141 P. 641 | Mont. | 1914
delivered the opinion of the court.
On August 30, 1911, the Middlefork Cattle Company commenced an aetion in the district court of Cascade county against Ira E. Todd. Personal service of the summons was made on September 15, and on October 9 the default of defendant for want of an appearance was entered, and on October 13 a judgment was rendered in favor of the plaintiff agreeably to the prayer of the complaint. Defendant immediately made a motion to set aside the judgment, open the default, and permit an answer to be filed. The motion was supported by affidavits, and a proposed answer was tendered. A counter-affidavit was presented by counsel for plaintiff, and on February 20, 1912, the district court entered its order as follows: “It appears to the court that defendant has not shown that judgment was entered against him through his mistake, inadvertence, surprise or excusable neglect; but it further appears to the court that the complaint does not state facts sufficient to constitute a cause of aetion against the defendant, and does not support the judgment. It is therefore ordered that said motion be, and the same
Counsel for respondent invoke the rule that, if the decision of the court was correct for any reason, it will be sustained, even though the particular reason assigned in the order is
It is unfortunate that the learned trial judge did not indicate
A state of facts very similar to that presented by this complaint was disclosed in Schoelkopf v. Leonard, 8 Colo. 159, 6 Pac. 209, and the Colorado court held the complaint sufficient. It is not of any consequence that plaintiff unnecessarily avers that the money was paid over by the purchaser through the Great Falls National Bank. So long as it is made to appear that the relationship of principal and agent existed between plaintiff and defendant, good faith required the agent to account to the plaintiff for the entire selling price, less the agreed
The order of the district court is reversed.
Reversed.