Barrett v. Shipley
206 P. 430
Mont.
1922
Check Treatment
MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This action was commenced in a justice of the peace court to recover possession of a calf of the alleged value of $50. Plaintiff prevailed, and defendant appealed to the district court. When the cause came on for trial before the district court, plaintiff made application to amend his complaint, but the application was denied. When he called his first witness, defendant objected to the introduction of any evidence, on the ground that the complaint does not state facts sufficient to constitute a cause of action, and the objection was sustained. Plaintiff then renewed his motion to amend, but the motion was overruled, and he rested without having introduced any evidence. Thereupon defendant moved for a directed verdict, and the motion was sustained, verdict returned, and judgment rendered and entered. From that judgment and from an order denying a new trial, plaintiff appealed to this court.

It is conceded that the complaint is insufficient in that it does not disclose that plaintiff was entitled to the possession of the animal at the time the action was commenced (Chan v. Slater, 33 Mont. 155, 82 Pac. 657); but it is insisted that the court erred in refusing permission to make an amendment which would have cured the defect. Section 9755, Revised Codes of 1921, provides that an appeal from a justice of the peace court must be tried anew upon the papers filed in that court, unless the district court “for good cause shown” allows other or amended pleadings to be filed. Section 9187 provides that the district court, “in furtherance of justice,” may allow a party to amend any pleading in an action commenced in that court. There is not any distinction in principle between the provisions of these two sections. In either instance the application to amend is addressed to the sound legal discretion of the court (Cullen v. Western M. & W. Title Co., 47 Mont. 513, 134 Pac. 302), and it is elementary that there must be such a showing made as will move the *157court’s discretion. "While under our liberal Practice Act amendments are allowed generally, they are to be allowed in furtherance of justice, and not as a reward for indifference or neglect.

This action was commenced in June, 1918, tried in the justice of the peace court in July, the record on appeal lodged in the district court in August, 1918, and the cause brought to trial in the district court in October, 1919. In passing upon the application to amend, the trial court directed attention to these facts and to the further facts that the sufficiency of the complaint was challenged at the trial before the justice of the peace, that, though fifteen months elapsed thereafter, no effort was made to have the pleading amended until the trial had commenced in the district court, and that there was not any showing made or any excuse for the delay offered. Under these circumstances it cannot be contended seriously that the court abused its discretion. The language employed in the Cullen Case above is peculiarly applicable here, and further discussion of this assignment is unnecessary. In that case this court said: “While it is the policy of our law to permit amendments to pleadings in order that litigants may have their causes submitted upon every meritorious consideration that may be open to them (Rev. Codes, secs. 6588, 6589), and while it is the rule to allow, and the exception to deny, amendments (Leggat v. Palmer, 39 Mont. 302, 102 Pac. 327; Flaherty v. Butte Electric Ry. Co., 43 Mont. 141, 115 Pac. 40), yet thej are not at all stages of the proceedings a matter of right. After issue joined, the matter lies within the sound judicial discretion of the trial court, and an abuse of that discretion must be made to appear before this court can say that a refusal of leave to amend was wrong.”

It is contended, further, that the court erred in directing a verdict, and that the proper practice should have been to grant a nonsuit or dismiss the complaint, in conformity with the provisions of subdivision 5, section 9317, Revised Codes of *1581921. Speaking with technical precision, this contention is well founded. A motion for a directed verdict is, in legal effect, a demurrer to the evidence (McIntyre v. Northern Pac. Ry. Co., 56 Mont. 43, 180 Pac. 971), and, since there was not any evidence before the court, the proceeding 'was irregular; but a cause will not be reversed for a mere technical error which does not affect the substantial rights of the party complaining (sec. 9191, Rev. Codes 1921). Plaintiff was not injured by the irregularity, for he is not placed in a worse position than he would have been if the court had observed strictly the provisions of section 9317, above.

In Consolidated Gold, & Sapphire Min. Co. v. Struthers, 41 Mont. 565, 111 Pac. 152, this court said: “But it has always been the practice in this jurisdiction that, when the evidence on the part of the plaintiff does not tend to establish the cause of action stated in the complaint, the court may direct a verdict or take the case from the jury and enter a judgment of nonsuit. In such ease there is nothing for the jury to find. [Citing eases.] "Whether the court pursues one course or the other, the result is the same; for, though the court directs the return of a. formal verdict, the result is nothing more than a determination of the case by the court, the jury performing no other office than that of giving form to the court’s conclusion.”

The verdict returned by the jury reads as follows: “We, the jury in the above-entitled action, by direction of the court, find the issues in favor of the defendant, and against the plaintiff. We find that the defendant is the owner of and entitled} to the possession of the animal described in the plaintiff’s complaint, and that the value thereof is the sum of $50.” Since the burden of proof was upon the plaintiff, and there was not any evidence whatever introduced, it is manifest that the only verdict which could be returned was a general verdict for the defendant. Without evidence it was impossible for the jury to determine the question of ownership, and without *159either evidence or direction from the court there could not be a determination of the question of value. However, the fact that the jury exceeded its authority and found upon questions not properly before it does not vitiate the verdict in its entirety. It is still a valid general verdict for the defendant, and the additional findings upon the questions of ownership and value may be treated as surplusage and disregarded. (McLean v. Douglass, 28 N. C. 233; 27 R. C. L. 853.)

The judgment does not determine the question of ownership but directs a return of the property which had been taken by the plaintiff at the commencement of the action, and awards to defendant his costs. This form of judgment was approved in Wheeler v. Jones, 16 Mont. 87, 40 Pac. 77. The return of the property and the award of costs follow as incidents of plaintiff’s failure to establish his case. The judgment directs a return of the property or its value, $50, in the event that the delivery of possession cannot be had. The court evidently proceeded upon the theory that section 9406, Revised Codes of 1921, requires that in every action in claim and delivery the judgment must be in the alternative; but the most cursory reading of the statute indicates that it applies only to a case which has been tried upon the merits. However, plaintiff was not injured. He alleges that the animal is of [8] the value of $50, and cannot complain that the court accepted his allegation as true. In an affirmative defense defendant alleges that the animal is of the value of $75, but it was competent for him to waive that defense, and he did so specifically in his motion for a directed verdict. The errors committed by the trial court did not prejudice the plaintiff in any substantial rights.

The judgment and order are affirmed.

'Affirmed.

Mr. Chief ’Justice Brantly and Associate Justices Cooper and Galen concur.