26 Mont. 170 | Mont. | 1901
Lead Opinion
delivered the opinion of the court.
This is an appeal taken by plaintiffs from an order granting the defendant’s motion for a new trial. The plaintiffs commenced an action to recover a sum of money from the defendant. On the 10th day of March, 1898, the defendant answered, making certain denials, and attempting to’ set up certain counterclaims; thus seeking to recover of plaintiffs a total sum largely greater than th$ amount sued for by the plaintiffs. On the 4th day of May, 1898, the defendant filed its praecipe, asking for default of reply to the counterclaims, and the clerk, in pursuance of the demand, • entered the' default. On May 9, 1898, the plaintiffs filed a reply to the counterclaims, denying each of the allegations of the answer. On May 11, 1898, the defendant filed its motion to strike the reply from the files, because not filed in time, which motion was afterwards granted, plaintiffs excepting. The cause was by consent referred to a referee to make and report findings of, fact. . .Proof was made
Thereafter the defendant moved the court for a new trial, the principal ground, and the only one, really urged by counsel, b^ing that the court below “changed front,” as the court’s action was styled in Newell v. Meyendorff, 9 Mont., at page 262 (23 Pac. at page 334, 8 L. R. A. at page 442, 18 Am. St. Rep. at page 742), and thereby, as the judge declared in giving his reasons for granting a new trial, the defendant was surprised to its damage; and defendant further claims that this surprise was such as ordinary prudence could not have guarded against.
There is nothing properly in the record to show that the court at any time before judgment held that the answer was bad for substance in respect of any counterclaim. The court’s opinions cannot be looked to to determine what was done or not done in the case. The defendant’s bill of exceptions does not in any wise refer to any action or decision of the court upon any motion or demurrer relating to the answer. In the specifications of error submitted to the court in connection with the bill of exceptions used on motion for a new trial, one ground is that the court “erred in finding for plaintiffs upon motion for judgment for defendant in holding certain counterclaims insufficiently pleaded, when the court had previously before trial held the same good against a motion to strike them out of the answer,” and that the court erred in “ordering judgment for plaintiffs without referring the cause to the referee for a
On November 11, 1898, tbe judge signed, settled, and allowed a bill of exceptions on motion of plaintiffs, in which there appears an opinion of tbe judge, with argument and authorities to support the reasons of tbe court why it believed that tbe defendant bad been surprised by certain action of tbe court, which action is, after the granting of tbe motion for a new trial and in tbe so-called bill of exceptions of plaintiffs, referred to in tbe following language: “Subsequently to tbe filing of its answer by tbe defendant tbe plaintiffs appeared, after notice to tbe defendant, and moved tbe court to1 strike out each of tbe six demands set out in defendant’s answer- as counterclaims, upon tbe grounds that tbe same were sham, irrelevant, indefinite, uncertain, and did not state facts sufficient to constitute a cause of action or defense. Each said demand and counterclaim in defendant’s said answer was by said motion sought separately to be stricken out. After argument tbe said motion
Although we may not consider the opinion of the court below, j — only -its acts, and not its reasons, being properly part of the record to be brought to this court on appeal,- — still when, as in this cáse, it is submitted by all parties in their briefs that the
Tbe record is obscure in many places, very redundant in others, and absolutely wanting in most important points. If it were not for tbe fact that tbe briefs submit to this court'' matters as part of tbe case which do not appear in tbe record, it would be impossible to tell what were tbe grounds on which bearing of motion for a new trial was bad. It is certain from the record and tbe concessions contained in the briefs of tbe parties, taken together, that the court bad submitted to it and argued before it, on the bearing on motion for a new trial, the fact that, pending answer, it bad denied the motion to strike certain counterclaims in tbe answer, tbe ground of such motion being as hereinbefore set forth, and tbe claim of tbe defendant that such denial was an assurance to- it that tbe court held tbe answer good in all its counts for substance, and that the “chang’d of front” by tbe court, after adopting tbe report of the referee, in that it suddenly, and without notice to- tbe defendant, held the answer bad in several counts, and ordered judgment for tbe plaintiffs, was accident and surprise, which ordinary prudence could not have guarded against, and on account of which a new trial should be granted. Tbe court granted a new trial upon tbe ground of accident and surprise. If we bold that’ counselors and attorneys are presumed to- know tbe law at their peril, and that equally, at their jeopardy, they accept as law and worthy of safe dependence tbe decisions of tbe court in the proceedings of a cause, then, of course, there is here and now
Was not tbe act of tbe court in thus misleading tbe defendant a statutory ground for a new trial ? Tbe court, discovering, its error, should bave informed tbe defendant of tbe mistake, and, pending action upon tbe motions to adopt tbe findings of tbe referee, bave given tbe defendant a chance to amend its answer upon terms, if it saw fit to do so, and, if the defendant amended its answer, then the matter should bave been sent back to tbe referee for further proceedings before him under the court’s order to make findings. But tbe court did not do- tbis. It granted tbe motion of plaintiffs to adopt tbe findings of tbe referee in favor of tbe plaintiffs, and then gave judgment for them. Afterwards tbe court, upon motion, seeing its error, hastened to. make amends in tbe interest of justice. All of tbe cases mentioned herein, as well as. tbe text writer Hayne on New Trial and Appeal, tend to support tbe opinion of District-Judge Leslie in bis view that bis act was sucb an accident or circumstance happening in the case as prevented tbe defendant getting justice on tbe trial. Defendant was induced by tbe
It rarely happens tbat sucb a concatenation of circumstances is presented to a court of last resort as appears herein, there being important omissions from tbe record uncomplained of, obscure specifications of alleged error, concessions in briefs of facts omitted from tbe record, and unusual error of tbe court below, with an honest desire to correct and remedy it in a way-difficult to review and involving very close questions of procedure and practice. In a case with so poor a record, uncom-plained of by appellants or respondent, in respect of important faults, and raising so close a question to be determined, it seems to be tbe duty of tbis court to affirm the action of tbe lower court in granting a new trial, especially when it is so apparent; tbat tbe court 'granted it because it bad done tbe judgment debtor an injustice. By suggestion rather1 than by positive declaration tbis court in Newell v. Meyendorff, supra, indicates tbat tbe point herein considered can be raised and determined on appeal from an order granting or refusing a new trial.
In view of tbe very close questions before us to decide, tbe writer of tbis opinion is not willing to have tbis case considered as a precedent except for sucb a case hereafter appearing as
Tbe order granting a new trial' i's affirmed.
Affirmed.
Tbe arguments in support of tbe order appealed from and tbe arguments against it seem to me to be of equal legal force. Of course tbey are not. But to my imperfect mental vision tbe reasons wbicb may be urged upon tbe one side are as strong as, but no stronger than, those wbicb may be advanced upon tbe other, — they are of equal weight and tbe scales are in equipoise. Not being satisfied that tbe court below erred in granting a new trial, I concur in tbe judgment of affirmance.
Dissenting Opinion
dissenting: I do not agree with my associates in tbe result reached in this case. The transcript before us embodies tbe record upon wbicb tbe order of the district court granting a new trial was made. Besides copies of tbe notice of appeal and the order from wbicb tbe appeal was taken, it consists of copies of tbe judgment roll and of a bill of exceptions settled by tbe judge at tbe instance of tbe plaintiffs at the time tbe order was granted. This bill includes not only copies of the affidavits referred to in tbe majority opinion as filed in support of tbe motion so far as it proceeded upon tbe ground of accident or surprise, but also a copy of a bill of exceptions settled at tbe instance of tbe defendant in support of other grounds laid in its motion. Nowhere in tbe record, however, do we find a copy of the motion to strike our tbe counterclaims pleaded in tbe answer, nor of tbe order overruling tbe same. For evidence that any such proceeding took place in tbe district court resort must be bad to- tbe opinion of tbe district judge rendered at tbe time tbe order granting a new trial was made and to tbe affidavits incorporated in the bill of exceptions. In tbe majority opinion tbe recitals contained in these papers are permitted to* supply tbe place of papers, to-wit, tbe motion and tbe order overruling it, wbicb tbe law re-'
Rehearing
ON MotioN tor Rehearing.
MR. JUSTICE MILBURN delivered tbe opinion of the court.
The plaintiffs have submitted a motion for a rehearing of this case, which was decided by this court on the 9th day of December, 1901; and, after considering the same, we are of the opinion that the general result reached in the original opinion is correct. Our attention having been called to the fact, however, that the findings of the referee in favor of the-plaintiffs were conceded to be correct and that three of the counterclaims of the defendant were properly allowed by the district court, it finding for the defendant for the amounts, claimed therein to be due, we think, under these circumstances,, that the order of affirmance is too broad and should be, and now is, modified to read as follows:
“The cause is remanded with direction to. the district court, to cause to be entered an order granting the defendant’s motion, for a new trial in so far only as are involved the matters presented by the counterclaims other than the three included in. the judgment, with leave to defendant to amend its answer.
Remanded with direction to the court to proceed as above-ordered.
Modified and affirmed.