43 P.2d 652 | Mont. | 1935
As to insufficiency of notice of the alleged injury to the city required by section 5080, Revised Codes 1921, and as to the purposes to be subserved thereby, we cite Berry v. City ofHelena,
The second question is as to whether or not the record in the former trial in this case is sufficient to bar the plaintiff from recovering in this action. We think the case of McIntyre v.Northern Pacific R. Co.,
Defendant cannot claim res adjudicata. There is no judgment which states that this cause was once adjudicated. It is true that it was tried before and it is true that a verdict was returned. But that verdict was never extended or copied or recorded in any judgment book. No judgment was ever drawn or prepared upon the said verdict; there was no adjudication that plaintiff's case was disposed of on its merits. The verdict remained in the files until after more than six months had elapsed after it had been signed. Thereupon the plaintiff caused the complaint to be dismissed, not as a voluntary discontinuance of her case, but with the intention of again instituting *289
her case; she instituted such case promptly and she has been diligent in the prosecution of this case. That dismissal was not a dismissal upon the merits. It did not prevent the institution of a new action. (Sec. 9320, Rev. Codes 1921; Pullen v. Cityof Butte,
The entire effect of the former verdict was nullified by the judgment of December 29, 1932. Now, there cannot be any successful collateral attack upon the judgment. "A judgment or decree valid on its face is not subject to collateral attack based upon considerations dehors the record." (In re Pepin'sEstate,
Inspection of all of the proof offered by the defendant will disclose that there is nothing in defendant's case which shows a prior adjudication or a judgment in bar. The case of McIntyre
v. Northern P. Ry. Co.,
The defendant answered, admitting its corporate capacity and denying generally the other allegations of the complaint. In addition, it, by a separate answer, alleged that the complaint in this cause of action was identical with the complaint in cause No. 33636, filed in the district court of Silver Bow county, and in which the plaintiff and defendant in this action were, respectively, the plaintiff and defendant in that action, which was tried in that court on June 20, 1932, resulting in a verdict in favor of defendant city and against the plaintiff; that the court ordered that verdict filed and judgment entered accordingly; that the cause was tried upon the merits, and that plaintiff's present action is barred and she is estopped from prosecuting this action.
Plaintiff filed reply to the affirmative defense, alleging that defendant failed and neglected to cause a judgment to be entered on the verdict in the former trial within the period of six months, or at all, and that on December 29, 1932, and more than six months after the return and filing of the verdict, the plaintiff caused a judgment of dismissal to be entered, not as a voluntary discontinuance of that action, but with intention of taking advantage of her statutory right to bring a new action, and that thereafter, and within one year after the entry of the judgment of dismissal, plaintiff instituted the present action. By her reply plaintiff admitted that the action numbered 33636 was between the same parties and upon the same cause of action as that involved here.
The trial resulted in a verdict and judgment in favor of plaintiff. Motion for new trial was made, heard and denied. The appeal is from the judgment.
Defendant, at the close of plaintiff's case, made a motion for[1, 2] nonsuit upon the ground "that there is a variance *291 in the proof in this case as to the place where the accident occurred and the place designated by the plaintiff in her notice of the time when and the place where the accident occurred which was given to the city of Butte, * * * said variance being more particularly described as follows: the testimony on this trial being that this accident occurred at the northwest corner of the sidewalk, which northwest corner of the sidewalk is on the southerly corner of the driveway referred to in the evidence and which driveway is on the west side of Dakota street * * * at a point and place where the sidewalk is eleven or twelve inches above the surface of the driveway; * * * and the description of the place where the accident occurred and the injury was received is as follows: `said fall was caused by a defect in said sidewalk and footway, and the undersigned was caused to fall violently upon the sidewalk and footway because her foot came in contact with that part of the sidewalk where it is uneven with the part where vehicles cross it, and where it is higher by at least four inches than is that part used by vehicles.'" The motion for nonsuit was denied, and error is assigned on this ruling, and by other specifications of error the question is again raised.
From the testimony in the case, it appears that the cross-walk sloped from about the center of the sidewalk toward Dakota Street. The upraise was about four inches at the center of the sidewalk. The witnesses testified that the iron bolt or pipe which was protruding from the sidewalk was located near the corner of the sidewalk at the intersection of the alley and Dakota Street. The sidewalk was approximately eight feet wide. The upraise at the point where the witnesses testified the bolt or pipe was located was from eleven to twelve inches. It is therefore argued that the description as it appeared in the notice to the defendant was inaccurate to the extent of about four feet.
The pertinent portion of section 5080, Revised Codes 1921, providing for notice to the city by persons claiming damages for injuries by reason of defects in a sidewalk, is as follows: "Before any city or town in this state shall be liable for *292 damages for, or on account of, any injury or loss alleged to have been received or suffered by reason of any defect in any * * * sidewalk * * * in said city or town, the person so alleged to be injured, or someone in his behalf, shall give to the city or town council, or trustee, or other governing body of such city or town, within sixty days after the alleged injury, notice thereof; said notice to contain the time when and the place where said injury is alleged to have occurred."
In the case of Nagle v. City of Billings,
The defendant here produced a number of excellent photographs, which have been certified to this court, of the scene of the injury. Apparently no difficulty was experienced by the city authorities, as a result of the discrepancy in the location, in ascertaining the point of its occurrence. On the authority ofNagle v. City of Billings, supra, we hold the notice was sufficient, the variance immaterial, and the defendant's contention to be without merit.
The second question presented by the specifications of error[3] is as to whether or not the record in the former trial of this case is sufficient to bar the plaintiff from recovery in this action. It is the contention of the defendant that, when the verdict was received and the judgment ordered entered, it was tantamount to the rendition and entry of judgment.
Section 9403, Revised Codes 1921, provides: "When trial by jury has been had, judgment must be entered by the clerk, in conformity to the verdict, within twenty-four hours after the rendition of the verdict, unless the court order the case to be reserved for argument or further consideration, or grant a stay of proceedings." By the provisions of section 9317, Id., it is declared that "an action may be dismissed * * * in the following cases: * * * 6. By the court, when, after verdict or final submission, the party entitled to judgment neglects to demand and have the same entered for more than six months."
An identical situation was before this court in the case ofPullen v. City of Butte,
Counsel for the city asserts, however, that the case ofMcIntyre v. Northern Pacific Ry. Co.,
Section 9407, Revised Codes 1921, provides: "The clerk must keep, with the records of the court, a book to be called the `judgment book,' in which judgments must be entered." The entry of a judgment is its recordation in the judgment book mentioned in this section. (Morehouse v. Bynum,
No other questions are urged on this appeal. The judgment is affirmed.
ASSOCIATE JUSTICES MATTHEWS, MORRIS and STEWART concur.
MR. CHIEF JUSTICE SANDS, being absent on account of illness, takes no part in the foregoing decision.