88 P. 92 | Idaho | 1906
Lead Opinion
This action was commenced in the early part of 1902 to secure an injunction and for damages in the sum of $2,000. The defendant demurred and the demurrer was overruled; it thereafter answered, and by agreement of counsel for the respective parties the case was referred to a referee to take the evidence and report to the court. The referee commenced to take testimony on the fourteenth day of June, 1902, and evidence appears to have been taken in Spokane, Washington, as late as the seventh day of June, 1904. It was not filed in court, however, until the second day of February, 1906. On the date on which the referee’s report was filed, the district judge made and filed his findings of fact and conclusions of law, and ordered judgment in favor of the plaintiff for the sum of $3,500, and thereupon entered judgment accordingly. The defendant moved for a new trial and appealed from the judgment and order denying its motion. It appears that the plaintiff, Lindstrom, had two logging contracts with the appellant, the Hope Lumber Company, one known as the Kootenai contract and the other as the Pack river contract. The Kootenai contract was entered into on the twenty-fourth day of October, 1901, and by its terms Lindstrom agreed to cut, skid and bank in Kootenai slough all the white pine, fir and tamarack saw timber growing on a certain tract of land at a fixed price per thousand feet. Lindstrom began by building roads and laying in supplies and material for carrying out his contract, and during the meanwhile was purchasing considerable of his supplies from Butler & Culver of Sand Point. At the end of each month he paid his bill to Butler & Culver by check issued by the Hope Lumber Company. The last payment made
‘ ‘ Counsel agree that the contract mentioned in the complaint is the Kootenai Contract, and by stipulation, the contract known as the ‘Pack River Contract’ is here now introduced in evidence, marked Plaintiff’s Exhibit ‘A.’ ”
Accordingly the evidence taken by the referee covered the contract and transaction known as the “Pack River Contract,” and while there was no amendment of the pleadings, the order of reference and this stipulation were treated by the parties and the court as an amendment to the pleadings to the extent of covering all the business and transactions included in the other contract.
The first assignment of error made by appellant is directed against the action of the court in overruling defendant’s demurrer. The grounds of the demurrer were: 1. That the complaint does not state facts sufficient to constitute a cause of action; 2. That there is a misjoinder of parties defendant in that Butler & Culver and Charles Dyer (the sheriff) were not joined as defendants; 3. That the complaint is ambiguous, unintelligible and uncertain. We do not think there was any error in overruling this demurrer. The complaint states a cause of action. On its face it does not show any reason why Butler & Culver or Dyer were necessary parties defendant. A suit for injunction should be commenced and prosecuted against the real party who is committing the wrong. It was not necessary for the plaintiff to join any other persons who
The complaint contains a great deal of argumentative matter that has no proper place in a pleading, but upon the whole it is sufficiently certain and definite to put the defendant to its answer.
Appellant assigns as error the action of the court in making and entering findings and judgment on the same day on which the referee’s report was filed. It is urged by appellant that he had no time or opportunity to object to the report or any of the evidence,' or to move to purge the testimony as reported by the referee. It is true that both parties were entitled to a reasonable time in which to move against this report or any part thereof, and to object to any of the evidence it contained. "While it does not appear to have been filed until the day on which the findings were made and entered, it does appear that the last evidence was taken a year and a half prior to the filing of the report. This report was somewhere during that time, and if not in the hands of the judge, it was the duty of the litigants to see that it was submitted to him, and that some action be taken looking to the closing up of this suit. Attorneys for both sides had been present from time to time during the taking of testimony and knew its contents, and we think eighteen months was long enough for either party to move against any improper evidence contained in the report, and also time enough to submit any findings that they desired the judge to make.
Plaintiff assigns the action of the trial court in assessing damages and entering judgment thereon without submitting the question of damages to a jury, as error, and in support of that assignment cites Stocker v. Kirtley, 6 Idaho, 795, 59 Pac. 891. In that case this court in a dictum held that where a demand was made for a jury to assess damages in an equity
Rehearing
ON REHEARING.
Appellant filed its petition for rehearing in this case. We find nothing urged in the petition that was not considered by the court in disposing of the case on the original hearing. A rehearing is denied.