*1 render Act unconstitutional, sustain its interpretation validity, the latter must be adopted.” In Chapter 28, language that, Laws of there is no expressly by implication, retrospective gives either effect to 12-201, prohibits the Act. Section R.C.M. the considera- tion extrinsic aids to the construction of as to the section prospective operation. opinion my retroactive or given ma- Chapter construction Laws of opinion express herein jority violates the mandate of Section 12-201, supra. HANSON,
DAVE BEN HAN- Respondent, Plaintiff Appellant.
SEN, Defendant No. 9751. (2d) 791. July 21, September
Submitted 1958. Decided *2 James A. Cumming, Falls, Stanley Columbia M. Doyle, Poi- son, appellant. for
James A. Cumming, Falls, Stanley Columbia Doyle, M. Poison, argued orally for appellant.
T. H. MacDonald, Kalispell, Murphy, Keller, Robinson & Kalispell, respondent. for
T. H. MacDonald, Kalispell, argued orally respondent.
MR. JUSTICE BOTTOMLY:
The appeal in this cause arises from the following facts. Dave
and Ben Hansen were doing brothers partners. business as Managerial dificulties arose with the result that Dave Hansen brought accounting an action against Ben Hansen to estab lish their obligations mutual and to settle the division of the partnership property between themselves. From judg ment rendered the district action, court in that Han- in the appealed.
sen decided this court appeal That (2d) Hansen, case of Hansen v. 130 Mont. de- Rehearing 1956. That on the was denied June cision, right regarded the account- wrong, settled law as case, ing and be- parties, action between the the law the came the final of this court. filed a
Subsequent to of this Ben Hansen the decision motion for in the district court. an order of restitution following motion facts: In the district court was based action, judgment ordering dissolution of had been rendered partnership, assets a division between Dave sale remaining pay- after Hansen and Ben Hansen of the balance expenses partnership ment of the debts of the of receiv- sale, in ership and of two-thirds ratio organ- and one-third to Ben Hansen. The when changed. fifty-fifty ized had been on basis and had No stay of execution had been obtained from the *3 the judgment, prior appeal district court. After and the to had appointed from that the sold receiver who been partnership Hansen, the business Dave filed an account- to ing the receivership, paid of his into the district court and (one-third) accounting his amount deemed to be due from by judgment the of the district court. subject paid by amount in withdrawal Ben Hansen. The was discharged. receiver was given complete Hansen, prior appeal, was
Thus Dave property, sub- partnership over all control and dominion outstanding debts, and less pay certain ject promise sale which had proceeds of that or one-third of amount was considered suffic- the district court which paid into judgment respect in to Ben satisfy the district court ient to appealed to this Hansen then Hansen. Ben by appeal that modified in the judgment particulars: It and determined following was held fifty profits per- and losses was showing partnership basis of Ben, ratio fifty percent this still Dave, and cent to applied part- disposition and in final must control nership property. It was held that Dave had withdrawn held profits back for total- his own benefit net the business ing $7,986.30 during period July 1949 to March 1952; that surcharged Dave therefore should be with one- half of share; dividing such amount as assets Ben’s held in the hands of there should all the receiver be legitimate debts of the ex- partnership, and the reasonable pense of the receivership lawfully incurred; and costs proceeds Dave’s surcharged share of the in the were to be $3,993.15 amount of any proceeds remaining and thereafter were equally divided and Ben. between Dave
After the
prior
district court’s judgment and
ment
appeal,
on
being
possession
then
Hansen,
control
property consisting of the real
estate
buildings
therein,
and business
thereon
the business
entered into a
Ruby
contract of sale with Herbert Winslow and
Winslow the
partnership.
said
of the former
Such
was the status
property formerly
partner-
owned
ship
judgment
when the
appeal
court on
final
this
became
June
1956.
said
Lasby Burgess,
v.
Mont.
353,
“When is rendered remittitur filed, issued and prescribed by clerk below is section Revised Codes 1921 R.C.M. [now When in the court below entered 93-8025]. in obedience the judgment order of this court con- remittitur, tained that of this becomes Kimpton court. Jubilee Placer Min.
Pac. *4 with clerk of this court was filed the
“When the remittitur court, nothing remaining of ‘there then to be the district entry making and the of done but by 9753, entry imposed Rev. Codes such is statute [sec. not upon clerk of the 1921] ’ Court, Dolenty District judge. court or State ex rel. 731, Mont. 732.” judgment this court entered the district The when Compare judgment final this clerk becomes the court. Guaranty Balti Fidelity State ex rel. & Co. of United States 1061; more, Court, 594, 251 Pac. Re Md. v. District 291, 40 L. Ed. Fork Tool 16 S. Sanford & U.S. Ct. 414, and therein. cases cited
On for restitution was June a motion an order of conformity with filed in the district Ben Hansen in denied, from the decision this motion was court. Such this special judgment brings final Ben Hansen order after appeal. presented is the district court primary question
The here did refusing err in the motion for an order of restitution? Error, Jur., Appeal page Am. general forth as rule of restitution is set follows: general principle subsisting “The is well settled a jurisdiction parties ment of a court which had subject-matter parties, binding, at least on all were who justification all done in its constitutes sufficient for acts by competent it until or aside au- enforcement is reversed set Nor thority. perfecting proceedings does the review judgment ordinarily stay suspend operation of itself or gen- judgment being reviewed; execution or order erally, being reveiwed, respondent may, un- when a case But all stayed, proceed less or order. to enforce dependent their proceedings taken under are re- being it is sustained. When validity upon obligation against aside, set the law raises an or versed has received the party who record benefit thereof money or party and all make restitution to the equivalent, or its value it, property received under or of thing received recipient title money asserts case words, party In other his own use. has converted decree has ear- judgment or whom an erroneous against *5 entitled, re- reversal, in to be ried into effect is the event a thereby, that he lost but adversary stored his which had imposed.” Emphasis liability no further should be case supplied. Chapter Restatement, Restitution,
See also page sets out the rule as follows: which person upon “A who has conferred a benefit another com- pliance with a or has been taken whose thereunder, if re- is entitled to restitution is aside, inequitable versed or set unless restitution would be or parties final; contract if payment that is to be modified, right ment there is a to restitution of the excess.” Following at page procedure this rule 303 is stated the be followed: “In such there cases are methods which can various securing reversing used for The tribunal restitution. can itself direct or conditions, restitution either with without or the tribunal which is motion reversed can on its own initiative Emphasis sup- direct that restitution be made.” plied. independent addition is set out that can an action be maintained. See 77 C.J.S. Restitution page 322.
These two recognized by remedies were this court Nepstad case of Chicago Ass’n, East Oil (2d) 643, 646, where the held: “Thus it will be that may observed there be two remedies available in Chicago company. this case may upon proper proceeding may restitution, or it in- force have an dependent action.” procedure appell
Having followed the former has the ant duty in this that it established case of the district right? require Actually restitution as a matter of R. procedure district either is the court’s under same. C.M. section 93-8024. original
This court case on could have ordered appellant restitution on its own. In addition the here independent proceeded could have maintained an action or Nepstad Chicago Ass’n, did motion. v. East supra. he Oil latter right
But either restitution under two judgment remedies must same. He show that against him; entered that pursuant aside, party benefit; was set has received a modified; inequitable reversed or restitution would not be remedy. there are no other bars pursuant original judgment Here Dave Hansen possession over all of the court obtained and control *6 portion paid into court save that Han judgment respect to Ben attempt satisfy in an to unjust upon Dave sen. There was an benefit conferred legal judgment result for he had no of the district court’s right given proceeds partner the amount him the ship. judgment The modified and that modifica had been prop Hansen of certain of that tion Ben was declared owner previously erty paid over Dave Hansen. court could that excess. R.C.M. have ordered restitution of 93-8024. Restitution of the excess could have obtained upon showing by independent in an action. such a Actually denying remedy We see reason for here. no money is now control so no innocent third under court’s nor parties are involved has reason been advanced (Hansen right. for denial of Ben’s The former decision Hansen, (2d) 879) 297 Pac. supra, 130 Mont. did at page trial and was final. We there held 187 order new (2d) page at : is in it there apparent been said “From what has stands evidence, which without substantial enough this record 1947, sec- that under R.C.M. require material contradiction cause, rather judgment 93-216, we a final tion direct Emphasis supplied. proceedings below.” than further the law and judgment declared Right such final wrong respondent here contend that may Nor equity in the case. changed because enforce- or circumstances have facts as make it decree so district court’s original ment of this time. at to enforce restitution inequitable 555, In 123 Mont. Reickhoff v. Consolidated Gas (2d) 1076, gas obtained a company had judgment pursuant judgment to such cer- entered lands drilling tain and commenced a well. The question gas later reversed arose as to whether the company’s trespass. holding In action amounted a wilful it pages 561, Mont., did this court at page 562 of 123 at 1079 of 217 Pac. (2d), company said: was a tres- “That passer beyond on the leased the company lands is doubt. But says was trespasser it not a wilful for it entered under the decree, assuming district court’s annul quiet the lease and to title it. However, gave right knew the law to Reickhoff the appeal and that on such might the decree be either reversed, modified, affirmed, or sent the ease be back for the taking of further evidence or a new trial. Reickhoff knew had vigorously fought likely the suit ap- he peal against from entered him. misjudging the law and Reickhoff gas company acted peril. It assumed drilling the attendant risk of the well lands leased to Reickhoff having and of trial court’s re- appeal, versed on but it took the chance and lost.” *7 Boothe, In Erickson v. App. (2d) 644, 127 Cal.
(2d) 460, 462, the court said: principle
“The
is
settled
well
that after
reversal of a
party
possession
ment under which a
obtained
he is
po-
in the
a
property
sition of
trustee of the
dispossessed
the one so
* *
things
entitled
of
by
to restitution
all the
lost
reason
* * *
the
in
lower
justice
the
court
where
requires
Sherman,
291,
it’.
155
287,
Ward v.
Cal.
100
864,
Pac.
865.”
As
involving
said in a
similar
case
facts:
good
“Entire
faith,
us,
have
occurs
would
dictated to them proper
controversy
course would be to
until
wait
had been
finally
large
determined
expending
before
sums money
in
upon drilling
Pittsburgh
Virginia
land.”
& West
Gas
Gas
84 W.
449, 452,
296,
Co. v. Pentress
Va.
100 S.E.
297,
298
For an interesting also aspect case on this t>f restitution see Theatres, 616, Stockton Inc., (2d) v. 121 Palermo, App. Cal. 264 (2d) Pac. 74. Burgess (2d) Lasby,
this court said:
“The $7,597.60, controversy, namely, funds in were known by funds, receivership defendants and their counsel to be They receiver known to an officer of court. knew, known, Judge also or should have order of God- ** * subject ap- possible dard was reversal review and * * * peal receivership improperly funds of a in the over to them must be returned to the court event Moreover, reversing the de- of the reversal of such order. it is court to en- cision the district of this force, directions, provisions of by appropriate section 93-8024], R.C.M. section Codes of Revised [now follows: ‘When the or order part which reads modified, may make appellate or com- is reversed erron- property rights, all lost plete restitution order, judgment or so far as such restitution consistent eous sale or- protection purchaser with process upon the judgment, or issued by the had under dered proceedings were on an from which ’’ stayed. hold under an identical statute legion which are The cases appealed from is re the order may, in case restitution its own man modified, compel either versed or and most do so. See the oldest lower court to or direct the date Meyers, 132 point, Haebler v. on this case and cited quoted 588; the extensive 963, 15 A.L.R. note 363, 30 N.E. N.Y. 124; Annotated California and West’s Rep. 96 Am. St. page Procedure, Codes, of Civil Code proved right to restitution this action Hansen has n ofthose belonging No properly to him. funds denying right. him existed reason, legal equitable, *8 district depend court’s order that he necessary is not event, here, that for his restitution and The mo- forthcoming independent an action. have to commence following tion in the this court’s having prop- parties with the before him was judge same both We hold procedure accomplish purpose. er and correct to deny that it the motion was error for district court an order of restitution. litigation six This is years. cause has been for some appearance by parties
the third before this court. these same With realizing this in mind and need litigation to end we it expedient deem in this case not to send this cause back for may the district court to correct its when accomp- error we process this lish under the of this court.
Accordingly provisions under of B-.C.M.
93-8024, clarify any misconceptions might which exist as to how Hansen v. Hansen, supra, 130 (2d) 879, finally shall be computed we shall make the order this case. taking possession
Subsequent partnership receiver, from the Dave Hansen entered into a contract to sell property. Pending appeal, this an order this proceeds of such sale have into the of- supreme fice clerk of court and there held Cognizant fact, office. of that and that the record shows all receivership partnership debts of the tabulated and account- discharged ed for and the receiver without objection, we make following computation: the net amount remaining payment after expenses all debts the receivership' $12,217.08; amounted to that equally di- according the partnership agreement vided original and our opinion give $6,108.54 this would Dave Hansen and Ben Han- $6,108.54; pursuant original sen our opinion Han- surcharged $3,993.15, sen’s share shall which sum added $6,108.54 Ben Hansen’s would entitle Ben a total $10,101.69; amount amount Ben Hansen has *9 $4,072.36 owing sum him leaving $6,-
received the due and 029.33.
Therefore, order, adjudge and de- is ordered this does paid cree Ben Hansen shall restitution from have to be court, deposit supreme those funds on the clerk with $6,029.33 percent per sum an- with interest the rate 11, 1956, balance, num and after if from June attorney the hands clerk of this enter this Hansen. The clerk of will opinion conformity provisions sec- with of R.C.M. Let tion 93-8025. the remittitur issue forthwith. HARRISON, and MR. JUSTICES MR. CHIEF JUSTICE ADAIR, concur. CASTLES (dissenting). JUSTICE ANGSTMAN: MR. opin- agree with this court’s shows, I did the record
As (2d) Hansen, 130 Mont. Hansen v. ion in foregoing in the result concur unable I am therefore opinion in 130 Mont. that the only the basis except opinion the issue. 897, has determined (2d)