author: ME. JUSTICE MILBURN Me. Justice Pigott: Mr. Ciiiee Justice BraNtly,

text:
    PORTER et al., Appellants, v. INDUSTRIAL PRINTING COMPANY, Respondent.
    (No. 1,346.)
    (Submitted October 9, 1901.
    Decided December 9, 1901.)

      Appeal — Opinion of Trial Court — Consideration—New Trial —Statutory Grounds — Ruling Preventing Fair Trial — Accident — Surprise.
    1. New trials are statutory; ii granted, they must be granted upon statutory grounds, and none other.
    2. Though the opinion of the trial court cannot be considered as any part of the ease, where it is submitted by all the parties in their briefs, without objection, it may be read as suggestive of what may be the just determination of the case.
    3. A trial court found certain counterclaims to have been sufficiently pleaded, and defaulted the plaintiff as to the same, on failure to reply; relying on which default defendant introduced no evidence, on reference of the case, to prove the counterclaims. The court adopted the findings of the referee, but declared that part of the counterclaims only were sufficiently pleaded. Held a new trial would be. allowed defendant, as such action of the court was surprise and accident which ordinary prudence could not have guarded against.
    Mu. Chief Justice Beantlx dissenting.

      Appeal from District Court, Cascade County; J. B. Leslie, Judge.

    Action by W. N. Porter and B. W. Porter, partners doing business under the firm name of Porter Brothers, against the Industrial Printing Company, a corporation. Judgment for plaintiffs. • Erom an order granting defendant’s motion for a new trial, plaintiffs appeal.
    Affirmed.

      Mr. John W. Stanton and Mr. Geo. H. Stanton, for Appellants.
    1. There were issues of fact arising upon the allegations of the complaint controverted by the answer, but as to such issues tbe same were disposed of by consent of tbe parties in tbeir agreement to adopt tbe findings of fact of tbe referee; as to tbis feature of tbe case it was error for tbe court to grant a new trial.
    2. There was no issue of fact arising upon tbe allegations of tbe counterclaims set up' in tbe answer because there was no reply controverting such allegations; therefore there was only an issue of law arising upon tbe allegations of tbe counterclaims. Tbe Code does not provide for a new trial of issues of law. A new trial is a creature of tbe statute and there is no authority for it on an. issue of law; therefore tbe court bad no authority and it was error to grant a new trial as to tbe issues of law arising upon tbe allegations of tbe counterclaims. Tbe right of new trial is founded upon Section 1171, Code of Civil Procedure. Tbe same Code defines issues of fact and issues of law.
    Code of Civil Procedure, Sec. 1170: A new trial is a reexamination of an issue of fact in tbe same court after a trial and decision by a jury or court or by referees. (Bamsdell v. Ciarle, 20 Mont. 106; Beach v. Spokane B. & W. Co., 21 Mont. 9; Code of Civil Procedure, Secs. 1030, 1031, 1032, 1033.) In Beach v. Spokane, supra> it is held that an issue of fact upon wthich a new trial can be granted is such an issue only as is raised by tbe pleadings and that a new trial of a motion is not authorized by tbe Code: It was error for tbe court to grant a new trial as to. any issues rising out of tbe complaint and answer for tbe reason that tbe findings of tbe referee in favor of plaintiffs for $1,308.83 were adopted by tbe court on tbe motion of tbe defendant and of tbe plaintiffs. Both parties were satisfied and agreed upon these findings and agreed and consented that tbe plaintiffs should have credit for $1,308. 83. If there bad been any error respecting any ruling of tbe court upon tbe alleged counterclaims for which a new trial could be granted, tbe court should have granted a new trial only to tbe extent of trying such issues, and should expressly declare in tbe order granting a new trial that the findings of the referee should stand in favor of plaintiffs to the' full extent of $1,308.83. (Bader v. Bam' (Oregon!, 1892), 29 Pan. 889; Port v. Parfit (Washington, 1892), 30 Pac. 328; Beatona v. California Canneries Co., 115 Cal. 14, 46 Pac. 737; Schmidt v. Oregon C. M. Co., 40 Pac. 406; Beach, Mod. Eq. Prac. Sec. 795; Armstrong v. Cooper, 11 Ill. 540; Brlanger v. S. P. B. Co., 109 Cal. 395, 42 Pac. 31; Francaise D’Epargner v. Beardslee, 63 Cal. 160; Thompson v. Connolly, 43 Cal. 636; Mechamv. McKay, 37 Cal. 158, and the case there cited; Meerholz v. Sessions, 9 Cal. 278; Bretherton v. Ilart, 11 Cal. 406.) In the cases above cited there was no motion to dismiss and the judgments were affirmed because the court would not review a judgment or order made by consent of the appellant, but in Oullahan v. Morrissey, 73 Cal. 297, 14 Pac. 864, the appeal was dismissed because the judgment was entered with the consent of the appellant; and in San Francisco• v. Certain Beal Estate, 42 Cal. 513, the court said: “It is objected in limine that we ought not to entertain this appeal for the reason that the judgment from which it was taken was entered pro foi'ma, and by consent. If the record discloses this fact, it would be our duty to dismiss the appeal as we have repeatedly decided that we will not review judgments or orders entered by consent!’
    In the case at bar if defendant had taken an appeal, this court would not review the order of the lower court adopting the findings of the _ referee; because such order was by consent of all parties, and for the same reason the lower court should have refused to review such order on the motion for a new trial. In re Lorenz's Estate, 57 Pac. 381; Coryell v. Cain, 16 Cal. 572; Spmetti v. Brignardello\, 53 Cal. 281; Er-langer v. Baüroad Co., supra.)

    If there had been a reply, the court might grant a new trial as to issues arising upon the counterclaims and the reply and refuse a new trial as to the issues of the complaint and answer, because the court may grant a new trial as to part of the issues and deny it as to other issues. A new trial may be granted as to one or more canses of action set up in a petition, and refused as to others. {Woodward v. Horst, 10 Iowa, 120; Bond v. Wabash, etc., 67 Iowa, 713; Ban Diego Land & Town Co. v. Neale, 78 Cal. 63, 20 Pac. 372; Duff v. Duff, 35 Pac. 437; Jacob v. Carter, 36 Pac. 381; Hamilton v. Nelson, 22 Mont. 539, 57 Pac. 146.)
    Section 1030, Code of Civil Procedure, provides that there aie two kinds of issues, to-wit, one of law, and one of fact. There were issues of fact in the case at bar arising upon the complaint and answer, which issues of fact became conclusive by reason of defendant’s consent in adopting the report of the referee. There was no issue of fact as to any counterclaim whatever because of the simple reason that there was no reply. The district court has no jurisdiction to grant a new trial except as to an issue of fact. That court should never grant a new trial as to an issue of law, but that is exactly what the court did in the case at bar.. If defendant had any grievance because of the judgment the court had rendered, the only remedy of defendant was to preserve its bill of exceptions and take its appeal to the supreme court, where the error of law, if any,, might be reviewed. If' the Code provided that the district court could grant a new trial on an issue of law, the case would be quite different, but there is no such provision. {Perkins v. McDowell, 23 Pac. 71; Powder River Cattle Co. v. Custer County, 9 Mont. 145; Harper v. Hildreth (Cal.), 33 Pac. 1103; Emerson v. Eldorado¡ Ditch Co., 18 Mont. 252.)
    We have shown that an issue of fact did not arise as to the counterclaims because there was noi reply; therefore as to the counterclaims there was only an issue of law because the question as to whether such counterclaims stated facts sufficient to-constitute a cause of action or counterclaim is a question that plaintiff did not waive by failure to reply. That question is-jurisdictional and may be raised for the first time in the supreme court. The question really was raised for the first time when defendant moved to adopt the findings of the referee and for judgment in its favoir. The case of Foley v. Foley (Cal.), 52 Pac. 122, decided February 4, 1898, is decisive of the question, as to wbetber.tbe court could grant a new trial as to the counterclaims, because tbe court bolds that since a new trial is a reexamination of an issue of fact, where no answer is filed controverting any fact, and judgment goes against defendant without a trial on issues of fact, a motion for a new trial is nugatory and cannot be reviewed. It necessarily follows that if the court had denied defendant’s motion for a new trial ánd the defendant had appealed from such order, such appeal could nos be entertained. The proceedings by which the court attempted to grant defendant a new .trial, as to the issues of law upon thé counterclaims were wholly nugatory and therefore the order granting new trial should be reversed.' Proceedings for new trial are statutory and the statute should be followed.
    We maintain that a default by a defendant to a complaint and a default by a plaintiff to a counterclaim are upon the same footing. The plaintiff in case of default of defendant is entitled to judgment on a good complaint. The defendant in case of default to a good counterclaim is entitled to judgment against the plaintiff. Neither a complaint failing to state a cause of action nor a counterclaim faulty in the same respect will support a judgment. (Quwvnv. Smith, 49 Cal. 163; 67 Cal. 21; Ohm v. San Francisco, 92 Cal. 437.)
    The effect of plaintiff’s motion and objection to the counterclaim is that of a general demurrer. In Herschfield & Bro. v. Aiken et al., 3 Mont. 442, it was held that an averment in ihe complaint in an action on a promissory note that the amount thereof is “due and payable” states only a conclusion of law, does not as a fact allege a breach of contract, and is bad on demurrer, citing Frisch v. Oaler, 21 Cal. 75; Davaney v. Eg-genjioff, 43 Cal 395; Doyle v. Phoenix Ins. Go., 44 Cal. 264; Roberts v. Treachuell, 50 Cal. 520. See also Richards v. Lake View Land Company (California), 47 Pac. 683. In Madison County v. Smith, 95 Ill. 328, it was held: “A default admits the facts alleged against the defendant to be true but does not admit that those facts constitute a cause of action, so, if upon default it be found that tbe facts alleged do no give a right of recovery, final judgment should not be entered against the defendant” We believe the principles are so well settled that we need not cite authorities to sustain our position that a counterclaim must contain all of the substantive averments necessary in a complaint based upon the same cause of action set out in the counterclaim; that conclusions of law in a pleading are useless and will be treated as if not alleged in considering objections to the pleading; that the question as to whether a complaint or counterclaim states facts sufficient to constitute a cause of action or a counterclaim is never waived because it is jurisdictional.
    We maintain that there was no error of law occurring at the trial. If-there was it would have "to appear by the bill of exceptions of the defendant. Its bill of exceptions does not show any ruling complained of. The motion for a new trial really was based and must have been granted on the affidavits of counsel for defendant. The most that can be said in its -favor is that defendant obtained its new trial on the ground of “surprise.” So we must conclude that the motion was granted on the affidavits alone. Therefore it becomes necessary to ascertain, if we can, the gist of the accident or surprise complained of, whether it be called “irregularities in the proceedings of the court,” or “accident or surprise which ordinary prudence could not have guarded against.’’ It is clear the motion was granted either on subdivision one or three of Section 1171, Code of Civil Procedure. The “irregularity” or “accident or surprise” consisted in this as appears from the affidavits: That at some remote period of the proceedings and long before the default of plaintiffs was entered for failure to reply to the counterclaims, the plaintiffs had moved to strike out the counterclaims because the same were sham and irrelevant or did not state facts sufficient to constitute a cause of action or counterclaim. Prom the affidavits it is to be presumed.such motion was denied and for that reason counsel for defendant believed they had a good pleading. Evidently counsel for plaintiff did not concur in tbat belief because they refused to reply to tbe counterclaims and suffered .default to be entered. Afterwards tbe issues of tbe complaint were referred to a referes wbo reported bis findr ings of fact. Afterwards defendant moved to adopt suob report by its written motion. On tbe bearing of tbis motion counsel for plaintiffs moved for judgment and in view of tbe fact tbat both parties agreed to adopt tbe findings, tbat motion was arr gued on tbe question as to whether such counterclaims do state facts sufficient to constitute causes of action. It is very evident tbat tbe court did not change its ruling “at tbe trial.” If tbe court held tbe counterclaims good or for any other reason denied tbe motion to strike them out prior to entering tbe plaintiffs’ default on May 4, 1898, surely tbat ruling was not made at tbe trial. At best it cannot be said tbat tbe trial took place prior to tbe bearing before tbe referee in June, 1898, nor did such trial end until tbe court decided tbe motion for judgment on July 28, 1898. Therefore, if tbe court changed its ruling, it did not do so* “at tbe trial.” At no> time before judgment, when tbe tidal ended, did defendant offer to amend its answer or counterclaims. It maintained tbat tbe counterclaims were good and stood by such assertions until tbe court held them bad and gave judgment accordingly. So it cannot be said there was any irregularity in tbe proceedings of tbe court by which defendant was prevented from having a fair trial. It cannot be said tbat there was any accident which ordinary prudence could not have guarded against, nor can it be said there was any surprise which ordinary prudence could not have guarded against. Tbe court must have granted tbe motion for a new trial on tbe affidavits of counsel for defendant and on tbe sole ground of “surprise” ib a change of ruling.
    Tbe power to grant new trials on tbe ground of surprise should be carefully, even cautiously exercised. It is also tbe rule tbat reasonable diligence must have been used in preparing for trial, and we take it tbat tbis means reasonable diligence and care must be used in preparing pleadings.

      In tbe case at bar the court, long prior to the time when it was referred to the referee, erroneously refused to strike out the counterclaims; at least it is to be presumed from the affidavits that the court refused to sustain a motion to strike, thus it appears that the attention of counsel for defendant was directly called to the weakness of the counterclaims before the case was sent to the referee. What better notice should defendant have than the attack upon the counterclaims by motion, and the fact that the plaintiff suffered default thereby indicating a determination to abide by their position ? If the counterclaims were bad it was the fault of the defendant who could not be surprised in view of the assault so early made upon them. On the motion for judgment the plaintiffs again make an assault upon the sufficiency of the counterclaims; the court took the matter under advisement for three weeks; during all this time the defendant vigorously defended the counterclaims but never at any time until after judgment did the defendant offer to amend its answer or counterclaims.
    The whole theory of defendant on motion for a new trial and adopted by the court was simply this, that the court had changed its ruling in holding certain counterclaims bad on motion for judgment. We know of no authority holding that if the court once makes an erroneous ruling the same error shall be repeated. The court on motion for judgment should make a correct ruling and give a correct decision no matter what other ruling had been made. When the motion for judgment was argued and counsel for plaintiffs combatted the counterclaims on the ground that they did not state sufficient facts, then the attention of' counsel for defendant was again called directly to the point on which the court was asked to rule, namely, the sufficiency of' the counterclaims. Counsel for defendant had no right to stand by their pleadings until they could get a decision on the motion, for judgment which, if favorable to them, they would abide by,, but if unfavorable they would complain of as a surprise. On the motion to strike, and again on the motion for judgment, the defendant bad notice of.:tbe contention of plaintiffs tbat their counterclaims were bad ;. and being charged with a knowledge of the law/they always knew their pleading was bad; it was too date after the judgment to ask to amend their counterclaims. In law they could not be surprised because the court ruled adversely to them; they could not be surprised because the pleading was bad, because they had prepared it,. and counsel .for the plaintiffs had shown what the law says they knew, that it was ■indeed very bad. Being charged with a knowledge of the law, ■and having the law pointed out to- them, they should .be precluded from asserting surprise in any manner whatever. There could be -no surprise or accident which they could not have ■guarded against before the adverse decision giving judgment. If they had sufficient facts they should have adhered to our sump-le rule of pleading — state the facts. Suppose the co-urt did deny the motion of plaintiffs to strike the counterclaims, such ruling was erroneous; but that did not preclude the court from ruling correctly on the motion for judgment. (Sherburne v. Strmun et <d. (Kansas, 1893), 34 Pac. 405.) We make the point that if the court erred in changing its ruling as claimed ■by defendants, that is, refusing to strike the counterclaims and ■then afterwards on motion for judgment holding the co-unter-.claims bad, that such a ruling is an error of law and not surprise. We malee the further point that such an error, if any, must appear from the bill of exceptions and not by affidavit. Therefore it was error to- support such an error by affidavit. On this feature of the case we submit the'eourt committed error in granting the new trial. We submit the decision of the court giving judgment was correct. That there was no accident or surprise which ordinary prudence could not have guarded against* nor was there any irregularity in the proceedings of the court to the prejudice of the defendant. We further submit that no- matter how many errors might have- been committed by the court, the defendant is concluded and esto-p-ped from complaining of the action of the court in adopting the findings of the referee; the defendant could not urge any..objections thereto if it bad taken an appeal from the judgment. That the defendant, if the motion for new trial had been denied, eonld not appeal therefrom as to the issues' of fact arising upon the complaint because as to such it .was estopped and concluded, and as to the issues arising upon the counterclaims the same are not issues of fact but issues of law, not. subject to a new trial, and therefore as to such issues of law the defendant coixld not appeal from the order if its motion for new trial had been denied. It necessarily follows that the defendant pursued a course wholly unauthorized in law in the; proceedings for new trial. The only remedy the defendant had for a review of any action or ruling of the court was to appeal directly from the judgment, in which case the erroneous ruling complained of would have to appear from 'its bill of exceptions.

      Messrs. Greene & Gochrill, Mr. F. A. Merrill and Mr. Preston II. Leslie, for Respondent.
   ME. JUSTICE MILBURN

delivered the opinion of the court.

This is an appeal taken by plaintiffs from an order granting the defendant’s motion for a new trial. The plaintiffs commenced an action to recover a sum of money from the defendant. On the 10th day of March, 1898, the defendant answered, making certain denials, and attempting to’ set up certain counterclaims; thus seeking to recover of plaintiffs a total sum largely greater than th$ amount sued for by the plaintiffs. On the 4th day of May, 1898, the defendant filed its praecipe, asking for default of reply to the counterclaims, and the clerk, in pursuance of the demand, • entered the' default. On May 9, 1898, the plaintiffs filed a reply to the counterclaims, denying each of the allegations of the answer. On May 11, 1898, the defendant filed its motion to strike the reply from the files, because not filed in time, which motion was afterwards granted, plaintiffs excepting. The cause was by consent referred to a referee to make and report findings of, fact. . .Proof was made by the plaintiffs, and the referee found for them on their claims in the sum of $1,308.83. No proof w>as made by the defendant in support of its counterclaims; it, as is now claimed, depending upon the default of plaintiffs. Plaintiffs and defendant severally moved the court to adopt the findings of the referee and for judgment. The court adopted the findings, and, declaring that only three of the counterclaims of the defendant stated, severally, causes of action, the day after finding for the plaintiffs entered judgment for them in the amount claimed and proved by the plaintiffs, and for coste, less the amount of the sufficiently pleaded counterclaims, and $30 penalties, levied upon the plaintiffs as costs upon overruling certain motions.

Thereafter the defendant moved the court for a new trial, the principal ground, and the only one, really urged by counsel, b^ing that the court below “changed front,” as the court’s action was styled in Newell v. Meyendorff, 9 Mont., at page 262 (23 Pac. at page 334, 8 L. R. A. at page 442, 18 Am. St. Rep. at page 742), and thereby, as the judge declared in giving his reasons for granting a new trial, the defendant was surprised to its damage; and defendant further claims that this surprise was such as ordinary prudence could not have guarded against.

There is nothing properly in the record to show that the court at any time before judgment held that the answer was bad for substance in respect of any counterclaim. The court’s opinions cannot be looked to to determine what was done or not done in the case. The defendant’s bill of exceptions does not in any wise refer to any action or decision of the court upon any motion or demurrer relating to the answer. In the specifications of error submitted to the court in connection with the bill of exceptions used on motion for a new trial, one ground is that the court “erred in finding for plaintiffs upon motion for judgment for defendant in holding certain counterclaims insufficiently pleaded, when the court had previously before trial held the same good against a motion to strike them out of the answer,” and that the court erred in “ordering judgment for plaintiffs without referring the cause to the referee for a new trial, and allowing defendant to anlend its answer, by reason of tbe fact that tbe pleading of tbe counterclaim [s] had all been held good by tbe court before tbe cause was referred to tbe referee, and no legal right existing whereby an amendment might be by the referee allowed.” But there is no statement in tbe bill of exceptions to show that any such motion (or demurrer) attaching tbe answer was made, submitted, or decided. It appears that at tbe time of tbe making of tbe order made and signed July 28, 1898 (tbe day before tbe judgment was rendered), tbe courts in adopting tbe findings of tbe referee, ordered “that judgment be entered in favor of plaintiffs in tbe sum of $996.95 and costs, credited by defendant taxed costs for ‘ overruled motions against plaintiffs herein,” and filed “a memorandum of opinion,” in which tbe judge stated that no objection was made to tbe findings of tbe referee, and that “tbe only questions that remain are in determining tbe sufficiency 1 of tbe counterclaims,” and that “it is urged by defendant that inasmuch as plaintiffs failed to interpose a demurrer, that now, after default, they cannot object to tbe pleading if it falls short of stating a cause of action.”

On November 11, 1898, tbe judge signed, settled, and allowed a bill of exceptions on motion of plaintiffs, in which there appears an opinion of tbe judge, with argument and authorities to support the reasons of tbe court why it believed that tbe defendant bad been surprised by certain action of tbe court, which action is, after the granting of tbe motion for a new trial and in tbe so-called bill of exceptions of plaintiffs, referred to in tbe following language: “Subsequently to tbe filing of its answer by tbe defendant tbe plaintiffs appeared, after notice to tbe defendant, and moved tbe court to1 strike out each of tbe six demands set out in defendant’s answer- as counterclaims, upon tbe grounds that tbe same were sham, irrelevant, indefinite, uncertain, and did not state facts sufficient to constitute a cause of action or defense. Each said demand and counterclaim in defendant’s said answer was by said motion sought separately to be stricken out. After argument tbe said motion was submitted, and vthe court denied said ■ motion upon the theory that the said matter sought to be stricken out, if defective, should have been assailed by a general demurrer to each •counterclaim, and that the remedy was not by motion to strike out. I am of the opinion that, as to three of said demands, said motion should have been sustained.; (Lomme v. Kintzing, 1 Mont. 290; Sands v. Maclay, 2 Mont. 35; Smith v. Davis, 3 Mont. 109; McMahon v. Thornton, 4 Mont. 46, 1 Pac. 724; Dodson v. Nevitt, 5 Mont. 518, 6 Pac. 358.) Afterwards said cause was referred to Fletcher Maddox to hear the testimony, and find facts and report the same to- the court; which was done; and thereupon the cause was submitted to the court upon pleadings and findings of the referee, and judgment was rendered in favor of the plaintiffs, disallowing the three said counterclaims heretofore referred’to, and which are specifically set out in the ruling of the court thereon, heretofore made, and were disallowed upon the ground that they each failed to- state a cause of action. I am of the opinion that the ruling of the court in denying said 'motion to strike out, and subsequently disallowing said counterclaims, was a surprise to the defendant, within the meaning of ” Subdivision 3 of Section 1171 of tbe Code of Civil Procedure, and such a surprise which ordinary prudence could not have guarded against; no reply having been filed, and the default of the plaintiffs on said counterclaims having been entered of record, no evidence was received or offered in support of said counterclaims, and the defendant, perhaps, had the right to .assume that, said motion to strike! out- having beeal denied, ‘ .his counterclaims were sufficiently well pleaded. (Monson & Valentine v. Cooke, Kenney & Co., 5 Cal. 436; Carpentier v. Small, 35 Cal. 362; Hartson v. Harding, 40 Cal. 267; Tennant v. Pfister, 45 Cal. 272; Hayne on New Trial and Appeal, Sec. 37.)’’

Although we may not consider the opinion of the court below, j — only -its acts, and not its reasons, being properly part of the record to be brought to this court on appeal,- — still when, as in this cáse, it is submitted by all parties in their briefs that the acts referred to in tbe opinion last above quoted were done at-tbe time and in tbe manner stated by tbe judge, it is not improper or illegal for us to assume tbem to bave been done as stated; and tbe opinion of tbe judge, while in no wise to be considered as any part of tbe case, having, however, been submitted to us without objection, it may, not unwisely, be read and considered by us as possibly suggestive of what may be tbe just and lawful determination of this appeal. The question-to be decided is a close one. New trials are statutory. If granted, they must be granted upon statutory grounds, and none other. (Ogle v. Potter, 24 Mont. 501, 62 Pac. 920.)

Tbe record is obscure in many places, very redundant in others, and absolutely wanting in most important points. If it were not for tbe fact that tbe briefs submit to this court'' matters as part of tbe case which do not appear in tbe record, it would be impossible to tell what were tbe grounds on which bearing of motion for a new trial was bad. It is certain from the record and tbe concessions contained in the briefs of tbe parties, taken together, that the court bad submitted to it and argued before it, on the bearing on motion for a new trial, the fact that, pending answer, it bad denied the motion to strike certain counterclaims in tbe answer, tbe ground of such motion being as hereinbefore set forth, and tbe claim of tbe defendant that such denial was an assurance to- it that tbe court held tbe answer good in all its counts for substance, and that the “chang’d of front” by tbe court, after adopting tbe report of the referee, in that it suddenly, and without notice to- tbe defendant, held the answer bad in several counts, and ordered judgment for tbe plaintiffs, was accident and surprise, which ordinary prudence could not have guarded against, and on account of which a new trial should be granted. Tbe court granted a new trial upon tbe ground of accident and surprise. If we bold that’ counselors and attorneys are presumed to- know tbe law at their peril, and that equally, at their jeopardy, they accept as law and worthy of safe dependence tbe decisions of tbe court in the proceedings of a cause, then, of course, there is here and now an end of tbis discussion. But sucb bas not been tbe view of tbis court, as appears by a perusal of tbe opinion of Mr. Justice DeWitt in Newell v. Meyendorff, supra. Tbe injured party must bave a remedy. Where is it ? Tbe motion to strike, conceded to bave been made, although called a motion, was also a demurrer, notwithstanding tbe fact that the court in tbe bill of exceptions of tbe plaintiffs declared that a demurrer bad not been filed, tbe court probably, in its discretion, without notice to tbe de^ fendant, having ruled on tbe motion as though it were a mere motion to strike, and declining to consider tbe motion as a demurrer, it not being in form a demurrer, though sucb in substance and effect. Tbis motion attacking tbe .answer for want of substance was overruled. Was not tbe decision of tbe court in tbis denial to be relied upon until tbe court should reverse its ruling? Then why should, in common justice, tbe defendant be mulcted for depending upon tbe wisdom, and consistency of tbe court? (Jeffree v. Walsh, 14 Nev. 143.)

Was not tbe act of tbe court in thus misleading tbe defendant a statutory ground for a new trial ? Tbe court, discovering, its error, should bave informed tbe defendant of tbe mistake, and, pending action upon tbe motions to adopt tbe findings of tbe referee, bave given tbe defendant a chance to amend its answer upon terms, if it saw fit to do so, and, if the defendant amended its answer, then the matter should bave been sent back to tbe referee for further proceedings before him under the court’s order to make findings. But tbe court did not do- tbis. It granted tbe motion of plaintiffs to adopt tbe findings of tbe referee in favor of tbe plaintiffs, and then gave judgment for them. Afterwards tbe court, upon motion, seeing its error, hastened to. make amends in tbe interest of justice. All of tbe cases mentioned herein, as well as. tbe text writer Hayne on New Trial and Appeal, tend to support tbe opinion of District-Judge Leslie in bis view that bis act was sucb an accident or circumstance happening in the case as prevented tbe defendant getting justice on tbe trial. Defendant was induced by tbe ■court not to introduce any evidence before tbe referee to- support its claims set up or attempted to be stated in tbe answer. Tbis .appears from tbe affidavits of counsel, wbicb affidavits were used on tbe bearing, as is admitted by counsel. Failure to introduce evidence on tbe trial in tbis case after default of reply to tbe counterclaims, was tbe direct consequence of tbe action of tbe court in making an erroneous ruling declaring tbe answer good. Was not tbe error of tbe court, resulting from tbe motion of tbe plaintiffs, sucb an act as was extraneous to tbe defendant, and one entering into tbe proceedings of tbe trial, in tbat it put before tbe referee and kept before bim an answer and an order of default of reply thereto, and wbicb, iff effect, told tbe referee tbat be need not take any testimony in support of tbe claims of tbe defendant, and tbat tbe latter need not offer any ? We think so. Then it was an error wbicb could be considered on motion for a new trial. It prevented a fair trial.

It rarely happens tbat sucb a concatenation of circumstances is presented to a court of last resort as appears herein, there being important omissions from tbe record uncomplained of, obscure specifications of alleged error, concessions in briefs of facts omitted from tbe record, and unusual error of tbe court below, with an honest desire to correct and remedy it in a way-difficult to review and involving very close questions of procedure and practice. In a case with so poor a record, uncom-plained of by appellants or respondent, in respect of important faults, and raising so close a question to be determined, it seems to be tbe duty of tbis court to affirm the action of tbe lower court in granting a new trial, especially when it is so apparent; tbat tbe court 'granted it because it bad done tbe judgment debtor an injustice. By suggestion rather1 than by positive declaration tbis court in Newell v. Meyendorff, supra, indicates tbat tbe point herein considered can be raised and determined on appeal from an order granting or refusing a new trial.

In view of tbe very close questions before us to decide, tbe writer of tbis opinion is not willing to have tbis case considered as a precedent except for sucb a case hereafter appearing as may be identical in all particulars with, tbe one herein treated.

Tbe order granting a new trial' i's affirmed.

Affirmed.

Me. Justice Pigott:

Tbe arguments in support of tbe order appealed from and tbe arguments against it seem to me to be of equal legal force. Of course tbey are not. But to my imperfect mental vision tbe reasons wbicb may be urged upon tbe one side are as strong as, but no stronger than, those wbicb may be advanced upon tbe other, — they are of equal weight and tbe scales are in equipoise. Not being satisfied that tbe court below erred in granting a new trial, I concur in tbe judgment of affirmance.

Mr. Ciiiee Justice BraNtly,

dissenting: I do not agree with my associates in tbe result reached in this case. The transcript before us embodies tbe record upon wbicb tbe order of the district court granting a new trial was made. Besides copies of tbe notice of appeal and the order from wbicb tbe appeal was taken, it consists of copies of tbe judgment roll and of a bill of exceptions settled by tbe judge at tbe instance of tbe plaintiffs at the time tbe order was granted. This bill includes not only copies of the affidavits referred to in tbe majority opinion as filed in support of tbe motion so far as it proceeded upon tbe ground of accident or surprise, but also a copy of a bill of exceptions settled at tbe instance of tbe defendant in support of other grounds laid in its motion. Nowhere in tbe record, however, do we find a copy of the motion to strike our tbe counterclaims pleaded in tbe answer, nor of tbe order overruling tbe same. For evidence that any such proceeding took place in tbe district court resort must be bad to- tbe opinion of tbe district judge rendered at tbe time tbe order granting a new trial was made and to tbe affidavits incorporated in the bill of exceptions. In tbe majority opinion tbe recitals contained in these papers are permitted to* supply tbe place of papers, to-wit, tbe motion and tbe order overruling it, wbicb tbe law re-' quires to be part of tbe records of the court as embodying the only evidence to which this court may look to determine, in u given case, what action has been had therein in the trial court and the grounds therefor. In other words, the recitals in these papers are permitted'to take the place of a copy of a motion to strike as well as of the order‘overruling it; whereas, what is made to appear from the papers actually filed in the district court, and the entries- actually made in its. journal, are the only things to which the district court itself, or this court, may look in order to be satisfied that such an order was made. In my opinion, we may not look to these papers for such a purpose. The opinion of the judge has no place in the record for any purpose (Menard v. Montana Central Railway Co., 22 Mont. 340, 56 Pac. 592; Butte & Boston Min. Co. v. Socieie Anonyme des Mines de Lexington, 23 Mont. 177, 58 Pac. 111, 75 Am. St. Pep. 505; Cornish v. Floyd-Jones, 26 Mont. 153, 66 Pac. 838) ; therefore the recitals therein cannot be considered. The affidavits may not by their allegations supply the place of an order which should, if it was ever made, appear in. the court journal and in the judgment roll. If we may not consider these papers as evidence of the making of the order, the subsequent reversal of which upon the entry of judgment is alleged to have surprised the defendant, but must look only to the record which was before the district court at the time :he new trial was granted, then there is nothing in the record to justify that court in granting it. True, these matters are referred to. in the briefs of counsel, but the implied admissions thus made that such a motion was filed, and such an order was made thereon, in no way aid the recitals referred to. Omitting-these recitals from the record as matters having no place therein, it fails to show any reason for granting a new trial upon any of the statutory grounds; for, so far as appears to us, none of the other grounds laid in the motion justify the order, and it seems to have been made for a reason which has no foundation to support it except matters which rested in the memory of the district judge and of counsel. If there ever was filed in tbe district court a motion to strike wbicb was treated as a ■demurrer for substance, and if an order was ever made overruling it upon tbe theory that it was such a demurrer, thus misleading counsel to defendant’s prejudice, tbe evidence of these proceedings should be found in the judgment roll. None being found there, the presumption is that they never occurred, or, in any event, that they never became a matter of record in the district court; for we must presume that the judgment roll was made up by the clerk from the record as it actually exists. Omissions therefrom, if any, should have been supplied by amendment to- the record in the proper way, and not by affidavits of counsel or the mere recitals in the opinion of the judge. To justify the granting of a new trial upon a record, such as presented in this case is equivalent to saying that, if the district judge conceives in his own mind that there exists a reason why a new trial ought to be granted, he may grant it, irrespective of the contents of a motion made for that purpose. This court thus establishes a precedent for a practice that finds no justification anywhere, so far as I am aware. Upon the record counsel for defendant relied upon their default taken against the plaintiffs. They had a right to do so> if they chose. The default was entered by. the clerk, and not by the court. When the defendant made its motion for judgment in its favor for a balance after allowing credit for the amount found in favor of the plaintiffs by the referee, there was presented to the court for the first time in the case the question whether the counterclaims stated a cause of action. The defendant, through its counsel, thus chose to abide the action of the court upon their motion. Having done so, they were bound by the conclusion reached thereon, and should not be heard to- complain, except upon appeal from the judgment.

(Submitted January 2, 1902. Decided January 3, 1902.)

ON MotioN tor Rehearing.

MR. JUSTICE MILBURN delivered tbe opinion of the court.

The plaintiffs have submitted a motion for a rehearing of this case, which was decided by this court on the 9th day of December, 1901; and, after considering the same, we are of the opinion that the general result reached in the original opinion is correct. Our attention having been called to the fact, however, that the findings of the referee in favor of the-plaintiffs were conceded to be correct and that three of the counterclaims of the defendant were properly allowed by the district court, it finding for the defendant for the amounts, claimed therein to be due, we think, under these circumstances,, that the order of affirmance is too broad and should be, and now is, modified to read as follows:

“The cause is remanded with direction to. the district court, to cause to be entered an order granting the defendant’s motion, for a new trial in so far only as are involved the matters presented by the counterclaims other than the three included in. the judgment, with leave to defendant to amend its answer.

Remanded with direction to the court to proceed as above-ordered.

Modified and affirmed.


source: Caselaw Access Project

author: MR. JUSTICE MILBURN

license: Public Domain

text:
    KIRK et al., Respondents, v. BAKER et al., Appellants.
    (No. 1,390.)
    (Submitted November 21, 1901.
    Decided December 16, 1901.)

      Executors and Administrators — Real Estate — Sale—Notice to . Heirs — Proof of Heirship — Necessity — Administrator’s Liability.

    Real estate of a decedent was sold by an administrator under order of tbe probate court. Thereafter certain persons claiming to be heirs of the deceased, and therefore entitled to a share in the land, claimed their share of the proceeds of the property from the administrator on the ground that they had no notice of the sale, or of the proceedings therefor; and, he having refused to pay thém, their claim was paid by the purchaser, whereupon he sued tne administrator- and his sureties to recover the amount so paid, the complaint alleging that there was no mention made of the alleged heirs, or of their claims, at any time or anywhere in tne probate proceedings or record. Held that, since the administrator was not required to take notice of the claims of such'heirs until their heirship had been established as prescribed by Code of Civil Procedure, Title XII, Chapt. 10, Art. II, and the complaint alleged that no such proceedings had been had, plaintiff was not entitled to recover.

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

    Action by T. S. Kirk and another against H. B. Baker and others. Erom a judgment in favor of plaintiffs, and from an order denying a new trial, defendants appeal. ■
    Reversed.

      Messrs. Luce & Luce, for Appellants.

      Mr. Eugene B. Hoffman, for Respondents.
   MR. JUSTICE MILBURN

delivered the opinion of the court.

This is an appeal from a judgment in favor of plaintiffs and from an order denying defendants’ motion for a new trial. The action was brought by plaintiffs and respondents to recover of H. B..Baker, as administrator of tbe estate of Nancy F. Baker¿ deceased, and one. W. Bailey and Mrs. S.; Niles Baker,. sureties pn tbe official bond of tbe administrator, tbe sum of $256, alleged to be due plaintiffs fur money paid by tbem to Arthur C. Long and Mary Wood for an alleged, one-twelftb interest wbicb tbey claimed in tbe real estate of said Nancy F. Baker, deceased. Tbe land in wbicb tbe said Long and tbe- said Wood claimed an interest was all tbe property wbicb belonged, to said estate, as appears from tbe complaint, and was conveyed by an order of tbe probate court of Gallatin county to H. N. Kirk for $3,000 on June 6, 1887, having been sold under decree of said court, and by H. N. Kirk conveyed to tbe plaintiffs.. Tbe plaintiffs claim that tbe said Arthur. C. Long and tbe said Mary Wood were'minor heirs, and that there was not any notice of the time and place of said sale given to tbem, and that said sale was made without printed or posted notice to'any one-; and that, after attaining their majority, tbey claimed from the.defendant H. B. Baker their portion of tbe proceeds arising from tbe sale of tbe property, but that said H. B. Baker refused to pay tbem tbe same; and that on tbe 18th day of January, 1897, tbe said Arthur C. Long and tbe said Mary Wood brought suit against tbe plaintiffs for a partition of tbe real estate, and that they paid said parties $250 for their said one-twelftb interest and $6 for expenses of litigation, in order to avoid the suit. In the suit at bar tbey bad judgment in tbe court below for tbe sum claimed. Tbe complaint further states that there was not any mention made of tbe two-alleged heirs, or of their claims, at any time or anywhere in tbe probate proceedings or records.

Numerous points are relied upon and urged by appellants, but we see no useful purpose in noticing more than one, i. e., want of substance in the complaint.

It is obvious from tbe complaint that at no time has any one of tbe two alleged heirs or their assignees, respondents herein, appeared in tbe probate court to have bis or her status or clai.us adjudicated. It appears conclusively from the complaint that at no time has tbe probate court made any order in tbe premises, and it is therefore trae that the administrator has not disobeyed any order of the court in relation to these alleged heirs or their assigns.

An administrator, at his peril, declares persons to be interested as heirs or other claimants, and pays or delivers to them any part of the money or other property of the estate, befare such persons have been formally by the court in probate proceedings declared to be such, and before he is ordered by the court to make distribution, after report and accounts made and allowed, showing the condition of the estate. If he neglect and refuse to obey the order of the court to distribute, and not be¿ fore, is he liable upon his official bond.

In this case there is no- reason why an extended opinion should be rendered. It is sufficient to- say that Article II, Chapter XI, Title XII (Sections 2840-2841), of the Code of Civil Procedure, on Distribution on Pinal • Settlement, shows, how any person claiming an interest in any part of the estate upon distribution, whether as heir or not, may enforce his claim, and, if necessary, have his heirshipi determined; and further shows how and to whom distribution shall be made. Examination of the provisions of said article clearly shows that the plaintiffs have no cause of action under the facts stated in the complaint. It is needless to- say more in this case.

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

Reversed and remanded.


author: MR. CHIEF JUSTICE BRANTLY MR. Justice MilburN : Mr. Justice Pigott:

text:
    WETZSTEIN, Respondent, v. BOSTON & MONTANA CONSOLIDATED COPPER & SILVER MINING CO., Appellant.
    (No. 1,671.)
    (Submitted October 8, 1901.
    Decided December 23, 1901.)

      Mines — Recovery of Interest Therein — Injunction Pendente Lite — Order to Show Cause — Evidence — Admissibility— Record of Former Judgment.

    1. Obiter. The incorporation in a complaint in one case of the allegations contained in a complaint in another and separate cause, naming other parties as defendants by reference merely, is of very questionable propriety.
    2. On appeal the supreme court will not undertake to determine whether the evidence was insufficient to warrant the issuance of an injunction pendente Ute, when the order granting the same must be reversed on other grounds.
    3. On the hearing of an order to show cause why an injunction pendente Ute should not issue, for which application was made by complainant on the filing of his complaint, the proposed answer of defendant to the suit, and the proposed answer of defendant to another suit concerning the same mine, the complaint of which had been made a part of the present complaint, were properly rejected, where the verifications of the same were on information and belief; positive verifications being required.
    4. On the hearing of an order to show cause why an injunction should .not issue to restrain defendant from operating a certain mine pending a suit for an interest therein, it was error to reject, as irrelevant and immaterial, the pleadings, judgment and findings of a prior actiom which adjudicated the ultimate rights of the parties in the subject of the controversy.
    5. On the hearing of an order to show cause why an injunction should not issue to restrain defendant from operating a certain mine pending a suit begun in 1901 for an interest therein, the record of a prior action between the parties in regard to the same mine, wherein it appeared that the deed alleged in tne present suit to be fraudulent and to have been executed by mistake was in existence in 1885, and that ores had been removed from the mine for at least three years before this application was made, was improperly rejected; the same being material, together v ith other facts, on the question of plaintiff’s laches in making the application.
    6. On the hearing of an order to show cause why an injunction should not issue to restrain defendant from operating a certain mine pending a suit for an interest therein, the record of a prior action wherein it appeared that an injunction had been denied on the same facts and issues as were involved in the present suit was admissible as oarring a second application for an injunction on the same facts, where the court was doubtful of 1 the good faith of the application, and of rhe merits, ami of the plaintiff's laches.
    7. where, on the hearing of an order to show cause why an injunction should not issue, restraining defendant from operating a certain mine pending a suit for an interest therein, it appeared that several suits between the same parties had been brought concerning this same mine, in one of which an appeal was pending, the affidavit of the defendant’s attorney, made on his knowledge, as to the history of the litigation, was admissible, as tending to make clear the identification of the parties and the subject-matter in the several suits.

      Appeal from District Court Silver Bow Countyj William Clancy, Judge.

    Suit by Adolph Wetzstein against tbe Boston & Montana Consolidated Copper & Silver Mining Company. From an order granting tbe plaintiff an injunction pendente lite, restraining tbe defendant from operating its mines) tbe defendant appeals.
    Reversed.

      Messrs. Forbis & Fvans, for Appellant.

      Messrs. McHatton <& Cotter, Messrs. Toole & Bach, Mr. J as. M. Denny and Mr. Robert B. Smith, for Respondent.
   MR. CHIEF JUSTICE BRANTLY

delivered tbe opinion of tbe court.

Tbis action was brought by tbe plaintiff to obtain a decree awarding to bim an undivided oneffourtb interest in tbe Comanche lode claim (patented), situate in Silver Bow county, and for an accounting for ores extracted and removed therefrom by tbe defendant, and converted to its own use. Upon tbe filing of tbe complaint an application was made for an injunction to restrain defendant from extracting or removing ores pendente lite, and, after a bearing upon an order to show cause, tbe court made an order granting tbe injunction as prayed. From tbis order tbe defendant has appealed.

Tbe principal questions presented for examination arise upon tbe rulings of tbe district court in excluding certain evidence offered by defendant. Tbe purport of these rulings is best understood by reference to tbe allegations upon which tbe plaintiff bases bis claim of title. Omitting formal matters, a brief synopsis of these is tbe following: That plaintiff is, and since March. 21, 1894, has been, the owner and entitled to the possession of an undivided one-fourth of the Comanche lode claim, which is valuable for the silver and copper ores contained therein; that it was located on January 19, 18J9, by one D. N. Upton and one N. L. Turner, each thus becoming entitled to an undivided oner-half interest; that Upton therafter, and on February 28, 1889, conveyed an undivided one-fourth interest to one George H. Tong; that he never thereafter conveyed any other interest to any person until November 16, 1893, when he sold and conveyed his remaining one-fourth interest to one H. L. Frank, who thereafter, and on March 21, 1894, conveyed the same to the plaintiff; that though said Upton had not sold any interest except to Tong, as aforesaid, said Tong, one Patrick Largey, one Howard H. Zenor, and one Nicholas J. Bie-lenberg, on or about June 3, 1890, applied to the United States for a patent to the said claim, fraudulently excluding Upton from the application, intending thereby to obtain for themselves title to the interest belonging to Upton; that Upton was at that time the owner of record of an undivided one-fourth interest; that notwithstanding this fact they procured a patent from the United States for themselves, fraudulently excluding Upton therefrom; that they thus became trustees of the legal title of the interest belonging to Upton; that the patentees thereupon organized the Comanche Mining Company, they becoming the officers and stockholders thereof; that the said company was organized for the purpose of taking title to the claim patented as aforesaid, and that the patentees thereupon conveyed the said claim to it by quitclaim deed, the only consideration therefor being capital stock of the company which they caused to be issued to themeselves; that the company took the conveyance of the property with full knowledge of Upton’s rights; that the said company on November 10, 1896, conveyed the claim to the defendant herein, but that the defendant took the conveyance with full knowledge of plaintiff’s rights under his conveyance from Upton through Frank; that the defendant thereupon entered into the exclusive possession of the claim so conveyed to it, and bas ever since excluded tbe plaintiff therefrom, claiming to be tbe exclusive owner, and denying tbat tbe plaintiff bas any right or interest therein; tbat defendant is still in exclusive possession of tbe property, and is mining, carrying away, and converting to its own use large quantities of ores therefrom, and will continue to do so; refusing meanwhile to account to the plaintiff for any portion of them or of their value; tbat it bas already taken therefrom ores of a value exceeding $4,000,000; tbat tbe plaintiff bas no means of knowing tbe exact amount of tbe ores so being taken from day to> day, and tbat, unless a receiver be appointed and tbe defendant enjoined, be will be compelled to rely upon the good faith of tbe defendant when it is finally made to account; tbat the defendant will not, as plaintiff believes, render a correct account; that it is also engaged in working other* mines, and is mixing tbe ores from the Comanche claim with the ores from such other mines, and is treating and smelting them all together', though tbe ores from tbe Comanche are of much greater value; tbat tbe ores from tbe latter are of great richness, and that there can be easily extracted of them during each year an amount of tbe value of $1,000,000; tbat tbe defendant is about to convey all its property, including tbe Comanche claim, to a corporation formed outside of tbe state of Montana, thus increasing tbe danger of irreparable loss and damage to tbe plaintiff unless tbe defendant be required to deliver one-fourth of said ores to a receiver; that plaintiff bas demanded tbat be be let into possession of tbe Comanche claim jointly with the defendant, but that bis demand bas been refused; tbat be bas likewise demanded tbat defendant deliver to him on tbe dump one¡-fourth of all ores extracted, offering to pay tbe defendant one-fourth of tbe expenses of mining tbe same, but tbat this demand bas likewise been refused; tbat plaintiff is able, ready, and willing to pay bis part of tbe expense of working tbe property; tbat be and defendant are in fact cotenants in tbe property, tbe defendant owning an undivided three-fourths interest therein; tbat defendant is extracting tbe ores aforesaid through workings not on tbe property, wbicb fact prevents plaintiff from ascertaining tbe amount and value of them; and that prior to tbe commencement of tbis action tbe plaintiff bad instituted another action against tbe defendant and others for tbe reformation of a deed from Upton to Patrick Largey, now deceased, and for various other reliefs, as will appear by tbe complaint filed with tbe clerk of tbis court, to wbicb plaintiff refers and makes part hereof, without setting forth tbe same at length, but with tbe same force and effect as if fully set forth herein.

Tbe complaint referred to in tbe latter part of tbe foregoing synopsis is copied into tbe transcript as a part of tbe complaint; in tbis causes Besides tbe Boston & Montana Consolidated Copper & Silver Mining Company, there are named as defendants therein David N. Upton, George H. Tong, Howard H. Zenor, Nicholas J. Bielenberg, Henry L. Prank, Lula P. Lar-gey, administratrix of tbe estate of Patrick Largey, deceased, Charles S. Warren, and tbe Comanche Mining Company. It sets forth, in substance, all of tbe allegations contained in tbe foregoing synopsis touching tbe location of tbe Comanche claim; tbe proceedings to obtain a patent by Tong and. others; tbe alleged fraudulent exclusion of Upton from tbe application and from tbe patent; the various conveyances from Upton to>-tbe plaintiff; tbe conveyances from tbe patentees to tbe Comanche Company, and from that company to tbe defendant, with tbe allegation of knowledge on tbe part of tbe company and tbe defendant as to Upton’s rights at tbe time tbe respective conveyances were made to them; tbe exclusive possession claimed and held under its conveyance by tbe defendant; tbe mining operations conducted by it; its intention to convey all of its property, including tbe Comanche claim, to a corporation formed outside of tbe state of Montana; the cotenancy of plaintiff and tbe Boston & Montana Consolidated Copper & Silver Mining Company,- — and then continues as follows, alleging by way of information and belief that David W. Upton, before be bad made tbe conveyance to Tong of an undivided one-fourth interest, and before be conveyed tbe other one-fourth interest belonging to him to H. L. Drank, relocated a claim upon the ground embraced by the Comanche claim, which he called the “Grand Prize,” and thereafter, at the request of Largey, executed a deed to said Largey by which he intended to convey to-the said Largey an undivided one-fourth interest in the Grand Prize claim, whereas in fact, but by mistake on his part, which was known to Largey at the time, he actually conveyed a one-half interest; that at the time he made the conveyance to the said Largey it was represented to him by Largey that the conveyance in no wise' deprived him of any interest then owned by him in the Comanche lode claim; that he relied upqn such representations made by Largey; that the deed then executed had been-prepared under the instructions of Largey, and was understood by Upton to convey only an undivided oneffourth interest in the Grand Prize lode claim; that thereafter Upton discovered that the deed, upon its face purported to convey an undivided onei-half interest; that he immediately, upon his discovery of- the fact, called the attention of Largey to the error made, and that thereupon Largey agreed with him that it was an error, and that Largey would rectify it by a reconveyance to> Upton of an undivided one^fourth interest; that Largey never made the said conveyance as he agreed; that the relocation made by Upton of the Comanche claim under the name of the “Grand Prize Lode Claim” was for the purpose of avoiding the consequences of an adverse decision which was anticipated as to the location of the Comanche lode claim, at that time involved in litigation; that thereafter the location of the Comanche lode claim was held good, and thereupon the Grand Prize location became nugatory and was abandoned both by Upton and Largey and all the other parties interested; that heretofore, and long prior to the commencement of this action, and after plaintiff became the owner of the said one-fourth interest in the Comanche claim theretofore owned by-Upton, the plaintiff attempted to assert his titie to the said interest, when, to his surprise, it was claimed that he, as the successor of said Upton, was es-topped from asserting any title thereto by the deed of Upton to Largey of tbe one-half interest in the Grand Prize claim, and that, because said Upton had deprived himself of any interest in the Comanche claim, the deed from Upton to. Frank and from Frank to. Wetzstein was void; that the deed from Upton to Largey of the one-half interest in the Grand Prize claim was fraudulent and void; that, in taking the conveyance of the one-fourth interest in the Comanche claim from Upton through Frank, the plaintiff relied upon the record of Upton’s title, as well as upon the adjudications by the courts that the location of the Comanche claim was valid; that there was no record of any conveyance by Upton to any other person than that to Frank, from whom plaintiff purchased; and that before the bringing of this action Patrick A. Largey died intestates and Lula F. Largey was appointed and qualified as adminis-tratrix upon his estate.

No allegation is made in either complaint of any wrongdoing hy defendant Warren, the only reference to him being a statement in both complaints that at the time the application for patent was made he was the owner of an undivided one-eighth interest; he, Largey, Zenor, and Bielenberg having obtained the interest of Turner, the colocator with Upton, hy conveyance from him.

The prayer of the first complaint is for a decree adjudging the plaintiff to be the owner of an undivided one-fourth interest in the Comanche claim; that all adverse claims of the defendant are without right; that the defendant be enjoined, pending the hearing, from mining and taking away ore; and that the plaintiff have general relief.

The prayer of the second complaint is for a decree adjudging the action of Tong and his associates in excluding Upton from the patent to be fraudulent and void; that the one-fourth interest owned by Upton in the Comanche claim under the location was not conveyed to. Patrick A. Largey by the deed to the one-half interest in the Grand Prize claim; that, if it be held that this deed conveyed any interest whatever, it be reformed so as to show the true intent of the parties at the time it was made, and tbat the reformation be so made as to relate to the date of the conveyance by Upton to Largey; that it be adjudged that, at the time Upton conveyed or executed the deed to a oner fourth interest in the Comanche claim to TI. L. Frank, he was the sole owner and entitled to the possession of the interest so conveyed, and that plaintiff by his conveyance from Frank became entitled to the said interest; that plaintiff’s title thereto be forever quieted; that the plaintiff and the Boston & Montana Consolidated Copper & Silver Mining Company be declared to be cotenants in the Comanche claim, the plaintiff being entitled to a one-fourth interest, and the said corporation to the remaining interest; and that the plaintiff have such further relief as to the court may seeip. proper.

Before proceeding to discuss the questions presented by appellant, we stop to remark that no question was made in the coirrt below, nor is any made in this court, as to the form of the complaint, or as to the sufficiency of the allegations contained in it. To say the least of it, the incorporation in the complaint in this case of the allegations contained in the complaint filed in another and a separate cause, naming other parties as defendants by reference, merely, is of very questionable propriety. Inasmuch, however, as the appellant makes no¡ question as to the method adopted in this regard, we pass it without further comment.

1. The appellant contends that the evidence adduced at the hearing was insufficient to- warrant the issuance of an injunction. We shall not now undertake to1 determine the merits of this contention, for the reason that the order must be reversed on other grounds. By the time another hearing can be had in the district court, a wholly different situation may be pre^ sented, and we would avoid prejudicing the rights of the parties as they may then be made to appear. Furthermore, as will appear from matters referred to hereafter, it may be that the rights of the parties will have been finally determined before another bearing can be bad, in which event such hearing will be entirely unnecessary.

2. The plaintiff introduced evidence tending to support the allegations of his complaint. Thereupon the defendant offered to introduce as evidence its proposed answer to the complaint in this cause, and also' the proposed answer in the cause the complaint in which is-adopted as a part of the complaint in this cause by reference. This latter cause is designated in the •district court records as No. 9,081. These answers are verified by one C. S. Batterman, superintendent of the defendant, upon his information and belief. Upon objection, they were excluded as incompetent. Defendant assigns error. The ruling was correct. Ex parte affidavits may be used by the plaintiff as evidence in support of an application for an injunction. (Code of Civil Procedure, Sec. 872.) Likewise they may be used by defendant in resisting the application. (Id. Sec. 875.) In the latter case oral evidence may also be resorted to by both parties, but the answer, if verified, has the effect only of an affidavit. (Id. 877.) It does not follow, however, that the ordinary rules of evidence are not to‘ be observed in the use of such affidavits. It was said in Thompson v. Ocean City Railroad Co. (N. J. Ch.), 37 Atl. 129: “It would seem that the same rule must be applied to distinguish between testimony that is admissible and testimony that is nonevidential, whether such testimony is found in affidavits to be used as a ground for obtaining an injunction, or the testimony is produced in open court by the examination of witnesses to support any litigated fact.” In Bennett Bros. Co. v. Congdon, 20 Mont. 208, 50 Pac. 556, this court, speaking through Mr. Justice Hunt, said: “A court is sometimes called upon to grant a temporary restraining order to show cause, upon papers or testimony which at first examination appear to be sufficient, yet afterwards are-held not to be. In certain instances, haste in issuing a restraining order is necessary to prevent the doing of an act which, if done, would apparently work irreparable injury to another. A judge, under such circumstances, must do the best he can, by acting upon tbe testimony at band. But when tbe return day bas come tbe parties may offer strictly legal testimony for tbe purpose of continuing or dissolving tbe order, and if they do, it is tbe duty of tbei court to bear and consider it, and to exercise its legal discretion upon all that is competent and properly before it.” Mr. Justice Hunt cites Thompson v. Railroad Co., and approves tbe passage quoted supra as embodying a correct statement of tbe rule applicable to such affidavits. Tbe use of affidavits in preliminary injunction proceedings, whether it finds its sanction in tbe usages of courts of equity, or is founded upon express authority of the statute, bas for its purpose tbe expediting of tbe bearing in order that relief may be quickly obtained from impending injury, for which, if it were allowed to occur1, tbe law could not afford adequate remedy. Tbe rule goes no further, however, than to excuse tbe complaining party from tbe necessity of presenting bis evidence in tbe ordinary way; that is, by tbe testimony of witnesses sworn an 1 examined orally at tbe bearing in tbe presence of tbe adverse party, or by means of depositions taken upon notice under the provisions of tbe statute. Tbe statute regulating tbe issuance of injunctions without notice (Code of Civil Procedure,- Sec. 872) recognizes this principle, by providing that no injunction shall issue upon tbe complaint alone, unless it be verified and tbe material allegations setting forth tbe grounds therefor be made positively, and not upon information and belief. Not only must tbe allegations be made in tbei form of'positive statement, but tbe affidavit of verification must also be positive, so that tbe action of tbe court or judge in making tbe order in tbe first instance may be based upon an unequivocal statement of fact. (Butte & Boston Consol. Min. Co. v. Montana Ore Purchasing Co., 24 Mont. 125, 60 Pac. 1039.) If tbe complaint does not meet these requirements, no1 injunction can be granted, unless there be presented in support of tbe application an affidavit of some one who speaks from bis own knowledge. Tbé same principle must, of necessity, apply in contested applications for injunction, and there is no reason why the rule should be relaxed in favor of tbe defendant when be appears to resist; tbe application. A witness sworn to testify orally would not be permitted to depose to mere hearsay statements, neither may an affidavit embodying only hearsay statements be considered of any evidentiary value. Tbe court in such proceedings must deal with facts established under recognized rules of evidence, except so far as tbe method of presenting them may be modified by recognized usages of courts of equity, or by express statutory provision. It is only by a consideration of facts so produced that the court may be moved to exercise its discretion in granting or refusing the demanded relief. (Bennett Bros. Co. v. Congdon, supra, and cases cited; 2 Cyc. Law & Proc. 35, notes “a” and “k”)

3. The defendant offered also the pleadings, judgment and findings in a cause designated on the district court calendar as No. 5,050, wherein the plaintiff in this cause was plaintiff, and the Comanche Mining Company and all the persons named as defendants in cause No. 9,081, supra, except Upton, were named as defendants, besides certain other parties alleged to be interested in the Comanche claim as privies of the other defendants. This suit was begun on March 21, 1894, and the record was offered for the purpose of showing that it was sought by plaintiff therein to obtain a decree declaring tbe defendants trustees of the legal title of an undivided one- fourth interest in the Comanche claim, for the use and benefit of plaintiff, upon the same facts which are alleged in the pleadings in this cause. There were included in the same offer the original complaint, demurrer, application for injunction, order denying the same, and final judgment on demurrer in another cause; numbered 8,304, wherein the plaintiff herein was plaintiff, and the defendant herein was named as defendant. In that cause a judgment was sought decreeing the plaintiff to.be the owner of the same undivided one-fourth interest in the Comanche claim involved in this cause and in Nx 5,050, supra. This second record was offered for the purpose of showing this fact, and that, basing his right of recovery upon the same facts alleged in tbe complaint in tbis cause, except as to tbe mistake in tbe Grand Prize deed, tbe plaintiff bad applied for and been denied relief by way of a preliminary injunction In connection with tbe foregoing records there was also offered an affidavit of L. O. Evans, one of defendant’s counsel. Tbis affidavit gives a succinct bistory of tbe controversy between plaintiff, as grantee of Upton, and tbe original patentees of tbe Comanche claim, tbe Comanche Mining Company, and tbe defendant, tbe present bolder of tbe legal title, and tends to identify both of tbe actions referred to as actions between tbe same parties, or their privies, and as involving tbe same interest in tbe property under tbe same claim of title. Tbe affidavit further shows that ■cause 5,050 is pending in tbis court upon appeals from tbe judgment and an order denying a new trial, and that upon appeal to 'this court from the order denying an injunction in cause 8,304 tbe order was affirmed. These original files and tbe affidavit were, upon objection of tbe plaintiff, excluded from tbe evidence as incompetent and immaterial. We think tbe ruling erroneous. Tbe record in 5,050 shows that tbe plaintiff founded bis right to1 recover therein upon tbe allegation that Upton was one of tbe original locators of tbe Comanche claim, that be bad never conveyed any interest therein except a one-fourth interest to Tong, and that be bad been fraudulently excluded from tbe patent by Largey and bis associates, although at tbe time of tbe application be appeared of record to be the owneor of a fourth interest. It further! shows that, besides a denial of many of tbe affirmative allegations of tbe complaint, separate defenses were interposed as follows: (1) That tbe plaintiff bad no interest in tbe Comanche claim, for tbe reason that in 1880, a short time after tbe location was made, Upton bad conveyed tbe interest claimed by plaintiff to one Collins, who on or about August 6, 1884, bad conveyed to Patrick A. Largey, and therefore that tbe deed by Upton to Frank, plaintiff’s grantor, conveyed no interest whatever; (2) that on or about August 6, 1884, Upton represented to Largey that Collins owned tbe interest in controversy; that be induced Largey to purchase the same and take a deed therefor from Collins, for a large sum of money; that Largey, with Upton’s knowledge, expended money in protecting the title to the claim and in developing it; and that by his acts in this regard the said. Upton had estopped himself and his grantees forever from making a claim to any interest therein; and (3) that the Comanche-claim was also designated and known by Upton as the “Grand Prize Claim;” that on November 23, 1885, he had conveyed to Largey a onedialf interest therein; to Zenor, named as defendant,, a one-fourth interest; and subsequently in 1889, to> defendant Tong the remaining one-fourth interest; that by these conveyances the said Upton had parted with all interest that he ever-had in the ground covered by the Comanche claim, and therefore that the plaintiff acquired no interest whatever by his conveyance from Upton. It appears that the cause was tried upon the issues made upon these defenses by denials on the part of the plaintiff as to the two- first, and by an allegation, by way of avoidance as to- thel last, that the Grand Prize location was made in order to hold the ground covered by the Comanche-claim in case it should be adjudged, in an adverse suit then pending between the claimants under that location and their adversaries who claimed under another location, known as the-“Smelter Claim,” that the Comanche location was invalid, and. that, the Comanche location having subsequently been held to be valid, the Grand Prize location was abandoned by all the parties in interest. It also appears that the court made special findings upon all of these issues. It found upon the first two in favor of the defendants, namely, that in 1880 Upton conveyed to Collins the interest now claimed by plaintiff; that on or about August 6, 1884, Upton induced Largey, by representing to him that Collins owned the interest, to buy it from Collins, with other property, for the sum of $2,500, and that Lar-gey in so purchasing relied upon Upton’s representations; and that Upton received a commission of $100 for negotiating the-purchase from Collins. Upon the third defense the issue was found in favor of plaintiff, — that although the Grand Prize-location was made for the benefit of Upton, Largey and their associates, and interest therein conveyed to1 Largey, Zenor and Tong, as claimed by defendant, yet, when the Comanche loca,tion was held valid, all the parties, including Largey and Upton, had abandoned the Grand Prize location as nugatory. It was adjudged and decreed upon these findings that, at the time the patent was issued to Largey and his associates, Upton had no legal or equitable interest in the property, and that the plaintiff acquired no interest whatever therein by virtue of the conveyance from Upton after the patent was issued. It thus appears that the ultimate question involved in cause 5,050 (that is, the ownership of the interest in question) was the same question, fundamentally, as the one involved in this case.

This question was agitated between the plaintiff and the grantors of the defendant. It was adjudged in favor of the latter upon two distinct grounds, either of which, so long as the judgment stands, is conclusive against the claim of the plaintiff, without regard to the character of the Grand Prize deed; for, if the judgment should finally be affirmed, it would forever preclude the plaintiff from obtaining a reformation of that- deed, whether it was executed under a misapprehension by Upton or not. The adjudication that the Grand Prize location was abandoned because the ground co.vered by it was already covered by the Comanche, a valid location under which Upton and his associates obtained title, was necessarily an adjudication that none of them obtained any title under the Grand Prize location. This is binding upon the parities to' that judgment, as well as upon their privies. The defendant, so long as the judgment stands, could not be heard to say that it obtained any title under it; neither should the plaintiff, who tendered the issue, and after it had been determined in his favor, be heard to assert that it stands as an impediment to his rights, which the court should remove by a separate decree. If that judgment were affirmed, and were properly pleaded as a bar to this action, the court would be compelled to hold it conclusive upon the plaintiff. It meets all the requirements of the statute (Code of Civil Procedure, Secs. 3196, 3199) which declares the rule as to wbat matters are to be deemed concluded by a former judgment between the samo parties and their successors in interest. The question here, however, is not whether the judgment- is conclusive upon plaintiff’s right to maintain this action, — as defendant contends; the question is, was the judgment admissible as a fact of import for the court to consider with other evidence in determining plaintiff’s right to an injunction ? Appearing, as it does, to have adjudicated the ultimate rights of the parties in the subject of the controversy, it falls clearly within the principle of Boston & Montana Consol. Copper & Silver Min. Co. v. Montana Ore Purchasing Co., 25 Mont. 87, 66 Pac. 752, recently decided by this court, and furnishes a reason which would ordinarily, in the discretion of the court, be sufficient to warrant a denial of the injunction.

The record was admissible upon other grounds. It was contended at the hearing that the injunction should not issue because, whatever ultimate right the plaintiff might -finally be found to have, he had failed to apply promptly for relief, and that his own laches precluded any relief by way of preliminary injunction. Had the evidence been admitted, it would have appeared from it and other facte submitted that though the Grand Prize deed had been in existence since 1885, and though, at the trial of cause 5,050 in the district court, Upton was confronted with this deed, and interrogated fully about it, and though the removal of ores from the Comanche claim had been going on for at least three years at the time this application was made, noi claim was ever made by him or the plaintiff until the bringing of this suit, in February, 1901, that the deed was fraudulent or was executed by mistake. It is of some significance, also, that the deed was an important element in controversy at the trial of that cause, and yet no mention was made of the mistake in its- execution in 1885. These facts were proper to be considered, with the other facte submitted, in determining whether the plaintiff had slept upon his rights and was not entitled to preliminary relief.

Tbe record in cause 8,304 was admissible as tending to show, in connection with the record in 5.050 and the other evidence-in the case, that an injunction had been previously sought and denied in that suit upon the same facts and issues which are involved in this case. It shows that the plaintiff attempted to assert title to the same interest in the Comanche claim which he asserts in this case, and as derived from the same source. It also appears from it and the other facts which are in evidence that the character of the Grand Prize deed was known at the time the suit was brought. In offering it the defendant sought to bring the case within the rule laid down by some courts, that, after an injunction has once been refused in an action between the same parties, a second application will not be entertained, either in the same action or in another subsequently brought, when it appears that the second application is based upon the same grounds upon which the first application was made, or upon grounds which might have availed in the first instance. The following authorities lend support to- the views contended for by the defendant: 16 Am. & Eng. Enc. Law (2d Ed.), 365; 2 High on Injunctions, Sec. 1586; Porter v. Morere, 30 La. Ann. 230; Beach on Injunctions, Sec. 155; Endicott v. Mathis, 9 N. J. Eq. 110. While we would not be willing to go so far as- to declare that this seemingly harsh rule should be rigorously applied to all cases where a second application is made for an injunction in the same or a second action, we are nevertheless of the opinion that it is a rule of wholesome application in cases involving serious doubt upon the merits, or where the circumstances leave the court in uncertainty as to the good faith of the application, or where it is doubtful whether1 the plaintiff' is chargeable with laches. Upon this theory, the evidence should have been admitted and considered.

The affidavit of Evans is made upon knowledge. It served to render clear the identification of the parties in the various suits referred to-, and also the subject-matter involved therein. On this theory, it should have been admitted and considered.

The order of the district court is reversed, and the cause is remanded, with directions to proceed in accordance with tbe views expressed herein.

Reversed and remanded.

MR. Justice MilburN :

I concur.

Mr. Justice Pigott:

I concur in tbe foregoing opinion, except tbe paragraph with reference to tbe admissibility of tbe record in cause 8,304. As to tbe views therein stated, I express no opinion.


author: ME. JUSTICE PIGOTT

text:
    THRELKELD, Respondent, v. O’NEAL, Appellant.
    (No. 1,748.)
    On Motion to Dismiss Appeals.
    (Submitted December 16, 1901.
    Decided December 23, 1901.)

      Appeal — Undertaking on Appeal — Sureties—Exception—Failure to Justify — Effect—Appeal from New Trial Order— Notice of Appeal — Service and Filing — Time—Failure to File — Dismissal.
    1. where an affidavit made by the attorney for the respondent on appeal in support of the motion to dismiss was filed with the clerk of the supreme court, but it did not appear that the affidavit was served on the appellant or his attorney, the affidavit will not be considered, but will be stricken from the file.
    2. under Section 1732, Code of Civil Procedure, a failure of the sureties on an undertaking on appeal to justify, after exception to their sufficiency, does not render the appeal ineffectual so as to authorize a dismissal thereof, but merely destroys the effect of the undertaking in so far as it would operate as a supersedeas.

    3. Where a notice of appeal from an order denying a new trial was not filed with the clerk of the district court and served within 60 days after the order denying the motion was entered, as required by Code of Civil Procedure, Sec. 1723, Subd 3, and Section 1724, the appeal from such order must be dismissed.

      Appeal from District Court, Deer Dodge County j Welling Napton, Judge.

    ActioN by Anna M. Threlkeld against George B. O’Neal. Judgment was rendered in favor of plaintiff, and defendant appealed therefrom and from an order denying a new trial.
    Motion to dismiss appeal from the judgment denied, and motion to dismiss the appeal from the order refusing a new trial granted.

      Mr. J. E. Duffy, for Despondent.
   ME. JUSTICE PIGOTT

delivered the opinion of the court.

Motion to dismiss appeals. Judgment in favor of the plaintiff (respondent) and against the defendant (aj)pellant) was entered in the district court on May 23, 1901. An order denying the defendant’s motion for a new trial was entered on August 31, 1901. On October 31, 1901, a notice of appeal from the judgment and from the order was served upon the attorney for the plaintiff; it was filed with the clerk of the court below on November 2, 1901. On the day last mentioned an undertaking to effectuate the appeals was filed. The plaintiff excepted to' the sufficiency of the sureties; but neither they nor other sureties justified, and more than twenty days elapsed after the defendant was served with notice of plaintiff’s exception to the sufficiency of the sureties and before the present motion was made. The respondent moves the dismissal of each appeal.

Written opinions are but rarely delivered in this court .upon motions to dismiss, but the misapprehension, by some members of the bar, of the effect of the failure of sureties in an undertaking an appeal to this court to justify, induces us to depart from our custom.

1. Among 1he papers submitted for our consideration is an affidavit made by the attorney for the respondent in support of the motion to dismiss, and which he has caused to be filed with the clerk of this court. It does not appear that the affidavit was served either personally or constructively upon the appellant or his attorney. Under these circumstances the affidavit will not be considered, but must be stricken from the files. It is so ordered.

2. The appeal from the judgment is not ineffectual because the sureties failed to justify as required by Section 1132 of the Code of Civil Procedure. Such failure destroys the effect of the undertaking in so- far only as the undertaking may operate. as a supersedeas. This is the manifest meaning of the section. (King v. Pony Gold Mining Co., 24 Mont. 470, 62 Pac. 783.) Nothing in State ex rel. Allen v. Napton, 24 Montana, 450 (62 Pac. 686), where the interpretation of Sections 1760 and 1763 of the Code of Civil Procedure was involved, is to the contrary. In that case the plaintiff excepted to the sufficiency of the sureties who had signed the undertaking given to- effectuate an appeal from a justice’s court to- a district court, and neither they nor other sureties justified. The plaintiff seasonably moved a dismissal in the district court; and we held the appeal ineffectual because of the failure of the sureties to justify. The statute governing was Section 1763, supra, whicli has to do with appeals to the district court; it provides, in effect, that, unless sureties justify within the time specified therein after exception to their sufficiency, the appeal from a justice’s court must be regarded as if an undertaking had not been given. It differs materially from Section 1732, supra, which has to- do with appeals from district courts to- the supreme court. Under the provisions of Section 1763, omission to justify (if taken advantage of at the proper time) render’s an appeal from a justice’s court to a district court ineffectual; while by the terms of Section 1732, omission of sureties to justify has no effect whatever upon the appeal itself, but only prevents the undertaking from operating thereafter as a supersedeas.

The motion, in so far as it is directed to the appeal from the judgment, is denied.

3. Subdivision 3 of Section 1723 of the Code of Civil Pro-ce&ure provides, in substance, that an appeal may be taken to the supreme court from an order refusing a new trial within sixty days after it is entered in the minutes of the court or filed with the clerk. Section 1724 provides that an appeal is taken by filing with the clerk a notice of appeal and serving a. similar notice on the adverse party or his attorney. The notice of appeal not having been served and filed within sixty days after the order was entered, the motion, in so far as it is directed to the order refusing a new trial, is granted.

The affidavit of counsel for the respondent is stricken off the file, the motion to dismiss the appeal from the judgment is denied, and the motion ho dismiss the attempted appeal from the order denying a new trial is granted.