100 P. 203 | Mont. | 1909
delivered the opinion of the court.
Action for damages for a conversion. The property in controversy consisted of horses, mares, harness, saddles, and a buggy. After the usual averments of ownership and possession by plaintiff and of the value of the property, fixed at $1,600, the complaint alleges: That on July 19, 1905, the plaintiff, being in lawful possession thereof together with another large team and a heavy wagon and harness, was on his way to fulfill a teaming contract into which he had entered, requiring the use of all of said property; that defendants, well knowing that plaintiff was not indebted to them in any way, that they had no interest in the property or any right to take or detain it, and also that plaintiff was required to use it in order to fulfill his said contract, which would yield to him a profit of $500 within sixty
The answer contains specific denials of the material allegations of the complaint, except that it is admitted that' the property was of the value of $300. It then proceeds t'o justify the taking under an attachment alleged to have been issued in an action brought by the defendant's, J. A. & J. B. Featherman, as copartners, against J. N. Shandy & Sons, also a co-partnership, of which the plaintiff was a member, in a justice’s court in Granite county, in which judgment was on July 24, 1905, rendered in favor of J. A. & J. B. Featherman, and under an execution issued thereon on the same day to the defendant McDonald, who, as sheriff of Granite county, sold the property to satisfy the judgment. Upon this justification there was issue by reply, denying each allegation as to the bringing of the action, the issuance and service of process therein, the entry of judgment, the existence of the copartnership of J. N. Shandy & Sons, and the connection of plaintiff therewith. It then proceeds at length, by way of special allegations, to attack the judgment on the ground that it was procured by fraud and collusion between the plaintiffs in that action and one G. W. Commons, a justice of the peace, without service of process upon the plaintiff herein and without appearance by him in the ac
1. The first contention made is that the defendants were prejudiced by the refusal of the court to strike out the portion of the replication referred to. The argument is that, since the jury were allowed to have with them during their deliberations the pleadings in the case, containing, as they do, many allegations argumentative in character, charging the defendants with gross wrongdoing, they had submitted to them illegitimate argument, which doubtless influenced them in reaching their conclusion upon the evidence. As we shall notice hereafter, however, upon objection of plaintiff that the papers embodying the proceedings before the justice failed to show that he had jurisdiction of the cause or to render any judgment therein, the entire record was excluded; hence the only questions left to the jury to try were whether the defendants took and converted the property, and what was its value. The truth or falsity of the allegations touching the judgment was not at issue. The instructions submitted only the issues presented by the complaint and the denials in the answer. Under these conditions the objectionable matters were in fact withdrawn from the consideration of the jury, and, though the court erred in denying the motion, the error could not have resulted in prejudice. The judgment may not be reversed because of such error. (Revised Codes, see. 6593.)
2. The court permitted the plaintiff to introduce in evidence a photograph of one of the horses in controversy, taken a few days before the trial. This was objected to as immaterial. The evident purpose was to assist the jury in reaching a conclusion
During his cross-examination the plaintiff, after stating that, when a deputy sheriff took the property from his possession, he (the deputy) handed him two little papers, but that, as he could not read or write, he did not take them or have anything to do with them, said: “This was on the 19th. There was a trial before Judge Commons at Drummond after that about three days. ’ * He was then asked: “How did you know there was a trial?” Upon objection by counsel he was not permitted to answer. It is said that the ruling was an improper restriction of the right of cross-examination. This right extends not only to the matters of fact testified to by the witnesses in chief, but also to all facts and circumstances directly or indirectly connected therewith, which tend to enlighten the jury upon the question at issue. (Kipp v. Silverman, 25 Mont. 296, 64 Pac. 884; Revised Codes, sec. 8021.) But the questioner may not, under the guise of cross-examination, go into the merits of his cause of action or
The most serious contention arises upon the action of the court in excluding from the evidence the record of the proceedings had in the justice’s court, offered in support of the justification pleaded in the answer. We are compelled to forego consideration of it, however, for the reason that the transcript contains none of these proceedings, and it is impossible to determine whether the action was properly instituted and resulted in a judgment against the plaintiff as a member of the copartnership of J. N. Shandy & Sons, or not. When the copy of the justice’s docket and the files in the case were offered, objection was made, among others, that it did not appear therefrom that an action had been instituted by the filing of a complaint with the justice. Since an action can be instituted only by the filing of a formal complaint, or, what is its equivalent, by the filing of a copy of the account, bill, bond or instrument upon which the action is brought, with a statement of the amount due thereon (Revised Codes, see. 6993), the justice could not issue an attachment or-proceed to judgment without this prerequisite. In the absence from the bill of exceptions of any copy of his docket and the files in the case, this court has nothing before it by which it can determine the propriety of the court’s action in excluding the evidence. Even if, as counsel insist, it was competent to-supplement the justice’s docket by oral evidence of the fact that a complaint was filed, which they offered to do, yet, since the-papers are not before us, we can only guess what legal effect should be assigned to them. The rule has frequently been announced by this court that it will not review the action of the trial court upon the exclusion of evidence, unless it is apparent from the question put to the witness what the evidence sought to be elicited is, or unless an offer of proof is made sufficiently ex
We are inclined to the opinion, though the point is not made by counsel, that even if the proceedings in the justice’s court were void, they were nevertheless admissible as tending to show good faith on the part of the defendants, and as rebutting any inference of malice. (Dorsey v. Manlove, 14 Cal. 553.)
After the transcript was filed in this court, counsel for defendants presented certified copies of all these proceedings and asked to have them considered a part of the record. This court has no power to add anything to the record made up by the district court. The review here must be upon the record as made, and upon which the order denying the motion for a new trial was predicated. (Robinson v. Helena L. & Ry. Co., ante, p. 222, 99 Pac. 837.)
Other errors are assigned upon the court’s rulings upon the admission and exclusion of evidence. In some instances no exception was saved to the ruling, and in others the contentions are not of sufficient merit to require special notice. For illustration, defendants contend that they should have been permitted to supplement the recitals in the justice’s docket by oral evidence showing that a complaint was filed, that a trial was regularly had after appearance and answer of defendants, and that judgment was thereupon rendered in conformity with the requirement's of the statute. In the absence of the record of the proceedings, however, it would be a matter of speculation to undertake a review of the court’s action in rejecting the evidence.
3. As a part of its charge, the court instructed the jury as follows: ‘ ‘ The court instructs the jury that if they believe from the evidence that the defendants in instituting the action and suing out the attachment and levying on the property mentioned
The contention is made that the complaint charges only that the taking was actuated by malice and fraud, and that the court in giving the instruction authorized the jury to consider an element of damage not covered by the pleading. This contention involves the assumption that, if the allegations of the complaint are broad enough, any malicious, fraudulent, or oppressive conduct on the part of the defendants in withholding the property after demand for its return should have been considered by the jury in determining whether the plaintiff was entitled to recover exemplary damages. This assumption seems to be proper. (Sedgwick on Damages, sec. 374; Taylor v. Morgan, 3 Watts (Pa.), 333; Dennis v. Barber, 6 Serg. & R. (Pa.) 420.) In our opinion the complaint is broad enough in its scope to warrant inquiry into the motives and behavior of the defendants not only at the time of taking, but also after demand made, for the allegation is: “That said defendants, well knowing that this plaintiff was in no manner indebted to them or either of them, and that they and neither of them had any right or authority to
4. Some contention is made that the verdict is not justified by the evidence, in that it is much in excess of the value of the property as fixed by all witnesses except the plaintiff, and that the amount found cannot be based upon the statement of any one of the witnesses. Upon examination of the evidence we find this statement to be true; but it is impossible to determine therefrom how much the jury awarded to the plaintiff in the way of exemplary damages. If we take the highest value fixed for the property by the witnesses for the defendants, and add to it the amount of money the plaintiff spent in pursuit of his property prior to the bringing of the action, about which there seems to be no dispute, this makes a sum which leaves a comparatively small margin for exemplary damages, if in fact the jury awarded such. At best we cannot arrive at any other conclusion than that the verdict is well within the purview of the evidence, and, since the allowance of exemplary damages was within the discretion of the jury, we do not think that we should disturb their verdict.
Let the judgment and order be affirmed.
Affirmed.