Johnstone v. Sanborn

therefore, it can be community general; people were employment. arose of his disability out fairly that his said compensation ordered the district In its respondent was record reveals whereas June remanded 15, 1954. The cause employed until June pro- its to amend instructions district court with 15, 1954, and as so amended compensation from June vide affirmed. ADAIR, and CASTLES ANGSTMAN MR. JUSTICES concur. participating. not BOTTOMLY

MR. JUSTICE Respondent, JOHNSTONE, Plaintiff B. ALEXANDER Appellant. SANBORN, Defendant BRUCE W. v. 10123. 1960. November 1960. Decided

Submitted June 16, 1960. Rehearing Denied December 358 P.2d Ralph Anderson, J. Helena, argued orally appellant. for Floyd Small, Myles Helena, O. Thomas, argued orally J. for respondent.

MR. JUSTICE Opinion ANGSTMAN delivered the of the Court.

This action quiet title to certain described land County. situated Lewis Clark It was commenced 8, March 1955.

Plaintiff recovered and defendant appealed has therefrom. The following appear. 1933, facts In defendant Sanborn claimed be the property question, owner of the April 1933, and on 3, he leased a Johnstone written lease. possession took occupied Johnstone and has ever since premises. Before the lease was made and some in 1931 time property had delinquent been sold for taxes a tax July 24, sale 1931, certificate dated had been issued. The lease this paragraph: contained agreed

“It that understood and there delinquent are now against property taxes this and that if Lessor is pay unable to lease possession property, the taxes or should lose this immediately respon- shall be shall be terminated Lessor not sible for -work theretofore done Lessee.” county On December took tax deed. On 26, 1936, February pur- Johnstone entered into contract county. property completed payment chase He May on the county contract and obtained a deed from the the tax deed issued on December held by this court to be invalid. Sanborn Lewis and v. Clark County, 113 Mont. 120 P.2d 567. This court affirmed $1,213.41 deposited district court’s order protect paid improvements Johnstone for taxes and costs of premises expenditures made on the protection for the Thereafter, the property. the district court made an order requiring* deposits Sanborn to make additional under section (now 84-4158). R.C.M. A petition R.C.M. § modification of a was filed and also motion to petition strike the for modification. These peti motions and broug'ht hearing tions for were the district court on January 11, 1957. then a Johnstone filed motion dismiss to proceeding the diligent prosecution. for of want The district court dismiss, denied the motion to but this court ruled it granted prejudice. should been have State ex rel. John Court, stone v. District 132 Mont. 319 P.2d 957. That opinion was rendered on November which was more years after than two this action was commenced. The district in the instant ruled in ease substance that Johnstone by became the owner the property possession. of adverse Counsel for Sanborn contend that the pos- issue of adverse session cannot determined in be favor of Johnstone because of provisions reading: of section 93-2512,

“When the relation tenant of landlord and has existed be- any persons, possession tween of the tenant is deemed the possession expiration of the years landlord until of ten tenancy, or, there has been

from the termination of the where years expiration ten lease, no until of written tenant rent, notwithstanding such payment time of the last n may hold title, may have claimed to acquired have another presumptions But cannot adversely to his landlord. such in this section.” periods prescribed after the made designed prevent the statute was to That section of the landlord. questioning lessee from the title of his lease, pointed Here, by very Sanborn terms his title. To precarious nature of out weakness and the Johnstone to take whatever purposes all he invited intents and acquire title to that of Sanborn steps he to adverse desired right possession or failed to latter lost the the event was delinquent taxes. He property paying redeem responsibilities a unwilling assume all the burdens circumstances, unwilling under the since he landlord as a responsible improvements for made Johnstone stand lease, waived legal effect, the terms of tenant. In section 93-2512. the benefit of party course, for to waive is, permissible

It 49- solely his benefit. Section advantage a law intended assumed, conclusion, have with- reaching foregoing we con- There is 93-2512 is valid. deciding, section out so such a statute valid view whether siderable doubt 122 Mont. County, Lowery holding in v. Garfield not case, held that was Lowery this court In the P.2d 478. special fixing statute Legislature pass a competent for the only applicable persons certain limitations statute short in the same all others circumstances individuals, leaving It seem of limitations. would statute subject general special may not a Legislature pass reasons, for the same that only applicable to cer- limitations, long statute fixing act subject general statute leaving all others persons, tain limitations. substance, requires possession 93-2512, in adverse Section whereas, takes against a if servant twenty years, as landlord may obtain possession of the owner he of land with the consent years under by years (now in five possession ten adverse giving- by repudiating relationship 93-2507) section Possession notice thereof to the owner. C.J.S. Adverse § except p. relationship same is true as other The not As indicated do that of landlord and tenant. above we pass 93-2512, it constitutionality of section but can readily regarding its question be seen that there serious validity.

Also, for another trial court reason the upheld. by must It is be well-settled that if the result reached correct, upheld regardless trial court be will be given for reasons the conclusion. litigation prior parties,

Here the record of between these in part stipu and which made a of the record case was this lation, May 1944, Judge Horsky shows that on entered $1,- requiring pay order Sanborn to Johnstone the sum of $2,041.29. recited, together 213.41 with the sum The order substance, deposit money if Sanborn refused to clerk of district court June the title would quieted provided Johnstone as what is section now 84-4158, deposit but if made title would be quieted was Sanborn. deposit required by

The was not made as that order. The time deposit validity to make the was never extended. The Litigation questioning was assailed. amount never deposit prosecuted required not with reasonable dili- gence proceeding and the prosecu- was dismissed for want of consequence tion. In quieted pur- title should be Johnstone Judge Horsky. suant the order of No other conclusion is permissible under the record from that arrived at the trial court. accordingly affirmed. ME. JUSTICES HAEEISON and

ME. CHIEF JUSTICE CASTLES concur. BOTTOMLY and dissenting: ME. ADAIR JUSTICE I dissent. ownership a valu- title to

This action involves the and in Lewis comprising 1.120 acres of land property able ranch Augusta. County, Montana, situate near the town and Clark involving proceeding numbered separately This the third contending land, same of the same the title to the and claims parties, brought before the been has past decades. of Montana two State Avithin and appeal No. Sanborn v. Lewis The cause was first al., 120 P.2d County, Clark et 113 Mont. determined 2, 1941, rehearing by this October with court on and decided January 3, denied 9792, State ex rel. original proceeding

The second was Court, al., et County, and Lewis Clark Johnstone v. by this and decided 377, 319 P.2d determined 132 Mont. rehearing denied December November Avith 4, 1957. dwelling, involved, together lands here with struc- de- improvements particularly thereon are

tures, fences and scribed as: (2); quarter the southeast

All Section Two (SE^4) quarter (3); and the northwest of Section three (NWl^); quarter north half of northeast (Npíj NE14) (W% quarter the southwest the west half of SW14) north, (19) Township nineteen (11) eleven all Section Meridian. (5) west, Montana Eange five 1926, by sheriff’s January Title. Acquires On duly executed foreclosure, bearing that date and deed on Lewis and Barnes, then the sheriff of M. James delivered Sanborn, Bruce W. County, Montana, purchaser, Clark 14, 1926, in office duly recorded December him County County, Clerk and Eecorder of said in Book page 294, of Deeds at Bruce "W.Sanborn became the true sole 1,120 owner of all the acres of record of above-described property. ranch lands As to these facts there was and dispute. no

Sanborn Leases to April Johnstone. Bruce W. On Sanborn, then the true sole all owner of the described property, agreement entered into a written Alexan- lease whereby, der B. Augusta, Montana, Johnstone of stipulated paid consideration of the rents and to be the cove- performed, nants to Sanborn, lessor, W. Bruce as let and to Johnstone, lessee, leased Alexander B. as all of the above- lands premises period described and years a of six Johnstone, Alexander lessee, B. as immediately the entered into possession premises, of the lands as the tenant of land- the lord, possession Bruce W. such the tenant Johnstone -uninterrupted has been since the date of execu- the tion of agreement. the aforesaid written lease

Purported Tax Deed Issued. 31, 1935, On December the County County Treasurer of Lewis and Clark assumed to issue and deliver County to Lewis and purporting Clark tax deed convey county to to all the of the described premises lands and for delinquent taxes claimed to have owing thereon, been claimed wholly unpaid by any person to have been years for the 1933 to inclusive. 26, 1936,

On March purported tax deed so issued and County delivered to the was filed for record Book 111 of Tax Deeds at page in the of the County office Clerk and Eecorder County. of Lewis and Clark

Tax Void. requirements Deed Was law, govern- ing giving application of notice purported for the deed, complied tax were not with for reason pur- which ported unlawfully tax deed -was issued. comply

This to the plain failure mandates of the law attempted conveyance rendered county null, to the void wholly failed and of no effect such void tax deed to con- vey pass any County. title whatever Lewis and Clark Mont, County, al., Sanborn v. See Lewis and Clark et pages 17, 18 and at pages 120 P.2d 574 to inclusive. County.

Johnstone Purchase On Feb- Contracts to ruary 26, 1936, being but two after issuance months County Treasurer the above tax deed to Lewis and void County, purported vendor, county, as Clark assumed Alexander enter into and make written contract with B. vendee, Johnstone, purported possession as then of and Sanborn, occupying property tenant of Bruce W. landlord and owner of the terms property, true such contract, county agreed sell of which written and con- Johnstone, agreed purchase vey the tenant Johnstone County 1,120 all of described acres from Lewis Clark premises total $196 of land and for the sum of of which $980 February 26, 1936, execution paid was to be on the contract, paid in four annual with the balance to be install- February day 26th in the payable $196 ments each on the However, purported and 1940. years since null, county and of no tax deed void effect acquired lawfully sell, county had no title that con- could pass tenant, to Sanborn’s Alexander B. Johnstone. vey or No. Commenced. On District Court Cause December complaint day filed in District by that Court for County, Montana, W. and Clark Bruce Sanborn as Lewis claiming prop- the true and sole owner of plaintiff to be sought he erty action No. wherein civil commenced 1,120 in and all acres his title above-described quiet premises. and of lands brought against, complaint named, and action was

The namely: (1) County; defendants, Lewis and Clark three but wife, latter’s Mrs. Johnstone; (3) and Alexander B. (2) B. Johnstone. Alexander provided by duly regularly and filed pendens

Lis was regularly defendants served statute and each of the three was complaint the summons copy with of Sanborn’s and of in issued the action. defendant, County, defaulted and on

The Lewis and Clark County’s duly January 27, 1937, was the defendant default opened never regularly and entered. vacated default .Such or set aside. defendants, February 1,

On Alexander B. John- in wife, appeared district court Cause stone and his such serving joint general that de- day filing and their plaintiff complaint. murrer Sanborn’s 6, 1937, 1935 Invoked. Section Rev. Codes On March defendant, Alexander B. Johnstone filed district provisions invoking cause No. 16386 his certain affidavit de- section Revised Codes of Montana of manding commanding an Court make order that, action, proceedings further before are had said deposit plaintiff, Sanborn, required Bruce ~W. defendant, the District the use of the Alexander B. Court to Johnstone, County, the use Lewis and and to Clark taxes, penalties amount of all interest which have accrued property regularly legally if the described had been property owner, assessed taxed as the of said true Bruce Sanborn, delinquent W. and sold for taxes was about to $1,159.51, together be redeemed him in the total sum of 26, 1936, thereon from the date of the interest December complaint. filing defendant, Johnstone, affidavit, B. Alexander

further the District demanded that Court also make requiring plaintiff, commanding Bruce W. San- born, deposit in the district court the further sum of also reasonably been $2,698.75 as the amount claimed to have ex- Johnstone, defendant, pre- Alexander B. pended serving improving property. described Issued and Served. On March Order Show Cause upon the filing of Alexander B. Johnstone’s above affidavit invoking provisions section the Revised Codes Horsky, presiding supra, Judge then said District A. J. plain- upon cause No. 16386 issued and caused to be served commanding requiring tiff Sanborn, the sum of plaintiff deposit said District Court Sanborn making $1,159.51 $2,698.75 a total plus further sum of 29, 1937, why $3,858.26 sum of cause on March said or show deposit should not made. Deposit. Requiring $1,211.41 plaintiff

Order made his return and answer to said order show and filed allegations of John- cause wherein Sanborn admitted certain allegations thereof stone’s and denied certain other affidavit presented by all the so and thereafter issues Johnstone’s affi- regu- davit and return and answer thereto were Judge Horsky, larly fully A. J. heard before District considering after sitting jury and, hearing without presented, September 11, made evidence said commanding on or October filed an order before Sanborn, deposit plaintiff, Bruce W. Clerk sums, following enumerated viz.: $501.55, being pay- “The sum said amount total County defendant, Johnstone, by the ments made upon purchase of the above- Lewis and Clark his contract of by him said paid the taxes land property described year 1936; being additional sum of $711.86 for the and the reasonably paid expended sums the amount of all Johnstone, purchaser B. successor to said Alexander sale, County, years after from the tax Lewis and three Clark property said sale, preserving tax date of said making improvements Alexander B. thereon while said thereof; possession making has been in all a Johnstone deposited herein on or $1,213.41 total of to be before 11th 1937, plaintiff, Bruce W. Sanborn. day of October day September “Done this 11th of 1937. Horsky

“A. J. Judge” “District Stipulation stipulation Time. exe- Extending By written respective parties cuted on October counsel for the by plaintiff defendant, plaintiff given and Sanborn was day and including 1937, the 1st November in which to make of deposit required by Horsky’s above-quoted order September 11, of 1937. Required Deposit. 1937,

Sanborn Made in 1, On November compliance above-quoted order, with the to which order exception, plaintiff, Sanborn, deposited he took Bruce W. with the Clerk of the District for Lewis and Clark County $1,213.41, the sum of to be held said clerk until disposition 16386, district of court cause No. and to by the clerk according law, payment disbursed which deposit was made plaintiff express Sanborn under written protest dated October and filed in the cause November

Joint Answer Filed. On November 1937, the defend- ants, wife, Alexander joint B. Johnstone and his filed their answer plaintiff complaint quiet Sanborn’s in title action No. they wherein admitted Lewis and Clark County body politic is a and corporate; denied that at the filing complaint time of the his plaintiff, Bruce Sanborn, W. then was or that he had been for more ten than years past, simple the owner in fee entitled to pos- session of the property; above-described real admitted that County Lewis and Clark and Alexander B. Johnstone and right, his wife “claim title or interest and to said real property paragraph complaint described said second deny every allegation said defendants each and other paragraph the third complaint.” of said paragraph

The third complaint, so answered wife, the defendants Johnstone and his reads: defendants, County, That “Third. Lewis Clark Johnstone, and body politic corporate, Alexander B. Johnstone, wife, as Mrs. Alexander B. his known otherwise title, or interest Johnstone, right, claim estate said some that all plaintiff’s ownership^ but property real adverse to plaintiff wholly are and of void no effect and said claims them, has alleges defendants, that neither of said any right, title, property, interest real estate or or to said ” any part thereof wrhatsoever. defendants, Johnstone, B. filing by the Alexander

"With the wife, joint answer, quiet action their above ready for trial. at issue and No. 16386 became and was February Trial Merits. cause No. On Horsky, A. trial Honorable J. regularly on for before the came time judge jury, at which sitting district without evidence plaintiff on on be- behalf of the Sanborn and was introduced Johnstone, thereof, and the conclusion half of the defendants its for decision. submitted to District Court the cause was August 25, Judgment Entered. On District Horsky and caused gave, A. rendered J. findings fact, law and entered his written conclusions judgment, The in cause No. 16386. district court’s here, as adjudged declared follows: pertinent so far as Ordered, “Wherefore, Adjudged and It Decreed that Is Johnstone, prayed defendant, Alexander B. have complaint against plain- for in his answer herein plaintiff’s defendant, Johnstone, B. is the Alexander tiff herein pos- in equitable possession owner and and entitled absolute property, real to-wit: following session of described (2); (SE^) quarter “All the southeast of Section Two (NW%); (3); quarter northwest of Section three and the quarter north half of the northeast (N^NE%) quarter (WVi>SW%) half of the west the southwest (19) north, nineteen (11) Township Section eleven all (5) Montana Meridian. Range west, five person or any nor has and that herein not plaintiff has title, interest or claiming estate, right, persons any under him described, any right pos- any land claim to herein complaint real property session or to said described part that the defendant recover herein, thereof, $13.50. his costs herein taxed in the sum of day August “Dated this 25th Horsky

“A. J. Judge” “District Appeal above-quoted From No. 8082 to Court. Court, W. San- plaintiff, of the District Bruce born, February timely proper perfected appeal herein. appeal court, being to this No. 8082 Argument. January 28, First for the Oral On counsel respective parties litigant argued appeal orally first No. 8082 justices namely, constituting court, before then this the five Johnson, Chief Justice Howard A. and Associate Justices Albert H. Anderson, Erickson, Leif Albert Claude F. Morris Angstman, whereupon appeal decision. was submitted for justices experienced difficulty reaching considerable an agreement disposition appeal resulted as to the which 21, 1941, justices a court order made June wherein reargument ordered that No. 8082 before be set particular “with reference Court on June following points: Johnstone, “1. Is B. et the defendants’ ux.] [Alexander in the ab- answer sufficient to them to affirmative relief entitle allegations any prayer therefor or of title sence of them?

“2. a determining whether the tax deed constitutes tax deed proceeding cloud on the title should tax or the alone be considered? sufficiently plaintiff

“3. Has the W. [Bruce Sanborn] proved not application the notice of for tax deed was provided given in the manner and for the statute? time validating “4. a remedy Can the notice act the defect where given period?” was for required not Argument. 30, 1941, appeal Second Oral On June No. 8082 reargued justices was before the five court above- of this time, Floyd Small, ap- Esq., Helena, named which O. peared respondents Johnstone, counsel for the and Charles Davidson, Esq., Browning, Esq., F. both and William of Great Falls, appeared appellant, as counsel for the Bruce San- W. born, again following reargument, appeal which submit- ted for decision.

Thereafter, Supreme on October Court of Anderson, Montana, opinion by State of Justice Albert duly reversing its made and entered decision and 25, District August 1939, Court’s decree and Horsky. so rendered A. J. appeal decision No. on

8082, 1941, generally held pronounced 2, so on October County proceedings the tax title under which Lewis Clark a premises to take tax deed to lands and on De- assumed invalid, thereby irregular were render- cember null, tax no Sanborn ing such deed void and of effect. See County al., v. Clark et 113 Mont. P.2d 567. Lewis Rehearing. Thereafter, Petition defendant Johnstone for rehearing petition justices for filed this court which the gave January 3, of this court further consideration and on opinion Court amended its October rehearing petition with Mr. denied Johnstone’s for majority Angstman writing opinion by Justice dissent See v. Lewis Mr. Albert Anderson. and Clark Justice County al., 1, 23, 24, 120 P.2d et 113 Mont. dissenting opinion Trial Allowed. In his

No New 8082, supra, Angstman, part, Mr. said: Justice petition rehearing given for I have further “On consider- persuaded ation to this case and I am that what we should it ground do send back a new trial that, collateral, pleadings whether the attack is direct or must party particular advise the adverse relied defects * * * upon for setting aside the tax title.

“I think a the cause he trial after should remanded new for proper by appropriate pleadings issues are raised out pointing proceedings by plain- tax upon defects deed relied tiff. question deposit agree

“On the of the amount of the I with the modification petition rehearing.” Emphasis made on for supplied.

Supreme Judgment Pronounced. Chief Justice How- A. ard Johnson and Associate Justices Albert Anderson Leif Erickson declined to send the cause hack to the district court the amending pleadings, reframing for issues, or trial, a suggested by new as was Mr. Justice Angstman in opinion. dissenting

Instead, justices the three signing majority opinion gave, rendered, pronounced and simple, clear,- caused to be entered a easily judgment understood wherein the Court con- cluded opinion, its judgment words, decision and these viz.-r

“The order of requiring deposit the district $1,213.41 will stand. reversed,

“The deposit is all made plaintiff at the commencement of the action is ordered to he paid respondent.” Emphasis supplied.

As Stockyards this court said in Central Fraser, Montana v. Mont. 320 P.2d 991: “This a plain unqualified was and is reversal. To reverse judgment or order means to aby contrary overthrow it deci sion, make it void. "When or order is reversed it is as if Reynolds, never rendered Raun or made. v. 18 Cal. 275, 276, 290.” Duty. Court Clerk’s Section Revised Codes 1935 (now R.C.M.1947,

of Montana of 93-8025), part, § provides:

. it must bo appeal, “When rendered supreme court to the clerk with clerk certified appealed from judgment-roll filed, whom the * * Emphasis supplied. is entered. (cid:127) Supreme the Court records the office of the Clerk of Supreme April 1, 1942, the Court show on the Clerk of incorpo- appeal a was issued remittitur 8082 wherein judg- full, copy rated set forth a of the true and correct by upon appeal, the which Supreme ment the rendered Court judgment the the judgment of reversed appellate the court of August District Court of full, copy a

Attached the remittitur true correct .was Ander- majority opinion by Justice Albert of the Mr. written A. and Associate with Chief Justice Howard Johnson son full, concurring, true and Justice Leif Erickson and also dissenting opinion, all Angstman’s copy Mr. Justice correct of Supreme properly by the Clerk of the Court certified Court, County the Clark with of for Lewis and Clerk judgment roll in district cause No. 16386 whom the court civil filed, required by section as is provided R.C.M.1947, 93-8025) and sec- (now Rev.Codes 1935 of § XXI. Rule Supreme. tion of Court Supreme fully per- done, This had the of the Court Clerk and the duty statute, supra, section under the formed Supreme rules of the Court. Duty. Rev. of Section Codes

District Court Clerk’s R.C.M.1947, 93-8025), pro- (now further Montana of § vides:

“* * * the the appeal judgment, clerk cases of from attach must the the roll with whom the certificate filed the su- judgment the judgment-roll, a minute and enter of entry. against original In cases preme on the the docket length enter in the must order, clerk from against received, and minute of the court certificate records from, to the certi- appealed reference entry of the order affirmed, ficate, with a statement order has been brief that such Em- reversed, appeal.” supreme or modified court on supplied. phasis

The records in Clerk of District Court the office of the County, judgment for Lewis and roll is Clark with whom filed, certificate, being show that the the remittitur issued Supreme Court, the Clerk of was received Clerk day April 17, of the District filed in district court cause No. 16386.

Under provisions supra, Section it became duty was the the Clerk Lewis District Court for County, whom filed, Clark roll is re- ceipt Supreme judgment, Court’s decision and and the accompanying Court; certificate of the the Clerk a, to attach such certificate to and enter' roll entry minute of such Court on the against original entry. docket These duties the Clerk promptly, fully properly performed. Court Duty. Sanborn’s 9805, Section Revised Codes of Plaintiff R.C.M.1947, 93-8621, now provides-. § claimed,. “(9805) appeal Costs on costs Whenever are —how by court, awarded an party to a appellate if he such claims costs, he must, thirty days within after the remittitur filed below, the with clerk clerk deliver to such a memorandum of costs, prescribed his verified as in section 9803 R.C.M. [now may and thereafter he have execution there- § 93-8619] upon for as a judgment.” April 27, 1942, days

On being but ten after remittitur the filed Court, appellant with the Clerk of the District the Sanborn, by through record, his counsel of Charles David- son, Esq., duly upon respondents served Johnstone filed the office the Clerk of the District Court cause No. a typewritten appellant’s memorandum of costs and disbursements, duly aggregating $211.42 the sum of which was by appellant’s provided permitted verified counsel as (now R.C.M. 9803, Rev. Montana of Codes of

section 93-8619). § timely proper By appellant acts made these Sanborn ap- on for his and demand for reimbursement costs claim fully complied court, peal to this cause No. 9805, supra. requirements all section (cid:127) any to file respondents The failed and omitted Johnstone appellant memorandum of costs objections to the any thereof. part and disbursements to and omitted respondents Johnstone likewise failed motion to tax costs. file retax in the $211.42, memoran- It that the sum of claimed follows appellant costs, owing due San- dum of became statute, entitled to born, who, under became and was judgment.” as an execution therefor Section “have of 1935. Rev.Codes April 17, 1942, day Judgment where- Final Entered. On appeal No. 8082 was Supreme remittitur on on Court’s promptly office, the Clerk of the District Court filed Ms judgment cause No. and entered on docket made original entry judgment rendered Dis- against Horsky August the minute of trict follows, judgment viz.: Supreme Court’s Judg. all the April 17, 1942, reversed & “Filed Remittitur action is ordered deposit made Pltf. commencement paid respondent.”

When, judgment its and remittitur opinion, pursuant was filed and No. County M for Lewis Clark District Court entered nevertheless, remained such Civil Cause this, and continued Mining Placer Kimpton Jubilee Montana. v. the State of of 918, 55 107, 109, page at 919. page 22 at P. Co., Mont. Supreme Court was judgment of “By these acts * * * District Court legally entered in the properly

485 8805, and the requirements of section Revised Codes [now R.C.M.1947, ‘judgment this providing that court’s § 93-216] appealed cases be remitted to the must which taken’ as requirements was well of section R.C.M.1947, fully complied 9753 were with [now § 93-8025] Nothing is required letter. more formal further comply mandate effectively statute and legally enter, in Court, appellate the District judg- court’s Emphasis ment on remand.” supplied. Perkins, Woodward v. page 16, 997, 119 Mont. at 998, 171 P.2d 999. Reynolds Hosmer,

In 616, v. page 628, Cal. at Su- preme Court California said: “* * Supreme When the judgment Court reversed the ** * of the Circuit Court its mandate filed in was Court, the lower showing facts, judgment re- those versed, whether the lower any Court made afterwards conforming its not. plaintiffs any rights here, If the they have from the re- come versal Court, and not from subsequent action or want of action Emphasis the Circuit Court.” supplied.

In 1619, Hutchison v. Reclamation App. District No. 81 Cal. 427, 438, page 606, at page 611, P. at the California Dis- Appeal, trict reversing Court of said: “Here original $2,422 was for based implied claim con- pay tract the reasonable value the services rendered. Upon the trial issue the court determined that the rea- $2,116 sonable value the services was * * * July that amount 10, judg- was entered on This ment became filing July remittitur on Emphasis supplied. 1924.” Dolenty rel. Court, State ex v. District 42 Mont.

pages 111 P. this court said:

“The judgment Rocky Dolenty which to be entered in v. Telephone Company Mountain Bell Mont. 108 P. [41 921] [Citing judgment is the rendered this court. statute.] filing district court Upon remittitur with the clerk of the the entry remaining to done but the nothing there then be entry is im- duty making such judgment, and the that court, and posed hy the upon the statute clerk of the district upon, Emphasis supplied. the or judge.” not court re- Supreme nor the remittitur Neither statute Court’s perform any act make quired judge district that the do binding judgment Supreme effective Court’s final litigant, upon as as all upon parties and all of well each trial or regardless they of this whether courts state appellate courts. in the judgment filed and entered

The April 17, 1942, became, was, and it con- District Court on finally rights judgment tinues determined to be the that rights of the defendants dis- plaintiff as well as the No. trict action R.C.M.1947, 93-4701, reads:

Section (9313) A is the Judgment “93-4701. defined. rights parties in action of the determination Emphasis supplied. proceeding.” ap- record, on Sanborn’s filed in the The defendants, Lewis and Clark 8082, shows peal No. B. Johnstone, Mrs. B. County, Alexander Alexander plaintiff Johnstone, no defense whatever had property. real quiet his title to the described suit, 16386, to No. Court, 40 Copper ex LaFrance Co. v. District rel. State at it was held page at 105 P. page Mont. for the hesitate to order “will not that this court case, as made the court when the defendant’s plaintiff having against committed below, xarejudicial error been no action. him, he has defense shows that no length at ox)portunity thus taken comment “We have relator, petition presented matters this court the time has come when reason we believe should exercise authority its undoubted take- the- initiative in disposing litigation expeditiously as and Avith possible, expense the least to suitors.” court, Is Void. majority opinion Deed This in its 8082, definitely squarely decided held that “the tax not deed should have been issued county treasurer deed is void.” Sanborn Lewis v. County,

and Clark page 18, Mont. 120 P.2d at page Emphasis supplied. Mont, opinion

The and judgment, pages 16, 17, above 113 and held, P.2d further inter alia: question validity “The of the of the tax deed was therefore properly made an in case, issue this and the evidence offered plaintiff the of tax proceedings the was material issue, the and the court in it excluding erred considera- from tion in refusing to question validity consider the the of of * * * the tax deed.

“In applying for a ordinary tax deed statutory under the method, importance the matter of is giving the of notice of the application. purpose The of the is to notice warn the land- o-wner,and interested, the others the impending of issue of the tax deed and the termination right redemption of the of co- incident therewith. The giving jurisdictional of the is notice and tmless requirement the respect of the in law to such notice is complied and proven affidavit filed -with county the treasurer, the tax should not deed issue. The stat- ute, section [1935, R.C. now R.C.M. § 84-4156] ** * so-provides.

“From examination respecting of the evidence notice the application deed, of for the tax already as it has been set forth herein, appears clearly requirement the of the law as * * * complied not notice was with. defects de- ficiencies many, in the service of the notice are in so fact not single requirement item of law to notice was com- plied -with, hesitancy in saying that we have no that the notice deed

required by given. not tax should law was the Therefore is county not have and the deed been issued treasurer * * * void. in validating “There no act which cures the defects * * * of in are the notice this Here there defects service case. notice, as to and omissions the service such show the law in that complete requirements failure to follow the application proceedings tax respect, which render deed clearly regard to insufficient without the statement * * * required redeem. notice of amount sale, possession time “Johnstone, at tax Sanborn, remained property lease under a has tax throughout period simee the sale. possession entire required premises lease look after the Under his he was improvements, appellant that be- make certain contends relation, tenant when tax deed declared cause of such void, improvements no claim for to be Johnstone can make property, money expended protection that was Also, it under the lease. is contended that required him occupancy premises during period rental value of the tax should from the the issuance of deed be deducted since amount allowed. expended and improvements money

“There were made other lease, and sufficient amount required such as the a than the up of tax deed make amount of it after the issuance the court, trial presented All these matters were allowed. as upon was determined reasonable $711.86 and the sum of * '* * presented. facts circumstances under the and deposit requiring the “The order of the district court $1,213.41 will stand. deposit judgment all the

“The is reversed and made plaintiff at the commencement the action ordered the respondent.” Emphasis supplied. paid the to be opinion Bes Judicata. 8082, the tax adjudging proceedings and the

489 purported tax deed to null and defeated and set at void naught attempt by the tenant wrest from his Johnstone to landlord Sanborn latter’s real property. title to described

In Stockyards 168, Central Montana 133 Fraser, v. Mont. page 186, at 320 P.2d this court said: *® * pursuant supreme “Where court’s its mandate judgment was Fergus filed entered the district court County in cause of action No. 19805 such remained and continued to be the

by that judgment questions actually which did arise on the hearing the district court and those which been could have presented, rights there as well parties litigant, as the e., rights i. claims of Frasers and Clarks and Owens, in and to the attached property fully considered, were adjudged judicata. determined and and became are res Kimpton Co., Jubilee Placer 22 Mining 107, v. Mont. page at 109, 55 918, page P. at 919.

“In Columbia Mining Holter, Co. 429, v. 1 Mont. page at Supreme Court, speaking of remittitur and man regularly issued, date and properly said: “ ‘The imperative mandate super- command of visory to a subordinate court. “ powerless ‘The court disobey. below was “ error, ‘Disobedience and, admitted, would have been if authority supreme of this tribunal as a supervisory ’ would be annihilated.

“In 2 Judgments, Freeman on 5th ed. at pp. 1345, 639 § judgments said: ‘The appellate courts as are They only conclusive those of other court. not establish facts, law, but also settle the so that the law as decided any appeal applied subsequent stages must be to all cause, they judicata are res other every cases as to mat- adjudicated.’ Estate, ter See re Smith’s 60 Mont. 276, Jones,, v. P. and Brennan Mont. 55 P.2d Border, page 8,

“In Anderson v. Mont. 285 P.

490

176, Callaway, speaking- Chief Justice this said: ‘.The greater to portion appellant’s is exhaustive brief devoted this attempt opinion to demonstrate that our former points is all case erroneous but the short answer is that in, directly passed upon, which were in the involved were case, which involved this whether appeal, and are former case, opinion right is bind wrong, or law the was court, upon also: ing binding the trial %is.’ See Edwards, 135, 139, 138; 211 P. v. Apple v. 123 Mont. 2d Ivins 121 Hardy, 513, 516, 204; Emigh, 217 v. 123 Mont. P.2d Lake Ry. Co., 91, 87, 550; 190 P.2d v. Northern Pac. Mont. Carlson Ry. Co., 913, 914; Neary 86 P. Northern Pac. Mont. 281 v. Heinze, 32 226, 235; Finlen Mont. 41 Mont. 110 P. v. supplied. Emphasis 80 P. 918.” years from and No. 16386 For more than two Cause Closed. appellant Sanborn April the date whereon after document, costs, his no other filed memorandum of served and in district No. writing- filed court cause paper or was respondents anything- done nor, during period, such decision, final comply Supreme Court’s with the Johnstone and entered that had been filed and mandate April 1942. cause No. failed, and refused omitted respondents Johnstone

The deposit made $1,213.41 that had been accept or take down insis- appellant at the 1937, by the Sanborn November respondents and which the demand tence respondent.” See paid “ordered had Mont, page 577. 23, 120 P. at page 2d and omitted likewise failed respondents Johnstone $211.42 the latter’s costs pay appellant taking in the expended by Sanborn being the sum part thereof Court of prosecution successful document, motion, pleading, petition, affidavit, claim, No nothing was done whatever writing was filed paper by appellant No. district cause 16386 either the court respondents April 27, or and after the Johnstone from May including 24, 1944, during period to and which of time purposes cause No. all intents and 16386 remained dormant. To jurisdiction the the of district court had been exhausted and litigation the terminated. had Phillips Cal.App.2d 481, 484-487, P.2d Patterson, v. 93 it is said:

“* * * entry judgment of in the exact form directed by Appellate jurisdiction the exhausted Court the of the trial * '* * court. That litigation. constituted a termination of the judgment appellate The final of an may just court as con- by clusive of the determined it issues trial as court. “Our courts frequently entry held of a have modi- fied judgment Superior as directed Court the Dis- Appeal final, trict Court of jurisdiction and exhausts the * * * [Citing the trial court. numerous cases.] judgment “The Appellate is as binding Court on the respondent appellant.” as it is Reopening

Order Case. May 25, 1944, On being more than years Supreme two after opinion, judgment Court’s remittitur had filed been entered in district court cause opinion No. after long such and decision had been published in Reporter, Volume the Pacific Series, Second and in Volume 113 of the Official Montana Reports, and with- any out notice Sanborn or his counsel and without the filing district court cause No. 16386 of or supple- amended supporting affidavit, petition, mental motion pleading, Dis- Judge Horsky made, A. signed trict J. and caused to be filed parte district cause an ex order, purporting reopen retry additional facts, case claimed all purporting “subsequent arisen original to have hearing deposit during pendency to determine the this action,” being long subsequent day April to the 19th original hearing

whereon the to de- Johnstone’s affidavit held, subsequent termine as deposit long as well was day April 1942, Supreme 17th date whereon filed and opinion, and remittitur were in the No. 16386. entered District Court Cause Among Horsky’s recitals above order other set forth follows, May 25, 1944, is stated and ordered viz.: * * * plaintiff taken “Thereafter Court adverse [Sanborn] decision Jan- of Montana and dated Court and ordered uary reversed the of this deposit all the made commence- the defendant [sic] paid respondent, Alexander B. John- ment of the action the stone. by on the 11th deposit determined this court

“That said as by affirmed the and as September, of day — following payments sums: Court, $392.00 consisted Alexander defendant, County the of by B. Johnstone to made — contract, taxes purchase $109.55 on the and Clark Lewis by following purchase the of said land accruing upon the land — County, amount $711.86 Lewis and Clark Johnstone by defendant, Alexander expended reasonably paid and B. improve- property making said preserving Johnstone $1,213.41. deposit Total thereon. ments original hearing determine the subsequent to “That taxes, pendency this additional during the action deposit and of against land, interest have said amount- penalties and accrued by County of as shown the records $858.65 sum of ing to the County, Montana, and additional Clark of Lewis and Treasurer interest, pur- made on together have been payments, February of between price under contract chase County B. and Lewis and Clark Johnstone Alexander sum $1,182.64. That the total of accrued taxes amount of original deposit by was made payments since the contract $2,041.29. plaintiff amounts application attorneys Therefore, “Now of for Alexander B. pursuant Johnstone and to section of the Revised * * Montana, Codes of

“It Hereby Is W. plaintiff, Ordered that Bruce San- born, deposit by with the Clerk of this June Court $2,041.29, sum said total all taxes being of sum of action, payments accruing during contract of this pendency and it is shall plaintiff ordered said refuse further if deposit does not said sum with the Clerk the Court June 20, 1944, this Court will enter in accordance with the section, quieting defendant, above-mentioned in the Alex- ander against Johnstone and will there- plaintiff B. present existing deposit order the return of $1,213.41 paid to be plaintiff, the Clerk of the said provided deposits further if plaintiff said the sum $2,041.29 Aviththe Clerk of the Court June then this Court will quieting plaintiff, enter title in the original $1,- Bruce W. deposit Sanborn and will order the plus 213.41 deposit $2,041.29 making the current total $3,254.70 paid defendant, Johnstone, to be Alexander B. provided by Section 2214.

“It Is Further Ordered that Clerk the Court mail copy plaintiff’s attorney, fortliAvith a of this Charles Davidson, Falls, (First Great Montana. National Bank Building) day May, 25th (Emphasis supplied.)

“Done this of 1944. Horsky

“A. J. Judge” “District Judge Uorsky’s Motion to Vacate 8, 1944, Order. On June Sanborn, Bruce W. plaintiff in district No. court cause served filed a timely written motion to vacate and set Horsky’s A. Judge aside District J. above of May order 1944, upon grounds that such order:

1. plaintiff Was made without notice to Sanborn; any opportunity part plain- Was made without

2. heard; to be tiff Sanborn deposit make a Requires plaintiff Sanborn to further

3. defendant, Alexander court for the benefit the district Johnstone, plaintiff B. but makes no allowance to the Sanborn premises involved rental the lands for the reasonable particularly for the during of the action and pendency Supreme Court decision rental since the January 1942. Thereafter Sanborn pronounced on the 3rd aside motion vacate and set filed an amended served and 25, 1944, wherein, addition Horsky’s May order of Judge grounds, urged that the order to the above-enumerated jurisdiction and and is in excess of the Court’s was jurisdiction. made order without such was Sanborn, filed a 15, 1944, plaintiff, W. June Bruce On challenged he duly petition in cause No. 16386 wherein verified void, 25, 1944, as Horsky’s May being null and Judge sought day hearing certain set for he have and wherein rental for relief to the reasonable petition other recover sum and the further premises, the leased lands and for in the of his prosecution incurred $211.42 for Sanborn’s costs pre- he had Supreme 8082 in the Court wherein appeal No. $1,- a credit vailed, said be offset as and that sums compliance 1937 in deposited by Sanborn in November 214.41 Horsky’s provided March order of Montana of 1935. in section Rev.Codes May Judge Horsky’s order of Void Order. above jurisdiction. It made without and excess of conflicts opinion contrary with and is filed and entered in the District Court remittitur invalid, and of no effect April 17, order is void Such whatever. on an becomes

A decision of the proceedings, whether subsequent all is the law of case on Edwards, 123 Mont. right wrong. Apple v. decision be such

495 135, 139, 138; 211 P.2d Hardy, 513, Ivins 123 Mont. v. 516, 217 204; P.2d Emigh, Lake v. 121 Mont. 190 P.2d City

In Angeles, Cal.App.2d 650, Snoffer v. of Los 14 at page 653, page 962, 58 P.2d at it is said: remanded,

“When is case, retrial, cause this not for but give to appeal, effect to the decision on the trial court can proceedings take no further except necessary such as are give judgment effect appellate of the court. Soule v. Dawes, 14 2 247; Cal. Cal.Jur. 1052. When a cause re- manded with particular judgment, directions to enter a it is duty trial judgment court to enter in conformity appellate with the order of court, and that order is decisive judgment the character appellant to which the is en- titled. The lower reopen court cannot facts, the case on the filing allow the supplemental of amended or pleadings, nor retry case, and if so, it should do rendered thereon would be void.”

In Superior Carter v. Court, Cal.App.2d 388, 96 page at 391, 215 page 493, P.2d at it is said:

“In early ease of Keller Lewis, v. 56 Cal. it was upon held that a judgment reversal

with directions court below to render a decree accord- ance with the expressed views therein the court below had but to follow the direction thus given and that trial court properly by supple- allow new issues to be refused framed pleadings. mental repeatedly strictly have coxwts adhered ** * had, Any rule. proceedings rendered contx-ax-y specific to such directions would [Citing be void. ” Emphasis supplied. cases.] Finley, Cal.App.2d 536, Buttram v. pages 540, at pages 656, P.2d said:

“Based that amended again decree the trial court rendered contrary the defendants to the decision court, plaintiffs this to the effect that have no question.

land in appellants trial not author- “The that the contend disregard by admitting ized evi- the mandate of this to court tunc, lapse dence after the pro of the decree as amended nunc sixty judgment de- years, more than and to render for the thereon, respect fendants the to the real based with to contrary explicit this on the property, to the direction of court a appeal, former issue which since the amendment raises new at by trial the not considered the court or this court first this hearing appeal therefrom; or on the decision of ;beeame absolutely controlling court the of the case and is law ** * the respect with the land. title to failing opinion trial “We are the court erred in specific Appellate conform the to the directions of Court to judgment plaintiffs, quieting render in favor of title in the them, again rendering against a judgment plaintiffs pre- based facts a new neither on new issue which were * * * appeal. sented nor on the former trial or considered issue not or on raised that fact was involved considered the trial. It former therefore did not come within the asserted exception general reviewing- rule that the mandate of the binding strictly must court is on trial court be followed. 3 3234. Am.Jur. § a direc- reviewing court with

“Where a reverses speci- a contrary judgment tions render and to determine damages awarded, only, fied such as the amount of to be issue parties, respective the several interests to ascertain and has no given is the trial bound directions court issue, retry admit evidence authority any other or to new court, reviewing to enter conflict with reviewing- contrary judgment. The directed case, absolutely it is controll- court becomes law of Schmid, Rice 25 jurisdiction of the trial court. v. ing 247; Dawes, 14 Lial v. 313; 153 Soule v. Cal. Cal.2d P.2d

497 City 795; v. Snoffer Cal.App. 31, 23 P.2d Court, 133 Superior 2 961; Cal.Jur. 58 P.2d Cal.App.2d 650, Angeles, of Los * * * Am.Jur. 625-627; § 1051-1054, pp. §§ the trial judgment of last conclude that “We this court the mandate of conflict this case therefore erroneous that it is property, and issue of title to and ineffectual.” 485- Cal.App.2d pages at Patterson, 34 Phillips

In v. it is 810-811, said: pages 93 P.2d “* * * 1345, 639, it ed., Judgments, 5th § Freeman on regard: in that said “ as as appellate courts are conclusive judgments ‘The facts, They only establish not any those other court. as decided law, the law so that but also settle cause, stages subsequent applied all the appeal must every matter other cases adjuclicata in they are res * * * adjudicated.’ “ retrial, ease, remanded, in this not for a is ‘When cause can trial court appeal, the the give but effect to decision to necessary to except as are such proceedings take further no v. appellate Soule judgment of the court. give effect a is re- 1052. When cause 247; 2 Dawes, 14 Cal. Cal.Jur. it judgment, is a particular enter with directions to manded conformity judgment enter trial court to duty the of the is court, and that order decisive appellate the order of with the appellant is en- judgment which the of the of the character facts, reopen case on the the cannot The lower court titled. pleadings, nor re- supplemental or filing the amended allow judgment rendered so, case, it should do try if ” void.’ thereon would he is Error, pp. it Am.Jur., Appeal § In 3 said: reviewing court has determined

“After been a case duty the latter is court, to the trial remanded * * * interest Public former. mandate of the comply with the requires litigation shall speedily, come to an end so that when a cause has been judgment, tried to merits the trial upon appeal, determined court, upon the trial remit- titur, power no obey judgment has but to appellate of the * * * Proceedings court. contrary to the must mandate be Emphasis treated as null and supplied. void.” Again in 3 Am.Jur., Appeal Error, pp. 732, § ' 733: “The court, upon lower higher remand of case from a * * * court, obey must or remittitur; mandate has it no authority any judgment conformity enter not in order, any judgment other than that directed permitted reviewing Otherwise, litigation court. would never ended, supreme and the tribunal of the state would be shorn * * * authority over inferior tribunals. When the merits of appeal, case are determined on trial has power court no * * * obey appellate but to of the court. Nor can new existing defenses at the judg- date the decree or opposition.” ment be heard in Am.Jur., Appeal

In 3 Error, at pp. 733 and § said: reviewing “After court has determined a ease before it and such court, remanded case the lower latter modify, power alter, amend, without aside, any set or in depart manner reviewing disturb or from the # higher court is not court reviewable in any way by below, the court equitable the exercise its powers, or vary otherwise. The lower court cannot or examine higher any decree of the than exe purpose other cution; give other or relief; it, further review even for * * * apparent error, upon any appeal. matter decided on disobey mandate, “If the lower to courts were authorized litigation supreme would never be ended and the tribunal of the state authority would be shorn that inferior of over the pre- tribunal with which it But the long is invested. rule has particular litigation of an a that there must be end vailed to es- injured litigant, cause, alleged that and may cause, not may justice of tablish what he deem the * ® *” Emphasis have, novo, trial, trial after ad infinitum. de supplied. Error, pp. 1238 at 734 and Am.Jur., Appeal

Again § 735: a the lower reviewing reverses

“When the court specific as to the directions remands the case with must entered, the lower court dis- decree be higher court, duty by charge its mandate obeying change Relief notwithstanding or conditions. a circumstances rights pending changed accruing conditions or entry specific judgment is ordered can be on which the of a original only by proceeding which had resort to some sort of way appropriate may relief It be cannot be secured. judgment directed, particular judg- defense for when a appellate court, ment is the lower court not directed motion, acting of but in obedience the order of its its own do, superior says do, it it shall must superior. What the put interests an end shall be require alone. Public litigation; given cause the consid- a has received when determined, had its merits reviewing court, eration has directions, specific and has remanded the court been power anything has which such mandate is directed no to do obey. known at may existing Nor but new defenses entertained, opposi- reversed or heard date the decree so Emphasis supplied. tion.”

Judge Horsky’s Jurisdiction. Department Horsky, judge in No. 1 of presiding County, jur- acquired for Lewis Clark District Court quiet action No. on December isdiction department its -upon he commencement years three and two jurisdiction period retained such 21, 1940, thereafter, February which being months until 500 Sanborn served and filed appeal Judge

elate Ms notice of Horsky’s judgment in adverse the cause.

The filing service and of such notice of divested jurisdiction his Horsky action, in the such acts and Supreme invested the jurisdiction juris- Court with and there diction from February 21, 1940, including remained to and April 17, 1942, Supreme the date whereon the re- mittitur, opinion, received, filed, and final were in entered the District No. Court Cause 16386. appellate remittitur,

The court’s opinion, final nullified, toto, Judge Horsky’s reversed and judgment of August fully finally rights the determined parties by finding respon- of all the adjudging the dents, wife, B. Alexander Johnstone and had failed show any defense quiet any to Sanborn’s title suit or to establish property. However, valid claim title to the or described real Supreme approved Judge Horsky’s the requir- Court order ing plaintiff-appellant the deposit $1,213.41- Clerk of respondents the the District use in its and, Johnstone final judgment, Court order- deposit ed that all of such paid respondents”. “be to the justices Court, three concurring majority opinion, declined send cause No. 16386 back trial, District purpose Court for or new for the amending pleadings any judicial for any further action of sort performed by character done or the reversed trial judge. Thus, majority opinion deny did to the trial judge right any jurisdiction to exercise or further other in the appreciated which fully justices cause fact then comprising Supreme Court, shown as is Mr. Justice Angstman’s dissent, concerning disposition cause !‘ * * * wrote, wherein he what we do with should it to send ’’ Mont, trial. page 23, back a new at See P.2d page years filing entering more two after

For than final Supreme Court’s April 17, 1942, of the Court, attempt Judge Horsky no made No. 16386 cause 16386, but jurisdiction in any cause to exercise whatever filing, in the District May 25, thereafter, on without Horsky made whatever, Judge moving papers Court, as- May he parte ex wherein issued his appellate court’s change, sumed to alter and reverse and in judge doing, the trial acted without judgment. In so parte ex order was jurisdiction reasons his for which excess is void. was, 16386 judgment cause No. district court pronounced exact is, to be in the words and must continue 3,1942, accurately reported is Supreme January as County, al., published in Lewis and et Sanborn v. Clark Mont, pages 4-23, pages 113 120 P.2d at 569-577. at wrong, handing Supreme of the Right upon or down remittitur and must forever such became and no as cause No. 16386 continue the law district court writ, subsequent of the subsequent order District Court and no alter, either order or Court can nullify such final nor change, amend, reverse or above-designated reports official of such remove it.from judgment. decision and pronotuieed, judgment so

With the Court’s final judge right, filed, published, district had no entered and tamper jurisdiction or or intermeddle power, authority any manner time. any or or at wise Horsky’s May 25, is void. things.” Things. things are as State v.

Void “Void no 850, 851, 39 127. Evans, 539, 542, 15 Mont. P. 28 L.R.A. is, effect, is, transfer transfer. A

“A no void deed void effect, nullity a is ab initio.” For deed. Such deed no etc., Mining & v. Boston & Montana Consol. rester MacGuinniss Co., 397, 401, 1088, 1090, 74 P. 76 P. 211. 29 Mont. thing’ thing; legal

“A it has no effect ‘void is no whatsoever 502 right grow under it no whatever can be obtained out thing’

it. In thing law it is the same if the ‘void had never Lowery County, existed.” v. Garfield Mont.

P.2d thing? What Do. can What be done about a void being following: them open, among Several courses are First, given no attention or heed whatever need be thing. may wholly disregarded. ignored. may void It be It be Second, may thing the void be vacated and set aside petition. motion or always attack,

Third, thing open is either direct void or collateral.

Fourth, any thing “may lopped be off at time.” the void lapse challenges A of time attacks is never bar to such or relief. Comity, court, Lowery supra, quoting Garfield v. this Stubblefield, approval from the Oklahoma ease of Lind v. is proceeding 282 P. said: “When a Okl. purposes. A is all void tax purpose,

void one void for * * * judgment, dead limb deed like a void which but ‘a may judicial tree, lopped time.’ which off or give it not either being The deed void did the defendants right posses- actual possession or. the them constnictive of of Emphasis supplied. sion.” Court, etc., District for Jefferson

State ex rel. Johnson v. 103, 1042, 1044, 295 an County al., et 130 Mont. P.2d was original for a writ of review filed proceeding challenged procedure taken in re wherein was a in an action to set aside tax deed spondent District Court plaintiff Mining Company, v. David brought Jalmir S. filed defendant, defendant Johnson an Johnson, wherein the 84-4158, invoking 1947, R.C.M. provisions of § affidavit 2214, 1935), R.C.M. to invest (formerly Section jurisdiction McClernan, presiding, to issue Judge with Court, 14, 1952, requiring plaintiff, Jalmir order, July made

503 court, trial deposit the clerk of Mining Company, to payment guarantee to days, $350 ten the sum of within plaintiff that the requiring taxes, penalty and also interest and payment $6,836 guarantee surety deposit a bond of property. improving the reasonably expended in sums jurisdiction under authority and As to the trial court’s deposit 84-4158, require the statute, R.C.M. § through Mr. Justice Court, speaking surety bond, said: Angstman

“* * * procedure. does not authorize such The statute jurisdiction furnishing of The court without to order the was duty to make determination of bond. The court’s was a deposit court, and then fix necessary plaintiff amount The order of McClernan payment. the time for its jurisdiction. order, July 14, 1952, was void for want of jurisdiction, subject being on its want was void face for Coburn, 349; Mont. 298 P. collateral attach. Coburn v. 89 Dist., 962; 261 In re Fort Irr. 81 Mont. P. Frisbee Shaw necessary It not Coburn, 101 Mont. v. P.2d exceptions a as appeal settled or to have bill where, here, infirmity by relator, the order contended as category same as a void appears on its It was face. County court, in Hamilton Board statute which this v. 169 P. described as follows: Com’rs, Mont. void, thing is ‘An unconstitutional statute is void as duty, con imposes A is a law. It no nothing. void statute not is authority, protection, affords and no one bound fers no no inoperative as contemplation of law it to observe it. passed.’ though it had never been Oregon Co., R. as stated Evans v. Short Line

“Or infirmity appearing 149 P. 717. ‘The Mont. validity face, its can be assailed motion

its it, by objection aside, in the rendered it court which to set in any it as evidence other an effort made to use to when right.’ proceeding to establish Judge

“If we assume that Duncan authority had to amend by Judge an made McClernan, order we still could not sustain proceeded order made him contrary because it too only statute. The kind that the permits order statute making one determination amount for necessary plaintiff deposit deposit court and to fix the time within which the shall 1952, be made. H July 14, pur- the order of follows porting require furnishing of a within a stated bond jurisdiction, attempting time void want order and the for Emphasis supplied. to amend is likewise void.” Horsky Judge 5, 1953, Horsky’s Retires. January Judge On expired term of office and he retired from the district court having upon 1944, without ruled Sanborn’s motion of June Judge Horsky’s and set aside parte vacate ex void May 25, 1944, having and without peti- ruled Sanborn’s 15, 1944, jurisdiction tion of challenging June and au- thority Judge Horsky to either make or enforce such void parte ex order.

Upon retirement, Judge George Padbury, such W. Jr., Judge Horsky judge succeeded presiding Depart- February ment No. 1 District Court. On Padbury hearing February 17, 1955, set for Sanborn’s mo- aside, tion set petition to vacate and and also chal- lenging Judge Horsky’s jurisdiction authority to make parte May his ex order of 1944. February

On for counsel the defendant Johnstones swore and filed in disqualify- cause No. 16386 an affidavit ing Judge imputed Padbury thereby for bias defeating and preventing the holding hearing Sanborn’s motion petition February 17, so set for tenant, Sanborn.

Johnstone Sues On March Al- Johnstone, exander B. commenced the District County quiet Lewis and Clark new suit against landlord, Sanborn, Bruce W. wherein Johnstone in again sought of action have the same kind same District 1,120 acres land quiet his claimed title to the same suit No. more than quiet involved title commenced 16386, eighteen years rights before and wherein all the claims and fully finally both Johnstone and deter- and Sanborn were adjudged remittitur, opinion and and final by mined Montana, duly filed and Court of April entered on in the District Court 17, quiet years being title suit No. than a dozen before more quiet suit, Johnstone’s new No. commenced. was appeared by general in cause No. 24875 demurrer complaint. thereafter filed therein his answer and cross quiet This tenant new title suit No. Johnstone against his landlord fully Sanborn will be more considered later in this dissent.

The Honorable H. Judge Padbury Victor Fall succeeded judge district presiding Department 1No. of the District Court, special request thereafter at the instance and plaintiff Sanborn, Judge Fall hearing January for for set 11, 1957, Sanborn’s aforesaid petition challenging motion and Judge Horsky’s jurisdiction parte May his ex to make order of 25, 1955, hearing motions, also set for the various other petitions papers that had been filed cause subsequent making Judge Horsky’s parte aforesaid ex order. upon Since the order showed face that it its was void it required any neither motion nor nor petition proceedings of challenge validity. sort to Being its void it never existed. It could not any prosecute be affected failure to the motion petition filed. The wholly void order should have been ignored disregarded. may It vacated at be time.

Judge January Fall Rules. On motions, peti- set, tions and matters so were heard before District Judge Fall, representing represent- with counsel Sanborn and counsel ing present participating. the Johnstones At the conclu- hearing, (January sion of such and on the date thereof 1957), proceedings Fall ruled all the and matters entry

there submitted his minute date of that which recites:

“This day, stipulated cause on for hearing came this Counsel Fall, Judge, preside. Honorable Victor H. The defendant’s counsel, motion, on oral moved the court to dismiss cause and petition grounds strike for rentals stated motion written petition file herein. The defendant’s motion strike days rentals plaintiffs will sustained and pre- allowed pare and petition. file amended Plaintiff’s motion n set Judge Horsky, vacate and aside Order May filed granted by was the court. The Defendant’s Motion to denied, Dismiss prejudice without making to defendants and filing a motion present by new to dismiss. Defendants counsel, Herron, plaintiff Small present by and and the coun- sel, Ealph Anderson, Stanley J. P. Sorenson and Da- Charles ’’ vidson. Rulings. Judge Fall,

Correct January 11, 1957, properly on denied the defendant Johnstone’s oral motion for an order dis- missing quiet action No. 16386 wherein Supreme judgment final duly Court’s had been regularly and and years filed entered almost fifteen before. 17, filing entering judgment April

The final and of such 1942, rights action had terminated the and had determined the plaintiff, rights Bruce W. Sanborn as well as the defendants, County, B. Lewis and Clark Alexander John- Johnstone, in property stone Mrs. Alexander B. and to the final involved. Court’s so filed rights and “is final entered was determination of the parties” 1947, in said 93-4701. action. E.C.M. § Judge ruling granting plaintiff Sanborn’s motion Fall’s Horsky’s parte to vacate set aside void ex order May correct. Such made was also void order was years filing entering after the the Su- more than two in No. 16386 preme cause Court’s valid notice, filing any supporting was made without without writing without affidavit, pleading or other moving jurisdiction. in excess of there- statutory filing of the and until the Without affidavit (now R.C.M. 2214, R.C.M. Section provided for as jurisdiction wholly without 1947, 84-4158), the court § (Section statute provided for orders make the order or 84-4158). Absence 1947, 2214, 1935, now R.C.M. § R.C.M. jurisdiction. absence of spells affidavit Judge Horsky filed, an had been though affidavit

Even make his jurisdiction to have been without would still alter, modify, change, to, add 1944, attempting May 25, remittitur, and, annul the disregard, reverse and entered judgment so filed opinion and final years 16386, than before. more two cause 431, 429, 465, 467, 14 S.E.2d Barker, 219 N.C. Casey v. said: disregarded, nullity, may “A be treated void collaterally. Dunn v. directly or motion, attacked vacated Hood, 209 N.C. 802; Oliver 493, 187 S.E. v. Wilson, 210 N.C. Burns, 210 N.C. 188 S.E. 657; Abernethy v. 183 S.E. Steele, 220 18 S.E.2d see In re N.C. 97.” Also Thompson, Tex.Civ.App. 238 S.W.2d Thompson v. purports “in far as it judgment, so void holds that only court, is invalid but is of a not pronouncement judgment at contemplation of law no nullity and is

absolute all.” 95, 154 93, Ky. 257, 180 S.W.2d Walker, 297

In Hill v. no 818, “A 814, said: void A.L.R. court entry its virtue of rights acquired all, are and no it at vacate may, proper proceeding, in A a record. Emphasis such time is no bar to lapse

time. The relief.” supplied. plaintiff Johnstone for the 15, 1957, counsel February

On against lengthy motion directed No. in his cause filed desig- complaint, which counsel cross answer and nated as “Consolidated Motion to Strike and Motion Make More Definite and Certain.”

Disqualification Judge Fall. following- day,

On the February 16, 1957, plaintiff John- stone’s counsel, filed in cause No. 24875 an affidavit of dis- qualification against Judge District Victor H. Fall where- upon, day, and on the same Judge Fall ordered the cause trans- ferred Department presided, No. wherein then he Department No. 2 of the District Court and called in District Loble, H. presiding judge Lester then the in the latter department, jurisdiction in to assume the cause.

By filing the mere cause No. of the above affidavit disqualification against Judge Fall, plaintiff Johnstone’s counsel disqualified judge divested such of all jurisdiction authority and “to act further in the action.” 93-901, R.C.M. subd. 4. §

Nothing further plaintiff was done Johnstone in the prosecution quiet of his title suit No. from February 16, 1957, until November whereon Johnstone filed his reply and answer to Sanborn’s complaint answer and cross cause No. 24875.

Original No. Proceeding 9792. In meantime, on March 1957, being but filing two weeks after the disqualifying his against Judge affidavit Fall in district court causes No. 16386 and No. Alexander B. commenced, Johnstone in the Montana, original proceeding No. 9792 seeking writ, the issuance of proceeding which is entitled: Montana,

State of ex rel. Alexander B. Johnstone, Relator v. The District Court of the First Judicial District of the State Montana, the County and for Clark, of Lewis and Fall, Honorable Victor presiding H. once Judge, and the Hon- Lester H. Loble, orable presiding Judge, Respondents”, now by filing petition duly this court a verified relator February 28, Johnstone on Sanborn, plaintiff

Bruce W. cause

509 party a to not made property involved was true owner of the of a writ. original proceeding for the issuance this num- separately sixteen a petition The for writ consists a prayer for relief. paragraphs bered and indicate that means of allegations petition sought writs, the relator to have which Johnstone in himself to issue, attempting quiet title he was to 1,120 the Su- property same acres of ranch wherein described remittitur, opinion preme Court, in its and April 17, in district court cause No. entered on ease, for all adjudged law the declared, and established the therein, time, by determining three defendants named that the namely, County, B. Lewis Alexander Johnstone and Clark Johnstone, Mrs. B. Alexander had shown no defense whatever de- quiet suit No. 16386 to his title that the fendants, including Johnstone, Alexander B. had no valid property. claim title to Sanborn’s described ranch writ, relator, paragraph petition the first his a Johnstone, alleged, Alexander B. inter alia: years during That 1930 to Bruce W. Sanborn was 1,120 property; during the owner of the acre ranch years pay taxes on the failed to 31, 1935, property; County that on December Lewis property by Clerk took tax deed to virtue whereof “the * * # * * * conveyed property title to said unto Lewis February County”; 26, 1936, and Clark that on the relator County Johnstone entered Lewis into contract with and Clark purchase property “did then there enter into * * * * * * * * * possession property of said described and ever * * * * * * premises since has the record title to said heen Johnstone, petitioner, according Alexander the records B. * * * County petitioner of Lewis and Clark [Johnstone] * * * against” property paid has all taxes levied February February date whereon the petitioner petition; May his that on Johnstone verified 1940, during pendency of Sanborn’s quiet title suit No. against County, Lewis and Clark Alexander B. John- wife, completed stone the relator Johnstone payment purchase specified the full in price contract, whereupon County Lewis and Clark “convey delivered to Johnstone a deed ing to him full and absolute title property” to the described legal and that ever since he has been the owner in thereof and open, notorious, sole, possession and exclusive thereof and has paid state, all county against local taxes levied or assessed property. said real paragraph

In the petition sixteenth of his the relator John- alleged, stone inter alia: remedy by way That he “had no appeal, adequate and is without remedy relief, for and without adequate remedy prevent proceedings further in said cause, except by annulling Writ Review all [No. 16386] * * * of the aforementioned respondent orders entered # * January 11, 1957, Prohibition, prohibit or Writ of * * * ing except proceeding, ‘judg further to enter or reinstate title n quieting defendant, Johnstone, Alexander B. ment ** '* except judgment dismissing or to enter No. said cause any petition and to enter an order striking rentals * * * pending plaintiff, made or Bruce W. behalf of Sanborn, in cause; Supervisory said or Writ di Control * # * * * recting proceed District Court how Emphasis supplied. said cause.” Perkins, Woodward v. 119 Mont. 171 P.2d

1001, it is said: general

“The rule is that lies a judgment no in an inferior pursuant entered court to and in substantial compliance appellate with the mandate of the court.”

Prayer. prayer petition The to Johnstone’s reads: “Wherefore, petitioner prays this that a Honorable Court Writ of Review be issued to annul the aforesaid order of Jan- uary 11, 1957, a or Writ of Prohibition issued prohibit respondent lower proceeding court from further with the quieting except to enter No. cause aforesaid B. John- petitioner, Alexander relator and this favor of cause dismissing the said except to enter stone, or Supervisory Control 16386; issue its Writ or this and that proceed, court how to directing respondent lower respondents to show requiring cause be issued an order show why Writ of such time this court certain cause before Prohibition or Writ of of Review Supervisory Control Writ issued, for such appropriate writ should not be or other appear shall relief, order, this Honorable further as to proper premises.” had been filed Court’s final this termi- April 17, No. 16386 since

entered cause prosecution action and closed nated and ended Horsky’s had. proceedings No were to be case. further ig- May completely should been void order of have necessary directly disregarded. It not chal- nored and petition, nor was lenge such order motion or void either any necessity up hearing for for calling there for ever petition determining motion hearing or either Sanborn’s Horsky’s Judge vacate void order. Supreme justices On December three of the of the Montana, made, constituted, signed then Court it was original proceeding and caused in an No. be filed respondent for commanding order District Court Lewis County respondent, and and Clark Lester District Loble, court, presiding department H. then in No. trial of the quiet No. enter Sanborn’s title action wherein Supreme judgment duly final had been filed and en- Court’s and entirely years before, tered more than fifteen new dif- title action No. dismissing quiet Sanborn’s ferent prosecution’’ diligent fact despite want “for Associate Jus- Chief Justice How- tice Albert Anderson concurred Erickson, had A. and Associate Justice Leif been ard Johnson duly regularly quiet filed and entered in title suit years No. than fifteen moz*e before.

The order of December with title of ouzitted, cause reads: Granting

“Order Peremptory Writ

of Prohibition “Whereas, upon application the verified of the above-named relator, this has issued an Court heretofore why show an appropriate cause writ should not be issued to prohibit respondents proceedings from further in The District Montana, Court of First Judicial District of State of in and the County for Lewis and Clark cause No. 16386 except therein to enter quieting favor relator, or dismissing 16386; said cause No.

“Whereas, pursuant application aforesaid verified hearing rehearing, order to show cause said matter, so issued in the appearing above-entitled to this Su- preme responding pro- Court that be court should [sic] proceeding hibited further other with Cause No. than want diligent prosecution; to dismiss the same Hereby

“It Is that a peremptory prohibi- Ordered writ of tion in form due of law issued out under the be of and seal Court, of this Supreme addressed to Montana, in first Judicial District of the State of and for County Clark, of Lewis and H. and to the Honorable Lester Loble, now presiding Judge, and to the Honorable Victor Judge, Fall, presiding H. once re- commanding said spondents prohibited proceed- desist from further ings other than the same as cause to dismiss here- and, provided; inafter Further

“It Is commazzd Ordered said writ Judge izz presiding the now said cause Dis- No. of the trict of the First Mon- Court Judicial District of State of County Clark, of Lewis judg- tana enter diligent ment in same of dismissing said cause for want ’’ prosecution. Emphasis supplied. December, 10th day “Done this of 1957. T.

“James Harrison ‘! Justice Chief “Wesley Castles H. Angstman “Albert “Associate Justices” at-, Quieting order, Title Prohibition. Writ The above of tempting quiet to real property by title the issuance of prohibition writ an original proceeding initiated in the Montana, proceeding the State of to which owner, the true and record Sanborn, Bruce W. was never made a party, clearly in that void it was made issued with- jurisdiction out and in excess jurisdiction.

Judgment Dismissal. The order and prohibi- writ tion, pursuant thereto, promptly issued were served respondents original proceeding named No. whereupon,- respondent, Judge Loble, immediately District Lester H. original entered quiet suit (where- had filed been and- entered April 17, 1942), following judgment since of dis- missal, viz.: Therefore, ordered, is hereby adjudged

“Now and de- creed, action, that the above-entitled the said cause No. 16386 herein, hereby be and the same is neglect dismissed for diligently failure prosecute action.” December, day “Dated this 10th H.

“Lester Loble Judge” “District above dismissal so made and entered void, Loble as is the order Harri- of Justices son, Angstman commanding Castles date same making entering judgment. of such void Both the

514 jurisdiction and and judgment made without the were entered jurisdiction. and of are in excess only judgment in San- filed and entered one and valid judgment the born’s title 16386 the of quiet action No. final Supreme Montana as and entered Court of the State of filed conformity in April 1942, pursuant strict therein on to and R.C.M. (now 1935 with Revised Codes Montana of section and 93-8025) Supreme opinion the and with Court’s § judgment in v. and Clark correctly reported Lewis Sanborn inclusive, ah, 120 P.2d pages 113 Mont. 4 to and et 567, at 577 inclusive. pages Supreme Mon- in both of lacking

Jurisdiction was Court justices in thereof and in the District Court tana and thereof, in thus re- County, judges Lewis Clark verse, nullify, dismiss, destroy Supreme discard and Court’s duly final opinion valid that had stood rec- appellate in trial for more ord both the court and years. than fifteen property lawfully quiet to real means

One does not title Supreme prohibition a writ issued out of Court Supreme in the original proceeding commenced of the Bruce W. Sanborn the true and record owner to which party. property never made Judge Horsky with the nothing had whatever to do District making, rendering, Court’s filing entering of quiet suit No. 16386. final Horsky jurisdiction no whatever: had application attorneys for (1) the oral To entertain May 25, parte make his ex order of Alexander B. Johnstone to 1944; court, deposit

(2) Sanborn to clerk To order com- deposited by Sanborn at the $1,213.41 over and above further and quiet title suit No. mencement of $2,041.29; sum of additional deposit refuse if shall

(3) order that To “will enter $2,041.29, sum the District Court additional * * * defendant, Alexander quieting title Sanborn; Johnstone, against plaintiff” B. present the return of

(4) To threaten to “order $1,213.41 by the Clerk of the existing deposit paid Sanborn, contrary defiance plaintiff” Court to said judgment; in (5) judgment quieting title To threaten to “enter a already duty had plaintiff, Bruce W. which Sanborn” performed been in the Court’s filed years previous; or, more than entered two (6) $1,213.41 original deposit To threaten “order to plus deposit $2,041.29 $8,- making current a total of Johnstone, B. paid defendant, 254.70 to be Alexander provided by 2214.” Section in provision There is no Section Revised Codes (now R.C.M.1947, 84-4158) Montana of 1935 author- § empowered ized Judge Horsley disobey or thus to attempt mandate and final to modify, amend, nullify judgment. reverse or such Horsky’s order shows its face that is void. nothing

Sanborn gained nothing filing and he lost his petition motion and his challenging order, nor the void did gain rulings he or lose anything failing to sooner obtain on his petition. Lapse motion and of time breathe life cannot Judge Horsky’s Being nothing. into void order. It void it may ignored. may disregarded. be It was under obligation no peti- to serve and file either the motion tion Judge Horsky’s any to vacate void order nor was there necessity up By him hearing. for to ever call either for serv- ing Johnstone, the motion plaintiff on the defendants San- gave Judge Horsky’s born notice due of the infirmities parte ex initio, order which rendered it void ab but Sanborn required was give not such at all times notice and he petition his motion and without

privileged abandon both parte order affecting the ex which any or manner void wise ignore disregard. right Such perfect had and he has Dis- v. ex rel. David S. Johnson order, like the State County, al., supra, “being void et Court for Jefferson trict subject jurisdiction was to collateral face for want of its at' time. attack” dis- in this Action No. 24875. As was observed earlier

Civil 8, 1955, in the District by complaint filed March sent County, Alexander B. John- the tenant. and Clark Lewis No. court action commenced district plaintiff, stone as again quiet landlord, Sanborn, seeking to against Bruce W. land in- 1,120 acres the same claimed title to Johnstone’s title No. quiet suit earlier volved Su- judgment of remittitur, opinion and final wherein title, Montana, denying Johnstone’s claim preme Court of thus be- April 17, and entered on duly filed were judicata. and res is the of the case law came Johnstone, Alexander B. complaint plaintiff, omitted, reads: parts formal cause above- plaintiff “Complaint. Comes now [Johnstone] defendant against [San- cause of action and for named alleges as follows: complains and born] times mentioned is, and at all plaintiff That now “I. of and holder of, and the owner possession herein has been and land lots, pieces parcels and of legal to those certain title Clark, and State County Lewis in the of property real situated follows: as Montana, described particularly and more of quarter (SE1/^) (2); the southeast “All Section Two of (N¥]4); quarter (3); the northwest and of Section three NE%) aud quarter the northeast (Ni^ north half of SW]4) quarter of the southwest (W% half west north, (19) nineteen Township all in (11) eleven Section west, Montana Meridian. (5) Range five “II. That herein the above-named defendant [Sanborn] estate, in interest, right, claims or said lands some title or premises, ; that plaintiff to the adverse [Johnstone] defendant, them, and all are claims said and each with- any in- right, authority law, out and are without are valid, upon plaintiff’s and that the same constitutes cloud title thereto.

“Wherefore, plaintiff prays required that said be defendant forth claims, to set the nature of his and that all adverse claims may Court, said defendant be determined decree this decree, and that adjudged said it be said declared and plaintiff premises the owner and of said all holder thereof; to, the defendant has estate or interest or no said lands premises, any part thereof; and also that enjoined asserting said defendant forever barred and in, to, claims whatever premises, said land and adverse plaintiff, and for such other further relief may just the Court equitable.” seem May 31, 1955, defendant, Sanborn, ap- On Bruce W. peared by interposing general cause No. 24875 demurrer plaintiff complaint. Johnstone’s party above Neither noticed hearing, however, ever the demurrer for on December Fall Victor H. started matters mov- ing setting hearing the defendant demurrer for Sanborn’s January 3, January Answer. On the defendant Sanborn cross-complaint served and filed his answer and Johnstone’s said complaint. pleading parts, is in three as fol- lows: I. part answer,

Part General Denial. I of his in cause interest, right, Sanborn admits that he claims an in the property and estate title described real adverse to the plaintiff alleges Johnstone; that at all times mentioned San- born owner legal was and holder and en- possession of all the described real property; titled al- interest, right, or estate leges of title that Johnstone’s claims property invalid, real are without described right authority law, and that such claims constitute of and, property ex- upon Sanborn’s title to the described cloud cept expressly alleged the San- as is admitted or defendant every allegation complaint. plaintiff’s born denies of Next, Part answer and II. his Affirmative Defense. defense, prior and alleges: That on affirmative Sanborn April 1933, since, times was and now 4, and at all Sanborn possession is the and as entitled to of owner such owner the property. all of the described real pleaded on or Sanborn then the written lease entered into and April about between the landlord owner Sanborn 1935, tenamt Johnstone; his the issuance on December County; making the and the void tax deed Lewis Clark between the tenant Johnstone purchase void contract County; and institution December and Clark on Lewis prosecution by the landlord Sanborn subsequent and against the claims quiet of civil No. 16386 to his action 25, 1939, of Johnstone; entering August of his tenant on against Judge Horsky’s judgment No. 16386 cause Johnstone; tenant landlord in favor of his Sanborn and of the State reversal that Court filing entering 8082; No. Montana No. 16386 of the April 17, in the District Court cause judgment, opinion, remittitur and Horsky, A. more filing J. making May 25, 1944, thereafter, order of years than void two landlord, ordering Sanborn, deposit true owner of the District June with the Clerk * * * being $2,041.29 “sum further additional payments accruing during total of all taxes and contract penalty under threat pendency” of cause deposit not said sum if “shall refuse does * * * 20, 1944” District Court “will enter by June * * * defendant, Alexander quieting title against plaintiff” B. Bruce W. Sanborn. Johnstone, and That pleaded: answer, In Part II his further of modi- he, petition No. 16386 a for Sanborn, had filed cause Horsky’s May 25, 1944; that there- Judge fication of order of petition after motion Johnstone filed a to strike Sanborn’s filed motion to vacate modification; that Sanborn had filed, Horsky’s then aforesaid and that Johnstone court, cause the district motion to dismiss district court motions were petitions 16386 wherein the and aforesaid pend January 11, being allowed to determined until without upon by on which the District Court date all were ruled (Judge Fall presiding). Complaint.

Part an- part III. his Cross the third of Sanborn, cross-complaint, alia, alleged: swer and inter that * * * day April 1942, 17th remittitur on or about the of Supreme from Court of the State of Montana was filed court; despite the above-entitled said decision the Su- of preme filing Montana Court of the State of and the of said * * * cross-defendant, remittitur Alexander B. John- stone, and still and occupy continued said lands continues thereof, making the whole himself a home thereon for and family using raising grain crops, said lands for the of grasses hay raising sheep cattle; for the since of day December, 1935, the 31st the date the issuance cross-defendant, said tax Alexander void deed said B. John- any stone, paid cross-complain- has not sum whatsoever person cross-complainant’s ant or other behalf as * * * premises. rental for said cross-complainant “That been at all times now has opinion said since the rendition of decision and of the possession of the State of Montana entitled to the of said property; that ever since said date the cross-defendant herein unlawfully possession thereof wrongfully has withheld the * ** cross-complainant. sum rental is the premises “That the reasonable for said per year of said $500.00 and that the value of the rents premises from the date of the rendition said decision is the opinion Montana Court of State of $7,365.00. sum of

“ judg- prays Wherefore, cross-complainant this defendant and against plaintiff ment as follows: plaintiff complaint “1. nothing by That take file herein.

“2. premises. The restitution said lands and $7,365.00 rents, issues “3. The sum of the value profits of said land. further

“4. For his of suit for such other and costs may proper.” as to seem relief the court filed 15, 1957, a February plaintiff Johnstone On lengthy against answer and cross- motion directed Sanborn’s Mo- designated his motion “Consolidated complaint. Plaintiff ’’ Definite and Certain. tion to Strike and Motion to Make More 16, 1957, following day, February Johnstone’s coun- On the against disqualifying in a affidavit Dis- sel filed cause trans- whereupon Judge Fall, day, same Judge Fall on the trict Depart- 24875 quiet title suit No. ferred Johnstone’s new Department 1 to No. of the District Court ment No. jurisdic- Lester H. to assume District Loble called tion the cause. years, a Johnstone sus-

Thereafter, period for of almost two quiet suit, his title No. prosecution of new pended the adopted an action and on March en- being the instant Supreme by filing in the a tirely plan direct different original proceeding 9792 for issuance of petition No. proceedings quiet prohibit further Sanborn’s that would writ litigation had then been terminated which title suit years by entering fifteen for almost therein. authority, complete power or Notwithstanding their lack of justices jurisdiction do, signed by three so to void 10, 1957, of the the issuance Court, December respondent a peremptory prohibiting prohibition, writ of judges pro- thereof “from further Court and the two ceeding than with cause No. to dismiss the same” other and commanding Judge Loble “enter that District for, diligent in said prosecu- cause dismissing same want of tion.” Diligent

“Want Prosecution.” The record quiet wholly title suit No. fails to “want show diligent prosecution” part plaintiff on the Sanborn. undisputed The record shows these facts: 26, 1936,

On December quiet Sanborn commenced suit No. 16386 against (1) County, (2) Lewis and Clark Alexander Johnstone, B. Mrs. (3) Alexander B. John- stone. 27, 1939, being

On January thirty-one days but after com- his suit, mencement of caused the default of the de- County fendant Thus, be entered. party one defendant passed from the scene making any without defense what- ever to the action.

On November the defendants Johnstone filed their joint answer.

On January 1939, being years three two weeks after suit, commencement of action the was tried on the be- merits Judge Horsky sitting jury fore without a and the conclu- trial the sion of such cause was submitted for decision. August 25, 1939, Judge

On Horsky and rendered to caused judgment be entered his adjudging defendant, the Alexander Johnstone, to equitable B. be the owner of property. the years eight

But elapsed two and months from the commence- quiet entering ment Sanborn’s title suit to the the trial court’s the action.

522 February 21, 1940, appealed Supreme

On the to trial judgment. Court from the court’s January 1941, appeal argued In was before first Court, Supreme reargued June 1941 such appellate before the court. first Supreme pronounced

On October its justices all reversing judgment, decision the trial court’s five concurring. Supreme January 3, 1942, petition rehearing,

On for again opinion former re- Court amended its appellate judgment. versed the trial court’s court’s To the dis- majority Angstman Mr. and filed a opinion Justice wrote majority court to upon the refusal of the sent based send for trial. the cause back the District Court new Mont, at page 23, P.2d 567. Supreme issued April 1, 1942, Court’s remittitur was

On judg- opinion final remittitur, April 17, and on judg- Court, trial reversing the court’s ment rights litigant were determining parties of all ment and Court, in received, cause and entered duly filed No. appellant Sanborn served April 27, the successful

On which there were no ob- bill duly filed his verified cost suit became and was Thereupon quiet title jections. Sanborn’s terminated, ended and closed. elapsed months com- years four

Thus, but five filing suit December of Sanborn’s mencement entering therein of judgment of the trial court’s reversing April 1942. remand the Supreme Court declined 25, 1939, the August litigation trial or court for new trial cause either the trial or presented not theretofore issues court. appellate “want of conclusively shows that there was no

The record quiet title srut prosecution” of diligent 523 tlie Su- wrongfully in inaccurately, recklessly as is stated and 10, 1957, as its excuse preme Court’s void order of December peremptory prohibition for issuance a writ of directing the of original repeated is as the one proceeding 9792, in No. and as only making Judge void and excuse for the of Loble’s lame 10, 1957, judgment of on December dismissal that was entered 16386, in No. at cause and command of Su- direction preme Court’s order the same date. void and writ jurisdiction either Supreme "Whence came the Court to dismiss a wherein judg- District Court cause the final Supreme ment duly regularly of the Court had and been en- years? tered for more than fifteen Court, 9792, State ex rel. Johnstone v. District No. 132

Mont. at 319 page page 959, P.2d in speaking Judge Horsky’s May 25, void majority order of opinion “Judge Horsky states: pursuant made the order this mandate of court.”

Nothing Judge could more Horsky’s inaccurate. contrary in to, with, remittitur, conflict decision and judgment this court. It was made in defiance this court’s January on It with- pronounced support law, out or in fact, either reason. No. Cause 16386 entering terminated and ended with April 17, Court’s final in the District This marked the end trail litigation Court. of the so far as cause 16386 was concerned.

On November plaintiff Johnstone served filed district cause No. his reply 24875 and answer to complaint the answer and cross the defendant Sanborn.

As A his reply answer, Exhibit Johnstone attached pleaded majority opinion original proceeding No. 9792 to which Sanborn was never made party, but prohibition wherein the writ of issued. See State ex rel. al., Johnstone v. District Court et Mont.

P.2d 957. reply answer,

As B to attached Exhibit Johnstone De- pleaded copy given made 10, 1957, by purports to cember Loble which 16386, and dismiss district court No. Sanborn v. Lewis cause 567, al., County 1, Clark 120 P.2d et 113 Mont. wherein remittitur, opinion judgment had Supreme Court’s final duly filed and more than fifteen regularly entered been years April 17, ground sole as- to-wit, The before, No. 16386 was signed pretended dismissal cause diligently prosecute said action “neglect and failure conclusively Supreme show records of The “neglect plaintiff part or failure” on the was there no his title action No. diligently prosecute” quiet “to 26, 1936, to the on December from its commencement Supreme judgment final therein on entering of the 17, 1942. April reply 9, 1958, Sanborn filed his the defendant

On December reply answer, where- plaintiff Johnstone’s above to the April joined in cause No. 24875. On upon issue was alleging inad- plaintiff Johnstone motion of the on written original reply his preparation mistake in vertence answer, granted pleading. leave amend such Johnstone was May 1959, No. 24875 tried on the merits cause On jury. Judge sitting Loble without before written August 27, 1959, Loble made filed On cause, law in the and on findings of fact conclusions be 31, 1959, Judge Loble rendered and caused to en- August adjudging cause No. 24875 “that tered hereby quieted Johnstone, B. plaintiff, Alexander title of defendant, plaintiff, against Bruce W. him, said persons claiming through or under Sanborn, any person defendant.” said defendant, Sanborn, Bruce W.

This against so entered him. above-adverse Court’s holding appeal, first bearing this court’s No. 8082, Sanborn v. Lewis and Clark County al., et Mont. 120 P.2d was that the tax deed issued to the defendant Lewis County, and Clark was void be- cause prescribed statutory notices, jurisdic- which were tional, had not given. been Lack notice, being á denial of process, due is violative of provisions of both the Con- stitution of the United States and the Constitution of the State of Montana.

It quite evident from careful examination of the record before this court that from the entering time of into the lease agreement with April 4, pronounce- Johnstone ment on January Court’s amended opinion, decision and in appeal San- born v. Lewis and County al., supra, Clark et that it had not been shown Sanborn, the true record owner, was unable pay to the taxes on the property real involved, here nor was it shown that he had possession lost property. of his contrary,

On the the record 1, shows that on November 1937, Sanborn deposited with the Clerk of the District Court in 16386, cause No. the sum $1,213.41 to use of Alex- Johnstone, ander B. the defendant in action, that to reimburse for Johnstone all the taxes he had paid theretofore and also to reimburse outlays Johnstone for his preserv- reasonable ing, protecting or improving property, all deposit of which the Supreme Court, opinion in its judgment, ap- peal 8082, No. Sanborn v. Lewis and County Clark al., supra, et specifically paid ordered to the Jolmstones who were the re- spondents 8082, and who were defendants in distinct court cause No. 16386. respondents

The failed, Johnstone omitted to and refused accept any part take $1,213.41 down of Sanborn’s which on November deposited Sanborn with the Clerk of the trial court where all of such sum deposit has remained on at all since, times including to and pronounce- the date of

526 opinion Novem- majority decision and on this court’s ment of appeal No. 10123. 30, 1960, in instant ber times been to Johnstone deposit has available all preserving outlay him for his for taxes reimburse $1,213.41 deposit Thus, with property. improving Johnstone, impossible it show that the use of the tenant unwilling pay either unable or the landlord Sanborn was property, it be sIioavu his described nor could taxes on premises. lost his lands and On possession had $1,213.41 is still being written, day this dissent deposit the trial court. in the of the Clerk of office County, Clark under tax deed to Lewis and Since the issued property equitable Johnstone which claimed an adjudged county, purchase from the under contract to Avas possession tenant void it followed that the Johnstone’s of his landlord Sanborn. property possession described was the 341, P. Green, Cal.App. In Storrow v. the court said: and tenant be-

“Having established relation of landlord Swales, possession into haAdng tween himself entered privileges acquired property by the Swales’ reason of tenant, occu- presumed as such defendant would be permis- pancy ground as a licensee or thereafter SAvales’ it regardless rental for sion, pay continued to of whether he change unequivocal gave until act he notice of some possessor.” peaceful in his to hostile attitude from Court, Superior Holiness v. St. James Church of Christ Cal.App.2d 352, is said: 287 P.2d is that of his possession of the tenant general “As rule the possession of the tenant inures to benefit of landlord. The by latter, for the landlord, possession and constitutes benefits ad- securing to him of purpose of [the landlord] limitations. bar Code possession verse and the of statute of 670, 79.” 326; 15 Cal. Jur. of Civ.Proc. § § Interested, Nuevo Land All Potrero Co. v. Persons 29 Cal.App. 743, P. it is said: rule,

“As a general possession of the tenant is of landlord, be so until the contrary appears, will deemed may this rule all possession, affects who succeed to the immediately remotely, through Hence, or under the tenant. or long so as the relation of tenant landlord and tenant exists the acquire cannot against adverse title as his landlord. 1 R.C.L. p. McCauley 746.” Also see al., Doolan v. et 66 Cal.

6 P. 130.

Until pronouncement January 3, 1942, of the Su- preme Court’s amended opinion, judgment- decision and final first appeal Sanborn v. Lewis Clark County al., supra, et there was no reversal nullification of theretofore rendered in Johnstone’s favor Judge Ilorsky in cause No. 16386 until pro- such nouncement January 3, 1942, of Johnstone could not claim termination of his from lease Sanborn under quoted the clause majority opinion which reads:

“It agreed understood and that there delinquent are now taxes against property this pay and that if Lessor is unable to taxes possession should lose property, of the this lease shall immediately terminated and Lessor shall not be re- sponsible any work theretofore done Lessee.” may

Neither the tenant Johnstone claim under the above- quoted subsequent clause pronouncement the date of opinion January 3, 1942. prohibition This express reason provisions 93-2512, R.C.M. which reads: § (9023)

“93-2512 Relation landlord and tenant as affect- ing possession. adverse When the relation of landlord and tenant has existed between persons, possession possession tenant is deemed the landlord until the ex- piration years ten tenancy, or, the termination of where there has lease, been no expiration written until the

528 notwith- years rent, ten payment time of last title, may standing may acquired such tenant have another pre- adversely But such have claimed to hold to his landlord. prescribed in sumptions periods be made this cannot after the ’’ section. statute, possession tenant, Under above of the Alex- Johnstone, ander landlord possession B. is deemed the of the years expiration until ten from the termination tenancy. only expiration It is ten- from and after the of such year period that run possession commences to under adverse the statute. undisputed

The in show under no cir- facts this case tenancy said have termin- cumstances could Johnstone’s be prior whereon the 1935, being ated to December date writing purporting void to be tax deed was issued Lewis County. 93-2512, supra, an addi- and Clark section Under 1935, must years tional ten from and after be December elapsed possession by possession shown have before adverse hence, begin 'run, the earliest date tenant would run possession possibly have commenced to would adverse could possession such and thereafter adverse December years an additional ten must to have be shown continued being including 31, 1955, the tenant to and December before quiet his instant would be entitled to even commence Johnstone against landlord title action No. Sanborn. Clearly, provisions the most liberal view of the sec- under 93-2512, supra, quiet tion Johnstone’s action than on March was more seven so filed and commenced neither thus the tenant could premature and Johnstone months .posses- he he been adverse plead prove nor had could minimum for the property his landlord’s described real sion of required provisions period prescribed of time 93-2512, supra. section as opinion expresses "considerable doubt majority

The 93-2512, supra] of the hold- is valid view whether [section P.2d 571, 208 County, 122 Mont. ing Lowery Garfield v. has remembered that such statute it must be 478”, supra, but than jurisdiction for more unchallenged been law this tbe of Cali- adopted from the State years having been eighty-three As- Regular Legislative year 1877, the Tenth fornia Territory and enacted as section sembly of Montana parent Laws page of the Montana Session the is section 326 of California known California statute now as Procedure. Code of Civil 245, MaGraff, pages 33 Tewksbury Cal. at v. ejectment, the Court of an action of said: through Sanderson speaking

California Associate Justice dispute depends a can his landlord’s title “Whether tenant upon variety that he general rule is a of circumstances. The cannot, estoppel continues, the the end of the that not to merely, term where occupation, but to the end of the tenant’s subsequent a repudiation tenancy there has been a of the tenant, holding by the until Statute of Limitations adverse the outstanding has title up run his favor. He cannot set an may he he acquired. which have Before avail himself of can possession. (Doe such a must surrender on the title he 348; Mun- Knight Smythe, 4 & v. demise of v. M. S. Greeno son, say Vt. 37.) may up 9 he set title To that adverse recovery by landlord, a after acquired him to defeat his say estoppel, no expired, has is there is term (Wilson may always deny a title. tenant his landlord’s v. Cleaveland, 30 Cal. ^[192] 201.) To allow a party to obtain by entering disclaim, possession lease, either under and then expiration term, to en- before after the of the would be very chicanery estoppel fraud courage the which prevent. estoppel designed rests considerations of reasons, public which, would be defeated policy obvious possession land put its if has been purpose one who the latter another should be allowed controvert good as a condition as he was in restoring first him to without 530 (Glen

before he parted possession. Gibson, with the 9 v. Barb. ^[634] 638.)” Standley Stephens,

Also see v. P. 420, 66 Cal. 6 Restano, Oneto v. 78 Cal. 20 P. 743.

It public policy is a rule of possession that the tenant of a possession and, by express of his statute, landlord R.C.M. 93-2512, possession “the tenant deemed § possession expiration years landlord until of ten tenancy” where, here, the termination of tenant, at very outset, possession took and entered into under and pursuant specific Snyder of a written terms lease. See v. Co., Pine Lumber Cal.App.2d 660, Grove 40 105 P.2d 369. express Under 93-2512, supra, terms section tenant in possession of his dispute landlord’s real property cannot (Tewksbury landlord’s title MaGraff, 237, supra), v. Cal. may nor tenant adversely hold to his landlord while hold- ing Swartzbaugh under the lease. Sampson, Cal.App.2d v. page estoppel P.2d 79. The continues to the end occupation of the tenant’s property. of the real The tax deed upon which tenant relied Johnstone for his claimed title having adjudged 1942, by been void, January 3, the Su- preme in County Court al., Sanborn Lewis and v. Clark et supra, possession the tenant Johnstone’s of his landlord San- 1,120 became, born’s possession acre ranch was the landlord Sanborn.

Had the five Justices constituting Supreme Court on April 17, 1942, when remittitur, appeal 8082, No. was in filed and in quiet entered the District Court title 16386, any action No. thereafter alteration, desired to make change opinion or modification in their and final therein, misprisions than other to or obvious correct clerical errors, necessary it would have been to first the recall and, Supreme the remittitur reinvest thus Court with jurisdiction necessary contemplated enable to make such change in opinion judgment. alteration its At time no remittitur, so filed in Sanborn’s Supreme was such ever recalled without action No. quiet title wholly jurisdiction was without Supreme recall Court judg- opinion and final any change in its make alteration action No. quiet of such title the dismissal ment or to order quieting lend itself Court should not Supreme original pro- such device as property to real title by petition initiated filed ceeding prohibition for a writ original proceeding the Supreme to which in the Court direct made property was never involved true record owner of party. writ, seeking original the issuance proceeding, In such 2, 1957, .being years more than fifteen on March commenced opinion its and final pronounced had Court after whereof, 3, 1942, entering January filing April 17, 1942, No. consti- District Court cause rights parties” final determination of the tuted “the (R.C.M.1947, 93-4701), such action § jurisdiction authority, power or wholly without issue 10, 1957, commanding its writ of December District order and “judg- Judge enter district court cause No. Loble to * * * diligent dismissing prose- the same Avant ment cution”. 16386 on suit No. quiet won his

Bruce "W. Sanborn its pronounced January Supreme Court Avhen the v. No. decision and final supra. County, al., et Lewis and Clark 1,120 on December lost his ranch Bruce W. Sanborn acre No. Supreme Court, original proceeding when for Lewis and rel. District Court State ex Johnstone v. County supra, Loble al., et commanded Clark quiet title action judgment dismissing Sanborn’s enter a years fifteen and ended had terminated which action therein, entering of the before, filing January 1942. Sanborn v. Lewis supra. and Clark County al., et W.

Bruce Sanborn lost his ranch for the second time on November pronouncement majority opinion and decision on the instant my opinion facts, precedent law and the established decisions of valid this court are with Bruce W. Sanborn. protest

I the taking of Sanborn’s ranch and presenting itof to his tenant. $1,213.41 Sanborn, which on November 1, deposited

in the office of the Clerk of deposit the District still there.

Quare: $1,213.41? gets Who Does Sanborn lose both his money deposited ranch and so ?

Case Details

Case Name: Johnstone v. Sanborn

Court Name: Montana Supreme Court

Date Published: Nov 30, 1960

Citation: 358 P.2d 399

Docket Number: 10123

Court Abbreviation: Mont.