242 P. 421 | Mont. | 1925
Lead Opinion
On motion for a rehearing it has been thought best to make some changes in the original opinion so as to remove doubt as to the proper practice to be pursued in such cases as this. Therefore, the original opinion is withdrawn, this one substituted, and the respondents' motion for a rehearing denied.
This is an original application for a writ of prohibition. An alternative writ was issued, made returnable October 28, 1925. The respondents filed a motion to quash the writ and the matter was regularly brought on for hearing and argument on the day set, pursuant to the order of this court. From the affidavit filed on behalf of the relator in application for the writ, and facts stipulated by counsel, the salient facts appear.
In a mandamus proceeding instituted in the district court of Golden Valley county, one Dana L. Case therein secured a peremptory writ, directed to H.A. Bolles as county treasurer and the board of county commissioners of Golden Valley county, requiring them to make provision for the payment of certain county warrants held by the relator. By the judgment the relator was awarded his costs, and among other things it is therein provided that "this decree is given without prejudice to relator's claim for or right to recover the damage he has sustained on account of these proceedings." *124
Judgment was entered therein on December 22, 1924, and a peremptory writ issued forthwith. An appeal was perfected to this court from the judgment, and on June 29, 1925, the judgment was affirmed. (State ex rel. Case v. Bolles, County Treasurer,
The only question presented for determination is whether the district court now has jurisdiction to proceed with the assessment of such damages as may have been suffered by the relator in the mandamus action.
So far as pertinent, the statute governing the allowance of such damages provides: "If judgment be given for the applicant, he may recover the damages which he has sustained, as found by the jury, or as may be determined by the court or referees, upon a reference to be ordered, together with costs; and for such damages and costs an execution may issue; and a peremptory mandate must also be awarded without *125 delay." (Sec. 9858, Rev. Codes 1921, as amended by Chap. 5, Laws of 1925.)
"A statute must be so construed as to give effect to all its[1] parts and no part of it will be held inoperative if it is reasonably possible to reach any other conclusion." (City ofBillings v. Public Service Co.,
Applying these rules of construction we are of opinion that[2] the practice in legislative contemplation and by the statute intended to be prescribed, more clearly stated, is that after the applicant for a writ of mandate shall have made primafacie showing of right to the issuance of such writ, should he claim damages consequent upon having been required to resort tomandamus proceedings, he shall assert right thereto and submit such proofs as he may have covering the several items of damage claimed. At the conclusion of the hearing, should the court determine that the writ shall issue, judgment thereupon shall be entered awarding the applicant a peremptory writ and such damages as he may be found to have sustained *126 incident to the proceeding, together with his costs. Thereupon a peremptory writ will issue forthwith, and the applicant may secure the issuance of an execution for the amount of damages and costs awarded him in the judgment.
The statute is silent as to the proper course to be pursued in making claim for the damages authorized to be awarded, and with propriety some future legislative assembly may specifically outline the proper procedure. In the absence of definite direction as to the proper practice in such cases, we think the applicant for the writ may with propriety make claim in his original application for such damages as can then be reasonably anticipated; or the course pursued in the instant case by filing in the action a bill of particulars, covering the several items of damages claimed, would be unobjectionable if adopted before conclusion of the hearing. Where the method of procedure is not definitely pointed out by a statute conferring a specific right, any suitable mode of procedure may be resorted to which may appear best to conform to the spirit of the law. (Sec. 8882, Rev. Codes 1921.) Manifestly, however, the right to recover damages must be claimed and proof submitted in support thereof before the conclusion of the hearing; otherwise the court, after final judgment entered, is without jurisdiction to make award thereof. In this case the attempt made in the judgment to reserve the applicant's right to damages sustained on account of the proceeding was wholly gratuitous and may be treated as surplusage.
Under the statute as we interpret it the demand is not[3, 4] segregable. This being so all rights involved in themandamus proceeding properly triable in the district court must be adjudicated therein. Mandamus being an action at law rather than in equity judgment therein is conclusive as to all of the relator's rights properly involved therein, whether asserted or not. (Sec. 10561, Rev. Codes 1921.) One versed in the law cannot conceive of a court by its judgment finding the amount of the plaintiff's actual damages and in the same *127 judgment making reservation to him of such prospective damages as he may thereafter suffer to be tried out in the same action. Were it to so do it is manifest that such attempted reservation would be wholly disregarded as a nullity. An attempted reservation of such a right would be clearly unavailing, and so too inmandamus, under the construction we have given the statute. A reservation of rights involved may be and is frequently effectually made in a decree in equity, but not so in a judgment at law, as to matters properly embraced in the action.
"An adjudication is final and conclusive not only as to the matter actually determined, but as to every matter which the parties might have litigated and have had decided as an incident to, or essentially connected with, the subject matter of the litigation, and every matter coming within the legitimate purview of the original action, both in respect to matters of claim and of defense." (Harris v. Harris, 36 Barb. (N.Y.) 88; Gray v.Dougherty,
From the record it would appear that the applicant for the writ waived his right to damages incident to the proceeding as he neither asserted claim thereto nor submitted any proof upon which the court could base judgment as to the amount thereof. The language used in the statute is somewhat awkward and not easily interpreted and applied; however, we think the legislative intent as to the proper practice in such cases is as stated above. It cannot be given other interpretation without violating the canons of construction, and rendering inoperative the legislative intent. Such a construction of the statute makes it operative, the practice free from doubt, and *128
is consistent with former decisions of this court. In the case ofBailey v. Edwards,
While damages are allowable in such cases, they may not be recovered where the right thereto has neither been asserted nor proved. (16 Cal. Jur. 880; Beatty v. Clark Colony Water Co.,
In Achey v. Creech,
It is elementary that all questions which might be litigated in an action or proceeding of which the court has jurisdiction are res judicata as to all parties thereto and their privies. (24 Am. Eng. Ency. of Law, 2d ed., p. 781.) This rule has been applied to issues that might be litigated in proceedings to obtain a writ of mandamus. (Bailey v. Edwards, supra; HoltCounty v. National L. Ins. Co., 80 Fed. 686, 25 C.C.A. 469;Sauls v. Freeman,
The right of Mr. Case to recover the interest accrued and owing on the warrants must be determined in an independent action; and likewise, his claim to allowance of a reasonable attorney's fee consequent to the appeal of the mandamus case to this court, if such fee is recoverable at all. It being manifest that the district court is without jurisdiction to proceed further in the mandamus action, a peremptory writ of prohibition will issue forthwith.
Writ Issued.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES HOLLOWAY and MATTHEWS concur.
Dissenting Opinion
I agree with the construction of the mandamus statutes as declared in the foregoing opinion, but am not in accord with what is said concerning that portion of the judgment in the originalmandamus proceeding which declares: "This decree is given without prejudice to relator's claim for or right to recover the damage he has sustained on account of these proceedings." What motivated the court to insert this reservation, whether it was done by stipulation of the parties or caused by uncertainty as to the proper method of procedure, or both, does not appear, but this does not seem material to me. The important matter is that the reservation was incorporated.
Since the decision is grounded upon the hypothesis that the relator in the mandamus proceeding is now forever precluded from maintaining any action or proceeding for the recovery of any damages which he may have sustained incident thereto, it is needless to consider whether the particular method adopted by him — filing a motion therein after judgment — was the proper one, and I pass that matter. *131
If relator and respondents in the mandamus proceeding had prior to the hearing therein or during the progress thereof, for considerations which appeared sufficient to them, contracted between themselves that the damages incident to the proceeding which the relator might be entitled to recover should not be determined therein but might be recovered in a subsequent action or proceeding, I can perceive no reason why, under appropriate proceedings or in a proper action based on that contract, the relator might not recover such damages. Surely, the rule against splitting demands would not preclude him from doing so, since that rule is clearly for the benefit of a party defendant, and if he agrees to such splitting the courts will respect the agreement. (See cases cited in 1 R.C.L. 342, 343; 1 C.J. 1109, sec. 280.)
Even if the judgment containing this reservation was erroneous on its face, it was binding upon the parties to the suit unless and until reversed on appeal. As a fact, an appeal from that judgment was prosecuted in this court by the defendants in themandamus proceeding, but no complaint was made of this reservation and the judgment containing the reservation was affirmed in whole by this court. (State ex rel. Case v.Bolles,
As the basis of an action a judgment is considered as a contract of record. (15 R.C.L. 573; Story on Contracts, 5th ed., sec. 2; Chitty on Contracts, 11 Am. ed., 3; 1 Parsons on Contracts, 9th ed., 8.) Treating the reservation in the judgment as a contract of record, which has become res adjudicata, it appears to me that the parties to the mandamus proceeding now stand in the same relation thereto as though they had themselves entered into a formal contract, reserving to the relator therein the right by an appropriate proceeding thereafter to recover the damages which he had sustained incident to that proceeding. For this reason it is my conclusion that the declaration in the foregoing opinion to the effect that this reservation is a nullity, wholly gratuitous and should be treated as surplusage, is erroneous and from that portion thereof I dissent.