author: MR. CHIEF JUSTICE TURNAGE

text:
    DALE SCHAFFER, as the Personal Representative of the Estate of Charles A. Hansen, Michael J. Hansen, Gary A. Hansen and Mary Ellen Cheffmore, Plaintiffs and Appellants, v. CHAMPION HOME BUILDERS COMPANY, Defendant and Respondent.
    No. 87-146.
    Submitted on Briefs Oct. 16, 1987.
    Decided Dec. 31, 1987.
    747 P.2d 872.

      Knight, Dahood, McLean & Everett; Edward G. Beaudette, Anaconda, for plaintiffs and appellants.
    Poore, Roth & Robinson; John P. Davis, Butte, for defendant and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiffs appeal the summary judgment of the Third Judicial District, Powell County. The judgment dismissed plaintiffs’ wrongful death and survival complaint which was not filed until one day after the statute of limitations had expired. We affirm.

The parties present three issues for our review:

1. Did the District Court abuse its discretion when it dismissed plaintiffs’ wrongful death and survival actions?

2. Did the District Court abuse its discretion when it denied relief from judgment under Rule 60(b)(1), M.R.Civ.P., for mistake, inadvertence, surprise or excusable neglect?

3. Did defendant Champion waive the affirmative defense of statute of limitations?

Charles Hansen was a professional painter. He had a family history of emphysema and asthma, and a personal history of smoking. In May 1977, Hansen and his wife moved into a new mobile home they had purchased from Gold Star Homes. The mobile home was manufactured by Champion Home Builders Company (Champion). Throughout 1978, Hansen was treated for emphysema and chronic obstructive pulmonary disease, as shown by an increased chest diameter resulting from long-term obstruction of air flow. He also displayed marked bronchial reactions to paint fumes. During multiple visits to his treating physician in 1978, Hansen never mentioned the onset of any breathing problems in his mobile home. Chest X-rays taken on January 6, 1978, and again on August 1, 1978, revealed no significant changes in Hansen’s lung condition.

However, by 1979 Hansen’s health had deteriorated. In June 1979, he was diagnosed as having congestive heart failure. He was also repeatedly treated for acute bronchial asthma. Hansen thought that formaldehyde gas in the mobile home was causing his asthma. He moved out of the home in July 1979.

By January 1980, Hansen was bedridden and on an oxygen breather. He died of acute bronchial spasm and respiratory failure on February 27, 1980, at age fifty-seven. His autopsy revealed scarred lungs, narrowed lumens of the bronchi, and moderate-to-severe arteriosclerosis.

Plaintiff Schaffer is the personal representative of Hansen’s estate. Plaintiffs Michael J. Hansen, Gary A. Hansen and Mary Ellen Cheffmore are Hansen’s children and heirs. They sought a survival and wrongful death action against Gold Star and Champion. Plaintiffs claimed that Hansen’s condition was caused by formaldehyde gas released from the particle board and plywood in the mobile home. Plaintiffs requested recovery under the theories of negligence, misrepresentation, breach of implied warranty and strict liability.

Plaintiffs state that their complaint was mailed from Anaconda, Montana, to Deer Lodge, Montana, on February 23, 1983. However, the complaint was not filed until March 1, 1983.

On November 19, 1986, Champion moved for summary judgment on the grounds that plaintiffs’ claims were barred by the three-year tort statute of limitations. The applicable statute of limitations for this action is Section 27-2-204(2), MCA, which states:

“The period prescribed for the commencement of an action to recover damages for the death of one caused by the wrongful act or neglect of another is within 3 years.”

Three years from the date of Hansen’s death fell on Sunday, February 27, 1983. Therefore, the limitation period was extended to the next working day. The period expired on Monday, February 28, 1983.

In February 1987, the District Court entered separate summary judgments in favor of Champion and Gold Star. The plaintiffs did not appeal the Gold Star summary judgment. Gold Star then filed a motion with this Court to dismiss plaintiffs’ appeal as to Gold Star. This Court granted Gold Star’s motion by order on July 23, 1987. Consequently, Champion is the sole respondent to this appeal.

Issue 1. Dismissal of complaint.

In its motion for summary judgment, Champion contended that plaintiffs’ claim was barred by the statute of limitations. The District Court granted Champion’s motion and dismissed plaintiffs’ claim with prejudice. Plaintiffs now contend that mailing the complaint to the clerk of court substantially met the deadline imposed by the three-year statute of limitations.

On appellate review, we will uphold the summary judgment if there is no genuine issue of material fact and the evidence shows the moving party is entitled to judgment as a matter of law. Voegele v. Estate of Schock (Mont. 1987), [229 Mont. 259,] 745 P.2d 1138, 44 St.Rep. 1950, 1953; Rule 56(c), M.R.Civ.P.

In analyzing this issue, we note that “[A] civil action is commenced by filing a complaint with the court.” Rule 3, M.R.Civ.P. “Filing” is the operative verb. “Filing” is defined in Rule 5(e), M.R.Civ.P.: “The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court . . .” The words “filing them with” are not the equivalent of “mailing them to.” Unlike service by mail, which is complete on the date of mailing, filing by mail is not complete until the pleading is placed in the custody of the clerk of court. Plaintiffs presented no evidence that the complaint was in the clerk’s custody prior to March 1, 1983.

The complaint was placed in the mail three working days prior to the expiration of the statute of limitation. The complaint was mailed from Anaconda, which is only twenty-five miles from Deer Lodge. Plaintiffs reasonably assumed that a letter placed in the mail on Wednesday would arrive by Monday. However, the burden of vigilance was on plaintiffs to monitor the timely delivery and filing of the complaint.

The statute of limitations is explicit. By the letter of the law, the late filing was fatal to plaintiffs’ claim. We will not resurrect a complaint which was not properly brought before the court. We hold that the District Court properly dismissed plaintiffs’ claim.

Issue 2. Relief from judgment under Rule 60(b)(1).

Following summary judgment, plaintiffs moved for relief under Rule 60(b), M.R.Civ.P., which states:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect;

The District Court did not respond to plaintiffs’ motion. When a court does not rule upon a Rule 60(b) motion within forty-five days after it is filed, the motion shall be deemed denied. Rule 60(c), M.R.Civ.P.

The statute of limitations does not discriminate between the just and unjust claim. The statute does represent legislative and public policy controlling the rights of potential litigants. In balancing these rights, the legislature placed the fulcrum precisely at three years — no more, no less.

A late filing is not a timely filing. Under Rule 60(b), the trial court does not have the judicial discretion to alter, change or lessen the statutory limits for the commencement of actions. We hold that the Rule 60(b) (1) motion was properly denied.

Issue 3. Waiver of affirmative defense.

Plaintiffs contend that Champion first raised the statute of limitations defense in its motion for summary judgment, and, therefore, Champion waived an affirmative defense which should have been raised in its answer.

Plaintiffs spent their entire brief in opposition to motion for summary judgment arguing the merits of the applicable statute of limitations. Plaintiffs never raised the waiver issue, although the lower court was the proper forum to do so. As we have repeatedly held, we will not consider an issue raised for the first time on appeal. Rozel Corp. v. Dept. of Pub. Service Reg. (Mont. 1987), [226 Mont. 237,] 735 P.2d 282, 286, 44 St.Rep. 618, 623.

We affirm the District Court.

MR. JUSTICES HARRISON, WEBER, HUNT and McDON-OUGH concur.


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    ANDREA “ANDY” BENNETT, State Auditor and Commissioner of Insurance of the State of Montana, Plaintiff and Respondent, v. GLACIER GENERAL ASSURANCE COMPANY, Defendant, and Missoula Motel Associates, FairmontHot Springs, et al., and Missoula Hotel Development Associates, Petitioners in Intervention and Appellants.
    No. 87-179.
    Submitted Dec. 8, 1987.
    Decided Dec. 31, 1987.
    748 P.2d 464.
    Worden, Thane & Haines, Stacey Wedele-Wade argued, Missoula, for Missoula Motel Associates.
    Knight, Dahood, McLean & Everett, Ray J. Dayton argued, Anaconda, for Fairmont. '
    Datsopoulos, MacDonald & Lind, Ronald B. MacDonald argued, Missoula for Missoula Hotel Development Associates.

      Robert G. Mullendore, Missoula, Peter C. Pauly, Helena, John A. Donavan, John C. Fauve, Los Angeles, Cal., William H. Coldiron, Helena, Melvin Wald, Los Angeles, Cal., Robert Stephan, Phoenix, Ariz., Betty J. Nguy„ BriarclifF Manor, N.Y., Peter Michael Meloy, Helena, Estelle M. Depper, San Francisco, Cal., Charles C. Wehner, Los Angeles, Cal., Donald L. Ostrem, Great Falls, Arthur Shartsis, San Francisco, Cal., James Treece, Los Angeles, Cal., Robert A. Kudra, Chairman, Mont. Guaranty Associates, Great Falls, Floven L. Fink & Leslie Michael, Los Angeles, Cal., for other petitioners in intervention and appellants.
    Erdmann & Wright, Charles E. Erdmann argued, Helena, for Glacier General Assur. Co.
    Robert Throssell, State Auditor’s Office, Helena, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is the appeal of an order from the First Judicial District, Lewis and Clark County. The order dismissed the petitions of the three intervenors in the liquidation of Glacier General Assurance Company (Glacier). We affirm.

We consider one issue on appeal. Did the District Court err when it dismissed for lack of jurisdiction each intervenor’s petition for return of funds on deposit?

In 1984, Missoula Motel Associates (MMA) borrowed $1,250,000 to finance the purchase of a motel complex in Missoula. The lender required that MMA obtain a financial guarantee bond for the amount of the loan. MMA purchased the bond from Glacier, and, as part of this transaction, MMA was required to deposit with Glacier $72,589 which represented three months principal and interest payments and other assessments on the underlying loan commitment. The agreement between the bank and MMA provided that the deposit would be returned to MMA upon retirement of the bond (satisfaction of the debt) or would be surrendered to Glacier in the event of default on the debt.

In late 1983, Fairmont Hot Springs Resort, Inc., Fairmont America, Inc., Fairmont Homes, Inc., and Leroy M. Mayes (Fairmont) also purchased a financial guarantee bond from Glacier. Fairmont deposited with Glacier $276,000 representing three months payments on the underlying loan. This deposit was held just as that of MMA. Missoula Hotel Development Associates (MHDA), in 1983, also acquired a financial guarantee bond with Glacier and deposited an additional $250,000.

On March 12, 1985, Glacier was ordered into rehabilitation pursuant to Section 33-2-1332, MCA. The following July, MMA refinanced its loan and paid its note with the lender. The lender discharged Glacier from liability under the bond on July 23. The bond was surrendered to Glacier that same month. In August, MMA petitioned to intervene in the rehabilitation and sought an order from the District Court directing the rehabilitator of Glacier’s estate to return the deposit of $72,589 since the bond obligation was discharged. The court allowed MMA to intervene and held a hearing on August 20, 1985. In November 1985, Glacier was ordered into liquidation and the commissioner of insurance, Andrea Bennett, was appointed liquidator pursuant to Section 33-2-1342, MCA. The liquidator notified Fairmont and MHDA, individually, that their bonds were canceled effective December 12, 1985, as required by Section 33-2-1343, MCA. Fairmont and MHDA each subsequently intervened and filed petitions for return of their collateral in August and November, respectively. The intervenors also have filed timely claims for their funds as creditors under Sections 33-2-1364 and 33-2-1365, MCA.

In November 1986, these petitioners submitted testimony in District Court on their claims to the deposits. In a January 1987 order the court determined that each of the petitioners was similarly situated and, after discussing their claims, decided that it lacked jurisdiction over the matter. As a result, each action was dismissed.

The following is the District Court’s discussion of the jurisdiction issue:

“Finally, in briefing its position with regard to the claim of Fairmont herein, the Montana Insurance Guarantee Association, which would have to pay policy holders any money paid claimants, points to Section 33-2-1348(1), which provides in pertinent part:
“ ‘Upon issuance of an order appointing a liquidator ... no action at law or equity may be brought against the insurer or liquidator, . . . nor shall any such existing actions be maintained or further presented after issuance of such order.’
“Section 33-2-1365(l)(e) sets up a right to submit a claim with the liquidator setting forth any right of priority payment or other specific right. Section 33-2-1368 provides for hearing before a court or court appointed referee on any such claim that cannot be resolved between the claimant and the liquidator.
“This is very specific legislation which should be deemed to take precedence over general legislation or court rules as to standing to bring a suit. Taken together these procedural provisions, together with the general intendment of the act that the liquidator be in charge of the entire liquidation proceedings, indicate a clear legislative intent that the liquidator have exclusive jurisdiction to consider all claims for any moneys under his control before claimants have access to the court. It is my understanding that all three claimants here have, as a matter of fact, timely filed their claims with the liquidator under 33-2-1364. We hold specifically that the sections cited require that all three of the actions considered here must be dismissed for lack of jurisdiction.”

Did the District Court err when it dismissed for lack of jurisdiction each intervenor’s petition for return of retained collateral?

Intervenors urge this Court to apply bankruptcy law by analogy to the situation now before us. We see no reason to reach outside the liquidation act for our determination. Section 33-2-1348(1), MCA, as applied to this case, is clear and unambiguous. This statute promotes the purpose of this legislation as expressed in Section 33-2-1302(3)(c) and (d), MCA:

“The purpose of this part is the protection of the interests of insureds, claimants, creditors, and the public generally . . . through . . . enhanced efficiency and economy of liquidation, through clarification of the law, to minimize legal uncertainty and litigation; [and] equitable apportionment of any unavoidable loss. .

We note as well that Sections 33-2-1301, et seq., MCA, are to be construed liberally to effect the purpose as set forth above. Section 33-2-1302(2), MCA.

Intervenors petitioned the District Court to order the liquidator to return the funds on deposit with Glacier. These petitions constitute actions against the insurer or liquidator within the meaning of Section 33-2-1348(1), MCA. This statute is worded clearly. Once liquidation is ordered, “no action at law or equity may be brought against the insurer or liquidator . . . .” Intervenors have attempted to shortcut the liquidation process, contrary to the liquidation act, and the District Court properly dismissed the petitions.

Accordingly, we affirm the District Court’s dismissal of the three actions for lack of jurisdiction. In the absence of jurisdiction, the District Court could not render any additional ruling. Consequently, we vacate the balance of the District Court’s order which we have not specifically affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, SHEEHY, GULBRANDSON, HUNT and McDONOUGH concur.


author: MR. CHIEF JUSTICE BRANTLY,

text:
    NORTHWESTERN NATIONAL BANK OF GREAT FALLS, Plaintiff, v. GREAT FALLS OPERA HOUSE COMPANY, C. M. WEBSTER, J. BOOKWALTER, H. O. CHOWEN, F. P. ATKINSON, IRA MYERS and ERNEST CRUTCHER, Defendants. F. P. ATKINSON, Appellant, v. C. M. WEBSTER, O. CHOWEN, IRA MEYERS and ERNEST CRUTCHER, Respondents.

      ON APPEAL.

      [No. 1,089.]
    [Submitted April 18, 1899.
    Decided June 5, 1899.]
    Sureties— Contribution — Pelease of Cashier — Public Policy— Consideration — Evidence.
    1. The right of a surety, who has paid a judgment against his principal, and himself and other sureties, to enforce contribution from a co-surety, under the Code of Civil Procedure, Section 1242, which provides that a surety paying a judgment against his principal and himself and other sureties shall be entitled to the benefit of the judgment, to enforce contribution or repayment, if within 10 days after payment he shall file with the Clerk of the Court where .the judgment was rendered notice of his payment, and claim for contribution, is npt barred by the lapse of 3 years after the payment of a judgment, but exists so long as the judgment is alive; such a proceeding not being an ordinary action within the meaning of Section 559 of the Code of Civil Procedure.
    2. Courts will not, as a matter of public policy, enforce a release of a liability of a cashier of a bank, obtained by him in consideration of a loan to the promisor of funds of the bank.
    :3. An agreement to release a cashier of a bank from a personal obligation, based upon an agreement by him to loan the promisor bank funds, is without consideration.
    ■4. In a proceeding by sureties to enforce contribution from a co-surety on a judgment • paid by them, it appeared that the money with which the judgment was paid was borrowed on the Individué! note of the sureties seeking to enforce contribution; that at the maturity of said note it was paid with money borrowed on the note of the principal judgment debtor, a corporation, which was indorsed by the sureties, who were members of its board of trustees; that the corporation was insolvent, and had been from the time of the payment of the judgment; that its liabilities greatly exceeded its assets; that at the time of the indorsement of the note it was well known by the indorsers, as well as the nonpaying co-surety, who was also a member of its board of trustees,.that it would have to be paid by the indorsers; that it is still unpaid; and that the execution of said note was never authorized by the board of trustees, of which fact the co-surety had notice. Held, that the sureties hadnotbeen reimbursed by the principal debtor for the amount paid by them in satisfaction of the judgment.
    .5. In an action to enforce contribution, under the Code of Civil Procedure, Section 1242, which provides that a surety paying a judgment upon which he is jointly liable with others as surety shall be entitled to the benefit of the judgment to enforce contribution or repayment, if within 10 days after payment he shall file with the clerk a notice of payment, and claim of contribution, evidence that the execution of the notes on which the judgment paid was entered was authorized by the corporation defendant is immaterial.

      Appeal from District Court, Cascade County; Dudley Du Dose, Judge.

    Action by the Northwestern National Bank of Great Falls against the Great Falls Opera House Company and others. A judgment in favor of plaintiff was paid by Ernest Crutcher and others, who were sureties for the opera house company, and joint judgment debtors. From an order directing execution to issue in favor of the paying sureties against F. P. Atkinson, the latter appealed.
    Affirmed.
    Statement op the Case.
    This is an appeal from an order made and entered in the district court of the Eighth Judicial District, in and for Cascade county, on January 30, 1897, directing execution to issue in favor of C. M. Webster, E. Crutcher, H. O. Chowen and I. Myers against their co-defendant and co-surety F. P. Atkinson.
    On the 13th day of December, 1892, the. plaintiff in this cause recovered judgment against the Great Falls Opera House Company, a corporation, as principal, and C. M. Webster, J. Bookwalker, H. O. Chowen, F. P. Atkinson, I. Myers and E. Crutcher, as sureties, for the sum of §1,701.50, with interest at the rate of 10 per cent, per annum from the date thereof until paid, together with plaintiff’s costs and disbursements, amounting to §7.50. On the 17th day of December thereafter, the defendants C. M. Webster, H. O. Chowen, I. Myers and E. Crutcher, claiming that they had paid off the judgment so rendered, with costs and accrued interest, amounting at that time to the sum of §1,739.50, filed with the clerk of said court a notice of the payment by them of said judgment, and that they claimed contribution from their co-defendant sureties, J. Bookwalker and F. P. Atkinson, and repayment to them by their co-defendant principal in the said debt so paid to the plaintiff, in pursuance of the provisions of Section 348, First Division of the Compiled Statutes of Montana 1887. Thereafter, and on the 27th day of May, 1896, the said Webster, Chowen, Myers and Crutcher served notice upon their co-defendant F. P. Atkinson that they would on the 3d day of June, 1896, or as soon thereafter as they could be heard, move the court to order execution on the judgment in the said action to issue in their favor and against the said Atkinson for the sum of §341.80, with interesDfrom the 17th day of .December, 1892; said sum be; ing the proportion which he was liable to pay to them in consideration of their having paid the judgment. At the time when this notice was served upon F. P. Atkinson, there was also served upon him, and filed in said court, an affidavit on behalf of.the moving parties setting forth the recovery of the judgment aforesaid; that the same was rendered upon a promissory note made by the Great Falls Opera House Com pany as principal, and the other defendants named therein as sureties; that all the defendants named therein, other than the Great Falls Opera House Company, were liable only as sureties; that they were jointly and severally liable to and bound by the said judgment, and were co-sureties among themselves; that subsequently, and on December 17, 1892, the said Webster, Chowen, Myers and Crutcher, being so liable with the other co-defendant sureties, jointly paid the full amount thereof as aforesaid; that they thereupon duly filed with the clerk of the aforesaid court in which the judgment was rendered notice of such payment, and claim to contribution from the defendants Atkinson and Bookwalter; that the defendants Great Falls Opera House Company and Bookwalter were wholly insolvent, and had no property at any time after the 13th day of December, 3 892, and up to the time the motion was made, subject to attachment or execution; that said Bookwalter was a nonresident of the state of Montana; that neither Bookwalter nor the Great Falls Opera House Company nor the defendant F. P. Atkinson had paid the said judgment, or any part thereof, nor had either of them paid any part thereof to the moving parties to reimburse them for the payment they had made; that the moving defendants, Webster, Chowen, Myers and Crutcher, had paid more than their share of said judgment; and that the sum of $341.80, with interest thereon at the rate of 10 per cent, per annum from December 17, 1892, was justly due and wholly unpaid by the said Atkinson.
    On June 10th thereafter F. P. Atkinson appeared in answer to said motion, and filed his affidavit admitting that he was one of the defendants in the above entitled action, and a co-surety with the moving defendants. He then denied that the moving defendants, or either of them, did on the 17th day of December, 1892, or at any other time, jointly or otherwise, pay the amount of said judgment, or any part thereof. He denied that the said J. Bookwalter or the Great Falls Opera House Company did not have at any time since the 13th day of December, 1892, any property subject to execution. He alleged that for a long time after the alleged payment of said judgment by the moving defendants the said J. Book-waiter and the Great Falls Opera House Company were both solvent; that the said company had ample property out of which said judgment could readily have been made; and that the said J. Bookwalter had property, subject to execution and unincumbered, sufficient to more than pay his proportion of said judgment. He denied further that the moving defendants, or either of them, had paid more than their proportion of said judgment, or that a sum equal to one-fifth of the same, or any sum whatever, was justly or otherwise due from him to them, or either of them. As a special defense he further alleged that during all the times mentioned he was the cashier of the Cascade Bank of Great Falls, a corporation doing business fin the city o’f Great Falls, and that as such cashier he was authorized to handle and loan its money; that the money with which the judgment referred to in the moving defendants’ affidavit was paid on December 17, 1892, was obtained by a note given by the said Great Falls Opera House Company, and that after its maturity, and on or about the 14th day of February, 1893, the said moving defendants, who were sureties upon the said note, having conceived the plan and intention of securing to themselves the property, building and real estate of the Great Falls Opera House Company, in conjunction with others, and with a view of carrying out this plan and intention, and to discharge the indebtedness of the said company on the said note, as well as other indebtedness, borrowed from him, as cashier, or from his bank, on the note of the Opera House Company, indorsed by themselves, and due in 90 days, $3,200, with which to pay off the balance of the note given by the said Opera House Company to pay off the said judgment, and that, in consideration of this affiant’s consenting to make such loan upon said note, the said moving defendants then and there agreed with the affiant to release him from all liability upon the said judgment referred to in favor of the plaintiff in said cause, and never at any time thereafter to hold him accountable for any part of the same in any wise; and that affiant, in consideration of this promise and agreement on their part, loaned them the said sum of $3,200, taking therefor the promissory note of the Opera House Company to the bank, indorsed by the moving defendants, with others, and payable as aforesaid, with interest at 1 per cent, per month. As a further special defense, the defendant Atkinson alleged that the claim of the moving defendants for contribution set out in their affidavit was barred by the provisions of subsection 1 of Section 514 of the Code of Civil Procedure of the State of Montana.
    Thereafter, on the 28th day of January, 1897, the moving defendants, after notice to defendant Atkinson, moved the said court to strike out of the affidavit of Atkinson all that part of his first special defense stated therein, setting forth the contract between him and the moving defendants under and by virtue of which he was released from his liability upon the judgment recovered by the plaintiff on the 13th day of December, 1892, and also the whole of the said second special defense in which he set up the plea of the statute of limitations. The grounds of the motion were that the matters alleged in the special defenses were frivolous and immaterial, that the alleged contract was void as against public policy, and that the statute of limitations had no application. The motion was sustained. Thereafter, on January 30, 1897, the court, after hearing of proof, directed execution to issue in favor of the moving defendants as prayed for. From this order the defendant F. P. Atkinson appeals.
    Clayberg, Corbett c§ Gunn, W. G. Downing, and W. M. Doohrill, for Appellant.

      I. ParT&er Veazey, for Bespondents.
   MR. CHIEF JUSTICE BRANTLY,

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

Appellant complains that the court below committed error in the following particulars:

(1) In striking out his plea of the statute of limitations.

(2) In striking out his defense of release based upon his alleged contract with respondents.

(3) In directing execution to issue notwithstanding the proof showed that respondents had been reimbursed for the money expended by them in the payment of the judgment.

(4) In sustaining the objection of respondents to the introduction as evidence of the minutes of a meeting of the board of trustees of the Opera House Company held on October 5, 1891.

We notice these questions in the order in which they are presented.

The contention is made by appellant that this proceeding is an action, within the meaning of the Code of Civil Procedure Section 559, and that the limitation of three years (Id. Sec. 514, subdivision 1) is available as a complete defense to respondents’ claim. It is true, as claimed by appellant, that the limitation begins to run against the right of a surety to demand reimbursement from his principal, or contribution from his co-surety, as soon as payment is made by him; for, until such payment is made, no cause of action has accrued in his favor. (Wood on Limitations, Sec. 145; Oppman v. Steinbrenner, 17 Mont. 369, 42 Pac. 1015; Chipman v. Morrill, 20 Cal. 131; Stone v. Hammell, 83 Cal. 547, 23 Pac. 703; Richter v. Henningsan, 110 Cal. 530, 42 Pac. 1077.) It is also the rule that, in an ordinary action to enforce repayment or contribution, the right of action is not based upon the written instrument upon which the surety was liable to the payee. It is based upon an implied assumpsit for money paid by the surety for the use and benefit of the principal dr co-surety. (S6e authorities cited.) The law implies the promise upon the part of the principal to indemnify the surety for money paid by the surety for him, and upon the part of the co-surety to bear his share of the burden. Therefore, if this were an ordinary action for contribution, the limitation of three years invoked by the appellant (Sec. 514, subdivision 1, Code of Civil Procedure), would apply, and the claim of respondents would be barred This proceeding, however, is not an ordinary action within the meaning of Section 559, supra. Relief is here sought in a summary way by the respondents under the provisions of Section 348, First Division, Compiled Statutes 1887, brought forward into the Code of 1895 as Section 1242, Code of Civil Procedure. This section provides: ‘‘When property liable to an execution against several persons is sold thereon, and more than a due proportion of the judgment is satisfied out of the proceeds of the sale of property of one of them, or one of them pays, without a sale, more than his proportion, he may compel contribution from the others; and when a judgment is against several and is upon an obligation of one of them as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal. In such case the person so paying or contributing is entitled to the benefit of the judgment to enforce contribution or repayment, if, within ten days after his payment, he file with the clerk of the court where judgment was rendered, notice of his payment and. claim to contribution or repayment. Upon the filing of such notice, the clerk must make an entry thereof in the margin of the docket. ’ ’ An examination of the provisions of this section leads at once to the conclusion that its purpose is to relieve the paying surety from the necessity of bringing an action to enforce reimbursement or contribution. If a judgment has .been rendered against the principal and the sureties, this brings the surety within the class of those who, after payment, may invoke the provisions of the statute for relief. The action has already been had. The judgment fixing the liability of the parties has been entered. The surety paying for the principal or his co-surety is given “the benefit of the judgment to enforce contribution or repayment,” if he gives the notice required in the statute. He is not required to bring suit upon the judgment. No new judgment is contemplated. Otherwise, “the benefit of the judgment” given the surety would be in a large measure nugatory. It is clearly the intention of' the provision that the paying surety shall be substituted to all the rights of the plaintiff in the judgment, with the right and privilege of using it, just as the plaintiff could use it, to enforce by the process of execution thereon-the payment of such claim as he has. The same provision was construed by the Supreme Court of Minnesota in 1887 in Ankeny v. Moffett, 37 Minn. 109, 33 N. W. 320. In this case the court say: “To this right no condition is attached, except that of filing notice of payment and claim to contribution with the clerk of the court within ten days. The benefit of a judgment includes the means of enforcing it by execution. We think that it was the intention of the legislature that the subrogation, in such a case, by operation of .law, should be as extensive as that which would occur by express assignment, and that, by payment and filing the required notice, the party paying should be, ipso facto, subrogated to all the right of the judgment creditor. If a party attempts to enforce contribution when he is not entitled to it, or for a greater amount than is his due, of course he could be enjoined. ” The only thing necessary to put the process in motion, after complying with the statute, is for the paying surety to show, after notice to his co-surecy (Davis v. Heimbach, 75 Cal. 261, 17 Pac. 199; Clarke v. Austin, 96 Cal. 283, 31 Pac. 293), that he belongs to the class of persons contemplated by the statute, and the amount of his claim. This being done, the judgment is as efficacious in his behalf against his co-surety as it was originally in favor of the plaintiff against himself. This right would therefore be destroyed only by the death of the judgment from lapse of time. (Peters v. McWilliams, 36 Ohio State 155.) The limitation invoked by appellant therefore does not apply, and the action of the trial court in striking out the plea was correct.

We think the court below was also correct in striking out the allegation of appellant setting up his contract of release. In assuming the position he did, he sought to maintain the proposition that because, as a trusted officer of the Cascade bank, he had the authority to loan its moneys, he was therefore at liberty to make such agreements with, and exact such promises from, the customers of the bank, as would inure to his own personal profit: and that, too, without reference to his fidelity or disloyalty to his employer. It is a well-settled principle, both in law and equity, that the courts will not lend their aid to enforce contracts and promises, the tendency of which is to place one under wrong influences, or those which offer one a temptation to do what may injuriously affect the rights of third persons. Especially is this true in case of those who occupy fiduciary relations towards the business and property of third persons. They are not permitted to deal with the subject of their trust for their personal advantage. “Loyalty to his trust is the first duty which the agent owes to his principal. Without it the perfect relation cannot exist. Reliance upon the agent’s integrity, fidelity, and capacity is the moving consideration in the creation of all agencies. In some it is so much the inspiring spirit that the law" looks with jealous eyes upon the manner of their execution, and condemns, not only as invalid as to the principal, but as repugnant to the public policy, everything which tends to destroy that reliance. ’ ’ (Mechem on Agency, Sec. 454.) It follows, therefore, that an agent will not be permitted to put himself in a position where his interests will be antagonistic to those of his principal. “An agreement which tends to lead persons charged with the performance of trusts or duties for the benefit of others to violate or betray them will not be enforced.” (2 Beach on Modern Law Contracts, Sec. 1513.) In Rice v. Wood, 113 Mass. 133, the court, in speaking of a secret agreement by which a broker was to get a commission from the purchaser of real estate which he had been employed to sell on commission, said: “Contracts which are opposed to open, upright, and fair dealing are opposed to public policy. A contract by which one is placed under a direct inducement to violate the confidence reposed in him by another is of this character. ’ ’ Cases might be multiplied which recognize and enforce this principle, but the following, which are more or less in point, are deemed sufficient: Continental Trust Co. v. Toledo, St. L. & K. C. R. Co., 86 Fed. 929; Lum v. McEwen, 56 Minn. 278, 57 N. W. 662; Bell v. McConnell, 37 Ohio St. 396; Bunker v. Miles, 30 Me. 431; Miller v. Davidson, 3 Gilman 518, 44 Am. Dec. 715; Tisdale v. Tisdale, 2 Sneed 596, 64 Am. Dec. 775; Byrd v. Hughes, 84 Ill. 174; Noel v. Drake, 28 Kan. 265; Atlee v. Fink, 75 Mo. 100; and Spinks v. Davis, 32 Miss. 152. In Atlee v. Fink, supra, the court say: “One employed by another to transact business for him has no right to enter into a contract with a third person which would place it in his power to wrong his principal in the transaction of the business of the latter, and which would tempt a bad man to act in bad faith towards his employer. The interests of the defendant’s employers, and those of plaintiffs, as buyers and sellers, were antagonistic, and defendant could not serve two masters in a matter in which there was such a conflict in their interests.” The contract under consideration comes clearly within the rule of these cases. Atkinson put himself by this agreement in a position where the temptation was to be less careful and scrupulous in taking security for the loan, and it is of no moment that in fact the security was good, and that the bank lost nothing by the transaction. So jealous is the law of such transactions, that, if the release had actually been executed, the bank could have made him account for the profit he gained; and, as this was not done, the law will not aid him in the enforcement of it.

But, apart from the question of the validity of the contract viewed from the standpoint of public policy, we do not think it rested upon any consideration. Atkinson did not lend his own money, If the loan was a good one, then his duty to his employer was to make it. If it was not a good one, it was his duty to refuse it, for he cannot be heard to say that he made a bad loan in violation of his duty. His act in making the loan was therefore the act of the bank, his principal, and the consideration moved from the borrowers to the bank. The bank extended its accommodation, and it was compensated by the payment to it by the borrowers of the interest charged for the accommodation. He furnished no consideration whatever.

Appellant contends that the proof shows that the respondents have been reimbursed for the moneys paid by them in satisfaction of the judgment.. Upon this point the proof is the following: The judgment was rendered and entered on December 13, 1892, upon a promissory note signed by the Opera House Company as principal and the other defendants as sureties. On December 17, 1892, the respondents borrowed from the plaintiff herein, upon their individual note, the sum of $1,200. This sum was deposited to the credit of defendant Webster. He thereupon drew out this amount in three checks — one to pay the judgment of plaintiff herein, one to pay off a judgment of the same kind in favor of the Merchants’ National Bank and against the Opera House Company, the defendants interested in this controversy, and one Wegner, and one to the account of the Opera House Company. The last was a small balance of $7. The judgment in favor of the Merchants’ National Bank amounted to $2,212.50. When the note of the respondents fell due, they borrowed from the Cascade Bank, of which defendant Atkinson was cashier, the sum of $3,200, to be used,' with moneys borrowed from other sources, to pay off the $1,200 due to the plaintiff bank on their individual note. This was done on February 11, 1893. The note to the Cascade Bank was executed in the name of the Opera House Company by H. O. Chowen, as president, and C. M. W ebster, as secretary. It was indorsed by them and Myers and Crutcher. Chowen and Webster were in fact trustees and the president and secretary of the corporation. Myers and Crutcher were also trustees. The moneys borrowed from other sources were obtained in the same way. The sum of $5,000 had been borrowed by them in January ■ frojn the State Bank of Minneapolis,'Minnesota. The note made to this bank was indorsed by the respondents and one Dickerman. It was also executed in the name of the corporation. After paying off out of this loan some charges for interest upon a mortgage upon the property of the corporation and for insurance, the respondents deposited the balance, about §3,$00, together with the amount obtained from the Cascade Bank, in the Security Bank, to the credit of the corporation. This was done on February 14, 1893. Thereupon the amount of the note due the plaintiff bank was paid by a check of the Opera House Company drawn against this fund. This check was drawn by C. M. W ebster, the secretary and treasurer. The note due the Minneapolis bank was afterwards taken up by defendant Myers. This was some time in May, 1893. Since that time the respondents have been paying to Myers individually their share of the interest upon this sum. When the note to the Cascade Bank was paid, the money for that purpose was obtained from the Stockmen’s National Bank, at Fort Benton, Montana. The note given for this was signed by the Opera House Company, by its president and secretary, and was indorsed by the respondents, with A. W. Kingsbury, Theo. Gibson, and John Lepley. This was done on November 1, 1893. After that date this note was renewed from time to time, and was still due and unpaid at the date of the hearing herein. At the time these transactions took place, the property of the corporation, consisting of the building and the lots occupied by it, was mortgaged for §22,000. The corporation was also indebted, besides this sum, to the amount of §15,000 to §20,000. The mortgage was subsequently foreclosed, and the property sold to satisfy it. The property realized §17,000, leaving a deficiency judgment for the trustees of the corporation to pay. There were nine of these trustees, the appellant, and the respondents being of the number. The various transactions with the Cascade, Stockmen’s, and Minneapolis-banks were had without any meeting of the board of trustees, and without consultation with them by the respondents, they acting with Kingsbury, Lepley, and Gibson in case of the transaction with the Stockmen’s and Cascade banks,-, and with Dickerman in the transaction with the Minneapolis bank. Kingsbury, Lepley, Gibson, and Dickerman were not trustees.

All the parties interested knew fully the conditions surrounding the corporation, and the purposes for which the moneys wore being borrowed. All knew that the corporation was insolvent in 1892, that it remained so, and that, besides the mortgage indebtedness secured by the lien upon its property, it owed large amounts. All knew that the enterprise was an unfortunate one, and that ultimately the liability incurred, both upon the notes in the judgments and upon the loans afterwards secured, was personal. All were anxious to escape the perils of the wreck that had overtaken them, and to avoid further loss. The appellant understood this as well as the respondents. He was a member of the board of trustees, and,- if the respondents are to be charged with responsibility for acting for the corporation, he should be held to share the responsibility with them, because he dealt with them with full knowledge of the conditions. He therefore does not stand in the attitude of a stranger to the enterprise, trying to recover from the defunct corporation or from its officers upon a liability based upon representations made by them. He knew that they were acting, not as a board, but as individuals, and that as to him and them the corporation was not bound.

It is the rule that those who act as officers of a corporation cannot deny their authority to so act, when the rights of third parties are in question. But the appellant stands in no attitude to invoke this principle. He incurred no liability upon the faith of anything respondents have done, nor was he in any way deceived or misled by them to his injury. The banks from which the loans were obtained could properly say, perhaps, that these officers and the corporation are estopped to deny liability; but he, ■ from his relation to it and them, cannot make this claim. Under the facts surrounding these transactions, we think it would be inequitable and unjust to permit the appellant to escape liability to bear his part of the common burden. We do not think that the status of the debt incurred by the respondents to raise the money to pay the judgment on December 17, 1892, was in any way changed by their subsequent behavior with reference to it. Nor do we think that their use of the corporation’s name in executing the notes upon which they afterwards borrowed the money with which to pay it puts them in such a position, under the facts, that it can be fairly said that they have been reimbursed by their principal.

The minutes of a meeting of the board of directors held on October 5,-1891, were offered in evidence by counsel for appellant for the purpose of showing that the notes upon which judgments were entered in this case, and also in the case of the Merchants’ National Bank, (23 Mont., 57 Pac. 445), were authorized by the corporation. Upon objection, these were excluded. There was no error in this. It was claimed by respondents that they were authorized. Judgments had already been entered upon them. The appellant was a surety upon them, and judgment had been entered against him. The evidence was immaterial and wholly foreign to the investigation. It could only serve to incumber the record.

Let the order appealed from be affirmed.

Affirmed.

Mr. Justice Pigott, having been of counsel, took no part in this decision.


author: MR. JUSTICE HUNT, Mr. Justice Pigott :

text:
    STATE ex rel. KAISER WATER CO., Respondent, v. CITY OF PHILIPSBURG et al., Appellants.
    [No. 1264.]
    [Submitted May 8, 1899.
    Decided June 5, 1899.]

      Water Company— Contract with City — Municipal Corporations — Memdamus—Adequate Remedy at Law.

    1. Under a contract bya city with a water company by which the latter has to iurnish and keep in working order 16 fire hydTants for a period of 10 years at a rental of $112 per annum, the city to have the right at any time within 10 years “to take any additional number of fire hydrants at the annual rental of one hundred dollars each,” the city ordering additional hydrants, is liable for their rent for the remainder of the period of ten years, and not merely until the order is rescinded.
    2. Mandamus will lie to compel a city to audit and pay a bill which it owes to a water company for hydrant rent, although Political Code, Section 4703, provides that cities may sue or he sued in all courts and places.

      Appeal from District Court, Gremite County; Theo. Brantly, Judge.

    Application for mandamus on the relation of the M. & J. Kaiser Water Company against the City of Philipsburg and others. Judgment for plaintiff against defendant City of Philipsburg, and it appeals.
    Affirmed.
    Statement op the Case.
    Appeal from a judgment awarding to the plaintiff (respondent here) a writ of mandate requiring the defendant (appellant-here) to audit, allow, approve, and pay the bills of the plaintiff water company for water furnished the city of Philipsburg at the rate of $112.50 per annum for each of fifteen hydrants, and at the rate of $100 per annum for each of four more, during the life of the water company’s franchise.
    The petition for the writ of mandate avers the corporate-capacity of the plaintiff water company, the municipal incorporation of the defendant, the City of Philipsburg, and that-the other defendants are, respéctively, the mayor, aldermen, and clerk of said city. It is then averred that on January 5, 1893, a franchise was granted by ordinance to Michael and John Kaiser to lay pipes through the streets of Philipsburg, and to supply the city and its inhabitants, through them, with water for a period of ten years; that at the same time another ordinance was passed, in the nature of a contract for the supplying of the city with water, which provided as follows:
    <iNow, therefore, in consideration .of the said franchise, and of the completion and maintenance of the said water system according to contract, and for the further consideration of one hundred twelve and one-half dollars ($112.50) per annum per hydrant, the said Town of Philipsburg hereby contracts with the said Michael Kaiser and John Kaiser, their successors and assigns, for the use of fifteen nonfreezing, double-discharge fire hydrants, to be supplied to said town for the period of ten years from the time in the year 1893 that said water system is completed and said hydrants ready for use. Said hydrants to be always kept in working order by said Michael and John Kaiser, their successors and assigns, and to be always charged with water in quantity and pressure according to contract of said Michael and John Kaiser with said town. Said Town of Philipsburg to have the right at any time during said period of ten years to take any additional number of fire hydrants at the annual rental of one hundred dollars each. Said fire hydrants to be placed throughout the town of Philipsburg as directed by the board of aldermen, and not to be used for any purpose whatever except by the authorities of the town of Philipsburg.”
    It is then averred that the M. & J. Kaiser Water Company succeeded to the franchise and other rights of Michael and John Kaiser, and that the City of Philipsburg is the successor of the Town of Philipsburg; that under the said ordinance the petitioner’s plant was installed and operated with fifteen hydrants until August 1, 1895, when the city required the water company to put in four more hydrants, as provided for in the ordinance, which the petitioner did at a cost of about $1,000; that the city paid the petitioner all its bills presented monthly thereafter, as provided for in the ordinance, until the presentation of the bill of October, 1897, which the city refused to pay so far as it included amounts charged for the new hydrants, notice having been theretofore served by the city upon the water company that on and after October 1, 1897, it would discontinue the use and hiring of the four additional hydrants; that the hydrants are valueless except to the City of Philipsburg; and that the water system is kept supplied, and the additional hydrants are always ready for use.
    The city interposed a general demurrer to the petitioner’s application. A special demurrer was interposed by the individual defendants. The special demurrer was sustained, but the general demurrer was overruled. The City of Philips-burg elected to stand on its demurrer. Judgment was thereafter entered in favor of the petitioner and against the city. From this judgment the appeal is taken.

      Messrs. Dv/rfee c& Brown, for Appellants.
    The alleged rights of the respondent under this contract were not so supreme, or so jeopardized as to alter the relationship of ordinary creditor and debtor, an action at law is its proper and appropriate remedy in this case, and all of its alleged rights could be safely and adequately protected in such action; and to seek by the arbitrary and summary method invoked by it in this cause to collect an alleged debt is contrary to law, equity, reason or practice.
    Section 4703 of the Political Code grants the respondent a plain, speedy and adequate remedy, and having this, is by its very terms denied the privilege of the writ of mandamus.
    In the case of Crandell v. Amador County, reported in 20 Cal., p. 75, that court adopts the language of Mr. Justice Harris in the case of the People v. Thompson, reported in 25 Barb., p. 73, as follows: “The invariable test by which the right of a party applying for a mandamus is determined, is to enquire, first, whether he has a clear, legal right, and if he has, then, secondly, whether there is any adequate remedy to which" he can resort to enforce his right; if there is, he cannot have a mandamus. The writ only belongs to such as have legal rights to enforce, and find themselves without an appropriate legal remedy. To prevent a failure of justice, and only for this, the court will avail itself of this extraordinary power.” That such has been the one and uniform ruling of the courts, see: Price v. City of Sacramento, 6 Cal., 255; Tilden v. Sacramento Co., 41 Cal., 68; Bewis r. Barclay, 35 Cal., 213; Jacobs v. Board of Supervisors City and County of San Francisco, 100 Cal., 121; Dillon on Municipal Corporations, Sec. 97; 17 Pac. Pep., 135. Counsel for respondent seem to rely wholly for a decision in this case on that rendered by this Court in State ex ret. Great Falls Water Woflts v. City of Great Falls, 19 Mont., 518; 49 Pac., 15. We claim, however, that the cause at bar and the Great Falls case are in no sense analogous, — both the conduct of the cause and the confessed facts differ materially in this. The law as stated in Price v. Cit/y of Sacramento, and followed by the authorities heretofore cited, in our opinion, is the correct and most reasonable rule.

      Mr. T. J. Walsh, for Eespondent.
   MR. JUSTICE HUNT,

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

The City of Philipsburg refuses to pay the bill of the water company for the four additional hydrants it ordered the water company to put in, upon the ground that, under the clause of the contract ordinance which is quoted in the statement of the case, when the city ordered additional hydrants it entered into a yearly lease with the water company to hire such additional hydrants, and that, having an option to take the additional hydrants, it also had the option to stop the hiring at the end of a year, at the election of the city. Eelying upon this construction of the contract, the city seeks to maintain the position that it elected to terminate its lease of the four additional hydrants it had ordered, and to discontinue the use of them, at the end of the second year’s lease, after paying in full for the same. But in our opinion the agreement cannot receive .that construction. Following the familiar principle that courts will not make an agreement for persons, but will get at what their agreement is, we will look to the written words voluntarily employed by these parties, and to the effect of their language. We will also look at the whole of the ordinance constituting the contract, giving to every clause, and, if needs be, to every word thereof, a meaning, — all with a purpose to so construe the contract as to make effectual the objects and intentions of the parties. ■

It is perfectly plain that for the fifteen hydrants first mentioned in the contract the city was to pay for ten years from the time in the year 1893 that the water system was completed and the fifteen hydrants were ready for use. As to this there is no room for argument. The then present needs of the city, and the apparent certain future needs thereof, justified the agreement whereby fifteen hydrants should be taken, and kept supplied and ready for use for 10 years, at an annual rental of §112.50 per annum per hydrant. Doubtless a possible decrease of the city’s population, followed by requirements for less fire protection, was not considered of sufficient likelihood for the city to reserve to itself in the contract a right to discontinue the use of less than fifteen hydrants for the fixed period of ten years. But, whatever may have moved the parties in respect to the fifteen hydrants, they made express provision for increased needs, if they should occur, by that clause of the contract which gave to the city the' right at any time during the period of ten years for which the fifteen hydrants were taken to take any additional number of hydrants at an annual rental of §100 each. Acting upon this clause of the agreement, and presumably to meet the necessities of the municipality, the city took the four additional hydrants, requiring the water company to put them in, which it did at an expense of §1,000. As' we interpret the agreement, the city had no right to order and take these additional hydrants upon any other basis than that upon which it took the first fifteen hydrants, except in so far as it was expressly otherwise provided for in the ordinance itself. The stipulated annual rental of $100 for each additional hydrant, which was $12.50 less than for the first fifteen, is a circumstance tending to show that the meaning of the parties 'was that additional hydrants, if taken, would be kept in' use for a substantial period of time, which we construe to mean for as many years after the taking as there might be left to run under the ten-year period fixed for taking the fifteen hydrants. It is reasonable to believe that some period of time was in the minds of the contracting parties, during which the city would be obliged to pay for the additional hydrants; but we find nothing in the language used to warrant the construction that the period contemplated was one year only, or the lease a yearly one, subject to termination at the end of that time.

As we construe the contract, too, the obligation rested upon the water company to keep these additional hydrants supplied, and always in working order, charged with water in quantity and pressure according to the contract with the town made by the water company’s predecessors, just as fully as it developed upon it to keep the fifteen hydrants charged and ready. In other words, we are satisfied that the obligations of the contract imposed upon the water company in respect to the fifteen hydrants for ten years rested upon the company equally, as relates to all additional hydrants for the years they had to be supplied, while, on the other hand, the correlative duty lay upon the city to pay for the additional hydrants in the same manner and from the time they were taken until the lapse of the same period provided for in relation to the fifteen hydrants. This construction insures for the city a water supply to meet its growth, and avoids the very unreasonable view that either party can refuse to perform or revoke without just cause.

As we regard it, the clause pertaining to additional hydrants, and stipulating for an annual rental therefor, was inserted, not to abbreviate the period of the contract’s duration, which is ten years from the date that the fifteen hydrants were ready for use, and is for as many years’ use of the additional hydrants as there may be between the date of their taking and the time that the ten years will expire since the taking of the fifteen hydrants, but was to secure to the city’ an adequate water supply to meet its possible future necessities, and to make certain that such supply would be .furnished at a reasonable and fixed price per hydrant. The particular obligations resting upon the parties in case additional hydrants should be taken, though not set forth, in express terms, must be ascertained by reference to that part of the provision of the contract governing the fifteen hydrants. We have * therefore read all the provisions together, and concluded, that the ten-year clause and those parts of the provision which require the supply to be furnished under certain pressure, and to be kept in working order, cannot be disassociated from the clause authorizing additional hydrants, but is to be construed with it.

The next contention of the city is that the water company having a plain, speedy, and adequate remedy at law, under Section 4703 of the Political Code, mandamus will not lie. Section 4703 provides, in part, that every city organized under Title III of the Political Code, relating to cities and towns, may sue and be sued in all courts and places, and in all proceedings whatever, and has such other powers as are incident to municipal corporations, not inconsistent with the laws of the United States or of the state. , The rule established by Section 4703 was in force, however, at the time of the decision of this Court in State ex rel. Great Falls Water Works v. Mayor of Great Falls et al., 19 Mont., 518; 49 Pac. 15. In that case the court was obliged to pass directly upon the question whether or not mandamus will lie to compel a, city to perform a duty imposed upon it by law, — to audit and allow proper bills it owes under the terms of a contract for a water supply, and to issue its warrant for the payment of the bills. It was held mandamus was a proper remedy. We cannot distinguish this case from that. It is true, as appears by the record, no demurrer was interposed in the Great Falls case; but the question of the sufficiency of the petition was raised by an objection to the introduction of any evidence on the ground that no cause of action for a writ of mandamus was pleaded. We will not depart from the rule there announced, in this case, where the facts are so very similar. This disposes of the only questions relied on in argument and brief.

Judgment affirmed. Remittitur forthwith.

Affirmed.

Mr. Justice Pigott :

I concur with Mr. Justice Hunt in his interpretation of the contract, and in the conclusion stated in the first paragraph of the foregoing opinion.

In holding that mandamus is a proper remedy, the second paragraph of the opinion follows State ex rel. Great Falls Water Works v. Mayor of Great Falls et al., 19 Mont. 518, 49 Pac. 15. I doubt the correctness of that decision in the respect mentioned, but ‘ '•stare decisis et non quieta movere. ’ ’

Me. Chief Justice Beantly, being disqualified, took no part in this decision.


author: PER CURIAM.

text:
    PATTEN, Appellant, v. HYDE, Respondent.
    [No. 1234.]
    [Submitted. May 8, 1899.
    Decided June 5, 1899.]

      New Trial — Setting Aside Verdict — Specifications.
    The Supreme Court will not disturb the action oí a trial judge in setting aside a verdict, where he is s itisfied that it is not warranted by the evidence.
    Specifications are sufficient to point out the particulars in which evidence is claimed to be insuffieie t to justify a verdict, which give the opposite party notice, and advise the court in plain language of the matters that would be urged on the hearing.

      Appeal from District Court, Granite County; Brantly, Judge.

    Action by James Patten against Joseph A. Hyde. There was a verdict for plaintiff. From an order granting defendant a new trial, plaintiff appealed.
    Affirmed.

      Mr. T. J. Walsh, and Messrs. Rodgers db Rodgers, for Appellant.
    • Mr. W. E. Moore, and Messrs. Dar fee dt Brown, for Respondent.
   PER CURIAM.

— Plaintiff (appellant) sues the defendant (respondent) for §750, together with interest, alleged to be due him upon a rescission of a sale of certain banking interests by the defendant to plaintiff and others.

Plaintiff’s complaint alleges that on the 4th day of April, 1893, the plaintiff and one Freyschlag and one Reins bought, and the defendant sold to them, a two-fifths interest in and to the capital stock of the First National Bank of Philipsburg, and in and to the banking firm of Hyde, Freyschlag & Co., and in and to the Joseph A. Hyde Banking Company, each of said persons agreeing to buy and to take for himself a one-third of said two-fifths-interest; that in consideration of said sale the said parties agreed to pay to the said defendant the sum of §52,250, and did pay him §2,250 in cash, and gave him their promissory note for the sum of §50,000, payable on April 4, 1894; that afterwards, on the 28th day of July, 1894, it was mutually agreed between said defendant and'the said plaintiff, Freyschlag, and Reins, that the said sale should be rescinded, and that the said defendant should return to them for cancellation the §50,000 note, and should repay to each of said persons his proportionate share of said §2,250 which had theretofore been paid; that thereupon the plaintiff, Freyschlag, and Reins, relinquished all their claim to said banking interest, and Hyde became the owner thereof; that Hyde released to the plaintiff and to Freyschlag and Reins the §50,000 note for cancellation, but refused to pay to the plaintiff his proportionate share of said §2,250.

The answer denies that defendant ever agreed with plaintiff, Freyschlag, and Reins, or either of them, that upon the resumption of the ownership of the two-fifths interest in the banking institutions he would repay to plaintiff, or to each of said persons, or to either or any of them, his proportionate share, or any share, of the $2,250, as alleged in the complaint, or at all; and denies that there was any agreement whatever that all or every person a party to the said contract, as alleged, should be placed in exactly the same position in relation to the said $2,250, or that there should be any change of position at all of any of said parties with reference to the said sum, by reason of said rescission of the contract. The defendant alleges that at the time of the rescission, as alleged in plaintiff’s complaint, it was agreed between plaintiff, Freyschlag, and Eeins, and defendant that, in consideration of the rescission of the contract by defendant, he (defendant) should retain the said $2,250, and that no part of said sum should be repaid to plaintiff, Freyschlag, or Eeins, or either of them, but that the return and cancellation of the said note for $50.000 was the only consideration that the said plaintiff, Freyschlag, and Eeins, or either of them, was to receive for said rescission of said contract.

The cause was tried before a jury, and a verdict rendered in favor of the plaintiff for the full amount sued for, and judgment was entered thereon. Defendant moved for a new trial, which motion was granted. Plaintiff, Patten, appeals from the order granting a new trial.

The district court granted a new trial on the grounds that under the allegations of the complaint the contract sued on was a joint one, while the evidence showed that, if any contract at all was made between the plaintiff and the defendant, it was several and separate, wherefore there was such a variance between the pleadings and the proof that defendant’s motion for a nonsuit ought to have been granted during the course of the trial, and because the evidence was insufficient to justify the verdict.

The question of whether or not there was a variance between the allegations of the pleadings and the proof which was material under the Code of Civil Procedure (Sections 770-772) need not be decided, for the plaintiff may amend before tbe case is tried again.

We have examined the testimony contained in the record, and find no good reason for disturbing the action of the district court in granting a new trial upon the ground that the evidence is insufficient to justify the verdict. It is thoroughly well settled that if a j udge before whom a case is tried is satisfied that a verdict is not warranted by the evidence, he should set it aside upon proper motion. (Hamilton v. Nelson, 22 Mont. 539, 57 Pac. 146; In re Carriger’s Estate, 104 Cal. 81, 37 Pac. 785; Ray v. Cowan, 18 Mont. 259, 44 Pac. 821; McCauley v. Tyler, 11 Mont. 51, 27 Pac. 391; Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057, and 43 Pac. 714; Menard v. Montana Central Railway Co., 22 Mont. 340, 56 Pac. 592; Jones v. Sanders, 103 Cal. 678, 37 Pac. 649; Warner v. Thomas Cleaning Works, 105 Cal. 409, 38 Pac. 960.)

We think that the specifications are sufficient to point out the particulars in which the evidence is alleged to be insufficient to justify the verdict. They are not as explicit in form as they might have been if they had strictly followed the rule approved of in First National Bank v. Roberts, 9 Mont. 323, 23 Pac. 718, and Strasburger v. Beecher, 20 Mont. 143, 49 Pac. 740; but they certainly gave the plaintiff notice, and advised the court in plain language of the matters that would be urged on the hearing of the motion. Harnett v. Central Pacific Railroad Co., 78 Cal. 31, 20 Pac. 154.

The order granting a new" trial is affirmed. Remittitur forthwith.

Affirmed.

Me. Chief Justice Beantly, being disqualified, took no part in this decision.


author: PER CURIAM

text:
    GALLAGHER, et al., Respondents, v. CORNELIUS et al., Appellants.
    [No. 1,095.]
    [Submitted April 20, 1899.
    Decided June 5, 1899.]

      'Appeal — Jurisdiction—Dismissal—Review — Record— Trial ly Referee — Findings—Few Trial — Contract of Indemnity — Municipal Corporations — Defense.
    ■l. An appeal from a judgment, not taken within one year after its entry, as required by Compiled Statutes 18S7, Division 1, Section 421, and Code Civil Procedure 1895, Section 1723, will be dismissed for want of jurisdiction.
    2. Where it does not appear from the record that appellant requested findings in writing by a referee, as required by Code Civil Procedure. Section 1114, as a condition to
    • reversal for want of findings, he cannot complain of the referee’s failure to make findings.
    3. Unless objections and exceptions to findings of a referee, for defects therein, are settled in a bill or statement, as required by Code Civil Procedure, Section 1115, they are not properly a part of the transcript on appeal, and will not be considered.
    4. Errors of law on appeal from an order refusing a new trial cannot be reviewed where a specification of such errors was omitted from the statement of the case on the motion therefor.
    5. That an alderman made an illegal contract with a city to construct a sewer is no defense to his contract to indemnify a third person for his payment of debts incurred in its construction, and expenses in excess of the stipulated price in comxileting the sewer according to contract.

      Appeal from District Court, Cascade County; C. II. Benton, Judge.

    Action by P. B. Gallagher, and another against J. W. and Minnie Cornelius, in which Morgan Cornelius intervened. From a judgment in favor of plaintiffs, and from an order refusing a new trial, defendants and the intervener appeal.
    The appeal from the judgment is dismissed, and the order is affirmed.

      Mr. T. E. Brady, Mr. James Donovan, Mr. F. A. Merrill and Mr. M. M. Lyter, for Appellants.
   PER CURIAM

— This action was brought to foreclose a lien in the nature of a mortgage upon certain real and personal property alleged to have been transferred to the plaintiffs by the defendants, J. W. Cornelius and Minnie Cornelius, as security for the indemnity and protection of the plaintiffs against any loss or damage resulting to them from the payment by them of certain debts theretofore incurred by J. W. Cornelius in the part performance of a certain contract for the construction of a sewer, awarded 'by the City of Great Falls to one Scotten for the secret benefit of J. W. Cornelius, who was the real contractor, and from outlay incident to the completion by them of said sewer at the request of J. W. Cornelius, and upon his express promise to reimburse them for all expense in excess of the price stipulated to be paid by the city for the faithful performance of the contract by Scotten. The plaintiffs, in pursuance of the request of the defendant J. W. Cornelius, paid for him the said debts, and completed the sewer according to the terms of the' contract. The complaint seeks also a personal judgment against J. W. Cornelius for $6,348.14, that sum being the difference between the said contract price and the total of the expenses paid by the plaintiffs. Several defenses were pleaded by the defendants, J. W. Cornelius and Minnie Cornelius. Morgan Cornelius intervened, claiming to own the horse “Montana Sneak” and the steamboat ‘ ‘Minnie, ’ ’ which were included in the bill of sale made by defendants, J. W. Cornelius and Minnie Cornelius, to the plaintiffs. The case was tried by a referee, who found for the plaintiffs, and a judgment was entered in their favor. The defendants moved for a new trial, which was denied, and they appeal from the order refusing a new trial and from the. judgment. Eespondents have not appeared'in this court.

The attempted appeal from the judgment must be dismissed for want of jurisdiction. The judgment was entered on the 15th day of October, 1895, and the notice of appeal was filed and served on the 2d day of March, 1897, — more than one year after its entry. Section 421, First Division, Compiled Statutes 1887 (Sec. 1723, Code of Civil Procedure, 1895.)

The defendants complain of the failure of the referee to make express findings on every issue, and they contend the findings that were made are defective. But it does not appear that the defendants requested findings in writing, as is required by Section 1114 of the Code of Civil Procedure. It is true, there is inserted in the transcript a paper containing objections and exceptions made by defendants to the findings for defects therein; but this paper is improperly in the transcript, and will not be considered, for the reason that it is not settled in any bill or statement. Sections 1114, 1115, Code of Civil Procedure.

Insufficiency of the evidence to justify the decision, and errors in law occurring at the trial, are the grounds upon which, in their notice of intention, the defendants say they will move for a new trial; but the omission from the statement of the case .on such motion of any specification of errors in law. restricts our investigation to a consideration of the evidence. The specifications of the particulars in which the evidence is insufficient to justify the findings are in proper form, but they are wholly lacking in substance and in merit. There is no need of incumbering the opinion with an abstract of the evidence. Suffice it to say that there was evidence, ample and abundant, tending to prove the truth of every material allegation of the complaint, and the falsity of all those averments of the answers which stated defenses. A careful reading of the testimony reveals neither failure of proof upon the part of the plaintiffs nor a preponderance of the evidence against them. On the contrary, examination of the evidence, as it appears in type, inclines us to the view that the referee was.clearly right in determining the issues in favor of the plaintiffs, and that the court wisely refused a new trial.

One of the defenses interposed is that the defendant J. W. Cornelius, while an alderman of Great Falls, entered Into the contract with that city, which is mentioned in the complaint; that the contract was awarded to said Scotten for the benefit of Cornelius, who was the real party in interest; that plaintiffs well knew these facts, and that the present suit is founded upon certain agreements and conveyances which were made between the plaintiffs and J. W. Cornelius for the purpose of indemnifying them against loss as sureties upon a bond executed by him and them to secure his performance of the contract theretofore awarded to him (in the name of Scotten) by the city, and to protect them from any pecuniary injury which might thereafter result from their completing the work, — they having, at his request, and because of his inability, subsequently finished the construction of the sewer. The defendants contend that the agreements and conveyances upon which the action at bar is based grew out of, and are so intimately connected with, the contract entered into between the city and Cornelius, as to taint the former with the illegality inherent in the latter. No case declaring such a doctrine to be applicable to the facts here disclosed is cited; indeed, no adjudication or reason whatsoever is called to our attention, or-advanced in support of the position. Sections 345, 375, Fifth Division, Compiled Statutes 1887, provide, among other things, that an alderman shall not be a party to nor interested in any contract, or the profits thereof, made by the city or town while he is in office. The sewer contract between the city and Scotten, 'alias Cornelius, was indirectly connected with the transactions out of which the plaintiffs’ cause of action arose. The proofs, however, satisfy us that the subject of the present suit is not “contaminated by the turpitude of the offensive’ ’ contract. Plaintiffs do not require the aid of the illegal contract to support their case. They are suing upon an express promise by Cornelius to reimburse them for money expended at his request, and upon a new and legal consideration. They may recover independently of the prohibited contract, to which they were not parties, and which is a mere item of evidence, or only an incident. “So, also, if an act in violation of either statute or common law be already committed, and a subsequent agreement entered into, which, though founded thereupon, constituted no part of the original inducement or consideration of the illegal act, such agreement is valid.” (Story on Contracts, Sec. 760; 2 Beach on Modern Law of Contracts, Sec. 1416; Thomas v. Brady, 10 Pa. St. 164, 170; Armstrong v. Toler, 11 Wheat. 258; 6 Law. Ed. U. S. Sup. Court Rep. 468; Armstrong v. American Ex. National Bank, 133 U. S. 433, 10 Sup. Court 450.) Nothing in Morrison v. Bennett, 20 Mont. 560, 52 Pac. 553, or Northwestern Nat. Bank v. Great Falls Opera House Co., (this day decided) ante 1, 57 Pac. 440, conflicts herewith. The contract sued on in the case at bar is subsequent and collateral to the prohibited contract, and does not partake of the illegality with which the latter was infected.

The appeal from the judgment is dismissed. The order refusing a new trial is affirmed. Let remittitur issue forthwith.

Affirmed.


author: MR. CHIEF JUSTICE BRANTLY

text:
    MERCHANTS NATIONAL BANK OF GREAT FALLS, Plaintiff, v. GREAT FALLS OPERA HOUSE COMPANY, C. M. WEBSTER, CHAS. WEGNER, H. O. CHOWEN, F. P. ATKINSON, IRA MYERS and ERNEST CRUTCHER, Defendants. F. P. ATKINSON, Appellant, v. C. M. WEBSTER, H. O. CHOWEN, and ERNEST CRUTCHER, Respondents.
    on appeal

      [No. 1,088.]
    [Submitted April 18, 1899.
    Decided June 6, 1899.]

      Principal and Surety — Judgment— Contribution — Remedy— Evidence.

    1. A surety who has paid a judgment against his principal and himself and others as sureties may take an assignment of the judgment to himself, and enforce contribution from his co-sureties; the remedy afforded by Code Civil Procedure, Section 1242, which provides that a surety paying such a judgment may have the benefit of it to enforce repayment and contribution, if within ten days after payment he files with the clerk a notice of payment and claim of repayment and contribution, not being exclusive.
    2. A judgment against a principal and sureties was paid by one of the sureties, who took an assignment of it to compel contribution from his co-sureties. Thereafter the judgment was, at the request of the paying surety, satisfied of record to relieve the real estate of the paying surety from the lien. It was intended to have it satisfied only as to the paying surety. Held, that as to a co-surety who paid no consideration for it, such satisfaction did not release his liability to contribute.
    3. In a proceeding to enforce contribution from a co-surety, by a surety who has paid and taken an assignment of a judgment against them, it is competent for the paying surety to testify that he did not intend to have the judgment satisfied as to his co-surety, where he had, after payment and assignment of the judgment, procured a formal satisfaction of it to release his real estate from the apparent lien thereof.

      Appeal from District Court, Cascade Cou/nty; Dudley Du Bose, Judge.

    Action by the Merchants’ National Bank of Great Falls against the Great Falls Opera House Company and others. A judgment in favor of plaintiff was paid by Ernest Crutcher and others, who were sureties for the opera house company, and joint judgment debtors. From an order directing execution to issue in favor of the paying sureties against F. P. Atkinson, the latter appealed.
    Affirmed.

      Messrs. Clayberg, Corbett dc Gunn, Mr. W. G. Downing, and Mr. W. M. Cockrill, for Appellant.

      Mr. I. Parker Veazey, for Respondents.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

This is an appeal from an order made and entered in the district court of the Eighth judicial district in and for Cascade county on January 30, 1897, directing execution to issue in favor of C. M. Webster, H. O. Chowen, and Ernest Crutcher against their co-defendant and and co-surety, F. P. Atkinson.

On December 22, 1892, the plaintiff herein recovered judgment against the Great Falls Opera House Company, a corporation, as principal, and C. M. Webster, Charles Wegner, H. O. Chowen, F. P. Atkinson, Ira Myers, and Ernest Crutcher, as sureties, for the sum of $2,212.50, with interest at 10 per cent, per annum from the date thereof. The motion for execution herein against F. P. Atkinson was made upon the same day as the motion made in the case of Northwestern National Bank v. Great Falls Opera House Co., et al., ante p. 2, 57 Pac. 440. It was heard at the same time, and upon substantially the same proof. The right to contribution from Atkinson in this case, however, is based upon a formal assignment of the judgment by the plaintiff to the moving defendants after payment of the same by them. This payment was made on December 23, 1892, and the facts with reference to it are set forth in full in the opinion in Northwestern National Bank v. Great Falls Opera House Co., et al., supra. The affidavit of the moving defendants herein differs from the affidavit made in that case in that it predicates the claim of contribution upon the assignment of the judgment. It also appears from the affidavit that, though assigned to the respondents, the judgment was thereafter formally satisfied by the attorneys for plaintiff at the request of some one of the respondents, in order that it might not appear as a lien upon the real estate of the respondents, which they were selling from time to time. This formal satisfaction is alleged to have been made for this purpose only.

The defenses alleged in the counter affidavit of Atkinson in this case are the same as in the former case. The action of the court upon the defense based upon the alleged contract of Atkinson with Webster, Chowen, Crutcher, and Myers, and also upon the plea of the statute of limitations, was the same. The contract sought to be made available herein is the same as the one alleged in that ease, Atkinson claiming that the agreement of release in consideration of the loan of $3,200 by the Cascade Bank on February 14, 1893, applied to both judgments.

After the proof was heard, the court below ordered execution to issue against Atkinson for $448.50, or one-fifth of the judgment, with interest; it appearing that Ira Myers had contributed his share of the judgment, and that Wegner was. insolvent. From this order Atkinson appeals.

Besides the assignments of error made in the former case, which were therein considered and disposed of, and will not, be here again examined, the appellant asks a reversal on two-grounds:

(1) That the court erred in granting the motion for the reason that no notice of payment and claim of contribution was filed as provided by Section 1242, Code of Civil Procedure; and

(2) That the court erred in granting the motion for the-reason that the judgment had been satisfied of record.

The contention is here made that the respondents,, having failed to give the notice required in order to avail-' themselves of the provisions of Section 1242, cannot have the-relief sought under the assigned judgment; and this is equivalent to saying that, because the legislature has provided a. summary mode by which a surety may enforce reimbursement or contribution under the judgment, the respondents may not, therefore, resort to the remedy invoked here. We understand, however, that the remedy provided by this section is cumulative, and that all the rights and equities existing in favor of the sureties in this regard will be enforced by the courts in proper cases, notwithstanding the existence of the statute providing the summary mode. The surety may proceed to obtain relief by any recognized mode. (McDaniel v. Lee, 37 Mo. 206; Peters v. McWilliams, 36 Ohio St. 155; German American Bank v. Fritz, 68 Wis. 390; 32 N. W. 123.) In the case of Peters v. McWilliams, supra, in commenting upon asimilar statute, the court say: “The effect of-this statute upon the case at bar is to give the plaintiff, who had an existing demand on defendant, a cumulative remedy. ’ ’ It clearly appears in this case that the respondents at the time of payment took an assignment of the judgment, intending to keep it alive in order to enforce contribution from their co-sureties. The question presented by this contention therefore is, may a surety who has paid a judgment against himself and his co-sureties take an assignment of it to himself, and avail himself of it to enforce contribution from his nonpaying co-sureties ? The right of a surety who has paid the judgment against himself and his principal to keep it alive by having an assignment made to a stranger for his benefit is well settled. (Freeman on Judgments, Sec. 470; Black on Judgments, Sec. 996.) He may also, as against his principal, be subrogated to all the rights of the creditor under the judgment, where such is the intention at the time payment is made. (German American Bank v. Fritz, supra; Eddy v. Traver, 6 Paige, 521; Goodyear v. Watson, 14 Barb. 486; Flemming v. Beaver, 2 Rawle, 128, S. C. 19 Am. Dec. 629; Freeman on Judgments, supra.) And this may be done whether an assignment be made for the benefit of the surety or not. (Scribner v. Hickock, 4 Johns. Ch. 530; Flemming v. Beaver, supra, with notes.) The court will, in such case, make the substitution, and grant such relief as may be proper. It is held, also, that a voluntary payment of the judgment by one of several defendants primarily liable thereunder inures to the benefit of all, and extinguishes the judgment. (Freeman on Judgment, See. 472.) “Whether one of the several persons against whom a joint judgment has been recovered may pay the judgment, and still keep it on foot by any means or for any purpose, is a -question upon which the authorities are very equally divided. ’ ’ (Id.) It is held in New York that this cannot be done. (Harbeck v. Vanderbilt, 20 N. Y. 395; Booth v. F. & N. National Bank, 74 N. Y. 228.) This rule is recognized in Massachusetts, Yermont, North Carolina, Indiana, and Alabama. (Hammatt v. Wyman, 9 Mass. 138; Porter v. Gile, 44 Vt. 520; Sherwood v. Collier, 14 N. C. 380, S. C. 24 Am. Dec. 264; Preslar v. Stallworth, 37 Ala. 402; Klippel v. Shields, 90 Ind. 81.) But there is an intimation in these cases cited from New York,. Indiana, and North Carolina that this is not the rule where, there are special circumstances in the case, and the judgment be assigned for the benefit of the paying defendant, or where he occupies the position of a surety, and not that of one who is primarily liable. In Klippel v. Shields, supra, the court say: “There are cases where a different rule applies; as where the person who pays the debt occupies the position of surety, or some similar relation. ”

On the other hand, it is held by eminent authority that a-surety who pays the judgment for his principal and co-sureties may not only keep the judgment alive as to his principal to enforce reimbursement, but also against his co-sureties for the purposes of contribution; and this may be done either by assignment to a third party for the benefit of the surety paying, or by direct assignment to the surety himself. (Coffee v. Tevis, 17 Cal. 239; Wheeler’s Estate, 1 Md. Ch. 80; Brown v. White, 29 N. J. Law, 514; Scribner v. Hickock, supra; Lidderdale's Ex'rs v. Robinson’s Ex'r, 12 Wheat. 595; 1 Brandt on Suretyship (2d Ed.) Sec. 279.) The right to subrogation in such cases is made to depend upon the intention of the debtor at the time the payment is made. In Campbell v. Pope, 96 Mo. 468, 10 S. W. 187, a judgment had been rendered against several joint defendants, including the city of St. Louis. The judgment was for a tort. Under a clause ini its charter the city of St. Louis was only secondarily liable. This judgment was assigned by the plaintiff to a third party, to be kept alive for the benefit of the city, which paid it for the purpose of enforcing contribution. The court supports the right to do this, and, after citing with approval the doctrine of the cases supra, say: “We must hold, and do hold, that the payment made by Campbell for the assignment of the judgment was not intended to be a satisfaction of the-judgment, and that the assignment thereof to him was made-for the purpose of keeping the judgment alive, so that it might be enforced against the co-defendants, who, under the judgment and charter provision above quoted, were primarily liable for its payment.3 3

We are unable to draw any substantial distinction between the rights of a surety against his principal and his rights as against his co-surety. In each case they are founded upon the implied agreement, growing out of the relation the parties bear to each other, that the one will refund or make good to the other money paid out by the former for the benefit of the latter. If the assignment can be made to a third party, and he can proceed as the agent of the paying defendant to enforce contribution against the co-defendants, there is no sound reason why the same thing cannot be done by an assignment directly to the paying defendant himself, and contribution enforced in his name. To say that one can do through an agent what he cannot do himself seems absurd. In the case of Coffee v. Tevis, supra, the court brushes aside this fiction, and treats the judgment assigned to the agent as if it had been made directly to the paying defendant. We are of the opinion, not only that the assignment may be made for the benefit of the co-surety, but that it may be made directly to the person who is to benefit by it, and that he may enforce it in his own name. This conclusion seems to be in conformity with the spirit of our statute that the real party in interest shall prosecute the action in his own name. (Section 4, First Division, Comp. St. 1887; Sec. 570, Code Civil Procedure 1895.)

It appears from the record, without dispute, that the judgment in this case was formally satisfied by an entry on the judgment record some time after the assignment was made. The respondents were engaged in dealing in real estate, and this satisfaction was entered in order that the lien of the judgment might not appear as a cloud upon their title. The judgment standing open as to them, they were put to the inconvenience of securing releases, or giving bond to clear the title. Crutcher, after taking advice, procured the satisfaction to be entered by counsel for the bank. It was intended to have it entered as to respondents only. Atkinson had no connection with the matter, nor did he pay any consideration for it. The contention is made that this entry of satisfaction precludes the respondents from obtaining any relief. This contention would be well founded if the satisfaction had been entered generally by plaintiff before the assignment, or, at the request of the defendants, after the assignment, for the purpose of discharging the judgment. (Freeman on Judgments, Sec. 466.) But such was not the case here. The judgment was assigned by the plaintiff to the respondents, to be kept alive by them for the purpose of enforcing contribution, and no entry of satisfaction thereof would inure to the benefit of the non-paying sxirety unless the intention was thereby to discharge him. It was the intention here that the satisfaction of the judgment should be effective only as to the respondents, and not as to the other defendants. It was not entered in pursuance of any agreement between appellant and respondents. Therefore, as to him, the judgment remained unsatisfied, and, if in force at all against him, it was in force for all purposes. A formal satisfaction of a debt, without payment, where it is intended that discharge shall take effect upon such payment, does not prevent the payee from enforcing the collection of his claim. There is no reason why the same rule should not apply to a judgment. In reaching the conclusions we announce in this case, we are not unmindful of the old distinctions between actions at law and in equity. Under the provisions of our statute (Comp. St. 1887, First Division, Sec. 1; Constitution Art. VIII, Sec. 28; Code of Civil Procedure 1895, Sec. 460) these distinctions as to form have been abolished, and the court, having jurisdiction of the parties, can afford such relief as the facts of the case may justify. (Faurot v. Gates, 86 Wis. 569, 57 N. W. 294.) An examination of the authorities cited in the former part of this opinion will show that courts of equity readily granted such relief as is sought herein, and we see no reason why it should be denied here, and the respondents driven to a separate action.

A further assignment is made by counsel for appellant in their argument, though it is not in their brief, that the court below erred in permitting respondent Crutcher to state in his testimony that it was not his intention, at the time he procured satisfaction of the judgment to be entered, to satisfy it as to appellant. This evidence was clearly competent, and the trial court committed no error in admitting it.

Let the order appealed from be affirmed.

Affirmed.

Mr. Justice Pigott, having been of counsel, took no part in this decision.


text:
    IN RE APPLICATION OF PLUME FOR LEAVE TO PROVE EXCEPTIONS.
    [No. 1,415.]
    [Submitted June 2, 1899.
    Decided June 6, 1899.]

      New Trial — Statement on Motion for New Trial — Delay— Mandamus — Appeal.
    Code Civil Procedure, Section 1157, and Supreme Court Rule 4, Subdivision 14, providing that where the judge refuses to settle a proposed statement to be used on motion for a new trial in accordance with the facts the party aggrieved may apply to the supreme court for leave to prove such statement before a referee, or by deposition, does not apply to a refusalto settle the statement because of unreasonable delay, as the remedy in that case is by mandamus; or, Semble: Since the order was made after final judgment, the remedy by appeal might be resorted to.
    On the application of D. J. Plume for leave to prove exceptions.
    Application dismissed.

      Mr. If. Gr. Swaney, for petitioner.
   PER CURIAM.

— Original proceeding. The petitioner makes application to this court for leave to prove before a referee, or by deposition, the facts in relation to a statement of the ease on motion for a new trial. The application is made under Section 1157 of the Code of Civil Procedure and Subdivision lé of Rule IV of this court.

The petition discloses that a judgment of nonsuit was entered against the plaintiff (petitioner) on the 15th day of February, 1898; that thereafter plaintiff duly filed and served a notice of his intention to move for a new trial of the-cause; that subsequently he served a draft of his proposed statement of the case, to which defendant proposed amendments; that the plaintiff, not adopting the amendments, delivered the proposed statement and amendments to the clerk for the judge, in accordance with the provisions of Subdivision 3 of Section 1173 of the Code of Civil Procedure; that on the 2d day of May, 1899, the proposed statement, with the amendment, was presented to the judge, and that on May 13, 1899, an order was entered refusing to settle the statement, upon the ground that unreasonable time had elapsed since the statement was presented to the clerk of the court, to the making of which order the plaintiff excepted.

Neither Section 1157 'nor the rule of this court above referred to is applicable to this proceeding, for the section and the rule have in contemplation those instances only where the judge, while willing to settle a statement or bill, refuses to allow an exception in accordance with what the party aggrieved claims are the facts. Neither has reference to the action of the judge refusing to settle any bill or statement whatever upon the ground of unreasonable delay in seeking settlement. The petitioner has mistaken his remedy. If the judge or court below abused his or its discretion in making the order by which a settlement was refused, mandamus will lie; or, since the order was made after final judgment, the tedious remedy by appeal from that order might, perhaps, be resorted to. It is well established, at least, t.hat mandamus, being speedy as well as plain and adequate, is an efficient remedy in such case. (Careaga v. Fernald, 66 Cal. 351, 5 Pac. 615; Brown v. Prewett, 94 Cal. 502, 29 Pac. 951; Flagg v. Puterbaugh, 98 Cal. 134, 32 Pac. 863; People v. Bitancourt, 74 Cal. 188, 15 Pac. 744; People v. Lee, 14 Cal. 510; Hicks v. Masten, 101 Cal. 651, 36 Pac. 130; Hayne on New Trials and App. Sec. 146, Subd. 2, pp. 404-410; Id. Sec. 155, Subds. 1, 2, pp. 450-457.) In Ayotte v. Thomas, 20 Mont. 223, 50 Pac. 553, the record showed that the judge-below simply declined, without entering any order to that, effect, to settle the statement, for the reason that it was not served in time, and the opinion does not disclose that the-refusal was made after a final judgment. We do not decide whether in the matter now before us an appeal lies from the order refusing to settle the statement, nor do we think that the Ayotte case is an authority either for or against the existence of the right to appeal from such an order as the one attempted to be presented in the proceeding before us. If appeal is a proper remedy, it is not, as is mandamus, speedy.

The motion of the petitioner is denied, and the application, is dismissed.

Dismissed.