169 P. 727 | Mont. | 1917
delivered the opinion of the court.
Appeal by Shirley’ II. Jenks from a judgment by default. Service of summons was by publication, and the contention is that the court below was without jurisdiction. Several reasons are suggested, one of which; however, will suffice.
The complaint, which names Jenks and Joseph P. Nolan as defendants, alleges, in substance, that the plaintiff — respondent here — performed certain professional services and expended certain moneys to the value and amount of $7,525 as an attorney for Jenks in the prosecution of a suit by the latter against the British-Butte Mining Company; that the results of the suit were a judgment in favor of Jenks, upon which execution was issued and thereafter levied against all the real and personal property of said mining company; that at the sale under said execution plaintiff “bought all the said real and personal property in the name of and for the use and benefit of” Jenks, which property consists of eight particularly described mining claims, “all situate, lying, and being in the county of Silver Bow, state of Montana,” and one Risdon Electric Mining dredge (locus not stated); that no part of the moneys due plaintiff for said services has been paid, although demanded, and the plaintiff, under
It is argued that the complaint does not state a cause of action; but this is clearly wrong from a technical point of view.
Jenks was not served with summons personally and did not appear in the action. That he was a nonresident of the state, living at London, England, is shown by both the affidavit and
Passing upon these considerations, we come to others more
These omissions are fatal to this case, because the present
As the dredge is the only res upon which the judgment attempts to act, and as the record fails to show that it was brought into court with the suit by virtue of the asserted lien, it follows
Reversed.