author: ME. CHIEF JUSTICE BRANTLY,

text:
    SHEA, Respondent, v. REGAN et al., Defendants; REGAN, Appellant.
    (No. 1,721.)
    (Submitted December 7, 1903.
    Decided December 24, 1903.)

      Attachment — Priority of Liens for Services — Actions to Enforce — Parties— Waiver of Lien — Jurisdiction—Justices of the Peace — Appeal.

      1. Under Code of Civil Procedure, Sections 2152, 2153, 2154, 2155, the claimant should establish in the same action the whole of his claim, though he can be declared entitled to a lien for only so much of it as accrued within sixty days next preceding the levy of the writ, not exceeding $200.
    2. Under Code of Civil Procedure, Sections 2153, 2154, where the claimant commences an action to establish a disputed claim, neither the sheriff holding the attached property, nor the attaching creditor, is a necessary, or proper party to such action, though the latter may, if he deem it advisable, intervene.
    o. Under Code of Civil Procedure, Sections 2152 et $eq.¿ an action by a claimant to establish his claim for services, in so far as it seeks to establish and foreclose a lien on the debtor’s attached property, is a proceeding equitable in its nature, and hence not within the jurisdiction of a justice of the peace as limited by Constitution, Article VIII, Section 21.
    4. Where a justice of the peace had no jurisdiction of a suit to enforce a lien for services as a preferred claim over the claims of attaching creditors, the district court acquired no jurisdiction to enforce such lien by an appeal from the justice’s judgment.
    5. When a cause is one over which the inferior court cannot take jurisdiction, the appellate court, on appeal, cannot entertain it for any other purpose than to dismiss it and enter judgment for costs against the appellant.
    6. Under Code of Civil Procedure, Sections 2153, 2154, where a claimant fails to commence an action against his debtor within ten days after the date of the notice that his claim was disputed, he waives his right to a lien.

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

    ActioN by Timothy J~. Sbea against Patrick H. Regan, sheriff of Silver Bow county, and Lewis F. Huffman et at. Judgment in favor of plaintiff against Huffman. Prom' an order denying a motion for a new trial, defendant Regan appeals.
    Reversed.
    STATEMENT OE THE CASE.
    This action was originally brought by plaintiff, in a justice’s court of the township and county of Silver Bow, on July 1, 1898, against the defendants Patrick H. Regan, as sheriff, J. EL O'ppenheimer, A. F. Bray aud Nelson Story & Co., a co-partnership composed of Nelson Story and Nelson Story, Jr. The complaint alleged that between February 1J and June 20, 1898, the plaintiff had performed services as a salesman for one L. F. Huffman, of the value of $512.50, and that no part of said sum had been paid except the sunn of $268.05, leaving a balance due of $244.45; that on or about June 20, 1898, the defendant Regan, as sheriff, under writs of attachment in his bands issued out of tbe district court of Silver Bow county in certain actions pending therein wherein the other defendants were plaintiffs, and L, F. Huffman was defendant, had levied upon all the property of said Huffman, the same being a stock of groceries and certain fixtures used by the defendant Huffman in a grocery business conducted in the city of Butte; that thereafter, and pursuant to an order of said court, the property mentioned had been sold for a sum exceeding $1,200; that on June 22d the plaintiff gave notice in writing to defendant Began of his claim for services rendered to the said Huffman, setting forth that the same was, to- the amount of $200, due for services rendered within sixty days prior to the levy of the attachments, and that he was entitled to have his claim to this amount paid in preference to the claims of the attaching creditors, and that he had been notified by: the sheriff that his claim had been disputed by the plaintiffs in said actions. The complaint concluded with a prayer for judgment against the defendant Began for the sum of $200, with interest from June 22, 1898, and for costs, including an attorney’s fee of $¡50, and that said Began be directed to pay the judgment, together with the costs, out of the moneys received by him- in the various actions against the said L. F. Huffman.
    To- this complaint a demurrer was interposed, challenging the jurisdiction of the court to entertain the action, and the sufficiency of the allegations to state a cause of action. This demurrer was sustained. Thereupon the plaintiff amended his complaint by inserting therein the name of Huffman as a defendant. The amendment was filed and alias summons issued to' this defendant on July 30th. Separate demurrers were interposed to- the amended complaint, all of the defendants alleging the same grounds as those alleged in the demurrer to the original complaint. These were sustained, and, the plaintiff declining to amend, judgment was entered for defendants.
    Thereupon- an appeal was taken to- the district court. That court overruled the demurrers. All the defendants then filed separate answers, that of Huffman agreeing that judgment should be entered against him for the amount demanded, and those of the others disputing the plaintiff’s right of recovery on various grounds, among others, that the plaintiff had not been an employe, but a partner, of the defendant Huffman in the said grocery business. Thereafter the cause came on for trial by the court sitting with a jury. The defendants other than Huffman objected to the admission of any evidence to sustain the allegations of the complaint, on the grounds that the justice’s court had no jurisdiction of the action, could not grant the relief jrrayed for, and that, this being so, the district-court had no jurisdiction to entertain the appeal. This objection was overruled. At the conclusion of the evidence the same defendants moved the court to instruct the jury to' render a verdict in their favor, on the same, ground as that alleged in the motion for nonsuit. This motion was also overruled. Thereupon the court instructed the jury, which rendered a verdict in favor of the plaintiff for the sum of $200, with interest, costs, and an attorney’s fee, amounting in all to $299. Upon this verdict the court ordered judgment to be entered'in favor of the plaintiff and against the defendant Huffman, and directing the defendant Eegan to pay the amount of the judgment, with costs, etc., out of the sum collected by him under the attachments issued out of the district court,, in preference to the claims of Oppenheimer, Bray and Nelson Story and Co. From an order denying a new trial, defendant Eegan has appealed.

      Mr. E. J. Dierks, Mr. John N. Kirk, and Mr. Charles Mai-tison, for Appellant.
   ME. CHIEF JUSTICE BRANTLY,

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

The respondent did not file a brief in this court, nor did counsel appear for him at the hearing. The court is therefore left without assistance or suggestion from him. Counsel for appellant contends that the action is one in equity to enforce a lien, that the justice’s court had no jurisdiction to entertain it, and that the district court, having acquired no jurisdiction by virtue of the appeal, should not have assumed to entertain it or to render any other judgment than one of dismissal. The question presented was properly raised by the motion-for a non-suit and the request for an order directing a verdict, and is the only question before us.

The plaintiff’s claim of preference is based upon the provisions of Sections 2152, 2153, 2154 and 2155 of the Code of Civil Procedure. Section 2152 declares: “In case of executions, attachments and writs of similar nature, issued against any person, except for claims for labor done, any miners, mechanics, salesmen, servants, clerks or laborers who have claims against the defendant for labor done, may give notice of their claims and the amount thereof, sworn to by the person making the claim, to the parties plaintiff and defendant to the action in which such execution, attachment or other writ has been issued, and upon the officer executing the same. * * * Service of the notice may be made upon the officer having the writ or writs in, his hands in one or more cases- which may be pending against the debtor. When such service is made upon him, he must in turn serve notice by copy upon the parties plaintiff and defendant in the action or upon, their attorneys.” Sections 2153 and 2154 provide:

Section 2153: “The officer serving said notice and claim shall forthwith, after such service of the same, make return thereof, showing such service, where and how made. Service may be made in any case at any time before the actual sale of the property levied upon in such pending action, and unless such claim is disputed by the debtor or a creditor or party plaintiff, such officer must pay such person out of the proceeds of the sale the amount he is entitled to receive for services rendered within the sixty days next preceding the levy of the writ, not exceeding two hundred dollars.. If any: or all of the claims so presented, and claiming preference under this chapter, are disputed by either the debtor or a creditor, the person presenting the same must commence an action within ten days after notice of such dispute is served npon such claimant, as provided for in the next section, for the recovery thereof; and the officer must retain possession of so much of the proceeds of the sale as may be necessary to satisfy such claim and costs until the final determination of such action; and in case judgment be had, the costs are a preferred claim, which may include a reasonable attorney’s fee.”

Section 2154: “The debtor or creditor intending to dispute any claim presented under the provisions of the last section shall, within ten days after receiving notice of such claim, serve upon the claimant and officer holding such execution, attachment or other writ, a statement in -writing, verified by the oath of the debtor or person disputing such claim, for services, setting forth that no part of said claim, not exceeding a sum specified, is justly due from the debtor to the claimant for services rendered within the sixty days next preceding the levy of the execution, attachment or other writ, as the case may be. If the claimant bring suit on a claim) which is disputed in part only, and fail to recover a sum exceeding that which was admitted to be due, he shall not recover costs, but costs shall be adjudged against him; and where such claimant fails to bring suit upon his claim, which is disputed in part only, he shall be deemed to have waived that portion of his claim disputed.”

Under Section 2155 the claimant is entitled to a lien for the amount of his preferred claim upon the property “attached or levied upon,” which must be discharged by the sheriff. The general purpose of these provisions is to declare a lien in favor of the classes of persons enumerated, and to furnish an easy and expeditious means of foreclosing it. If the claim is not disputed, no other step is required of the claimant than to give ■the notice. If it is disputed in whole or in part, then an action must be brought- in the proper court within ten days after notice of such dispute, and' be prosecuted to judgment. In the meantime the sheriff must retain the property, or a sufficient amount of the fund derived from a sale of it, to pay the claim, with costs, including an attorney's fee. If no> action is brought, it is his duty, after the expiration of the time' within which it may be brought, to appropriate the property, or the fund derived from its sale, to the satisfaction of the attaching creditor’s claim. In such case the claimant is conclusively presumed to have waived his lien.

The requirement touching the notice to be given by the attaching creditor makes necessary an inquiry by the court whether the claim or any part of it accrued within sixty days prior to the levy; for the claim ma.y be valid, as against the debtor, in whole or in part, .yet, if no part of it accrued within sixty days prior to the levy, the claimant is not entitled to a preference. It is a fair inference from all the provisions, however, that the claimant may establish in the same action the whole amount of his claim, and be declared entitled to a lien for so much of it, not exceeding $200, as accrued within the prescribed limit. Indeed, we think he must do so; otherwise, if a part of his claim is secured and a part not, he must remit the unsecured portion of it in order to avail himself of the lien provided to' secure the payment of the remainder. The statute does not require this. Nor may he be permitted to split his cause of action.

Neither the sheriff nor the attaching creditor is a necessary or proper party to the action. If the attaching creditor deems it advisable, he may, perhaps, intervene and contest the questions whether or not the claim falls within the class covered by the statute, and whether or not the claim or any part of it accrued within sixty days prior to the date of the levy, because he is interested in it so far as the result may be to fix a prior lien upon the property held under the writ or the fund derived from the sale of it; but he is not required to do so. He has done the claimant no wrong on account of which he may be made a defendant in the first instance. Nor has the sheriff done the claimant a wrong by which he may be made a defendant. He is simply required by the statute to' retain the property or the fund until the termination of the action. If he presumes to appropriate tbe property or fund in violation of tbe claimant’s rights, be does SO' at bis peril. Before proceeding to appropriate it, he must ascertain whether tbe plaintiff has established bis lien. He is liable for a violation of bis duty in this regard, but not otherwise.

The question as to what court has jurisdiction to ascertain the rights of the respective parties is not clear. The theory of counsel for respondent and of the district court seems to have been that it is necessary to impound the property or fund in the hands of the sheriff, and to- have him and the attaching creditors before the court, in order to adjust the rights involved and direct the appropriation of the fund derived from the sale of the property; or, making the statement in a different form, that the purpose of the proceeding is to foreclose the lien of the plaintiff and direct the application of the fund to the payment of the attaching creditors and the plaintiff, according to their respective priorities. That this is so is apparent from the fact that judgment was sought for $200 only, the remainder of the claim being apparently remitted. It is apparent, also; from the form of the judgment entered, which. granted recovery as against Huffman only, but directed the sheriff to satisfy the amount of the recovery out of property held under the levy. The theory of the statute is that by the judgment not only is the fact to be ascertained that an amount is due, but also whether this amount, or any part of it, is a lien. The judgment must also fix an attorney’s fee; if the lien is established for any amount. Hence, so- far as the action is for the purpose of establishing the lien, we are of the opinion that it is equitable in its nature, and must be commenced and prosecuted in a court having jurisdiction of actions in equity. As against the debtor the proceeding is to- recover a debt; as against the attaching creditor it is to- establish and enforce a prior lien, for he is not concerned about the question whether any amount whatever is due the plaintiff, except so far as it affects his prior lien under the levy. When, therefore, the judgment has been entered in the proper form upon necessary findings of fact, so much of the amount as lias accrued within sixty days, not exceeding $200, is a lien upon the property, and nothing is left for the court to do but to order the sheriff to discharge it. In short, the proceeding is instituted and prosecuted for the purpose of establishing and foreclosing a lien, and the result is tantamount to a decree of foreclosure.

' In general, therefore, the theory of the plaintiff and the district court was correct, though the sheriff and the attaching creditors were unnecessarily made parties. But justice of the peace courts have no equity jurisdiction, nor can they entertain actions which involve matters of equitable cognizance. Their powers are such as are conferred by statute, subject to limitations laid down in the constitution. One of the limitations imposed upon the legislature by that instrument is that justices of the peace shall have no jurisdiction of equity cases (Const. Art. VIII, Sec. 21), and the sections of the statute enumerating the classes of cases of which they may take cognizance (Code of Civil Procedure, Secs. 60-68) confine them strictly to the constitutional limitations. Having no original jurisdiction of equity cases, it must follow that the district court acquired no jurisdiction of this action by virtue of the appeal, for the jurisdiction of the appellate court is not greater than that of the inferior court. If the particular cause is one of which the latter court cannot take jurisdiction, the former cannot entertain it for any other purpose than to dismiss it and enter judgment for costs against the appellant. (Missoula E. L. Co. v. Morgan, 13 Mont. 396, 34 Pac. 488.) While the justice’s court had jurisdiction of the action as against Huffman for the purpose of establishing the debt, it had no jurisdiction for the purpose of establishing a lien. Hence it must follow that the district court erred in refusing to sustain the motion for nonsuit as to the other defendants.

It is apparent from the record that no lien could be established in this action, for the defendant Huffman was not made a party to it until after the expiration of ten days after the date of the notice that the claim of appellant was disputed. The action was not commenced against bim until lie was, made a party. Plaintiff bad therefore waived bis right of lien.

The order is therefore reversed, and the cause is remanded to the district court, with directions to dismiss the action as to appellant.

Reversed and remanded.


source: Caselaw Access Project

author: MR. COMMISSIONER CALLAWAY Pel. Ouexajvc.

license: Public Domain

text:
    CLARK, Respondent, v. OREGON SHORT LINE RAILROAD CO., Appellant.
    (No. 1,739.)
    (Submitted December 10, 1903.
    Decided December 26, 1903.)

      Pleading — Pleas in Abatement — Misnomer—Amendment.
    Where defendant answered in abatement for misnomer, alleging its true name, it was error for the court to enter judgment on the merits against defendant, but plaintiff should have amended in accordance with the answer, its truth being conceded, or the action have been abated.

      Appeal from District Court, Silver Bow County; William. Clancy, Judge.

    Action by William D. Clark against the Oregon Short Line Railroad Company. From a judgment for plaintiff, defendant appeals.
    Reversed.

      Mr. John Q. Willis, for Appellant.

      Mr. J. E. Plealy, for Respondent.
   MR. COMMISSIONER CALLAWAY

prepared the opinion for the court.

The plaintiff commenced this action to1 recover of “The Oregon Short Line Railway Company” the sum of $1,950 for damages alleged to have resulted to1 him by reason of injury done to bis flume and irrigating ditcb caused by a change in tbe grade of its road. Summons and a, copy of tbe complaint were served on tbe “General Agent of tbe Oregon Short Line R. R.,” as tbe sheriff attests, July 30, 1901. On August 17, 1901, defendant’s counsel filed what be designated an answer, in which it is alleged that tbe true name of tbe defendant is and ever has been, “Oregon Short Line Railroad Company,” and not “Tbe Oregon Short Line Railway Company,” in which name' it is sued. Defendant prayed that tbe action abate. On tbe day tbe answer was filed plaintiff filed a motion for a judgment on tbe pleadings) on tbe ground that “tbe allegations of tbe plaintiff’s complaint are admitted by tbe said appearance, and that tbe misnomer of tbe defendant corporation in no' wise affects tbe merits of this action, and that it clearly appears, from tbe allegations of tbe defendant’s so-called plea in abatement, that tbe defendant named in tbe complaint and the actual wrongdoer mentioned in said defendant’s plea in abatement are one and tbe same person.” Thereafter tbe court granted tbe motion, and entered judgment for tbe plaintiff in accordance with tbe prayer of bis complaint. Eronn this judgment tbe defendant has appealed.

So far as tbe record discloses, tbe plaintiff never amended bis pleadings in any way. “Tbe Oregon Short Line Railway Company,” tbe name by which defendant was originally designated, was carried through the record until tbe entry of judgment. This document is entitled, “Tbe Oregon Short Line Railway Company, Corporation, otherwise Oregon Short Line Railroad Company, Corporation,” but in tbe body thereof the court adjudged that tbe plaintiff “do bave and recover of and from tbe defendant Oregon Short Line Railroad Company (a corporation organized and existing under and by virtue of the laws of tbe state of Utah) tbe sum of nineteen hundred and fifty dollars,” etc.

Did tbe couid err in thus entering the judgment? Under tbe common law tbe misnomer of a defendant was taken advantage of by plea in abatement. This plea, as is said by Chitty, “must not only point out the plaintiffs error, but must show him how it may be corrected, and furnish him with materials for avoiding the same mistake in another suit in regard to the same cause of action; or, in technical language, must give the 'plaintiff a hatter writ.” (Chitty on Pleading, 462.)

Maxwell, in his work on Code Pleading, p>. 410, says: “Under the former chancery practice, abatement was merely a suspension of the proceedings for want of proper parties before the court, and this, in actions which survive, is substantially the ground for abatement under the Cbde. The death of the plaintiff or defendant may be pleaded in abatement. Misnomer of either the plaintiff or defendant may also be pleaded.” And Pomeroy observed: “Defenses still exist of the same essential nature as those which were formerly set up by means of a plea in abatement, and a judgment thereon in favor of. the defendant does not forever bar the plaintiff from the further prosecution of his demand. They are governed, however, by the same rules of procedure that regulate all the other defenses which may be relied upon by a defendant. * * * All defenses which are analogous to the ancient pleas in abatement— that is, all which are based upon the same facts— are evidently new matter; they cannot be proved under the general denial, but must be specially pleaded.” (Code Demedies, Sec. 698.)

Phillips discusses the subject as follows: “An answer in abatement sets up some matter of fact, the legal effect of which is to overthrow the pending action, without questioning the merits of the plaintiff’s' demand. Among the defenses that may he pleaded in abatement are misnomer, present want of capacity to sue, a defect of parties, and the pendency of another action. As at common law a, plea in abatement was required to give the plaintiff a better writ or declaration, so, under the new system, such answer must furnish information— such as the true name of defendant, where misnomer is pleaded, and the names of necessary parties, where defect of parties is pleaded — that will enable the plaintiff to cure the defect by amendment, if it be a defect that can be so cured. Generally, if the ground of an objection that may be made by dilatory answer appears in the complaint, advantage may be taken of it by demurrer; but if it does not so appear, the facts, being new matter, must be brought upon the record by answer, and cannot be proved under a denial. And, generally, where a defendant pleads in bar, instead of in abatement, he waives such defects as might be the subject of plea in abatement.” (Phillips on Code Pleading, Sec. 237. And see Estee’s Pleadings, Sec. 3293; Ontario State Bank v. Tibbits, 80 Cal. 68, 22 Pac. 66, and cases cited.)

As stated in plaintiff’s motion for a judgment on the pleadings, the misnomer of the defendant in no way affects the merits of the action. In this instance the answer was not intended to affect the merits of the action; such is not the office of the jilea in abatement, as the authorities above quoted show. The answer in suit set up1 new matter, but only raised an issue as to the name of defendant. It was properly pleaded (Efctee’s Pleadings, Sec. 3298), and the court should have disposed of it before proceeding further.

The complaint must contain the names of the parties to the action. (Code of Civil Procedure, Sec. 671.) This is not an idle requirement. It is to the interest of both the parties that the litigation proceed in their true names. If the defendant be misnamed, he has the right to have the defect corrected, but must urge it by answer, alleging it as matter in abatement. If the defendant’s name is not correctly given, the plaintiff is responsible for the misnomer. When the defendant pleads it, if the plaintiff does not then choose to amend his complaint, and if upon a trial of -the issue it be found against the plaintiff, the action must abate.

Under Section 774, Code of Civil Procedure, the court would doubtless have allowed plaintiff to- correct the name of the defendant upon his request so to do, and this would h'ave obviated' the answer; but this was not done. Instead, the court was requested to enter judgment on the merits against the defendant, and did so. This was error.

It is true that Section 777, Cbde of Civil Procedure, prvides, “When the plaintiff is ignorant of the name of the defendant, such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleadings or proceedings may be amended accordingly.” “This ignorance of the name must of course be real, and not feigned; it must not be willful ignorance, or such as might be removed by mere inquiry or a resort to means of information easily accessible.” (Rosencrantz v. Rogers, 40 Cal. 489.) The provisions of the Code are very liberal concerning amendments, but this liberality should not be construed to mean that the requirements of the statute may be completely ignored. If plaintiff was ignorant of the defendant’s true name when the action was commenced, he was not after the answer was filed, and should have amended his complaint under the terms of Section 777, supra, inasmuch as he conceded the truth of the answer by adopting the defendant’s true name in the title of his judgment, and by having the judgment entered against the “Oregon Short Line Railroad Company.”

In .our opinion the judgment should be reversed.

Pel. Ouexajvc.

For the reasons given in the foregoing opinion, the judgment is reversed.

Rehearing denied January 16, 1904.


author: ME, OOMiMIS'SIO'NEB OLAYBEEG Per Curiam.

text:
    BALL, Respondent, v. GUSSENHOVEN, Appellant.
    (No. 1,731.)
    (Submitted December 8, 1903.
    Decided January 6, 1904.)
    129 35 Servant’s Injuries ■ — • Actions — Defenses — Inconsistency Assumption of Rislc — Contributory Negligence — Pleading—1 Instructions — Damages — Medical Services — Appeal from 2g

      Judgment — Questions Reviewable — Sufficiency of Evidence ■ — Bills of Exceptions — Sufficiency—Prejudicial Error.

    1. The defenses of contributory negligence and assumption of risk are inconsistent with each other, do not rest upon the same principles, and the existence oí one necessarily excludes the existence of the other.
    2. If the defense of the assumption of risk is maintained, questions of contributory negligence do not arise, because, if plaintiff assumed the risk of employment, he cannot recover, though he exercised the highest degree of care.
    3. A defendant is entitled to plead in the same answer as many defenses as he may wish to present, even though inconsistent with each other; and is entitled to present and rely upon any of such defenses upon the trial, subject to proper instructions as to their effect in each case.
    4. Where the complaint does not show the proximate (or a proximate) cause of the injury to have been the act of the plaintiff, the existence of contributory negligence is a matter of defense to be pleaded by defendant, and the absence of contributory negligence need not be averred by plaintiff.
    5. Whether the verdict is unsupported .by any substantial evidence, being a question of law, may be reviewed on appeal from a judgment; but whether the evidence is sufficient to suppo'rt the verdict where there is conflicting evidence cannot be so reviewed; it can be reviewed only on an appeal from an order granting or refusing a motion for a new trial.
    6. under Code of Civil Procedure, Section 1152, providing, relative to bills of exceptions, that, where the exception is to the verdict or decision upon the ground of insufficiency of evidence, the objection must specify the particulars in which such evidence is alleged to be insufficient, specifications . which merely state what the evidence shows, and not what it does not show, will not be considered on appeal.
    7. A specification which merely states that the evidence does not justify certain special findings of the jury, because to justify such findings it must have been believed by the jury that the plaintiff at the time of her injury was both blind and non compos mentis, is so lacking in any specification as to the insufficiency of the evidence that it cannot be considered.
    8. Irr an action for servant’s injuries a motion for nonsuit was properly overruled where the evidence for plaintiff clearly tended to sustain the allegations of the petition of negligence of defendant in not providing reasonably safe machinery upon which the plaintiff was directed to work by defendant’s agents, and in not keeping it in such condition, and that the injury complained of resulted from the use thereof.
    9. under Code of Civil Procedure, Section 1104, providing that the judge may direct a verdict where the case presents only questions of law, a verdict cannot be directed for defendant where substantial evidence is introduced prior to the motion for direction which in any way tends to support plaintiff’s contention, the weight of such evidence being a question for the jury.
    10. In an action for personal injuries the court properly instructed that plaintiff might recover any reasonable sum she had expended for medical treatment, where there was uncontradicted evidence that plaintiff had spent $75 for that purpose.
    11. In an action for personal injuries defendant was not injured by an instruction that plaintiff might recover sums expended for medical attention, where plaintiff claimed $5,000 for the injury alone, and the verdict returned was a general one for only $2,000.
    12. where there is sufficient substantial evidence to support one party’s contention, which was fairly submitted to the' jury, the supreme court cannot, on appeal from the judgment, interfere with the verdict rendered.

      Appeal from District Court, Chotean County; John W. Tat-tan, Judge.

    ActioN by Jessie Ball against Joseph Gussenhoven. From a judgment for plaintiff, defendant appeals.
    Affirmed.

      Mr. George H. Stanton, for Appellant.
    The respondent is not entitled to recover for the injuries sustained for the reason that she assumed the risks of the 'employment in which she engaged; there is no question of contributory negligence in the case at bar; the doctrine of assumed risks must determine the question of appellant’s liability. (Civil Code, Sec. 2661; Bailey’s Master’s Liability for Injuries to Servant, 145, 194, 198; Greef et al. v. Brown (Kan.), 51 Pac. 926; Jones v. Roberts, 51 Ill. App. 56; Keenan v. Waters et al. (Penn.), 37 Atl. 342; Townsend v. Dangles, 41 Bed. 919; Sanborn v. Atchison, T. & 8. F. R. R. Coi. (Kan.), 10 Pac. 860; Stone v. Oregon City Mfg. Co., 4 Oregon, 52; Stephenson v. Duncan (Wis.), 41 N. W. 337; Hickey v. Taaffe, 105 N. T. 26; Hayden v. Smithville Mfg. Co., 29 Conn. 548; Groth v. Thomann (Wis.), 86 N. W. 178; Sheridans. Bigelow, 93 Wis. 426, 67 N. W. 732; Smith v. Peninsular Car Works, 60 Mich. 506; Russell v. Tillotson (Mass.), 4 N. EL 231; Williams v. Churchill, 137 Mass. 243; Leary v. Boston & A. R. Co., 139 Mass. 580; Berger v. St. Paul M. & M. By. Co. (Minn.), 38 N. W. 814; Marsh v. Chiche-ring (N. Y.), 5 N. El 56; Green-leaf v. III. Central R. R. Co., 29 Iowa, 14; Fnnis v. The Naha-rajah, 40 Eed. 784; Sweet v. Ohio Coal Co. (Wis.), 47 N. W. 'T82¡; Wormell v. Maine Central R. Co. (Me.), 10 Atl. 49; Gleason v. Mfg. Co. (Mo.), 7 S-. W. 188; Baile v. Detroit Leather Co. (Mich.), 41 N. W. 216; Swoboda v. Ward, 40 Mich. 423; Sweeney v. Berlin & Jones Fnvelope Co., 101 N. Y. 520; Gibson v. Brie Ry. Co., 63 N. Y. 449.; Richards v. Rough, 53 Mich. 212; Burke v. Witherbee et al., 98 N. Y. 562; Kinsley v. Pratt, 32 L. K-. A. 367; De Forest v. Jewett, 88 N. Y. 246; Buckley v. G. P. & R. M. Co., 113 N. Y. 540;
      Shaw v. Sheldon ei al., 103 N. Y. 667; Pricker v. Penn. Bridge Co., 197 Pa. St. 442; Ferguson v. Phoenix Cotton Mills, 106 T'enn. 236; Brown v. Siegel, 90 Ill. App. 49; Cunningham v. Bath Iron Works (Me.), 43 Atl. 107; McQuerty v. Hale, 161 Mass. 51; WiZso» v. Cotton Mills, 169 Mass. 67; Sullivan v. Mfg. Co., 113 Mass. 396; Shanny v, Androscoggin Mills, 66 Me. 420; Bock v. Orchard Mills, 142 Mass. 522; Jones v. Mfg. & Investment Co. (Me.), 43 Atl. 512; Sjogren v. Hall (Micb.), 18 N. W. 813; Schroeder v. Michigan Car Co., 56 Micb. 132; Johnson v. Devoe Snuff Co. (N. I.), 41 Atl. 936; Electric Co. v. Kelly, 57 N. J. Law, 100; Foley v. Light Co., 54 N. J. Law, 411; Began y. PaZo (N. L), 41 Atl. 364; McGiynn y. Brodie, 31 Cal. 377; Sowder y. Idaho Quartz Mills Co., 55 Cal. 451; Sweeney y. Central Pac. B. Co., 57 Cal. 15; Arizona Lumber & T. Co. y. Mooney (Arizona), 42 Pac. 952; Lopez y. Central Arizona M. Co. (Arizona), 2 Pac. 748; Hazen y. Wesi $. L. Co. (Wis.), 64 N. W. 857; Nugent v. Kaufman Mill Co., 131 Mo. 241; PoZZ v. Hewitt (Q. B.), 23 Ont. Pep. 619; Montreal, S. L. Co. v. Demers,' Bap'. Pud. Quebec, 5 B. B. 191; Klatt y. 17. (7. Foster L. Co., (Wis.), 66 N. W. 791; Wood v. Heiges (Md.), 34 Atl: 872; Bertha Zinc Co. v. Martin, 93 Va. 791; Lincoln St. B. Co-, v. Co*, 48 Neb. 807; Wray y. & W. P. L. & W. P. Co., 68 Mo. App-. 380; Oliver v. Ohio Biver B. Co-., 42i W. Va. 703; Stuart v. Neiu Albany Mfg. Co., 15 Ind. App. 184; McOorty v. S. N. E. Tel. Co., 69 Conn. 635; E. 8. Higgins Carpet Co. v. O’Keefe, 79 Fed. 900; Chaddick v. Lindsay, 5 Obla. -616-; Hill v. Meyers Bros. Co., 140 Mo. 433; Carrigan y. Washburn & M. Mfg. Co., 170 Mass. 79; Osborne v. Lehigh Valley. Coal Co., 97 Wis. 24; Oriental y. Barclay, 16 T'ex. Civ. App-. 193; East Chicago F.'Co. v. Ankeny, 19 Ind. App-. 150'; Missouri, etc. B. Co. v. Wood (Texas), 35 S^ W. 879; Huber v. Jackson & S. Co. (Del.), 41 Atl. 92; Detroit Crude Oil Co. v. Grdble, 94 Fed. 73; Collins v. Laconia Car Co. (N. FL), 38 Atl. 1047; Benjamin A..& I. Co. v. Costello (N. J.), 42 Ajtl. 766; Bethlehem Iron Co. v. Weiss, 40 G. C. A. 270; Brinkley Car Works & Mfg. Co. y. Lewis, 68 Ark. 316; Brown v. Tabor Mill Co.,
      22 Wash. -317; Gunn x. Willingham, 111 G-a. 427; Pioneer F. 0. Co. v. Howell, 189 Ill. 123; Hoard x. Blackstone Mfg. Co., Ill Mass. 69; Bond x. Smith, 14 N. T. Supp. 932; Bietman x. Stalte, 120 Ind. 314; Kohn x. McNulta, 141 U. S-. 241; Southern Pac. By. Co■. x. Seley, 152 IT. S'. 145; McAndrews x. Montana Union By. Co., 15 Mont. 290; Kelley x. Cable Co., 8 Mont. 449; Nolan x. Montana Central By. Co., 25 Mont. 101.)

      Mr. J. N. Booth, and Mr. H. S. Greene, for Respondent.
    The defendant has taken an appeal from the judgment and has' made no motion for a new trial. In. such a case the evidence will not be considered on an assignment of error that the evidence is insufficient to sustain the verdict, for such an assignment pertains to a motion for a new trial only. (Withers x. Kemper, 25 Mont. 432; Largey x. Sedman, 3 Mont. 416; Lloyd x. Sullivan, 9 Mont. 589; Emerson x. Eldorado Ditch Co., 18 Mont. 247.)
    In the case at bar there is no objection or request of the lower court to set aside the findings of the jury; the defendant must have objected to the findings, and moved for a new trial if he desired to. review the evidence in the supreme court. (Baird x. Peal, 92 Cal. 235.)
    If the evidence tends to show negligence, the question of insufficiency cannot be considered in the case at bar. (Withers x. Kemper, 25 Mont. 432; Chumasero x. Vial, 3 Mont. 316; Missoula El. Light Co. x. Morgan, 13 Mont.- 397; Freeman x. Sand Coulee Coal Co., 64 Pac. 34/7.)
    The specifications wherein the evidence is insfifficient are themselves insufficient. The specifications are merely conclusions. (De Molerá x. Martin, 120' Gal. 544-548; Adams x. Helbring, 107 Gal. 298; First Nat’l Bank x. Boberts, 9 Mont. 333; Strasburger x. Beecher, 20 Mont. 143; Spots x. Hanley, 85 Cal. 155; Kumble x. Grand Lodge, 110' Gal. 204; O. B. & N. x. Tracy, 14 O. O. A. 204.)
   ME, OOMiMIS'SIO'NEB OLAYBEEG

prepared- tbe opinion for tbe court.

Tbis was an action brought by plaintiff to recover damages against defendant for a personal injury. Tbe defendant was tbe proprietor of a steam laundry, and- plaintiff was employed therein. Bier band was injured, by being caught between tbe rollers of a mangle or ironing machine used in tbe laundry, at which she was put to work by defendant’s foreman. Tbe negligence upon which tbe recovery is sought is a failure on tbe part of defendant to provide plaintiff with reasonably safe machinery to work upon and to- maintain it in a reasonably safe condition. In tbe answer defendant admits that plaintiff was in bis employ, and sustained injury to one of her bands by being caught in tbe mangle; then denies any negligence on tbe part of defendant as alleged, and alleges that tbe plaintiff was guilty of contributory negligence. Tbe replication denies all tbe new matter set forth in tbe answer.

Tbe case came on for bearing before tbe court and a jury, and tbe defendant immediately objected to1 tbe introduction of any evidence on tbe part of tbe plaintiff on tbe ground “that tbe complaint fails to state facts sufficient in law to entitle tbe plaintiff' to the relief sought, and does not state facts sufficient to constitute a cause of action.” Tbis objection was overruled, and tbe defendant reserved an exception. Immediately iajfter tbe close of plaintiff’s evidence counsel for defendant moved for a nonsuit, which was overruled, and to which defendant also saved exception. Defendant then, introduced bis proof, and at tbe close of all tbe testimony moved tbe court to direct tbe jury to return a verdict for defendant, which motion was. also overruled, and defendant excepted. Tbe case was given to tbe jury, which returned a general verdict in favor of plaintiff for tbe sum of $2,000. In addition to- tbe general verdict, there were ten special findings submitted to tbe jury by defendant, all of which were found in favor of plaintiff and against the defendant.'

The defendant gave notice of intention to move for a new trial, had a bill of exceptions settled, and on the 29th day of June, 1901, filed a stipulation signed by the attorneys for the respective parties, which was in the following language: “It is hereby stipulated and agreed by and between counsel in the above-entitled action as follows: (1) Immediately after the settlement by the court of the defendant’s bill of exceptions herein the defendant may present his motion for a new trial, and all notices preliminary to the presentation of such motion for new trial, together with the time of presenting the same, are deemed to be waived, except the notice hereinafter mentioned. (2) Said motion for new trial may. be niade and argued any time between August 25, 1901, and October 1, 1901, and may be brought on for hearing on five days’ notice.”

So far as disclosed by the record on this appeal, ho motion for a new trial was ever made, and the appeal before the court is from the judgment.

The question as to whether a bill of exceptions settled for use on the hearing of motion for a new trial can be considered by this court on an appeal from a judgment when no motion for a new trial has been made in the court below, and no decision thereon is appealed from, has not been presented in this appeal, and therefore it is not considered or decided.

This court is left somewhat in doubt as to the actual position of appellant’s counsel on the questions of assumed risk and contributory negligence of the plaintiff. In the brief filed counsel makes the assertion that the case is to be tested by the question as to whether or not plaintiff assumed the risks of the employment, and states that the question of contributory negligence is not in the 'case. Upon his oral argument to- the court he announced that the above statement contained in his brief was not correct, and that he did rely on the contributory negligence of the plaintiff, and the first point he argued to the court was that the complaint in the case did not state facts sufficient, to constitute a cause of action, because it contained no allegation negativing the existence of contributory negligence.

Tbe defenses of contributory negligence and assumption of risk are entirely inconsistent witb each other, and do not rest upon tbe same principles; and tbe existence of one necessarily excludes tbe existence of tbe other. (1 Bailey, M. & S. Sec. 938 et seq.; Miner v. Connecticut River R. R. Co., 153 Mass. 398-403, 26 N. E. 994; Texas P. Ry. v. Bryant, 8 Tex. Civ. App. 134, 27 S. W. 825; Mundle v. Manufacturing Co., 86 Me. 400, 30 Atl. 16.) If tbe defense of tbe assumption of risk is maintained, tbe question of the existence of contributory negligence does not arise, because, if plaintiff assumed tbe risks of tbe employment, be cannot recover, even if be exercised tbe highest degree of care.

We recognize tbe rule that'a defendant is entitled to' plead in tbe same answer as many defenses as be may wish to. present, even though they are inconsistent witb each other, and is entitled to present and rely upon any of such defenses upon tbe trial of tbe case; subject, however, to' instructions to tbe jury as to their proper effect in each case. We do not wish to be understood as deciding whether tbe defense of tbe assumption of risk must be pleaded specially, as such question is. not involved in this case; this defense being pleaded. These questions, however, are not material to this, case, as both tbe defenses of contributory negligence and assumption of risk were pleaded, presented to- tbe jury, and found against tbe appellant.

Tbe first question raised by tbe appellant is that tbe complaint does not state facts sufficient to> constitute a cause of action, in that it does not allege that the plaintiff acted witb due and ordinary care in tbe operation of tbe mangle by which she was injured; in other words, that tbe complaint does not negative tbe existence of contributory negligence. This question, we think, is answered by this court in tbe case of Cummings v. Helena & Livingston S. & R. Co., 26 Mont. 434, 68 Pac. 852. Mr. Justice Pigott, speaking for tbe court, said: “In actions for personal injuries tbe absence of contributory negligence is not required to be pleaded or proved by tbe plaintiff, but its presence is a matter of defense. Such is tbe law in Montana. Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450; Mulville v. Pac. Mutual Life Ins. Co., 19 Mont. 95, 47 Pac. 650; Snook v. City of Anaconda, 26 Mont. 128, 66 Pac. 756. Tbe contrary rule was announced in Ryan v. Gilmer, 2 Mont. 517, 25 Am. Rep. 744, but bas been overturned by tbe eases cited and those referred to. by tbé opinions therein. If, however, tbe complaint shows tbe proximate (or a proximate) cause of the injury to have been tbe act of the plaintiff, tbe complaint must also state bis freedom from negligence in the doing of tbe act; otherwise tbe pleading is bad (Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21) ; and so, if the evidence in behalf of tbe plaintiff shows tbe injury to have been directly caused (either in whole or in part) by bis act, tbe burden is immediately upon him to prove that be was exercising ordinary care at tbe time. Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905. Another rule, from which there seems, to be no dissent except in North Carolina (Bolden v. Railway Co., 123 N. C. 614, 31 S. E. 851; Cogdell v. Railroad Co., 124 N. C. 302, 32 S. E. 706; Powell v. Railway Co., 125 N. C. 370, 34 S. E. 530), is that, if tbe evidence in plaintiff’s behalf establishes beyond question that bis own omission to use ordinary care contributed immediately. to, or itself caused, tbe injury, tbe court should, on motion, direct a verdict or grant a nonsuit.”

It cannot be said that, this complaint “showed tbe proximate (or a proximate) cause of tbe injury to have been tbe act of plaintiff.” The existence of contributory negligence is a matter of defense, and tbe appellant in this case must have so understood it, because be alleged in bis answer that tbe plaintiff was guilty of contributory negligence. This question was tried, and tbe jury, upon a submission by defendant of a request for a special finding thereon, found that tbe plaintiff could not have avoided tbe injury which she sustained by tbe use of ordinary care. No other objection is made to tbe sufficiency of tbe complaint, and, it having been treated as otherwise sufficient upon tbe trial, this court will so consider it upon this appeal.

Tbe appeal was taken from tbe judgment alone, and no-motion for a new trial was ever beard, altbougb tbe record discloses tbat notice of intention to' move for a new trial was given, ánd tbat tbe bill of exceptions (wbicb is brought up> witb tbe judgment roll) was settled for tbe plaintiff’s presentation to tbe court below on tbe motion for a new trial. Tbis is shown by. tbe stipulation found in tbe record hereinabove recited.

In assignment of error No. 11 appellant insists tbat tbe evidence is insufficient to justify the verdict in certain particulars. The respondent insists; tbat tbe appellant cannot raise tbis question on an appeal from tbe judgment, but that such question must be presented to the court below on motion for a new trial. It therefore becomes necessary to determine whether tbis question can be raised upon an appeal from a judgment when a bill of exceptions setting; forth all tbe evidence and containing specifications of tbe insufficiency of tbe evidence to support tbe verdict is a part of tbe record on appeal.

Appellant relies on tbe case of Emerson v. Eldorado Ditch Co., 18 Mont. 24/7, 44 Pac. 969, and insists that under tbe ruling in tbat case tbis court may consider tbe question of tbe insufficiency of tbe evidence- to sustain tbe verdict upon tbis appeal. An examination of tbat case discloses tbat no question •was there raised as to tbe insufficiency of tbe evidence. Tbe evidence, as stated by tbe court, was all one way. Tbe court says: “There was no conflicting evidence before tbe trial judge when be rendered judgment for tbe defendant, tbe respondent here. The testimony offered by tbe plaintiff, tbe appellant, was uncontradicted, and admissions were also' made by respondent in plaintiff’s behalf. Nor was there any contradiction of tbe testimony" offered by respondent, although-it was admitted after numerous objections. Tbe testimony before tbe court was virtually an agreed statement of facts.” So tbat in tbat case tbe evidence contained in tbe record did not support the verdict and judgment, but was contrary thereto. Tbe court in tbe same case, after reviewing several Montana cases, further says: “Tbe expressions referred to were used inadvertently, and from an inspection of tbe whole line of decisions supra we are satisfied that the principle on which they were based was simply that no' review of an issue of fact decided by a jury or trial court could be entertained unless presented in a statement on motion for a new trial on appeal from an order granting or denying a new trial; in other words, the question of the insufficiency of the evidence to justify a verdict or decision must have been directly raised by a strict compliance with the provisions of the statute regulating new trials, before it could be examined on appeal. There must have been a direct — not a collateral — attack on evidence, in so far as the insufficiency of it is concerned, before a review of it on that ground could be entertained. An exception to' a decision or verdict upon a matter of fact, as distinguished from one on a matter of law, must have been saved as a condition precedent to such review.”

This court further considered the question involved in the case of Withers v. Kemper, 25 Mont. 432, 65 Pac. 422. In this case Mr. Justice Milburn, for the court, states the law very, clearly and concisely in the following language: “To attack a judgment of the court as not supported by the findings is to raise a question of law. To attack a-decision of the court on the ground that there was a total failure of any evidence is to raise a point of law. But, in order to bring questions of the weight of evidence before this court on appeal, there must have been a hearing on motion for a new trial, and an appeal from' the order granting or refusing the same.”

The result of these decisions settles the practice in this state as follows: - Whether the verdict or decision is unsupported by any substantial evidence, being a question of of law, may be reviewed by this court on appeal from a judgment, but the question as to- whether the evidence' is sufficient to support the verdict or judgment, where there is. conflicting evidence, cannot be reviewed by this court on an appeal from the judgment.

An investigation of the record in this case discloses a clear conflict in. the evidence in several material aspects* and we cannot say that the verdict and judgment of the court below are entirely unsupported by any substantial evidence. Therefore we cannot consider the question of the sufficiency of the evidence — it being contradictory — upon this appeal.

Counsel for respondent also insist that the specifications, of the insufficiency of the evidence relied on by appellant are not made in such manner as to warrant this court in considering them.

This court, in the case of Cain v. Gold Mountain Min. Co 27 Mont. 529, 71 Pac. 1004, speaking by Mr. Justice Holloway, uses the following language: “The specifications of insufficiency of the evidence to justify the verdict are alike, and are wholly inadequate for the purpose intended. In form they are substantially as follows: The evidence is. insufficient to support the verdict in this: that the evidence conclusively shows contributory negligence on the part of the plaintiff, knowledge of certain facts on his part, or something to- the same effect. Section 1173 of the Code of Civil Procedure, among other things, provides: ‘When the notice of motion designates as the ground of the motion the insufficiency of the .evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient. * * * if no, g-uah specification be made the statement shall be disregarded on the hearing of the motion.’ Hn-cler a specification of the insufficiency of the evidence to supr-port the verdict this, court will not consider what the evidence does show, but only what it fails to show (First Nat’l Bank v. Roberts, 9 Mont. 323, 23 Pac. 718; Zickler v. Deegan, 16 Mont. 198, 40 Pac. 410; Bardwell v. Anderson, 18 Mont. 528, 46 Pac. 443; Kumle v. Grand Lodge, 110 Cal. 204, 42 Pac. 634; Dawson v.6 Schloss, 93 Cal. 194, 29 Pac. 31), and, the specifications having wholly failed to point out any particulars in which the evidence is insufficient to support the verdict, we are bound by the terms of Section 1173, above, to. disregard them on this hearing.”

Section 1152 of the Code of Civil Procedure, relative to bills of exception, provides that, “when the exception is to the ver-diet- or decision, upon tbe ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient.”

Both of these statutes having the same requirements as to specifications of insufficiency of evidence, the same rules must be applied to each. In the first five specifications counsel simply states what the evidence shows, not what it does not show. He does not particularize wherein it is insufficient, but contents himself with an argument as to the sufficiency of the evidence thus recite'd.

Specification No. 6 is in the following language: “The.evidence does not justify the special findings of the jury Nos. 1, 2, 3, 4, 5, 6, 1, 8, 9 and 10, because, to justify such findings, it must have been believed by the jury that the plaintiff at the time of her injury was both blind and non compos mentis This specification is so absolutely lacking in any specification of the insufficiency of the evidence, within the rule as laid down by the above decisions, that it cannot be considered. So that it appears that, even if this court could consider the insufficiency of the evidence on this appeal, there are no- proper specifications thereof found in the record to warrant such action.

The next error alleged is that the court below refused to1 grant a motion for nonsuit made by the defendant at the close, of plaintiff’s testimony.

This court, by Mr. Justice Holloway, has lately announced the rule as to motions for nonsuit in the following language: “The evidence offered on her [plaintiff’s] behalf tended to prove this contention, and under the rule well established that on motion for nonsuit every fact will be deemed proved which the evidence tends to prove (State ex rel. Pigott v. Benton, 13 Mont. 306, 34 Pac. 301; Morse v. Granite County Commissioners, 19 Mont. 450, 48 Pac. 745; Cain v. Gold Mt. Mining Co., 27 Mont. 529, 71 Pac. 1004), the evidence should have gone toi the jury, and the motion for nonsuit was properly denied.” (Coleman v. Perry, 28 Mont. 1, 72 Pac. 42.) So, in this ease, plaintiff having alleged negligence on the part of tbe defendant in not providing reasonably safe machinery upon wbicb tbe plaintiff was directed to wort by tbe defendant’s agents, and in not keeping it in snob condition, and tbat tbe injury complained of resulted from tbe use thereof, and tbe evidence introduced on her behalf clearly tending to maintain her position, tbe motion for a nonsuit was properly overruled.

Tbe next point insisted upon by appellant is tbat tbe court should have directed tbe jury to' render a verdict in favor of tbe defendant. Section 1104, Code of Civil Procedure, provides : “Where, upon tbe trial of an issue by a jury, tbe case presents only questions of law, tbe judge may direct tbe jury to render a verdict in favor of tbe party entitled thereto.” If substantial evidence bad been introduced prior to tbe motion, wbicb in any way or manner tended to support plaintiff’s- contention, then the weight of tbe evidence became a question for tbe jury, and tbe court properly refused a motion to direct a verdict for tbe defendant. (Cain v. Gold Mountain Min. Co., 27 Mont. 529, 71 Pac. 1004; Michener v. Fransham, 29 Mont. 240, 74 Pac. 448.)

Counsel allege error in tbe admission and rejection of evidence. We have carefully examined these alleged errors, and cannot say tbat appellant was in any way injured by tbe rulings of tbe court thereon.

Instructions of tbe court. Appellant alleges error in tbe court’s refusal to give instructions Nos. 5 and 6 requested by him, and in giving instructions Nos. 2, 8 and 10. We are of tbe opinion tbat tbe court below did not err in refusing to give defendant’s instructions Nos. 5 and 6 as requested. Tbe charge of tbe court as given is very full, and sufficiently instructs tbe jury upon tbe propositions covered by these requests. Neither do we conclude that- tbe court erred in giving instructions Nos. 2, 8 and 10. Perhaps these instructions are somewhat inaccurate in language, but they must be considered in connection with tbe other parts of the charge as. given. We are of tbe opinion tbat appellant cannot complain of tbe giving of these instructions, as the charge as a whole states tbe law as applicable to tbe case at bar as tbe case was presented to tbe court below.

Tbe tenth specification of error relates to tbe following portion of instruction No. 16: “And you may find for tbe plaintiff in any reasonable amount not to exceed $5,000, and may include any reasonable sum you may find plaintiff expended for medical attention.” Tbe entire instruction as given was as follows: “Tbe jury are further instructed that if, under tbe evidence and instructions of tbe court, they find for tbe plaintiff, then in estimating- tbe plaintiff’s damage they have tbe right to take into consideration tbe personal injury inflicted upon tbe plaintiff, tbe pain and suffering undergone by her in consequence of her injury, if any is proven, and you may also consider tbe extent of tbe injury as to being permanent or not, and you may find for tbe plaintiff in any reasonable amount not to exceed five thousand dollars ($5,000), and may include any, reasonable sum you may find plaintiff expended for medical attention if tbe proof shows that she expended any.” It will be noticed that counsel for appellant does not quote tbe conclusion of the instruction in tbe following words: “If tbe proof shows that she has expended any.” By this instruction, therefore, tbe jury were told that plaintiff might recover any reasonable sum she bad expended for medical attention, if the proof showed that she bad expended any. Tbe proof is, uncon-tradicted that she bad spent $7 5 for this purpose. We do not think tbe instruction under tbe evidence was harmful.

Again, if appellant bad desired to ascertain tbe amount of money allowed plaintiff for tbe injury and for tbe moneys expended, be could have requested a separate verdict stating tbe amqunt given for each purpose. This was not attempted, and tbe verdict is general, and, inasmuch as tbe plaintiff claimed $5,000' for tbe injury alone, and tbe verdict is only for $2,000, we cannot see that appellant could have been injured.

A careful examination of all tbe evidence disclosed by this record leads one to tbe conclusion that plaintiff made out a very unsatisfactory case, but there was sufficient substantial evidence in plaintiff’s favor, wbicli was fairly submitted to a jury, and this court upon an appeal from the judgment cannot interfere with the verdict rendered.

We advise that the judgment appealed from be affirmed.

Per Curiam.

For the reasons stated in the foregoing opinion, the judgment appealed from is affirmed.


author: MB. COMMISSiONEB POOBMAN Peb Oubiam.

text:
    CITY OF BUTTE, Appellant, v. SCHOOL DISTRICT NO. 1, Respondent.
    (No. 1,755.)
    (Submitted December 10, 1903.
    Decided January 6, 1904.)

      Schools — Preservation of Fund — Inviolability — Liabilities— Street Sprinkling — Pleading — Presumptions — Taxation ■ — Local Assessments — Basis.
    1. In an action by a city against a school district to recover a special assessment, against real estate of the school district situate in the city, to pay the cost of street sprinkling, where the complaint was silent on the subject, it will be presumed that the sprinkling done was the ordinary street sprinkling, and that the property assessed was used for educational purposes.
    2. The only basis on which special taxation or special assessments can be sustained is that the property subject to assessment or taxation will be enhanced in value to the extent of the burden imposed.
    3. Constitution, Article XI, Section 3, provides what shall constitute the school fund, and further provides that it shall forever remain inviolate. By constitutional and legislative provisions, money raised by taxation for school purposes becomes a part of the school fund of the district within which it is raised, and the district trustees are, by Political Code, Section 1943, personally liable if they sanction the expenditure of the fund for any other than educational purposes, although a part of the fund may be expended for purposes of building and improvement. ITeM, that school district property cannot be specially assessed to pay the cost of sprinkling the streets on which it abuts.

      Appeal from District Qourt, Silver Bow Gounty; F. W. Harney, Judge.

    Action by the city of Butte against School District No. 1. From a judgment for defendant, plaintiff appeals.
    Affirmed.

      Mr. Edwin M. Lamb, Mr. John Temploman, and Mr. II. A. Bolinger, for Appellant.
    A special assessment is not a tax, and Section 2 of Article XII of the Constitution, exempting school property from taxation, does not apply .to special assessments. (Elliott on Hoads and Streets, Sec. 549; Ford v. Delta & Pine L. Go., 164 U. S. 662; Illinois O. B. Co. v. Decatur, 147 II. S. 190; West Wis. B. Co. v. Trempeleau Co. 8., 93 IT. S. 598; Trustees P. A. v. Andover, 175 Mass. 118; Boston Seamens Soc. v. Mayor, etc., 116 Mass. 181; Dillon’s Mun. Corp. (4tb Ed.), Secs. 776, 777; Cooley on Taxation, pp. 146, 147; Adams County v. Quincey, lSO'Ill. 566, 6 L. R. A. 155; Wornerv. New Orleans, 85 Fed. 645; Board of Corners v. Ottawa, 49 Kan. 747, 31 Pac. 788; 8t. Louis Public Schools v. St. Louis, 26 Mo. 466; McLean County v. Bloomington, 106 Ill. 209; Illinois C. B. Co. y. Decatur, 126 Ill. 209, 1 L. R. A. 613; Sears v. Boston, 173 Mass. 71; State ex rel. Stateler v. Beis, 38 Minn. 371; Beinken v. Euchring, 130 Ind. 382.)
    In tbe absence of such special assessment becoming a lien upon said property, can a municipal corporation recover judgment against a school district for the amount of said special assessment, to' the extent that its property has been specially benefited, in an action at law, to be enforced as other judgments against a school district? Most of the cases heretofore cited in this brief are authority for answering this in the affirmative, for in deciding that there is a liability, they imply that there is a way of enforcing that liability. Cburts do not render useless judgments. (Kansas City, etc. B. Co. v. Board of Water Works Imp. Dist. No. 1 (Arle.), 5 Mun. Corp Cas. 22; Mt. Vernon v. People, 147 Ill. 359; Taylor v. People, 66 Ill. 322; Olney v. Harvey, 50 Ill. 453; People v. Clark County Supervisors, 50 Ill. 213.)

      Mr. Peter Breen, and Mr. Alexander Mackel, for Respondent.

      Cited: Constitution of Montana, Art. X, Sec. 1; Art. II, Secs. 1, 2, 3, 6; Art. XII, Sec. 2; Political Code, Secs. 3611, 4800; Sec. 1 of Ordinance No. 449 of tbe Ordinances of tbe City of Butte; Secs. 21, 30, House Bill No. 204, Sess. Laws of 1897, page 218; C'ooley on Taxation, 2d Eld., p. 172; Board of Improvement v. School Dist., 16 L. BL A. 418; People v. Trustees of Schools, 7 N. El 262- People v. Austin, 47 Cal. 353; Oity of Mt. Tern'pn v. People, 23 L. B. A. 807; Inhabitants v. Mayor, 17 Am. Bep'. 159; Political Code, Sec. 1943; Oity v. Board of Education, 26 N. W. 403; Oity of Louisville v. Leatherman et al.> 35 S'. W. 625; Knox Go. v. Hunolt, 19 S. W. 628; Jay v. School Dist. No. 1, 24 Mont. 219; Chicago y. Blair24 L. B. A. 412.
   MB. COMMISSiONEB POOBMAN

prepared tbe opinion for tbe court.

Tbis action was instituted -by plaintiff for tbe purpose of recovering from tbe defendant district an amount claimed to be due plaintiff as a special assessment against tbe property of tbe defendant to pay tbe cost of sprinkling certain streets along and in front of tbe real property owned by defendant. A general demurrer was filed to tbe complaint, wbicb was sustained. Judgment was entered for tbe defendant dismissing tbe action. Tbis appeal is from tbe judgment.

It appears tbat tbe defendant district owns certain real estate in tbe city of Butte, that sprinkling districts were created by tbe city, and tbe streets on wbicb tbe defendant’s property abuts were- sprinkled during tbe year 1900. It is alleged in tbe complaint tbat tbe property of defendant was specifically benefited by tbe sprinkling of tbe streets, but it does not appear tbat such property received any benefit therefrom beyond tbat of other property in tbe city. Nor does it appear tbat tbe sprinkling done was any more than tbe ordinary street sprinkling. Tbe ordinances and resolutions contained in the record indicate tbe contrary. Tbe complaint alleges tbat tbe defendant is tbe owner of this’property, but it is silent as to1 whether tbe property is used for school purposes. In the absence of a showing to the contrary, it is presumed that the sprinkling done was the ordinary street sprinkling, and that the property of the school district was and is used for educational purposes. (Witter v. Mission School District, 121 Cal. 350, 53 Pac. 905, 66 Am. St. Rep. 33.)

It is claimed by appellant that the court erred in sustaining the demurrer to the complaint and in entering judgment of dismissal of plaintiff’s action. The appellant contends that this is a local improvement, and that the constitution and statutory exemptions from taxation of property used for educational purposes do not apply, and that an assessment may be made against this property to assist in defraying the expenses of such improvements. The distinction between improvements and incidental expenses necessary to the preservation of school property and the maintenance of the school must be kept in mind.

A local improvement, within the meaning of the law, is an improvement which, by reason of its being confined to a locality, enhances the value of property situated within the particular district, as distinguished from benefits diffused by it throughout the municipality. The only basis on which special taxation or special assessments can be sustained is that the property subject to the assessments or taxation will be enhanced in value by such improvements to the extent of the burden imposed. (City of Chicago v. Blair, 149 Ill. 310, 36 N. E. 829, 24 L. R. A. 412; Cooley on Taxation (3d Ed.), Yol. 2, p. 113.)

The value of private property, whether held for occupancy, rentals or speculation, is enhanced by public improvements, if enhanced at all, upon a pecuniary valuation. The fact that the improvements render the private property more desirable or more profitable is not considered, except for the purpose of determining the increase in money value. School property stands on a different footing from that of private property, and is used for a different purpose. It is not held for speculation, rentals or private occupancy; is not subject to barter or sale, within the ordinary meaning of these terms ; its intrinsic worth is its value for educational purposes; it is not affected by market fluctuations. Its money value is immaterial; its true worth is its effectiveness for educational purposes.

The constitution provides that the state shall establish and maintain free public schools, and in performing this duty it exercises a function strictly public and governmental. School districts are created in pursuance of constitutional and legislative commands, and there is imposed upon them in part this governmental function, and in order properly to discharge it such districts are permitted to hold'school property. They have no other duty except to perform for the state this public function, and. they are permitted to hold property only that they may perform it. The Constitution provides what shall constitute the school fund, and further provides (Article XI, Sec. 3) that this “fund shall forever remain inviolate.”' By constitutional authority and legislative provisions, a part of the money used and distributed by school districts is raised by taxing property within the districts; but this money, when raised by the district, becomes a part of the school fund of such district, and is held subject to the same restrictions that apply to' the distributive share of the general school fund. This fund is intrusted to the school districts, to be expended by them for the purposes for which it was created, i. 6., for educational, and no other purposes. The trustees of the district are held liable if they sanction the expenditure of any part of this fund for any other purpose. (Section 1943, Political Code.) The section last cited authorizes, under certain conditions and re-' strictions> an expenditure by the district of a part of the school fund received by it “for purposes of building and improvement.” This improvement, however, must be of such character as to enhance materially the value and effectiveness of the school property for the purposes for which it is held. That which partakes of the nature of a luxury — is ephemeral in duration and evanescent in character — lasts hut a single day and then disappears, and leaves the property in the same condition it was before, is not such an improvement as justifies the expenditure of a school fund, which, the constitution says, “shall forever remain inviolate.”

In State v. Reis, 38 Minn. 371, 38 N. W. 97, cited by appellant, it is held that street sprinkling renders the property (which in that case was private property) more attractive and valuable, and that durability is not necessarily considered in determining' what constitutes an improvement, for the reason that no improvement can be eternal in duration, and that all improvements must therefore be regarded as temporary. There may be force in this reasoning, regarded as a theory, when applied to private property. It may also be true in a sense as applied to property held for the purpose of “a free common school,” but it is not true in a practical sense. As was said in Chicago v. Blair, supra, vases of flowers, or music, would also serve to make the school room more attractive, but such things cannot be called improvements', at least without a special showing under specific pleadings, and a granite structure is practically eternal in duration as compared with the time water will remain when sprinkled upon a dusty street. In an attenuated sense, sprinkling may be a protection to the school building, if dust blowing against it is any injury, but it is no more of a protection than the police regulation which guards the property from vandals, and gives the alarm in case of fire, nor is it any more of a protection than the department that responds to the call of fire and saves the property from destruction. It surely cannot be maintained that, in the absence of a positive statute, the property of a school district situated within a city would be subject to a special tax or assessment levied for the purpose os assisting the city to defray the expenses of maintaining the police or fire department.

This discussion brings us to the conclusion that school property is not materially enhanced in value for educational purposes by the ordinary street sprinkling, nor the cause of education sufficiently benefited thereby fi> justify the invasion of a fund which must be held inviolate and used for educational purposes only. Whether the defendant would be liable if its property were materially benefited by sidewalks ox other improvements permanent in character is not here decided.

The following cases are cited as sustaining the view that the defendant is not liable for this assessment or special tax, though they do not all place the nonliability upon the ground here expressed: Chicago v. Blair, supra; Board of Improvement v. School District, 56 Ark. 354, 19 S. W. 969, 16 L. R. A. 418, 35 Am. St. Rep. 108; Witter v. Mission School District, supra; City of Louisville v. Leatherman, 99 Ky. 213, 35 S. W. 625; Board of Education v. City of Toledo, 48 Ohio St. 87, 26 N. E. 404; People v. Trustees of Schools, 118 Ill. 52, 7 N. E. 262; Pettit v. Duke, 10 Utah, 311, 37 Pac. 568. We also cite Cooley on Taxation (3d Ed.), p. 1153; Whiteside v. School District No. 5, 20 Mont. 44, 49 Pac. 445.

It is unnecessary to- consider at this time the other questions raised on this appeal relative to the construction of the constitutional and statutory provisions on the question of exemption.

We recommend that the judgment appealed from be affirmed.

Peb Oubiam.

Eor the reasons stated in the foregoing opinion, the judgment appealed from is affirmed.


author: MR. COMMISSIONER POORMAN Per Curiam.

text:
    BOUCHER, Appellant, v. POWERS et al., Respondents.
    (No. 1,750.)
    (Submitted December 12, 1903.
    Decided January 11, 1904.)

      Contractor's Lien — Foreclosure — Pleading — Counterclaim— Setoff — Splitting Demand — Answer—Admission.
    1. under Code of Civil Procedure, Section 691, orders on the property owner to laborers, given by tbe contractor for work .done in the removal of buildings, are properly pleaded as counterclaims in an action by the contractor or his assignees to foreclose a lien for the contract price of such removal.

      2. Where a property owner contracts for the removal of buildings from his property, and on completion of the work the contractor issues orders on the property owner to the laborers assisting in the work, which the property owner refuses to pay until liens therefor are foreclosed, he is not entitled to set off the costs of foreclosure in an action to foreclose a lien for the contract price.
    3. An action to foreclose a lien for the contract price of removal of buildings is not barred, as a violation of the inhibition against “splitting demands,” where the laborers have previously foreclosed a lien for the amount due them on account of work done for the contractor.
    4. Where part of an answer does not contain sufficient allegation within itself or by reference to other parts of the answer to constitute a separate defense, but is merely a repetition of other parts of the answer, which are denied, no specific denial thereof is necessary.

      Appeal from District Court, Silver Bow> County; William Clancy, Judge.

    ActioN by Frank Boucher against John, B. Powers and another. From a judgment for defendants, plaintiff appeals.
    Reversed.

      Mr. O. M. Mall, and Mr. Lewis P. Forestall, for Appellant.
    > Mr. J. L. Wines, for Respondents.
   MR. COMMISSIONER POORMAN

prepared the opinion for the court.

This is an ajipeal from a judgment of dismissal of plaintiff’s case. The facts appearing from the pleadings, so- far as necessary to be considered in determining the questions raised on this appeal, are: Defendants contracted with one Dayton for the removal of certain buildings. Dayton hired men to assist him in performing the work, and .after the completion thereof gave orders on the defendants for the payment of the workmen. The defendants did not honor these orders, and did not pay either Dayton or the workmen, except a small payment made to Dayton. Both Dayton and the workmen then filed liens against the property. Afterwards Dayton assigned his claim to- the plaintiff and the workmen assigned their claims to Ernest Clark. Both assignees instituted action on February 21, 1890, for the foreclosure of the liens. A decree of foreclosure in the Clark suit was entered April 11, 1896. Nothing further appears to have been done in the case at bar until February 25, 1899, when an amended- complaint was filed. The defendants in the meantime had paid the Clark judgment, and in their answer to the amended complaint, after denying most of the allegations therein, alleged as a counterclaim damages arising from the delay and careless manner in which the work was performed, pleaded the separate amounts due the several workmen, entry of the Clark judgment, and decree of foreclosure, and alleged the payment thereof by defendants in May, 1897, to protect 'their property from forced sale, and that this was “money paid, laid out and expended for Dayton.” Plaintiff admits the payment of this judgment, but alleges that only $200 thereof was expended by the defendants in satisfaction of the labor liens, and that the balance of said judgment was caused by the wrongful acts of the defendants in not honoring the orders given the workmen and in not paying Dayton. Plaintiff also admits that defendants' are entitled to a credit of this $200 in addition to the payment theretofore made to Dayton.

It is claimed by appellant that the Clark judgment is' not a proper counterclaim or setoff to plaintiff’s demand, and that it was the duty of defendants to honor the orders given by Dayton to the workmen. Respondents contend that they were not obliged to recognize the order for a part of Dayton’s demand. The trial court appears to- have proceeded upon the theory that no duty rested upon 'the defendants to recognize the claims of the workmen until the same were merged in a judgment of foreclosure against defendants’ property, and that this entire judgment then became a proper setoff.

These proceedings axe in equity, and under a special statute (Section 2130 et seq., Code of Civil Procedure) and the law relating to “setoff,” “counterclaim,” “defense,” and “splitting of demands” must be applied with reference to the terms of that statute. This Clark judgment, if regarded merely as “money paid, laid out and expended” by the defendants for the benefit of plaintiff’s assignor, does not constitute any defense or setoff, for it was not “existing and matured for action in favor of tbe party asserting tbe same at tbe time” tbis action was commenced. (McGuire v. Edsall, 14 Mont. 359, 36 Pac. 453.)

Section 691 of tbe Code of Civil Procedure defines, a counterclaim as (1) “a cause of action arising out of tbe contract or transaction, set forth in tbe complaint, as tbe foundation of tbe plaintiff’s claim, or connected witli tbe subject of tbe action;” (2) “in an action on contract, any other cause of action on contract, existing at tbe commencement of tbe action.”

It is only by treating this Clark judgment and tbe claims merged therein as coming within tbe terms and meaning of tbe first subdivision of tbe section quoted that they or it can be considered as any defense or setoff whatsoever. Tbe various claims merged in that judgment are separately specified and pleaded, and tbe judgment itself is also pleaded. Tbe defendants, in tbe absence of contract relations, were not personally liable to tbe workmen, but their property was. bable. Tbe labor claims in tbe Clark case were for assistance rendered in performing tbe very work which is tbe basis of plaintiff’s action, and properly comes within tbis first subdivision. They are for labor done, and were liens against tbe property of defendants, and, whether paid by defendants or not, were proper to be pleaded as an equitable defense in an action by tbe contractor or bis assignee for tbe contract price; and tbis defense continues so long as these claims remain a lien against defendants’ property. It would be inequitable to maintain that a contractor could force tbe owner to pay him tbe full amount of tbe contract price when there was at tbe same time an outstanding claim created by tbe contractor, and with reference to tbe very thing constituting bis cause of action, and for which tbe property of tbe defendants was subject to forced sale. A duty also rests on tbe owner — that of paying tbe amount be agreed to pay for the work dbne; and when be wrongfully refuses to pay tbe contractor, or to honor bis orders for tbe payment of tbe workmen, thereby causing liens to be filed, or wrongfully contests tbe actions brought for tbe foreclosure of tbe liens, be cannot set off tbe costs thus caused by bis own wrongful act against tbe claim of tbe contractor or bis assignee. Whether it was tbe duty of tbe defendants, as a matter of law, to honor these orders, is immaterial. Tbe orders served to give them notice of these outstanding claims against their property. They were also an acknowledgment by tbe contractor that tbe amounts were correct. Tbe danger of paying spurious claims or of making volunteer payment was thus avoided. Their payment would have been a proper charge or counterclaim against tbe contractor, and a proper setoff against tbe demand of bis assignee. Tbe inhibition against “splitting demands” does not apply. Tbe law splits the demand when it authorizes tbe workman to file a lien for tbe amount due him, irrespective of whether this amount corresponds with tbe original contract j>rice. If tbe owner chooses at bis own instance to contest these labor claims after they are acknowledged by tbe party personally liable, and is defeated, be cannot set off tbe cost of bis own contest against tbe demand of tbe contractor. Tbe replication to tbe answer by alleging 'that tbe costs, attorneys’ fees and accumulated interest on this Clark judgment were occasioned by tbe wrongful acts of tbe defendants., presented an issue of fact which, together with tbe other questions of fact appearing in tbe pleadings, should have been tried.

Tbe paragraphs of defendants.’ answer are not numbered, but certain divisions appear therein. In that part of tbe answer designated as “fourth” tbe defendants say: “Prior to the commencement of this action these defendants paid unto, tbe said Edgar Dayton upon said contract * • * * the sum of $24.25, making a total of $340.25, paid as aforesaid unto the said Dayton, and paid, laid out and expended for him for his use and benefit as hereinbefore stated.” This part of tbe answer, is not specifically denied by plaintiff, and defendants claim that it therefore stands admitted,.but this, division of tbe answer does not contain sufficient allegatiori, neither within itself nor by reference to other parts of tbe answer, to 'constitute a separate defense (Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201), and cannot be treated as anything more than an affirmative statement inconsistent with the allegations of the complaint. It is merely a repetition of other parts of the answer which are denied by the replication. No specific denial of this division of the answer was therefore necessary.

We recommend that the judgment appealed from be reversed, and the cause remanded for a new trial. 1

Per Curiam.

Por the reasons stated in the foregoing opinion, the judgment is reversed, and the cause remanded.

Mr. Justice MilburN, not having heard the argument, takes no part in this decision.