Beck v. O'Connor

21 Mont. 109 | Mont. | 1898

Pemberton, C. J.

We have felt very much inclined to dismiss this appeal on account of the utter failure of counsel to comply with the rules of court in relation to the preparation of his brief.

Subdivision 3 of Rule 5 is as follows: “Contents of brief. This brief shall contain, in the order here stated: (1) A concise abstract or statement of the case, presenting succinctly the questions involved, and the manner in which they are raised, which abstract shall refer to the page numbers in the transcript in such manner that pleadings, evidence, orders and judgment may be easily found. (2) A specification of errors relied upon, which shall set out separately and particularly each error asserted and intended to be urged. When the error alleged is to the admission or to the rejection of evidence the specification shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the specification shall set out the part referred to totidem verbis, whether it be instructions given or instructions refused. ’ ’

Counsel has absolutely ignored this rule. The brief contains no proper statement of the case, no specifications of errors, nor any instruction given or refused of which counsel complains. As a consequence, we have been compelled to go over and over, through and through, time without number, a ■poorly prepared bunglesome transcript, to find the matters complained of by counsel. Such utter disregard of the rules of court by an appellant in this respect will in the future be punished by a dismissal of the appeal. We must either punish such seeming contempt for the rules of court, or abolish them.

At the trial of this case, the court permitted the defendants to prove the terms and conditions of the lease and bond from Stapleton and others to Addoms and Welch, under which the plaintiff claimed title to the interest therein sold to defendants, for the purpose of showing that it was absolutely necessary, under such terms and conditions of said lease, • for Olds to do the work he performed, and make the expenditures he did, to keep alive his own and plaintiff’s interest and title under the lease to the leased premises, and that, if Olds had not done such work on said premises, plaintiff’s interest and title under and to the lease and bond would have wholly failed, it is not claimed that plaintiff ever did any work or expended any money to preserve the title to or under the lease and bond which he sold to defendants, but that Olds did preserve and keep alive such title by his work and expenditures on the leased premises under the lease.' The court instructed the jury that, under such circumstances, Olds had a claim against plaintiff for his share of the work and expenditures, and was entitled to a lien against his interest in the leased premises acquired under and by the assignment of the two-sevenths interest of the lease and bond by Addoms and Welch. To the, admission of this evidence and the giving of such instructions, the plaintiff excepted, and assigns such action of the court as error.

Counsel contends that plaintiff and Olds were co-tenants of the leased premises, and that he was not liable for any expenditures Olds might or did make thereon. ■ If plaintiff and Olds bad been the owners as co-tenants of the premises in controversy, the argument of counsel that one co-tenant could not incumber the interest of another by work or expenditures tiiereon would have been pertinent, and perhaps conclusive. But we have a different case, here. Whatever interest Olds had or the plaintiff acquired was under the lease from Staple-ton and others to Addoms and Welch. In order to preserve any interest under the lease, the leased premises had to be worked continuously by the lessees or their assignees. Olds did work the leased premises continuously, and made large expenditures thereon, to preserve the leasehold estate; and such work and expenditures necessarily inured to the benefit of plaintiff. Plaintiff became a party to the lease by purchase from Addoms and Welch, and was bound by its terms. He could not, in equity, appropriate the benefits resulting from the work and expenditures of Olds- on the premises without becoming liable for his share of the work and expenditures necessary to preserve the leasehold estate. Therefore Olds had a claim against plaintiff, and was entitled to a lien on his interest therein for his share of such work and expenditures. (Prentice v. Janssen, 79 N. Y. 478; Jenkins v. Jenkins, (N. J. Ch.) 5 Atl. 134; Eads v. Retherford, 16 N. E. 587, and authorities cited; Holbrooke v. Harrington (Cal.) 36 Pac. 365; Freeman on Co-Tenancy, 322.) The amount chargeable to the interest of plaintiff in the premises was far in excess of the amount sued for. Plaintiff, it is conceded, refused-to .pay this sum or' discharge the lien Olds was entitled to against the interest sold to defendants, by reason whereof plaintiff’s title to the premises and to the interest in the lease and bond sold to the defendants wholly failed. Under such circumstances, plaintiff had no right of action against the defendants or either of them, and thev were certainly entitled to recover the money they had paid for a title that had wholly failed. Plaintiff’s contract bound him to convey a good title. He did not do it. He refused to perform the conditions and terms of the Stapleton lease upon which the preservation and completion of the title he sold depended.

There are other assignments of error, but, being of the same character, they are necessarily determined by the above, treatment of the main question involved. We think the case was fairly tried and detérmined upon its merits.

The judgment and order appealed from are affirmed.

Affirmed.

Hunt and Pigott, JJ., concur.