author: MR. JUSTICE MILBURN

text:
    ASHLEY, Respondent, v. ROCKY MOUNTAIN BELL TELEPHONE CO., Appellant.
    (No. 1,287.)
    (Submitted March 18, 1901.
    Decided April 22, 1901.)

      Telephones — Lease—Right to* Rémove Telephone — Forfeiture of Contract — Modification — Jury Question — Evidence— Credibility of Witnesses — Instructions — Tender — Mitigation of Damages.

    1. A telephone company leased a telephone to plaintiff under a contract requiring plaintiff to pay $16 per quarter in advance on demand, and authorized the company to terminate the contract and remove the telephone on default in payment by serving written notice on plaintiff, and providing that the contract could not be varied or waived except by a writing signed by the general manager of the company. Plaintiff did not pay an installment of rent on Saturday when it became due, on a demand by the collector of the company therefor, by reason of not having a check book, and the collector suggested that the payment be deferred till the succeeding Monday. On that day the plaintiff tendered the sum to the general manager, who informed him that notice of termination had been served at plaintiff's place of .business, and the telephone removed. Held, in an action against the company therefor, that it was error to refuse to instruct that the failure to pay the collector on demand authorized the company to forfeit the contract, unless the extension of time, if any, by the collector, was in writing, and signed by the general manager.
    2. Where the defendafit telephone company, in an action' for removing a telephone from a customer for a default in the payment of rent, contends that it had terminated the contract by service of notice before the plaintiff tendered the rent due, it is not error to submit the question whether the contract was terminated by notice, as authorized by contract, before the amount due was tendered, though the evidence is uncontradicted that it was so terminated, since the jury is the sole judge of the credibility of the witnesses testifying to the service of the notice.
    •3. Code of Civil Procedure, Sec. 3390, Subd. 3, requiring the jury to be instructed on all proper occasions that a witness false in one part of his testimony is to be disregarded in others, does not authorize such an instruction without limiting it to wilfully false statements as to material matters. >
    -4. Error, in giving such an instruction, in designating the plaintiff by name, ' and authorizing his testimony to be disregarded if he has testified falsely in any part of his evidence, is harmless error when a verdict is returned in his favor.
    5. Where a telephone company terminates a lease of an instrument on the alleged ground of a default in the payment of rent, and afterwards refuses a payment thereof on the ground of such termination, it is not necessary that such tender should be kept good by a deposit in court to authorize the lessee to recover for wrongful removal of the instrument.
    -6. Where an action is brought against a telephone company for continuing damages caused by an alleged wrongful removal of a telephone from a customer, the company may plead in mitigation of damages that it after-wards offered to replace the telephone on the payment of certain expenses by the customer, since the customer is required to do every act in his power to decrease the damages resulting from the wrongful act, and the acceptance of the telephone on such condition will not -prevent an action for the accrued damages.

      Appeal from District Court, Lends and Clarke County; H. ■C. Smith, Judge.

    Action by li. H. Asliley against the Rocky Mountain Beil Telephone Company, for damages caused by a breach of contract in removing a telephone rented to plaintiff. From a judgment in favor of plaintiff, and from an order denying a motion for new trial, the defendant appeals.
    Reversed.

      Mr. H. G. McIntire and Mr. S. H. McIntire, for Appellant.

      Mr. A. J. Craven, for Respondent.
    In the original contract no place ivas designated where the rentals should be paid. It ivas therefore alleged and proven that it- was the usage and custom of the company to receive its rentals at the place where its telephones were affixed. This did not contradict the terms of the contract, it interpreted the contract. (.I-Ielme v. Phil. Life Ins. Go., 100 Am. Dec. 623; 27 Vol. Am. Ene. pp. 807, 808, 834; Dockman v. Smith, 18 Am. Rep. 495; Civil Code, Sec. 2211; 1 Greenleaf Ev. Sec. 294; Destreham v. Louis Lumber Go., 40 Am. St. Rep. 265 and note; Bowman v. First Nafl Bank, 43 Am. St. Rep. 874 and note.)
    In the case at bar' the plaintiff rested quietly, depending upon the promise of extension thus made to him, or upon the withdrawal of the demand until the following Monday. It would be a fraud upon him, having thus acted, to deprive him of the benefit of the promise. The intent of the law is to prevent fraud, not to give it effect. Sect-on 2050 of the Civil Code was both law and equity before as well as after the adoption of the Codes. There is no pretense that there was any recision attempted of the arrangement made on the afternoon of January 5th, by which Mr. Ashley was to have until Monday to pay his rental. Written contracts varied by parol, if the nature of the modification is not such as the law requires to be in writing. (Beach Modem Law of Oonts. Sec. 77(1) The fact that the original contract provided that extensions of time or other modifications must be in writing, does not prevent the change by parol. (Beach, Id.) A waiver or extension of time of payment is a frequent illustration of the doctrine. (Id. Sec. 781; Jones Ev. Sec. 447; see further, Blood v. Goodrich, 24 Am. Dec. 121; Freiss v. Rider, 82 Am. Dec. 308; Langworthy v. Smith, 20 Am. Dec. 652; Davis v. Germaine, 1 Mont. 210; Beach on Oonts. Sec. 845; Bishop on Cont. Sec 795 ei seq. and Sec. 804.)
    As to the attempted defense in the pleadings and evidence that the plaintiff could have procured another telephone from defendant at the same rates, plus fifteen dollars or more installment charges. These so-called installment charges were only another form of the independent hack bill. Putting this sort of defense by analogy in a different setting: Supj>ose Mr. Ashley had a monopoly of horses in this country and hired a horse to Mr. Sommers for a specific journey. While the latter was en route Mr. Ashley forcibly and without right toolc the horse away from Mr. Sommers, but thereafter offered him the same; or a different horse, for the balance of the journey at a higher rate. Would Mr. Sommers be precluded from maintaining a suit for damages because he refused to accept the proposition? If Mr. Soanmers must accept the proposition and be subjected to the indignity once in transit, why not also a dozen times ? I contend that such acceptance would be a modification of the original contract by mutual consent and consequently a waiver of the previous breach, and that the general doctrine to the effect that one wrongfully deprived of employment or merchandise to which he has a right by contrae1-, should seek employment or similar merchandise from others, does not support the contention of appellant that the law compels him to modify his contract and seek or accept such employment or merchandise at higher rates, from the party who broke the original contract. In the case at bar it was not possible for plaintiff to obtain telephone service from any one but the defendant. (Sedgwick, Sec. 213; Gulf Ry. Go. v. Hodge, 30 S. W. 831; Whitmarsh v. Littlefield, 46 Hun. 418; llavemeyer v. Cunningham, 35 Barb. 515; Chisholm v. P. B. TÁfe Assurance Co., 70 N. W. 415.)
    As to the error in instruction numbered 10, given by the court: It was the law contained in the Codes. (C. O. P. See-3390, Subdiv. 3.) And the statute was borrowed intact from California, in whose jurisdiction there had been a line of decisions holding" that it was proper to follow the wording of the statute, and that the statute itself implied a willingness to swear falsely upon material matter. (Cameron. v. Wentworth, 57 Pac. 650, and cases there cited!) This rule of interpretation accepting the construction of , sister states has been followed almost uniformly in Montana, and was only departed from when not in harmony with the spirit and policy of our legislation and decisions, and for the strongest reasons. (Ole son v. Wilson, 20 Mont. 544.1 The only criterion of what the law is, is the statute, if we are fortunate enough to have one bearing’ directly upon the matter under consideration. And if a litigant requests an instruction and the court gives it in the language of that statute, what overpowering reason is it in this case which would induce the court to overturn precedent and multiply confusion by a decision to the effect that the statute does not state the law? Note how this doctrine of foreign ■ interpretation is reinforced in Stadler et al. v. First National Bank, and cases therein cited, 22 Mont. 203.
   MR. JUSTICE MILBURN

delivered the opinion of the Court.

This is an appeal from a judgment in favor of plaintiff and from an order denying defendant’s motion for a new trial. The action is for alleged breach of contract.

The complaint alleges that the plaintiff and the defendant -on April 10, 1894, entered into a written contract, which is set out at large in the complaint. This contract was for the use of a telephone belonging to the defendant company, for which use the plaintiff was to pay the sum of <$15 per quarter in advance and $1 additional for an extension bell, the rental all to be paid on the first day of each quarter. Among other filings, the contract provided: “Upon nonpayment of any sum due, * * .the lessor may terminate the lessee’s right immediately by written notice mailed toi or left at the aforesaid premises, and sever his connection, and remove the instruments.” It appears also that the rental was payable upon •demand, and, further, that the terms of the contract could not be varied or waived by any representations or promises of any ■canvasser or other person, unless the same-was in writing, and .signed by the general manager of the defendant company. On ■'Saturday, January 5, 1895, a quarter’s rent being due in ■advance on the 1st of said month, the collector of the defendant ■demanded of the plaintifl the sum of $16, which, on account <of the fact that the plaintiff did not happen to have his check book with him at the moment, was not paid; but upon the suggestion. of the said collector the payment thereof was deferred until the following Monday morning, at which time the plaintiff handed the full sum of $16, due as aforesaid on January 1st, to the superintendent and manager of the defendant company. This money was then and there refused, and returned to1 the plaintiff with the statement on the part of the superintendent that the contract of rental and use of the said teleplumc had been by him, in writing declared terminated, and the telephone removed, on account of default in the payment of the sum due on the first of the quarter; and that said notice in writing had been served by leaving it upon the premises of the plaintiff where,the telephone had been in use; the contract providing for such termination, and for such service of notice. Plaintiff alleged that the defendant’s telephone system was the only one in the city of Helena, where he was doing business. He sued for $1,900 damages, alleged to have been sustained by him through the falling off of his business at his livery stable, where the telephone instrument had been established under said contract. Plaintiff alleged his willingness, readiness and ability to meet all conditions of the contract in case the telephone had not been removed.

The defendant admits the making of the contract; denies that the sum of $16, due as aforesaid, was paid or tendered; admits that the said telephone was removed from the plaintiff’s place of business; but denies that the plaintiff was damaged. It alleged and offered to prove that in the same month of January, after the removal of the telephone in question, the defendant company offered, for the use of plaintiff, to put a telephone into' the place of business from which the former instrument had been removed, provided the plaintiff would pay to it the sum of $15, the cost of connecting the plaintiff’s place of business with the defendant’s system, such cost being necessary because of the fact that on or about the 1th day of the said month the right to the use of the poles near the plaintiff’s place of business had been by their owner taken away from the defendant, plaintiff presumably to comply with the 'same rules and conditions applicable to other customers of the company, but that this offer xvas refused by the plaintiff. This latter defense xvas stricken out by the lower court on special demurrer. Judgment was entered against the defendant for the sum of $500 and costs.

There are numerous assignments of error, only a few of Avhich Avill it be necessary to consider. The court refused defendant’s request for the following instruction: “If the jury believe from the evidence that defendant’s collector demanded of the plaintiff payment of the money due for such telephone seawice, and such payment Avas not then made, then the defendant-had the right to1 terminate said contract; and this is so even if such collector informed the plaintiff that he might make such payment at some subsequent time, unless the jury further believe from the evidence that the representation or promise of such collector, if any, xvas in writing, and signed by the general manager of the defendant company.” Under the terms of the contract the prayer for this, instruction should liaxm been granted.

Several assignments are based upon the interpolation by the court in its charge of the Avords “before any tender of the amount due,” and words of a similar import, the ground of the alleged error being that the evidence was undisputed that a notice in xvriting terminating the contract and service Avas served before the alleged tender was made. Inasmuch as the jury Avere the sole judges of the credibility of the witnesses who testified to the circumstances attending the alleged sendee of the notice and of the weight to- be given to their testimony, we cannot say that, in view of the peculiar facts connected Avith the whole transaction, they did not have the right to determine the question of service adversely to the defendant.

The defendant complains that the court erred in instructing the jury that “a Avitness false in one part of his testimony is to be distrusted in otliex*s; axxd if the jury believe that the witness IT. IT. Ashley, or axiy other AvitxieSs iix this case, has testified falsely in any part of his evidence given before- you, you should distrust- that witness as to other parts of his testimony.” For the reasons laid down in Cameron v. Wentworth, 23 Mont. 70, 57 Pac. 04-8, it was error to give this particular charge to the jury, notwithstanding the, language in Subdivision 3 of Section 3390 of the Code of Civil Procedure, which provides that the jury are to be instructed on all proper occasions “that a witness false in one part of his testimony is to be distrusted in others.” The words “wilfully” and “material” should be used in proper places in such instructions. The error in said instruction, so far as the special reference to II. II. Ashley, who is plaintiff and respondent, is concerned, was not prejudicial to him, the jury having found in his favor; and, lie being the respondent, we cannot consider or pass upon the same.

It is further assigned as error that the court refused to charge the jury that the tender alleged to have been made by the plaintiff the day that defendant claims to have terminated the contract and removed the telephone should have been “kept good, and paid into court for defendant’s use.” The rent was payable in advance, and was refused by the defendant. The manager of the defendant company declared that, he- would not. render service longer. By what rule or principle of law should the plaintiff have laid aside the $16 for the use of the defendant, when service, for which he should pay in advance, was positively refused? If the telephone had been put back immediately, then he would have owed in advance, and then ho would have been obliged to keep the money ready to pay, if refused for any reason by the defendant. When a tender is refused, by the party to whom it is made, and tlie0 contract is by him ignored, or declared terminated, it is not necessary for the other party to keep the tender good, or to make further tender. (McCormick Harvesting Machine Co. v. Markert, 107 Iowa 340, 78 N. W. 33; Williams v. Patrick, 177 Mass. 160, 58 N. E. 583, and cases cited; Hills v. Bank, 105 U. S. 319, 26 L. Ed. 1052; 10 Rose, Notes U. S. Reports, p. 295 ; and Schultz v. O’Rourke, 18 Mont. 418, 45 Pac. 634.) In Hills v. Bank, supra, the United States Supreme Court said:. “It is a general rule that, when the tender of performance of an act is necessary to the establishment of any right against another party, this tender or offer to perform is waived or becomes unnecessary when it is reasonably certain that the offer will be refused, — that payment or performance will not be accepted.”

The sustaining of the special demurrer to that part of the answer setting forth that the defendant had in said month of January, after the removal of the telephone and the alleged notice of termination of the contract, offered to put in a telephone for the use of the plaintiff at his barn, presumably at the same rates as agreed upon under the first contract, provided that the plaintiff would pay the sum of $15 for the expense of putting up poles, was error. The record does not clearly disclose the ground of the special demurrer, but we gather that it was on the ground of want of substance as a defense. Whether, if a motion to strike had been interposed on the ground that the matter was evidence in mitigation inserted in the answer, the motion should or should not have been granted, we do not decide, as the question is not presented. The offer as set out in the answer was not open to1 objection as a defense. Plaintiff’s counsel takes the position that to accept the offer 'would be a modification of the original contract and a waiver of the alleged breach. The offer, as it is pleaded, is not a modification. If it appeared on the trial to be in fact in such terms as to state or reasonably imply a waiver or modification, then, of course, it would not be incumbent upon plaintiff to accept. To accept telephone service from the defendant, if service was necessary to his business, and it could not be obtained except from the defendant (the defendant company having, as alleged in the complaint, a monopoly of the 'telephone business in Helena), would not necessarily be a waiver or a modification.

The authorities declaring it to be the law, long settled, that it is tlie duty of the injured party, if in his power, to take reasonable measures by which his loss may be less aggravated,, are legion. In the case at bar the defendant offered to prove, as aforesaid herein, that by expenditure of $15 the plaintiff could have avoided the alleged loss of $1,900. What was the duty of the plaintiff? Should he have accepted the offer? Mr. Sutherland in his excellent work on Damages (volume 1, p. 155), speaking of the duty of the injured party to reduce or prevent damages, says*- “A claimant of damages is bound to accept reasonable offers of the other party, or a third person, having direct reference to the subject of the loss, which would have the effect of reducing or preventing damage.”

A contract having been' broken by one party, the making of a new contract by the parties thereafter does not necessarily take away the right of action for damages for the breach of the first contract. (14 Am. & Eng. Enc. Law (Ed. 1890) p. 797, Sec. 14, and cases cited.)

A foreman was discharged as incompetent to hold his position as foreman, but was by his late employer offered employment in the same general line of business at the same compensation, and the defendant, sued for damages for breach of contract, offered to prove the tender of new employment; in the case (Squire v. Wright, 1 Mo. App. 172) the court held that while, strictly, such an offer might not have been a full defense, still it w7as admissible in mitigation of damages; citing Pond v. Wyman, 15 Mo. 175.

The judgment and order appealed from are reversed, and the case remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE BRANTLY

license: Public Domain

text:
    KIPP, Respondent, v. SILVERMAN et al., Appellants.
    (No. 1,303.)
    (Submitted March 21, 1901.
    Decided May 6, 1901.)

      Trover and Conversion. — Pleading—Motion to fitrihe — Notice —Redundancy — Evidence — Contract — Letters — Wiihesses — Refreshing Memory — Memoranda. — Instructions — Burden, of Proof — Trial—Cross-Examination.
    1. Notice of a motion to strike out part of an answer, set for hearing August 2d, but not called till the day of trial, in October of the same year, when both parties were present, was sufficient.
    2. "Where plaintiff alleged a wrongful levy on goods in possession of his agent, and the answer denied plaintiff’s ownership, justifying the seizure thereof on a judgment execution against the agent as the owner of the goods, a further paragraph of the answer, alleging the agent’s exclusive ownership, and that plaintiff was estopped from claiming any interest therein, because the goods were -m. an Indian reservation,, the rules of which forbade plaintiff from selling at said place, was redundant, and hence properly stricken out.
    3. Where plaintiff alleged a wrongful seizure of his goods in the hands of his agent, and the answer, denying his ownership, showed the agent’s exclusive possession, management and control thereof, a contract of agency between plaintiff and the agent was properly admitted to rebut the presumption of the agent’s ownership.
    4. "Where plaintiff alleged a wrongful seizure of his goods in his agent’s possession on an execution agaihst his agent as owner thereof, letters of plaintiff, ordering goods to be shipped and billed to the agent, with duplicate bills to himself, were not admissible, since they showed no title in plaintiff, and were, at most, extrajudicial declarations, consistent with plaintiff’s statement under oath.
    5. Code of Civil Procedure, Sec. 3375, provides that a witness is allowed to-refresh his memory respecting a fact by anything written by himself or under his direction at the time when the fact occurred, or when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing. Held, that a witness was properly allowed to refer to a memorandum of articles as shown in evidence by the sheriff’s return, on which the witness, before the trial, had extended the unit and gross cost price obtained by taking the prices from his cost book and price lists kept by himself, and adding the freight and insurance apportioned by percentage.
    6. Memoranda used by a witness to refresh his memory as to the cost of goods are no evidence of the value thereof.
    7. An instruction, in an action for damages for conversion of a stock of merchandise, that “the burden is on the plaintiff to show that at the times alleged he was the owner of, and entitled to possession of, the goods, etc., and that at said time defendant sheriff wrongfully and unlawfully levied on and sold said goods, to plaintiff’s damage; the burden is also on the plaintiff to show that the goods were of any greater value than $1,0U0, as admitted by the answer, and that he has expended any sum necessarily in endeavoring to recover said property or the value thereof,” — correctly stated the law on the issues of the ownership of the property and its value.
    8. Where plaintiff sought to recover damages for conversion of a stock of goods, apparently in the exclusive possession of his agent, &nd an instruction was given that the burden of proof was on the plaintiff to show his ownership, a further instruction that the burden was on the defendants to show that, at the time of the levy and sale constituting the alleged conversion, the property w-as owned by the agent,‘was erroneous, as conflicting with the previous instruction, and incorrectly stating the law.
    9. In all cases where there is an issue as to title the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of that of his adversary, therefore, the obligation rests upon him throughout to sustain this burden by a preponderance of the evidence.
    10. Errors of the trial court in limiting the rights of cross-examination are cured by the subsequent admission of the evidence thus sought to be brought out.
    11. Uuder Code of Civil Procedure, Sec. 3376, courts should mcline to extend, rather than restrict, the right of cross-examination.

      Appeal from, District Court, Teton■ County; D. F. Smith, Judge.

    Action by J oseph Kipp against J. Silverman and Sol Cohen, co-partners, and others. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.
    Reversed.

      Mr. Thomas E. Brady and Mr. J. G. Bair, for Appellants.

      Mr. M. M. Lyter, for Respondent.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of tbe Court.

Action for damages for a conversion of a stock of merchandise.

The complaint alleges, in substance, that on August 22, 1896, the plaintiff was the owner and in possession, of a stock of merchandise at Browning, in Teton county; that the defendant Zimmerman was then, and at the time this suit was begun, the sheriff of said county, and that all the defendants, except Silverman and Cohen, were sureties upon his official bond; that on or about August 18, 1896, the defendants Silverman & Cohen, having brought an action in the district court of Teton county against one A. B. Hamilton, and having caused an attachment to be issued therein, placed the attachment in the hands of Zimmerman for service, and instructed and directed him to levy upon the stock of merchandise as the property of said Hamilton for the satisfaction of the judgment which they sought in that cause; and that on August 22, Zimmerman, acting under this writ, wrongfully seized and took the property from the possession of the plaintiff, and converted it to the use of himself and the other defendants, to the plaintiff’s damage in the sum of $2,000. The defendants, answering jointly, deny the plaintiff’s title and possession; allege that the goods were the property of Hamilton; admit a value of $1,000; and justify the seizure under the attachment issued in the action of Silverman & Cohen against Hamilton. They also allege a subsequent recovery of a¡ judgment against Hamilton by Silverman & Cohen, and a partial satisfaction thereof by the proceeds of a sale of the property under execution by Zimmerman. The answer, when filed, also2 contained the following paragraph: “The defendants, further answering, allege it to be a fact that the said A. B. Hamilton was in the sole and exclusive possession of said stock of goods, had purchased the same in his own name, had them shipped in his own name, and was selling them and dealing with them without directions from any person, and was the sole owner thereof, and that he alone had license and permit to expose goods for sale at said place, and the plaintiff was es-topped from claiming any interest therein, or from dealing therein, or handling the same, in any manner; that said goods were upon an Indian reservation, and the said A. B. Hamilton was handling and selling the same as a licensed post trader at said place, and that the rules of the department covering Indian reservations forbade the plaintiff, or any person other than the said A. B. Hamilton, from selling any goods at said place.’’

Upon the filing of the answer, counsel for plaintiff filed a written motion asking the court to strike out this paragraph, on the ground that it was “immaterial, irrelevant, redundant, sham and frivolous.” The motion was noticed for August 2, 1897, or as soon thereafter as it could be heard, but was not called for hearing until October1 4, 1897, the date set for the trial. On that day the court heard and sustained the motion. Thereupon a trial was had, resulting in a verdict and judgment for plaintiff in the sum of $1,806.88, .with costs. The defendants have appealed from the judgment and an order denying them a new trial.

1. Error is assigned upon the action of the trial court in striking out the last paragraph of the answer, on the ground that the defendants had no notice of the motion, and also upon the ground that the matter stated manifested an attempt on the part of the defendants- to plead an estoppel, and therefore any defect therein could only be reached by demurrer.- There is no merit in the assignment. Manifestly, the notice of the motion given defendants was sufficient for a hearing on August 2. It was also sufficient for any date thereafter, provided it was called up at the first opportunity, and at a time when counsel for' defendants was present, as in fact he was, when the motion was heard; for the record shows that the motion was granted after argument by counsel for both sides. Indeed, we think the court would have been justified in striking out the paragraph upon its own motion, if brought to> its attention at any time before or during the trial. The matters alleged were clearly redundant. The truth of them, as pleaded, if admitted or established by the evidence, would not be defense by way of estoppel (Sweetman v. Ramsey, 22 Mont.323, 56 Pac. 361), but would rebut the claim of title by plaintiff, and were therefore admissible as evidence, under the denials in the answer. (Gallick v. Bordeaux, 22 Mont. 470, 56 Pac. 961.) Such was the theory of the trial court, for the defendants were pei’-mitted, both upon cross-examination of the plaintiff and in the introduction of their own evidence-, to go fully into the situation at Browning, and the relations sustained to the business by Hamilton.

2. The plaintiff testified, in substance, on direct examination, that he had had a store at Browning for two years or more prior to the date of the levy, and was the sole owner of it; that Hamilton was his clerk, and that one Haggerty was his head man and bookkeeper, with authority to buy and sell goods. On cross-examination he stated that lie had been running two stores upon the Blackfoot Indian reservation, but that, owing to a change of rules by the interior department, he could no longer do so; that, he thereupon employed Hamilton to run the store at Browning in his (Hamilton’s) name in order to evade tlie rules of the interior department; that, the goods shipped from wholesale houses were mostly shipped to plaintiff’s other store, about six miles away, and were sent from there to the Browning store; that some of them were shipped directly to Hamilton in his own name, all of those going to the Browning store being marked “Agency Store;” that plaintiff usually ordered and personally paid for all goods shipped; that, when Hamilton made out. orders for goods, plaintiff O. K.’d them all, but that Hamilton may have ordered some goods in his own name; that Hamilton managed the store absolutely when plaintiff was not there, extending credit and selling goods as he saw fit, as though the business was his own, but that he had no interest in the business other than as employee of plaintiff. Upon his redirect examination he was permitted to identify a written contract entered into between himself and Hamilton on June 15, 1896, under the terms of which Hamilton agreed to undertake the management of tlie store at Browning for one year as plaintiff’s agent, at a salary of $100 per month. He also identified several letters purporting to contain orders for goods for the Browning store, bearing date from June 11 to June 24, 1896, and addressed to various wholesale dealers at Helena, Mont., St. Paul, Minn., and other places. Most of them contained a request that the goods be billed and shipped to Hamilton, with a duplicate bill to plaintiff, and that they be charged to plaintiff’s account. In several instances it was explained that the plaintiff owned the store at Browning, but was permitted to have only one store upon the reservation, and it was necessary that his name should not appear on the bills sent to Hamilton. To these letters, he stated, his name was signed by his bookkeeper, Haggerty, who had authority to order goods in his name. Thereupon the contract and the letters were all admitted in evidence as exhibits to plaintiff’s testimony, over the objection of defendants, the grounds of objection to them being that they were immaterial and irrelevant, as not tending to establish ownership in plaintiff. The court, in overruling the objection, stated that unless it should be shown that the letters were actually sent to the firms to which they were addressed, and that goods were sent in obedience to the requests contained in them, they would be stricken out. Thereupon Haggerty was sworn as a witness, and, after stating fully the relation of Hamilton to the business of Browning, substantially as detailed by the plaintiff, testified that he wrote the letters and mailed them to the respective firms to which they were addressed, and that subsequently he wrote to these firms requesting that the letters be returned to him, which was done. There is no evidence in the record that any of the goods in the stock at Browning at the time the levy was made were obtained through any of these orders. At the close of plaintiff’s case, defendants moved the court to strike out all the exhibits. The motion was denied. The defendants now contend that the exhibits should have been excluded as immaterial.

The contract between plaintiff and Hamilton was properly admitted. It tended to show the exact relation between them in the conduct and ownership of the business at Browning, and to this extent to rebut and destroy the presumption of ownership in Hamilton arising from his apparently exclusive possession, management and control. The letters, however, should have been excluded. They did not, in themselves, tend to show title in plaintiff, nor were they so connected by other proof in the case with any of the goods in the stock as to demonstrate that plaintiff purchased any of the goods through them. Viewed in the most favorable light, they are, perhaps to be construed as extrajudicial declarations by tbe plaintiff consistent with bis statements under oatb. To a certain extent tbe-plaintiff was impeached by bis admissions that Hamilton was conducting tbe business in bis own name by plaintiff’s authority, and also that plaintiff bad stated to some of tbe Indians on tbe reservation that be bad no interest in tbe store. Tbe courts in some of tbe states bold that, after a witness has been impeached by previous statements inconsistent with bis testimony at tbe trial, be may be corroborated by evidence- that be has given tbe same account before. B-ut it is obvious that hearsay statements not under oatb can add nothing by way of confirmation to what tbe witness says under oatb. Tbe inconsistent statement casts an imputation upon bis credibility or memory, . and this cannot be explained or repelled by evidence of a previous consistent statement, no matter bow often it has been made. Such, in our opinion, is tbe better view, and tbe one more in accord with reason and authority. (2 Phil. Ev. (5th Am. Ed.) 814; 1 Greenl. Ev. Sec. 469; People v. Doyell, 48 Cal. 85; Reed v. Railroad Co., 45 N. Y. 574; McKelton v. State, 86 Ala. 594, 6 South. 301; Connor v. People, 18 Cola. 313, 36 Am. St. Rep. 295, 33 Pac. 159, 25 L. R A. 341.) To this ru)e one exception is recognized by tbe authorities cited. Where it is charged that tbe story of tbe 'witness is a fabrication, owing to an interest acquired in tbe result of tbe case subsequent to tbe time at which the statement in question was made, then tbe statement may be admitted, on tbe theory that it was disinterested, and therefore probably true. It is clear, however, that tbe plaintiff was prompted by the same motive at tbe time tbe letters were written as at the time of tbe trial; for, if tbe suggestion of counsel is correct that tbe motive of tbe witness at tbe trial was to shield Hamilton from tbe claims of bis creditors, this was only another step in tbe plan entered into at the time the contract was made, in June, 1896. Tbe exception stated, therefore, does not apply.

3. Tbe goods in controversy consisted of a great variety of articles such as are usually kept in a country store. Tbe witness Haggerty gave evidence as to their value. On cross-examination he ivas questioned particularly as to each item. In order to expedite the somewhat tedious examination, and to assist the memory of the witness, the court permitted him to use a memorandum of the articles as shown by the sheriff’s return already in evidence, upon AAdiich he had some time before the trial extended the cost price of each item by the pound, dozen, etc., and also the gross price. These cost prices he had obtained by taking the original purchase prices of the articles from his cost book and price lists kept by himself, and adding to them the freight and insurance, apportioned by percentage. He testified that he knew! the prices stated, and that the calculations Avere correct. Counsel excepted, and now assigns error, citing Section 3375 of the Code of Civil Procedure, AAdiich proAddes that “a Avitness is alloAved to refresh his memory respecting a faci< by anything Avritten by himself or under his direction at the time Avhen the fact occurred or immediately thereafter, or at any other time AAdien the fact Awas fresh in his memory and he knew that the same Avas correctly stated in the Avriting. * *” This provision is nothing more than a declaration of the common-law rule, and the memorandum used by the Avitness Avas clearly such as is permissible under it. The question for the. court Avas not Avhetlier the memorandum Avas primary evidence, but Avhetlier it was made under such circumstances that it Avould aid the memory of the witness in testifying to matters of wdiich he had knowledge. The fact that it was gathered from other memoranda kept by the witness Avas no ground of objection to its usé, it appearing that these had been made at or near the time the purchasers were made, and the prices paid Avere still fresh in the memory of the Avitness. (Calloway v. Varner, 77 Ala. 541, 54 Am. Rep. 78; Denver & Rio Grande Railroad Co. v. Wilson, 4 Colo. App. 355, 36 Pac. 67; Erie Preserving Co. v. Miller, 52 Conn. 444, 52 Am. Rep. 607 ; Com. v. Ford, 130 Mass. 64, 39 Am. Rep. 426; Marcly v. Shults, 29 N. Y. 346.) The evidence showing the original cost of the goods was not conclusive as to their value, but was competent both as to substance and as to the-manner of its production. The memorandum was also of material aid in expediting the hearing by enabling the witness to state the cost of each item, without stopping to make a calculation. It was within the discretion of the- court to permit this course.

4. At the close of the examination of this witness, the memorandum referred to was admitted in evidence over the objection of the defendants, for the jmrpose of showing- the cost of the goods. This ruling was clearly erroneous, though, perhaps, it did not result in prejudice to defendants; everything which it tended t,o show being already before the jury. The evidence was wholly incompetent and immaterial, and should have been excluded. So- far as the items of goods were concerned there was no controversy. The sheriff’s return showed what they were. The value of them depended upon the testimony of the witness, who spoke from knowledge upon that subject, and could not be shown by mere memoranda used by a witness as an aid to his memory.

5. Among the instructions submitted to the jury were the following paragraphs upon the burden of proof:

“The burden is upon the plaintiff to' show that at the times alleged he was the owner of, and entitled to the possession of, the goods, wares and merchandise in controversy, and that at said time the defendant John II. Zimmerman, as sheriff, wrongfully and unlawfully levied upon, sold and disposed of the said property, to the damage of the plaintiff. The burden is also upon the plaintiff- to show that the goods, wares and merchandise in controversy were of any greater value than one: thousand dollars, and that he has expended any sum necessarily in the pursuit of the said property, or in an effort to recover the same or the value thereof.
“The burden is upon the defendants to show that at the time of the levy and sale and disposal of the said property by the said John H. Zimmerman, as sheriff, the goods, wares and merchandise levied upon, sold and disposed of were the property of, and were owned by, A. B. Hamilton, the judgment debtor in the judgment upon which the execution ivas issued, under which the sheriff, John H. Zimmerman, claims to have sold and disposed of said property.”

The first of these instructions is a correct statement of the law upon the issues involved in the case, which are the ownership of the property and its value. In cases of this character, the plaintiff must recover, if at all, upon the strength of his own title, and not’ upon the weakness of that of his adversary. Therefore the obligation rests upon him to sustain this burden by a preponderance of the evidence; that is, he must show by a preponderance of the evidence that he has a right superior to that of the defendant, and that the value of the property or the interest therein in question is greater than that admitted by the defendant. Hamilton being apparently in the exclusive possession, and therefore prima facie the owner at the time the levy was made, the endeavor on the part of the defendants to show title in him was but one mode of meeting and rebuiting plaintiff’s claim, and, after presenting their evidence, they would be entitled to a verdict, if the whole of the evidence upon this issue did not show a preponderance in plaintiff’s favor. (Finch v. Kent, 21 Mont. 268, 61 Pac. 653.) The defendants were not under obligation to produce any evidence until plain-1iff had made out a prima facie case, and then to go no further Ilian to produce sufficient evidence, to show an equipoise. The burden, therefore, rested upon the plaintiff throughout. These are elementary principles, applicable to all cases where there is an issue as to title, whether the defendant asserts title in himself or in a third person.

The second paragraph quoted is not only in direct conflict with the first, but it is wrong in principle. By it the jury were told, in substance, that, unless the defendants could show title in Hamilton by a preponderance of the evidence, the. plaintiff must prevail.

6. Appellants have assigned in their brief many errors based upon rulings of the trial court limiting the right of the-■cross-examination of witnesses. In most instances these rulings, if erroneous, were cured by the subsequent admission of the evidence thus sought to be brought out. We shall not attempt to notice any particular instance. We deem it sufficient in this connection to say that the statute (Code of Civil Procedure, Sec. 3376) permits a wide range for cross-examination, and the courts should incline to extend, rather than Ko■ restrict, the right. Properly understood, the right extends, not only to all facts stated by the witness in his original examination, but to all other facts connected with them, whether directly or indirectly, which tend to enlighten the jury upon the question in controversy.

No point has been made, either in argument or the briefs ■of counsel, as'to the liability in this action of the defendants who are sureties upon the official bond of defendant Zimmerman. We therefore express no opinion upon that question.

The judgment and order appealed from are reversed, and the cause is remanded for a new trial.

Reversed and remanded.


text:
    STEVENS, Appellant, v. RAVALLI COUNTY, Respondent.
    (No. 1,380.)
    (Submitted March 21, 1901.
    Decided May 6, 1901.)

      Newspapers —■ Public Printing —■ Blanks — Newspaper Notice — Computation of Price — Special-Sized Blanks — Appeal — Questions Considered — Exhibits.
    1. Under Supreme Court Hule Till, Sec. 1, providing that any printed matter introduced in evidence in the trial court may be made a part of the record on appeal by being authenticated by a certificate of the trial judge, printed matter so introduced in evidence will not be considered on appeal unless certified to by the trial court.

      2. Where certain printed exhibits, material to the determination of a cause, are not in the record on Appeal, the findings of fact of the trial court will not be reviewed, since all the evidence is not before the court.
    3. Under Political Code, Sec. 4233, fixing the maximum rates for public printing, and providing a certain rate for printing blanks, and an increased rate for county warrants, with stubs, printed on bond paper, and providing an additional compensation for numbering and perforating road tax receipts, special poor tax, or other blanks requiring such additional work, the price to be paid for printing, perforating and numbering road tax receipts is the price for ordinary blanks, with additional compensation foi*'perforating and numbering, and not the special rate for county warrants.
    4. Under Political Code, Sec. 4233, fixing the maximum rate for public printing, and providing a reduction of a certain percentage for ail blanks of a certain kind in excess of 1,000, and providing an additional compensation for perforating and numbering blanks, the charge for perforating and numbering is not reduced because the number exceeds 1,000.
    C. NNhere a printer contracts to furnish blanks to a county for a certain percentage of the maximum rate established by Political Code, Sec. 4233, which provides that the standard of size used shall be iiat-cap sheets, 14 by 17 inches, the printer is not entitled to a special price for blanks not capable of being cut from flat-cap paper, since the extra expense of odd-sized blanks should iTave been considered by the printer in making the contract.
    45. Under political Code, Sec. 4233, providing that newspaper notices printed for the public shall be paid for by the folio, which shall be measured by taking the space occupied by 100 words of solid nonpareil type, a newspaper publishing sucn notices in larger type is only entitled to compensation for the number of folios which such notices would have required if printed in nonpareil.

      Appeal from District Court, Ravalli County; Frank U. Woody, Judge.

    Action by Janies E. Stevens against Ravalli county to recover compensation for county printing. Erom a judgment in favor of plaintiff for less tban tlie relief demanded, and from an order denying a new trial, plaintiff appeals.
    Affirmed on condition.

      Mr. George T. Baggs, for Appellant.

      Mr. James Donovan, Attorney General, for Respondent.

      Mr. Cornelius B. Nolan, Attorney General, prepared and filed for respondent tlie following brief:
    This Court lias repeatedly laid down tlie principle tliat where there is evidence to support a finding or verdict as an appellate court "it will not disturb the verdict or finding.
      (.Lincoln v. Radyers, 1 Mont. 220; Davis v. Blume, 1 Mont. 465; Vantilburgh v. Hamilton, 2 Mont. 415; Story v. Black, 5 Mont. 41; Kennon v. Gilmer, 5 Mont. 273; N. P. R. R. Co. v. Shimell, 6 Mont. 166; Budd v. Perkins, 6 Mont. 226;, Francisco v. Benepe, 6 Mont. 245; Diamond v. N. P. R. R. Co., 6 Mont. 586; Woods v. Berry, 7 Mont. 201; Fitschen v. Thomas, 9 Mont. 59; Hefron v. Mahoney, 9 Mont. 505; Quigley v. Birdseye, 11 Mont. 450; Merchants Bank v. Greenhood, 16 Mont. 430.)
    And this Court has on many occasions announced its adherence to the rule that where the evidence is conflicting the findings of a court or jury will not be disturbed. (Kleinschmidi v. Dunphy, 1 Mont. 124; Toombs v. Ilornbuckle, 1 Mont. 289 ;, Kinna v. Horn, 1 Mont. 598; Knox v. Gerhauser, 3 Mont. 276; Mont. Ry. Co. v. Warren, 6 Mont. 285; Beck v. Beck, 6 Mont. 286; Storey v. Maclay, 6 Mont. 496; Miles v. Hdsallr 7 Mont. 193; Ingells v. Austin•, 8 Mont. 336; Kennon v. Gilmer, 9 Mont. 110; Kircher v. Conrad, 9 Mont. 196; Anderson v. Perkins, 10 Mont. 160; Sweeney v. City of Butte, 15 Mont. 281; Cabbage v. Schultz, 16 Mont. 14; Felton v. West, I. M. Co., 16 Mont. 85; Reardon v. Patterson, 19 Mont. 233; McIntyre v. McCabe, 19 Mont. 334; Harrington v. B. & B. M. Co., 19 Mont. 415 ; Johnson v. Curtis, 21 Mont. 200; Sandford v. Gates, 21 Mont. 289.)' And in this case there being a con-, flict of evidence, even though the judgment appeared to be against the weight of evidence, this Court would not disturb it. (Ming v. Truett, 1 Mont. 329; Travis v. McCormick, 1 Mont. 349; Merchants’ Bank v. Greenhood, 16 Mont. 430.)
    A reference to the “Specifications of particulars in which the evidence is insufficient to sustain the findings and decisions of the court” will demonstrate that the motion for a new trial was based upon an alleged insufficiency of the evidence to support the particular findings. This motion for a new trial ivas denied. No abuse of discretion is alleg’ed or claimed on the part of appellant and as this is the only ground upon Avhich this Court Avould overrule and reverse an order refusing or-granting a new trial on the ground of the insufficiency of the evidence, the action of the trial court in this particular must also be affirmed. (Chavvin v. Yaliton, 7 Mont. 584; Landsman-v. Thompson, 9 Mont. 189; K-ibby v. Baker, 9 Mont. 399; Mattock v. Govghnoer, 13 Mont. 301; llaggin v. Baile, 14 Mont. SO ; Murray v. Iieinze, 17 Mont. 359 ; Marsh v. Morgan, 18 Mont. 19.)
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the Court.

On December 8, 189(!, the plaintiff and appellant entered into a contract with Ravalli county, through its board of commissioners, and under the provisions of Section 4233 of the Political Code, whereby he undertook to- do all printing for the period of two years from January 5, 1897, to January 5, 1899, and to furnish all record books, blanks and other similar supplies for which the county would be chargeable. His compensation was fixed at the maximum rates provided in the statute, less a discount- of 65 per cent, on legal blanks, 66 2-3 per cent, on publications, and 35 per cent, on blank books. On March 11, 1898, the board being convened in regular quarterly session, the plaintiff presented to it for allowance his account for work done and supplies furnished during the previous quarter. This account, among other items, included 1,500 road-tax receipts, bound in hooks, charged at $29; 2,000 assessment lists, each consisting of 6 different sheets, printed on both sides, and fastened together with tin staples, in the form of a booklet, charged at $247.20; a charge for the publication of the annual statement of the financial condition of the county in plaintiff’s newspaper, at $58; and a charge for the publication of the delinquent tax list for the year 1897, and a supplemental delinquent list for 1896, three insertions each, fixed at $202. The board having disallowed a substantial portion of each of these' and other items, the plaintiff appealed to the district court of Ravalli county. Upon a trial in that court without a jury, the plaintiff recovered a judgment of $12.21 2-3 more than he was allowed by the board, this amount being the result of a readjustment of the account by additional allowances upon some of the items, and a further reduction of the allowances made by the board on others. The plaintiff, beng dissatisfied with the result as to the four items above mentioned, moved for a new trial. The appeal is from the judgment and the order denying this motion.

It is urged by counsel for plaintiff that the finding of the court below upon each of the items mentioned is not sustained by the evidence, in these particulars: That the court found that the road-tax receipts furnished ivere eighth-sheet, blanks, printed on one side, numbered, perforated and bound, whereas the evidence showed them to be of the same grade and character as county warrants, as charged, and therefore that they should be paid for at the rate provided for county warrants, subject to book discount only; that it found the assessment lists to be half-sheet blanks, printed on both sides, and bound in sets of six, whereas, under the evidence, they wrore conclusively shown to be booklets or pamphlets, a form of supply not provided for in the statute, and therefore should be paid for as a special job, at a reasonable price, as charged, and not at the rate applicable to half-sheet blanks; and that the number of folios of straight matter and of rule or figure or open work in the two newspaper publications is arbitrary, and not founded upon any evidence in the record. After a careful examination of the transcript, we have concluded that the findings of fact upon these various items cannot be disturbed.

It appears from frequent references thereto by witnesses, and from statements in the brief of counsel for plaintiff, that the court below had before it as exhibits a sample road-tax receipt, an assessment list, and a sheet of fiat-cap paper, introduced to illustrate and explain the testimony of the witnesses, and as substantive evidence to show the size and character of the receipt and list. There were also introduced copies of the two publications in question, in the shape of clippings from plaintiff’s newspaper, for the purpose of enabling the court, using them in connection with other evidence on the subject, as to size of type, etc., to determine by measurement the number of folios for which plaintiff was entitled to. demand compensation from the defendant. An apparent attempt has been made to incorporate in the transcript what purport to be these original exhibits. We cannot consider them as such for any purpose, however, for the reason that they are not “authenticated by a certificate of the judge of the trial court thereon or attached thereto/’ as required by Section 1 of Rule VIII of the Rules of this Court. They are not identified in any way, and one of them (the assessment list) is not even attached to- the transcript, but is found lying loose among its pages. The sheet of flat cap is missing altogether. We do not doubt the statement of counsel as to the identity of those found with the record. We must nevertheless refuse to consider them, for we feel that we cannot safely disregard the rule, and determine the rights of litigants by reference to matters not properly before us. This leaves us without the means of determining whether the findings of the trial court in the particulars 'mentioned are supported by the evidence. The statute (Political Code, Sec. 4233), so far as is pertinent to this case, provides: “* *' * For every folio of one hundred words, or fraction thereof, not exceeding one dollar and fifty cents shall be paid for the first insertion thereof, and fifty cents per folio of one hundred words, for each subsequent insertion required by law to be made, and three figures or fraction thereof shall count as one-word. For ruled and figure work, not exceeding two dollars, per folio of one hundred words or fraction thereof, and fifty cents per folio of one hundred words for each subsequent insertion thereof, required by laiv to be made. That for the purpose of establishing a basis of measurement; the amount of space occupied by one hundred words, set in solid nonpareil type, thirteen ems pica in width, shall constitute a folio in measuring rule and figure oi* other open work. Printed blanks required by law to be printed for the several counties shall be furnished at the following rates: For blanks cut from flat cap paper, measuring fourteen by seventeen indies in size, and weighing not less than sixteen pounds to the ream, as follows: For eight [h] sheets printed on one side, two dollars and fifty cents for the first one hundred copies, and twenty-five cents for each subsequent one hundred copies, and twenty cents additional per one hundred copies, if bound. * * * For half sheets printed ■on both sides, nine dollars and seventy-five "cents for the first •one hundred copies, and sixty-five cents for each subsequent •one hundred copies. * * * When any number of blanks •enumerated in the above schedule exceeding one thousand shall be ordered, the price shall be twenty per cent, less than the prices named in the above schedule for each subsequent one hundred copies. County warrants with stubs, printed on bond paper, twenty dollars per thousand. Road tax receipts, special poor tax, or other blanks that are required to be numbered and perforated, two dollars and fifty cents per thousand extra. * * *A11 other blanks, books or printing not herein provided for shall be furnished and paid for at not to exceed the rates herein provided for similar blanks or printing. * * *” An inspection of the provisions, in regard to road tax receipts leads to the conclusion that they are to1 be considered as blanks, for they are classed with “special poor tax or other blanks.” They are, from their nature and use, required to- be printed with stubs, and to be “munbered and perforated,” as well as bound in hooks or tablets of suitable size for convenience, for they are used by the proper officer in the collection of this special tax upon personal demand; but they are nevertheless blanks, and are to be paid for as other ordinary blanks, with allowances for the extra work required to be put upon them. The only evidence pertinent in this connection was as to their size and how they were printed, and, as we have said, they must be taken to be, as found by the district court, eighth sheets, printed on one side only, and to be paid for accordingly.

Counsel insists that, though the finding of the court be sustained, nevertheless it was error not to allow for numbering and perforating for 2,000 instead of for 1,000, and half the thousand rate for the additioaial 500. In this we think the court was wrong. A fair construction of the provision referred to allows the charge for a less number than 1,000 at the full rate. The price of this item would therefore be arrived at as follows:

100 sheets ...................................................... ¥ 2 00
900 sheets at 23 cents per 100.................................... 2 20
500 sheets at 23 cents per 100.............................. ?1 25
Less discount at 20 per cent............................... 25 1 00
Binding 1,000 at 20 cents per 100..'......................... 2 00
Binding 300 at 20 cents per 100............................ 1 OO
Less discount at 20 per cent.............................. 20 80
Numbering and perforating........................................ 0 00
Total under statute.......................................... 13 55
Less discount under contract at 03 per cent..................... 8 SO
Net amount chargeable......................................, ¥ 4 70

This makes a difference upon this item of 30 cents in favor ■of plaintiff. As to the assessment lists, little need be said, as the only complaint made in connection with the allowance on them is that the court did not permit a charge for them as a •special charge. The main argument of counsel is that these were of such a size and shape that they could not be cut from flat cap paper. Into this matter of fact we cannot inquire. The policy of the statute is to establish a standard for measuring every kind and class of work necessarily called for in the .administration of county affairs, and to have it done under ■contract. The standard of size and weight of all blanks is the flat cap sheet, 16 pounds to the ream, and measuring 14 by II inches. The purpose is to prevent overcharges and constant resort to the courts to settle controversies. So, to save any question, a general provision is .added that “all other blanks, books or printing not herein provided for shall be furnished and paid for at not to exceed the rates herein provided for similar blanks or printing.” The possible losses in cutting and the •extra expense' of odd sizes should be foreseen and provided for in the contract. The maximum rates of compensation are •certainly liberal, as is evidenced by the liberal discounts under the contract; and if. the printer, in making his contract, stipulates for too low a price, he, and not the county, must suffer the loss. Otherwise the printing might be contracted and paid for without reference to the statute, at rates fixed by agreement between the board and the printer to meet their own peculiar views. The court allowed for this item $64.68, which we think was the full amount to which plaintiff was entitled; the mode of compensation being the same as in case of the road tax receipts, except that the separate sheets were treated as half-sheet blanks printed on both sides.

In mailing the estimate of the proper allowance for the publications, the court followed the'rule laid down in the statute. The folio provided for is the space occupied by 100 words set in solid nonpareil type, 13 ems pica wide. A part of the matter was set in nonpareil, but by far the greater part was set in bourgeois. The court allowed for so much space only as the matter would have occupied had1 it all been set in nonpareil. This was in accordance with the standard of measurement, and must be the rule of determining the amount charged for this class of work. Tor the reason already stated, we cannot say whether the district court made any error in its measurements, as the original exhibits are not before us.

The cause is remanded to the district court, with directions to grant a new trial unless within 10 days after filing of the remittitur form this court the defendant file with the clerk its consent, in writing, that the judgment be modified in accordance with the views herein expressed, in which event, and upou the entry of the judgment as modified, the judgment and order appealed from will be affirmed. The plaintiff will recover the costs of this appeal.

Remanded for a new trial nisi.


author: MR. JUSTICE PIGOTT

text:
    BURKE, Appellant, v. INTER-STATE SAVINGS AND LOAN ASSOCIATION, Respondent.
    (No. 1,296.)
    (Submitted March 20, 1901.
    Decided May 6, 1901.)

      Judgment — Conclusiveness — Collateral Attach — Jurisdiction — Presumptions — Waiver — Pleading — Sunmwns— Service.

    1. A reply denying “each and every material allegation” of the answer, is bad for uncertainty.
    2. An objection to a replication denying the "material” allegations of the answer, hot taken in the trial court, is waived on appeal.
    3. Where a complaint alleged "that the said note is now long past due and unpaid, that payment of the same has been frequently demanded, and that plaintiff is now the owner and holder thereof,” a judgment thereon by default is admissible in a collateral action, assuming that the complaint defectively alleged nonpayment of the note.
    4. A judgment which is merely voidable is not open to collateral attack.
    5. A judgment of the district court, having jurisdiction of the subject-matter of the action, unless void on its face or on inspection of the judgment roil, is not open to collateral attack.
    6. Upon direct' attack by appeal, the presumption that the court rendering a judgment by default had jurisdiction of the person of the defendant does not obtain; in such case the record must disclose the acquisition of jurisdiction over the defendant, otherwise the judgment will be reversed.
    7. Where a direct attack, other than by appeal, is made upon the judgment of a domestic court of general jurisdiction, the presumption that jurisdiction was nad of the defendant'**obtains, unless the record affirmatively shows the contrary, or that the defendant was at the time of service without the territorial limits of the court’s jurisdiction.
    8. An affidavit of service of summons made by a private person mdy upon direct attack, other than appeal, be falsified by evidence aliunde the record.
    9. An affidavit of service of summons omitted the statement that the person serving the same was over 18 years of age, as required by Compiled Statutes 1887, Secs. 71, 78, 80, providing by whom and how the service shall be made, what proof thereof shall be sufficient, and that ffom the timé of service of summons the court is deemed to have acquired jurisdiction, and to have control of all subsequent proceedings. Held, that a judgment rendered thereon was not void on its face, so as to be subject to collateral attack; the judgment roll showing no want of jurisdiction, but merely irregularity in obtaining it.
    10. Service of summons by one who was not of the age required by statute, though defective, would not make void or subject to collateral attack a judgment rendered by a court having jurisdiction of the’ subject-matter and parties, and keeping within the limits of its power.
    11. Service of summons on Sunday is not a nullity, but a mere5 irregularity, and a judgment based upon it is not void, but voidable (overruling liausivirth v. Sullivan, 6 Mont. 203).

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

    Action by John Burke against tlie Inter-State Saving’s & Loan Association for an accounting and to quiet title. From a judgment for defendant, plaintiff appeals.
    Affirmed.

      Messrs. Stanton & Stanton, for Appellant.

      Mr. James W. Freeman and Mr. Sol. Hepner, for Respondent.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

On July 15, 1892, the plaintiff delivered to- the defendant his promissory note of that day, and, to secure its payment, executed a mortgage on a lot in Great Falls, Montana. In his complaint he states, in substance, that- the note and mortgage have been fully paid and satisfied by him, but that the defendant refuses to surrender the noté or satisfy the mortgage, and retains them; that the defendant refuses to account to- the plaintiff, or to pay over to him an amount which the plaintiff alleges he has paid to the defendant in excess of the debt; and that the defendant claims an interest in the property mortgaged adverse to the plaintiff, hut that such interest, if any there be, is subject to the right and title of the plaintiff. Judgment is prayed for an accounting, and that the defendant be required to satisfy and discharge the mortgage and deliver to the plaintiff the note, to quiet the title of plaintiff as against the defendant, and for judgment in his favor for such sum as may be ascertained to be due. The defendant, by answer, denies that the note and mortgage, or either, have or has been paid or satisfied ; and pleads that the defendant has been the owner and in possession of the property so mortgaged, since the 14th day of September, 1894. The defendant demands judgment that the complaint be dismissed, and the defendant be decreed to be the owner and entitled to the possession of the property as against the plaintiff and those claiming through or under him. The plaintiff, by reply, denies “each and every material allegation in said amended answer contained.” There was a trial by jury, whose findings were set aside by the court. Findings were then made by the court, judgment was rendered releasng and discharging the plaintiff from further liability on account of the note and mortgage, and declaring that tire defendant has a good and sufficient title to the property, and quieting it in the defendant as against the plaintiff and those asserting any interest acquired by or through him. From the judgment the plaintiff has appealed. Many errors are specified. Some of them are not considered of sufficient importance to require, special notice.

1. The defendant suggests that the judgment should be affirmed because the reply is insufficient to raise an issue upon any of the allegations of new matter in the answer. This suggestion is based upon the ground that the plaintiff in his reply denies the “'material” allegations of the answer. Such form of attempted denial is bad, for the reason that it is equivalent to saying that the truth of such allegations as the court may decide to be material is controverted, thus rendering it impossible to determine from the reply what is intended to be traversed. Such a denial is at least uncertain. But there "was no objection in the court below to the form of the denial, and the cause was tried upon the assumption that the denial was sufficient. Conceding that a reply was necessary to frame an issue upon the new matter in the answer, the objection that might have been interposed to the denial therein contained was "waived. (Missoula Mercantile Co. v. O’Donnell, 21 Mont. 75, 60 Pac. 991.) To hold that the plaintiff, under these circumstances, must be deemed to have admitted the truth of the averments in the answer, would be palpably unjust.

2. To establish its title to the land, the defendant introduced in evidence the judgment roll in a cause entitled "Moritz Conhaim v. John Burke.” The roll disclosed that on October 16, 1893, Conhaim caused to be filed in the district court of Cascade county, Montana, his complaint in an action upon a promissory note alleged to have been made by Burke to him, and that on the same day a summons in proper form was issued; that thereafter the summons was returned and filed, together with the proof of service indorsed thereon as follows:

“State of Montana, County of Cascade.
“J. M. Burlingame, Jr., being duly sworn, says that I received the within summons on the 16th day of October, A. D. 1893, and personally served the same on the 13th day of November, A. D. 1893, upon John Burke, being the defendant named in said summons, by delivering to> said defendant, personally, in the said county of Cascade, a copy of said summons.
“James M. Burlingame, Jr.
“Service, $1.50.
“Subscribed and sworn to before me at Great Falls, Mont., this 13th day of November, 1893.
...... “F. B. Wilcox, Notary Public.”

The judgment roll further disclosed that the default of Burke was duly entered, and that on November 24, 1893, judgment by default was rendered and entered for the amount of money stated in the complaint and summons; the judgment reciting, among other things, the following: “In this action the defendant, John Burke, having been regularly served with process, and having failed to appear and answer the plaintiff’s complaint filed herein, the legal time for answering having expired, and no answer or demurrer having been filed, the default of the said defendant, John Burke, in the premises having been duly entered according to law,, upon application of said plaintiff to the court judgment is hereby entered against said defendant in pursuance of the prayer of said complaint.” Tile defendant proved that the property mortgaged was sold under an execution issued on the judgment, and that on the 28th day , of June, 1894, the sheriff executed his deed conveying the p)rop>erty to one Burlingame, and that Burlingame on September 14th. of the same year conveyed the property to the defendant in the present canse. To the introduction of the judgment roll the plaintiff objected upon two grounds: First, because-the court which rendered the judgment had no jurisdiction over the subject-matter of the action, for the reason that the complaint did not state facts sufficient to constitute a cause of action, in that it did not) allege nonpayment of the promissory note; and, second, because the court had no> jurisdiction over the defendant in that action, for the reason that he never appeared, “and the summons therein was not served by an officer -or a person over the age of eighteen not a party to the action, and for the further reason that the affidavit constituting the proof of attempted service of summons does not state that the affiant was of the age of eighteen, or any other age, at the time of such attempted service.” Plaintiff excepted to the overruling of the objections, and specifies the action of the court in that regard as error.

(a) Disposition is readily'- made of the objection that the judgment is void because the complaint is insufficient in substance. The action was upon a promissory note made by Burke to Oonhaim. After pleading execution of the note, the complaint proceeds: “That the said note is now long past due and unpaid; that paynnent of the same has been frequently demanded; that plaintiff is now the owner and holder thereof.” Conceding that the plaintiff was under the necessity of pleading nonpayment of the note, and assuming that the complaint in that regard was defective, nevertheless there was not a total omission of the material averment, but a mere imperfection of statement, which could have been reached only by special demurrer. This is a sufficient answer to the first objection. We prefer, however, to place our decision upon a broader ground, and, in order to do so, we shall assume that the complaint was lacking in the matter necessary to constitute the statement of any cause of action. The district court, of Cascade county, which rendered the judgment in Oonhaim against Burlee, is a court, of record, and of general jurisdiction both legal and equitable. It lias jurisdiction of the class of cases to whichGonhaim against Burke■ belongs. It had jurisdiction, therefore, over the subject-matter of that action; it had authority, that is power, to grant the relief which it did grant by the judgment, and hence there was no excess of jurisdiction. A judgment which is merely voidable is not open to collateral attack. A void judgment is that which is a judgment in name or form only. Unless void on its face, or upon the inspection of the-judgment roll, a judgment cannot be successfully attacked collaterally. Upon collateral attack it matters not that such a court erred in determining any question of law or fact; the judgment is not thereby made void. The irregularity or error may be corrected, or the judgment avoided, on appeal, or on á proper and seasonable application to the court in which the action is pending; but it cannot be set aside or purged of error by any other mode. These principles seem to. be self-evident,, and the authority of adjudged cases supports them. (Altman v. School Dist., 35 Or. 85, 70 Am. St. Rep. 468, 56 Pac. 291; In re James Estate, 99 Cal. 374, 37 Am. St. Rep. 60, 33 Pac. 1122; 1 Freem. Judgm. Sec. 118; 17 Am. & Eng. Enc. Law (2d Ed.), 1069-1072, and cases there cited.)

(b) Upon direct attack by appeal, the presumption that the court rendering a judgment by default had jurisdiction of the person of the defendant does not obtain. Unless the record in some way discloses the acquisition of jurisdiction over the defendant, the judgment will be reversed by the appellate court. (Schloss v. White, 16 Cal. 65; Connoly v. Railroad Co., 29 Ala. 373; 1 Black Judgm. Sec. 93; 2 Freem. Judgm. Sec. 536.) "Where a direct attack, other than by appeal, is made upon the-judgment of a domestic court of general jurisdiction, the prima facie presumption must be indulged that jurisdiction was obtained of the person-of the defendant, unless the record affirmatively shows the contrary: provided it does not appear from the judgment roll that the defendant was at the time of sendee without the territorial limits of the court’s jurisdiction. Upon such direct attack, tire prima facie presumption of jurisdiction may be rebutted by competent evidence establishing the lack of jurisdiction over the defendant, — some courts rejecting evidence tending to' controvert the officer’s return of service, and others admitting it (as is the rule in Montana) for that purpose, but all agreeing that the affidavit of service of summons made by a private person may upon direct attack, other than appeal, be falsified by evidence aliunde the record. When, however, the judgment of a court of general jurisdiction, acting -within the ordinary scope of that jurisdiction, is assailed collaterally, the presumption of jurisdiction over the person of the defendant is conclusive, unless upon the face of the judgment roll a lack of jurisdiction affirmatively appears. A judgment, when collaterally attacked, must be tried by inspection of the judgment roll and by that alone. Those rules rest upon well-established principles.

By “collateral attack,” as the expression is used in this opinion, is meant every proceeding in which the integrity of a judgment is challenged, except those made in the action wherein the judgment is rendered or by appeal, and except suits brought to obtain decrees declaring judgments to be void ab initio. In the case at bar a judgment rendered by a court of record of general jurisdiction, which jurisdiction was exercised according to the course of the common law, is attacked collaterally. The judgment so rendered is asserted to b’e void upon the ground that the affidavit constituting the proof of the attempted service of summons does not state that the affiant was over the age of 18 years at the time of the service, and upon the ground that the defendant never appeared, and the summons was not served by a person over the age of 18 years, nor by an officer. It may be that the recital in the judgment to the effect that the defendant in the action of Gonhaim against Burlee had been regularly served with process is not in conflict with, but, upon collateral attack, must be deemed to supplement, the statements contained in the affidavit of service made by Burlingame (Pech v. Strauss, 33 Cal. 678; Vassault v. Austin, 36 Cal. 691; Alderson v. Bell, 9 Cal. 315) ; we are inclined to think that such should be declared to be the effect of the recital when the judgment is collaterally, or otherwise than in the action or on appeal, attacked, but we reserve a decision of this question, and shall, for the present at least, consider the affidavit of service as being the only proof in the record showing or tending to show jurisdiction of the person of Burke. The sole inquiry under the doctrines which we have announced is: Does the .judgment roll in Oonhaim against Burice affirmatively disclose that the court was without jurisdiction of the defendant therein? There is no controversy in respect of the validity of the summons. No question arises as to the process itself,— it was in all respects conformable toi law. The judgment roll in Oonhaim against Burke is not silent touching the jurisdictional facts, and for the purpose of this appeal we assume, for the time being, that the presumptions which the law raises in support of judgments of courts of general jurisdiction are not indulged when the judgment roils contain evidence with reference to the jurisdictional facts, but that the evidence alone, unaided by presumptions, is to be considered in determining whether jurisdiction existed, — although we think that the rule may, perhaps, be too broadly stated in Galpin v. Page, 18 Wallace 350, (21 Law. Ed. 959), for it does not seem unreasonable to us that, on attack other than by appeal, the presumption of jurisdiction over the person of the defendant ought to be indulged in favor of the judgments of such courts, except in those instances where the record, as a whole, affirmatively discloses want of jurisdiction, as was the case in Dietrich v. Martin, 24 Montana, 145 (60 Pac. 1087), or that the court was not “proceeding within the ordinary scope of its power exercised :aeeording to the general course of the common law; an example of the latter exception is a case in which the judgment roll shows that at the time of the service or attempted service of summons the defendant was beyond the territorial limits of the court’s authority, and does not contain evidence either of service upon him within those limits, or of his appearance. Dietrich v. Martin seems to be an example of the second exception, as well as of the first.

From the time tlie summons is served tlie court is deemed to have jurisdiction of the defendant, and lienee jurisdiction of the defendant in Conhaim, against Burlce was acquired, if acquired at all, by the fact that service was made upon him, not by proof of such fact. If be was personally served with summons within tbe state of Montana, jurisdiction was acquired. Sections 71, 78, 79 and 80 of tbe First Division of tbe Code of Civil Procedure of tbe Compiled Statutes of 1887 provide tbat tbe summons may be served by tbe sheriff, or by any other person over tbe age of 18 years, not a party to tbe action; tbat summons must be served by delivering a copy thereof to tbe defendant personally; and that proof 0f tbe service, when made by any person other than the sheriff, must be by bis affidavit showing the time and place of service; and from tbe time of service of summons tbe court is deemed to bave acquired jurisdiction of tbe parties or property, as tbe case may be, and to have control of all subsequent proceedings. The omission from tbe affidavit of Burlingame of tlie statement tbat, at tbe time he served tbe summons upon tbe defendant, be (Burlingame) was over tbe age of 18 years, is tbe defect which tbe plaintiff in tbe case at bar urges as fatal; be contends tbat thereby tbe judgment roll shows tbat the summons was not served by a competent person, and tbat therefor© the judgment is void upon its face. Tbe plaintiff fails to distinguish between a want of jurisdiction and an irregularity in obtaining it. Says Mr. Freeman in his work on Judgments: “There is a difference between a want of jurisdiction and a defect in obtaining jurisdiction. * * * The fact tbat defendant is not given all tbe time allowed bim by law to plead, or that be was served by some person incompetent to make a. valid service, or any other fact connected witb the service of process, on account of which a judgment by default would be reversed upon appeal, will not ordinarily make tbe judgment vulnerable to a collateral attack.” (Section 126.) Upon this subject, Mr. Black, in Section 224 of his treatise on the Law of Judgments, says: “Although tbe service of process in an action may have been characterized by some defect or irregularity, it does not necessarily follow that the ensuing judgment will be void. Bor, if the party would take advantage of such a matter, he must do so in the action itself, by soma proper motion or proceeding. It is only when the attempted service is so irregular as to amount to no service at all that there can be said to be a want of jurisdiction. In any other case there may be error in the subsequent proceedings, but they will be sustained against a collateral attack;” and in Section 263 he remarks: “We have already seen that defects or irregularities in the process, or in the manner of its service, are not sufficient to render the judgment void, unless the flaw or omission is so serious as to make the process equivalent to no process at all, or the service entirely nugatory, in which case the judgment fails for want of jurisdiction. It follows that the judgment of a court of general jurisdiction cannot be attacked collaterally when there has been some service of notice, although such service of notice may be materially defective.” In Dórente v. Sullivan, 7 California, 279, a case substantially identical with the one now under consideration was presented, and the court said: “It is contended that where service is made by any one other than an officer or his deputy, or a person appointed by the judge, the affidavit should show that the person serving the writ possesses the legal qualifications enumerated in the section; otherwise, any incompetent person might make the service. Granting this proposition, the objection only goes to the formality of the return, which might be amended by the officer. If the return is defective, the defendant must appeal from the judgment; a mere irregularity of service is not sufficient to enable him to attack the judgment collaterally.” In Peck v. Strauss, supra, the question was again presented and the court adhered to' the rule announced in Dórente v. Sullivan, and held, in addition, that the omission from the affidavit of service of a statement that the person serving the same was over the age of 21 was more than compensated by the recital in the judgment that the default of the defendant was duly entered. The like doctrine was announced in Drake v. Duvenick, 45 California, 455, and followed in Keybers v. McComber 67 California, 395 (7 Pac. 838). The same rule was declared in Herman v. Santee, 103 California, 519 (42 Am. St. Rep. 145, 37 Pac. 509). The Supreme Court of Mississippi, in Harrington v. Wofford 46 Mississippi, 31, said: “There is a very clear and obvious distinction between a total want of service of process and a defective service of process, as to their effect in judicial proceedings. In the one case, the defendant has no notice at all of the suit or. proceeding against him. The judgment or decree in such case, it is conceded, is coram non judice and void, upon the principles of law and justice. In the other case, the defective service of process gives the defendant actual notice of the suit or proceeding against him, and the judgment or decree in such case, although erroneous, would be valid until reversed by a direct proceeding in an appellate jurisdiction, and its validity cannot be collaterally called in question. And this view of the law is believed to be sustained by reason, principle and authority.” In Isaacs v. Price, 2 Dillon, 351, Federal Case No. 7,097, Judge Dillon said: “A distinction is to be made between a case where there is no service whatever, and one which is simply defective or irregular. In the first case the court acquires no jurisdiction, and its judgment is void; in the other case, if the court to which the process is returnable adjudges the service to be sufficient, and renders judgment therein, such judgment is not void, but only subject to be set aside by the court which gave it, upon seasonable and proper application, or reversed upon appeal. The error in the argument of the defendant is that it proceeds upon the ground that the judgment rendered upon the service made upon him was wholly void.” Many other cases to the same effect might be cited.

Inspection of the judgment roll in Gonhaim against Burke does not disclose a want of jurisdiction of the defendant in that action, and therefore the judgment may not be declared void on collateral attack. Assuming the Burlingame affidavit to have been the only proof of service, the court merely erred in adjudging the service regular.

3. iFrom what has thus far been said it is not to be inferred that we tacitly assume the judgment would be void if the roll affirmatively disclosed that Burlingame was less than 18 years of age when he served the summons, or if upon direct attack by suit in equity that fact were established by proof, nor can such an inference reasonably be deduced. When Burlingame, who was not a party to the action, delivered to Burke personally a copy of the summons, the latter was thereby notified of the pendency of the action, and of the fact that, unless he appeared, judgment would go against him; he was put upon inquiry, and such delivery was sufficient to subject Burke to the jurisdiction of the court, despite the fact that Burlingame was not of the age prescribed. The service, though irregular or defective, sufficed to accomplish the substantial purpose and object which the law designs the summons to perform. We are of the opinion that even if the judgment roll should exhibit the incompetency of Burlingame in the respect mentioned, or such incompetency were otherwise shown, the judgment for that reason would not be either void or subject to any attack save that by appeal. A judgment rendered by a court having jurisdiction of the subject-matter and of the parties, and keeping within the limits of its power, though it may be voidable, is never void. Jurisdiction of a defendant, when irregularly acquired, may be renounced as the result of - suitable proceedings seasonably taken in the action itself, or on appeal from the judgment; but jurisdiction irregularly obtained is nevertheless jurisdiction, — the power to hear, decide and adjudge, — and rvhen this exists the judgment cannot be void. This conclusion inevitably results from the principles announced in the former part of the opinion. Were it not for the case of Hauswirth v. Sullivan, 6 Montana, 203 (9 Pac. 198), we should content ourselves with the foregoing observations, and affirm the judgment appealed from without further remark; but that case, when tested by these principles, seems to us to be so manifestly wrong that we deem it not improper to indicate our views upon the principal point there decided. In the Hauswirtli Case the Supreme Court of the Territory of Montana decided that the service of a summons on Sunday was void, and that a judgment by default against the defendant, founded upon such service, was a mere nullity, although the sheriff’s return stated that the service was made on Saturday. It was held that the defendant might maintain a suit in equity to have the judgment set aside on the ground that the service was made on Sunday. We are satisfied that the doctrine there announced is erroneous. Service of summons on Sunday is not a nullity, but a mere irregularity with respect to the time or day on which it was made, and a judgment based upon it is not void. While perhaps not directly in point, Comer v. Jackson., 50 Alabama, 384, and Hammond v. Wilder, 25 Vermont, 342, strongly support this reasonable and just view. If the Hauswirtli Case announces the true rule of law, then titles acquired under proceedings based upon judgments by default are subject to attach at any time and must be declared void whenever it appears that the summons was served on Sunday; for example: In an action upon a promissory note the summons is sea-ved upon Sunday, but the return states that service was made on Monday; default is regularly entered, and judgment follows; sale is had under execution; title to the property professedly passes to A., who* conveys to B., and B. to C. In the course of time the value of the property increases enormously. The judgment debtor nowseelcs toi have the judgment declared a nullity for the reason, that the summons was served on Sunday, a non judicial day. Under the holding in the Hauswirtli Case the attack must be-successful, the judgment and all proceedings thereafter arenullities, and the judgment debtor has the title which by the execution sale professedly passed from him to the purchaser;, and, even if the summons had in truth been served on a day other than Sunday, it is possible to conceive of circumstances, in which, long after the judgment was entered and the sale •made, the contrary might be proved, thereby destroying that which, for aught the purchasers were able to discover, was a perfect title. Such is necessarily the logical result and effect of that decision, notwithstanding the remarks on page 213 (6 Mont., and page 804, 9 Pac.), touching the assignment of a void judgment, and the rights of “innocent third persons” upon ■execution sale under a judgment void ab initio. The law does not offer a premium for perjury, and should not permit mere irregularities, which have been waived by the only persons entitled to complain, to overturn solemn judgments rendered on personal service of summons. The serving of a summons is a ministerial act in aid of judicial proceedings. Service made on Sunday is voidable; it will be quashed or set aside when the proper motion in that behalf is promptly and seasonably interposed; but, like any other mere irregularity or imperfection, it may be waived. By inaction on the part of the person who might have sought toi be relieved of its effect, it is acquiesced in, cured or waived; it is then no longer voidable, and the privilege of taking advantage of it is forever lost. • So with the service of the summons in Conhaim against Burke: The defendant in that case had the right to move that the service be set aside, and the motion, if made, should have been granted, unless the affidavit were amended, or a new one filed, stating that Burlingame was over 18 years old at the time of service; and, perhaps, on appeal from the judgment, relief would have been obtained, although no such motion had been interposed; but Burke cannot otherwise, either upon collateral or direct attack, successfully impeach the judgment because of the irregular service, or because of the defect in the proof of service.

We are not advised of any other case in this state which announces a rule different from the one applied in the case at bar. Choate v. Spencer, 13 Montana, 127 (32 Pac. 651, 40 Am. St. Rep. 425, 20 L. R. A. 424), was, as the opinion states, a direct attack by a bill in equity upon a judgment based upon a summons not attested by the seal of the court from which it issued, and the judgment was for that reason declared void; the court holding that the paper purporting to be the process of the court was a nullity. Sharman v. Huot, 20 Montana, 555 (63 Am. St. Rep. 645, 52 Pac. 558), and Sharman v. Eukes (Id.), were appeals from orders discharging a writ of attachment on the ground that the supposed summons was not authenticated by the signature of the cleric, the court holding that the summons was a nullity, and that under Section 890 of the Code of Civil Procedure a writ of attachment which is issued before a valid summons is absolutely Amid, and not merely voidable. In Layton v. Trapp, 20 Montana, 453 (52 Pac. 208), it was held, on certiorari to review the judgment of a justice of the peace, that the service of the summons must be proved by the affidaAdt of the person making it, and, such an affidavit not having been made, the justice had no jurisdiction to' render the judgment by default. The court said that since the justice’s court is a court of inferior jurisdiction, and there are no legal presumptions in favor of its jurisdiction, its jurisdiction must affirmatively appear on the face of the record. Sanford v. Edwards 19 Montana, 56 (61 Am. St. Rep. 482, 47 Pac. 212), likeAvise involved the validity of a judgment rendered by a justice of the peace, the court holding that under the statutes then in force, providing that in actions before a justice of the peace summons must be served by reading it to the defendant personalty, or -by leaving a copy at his place of residence, the delivery to the defendant of a copy of the summons Avithout reading it to him, or leaving a copy at his place of residence, Avas not sufficient service, and that a judgment based on a return shoAving a delivery only was void. Palmer v. McMaster, 8 Montana, 186 (19 Pac. 585), is clearly distinguishable from the •case noAV before us, for, while the attack upon the judgment was •collateral, the judgment was based upon an attempted service of summons by publication, and in such a case the proceeding is not one in accordance Avith the course of the common law, nor in the exercise of the ordinary jurisdiction of the court. The judgment was declared void in the last named case upon the principles declared in Galpin v. Page, supra: “Whenever therefore, it appears from the inspection of the record of a court of general jurisdiction, that the defendant against whom a personal judgment or decree is. rendered was at the time, of the alleged service without the territorial limits of the court, and thus beyond the reach of its process, and that he. never ■appeared in the action, the presumption of jurisdiction over his person ceases, and the burden of establishing the jurisdiction is cast upon the party who invokes the benefit or protection of the judgment or decree. * * * When, therefore, by legislation of a state, constructive service of process by publication is substituted in place of personal citation, and the court upon' such service is authorized to proceed against the person of an absent party, not a citizen of the state nor found within it, every principle of justice exacts a strict and literal compliance with the statutory provisions.” It is apparent that the rule applied in that case is based upon a principle different from the one governing the case at bar.

The other assignments of error are without merit.

The judgment will be affirmed, and it is so ordered, Remittitur may issue forthwith.

Affirmed.