author: MR. COMMISSIONER OLAYBERG Pee Oueiam.

text:
    YANK, Respondent, v. BORDEAUX, Appellant.
    (No. 1,668.)
    (Submitted October 12, 1903.
    Decided November 4, 1903.)

      Constables — Levies — Bala of Property — Proceeds — Actions —Pleadings—Denials ■— Evidence — Introduction—Estoppel to Object.

    1. Where, in an action to recover money from a constable, tlie complaint alleged that defendant refused to pay plaintiff the money, and wrongfully retains and still holds the possession thereof, and the answer merely contained a denial “that defendant wrongfully retains or holds possession” of the sum, or any part thereof, such denial operated to deny the “wrongful” possession, only, and constituted an admission of possession.
    2. Where, in an action against a constable to recover money received as the proceeds of the sale of property levied on, alleged to belong to plaintiff, defendant, in his answer, admitted possession of the money when the demand was made, evidence that at the time of such demand defendant had, paid over the money on the executions was properly refused.
    3. Language used by the supreme court in its opinion on a former appeal which was not necessary to the decision, and was mere dictum, is not the law of the case.
    4. Where plaintiff claimed title to one-half of the proceeds of all the ore in certain bins, under a bill of sale purporting to convey one-half of the ore in the bins at the time the bill was executed, evidence that, after such execution, additional ore was placed in the bins, was admissible to defeat plaintiff’s claim to one-half of the proceeds of all the ore in the bins.
    5. Where plaintiff introduced evidence on a particular issue without objection, he should not.be allowed thereafter to object to the introduction of evidence by the defendant on the same issue.

      Appeal from District Court, Silver Bow Countyj John Lindsay, Judge.

    AotioN by John Yank against Thomas Bordeaux, constable. From a judgment in favor of plaintiff, and from an order overruling’ a motion for a new trial, defendant appeals.
    Reversed.

      Messrs. McIIation & Cotter, for Appellants.

      Mr. E. B. Howell, for Respondent.
   MR. COMMISSIONER OLAYBERG

prepared the opinion for the court.

There bare been two trials of tliis case in the1 court below. The first- resulted in a judgment and verdict for defendant, which was reversed by this court, and a new trial ordered. (Yank v. Bordeaux, 23 Mont. 207, 58 Pac. 42, 75 Am. St. Rep. 522.) The second trial resulted in a judgment- and verdict for plaintiff, from which, and from an order overruling' a motion for a new trial, this appeal is prosecuted.

The facts upon which this action is based are about as follows, viz.: Some ten men entered into a written contract under date of March 11, 1896, to. work the West Elba mine under lease. Seven of the men were parties of the first part under this contract, and agreed to perform, all labor necessarily required in the working- of the mine. The other three, Pliondorf, Pearson and Thompson, were parties of the second part under this contract, and agreed to furnish all supplies necessarily required for such working. The net proceeds were to be divided between the parties of the first and second part equally, each to- receive one-half thereof. About the 29th day of April, 1896, the three parties of the second part transferred, by written bill of sale, their undivided one:half interest in and to about twenty tons of ore then in the orehouse and bins at the mine, or the proceeds thereof, if the ore should afterwards be shipped and treated. The ore Avas shipped to the Parrot Smelting Company, and treated by that company. The net proceeds, of the shipment amounted to $868.76, of which plaintiff claimed to. be the owner of one,-half, or $434.38. After the ore had been treated, the defendant, as constable, levied upon that part of the proceeds claimed by the plaintiff, under writs directed against plaintiff’s grantors, collected the money, and had the same in his possession Avlien this suit Avas brought, as admitted in defendant’s answer. The plaintiff then demanded of defendant the release of his portion of the proceeds of the ore from the levy, and the payment- to him of $434.38, AA'hich Avas refused, and .thereupon plaintiff instituted this suit. A complaint Avas filed containing allegations of which the following is' a brief summary, viz.: (1) That defendant was a duly elected and qualified constable in Silver Bow county. (2) That plaintiff was owner of one-half of the- net proceeds of a certain shipment of ore “worked” by the Parrot Smelting Company, amounting to the sum of $434.38. (3) That the defendant wrongfully levied upon such proceeds under a certain execution. (4) That plaintiff made the demand upon defendant as above stated!, which was refused by defendant, and that defendant “wrongfully retains and still holds possession of the said sum, to plaintiff’s damage in the sum of $434.38.” Then follows the prayer, in the following language: “Wherefore plaintiff demands judgment against the defendant in the sum of $434.38, and costs of this action.” To this complaint the defendant filed an answer, which is briefly as follows: (1) Admits that he is constable. (2) Denies the allegations of ownership. (3) Denies that he wrongfully levied upon plaintiff’s interest. (4) Admits the demand and refusal alleged. .(5) Denies that he “wrongfully retains or holds possession of said sum, or any part thereof, to plaintiff’s damage.”

No question concerning the sufficiency of these pleadings seems to have been raised by either party upon either trial or appeal, but both parties have always treated them as sufficient to raise all the issues in the case. Some very interesting and troublesome questions suggest themselves to usi, as to the character and sufficiency of the complaint, viz.: (1) What is the character of this action — conversion, trespass, or assumpsit? (2) Are the allegations sufficient to maintain either action ? (3) If in assumpsit, could'a recovery be had in such action under the decision of this court in Merchants’ & Miners’ Nat’l Bank v. Barnes, 18 Mont. 335, 45 Pac. 218, 47 L. R. A. 737, 56 Am. St. Rep. 586 ? None of these questions seem ever to have been raised, or even suggested, and wie will therefore not consider or decide any of them; but, inasmuch as'the case must be reversed, we have thought proper to suggest them for the consideration of the respective attorneys. We also suggest the question as to whether the denials in the answer are sufficient to raise any issue save that of plaintiff’s ownership.

We shall only consider two of the numerous errors assigned, as all O'tbei* errors argued were, if errors at all, without prejudice to the defendant.

Defendant offered testimony for the purpose of showing that, at the time plaintiff made demand on him. for the funds in controversy, he no longer had possession of the same, but had paid the amount upon the execution in his hands, above referred to. This the court refused to allow, and defendant assigns such ruling as error. This ruling is correct. It will be noticed that the allegation of the complaint is that the defendant refused to pay plaintiff the money, “and wrongfully retains and still holds possession of said sum/’ and that the denial in the answer is as follows: “Denies, upon his information and belief, that the defendant wrongfully retains or holds possession of said sum, or any part thereof.” This denial is only as to the wrongful possession, and is no> denial of actual possession. (McCauley v. Gilmer, 2 Mont. 202; Harris v. Shontz, 1 Mont. 212; Toombs v. Hornbuckle, 1 Mont. 286; Proctor v. Irvin, 22 Mont. 547, 57 Pac. 183.) It thus appears that by the answer of de fendant he admitted that he was in possession of the money in question at the time the demand was made upon him. He cannot be allowed to introduce proof in contradiction of this admission in his answer. True, this court, on the former hearing of the case, used the following language, which is relied upon by the defendant: “Had the defendant prior to notice of plaintiff’s claim paid over the money collected under the levy the plaintiff would doubtless be without remedy against him.” This language of the supreme court was not necessary to the decision of the former appeal, is therefore mere dictum, and is not the law of the case. No doubt, had: the attention of the court been called to the fact that defendant had admitted' in his answer that he was in possession of the money when demand was made, the court would not have used such language. Therefore we conclude there was no error in refusing to allow the defendant to show that he had paid the money over on the executions at the time the demand was made by plaintiff.

Appellant complains that the court refused to permit him to prove that, subsequent to the execution and delivery of the bill of sale, about four tons of ore, “of equal or greater value” than that theretofore hoisted, had been hoisted from the mine, mixed with the ores in the orehouse (which plaintiff had bought), and1 shipped to the smelter, and were a part of the ores smelted, the net proceeds of which were attached by the defendant and claimed by plaintiff.

The bill of salo under which plaintiff claims describes the property in the following language : “All of our right, title and interest in and to about twenty tons of silver and gold ore now contained in the orehouse and orebina of the1 West Elba mine, lot 243, T. 3, N. R. 7 W., Silver Bow county, Montana, the said ore having been extracted by the said parties and: others.”

The first witness for plaintiff testified: “When I received this bill of sale for Mr. Yank I went over to the mine with Mr. Phondorf and told Mr. Hughes, about it. Tie was in charge there at the time. I saw the shipment of ore. It was in the house there. Mr. Hughes showed it to me.”

A. P. Phondorf, a witness on behalf of plaintiff, also testified: “Mr. Yank was. not there, and I gave the bill of sale to Mr. Lingley, and we together went out to the mine, and Mr. Hughes, the engineer, who was on top', and Mr. Lingley, showed him the bill of sale; and Mr. Hughes showed Mr. Lingley where the ore was, of which the bill of sale was a transfer.” On cross-examination, Phondorf testified as follows: “As far as I remember, there was something like nineteen or twenty tons of ore in the bin when we made the sale. I know that because I remember something about the size of the pile. This is an estimate. I did not know the exact weight. * * * The ore we sold Mr. Yank at the time we gave this bill of sale was in the orehouse.”

It is clear from the foregoing testimony that the ore intended by Phondorf and Pearson and James to be transferred to plaintiff by the bill of sale was in the orehouse at the mine when, the bill of sale was made. On cross-examination of Phondorf, he .further testified as follows: “I did not know whether there was any more ore taken out of the mine, but the mine ran for a while, because we bad to take out the pumps. If you consider that, the mine ran for perhaps, four or five days after. The ore we sold Mr. Yank at the time we gave this, bill of sale was in the orehouse, and the other was ore hoisted out of the mine after that. I could not tell you how much. It may have been half a ton — something like that. It was not over a ton. Q. Did you not state on cross-examination that there was some ore hoisted out of the mine and put in these bins ? A. I thought there had been. I did not know there had been. I could not say there had not been.”

Counsel made the following offer of proof as to ores being-raised from the mine and placed in the orehouse with the ore in question: “We offer to prove- by this witness and the other witness, Mr. Oleson, that after the date of tire alleged bill of sale, and before they had any knowledge of it, or notice of its existence, they hoisted about four tons of ore of equal or greater value than the ore that had theretofore been placed in the bins, and placed it in the bins, at the West Elba mine, and that this ore was part of the shipment of April 30th, for which plaintiff received the proceeds, and for which this action was commenced.” The court excluded this offer, and the defendant alleges .error. There is no doubt but that defendant had a perfect right to show that ore had been hoisted and placed in the same bin with the ore in question, and shipped and reduced with the ore in question, after the bill of sale had been given. The bill of sale only purported to convey to plaintiff an undivided one-half of the ore in the orehouse at the date thereof. If more ore was. placed therein after that date, and shipped to the smelter, and treated at the smelter, plaintiff certainly could not, under his bill of sale, claim that he was- entitled to one-half of the net proceeds of such ore. lie did not buy it; it was not conveyed to him; he had no interest in it; yet he seeks in this action to obtain a judgment for an undivided one-half of the proceeds of all the ore shipped to the smelter and reduced at that time.

An examination of the record discloses the further fact that plaintiff called one E. N. Hughes as a witness, who gave testimony on plaintiff’s examination tbat no ore was hoisted from tbe mine after tbe execution of tbe bill of sale; tbus demonstrating tbat plaintiff appreciated- tbe importance of tbe question, and deemed evidence necessary to be introduced on bis side of tbat issue. After having introduced evidence upon an issue without objection, be should not be allowed to object to the introduction of evidence by tbe defendant upon the same issue. The offered testimony was- very important upon tbe issue of plaintiff’s ownership-, which was properly raised by tbe pleadings, and its exclusion was error.

We advise tbat tbe judgment and order appealed from, be reversed, and a new trial granted.

Pee Oueiam.

Por tbe reasons, stated in the foregoing opinion, tbe judgment and order appealed from are reversed, and tbe cause remanded for a new trial.


source: Caselaw Access Project

author: ME. COMMISSIONER CALLAWAY Per CuexaM.

license: Public Domain

text:
    HAMILTON, Respondent, v. MURRAY, Appellant.
    (No. 1,660.)
    (Submitted October 10, 1903.
    Decided November 4, 1903.)

      Ejectment — Verdict—Responsiveness io Issues — Appeal from an Order Denying a New Tmal — "Decision Against Law”— Review — Ouster—Intent.
    1. A verdict is bad which is not responsive to and decisive upon every material issue submitted to- the jury.
    2. Plaintiff in ejectment alleged ownership and possession, and ouster by defendant. Defendant’s answer denied all plaintiff’s allegations. On the trial the controverted issue was as to the location of a boundary line. The jury returned a verdict “in favor of the plaintiff and against the defendant for the possession of the premises in controversy,” etc. Held, that the verdict was bad, as not responding to all the material issues.
    3. Under Code of Civil Proceduree, Sections 1170, 1171, a verdict which fails to decide every material issue raised by the pleadings, is a “verdict against law,” hence, such question may be reviewed on appeal from the order denying a new trial, though there is no appeal from the judgment.

      4. In ejectment for building on plaintiff's premises, tbe fact that defendant was ignorant of the boundary line, and the intrusion was the result of his mistake or inadvertence, is no defense.

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

    Action by Patrick J. Hamilton against James' A. Murray. Judgment for plaintiff, and from an order denying a new trial, defendant appeals.
    Reversed.

      Mr. M. J. Cavanaugh, for Appellant.
    If a stranger begin to build on land supposing it to be his own, and the real owner, perceiving his mistake, abstains from setting him right and leaves him to persevere in his error, a court will not afterwards allow the real owner to assert his title to the land. .(Ramson v. Dysen, 1 PI. of L. 129 ; Code of Civil Procedure, Sec. 3265.)
    It is not necessary to plead license or permission; only technical estoppel should be pleaded, and technical estoppel m by deed or record. (Hostler v. Hayes, 3 Cal. 304; Churchill v. Bauman, 95 Cal. 541, 30 Pac. HO; Broom, Max. p>. 265; Civil Code, See. 4606.)
    ' The verdict is against law, for the reason that it does not determine the issues presented in the action. (Singleton v. Alee, 3 Hump. (Tenn.) 626; Cromelinv. Minter, 9 Ala. 594; Huff-alcer v. Boring, 8 Ala. 87; Sturdevant v. Murrell, & Port. (Ala.) 317; Jenkins v. Noel, 3 Stew. (Ala.) 75; Femuick v. Floyd, 1 Har. & G. (Md.) 1.72; Clark v. Clark, 7 Yt. 190; Clay v. White, 1 Munf.» (Ya.) 162; Gregory v. Jackson, 6 Munf. (Ya.) 25.)

      Messrs. Sanders & Sanders, for Respondent.
    There can be no equitable estoppel without the element of fraud present. (Watson v. Sutro, 86 Cal. 500; Stafford v. Ilornbuchle, 3 Mont. 487; Ferris v. Coover, 10 Cal. 589, 632; Alexander v. Kirr, 2 Rawle, 90; Crest v. Jack, 3 Watts, 239;
      Carr v. Wallace, 7 TVatts, 400; Robinson v. Justice, 2 Penn. 22; 11 Am, & Eng. Ency. Law, 434, 439; McGarrity v. By-ington, 12 Cal. 423; Boggs r. Merced Min. Co., 14 Cal. 279; Leonard v. Flynn, 24 Pac. 10P9; Griffith v. Brown, 18 Pac. 372; Griffith v. Wright, 6 Colo. 248; Dean v. Parker, 26 Pac. 91; Rayner y. Drew, 72 Cal. 307, 313; Breeze v. Brooks, 71 Cal. 169; Lux v. Haggin, 69 Cal. 255, 266; Flege v. Garvey, Ml Cal. 371, 377; Smith v. Penny, 44 Cal. 161, 166; Martin v. Zellerbo.ch, 38 Cal. 300, 315 ; Garyentier y. Thirston, 24 Cal. 269, 282; Clark y. Oooledge, S Kan. 189; Wendell v. Van Rensslear, 1 Johns1. Ch. 354; Parker v. Packer, 2 Mete. 423 ; Brewer v. B. <£• IF. P. B. Oo., 39 Am. Dec. 694; Hill y. Fpley, 31 Pa.- St. 331; Martin y. Angelí, 7 Barb. 407; Oiis v. /SWZ, 8 Barb. 102; Big’elow on Estoppel, 502; Smith v. Hamilton, 20 Mich. 438; Kellogg y. Smith, 7 Cush. 375; Lennox v. iZim-dricks, 4 Pac. 515 ; Christianson v. Linford, 26 N. Y. Superior Gt. Pep. 215; Miller v. Plait, 5 Drier, 273; Swick y. Sears, 1 Hill, 17; Graham v. PTiie, 20 S. W. 506; Schmidt y. Blanc, 6 Atl. 669; Collins y. Pi. Peters, 27 Atl. 425 ‘,McM asters v. Pres. etc. I. Co., 55 N. Y. 222.)
    If defendant intends to rely upon an equitable estoppel as a defense in an action in ejectment, before he can take advantage of it as such defense, he must specifically plead it. (De Votie y. McQerr, 24 P'ac. 925 ; Lanvrne v. Dodson, 4 Mont. 560, 590 ; Arguella v. Bours, 67 Cal. 450; Hicks v. Lovell, 64 Cal. 18, 21; Clarke v. Huber, 25 Cal. 594; Davis v. Davis, 23 Cal. 39 ; .Gariy v. Dowdell, 115 Cal. 677, 688.)
    In an action in ejectment the legal title will always prevail against an equitable one, if no equitable defense is pleaded. (Dorn\. Baker, 96 Cal. 206; Hartley v. Brown, 46 Cal. 465; Hartley et al. v. Brown et al.„ 51 Gal. 202; Kentfteld v. Hayes, 57 Cal. 409.)
    A judgment will not be disturbed because upon some different state of pleadings defendant might have been entitled to- recover. (Rogers v. Kimball, 121 Cal. 247.)
   ME. COMMISSIONER CALLAWAY

prepared tbe opinion for the court.

This is an appeal from an order denying defendant’s motion for a new trial. Verdict and judgment were for plaintiff. The action is ejectment. The complaint alleges “that on or about the 14th day of August, 1897, the plaintiff ivas the owner, and seised in fee, and possessed and entitled to the possession” of the land sued for, and that while he was so the owner, seised, possessed, and entitled to the possession of the-same, the defendant on saidi day entered into and upon the same and ousted and ejected the plaintiff therefrom, and ever since that day has withheld and still withholds the possession thereof from the plaintiff. Defendant’s ansAver denies all the allegations of the complaint, or, at any rate, has been treated by the parties as accomplishing that result, and also sets up other matters not important to be noticed here. The land in contiwersy is the east ten feet of lot 28, in block 23, original toAvnsite of Butte. It is plain that the complaint and ansAver sought to litigate the folloAving issues: The plaintiff’s oiraership, right of possession, and possession of the land mentioned, and ivhether the defendant has ousted the plaintiff therefrom, or any portion thereof.

The exact point in controversy is whether the. defendant has erected a building Avhich is partly upon plaintiff’s land, and therefore the gravamen of the action is, to1 discover Avhere the boundary line is between the lands of the plaintiff and defendant. At the trial plaintiff’s formal proof as to his ownership, right of possession, and possession of the east ten feet of lot 28 ivas not controverted by defendant. The combatted issue ivas Avhether the defendant had ousted and ejected the plaintiff from the east ten feet of lot 28, or some portion of it, and the parties directed their energies to this point. The plaintiff offered evidence tending to prove that defendant’s building encroaches upon his ground, and the defendant offered evidence to prove directly the contrary. The jury returned the folloAving verdict: “We, the jury in the above-entitled action, find a verdict in favor of the plaintiff and against the defendant for the possession of tlie premises in controversy in this action, to-wit, the east 10 feet of lot 28 in block 23 of the original townsite of Butte, hlontana, and we assess plaintiff’s damages at one dollar.” It will be observed that this is neither a general nor a special verdict. (Sec. 1100, C. C. P.) It is manifest that when it was rendered the respective parties were left in the same position they occupied when the trial began. So far as the real issues were concerned nothing whatever was: accomplished by the trial. In fact, this case discloses a clear instance of a mistrial. The verdict did not respond to all the material issues framied by the pleadings. It did not decide the question of ownership' or right of possession, and, what is worse, it did not decide the boundary question, which is what the parties were fighting over. In finding for the plaintiff for possession merely, the jury left undecided the question of title, which was directly alleged and directly denied; and the defendant, so far as one can determine from the verdict, may be actually the owner of the ground described in the complaint.

“A verdict is bad if it varies from the issues in a substantial matter, or if it find only a part of that which is in issue. The reason of the rule is obvious; it results from the nature and the end of the pleading. Whether the jury find a general or a special verdict, it is their duty to decide, the very point in issue; and, although the court in which the the cause is tried may give form to a general finding, so as to make it harmonize with the issue, yet if it appears to that court, or to' the appellate court, that the finding is different from the issue, or is confined h> a part only of the matter in issue, no judgment can be rendered upon the verdict.” (Patterson v. United States, 2 Wheat. 221, 4 L. Ed. 224.) .

“A verdict which finds but part of the issues, and says nothing as to the rest, is insufficient, because the jury have not tried the whole issue.” (Holt v. Van Eps, 1 Dak. 206, 46 N. W. 689.)

It may be stated as a general rule that the verdict should be responsive to and decisive upon every material issue submitted to the jury; in other words, it should comprehend the whole of the issue or issues submitted. (McCleary v. Crowley, 22 Mont. 245, 56 Pac. 227; Tompkins v. Corry, 14 Ga. 118; Meighen v. Strong, 6 Minn. 177 (Gil. 111), 80 Am. Dec. 441; Cannon v. Smith, 47 Neb. 917, 66 N. W. 999; Traun v. Wittick, 27 Ala. 571; Moore v. Moore, 67 Tex. 293, 3 S. W. 284; Gross v. Sloan, 54 Ill. App. 202; 22 Ency. Pl. & Pr. 864.)

When the jury returned with this imperfect verdict, the court should not have received it, but should have remanded the jury for further deliberation, with appropriate instructions. (St. Clair v. Caldwell, 72 Ala. 527.)

As this case must be remanded for a new trial, we suggest that the court submit to the jury, in addition to a form of general verdict finding upon all of the issues, a special finding to this effect: Does the building of the defendant encroach upon the land of the plaintiff, and, if so, how far ? The real question for determination being the location of the boundary line between the lands of the litigants, should be finally and definitely disposed of at. the new' trial, and could have been at the trial had upon the evidence adduced.

It may be contended, however, that, as there is no appeal from the judgment, the general rule being that, a verdict against lavT is where the verdict is rendered contrary to the court’s instructions, no newr trial can be granted, because the appellant has failed to pursue his proper remedy. The appellant assigns as error insufficiency of the evidence to' support the verdict, and that it is. against lav. Our Sections 1170, 1171, Code of Civil Procedure, were taken from California, and the construction placed upon similar sections by the supreme court of that state, under the V'ell known rule, is to be followed by us. _ In Knight v. Roche, 56 Cal. 15, the court said: “Section 656 of the Code of Civil Procedure declares a new trial to be ‘a re-examination of an issue of fact in the same court, after a trial and decision by a jury, court or referee’; and the next section provides that such new trial may be granted upon certain grounds; among others, Insufficiency of the evidence to justify the verdict or other decision, or that it is against law.’ Whatever else may be meant by the expression ‘decision against law/ we think there is no doubt that it includes a case where the decision is based upon findings, which do not determine all the material issues of fact raised1 by the pleadings.” Knight v. Roche was an action in ejectment, somewhat similar to the one at bar. (And see Cummings v. Conlan, 66 Cal. 403, 5 Pac. 796, 903; Langan v. Langan, 89 Cal. 186, 26 Pac. 764; Nuttall v. Lovejoy, 90 Cal. 163, 27 Pac. 69; Haight v. Tryon, 112 Cal. 4, 44 Pac. 318.)

In Brison v. Brison, 90 Cal. 323, 27 Pac. 186, it is said that: “When upon the. trial of a cause the court renders its decision without making findings upon all the material issues presented by the pleadings, it is held that such decision can be reviewed upon a motion1 for a new trial. In such a case there has been a mistrial, and the decision, having been rendered before the case has been fully tried, is considered to have, been a decision ‘against law.’ ”

The “findings” of the court correspond to the “verdict” of a jury. As said in Froman v. Patterson, 10 Mont. 107, 24 Pac. 692: “A new trial is to be ‘a re-examination of an issue of fact.’ The clause ‘it is against law’ refers to the ‘verdict or other decision’ of the issue of facts tendered by the pleadings. If the decision of the issue was made by a jury, it is usually termed a ‘verdict’; if made by a referee, or by the judge trying an issue without a jury, the determination of the issue of fact is usually termed the ‘decision’ or ‘findings of fact.’ ” In Brison v. Brison, supra, it is said: “A new trial is a re-examination of an issue of fact in the same court after a trial and decision (Code of Civil Procedure, Sec. 656), and is authorized for the purpose of vacating the former verdict or other decision (Section 657). The ‘decision’ which may be thus vacated is that which was given upon the original trial of the question of fact (Section 632), and upon which the judgment is to be entered. The provision that the judgment is to be entered ‘upon’ the decision (Section 633) implies that it is subsequent to and dependent on the decision. The judgment itself can be reviewed only by a direct appeal (Section 936) taken after its entry (Section 939). Tbe proceedings for a new trial are-, however, entirely independent of the entry of the judgment, and may be instituted either before or after its entry, and even while an appeal from the judgment is pending, and the motion may be granted even after the judgment has been affirmed on appeal. If granted, the decision is vacated, and, necessarily, the judgment dependent thereon falls with it. Spanagel v. Dellinger, 34 Cal. 476.” •

As this case must be tried again, it is proper’ to refer to the court’s instructions, although appellant is 'not in a position to complain of those discussed. Instruction No. 1, while correct as an abstract proposition of law, cannot be- said to be applicable to an action of this nature. The reason for this will appear in discussing instruction No. 2, which reads as follows: “The jury are instructed that if you find from the evidence that the defendant in this action built his building, or any portion of it, upon plaintiff’s land, and that such intrusion was through ignorance of the boundary line between plaintiff’s and defendant’s land, and was the cause of the mistake or inadvertence of the-defendant,' and that- there was no purpose or intention on the part of the defendant to disseise or oust the said plaintiff, or interfere with his possession to the part occupied by defendant’s building, then you are instructed as a matter of law that plaintiff cannot recover in this action, as there, is no such disseisin or ouster by defendant as would, give the plaintiff the right to an action in ejectment against the defendant, and your verdict must be for the defendant.” This instruction is erroneous. If defendant has built a brick Avail upon a part of plaintiff’s premises Avitliout the latter’s permission, such trespass constitutes an ouster, regardless of defendant’s intentions. If defendant claims he built the Avail Avitli plaintiff’s consent, the jury should be instructed upon the laAv applicable to such contention. This instruction also conflicts with instruction No. 7, which correctly states the 1'aw.

Some complaint is made by defendant because, as. he- asserts, plaintiff’s Avitnesses Macdonald and Baker, who are surveyors, and testified concerning the boundary line in dispute, gave testimony tending to contradict tbe description contained in plaintiff’s deeds and tbe official plat of the townsite. It does not appear from tbe record that tbe testimony bad such effect. Tbe way to find tbe boundary line is tO' actually locate tbe lines upon the ground, -and; if the original stakes can be found, they will be tbe very best evidence of tbe exact locus of tbe land in question.

It is not necessary to discuss any of tbe other errors assigned. We are therefore of tbe opinion that tbe order should be reversed, and tbe case remanded for a new trial.

Per CuexaM.

For the reasons stated in tbe foregoing opinion, tbe order appealed from is> reversed, and tbe cause remanded for a new trial.


author: prepared the opinion for the court. Pee. Cueiam.

text:
    CITY OF BUTTE, Appellant, v. COOK et al., Respondent.
    (No. 1,651.)
    (Submitted October 7, 1903.
    Decided November 4, 1903.)

      Municipal Corporations — Construction of Sewer — Contractor's Bond — Defect in Street —• Indemnification of City — Judgment Against City — Effect—Failure of Surety to Sign— Liability of Co-Surety.

    1. In a suit by a city against a sewer contractor to recover indemnity for liability for a defect in a street, tbe judgment roll in tbe case, in which the city’s liability was determined, showed that the plaintiff therein had located the excavation into which she fell. The record showed that the contractor had made an affidavit mi that case that he was the contractor for putting in a sewer at that location during that year, and in this case he testified that he was the contractor constructing the sewer, and remembered the night of the accident to the plaintiff in the former case. JfeZd, that it sufficiently appeared that the excavation which caused the original injury was made by the contractor.
    2. under Civil Code, Section 35S6, relating to the interpretation of contracts of indemnity, and providing that judgment against the indemnified person shall be conclusive against the indemnifying person if he had reasonable notice of the action, and otherwise shall be presumptive evidence against him, the burden is on the indemnifying person in a suit on the contract of indemnity to rebut the presumption thus 'raised; and whether the evidence he presents is sufficient for that purpose is a question of fact, so that a peremptory instruction in his favor is error.
    3. Where the names of two sureties appear in the body of an indemnifying bond, which is, however, signed by but one, the condition of the bond is notice to the obligee, so as to permit the defense, by the surety signing, that his liability wag conditioned on obtaining the signature of his co-surety.

      Appeal jrom. District Court, Silver Bow County; John Lindsay, Judge.

    .Actiox by the city of Butte against L. E. Coolc and another. Eroin an' order denying' plaintiff’s motion for a new trial, after judgment for defendants, plaintiff appeals.
    Reversed in part, and affirmed in part.

      Mr. J. L. Templeman, and Mr. Edwin M. Jjamb, for Appellant.
    The judgment roll in case No. 6,404 is conclusive evidence of the following facts: The amount of damages sustained by Margaret Joyce; the existence of the dangerous obstruction in Main street, at the point where the alleged injury occurred; the freedom of the injured person from negligence, and the rendition of judgment in favor of the injured person and against the city of Butte. (City of Chicago v. Bobbins, 2 Black, 418; Bobbins v. Chicago, 4 Wall. 658, 672; Van Fleet’s Former Adjudication, p. 1169, Sec. 576; Missouri Pac. B. B. Co. v. Twiss, 53 N. W. 76; Neu- Torle v. Brady, 151 N. T. 611; Pickett v. Ford (4 How.), 5 Miss. 246, 250; Sherman & Redfield on Neg. 4th Ed. Sec. 301.)
    The defendant Bray is liable1 upon the indemnifying bond, notwithstanding the failure of Oppenheimer to sign said bond. (Byers v. Gilmore, 50 Pac. 307..)

      Mr. John N. Kirie, for Respondents.
    The respondents were not bound by the judgment rendered against the city of Butte and they were entitled to make their defense in tbis action as though said judgment had never been rendered. Respondents could set upi and prove any defense they could have proved in the original suit, if they had been parties to it. (Bryant v. Owen, 1 Gra. 355; Bradwell v. Spencer, 1G Ga. 578; Jackson v. Griswold, 4 Hill, 522; Douglas v. How-land, 24 Wend. 35; Pico v. Webster, 14 Oal. 203; Civil Code, Sec. 3586, Subd. 6; 1 Freeman on Judgments, Sec. 181; Saver land v. Green, 36 Wis. 612; Axford v. Graham, 57 Mich. 422; Somers v. Schmidt, 24 Wis. 421; Mersey v. Long, 30 Minn. 114; Boyd v. Whitfield, 19 Ark. 447; 1 Greenleaf on Evidence, Secs. 522-523; Brandt on Suretyship, Secs. 630, 63G.)
    The court properly took the case from the jury and directed them to return a verdict for the respondents. (Code of Civil Proc. See. 1104; McKay v. Mont. Union By. Go., 13 Mont. 15 ; Abbott’s Trial Brief (2d Ed.), 365, 375, 380, and cases cited; 6 Ency. PL & Pr. 679; Code of Civil Proc. 1171; St. Louis, etc. B. Go. v. Whitile, 74- E'ecl. 296; Garver v. Lynde, 7 Mont-108; Toulouse v. Pare, 103 Cal. 251; Levitzky v. Canning, 33 Cal. 299 ; Pleasants v. Pant, 22 Wall. 116.)
    A surety may make any condition he chooses in signing a bond before delivery; and where it is signed by a party whose signature was- required as a condition to his signing, the surety will not be bound. (Hessel v. Johnson, 63 Mich. 623; Kurtz v. Porquer (Cal.), 29 Pac. 413; Brandt on Suretyship-, Secs. 402-403-; Goodyear D. Go. v. Bacon (Mass.), 8 L. E. A. 468.)
   ME. COMMISSIONER CALLAWAY

prepared the opinion for the court.

In August, 1896, the defendant Cook entered into a contract with the plaintiff respecting the construction of a sewer along one of its streets. The defendant agreed to- erect fences and other obstructions around open trenches, or keepi lights burning at night, or both, to protect the traveling public during the prosecution of the work; and to pay all damages to persons injured by his neglect to give proper warning. As security for the fulfillment of his contract, he executed to- the plaintiff city an indemnity bond in the sum of $5,000. In the body of the bond Cook appears as principal, with I. Ei. Oppenheimer and A. F. Bray as sureties. Cook and Bray signed the bond, which contained a provision to the effect that Cook would pay all sums of money, damages, costs and expenses Avhich the city might be compelled to pay by reason of any failure on his part to perform any of the terms or conditions of the contract. During the construction of the sewer Mrs. Margaret Joyce fell into an excavation made by defendant in the course of the work, thereby sustaining severe injuries. She brought suit against the city, alleging in her complaint that the accident occurred without fault or neglect on her part, and “that at the point where plaintiff was precipitated into the said hole or trench in'the said street the defendant, in disregard of its duty in that behalf, had failed to erect or construct any barriers or railings, in or about said hole or excavation and opening in said street, and had failed and neglected to use any signals to warn persons using the said street of the danger caused by said opening or trench therein, and that the said opening or trench ivas at a depth of about ten or twelve feet.” She prayed judgment for the sum of $'7,062. The city filed its answer, denying all of these allegations, and a trial resulted. The jury found for the plaintiff Joyce in the sum of $3,500, and the city thereafter compromised with her, paying her the sum, of $2,800. On March 12, 1898, the city of Butte brought suit against the defendants herein, Cook and Bray, to recover of them the sum of $2,800, which had been p;aid to Margaret Joyce as above set forth. The defendants answered separately. Cook admitted his execution of the contract and bond, and also the construction of the sewer by him^ but denied any knowledge or information as to whether Mrs. Joyce was precipitated or fell into any of the excavations as described in plaintiff’s complaint, and alleged that if any settlement or compromise ivas made with her it was without his knowledge or consent, and was against his will.- Bray admitted the execution of the bond, but pleaded that, by an express understanding between plaintiff, Cook and himself, he signed it and was to become liable thereon only on condition that one J. E. Oppenbeimer should sign the same as his co-surety, and alleged that .Oppenbeimer, contrary to tbe agreement, and without tbe consent of tbe defendant Bray, failed to sign it, and therefore said that be (Bray) was not liable thereon. At the trial of this, case the judgment roll in the case of Margaret Joyce, Plaintiff, v. City of Butte, Defendant, was introduced in evidence by tbe plaintiff.

Defendants introduced testimony tending to 'sustain their answers, and at tbe conclusion thereof their counsel moved the court to instruct the jury to return a verdict for them. The court sustained tbe motion, and entered judgment thereon. Thereupon the plaintiff moved for a new trial, which motion was by tbe court overruled. From tbe order denying the plaintiff’s motion for a new trial, and from said judgment, tbe plaintiff appealed. Tbe appeal from the judgment has heretofore been dismissed. "The cause stands on appeal from the order only.

The issues presented will be discussed under twe beads, as tbe answer's of tbe defendants present different issues.

Did the court err in sustaining defendants’ motion aforesaid ?

As to the defendant Cook. Plaintiff, appellant here, contends that all of the evidence which Cook introduced tending to show bis full performance of tbe contract was inadmissible*, because the evidence in the Joyce case was conclusive against him as to the existence of the excavation and dangerous condition of the street at the place where and time when the accident occurred. Defendant contends that the Joyce judgment is not in any way binding upon him, because, as he alleges, he was not allowed to control the defense in that action, nor did he have reasonable notice of tbe pendency thereof.

Upon this subject our statute (Section 3586, Civil Code) provides: “In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears: (4) The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, if he chooses to do> so. (5) If, after request, the person indemnifying neglects to defend the person indemnified, a recovery against the latter, suffered by him in good faith, is conchisive in his favor against the former. (6) If the person indemnifying, whether he is a principal or a surety in the agreement, has not reasonable notice of the action or proceeding against the person indemnified, or is not allowed to control its defense, judgment against the latter is only presumptive evidence against the former.”

If in a particular case the indemnitor had been requested to defend the action against his obligee under his contract of indemnity and neglected to do so, the judgment is conclusive against him. If lie had not reasonable notice of the action, or if, having such notice he was not allowed to control the defense, the judgment is only presumptive evidence against him. This' is a question to be decided by the trial court in the first- instance. Aside from his contention that he had no notice of the pendency of the Joyce action defendant insists that it does not appear from the Joyce judgment roll, or from, the p(roof adduced in this case, that the excavation into which Mrs. Joyce fell was one made by him in constructing the sewer. In this we differ from defendant. In her complaint Mrs. Joyce identified the excavation into which she fell as being upon. Main street, about one block; above the intersection of Copper and Main streets. The record shows, that Cook was a witness in the Joyce case; and also that at some time ppfior to tire trial he made an affidavit for a continuance therein on behalf of thp city in which he swore that he was the “contractor under the city of Butte for doing the excavation and putting in a sanitary sewer on Main street, between Quartz and Woolman streets, in the year 1896.” His witnesses in this case all testified concerning the manner in which the work was guarded and lighted, while defendant himself said, “I was the contractor constructing this sewer in 1896, and I remember the night of the accident, when Mrs. Joyce claimed to. have sustained some injuries there.”

It thus appears that the excavation was sufficiently identified, and that be not only bad reasonable notice of tbe pendency of tbe action of Joyce v. City of Butte, but participated in tbe.trial thereof, and having such notice the Joyce judgment was at least presumptive evidence against the defendant Cook, and when it was introduced in evidence the burden was upon him to» overcome by a preponderance of evidence, the presumptions it carried with it; whether the evidence he presented was sufficient for that purpose was a question of fact, and solely for the jury to determine. It follows that the court erred in sustaining the motion on part of defendant Oook.

The testimony of defendant Bray on his own behalf is undisputed. It is to the effect that he agreed to sign the bond with the understanding that Oppenheimer should also» sign it. In company with Cook, Bray went to the city hall for the purpose of signing the bond. One McMillan was in the city clerk’s office. The understanding above mentioned was communicated to McMillan, who said there would be no trouble about that, because the city would see that Oppenheimer signed the bond. Who McMillan was does not appear from the transcript, except that lie seems to have been the notary public before whom the paper was executed. But whoever he was he evidently had ro right to bind the city of Butte by any thing which he might say: but, as we shall see later on, what he said is immaterial. It is conceded, and the record shows, that Oppenheimer did not subscribe his name to the bond.

Mr. Justice Story, in Miller v. Stewart, 9 Wheat, 703, 6 L. Ed. 189, expresses the general proposition of law in relation to the' liability of sureties as follows»: “Nothing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended by implication beyond the terms of his contract. To the extent, and in the manner, and under the circumstances pointed out in his obligation, he is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. He has a right to stand upon the very term® of bis contract; and if be does not assent to anj variation of it, and a variation is made, it is. fatal.”

Under tbe general rule above quoted, however, sureties are not permitted to escape liability by making agreements among themselves, or with their principal, of which the obligee has no notice. Upon this subject this court said, in Ney v. Orr, 2 Mont. 559 : “It may be considered as settled that a bond perfect on its face, and apparently duly executed by all whose names appear thereto, purporting to be signed and delivered, and actually delivered without a stipulation, cannot be avoided by the sureties upon the ground that they signed it on condition that it should not be delivered unless it was executed by other persons who did not execute it, where it appears that the obligee-had no notice of such condition, and there was nothing to put him on inquiry about the manner of its execution, and that he had been induced upon the faith of such bond to act to his own prejudice.”

But when a bond is delivered to the obligee, showing on its face that it is- incomplete, as that one of the persons named as sureties in the body of the bond has not signed, such fact is sufficient to place the obligee upon inquiry, and the obligee then becomes subject to such a defense as the surety asserts in this case. (Ney v. Orr, supra; Thomas v. Bleakie, 136 Mass. 568; Dair v. United States, 16 Wall. 1, 21 L. Ed. 491; State v. Wallis, 57 Ark. 64, 20 S. W. 811; Cutler v. Roberts, 7 Neb. 4, 29 Am. Rep. 371; Fletcher v. Austin, 11 Vt. 449.)

It was the duty of the cityi officers to have inquired concerning the completeness of the bond, and, if the city .must now lose, it is of its own fault. We therefore conclude that the court’s ruling as to the defendant Bray was correct.

It follows that the order as to the defendant Cook should be reversed and the cause remanded for a new trial, while as to the defendant Bray the order should be affirmed.

Pee. Cueiam.

Eor the reasons given in the foregoing opinion. the order as to the defendant Cook-is reversed, and the cause is'remanded for a. new1 trial; as to tbei defendant Bray, the order is affirmed.


author: ME. OOMMISSIONEE POOEMAN Pei? CdexaM.

text:
    KIPP, Respondent, v. BURTON et al., Appellants.
    (No. 1,653.)
    (Submitted October 8, 1903.
    Decided November 4, 1903.)

      Executions — Failure to Seal — Effect—Curative Act.

    1. Code of Civil Procedure, Section 1211, provides that a writ of execution must be issued in the name of the state, sealed with the sea1 of the court, subscribed by the clerk, and must refer to the judgment, etc. Held, that the failure of the clerk to affix the seal of the court to an, execution was a clerical misprision, rendering the execution voidable only.
    2. Code of Civil Procedure, Section 1211, requires an execution to be issued in the name of the state and sealed with the seal of the court and subscribed by the clerk. Act March 2, 1899, p. 145, Section 2, declares that all judicial sales of real property previously made on proceedings to satisfy valid judgments, etc., shall be sufficient to sustain a sheriff's deed based on such sale, and all defects and irregularities in the issuance of execution shall be disregarded. Held, that a sale made under an execution defective by reason of its failure "to contain the seal of the court, made prior to the enactment of such act, was validated thereby without any amendment by the court.

      Appeal from District Court, Silver Bow County; John Lindsay, Judge.

    Action by Henry Kip]> against Ruth A. Burton and others. Judgment in favor of plaintiff. Prom an order of the court authorizing and directing the cleric to attach the seal of the court to the writ of execution theretofore issued, defendants appeal.
    Affirmed.

      Messrs. Mediation & Cotter, for Appellants.
    Citing: Banegas v. Braclcett, 99 Gal. 623, 34 Pac. 344; Egan v. Egan, 90 Cal. 15-27, 27 Pac. 22; Kaufman v. Sham,, 111 Cal. 16, 43 Pac. 393-394; 15 Ency. of PL & Pr. 344, and note 2; Power v. Lenoir, 22 Mont. 169, 182; Stansifer v. Kil-

      bourne (Cal.), 29 Pac. 232, 235; Choate v. Spencer, 13 Mont. 121-131; Ins. Company v. Hallock, 6 Wall. 556; Sharman v. IIuol, 20 Mont-. 555, and cases therein cited.

      Mr. C. M. Parr, for Respondent.
    An execution which is. amendable is not void. (Roush v. Fort, 2 Mont. 485 ; Blood v. Light, 38 Cal. 649; Martin v. Parsons, 49 Cal. 99; Van Cleave v. Bucher, 19 Cal. 600; Hibbard v. Smith, 50 Cal. 519; Decolle v. Oliver, 2 Idaho, 231; State v. Cassidy, 4 S. Dak. 62; Cor with v. State Bank, SO Am. Dec. 196; Arnold v. Nye, 23 Mich. 292; Taylor v. Courtnay, 15 Neb. 190; Freeman on Executions, Bee. 46, pages 123-124, and cases cited in note 2.)
    Upon the question whether the lack of a seal renders the writ void or merely voidable, the authorities are in conflict, and no attempt can be successfully made to reconcile them. It would seem to bo the better opinion, and that which prevails in a majority of the states in which the question has risen, that the omission of the seal is a mere misprision which renders the writ-voidable only; and that the writ may be amended. (8 Ehcv. PI & Pr. p1. 403; Alabama — Kyle■ v. Evans, 3 Ala. 481; Arkansas —Hall v. Lackmond, 50 Ark. 113; Whiting v. Beebe, 12 Ark. 421; Milcliell v. Conley, 13 Ark. 414; Gould’s Dig. C. 133, Sec. 116; Kahn v. Kuhn, 44 Ark. 404; Bice v. Dale, 45 Ark. 34-; Jett v. Shinn, 41 Ark. 373; Bridewell v. Mooney, 25 Ark. 524; Blank v. Rector, 24 Ark. 496, 88 Am. Dec. ISO, and cases cited in note, page 85, 7 Am. Dec.; Florida — Mitchell v. Duncan, 7 Fla. 13; Georgia — Dever v. Akin, 40 Ga. 423; Indiana —Warmath v. Dry den, 125 Ind. 355; Hunter v. Burnsville Turnpike Co., 56 Ind. 213; Rose v. Ingram, 98 Ind. 276; Maine — Sawyer v. Baker, 3 Me. 29; Porter v. Haskell, 11 Me. 177; Michigan- — Arnold v. Nye, 23 Mich. 286; Nebraska.— Taylor v. Courtnay, 15 Neb. 190'; New York — Wright v. No-strand, 94 N. Y. 31; People v. Dunning, 1 Wend. 16; Filkins v. Brock-way, 19 Johns. 170; Dominick v. Eacker, 3 Barb. 18; Scott v. Bushman, 1 Cow. 212; Toof v. Bently, 5 Wend. 276; Ohio — Boal v. King, 6 Ohio, 11; Wisconsin — Corwith v. Illinois Stale Bank, 18 Wis. 86, 86 Am. Dec. 763; United States — Aetna Ins. Co. v. Halloclc, 6 Wall. 556; Wolf v. Cook, 40 Fed. 432; Alderson, Jud. W. &P. Sec. 33.)
    Every court lias power to amend and control its processes and orders so as to make them conformable to law and justice. (Code of Civil Proc. Sec. 110, Subd. 8; Barber v. Briscoe, 9 Mont. 344; 17 Ehcy. PL & Pr. p. 920; Hall v. Lackmond, 50 Ark. 113, 7 Am. St. Pep. 84, and cases cited; Church v. English, 81 Ill. 442; Code of Civil Proc. Sec. 774; Ereeman on Executions, Sec. 71, pp. 161-162; Session Laws of 1899, p. 134.)
   ME. OOMMISSIONEE POOEMAN

perepared the opinion for the court.

In this action plaintiff obtained judgment against defendant Burton for the sum of $864.15 and costs, on April 9, 1896, Thereafter, on April 16, 1896, a writ of execution was issued on said judgment, which writ was correct in all respects so far as the questions here .presented are concerned, except that the seal of the court was not placed thereon. C)n May 11, 1896, the sheriff returned the writ with the indorsement that he had made the amount thereof by selling certain real estate of the defendant. On December 22, 1900, the plaintiff served notice on defendant that he would, on December 26, 1900, move the court to amend the writ of execution by ordering the seal to be placed thereon. At the hearing of this motion on said 26th day of December, 1900, the defendant appeared specially by her attorney “for the purpose of objecting to. the jurisdiction of the court to make the order asked for, and upon the further ground that-no notice of the said application had ever been served upon defendant or her attorneys.” These objections were by the court overruled, “and thereupon the court immediately made an order, and had the same entered of record in the minutes, * * authorizing and directing the clerk * * * to attach to the said pretended execution * * * the seal of said court-.” To this action of the court the defendant excepted. Prom tbis order so made tbis appeal is prosecuted.

Tbe respondent asks to bare this appeal dismissed for the reason that tbe record contains- no copy of tbe order appealed from. Tbe record presented to tbis court shows that there is no merit in tbe motion. It should, therefore, be overruled.

Tbe appellant contends that tbe court erred (1) in permitting said execution to be amended by attaching tbe seal thereto; (2) in ordering or directing that tbe seal be attached to tbe pretended execution nunc pro tunc, and (3) in holding that it bad jurisdiction to make tbe said order.

Tbe first question to lie considered — and which we deem, tbe vital question in this case — is whether tbe writ of execution so issued without the seal was void, or merely voidable. If it were void, it could not be amended, for that- which is void is not tbe subject of amendment. If, however, the writ was merely voidable, it could be amended, provided that the amendment was made within the proper time and in the proper manner.

On this question the authorities are in irreconcilable conflict. One line of decisions holds that the common-law rule that an unsealed writ is void should prevail. The other1 line of decisions maintains that the omission of the seal is a misprision, and may be remedied by amendment. The Code provisions relative to the form and contents of a writ of execution, so far as material here, are found in Section 1211, Code of Civil Procedure, and are as follows: “The writ of execution must be issued in the name of the state of Montana, sealed with the seal of the court, and subscribed by the c-lerlc, and must be directed to the sheriff, and must intelligibly refer to the judgment, stating the court, the county where the judgment roll is filed, and if it be for money, the amount thereof, and the amount actually due thereon, and shall require the sheriff substantially as follows,” etc. Appellant refers to the discussion in Choate v. Spencer, 13 Mont. 127, 32 Pac. 651, 20 L. R. A. 424, 40 Am. St. Rep: 425, as sustaining the contention that the writ in this case is void. The question before the court in that case was- whether a sum-111011s not containing tbe seal of tbe court was void. Tin? court-, in tbe discussion of tbe principle involved, stated tbat tbe statute, in requiring a summons to be issued under seal, did not change tbe common law, and then called attention to Insurance Co. v. Hallock, 6 Wall. 556, 18 L. Ed. 948. This latter case went up- from the state of Indiana in 1861. Tbe point decided was tbat an unsealed order of sale was void by reason of tbe common law; but in Hunter v. Burnsville Turnpike Co., 56 Ind. 213, decided in 1817, it was held that an unsealed' order of sale was amendable by reason of tbe provisions of tbe statute of 8 Henry VI, c. 12, which was at that time in force in tbat state; and in Warmoth v. Dryden, 125 Ind. 355, 25 N. E. 433, tbe same court says-: “While there is much conflict in tbe authorities upon this subject, the better opinion is tbat tbe failure to attach the seal of the court to an execution does not render it void.” It is apparent that it was not tbe intention of tbe court in Choate v. Spencer to establish the general doctrine that all writs must be issued under seal, but tbat reference was made to Insurance Co. v. Hallock as sustaining tbe position tbat tbe summons must be so issued; for, if a court bolds tbat a subsequent writ must be sealed, it is apparent tbat tbe same court would bold tbat tbe summons — tbe original writ, the jurisdictional writ — must likewise be sealed. This construction of the decision in Choate v. Spencer, and tbe fact tbat the could had in mind tbat a distinction exists between a summons and subsequent writs, are gathered from the closing paragraph of tbe decision, which is as follows: “We hold in tbe case at bar tbat tbe summons — 'the jurisdictional writ — under the law and decisions in force and controlling in this jurisdiction at tbe time of its issuance was void, because not issued under tbe seal of tbe court. If this case involved a defective process, issued subsequent to summons, and tbe acquiring of jurisdiction by the court thereunder, then tbe contention of respondents that such defect or irregularity could be amended or disregarded might be urged with great force.”

Under the Wisconsin statutes, courts are required to disregard any error or defect in any proceeding not affecting a substantial right. (Rev. St. Wis. 1898, Sec. 2829.) Power is given at any stage of the action, .before or after judgment, in furtherance of justice, to amend any process by correcting a mistake in any respect. (Section 2830.) Tinder this statute the court, in Corwith v. State Bank of Illinois, 18 Wis. 560, 86 Am. Dec. 793, says: “The neglect "of the clerk to affix the seal of the court to the writs did not render them void-. It was a defect which could be cured by amendment, * * The seals were affixed to the executions by an order of the court before this motion was made to set aside the sales.” These statutes of Wisconsin under which this decision was rendered are substantially the same as Sections 174, 778, of our Code of Civil Procedure.

In Wolf v. Cook, 40 Fed. 432, — a case originating in Wisconsin, and carried to the federal court, involving the question as to whether the omission of a seal from a writ of attachment rendered the writ void or voidable — the court sa.ys^ in discussing the question with reference to the Wisconsin decision above referred to, and the ease of Insurance Co. v. Hallock, supra:

“It is, however, insisted that, the writ being absolutely void under the rule of the federal court in Insurance Co. v. Hallock, supra, there was nothing to amend. * * Here is a writ that, abiding in the state court, was not void; merely defective, and amendable.. * * By the. simple process of removal of the cause to the federal court because of the diverse citizenship of the parties, that which was valid and effective becomes void. i:' * * The executive officer of the state court, who, prior to the removal of the cause, was justified in the execution of the writ, by the mere act of removal becomes a trespasser ab initio. It would require a precise declaration of superior and constraining authority to require me to hold to such absurdity. I do not so read the decision in Insurance Co. v. Hallock. There no qiiestion of inherent power to amend or of curative statutes was invoked. Indeed, the statute authorizing amendment of process by the federal courts (Rev. St. U. S. 948 [U. S. Comp. St. 1901, p. 695]) was enacted subsequently to that decision. The court, in its opinion, refers to- the case of Overton v. Cheek, 22 How. 46, 16 L. Ed. 285, holding that a writ of error was void for want of a seal. Yet since the statute ([Act June 1, 1812, c. 255, Sec. 3] 17 Stat. 197) it has been ruled by that court that a writ of error may be amended where the seal to the writ is wanting. (Semmes v. U. S., 91 U. S. 21, 24 [23 L. Ed. 293].) The ruling of Pomeroy's Lessee v. Bank, 1 Wall. 592, [17 L. Ed. 638], cited in Insurance Co. v. Hallock, that a bill of exceptions must be under the seal of the judge, would seem overruled by Generes v. Campbell, 11 Wall. 193 [20 L. Ed. 110], but upon other grounds than here, considered. In Tillon v. Cofield, 93 U. S. 167 [23 L. Ed. 858], the court cites approvingly the case of Talcott v. Rosenberg, 8 Abb. Prac. (N. S.) 287, holding that a writ may be amended by adding the seal. jn suc]2, case the federal courts follow the construction of the state statute, declared by its court of last resort. (Bacon v. Insurance Co., 131 U. S. 258 [9 Sup. Ct. 787, 33 L. Ed. 128] ; Duncan v. Gegan, 101 U. S. 810 [25 L. Ed. 875].”) These federal decisions and the Indiana decision in Hunter v. Burnsville, supra, all rendered) subsequent to the decision in the Ilalloch Case, would seem to render that case inapplicable to' a state having a statute permitting amendments to judicial processes.

In Gordon v. Bodwell, 59 Kan. 51, 51 Pac. 906, 68 Am. St. Rep. 341, the court holds that an order of sale issued without the seal of the court is void. This holding, however, is by reason of the constitutional provision which requires all writs to be issued under the seal of the court. However, in Taylor v. Buck et al., 61 Kan. 694, 60 Pac. 736, 78 Am. St. Rep. 346, the court holds that an execution properly authenticated with the seal of the court, but lacking the signature of the clerk, is voidable, and may be amended, and places the decision upon the ground that, while a seal is a constitutional requirement which the legislature cannot alter, the signature of the clerk is a statutory requirement, which may be waived by curative statutes. ■

It is contended that the reasoning in Ghoaie v. Spencer, supra, is applicable to the case at bar. We cannot agree with this contention. There is a distinction between a summons and a writ of execution, and by reason of that distinction the cases of Choate, v. Spencer, supra, and of Sharman v. Huot, 20 Mont. 555, 52 Pac. 558, 63 Am. St. Rep. 645, are not in point in this case. A summons is issued at the instance of the plaintiff, without any previous action on the part of the court. It is not necessary that it be served by an officer of the court. (Section 635, Code of Civil Procedure.) The court has no jurisdiction of the defendant until the summons is served, and under the decisions in Choate v. Spencer and Sharman v. Huot, supra-, the defendant cannot be put to the costs and trouble of appearing in court until served with a summons which complies with these specific provisions'of law. An execution follows a judgment. The defendant has been in court. The subject-matter has been litigated. The court has jurisdiction. It has been judicially determined that the defendant is justly indebted to plaintiff in a specific sum. It is the duty of the defendant to pay this sum. He did not pay it, and by authority of the court a writ of execution is issued by one official of the court (the clerk), directed to another official of the same court (the sheriff), commanding him to subject the property of the defendant to the payment of the judgment which by other provisions of law is a lien on his real estate, and which it is his duty to pay. The writ of execution is no more jurisdictional than are other orders made and writs issued in the ease subsequent, to the summons. The court obtained jurisdiction of the subject-matter of the action by the filing of a proper complaint, and of the defendant by the service of a valid summons. Nothing remained over which to acquire jurisdiction. The execution was not jurisdictional. It was only a procedure in the case; its. sole function being to carry into effect the judgment, of the court. The omission of the seal therefrom did not of itself mislead or injure defendant. The law does not require a copy of the writ to be served upon him. The error in not affixing the seal ivas an error on the part, of an officer of the court acting in a ministerial capacity.

The statute is as imperative with reference to the requirement, that the amount clue shall be stated in tire execution as it is with reference to the provisions relating to' the seal, yet this court, under a similar statute, held in Roush v. Fort, 2 Mont. 482, that an execution directing levy for more than the judgment called for was amendable (Section 2.51, p. 80, Codified Statutes of 1871-72), and this appears to be- the universal doctrine (Hunt v. Loucks, 38 Cal. 372, 99 Am. Dec. 404; Van Cleare v. Bucher, 79 Cal. 600, 21 Pac. 954). Executions failing to comply with other positive requirements of the statute have been held amendable. (Hibberd v. Smith, 50 Cal. 511 ; Pecotle v. Oliver, 2 Idaho, 251, 10 Pac. 302; State v. Cassidy, 4 S. Dak. 62, 54 N. W. 928.) The provisions of the statutes of amendments (Sections 774, 778, Code of Civil Procedure) are of as commanding authority as Section 1211 of -the same Code, and are as imperative in their directions; and all these sections should be taken into consideration in determining a question of this kind. These considerations lead to- the conclusion that the writ of execution issued in this case was not void, but voidable; and in support, of this position we cite the following cases, not heretofore referred to in this discussion: Hall v. Lackmond, 50 Ark. 113, 6 S. W. 510, 7 Am. St. Rep. 84; People v. Dunning, 1 Wend. 17; Wright v. Nostrand, 94 N. Y. 31; Dever v. Akin, 40 Ga. 423; Lowe v. Morris, 13 Ga. 147; Mitchell v. Duncan, 7 Fla. 13; Taylor v. Courlnay, 15 Neb. 190, 16 N. W. 842; Sawyer v. Baker, 3 Me. 29; Porter v. Haskell, 11 Me. 177; Freeman on Executions, 3d Ed., par. 70 et seep; Bailey v. Smith, 12 Me. 196; Arnold v. Nye, 23 Mich. 286; Witherel v. Randall, 30 Me. 168.

The Act of March 2, 1899 (Laws of 1899, p|. 145), contains the following provision: “See. 2. All judicial sales of real property heretofore made in this state on proceedings to satisfy valid judgments or decrees of any court, and the monies bidden thereon paid to the officer making such sale, shall be valid and sufficient in law to sustain a sheriff's deed based on such sale, and when no such deed has been executed, shall entitle such purchaser to such deed; and such deed when executed, • shall be sufficient to convey all the title o£ the judgment debtor in the premises so sold to the purchaser at said sale, and all defects and irregularities in the issuance of execution, or the- manner of making or conducting the sale, shall be disregarded.” The effect of this law is to cure the defect in this execution, and render the sale had thereon valid. It is immaterial what action was taken by the court with reference to amending this, writ at any time subsequent to the enactment of the law above quoted. The writ was made valid by that law without amendment, and the oilier assignments of error are immaterial.

We recommend that the order in the case be affirmed.

Pei? CdexaM.

Por the reasons stated in the foregoing opinion, the order appealed from is affirmed.


author: MR. CHIEF JUSTICE BRANTLY Me. Justice PIoddoway:

text:
    STATE ex rel. HEINZE et al., Relators, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,985.)
    (Submitted October 14, 1903.
    Decided November 9, 1903.)

      Mines and Mining — (Jonfiiciing Claims to Ore Bodies — Pending Suit — Inspection and Survey — Order—Costs—lleview.
    1. The propriety oí making an order oí inspection and survey rests in the discretion oí the district court, and the supreme court will rot revise the action oí that court, except when it is made manifest that this discretion lias been abused.
    2. In a suit to determine the ownership of mining veins depending on asserted ownership of the apex, an order granting an inspection and survey of the workings will not be disturbed because no necessity existed therefor, and the adverse party already had knowledge of the existing condition necessary to its defense, where it appeared that developments were continually taking place, and that the initial points from which surveys of underground workings were made shifted their position, and to make a complete survey it was necessary to review the former surveys to determine with accuracy the relative positions of the new openings made.,
    3. In a suit to determine the ownership of veins depending on the asserted ownership of the apex, an order granting an inspection and survey of the workings will not be disturbed as covering matters not in controversy because the vein in dispute was described by plaintiff's witnesses as passing out of plaintiff’s claim on its dip at a certain level, and the workings below that level were on veins not in controversy, as defendant should be permitted to examine the workings, and determine for itself whether or not such conditions existed.
    4. IVhere, in a suit to determine ownership of veins, it appears that plaintiff’s shaft is the only means of access to the workings in controversy, the court, in permitting defendants to inspect and survey rhe workings, may allow ingress into and egress from the mine by means of plaintiff’s machinery and appliances.
    3. Under Code of Civil Procedure, Section 1317, requiring an applicant for an inspection of mining property to pay all the expenses of examination, an order granting an inspection, which fails to provide for the compensation, is defective.
    OeigiNau application by the state, on tlio relation of F. Augustus Heinze and Jobnstow.n Mining Company against the district- court of the- Second judicial district, and Hon. Willifim Clancy, judge thereof, to the supreme court under its- supervisory power, for an order setting aside an order of said district court permitting the inspiection and survey of the underground workings of applicants’ mine.

      2£r. John J. Mediation, and Mr. J. M. Denny, for Relators.

      2Ir. G. F. Kelley, for Respondents.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

On March 30, 1901, F. Augustus Heinze and the Johnstown Mining Company brought an action in the district court of Silver Bow county against the Boston & Montana Consolidated Copper & Silver Mining Company to quiet title to- the Minnie Healy quartz lode. The controversy grows out of conflicting claim’s between the parties to certain ore bodies lying beneath ■the surface of the Piccolo' and Gambetta claims, owned by the defendant, and lying north of the Minnie Healy claim, to which plaintiffs assert title.

The complaint alleges that a certain vein, which has its apex • within the surface of the Minnie ITealy claim, and is so situated with reference to- its end lines as to1 give the plaintiffs title to exterior portions thereof, dips to'the north, and passes into the claims of the defendant. The situation of the claims and the contentions of the parties will be understood by reference to the statement of facts and the accompanying diagram in State ex rel. Heinze v. District Court, 26 Mont. 416, 68 Pac. 794, 946. It will not be necessary to restate the facts here. The action out. of which that controversy grew was brought on the same day as the action out of which the present controversy arises, the latter being numbered on the district court calendar as cause Nó. 9,159 and the former as cause No. 9,161. Why both actions were brought is not apparent, as the issues presented by them! seem to be substantially identical.

T'o the complaint filed in this cause, after some1 amendments, a demurrer was interposed, and the matter now stands upon the issue of law thus presented.

After the review of the order by this court in cause 9,161 in State ex rel. Heinze v. District Court, supra, that cause was, for some reason, dismissed, and the order of survey therein made became inoperative. On August 24, 1903, the defendant* applied to the district court in cause 9,159 for an order permitting it to inspect and survey the underground workings in the Minnie ITealy claim, and after a hearing thereon the court granted the order, directing that the defendant, through its agents, be permitted during ten days to inspect and- survey all openings in the claim, extending toward or into the Piccolo and Gambetta claims, and all other openings therein, except certain ones extending to the south and into the Snohomish and Tramway claims, and after the expiration of ten days to- make- weekly inspection thereof until a hearing of the cause could be had. The order further provides and directs that the plaintiffs shall permit the agents of the defendant ingress into and egress from the workings through their shaft in the Minnie Healy claim, and shall lower and raise them into- and from the mine at reasonable times. The order omits to provide any payment to the plaintiffs for the necessary use of their hoisting machinery from time to time as it is used for the benefit of the defendant.

The plaintiffs have applied to this court for an order under its supervisory power setting’ aside the order of the district court as not justified by the facts. The objections urged are: (1) That the evidence shows that there was no necessity for the order, in that it appears from the record that the defendant already has knowledge of the physical facts and conditions necessary to its defense; (2) that the physical facts and conditions of which defendant seeks knowledge are apart, from the matters in controversy in the action, in that the vein in dispute is particularly described in the complaint as passing out of the Minnie ITealy on its clip, at the 300-foot level, and that the workings below that level are upon veins not in controversy in the action; (3) that the order is violative of the rights of the plaintiffs in requiring the plaintiffs to furnish to the defendant’s agents, the use of the machinery and appliances upon the Minnie ITealy claim for the purposes of the survey and inspection; and (4) that the order violates the plaintiffs’ constitutional rights.

As to the plaintiffs’ first and second objections, it is sufficient to say that the propriety of making an order of survey and inspection rests in the discretion of the district court, and that this court will not revise the action of that court, except when it is made manifest that this discretion has been abused. Wo have examined with care the somewhat voluminous record presented upon the application, and are unable to say that the court erred in granting the order, or in extending it so as to cover all the workings in the Minnie ITealy claim, even though it be admitted that the defendant has some knowledge of them. It appears from the evidence that work is being conducted in the claim, and that development is constantly taking place. Openings made are timbered, so that they may not afterwards be examined without difficulty and expense. Some of them are filled with waste from time to time, and the facts and conditions shown by them thus escape attention. This condition of things has existed sine© the dismissal of cause No. 9,161, since which time the defendant has not been able to make weekly inspections authorized under it. Furthermore, it appears from the evidence that the initial points from which surveys of the underground workings are made shift their position from, time to time because of movements in the earth, or are destroyed by mining operations; and that it is impossible to take up. a survey after it has been discontinued for some length of time;, and make the openings which have been made in the workings in the meantime appear as extensions of any former survey with any degree of accuracy. In, order to make a, complete survey, it is, necessary to review such former survey, in order to determine with any degree of accuracy the relative positions of the new openings made; hence the district court was not in error in permitting a resurvey of all the workings, although such survey had already been made under the former order. It certainly was within the discretion of the court, under the former holding of this court, to permit, weekly inspections of the work of development in progress.

It does not necessarily follow, because some of the plaintiffs’ witnesses testify that the vein in controversy passes out of the Minnie Ilealy ground at the 300-foot level, and is wholly disconnected from other veins in the Minnie Ilealy ground, that-the defendant should not be permitted to. examine such workings, and determine for itself whether or not these conditions actually exist. It is not bound to assume that the vein in controversy passes out of the Minnie Ilealy ground at the 300-foot level simply because plaintiffs’ witnesses testify so; nor is it bound to assume that this vein is not connected with other veins in the Minnie Ilealy ground; nor is it bound to assume from, this testimony that the workings within the Minnie Ilealy surface below the 300-foot level are not connected by workings extending northward into» defendant’s, ground with the ore bodies in controversy, it appearing that there are extensive workings below that level. Doubtless the court, took into consideration the fact that it is. impossible to know the extent and significance of openings which are several hundred feet under tbe surface of tbe eartb without a .personal inspection of them. However tbis may be, in cause No. 9,161, involving almost identically tbe same issues as tbe present controversy involves, tbis court affirmed the order of tbe district court permitting an examination of all tbe workings in tbe Minnie Healy claim, excluding those which, extend southward into tbe Snohomish and Tramway claims. Hnder the views expressed in that case, with the facts before it which are embodied in thei record upon this application, the district court was justified in, mailing the order applicable to all the workings in tbe Minnie. Healy claim.

The third and fourth objections are disposed of by the decision in State ex rel. Parrot Silver & Copper Co. v. District Court, 28 Mont. 528, 73. Pac. 230. The court had tbe power to compel tbe plaintiffs to allow defendant ingress, into and egress from the mine by means, of plaintiffs’ machinery and appliances. The evidence in the record tends to show that the Minnie Healy shaft is the only means of access to the workings in controversy. There, is no contention made upon tbis application that such is not the case. To say that the court has power to make an order of survey and inspection, but that it has no power to make it effective by requiring the party in possession of the ground to be inspected to furnish the mode of access to tbe property, is to deny tbe power of tbe court to make it at all. Such temporary invasion of the property rights of a party to an action is not a taking' or damaging of property within the purview of tbe constitutional prohibition. As was said in tbe above case: “Every citizen lias the right to the exclusive enjoyment of his property without interruption or invasion. Yet this general rule of right must, under the circumstances of tbe case, yield to the higher right of public necessity, that equal justice may be administered upon conflicting rights of different citizens. Every citizen holds his property subject to tbis burden, and when the necessity arises his private right must give way to this higher law.”

The order is defective in that it fails to provide for the compensation contemplated by Section 1311 of the'Code of Civil Procedure, but it is not void because it invades any constitutional right of the plaintiffs. As this omission is material, the district court is directed to reform it in this, respect, unless the parties may, by stipulation, render the action of the court unnecessary. If the parties cannot themselves stipulate as to what this expense is, the court may hear testimony, and, .after fixing what the reasonable cost of raising and lowering defendant’s agents is, amend its order by directing the defendant to pay it. The order, when so amended, will'be affirmed.

Affirmed.

Me. Justice PIoddoway:

I concur in all that is said except upon that portion of the order requiring relators to make use of their machinery and other appliances, to lower and raise the agents of the defendant company. Upon that feature I content myself with a reference to my dissenting opinion in State ex rel. Parrot Silver & Copper Co. v. District Court, 28 Mont. 547, 73 Pac. 230.


author: MR. JUSTICE MILBURN

text:
    AGLE, Respondent, v. STANDARD DRUG COMPANY, Appellant.
    (No. 1,696.)
    (Submitted October 19, 1903.
    Decided November 9, 1903.)

      Corporations- — Bills and Notes — Evidence—Pleading—Negative Pregnant.

    1. In an action on a note against a corporation, an answer denying the execution oí the note, and denying that it received “said sum,” referring to the amount of the note in carrying on its business for its use, and denying that defendant, “with its knowledge or/consent,” paid a sum of interest thereon at any time, was pregnant with an admission that defendant used the money.
    2. Where, in an action on a note against a corporation, there was evidence that the person signing the note was defendant’s secretary, treasurer and manager, and that at a certain meeting of the directors they considered the debt of the corporation and ^the amount claimed by the plaintiff, and at such meeting interest was paid on the note, and the president “thought the money to Mrs. A. should have been paid off before chis time,” etc., the note was properly admitted in evidence in connection with the other proof, though it was not of itself prima -fade evidence of the indebtedness of the corporation.

      Appeal from District Court, Deer Lodge County j Welling Napt on, Judge.

    ActioN by Mary J'anei Agle against the Standard Drug Company. From a judgment in favor of plaintiff, defendant appeals.
    Affirmed.

      Mr. II. B. Whitehill, for Appellant.
    ■ The power given to a business manager of a corporation to transact its business, does not authorize him to bind the cor.pb-ration, as maker of a negotiable promissory note. The note in this case, not being primo, facie binding on the defendant, should have been excluded. (Helena JSTaiJl Bank v. B. M. T. Co., 20 Mont. 388; Trent v. Sherlock, 24 Mont. 267; Spelmafa v. Mining Co., 66 Pac. 590; Oak Hrove Cattle Co. v. Foster, 41 Pac. 525; Bank of Deer Lodge v. IIope M. Co., 3 Mont. 146.)
    The fact that the secretary made out a statement of the debt of the corporation in gross, was not sufficient to give to the stockholders and directors notice that an unauthorized note was included therein, so that by their inaction they should be held to have ratified it, or to be estopped to deny its validity. (Edwards v. Carson Water Co., 21 Nevada, 469.)
    Ratification can only be made, under Section 3086, Civil Code, in the manner required in order to confer original authority for an act ratified, or where an original authorization would suffice, by accepting or retaining the benefit of the act, without notice thereof. (Edwards v. Carson Water Co., 21 Nevada,, 469; Sal field v. Suiter Co. L. I. B. Go., 94 Cal. 546; Blood v. La Serena L. W. Co., 113 Cal. 221.)
    No ratification or implied authority to execute the Agle note could he inferred by reason of the use of the McGregor note in tbe business of the corporation. (Baldwin v. Burrows, 47 N. Y. 211; Adams v. il[ills, 60 N. Y. 535.)

      Mr. John IT. James, for Respondent.
    If a corporation receives and retains the benefit of a contract entered into by an officer of the corporation, the corporation is hound thereby and the act of SO' receiving and retaining' the fruits of the contract becomes a ratification. (Main v. Qas-serly, 7 Pac. 426.)
    The note being' for a valuable consideration received by the corporation and retained by it, and the transaction having been entered in the minutes of the meeting of the corporation held on the 24th of Tanuary, 1899, and it failing at that time to object, and having due notice of the act of its; secretary and manager brought to it, and making no offer to restore the consideration, thereby ratified the entire transaction. (Philips v. Sanger Lumber Go., 62 Pac. 749; Durand Organ & Piano Go. v. Bowman, 44 Am. Corp. Cases, 662-667; s. c. 35 Pae. 848.)
    After receiving the benefits of the contract, the corporation cannot place the benefit of fruits of others’ labor in its treasury and then dodge its responsibility. (Bradley v. Brallard, 55 Ill. 413; Pixley v. Western P. R. Go., 33 Cal. 198; Foulke Y. Ban Diego & G. B. P. R. Go., 51 Cal. 365.)
    Ratification of the act of the secretary by receiving the money is an indivisible transaction and becomes a ratification of the entire act. (Section 3087, Civil Cbde; MainY. Gasserly et al., 7 Pae. 426.)
    After so receiving the benefit the corporation is estopped from denying the act of its agent, secretary and manager. (Section 3086, Civil Code; Grogan v. Ban Francisco, 18 Cal. 590; Gidb-ble y. Columbus Brewing Go., 34 Pac. 527-529; Main y. Gas-serly et al., 7 Pac. 426.)
   MR. JUSTICE MILBURN

delivered the opinion of the court.

This is an appeal from the judgment for plaintiff. The plaintiff sued defendant to recover the sum of $200 and interest, alleging that on the 19th day of July, 1898, the defendant corporation made and delivered to her its promissory note in- words and figures as follows:

“$200.00. July 19, 1898. One day after date we promise to pay to the order of Mary Jane Ag'le two- hundred and 00-100 dollars at one per cent, per month. Value received. No. 4,376. Due one day. Standard Drug Oo. A. L. Holly, Sec.”

Plaintiff avers that the note is evidence of $200 furnished to the defendant and received and used by it in- the carrying on of its business, and that on the 24th day of January, 1899, the defendant corporation, at a meeting of its directors, ratified the act of its secretary in borrowing the said $200 and giving the note therefor. Plaintiff also alleges 'that there has not been paid any part of said- note, except the sumí of $24 interest paid by the defendant on the 19th day of July, 1899. The defendant denies the execution of the note, and, referring to- the $200, denies that it received “the same,” or used “said sum” in carrying on its business for its use and benefit; and further denies that on the 24th day of January, 1899, or at any time, the defendant, through its board of directors, authorized any one to make the said sum of money a charge against the corporation, or ratified the acts of its said officer or officers, or caused the sum of $200 to be entered on-its books as part of the indebtedness of the corporation; and defendant denies that defendant, “with its knowledge or consent,” paid the sum of $24, or any sum, as interest on said note at any time.

The cause came on regularly for trial before the court, sitting with a jury. After the evidence was all submitted, a motion for nonsuit was made and denied. Thereupon, as the record shows, “the jury was instructed by the court to find their verdict for the ¡olaintiff,” and the jury returned a verdict for the full sum claimed, with interest at one per cent, per month from July 19, 1899. It does not appear that any objection was made or exception taken to the order of the court made to1 the jury to return a verdict for the plaintiff, and appellant does not make any point on appeal as to this order.

The testimony tends to show that said A. L. Holly was the company’s secretary-treasurer, and the manager of its business; that there were three stockholders and three directors, P. L. St. Jean, H. B. Allaeys and said Holly; that on the 24th day of January, 1899, there was a meeting of the board of directors held, at which time they considered the question of the indebtedness of the corporation, and, among other things, took into consideration the matter of the $200 now claimed by Mrs. Agle; that, at this meeting of the board of directors, interest was paid on this note, and that the president, Dr. St. Jean, “thought the money to Mrs. Agle should have been paid off before this time” ; that the interest was paid by the secretary-treasurer and manager ; that the money was received by the company from Mrs. Agle, and used by it; and that the acts of the secretary in borrowing the money and in giving the note were ratified. ' Defendant, by its pregnant denial supra> admits that it used the same.

Objection was añade on the hearing to the introduction of the note in evidence, and reliance is placed by appellant upon the. case of Trent v. Sherlock, 24 Mont. 255, 61 Pac. 650, reheard in 26 Mont. 85, 66 Pac. 700. We do not find anything in this case, either upon the first or the second hearing, that supports the contention of the appellant that the court erred in allowing the note to be introduced in evidence, although it was not prima facie evidence of the indebtedness of the company. It was a part in the chain of evidence; and, taken in connection with the other matters proven to which we have referred above, was competent, for what it was worth, as tending to support the contention of plaintiff.

It is not necessary to consider the other assignments, which, like the one we have considered, are1 not tenable.

The judgment of the court is affirmed.

Affirmed.