139 P. 454 | Mont. | 1914
delivered the opinion of the court.
This proceeding, with its separate appeals from the judgment and from an order granting a new trial in the same case, aptly illustrates one of the anomalies of our appellate procedure. As the effect of an order granting a new trial is to set aside the verdict or other decision upon the facts and thus to abrogate the judgment founded thereon, and as the order granting the new trial in this case was entered before the notice of appeal from the judgment was filed, it would seem that there was no judgment to appeal from. The office of an appeal from the judgment is to present questions of law, but its effect, if successful, is to do what in this case has been done, viz., to abrogate the judgment. The effect of the order appealed from is, of course, conditional, and a reversal of it would operate to restore the judgment; so that, from this point of view, we are asked by one of these appeals to undo what by the other it is sought to have done.
The order granting a new trial was a general one and must be
Plaintiff, for a cause of action, alleges: That on July 25, 1910, she leased by written instrument to A. W. Waggoner and Melvina Waggoner certain premises in the city of Deer Lodge known as the Scott House, “together with certain personal property therein contained,” for the term of two years at the rental of $100 per month; that in consideration of the lease
■ It is stated in the brief of appellants, though without any warrant apparent in the record, that the new trial was granted because in the opinion of the district judge the counterclaim was
1. Thus premising, we take up the declaration of respondent that “the counterclaim of defendants was a cause of action in tort
In Collier v. Ervin, 3 Mont. 142, the word “transaction” was treated as though it meant the same as “contract,” and upon the authority of Wells v. Clarkson it was categorically remarked ■that a “counterclaim founded upon a tort cannot be set off
Finally, in Potter v. Lohse, 31 Mont. 91, 97, 77 Pac. 419, the opinion quotes the above dictum of Collier v. Ervin. The quotation was unnecessary, if not irrelevant. The action was in conversion and it was sought to plead a judgment wholly unrelated to the foundation of plaintiff’s claim and wholly unconnected with the subject of the action. It was properly held that this could not be done. This conclusion upon the facts was amply supported by the cases cited from New York; but the attitude of the New York courts upon the principles involved is illustrated by the authorities cited above.
According to the pleadings at bar, both parties ground themselves upon the relations created by the lease and bond, the execution of which was the beginning of the transaction between them. Then follow the entry into possession by the Waggoners; the occupancy of the premises by them, until the abandonment, as charged by the plaintiff, or until the eviction, as claimed by the defendants; the alleged default in the payment of rent; the re-entry by the plaintiff, including her seizure of the personal property of the Waggoners placed upon the premises under the authority of the lease; her refusal to surrender that property to them, and the divers other incidents and details which go to make up her right to sue and theirs to resist. Without taking each and all of these circumstances into account, the legal rela
There is another consideration. In the late case of First Nat. Bank v. Silver, 45 Mont. 231, 122 Pac. 584, a counterclaim for the conversion of personal property was explicitly allowed in an action upon a promissory note, upon the theory that the implied contract of the taker to pay the reasonable value of the property brought the counterclaim within the provisions of subdivision 2 of section 6541, notwithstanding that no express waiver of the tort appeared on the face of the pleadings.
2. It is further contended by respondent that the counterclaim
Touching the other feature, it is the settled law of this state
Without making any allowance to the plaintiff on her claim for personal property let to the Waggoners and not accounted for by them, she was entitled under the instructions to accrued rentals in the sum of $150, subject to such offsets as were established under the counterclaim. The verdict of the jury gave her $41, so that the counterclaim of defendants was allowed to the extent of $109 at the very least. The sufficiency of the evidence to justify any such allowance is doubtful; at all events as to anything more than a very small fraction of the amount awarded, it was questionable in quality and met by contradiction. The order granting a new trial might very well have been
Error is claimed to have occurred in the giving of instruction No. 13, and in the refusal of plaintiff’s proposed instructions
The order appealed from is affirmed and the appeal from the judgment is dismissed.