author: MR CHIEF JUSTICE; BKANT'LY,

text:
    STATE, Respondent, v. FELKER, Appellant.
    (No. 1,818.)
    (Submitted February 19, 1903.
    Decided March 6, 1903.)

      Criminal Law — Homicide—Justification—Defense of Another . — Evidence — Admissibility — Prior Attaclcs on Other— Threats — Burden of Proof — Instructions—Harmless Error.

      1. Evidence in trial for homicide examined and held not to show, as a matter of law, that it was justifiable.
    2. Every fact which would be competent to establish justification of homicide committed in self-defense is competent to establish justification of homicide committed in defense of others.
    3. On the issue whether defendant, when he killed deceased, believed that deceased was about to assault his wife — defendant’s sister — testimony showing that, to defendant’s knowledge, deceased had made prior assaults on his wife, was admissible.
    4. The fact that the prior assaults occurred before November 30th, while the homicide occurred December 15th, did not make the evidence inadmissible, as too remote.
    5. In a prosecution for homicide, insurance policies payable to decedent’s wife — defendant’s sister — should not be admitted to show motive, in the absence of evidence that defendant knew of their existence, and that they were valid, subsisting contracts, or that defendant believed them to be such.
    6. On the issue whether, when defendant killed deceased, deceased was about to assault his wife — defendant’s sister — or was so acting as to warrant defendant in believing he was about to assault her, testimony of prior-threats by deceased against his wife, though not communicated to defendant, was admissible.
    7. An instruction defining the term “preponderance of the evidence” has no place in a criminal trial.
    8. under Penal Code, Section 2081, no greater burden rests upon the defendant than to introduce sufficient evidence to raise a reasonable doubt as to the existence of such so-called affirmative defenses as alibi, insamry and justification.
    9. Where on a charge of murder defendant was convicted of manslaughter-only, the fact that the trial court gave in its charge the statutory definitions of murder in the first and second degrees, — without an additional instruction distinguishing between the two degrees, is not reversible error.
    10. Quaere: Whether upon a charge of murder a verdict of manslaughter acquits the defendant of murder?

      Appeal from District Gourt, Silver Bow County; John B. McGleman> Judge.

    Llewellyn L. Relees was convicted of manslaughter, and appeals.
    Reversed.
    STATEMENT OE THE CASE.
    The defendant was charged by information with the crime of murder, and a trial had upon his plea of not guilty resulted in a verdict of manslaughter. Judgment was thereupon entered fixing his punishment at hard labor in the state prison for a term of ten years. He has appealed from the judgment and an order denying him a new trial.
    The facts leading up to and attending the homicide, about which there is no controversy, are the following: The deceased,. John V. Cunningham, was tbe husband of a sister of the defendant. Cunningham kept a lodging house at 55 West Galena street, in the city of Butte. He and his wife had been having differences for a year or more, the cause of which does not distinctly appear, though statements made by some of the witnesses warrant the inference that they were the result of the violent temper of Cunningham when excited by drink. The killing occurred on December 15,1900. At that time the couple had separated, the wife and the two children living with her mother in another part of the city. The wife had instituted a prosecution against her husband for an assault committed upon her by him on November 30th previous to1 the homicide. She had also brought suit against him for divorce. She was then confined to her bed as the result of wounds inflicted upon her by Cunningham with a knife at the time the assault was made. The immediate cause of the assault was resistance offered by Mrs. Cunningham to an attempt by Cunningham to take from her their older child — a son. Cunningham was anxious to effect a reconciliation, and, ostensibly for this purpose, had gone from the lodging house to visit his wife in company with one Mc-Xinstry. Besides Cunningham, there were present at the bedside the defendant, his mother, and McXinstry. Other persons were passing in and out of the room. Cunningham took to his wife a bunch of flowers, and upon entering the room gave them to her, at the same time kissing her with some demonstration of affection, and inquiring with apparent solicitude after her health. After some conversation, Cunningham stated that he had had no breakfast, and requested Mrs. Felker, the mother, to procure some for him. This she refused to do. She also refused to allow the hired girl to get him breakfast, saying that the hired girl had enough of work without being bothered by him. Finally, however, Mrs. Felker brought in some calces and wine, of which those present partook. Thereupon Cunningham requested that he be left alone with his wife for a few moments. Objection being made by the mother or brother, or both, the request was referred to the wife, who told Cunningham to- speak out what he had to say in presence of the company. He was then sitting on the bedside, or upon a chair near by. He bent down and spoke in a whisper to his wife. The others could not hear all he said, but the uncontradioted statement of the wife is to the effect that he urged her to stop the “prosecution” against him; referring generally to all the legal proceedings then pend ing. She put him off, promising to answer him definitely when she got better; being afraid, she stated, to flatly refuse his request. From this point the statements of the witnesses are conflicting and somewhat confused. There is evidence tending to show that Cunningham, after some hesitation, said, substantially, that the defendant would do' all he could to prevent a reconciliation, to which defendant replied, “Excuse me, but you are telling an untruth.” Some of the witnesses say that the reply was, “Tack (referring to Cunningham), you are a damned liar.” Cunningham had lost his right arm. During the conversation he had been sitting with his left side toward his wife. When this language was used, the mother began to urge Cunningham to' go; saying that the interview had already been too long, the wife being made nervous by his presence. Some of the state’s witnesses say that he started to' leave, saying to the defendant: “Never mind now, Llewellyn. Cut that out. I don’t want any trouble.” This exhortation was also* made by McKinstry, who said to defendant: “Don’t have any trouble here. This is no place to have any trouble.” Other witnesses— among them defendant and Mrs. Cunningham — stated that Cunningham, instead of going, as he was urged to do; drew a dirk from' under his coat, and leaned over his wife; attempting to stab her, and that thereupon the defendant drew his revolver and emptied its contents into the body of Cunningham. Some of the witnesses state that only .one shot was fired. Others swear that five or six were fired, and that, as Cunningham sank to the floor, the dirk fell from his hands, among the bedclothes, where it was afterwards found. Beyond any dispute, at least three shots were fired, as is shown by the wounds upon the body of deceased. McKinstry, the only eyewitness of the tragedy who testified for the state, says that he saw no knife until after the homicide, and after the body had been removed to* an adjoining room. Upon examination there was found upon the back of tbe body, between the left shoulder blade and the spinal column, a wound one-half inch in length and about three-quarters of an inch in depth, apparently made by a stab with a knife or other sharp instrument. The defendant knew that the deceased and his sister intended to- have an interview about noon-on the day of the killing, and was at the house of his mother in order to be present; his sister having expressed a wish to have him present. , lie explains his possession of the revolver at that time by saying that he had put it into his pocket, intending to go out upon the hills with his little nephew, the son of deceased, to hunt j ackrabbits, and had already started from the house for that purpose, when, observing the deceased approaching, he returned, in order to be present at the interview. There was evidence of previous threats by the deceased against his wife. Mc-Kinstry stated in another place in his testimony that, when he first saw the dirk, the defendant had it in one hand, and the revolver in the other, and that he held it up, saying that the deceased had it and was g’oing to stab with it, but did not say whom he was going to stab.
    This brief statement gives a fair general view of the evidence submitted to the jury.

      Mr. Lewis A. Smith,, Messrs. McIJatton & Goiter, and Mr. F. 8. Booth, for Appellant.

      Mr. James Donovan, Attorney General, and Mr. Peter Breen, for the State.
    The evidence of prior assaults by the deceased upon his wife was properly excluded; such alleged assaults were too remote. (Monroe v. State, 5 G-a. 85 ;• People v. Henderson, 28 Cal. 466; Foster v. State, 10 Miss.755; Newcomb v. State, 31 Miss, 283, 400.)
    The defendant cannot prove threats made by the deceased, without also proving that such threats- came to his knowledge before the killing. (Powell v. State, 19 Ala. 511; Rogers v.
      State, 62 Ala. 170;' Goleer v. State, 20' Ark 58; Vann v. State, 83 Ga. 44; State v. Maloy, 44 la. 104; State v. Elliott, 45 la. 486; State v. Sullivan, 51 la. 142; Biaie v. McCoy, 29 La. Ann. 593; State v. Fisher, 33 La. Ann. 1344; State v. Chevalier, 36 La. Ann. 81; State v. Jackson, 17 Mo. 544; People v. Henderson, 28 Cal. 466; People v. Lombard, 17 Cal. 317; Newcomb v. State, 37 Miss. 383; Lingo v. State, 29 Ga. 470; Vaughn v. State, 8 Ga. 731; WiZsori, v. State, 17 L. K. A. 645; A&fe v. Bowser, 42 La.. Ann. 936; Niaie v. Dum-pily, 4 Minn. 438; Davidson v. People, 4 Colo. 147; None? v. State, 21 Fla. 752.)
    The giving of an erroneous instruction is barmless where defendant is acquitted of the offense charged to- which the instruction applied. (State v. Stoclcwell, 106 Mo. 36; State v. McIntosh, 40 S. Car. 349 ; People v. Swift, 66 Cal. 348 ; State v. Murphy, 61 Me. 56; People v. Boling, 83 Cal. 880; Mackey v. People, 2 Colo. 13; State v. Winter, 72 Iowa, 627; People v. TFaZZace, 101 Cal. 281.)
   MR CHIEF JUSTICE; BKANT'LY,

after stating the case, delivered the opinion of the court.

1. It is argued by counsel for defendant that the evidence is insufficient to warrant any other finding than that of justifiable homicide. With this view we cannot agree. The state’s theory of the case at the trial w7as that the circumstances all tended to show deliberate, premeditated murder, and that, instead of being present merely for the purpose of protecting his sister from any violence intended or threatened by the deceased, the defendant armed himself and sought an excuse to kill Cun • ningham, and did kill him without the slightest provocation, other than the charge that the defendant was active, in preventing a reconciliation between Cunningham and his wife. In support of this theory, it is argued that the wound upon the back of the deceased indicated conclusively that the dirk was drawn and used by the defendant, or, in any event, by some other person than the deceased, and that the. statements of Mrs. Cunningham and the defendant- — hostile and interested witnesses — that the deceased drew and used it in an assault upon the former is manifestly false. This view of the state’s evidence;, it is said, coupled with the additional-fact that McEhn-stry, a disinterested witness, did not see the dirlc until after the shooting was over, and then only in the hands of the defendant, who showed it to the witness, stating that the deceased had the weapon and was going to' stab with it, and without stating whom he was going to stab, would have sustained a verdict of murder in either degree; Without pausing to- dismiss the various inferences which might find substantial foundation in the evidence, we are satisfied that the finding of the jury was fully justified, and that this court should not say, as a matter of law, that the trial court erred in refusing to set aside their verdict. With the credibility of witnesses this court has nothing to do; the determination of all questions of fact belonging exclusively to' the trial court, whose findings upon them are conclusive upon appeal. Furthermore, for reasons appearing hereafter, the judgment and order must be reversed. We- shall therefore not express an opinion as to whether the theory of the attorney general is supported by the evidence.

2. The defendant offered evidence tending to show that during the year 1900, and prior to' November 30th, the date at which the deceased had assaulted his wife with a knife, he made two- other felonious assaults upon her, and that the defendant had knowledge of them. This offer was made upon the theory that the homicide was justifiable, since it was done in resisting an attempt to commit murder upon a third person, and any fact which would have been competent for the jury to consider, had the alleged assault out of which the homicide grew been made upon the defendant himself, was competent evidence to sustain his defense in this case. The court excluded the evidence, and the defendant assigns error.

Our Penal Code (Section 361) declares that a homicide is justifiable by any person “when resisting any attempt to murder any person, or to commit a felony, or to' do some great bodily injury upon any person.” IJnder Section 362 of the same Code, in order to justify tbe homicide, a bare fear upon the part of the defendant that murder, or other felony, or great bodily harm, is about to' be committed on such other person, is-not sufficient, but the circumstances must be such as to excite the fear of a reasonable person — in other words, the defendant is not required to wait until a felony is actually about to be-committed, but he may act upon appearances which are sufficient to excite the -apprehensions of a reasonable person in the-same situation. The provisions of the statute put persons acting’ in defense of others upon the same plane as those acting-in defense of themselves. Every fact, therefore, which would be competent to establish justification in the one case wo-uld,. for the same reasons, be competent to establish it in the other. If the defense were that the killing had been done 1» preserve the life of the defendant, or to- secure his person against great bodily harm, the fact that there had been previous difficulties between him and the deceased would clearly have been competent against him, to show the condition of feeling theretofore existing between them, and as tending to- show malice or motive. (State v. Shafer, Mont. 11, 66 Pac. 463.) If offered by the defendant in such case, they would be competent, as tending to- enlighten the jury as to- who- was the assailant, and whether or not the defendant really and in good faith believed himself to be in danger of death or of suffering great bodily harm. So, also, the condition of mind which was known by the defendant to- have been entertained by Cunningham against his wife, as manifested by these acts of violence toward her, would tend directly to showT whether the appearances were such as to arouse fear in the defendant that she was in danger of death or of great bodily harm. The motions made by Cunningham at the time were to be interpreted by defendant) acting in good faith, as a reasonable man, in the light of s-uch knowledge as he had of the condition of mind Cunningham had theretofore manifested toward his wife, and he was entitled to act upon them under the interpretation thus given them. It is entirely clear that any reasonable man, seeing one person about to commit an assault upon another, would upon the instant call to mind sucli previous assault upon the same person, of which he had knowledge, exactly in the same way that he would recall like assaults upon himself, and he would be entitled to act upon the appearances in the one case as well as in the other. The jury, with knowledge of these conditions characterizing the acts of both parties* might conclude that the-defendant acted in good faith in defense of the wife, and not from unlawful motives. (State v. Peterson, 24 Mont. 81, 60 Pac. 809.) The court had admitted evidence of the assault of November 30th upon this theory. Evidence showing the others was excluded upon the ground that they were too remote. This was prejudicial error. Their remoteness went altogether to the weight that should be given them, and not to their competency.

3. The court admitted in evidence two alleged insurance policies effected by Cunningham upon his own life, and made-payable to his wife. This was done upon the theory that the-evidence tended to show motive. Defendant’s counsel objected to the. introduction of them on the ground that they were incompetent and immaterial. They were admitted upon the promise of the county attorney that he would thereafter show that they were valid, subsisting policies, and their existence known to the defendant. Such supplementary proof was not made. The defendant, however, made no motion to have the evidence stricken from the record. As the cause must be tried, again, it is pertinent to remark in this connection that while “any evidence that tends to show that defendant had a motive for killing the deceased is always relevant, as rendering more probable the fact that he did kill him” (State v. Lucey, 24 Mont. 295, 61 Pac. 994), such evidence must, always, in some slight degree, at least, tend to establish the probability of the-existence of the motive alleged. The defendant could not possibly have entertained any purpose to murder the deceased in order to secure the payment of the policies to the wife, as the state sought to show, without knowledge of the fact of their existence. Noi* would the additional fact that he knew of their existence render them of any evidentiary value or pertinence in the absence of some showing that they were valid, subsisting-contracts, or that the defendant believed them to' be such. As the evidence was left at the close of the state’s case, the court should have stricken it out of its own motion.

4. There was offered on behalf of the defendant evidence ■of threats made by the deceased against his wife on November 30th, soon after the assault was committed on that day, and on the morning of the day of the killing, which had not been communicated to the defendant. This was excluded on the ground that such evidence “is only allowed where there is no other way of proving whn is the aggressor.” In determining the competency cf this evidence, it must be borne in mind that evidence had already been given tending to show that the homicide was justifiable upon the ground that the accused was defending his sister ag’ainst an attempt to take her life or to inflict upon her great bodily injury; thus presenting, upon disputed testimony, a question for the jury to decide. It was their duty to inquire whether the assault was in fact made by the deceased in the first instance, and whether, if such were the case, his acts, interpreted in the light of all the surrounding circumstances, were sufficient to create in the mind of the defendant a reasonable fear that Mrs. Cunningham was in danger of losing her life or of receiving great bodily harm at the hands of the deceased. Evidence of communicated threats is always admissible in such cases, as tending to show that at the time the homicide was committed there was in the mind of the defendant a belief that the acts and motions of the deceased meant imminent peril to himself. Aided by it, the jury can intelligently answer the question whether the deceased probably intended to carry them into effect, and whether the defendant acted upon the belief that such was the case. The 'extent of the probability that the deceased entertained such intentions would be the precise extent of the justification of the act of the defendant. “Previous uncommunicated threats of the decedent against the defendant axe admissible as evidence of the decedent’s animus, where a controversy exists as to who was the assailant, or as to whether overt acts were then committed by the decedent which were sufficient to create in the mind of tbe defendant a reasonable fear that he was in imminent danger of suffering great bodily harm or of losing his life at the hands of the decedent.” (State v. Shadwell, 26 Mont. 52, 66 Pac. 508.) The controversy as to who was in the wrong can be correctly determined only by revealing to the jury, so far as may be, the exact relations, actions, and intentions of the parties to the affray, so that the jury may give dne weight to every fact which influenced the mind of the defendant. As we have already said, evidence which would have been competent had the homicide been committed by defendant to .repel an alleged felonious assault against himself, was for the same reason competent in favor of defendant when he acted for a third person, which he alleges as a justification in the present case. It was prejudicial error to exclude the evidence offered.

5. Among other instructions submitted to the jury, the court gave one embodying a definition of what is meant by the term “preponderance of the evidence,” and directing the jury how they should proceed in order to determine on which side of the controversy it lay. In view of the other instructions given, it may be that this was not prejudicial error, but such an instruction has no place in a criminal trial. It is scarcely necessary to remark that the guilt of the defendant must be made out by evidence sufficient to establish every element of the crime charged, or of any included therein, of which the defendant may be convicted, to the satisfaction of the jury, beyond a reasonable doubt. In this state it is now the established rule that even where the so-called affirmative defenses are interposed — such as alibi, insanity, and justifiable homicide — no greater burden rests upon the defendant than to introduce sufficient evidence to raise a reasonable doubt. This rule has been applied in the construction of Section-2081 of the Penal Code; the cases cited by the attorney general (Territory v. Rowand, 8 Mont. 110, 19 Pac. 595; Territory v. Edmonson, 4 Mont. 141, 1 Pac. 738, and like cases) laying down a different rule, having been disapproved. (State v. Peel, 23 Mont. 538, 59 Pac. 169, 75 Am. St. Rep. 529.)

6. The court gave the definition of murder in the words of the statute. Then followed the statutory definitions of murder of tbe first and second degrees,” of manslaughter, and of justifiable homicide; but no additional instruction was given, distinguishing between murder of the first and second degrees. This was error. Like instructions were considered by this court in State v. Baker, 13 Mont. 160, 32 Pac. 647, and State v. Shafer, 26 Mont. 11, 6 Pac. 463; and it was there held that it should not be left to the jury to draw this distinction for themselves, but that it is the duty of the court to do it for them, whether requested by counsel or not. If there were no other ■error in the case, we should hold that this lapse in the instructions was not prejudicial, because the defendant was convicted of manslaughter only. He therefore would not be in a position to complain; nor would it be necessary to notice it at all, were it the established rule in this state that upon a charge of murder a verdict of manslaughter acquits the defendant of murder. It was suggested in the argument that this is the rule. The •question does not properly arise in this case; however, and we refrain from expressing any opinion upon it until it does prap*-erly arise, and the court has the benefit of full argument.

Several other errors are assigned. The suggestions already made are deemed sufficient to guide the district court upon another trial.

The judgment and order are reversed, and the cause is remanded.

Reversed and remanded.


source: Caselaw Access Project

author: MR, CHIEE JUSTICE BRANTLY

license: Public Domain

text:
    MAHONEY, Respondent, v. BUTTE HARDWARE COMPANY, Appellant.
    (No. 1,364.)
    (Submitted February 24, 1903.
    Decided March 6, 1903.)

      Corporations — Ultra Vires — Law of the Case.

    1. Statement on a former appeal that it was not ultra vires for defendant, a corporation, to purchase from plaintiff certain claims against a third party, constitutes the law of the ease.
    ■2. It is not ultra vires for a corporation in the hardware business to purchase a claim against a third party secured by lien, where the purchase is made in good faith and for the protection of its own interests.

      Appeal from District Court, Silver Bow County; John Lindsay, Judge.

    Action by E'cLward L. Mahoney against the Butte Hardware Company. From a judgment for plaintiff, and from an order ■denying a new trial, defendant appeals.-
    Affirmed.

      Mr. Bernard, Noon, and Messrs. McBride & McBride, for Appellant.
    The ratification of an unauthorized contract, to be effectual and binding on the one sought to be bound as principal, must be shown to have been made by him- with full knowledge of all the material facts connected with the transaction to which it relates, and that the existence of the contract^ its nature and consideration, were known to him. (Wheeler v. N. W. S. Co., 39 Fed. 347-350; Owens v. ILutl, 9 Pet. 607-629; Benneck v. Ins. Co., 105 U. Si 360; Blue & Field v. Bank, 121 U. S. 135; Bolling Mill v. B. B. Co., 5 Fed. 852; McLennan v. Whitely, 15 Fed. '322; Dickinson v. Conway, 12 Allen, 487-491.)
    The burden is upon plaintiff asserting ratification, to show that a ratification was made under such circumstances as to be binding upon the party claimed to> be bound as principal, and tliat all material facts were known to' Mm. (Gombs v. Scott, 12 Allen, 493, 496; Ha/rdmum v. Ford, 12 G-a. 205; Wheeler v. N. 17. S. Go., 39 Ned. 347-350.)
    The burden was on plaintiff to sbow Ms authority. (First National Banh v. Occam. National Banh, 60 N. T. 290; Finch v. Kent, 61 Pac. 652; Bank of Deer Lodge v. Hope Mining Go., 3 Mont. 146; Helena National Bank v. Bochy Mt. Tel. Go., 20 Mont. 379; B. S B. Go. y. M. O. P. Co., 21 Mont. 539.)
    Instructions stating the law correctly should not be given if they would mislead the jury. (Huntoon v. Lloyd, 7 Mont. 365-372; Boucher v. Mulvehill, 1 Mont. 379; Goodkind v. Gilliam, 19 Mont. 388.)
    Instructions should not be given unless applicable, and warranted by the testimony. (Dupont v. McAdow, 6 Mont. 230; Brownell v. McCormack, 1 Mont. 65; Kelly v. Gable Go., 7 Mont. 70; Walsh v. Muller, 16 Mont. 188.)
    It is a well established principle in the law of agency that one person cannot make himself the- agent of another so as to bind the other by merely representing that he is such agent; but that the party to whom he malíes a proposal for contract in behalf of his alleged principal is bound at his peril to inquire and find out whether he has authority so to1 contract. {New Harten & G. Go. v. Hayden, 107 Mass. 525.)
    Third parties dealing with an agent are put upon their guard by the fact that they are dealing with an agent and do1 so at their own risk. (Bust v. Baton, 24 Ped. 830; Johnson v. Alar bama Gas & Mfg. Go., 8 So. Hep. 101; Baring v. Pierce, 40 Am. Dec. 534.)
    A principal is responsible for the acts of his agent while acting within the scope of his authority, but courts will not enlarge his liability. (Banh of Deer Lodge v. Hope Mining Go., 3 Mont. 146; First Naif l Banh v. Hall, 8 Mont. 341-346.)
    To charge a corporation upon the act of an officer or agent it must be shown directly or presumptively either that the act was performed while in the discharge of his ordinary duty in the usual course of business, and was within the general scope and apparent sphere of sncb duty, or that it was° expressly authorized, or that it was performed with the knowledge and implied assent of the directors of -the corporation or its authorized officers or was subsequently authorized by them. (Abbott’s Trial Evidence, page 32, Sec. 29; First Nafl Bank v. Ocean Nát’l Bank, 60 N. Y. 278-290.)
    There could be no ratification except by the act of the board of directors after full knowledge of all material facts; (0wr-ings v. Hall, 9 Pet. 629; DesMomes Co. v. Tilford M. Co., 70 N. W. 839, 841; Pac. Rolling Mill v. D. 8. & C. R. Ry. Co., 5 Fed. 852, 858; Lyndon Mill Co. v. Lyndon L. & B. Co., 22 Atl. 575, 577.)
    The burden was on plaintiff to show Watson’s- authority, if any could be shown, to- make the agreement claimed by plaintiff to have been made. (Finch v. Kent, 61 Pac. 652; Bank of Beer Lodge v. Hope. Mining Co., 3 Mont. 146 ; Helena National Bank v. Rocky Ml. Tel. Co., 20 Mont. 379; B. & B. Co>. v. M. O. P. Co., 21 Mont. 539.)
    Corporations are artificial creations existing by virtue of law and organized for purposes defined in their charters; and he who deals with one of them is chargeable with notice of the purpose for which it was formed; and where he deals- with agents or officers of one of them he is bound to know their powers and the extent of their authority. Corporations like natural persons are bound only by the acts and contracts of their agents done.and made within the scope of their authority. (Angelí & Ames on Cor., pages 288-301; Alexander el al. v. Caldwell el al., 83 N. Y. 485 ; Wilson v. Kings. County Ry. Co., 114 N. Y. 487, 21 N. E. 1015-1016; Woodruff v. Rochester & P. Ry. Co., 108 N. Y. 39, 14 N. E. 832-834; Farmers & Merchants Nat’l Bank v. Smith, 77 Fed. 129-135; Victoris Gold Mm. Co. v. Fraser et al., 29 Pac. 667; Art. I, Chap; XV, Fifth Div. Bevised Stat. of Montana, 1879.)
    Power of agent cannob exceed power of corporation. The contract claimed by plaintiff to have been made with defendant was beyond the powers of the corporation to make. ( Relfe v. Bundle, 103 IT. S. 222-226; Whitehurst v. Whitehurst, 83 Va. 153, s. c. 1 S. E. 101; Davis v. Old Colony By. Go41 Am. Rep. 221; Memphis Elevator Go. v. Mem. etc. By. Co., 85 Tenn. 703, s. c. 5 S. W. Rep. 52; PI. Boad Go. v. PI. Boad Company, 7 Wis. 59; N. W. Packet Co. v. Shaw-, 37 Wis. 655, s. c. 19 Am. Rep. 781; Hall y. Auburn Turnpike Go., 27 Cal. 255, s. c. 87 Am. Dec. 75, cited with approval in Hall v. Grhndall, 29 Cal. 572; Morawetz on Corporations, Yol. 2, Secs. 579-580; Besí Breioing Go. y. Xlassen, 57 N. E. 20, 185 Ill. 37.)
    ilír. John W. Goiter, for Respondent.
   MR, CHIEE JUSTICE BRANTLY

delivered tbe opinion of tbe court.

By tbis action recovery is sought by tbe plaintiff of tbe sum of $1,691.31, tbe amount of an account wbicb be alleges be sold to tbe defendant at its face value; and wbicb tbe defendant promised to pay. Tbe account was for a boiler sold and delivered to tbe Sbonbar Mining Company, and for labor done in its bebalf. Upon a former appeal to tbis court, a judgment in favor of tbe plaintiff was reversed and a new trial granted because of error during tbe trial in tbe exclusion of certain evidence. (Mahoney v. Butte Hardware Co., 19 Mont. 377, 48 Pac. 545.) A complete statement of tbe case precedes tbe former opinion. It is therefore not necessary to1 repeat it here. By reference to that statement, it appears that tbe issue between tbe parties on tbe first trial was whether tbe transaction between tbe plaintiff and tbe manager of tbe defendant corporation amounted to' a sale of the account, or whether it was an assignment of it only for tbe purpose of collection. Incidentally there was also involved tbe question whether tbe defendant corporation bad tbe power under its charter to make tbe purchase, and also whether the manager was authorized to make it for tbe company. Tbe plaintiff then contended that be could have secured bis account by filing a statutory notice of a mechanics’ or furnishers’ lien, and that tbe purpose of tbe purchase by tbe defendant was to protect a claim it held against tbe Sbonbar Mining Company, wbicb was unsecured, and therefore inferior to that of the plaintiff and others of like character. Upon the second trial the contention was that the plaintiff was about to attach the property of the Shonbar Mining Company, and that the defendant company, through its manager, purchased the account in order to protect its own unsecured claim, promising that when it finally obtained a sheriff’s deed to the real property of the Shonbar Mining Company it would pay the plaintiff the full amount of his claim. The defendant contended, as before, that the claim was assigned for the purpose of collection only, and that, though it had obtained title to the property, it had obtained it through the purchase of other claims which were secured by liens, and through the foreclosure of such liens, and that, having collected nothing upon the plaintiff’s claim, though it had reduced it to judgment in connection with its own claim, it owed the plaintiff nothing. The plaintiff had judgment, and the defendant prosecutes these appeals from the judgment and an order denying it a new trial.

Many errors are assigned upon the admission and exclusion of evidence and upon the instructions submitted to the jury. The point is also1 made that the evidence is insufficient to justify the verdict. In their briefs counsel have discussed extensively the power of the defendant corporation under its charter to purchase such claims for any purpose, as well as the principles of law of agency applicable. We shall not give special notice to any of the errors assigned. ' A careful consideration of the record reveals no prejudicial error in any ruling of the court upon questions of the admissibility of evidence. There was evidence that the manager had authority to purchase, and that he did purchase, the plaintiff’s account, as plaintiff contended. Touching the contention that the purchase was ultra vires of the corporation, this court on the former appeal said: “It was not per se• an act [of] ultra vires for the appellant to purchase claims against the Shonbar Mining Company, secured by liens, in order to protect its own account. Conceding that it was organized to do1 a hardware business only, still if, in the course of its legitimate business, it became necessary, in the exercise of business prudence, to purchase these claims for the protection of its own interest, and such claims were purchased in good faith, for that purpose only, that would not have been a violation of its charter or of the statutes of the state pertaining to corporations of its character.” This statement became the law of the case, and is conclusive upon this appeal. We think it embodies the correct view. ' There is nothing in the charter of the defendant nor in the laws of this state prohibiting such a transaction, nor was the transaction inconsistent with the purposes for which it was organized, to-wit, to (h> a hardware business. Indeed, we think it among the necessary powers of a commercial corporation that resort may be had by it to. any expedient .not prohibited by law, and within the course of its legitimate business, which may be dictated by motives of prudence, to collect debts due it, or otherwise 1» protect and secure its assets for the benefit of its stockholders, provided only its officers proceed in good faith and for that purpose only. There is no difference in principle between the purchase of a claim which is or may be secured by mechanic’s lien and that of a claim which may be secured by an attachment lien. The fact that the particular expedient resorted to proved ineffective to accomplish the purpose for which it was made does not alter the case or in any wise change the position of the parties'.

Rehearing denied April 10, 1903.

The judgment and order appealed from are affirmed.

Affirmed.

' Me. Justice MilbueN, being ill, did not hear the argument and takes no part in the foregoing, decision.


author: MR. JUSTICE MILBURN

text:
    STOTESBURY, Respondent, v. POWER, Appellant.
    (No. 1,477.)
    (Submitted February 26, 1903.
    Decided March 6, 1903.)

      Express Contract — Action—Pleading and Proof — Nonsuit.
    Under complaint for breach of an express contract in writing, whereby plaintiff agreed to deliver to defendant 125,000 pounds of barley, to be paid for on completion of delivery, the breach being failure to pay, recovery cannot be had on proof of delivery of 17,805 pounds, without allegation or proof of an excuse for not furnishing the remainder, and a motion for nonsuit should be granted.

      Appeal from District Court, Gallatin County; F. K. Armstrong, Judge.

    Action by W. A. Stotesbury against C. B. Power, doing business as tbe Belgrade Elevator Company. From a judgment for plaintiff, and from an order denying him a new trial, defendant appeals.
    Reversed.

      Messrs. Hartman & Hartman, for Appellant.

      Messrs. Luce & Luce, for Respondent.
    Tbe delivery of tbe 125,000 pounds,. “more or less,’7 being subject to tbe option and call of Mr. Power, tbe delivery and acceptance of tbe 17,805 pounds was a compliance witb tbe terms of tbe contract. (Callmeyer ei al. v. Mayor, etc. of New Yorlc, 88 N. V. 116; Merriam v. U. S'., 107 TJ. S. 444; Rea v. Holland (Micb.), 12 N. W. 167; 15 Am. & Eng. Ency. of'Law, 723; Newmarket on Sales, Secs. 261-262; Meherin v. Ball, 8 Pac. 886; Gaylord Mfg. Co. v. Allen, 53 N. Y. 515; Gurney et al. v. Atlantic, etc. By. Co., 58 N. Y. 358; Locke-Y. Williamson, 40 Wis. 377.)
   MR. JUSTICE MILBURN

delivered, tbe opinion of tbe court.

Plaintiff sued defendant to recover for breach of a contract in writing. Tbe instrument was in form a printed blank filled out in writing, and read as follows:

“This agreement made tbe 2nd day of June, 1898, between W. A. Stotesbury of Belgrade, tbe party of tbe first part, and tbe Belgrade Elevator Company, of Belgrade, Gallatin county, Montana, tbe party of tbe second part, witnessetb: Tbat tbe said party of tbe first part, in consideration of, etc., hereby covenant with tbe said party of tbe second part, tbat tbe said party of tbe first part will deliver to tbe said party of tbe second part, at its elevator or storerooms in Belgrade, or loaded on tbe cars at Belgrade, or some equally near point, * * in sewed sacks or bulk, on or before Nov. 1, subject to tbe option and call of the said second party as to tbe place- where, the time when, and * * * whether in sewed sacks or bulk: 125,-000 pounds of No. 1 brewing barley @ $1.05 per cwt. more or less. * * * And tbe said party of the second part, in consideration of tbe said covenants on tbe part of tbe said party of the said first part, hereinbefore contained agrees to and with tbe said party of tbe first part, tbat tbe said party cf tbe second part will pay to the said party of the. first part, or order, tbe price per cwt., hereinabove set down opposite to the grain agreed to be delivered * * * as hereinabove appears-, immediately on tbe completion of tbe delivery of said grain in good order and condition and as is herein provided for as to place> manner and time of delivery.”

Tbe complaint, referring to this contract as part thereof, alleges tbat: “Second. Tbat on or about tbe 2d day of June, 1898, tbe defendant agreed to purchase of tbe plaintiff bis crop of barley to- be grown upon tbe ranch of tbe plaintiff during tbe year A. I). 1898, and agreed to purchase 125,000 pounds more or less of said barley, at tbe agreed price of $1.05 per hundred weight for No. 1 brewing barley, and afterwards, on tbe same day, tbe plaintiff and defendant entered into a contract in writing, a copy of which is hereto attached, and marked Exhibit A, and made a part of this complaint.

“Third. Tbat thereafter, after tbe said crop of barley bad been raised and harvested, in tbe month of October, A. D. 1898, after submitting to defendant a sample of the said barley so raised and grown by plaintiff, the plaintiff, at the defendant’s request and call, delivered to the defendant, at the warehouse of the defendant at Belgrade aforesaid, 17,805 pounds of barley, being the total amount of the said crop' SO' raised, in 188 sacks, making a net amount of barley so delivered, after deducting one pound for each of said sacks, of 17,617 pounds of barley, so delivered by the plaintiff to the defendant.
“Fourth. That the said barley so1 delivered by the plaintiff as aforesaid was No. 1 brewing barley, and uras accepted and received by the defendant from the plaintiff, after due examination, and the said barley for more than three weeks last past has been in the possession of the defendant, and retained as defendant’s property under said contract.
“Fifth. That the plaintiff has fully complied with the- terms of said contract on his part, but the defendant has failed and refused, and still refuses, to pay to the plaintiff the purchase price of said barley so sold and delivered to the defendant by the plaintiff, to-wit, the sum of $184.97, no part of which has been paid to plaintiff, and which has been withheld from the plaintiff since the 20th day of October, A. D. 1898, by an un-reason able and vexatious delay, and' has since that date been due and payable' from defendant to the plaintiff.”

The complaint also1 states that the defendant company and the defendant Power are one, he doing business under the name and style of Belgrade Elevator Company.

The defendant demurred on four grounds, the only one necessary to notice herein being alleged want of substance. The demurrer was overruled. The plaintiff introduced evidence showing the delivery of 17,805 pounds of barley, and tending to show that the quality was that agreed upon. He failed to show a waiver by the defendant of any of the terms of the contract. After this evidence was introduced, he withdrew all evidence tending to show the quality of the grain. Thereupon, the plaintiff having rested, the defendant moved for an order of nonsuit upon the grounds that the suit was for breach of an express contract in writing, and that there was no- evidence that the agreement was complied with by the delivery of the 17,805 pounds of barley appearing by the evidence to have been delivered, and that there did not appear any excuse for the noncompliance with the terms of the contract; that there was not any evidence tending to show that the barley delivered was of the quality agreed upon; that there did not appear to be any waiver of the condition that payment should be made after the delivery of the quantity which plaintiff agreed to deliver — in short, that there was no evidence showing, or tending to show, that, the plaintiff had complied with the agreement in any particular; that the complaint did not state facts sufficient to constitute a cause of action; that if the defendant was indebted to the plaintiff at all it was upon a “quantum meruit’’ and that the complaint would not “sustain a suit upon a quantum meruit for the value of 17,805 pounds of barley delivered.” The court denied the motion for an order of nonsuit. Defendant stood upon his motion. Thereupon the court, of its own motion, discharged the jury from the further consideration of the cause, neither plaintiff nor defendant objecting. Several days thereafter the court found for plaintiff, after allowing a counterclaim, which jdaintiff admitted, and rendered judgment for plaintiff for the full amount of his claim, less the amount of the counterclaim. Prom the judgment and an order overruling defendant’s motion for a new trial this appeal is prosecuted.

We thinlc the court erred in not granting the motion for non-suit. The complaint is upon breach of an express contract in writing. Without passing upon the question whether the complaint states any cause of action, it is sufficient to say that plaintiff could not, under the express contract, recover upon mere proof that he, instead of furnishing approximately 125,000 pounds of barley, had delivered only the comparatively small quantity of 17,805 pounds, without alleging or proving a sufficient excuse in law why he had not furnished the quantity which he agreed to deliver. Perhaps he might, if his evidence warranted, have recovered upon a quantum valebat, if he had asked and obtained leave to amend the complaint to' conform to tbe proof, but be could not recover upon proof tbat be made delivery of only 17,805 pounds:, whatever tbe quality of it may bave been.

It is not necessary to enlarge ibis opinion by discussion of any other point raised by tbe appellant.

Tbe judgment and order must be reversed.

Reversed and remanded.


author: MR. JUSTICE HOLLOWAY,

text:
    MANTLE, Respondent, v. SPECULATOR MINING COMPANY, Appellant.
    (No. 1,873.)
    (Submitted February 19, 1903.
    Decided March 6, 1903.)

      Mines and Mining — Mining Claim — Conveyance — Express Trust — ■Action to- Enforce — Statute of Limitations — Suspension — Action Pending — Operation of Mine — Injunction— Accounting — Laches.
    1. The statute of limitations (Compiled Statutes 1887, First Division, Sec. 47; Code of Civil Procedure 1895, Sec. 518) applies to suits iu equity as well as to actions at law.
    2. As between the trustee of an express trust and the cestui que trust, the statute of limitations commences to run from the date of the disavowal of the trust by the trustee, and knowledge of such disavowal by the cestui quo trust.
    3. Plaintiff and L. purchased iu 1884 an undivided interest in a mining claim, and by mutual oral agreement the title was taken in L.’s name; L. continued to so hold the property until 1&93, at which time plaintiff demanded a deed for his interest, and L. refused to make the deed, disavowed the trust and denied plaintiff’s interest in the property. JTeZd, that an action commenced by plaintiff in 1902 against a purchaser of the property at judicial sale, to secure a decree adjudging plaintiff the owner of a certain interest therein, for an accounting for ores extracted by defendant, and for an injunction restraining defendant from removing ores therefrom,— was barred by the statute of limitations.
    4. The pendency of another suit operates to suspend the statute of limitations only as to the particular suit brought, and not as to the cause of action there involved.
    5. In an action to restrain defendant from working mining property; heldj that, under the particular circumstances, plaintiff’s right to an injunction was barred by his laches.

      Appeal from. District Court, Silver Bow County; E. W. Harney, Judge.

    .Bill by Lee Mantle against the Speculator' Mining Com-. pany. for an accounting of ore extracted, and for an injunction restraining defendant’s further operation of a mine. From an order granting an injunction pendente lite, defendant appeals.
    Beversed.
    STATEMENT OE THE CASE.
    On March 20, 1902,'the plaintiff, Mantle, commenced this action in the district court to secure a decree adjudging him to be the owner of an undivided oneMxteenth interest in the Speculator mining claim, situate in Silver Bow county, Montana, for an accounting for ores extracted by the defendant company, and for an injunction restraining the defendant from further removing ores from the property. ' The complaint sets forth in detail the source and history of the plaintiff’s interest in the property, to the effect that in 1884 plaintiff and Patrick Largey purchased an undivided one-eighth interest in the property, each paying one,-half of the purchase price; that by mutual, oral agreement the title was taken in Largey’s name; that Lar-gey continued to so hold the property until 18-93, when Mantle demanded a deed for his one-sixteenth interest; that Largey refused to make the deed, and then and there disavowed any trust relation as then existing between them, and denied to Mantle that he (Mantle) had any interest in the property whatever; that immediately thereafter, in December, 1893, Mantle commenced an action against Largey to establish and enforce the trust, to secure a decree awarding him an undivided one-sixteenth interest in the property, and for an accounting from Largey for ores extracted from the claim; and that that action is now pending undetermined in the district court, and was at the date of the commencement of this action. The complaint then recites the history of the organization of the defendant company in June; 1901; its purchase of the whole of the Speculator property at a judicial sale ordered by the United States district court in an action in partition therein pending, wherein the Largey heirs were plaintiffs and John A. Creighton was defendant; and the fact that the defendant company has from June, 1901, to March, 1902, extracted $1,500,000 worth of ores from the property, and is still continuing to mine the same, and to appropriate to its own use the proceeds from the ores taken therefrom.
    An order to show cause was issued, and upon the return thereof the defendant company filed its answer, putting in.issue the material allegations of the plaintiff’s complaint, and alleging that plaintiff’s cause of action is barred by the statute of limitations. The answer further alleges that in 1885 Largey and all of the other owners of the Speculator lode claim, with the knowledge of the plaintiff, executed a lease and bond to one Hurst, under the terms of which Hurst had the option of purchasing the entire claim for $24,000; that afterwards Hurst, declining to take or pay for the property, assigned his lease and bond to Largey & Creighton, who. paid the several owners for their respective interests, including the plaintiff herein, and on or about the 1st day of January, 1887, went into’ possession of the property, and continued thereafter in the open, notorious, and adverse possession thereof, until it was sold under the order of the United States district court; that while so in the possession of the property they expended large sums of money in exploring, improving, and developing it, and disclosed and exposed to view large and valuable ore bodies therein, by reason whereof the property became many times more valuable than when they went into possession of it, and that during all this time the plaintiff herein stood by and permitted such development and improvement to be made by Largey & Creighton, and at no time prior to' 1893 made any claim to any interest in the property whatever; that therefore the plaintiff was guilty of laches which ought to bar his right to relief by way of injunction.
    Upon the hearing, testimony was introduced, and the court thereupon made an order granting an injunction pending the litigation, from which order this appeal is prosecuted.

      Messrs. McBride & McBride, and Messrs. Forbis & Evans, for Appellant.

      Mr. Jesse B. Boote, Mr. Frank W. Haskins, and Messrs. Mc-Hatton & Goiter, for [Respondent.
   MR. JUSTICE HOLLOWAY,

after stating the case, dei-livered the opinion of the court.

The only questions necessary for our consideration are: (1) Hoes the complaint state facts sufficient to entitle the plaintiff to an injunction, or, stated in other words, does it affirmatively appear upon the face of plaintiff’s complaint that his cause of action is barred by the statute of limitations? and (2) is plaintiff’s right to an injunction barred by his laches? In our consideration of the subject, we will treat the answer filed therein as an affidavit, and nothing more.

1. Hoes the complaint, on its face, show that the plaintiff’s cause of action is barred by the statute of limitations? We preface our consideration of this subject by saying that, in our judgment, the statute of limitations applies to suits in equity as well as to actions at law. In Lux v. Haggin, 69 Cal. 255, 10 Pac. 674, the court said: “It has been repeatedly decided in this state that Section 343 of the Code of Civil Procedure, An action for relief not hereinbefore provided for must be commenced within four years after the cause- of action shall have accrued,’ applies as well to suits in equity as to' actions at law.” It will be observed that Section 343 of the California Codo of Civil Procedure is, in substance, identical with Section 47 of the Compiled Statutes of 1887 and Section 518 of our Code of Civil Procedure.

For the purpose of this discussion only, we may assume that, by reason of the contract entered into between Mantle and Lar-gey in 1884, an express trust was created, and that Largey continued to hold Mantle’s interest as trustee until 1893. The complaint shows affirmatively that in 1893 Largey disavowed and repudiated the trust, and that Mantle had notice of such disavowal, and immediately commenced an action against Lar-gey to enforce the trust and to compel conveyance to Mm of Ms one-sixteenth interest in the “property. The authorities are uniform in holding that, as between the trustee-of an express trust and the cestui que trust, the statute of limitations commences to run from the date of the disavowal of the trust by the trustee, and knowledge of such disavowal by the cestui que trust. (27 Enc. Law (1st Ed.), 104; Ward v. Harvey, 111 Ind. 471, 12 N. E. 399; Jones v. McDermott, 114 Mass. 400; Davis v. Coburn, 128 Mass. 377; Otto v. Schlapkahl, 57 Iowa, 226, 10 N. W. 651.)

"Under the allegations of the complaint, then, the statute commenced to run against plaintiff’s cause of action in 1893; and, unless the running of the statute was interrupted or suspended, this cause of action, as disclosed by the complaint filed herein, was barred long prior to the date of the commencement of this action, whether Section 47 of the Compiled Statutes, or Section 518 of the Code of Civil Procedure, be applicable in this instance. i

On the part of the plaintiff it is contended that the pendency of the action of Mantle v. Largey operated to suspend the running of the statute, and that therefore this cause of action is not barred. The general rule is: “The pendency of the [other] suit operates to suspend the statute as tot all parties thereto so far as the subject-matter of the suit is concerned. But the suspension exists only as to the particular suit brought, and not as to the cause of action there involved. Except under the rule of (journeys accounts’ and in special cases, the institution of one suit can have no effect upon the operation of the statute as against any other suit, whether on the same or on another cause of action.” (19 Enc. Law (2d Ed.), 258 and cases cited.)

We are of the opinion that the pendency of the action of Mantle v. Largey did not operate to suspend the running of the statute as to this particular case.

2. Is plaintiff’s right to an injunction barred by Ms laches ? With reference to this subject the authorities seem to be quite well agreed upon this general rule: “Where a party seeks the intervention of a court of equity to protect Ms rights by injunc-t-ion, tbe application must be seasonably made, or the rights may be lost, at least so- far as equitable intervention is concerned. . It is a rule practically without exception that a court of equity will not grant relief by injunction -where the party seeking it, being cognizant of his rights, does not take those steps to assert them which are open to him, but lies by and suffers his adversary to incur expenses and enter into burdensome engagements which would render the granting of an injunction against the completion of his undertaking, or the use thereof when completed, a great injury to him.” (16 Am. & Eng. Enc. Law (2d Ed.), 356; Willard v. Wood, 164 U. S. 502, 17 Sup. Ct. 176, 41 L. Ed. 531; Johnston v. Standard Mining Co., 148 U. S. 360, 13 Sup. Ct. 585, 37 L. Ed. 480; Penn Mutual Life Ins. Co. v. Austin, 168 U. S. 685, 18 Sup. Ct. 223, 42 L. Ed. 626.) In Twin Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. Ed. 328, the court said: “Property worth thousands today is worth nothing tomorrow; and that which would today sell for a thousand dollars 'at its fair value may, by the natural changes of a week, or the energy and courage of desperate enterprise, in the same time be made to- yield that much every day. The injustice-, therefore, is obvious, of permitting one holding the right to assert an ownership in such property to voluntarily await the event, and then decide, when the danger which is over has been at the risk of another, to come in and share the profit.” In 1885 the property in controversy was supposed to be worth $24,000, and in plaintiff’s complaint it is alleged that between June, 1901, and March, 1902 — -a period of nine months — ore of the value of $1,500,000 has been taken out of this property; and the language used by the court in Johnston v. Standard Mining Co., above, is certainly pertinent here: “The duty of inquiry was all the more peremptory in this- case from the fact that the property of itself was of uncertain character, and was liable, as is most mining property, to suddenly develop an enormous increase in value. This is actually what took place in this case. A property which in October, 1880, plaintiff sold to Chat-field upon the basis of $4,800 for the whole mine, is charged, in a bill filed October 21, 1887, to be worth $1,000,000, exclusive of its accumulated profits. Under such circumstances, where property has been developed by the courage and energy and at tlie expense of the defendants, courts will look with disfavor upon the claims'of those who have lain idle while awaiting the results of this development, and will require not only clear proof of fraud, but prompt assertion of plaintiff’s rights.”

Rehearing denied March 30, 1903.

No explanation having been offered for plaintiff’s delay in applying for an injunction, we are of the opinion that he has slept on his rights, and ought not to be permitted now to come into a court of equity, and, by the aid of an injunction, close the property against this defendant while he litigates an uncertain claim to an interest therein. While some of the allegations contained in defendant’s answer tending to show plaintiff’s laches were denied on the hearing, in our judgment the denials ■were not sufficient to relieve the plaintiff from the charge that he has not pursued his right with that degree of diligence which shordd characterize an applicant for relief from a, court of equity.

In view of the fact that the suit of Mantle v. Largey is still pending undetermined in the district court, and that, so far as this court is informed to the contrary, all the relief sought here could be secured in that action by making this defendant a party thereto* the reason for the commencement of this suit is not apparent, and it is far from the intention of this court to encourage needless litigation. Upon the plaintiff’s own showing, this cause of action is barred by the statute of limitations. The unexplained delay of nearly nine years in seeking relief by way of injunction in this action ought to bar that relief.

The order appealed from is reversed, and the cause remanded.

Reversed and remanded.


author: MB. JUSTICE. HOLLOWAY

text:
    HAUPT et al., Respondents, v. SIMINGTON et al., Defendants; McDONALD, Appellant.
    (No. 1,472.)
    (Submitted February 24, 1903.
    Decided March 6, 1903.)

      Action- — Bight of One of Several Defendants to- Separate Trial ■ — Judgment—Collateral Attack — Presumption — Appeal— Record on Appeal — Judgment Boll.

    1. The mere fact that the defense set up by one of several defendants in an action to revive a judgment- — i. e., that the judgment as to him was void for want of jurisdiction over his person — was different from that set up by the other defendants, did not entitle such defendant to a separate trial as a matter of right.
    2. The presumption that the court rendering a judgment had jurisdiction over the person of the defendant is conclusive on collateral attack, unless on the face of the judgment roll a lack of jurisdiction affirmatively appears.
    3. Attack on a judgment as void, made by way of defense to a suit to revive it, is a collateral attack.
    4. In the absence of a contrary showing, it will be presumed on appeal, where a collateral attack on a judgment for want of jurisdiction over the person of the defendant has been made in the court below, that the court tried the question by an inspection of the judgment roll in the cause in which the judgment was rendered, and by that alone.
    5. As on collateral attack the question whether the court rendering a judgment had jurisdiction over the person of the defendant must be tried by an inspection of the judgment roll, and by that alone, where the judgment roll is not made a part of the record on appeal the supreme court cannot try the question.
    6. Code of Civil Procedure, Section 1196, particularly specifying what papers shall constitute the judgment roll, does not include the register of actions as a part thereof. ,
    7. Domestic judgments of courts of general jurisdiction, valid on their face, cannot be collaterally attacked in courts of the same state by showing facts aliunde the, record, although such facts might be sufficient to impeach the judgment in question if brought to bear upon it in a proper proceeding; therefore, in an action to revive a judgment, it is not error to exclude oral testimony offered by one of the defendants that he was never served witH summons and never appeared in the action wherein said judgment was obtained.

      i

      Appeal from District Court, Silver Boiv County; John Lindsay, Judge.

    Action to revive a judgment, brought by H. D. Haupt, George H.' O'asey, and J. C. Robinson against Elias Simington, William Sinitb, John A. White, Enos Carman, and James Me-Donald. Judgment for plaintiffs* and defendant McDonald appeals.
    Affirmed.

      Mrs. Ella Knowles Haskell, for Appellant.

      Messrs. McBride & McBride, for Eespondents.
   MB. JUSTICE. HOLLOWAY

delivered the opinion of tbe court.

In 1885, Hickey, Stapleton, and Bobinson commenced an action in the district court of Silver Bow county against the defendants Simington, Jas. McDonald, and about twenty others to recover possession of certain real estate, and for damages. That cause was numbered on the register of actions* and will hereafter be referred to as cause “No. 1,292.” A judgment was obtained by the plaintiffs, awarding them the possession of the property in controversy. Thereafter Haupt and Casey succeeded to1 the interests of Hickey and Stapleton in the. judgment and the property, and in 1892 they, with Bobinson, commenced this action against the same defendants to revive that judgment. To1 this action the defendant McDonald made separate appearance, and in his amended answer alleges that the judgment obtained in cause No. 1,292, as to him, is absolutely void, for the reason that he was never served with summons in that action, arid never appeared therein. These allegations, are denied in the replication. McDonald thereupon demanded a separate trial, which was refused. Upon the trial plaintiffs offered in evidence the complaint and judgment in cause No. 1,292, which were admitted without objection. They also1 introduced evidence to show the assignments by Hickey and Stapleton of their interests in the original judgment to Haupt and Casey. Other evidence was admitted, which it is not necessary consider. When plaintiffs rested, defendant McDonald offered in evidence the judgment roll in cause No. 1,292, and the entries in the register of actions and in the minute book referring to- that action. To this the plaintiffs objected, on the ground that the evidence offered was insufficient to impeach the judgment, which objection was sustained; and thereupon counsel for plaintiffs admitted that the register of actions in cause No. 1,292 shows no appearance on the part of McDonald in that action, and no service of summons upon him. McDonald then offered to prove by his oral testimony that in fact he never was served with summons in that action, and never appeared therein, and had no knowledge that such an action was pending until long after the entry of judgment. This was also objected to on the ground of its incompetency, which objection was sustained, and the court directed the jury to bring in a verdict in favor of the plaintiffs, which was done; and from the judgment entered thereon and from an order denying his motion for a new trial McDonald appealed.

Numerous errors are assigned in appellant’s brief, but only two are discussed, and this court will therefore decline to review any others.

The first error complained of is the court’s refusal to grant defendant McDonald a separate trial. In support of this contention this proposition is advanced: “In an action for the recovery of land, brought against many defendants1 holding separate portions thereof and having no common interest, and who rely upon different sources of title; it is the duty of the court, on motion, to order separate trials;” and cases are cited which-maintain that contention. The weakness of appellant’s position in this regard is found, however, first, in the fact that this is not an action to recover land, but to revive a judgment; and, secondly, in cause No. 1,292 and in this action there is no showing whatever that the defendants hold separate portions of the property, or have no common interest therein, or rely upon different sources of title; and the mere fact that the defendant McDonald sets up a different defense from that set up by the other defendants, in this: that he claims that the judgment in cause No. 1,292 as to him is void, did not entitle him, as a matter of right, to a separate trial. The trial court might have granted him one, but we cannot say that in refusing to do so it abused its discretion. (Townsley v. Hornbuckle, 2 Mont. 584.)

The principal error relied- upon by McDonald is the refusal of the trial court to receive in evidence the judgment roll in canse No. 1,292, the entries in the register of actions and minute booh referring to that cause, and oral testimony of the witness McDonald. This was evidently offered for the purpose of showing that the defendant McDonald was never served with summons in that action, and never appeared therein. It will be observed, however, that the attack which he makes upon the judgment in cause No. 1,292 is simply by way of a defense in this action, and not in any sense by way of cross-complaint, or, more strictly speaking, equitable counterclaim, to have that judgment annulled or set aside. The district court of Silver Bow county, which rendered the judgment in cause No. 1,292, is a cp-urt of record and of general jurisdiction, legal and equitable. It had jurisdiction of the class of cases to which cause No. 1,292 belongs; that is, it had jurisdiction over the subject-matter in that action. It had authority — that is, power — to grant the relief which it did grant, and therefore there was no excess of jurisdiction. (Burke v. Inter-State S. & L. Ass’n, 25 Mont. 315, 64 Pac. 879, 87 Am. St. Rep. 416.) A collateral attack upon a judgment is defined to mean “every proceeding in which the integrity of a judgment is challenged, except those made in the action wherein the judgment is rendered or by appeal, and except suits brought to obtain decrees declaring judgments to be void ai initio." (Burke v. Inter-State S. & L. Ass’n, above.) “Upon direct attack by appeal, the presumption that the court rendering a judgment by default had jurisdiction of the person of the defendant does not obtain. Unless the record in some way discloses the acquisition of jurisdiction over the defendant, the judgment will be reversed by the appellate court. Where a direct attack, other than by appeal, is made upon the judgment of a domestic court of general jurisdiction, the prima facie presumption must be indulged that jurisdiction was obtained of the person of the defendant, unless the record affirmatively shows the contrary: provided it does not appear from the judgment roll that the defendant was at the time of service without the territorial limits of the court’s jurisdiction. * * * When, however, the judgment of a court of general jurisdiction, acting within the ordinary scope of that jurisdiction, is assailed collaterally, the presumption of jurisdiction over the person of the defendant is conclusive, unless upon the face of the judgment roll a lack of jurisdiction affirmatively appears. A judgment,- when collaterally attacked, must be tried by inspection of the judgment roll, and by that alone.” (Burke v. Inter-State S. & L. Ass’n, above.) Tested by the definition adopted by this court above, the present case presents clearly an example of a collateral attack upon the judgment rendered in the district court in cause No. 1,292.

An examination of the record filed in this court discloses the fact that, although defendant McDonald upon the trial of this cause in the court below offered in evidence the judgment roll in cause No: 1,292, and that it was excluded by the trial court, no paid of the offered testimony is included in the statement on motion for newi trial or in the record filed in this court. All the presumptions are in favor of the regularity of the proceedings in the court below. Therefore it will be presumed that the lower court applied the rule above laid down when the judgment roll was offered; that is to say, when the judgment in cause No. 1,292 was collaterally attacked, it tried that question by an inspection of the judgment roll in, that cause; and by that alone. We are now asked to review the action- of the district court in excluding that testimony; or, in other words, we are asked to apply that same rule — -that is, the judgment in No-. 1,292 being collaterally attacked, we are asked to say whether or not, by an inspection of the judgment in that cause, and by that alone, it will be shown as a matter of fact that the defendant was never served with summons, and never appeared therein. This we cannot do, for the reason that the judgment roll in cause No. 1,292 is not embraced in the record to this court, and we have no means of knowing what it contains. We are, therefore, not in a position to review that action of the district court. It is true that upon the trial of this cause the plaintiffs admitted that the register of. actions in No-. 1,292 does not show any appearance by the defendant McDonald, or any service of summons upon him; but the register of actions is no part of the judgment roll. Section 1196 of tide Code of Civil Procedure particularly specifies wliat papers shall constitute the judgment roll. The judgment in cause No: 1,292 contains this recital: “It appearing toi the court that summons had been duly served on all the said defendants, and that the statutory time for their appearance had expired, and that said defendants * * * J ames McDonald and * * * failed to make any appearance therein, but made default, and their default has been duly entered, * * * it is therefore ordered,” etc. Upon this record here presented we cannot say that the judgment in cause No. 1,292 is- void or even irregular.

The defendant McDonald claims that the judgment is abso1 lutely void, for the reason that he was never served with summons, and had never appeared in that action; and upon the trial of this cause offered to prove; by oral testimony, that fact, but the evidence was excluded. In Edgerton v. Edgerton, 12 Mont. 122, 29 Pac. 966, 16 L. R. A. 94, 33 Am. St. Rep. 557, it is said: “Domestic judgments of courts of general jurisdiction, valid on their face, cannot be collaterally attacked in courts of the same state by showing facts aliunde the record, although such facts might be sufficient' to impeach the judgment in question if brought to bear upon it in a proper proceeding.” We conclude, therefore, that it was not error to refuse to- receive the oral testimony offered.

No error appearing in the record, the judgment and order appealed from are affirmed.

Affirmed.

Ms. Justice Milbuen, being ill, did not hear the argument and takes no part in the foregoing opinion.


author: ME. JUSTICE HOLLOWAY

text:
    PORTER, Adm'r., Respondent, v. HAWKINS, Appellant.
    (No. 1,474.)
    (Submitted February 25, 1903.
    Decided March 7, 1903.)

      Evidence — Value—Opinions of Eon-Expert Witnesses — Ownership — Conversion—Instructions—Review.
    1. Since the opinion oí a non-expert witness, with reference to matters concerning the ordinary affairs of life where from the very nature of the question involved its answer necessarily depends upon mere opinion or judgment, may properly'be given in evidence, — a non-expert witness may testify as to the value of hay and of a barn.
    2. In an action for conversion against a sheriff, who sold as the property of plaintiff’s husband buildings and hay alleged to belong to plaintiff, testimony of her witness as to where she secured the lumber that went into the buildings, what it cost, and that it had been paid for by her, is competent on the question of her ownership.
    3. An instruction must be read and considered as a whole.

      Appeal frpm District Court, Custer County; C. R. Loud,, Judge.

    ActioN by T. J. Porter, administrator of Mary Eussell, deceased, against James B. Hawkins, a sheriff of Custer county. Judgment for plaintiff, and defendant appeals.
    Affirmed.

      Mr. C. R. Middleton, and Mr. George W. Farr, for Appellant.

      Messrs. Strevell & Porter, for Kespondent.
   ME. JUSTICE HOLLOWAY

delivered the opinion of the court.

In 1894, Leb C. Harmon recovered a judgment in the district court of Custer county against D. H. Eussell, and bad execution issued thereon, and placed in the hands of the appellant, Hawkins, who was the sheriff of that county, for service. The shexdff levied the same upon 78 tons of hay, a houses a barn, and two outbuildings. As soon as she became aware of such levy, Mary Russell, the wife of D. H. Russell, made a third-party claim to the property seized, and demanded of the sheriff its return to her; but, notwithstanding such notice and claim of ownership on her' part, the sheriff proceeded to sell the property, and applied the 'proceeds from such sale towards the satisfaction of the judgment recovered by Harmon against D. H. Russell. Thereupon the plaintiff commenced this action against the sheriff for the conversion of the property and for damages, alleging that the property so* seized and sold was of the value of $809. The sheriff’s answer put in issue all the material allegations of the complaint, and set up affirmatively that the plaintiff, Mary Russell, is an Indian woman of the Sioux tribe of Indians; that she has never severed her tribal relations, but is still receiving rations and annuities from the federal government as a, member of such tribe. These allegations were denied in the reply. Upon the trial the plaintiff offered in evidence the testimony of the witnesses Clark, Dugan, Zeigler, and D. H. Rlussell to prove the value of the property seized by the sheriff, and also offered in evidence' a patent from the United States to her for 160 acres of land under the allotment act. Among others, the court gave to' the jury instruction numbered 12, which is as follows: “The court instructs the jury that if the jury believe from a, preponderance of evidence that the hay in question, or any 'part of it-, was in the year 1895 cut upon the allotment of the plaintiff, then such hay would, in law, be the property of the plaintiff, if not otherwise disposed of; and, although such hay may have been stacked off of such allotment, it would still be the property of the plaintiff, and the defendant could not lawfully seize the same, or sell it, upon the execution against D. II. Russell; and under this, condition of evidence tho plaintiff is in this action entitled to recover her damages from the defendant for taking such hay and selling the same by the defendant under the execution.” The jury returned a verdict in favor of the plaintiff for the sum of'$539, and judgment was entered thereon for that amount, from which judg: ment and an order denying defendant’s motion for a new trial this appeal is prosecuted.

Tbe first six assignments of error have to do witb tbe action of tbe court in admitting’ in evidence tbe testimony of tbe witnesses Clark, Dugan, Zeigler, and Russell as to1 tbe value of tbe property in controversy, and tbe admission in evidence of .tbe plaintiff’s patent.

One of the material issues raised by tbe pleadings and contested at the trial was tbe value of tbe property seized by tbe sheriff. Clark and Dugan each testified that be knew tbe plaintiff’s ranch, knew something of tbe character of tbe bay grown thereon, and the value of bay of that general character at tbe time of the levy and sale by the sheriff. Tbe witness Zeigler testified that lie bad bad some experience in constructing such buildings as tbe barn in controversy, bad seen the one seized by tbe sheriff, and knew something of its value. If is true that under a severe cross-examination these witnesses each modified bis direct testimony somewhat. All of this evidence was objected to on the ground that the several witnesses bad not qualified as experts. Upon this phase of tbe case we content ourselves with the citation of decisions from this, court, though numerous cases might be cited in support of the proposition that with reference to those matters concerning tbe ordinary affairs of life, where, from tbe very nature of the question involved, its answer necessarily depends largely upon mere opinion or .judgment, tbe opinion of a nonexpert witness may properly be given in evidence; and this has been adjudged to include questions of distance, weight, value, etc. (Holland v. Huston, 20 Mont. 84, 49 Pac. 390; Emerson v. Bigler, 21 Mont. 200, 53 Pac. 621.) It is only in those cases where a previous habit of study is essential to tbe formation of tbe opinion sought to> be put in evidence that all but experts are excluded from giving in evidence an opinion. (Spear v. Drainage Commissioners, 113 Ill. 632.)

Tbe witness Russell was permitted, over tbe objection of the defendant, to state where the plaintiff secured tbe lumber which went into1 tbe construction of tbe buildings, what it cost, and that it had been paid for by tbe plaintiff. The patent from the government was introduced in support of the plaintiff’s claim that she owned the property, and particularly tbe bay, wbicb sbe contended at tbe trial bad been cut from tbe particular piece of land described in the patent. All of this testimony was properly admitted. It was some evidence of her ownership of tbe property in controversy. It may bave bad.much or little weight with tbe jury, but it was -competent and material, and tbe court committed no error in submitting it to tbe jury for their consideration.

Particular stress is laid upon tbe alleged error of tbe court in giving instruction No. 12, upon tbe theory that by tbe last sentence of that instruction' tbe court assumed to' tell the jury what tbe evidence on one particular feature of tbe case was, and to that extent invaded tbe province of tbe jury. But, read in connection with, and in the light of, the first portion of the instruction, and considering tbe instruction as a whole — which must necessarily be done — the apparent defect disappears altogether, and the instruction,' though inartifieially drawn, correctly states the law.

We bave examined the other errors assigned, and find no merit in them. The evidence is- amply sufficient to sustain the verdict for the amount returned.

Before the bearing was bad in this court, tbe plaintiff and respondent died, and T. J. Porter, administrator of tbe estate of said Mary Bussell, deceased, was substituted as plaintiff and respondent.

Tbe judgment and order appealed from are affirmed.

Affirmed.

Me. Justice MilburN, being ill, did not hear tbe argument and takes no part in tbe foregoing decision.