American Surety Co. v. Kartowitz

195 P. 99 | Mont. | 1921

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This action was instituted in May, 1915, a writ of attachment secured and property belonging to the defendant seized. Later a motion was made to dissolve the attachment, on the grounds that a sufficient affidavit had not been filed, and that a demurrer to the complaint had been sustained. The motion was overruled with leave to renew it after the amended complaint was filed. On appeal to this court the order was affirmed. (54 Mont. 92, 166 Pac. 685.) In January, 1919, defendant renewed the motion to dissolve upon the ground of insufficiency of the affidavit, but the record fails to disclose that the motion was acted upon. However, on January 27, 1919, by permission of the court, plaintiff filed an amended affidavit. On December 16, 1919, defendant again moved the court to dissolve the attachment upon the ground that the original affidavit was insufficient and incurable by amendment. The motion was denied, and this appeal was prosecuted.

At the same time that the last-mentioned motion was presented, a like motion was made by one A. Johnson, who claimed that he had purchased a portion of tfie attached property after the levy of the writ. The record does not disclose that Johnson was ever made a party to the action in the lower court, or that any disposition was ever made of his motion. He did not attempt to appeal, but has applied to this court to be made a party appellant and to be heard.

Whatever may be said of Johnson’s right, under section [1] 6684, Revised Codes, to interpose his motion in the lower court and have it heard and determined, the fact, so far as disclosed by this record, is that it has not been determined, and that he has not appealed. He cannot therefore obtain any.relief from this court, except so far as the relief, if any, granted to Kartowitz, the appellant, may inure to his benefit. (MacGinniss v. Boston & Mont. etc. Co., 29 Mont. 428, 75 Pac. 89.)

The defendant’s appeal is altogether without merit. If, at [2-4] the time he interposed his first motion to dissolve the attachment he had failed to incorporate any then existing ground of the motion, he would be held to have waived such ground thus omitted. (King v. Pony Gold Min. Co., 24 Mont. 470, 62 Pac. 783.) But, apparently, he then included in his motion the very ground relied upon in the motion now before us; in any event, the ground now relied upon was existent and available to him at the time his first motion was made. It is elementary that a party may not make successive'application for relief upon the same ground (Bown v. Somers, 55 Mont. 434, 178 Pac. 287), and the reasoii for the rule is manifest. It is the policy of the law to prevent useless litigation, and whenever a proceeding is instituted sufficiently broad in its character to include the determination of all existing issues between the parties touching the same subject matter, such issues must be presented for determination, to the end that neither the court nor the parties may' be vexed with separate proceedings. (Maloney v. King, 30 Mont. 414, 76 Pac. 939.)

Since appellant had the opportunity to present the insufficiency of the affidavit upon his first motion, he is foreclosed on this appeal. But it is suggested that leave to renew the original motion was granted by the trial court in the order overruling it, and that is true; but defendant did not avail himself of the privilege extended; on the contrary, he appealed from the order, and thereby waived the privilege. (14 Ency. Pl. & Pr. 192.) But aside from any question of practice, this appeal is without merit.

The original affidavit for attachment contained the state-[5] ment “that the payment of the same [the debt] is not secured,” etc., instead of the statutory language “has not been secured,” etc. In the respect indicated, the affidavit was defective (Continental Oil Co. v. Jameson, 53 Mont. 466, 164 Pac. 727), but sueb defect did not avoid it altogether. Under our very liberal statutes of amendment, including section 6683, Revised Codes, the affidavit in this instance was subject to amendment, as indicated in the opinion upon the former appeal, and was amended and the defect cured long prior to the time this motion was made.

The order is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Reynolds, Cooper and Galen concur.