7 Mont. 288 | Mont. | 1888
This is an action of ejectment. The complaint contains the allegations usual in such cases. The answer denies the title of the plaintiff, and the unlawful withholding, and sets up as a further defense the statute of limitations. At the trial of the case, the plaintiff
The defendant moved for a nonsuit, on the following grounds: 1. The evidence does not support the allegations of plaintiff’s complaint; 2. The evidence does not show plaintiff to be entitled to recover in this action; 3. No evidence has been offered by plaintiff to prove any indebtedness on which to base the judgment in favor of plaintiff against said Mathew Muldoon, nor to uphold said sheriff’s deed; 4. The evidence does not make out a cause of action.
Before passing upon the motion, the judge below allowed plaintiff to introduce in evidence the order of sale and the return of the sheriff attending the sale. This action of the court is one of the assigned errors. It was in the discretion of the court below to allow the plaintiff to reopen his case, and we think that the court exercised its discretion wisely. After this evidence had been introduced, the plaintiff renewed his motion for nonsuit, which motion was denied.
, The action in which Alderson was plaintiff and Muldoon defendant was commenced on the twenty-eighth day of April, A. D. 1883, and service of summons was had by publication. The law which controls the pub
The affidavit upon which the order for the publication of summons was granted reads as follows:—
“ W. W. Alderson v. Mathew Muldoon.
“ I, J. L. Staats, attorney for the plaintiff in the above-entitled cause, being first duly sworn, depose and say that I have exercised due diligence in procuring actual service upon said defendant, but have not been able to discover his whereabouts in the territory; that a good and valid cause of action exists against said defendant, in respect to whom the service of summons is to made; and that defendant is a necessary and proper party to the action, to the determination of said cause.
“ J. L. Staats.”
The affidavit is verified.
It would seem that the allegation, “ the defendant cannot be found after due diligence,” is insufficient; that it >s a conclusion of law, based upon statements showing what search and what diligence have been made in the attempt to discover the defendant. The facts upon which is predicated the conclusion of “ due diligence ” must appear by affidavit; otherwise the affidavit is insufficient, and the officer granting the order does so without authority of law; and the order and all proceedings based
The plaintiff claims that, inasmuch as the defendant did not object to the introduction of the judgment roll, the defects cannot he considered; but we do not look upon the question in that light. The evidence introduced, by itself, proves only the defect in plaintiff’s title; and it would be difficult to understand why the defendant should object to the plaintiff proving himself out of court. When the plaintiff rested his case, it would seem, from the authorities above, that he could not recover, because the judgment upon which his title is founded is absolutely void. If that was all there was in this case, we are of the opinion that the judgment would have to be reversed; but instead of resting there, and depending upon the merits of his motion for nonsuit, the defendant went'into his defense, and the plaintiff gave testimony in rebuttal. The authorities are uniform upon this proposition, that, although the motion for a nonsuit may have been improperly denied, still, if the evidence subsequently admitted in the case cures the defect, the error will be considered to have been waived, and a new trial will not be granted. Plank Road Co. v. Thatcher, 11 N. Y. 113; Tiffany v. St. John, 65 N. Y. 317; Perkins v. Thornburgh, 10 Cal. 191.
That is the condition of this case; and in considering that, we may also pass upon the question of the insufficiency of the evidence to sustain the verdict. There is evidence in this case to show that Mr. Alderson, the plaintiff, was the mortgagee of the premises in question, and that he was in possession of the property as such mortgagee, by and with the consent of the mortgagor; that while Mr. Alderson was so in possession of the property, he rented the premises to the defendant, with the privilegeDf purchasing all of plaintiff’s title; that the defendant went into possession of the property under
The only other error complained of is the overruling of an objection to a question put to the defendant upon his cross-examination, the objection being that the question was immaterial, and not cross-examination. The defend*ant, upon his direct examination, had testified to a verbal agreement between himself and the agent of the plain
Judgment affirmed.