text:
    ANDERSON, Respondent, v. CARLSON, Appellant.
    [No. 1,244.]
    [Submitted May 22, 1899.
    Decided June 12, 1899.]

      Appeal — Briefs—Buies of Supreme Court — Dismissal.
    Where the brief of defendant does not contain specifications of errors, nor abstract, nor-statement of the case, as required by the Supreme Court, Rule 5, Subdivision 3, the appeal -will be dismissed.

      Appeal from District Court, Deer Lodge County; Theo. Brantly, Judge.

    Action by John Anderson against Charles Carlson. Judgment for plaintiff. Defendant appeals.
    Dismissed.

      Mr. J. S. Duffy, for Appellant.

      Messrs. Sawyer <& Walsh, for Respondent.
   PER CURIAM.

— The defendant appeals from a judgment-against him, and from an order refusing a new trial. The plaintiff moves a dismissal of the appeals upon the ground that the brief of the defendant does not conform to Subdivision 3 of Rule V of this court. Inspection of the brief discloses neither specification of errors, nor abstract, nor statement of the case. The appeals must therefore, under the authority of Gibson v. Hubbard, 22 Mont. 517, 57 Pac. 88, and of the cases therein cited, be dismissed; and it is so ordered.

Dismissed.

Mr. Chief Justice Brantly, being disqualified, took no part in this decision.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE BRANTLY,

license: Public Domain

text:
    STATE ex rel. STATE PUBLISHING CO., Relator, v. SMITH, Governor, et al., Respondents.
    [No. 1,394.]
    [Submitted May 10, 1899.
    Decided June 12, 1899.]

      Mcmdamus — Jurisdiction—State Oficers — Approval of Public-Printing Contract.

    a. Constitution, Article IV, Section l, prohibiting any one department of the state government from exercising any of the power? belonging to the other, does not prevent the courts from controlling by mandamus the exercise by the state executive of a purely ministerial duty.
    •2. Constitution, Article V, Section 30, provides that the state printing shall be done under contract, to be given to the lowest responsible bidder, under such regulations as may be prescribed by law, and that all such contracts shall be subject to the approval of the governor and state treasurer. Political Code, Sections 704-714, provides for the letting of the contract by a State Board of Examiners, of which the governor is made a member; Section 710 providing that all contracts made by the hoard must be approved by the governor and state treasurer. Held, that the duty of such offi.cers to approve a contract let by the board is not ministerial, but involves judicial discretion, and cannot he controlled by mandamus.
    Application by the state, on the relation of the State Publishing Company, against Robert B. Smith, governor, and Timothy E. Collins, treasurer, for mandamus to compel them to approve a contract for the state printing claimed to have been awarded to relator by the State Board of Examiners.
    Dismissed.

      Statement of the Case.
    This is an application by the State Publishing Company for a writ of mandate to require Robert B. Smith and Timothy E. Collins, as governor and treasurer, respectively, of the State of Montana, to approve a contract for the printing, binding, and distribution of the laws, journals, department reports,» and other documents for the State of Montana, which it claims was accorded to it by the State Board of Examiners.
    The affidavit alleges that on the 28th day of November, 1898, the State Board of Examiners advertised for more than twenty days, in two daily papers published at the seat of government, for proposals for furnishing and doing all printing and binding and distributing of the laws, journals, reports, and other printing and binding of all books used by any state department or officers, and did invite proposals therefor to be delivered to it on or before 12 o’clock noon of December 20, 1898, and further required each bid to be accompanied by a bond, as prescribed by law; that on December 20, 1898, upon the opening of said bids by the board of examiners, the said board found, and so declared, that the bid of the State Publishing Company was the lowest responsible and best bid for the said work; that the said board did thereupon award to it the contract for doing the said work, by means whereof then and there a contract was made between the State Publishing Company and the State of Montana for the doing of said work, upon the terms and conditions in said advertisement and bid set forth and declared; that the said Robert B. Smith and Timothy E. Collins were at that time, and ever since have been, respectively, the governor and treasurer of the State of Montana, and it then and there became and was the ministerial duty of them, and each of them, to approve the said contract; that although the bid of the relator was §1,000 less than any other, and the said contract was further reduced to writing, and was, with the bond filed by the State Publishing Company, in fact, and in the judgment of the board of examiners, valid and correct, in substance and form, and although both the bond and contract were held to be in compliance with the requirements of Section 708 of the Political Code [of Montana, yet the said Robert B. Smith, as governor, and Timothy E. Collins, as treasurer, well knowing that said contract ought to be approved by them, did assume to, and did, in form, disapprove of the same; that they did this with the intent and for the purpose that the contract might be let, and the work «done, by a person or corporation not in truth and -fact the lowest responsible bidder; that they did not disapprove of the contract because of any defect of form in it or the bond; nor because the said board had not decided that the bid of the State Publishing Company was the lowest responsible bid, nor because the contract had not been awarded to the State Publishing Company, but that their action in withholding their approval was arbitrary, without any reason had or given, and for causes beyond their jurisdiction and authority, which was -confined to an inquiry as to the. form of the contract, and whether it had been let by the board of examiners in conformity with the law; that meanwhile the said Robert B. •Smith, as governor, had ordered the State Publishing Company to do divers and sundry of said printing under said -contract, and that the said company, at his request and the request of the board of examiners, had proceeded to do a large amount of said printing, and was proceeding to carry •out the contract; that thereafter, and while the said company was engaged in carrying out the contract, the said Robert B. ¡Smith and Timothy E. Collins proceeded to examine the same .and, without having or giving any reason, disapproved of the same as aforesaid; that Thomas S. Hogan, secretary of the -State of Montana, has caused to be prepared copies of all laws and resolutions, with marginal notes, passed by the Sixth legislative assembly, and also copies of the journals kept, passed, and adopted at such session, with proper indexes of the same, as kept for the public printer, but that he will not deliver to the State Publishing Company or its agent the copies of the laws and resolutions, with proper indexes to the same; that on March 21, 1899, at the office of the Secretary of State, and during business hours, the State Publishing Company,, by its agent, demanded of the said secretary that he deliver to it the said copies, to the end that they might be printed under said contract, but that said secretary refused to so deliver them.
    The affidavit further alleges that, for the reasons stated, the State Publishing Company cannot proceed under its contract with profit to itself, as it might otherwise do; that it is entitled to have the contract approved, and was entitled to have it approved, on and before March 21, 1899, because such approval is specially enjoined upon the said governor and treasurer; and that it has no plain, speedy, and adequate remedy, in the ordinary course of law.
    Wherefore the writ is demanded, to the end that the said governor and treasurer be required to approve the contract, or to show cause why he should not.
    An alternative writ was issued, directed to the respondents, and requiring them to approve the contract as demanded, or to show cause before this court, on the 9th day of May, 1899, why they had not done so.
    The respondents moved to quash upon the following grounds:
    (1) That this court has no jurisdiction to issue said writ.
    (2) That the facts stated are not sufficient to constitute a cause of action, or to authorize the issuance of the writ, or to afford any relief to the relator in this proceeding.

      Messrs. Sanders <& Sanders, for Relator.

      Messrs. Carpenter <& Carpenter, for Respondents.
   MR. CHIEF JUSTICE BRANTLY,

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

The contract referred to in the affidavit was before this court for consideration in State ex rel. State Publishing Co. v. Hogan, 22 Mont. 384, 56 Pac. 818, decided on March 31st of this year. It was there held, under Section 30, Article Y, of the Constitution, that it is indispensable to the validity of such a contract that it be approved by the governor and state treasurer. The contention is now made by the relator that the duty of approval on the part of the governor and treasurer is purely a ministerial one, and we are asked to enforce the performance of it by mandamus. On the other hand, counsel for respondents deny the jurisdiction of this court to exercise any control, through the medium of this writ, or in any other manner, over the executive department of the state government; claiming that it is, under the constitution, an independent, co-ordinate branch of the government, with the functions of which we are forbidden by the constitution to interfere. Our attention is called to the provision of our constitution distributing the powers of the state government into the three distinct departments, and expressly prohibiting any one of them from exercising any of the powers belonging to the other. (Const. Art. IV, Sec. 1.) Similar provisions are found expressed in the constitutions of all the states. The provision is not expressed in the constitution of the United States, but it is held that the various departments of the federal government are as separate and distinct, and as independent of each other in their'operations, as are those of the state governments. (Marbury v. Madison, 1 Cranch, 137; Mississippi v. Johnson, 4 Wall. 475.)

The extent of the jurisdiction of the courts over the executive department of the government by mandamus has often been considered. By many courts it is denied altogether. Such courts hold that the executive is responsible, under his official oath, to the people only, and must be left to his own judgment and conscience as to how he shall discharge the duties of his trust. In other jurisdictions it is held that while he cannot be controlled in any way by the process of the courts in the discharge of those duties which are political and executive, involving the exercise of judgment and discretion, yet in the exercise of those powers and duties which are purely ministerial, and which might just as well have been enjoined by law upon some other person, he is as much subject to the control of the courts as any other officer. There is a great deal of learning in the books on this subject. The following authorities, with the references contained in them, fairly present the opposite views: High on Extra. Leg. Rem. Sec. 118 et sey; Merrill on Mandamus, Secs. 91 — 97; Wood on Mandamus (3rd Ed.) pp. 86, 87; Sutherland v. The Governor, 29 Mich. 320; People ex rel. Broderick v. Morton, 156 N. Y. 136, 50 N. E. 791; State ex rel. Robb v. Stone, 120 Mo. 428, 25 S. W. 376; Hovey v. State ex rel. Schuck, 127 Ind. 588, 27 N. E. 175.) It is not necessary in this case, however, for us to examine these authorities with the purpose of announcing a rule for this jurisdiction. In the case of Chumasero v. Potts, 2 Mont. 242, decided by our territorial supreme court in 1875, it was held that the governor could be compelled by mandamus to perform a ministerial act, as where it was made his duty, by statute, to sit as a member of a canvassing board to canvass the vote of the people upon the question of whether the territorial capital should be moved, and he refused to perform the duty. This case was followed by the subsequent case of Territory ex rel. Tanner v. Potts, 3 Mont. 364, decided in 1879, where it was held that mandamus was the proper remedy to compel the governor to audit and allow a claim of the relator for expenses incurred and for compensation while acting as a messenger, under the appointment of the governor, to bring a fugitive from justice, under a warrant of extradition from the state of Ohio to the territory of Montana. Again, this court, in State ex rel. Eaves v. Rickards, 16 Mont. 145, 40 Pac. 210, entertained jurisdiction upon an application for a writ of mcmdanvus to compel the State Board of Examiners, ex officio also the State Furnishing-board, of which the governor was a member, to let the state printing contract to the lowest responsible bidder. Though the writ was denied in this case, yet the application was tried on its merits. It seems that no question of jurisdiction was made, but this court proceeded upon the assumption that it had jurisdiction to try and determine the question presented, though the governor was a member of the board. We shall, therefore, assume here that the state executive, when acting in a ministerial capacity only, and in matters not involving executive judgment and discretion, may be controlled by this writ.

The constitution (Art. Y, Sec. 30) provides that “the printing, and binding, and distribution of the laws, journals, and department reports and other printing and binding * * * shall be performed under contract, to be given to the lowest responsible bidder, * * * under such, regulations as may be prescribed by law; * * * and all such contracts shall be subject to the approval of the governor and state treasurer. ’ ’

The regulations prescribed by law for the letting of the contract are found in the Political Code, Sections 704-714, inclusive. Sections 710 provides: “All contracts made by the board must be approved by the governor and the state treasurer. ’ ’

The relator contends that the provision of the constitution, supra, requiring approval by the governor and treasurer, and of the statute passed in pursuance of the constitution, imposes a merely ministerial duty upon these officers, and that their refusal to approve the contract is capricious and arbitrary, and therefore subject to review by this court. The use of the word ‘ ‘must’ ’ in the statute is construed by counsel for relator to mean that the obligation merely to approve rests upon them, and that they may not refuse to do so after the board has declared that a certain bid is the lowest responsible bid, and let the contract to the bidder making' it. It may be unfortunate that the governor was made a member of this board whose duty it is to let these contracts. It puts him in a position where he can refuse to approve the action of a majority of the board of which he is a member, and thus put his veto upon proceedings in which he takes part. Nevertheless his duty as a member of this board in relation to these contracts is statutory, while his duty in approving or disapproving the action of- the board is constitutional, and we are of the opinion that, under the provision of the constitution, it was designed that he and the treasurer should do more than approve in a ministerial way the action of the board in letting the contract. The expression, “shall be subject to the approval, ’ ’ implies that there may be a disapproval. The word “approve” means “to pronounce good; think or judge well of; admit the propriety or excellence of; be pleased with; commend.” (Cent. Diet. tit. “Approve.”) The constitution does not define the extent to which they must go in the investigation of the action of the board, nor does it require that they must act together or state any reason for their actions. Yet from the very fact that their approval is indispensable, under the constitution, the conclusion is irresistible that their action is designed to be a check upon the action of the board. This.is the implication from the terms used and the rule of construction that every word of the instrument should be rendered operative. State ex rel. Publishing Co. v. Hogan, supra. If this be true, in the discharge of their duty they must use their judgment and discretion as to all matters into which the board could or should inquire. This includes not only the pecuniary responsibility of the bidder, but his judgment, skill, ability, capacity and integrity as well. (State ex rel. Eaves v. Rickards, supra.) The governor having a general knowledge of the affairs of the state, and presumptively being fitted by his superior qualifications to pass judgment upon the action of the board, it was thought proper by the constitutional convention that he should give the taxpayers the benefit of his judgment and discretion. The treasurer being in a position in which he is presumed to be especially informed as to the condition of the state’s finances, it was thought proper to require the exercise of his judgment and discretion also. The ultimate.purpose was, by this system of counterchecks, to secure economy and prevent favoritism. It is not for us to say whether the provision is a wise one or not. These officers, acting within the sphere of their constitutional duties, are accountable, under their oaths, to the people only, just as aré the individual members of this court, and it is no part of our duties to inquire into their motives in withholding their approval from the contract let by the board to the relator. If- they have acted arbitrarily, if they have chosen to pervert the functions of their high offices to vile, partisan uses, or to the purposes of favoritism, as is suggested by the allegations in the affidavit, we have no power to restore their consciences, and bring them to a sense of their duty. The forum in which they are to be judged is the minds and consciences of the people, whose servants they are, and who alone can hold them responsible for the manner in which they perform their duties.

It boots nothing that the board has let the contract to some other person, as counsel for respondents say. If such be the case, we have nothing to 'do with such action here. It may have been lawfully or unlawfully done. However this may be, the fact cannot be allowed to influence the judgment of the court in this case.

We are of the opinion that the motion to quash the writ nisi is well made. Motion to quash sustained, and the application dismissed.


author: MR. JUSTICE HUNT

text:
    REYNOLDS, Appellant, v. FITZPATRICK et al., Respondents.
    [No. 1,098.]
    [Submitted April 25, 1899.
    Decided June 12, 1899.]

      Chattel Mortgage — Affidavit of Good Faith— Yerbal Mortgage Between Parties— Conversion — Pleadmg—Demand.
    1. A statement, signed by all tlie parties to a chattle mortgage, but the Jurat of which does not bear the signature or seal of the officer before whom it was sworn to, is not a sufficient compliance with Civil Code. § 8861, providing that chattle mortgages shall be void unless accompanied by an affidavit of all the parties thereto, or their agents or attorneys in fact, stating that the mortgage was made in good faith, and without any design to hinder, delay, or defraud creditors.

      Semble. — In an affidavit of good faith, the several words “hinder,” "delay,” and “defraud,” are essential to the validity of the mortgage .
    2. A verbal mortgage of chattels is as binding between the parties thereto as it would be if expressed in writing.

      3. R. sold personal property to C., and took a mortgage for tlie purchase price. After C. had paid a part of the purchase price, lie, with the consent of R., sold his interest in the property to H., who agreed to pay R. the balance of the price agreed by C. to be paid to R. Held, that it was not necessary that R. should have possession to convey title to H.
    4. A mortgagee can maintain an action of conversion against one who takes the mortgaged property from his mortgagor after default in the conditions of the mortgage, where the mortgage provides that the mortgagee shall be entitled to possession on default in the conditions of the mortgage.
    5. In an action for conversion it appeared that plaintiff sold certain personal property, and took a mortgage to secure payment, and, after the mortgagors had paid apart of the price, they, with the consent of the mortgagee, sold their interest to another, who orally agreed to pay the mortgagee the balance due, and accept the property subject to the terms of the mortgage. The mortgage was void as to creditors of the mortgagor, because not accompanied by an affidavit of good faith. The property was delivered by the mortgagors to the second purchasers, and it was thereafter levied upon by defendants in a suit by creditors of the former. The mortgage, by its terms, provided that the mortgagee should be entitled to the immediate possession of the property if attached by creditors of the mortgagor. Held, that it was error to grant defendant a nonsuit on the ground that plaintiff had no title or right to possession which would support conversion.
    6. A complaint in an action for conversion, which avers that plaintiff is the owner of the property described, states its value, and the acts of defendant which deprive him thereof, and asks damages, is sufficient, and need not aver that defendant did any wrong.
    7. In an action for the conversion, where the taking is wrongful, it is not necessary to allege a demand before the commenement of the action.

      Appeal from, District Court, Deer Lodge County; Theo. Brcrntby, Judge.

    Action by J. B. Reynolds against John Fitzpatrick and another, as sheriff and deputy sheriff. From a j udgment in favor of defendants, plaintiff appealed.
    Reversed.

      Mr. II. R. Whitehill, for Appellant.

      Mr. W. II. Trippet, for Respondents.
   MR. JUSTICE HUNT

delivered the opinion of the court.

This action is for damages for the conversion of certain personal property by the defendants as sheriff and deputy sheriff of Deer Lodge county.

Plaintiff stated his cause of action in two counts; in the first, after alleging the official capacities of the defendants, he set up that on August 23, 1895, Maddux and Clark executed their promissory note to plaintiff, wherein they promised to pay to him or order $1,300, with interest, and that on the same day, to secure the payment of the note, they executed and delivered to plaintiff a chattel mortgage upon certain saloon property. It is alleged that Maddux and Clark did not pay the note, and that on December 2, 1895, the defendants, under and by virtue of certain writs of attachment issued out of a justice’s court in actions against Maddux and Clark, attached and took into their possession the personal property described in the chattel mortgage, and that the defendants did not pay or tender to plaintiff the amount of his mortgage debt, with interest, or any part thereof, or deposit the amount thereof with the treasurer of the county, before they attached. Plaintiff pleaded a demand and refusal of payment, and asked judgment for §1,300, the value of the property.

For a second cause of action, after referring to the facts set out in his first cause, and making them part of the second cause of action, plaintiff alleged that it was provided by the terms of the chattel mortgage referred to that in case of default of payment of the principal or interest, as provided in the promissory note of Maddux and Clark, plaintiff was empowered and authorized to sell all of the goods and chattels described in the said chattel mortgage in the manner prescribed by law; that, by the terms of the promissory note, §100, with interest, was agreed to be paid by Maddux and Clark to plaintiff on December 1, 1895, but that the said sum was never paid; that it was also expressly provided by the terms of the mortgage that, if default was made in the payment of the principal or interest, as provided in the said note, or if, prior to maturity .of the said promissory note, the property described in the said mortgage, or any part thereof, should be attached, seized or levied upon by or at the instance of any creditor or creditors of Maddux and Clark, then, and in such event, or in either of such events, Reynolds, the mortgagee, should have the right to immediate possession of said goods and chattels, and of the whole and every ■part thereof. The complaint further alleged that on December 2, 1895, the property described in the mortgage was attached', levied upon, and seized by the defendants, at the instance of Collins & Co., creditors of Maddux and Clark, the mortgagors, and that, by reason of said property having been attached, levied upon, and seized by the defendants as aforesaid, plaintiff became and was at the time of the attachment, levy and seizure entitled to the immediate possession of the property included in the mortgage; that at the time of said levy, attachment and seizure plaintiff was the owner, in possession of, and entitled to the possession of, the said goods and chattels, and that before the commencement of the suit he demanded of defendants possession of said goods and chattels. He then alleged that “by reason of the premises, and the defendants having obtained possession of said goods and chattels in the manner aforesaid, said defendants wrongfully converted and disposed of to their own use the property hereinbefore described, to the damage of plaintiff in the sum of $1,300.” Judgment was asked against defendants, and each of them, for $1,300, with interest from December 2, 1895.

The defendants, by answer, admitted the seizure and sale of the property, but denied plaintiff’s ownership, and denied the facts relating to the alleged conversion, and justified their action under the proceedings had in the justice’s court on the ground that the mortgage was void as to the creditors of the mortgagors, because of certain defects in the affidavit of good faith required under the statute.

Plaintiff, by replication, admitted that the proceedings were had in the justice’s court under which the writs were issued, whereby the defendants seized the property, but alleged that the judgments were void, and of no effect, because the complaints therein did not state facts sufficient to constitute causes of action, and that the justice had no jurisdiction of the persons of the defendants or of the subject-matter of the actions referred to.

Upon these issues the case went to trial before the court and a jury. Plaintiff offered the chattel mortgage in evidence." Defendants objected upon the grounds that the affidavit required by the statute (Section 3861, Civil Code), was lacking. An inspection of the mortgage discloses that the purported affidavit reads as follows:

“Geo. M. Clark, S. H. Maddux and J. B. Reynolds, the parties to the foregoing chattel mortgage, being severally duly sworn, each for himself, says that the said chattel mortgage is made in good faith to secure the amount named therein, and without any design to hinder or delay the creditors of the said mortgagors. [Signed] “S. H. Maddux,
“Geo. M. Clark,
“J. B. Reynolds.
“Subscribed and sworn to before me this, the 23d day of
August, A. D. 1895. “---,
“Notary Public in and for Deer Lodge County.”

The particular objections of the defendants were that the words “or defraud” were left out of the purported affidavit after the words “hinder or delay,” and, furthermore, that there appeared no signature of any officer to the jurat. The plaintiff offered to prove by the notary before whom the acknowledgment was taken that the affidavit was in fact sworn to by the mortgagors, Maddux and Clark, and the mortgagee, Reynolds, but that he omitted to sign his name. The court would not allow this proof to be. introduced, and held that under the first cause of action the mortgage was inadmissible, because it was void — First, for lack of an affidavit; and, secondly, because the words “or defraud” were left out; but ruled that the mortgage was admissible under the second cause of action, provided the plaintiff would follow its introduction by showing that he was in possession of the property at the time of the levy.

The mortgage, which in its body is in the common form of statutory chattel mortgages, was made to secure the payment of the promissory note of Maddux and Clark to Reynolds for $1,300, payable as follows: $100 was to be paid on October 1, 1895, and $100 on the first of each and every month there- ' after until paid, with interest at the rate of 1 per cent, per month from date until paid. The mortgagors had the right to remain in posession and to use the property until default, provided, if default occured in the payment of the principal or interest, or, if, prior to the maturity of the indebtedness, the property should be attached, seized, or levied upon at the instance of any creditor of the mortgagors, the mortgagee should have the right to the immediate posession of the property, and should have the right, at his option, to take and recover such property from any person or persons having or claiming the same.

Plaintiff, Reynolds, testified that Clark and Maddux bought the property from him, and gave him a mortgage to secure a note for §1,300, payable as heretofore set forth; that they paid §100 at the end of the first month, and §100 on November 1st; that about December 2d he asked Clark, who had succeeded Maddux and Clark, for §50, the amount due on the note on December 1st, not having been paid as required by the agreement; that Clark paid the §50 to plaintiff, which left a balance of §50 due and unpaid for December. One Hall met plaintiff about that time, and told him he was talking of buying Clark out. Plaintiff assented to a sale by Clark to Hall, and says he agreed with Hall that Hall might buy the property, and own it when he paid him (Reynolds) §1,300 at §100 a month. Hall then went to take possession. On cross-examination Reynolds said that the property had been transferred by Clark to Hall without there ever having been a delivery of possession to him (plaintiff) by Maddux and Clark; that is, that it was transferred directly by Clark to Hall, with Reynolds’ consent. He said that he notified the attaching creditors that the chattels seized were his property until he got his pay, and that he had a mortgage on the property, under which he claimed the property until it was paid for; that he referred to the mortgage of Maddux and Clark, and that he had had a like agreement between himself and Maddux.

John A. Hall testified that on the 2d day of December, and before the levy by the defendants, he bought Clark out, and paid him for his interest in the property, took possession and was in the actual possession of the property at the time of the levy by the defendants; that he had seen the plaintiff a few days before his purchase from Clark, and asked him how much was due on the mortgage from Clark and Maddux to him, and then told plaintiff that he was negotiating with Clark to buy him out. Witness stated that Reynolds told him to go ahead; that he would rather that witness had the property than Clark; that thereafter witness bought Clark out, and agreed with Reynolds to pay him (Reynolds) the balance on the mortgage, and that he then took possession of the property. ‘ ‘I was to pay Reynolds for the property, ’ ’ said Hall, £ ‘and when I got it paid for it was mine. It was just the same as though I owned it, only there was a mortgage. Reynolds held the mortgage, and Reynolds could take it away from me at any time I defaulted in the payment. * * * I agreed to pay Mr: Reynolds for the property just on the terms that were in the mortgage. I took their (Clark’s and Maddux’s) statement for that. I never saw the agreement. I took their statement for the amount that was due on the mortgage. Reynolds told me how much had been paid on the mortgage,- — $250, I believe. There was $50 lacking. Clark told me that. He said he ought to have paid Reynolds $100, but he had only paid him $50. That was on the 1st of December. I sent over to Reynolds’ house that day. * * * I wanted to pay him that other $50, * * * but he was not at home. * * * At the time of the attachment Maddux and Clark did not have any interest whatever in this property. When I paid Reynolds for it, I owned it just the same as Clark would have done if he had paid Reynolds. That is all there was of it. I took his place in the mortgage, and bought the stock that he had on hand, and paid him for it, and I agreed to pay Mr. Reynolds the amount that Mr. Clark had agreed to pay him, and it was with that understanding that I took possession of the property.” Witness said that he was in possession at the time the sheriff made the levy, and that he told the sheriff at the time that the property was mortgaged, and that he could not attach it, because it belonged to witness. On cross-examination witness said that he claimed to be the sole owner of the property at the time of the attachment; that he bought the property subject to the mortgage by Maddux and Clark to Beynolds, and was to pay off the mortgage. On redirect examination witness said that he had received a bill of sale from Clark. This bill of sale was introduced in evidence. It recited that Clark had sold and delivered to John A. Hall his right, title and interest in and to the saloon business and property for the sum of §250. No date appears on the bill of sale.

The foregoing was the principal testimony in the case. Plaintiff then rested, whereupon the defendants moved the court for a nonsuit, because there was no evidence to show that plaintiff was at any time after the execution of the mortgage in the possession or the owner of the property mentioned in the complaint, and that it was not in the possession of the plaintiff at the time' it was levied upon by the sheriff, and because there was no evidence to show that the plaintiff was the owner of the property. The court sustained the motion. Judgment was entered for defendants for their costs. Plaintiff appeals from the judgment.

The exclusion of the mortgage under plaintiff’s first cause of action was correct. As against creditors of the original mortgagors, Clark and Maddux, it was wholly void, because it was not accompanied by any affidavit at all of all the parties thereto, or of their agents or attorneys in fact, that the mortgage was made in good faith to secure the amount named therein, and without any design to hinder, delay, or defraud creditors. (Section 3861, Civil Code.) An affidavit is defined to be “a written declaration under oath, made without notice to the adverse party.” (Section 3321, Code of Civil Procedure.) By this definition an affidavit is not only a written declaration, but it must be made under oath. If either requirement is lacking, it is incomplete; and, unless amendment be allowed, — as it may, perhaps, in attachment or other proceedings, where the purpose of the affidavit is not to impart notice, — the defect is generally fatal to the affidavit. The authenticity of the fact that the declaration has been made under oath is evidenced by the signature of an official authorized to administer oaths to the jurat. Without such authentication, however, the mere signed declaration of the parties is entirely ineffective to constitute a valid affidavit of good faith accompanying the mortgage. (Alford v. McCormac, 90 N. C. 151; Westerfield v. Bried, 26 N. J. Eq. 357.) The specific provisions of the statute concerning the affidavit of good faith necessary to a chattel mortgage are so plain that it becomes our duty .to hold they must be complied with, or the mortgage will be void. The statute and decisions of this court, as well as principle, demand a strict construction of the law which makes a mortgage of personal property void against creditors of the mortgagor unless it provide that the property remain in the possession of the mortgagor, and be accompanied by an affidavit that the same is made in good faith, and without any design to hinder, delay, or defraud creditors, and unless - it is acknowledged and filed as provided by law. (Baker v. Power, 7 Mont. 326, 16 Pac. 589; Marcum v. Coleman, 10 Mont. 73, 24 Pac. 701.)

The mortgage under consideration had no signature or seal to the jurat. It therefore appeared to have no affidavit accompanying it, and, although filed in this condition, such filing could not supply the omission to comply with a material provision of the statute. Creditors going to the files and records of a county, and finding a mortgage like the one under’ examination, would at once conclude that no oath had been administered to the parties', hence that the mortgage was not such as the law required. On principle, therefore, this mortgage cannot be held valid as against bona fide creditors, without ignoring the statute, and it was properly excluded.

In Hill v. Gilman, 39 N. H. 88, the court expressed its opinion upon a chattel mortgage which failed to contain a certificate of any oath signed by a justice, as was required by the statute of the state. The mortgage was held invalid against a bona fide creditor who attached the property, the court saying:

‘ ‘It appears to us that to hold this to be a good mortgage as against the defendant, who stands in the position of a tona fide creditor of the mortgagor, would be to evade, if not, indeed, to override, a material provision of the statute. If this requirement can be dispensed with without affecting the validity of the mortgage, then may others also. Suppose the parties should take the oath, but through inadvertence neglect to sign it; or suppose the affidavit should be made upon a paper distinct from the mortgage, and, by some mischance, not be attached to it, and the mortgages, with these defects, be récorded, are we to hold them good against creditors? Other suppositions could be made by which other requirements might be neglected, and, by following the principle out, we might, perhaps, find ourselves back to the common-law mortgage. To carry out the intention of the legislature, we think that all the material requirements of the statute must be complied with; that the certificate of the justice who administered the oath is a matter material to be made and recorded; and that, inasmuch as it was not done in the present instance, the mortgage was invalid as to the creditor. ’ ’

The affirmance of the ruling of the learned judge excluding the mortgage for the lack of a proper jurat renders it unnecessary to decide whether or not the omission of the words ‘ ‘or defraud” from the affidavit was fatal to the validity of the mortgage. We pass that point, observing, however, that the statute seems to have intended a separate significance to be attached to the several words “hinder,” “delay,” and “defraud, ’ ’ and that each is required.

Advancing next to the ruling whereby defendant’s motion for a nonsuit was granted, we must define the attitudes of the parties as disclosed by the evidence, for by doing so the case resolves itself into one of comparative simplicity. The testimony of Reynolds, the plaintiff, is somewhat mixed, impressing us as honest, but given under some apprehension, lest the legal results of his statements in respect to his exact position towards Hall and defendants might deprive him of the value of the property he once sold to Maddux and Clark, and for which he had never been paid. But, when considered with Hall’s statements, the manifest tendency of the evidence was to prove that Reynolds sold the property to Clark and Maddux. They then mortgaged back to Reynolds, agreeing to pay $100 a month on the 1st of each month until the debt due by them was fully paid. They defaulted in the December payment. Negotiations were then pending between Clark and Hall for a sale by Clark of the Clark and Maddux interest to Hall. Hall, knowing of a mortgage to Reynolds, consulted Reynolds before he would buy. Reynolds agreed to a sale by Clark to Hall. Hall bought, and it is inferable that when Hall took possession by purchase, Reynolds released Clark and Maddux from all further obligation of any kind to him under the mortgage. Clark was then out entirely. He had sold to Hall with the mortgagee’s consent, and from the time of his delivery to Hall neither he nor Maddux had any interest in the property. All this occured before the creditors of Clark and Maddux attached, and in the absence of fraud the sale to Hall will be upheld. Hall, who had bought in good faith, had full possession before the creditors of his vendor, Clark, seized the property. So that, under the circumstances as thus far inquired into, third persons who were creditors of Clark and Maddux could have had no interest in the property at all after the delivery to Hall. Nor can we discover any way by which the sheriff oan avoid the strength of plaintiff’s case, as we must consider it on a motion for a nonsuit. We regard the contract between Reynolds and Hall as an agreement whereby Hall was to pay Reynolds the same price for the property that Clark and Maddux were to have paid him, less the amount of their payments; and it appears that to secure the payment of the said sum he simply gave a verbal mortgage to Reynolds by which, as owner of the property, he granted a lien upon it to secure the payment of the sum due, upon the same terms, and subject to the same conditions that had formed part of the mortgage contract between Clark and Maddux and Reynolds. He had a right to make such an agreement, and the mortgage will be as binding and effectual between him and Reynolds as though the ■ contract had been reduced to writing. (Cobbey on Chattel Mortgages § 14.) The unfulfilled terms of the written mortgage were the terms of the new mortgage. It was a novation, whereby all three of the parties entered into the agreement, and the liability of Clark to Reynolds was extinguished upon a promise evidenced by the conduct and agreements of each as a consideration for the promise of the others. (Clark on Contracts, p. 613.)

Possession in Reynolds was not necessary to convey title to Hall. (Stafford v. Whitcomb, 8 Allen, 518.) Hall, as mortgagor, was lawfully in possession by the transfer from Clark with the mortgagee’s consent. His title was therefore good. The subsequent interference with Hall’s possession by the creditors of those who had theretofore sold out to Hall, being unwarranted, gave to Reynolds, as mortgagee, a right to the possession of the property, and to retake the same at once under the provisions of Hall’s verbal mortgage, for it was a claim and seizure by persons not parties to the contract between Hall and Reynolds. Reynolds, therefore, could maintain conversion against the defendants. (Tuttle v. Hardenberg, 15 Mont. 219, 38 Pac. 1070; Swenson v. Kleinschmidt, 10 Mont. 473, 26 Pac. 198; Jones on Chattel Mortgages, § 445.)

We do not believe there was a conditional sale to Hall. There is some testimony to the effect that there was, but the evidence goes to prove a mortgage by writing from Clark and Maddux to Reynolds, and by word from Hall to Reynolds. Suppose, though, the agreement between Reynolds and Hall was one of conditional sale by Reynolds to Hall, still the evidence did not authorize a nonsuit, inasmuch as the creditors of Clark and Maddux had no right to complain, because the sale was honestly made and consummated before their attachments were levied. Our conclusion upon this branch of the case is that the court ought not to have sustained the motion for a nonsuit, and that for error in having granted the motion, the judgment must be reversed.

Defendants’ counsel says, in his brief, that there is no allegation in plaintiff’s complaint that “in this attachment and seizure the defendants did any wrong whatever.” In conversion plaintiff need go no further in his complaint than to state his title to the property converted, or his right of possession, a description of the property, and a statement of its value, the acts of the defendant which deprived plaintiff of his property, and a demand for judgment for the damages sustained. “The mode of alleging the act of conversion must depend upon the facts of the case. It is not necessary for the plaintiff to allege the details from which his title, or possession, or the conversion by the defendant would follow as their legal effect. Instead of giving a narrative of all the acts performed by the defendant in order to accomplish a conversion, it is permissible for the pleader to allege generally that the defendant converted the property to his own use. A fuller statement of the fact may be preferable, but excéssive particularity is not required in the statement of the manner in which a wrong was committed, as the defendant is presumptively better informed of tin*,facts than the adverse party, and the. general rule of pleading applies that less particularity is required where the facts lie more in the knowledge of the opposite party than of the party pleading. ’ ’ , (Baylies, Code Pleading, p. 153.)

In Baltimore & Ohio Railroad Co. v. O' Donnelly 49 Ohio St. 489, 32 N. E. 476, the court said: “The ultimate fact to be pleaded is the conversion, and in actions of that nature a petition with proper allegations of the plaintiff’s ownership of the property and of its value, and which avers that the defendant converted it to his own use, states a cause of action. ’ ’

Tested by these rules, plaintiff’s complaint clearly stated a cause of action.

Defendants refer to the lack of proof of a demand. A demand was not necessary. (Eddy v. Kenney, 5 Mont. 502, 6 Pac. 342.)

Judgment reversed.

Reversed.

Mr. Chief Justice Brantly, being disqualified, took no part in this decision.


author: MR. JUSTICE PIGOTT

text:
    SMITH, Appellant, v. DENNIFF, Respondent.
    [No. 1,118.]
    [Submitted May 3, 1899.
    Decided June 12, 1899.]

      Appeal — Briefs—Buies of Supreme Court — Water Bight— Appurtenance — Sale Under Mortgage.

    1. A brief filed by appellant, which does not, in the statement of the case, make appropriate references to the transcript, showing where therein evidence of witnesses or pleadings are to be found, or which does not specify errors complained of in accordance with Supreme Court Rule 5, is so defective as to justify the court in dismissing the appeal.

      Obiter: In the future, the failure of the appellant to meet every requirement of the rules of the Supreme Court touching briefs will be sufficient cause for dismissal of the appeal.
    2. The appropriation of a water right from a creek on the public domain for the purpose of irrigating a certain parcel of land, by a person who has no title to said land, but is in rightful possession of said land under a contract with the owner thereof, and the conducting by him of the water so appropriated by means of a ditch to said land, and its continuous use thereon, constitutes such water right and ditch-in the absence of a segregation, change of possession, or diversion of the water by the owner thereof to a use other than that for which it was appropriated, or an intention to do so, and there being no agreement between the owner of the water right and the owner of the land upon which the water right was used by which it might be severed from said land-an incident to the ownership of the land on which it is used, and an appurtenance thereto which none but the owner of said land can convey or-sell, and a purchaser at a foreclosure sale of a mortgage of the land, “together with all the water ditches and water rights therewith usually had and enjoyed,” made hy the owner of the water right, does not acquire any right or title to said water right.

      Appeal from District Cov/rt, Deer Lodge County j Theo. Brcmtl/y, Judge.

    Action by Matthew Smith against John J. Denniff. From a judgment in favor of defendant, plaintiff appealed.
    Affirmed.

      Mr. G. B. Winston and Mr. W. H Trippet, for Appellant.

      Mr. H. B. Whitehill, for Respondent.
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

Action to quiet title in plaintiff to a water right and ditch, and to enjoin the defendant from diverting water from the latter. Trial was by the court without a jury. From a judgment entered upon the sustaining of- a motion for a nonsuit interposed at the conclusion of the evidence for the plaintiff, he appeals.

The brief of the appellant is one that should not have been filed in this court. In the statement of the case the only-references made to the transcript are those giving the pages on which the complaint and the substance of a certain judgment roll are transcribed. No reference is made to the transcript for the answer, reply, motion for nonsuit, or judgment. Although several witnesses were examined, the statement fails to show where their testimony may be found. The only error claimed to have been committed is the granting of the nonsuit, and even this is not specified in accordance with the Requirements of Rule Y. (44 Pac. vii.) of this court, as interpreted in Babcock v. Caldwell, 22 Mont. 460, 56 Pac. 1081. We would be justified in dismissing the appeal for the foregoing reasons, but have decided to entertain it in view of the fact that the brief is not as defective as were those in Anderson v. Carlson, 23 Mont. 43, 57 Pac. 439, and cases there cited, where the appeals were dismissed for lack of proper briefs. In the future, however, the failure of the appellant to meet every requirement of the rules touching briefs will be •sufficient cause for dismissal.

In the years 1882 and 1883 a certain ditch was constructed, and through it a water right appropriated out of Cross creek, in the county of Deer Lodge, of which ditch and water right one Oscar Cosins owned .an undivided eighth interest. Cosins appropriated the water for the purpose of using it on the N. E. \ and the N -} of the S. E. ¿ of section 17, in township 5 N., of range 10 W., on which he was living, and of which he was in possession under a contract therefor with the Northern Pacific Railroad Company. The water so appropriated was carried upon said land by Cosins, and there used to irrigate the same, it being arid land, and the water being necessary to produce a crop thereon. His brother, one H. C. Cosins, was a joint appropriator, and owned another undivided eighth in the water right and ditch, and was cultivating a portion of section 16 in the same township. For several years the two brothers used the water to which they were entitled to irrigate the lands of both, but' afterwards each brother diverted the water to the use of which he was entitled from a seperate ditch, and from that time the water was not used in common, but each brother used his water upon the land for which it had been appropriated. Thereafter Oscar Cosins mortgaged the land occupied by him in section 17, and belonging to the Northern Pacific Railroad Company, £ ‘together with all the water ditches and water rights therewith usually had and enjoyed,” to the Estes & Connell Mercantile Company, to secure the payment of a debt owing by Cosins to the mortgagee. The plaintiff, as assignee of the mortgage, foreclosed, and at the sheriff’s sale purchased all the right, title and interest of Oscar Cosins in and to said land and water right of Oscar Cosins. After the sheriff’s deed was executed to the plaintiff, he endeavored to divert the water, but was prevented from so doing by the defendant, who for several years had been, and was then, in possession of and cultivating and occupying the land in section 17 formerly possessed by Oscar Cosins, and then and now owned by the Northern Pacific Railroad Company. It appears that the plaintiff made no claim at the trial of title, possession of, or right of possession to that land. It further appears that the water appropriated by Oscar Cosins was never used by plaintiff, nor has plaintiff ever been in possession or control of the water appropriated by Oscar Cosins. The plaintiff concedes that no right or title of any kind in or to the land described in the sheriff’s deed passed to him. The evidence shows that the water right of Oscar Cosins was appurtenant to the land belonging to the Northern Pacific Railroad Company, under which company he held possession. The contention of the plaintiff is that the water right is not an appurtenant to the land for which it was appropriated. But, as already remarked, we think that the proof clearly shows the contrary. The water was appropriated for the express purpose of irrigating a certain parcel of the land. It was actually so used continuously, and was necessary to the cultivation and enjoyment thereof, and was, therefore, an appurtenance. (Tucker v. Jones, 8 Mont. 225, 19 Pac. 571; Sweetland v. Olson, 11 Mont. 27, 27 Pac. 339; Beatty v. Murray Placer Mining Co., 15 Mont. 314, 39 Pac. 82; Carman v. Staudaker, 20 Mont. 364, 51 Pac. 738; Sloan v. Glancy, 19 Mont. 70, 47 Pac. 334; Civil Code, § 1078; Crooker v. Benton, 93 Cal. 365, 28 Pac. 953.) Title to .an appurtenance passes by a conveyance of that to which it. is appurtenant. The owner of the land may sell it to one person, reserving, by apt words, the appurtenant water right; or he may sell the water right to one person and the soil itself to another; but, unless there be a clear intention to seperate the appurtenant (the incident) from the land (the principal), there can be no seperation, and a grant of the land carries with it necessarily the appurtenance. None but the owner of the land may convey or sell the appurtenance. In the case at bar Cosins had no title to the land, and therefore could convey neither land nor appurtenance. Nor is there evidence tending to show any intention on the part of Cosins to mortgage the water right independently of, or as distant from, the land to which he had no title. Whatever the effect of such intention might have been had it existed, and an attempt made to effectuate it, it is evident that the conveyance by mortgage of the land included the water right as a mere appurtenance or incident. It certainly needs no argument beyond this statement to show that Cosins could convey no interest of any description in the land of the Northern Pacific Kailroad Company. Such attempted conveyance by mortgage was ineffectual. The land is not part of the public domain. It is land owned by a private person — the railroad company, — and that company and those holding under it own the land with the appurtenances. When there has been no segregation, change of possession, or diversion of the water by the owner to a use other than that for which it was appropriated, nor intention to do so, the water right remains an incident to the ownership of the land, although the water was appropriated by a tenant in possession, and by him made an appurtenance to the land, there being no agreement between the tenant and the owner by which the water right might be severed by the tenant from the land to which it is appurtenant. The plaintiff, in order to recover, must show title in himself to the water right. He must rely upon the strength of his title, not upon the weakness of that of his adversary. He has failed to prove any title to the water right or any use of the water. By virtue of a contract with the railroad company, Oscar Cosins was in the rightful possession of certain land then and now owned by it. While so in possession he appropriated water, the right to the use of which became appurtenant to the land. There is no proof of any agreement, either express or implied, that the water right might be seperated from the land, and held by Cosins as property distinct from that to which it was appurtenant; and, in the absence of such proof, the presumption is that the owner of the land is the owner of the appurtenance. Cosins having no title whatever to the land, did not grant to the plaintiff the appurtenant water right which, without the owner’s consent to a severance from the land, remains an inseperable incident thereto. The defendant is in rightful possession of the land formerly occupied by Oscar Cosins, and is using the water thereon. Smith v. Logan, 18 Nev. 149, 1 Pac. 678, is cited by plaintiff as supporting his contention. The case is not in point.

The motion for a nonsuit was rightly granted, and the judgment for the defendant was correct, and is affirmed.

Affirmed.

Mu. Chief Justice Brantly, being disqualified, took no part in this decision.


text:
    CAMERON, Appellant, v. WENTWORTH, Respondent.
    [No. 1,103.]
    [Submitted April 26, 1899.
    Decided June 22, 1899.]

      Trial — Instructions—Jury—Credibility of Witnesses — Re- . plevin.

    An instruction which authorizes a jury to disregard the entire uncorroborated testimonyof a witness, in cases where it is “probable” that he has deliberately and intentionally testified falsely as to some material matter, is bad, as authorizing the jury to judge of the effect of evidence arbitrarily.

      Obiter. — The power of a jury to form a judgment upon evidence is always confined within the exercise of legal discretion, and in subordination to the rules of evidence.
    2. Nor would the instruction be improved by use of the word "palpable,” as the power of the jury would thereby be circumscribed by limiting their right to discard the testimony of a witness to those instances only where it is palpable the witness has testified falsely, and is not corroborated by other evidence.
    3. Code of Civil Procedure, Sec. 3390, Subd. 3, which provides “that a witness false in one part of his testimony is to be distrusted in others,” requires the jury to distrust only a witness who willfully swears falsely as to material matters.
    4. To maintain an action in claim and delivery, plaintiff must plead and prove his right to the immediate possession of the property at the time of the commencement of the action. Allegations of these essential facts may be by stating the particular facts which entitle plaintiff to immediate possession.

      Appeal from District Court, Lewis and Clarhe County; Henry C. Smith, Judge.

    Action by Duncan Cameron against George W entworth. Verdict and judgment for plaintiff. From an order granting a new trial, plaintiff appeals.
    Affirmed.

      Mr. H. G. McIntyre, for Appellant.
    It was contended by the defendant in the court below that said complaints do not state facts sufficient to show that the plaintiff was entitled to the immediate possession of the animals in dispute at the time the suits were instituted. The allegations of the complaint in action No. 3727 are to the effect that the plaintiff is the owner of the animal sued for; that theretofore he had delivered said animal to the defendant Wentworth for racing purposes under an agreement to be terminated at the option of either party; that without the consent and against the will of the plaintiff said defendant Wentworth started with said animal for St. Paul and at the time of the commencement of the action was enroute with her to that place; that after these acts of Wentworth plaintiff declared said agreement at an end and demanded possession of said animal, but that said defendant still unlawfully withholds and detains the same. The allegations of the complaint in actions numbered 3735 are in effect that plaintiff was the owner and on the 21st day of August, 1896, (the day prior to the commencement of the action) entitled to the possession of the animal sued for;'that on said day he had demanded possession of said animal, which was refused.
    Conceding the allegations of these complaints to be true, as we must, it is difficult to see wherein they do not state facts sufficient to constitute a cause of action. (Rutan v. 1J otters, 48 Pac. 385.)
    In the first case plaintiff was the owner of the animal, but had parted with the actual possession under an agreement which he was at liberty to terminate at any time; the defendant was asserting ownership in himself; plaintiff terminated the agreement and demanded possession, which defendant refused; and in the second case plaintiff was the owner and entitled to the possession of the animal at the date he made demand therefor, which was the day prior to the filing of his complaint. If sufficient facts are stated to constitute a cause of action, a pleader is not required to make the bold assertion that such cause of action exists in his favor. Nor does good pleading require the allegation of a conclusion arising from the facts stated. (Gage et al. v. Wayland, 67 Wis. 566.) But irrespective of this, it is clear that an issue as to the immediate right of possession was raised by the answer, and consequently the court in overruling the objection to the admission of any evidence under said complaints was correct. For even if it be conceded that the complaints were defective in the respect stated (which, however, is not done), such defect, if any, was cured by the allegations of the answer. It is a familiar rule that a defective complaint may be aided by answer. (Crowder v. McDonald, 54 Pac. 43; Schenclc v. iasurance Co., 71 Cal. 28/ Wilson v. Sax (Mont.) 54, Pac. 46; Shively v. Semi-Tropic, etc. Co., 33 Pac. 848; Pomeroy, on Remedial Rights, Sec. 579; Kreling v. Kreling, 50 Pac. 546, and cases cited; Lynch v. Bechtel, (Mont.) 48, Pac. 1112; First Nat. Bank v. Schmidt, (Colo.) 40, Pac. 479; Hamilton v. Great Falls St. By. Co., 17 Mont. 434.) The defect, if any, was merely one of form and could have been amended at once if it had been pointed out. That being the case, the complaint is amendable at any stage, even after judgment. (Hartley v. Preston, 2 Mont. 415; and see Hershhe¡d v. Aiken, 3 Mont. 442), where it is held error to refuse to allow an amendment after verdict and upon application for a. new trial. And where a defect in a complaint is first suggested by an objection to the introduction of testimony thereunder, such complaint will be liberally construed so as to uphold it if possible. (Bank of Glaseo v. Marshall, 47 Pac. 561, and cases cited.) It is not error to refuse to give a particular instruction requested where the charge as a whole covers the matter presented in such instruction. (Dorrance v. McAlester, 45 S. W. 141; Bailway Co. v. Morrow, 45 Pac. 956; ScoviUe v. Salt Lake City, 39 Pac. 481; Kenyon v. City of Mondovi, 73 N. W., Rep. 314 \Bailroad Co. v. Horst, 93 U. S. 291; Great Nor. By. Co. v. McLaughlin, 70 Fed. 672, and cases cited; Bonnie et al. v. Earll et al., 12 Mont. 240; Thompson, on Trials, § 2423.)
    Defendant’s principal contention upon his motion for new trial in the court below was that instruction numbered 13 given by the court is erroneous in that the word “probable” is used instead of the word 1 ‘p^pMd©- ’ ’ Said instruction numbered 13 appears to have been taken from Sackett, on Instructions, p. 32, where, however, the word “palpable”, is used instead of the word “probable. ” It is clear that the use of the word probable instead of palpable was mere inadvertance, probably caused by the mistake of the stenographer when the instructions were dictated to him, and it is incredible that the mere misuse of such word was sufficient to justify the court below in granting a new trial of these actions. By the use of such word, as it stands in the instruction, the jury were simply told that if in their judgment a witness had deliberately and intentionally testified falsely to a material matter they were at liberty to disregard his entire testimony. This being so, no objection of any kind can be urged to the use of the word, for it has been held that an instruction of this kind leaving it to the judgment or opinion of the jury is good. [Peoples. Righetti, 66 Cal. 184; McFadinv. Catron, 25 S. W. 506; Seligman v. Rogers, 21 S. W. 94.) It is a familiar principle of law that an instruction, even if it be erroneous, will not be sufficient to set aside a verdict unless it is clear and apparent that the jury were misled thereby. As stated by Mr. Thompson: “Thus it is said that instructions faulty or technically erroneous will not work a reversal of the judgment if the jury were not misled, or, if as a whole, the case was fairly presented to them, and especially if their verdict is obviously correct. ’ ’ (Thompson, on Trials, Sec. 2431; Baltimore ds P. R. Co. v. Mackey, 157 U. S. 72/ Bokien v. Insurance Co., 44 Pac. 110; Pittsburg etc. Ry. Co. v. Welsh, 40 N. E. 650; Denver Dry Goods Co. v. Martino, 55 Pac. 743; Noyes v. Tootle, 48 S. W. 1031; Sams Automatic etc. Co. v. League, 54 Pac. 642.) And this court has come to the same conclusion in the case of Hamilton v. Great Falls St. Ry. Co., supra, where an instruction held to be erroneous by the court was still held not sufficient to justify the granting of a new trial inasmuch as the error complained of was not of a prejudicial nature. To the same effect is the case of Fitschen v. Thomas, 9 Mont., pp. 56-57, where it is held that an instruction obviously erroneous was still not sufficient to justify the giving of a new trial inasmuch as the same was not prejudicial or had been cured by other portions of the charge. Again, it is a. familiar rule that instructions must be regarded as a whole. On this proposition authorities might be multiplied indefinitely, but the following only are cited: {Mulligans. Ry. Co., Mont. 47 Pac. 795; Kennon v.
      Gilmer, 5 Mont. 270; Hamilton v. Great Falls St. Ry. Co., supra; State v. Miller, 31 Pac. 939; Lawder\. Henderson, 14 Pac. 164; Hurd v. Atkins, 29 Pac. 528.) Applying this ‘rule to the instructions in this case, and taking them as a whole, it is idle to say that the jury could have been misled by the inadvertent use of the word ‘ ‘probable. ’ ’ Again, it has been decided repeatedly that the mere inadvertent use of a word is not sufficient to set aside a verdict. In the case of Spencer’s Estate, (Cal.) 31 Pac. 453, it was held that the use of the word “yes” instead of “no” in an instruction was not sufficient to justify the setting aside of a verdict; and in the case of O' Connor v. Lang don, 26 Pac. 659, it was held that the inadvertent use of the word “and” in place of “or” in an instruction was not sufficient to justify the setting aside of a verdict. (See also Terre Haute FI. Ry. Co v. Laner, 52 N. E. 706; Deig Exr. et al. v. Morehead, 11 N. E. 462-463.)

      Mr. Albert J. Loeb and Mr. C. B. Holán, for Respondents.
   MR. JUSTICE HUNT

delivered the opinion of the court.

Plaintiff brought two separate actions in claim and delivery to recover possession of two certain race horses. By consent, the two suits were consolidated for the purposes of trial. Plaintiff recoverd a verdict, and judgment was entered in his favor. Defendant Wentworth moved for a new trial, which motion was granted. Plaintiff appeals from the order granting a new trial.

One of the grounds upon which the court granted the motion for a new trial was its error in giving the following instruction.

“It is the duty of the jury, m passing upon the credibility of the testimony of several witnesses, to reconcile all the different parts of the testimony, if possible. It is only in cases where it is probable that a witness has deliberately and intentionally testified falsely as to some material matter, and is not corroborated by other evidence, that the jury is warranted in disregarding his entire testimony. Although a witness may be mistaken as to some of his evidence, it does not follow, as a matter of law, that he has willfully told an untruth, or that the jury would have the right to reject his entire testimony. ”

Plaintiff contends that the word “probable” was used for ‘ ‘palpable’ ’ by mistake, and that the error, if any was not calculated to mislead the jury. This argument is premised upon the assumption that if ‘ ‘palpable’ ’ had been used, the instruction would have been a correct statement of the law,— an assumption which respondent seem to have regarded as well taken, and which, for the moment, we will not disturb.

It is undoubtedly the rule that, where a witness has willfully sworn falsely as to any material matter upon the trial, the jury is at liberty to discard his entire testimony, except in so far as it has been corroborated by other credible evidence; but we do not understand that the right to so discard testimony follows, if it be merely probable that the witness has willfully sworn falsely. In other words, there must be a belief in the minds of the jury that a witness has actually and knowingly testified falsely as to some material matter before they are at liberty to eliminate his testimony entirely; but a belief that an actual fact exists requires a considerably stronger support than does a belief that it probably exists. If a witness has palpably sworn falsely, it is almost self-evident that he has done so. The range of probability is passed over, and it has become more than likely that he has testified falsely, knowingly and intentionally. Therefore, where perjury is palpable, there need be no extended discussion upon which to base a finding that the witness has willfully testified falsely, — the jury may at once act upon the fact so obviously or palpably demonstrated. But to say that a jury can discard testimony, if they conclude that a witness has probably perjured himself, is to authorize deliberation, not upon the question of whether he has willfully sworn falsely, but upon whether it is likely he has done do. So, although the jury might not say they believed the witness did willfully testify falsely, yet, if they could say that it was probable or likely that he did so testify, nevertheless the right to discard the entire testimony would exist. Reasoning along this line carries us to where it is easily seen that a jury would diverge in their consideration of evidence, and too often overlook the necessity for belief in existing facts, amid metaphysical gropings for propabilities, to enable them to ignore testimony. They should not be allowed to do this; for if, in their judgment, probability of perjury alone exists, they cannot legally give that effect to evidence which they may, if, in their judgment, the fact of perjury exists as demonstrable beyond a mere probability that it exists. Therefore, to expressly authorize a jury to act, in discarding testimony, on probability, is wrong. It becomes an authorization to them to judge of the effect of evidence arbitrarily, and weakens, if it does not break down, the force of that other and salutary rule which always confines the power of a jury to form a judgment upon evidence within the exercise of legal discretion, and in subordination to the rules of evidence.

But it is our opinion that the premise which would regard the instruction as sound, if it bad read “palpable,” instead of “probable,” is false and unsound, and that the instruction would still be inherently bad with the word “palpable” imported into it, for the reason that it circumscribes the power of the jury in giving effect to evidence by limiting their right to discard the testimony of a witness to those instances only where it is palpable the witness has willfully sworn falsely, and is not corroborated by other evidence. No such principle can find favor where the jury are the exclusive judges of the credibility of a witness, and where they are authorized to ignore his testimony, if willfully false, and not corroborated. It may be that a jury, after full consideration of all a witnéss has testified to, will believe he has perjured himself, yet it may not have been readily observed at all on the trial that the witness willfully swore falsely. Now, under such conditions, the jury have as clear a right to discard his testimony as they would have had if it had been palpable that the witness was willfully falsifying; for the test necessarily is: has the witness willfully sworn falsely as to any material matter? and this is to be ascertained by the jury as a fact, deducible from other facts or circumstances connected with the trial and before them for consideration. But, in sifting and weighing the evidence, if the fact is found, whether it has manifested itself palpably, or whether it has been arrived at by processes of reasoning upon other facts or circumstances, is absolutely immaterial in its effect upon the power of the j ury to discard the testimony.

We therefore disapprove of the instruction from the two standpoints discussed. It is essentially erroneous, and the text of Mr. Sackett (page 35), which gives it as the law, finds no support in any language used by the court in Gottlieb v. Hartman, 3 Colo. 53, which is cited as authority for its doctrine. It follows that the action of the court below in granting a new trial must be affirmed.

Another ground for granting a new trial was the refusal of the court to give the following instruction requested by defendant: “You are further instructed that a witness who testifies falsely in one part of his testimony is to be distrusted in other parts of his testimony.” The instruction offered is substantially the language of 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.” Presumably the case was one where the court should have given the instruction requested, or the substance of it, by way of caution to the jury upon effect of evidence. And we can readily understand the aid furnished to a jury by declaring to them the principle meant to be enunciated by the statute, that a witness who has willfully testified falsely as to any material matter must be distrusted as to other parts of his testimony. The statute is not applicable, however, to unintentional errors, or evidence given upon immaterial matters, and without intent to deceive. Its sense is to require the jury to distrust only a witness who willfully swears falsely as to material matters; and we are of opinion that it ought always to be given with the words “willfully” and “material” expressed as qualifications of the rule it declares.

The statute (Sec. 3390, supra) came to us from California (Code Civ. Proc. Cal. Se.c. 2061), where it has been interpreted as applicable only to a witness who is willfully false in a material manner (People v. Hicks, 53 Cal. 354; People v. Soto, 59 Cal. 367); and, while it has been held in that state that the word “false” is not the equivalent of “mistake,” and that the word “willfully” does not change the effect of the instruction as offered (People v. Sprague, 53 Cal. 491; People v. Righetti, 66 Cal. 184, 4 Pac. 1063, 1185; White v. Disher, 67 Cal. 402, 7 Pac. 826), nevertheless we are satisfied that the meaning should be made perfectly clear by avoiding the opportunity for misunderstanding that may reasonably exist by adopting the construction of the supreme court of California announced in the cases heretofore cited and followed in State v. Kyle, 14 Wash. 550, 45 Pac. 147, holding that the qualifying words need not be expressed.

As a statute affecting the province of the jury in weighing evidence, it requires them to view with distrust the testimony of a witness who willfully swears falsely as to a material matter. They must distrust such a witness, and, under their general power of passing upon the credibility to be attached to each witness, they may discard such testimony entirely, except in so far as it is corroborated by other credible evidence. (People v. Durrant, 116 Cal. 179, 48 Pac. 75.)

It is well settled that, to maintain an action in claim and delivery, plaintiff must plead and prove his right to the immediate possession of the property at the time of the commencement of his suit. (Bach, Cory & Co. v. Montana Lumber & Produce Co., 15 Mont. 345, 39 Pac. 291; People's Saving Bank v. Jones, 114 Cal. 422, 46 Pac. 278; Olson v. Thompson, 6 Okla. 74, 48 Pac. 184; Fredericks v. Tracy, 98 Cal. 658, 33 Pac. 750; Cobbey on Replevin, Sec. 94.) Allegations of these essential facts may be by stating the particular facts which entitle plaintiff to immediate possession; but they must be made. ( Visher v. Smith, 91 Cal. 260, 27 Pac. 650.) Plaintiff’s complaint upon his first cause of action was deficient in these respects, and he should amend before a new trial. His second cause of action was sufficiently well stated.

The order granting a new trial must be affirmed.

Affirmed.


author: PER CURIAM.

text:
    STATE, Respondent, v. HARRISON, Appellant.
    [No. 1,392.]
    [Submitted June 20, 1899.
    Decided June 26, 1899.]

      Criminal Lam — Instructions—Presumption of Innocence— Reasonable Doubt.

    1. It is error to refuse to charge that accused is presumed innocent until proven guilty a reasonable doubt, though the court gave an instruction properly defining a reasonable doubt.
    2. The presumption of innocence has the weight and effect of evidence in the defendant’s behalf — introduced by the law in his behalf — and the mere definition of a reasonable doubt does not supply the lack of an instruction upon the presumption of innocence.
    3. “A reasonable doubt, within the meaning of the law, is not a mere imaginary or possible doubt, but a substantial doubt, based upon reason and common sense, and induced by the facts and circumstances attending the particular case, and growing out of the testimony. It is such a doubt as will leave one’s mind, after a careful examination of all the evidence, in such a condition that he cannot say that he has an abiding conviction, to a moral certainty, of the defendant’s guilt as charged.” Held: a good definition of a reasonable doubt.

      Appeal from District Court, Silver Bow Country; William Clamcy, Judge.

    Martin Harrison was convicted of robbery, and from an order denying a new trial he appeals.
    Reversed.

      Mr. M. P. Gilchrist, for Appellant.

      Mr. C. B. Nolan, Attorney General, for the State.
   PER CURIAM.

— Defendant was convicted of robbery. His appeal is from an order overruling a motion for a new trial.

Objection is made to our consideration of the instructions marked ‘ ‘Refused, ’ ’ but we think the bill of exceptions discloses what instructions were given or refused, and presents for our consideration the action of the court in refusing the following instruction requested by defendant:

“You are instructed that the law presumes a person innocent until he is proved guilty, and this proof must be of a nature to satisfy your minds beyond a reasonable doubt of the guilt of the accused. The mere fact that an information has been filed, charging a person with a crime, does not in itself raise a presumption of guilt. A reasonable doubt, within the meaning of the law, is not a mere imaginary or possible doubt, but a substantial doubt, based upon reason and common sense, and induced by the facts and circumstances attending the particular case, and growing out of the testimony. It is such a doubt as will leave one’s mind, after a careful examination of all the evidence, in such a condition that he cannot say that he has an abiding conviction, to a moral certainty, of the defendant’s guilt as charged. The presumption of innocence has the weight and effect of evidence in the defendant’s behalf, and this should continue until it is rebutted by competent evidence which displaces any reasonable doubt you might otherwise have of the defendant’s guilt.”

No instruction of any kind was given telling the jury that defendant was presumed to be innocent until he was proven guilty beyond a reasonable doubt, although a reasonable doubt was elsewhere defined, as an independent proposition, in the language approved of by this Court in Territory v. McAndrews, 3 Mont. 158, and State v. Gibbs, 10 Mont. 213, 25 Pac. 289.

But the mere definition of a reasonable doubt did not supply the lack of the instruction requested, by which a knowledge of the presumption of the defendant’s innocence was communicated to the jury by the court. The distinction between the presumption of innocence and a reasonable doubt has been drawn with great ability by Justice White, speaking for the court, in Coffin v. U. S., 156 U. S. 432, 15 Sup. Ct. 394. We quote as follows from his learned opinion:

“The fact that the presumption of innocence is recognized as a presumption of law, and is characterized by the civilians as a presumptio juris, demonstrates that it is evidence in favor of the accused; for, in all systems of law, legal presumptions are treated as evidence giving rise to resulting proof to the full extent of their legal efficacy. Concluding, then, that the presumption of innocence is evidence in favor of the accused introduced by the law in his behalf, let us consider what is ‘reasonable doubt. ’ It is of necessity the condition of mind produced by the proof resulting from the evidence in the cause. It is a result of the proof, not the proof itself; whereas the presumption of innocence is one of the instruments of proof, going to bring about the proof, from which reasonable doubt arises; thus, one is a cause, the other an effect. To say that the one is the equivalent of the other is therefore to say that legal evidence can be excluded from the jury, and that such exclusion may be cured by instructing them correctly in regard to the method by which they are required to reach their conclusion upon the proof actually before them; in other words, that the exclusion of an important element of proof can be justified by correctly instructing as to the proof admitted. The evolution of the principle of the presumption of innocence, and its resultant, the doctrine of reasonable doubt, makes more apparent the correctness of these views, and indicates the necessity of enforcing the one, in order that the other may continue to exist. Whilst Rome and the medievalists taught that, wherever doubt existed in a criminal case, acquittal must follow, the expounders of the common law, in their devotion to human liberty and individual rights, traced this doctrine of doubt to its true origin, — the presumption of innocence, — and rested it upon this enduring basis. The inevitable tendency to obscure the results of a truth, when the truth itself is forgotten or ignored, admonishes that the protection of so vital and fundamental a principle as the presumption of innocence be not denied, when requested, to any one accused of crime. ’ ’

The court ought not to have refused the instruction requested, which was correct, although it was not obliged to accept the precise definition of a reasonable doubt contained in it. We believe, however, that the definition of a reasonable doubt was good (Thompson on Trials, Sec. 2183; People v. Finley, 38 Mich. 482; People v. Stubenvoll, 62 Mich. 329, 28 N. W. 883; People v. Cox, 70 Mich. 247, 38 N. W. 235), and that the whole instruction was correct on both points covered by its language.

For error in refusing the request to instruct upon the presumption of innocence, the defendant must be awarded a new trial.

The order denying defendant’s motion for a new trial is reversed.

Reversed and remanded.