largely to the verdict the jury found.
If the defendant was in possession of the liquor, prima facie his possession thereof was unlawful. Not only that, it was prima facie evidence that the same was kept for the purpose of being sold, bartered, exchanged, given away, furnished or otherwise disposed of in violation of the law, and “the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed, and used.” (Chap. 116, sec. 3, Laws 1923.) With the jury’s finding we shall not interfere. While the evidence is not very strong, in view of what has been said we cannot pronounce it insufficient to sustain the verdict-
Error is assigned upon one of the court’s instructions. But the alleged error was not “specifically pointed out and excepted to at the settlement of the instructions,” as is required by subdivision 4 of section 11969, Revised Codes of 1921. (Indeed, the instruction was not objected to at all.) Consequently we may not consider the assignment. (State v. Brodock, 53 Mont. 463, 164 Pac. 658; State v. Thomas, 46 Mont. 468, 128 Pac. 588.)
A remark made by the trial court in ruling upon the admissibility of evidence is assigned as error. But the record does not sustain the assignment. The court was not requested to direct the jury to disregard the language of the court which is quoted in the brief. An effort on part of counsel to move the court to instruct the jury to disregard something or other broke down in the middle. If the court’s attention had been called to the language counsel criticises, the court no doubt would have corrected the inaccurate and clearly inadvertent expression used. But we cannot see that the language of the court tended to prejudice the defendant in any way. The testimony offered was for the purpose of impeaching the defendant and the court ruled in his favor.
Finding no error in the record, the judgment and order are affirmed.
Affirmed.
Associate Justices Holloway, Galen and Stark concur.
Mr. Justice Rankin, being disqualified, did not hear the argument and takes no part in the foregoing decision.
|
[
9,
13,
35,
30,
-50,
-74,
-26,
45,
-43,
50,
31,
-16,
0,
6,
45,
-19,
-5,
-20,
5,
-20,
33,
-10,
-12,
1,
25,
-14,
-23,
42,
-38,
12,
23,
-3,
6,
-52,
15,
44,
36,
19,
-2,
-26,
11,
-1,
14,
10,
-10,
-5,
-24,
-30,
10,
23,
15,
-27,
38,
2,
-9,
-2,
23,
49,
10,
49,
5,
35,
-31,
-2,
28,
-55,
7,
7,
-39,
-15,
23,
0,
-37,
-5,
14,
-4,
-4,
16,
-13,
11,
-35,
25,
27,
30,
-55,
-12,
-4,
-31,
26,
25,
5,
21,
-34,
-16,
32,
-13,
-36,
-2,
11,
-4,
-3,
-37,
26,
-16,
41,
37,
-37,
34,
3,
29,
-10,
-25,
6,
19,
-8,
-79,
7,
-28,
-36,
7,
31,
23,
24,
-19,
-22,
-44,
12,
-26,
39,
-4,
-9,
26,
39,
-8,
-42,
-6,
-7,
49,
14,
10,
34,
-6,
51,
-36,
19,
16,
-10,
62,
2,
40,
-10,
17,
-15,
38,
27,
17,
-8,
-40,
-2,
-14,
-31,
-8,
44,
-30,
13,
19,
-22,
-12,
-23,
11,
-12,
-38,
-3,
62,
69,
44,
14,
-11,
-11,
-31,
-25,
-11,
27,
-4,
-4,
32,
38,
-12,
-3,
11,
-44,
-43,
-19,
-23,
-40,
-43,
12,
9,
40,
-39,
-37,
0,
-11,
-11,
34,
-16,
-16,
33,
30,
-31,
-15,
-14,
29,
-65,
-53,
-49,
6,
0,
12,
-11,
0,
14,
1,
33,
-10,
-12,
6,
13,
-18,
11,
-70,
-5,
40,
6,
26,
4,
20,
-36,
-9,
18,
-4,
-11,
-69,
-29,
4,
3,
-59,
0,
2,
46,
7,
-25,
7,
20,
-29,
-12,
30,
-61,
-12,
-17,
40,
28,
-14,
-12,
-31,
11,
-17,
-19,
-14,
57,
4,
-12,
19,
-6,
-33,
-9,
19,
30,
-13,
19,
22,
-18,
65,
53,
-10,
-23,
-16,
58,
-32,
-10,
23,
-9,
-51,
-8,
44,
11,
56,
43,
0,
25,
12,
-20,
-33,
32,
-48,
0,
-28,
31,
-32,
-28,
14,
-10,
-3,
-10,
36,
-9,
18,
21,
14,
11,
-33,
-31,
39,
1,
0,
-43,
25,
42,
36,
26,
15,
13,
-3,
25,
-49,
-20,
27,
-21,
21,
59,
-17,
-6,
7,
-59,
-50,
3,
2,
11,
-29,
-83,
20,
-33,
12,
45,
-17,
6,
8,
-25,
17,
-39,
52,
-3,
-35,
23,
4,
-40,
-28,
-24,
7,
-9,
20,
-31,
40,
-38,
27,
3,
15,
-23,
-86,
31,
-1,
-44,
-9,
-30,
22,
-10,
0,
-65,
-46,
3,
25,
3,
1,
0,
-43,
13,
16,
-1,
33,
-38,
-36,
6,
13,
0,
8,
-18,
6,
79,
53,
-15,
-51,
-26,
-41,
-8,
29,
23,
-33,
48,
-7,
-17,
-10,
8,
42,
-22,
73,
-38,
13,
6,
4,
-8,
14,
9,
-23,
-3,
-37,
-10,
18,
10,
12,
-3,
-29,
4,
-61,
10,
45,
5,
-36,
28,
17,
-31,
-24,
21,
-20,
-28,
0,
71,
26,
7,
6,
-26,
46,
29,
-47,
-30,
0,
4,
0,
-25,
-33,
27,
19,
-7,
-8,
-69,
-27,
55,
21,
15,
-2,
-55,
28,
4,
45,
10,
22,
1,
-61,
-71,
18,
33,
24,
11,
7,
-71,
-48,
-38,
19,
-17,
-11,
23,
-48,
-3,
-45,
3,
-15,
-9,
43,
39,
16,
70,
-9,
53,
-19,
-56,
-3,
-34,
4,
40,
-6,
-13,
38,
12,
32,
-2,
-38,
14,
-13,
-109,
-12,
-41,
-27,
7,
-16,
-13,
7,
1,
44,
9,
1,
-31,
68,
-53,
20,
29,
-26,
6,
-14,
-42,
0,
4,
6,
49,
-36,
-19,
15,
0,
-50,
15,
-57,
0,
16,
14,
13,
-16,
3,
35,
-45,
35,
49,
18,
-25,
36,
20,
-11,
2,
12,
15,
24,
-28,
-4,
25,
8,
49,
-14,
-32,
46,
-12,
-28,
-62,
-5,
-7,
-7,
-58,
23,
-2,
0,
-4,
9,
-45,
11,
-28,
4,
58,
28,
-10,
-1,
14,
-7,
-9,
43,
24,
31,
29,
-7,
-50,
51,
-17,
-37,
50,
9,
-10,
-14,
-25,
2,
-1,
-26,
-35,
21,
20,
-20,
-42,
-10,
19,
43,
43,
34,
-31,
54,
-72,
-20,
41,
-33,
-9,
20,
5,
18,
13,
36,
-21,
7,
20,
-46,
19,
30,
-10,
-6,
-6,
-22,
8,
-56,
12,
31,
-56,
27,
-17,
8,
46,
-20,
-15,
20,
40,
-34,
-34,
34,
-12,
-40,
4,
0,
18,
25,
5,
-37,
28,
-10,
30,
24,
11,
5,
30,
-5,
15,
16,
33,
40,
-26,
51,
-24,
-11,
14,
-60,
2,
-43,
59,
-8,
21,
28,
61,
-58,
-26,
16,
-17,
18,
-19,
24,
16,
-23,
15,
-15,
-36,
19,
-19,
-10,
3,
-15,
35,
6,
-39,
-9,
0,
-35,
8,
-7,
3,
39,
-8,
13,
-29,
6,
12,
29,
-3,
12,
-27,
23,
0,
2,
5,
-5,
0,
15,
28,
-6,
30,
2,
18,
53,
62,
9,
-53,
-52,
26,
27,
-25,
12,
-84,
26,
-6,
-26,
27,
39,
1,
-22,
-18,
0,
-38,
21,
-18,
-10,
19,
10,
-27,
-17,
-72,
-34,
6,
42,
4,
69,
32,
17,
-28,
-12,
-19,
25,
-4,
0,
-4,
26,
-18,
37,
0,
-20,
50,
-2,
48,
-31,
18,
18,
-14,
-19,
-17,
25,
39,
-37,
-17,
4,
-36,
-62,
13,
-28,
24,
-33,
-46,
9,
27,
-37,
-43,
-7,
-47,
12,
-33,
13,
0,
-13,
-26,
-26,
9,
-9,
-40,
18,
-26,
32,
0,
29,
2,
-24,
11,
16,
-14,
57,
2,
-10,
-4,
19,
-37,
27,
8,
-11,
26,
28,
5,
-41,
12,
-23,
0,
33,
50,
-37,
-34,
40,
-28,
-30,
35,
-12,
-29,
43,
-7,
-13,
59,
-11,
-35,
6,
8,
-2,
19,
12,
18,
-35,
31,
6,
35,
8,
-43,
-10,
-47,
-37,
16,
-40,
11,
-68,
16,
-89,
-40,
34,
11,
-84,
75,
46,
12,
-27,
-6,
2,
2,
-8,
-34,
-54,
-63,
-14,
15,
-33,
31,
20,
-16,
57,
-33,
33,
-20,
-27,
-22,
76,
-44,
17,
43,
0,
-30,
20,
13,
21,
25,
-47,
-85,
25,
24,
90,
-3,
33,
18,
-60,
-5,
46,
7,
12,
-20,
85,
34,
12,
-21,
7,
-12,
9,
-12,
9,
-20,
6,
-41,
-17,
-5,
64,
-16,
21,
-9,
18,
78,
41,
9,
28,
-13,
22,
26,
-16,
-6,
20,
-31,
-1,
8,
36,
-7,
57,
-68,
56,
-59,
-13,
-11,
56,
-17,
45,
-56,
17,
-43,
-28,
60,
-20,
-73,
2,
40,
-6,
-32,
31,
-58,
-32,
-39,
-65,
8,
-13,
-21,
28,
32,
47,
-65,
35,
-32,
-37,
-10,
42
] |
MR. JUSTICE GALEN
delivered the opinion of tbe court.
This is an action in injunction. The cause came on for bearing upon an order to show cause why tbe defendants should not be enjoined from interfering with and preventing tbe plaintiff from operating for hire a line of motor-busses between tbe city of Wallace, in tbe state of Idaho, and tbe city of Kalispell, in tbe state of Montana. It was submitted upon tbe admitted facts contained in tbe pleadings, and no testimony was introduced.
It appears from tbe allegations of. tbe complaint admitted by tbe answer that the plaintiff, a Montana corporation, since the first day of June, 1924, has been tbe owner of and engaged in tbe operation of an automobile bus or stage line having its western terminus in tbe city of Wallace, Idaho, and its eastern terminus in the city of Kalispell, Montana, and passing through tbe counties of Missoula, Labe and Flathead in tbe state of Montana; such line is and has been since tbe first day of June engaged in tbe transportation of passengers and baggage between such points for hire and profit, tbe busses or automobiles being operated daily. Tbe plaintiff is engaged in interstate commerce between such points, and no question is raised as to the good faith of the operation or tbe adequacy of the facilities furnished.
Tbe plaintiff made application to tbe board of railroad commissioners to operate interstate business between Wallace, Idaho, and Kalispell, Montana, offering to comply with tbe law and all reasonable rules and regulations, which was denied, tbe reasons assigned therefor being (1) that there is adequate service between Missoula and Kalispell; and (2) that by the issuance of such a permit to the plaintiff others engaged in the carriage of passengers and freight by automobile between those points would probably not be able to withstand such competition. It does not -appear whether the plaintiff was given a hearing.
Subsequently the plaintiff made proper application to the board of railroad commissioners for the issuance of a permit to conduct such interstate business from Missoula, Montana, to Wallace, Idaho, offered to furnish bonds -and comply with the law and all rules and regulations of the board. On the same day, June 20, 1924, the board declined and refused to issue such permit, and there is nothing in the record to indicate the plaintiff was accorded any hearing on its last application.
The plaintiff began operation between Wallace, Idaho, and Kalispell, Montana, and the defendants have been causing the arrest of the operators of its busses in the various counties of the state of Montana through which they passed, and have announced that they would continue to do so acting under authority alleged to be given by Chapter 154 of the Laws of 1923-,
An injunction was by the court denied and the case is now before us on appeal from the order denying the injunction. The determinative questions necessary to be considered by us in disposing of this appeal are: (1) Has the state authority to impose regulations on carriers engaged in interstate commerce? (.2) May the board of railroad commissioners arbitrarily refuse to permit an interstate automobile carrier of freight and passengers to operate over the highways in Montana? And (3) Has it done so in the instant case? Thes-e questions will be considered and disposed of together.
Chapter 154 of the Laws of 1923, which is here involved, by its title purports to be an Act to provide for the supervision and regulation of transportation of persons and property for compensation over any public highway in Montana by motor vehicles, defining transportation for compensation and providing for supervision and regulation by the Railroad Commission and providing for the enforcement of the Act and punishment for violation thereof. The second section provides that no one shall operate motor vehicles for such transportation for hire over the highways of Montana except in accordance with this Act.
Section 3 gives the Railroad Commission supervision and the power to inquire into rates, fares and charges and to prescribe reasonable ones and to require adequate facilities and to require the filing of annual reports and such other data as may be required by the commission. The Act likewise leaves cities and towns free to enact and enforce reasonable regulations and ordinances, including licenses.
Section 4 reads as follows: “No transportation company, as defined in section one of this Act, shall hereinafter [hereafter?] operate any motor vehicle, motor truck, motor trailer, bus trailer, semi-trailer or other trailer in connection therewith for the purpose of transportation of persons or property for compensation on any public highway of this state without first having obtained from the railroad commissioners of Montana a certificate which shall set forth the special terms and conditions under which permission is granted to operate any of the vehicles above mentioned. * * * A permit issued by the Railroad Commission to operate any motor vehicle or any other vehicle prescribed by this Act for compensation over any of the highways of the state of Montana shall not be an exclusive right or license to operate over any route, road, highway or between any fixed terminals, but said Commission shall have the power after hearing, when the applicant requests a certificate to operate in a territory already served by a certificate holder or license, under this Act, only when the existing auto transportation company or companies serving such territory, route or stage line, does not provide adequate transportation facilities and services to the satisfaction of the Commission, and in all other cases with or without hearing, to issue said certificate as prayed for, or for good cause shown to refuse to issue same or to issue it for the partial exercise only of the said privilege sought, and may attach to the exercise of the rights granted by certificate such terms and conditions as in its judgment, the public convenience and necessity may require.”
Section 6 requires the filing with the Railroad Commission of a bond or taking liability insurance to provide for compensation for any injuries to persons or property resulting from the operation of vehicles. The section also requires a bond for the payment of all fees due the state and for the faithful carrying out of the permit granted.
Section 7 .gives the Railroad 'Commission full power in the matter, provides for rehearing and actions for review in the state Courts, and appeals to the supreme court.
Section 8 requires the payment of an annual license fee in accordance with the weight and size of the vehicle, provided that such fees shall be used for the expense of administering the Act.
Section 9 makes a violation of the Act a misdemeanor punishable by fine or imprisonment, or both.
Section 10 reads as follows: “Neither this Act nor any of the provisions thereof shall be applied or be construed to apply to commerce with foreign nations or commerce among the several states of this Union except in so far as the same may be permitted under the Constitution of the United States, treaties made thereunder and the Acts of Congress.”
Section 11 provides that if any section or portion of the Act should be held unconstitutional such holding shall not affect the remaining portions. The Act was approved March 12, 1923.
The Act, like almost all of the regulatory statutes passed, in the different jurisdictions in the last few years, contains the common requirement that the applicant must obtain a certificate of convenience and necessity. The theory underlying such a requirement is the theory which underlies public service laws generally, based upon the principle of regulated monopoly. The principle is well set forth in a recent Illinois case where the regulation of motor vehicles was involved: West Suburban Co. v. Chicago & West Towns Ry. Co., 309 Ill. 87, 140 N. E. 56, P. U. R. 1923E, 150. The court uses this language: “It is not the policy of the Public Utilities Act to promote competition between common carriers as a means of providing service to the public. The policy established by that Act is that, through regulation of an established carrier occupying a given field and protecting it from competition it may be able to serve the public more efficiently and at a more reasonable rate than would be the case if other competing lines were authorized to serve the public in the same territory. Methods for the transportation of persons are established and operated by private capital as an investment but as they are public utilities the state has the right to regulate them and their charges; so long as such regulation is reasonable.”
Was it the intention of the legislature in enacting Chapter 154 that the same should apply at all to interstate commerce? If it was not, then clearly no compliance with its provisions on the part of the plaintiff is required. Section 10 of the Act above quoted seems to answer that question since it provides that the provisions of the Act shall not be construed to apply to commerce among the states except in so far as may be permitted by the Constitution of the United States and the Acts of Congress, indicating a clear legislative intent that its provisions shall apply to interstate traffic in so far as the Constitution and the Acts of Congress permit.
Section 8 of Article I of the Constitution of the United States provides that Congress shall have power “to regulate commerce with foreign nations and among the several states and with the Indians.” Acting under this power Congress has assumed to regulate interstate commerce of certain kinds by means of the Interstate Commerce Act (U. S. Comp. Stats., sec. 8563 et seq.), which governs interstate commerce by railroads and other designated agencies, but it clearly does not assume to regulate interstate commerce by motor vehicles. Indeed, Congress has not assumed to regulate commerce between the states carried on by this means, so that we hare a field which Congress has the right to ocenpy bnt has not yet done so. In the absence of action by Congress, how far may the states go in regulating such commerced
It is of course a fundamental principle of constitutional law that a state may not directly regulate, prohibit or burden interstate commerce. (Gibbons v. Ogden, 9 Wheat. (U. S.) 1, 6 L. Ed. 23 [see, also, Rose’s U. S. Notes].)
“If a state enactment imposes a direct burden upon interstate commerce, it must fall regardless of federal legislation. The point of such an objection is not that Congress has acted, but that the state has directly restrained that which, in the absence of federal regulation, should be free. If the Acts * * * constitute a direct burden upon interstate commerce, they would be invalid without regard to the exercise of federal authority touching the interstate rates said tó be affected. * * * ‘The genius and character of the whole government,’ said Chief Justice Marshall, ‘seems to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a state, then, may be considered as reserved for the state itself.’ (Id., p. 195.) This reservation to the states manifestly is only of that authority which is consistent with, and not opposed to, the grant of Congress. There is no room in our scheme of government for the assertion of state power in hostility to the authorized exercise of federal power.” (Minnesota Rate Case, 230 U. S. 352, 57 L. Ed. 1511, Ann. Cas. 1916A, 18, 48 L. R. A. (n. s.) 1151, 53 Sup. Ct. Rep. 729.)
Under the principles laid down by the decisions there can be no question but that all reasonable regulations properly within the exercise of the police power of the state and not in conflict with any Act of Congress may be applied by the states to carriers engaged in interstate commerce. That this is so in the case of interstate automobile traffic has been held by the supreme court of the United States in at least two cases: Hendrick v. Maryland, 235 U. S. 610, 59 L. Ed. 385, 35 Sup. Ct. Rep. 140 [see, also, Rose’s U. S. Notes]; Kane v. New Jersey, 242 U. S. 160, 61 L. Ed. 222, 37 Sup. Ct. Rep. 30. In the first of these cases the court says: “The movement of motor vehicles over the highways is attended by constant and serious dangers to the public, and is also abnormally destructive to the ways themselves. Their success depends on good roads the construction and maintenance of which are exceedingly expensive; and in recent years insistent demands have been made upon the states for better facilities, especially by the ever-increasing number of those who own such vehicles. As is well known, in order to meet this demand and accommodate the growing traffic the state of Maryland has built and is maintaining a system of improved roadways. Primarily for the enforcement of good order and the protection of those within its own jurisdiction the state put into effect the above-described general regulations, including requirements for registration and licenses. A further evident purpose was to secure some compensation for the use of facilities provided at great cost from the class for whose needs they are essential and whose operations over them are peculiarly injurious. In the absence of national legislation covering the subject a state may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles — those moving in interstate commerce as well as others. And to this end it may require the registration of such vehicles and the licensing of their drivers, charging therefor reasonable fees graduated according to the horse power of the engines — a practical measure of size, speed, and difficulty of control. This is but an exercise of the police power uniformly recognized as belonging to the states and essential to the preservation of the health, safety and comfort of their citizens; and it does not constitute a direct and material burden on interstate commerce.”
In the Kane Case the court says: “The power of a state to regulate the use of motor vehicles on its highways has been recently considered by this court and broadly sustained. It extends to nonresidents as well as residents. It includes the right to exact reasonable compensation for special facilities afforded, as well as- reasonable provisions to insure safety. And it is properly exercised in imposing a license fee graduated according to the horse-power of the engine. (Hendrick v. Maryland, 235 U. S. 610, 59 L. Ed. 385, 35 Sup. Ct. Rep. 140 [see, also, Rose’s U. S. Notes].)”
Applying these principles we do not hesitate to hold that all reasonable regulations with reference to the matter of registration, license fees and the like such as are contained in Chapter 154 are within the power of the state and apply to automobiles engaged in interstate traffic as well as those operated exclusively within the state. Accordingly it is within the province of the board of railroad commissioners to whom the legislature has delegated authority, to administer the Act and impose reasonable and impartial regulations in the use of our highways by persons engaged in, or purposing to engage in, the transportation of passengers and freight by automobile as a common carrier. However, in so doing the board must have sufficient evidence before it to justify its decision. It may not act arbitrarily or capriciously. This case is easily differentiated from the ease of Buck v. Kuykendall, 295 Fed. 197, relied upon by the trial court' in denying the injunction. It is conceded by counsel that had it not been for the opinion in that case the injunction sought would have been issued on the admitted facts. That decision was by the district court of the United States for the western division of the southern district of the state of Washington. The case having been presented and heard was decided on December 7, 1923, by Gilbert, Circuit Judge, and Cushman and Neterer, District Judges, in an opinion written by Judge Neterer, and a supplemental opin ion by Judge Neterer, rendered January 7, 1924, concurred in by Rudkin, Circuit Judge, and Cushman, District Judge.
We think the trial court was mistaken in its application of that decision. There the determination made by the department of public works of the state of Washington was not made arbitrarily as was done in i instant case by the board of railroad commissioners. That case actually approved the right of the state of Washington through its department of public works to prevent common carriers engaged in interstate commerce to operate upon sufficient showing made. Assuming that the federal court was right, which in our opinion is very doubtful, the decision in the Buck Case is not applicable to the facts in the case under consideration. In the Buck Case the admitted facts'made to appear in the order of the department of public works are nearly as strong as it is possible to make them to justify the order of the department of public works in denying the plaintiff’s certificate of necessity and permission to operate over the public highways in the state of Washington in connection with his proposed operation of motor vehicles as' a common carrier between Portland, Oregon, and Seattle, Washington. Reference to the facts recited at great length will readily show the difference in the case under consideration and the Buck Case. It is clear from the facts recited in the present case that the board acted most arbitrarily and its only justification of the order by it made in denying the plaintiff the license he sought was that the issuance of such permit would injuriously affect others licensed to operate between Missoula and Kalispell in the state of Montana, but it does not appear from the record that the plaintiff was accorded hearing on this application. The application made by the plaintiff for a permit to operate in Montana between Missoula, Montana and Wallace, Idaho, was summarily denied the day it was presented. It must be borne in mind .that in this case plaintiff offered to comply with the law and all rules and regulations imposed by the board, and that it is provided with ample equipment to render efficient service, so we are not called upon to decide whether the board may in a proper case refuse to permit a common carrier engaged in interstate commerce to use the public highways of this state. The plaintiff in its application offered to do and perform all that might be required of it by the law or the board. It could not do more. The reasons assigned by the board of plaintiff’s application are wholly inadequate.
Rehearing denied September 10, 1924.
This disposes of all questions under consideration. Although we reach a different conclusion from the learned judge pro tempore, A. N. Whitlock, Esq., who heard and determined this cause in the lower court, we wish to acknowledge material assistance in reaching our decision from the written opinion rendered by him in this case, which has been made available to us by counsel.
It is our opinion that the trial court was in error in denying the plaintiff an injunction; therefore the order is reversed and the cause remanded to the district court of Missoula county, with directions to grant the injunction.
Reversed cmd remanded.
Mr. Chief Justice Callaway and Associate Justices Cooper, Holloway and Stark concur.
|
[
13,
21,
18,
45,
21,
0,
22,
21,
-9,
36,
-29,
-6,
10,
-5,
-14,
-23,
-15,
-6,
44,
-6,
-44,
20,
-44,
-12,
-12,
-27,
-25,
-2,
-67,
11,
59,
11,
28,
24,
-37,
44,
1,
12,
55,
14,
59,
35,
-30,
-8,
56,
9,
30,
-54,
21,
-12,
36,
0,
-3,
5,
-38,
-23,
-6,
-11,
-32,
-3,
-30,
-76,
13,
57,
34,
-36,
27,
38,
-24,
14,
-55,
17,
-17,
-19,
11,
-9,
-7,
-7,
-4,
24,
-17,
1,
15,
-83,
-38,
54,
-78,
-15,
-4,
15,
-10,
-19,
-47,
-29,
36,
42,
-20,
-29,
-21,
-31,
22,
-28,
-7,
-31,
-25,
15,
-55,
19,
66,
47,
-24,
47,
-32,
-47,
1,
-30,
-45,
28,
32,
-6,
-35,
-30,
-28,
36,
-6,
-46,
-13,
12,
-25,
-7,
-5,
11,
40,
83,
18,
13,
-16,
-43,
15,
9,
50,
-5,
33,
23,
-9,
-2,
67,
45,
-42,
-14,
4,
-3,
24,
26,
-25,
2,
34,
-32,
77,
2,
35,
11,
73,
37,
1,
19,
-8,
1,
-17,
7,
-36,
19,
-16,
11,
34,
39,
-25,
-7,
-14,
-17,
-38,
22,
-2,
-60,
16,
-8,
55,
20,
-2,
-29,
38,
-27,
31,
8,
-33,
10,
4,
-51,
5,
15,
40,
18,
-51,
49,
-58,
25,
8,
43,
23,
48,
18,
24,
13,
-34,
4,
-14,
-18,
-3,
41,
-51,
69,
-4,
-20,
-7,
-46,
-38,
3,
10,
-25,
1,
-10,
15,
-4,
44,
15,
-9,
6,
-24,
-32,
-5,
32,
17,
6,
-44,
-9,
14,
-39,
-48,
-24,
0,
-6,
-23,
10,
35,
34,
-14,
19,
-9,
-29,
-43,
40,
18,
-14,
-13,
-2,
-55,
-18,
-12,
0,
-10,
14,
30,
32,
6,
-1,
-71,
50,
-36,
76,
-40,
14,
3,
-60,
29,
23,
11,
5,
-2,
-4,
-13,
-12,
-19,
1,
43,
27,
-6,
60,
38,
-11,
11,
36,
-35,
-43,
69,
0,
23,
-58,
20,
-18,
5,
-1,
-10,
-32,
-28,
40,
0,
14,
-10,
24,
-33,
20,
71,
8,
-8,
25,
10,
2,
34,
26,
-13,
95,
7,
-58,
39,
-13,
-47,
31,
-24,
9,
7,
-4,
40,
8,
0,
-16,
6,
7,
2,
-7,
-21,
-18,
25,
29,
15,
-32,
11,
8,
-55,
-40,
-8,
-1,
-39,
8,
-16,
22,
-7,
0,
32,
-13,
-11,
5,
-15,
14,
-26,
31,
-12,
8,
63,
-43,
16,
-23,
15,
22,
-14,
15,
52,
-5,
-28,
-54,
-53,
-6,
2,
-7,
50,
21,
-32,
0,
11,
-7,
-14,
-34,
24,
-7,
-9,
16,
-14,
50,
34,
-29,
10,
-34,
-53,
5,
-28,
3,
13,
8,
22,
-53,
10,
8,
-42,
3,
-7,
14,
-22,
11,
4,
-16,
-18,
-39,
-1,
34,
5,
-57,
-23,
68,
-25,
-12,
-21,
10,
-15,
-47,
-2,
-20,
-53,
9,
-5,
20,
-47,
7,
16,
-27,
7,
-42,
26,
-2,
12,
-19,
-13,
0,
64,
6,
17,
6,
2,
23,
-36,
41,
11,
-7,
44,
-13,
47,
-13,
7,
-48,
-4,
-24,
-4,
-75,
-26,
2,
0,
62,
-27,
13,
4,
34,
53,
40,
51,
-8,
-40,
-70,
-24,
13,
-8,
45,
-5,
-43,
15,
16,
11,
-42,
31,
28,
3,
-58,
23,
36,
-26,
34,
-7,
-23,
31,
-32,
52,
-54,
-1,
46,
56,
33,
-26,
-28,
-7,
25,
-27,
45,
-21,
-15,
18,
-6,
24,
-44,
-18,
41,
17,
11,
-30,
2,
-21,
-39,
-68,
-2,
-15,
-18,
24,
55,
-11,
11,
7,
2,
-34,
19,
-8,
-23,
6,
-42,
0,
29,
2,
-19,
-26,
41,
33,
-71,
14,
7,
-9,
-36,
18,
0,
-32,
-1,
20,
6,
-3,
-28,
7,
-28,
-52,
-23,
-21,
-47,
-19,
10,
16,
-12,
6,
24,
-34,
-19,
34,
8,
29,
-1,
18,
-3,
17,
-5,
14,
-7,
34,
15,
7,
-71,
-18,
39,
12,
-31,
-2,
-17,
14,
-22,
33,
-5,
-25,
55,
-9,
-8,
-30,
15,
-13,
-2,
-9,
-47,
7,
11,
-21,
-60,
8,
-31,
13,
-2,
29,
18,
23,
11,
-19,
30,
44,
39,
-80,
-22,
-27,
-26,
52,
-20,
58,
28,
43,
25,
-70,
-15,
62,
13,
0,
-23,
-13,
35,
-9,
-16,
8,
-80,
-22,
2,
23,
38,
29,
67,
-44,
9,
-8,
15,
-37,
13,
-10,
19,
67,
-12,
17,
54,
-64,
10,
-1,
54,
42,
-3,
-2,
1,
34,
-25,
30,
14,
-39,
-9,
4,
-25,
-33,
16,
-4,
-31,
25,
-60,
16,
-41,
-2,
-3,
66,
21,
-50,
8,
-23,
10,
-26,
43,
16,
-56,
-59,
40,
-20,
-29,
2,
38,
16,
37,
-19,
-25,
25,
27,
70,
-6,
-17,
2,
4,
17,
-26,
22,
-48,
-26,
28,
31,
15,
-68,
12,
-10,
-34,
-33,
-32,
3,
-28,
36,
-11,
19,
-34,
-28,
45,
-5,
-59,
41,
-28,
35,
44,
-41,
-8,
-18,
-37,
-56,
-15,
41,
-42,
-55,
-23,
-15,
-12,
-1,
22,
28,
22,
-25,
-29,
-48,
-7,
14,
-29,
8,
44,
37,
53,
21,
14,
53,
-30,
-5,
23,
14,
-8,
0,
13,
1,
-1,
-41,
62,
-50,
0,
19,
4,
30,
23,
-37,
16,
3,
-23,
26,
-22,
-26,
7,
-45,
-23,
-52,
0,
-5,
17,
7,
-62,
-35,
-14,
10,
7,
70,
-9,
-1,
-6,
-49,
45,
51,
-5,
16,
-20,
24,
-5,
-44,
-28,
48,
-4,
11,
-6,
2,
-3,
-60,
69,
-11,
-39,
13,
7,
12,
0,
17,
113,
-18,
18,
-66,
-13,
37,
-44,
-3,
-70,
-19,
33,
16,
16,
70,
13,
13,
-35,
52,
4,
57,
1,
4,
-51,
18,
19,
-14,
-21,
19,
10,
47,
30,
1,
-40,
-46,
-33,
-8,
-3,
-26,
-15,
20,
33,
-39,
22,
-7,
61,
-38,
-21,
46,
-4,
-12,
15,
2,
14,
-4,
-56,
19,
21,
-48,
41,
72,
35,
61,
0,
-17,
18,
-47,
43,
-78,
-5,
33,
51,
-19,
30,
11,
-47,
3,
11,
-21,
30,
-4,
7,
-11,
-6,
-11,
14,
1,
-35,
-29,
-15,
13,
18,
28,
32,
-25,
39,
9,
-21,
-47,
25,
38,
-63,
-12,
56,
55,
-35,
-51,
-50,
-15,
-46,
43,
3,
-12,
59,
5,
-4,
-23,
32,
18,
0,
-15,
-26,
27,
8,
5,
20,
24,
-9,
-23,
-20,
-31,
-22,
2,
-2,
-45,
-35,
14,
3,
-21,
-4,
0,
-27,
-20,
-9,
-39,
-9,
4,
-13,
9,
-19,
24,
-1,
-10,
16,
-32,
-34,
52,
27,
-4,
-17,
-19,
-1,
-36,
18,
12,
-4
] |
MR. CHIEF JUSTICE CALLAWAY
delivered tbe opinion of tbe court.
Tbe plaintiff, Butte & Superior Mining Company, brought tbis action against tbe defendant county treasurer in the district court of Silver Bow county to restrain him from selling tbe Black Rock mine, plaintiff’s property, for taxes. Tbe court issued a restraining order and an order to show cause wby an injunction should not issue against defendant. Demurrer to tbe complaint and a motion to quash the order to show cause were filed by defendant and after a bearing both were sustained by tbe court. Judgment followed in defendant’s favor, from wbieb plaintiff has appealed.
From tbe record it appears that for approximately eleven years prior to tbe year ending May 31, 1920, tbe plaintiff operated tbe Black Rock mine which lies wholly within Silver Bow county, and during each year made the return to the taxing authorities required by law and paid the taxes assessed upon the net proceeds of the ores mined. During that time it paid net proceeds taxes amounting in the aggregate to $554,666.27, which included $100,629.22 representing the net proceeds of ores which were adjudged to be the property of others than itself. For the year ending May 31, 1920 (returns are made for the year beginning June 1 and ending May 31; see. 2563, R. C. 1907; see. 2089, R. O. 1921), the plaintiff made return that- instead of showing a profit for that year its operations showed a deficit Avhich came about in this way: The gross yield of ores of the Black Rock mine for that year were $6,787,783.48. The deductions permitted by section 2565, Revised Codes of 1907, then in force, amounted to $5,601,537.68. During the year plaintiff was compelled to pay to the Clark-Montana Realty Company and the Elm Orlu Mining Company the sum of $2,719,379.73 on account of ores which the plaintiff had extracted from the properties of those companies during the years 1912 to 1919, and for which it had made return to the taxing authorities and paid taxes during those years. In its return for the year ending May 31, 1920, the plaintiff added that sum of money, $2,719,379J3-, under the head “Cost of Ore Purchased” to the statutory deductions and thereby there was shown a deficit of $1,533,133.93. "Without deducting the item “Cost of Ore Purchased” a net profit of $1,186,245.80 would have been shoAvn.
The assessor of Silver Bow county and the state board of equalization as then constituted permitted the deduction. A proceeding resulted in which George Bourquin as county attorney of Silver Bow county and as a taxpayer sought from the district court of Silver Bow county a writ of mandate to com pel the county assessor and the state board of equalization to assess the net proceeds of mines of the Butte & Superior Mining Company. The district court sustained motions to quash interposed by the assessor and the -board and dismissed the action. The relator then appealed to this court. (State ex rel. Bourquin v. State Board of Equalization, 67 Mont. 340, 215 Pac. 667.) Upon consideration we decided the Butte & Superior Mining Company could not lawfully make the deduction of $2,719,379.93 as for ores purchased, in addition to the deductions specifically allowed by statute; neither did the state board of equalization have power to authorize any such deduction. The case was reversed and remanded to the district court, with direction to overrule the motion to quash which had been interposed by the state board.
In the meantime the people adopted the amendment to section 15 of Article XII of the Constitution and the legislative assembly enacted Chapter 3 of the Laws of 1923, which was approved February 2, 1923. The governor thereupon appointed J. W.¡ Walker, O. A. Bergeson and A. J. Yiolette members of the state board of equalization; they qualified, and thereafter were substituted as parties defendant in State ex rel. Bourquin v. State Board of Equalization then pending in the district court of Silver Bow county, whereupon a writ of mandamus was issued by that court directing the “said substituted board and the members thereof to convene and consider the assessment of plaintiff herein; thereafter, and on or about the 8th of December, 1923, a notice was served upon plaintiff by said board of equalization.” The notice advised the plaintiff that the state board of equalization, pursuant to a resolution adopted by it on December 8, 1923, “intends and proposed to determine and assess the net proceeds yielded to you, the Butte & Superior Mining Company, for the year ending May 31, 1920, on the Black Rock mine, situated in Silver Bow county, state of Montana, operated by you, at the sum of $1,186,245.80 as property having been omitted from and having escaped taxation for the year 1920, all of which more fully appears in the resolution of said board hereto attached and made a part hereof.”
After a hearing on December 21, 1923, at which plaintiff’s representatives appeared and were heard the board ordered the county treasurer of Silver Bow county to enter against the plaintiff in the book called “Assessment Boll of Net Proceeds of Mines” an assessment of net proceeds for the sum of $1,186,245.80, as property having been omitted from assessment and taxation in Silver Bow county for the year 1920. The county -treasurer, as directed, entered upon the tax-rolls against the plaintiff the sum of $53,944.49, as and for the net proceeds of mines tax for the year ending May 31, 1920. Claiming that the tax had become delinquent together with penalties, interest and costs accruing, the defendant caused to be published a notice that the property of the plaintiff would be sold for the payment thereof, unless the taxes were paid prior to the twenty-second day of January, 1924. Then the plaintiff commenced this action, as is above narrated.
The plaintiff denies the power of the state board of equalization to assess the net proceeds of mines, challenges the right of the board to assess any property lying wholly within a county, asserts that in any event the board had no right to make the assessment as for “omitted property.” under Chapter 3 of the Laws of 1923.
1. Plaintiff insists that under the Constitution the primary power to assess property lying wholly within a county rests solely with the assessor; that the state board of equalization under the Constitution has only the power to change, increase or decrease the assessor’s valuation. While these precise questions have not been decided by this court it has passed upon others closely akin.
In Missouri River Power Co. v. Steele, 32 Mont. 433, 80 Pac. 1093, it was held that the legislative assembly was acting within its authority in creating a board of appraisers in each county for the purpose of fixing valuations of real property as a basis for assessment; that the assessor did not have exclu sive power to do so. It was pointed out that while the Constitution (Art. XVI, see. 5) provides for an assessor in each county it does not define any of his duties. When the duties of an officer are not prescribed by the Constitution the legislative assembly may do so. That body has the right to prescribe the manner in which property shall be assessed, and by what authority, unless the Constitution makes provision otherwise.
Except as the people have withheld it by constitutional inhibition, plenary power of legislation is reposed in the legislative assembly. (Missouri River Power Co. v. Steele, supra; State v. State Board of Equalization, 56 Mont. 413, 185 Pac. 708, 186 Pac. 697; The Veto Case, 69 Mont. 325, 222 Pac. 428.)
By the provisions of section 16 of Article XII of the Constitution: “All property shall be assessed in the manner prescribed by law except as is otherwise provided in this Constitution. The franchise, roadway, roadbed, rails and rolling stock of all railroads operated in more than one county in this state shall be assessed by the state board of equalization. * * * ” Exclusive power to assess the specific property named is vested in the state board of equalization; as to that power the legislature may not detract, but as to the assessment of all other property (not otherwise expressly provided for in the Constitution) the legislature has plenary power. In matters relating to the assessment of property it may impose additional duties upon the state board of equalization. In other words, in conferring specific powers upon the board by the provisions of section 15 of Article XII of the Constitution the people simply have named certain powers which the legislature may not take away; but by naming certain express powers it was not intended to prohibit the legislature from adding others. Such is the effect of the holding in the well-considered case of State v. Board of Equalization, supra, which settled the question as to the power of the legislature to authorize the board to make original assessments of inter-eounties property other than railroad property. The court affirmed the well-known principle that in such case “the inquiry is not whether the power for a particular enactment is to be found in express terms in the Constitution, but whether there is anything in that instrument which forbids the legislation.”
By the provisions of section 3 of Article XII of the Constitution, “the annual net proceeds of all mines and mining claims shall be taxed as provided by law.” As the Constitution has not designated the officer or agency by which such net proceeds shall be assessed we conclude that the legislature had the authority to confer upon the state board of equalization the power to assess the same. (State v. State Board of Equalization, supra.) This power is set in motion by the enactment of Chapter 237, Laws of 1921, sections 2089-2096, Revised Codes of 1921.
2. By the provisions of section 15 of Article XII, as originally adopted, the governor, secretary of state, state treasurer, state auditor and attorney general constituted the state board of equalization. The duties of the board were “to adjust and equalize the valuation of the taxáble property among the several counties of the state”; and to “perform such other duties as may be prescribed by law.” (Const., Art. XII, sec 15.) By an amendment adopted in 1916, the specified duties of the state board were extended. The section was again; amended in 1922. By its terms “the state board of equalization shall be composed of three members who shall be appointed by the governor, by and with the advice and consent of the senate.” The following express powers are given: “The state board of equalization shall adjust and equalize the valuation of taxable property among the several counties, and the different classes of taxable property in any county and in the several counties and between individual taxpayers; supervise and review the acts of the county assessors and county boards of equalization-; change, increase, or decrease valuations made by county assessors or equalized by county boards of equalization; and exercise such authority and do all things necessary to secure a fair, just and equitable valuation of all taxable property among counties, between the different classes of property, and between individual taxpayers. Said state board of equalization shall also have such other powers, and perform such other duties relating to taxation as may be prescribed by law.”
Following this amendment the legislative assembly enacted Chapter 3, Laws of 1923. Section 11 of the Act provides that: “Whenever the state board of equalization shall, in any year, discover that any taxable property of any person has not been assessed in such year, or that it has been omitted from taxation during any previous year or years, the state board may assess the same for such year or for such previous years.” Then follow modal directions not necessary to note here. The section concludes: “And provided further that all assessments of omitted property must be made within three years after the end of the calendar year in which the same should have been assessed.” It was under this section that the state board acted in making the order of December 21 which caused the defendant treasurer to proceed against the plaintiff.
Counsel for plaintiff say, if it be conceded the state board has the power to assess net proceeds of mines in a proper case it did not have the right to do so in this instance; they say the language of the constitutional amendment implies nothing but prospective action; as the statute is not expressly declared to be retroactive it must have prospective operation only; but by the action of the board the law is made retroactive in effect; therefore all the board’s acts “relating back beyond the date of its creation and its being empowered, are null and void,” save such acts as are referred to in section 7 of Chapter 3 under the head of “Continuity of Action of Former Board.” It is conceded that the board’s order is not based upon the provisions of section 7.
It is true that in 1920 it was the duty of the assessor of Silver Bow county to assess the net proceeds of the Black Rock mine and no other then had such power; also that after the power was conferred upon the state board in 1921 it did not assess the net proceeds. The property thus escaped taxation. It was omitted from taxation during the years 1920, 1921, 1922 and 1923, until after the decision of this court in the Bourquin Case, supra,, and until action was taken by the present state board as is above set out.
Ever since 1891 we have had a statute relating to property which has escaped assessment; beginning with the Codes of 1895 it has read as follows: “Any property discovered by the assessor to have escaped assessment may be assessed at any time, if such property is in the ownership- or under the control of the same person who owned or controlled it at the time it should have been assessed.” (Sec. 2034, Rev. -Codes 1921.) This statute, say counsel for plaintiff, was in force in December, 1923. They say it was then the duty of the assessor to assess the net proceeds of the Black Rock mine, and so by what right does the state board attempt to do so?
Whether the assessor had the right to assess the omitted property in 1923 we need not now decide. The inquiry is not as to ¡the power of the assessor but of the state board, and that the board had the power there is no doubt. The statute confers it affirmatively. (Sec. 11, supra.)
The intention of the people to confer amplified power upon the state board of equalization by the amendment of 1922 is noteworthy. A mere casual inspection of the section as it appeared originally, as amended in 1916, and as amended in 1922, confirms the statement. The concluding sentence of the 1922 amendment: “Said state board of equalization shall also have such other powers, and perform such other duties relating to taxation as may be prescribed by law,” certainly indicates the intention of the electorate to permit the legislature to entrust the board with comprehensive powers respecting taxation.
But does the Act operate prospectively only, or is it retroactive in its operation? Section 3, Revised Codes of 1921, pro vides: "No law contained in any of the Codes or other statutes of Montana is retroactive unless expressly so declared.” This is but a rule of construction. A statute which takes away or impairs vested rights, acquired under existing laws, or creates a new obligation, imposes a new duty or attaches a new disability, in respect to transactions already past, is deemed retroactive. (Sturges v. Carter, 114 U. S. 511, 29 L. Ed. 240, 5 Sup. Ct. Rep. 1014; The Society for Propagating the Gospel v. Wheeler, Fed. Cas. No. 13,156, 2 Gall. 139; City of New Orleans v. Railroad Co., 35 La. Ann. 679; Crane v. Cox, 18 N. M. 379, 157 Pac. 589.) The operation of section 11 of Chapter 3 does not affect the plaintiff in any of those particulars ; it does not take away or impair a vested right, create any new obligation, impose any new duty or attach any new disability in respect to transactions already past.
In contemplation of our law it is the duty of every citizen to return his property for taxation and to pay the taxes levied upon it. It was the obligation of the plaintiff to return this property for assessment in 1920, and to pay taxes thereon. That was settled in the Hour quin Case. These taxes are just as much due now as they were in the year 1920. The legal obligation to pay is present and subsisting. The duty to pay is a continuing present obligation just as imperative to-day as it was in 1920. (Georgia R. R. Co. v. Wright, 124 Ga. 596, 53 S. E. 251.)
In Sturges v. Carter, supra, the supreme court of the United States had under consideration an Act of the state of Ohio (Laws 1878, p. 456, tit. 13) which authorized a tax auditor to go back for a period of four years to correct false returns, and the Act was held not retroactive under the Constitution of Ohio (Art. II, sec. 28), which provided that "the general assembly shall have no power to pass retroactive laws.” The court said: "In our opinion, no right of the taxpayer was invaded by the Act of 1878. His investments in bonds and stocks were subject to taxation; the taxes upon such investments were due to the state, and the Act of 1878 merely provided a method by which the taxes might be assessed and collected in spite of the annual settlements made by the auditor. It gave a new remedy to the state for enforcing a right which it had all the time possessed, namely, the right to the taxes upon property liable to taxation. * * * The Act of 1878 took away no vested right of the taxpayer, it imposed upon him no new duty or obligation, and subjected him to no new disability in reference to past transactions.” After citing authorities, the court said: “The authorities cited are conclusive against the contention that the legislation under review is retroactive.”
A statute is not invalid on the ground that it is retroactive because it relates to the assessment of taxes upon property which has escaped taxation (Cooley on Taxation, 4th ed., sec. 521); on the contrary, such a statute generally is considered remedial in character, and prospective in operation. (Sturges v. Carter, supra; State v. Pors, 107 Wis. 420, 51 L. R. A. 917, 83 N. W. 706; Crane v. Cox, supra; State v. Baldwin, 62 Minn. 518, 65 N. W. 80; Gager v. Trout, 48 Ohio St. 89, 26 N. E. 1013; City of New Orleans v. Railroad Co., supra; Galusha v. Wendt, 114 Iowa, 597, 87 N. W. 512; State ex rel. Hammer v. Vogelsang, 183 Mo. 17, 81 S. W. 1087.)
Both the form and purpose of section 11, supra, are addressed to regulating and directing the conduct of the board in the assessment of omitted property, not to declaring rights or obligations or commanding conduct of those who omit to pay their taxes. Thus viewed, the statute is clearly prospective. It does not seek to regulate or modify the effect of any act or acts already done, but to direct the doing of acts in the future. (State v. Pors, supra.)
No question as to- how the sum of $53,944.49 was made up by the defendant has been presented.
None of tbe contentions urged by plaintiff can be sustained. The judgment is affirmed.
Affirmed.
Associate Justices Holloway, Galen and Stark concur.
Mr. Justice Rankin, being disqualified, did not hear the argument and tabes no part in the foregoing decision.
|
[
-19,
44,
6,
41,
24,
1,
9,
6,
-15,
36,
-5,
36,
28,
-22,
6,
-22,
-64,
-55,
13,
50,
-14,
-51,
-8,
-23,
20,
-1,
-63,
5,
-47,
38,
-3,
-28,
-15,
-28,
27,
52,
7,
-2,
0,
15,
8,
54,
49,
4,
18,
31,
-18,
-52,
7,
24,
39,
11,
0,
29,
-25,
-7,
-30,
-4,
-9,
-5,
29,
-42,
47,
18,
53,
20,
2,
-20,
5,
0,
-55,
15,
37,
-26,
11,
6,
-46,
-48,
-57,
56,
-51,
-23,
-6,
13,
-10,
-22,
-73,
-22,
12,
36,
-5,
0,
0,
7,
57,
23,
-23,
-19,
-53,
12,
16,
-23,
-13,
27,
26,
-15,
-24,
2,
70,
0,
-15,
-6,
-9,
-34,
-8,
29,
-25,
-39,
3,
-27,
3,
-5,
1,
0,
-49,
-1,
-2,
-9,
9,
-29,
-25,
-16,
-21,
24,
-10,
19,
-15,
-17,
-43,
32,
18,
-40,
10,
-18,
-6,
34,
54,
-18,
35,
32,
1,
-8,
2,
112,
11,
-22,
25,
11,
21,
-27,
28,
-9,
78,
8,
-20,
27,
3,
-56,
-19,
-30,
45,
-7,
-36,
0,
25,
47,
21,
-38,
9,
11,
26,
0,
28,
-39,
-12,
3,
15,
48,
16,
6,
15,
-35,
22,
-70,
-29,
-48,
-15,
-24,
-21,
-53,
12,
6,
-24,
37,
-35,
20,
18,
-1,
3,
-22,
-25,
6,
16,
-20,
-33,
41,
-35,
-21,
20,
-28,
48,
34,
1,
45,
24,
-47,
-7,
-21,
29,
-43,
-32,
15,
9,
-28,
-9,
-20,
9,
-12,
-23,
13,
-49,
-55,
-50,
-48,
-9,
17,
-45,
-5,
-20,
9,
-17,
-6,
-29,
65,
-22,
-7,
0,
0,
-39,
-37,
-3,
-17,
33,
20,
35,
-43,
-54,
-6,
15,
-10,
-10,
29,
39,
14,
-28,
-53,
76,
-26,
-10,
-10,
20,
-59,
-7,
18,
23,
39,
-31,
-7,
-51,
-37,
-49,
-18,
51,
-34,
37,
24,
24,
-15,
14,
33,
-34,
3,
-41,
15,
11,
17,
-24,
14,
33,
-5,
-6,
14,
10,
9,
32,
4,
7,
39,
4,
-6,
34,
43,
-8,
3,
21,
54,
67,
5,
-6,
-26,
27,
-21,
37,
-5,
7,
-48,
-1,
18,
0,
-16,
2,
21,
27,
-17,
-17,
37,
-38,
7,
-15,
8,
-35,
-28,
32,
70,
-4,
-5,
25,
-32,
-23,
-34,
71,
-29,
18,
-30,
-4,
-14,
-22,
-26,
-2,
19,
-42,
38,
24,
-13,
38,
-18,
-6,
30,
-55,
37,
14,
9,
45,
1,
58,
25,
43,
7,
-34,
-33,
-30,
3,
54,
61,
-15,
-4,
1,
-60,
-1,
-14,
-46,
0,
2,
-8,
-32,
-23,
29,
5,
1,
-1,
33,
-3,
-66,
-25,
27,
-22,
32,
52,
-4,
43,
53,
-7,
19,
6,
55,
6,
33,
-1,
-32,
14,
-23,
24,
-14,
18,
5,
-51,
17,
31,
0,
-7,
3,
3,
32,
-13,
13,
-44,
-35,
1,
69,
6,
-15,
25,
5,
0,
-52,
46,
29,
-32,
-29,
-19,
0,
58,
5,
18,
-21,
-31,
12,
2,
15,
54,
-3,
62,
26,
19,
-30,
21,
-50,
-22,
11,
-45,
9,
-26,
4,
29,
38,
-22,
-19,
-6,
-10,
1,
-1,
-32,
-28,
-43,
-10,
7,
-61,
-14,
53,
-14,
-49,
-50,
6,
3,
7,
38,
36,
6,
-36,
41,
11,
-13,
27,
-10,
0,
-2,
59,
31,
-14,
17,
13,
35,
-23,
42,
19,
-17,
8,
-41,
96,
-4,
-76,
13,
-38,
19,
-58,
28,
25,
22,
-53,
-42,
69,
-38,
35,
-5,
-13,
-42,
-7,
16,
23,
-37,
41,
9,
8,
26,
-27,
50,
-50,
5,
7,
-19,
-7,
16,
-25,
-18,
33,
12,
-29,
-8,
-46,
54,
-1,
27,
0,
-22,
27,
-15,
-40,
-19,
38,
24,
9,
-58,
13,
-26,
-25,
47,
45,
-6,
34,
13,
28,
-10,
-32,
65,
-25,
-17,
20,
48,
-4,
25,
31,
-14,
-5,
-16,
-23,
-4,
-7,
-19,
36,
-22,
-1,
31,
-18,
14,
44,
14,
-3,
-82,
66,
-11,
12,
-75,
0,
12,
0,
17,
-51,
9,
-85,
40,
4,
-33,
-6,
33,
0,
37,
16,
79,
-58,
-26,
39,
5,
31,
-28,
-65,
-18,
19,
41,
-7,
22,
32,
57,
30,
-21,
-6,
4,
-20,
-16,
29,
-74,
29,
-3,
13,
-9,
-9,
0,
-17,
58,
59,
24,
11,
-37,
-28,
-47,
-14,
-52,
2,
4,
23,
-26,
7,
37,
-2,
23,
19,
22,
26,
45,
-25,
12,
2,
22,
-29,
58,
-44,
-55,
-16,
15,
-38,
9,
-2,
-37,
-1,
44,
42,
3,
29,
-26,
-22,
17,
-2,
-78,
33,
-5,
6,
-9,
-6,
18,
-62,
-36,
9,
-61,
-2,
7,
-5,
-18,
-21,
11,
-41,
38,
66,
66,
-8,
0,
0,
15,
-26,
52,
-63,
-20,
-15,
-32,
-7,
33,
-19,
40,
33,
0,
-29,
18,
-5,
9,
-40,
-18,
1,
-19,
-35,
48,
-8,
-14,
9,
-18,
33,
5,
-30,
-1,
-32,
-38,
-9,
-10,
6,
-24,
-65,
-16,
-17,
-38,
-41,
62,
36,
22,
77,
-8,
15,
-3,
-2,
-46,
-25,
41,
31,
35,
-4,
-39,
32,
-90,
23,
-13,
-9,
-10,
-15,
58,
-6,
34,
0,
13,
63,
12,
3,
16,
-9,
5,
-38,
-13,
20,
-61,
0,
-4,
-61,
38,
-29,
-28,
-70,
0,
4,
2,
17,
2,
-5,
2,
-23,
24,
72,
38,
-40,
-12,
4,
-56,
41,
-4,
-30,
-19,
-2,
-13,
-18,
-35,
17,
17,
-51,
19,
4,
26,
-10,
5,
-20,
-1,
-44,
3,
-6,
-30,
-12,
33,
17,
13,
-65,
40,
-1,
-44,
21,
33,
-27,
35,
-1,
21,
45,
27,
-39,
28,
11,
3,
46,
-28,
-100,
24,
2,
11,
-11,
-45,
42,
-5,
40,
-2,
-1,
-77,
-59,
0,
11,
-56,
-24,
-63,
-3,
0,
-9,
26,
2,
5,
-2,
20,
57,
28,
-17,
50,
-4,
17,
-26,
1,
-57,
27,
21,
8,
8,
13,
57,
-15,
-39,
45,
-18,
1,
-25,
-6,
4,
75,
-29,
31,
25,
-16,
-48,
48,
-19,
-26,
-10,
-27,
0,
3,
24,
18,
33,
15,
14,
-3,
9,
29,
8,
-11,
28,
112,
14,
-39,
-46,
4,
25,
-14,
-54,
-1,
34,
-17,
-21,
-7,
-18,
5,
16,
-30,
-25,
-9,
33,
-3,
13,
-17,
21,
26,
49,
-23,
53,
-42,
0,
-11,
6,
-34,
-46,
-10,
0,
47,
36,
-30,
-51,
1,
26,
-15,
0,
-75,
12,
-33,
-10,
-54,
-5,
-20,
37,
-17,
31,
-23,
25,
-9,
-11,
-21,
-11,
8,
24,
51,
5,
21,
4,
-1,
-16,
-5,
-4,
-10
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.