141 P. 986 | Mont. | 1914
delivered the opinion of the court.
The appellant, Ben Chesnut, as the owner of two certain mules and a set of harness, brought an action in the district court of Gallatin county against the respondent, A. H. Sales, to recover the possession of the same, with damages for the detention thereof. After issue joined and a trial upon the merits, Chesnut had judgment for the return of the property and damages, whereupon he demanded the return of the mules.. Sales refused to deliver, but appealed to this court, giving the stay bond required by section 7103, Revised Codes. The appeal was unsuccessful (Chesnut v. Sales, 44 Mont. 534, 121 Pac. 481), and upon remission of the cause to the district court, Sales re
It is conceded by both sides that but one question is
Impressed as we are by the reasoning of these cases, and realizing, too, that no effective appeal was open to respondent at bar unless he kept the property, we are nevertheless of the opinion that the appellant was entitled to recover. The mere
The question, then, is whether the act of respondent constituted a new wrong, or was merely a continuation of the original one. The New York court laid some stress upon the fact that in the Blye Case the complaint alleged no new or separate demand, but simply a continuation of the refusal to obey the original one, and there is room for the inference that had a separate demand been made after judgment, a different conclusion might have been reached. However that may be, the case at bar does disclose a separate demand after judgment, and it is the contention of appellant that this circumstance, coupled with the impossibility of recovering in the original action such damages as accrued pending the appeal, is ample warrant for this action. We accept this contention as sound.. In the original action the award is fixed as of the date of the verdict; there is not, nor co.uld there be, any method providing for the allowance in that action of further damages accruing after judgment and pending an unmeritorious appeal. Yet in every such ease there may be, and in the instant case there was, a very substantial detriment thus caused. Upon the respondent’s theory this is a wrong without a remedy — a sort of sacrifice which the prevailing party must make in order that his adversary may invoke the right of appeal — and belongs to the same category as the damages which may accrue from withholding the property between the date of the verdict and the date of judgment. We do not so apprehend it. It is not the theory of our Code that substantial damage suffered by one through the fault of another shall be unredressed, but that in all such cases the damaged party shall have full compensation. (Rev. Codes, secs. 6040, 6041, 6068,, 6071.) Nor is the intention of the law that a judgment will follow so far behind the verdict as to be the cause of substantial damage; this is apparent from the Code provision requiring the-entry of judgment within twenty-four hours after verdict (Rev. Codes, sec. 6800), and the instances in which
The judgment and order appealed from are reversed and the cause is remanded, with directions to enter judgment for the plaintiff in accordance with the terms of the stipulation.
Reversed and remanded.