3 Mont. 175 | Mont. | 1878
This is the second appeal that has been taken in this case, and it is not necessary to repeat the facts, which are stated in the opinion on the first appeal that has been reported. 2 Mon. 482. After this decision had been rendered, and the cause had been remanded to the court below for further proceedings, the respondents filed March 15, 1876, by leave of the court, their amended and'supplemental complaint, o This complaint was filed in open court and it was ordered that the appellant plead on or before March 18, 1876. No pleading was filed by the appellant, and the respondents moved for judgment December 7, 1876, and the court ordered that the appellant be permitted to answer to the merits upon the payment of all costs. At the hearing upon this motion, the appellant asked leave of the court to file a motion to strike this complaint from the files, because no copy had been served upon him or his attorney, and the amendments changed the parties to the action and the character thereof. The court refused to allow this motion to be filed and made no other order than that which has been mentioned. Afterward, the answer of Fort was filed, and the court sustained two motions by the respondents to strike out parts of the same, and refused to permit certain amendments to be made by the appellant. Afterward, the cause was referred and judgment was entered on the report of the referee in favor of the respondents for a certain sum of money.
The errors relied on by the appellant will be reviewed in the order in which they appear in the record. The appellant .contends that the court acquired no jurisdiction over him until a
It is also apparent that some of the matters relating to the appellant and the respondents remained undetermined, and the •cause was remanded to the court below to secure a trial of the same. This court established the legal and equitable relations of Fort and the respondents, and afforded a partial relief to the respondents, and the respondents were compelled to amend their pleadings to obtain a full and complete remedy in conformity with the decision in Roush v. Fort, supra. Under such circumstances, it would be proper to present these facts, which had occurred since the commencement of the action. Pomeroy on Remedies, § 566, and cases there cited. In Robinson v. Willoughby, 67 N. C. 84, the action was brought to recover the possession of land under a deed which was absolute on its face. The <court, on appeal, held that the deed Avas a mortgage, and reversed
While the appellant was ordered to plead on or before March 18, 1876, no action was had in the cause until December 7,1876, and the default of the appellant might have been entered at any time between these dates. No excuse was offered to the court for this delay, and there was no error in the order, which the court made in the exercise of its discretion, that Fort must, answer to the merits and pay the costs. The circumstances that have been specified brought the parties within the seventy-sixth section of the Civil Practice Act, which authorizes the court, in furtherance of justice and on such terms as may be deemed proper, to enlarge the time for an answer.
After the appellant filed his answer, the court, on the motion of the respondents, struck therefrom a part which alleged that the respondents were indebted to the appellant in the sum of $1,492.24, on account of the judgment rendered in the action in which the appellant foreclosed his mortgage upon the property of the respondents, and prayed that the same might be revived and set off against the claims of the respondents^for rents and
The appellant cites the authorities, which decide that parties will not be remitted to another action, when the matters in controversy can be adjusted in one that is pending, and declare the principles applicable to set-off and counter-claim. This court has announced similar doctrines. Wells v. Clarkson, 2 Mon. 230; Boley v. Griswold, id. 447. In the last case, we held that a party who had filed a motion to set aside the satisfaction of a judgment and revive the same had no standing in a court of equity until the court had acted thereon favorably; and that without this decision, he had no debt which could be a set-off. Under the proceedings in the action by Fort to foreclose the mortgage, the property of the respondent was sold by the sheriff, who made his return showing that the judgment had been satisfied. This court in Roush v. Fort, supra, set aside the sale of the property by the officer to the appellant, and the appellant contends that the satisfaction of the judgment, to the amount that it was affected by this decision, should be vacated and the judgment pro tanto be revived. These demands of the appellant are lawful, and this court would promptly satisfy them, if we had the power to do so. The Civil Practice Act protects in the most ample mode the rights of the appellant and points out clearly his remedy. He was empowered to file a petition setting forth the foregoing facts, and the court below was required to revive the
The referee was instructed to report upon certain issues. The judgment that is appealed from limits our inquiry into the action of the referee to the following items of the accounts between the parties. After the property of the respondents had been sold by the officer, under the execution obtained by the appellant, there remained in the hands of Fort $107.76, which belonged to the respondents. Roush v. Fort, supra. If the sale had been confirmed by tliis court, the respondents would have been entitled to receive this amount. But the’respondents appealed from the judgment of the court below, and procured a favorable decision of this court by which the sale was set aside on account of the fraudulent conduct of the appellant. Instead of ratifying the act of Fort, their trustee, which the respondents might have done, they waived their claim to the sum of $107.76 and elected another remedy and must suffer the consequences. The amount of this sum, with the interest thereon from November 10,1871, to June 30, 1877, $168.51, was found by the referee to be due to the respondents and forms a part of the judgment entered in this
Under the directions of the court, the referee found that the value of the use and occupation of the property, which was bought by the appellant at the sheriff’s sale, from November 10, 1871, the date of the sale, to February 5,1876, when the sale was set aside, was $1,720. The officer delivered to the appellant November 10, 1871, a certificate of the sale, and, during the following six months, the respondents had the statutory right to redeem the property from the purchaser. Fort was not entitled to enter upon its possession, or receive the rents arising therefrom during this period. But under the agreement, which is referred to in Roush v. Fort, supra, the respondents made Fort their trustee and conferred upon him all the privileges of ownership of said property. What were the obligations of the appellant during this period % lie should have exercised the same prudence, care and diligence in the management of the estate and collection of the rents thereof, as men of ordinary diligence, care and prudence manifest in their own matters. Perry on Trusts, §§ 441, 527; Miller v. Proctor, 20 Ohio St. 442. In the order of reference, the court below required the referee to charge the appellant with the value of the rents, issues and profits of this property, which he might or should have received as the occupant from November 10,1871, to May 10,1872 and judgment was rendered upon the findings of the referee for the sum of $450, the value thereof. We have seen that the appellant was responsible to the respondents as their trustee, and not as an occupant of their property. What Fort might or should have received in these different relations affects to a great degree the amount which was found by the referee. The rule that was prescribed by the court was not authorized by law, and, as we cannot examine the testimony to determine the sum which should have been ascertained, we must strike from the judgment the sum of $450.
The appellant maintains that the court below could not divert the rents of the premises from their application on the judgment, which was recovered in the original action by Fort against the respondents. We have passed upon this question, and reiterate that there is no judgment in existence in favor of the appellant and against the respondents, because the appellant refuses or neglects to resort to the appropriate remedy to revive the same. A court cannot be required to do an impossible act, and we know of no mode by which these sums can be applied in payment of a judgment, which appears in the transcript to have been fully satisfied. Before the supplemental complaint was filed, this court had determined that a judgment, that had been satisfied, could not be a set-off until it had been revived. Boley v. Griswold, supra. The appellant ignored this decision by attempting to file his amended answer, and asking the court below to apply said amounts in satisfaction of said judgment.
The judgment of the court below is modified by striking therefrom the sum of $618.51, and in all other respects the judgment is affirmed.
Judgment affirmed.
This case was affirmed in Scherr v. Himmelmann, 53 Cal. 313. — B.