author: MR. JUSTICE MILBURN MR. JUSTICE MILBURN Me. Justice Pigott: Me. Chief Justice BeaNtly:

text:
    MATUSEVITZ, Appellant, v. HUGHES, Respondent.
    (No. 1,370.)
    (Submitted November 15, 1901.
    Decided December 23, 1901.)

      Appeal — Briefs—Buies of Supreme Court — Failure to Observe —Affirmance-—Assignments of Error — Cross-Examination— Evidence.

    Under Supreme Court Rule X, an order appealed from will be affirmed where the statement of the ease in appellant’s brief does not conform to the Rule.
    On Reconsidebation, Without Reheabins.
    1. Where the matters assigned in appellant’s brief as errors do not on their face seem to be such as can be injurious to any one, they will not be considered.
    2. Where appellant’s brief contains no reference to any line or page of the transcript where the matters- referred to in certain assignments of error can be found, such assignments will not be considered.
    3. Assignments of error based upon questions asked a witness upon cross-examination which elicit no prejudicial answers, will not be considered.
    4. Assignments of error not touched upon in appellant’s brief or oral argument may not be considered.

      5. It is reversible error for the trial court to overrule a motion to strike out hearsay and incompetent evidence.
    6. If a witness shows himself to have been for a long time in a position to know and hear what neighbors say about a person, and he has never heard the character of such person questioned or talked about, this fact is competent evidence tending to prove good character of such person.
    7. A written receipt given by the district court clerk for certain money alleged to have been paid upon a judgment, is not competent evidence to prove that the judgment creditor got the money.

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

    ActioN by Nannie Matusevitz against Lillie R. Hughes, ad-ministratrix of the estate of S. J. Reynolds, deceased. Thei*e was judgment for defendant, and from an order denying a new trial the plaintiff appeals.
    Affirmed. On reconsideration, reversed.

      Mr. Oliver M. Hall, Mr. E. B. Howell and Mr. G. TV. Sta-pleton, for Appellant.

      Mr. John. T. Baldwin and Messrs. McBride & McBride, for Respondent.
   MR. JUSTICE MILBURN

delivered the opinion of the court.

This cause is before us upon appeal. At the time when appellant’s brief was filed, September 5, 1899, the following rule of this court was, and now is, in force, to-wit:

“(3) Contents of Brief. The appellant’s brief shall contain, in the. order here stated:
“(a) A concise abstract or statement of the case, presenting succinctly the questions involved, and the manner in which they are raised, which abstract shall refer to the page numbers in the transcript in such manner that pleadings, evidence, orders and judgment may be easily found. * * *” (Rule X, 22 Mont, xxxiv, 51 Pac. vii.)

The statement of the case in the brief does not conform to the rule in any respect, except that it is concise. It even fails to inform tbe court from wbat order or judgment tbe, appeal is taken, or tbat there ever was an order or judgment made or entered in tbe case. Tbe transcript embraces 598 pages, of matter, and, as appellant says, is unusually cumbersome. From tbe notice of appeal we find that tbe action of tbe court from which appeal was taken was an order denying a motion for a new trial.

(Resubmitted January 31, 1902. Decided April 3, 1902.)

Tbe rules of court are necessary, and are made to be obeyed. For failure to obey tbe rule mentioned, tbe order appealed from is affirmed, 'On authority of McCleary v. Crowley, 22 Mont. 245, 56 Pac. 227; Gibson v. Hubbard, 22 Mont. 517, 57 Pac. 88; Anderson v. Carlson, 23 Mont. 43, 57 Pac. 439; Smith v. Denniff, 23 Mont. 65, 57 Pac. 557, 50 L. R. A. 737; Rehberg v. Greiser, 24 Mont. 487, 62 Pac. 820, 63 Pac. 41; and other cases decided by this court.

Affirmed.

ON RECONSIDERATION, W1TIIOUT REHEARING. REVERSED.

MR. JUSTICE MILBURN

delivered tbe opinion of tbe court.

This case has been very poorly presented. Tbe brief of appellant is so obscure tbat we hesitate to state tbe case upon which be seems to rely. It appears, however, that this is an action by tbe plaintiff against tbe sheriff for tbe recovery of a certain stock of goods valued at $7,000, and tbat the defendant prevailed, tbe plaintiff appealing. Since tbe appeal was taken tbe defendant has departed this life, and Lillie R. Hughes, ad-ministratrix, has been substituted in bis stead.

Tbe pleadings are too voluminous for recital herein. There is no, succinct or other statement of them in tbe brief of appellant. Examining the complaint we find, that it is alleged that on February 5, 1895, one Mary Schultz was indebted to- one Ruth Hague for $3,000, and that on that day the former sold and delivered to the latter a certain stock of drugs, etc., and that “the sale was intended * * * as a conditional sale” to secure the debt; that immediately Ruth Hague took exclusive possession- of the goods; that Mary, Schultz never redeemed the pledge; that defendant, on February 12, 1894, took the property from the possession of Ruth Hague wrongfully and without her consent; and that on February 16, 1894, Ruth Hague transferred all her right to the goods over to plaintiff.

The defendant denies that Ruth Hague or the plaintiff ever owned the goods, but alleges that at the time of the taking by the defendant sheriff, under an attachment against one Carl Schultz and Mary Schultz, the property was that of Carl Schultz and Mary Schultz, partners, the writ of attachment having been regularly issued in a suit in which one Maul was plaintiff against Carl Schultz and Mary Schultz. Defendant charges conspiracy between Carl Schultz, Mary Schultz, Ruth Hague et al.

The plaintiff appeals from the order denying her motion for a new trial. The order of the court denying the motion was by this court affirmed on the 23d day of December, 1901, on account of the failure of the appellant to comply with the rules of this court in that counsel failed to furnish a brief containing a proper statement of the case. Counsel for appellant having ' moved the court to set aside the order of affirmance, at the same time calling our attention anew to what he designates as his supplemental brief — • it being in fact his written argument used on hearing — it has been, by a majority of the court ordered that the cause be reconsidered, without rehearing, although it is very difficult to see wherein the briefs of counsel comply with the rule as to matters referred to in the opinion of December 23, 1901, ante, p. 212. This determination to reconsider was made only out of abundant caution, on the court’s own motion, to' tbe end that no possible injustice should be done in the matter, and the order of affirmance was duly vacated.

Twenty alleged errors are assigned. We take up only those which are properly presented by the record and necessary to be considered and not waived.

The first and second assignments are not to be considered, first, because the questions objected to do not on their face seem to be such as can be injurious to any one, and, secondly, because no line or page of the 598 page transcript where the matter referred to can be found is given.

The third, fourth, fifth and sixth assignments are upon the ground that the witness Carl Schultz is not a party to the suit, and that the questions asked of him are incompetent, irrelevant and immaterial. He and others are in the answer charged with conspiracy with the plaintiff. The testimony was competent and material as tending to show his relation with the plaintiff and his connection with the property, he being a witness offered by the plaintiff to support her contention that the property was in fact hers. These points were not argued by counsel on the hearing. We find no error in the court’s action in reference to them.

From assignment No'. 7 it appears that counsel objected to the following question, asked of said witness Schultz upon cross-examination: “What were you charged with at that time, what were you arrested for?”, upon the ground that it was incompetent, irrelevant and not proper cross-examination. As far as we can discover from this very voluminous and cumbersome record, without any considerable aid from counsel, it appears that this witness of plaintiff voluntarily in part of his testimony stated that he had been arrested and that a certain affidavit, produced by him in evidence in this case, was for evidence in another case in which he had been under arrest, and having thus opened the door, it was not prejudicial, if error at all, for the court to1 permit counsel to ask the question complained of.

The same remarks apply to tbe eighth assignment, and, besides, no prejudicial answer was elicited.

The ninth assignment is not considered for the reason that it is not properly presented,- — it is not touched upon in the statement, oral argument, or supplemental brief.

The tenth assignment is not referred to in any of the argument of appellant.

As to the eleventh, twelfth and thirteenth assignments, suffice it to say that although it may be that plaintiff’s- objections were good, the matters are not presented properly and we need not consider them.

The court erred in overruling plaintiff’s motion, mentioned in assignment fourteen, to strike out the testimony of defendant’s witness, Miss Walsh, relative to the alleged relationship between plaintiff and the witness, Mary Schultz, as the testimony was hearsay and incompetent.

It was error for the court to strike out the testimony of Richard James (assignment fifteen) and the witness Myers (assignment sixteen), which tended to prove, in rebuttal, the reputation of Mary Schultz. The testimony was competent and should have been allowed to go- to the jury for what it was worth. If a witness shows himself to have been for a long time in a position, to know and hear what people say about a person in the community where such witness and such other person reside, and he has never heard the character of the latter questioned or talked about, this fact is evidence tending to prove good character of the person whose character is being examined into. If one live such a life as not to excite adverse criticism of good or bad people, it cannot be said that this person has aught else than a reputation for good character.

The court did not err in its ruling mentioned in assignment seventeén. There was admitted in evidence a receipt given by the deputy clerk of the district court for certain money alleged to have been paid upon a judgment, said to have been entered in another suit of Maul v. Carl Schultz and Mary Schultz. The court struck it out on motion of defendant. There is authority we know supporting appellant’s contention that the receipt was competent, as shown in the brief of appellant, (17 Am. & Eng. Enc. Law, 2d Edition, 860; McDonald v. Atkins, 13 Neb. 568, 14 N. W. Rep. 532), but we do not approve the same. It is no part of the duty of the. clerk of the district «court to receive money in payment of judgments entered in the records of the court of which he is an officer. If he should receive and afterwards appropriate to his own use such moneys, the sureties upon his official bond certainly would not be liable. He is not the agent of any party to a suit. His duties are fixed by law. It has been said by the courts, in opinions upon this ■question, that it has been a long established practice to pay money into the hands of the clerk to apply apon judgments, and we doubt not that it has always been the habit of judgment ■creditors to receive such money when tendered and to adopt and ratify the act of the clerk in entering such payments upon the judgment docket, but this will not, and does not, make his receipt legal evidence to prove that the judgment creditor got the money in any particular case.

The remaining assignments are waived and not argued.

Eor the reasons above stated, the order denying the motion for a new trial must be and is reversed, and the cause remanded for a new trial.

The appellant may not,'in this case, recover his costs on appeal ; and he shall pay all costs incurred by the respondent, except the cost of printing the last nine pages of his brief.

Reversed and remanded.

Me. Justice Pigott:

I concur.

Me. Chief Justice BeaNtly:

I concur with my associates in the opinion that prejudicial error was committed by the district court on the trial of this case. Had counsel of appellant presented the case to this court by filing a brief in conformity with the rules, I should have been in favor of reversing the order denying ber a new trial. Having failed to obey tbe rules, however (ante, p 213), plaintiff is not entitled to have the case considered. I think this order should be affirmed. I therefore dissenf from the order or reversal now made.


source: Caselaw Access Project

author: MR. JUSTICE MILBURN

license: Public Domain

text:
    WHIPPLE et al., Respondents, v. STUART, Appellant.
    (No. 1,369.)
    (Submitted November 14, 1901.
    Decided December 23, 1901.)

      Appeal — Evidence—Harmless Error — Partnership ■— Dissohvtion — Accounting—Partnership Property — Partners’ Eights —Natural Hay Grown on Government Land.

    1. Where, in an action for an accounting between the members of a firm engaged in operating a ranch on government land, defendant recognized that plaintiff had succeeded to the interest of defendant’s former partner, and that the lands had been used by plaintiff and defendant for the purposes of the business of both, error, if any, in admitting in evidence a deed from defendant’s former partner to plaintiff for her interest in such land on the ground that the grantor could not convey any title to the government land, was harmless.
    2. Where a ranch partnership agreement provided that the firm should continue as long as the parties could mutually agree, and defendant notified plaintiff that he would not consent to the buying of a bull which plaintiff desired to buy to improve the concern’s cattle, and defendant staked off 160 acres of the government land that had been used in the business, and notified plaintiff that he intended to hold the same as his own, the bull subsequently purchased by the plaintiff was not the property of the firm.
    S. Where a firm engaged in cattle raising fenced a ranch on government land, which they used in common for the purposes of the business, and defendant, one of the partners, staked off 160 acres of the land within the fences for his private use, and claimed the same as his own, such partner was not entitled to the natural hay growing on such 160 acres as against the other members of the firm, on the pretense that such natural hay was fructus naturalis on government- land, and therefore became the property of the first taker.

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

      AotioN by C. A. Whipple and H. D. Taylor against J. 0. Stuart for an accounting between the parties as partners. From a judgment in favor of plaintiffs, defendant appeals.
    Modified and affirmed.

      Messrs. Shober & Rasch, for Appellant.

      Mr. E. H. Goodman, for Respondents.
   MR. JUSTICE MILBURN

delivered the opinion of the court.

This cause is on appeal from the judgment, the appeal from an order denying a motion for a new trial having been dismissed. The cause was tried by the district court sitting without a jury.

Plaintiffs complained and alleged that they were at the time of the commencement of the action copartners with the defendant in the use, management and ownership of certain buildings and other improvements upon government lands, the possession of which lands they held for the use of the partnership business, and in the use, management and ownership of certain horses, mules, cattle, machinery, hay, one bull, etc.; that plaintiffs procured their alleged partnership interest in the lands and improvements by purchase from a former partner of the defendant, with his consent, and with the understanding with him that they should be his partners; that on February 11, 1898, plaintiffs and defendant had an accounting of the partnership affairs, whereupon it was found that plaintiffs owed defendant about $110, and that it was thereupon agreed and understood that the partnership should continue so long as plaintiffs and defendant could mutually agree; that thereafter, some time in 1898, defendant took exclusive possession of about 200 acres of said land, claiming to be the exclusive owner thereof, and refused to allow the plaintiffs to use' the farming implements and certain other partnership property formerly used in the operations of the ranch, thus requiring plaintiffs to buy Harness and machinery to carry on the business; that defendant refused to contribute any money for the care of their range stock, or to provide for any increase thereof, or for the care of the stock during the following winter; that defendant told plaintiffs that he did not care to and would not do anything to increase the partnership property, etc. Plaintiffs prayed for a decree dissolving the partnership and appointing a receiver to wind up the affairs of the alleged partnership.

Defendant denied all allegations of the complaint, except that he stated that “plaintiffs and defendant are joint owners in certain personal property consisting of horses, mules, cattle, and other personal property, and that this defendant is one-half owner of the same,” and admitted that there is an unsettled account between plaintiffs and defendant, and declared “that there will be found due this defendant, upon a full settlement and accounting, a large amount of money due and owing this defendant from said plaintiffs.” He further stated that plaintiffs “are in possession of said joint property in same manner as this defendant, and that this defendant is equally interested in the care and custody of said property as the plaintiffs;” that defendant has repeatedly demanded a division of said personal property, but that plaintiffs have always refused to consent to such a division being.made; and that defendant is anxious to have an accounting and a proper division.

All of the evidence is before us. Much of the appellant’s argument is devoted to alleged error of the court in receiving quitclaim deeds, a bill of sale, and other evidence as to the manner in which plaintiffs purchased their interest in the concern, referring particularly to the public land occupied by grantors of plaintiffs, including one Mrs. Hirt, from whom plaintiffs bought their interest in the ranch property and business; defendant contending that no interest or title in or to government land could be obtained by means of conveyance from any former occupant or pceupants. Defendant, in his testimony, says that he recognized that plaintiff Whipple had succeeded to the interest of Mrs. Hirt, and admits that the lands bad been used by .plaintiffs and defendant for tlie purposes of the business of both; it is therefore immaterial, so far as the question of the relation between the parties in the business of all or any of them is concerned, whether plaintiffs had any title from the government or not, and the admission of the evidence does not affect the case in any way.

The court found all the issues in favor of the plaintiffs, and entered its judgment and decree accordingly.

There was sufficient evidence before the court — although it was conflicting — to sustain the court, except as to its finding concerning a certain bull, in its holding that the plaintiffs and the defendant were partners in the business mentioned, and that all the property mentioned in the decree, including the possession of said lands and all of them, was partnership property.

According to the terms of the agreement as testified to by plaintiff Whipple, whose statement the court found to be true, the partnership was to last as long after February 22, 1898 (averred in the complaint to be February 11, 1898), as the plaintiffs and the defendant could mutually agree. It seems to be a fact that about July 2, 1898, the defendant pointedly and decidedly notified plaintiffs by word and deed that he intended to hold as his own about 160 acres of the land which had been used in the business, and that he would not consent to the buying of a bull which plaintiff Whipple insisted must be had to improve the concern’s cattle. After this rupture of their relations, Ur. Whipple bought the bull. As a matter of law, the court erred in holding the animal to be partnership property, it having been bought after the partnership ceased.

It is alleged that the court also erred in law in holding that the natural hay growing upon the 160 acres of land which defendant, on July 2, 1898, declared he proposed to hold, he having a little while before stated it off for his own private use, was partnership property. We think the court did not err in this matter. The land thus merely staked off by defendant lay within the'concern’s company fence, within which fence, and without which staked land, were the dwelling, stables and corrals belonging to tbe ranch property. It cannot be maintained that two persons, associated in business, having gone upon the public domain, and having inclosed sufficient land for their enterprise in the raising and keeping of live stock, and having built or kept up houses and corrals thereon, and protected by their partnership fence the grass growing upon the land, one of the parties may, against the will of the other, stake out a large part of the land within the fence, and lawfully appropriate to his sole and private use the grass thereon upon the pretense that it is fructus naturalis on government public land. This is not lawful, any more than that one of two- men, who-, having driven certain coyotes into an inclosure on public land, which the two by joint enterprise have constructed for the purpose of capturing coyotes in order to secure the scalp bounties, can lawfully round up all or any of the animals, and hold them as his private property, against the will of his associate in the business, merely alleging in defense of his act that the animals are ferae naturae. As between the parties, the grass fit for hay, protected by their joint efforts, was, the government not objecting, for the use of all the parties in the-ranch business, it being valuable property at the time of the withdrawal of the defendant.

We find no error in the record on appeal from the judgment, except as to the holding of the court as to the bull, and the judgment should be modified to decree the animal never to have been partnership property, but to be the sole property of the plaintiffs.

It is ordered that the judgment be modified as indicated in the foregoing opinion, and, when so modified, that the judgment- and decree be affirmed. Costs of appeal,to appellant.

Modified and affirmed.


author: PER CURIAM.- ME. CHIEF JUSTICE BRANTLY

text:
    STATE ex rel. HEALY, Plaintiff, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT, AND WILLIAM CLANCY, Judge Thereof, Defendant.
    (No. 1,764.)
    (Submitted January 6, 1902.
    Decided January 6, 1902.)
    Contempt— Certiorari — Application— Copy of Order Complained of — Rules of Supreme Court — To Whom Writ to he Directed — Dismissal—Costs.
    1. Where an affidavit applying for a writ of review does not set forth a copy of the order complained of, as required by Rule II of the Supreme Court, nor state any reason for such noncompliance, the application will be denied.
    2. Where the order sought to be annulled by certiorwri was made by the district court and not by its judge, a writ directed to its judge will be quashed, upon motion.
    3. Under the provisions of the Code of Civil Procedure, on the dismissal, at cost of relator, of a writ of review to review an order in a contempt proceeding, such proceeding being special, defendant is entitled to the fee paid by him for the judgment and minute entries included in nis return, and also for the expense of making the transcript, excepting certain pages consisting merely of recitals by defendant.
    Application for writ of review by tbe State of Montana, on relation of J. E. Healy, against tbe District Court of tbe Second Judicial District and William Clancy, judge thereof.
    Denied. Motion to tax costs allowed in part.

      Mr. J. E. Healy, in propria, persona.

      Messrs. Mcliatton & Cotter, for Defendant.
   PER CURIAM.-

— Application for writ of review. Writ denied for tbe reason that tbe affidavit upon which tbe application is made neither sets forth a copy of tbe order complained of, as required by Subdivision 3 of Rule II of tbe rules of this court, nor states any reason for such noncompliance.

Denied.

(Submitted March 27, 1902. Decided April 7, 1902.)

Ox MotioN to Tax Costs.

ME. CHIEF JUSTICE BRANTLY

delivered tbe opinion of the court.

Motion to tax costs. After the writ of review was denied, the relator renewed his application upon an amended affidavit which complied with the rules requiring such an affidavit to set forth a copy of the order complained of. Thereupon the writ was issued, but, at the instance of the relator, was directed to William Clancy, as judge, instead of to the district court. Upon the certified record returned to. the judge, it appeared that the purpose of the application was to have annulled an order made by the district court adjudging relátor guilty of contempt. This order was made during another contempt proceeding against J. Boyle et oil. for an alleged violation of a temporary restraining order in a cause entitled "Celestia Nixon v. Geo. W. Andrews et al.” The defendant having interposed a motion to quash the writ upon the ground that he was not the proper party defendant, and that it should have been directed to the court, instead of to him as judge, the order complained of having been made by the court, and not by the judge at chambers, the motion was sustained. The proceeding was also dismissed at the cost .of the relator, but no written opinion was filed. The relator has filed his motion to have taxed the costs claimed by the defendant, alleging that two items claimed in the memorandum filed with the clerk, namely, an item of $4 for expense incurred for copies of the minute entry and judgment used by the judge in the preparation of the record returned by him, and an item of $1 paid to the clerk of the district court for the certification of these copies, are not authorized by law.

The relator relies upon the case of State ex rel. Baker v. Second Judicial District Court, 24 Mont. 425, 62 Pac. 688, as determinatiye of his contention. It was held in that case that the successful party in ' a special proceeding is entitled, under Hie provisions of the Code of Civil Procedure (Sections 1851, 1852), to recover costs as a matter of course. That was an application for certiorari instituted in this court to have reviewed a judgment made and entered in the district court in a case entitled “Pfouts v. Baker/’ — an ordinary action, and not a special proceeding, — in which the plaintiff sought to recover from the defendant a balance due on account. In view of other provisions of the Code of Civil Procedure (Section 1943) and of the Political Code (Sections 872 and 4636), the conclusion was reached that in such cases no appearance fee can be collected from the defendant by the clerk of this court, and that no allowance can be made for the expense of the tran-scipt certified up by the clerk of the district court. The law "provides no fees for the duties performed by these officers in such cases. A distinction was pointed out, however, between that character of cases and those in which decisions of inferior courts in special proceedings are brought before this court for review in any other way than by appeal. Costs in cases of the latter class (that is, in which decisions of inferior courts in special proceedings áre brought before this court for review in any other way than by appeal) are governed by Section 1860 of the Code of Civil Procedure, and the same costs are allowed in such cases as in ordinary appeals. The order complained of in this proceeding was made in a contempt proceeding in the "district- coürt. Such a proceeding must be classified as a special proceeding (Code of Civil Procedure, Secs. 3470, 3472; In re Wellcome, 23 Mont. 259, 58 Pac. 711), and questions affecting costs must be determined by the rules applicable to the class of cases mentioned in Section 1860, sufra. The disbursements by a party for which he may recover costs on appeal are enumerated in Section 1866 of the Code of Civil Procedure. Among these are enumerated fees paid for certified copies necessarily used in the action or on the trial, and the reasonable expense of making transcript for the supreme court. The item of $1 charged by the district court judge as paid for the certification of copies included in his return is a proper charge, and must be allowed.

The transcript furnished by the judge consists of three pages of recitals made by the judge, and four pages of the certified copies of the judgment and minute entry mentioned. Por the expense involved in the preparation of the transcript of the certified copies he is entitled to recover his disbursements.- The recitals are not a necessary part of the transcript, and for the pages embodying these recitals no charge can be made. The item must therefore be reduced by the amount of $1.70, — the proportion of the expense required for the three pages for which no charge may be made.

It is therefore ordered that a deduction of $1.70 be made from the item of $4, and that the balance of the bill be allowed.

      0n March 13, 1902, the court made the following order:
      Pee Cuei4.ii : This application haying heretofore been regularly submitted to this court upon motion to quash the writ heretofore issued, and also upon the merits, as they appear from the return of the proceedings made by the judge of the district court.
      It is Okdeeed that the writ be quashed and set aside for two reasons: (1) Because the writ was directed to WTilliam Clancy as judge, whereas the order sought to be annulled was made by the district court and not by its judge;
      (2) because upon the merits as they are shown by the record it does not appear that the order was improperly made. [O. T. C.]


author: HoN. Fbabtk HeNRY, Me. Justice MilbubN: Me. Chiee Justice BbaNtly :

text:
    WYMAN et al., Respondents, v. JENSEN et al., Appellants.
    (No. 1,362.)
    (Submitted November 11, 1901.
    Decided January 8, 1902.).

      Fraudulent Conveyances — Action to- Set Aside — Complaint— Creditor — Lien — Description — Motion for New- Trial— Delay — Amendment—Appeal—Review.
    1 Where, in an action to set aside a conveyance oí both real and personal property as fraudulent toward creditors, the complaint does not show that plaintiff has a lien on such property, it fails to state a cause of action for such relief, and an objection to the admission of any ’evidence thereunder should, be sustained. ,
    2. In an appeal to a court of equity it is indispensable that the allegations of the bill be clear and exact in the statement of all material facts constituting the plaintiff’s cause of action.
    3. under Code of Civil Procedure (Compiled Statutes of 1887), Section 186, and Code of Civil Procedure of 1895, Section 1218, the mere garnishment of the fraudulent assignee of the stock of merchandise — capable of manual delivery — of the judgment debtor by the judgment creditor does not create a Hen on such merchandise.
    4. where, in an action by a judgment creditor to set aside an assignment by the debtor of real estate as fraudulent as to plaintiff, the complaint fails to givd the location of such real estate or any description thereof, other than that it does not exceed a specified value, an objection to the admission of any evidence should be sustained; the complaint failing to disclose a lien in favor of the judgment creditor.
    5. under Code of Civil Procedure of 1895, Section 1197, providing that a judgment becomes a lien on realty from the time it is docketed, a complaint by a judgment creditor to set aside his debtor’s conveyance of realty as fraudulent, which does not allege the docketing of the creditor’s judgment, is insufficient.
    6. under Code of Civil Procedure of 1895, Section 1174, providing that a motion for a new trial may be brought to a hearing on motion of either party, the delay of a party in bringing his motion for new trial to a hearing is not ground for denying the motion.
    7. where, in an action by a judgment creditor to set aside a fraudulent conveyance by the debtor, a judgment for plaintiff is reversed because of the insufficiency of the complaint, the trial court should permit plaintiff to amend.
    8. The ruling of the trial court upon an' objection to the introduction of evh ’ dence for the reason that the complaint does not state facts sufficient to constitute a cause of action — being a question of law arising during the trial — may be reviewed either upon appeal from the judgment Or from an order denying a motion for a new trial.

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

    ActioN by O. C. Wyman, G. H. Partridge and S. D. Coy-kenda'll, copartners, doing business linder 'the'firm name and style of of Wyman, Partridge '& Company, against Andrei? Jensen, and P. P. Atkinson,-individually and as assignee of Andrew Jensen. From a judgment for plaintiffs, and from an order denying'a new'trial, defendants appeal.''
    Reversed.

      Mr. M. M.' Lyter, Mr: A'.' C. Cormley• and Mr. Ransom Cooper, for- Appellants. • " ' '

      Messrs. Sanders & Sanders, Mr. Thos. B. Brady and .Mr. 'Bred. B. Dodge,Respondents-., ,¡ ■ : -5 • v

      The general rule is that an objection to the equity of the plaintiff’s claim, as stated in the bill, must be taken bv demurrer. This rule, says Justice Gray of the Supreme Court of the United States, “is so well established that it has been constantly assumed, and, therefore, seldom stated in judicial opinion.” (Farley v. Eitson, 120 U. S. 303-316, and cases there cited.) It is of course implied in the above holding that the subject-matter of the action is one of which the court may take equitable cognizance, and that it has jurisdiction of the parties. This being the case, then defects or omissions in the pleading sufficient to oust the court of jurisdiction of the particular case, may be and are waived by failure to demur or plead in bar. (Brown v. Lake Superior Iron Co., 134 U. S. 530-536; St. Paul & Sioux R. Co. v. Robinson, 41 Minn. 394; Ostrander v. Weber, 114 N. Y. 95; Orocker v. Dillin, 133 Mass. 91; Sherry v. Smith, 72 Wis. 339; Consolidated, etc. v. Coombs, 39 Fed. 25; McVey v. Manatt, 80’ la. 132; Beach on Equity Practice, Vol. I, Sec. 13 et seq.)

    The allegations in the complaint were sufficient to show prima facie that plaintiffs had acquired a lien or right. (Spooner v. Bay St. Louis, 44 Minn. 403; Renard v. O’Brien, 35 N. Y. 99-103; Dana v. Bank, 6 Marshall (Ky.), 219; Illinois, etc. v. Graham, 55 Ill. App>. 266; Young v. Clapp, 40 Ill. App. 312; Platt v. Cadwell, 9 Paige 386; Williams v. Hogeboom, 8 Paige 469; Cassidy v. Meacham, 3 Paige 311; Mariner v. Coon, 16 Wis. 490; Bank v. Spencer, 18 N. Y. 150.)
    In support of the claim of error in the admission of any evidence under the complaint, counsel for appellants cite Wilson v. Harris, 21 Montana, 374; as to this case, we respectfully ask that the court reconsider the decision in question for the reasons following, to-wit: That as stated in the opinion of Mr. Justice Pigott, the question presented was with this court one of first impression. That the construction given to the section in question negatives any real purpose, intent or design in the .enactment of it, and so far restricts it as practically to read it out of the Code. That such, construction is contrary to the construction given it by the courts of .the state from which it was adopted, and is contrary to the construction generally given to statutes of lite import by the courts of other states. That it establishes a rule of procedure singular to' the state of Montana, and out of harmony with and contrary to the spirit and trend of the decisions of this country with respect to' the enforcement of debts and obligations. (Roberts v. Landecher, 9 Cal. 261-267; Robinson v. Trevis, 38 Cal. 612; Kimball v. Richardson, Kimball Co., Ill Cal. 386-393; Rmentas v. Oreen, 57 Cal. 254; Walters v. Rossi, 126 Cal. 644; Drake on Attachment, Secs. 452, 453; Wade on Attachment, Sec. 338; Waples on Attachment and Garnishment, pp. 587-591; 14 Am. & Eng. Ency. Law, 755-6; Rood on Garnishment, Sec. 193.)
    The following authorities are to effect that by garnishment the court acquires jurisdiction of the res, that the property-in the hands of the garnishee, whether debt, credits or chattels, is in custodia legis and that a lien, equitable or inchoate, is acquired thereon. (Allen v. Hall, 5 Met. 263; Winner v. Hoyt, 68 Wis. 227; Maxwell v. New Richmond, etc., 101 Wis. 286; North Star Boot' & Shoe Co*, v. Ladd, 32 Minn. '381; Bethel v. Chipman, 57 Mich. 379; Moore v. Speed, etc., 55 Mich. 84; Northfield Knife Co. v. Shapleigh, 24 Neb. 635; American Cent. Ins. Co. v. Hettler, 37 Neb. 849; Wilder v. Weatherhead, 32 Vt. 765; Foche et al. v. Blum, 82 Tex. 436; Beamer v. Winter, 41 Kan. 596; State Nat. Banh v. Boainer, 39 La. Ann. 843; Buschman v. Hanna, 72 Md. 1; Carter v. Koshland, 13 Ore. 615; Western R. Co. v. Thornton, 60 Ga. 300; Barber v. Ferrill, 57 Ala. 446; Barton v. Spencer, 3 Okla. 270; In re Pech, 16 Nat. Bk. Beg. 43; Central Trust Co. v. Chattanooga, 68 Eed. 685; Brashear v. West, 7 Peters, 608; Mattingly v. Boyd, 20 How., 128; Cooper v. Reynolds, 10 Wall. 317; Mont. Nat. Bh. v. Mer. Nat. Bh.,- 19 Mont. 586; Opinion of Mr. Justice Hunt in Wilson v. Harris, 21 Mont. 405 ; State v. Lina-weaver, 40 Term. 51; Harris v. Mooney, 39 Conn. 37.)
    In modern practice, where the property is personal, the lien is usually acquired by garnishment or by service of copy of execution with notice. That tbis method is in this state sufficient as to property not capable of manual delivery or seizure, there is no question, whatever contention there may be is as to the effect, if any, of garnishment notice upon chattels that might be seized. Most of the cases above cited were creditors’ suits, and support the proposition that garnishment creates a sufficient lien. In many cases it is held that the filing of the bill is an equitable attachment and sufficient. (Wait on Fraudulent Conveyances and Creditors’ Bills, Sec. 68-75; Pierstoff v. Jorges, 86 Wis. 128; Ghardavoyne v. Galbraith Go., 81 Ala. 521; Livingston v. Pry Goods Go., 12 Colo. App. 320; Fechei-mer v. Hollander, 1 L. It. A. 368.) In New York, where garnishment is unknown, a lien is acquired on tangible property by the appointment of a receiver. (Kitchen v. Lowery, 127 N. Y. 53-60.) The court did not err in refusing to hear upon its merits defendants’ motion for a new trial and in its denial of same for laches. The motion in question was made 104 days after the settlement and filing of the statement. The statute required it to be made “at the earliest practicable period’’ after the filing of the statement. That there was an unusual delay is evident. Whether there was any excuse for the delay was a question peculiarly within .the province of the trial judge and the facts within his knowledge largely. A question of diligence is always addressed to the sound discretion of the trial judge. {Boggs v. Ciarle, 37 Cal. 236; Gliabot v. Tucker, 39 Cal. 434; Burlocle v. Shufe, 17 Pac. (Utah), 19; Kimball v. Parmelee, 29 Minn. 302; Gorman v. McFarland, 13 Tex. 237.)
    A court of appeal will not review a discretionary order unless there has been a manifest abuse of discretion. {Smith v. Smith, 51 Wis. 665; Third, etc. v. Loomis, 32 N. Y. 127; State v. Barrett, 40 Minn. 65; Griggsby v. Schwarz, 82 Cal. '278; Montana O. P. Go. v. Boston, etc., 22 Mont. 159; Eck-stein v. Calderwood, 27 Cal. 413 ; Boggs v. Clark, 37 Cal. 236; Descalso v. Duane, 33 Pac. 328; Woodward v. Webster, 20 Mont. 279; PoonY. Tesh, 131 Cal. 406.)
   Opinion, of tbe court by

HoN. Fbabtk HeNRY,

judge- of the Sixth judicial district, acting associate justice, in place of Me. Justice Pigott, disqualified.

This action was instituted by respondents to set aside and have declared void a certain deed of assignment made under the general assignment laws of this state, wherein the appellant Andrew Jensen purported to convey to Charles T. Hull, as-signee for the benefit of his creditors, all the lands, goods, chattels, accounts, notes, books of accounts, and demands of every description belonging to the said assignor, and which said property or the proceeds therefrom was at the time of the commencement of this action in the possession of P. P. Atkinson, the successor of said Hull as assignee; said Hull having died on the 1st day of May, 1897.

On the 20th day of December, 1897, the cause came on regularly for trial before a jury, and upon the introduction of evidence by plaintiffs (respondents) the defendants (appellants^ objected to the introduction of any evidence on the part of the jilaintiffs, for the reason “that the complaint did not state facts sufficient to constitute a cause of action, in that no equity was stated in said complaint.” This objection was by the court overruled, and subsequently the court made an order of reference, and the cause was sent to a referee, with directions to hear the testimony and to find upon the questions of fact, to make conclusions of law, and report the same, together with a judgment in the case.

Thereafter the referee made his findings of fact and conclusions of law, and reported the same to the court, together with a decree declaring said deed of assignment void, as having been made by the said Jensen with the intention to cheat, delay and defraud his creditors, and particularly the plaintiffs herein, and directing the said Atkinson, assignee, to' pay the plaintiffs out of the trust fund in his hands the sum of $4,112.68, with intetrest thereon at the rate of 10 per cent, per annum. This decree was signed by the court on the 15th day of January, 1898 ’ . ' :

Thereafter the defendants made a motion for a new trial, which was subsequently overruled by the court, and from the judgment and order overruling the said motion these appeals are prosecuted.

Did the trial court err in overruling defendants’ objection to the introduction of evidence?

In, an appeal to a court of equity it is indispensable that the allegations of the bill be clear and exact in the statement of all material facts constituting the plaintiff’s cause of action. It should show with reasonable certainty, the rights of the plaintiff, the manner in which he is injured, as well as, the material circumstances of the time, place, manner, and other incidents,— the particulars, in other words, — attending the alleged fraud because of which he seeks the assistance of the court; and in actions of this character it is essential that it disclose a lien upon the property sought to be subjected to the payment of plaintiff’s demand. The general creditor is in no position, merely because he is a creditor, to assail an alleged fraudulent sale by the debtor; and, if he seek the aid of a court of equity to enforce his rights, it must clearly appear that he has placed himself in a position to have the court enforce his rights in subjecting the particular property to the payment of his demands by the removal of obstacles fraudulently interposed, and that he is remediless in collecting his just claims in a court of law. While some of the authorities go to the extent, of holding that an attachment lien will not support a creditor’s bill before judgment is obtained, yet it is a necessary condition precedent to the right to be heard in a court of equity that he have a lien, and that fact must appear from his bill.

Among text writers, as well as in the decisions of courts, there is a general unanimity of opinion as to the attitude to be assumed by a creditor in pursuit of the property of his debtor, which he alleges has been fraudulently placed beyond his reach. All cases of this character proceed upon the well-settled principle that the judgment creditor, before he seeks the aid of a court of equity and solicits its assistance in enforcing his remedy by removing obstructions from bis path, bas complied with tbe essential requisite of having first secured a lien upon tbe specific property tbat be seeks to bave subjected to tbe payment of bis judgment. Before coining into equity be must exhaust bis legal remedy.

Briefly stated, tbe well settled doctrine abnost universally adopted by tbe courts is: Tbe creditor must first bave established bis charge or lien upon tbe property of bis debtor. Unless- be bas done so, a court of chancery will afford him no relief, and be has no right to question bis debtor’s disposition of it.

Bump on Fraudulent Conveyances, Sec. 535, states tbe doctrine in cases of this character as follows: “A faudulent transfer is valid against all persons, except those who- proceed to appropriate tbe property by due course of law to tbe satisfaction of tbe creditor’s debts. As it is valid against a simple contract creditor, such creditor cannot ask tbe aid of a court of equity to set aside tbe transfer; for it does not interfere with bis rights. Equity bas jurisdiction of fraud, but it does not collect debts. A creditor must establish bis demand at law, and obtain a lien upon tbe property, before tbe transfer interferes with bis rights, or be bas any title to claim relief in equity. No creditor can be said to be delayed, hindered or defrauded by any conveyance until some property out of which be bas a specific right to be satisfied is withdrawn from bis reach by a fraudulent conveyance.”

In Westheimer v. Goodkind, 24 Mont. 90, 60 Pac. 813, tbe learned justice delivering tbe opinion of tbe court uses tbe following language: “As soon, however, as be (tbe creditor) acquires a lien upon tbe specific property which was tbe subject of tbe sale, bis status is that of one who' bas brought himself, if tbe expression may be used, into privity with tbe property, and courts of law will then afford relief. After tbe exhaustion of legal remedies, tbe extraordinary jurisdiction of chancery may be invoked, either to reach assets which cannot be seized under a writ of execution or to remove a cloud upon tbe title to, or an obstruction standing in tbe way of legal process against tbe property, wbicb, if not removed, may prevent a sale at a fair price. But in any case, and in all cases, wbetber tbe relief sought be legal or equitable, tbe creditor or other person who, as plaintiff or defendant, would avoid a sale or transfer for tbe reason that it was made with intent to defraud him of bis demands, must have a lien or charge upon, or an interest in, the particular property wbicb be desires to have subjected to the payment of bis claim. As to tbe general creditor, such a sale is voidable, in tbe sense that when be shall have acquired a lien upon tbe property affected, but not before, tbe sale becomes inoperative as to him, not only from tbe date tbe lien was imposed, but ab initio.”

Did tbe plaintiffs in this case bring themselves within tbe rule we have stated by first securing a lien upon tbe property in tbe bands of tbe assignee ?

Among tbe many allegations of tbe complaint, it is averred that on tbe 4th day of March, 1897, in an action at law, tbe plaintiffs recovered judgment against tbe defendant Andrew Jens'en for tbe sum of $4,112.68, and that on said date an execution was issued thereon and placed in the bands of tbe sheriff for service, who on tbe 8th day of March, 1897, made the following return on said writ: “I hereby certify that I received tbe within writ on tbe 4th day of March, 1897; that I garnished Chas. T. Hull, who1 makes return annexed hereto; also made demand of Andrew Jensen to pay tbe same. He refused payment, saying be was unable to do so, as be bad no means of paying tbe same: I hereby return tbe within writ wholly unsatisfied.” The foregoing is tbe only allegation contained in tbe complaint touching tbe action of tbe sheriff under tbe execution and tbe return of said Hull. It does not appear what statements Hull’s return contained.

It also appears from tbe complaint that tbe principal property assigned consisted of a general stock of merchandise in Great Falls and Sand Coulee, and was at tbe time of tbe service of notice of garnishment in the possession of Charles T. Hull, assignee.

The complaint in this case, in respect to the allegations charging a lien upon the property in the hands of the assignee, is -almost identical with that in Wilson v. Harris, 21 Mont. 374, 54 Pac. 46. The character of the personal property sought to be charged with a lien is the same, as well as the method pursued in attempting to create a lien, and as to the sufficiency of the complaint is decisive of this case. After the thorough and ■exhaustive discussion of the third and fifth subdivisions of Section 186 of the Code of Civil Procedure, Compiled Statutes of 1887, by the justice delivering the opinion of the court in 'that case, it would seem that further discussion as to the legislative intent is unnecessary. We are of the opinion that the views therein expressed in no way conflict or are inconsistent with the other provisions of the attachment law, but are in ■perfect harmony with them, and that the conclusions reached by the court in its construction of said subdivisions are but the reasonable and logical deductions to be drawn from the language used. Said subdivisions are as follows: “Third. Personal property capable of manual delivery shall be attached by taking it into custody. * * * 'Fifth. Debts and credits and other personal property not capable of manual delivery shall be attached by leaving with the person owing such debts, or having in his possession or under his control such credits and -other personal property, or with his agent, a copy of the writ, and a notice that the debts owing by him to- the defendant, or the credits and other personal property in his possession or under his control belonging to the defendant, are attached in pursuance of such writ.’’

While these subdivisions provide the method by which a lien may be secured by attachment, and while in the case at bar the property was sought to' be charged under a writ of execution, the method to be followed under the two writs is the same. In "both instances property capable of manual delivery must be actually seized and taken into custody. Section 1218 of the Code of Civil Procedure contains tbe following provision: “AIL other property not capable of manual delivery may be attached, on execution, in like manner as upon writs of attachment." And as we have seen in Wilson v. Harris, supra, if no lien is created on personal property capable of manual delivery by the service of notice of garnishment, none certainly would attach on the same character of property on a writ of execution.

Manifestly it is the intent of the act to require the officer-charged with the execution of a writ to take personal property,., capable of manual delivery, into his custody. To what purpose-would the levy be made on a writ of execution if it was not taken into! the actual possession of the officer ? That he should, do so is self-evident from the very nature of the duty he is-commanded by the writ to- perform. If his possession is but constructive,- — obtained by service of garnishment, — while the-execution debtor or a third person has the actual possession of' the property, how will he be able to conduct a sale in conformity with the law, which requires him to expose the property to- t-he-view of prospective purchasers who- attend the sale ?

Section 1227 of the Code of Civil Procedure, among other-provisions, contains the following:0 “When the sale is of personal property, capable of manual delivery, it must be within view of .those- who attend the sale, and be sold in, such parcels-as. are likely to bring the highest price. * * * The judgment debtor, if present at the sale, may also direct the order’ in which property, real or personal, shall be sold, when such property consists of several known lots or parcels, or of articles, which can be sold to advantage separately, and the sheriff must follow such directions.”

- ■ The complaint contains no allegation that .at the time the-notice of garnishment was served the defendant Hull had in his possession any property which was not capable of manual-delivery.

- i The-service of notice-.of-garnishment under the circumstances, of: .this- case — if the return of the sheriff.-quoted.- -were .sufficient' to sbow such, service, would create no lieu upon the property of the debtor capable of manual delivery.

The complaint also contains an allegation that “the real estate conveyed by said assignment does not exceed in value the sum of $1,500.” This is the only reference that is made to the real estate conveyed by the deed of assignment. As to its description and location, we are left entirely to conjecture. It may be in the county in which judgment is alleged to have been rendered, or it may not. If one seek the aid of a court of equity against the real estate of his debtor, he must show a lien, by judgment at law or otherwise, on such real estate or an interest therein. The same necessity exists for the allegation-of fact showing a lien upon real estate as upon personal property. In this respect the complaint is likewise fatally defective in the lacle of averment of material facts that .charge the real estate with a lien. Before real estate can be charged with a judgment lien, it is absolutetly essential that the judgment be docketed,. — unless this is done, no such lien is created. There is n'o allegation in the complaint that plaintiffs’ judgment was docketed. The mere rendition of a judgment creates no lien. (Section 1197, Code of Civil Procedure; Creighton v. Hershfield, 2 Mont. 390; Sklower v. Abbott, 19 Mont. 228, 47 Pac. 901.)

Por the reasons hereinbefore stated, the complaint is wholly lacking in the averment of material facts absolutely essential to plaintiffs’ right of recovery, and the court should have sustained defendants’ objection to the introduction of evidence, for the reason that the complaint does not state facts sufficient to constitute a cause of action.

A motion for «a new trial was denied on the sole, ground, as appears from the order denying the motion, that the moving party was dilatory in presenting the motion. No consideration was given to the grounds of motion. The court erred in holding that delay in bringing on the motion for a hearing was a sufficient ground of denial of such motion. Either party has the privilege of calling up the motion; therefore the prevailing party cannot complain if the adverse party does not ask the court to bear the matter. The motion for a new trial should have been considered and decided upon the grounds of the motion. (Section 1174, Code of Civil Procedure; Sweeney v. Great Falls & Canada Railway Co., 11 Mont. 34, 27 Pac. 347.)

As the judgment, for the reasons given in this opinion, must be reversed, it' is unnecessary to consider the appeal from the order denying the motion for a new trial.

The court below should permit plaintiffs to amend their complaint to state a cause in equity, if they are able, in the light of the actual facts and of the law, as stated in this opinion to do so; and, as the reversal of the judgment, under the circumstances of this case, in effect reverses the court’s order denying the motion for a new trial, a new trial should be allowed, if plaintiffs amend as suggested.

Judgment reversed, and cause remanded for proceedings in accordance with the views above expressed.

Reversed and remanded.

Me. Justice MilbubN:

I concur.

Me. Chiee Justice BbaNtly :

I concur in the result, as well as in the method by which it is reached. Judge HeNry treats the question of the sufficiency of the complaint as arising upon the appeal from the judgment. I think this is correct, though, upon the record in this case, it makes no difference whether it be considered upon the one appeal or the other.

In a case in which the complaint wholly Jails to state a cause of action, the question of its sufficiency may be presented in this court for the first time by assignment in the brief, even though no attack has been made in the trial court by demurrer or otherwise. (Code of Civil Procedure, See. 685; Whiteside v. Lebcher, 7 Mont. 473, 17 Pac. 548; Garver v. Lynde, 7 Mont. 108, 14 Pac. 697; Quirk v. Clark, 7 Mont. 231, 14 Pac. 669.) Ini any case the same question may be presented upon appeal from the judgment when timely objection to the introduction of evidence is made in the court below, and exception is reserved and incorporated in a bill, as provided by the statute. (Section 1154, Code of Civil Procedure.) Such a bill becomes a part of the judgment roll, and upon appeal from the judgment the ruling may properly be reviewed. The question may also be presented in' a bill of exceptions, or statement on motion for a new trial. In the event this course is pursued, the sufficiency of the pleading may be examined, either on ap^-peal from the judgment after1 the motion is denied or upon appeal from tire order denying it. Under the provisions of Section 1736 of the Code of Civil Procedure as construed by this court' in Withers v. Kemper, 25 Mont. 432, 65 Pac. 422, the statement or bill of exceptions used on the motion is available on appeal from the judgment, equally as upon an appeal from an order denying a neiw trial, for the purpose of having this court review all questions of law arising during the progress of the trial. In this case a motion for a new trial was properly made upon a statement. It was denied on the sole ground that the defendants did not call it up for hearing as promptly as in the opinion of the court they should. This was clearly error*, for the reason that the successful party may not be heard to charge his adversary with laches in the prosecution of his motion, while it is his privilege under the statute (Section 1174, Code of Civil Procedure) to have the motion disposed of at any time after the statement or bill of exceptions has been prepared and filed. The ruling, however, was equivalent to a denial of • the motion on. its merits, at least in so far as mer.e questions of law were involved; and, so treating it, all the questions presented by the motion, other than those arising upon grounds properly addressed, to .the discretion of the trial court, such as' the question of the weight of .evidence and the like, are properly before us for review upon .the appeal, either from the order or from the judgment. In Voll v. Hollis, 60 Cal. 569, and in Griffith v. Gruner, 47 Cal. 644, the supreme court of California treated an order dismissing a motion for a new trial as equivalent to an order denying a new trial, and, upon appeal therefrom, reversed it upon the merits. While I think the strictly logical course would be to reverse the order denying a new trial when it is made upon a ground not involved in the merits, and to direct the trial court to pass upon the merits, as was done in Sweeney v. Great Falls & Canada Railway Co., supra, cited by Judge Henry, yet for all practical purposes the same result is reached by considering and determining all-questions of law arising upon the record, just as if the motion had been denied generally upon the merits. If, however, in such a case the motion should present grounds addressed exclusively to the discretion of the trial court, then this court could not consider them upon appeal from the order, but would, if it were necessary to consider them, remand the cause to the district court, and .require that court to' first .consider and pass upon them, as was done in Sweeney v. Great Falls & Canada Railway Co., supra. In the present case the principal question being one of law, it is properly before us either upon appeal from the judgment or from the order denying the motion.

Mr. Justice Pigott, having been of counsel, did not hear the argument, and takes no' part in this decision.


author: ME-. CHIEF JUSTICE BEANTLY

text:
    In re WEED.
    (No. 1,744.)
    (Submitted December 23, 1901.
    Decided January 13, 1902.)

      Attorney — Disbarment—Sale of Realty — Subsequent Transfer —Fraudulent Intent — “Or ’ Construed to Mean “and”— Deceit— Accusation — V erification.

    1. Compiled Statutes of 1887, Fourth Division, Sec. 200, declaring that any person disposing of land, and thereafter knowingly “or” fraudulently again disposing of it to another person, for a valuable consideration, shall be guilty of a felony, being designed only to prevent the defrauding of one or the other purchaser, should be read as if “and” instead of “or” were used ; and a petition in disbarment proceedings, alleging that respondent sold lands to petitioner, agreeing to convey on payment of the price in installments, after payment of part of which respondent deeded the land to another party, and subsequently refused to convey to petitioner, but not alleging that respondent intended to defraud anyone; that the second transfer was for value; that petitioner had tendered the amount still due, or that the subsequent transfer was such that respondent was unable to procure the title for petitioner upon tender of the remainder of the price,— did not charge a violation of the statute rendering respondent liable to disbarment, under Code of Civil Procedure, Sec. 402, providing that an attorney who is guilty of any crime, deceit, malpractice, or misdemeanor may be disbarred.
    2. The fact that respondent received payments after having conveyed to the third party, and did not inform petitioner of such conveyance, did not show that he was guilty of deceit; such action being entirely consistent with a purpose to obtain title for petitioner on payment of the full purchase price.
    3. under Code of Civil Procedure; Sec. 420, providing that the accusatiou in disbarment proceedings must be verified by the oath of some person that the charges are true, charges verified upon information and belief wil! not be considered, i
    ProceediNG for tlie disbarment of Elbert D. Weed, on accusations filed by Tbeodoire A. Mayer. The accused filed written •objections to the sufficiency of the charges.
    Objections sustained. .

      Mr. James Donovan, Attorney General, amicus curiae.

      Messrs. McConnell & McConnell, for Weed.
   ME-. CHIEF JUSTICE BEANTLY

delivered the opinion of the court.

On December 4, 1901, one-Theodore A. Mayer, appearing in person, in this court, presented a written accusation verified by his own oath, containing certain charges of fraud and deceit against Elbert D. Weed, a member of the bar of Montana, and asking for an order that the name of said Weed be stricken form the roll of attorneys and counselors at law. The accusation contains five separate counts. The first involves a transaction between the accuser and Weed', and charges, in substance, that on December 7, 1894, the said Weed made a written contract with Mayer, under the terms of which he sold and agreed to convey to Mayer 80’ acres of land situate in Lewis and Clarke county, for the sum of $800, upon payment by the latter of $125 down, $200 on or before January 15, 1895, $175 on oa’ before March 1, 1895, and $300 on or before December 1, 1895; that at the date of the contract Weed held the legal title to the land; that on April 17, 1895, Mayer made the payments of $200 and $175 which fell due on January 15 and March 1, 1895, respectively, and that the receipts, for these sums were dated as of the times at which the respective payments should have been madei; that Mayer did not have the contract recorded, for the reason that he had implicit confidence in Weed, and for the reason that he did not know this was necessary for the protection of his rights; that on or about April 2, 1895, the said Weed conveyed the land described in the contract to one Luther !F. Smith by deed which was put upon the records of Lewis and Clarke county on April 15, 1895; that Weed did not at any time notify Mayer that the land had been conveyed, but that, on the contrary, he received payments from Mayer amounting to $375 after the deed of April 2 was executed and delivered to Smith; that thereafter, on August 28, 1895, Weed wrote Mayer that he would be ready in a short time to make the title good; that Mayer did not learn of the transfer of the land by Weed until September 12, 1901, when one Jennie Smith Heath, as grantee of Smith, demanded from Mayer possession of the premises; that during áll the time after his said transfer to Smith the said Weed concealed the fact of the transfer, and led Mayer to believe that he would be able to convey to Mayer according to: the terms of their agreement; that during all of said time the said Mayer resided upon the land, expending large amounts of money and labor in improving it, having full confidence that he would finally receive the title thereto from Weed; that now he has learned that Weed is not the owner of the land and cannot convey it to him; that Weed refuses to refund to him the money paid under the terms of the contract; that he refuses- to convey the title; that Mayer has been compelled to enter into an agreement witb Jennie Smith. Heath, by which he occupies the laud as her tenant, and has thus lost* not only the amount paid Weed, but also the labor and money expended in improving the land; and that by reason of the lapse of time the said Weed cannot now be prosecuted for the crime thus committed. The remaining four counts contain charges growing out of transactions between Weed and other persons, some being charges involving’ his personal character, and others his honesty and integrity as an attorney and counselor at law. The allegations in the first count are verified upon personal knowledge of the accuser; the other counts are verified upon information and belief, and are not supported by sworn statements from the persons having knowledge of the facts. The accused, reserving his right to controvert the truth of the charges* as permitted by the statute (Code of Civil Procedure, See. 423), has filed written objections to their sufficiency to put him on trial. To the first count objection is made, among others, that it does not ■ charge the accused With any deceit, malpractice, crime, or misdemeanor, and, generally, that it does not allege sufficient to show the accused guilty of violating any of the provisions of Section 402 of the Code of Civil Procedure defining the causes for which an attorney and counselor may be removed from his office. The only objection made to the other charges is that they are verified upon information and belief only, and not 'upon the knowledge of the accuser or any other person. The sufficiency of the facts alleged in them to’ warrant an order of disbarment is not questioned.

The attorney general has appeared by request of this court as amicus curiae, and has filed a written argument in support of the charges. He concedes’ the contention of the accused that the accusation attempts toi present a cause which falls within the class contemplated by Subdivision 5 of Section 402, supra, and that if the facts alleged do’ not show the commission of such a crime or misdemeanor, or such acts of deceit as imply moral turpitude in the accused, the charge is not- sufficient, in substance, toi warrant an investiga-. tion. Two questions, therefore, must be determined: (1) Whether the charge in the first count is sufficient in substance; and (2) whether the. verification, upon information and belief only, as to the other counts, meets the requirement of the statute. We are of the opinion that both must be answered in the negative. ■ ■

1. The part of Section 402, supra,, pertinent to this discussion, is the following: “An attorney and counselor may be removed or suspended by the supreme court * * * (5) who is guilty of any deceit, malpractice, crime or misdemeanor.” The purpose and intent of this provision was considered by this court in the case of In re Wellcome, 23 Mont. 140, 58 Pac. 45, and the application to be made of it is stated thus-: “Subdivision 5 is broad enough in its language, and sufficiently comprehensive in substance, to embrace all public offenses, wheresoever committed, by attorneys, and to clothe the court with jurisdiction of an accusation imputing to an attorney the commission of any crime or misdemeanor wherever the offense of itself involves or the circumstances of its perpetration reveal the existence of moral turpitude, or the facts attending it evince such gross misconduct as exhibits his unfitness to' remain in the profession. The fifth subdivision, notwithstanding its ungrammatical construction, seems to have been enactetd ex industria, to the end that the court may purge the bar of those attorneys whose characters, as illustrated by the evidence esr tablishing the truth of the charges preferred, lack the attributes of morality which are an essential to admission, and which should be required as a continuing condition of the right to practice.’’ In other words, when an attorney is shown to have committed a crime or misdemeanor, attended by such circumstances as imply moral turpitude, or when he has been guilty of such gross misconduct falling short of actual crime that it must have been the result of a depraved nature or immoral habits, rendering him unworthy of the confidence of his fellow men, he should be deprived of the right to remain in the profession, just as the. right to enter it would have been denied him had he been shown to possess the same attributes of character at the time he applied for admission. This, construction was approved, and the reasons in support of it stated at some length, in a subsequent opinion upon another phase of the same case (In re Wellcome), reported in 23 Mont., at page 213, 58 Pac. 47, and was the basis of the final judgment therein (Id. 23 Mont. 450, 59 Pac. 445).

That no crime is charged in this count is clear. Section 200 of the Fourth Division of the Compiled Statutes of 1887, which were in force at the time the conveyance to Smith is alleged toi have been made, reads as follows.:

“Sec. 200. ' Any person or persons after1 once selling, bartering, or disposing of any tract or tracts of land, town lot or lots, or executing any bond or agreement for the sale of lands, or town lot or lots, who shall again knowingly or fraudulently sell, .barter, or dispose of the same tract or tracts of land, or town lot or lots, or any part thereof, or shall knowingly or fraudulently execute any bond or agreement to sell or* barter, or dispose of the same land, or lot or lots,. or any part thereof, to any other person or persons, for a valuable consideration, every such offender, upon conviction thereof, shall be punished by' imprisonment in the territorial prison not less than one year, nor more than five years.”

If we substitute the conjunctive “and” for the disjunctive “or” connecting the words “knowingly” and “fraudulently,” this section is made identical, except in the extent of the penalty, with Section 132 of the Act of the legislature of California of 1850 in relation to- crimes and punishments. Like many other provisions of our Codes, the section quoted was adopted from the California Act, though we find similar provisions among the criminal statutes of other states. The purpose of the legislation is to. declare it a felony toi sell, barter, or dispose of lands, or to make an agreement therefor, for a valuable consideration and with fraudulent intent, after having once sold them-, or made an agreement to. sell them, toi another.

The construction to be given1 to the phrase “knowingly or fraudulently” presents mora difficulty. Tbis is not encountered in the California Act, and disappears from our own if we read “and” instead of “or.” Under tlie former the offense was sufficiently charged if it was alleged that the second sale, bartering, disposition, or agreement was made with intent to defraud. (People v. Garnett, 35 Cal. 475, 95 Am. Dec. 125.) We think “or” should be read “and.” This conclusion is based both upon the history of the legislation and upon a consideration to be hereafter noticed. The California section was adopted from the statute of 27 Elizabeth, Chapter IV (People v. Garnett, supra.) The mischief sought to be prevented by the Act was, among others, a second disposition of lands already disposed of, with intent to defraud either tire first or second purchaser. By express terms, it designated the person to be injured by the fraud as either the first or second purchaser. The California statute as well as our own left this-to speculation. But the supreme court of California, having the section under consideration in People v. Garnett, supra, held that under a proper construction of it, in view of the mischief sought to- be remedied, the only person who could be injured was the first or second purchaser, and that it was sufficient if it be charged that the fraud was intended tci injure either. We may remark, in passing, that the California Act of 1850 was amended under the Code as adopted in 1872 (California Penal Code-, Sec. 533), and that the amended section was incorporated in the Penal Code of Montana of 1895 as Section 935. The purpose of the amendment was to make clear the designation of the person to be injured by the fraudulent sale.

The essence of the offense-, under all these statutes, is, however, a second sale of the same land, for value, with intent to defraud. The section (200) of the Compiled Statutes quoted is found in the chapter entitled “Offenses Committed by Cheats, Swindlers and Other Fraudulent Persons,” and the act denounced. by it as an offense is thus- classed with a number of offenses, each of which requires a specific fraudulent intent. The same is true of Section 935 of tbe Montana Code of 1895, referred to.

Looking, therefore, to the origin and purpose of the legislation, it seems clear that, in order to complete any offense falling within the purview of the statute, the second sale or disposition of lands must be made, not only with full knowledge of the prior conveyance, but also with a fraudulent — that is, a deliberately planned — purpose and intent to deceive, and thereby gain an unlawful advantage. This view would require “or” co be read “and.” It is strengthened by the additional consideration that, if the disjunctive be allowed to stand, with its ordinary signification, the statute would render every second sale of lands by the same person for a valuable consideration a felony, whether it be fraudulently made or not; for it is hardly conceivable that such a second sale could be made by the same, person without knowledge of any previous sale made by him. To illustrate: If A. should sell to B. by a good and sufficient deed, which was properly put on record, and then should sell to C., after fully informing C. of the former sale to B., A. would not be guilty of an offense, within the meaning of the statute’. This is the identical case considered in People v. Garnett, supra, wherein it was held that under such circumstances no offense was committed, because it appeared that there was no fraudulent intent.

While wa should, ordinarily, be reluctant, to say that the legislature did not intend to denounce as an offense an act which clearly falls within the letter of the statute, we do. not hesitate to do so when the act in question is in itself without harmful effect or tendency, and it is reasonably clear that the‘legislature did not intend to prohibit it. We shall therefore read the statute as identical in the particular mentioned with the California statute, and construe it accordingly.

To make out the offense, it must be alleged and proven: (1) That a sale and conveyance, or an agreement therefor, have been made; (2) that a second sale and conveyance, or an agreement therefor, have been made for a valuable consideration; .and (3) that such, second sale has been knowingly made, and with a felonious intent to defraud either the first or second purchaser.

The facts set forth in the first count of the accusation fall very far short of these requirements. So far as appears therefrom, there was no intent to defraud either Mayer or Smith by the transfer to Smith. The conveyance to Smith may have been upon conditions and stipulations preserving all of Mayer’s rights, or Avith such reservations as would enable Weed to procure title for Mayer upon a tender by the latter of the remainder of the purchase price. It is nowhere "alleged that the conveyance Avas intended to defraud any one, nor that it Avas for a valuable consideration. It is alleged that Weed has refused to convey the title to' Mayer; but this he had a perfect right to do, so long as Mayer A\ras in default in making payment under the contract. There is no allegation that a tender has been made, nor any reason stated by Avay of excuse. While aa76 do not wish to be understood as saying that the charges in such cases as the one presented should be made with all the technical precision required in an indictment or information, nevertheless the accused is entitled to' know with Avhat particular offense he is charged, so that he may have opportunity to meet it with his proofs. It is therefore incumbent upon the accuser to state, in substance, the crime upon proof of which he asks the order of disbarment to be made. -

The facts stated in- this count do not show any such deceit practiced by Weed as would warrant the conclusion that he is so far unworthy of confidence that he should be deprived‘of his, office. There is, as Ave have seen, an absence of any allegation charging directly that he is not now in position to obtain the title for Mayer, Avhenever the remainder of the purchase money is tendered and a deed demanded. The failure on the part of Weed to mention the transfer to Smith when the payments were made in April, 1895, is entirely consistent with a purpose then and still entertained by ,him to make good his agreement whenever he should he lawfully required to1 do so. Any repre-mentation then or afterwards made to Mayer tbat be would be able to convey the title, so far as the contrary appears from the charges, may have been perfectly consistent and truthful. Before this concealment could be held to be deceitful and fraudulent, it should appear that it was made in order to obtain the payments from Mayer, Weed knowing at the time that he had p-ut it out of his power to fulfill his obligations under the contract.

The gravamen of the charge seems to be the injury suffered by Mayer. It does not distinctly appear whether Mayer was in possession of the land at the time of the conveyance to' Smith. Therefore his rights and duties in the premises are not before us for consideration at this time.

2. The form of the verification of the accusation is as follows: “Theodore Mayer, being first duly sworn, on oath deposes. and says: • That he is the above-named petitioner; that he has read the foregoing petition, and knows the contents thereof; and that the facts therein stated are true of his own knowledge, except as to such matters as are therein stated upon information and belief, and as to those matters he believes it to be truei Theodore A. Mayer.” Specific objection is made to' it as to counts 2, 3, 4, and 5, on the ground that it does not meet the requirements of Section 420 of the Code of Civil Procedure. This section provides: “The accusation must state the matters charged, and be verified by the oath of some person to the effect that the charges therein contained are true.” The-language of this section is clear and explicit, and, construing it according to' its manifest meaning, the accusation must be-supported by the oath cf some one having knowledge of the-facts upon which it is based. .It requires but little consideration to arrive at the conclusion that the legislature did not intend that the time of this or the district court should be taken up with the investigation of charges based upon mere hearsay or rumor. Otherwise the way would be open to every discontented litigant to prefer a charge: against an attorney based upon information, _ and the result would be a serious interruption to tbe ordinary business of this court. Furthermore, every attorney would be liable at any time toi be called to account and subjected to- the annoyance of such proceedings against him, and thus be made to suffer in his reputation by reason of them. The accuser is not a party to the proceeding. Therefore the rule governing the ordinary verification of a pleading does not apply. Neither is there any analogy between this proceeding and an ordinary prosecution by a county attorney under his official oath. Here the law is put in motion by a private citizen, and, just as where an application is made to the district court by a private citizen for an order requiring the county attorney to file an information in a particular case (Penal Code, Sec. 1384), it may be invoked only by a statement of facts based upon knowledge. The provision in question was adopted from the California Codet The supreme court of that state has considered it in two cases, and the conclusion reached supports our view. (In re Hotchkiss, 58 Cal. 39; In re Hudson, 102 Cal. 467, 36 Pac. 812.) It was also considered somewhat by this court in the case of In re Wellcome, 23 Mont. 213, 58 Pac. 47, and the rule laid down in the cases cited was there impliedly approved.

3. As heretofore stated, the section of the Compiled Stafi. utes quoted was supplanted by Section 935 of the Penal Code of 1895. The latter section extends the penalty to a maximum of ten years in the state prison. Nothing said herein is to he construed as an intimation that a prosecution could or could not have been maintained after the adoption of the present Code for an offense committed while the older section was in force.

The objections are sustained, with leave to amend the accusation, in accordance with the views herein expressed, and attach a proper verification, within twenty days from this date; otherwise, the proceeding will be dismissed.