*1 authority.]” also State See [Citing removal.’ act of (2d) 569. Ireland, ex Howard v. Mont. rel. was en- the relator Summarizing view that then, it is our and upon, specific charges relied titled to have notice of the therefore, of hearing place fixed thereon at time and may pre- so that he which he should have reasonable notice done also, all should be pare charges; to meet the of this Clearly from summary before and not after a dismissal. application granted consideration herein relator was not such by the Commission.
For the hereinbefore stated the reasons district court is affirmed. Remittitur to issue forthwith. ADAIR,
MR. HON. W. JUSTICES ANGSTMAN and and R. (sitting FLACHSENHAR MR. JUSTICE CAS- place of TLES) and MR. JUS- (sitting place JACK R. LOUCKS BOTTOMLY), TICE Judges, District concur. BALLENGER,
JOEL v. OSCAR Respondent, Plaintiff TILLMAN, TILLMAN MRS. OSCAR an husband d Appellants. wife, Defendants No. 9645. April 30,
Submitted December 1958. 1957. Decided *2 Falls, appellants. Libra, Thompson L. for A. Fаlls, respondent. Ainsworth, Thompson
S.A. HARRISON: JUSTICE MR. CHIEF *3 his Tillman and appeal by defendants, This Oscar is an of judgment in favor Tillman, wife Mrs. Oscar from a by district court plaintiff, rendered Ballenger, Joel Montana, for the and judicial State of fourth district of the County of Sanders. alleged: complaint plaintiff
In his the defendants were herein mentioned That all times “1. at together as such. wife, residing husband and plaintiff to the in the indebted defendants are “2. That the ($302.74), Dollars and Hundred and two of Three sum 74/100 purchased timber stumpage from due on being the balance plaintiff. from the and from the payment of and had plaintiff demanded
“That the sum, pay and still fail to said they failed and have defendants wholly unpaid; is still and sum due thereof, and the any part and interest on said sum at entitled to plaintiff that the ’’ hereof. from date annum per rate of % $302.74, interest and with costs.
Prayer ..for for. August 9, 1954, days On filed, three after the was the defendants filed a demand for a sued copy of the account provided on as under 93-3804, section R. M. This ac- C. by count 1954,'and was furnished August 11, as filed stated:
“That the account on in the sued above-entitled matter for timber cut from Heron, Montana, the land of the near during past year, agreed pay for which the defendants per feet $6.00 thousand for timber and thou- per $15.00 mixed pine sand feet for stumpage. white timber as 105,490 “That feet of mixed timber was cut and removed premises 7,320 from said pine feet of white timber cut premises; 10,000 and removed from said feet of mixed logs by timber was cut into but not been have removed the de- fendant. 105,490
“That feet of timber per $6.00 mixed at thousand That pine $632.94. amounts to the white timber so cut and re- at per $15.00 moved thousand amounts to $109.80. That 10,000 feet logs of mixed timber cut into but not removed $60.00, total making $802.74. amounts to “That paid apply stumpage have on said defendants $500.00, leaving unpaid sum a balance thus due stumpage of $302.74. compliance
“That this statement account is rendered with the demand made the defendants. Thompson Falls, Montana, day
“Dated at this 10th August, 1954. A. S. Ainsworth
“/s/ “Attorney for Plaintiff.” complaint, general the defendant filed a demurrer To overruled. which was *4 cross-complained, plaintiff
Defendant answered and thereto, every denying allegation each and replied due course therein. contained February 21, 1955, for trial at the con-
The cause came findings of request for of which defendant made written elusion findings law, proposed fact and of and submitted conclusions and conclusions to the court. findings of fact and April 18, duly the entered its
On court as cоnclusions of law follows: giving due con-
“Taking by the its four comers cause by competent evidence, sideration all of the Court finds competent allegations preponderance a of that the evidence Complaint plaintiff of the true. are insufficiency “The further of com- Court finds there is an alle- petent prove preponderance evidence to thereof the gations cross-complaint of of the affirmative defense and defendants, Oscar Tillman and wife. Law, plaintiff
“As a finds Conclusion the Court right Judgment alleged prayed entitled for in as of his complaint. Findings
“The further requested Court finds Fact and re- Conclusions of Law of the defendants should be fused and denied.” April 23, exceptions findings
On defendant his to the filed fact specifying findings as error that the were not decisive оf specific action; material issues in this that the find- raised ings actually law rather than conclusions of fact. judgment exceptions subsequently
These overruled and were pursuance prayer to the entered of his complaint. judgment appealed. the defendants From this have upon eight specifications appeal error,
Defendants resolv- ing following themselves into the issues to be dealt with seriatim:
(1) That the evidence sustain is insufficient contrary for the but on preponderance defendant; evidence is in favor of the
(2) That the is insufficient a judgment evidence to sustain defendant, Tillman; against Mrs.
374 law made
(3) That the conclusions of fact and judg- support by and entered insufficient court are ment; plaintiff;
(4) Nonjoinder indispensable parties motion to sustaining defendants’ (5) The court erred in bill. strike the cost first credible determining issue, we find that
testimony plaintiff other witnesses and three plain there was sufficient evidence to sustain the testimony contradictory Tillman’s tiff’s favor. While Mr.. was. question on the of how much he had .contracted-to as for, the timber “we no such inherent conflict purchase see departure from the rule warrant a well-established would weight given their credibility of the. witnesses and the by determination the court below. Its find testimony was for by substantial not be dis supported here evidence ings will Healy Austin, 637; 20 Pac. Ingalls v. turbed. (2d) 555; Wieri Bank, Mont. 89 Pac. First National (2d) 838; Co., 116 Mont. Copper Min. Anaconda 154, 160, (2d) 254.” Mont. Naddy, 129 Giarratana v. (2d) 112, Clark, 133 Mont. Notti v. issue, it is clear that there was insufficient to the second
As .any judgment against sustain Mrs. Tillman. evidence following testimony adduced from Upon cross-examination any recоvery against testimony negatives The her.. agreement ..negotiations conclusively states were . . plaintiff. Mr. Tillman and. between made Mr. and agreement personally this with “Q. Now, you made Mr. sir, personally made with jointly? No, A. Mrs. Tillman I Tillman. your examination that Mr. during direct “Q. you said But * * * A. Mrs. Till- purchased, the timber.. his wife
Tillman and I from Tillmans made out money did receive man—the Tillman, I so therefore. sold timber to Mrs. a cheek ,. Tillman. Mrs. Mr. and . talk to you didWho you? buy it from Tillman
“Q. Mrs. Did Tillman. Mr. A. negotiations? these you made when buy- I are my wife ‘Now, say Tillman “Q. Mr. And did * * * No. jointly.’? A. ing this then? negotiations make you did “Q. Well with whom ** * Tillman. Mr. A. With A. agreement? that he made “Q. was this And where it? Where was * ** *6 Right among in the timber. “Q. Yes. A.
“Q. anyone present? A. No. else Was “Q. you? Yes, A. sir. the two Just Mrs. A. No.” “Q. Tillman? Not plaintiff’s agreement
It is clear that assertion made defendants his own conclusion upon with both was based Till- payment by check, signed by Mrs. of what for the timber man, testimony quoted above However, meant. and evidence negatives any or entered party idea that Mrs. Tillman was a any negotiations plaintiff. completely failed into with Plaintiff prove any partnership, joint legal or other relation- venture jointly Mrs. ship existing himself Mr. Tillman between judgment against sustain a Tillman. Insofar —as would Mrs. her, it modified and the as the assumes to bind is only Mr. Tillman. judgment should be amended so as to name issue, the third the defendant contends that the find- Under they ings (a) insufficient for the reasons: are mere of fact are law; (b) trial failed make find- conclusions of court any ings on of the issues the ease. 93-5303, provides 1947, court,
R. sec. for C. M. separately renderingdecision, findings state its of fact and its upon This held that proper law. court has re conclusions of duty findings, the district court to mаke in the quest it is the grounds presents City the cause reversal. of which absence 481, 484, 611; Hale, Rogers- 38 Mont. Pac. of Helena v. Welch, 321, 327, 56 Mont. Lumber Co. v. Pac. Templeton may have also held that a cause cited we 838. In the cases reversed, although findings made, are findings where such are lacking so findings substance as to constitute no at all. case, allegations
In
instant
findings
upon
are based
pleadings. Although
we
held that such find
have
ings
valid,
they
weighed
nevertheless
must be
as to suffi
ciency by
complaint
pleading upon
they
which
are based.
Quinlan
Calvert,
If the of fact refer complaint, to the then to be suf ficient, complaint must state a cause of action. 89 C. J. S. Trial, 630, p. 461; sec. Neusted Skernswell, App. (2d) 69 Cal 361, 159 49; (2d) Co., L. Craig App. Schomer v. R. 137 Cal.
Since the of fact in the instant ease are upon basеd complaint, an examination of mandatory is instrument present for a determination of the It quite issue. is apparent pleading from the has based his account, commonly the action on or as known, on an “open ’’ account. 93-3804, section R. C. M. provides that, our code “It is not necessary party for a pleading to set forth in a * * the items of an alleged account therein *.” spe Since no cificity in this regard, necessary needed it is not *7 allege constituting account, to allegation the items but an owing indebtedness is from defendant for “stumpage purchased the balance due on from timber of and plaintiff” upon from the which demand the defendant has pay, still is allege failed and fails sufficient to the ultimate required facts our code state a cause action. R. M.C. 1947, 93-3202, subd. 2. sec. said, complaint
It if states has been ultimate facts and facts, of law drawn from ordinary not conclusions in on language, may so that the man the street concise know what charged therein, general is is immune to a demurrer or to an objection testimony the,ground to the introduction on Wells-Dickey of action. it does not state a cause Co. v. Embody,
377
Bank v.
156,
869; and
First State
150,
Mont.
266 Pac.
see
82
Oregon
Borgeas
68, 73,
695;
271 Pac.
v.
Mussigbrod, 83 Mont.
1069;
416, 236 Pac.
Stricklin
Co.,
407,
R. R.
73 Mont.
Short Line
Ry. Co.,
367, 370,
59
The ultimate facts stumpage plaintiff, from and has bought defendant certain purchase though re pay refused to the balance due such allege one need not do. court has held that quested so to This pleadings. Nat. promise implied if from the Conrad one Ry. 178, Implicit 61 Co., 183, Bank Pac. 1. v. Great N. promise is a allegation purchase pay in the from any man the street have dif property. for Would the on complaint? ficulty determining charged in the We what was think not. nearly identical, subject matter,
Pleadings, except for the good against general jurisdic- been held have demurrers in other Epley Cunningham, App. (2d) 769, tions. v. 134 Cal.
(2d) 380; Peters, App. (2d) 671, 674, 675, Tillson v. 41 Cal. (2d) 434; Murray, Farwell 104 38 Cal. 199; Jones, App. 1937, 175 Central Lumber Co. v. La. So. 849, 851; Bros., App. 738, 12 E. Robinson v. Herbst 63 Ga. S. (2d) 77. Jones, In Central Lumber Co. supra, complaint essen- * * * * * *
tially alleges: Jones your “James indebted unto petitioner in the full Eighty-two sum of Six Hundred and 75/100 * * * Dollars, with five per cent interest thereon [*] [*] [*] Jones, sold and delivered to James W. Jr.” This [lumber] against general was held sufficient demurrer. n account, ‘only “In a suit on slight necessary averments are ’ Henry to state a Darling, cause of action. Harvey-Givin Inc. v. Co., App. 771, Taylor 40 Ga. E. S. 520.” v. Sterns Co., App. 662, Coal Ga. S. E.
California a statute 93-3804, has identical to our section found Procedure, California Code Civil sec. comment- ing (2d). that section and its effect on pleadings, 1 Cal. Jur.
378 “ It fol- states: 27, 344, 346, Accounting, pp. Accounts and sec. is complaint averring that the defendant lows that a count in a subject general a not to is indebted to account ambiguity and uncer- demurrer, special nor demurrer for ac- the cause of action tainty stating and when where the account.” setting crued or forth the items of states we hold In line with the above authorities a cause of action. question findings of whether the based
We come now to the judgment. complaint are sufficient to sustain the regard- determining question certain rules of construction applicable and should considered. ing findings of fact are evidentiary ones, facts, distinguished from “Ultimate County trial Lea Fair findings a court should make. Elkan, 250, (2d) Shep M. 228.” 52 N. 197 Pac. Association v. Service, 56 N. 243 Bell Aviation M. Pac. hard v. Graham Ely 605; (2d) 913. See also v. (2d) 603, 17 A. L. R. Montana 609, 614, 160 Labor, (2d) 117 Mont. Pac. Federation of State 752. sufficiency support of fact to
“The applied be tested the same rules that are sufficiency state a of action. to test the cause App. 32, Carpenter 946.” Gusta, 103 Cal. 283 Pac. v. Miller v. Froloff, App. (2d) 400, (2d) 86 Pac. 695. 30 Cal. fact are findings of
“It rule of law that the established rather than uphold as will receive such a construction 230, p. Trial, Jur., 24 sec. judgment thereon.” Cal. defeat the 452, 454; Hipp, 108 625, pp. Alles v. 1009; Trial, sec. 89 C. J. S. 109 451; Perry Manning, (2d) 239 Pac. v. App. (2d) Cal. Pastorini, (2d) 43; Anderson v. 557, 241 Pac. App. (2d) Cal. 428, 855. App. (2d) 117 Cal.
1‘ impliedly found facts court presumed not be that the It will findings. Beaverhead Canal express with the
inconsistent 880.” Co., P. E. L. & Dillon Co. Mont. 179, 193, Robbins, Crosby *9 by the framed issues with exact accord findings are in If the all that is is covered ultimate fact every pleadings and Wil v. Growers Canning Peach California required. that is 1160. 1154, (2d) (2d) 221, 78 Pac. liams, 11 Cal. (2d) Pac. (2d) 528, 139 Murphy, App 59
In Peterson v. Cal. (2d) Donnelly, 18 Cal. Haigler “In v. 49, 53, said: the court no that there was (2d) 331, the said 674, 676, 117 Pac. court finding express in of the trial court make error the failure made, and that implicit findings in the if it was upon an issue contradictory allegations. And necessity negate there is no 244 Weissbein, 261, Mining 198 Cal. Point Co. v. in New Blue that the affirmative court said- 325, 781, 45 A. L. R. Pac. by necessary im issues trial court on certain findings of the negative finding of the truth of them a plication carried with * * * opposition in thereto. alleged facts ‘‘ do findings as made However, were assume thаt if we pleadings, failure material issues raised not cover all it appears unless ground for reversal on an issue is not find issue sufficient as to such evidence introduced that there was (24 940, Jur. finding appellant Cal. to sustain a favor (2d) 680, 683, 123 Pac. App. 50 941; Johnson, Powell v. Cal. 875); finding, necessarily if (2d) made, and where a would appellant, complain against been he cannot of the lack of have Hoar, App. (2d) 269, 27 81 Pac. finding. Moore v. Cal. such 544, (2d) 251, (2d) 226, 238; Peck, v. 90 Utah 63 Pac. Johnson Crawshaw, 455, 130 254; App. Irr. Dist. v. Cal. Consolidated 119; (2d) Bailey, App. (2d) v. 40 462, 20 Pac. Brooks Cal. 854; 24 944." (2d) Cal. Jur.
316, 104 Pac. instant rules, findings in the case by the above Governed they plead are sufficient. Since are based The rule is ings they in terms of ultimate facts. are couched findings in Montana and in Calfiomia established both allegations of all merely referring to the truth cross-complaint falsity of those found in the answer Quinlan Calvert, supra; Kalmus v. v. Cedars sufficient. 380 872; Hospital, (2d) 132 App.
Lebanon Cal. (2d) 41; App. (2d) 410, Goldstein, Wexler v. Cal. App. (2d) City County Francisco, Larsen & 152 Cal. of San Jur., 214, pp. (2d) 959; Trial, sec. Cal. cursory would make Furthermore, of the record examination requested any change in amply apparent it insuffi- cause, his there is by defendant would not aid because any appellant. finding sustain favor evidence to cient Murphy, supra. Petersen v. Epley Cunningham, supra, App. 134 Cal. holding
The (2d) 380, particularly applicable to this (2d) 769, 286 Pac. respondent “Plaintiff filed a ca,se; stated: wherein last, alleged years the four he within *10 complaint wherein respondent’s assignor indebted to on past defendant became due, account, adjudged sum to be for labor in the open an boоk and materials furnished by said assignor appellant. [*] [*] [*] true, allegations the found that the of were The court * * * true, allegations the of were that [affirmative defense] judgment in the amount sued for.” gave sufficiency findings the commenting upon (2d) page at 381: said 286 Pac. court alleging “A existence of a balance due and basically ordinary account is owing on a book action to col- * * * lect a debt. in-
“Appellant argues finding appellant that supported on a book account is not the evidence. debted proved. the extent that book But That true to no account was fully supported finding the essential of a this leaves debt ’’ not material. the variance is (cid:127) join in his issue is whether failed The next parties It indispensable plaintiff. appeared at allegedly actiоn his pur- wife had contracted to the trial that subject litigation— of grew which this the land chase applied from the sale of timber were to be the timber. Proceeds 381 However, wife, purchase plaintiff’s of price the lands. parties suit, did de- vendors, or never made to the nor were trial, prior at the move for on the fendants or thereto dismissal ground parties plaintiff. defect provides every prosecuted must be
Section 93-2801 action party in the in interest. name the real provides “may any Section 93-2828- that the court determine controversy parties it, between before when it be can done with- prejudice rights others, by saving out to the rights; their controversy but complete when a determination of the cannot presence parties, be had without the of other the court must then ’’ brought order them to be in. Generally any in parties defect must be advantage taken
by special demurrer or else waived, is deemed R. M.C. 1947, 93-3301; sec. Church v. Zywert, 102, 58 Mont. 190 107, 291; Pac. Evans, McKenzie v. 96 1, 10, Mont. (2d) 657, parties or if the defect of does not appear on the face complaint then to move for non-suit Thompson at trial. v. Shanley, 235, 244, 93 Mont. 1085, 17 (2d) Pac. followed Fraser, 1956, v. 170, Cormier 130 Mont. 296 (2d) Pac.
It only where rights of persons parties not made would prejudiced by a decision absence, in their court will reverse case for properly join failure to parties plaintiff. Evans, McKenzie 29 Mont. Pac.
657; State ex rel. Court, Delmoe v. District 42; (2d) 39, Emery Emery, Mont. (2d) 251, 265; Valley ex State rel. Center Drain District v. *11 County Board of Commissioners, 100 Mont.
635, 639.
There are no facts' in the instant bringing case within the
latter plaintiff’s rule. Absence of by the wife could not any stretch of imagination prejudice result in to her. As to of joining vendors, arguendo only assuming they that be prejudiced by would absence, this decision in their that point moot, has at they become since the trial it was adduced that had fully been paid, mortgage and that plaintiff had executed to-another person, the terms were introduced. of which The could they vendors not be for the had prejudiced reason everything they purchase were received entitled under the payment in full. contract — last issue erred in not presented
The is whether court plaintiff’s granting defendants’ motion to strike cost bill for statutory the reason it was not filed within the time limit. findings law on of fact conclusions of The court made and Judgment was April 18, 1955, April 21. and filed them on April April signed and filed 29. disbursements filed his memorandum costs and
Plaintiff April strike on moved to April 29, on which defendants May motion on refused to sustain defendants’ 30. The court party in 93-8619, provides: “The whose B.. M. sec. C. costs, must rendered, claims his de- and who judgment is favor party, adverse within serve clerk, and liver to court or notice decision days the verdict five after on verdict entry judgment or or, if the referee entry mem- is made” his stayed, before such then be decision of costs. orandum herein, entered law findings fact and conclusions
The provided: the court entry judgment stayed hereby given (5) them, five defendants, each of and “The serve prepare, time to within which days from date hereof herein exceptions are filed hereto, if no such exceptions file given and made as let be time, then within complaint.” plaintiff’s' for in the said prayed exceptions April 23, which filed to thе on Defendants April order which by the court were overruled provided: further Judgment given Hereby Ordered that Further Is Now
“It against the defendants in favor of and made complaint.” prayed for in said bill was filed time. situation,- the cost we hold In this *12 very error specifications examined defendants’ We have discussed, find them carefully, exception the heretofore and with without merit. to is with
The case remanded to the district court directions judgment; strike as amended Mrs. Tillman’s name from affirmed, party pay to his costs. is each own ADAIB, CASTLES, MB. ANGSTMAN and JUSTICES concur. in KING, Judge, sitting place
HON. DEAN District of MB. JUSTICE BOTTOMLY. KING, Judge:
DEAN District I dissenting case, am in this injustice not because I think an done, has been but I legal because think it prece- establishes a dent if a very ju- which followed will have adverse effect proceedings dicial in designed disputes Montana tо settle and justice litigants. secure system between Our code adopted improvement as an system old common-law pleadings largely which the largely legal were formal and conclusions. The in this action is similar but not complaint. sufficient aas common-law
I fully believe that the more the facts are set forth in the pleadings the better it parties, courts, taxpayers. Under code, where the constituting facts cause of action are to be set forth in the complaint, denials, ad- allegations missions and constituting new matter a defense required counterclaim are set answer, forth in the and de- murrers all pleadings provided Many are for. im- portant may legal questions given which in a arise case de- are trial, jurors cided before when witnesses are not attend- judge anсe, is not pressure under for an immediate decision. Sometimes those decisions determine ease. Some they they parties times such that enable the get together are altogether. on settlement the trial a and avoid Trials expen- hardship jury is calling wait for of a sometimes sive. To of a trial litigant. in advance upon The more that decided the better for all concerned. I I
Also have' found decided cases that sometimes when *13 my findings start write of fact and I think the to conclusions way. go By completed I them decision should one the time have way. Writing go I see it must the other of fact and procedure judge the for a to fol- logical of law is conclusions requires The statute arriving proper judgment. low in at the statutory requirement writing I for them it. not the do believe except formality a brushed aside in eases mere to be shоuld be clearly purpose. it serve no where could achieving I think our codes enacted the purpose were for They require results. the the those to state facts ordinary lan- constituting the cause of in concise action and that guage. eases, including this, Montana have added Some to may he requirement the man on the street know “so that what any way I en- with.” see that that in either charged cannot provision. constituting If the larges limits the facts code ordinary language forth in and concise are cause action set not, charged they If he is with. are he should understand what not understand. probably he so will are complaint alleges only that defendants this case a being balance on sale of plaintiff $302.74, due indebted to examination purchased plaintiff. from On dirеct stumpage defendant, stumpage he to one plaintiff testified that sold He Tillman, testify any agreed price. not but did to Oscar stumpage was testified the reasonable value of further that that he further testified amount. On cross-examination certain the same amount agreed price which was he Tillman á and The find- testimony the reasonable value. as his showed to be the conclusions ings do show whether agreed testimony the reasonable value or his as to based on agree price on the that they did not is that if The law price. reasonable for the value Tillman was indebted if that matter price, no timber; they agree if did on a indebted to Tillman agreed price exorbitant, was is based indebtedness agreed price. The amount It is conclusion those facts. applied аs on the facts and law universally hold. almost law as the cases result or that the majority holds Under this decision the effect in may a com- be stated applicable law of the facts and ulti- is a statement of plaint, that that result or effect principle action. If constituting the cause of mate facts destroys system plead- our completely applied all eases separate, so that much of ing designed keep law and facts the trial. may be decided advance the law a case their adopted plead About the that California codes of time lawyers ing judges same were familiar with —the ours— pleading. early common-law Code was new. The pleading according courts held that to the common-law counts They holding although was sufficient. have follоwed that *14 judges adhering frequently expressed to it have dissatisfaction it, allegations practically (cid:127)with and have ceased to contend anything in but of law. The such as this case are conclusions of that state are in This is discussed fur decisions confusion. Bentson, App. regard Supp. ther on with 127 Cal. Smith (2d) 15 Pac. This decision is somewhat like those California decisions must lead same to the result —confusion. We cannot cover the whole field phase of confusion but one of it is this. Montana has you held that cannot show the defenses of payment, of a stated account, limitation, statute of similar defenses, under a general California, denial. In where pleaded the may a common count the urge defendant such defenses under general denial. DeSantis v. Miller Petroleum 29 Co., Cal. Apр. (2d) 679, (2d) 489, 491; Zeigler, Evans v. 91 Cal. App (2d) 204 902, 905; Pac. Crawford, Wallace App. (2d) 394, 69 (2d) 455, Cal. 461. Also in Heaton-
Hobson Arper, Associated Law Offices v. Cal. syllabus Reporter the of Pacific reads: services,
“In an action for the reasonable value of an answer denying that plaintiff ‘defendant is indebted the said in the ’ $699, any sum, in present sum in sufficient to an issue the-case.” difficulty any
Another will arise. If this or other case with jury, jury similar is tried must with determine them as applicable the facts. The court must instruct to the law Eliminating cross-complaint supporting those facts. defendant, testimony decision, judges before this district we jury effect, have instructed the “Defendant has ad- would purchase plaintiff. you of timber from If find that mitted the price you timber for they agreed on the sold will find any pay- agreed price in the amount of the less plaintiff they yоu agreed not find that by defendant. If do ments made you amount price find for on the will taken, any paid by less amount of the timber reasonable value perhaps this decision we should instruct Under defendant.” purchase timber. has admitted jury, “Defendant you the amount that de- Therefore will find jury is for the determine the ulti- him.” It fendant owes only fact for the this decision ultimate facts. Under mate plain- that defendant is the amount owes jury to determine tiff. special Montana decision whole field de-
Under this ,and by supreme need to counterclaims will be covered fenses made, until decisions are decisions, and those district court regard dark to what evidence be in the with should courts -will complaints general denial similar to on a this. be admitted majority opinion “plaintiff states that in this case has (cid:127). The *15 complaint upon account, the action on his or as it is com- based I known, ‘open an account’.” cannot find that monly on we action on account.” that I Montana “the All can find haye, all 93-3804, rule for actions and section general is which, setting forth pleader, R. M. C. relieves items account, setting forth the facts of an from existence Georgia rule cited in the I think the of that account. do not App. majority opinion Taylor Co., Ga. v. Sterns Coal ‘only account, “In on E. effect that a suit S. ” of action’ slight to state a cause necessary averments are our codes should decisions in Montana. Under influence the any footing the same as one action on an account stands on other contract. in this so far- as the defend- agree disposition
I case with agree I that there ant, Tillman, is also Mrs. Oscar eonéérned. judgment support the competent sufficient credible evidence to that against Tillman, Oscar a case the district court that is the case. should never be on the evidence where reversed complaint action, I a "While not think states cause do ground. agree judgment I do that be reversed on that cannot judgment to sustain the was admitted with- Sufficient evidence objection. out
I agree generally and, that at least far so as this case con- cerned, finding allegations complaint of the are true findings constitutes support sufficient of fact to complaint complaint based on the if the states a cause of action which is the judgment. agree that, basis for that I also in .order complaint fact based on the tо be sufficient the complaint subject must state a cause of action. This rule is exception, implicit majority opinion the statement in the finding, made, necessarily “where a if would have been against appellant, complain he cannot of the lack of such find- ing.” seller,
This case is an action right to cut and remove from by plaintiff trees land owned and his wife as ten- ants in common. The allege does not either' or both purchased the defendant stumpage allege and does not delivery. defendant, However, Tillman, Oscar allege did *16 necessary as findings are facts, accordingly no
prove those and those facts. to complaint, conse- allegation the
However, there no agreed or the reasonable finding of fact as to what quently no the amount finding of There no stumpage was. value the impliedly expressly or Tillman, promised defendant, Oscar stumpage. pay for the stumpage examination, that the Plaintiff, on direct testified white $15 a thousand feet for the reasonable value was of cross-exam- feet for other timber. On pine, $6 a thousand agreement Tillman that his with Oscar was ination he testified Tillman testi- pay him that amount. Oscar Tillman was to stumpage $2.75 the a value of all was the reasonable fied that agreed pay. he There feet, that that was what thousand pine feet of white and about one only about ten thousand Tillman paid timber. had $500 feet of other thousand hundred overpaid that he had before find- and claimed stumpage, on the taken. that he had amount ing out the small say: this court can how I understand cannot cursory would “Furthermore, examination of record any chаnge as apparent amply it make cause, not aid his because there by would requested defendant any finding ap- in favor of to sustain evidence is insufficient pellant.” as nor defendant testimony neither
The contradictory by other than impeached price was agreed testimony the reason- of each other. The testimony of the testimony. other by considerable was corroborated able value only in the ease. timber was the issue price or value The 489, 492, 171 Pac. Purdy, Chealey v. ‘‘ These Brantly said: through Chief Justice court, speaking pro- nature, their actions, whatever apply to all rules supra], subject pleadings on [cited the Codes visions required pleadings are or what guide as to the exclusive furnish on a applied to an action jurisdiction. As in this permitted allege the resting parol, must con- contract recover, performance tract a substantial which he seeks to according terms, defendant, and the to its a breach ’’ showing facts he to recover. the amount is entitled For the prove seller to recover on goods the sale of he must agreed price either an goods the reasonable value of the sold. allege He jury must also it. In a without proper case tried agreed demand the court must find price either or the rea- *17 sonable value. The in this case not a do contain such they finding complaint because on a has based no such allegation. majority opinion
The apparently holds does allegation way contain that of inference from the alle- gation that plaintiff defendаnts are indebted $302.74, for a balance on stump purchased due the sale age plaintiff. from support
In position of that majority opinion cites section 93-3804. I merely As read that provides section it that it is not necessary in a to set forth the items of the account. It does not relieve pleader obligation of the allege agreed price total or the reasonable value property of the sold. majority The opinion three cases, also cites one California Georgia case, and Georgia one Louisiana case. I not do have the case or case, not Louisiana their do have statutes avail- able, why but go thought back to Louisiana? I their law was based Napoleon. Why rely on the Georgia Code on without citing their codes? Of thе cited, California cases sustain two position. Peters, I submit that (2d) Tillson v. App. Cal. 671, (2d) 434, Murray, does not. Farwell v. 104 Cal. is a common pleading. Epley count v. Cun- ningham, (2d) App. (2d) 134 Cal. Pac. a court of appeals case, contention, why rely does sustain the but on these California cases. The California inconsistent, only cases are Montana, Bentson, with but with each other. v. supra, Smith against appealed was husband and wife. Plaintiff from the complaint alleged in favor of the wife. The that de-
390' tbe of $75 indebted tbe sum1
fendants “became
by plaintiff”
tbe'husband.
professional services rendered
question of the
gave very careful consideration to the
The court
pléading
first,
it
as a
sufficiency
complaint,
considered
requires
pleaded,
and then
under
which
the facts to
the code
allegation
that defendants’ bе
held it insufficient because
it
it as
a
law. Next
considered
indebted was
conclusion of
came
again
insufficient.
It cites
pleading,
held it
a common-law
‘‘
that-
thirty
proposition
cases
a
com
about
California
only
a
essential to the cause of action
plaint
states
fact
which
App.
by way
of law sufficient.”
Cal.
conclusion
[127
(2d)
About half held such
com
789, 15
Supp.
910.]
Epley
Cun
sufficient,-
it insufficient.
v.
plaint
half held
does not indicate whether the com
supra, the court
ningham,
allegation that
it
sustained
considered
plaint was
because
allegation
of an
was
indebted to
defendant became
allegation
it
sufficient
considered
or because
ultimate fact
of law.
although
a- conclusion
a con
consistently
allegation
that an
has
held
Montana
Waite
pleader. The last case was
not aid the
clusion of law does
220, 315 Pac.
Co.,
Ins.
132 Mont.
Acc.
Standard
Wall,
596, 45
Mining
see
Co.
However
Securities
*18
as some
inconsistent insofar
(2d) 302,
apparently
is
which
Pac.
ago
Long
courts
concerned.
when
general
statements
pleading and
of common-law
lawyers
the rules
.understood
new,
by many
pleading were
it was held
courts
of.
rules
code
in accord with common-
allegation
of an indebtedness
code,
in
under the
some of
pleading was sufficient
law
California,
find
con
states,
we
considerable
particularly
those
attempt
permit pleading
legal
to
of
resulting from the
fusion
forms,, and still in other
common-law
under the
conclusions
early
Montana has an
case where
recognizing
code.
cases
16
Importing
Hogan,
Co. v.
Mont.
appears, Herbst
influеnce
in that
However,
complaint
case was held
384,
supra R. M. 1947, C. sec. 93-3202].) If phraseology [now any common count is adequate particular bring ease to pleader rule, within the code then sufficiеnt.; his pleader otherwise not. Where employ elects lan guage count, subjects of a common he himself gov to the rules erning sufficiency the construction and under the Codes; say, that is to if a common count will in fact state his ordinary of aetion in language, good. cause concise it is not, If it is it will bad.” Supreme
The Washington Courts Idaho and followe_dthat thorough approval ca.se with of the reasoning therein. Moser
392
639,
Pugh-Jenkins
438,
Pac.
Co.,
v.
Furniture
31 Idaho
173
654,
L. A. 1918F, 437; Ludwig
R.
153 Wash.
Hollingsworth,
Chesney v. legal a con- in a certain amount is allegation of indebtedness judgment. a support Beginning page insufficient clusion many authorities to the same effect. it cites 991 of Co., Life Ins. v. Lincoln Nat. Thompson allegation 683, is indicated 524, law. conclusion of tendered due had been the balance being based on a fact, I think of action to constitute cause sufficient not state facts that does judgment. of law and conclusion support insufficient *20 I think that be necessary steps defendant en- has taken the to titled finding sold, to a stumpage аs of the price to the or value and that in finding judgment the absence of should be such reversed.
On another matter The appearing in I am not clear. his case stump- himself sold the testified in effect that he alone age involved be cut land owned himself and wife from tenants in party common. His sale. She wife not party testimony not a action. There was no that she even sale, knew of It cutting timber, of the action. seems to in full paid me that after this and satisfied that she still for her can recover from defendant interests damage property. However, it seems timber or to her to me plaintif making should not allowed to recover without Courtney Gordon, her party. However I question me. will against seems to be As neither I concur. dissent —but do doing STATE JOSEPH ROEDER, L. ex rel. under business Style Respondent, the Name Texaco, of Roeder Relator EQUALIZATION THE STATE BOARD OF . v Appel Montana, etc., State Defendants lants. No. 9568. January May 2,
Submitted 1958. Decided 1958.