144 P. 159 | Mont. | 1914
delivered the opinion of the court.
Mandamus. The petition avers -the following facts: The relator, a ferry company, filed its complaint in the district court of Sheridan county, seeking to recover from one II. G. Hinz $500 damages for the alleged cutting of its ferry cable and to procure a decree enjoining him from interfering with it in the use and operation of a public ferry near Culbertson. Hinz answered joining issue and pleading a counterclaim in damages to the amount of $1,000 for trespass by the relator, in occupying certain of his lands without his permission for its ferry equipment and approaches. The relator did not reply, and after the time for filing a reply had passed, Hinz moved for judgment. The default of relator for failure to reply was entered by the clerk, and thereafter the cause “came on regularly for trial’-’ before the court sitting with a jury, upon the amount of damages sustained by Hinz under the allegations of his counterclaim. A verdict for $900 was rendered and judgment was entered accordingly. Thereafter the relator served and filed its notice of intention to move for a new trial which, upon motion of Hinz, was stricken from the files. The peremptory writ of mandate of this court is now sought to compel the district court to reinstate the notice of intention and thereafter to proceed as may be proper.
It is elementary law that the writ of mandate will not
That the counterclaim was sufficient and required a. reply
The solution of the problem thus presented depends not so much upon what was done at the hearing as upon what was required to be done. A new trial is the re-examination of an issue of fact (Rev. Codes, sec. 6793); and unless there was an issue of fact to be tried, and which may now be re-examined, neither the participation of relator in the proceedings nor the unnecessary formality with which they were clothed can be decisive. What an “issue of fact” is and how it must be raised to be the subject of a retrial are thus settled by our Code and by the decisions of this court: “An issue of fact arises * * * 1. Upon a denial, contained in the answer, of a material allegation of the complaint; or upon an allegation, contained in the answer, that the defendant has not sufficient knowledge or information to form a belief, with respect to a material allegation of the complaint. 2. Upon a similar denial or allegation, contained in the reply, with respect to a material allegation of the answer. * * * ” (Rev. Codes, see. 6723; Code Civ. Proc. 1895, see. 1033.) “A new trial is a re-examination of an issue of fact. * * * The expression ‘issue of fact,’ used in its broader sense, would include every issue of fact, whether arising upon formal pleadings or upon a motion. As used here, however, it refers only to issues of fact raised by formal pleadings, as defined in section 1033
In aid of its general contention, and in avoidance of the apparent effect of the foregoing expressions, the relator insists that in an action ex delicto the amount of damages claimed is not a material allegation,- that default in such an action does not admit the amount of damages but has the effect of an interlocutory judgment only, leaving the amount of damages to be determined by the proof; that in the assessment of damages the party in default “may appear and demand a trial by a jury; that he may cross-examine the witnesses called by the plaintiff; that he may call other witnesses and prove any matter which properly goes to extenuate or mitigate the damages; that he may prove all the facts and circumstances relating to any immediate provocation, which, in judgment of the law, tends to mitigate damages; that he may require the court to give to the jury proper instructions as to the measure and extent of damages; that he may by himself . and counsel argue the question of damages; that he may move for a new trial; and that he may reserve by bill of exceptions any question affecting the.assessment of damages.” These propositions, collected from Briggs et al. v. Sneghan et al., 45 Ind. 14, are claimed to have support in Loeb v. Kamak, 1 Mont. 152; but a consideration of both cases will establish, we think, that they do not enforce the possibility of a new trial under the conditions stated. In this
It is quite true that in actions ex delicto where the defendant has failed to answer or the plaintiff to reply, the court'“may order the damages to be assessed by a jury” (Rev. Codes, secs. 6719, 6762); but, whatever may be the nature or underlying theory of such a proceeding, it is clearly not the trial of an issue of fact raised by the pleadings. In Yellowstone R. R. Co. v. Bridger Coal Co., 34 Mont. 545, 115 Am. St. Rep. 546, 9 Ann.
The question at bar is thus discussed in Foley v. Foley, 120 Cal. 33, 65 Am. St. Rep. 147, 52 Pac. 122. “As to the appeals from the orders denying the motions of defendants for a new trial, they cannot be entertained. A motion for a new trial is not an appropriate proceeding to review the action of the court in giving judgment in a case where there has been no trial upon issues of fact. (Hayne on New Trial and Appeal, sec. 443; Savings etc. Soc. v. Meeks, 66 Cal. 371, 5 Pac. 624; Gregory v. Gregory, 102 Cal. 50, 36 Pac. 364; In re Heldt, 98 Cal. 553, 33 Pac. 549.) In this ease there was no such trial, the judgment being by default against both defendants. * * * In such a case there is no office to be subserved by a new trial. A new trial is ‘a re-examination of an issue of fact’ (Code Civ. Proc., sec. 656); and, unless such an issue has been raised and tried, there is nothing which can be reviewed by this method.
“While appellants concede this to be the law in actions other than for divorce, they contend that in the latter class of cases there is always of necessity a trial of issues of fact; that the law raises such issues whether the defendant answers or not. But this is a misapprehension of the effect of the statute. The
■ Since there is no issue of fact presented by the pleadings to be re-examined, there can be no new trial; and since there can be no new trial, the court is under no legal duty to restore relator’s notice of intention,-because it can serve no purpose in the files. (State ex rel. Heinze v. District Court, supra, 28 Mont., at page 236.) The proceedings are therefore dismissed at the cost of relator.
Dismissed.