Gregg v. Kommers, No. 1,079

No. 1,079 | Mont. | May 8, 1899

PER CURIAM.

1. There is sufficient evidencé- to sustain' the conclusion of the District Court that the contract sued upon created a mortgage lien in plaintiff’s favor on the premises described in the complaint. This was the controlling question in the case.

2. Kommers does not appeal. Therefore he cannot complain of the form of the decree, which fails to expressly provide that no deficiency j udgment should be entered against him; while defendants Porter and Stanton cannot be injured by such omission, for no deficiency judgment was asked or granted against them or either of them. Nor can Porter and Stanton complain of the omission in the decree to provide for a distribution of surplus, for neither of them is affected by such omission.

3. Under the contract between Gregg and Kommers, the court properly allowed interest on the principal sum found to be due at the rate of 18 per cent, per annum.

4. The deed by Porter to a blank grantee was competent evidence as bearing upon the question of whether the contract between Gregg and Kommers was acted upon by the parties thereto, and believed and intended by them to be a mortgage.

5. There was no reason why the court should have adjudicated the rights between Chesbro and Porter, for the court decided that Porter had no interest at all in the land.

6. Plaintiff objected to a question relating to the purchase of a tax title put by defendants to one Burlingame on cross-examination. The court sustained the objection. No exception was noted. Defendants cannot now complain.

7. Defendants have assigned several other errors based upon admission or exclusion of testimony. Most of these specifications are disposed of by saying that in their brief defendants do not refer us to the pages where such evidence occurs, nor have they made a concise abstract or statement of the case, referring to the page numbers in the transcript where the evidence may be easily found. For this inexcusable violation of the rules we pass several alleged errors. This comment applies also to the alleged error of the court in striking out certain new matter set up in defendants’ answer. The assignments which refer to the record and which are argued in the brief are not well taken.

8. The ground of newly-discovered evidence, upon which a new trial was asked, has no merit. Courts will not retry cases because a witness who has testified failed to state all he knew either through forgetfulness on his own part, or unfamiliarity of his counsel at the time of the trial with the knowledge of the facts which the witness possessed.

There are sixteen “specifications of error” set forth in the appellants’ brief, "but there is no brief of the argument exhibiting a clear statement of the points of law or fact to be discussed, as required by Rule 5 of this Court. (Babcock v. Caldwell, 22 Mont. 460, 56 P. 1081" court="Mont." date_filed="1899-04-24" href="https://app.midpage.ai/document/babcock-v-caldwell-6639693?utm_source=webapp" opinion_id="6639693">56 Pac. 1081.) We were warranted in refusing to consider any of the assignments of error, but have patiently gone through the record, and, without enumerating all errors specified, are of the opinion that appellants are not entitled to relief. Judgment and order affirmed.

Affirmed.