Minneapolis Threshing Machine Co. v. Stanford Mercantile Co.

197 P. 993 | Mont. | 1921

MR. JUSTICE REYNOLDS

delivered the opinion of the court.

One Louis Kalous gave to plaintiff a chattel mortgage upon certain personal property, which mortgaged property was sold by defendant without consent of plaintiff. It is contended by plaintiff that defendant was a trespasser and committed a tort in making the sale, and that- plaintiff thereby has an action in conversion against defendant. Plaintiff expressly waives the tort, however, affirms the sale, and sues to recover the sale price of the property. At the close of plaintiff’s evidence, defendant moved for a nonsuit, which motion was granted. Plaintiff made a motion for new trial, which motion was overruled. Appeal was taken from the order overruling the motion.

It is contended by defendant that such motion was properly [1] granted, because, among other reasons, there was no proof that plaintiff was a corporation. The complaint alleges “that during all the times and dates hereinafter mentioned, plaintiff was, and ever since has been, and now is a corporation duly organized and existing under and by virtue of the laws of the state of Minnesota.” The’ answer of defendant specifically denies these allegations. It has been decided by this court in several eases that a general denial does not raise the question of the corporate capacity of plaintiff (O’Donnell v. City of Butte, 44 Mont. 97, 119 Pac. 281; First National Bank v. Smith, 44 Mont. 305, 119 Pac. 784; Willburn Ranch Co. v. Yegen, 49 Mont. 101, 140 Pac. 231); but it has also been held that the question can be raised by specific denial, and that in such case it devolves upon plaintiff to prove the allegations of corporate existence the same as any other issue in the case. (Milwaukee Gold E. Co. v. Gordon, 37 Mont. 209, 95 Pac. 995.) As defendant máde specific denial of these particular allegations, the obligation then rested upon plaintiff to prove its corporate existence. As no proof whatever was offered upon this question, the court did not err in granting motion for nonsuit.

Appellant failed to incorporate in the transcript the judgment [2, 3] entered by the trial court, and contends that on an appeal from an order overruling motion for new trial it is not necessary so to include such judgment. Sections 6799 and 7414, Revised Codes, set forth what should be included in the record on appeal from an order overruling the motion for new trial, which includes the judgment-roll or such parts thereof as may be necessary to be considered on the appeal. Section 7115 provides the manner in which it shall be determined what part of the judgment-roll may be omitted as immaterial. Under this section, if appellant desires to omit any part of the judgment-roll, he must present to the supreme court, or a justice thereof, a copy of the record from which are omitted those parts thereof which appellant believes to be immaterial, and thereupon, if it shall appear prima facie that the parts thereof are so immaterial, the court, or justice, shall make an order allowing such abbreviated record to be served and filed as the transcript on appeal. Unless such order is procured, the record on appeal from order overruling motion for new trial should contain the complete judgment-roll. (Lisker v. O’Rourke, 28 Mont. 131, 72 Pac. 755, on rehearing.)

There are other questions involved in the appeal, but as the order of the trial court must be affirmed by reason of the failnre of proof above mentioned, it is not necessary to consider them.

Rehearing denied May 23, 1921.

The order is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Cooper, Holloway and Galen concur.