32 Mont. 80 | Mont. | 1905
prepared the opinion for the court:
This action was commenced to recover damages in the sum of $22,050 for the wrongful acts of defendant Bretherton' and one John D. Thomas in his lifetime in procuring in a certain suit in the district court of the county of Silver Bow the appointment of a receiver of the business and property of the Thornton-Thomas Mercantile Company (hereafter referred to as the “company”), and causing the loss of its accounts and merchandise.
The plaintiff was organized as a corporation in 1890 under the laws of this state for the purpose of carrying on a general mercantile and grocery business in Butte, and was engaged therein until the receiver assumed possession of its business and property. On or about October 6, 1897, said John D. Thomas and Bretherton commenced an action in said district court against the company, and asked for the appointment of a receiver to take possession of its business and property, and
The issues presented in the pleadings appear in the following summary: The complaint alleges that at the time said receiver was appointed the company was carrying on a large business with profit, and was solvent; that the value of its stock of goods and property used in its business was $7,800; that its accounts and bills receivable amounted to the sum of' $15,000; that the costs and expenses incurred in and about, said writ of certiorari to protect its rights were $1,050, and that all its profits, assets, and credits were lost except the sum of $1,500. The answer denies that the company, at the times mentioned in the complaint, was solvent, or carrying on a large-business with profit, but avers that at the time of the appointment of said receiver said company was insolvent, and conducting its business at a loss; denies that said stock was of any greater value than $3,213.39; denies that its accounts and bills
It is the contention of appellants that the right of action, so far as it relates to Mattie A. Thomas as executrix, abated with the death of John D. Thomas, and that the maxim of the common law, “A personal right of action dies with the person,” has not been modified by the statute. Section 2133 of the Code of Civil Procedure is as follows: “Any person or his personal representative may maintain an action against the executor or administrator of any testator or intestate who in his lifetime has wasted, destroyed, taken or carried away, or converted to his own use, the goods or chattels of any such person, or committed any trespass on the real estate of such
The case of Coleman v. Woodworth, 28 Cal. 568, was decided in 1865, and the statement of facts is as follows: “Charles Doane was sheriff of the city and county of San Francisco, and as such, an execution on a judgment in favor of N. C. Lane and against Harvey Dickinson was placed in his hands. By virtue of the execution, Doane seized personal property claimed by plaintiffs, and they brought an action against him for the wrongful taking and conversion of the same. Pending the action Doane died, and plaintiff’s attorneys suggested his death, and moved that his administrators be substituted as defendants in the action. The court granted the motion, defendants’ counsel excepting.” Chief Justice Sanderson, for the court, said: “The first point made by counsel for appellants, to the effect that the cause of action set forth in the complaint does not survive against the personal representative of the defendant’s intestate, is answered by the one hundred and ninety-seventh section of the Act to regulate the settlement of the estates of deceased persons, which provides that.” The statute quoted in the opinion is identical with the section supra. The court approves Coleman v. Woodworth, supra, in Fox v. Hale & N. S. M. Co., 108 Cal. 483, 41 Pac. 330, and says: “The right of the plaintiff to ‘maintain’ the action against the executors of Hobart is fully authorized by section 1584 of the Code of Civil Procedure.” The supreme court of Htah followed these authorities, and said, “It has been held likewise in California under a statute like ours.” (Warren v. Robinson, 21 Utah, 445, 61 Pac. 30.) We accept this construction of our statute which has so long prevailed in California, and affirm the ruling of the court below that this action can be maintained against Mattie A. Thomas as the executrix of John D. Thomas.
On the trial the plaintiff (respondent) offered in evidence without objection the following papers in the files of the case of John D. Thomas and Bretherton against the company,
It is contended that the court erred in overruling this objection and in allowing the opinion of the supreme court to be admitted in evidence, on the ground that the same forms no part of the records, and cannot be evidence to prove any fact, and on the further ground that the counsel in the receivership case and the judge appointing the receiver are censured therein in severe terms, and that such comments of the highest tribunal
Tbe official character of these records is established by tbe statute and rule of this court: “A copy of tbe judgment, signed by tbe clerk, entered upon or attached to tbe writ and return, constitute tbe judgment-roll.” (Section 1950, Code of Civil ' Procedure.) “A copy of tbe opinion will accompany tbe remittitur when tbe judgment or order of tbe trial court is reversed or modified and tbe case remanded for further proceedings other than tbe entry of a final judgment or order determining tbe proceedings in tbe trial court.” (Bule 19, Supreme Court, 57 Pac. viii.) This court bas held repeatedly that a party complaining of error must stand or fall upon tbe ground relied on in tbe trial court. (Fisk v. Cuthbert, 2 Mont. 593; Rutherford v. Talent, 6 Mont. 132, 9 Pac. 821; Brand v. Servoss, 11 Mont. 86, 27 Pac. 407; State v. Black, 15 Mont. 143, 38 Pac. 674, and cases cited.) Tbe court below did not have its attention called to tbe objections which are urged for tbe first time in this court. Tbe appellants deem tbe reason of tbe court for tbe admission of this evidence “wholly insufficient.” This was substantially that defendants contend that plaintiff was not entitled to recover without showing malice or want of probable cause in bringing tbe action for tbe appointment of tbe receiver, and tbe appellants adhere to tbe theory in this court. At this point in tbe trial no oral testimony bad been offered, and tbe evidence comprising tbe above-named records was introductory. It is apparent that both parties were then of tbe opinion that tbe plaintiff must prove inalice or want of probable cause in tbe commencement of tbe receivership case, and tbe ruling was correct.
Irrespective of this view, tbe exception should be further examined. We have enumerated tbe papers which were received
Three exceptions were saved to the ruling of the court regarding a so-called “blacklist” embracing accounts of customers due to plaintiff, in arrears, but not necessarily bad. The bookkeeper of the company prepared reports of such accounts for the Grocers’ Protective Association. The questions involved in these rulings are settled by the following paragraph of the bill of exceptions: “Said original blacklist, so called, was then and there present in court among the books and papers identified by witness Fraser as the books and papers of the company, and was offered and admitted in evidence by the court without objection at the same time that said other books and papers were offered and admitted, and said original blacklist, of which exhibit ‘BE’ purported to be a partial copy, was then and there before the court and jury.”
"Witness Lutey testified that he was talking to Eraser about the grocery business, and an objection was sustained to what Eraser had said as incompetent and not binding upon the plaintiff. The transcript does not throw any light upon this exception. The appellants did not make any offer of proof of the conversation between Eraser and the witness, or that anything was said while Eraser was acting as the agent of the company, within the scope of his authority.
D. P. O’Connor, an expert bookkeeper, testified: “I find upon the books of the * * * company the account of Mrs. L. A. Thornton.” The following question was then put to the witness: “You may state what the amount of that account was.” The defendants interposed an objection that this was-“incompetent, irrelevant and immaterial.” After an explanation had been made to the court of the object of the testimony, counsel for defendants said: “Objected to further for the reason that the element of damages which he is attempting to prove is not a proper element of damages to be considered by the jury, and is too remote, and the evidence is speculative, and is incompetent, irrelevant and immaterial.” Counsel for plaintiff then said: “We will show that this lady (Mrs. Thornton) was perfectly solvent, and that the amount of this account, $3,069, was collectible, and was perfectly good, and that by reason of the appointment of this receiver the account was lost.” The court then ruled: “If the conditions are as you say, that it was collectible, you may show that.” The witness answered: “Yes, I have such an account. The account is $3,069.65, Mrs. L. A. Thornton.” There is no dispute about the amount of this indebtedness, and under the offer of proof the objections to-the testimony were without merit.
James-W. Porbis testified in chief that said account of Mrs. Thornton was good and collectible in October, 1897. On cross-examination the witness testified, “I have acted as the attorney for Mrs. Thornton. Question by defendants: Have you not made an arrangement, either with the officers or the attorneys of W. A. Clark & Brother, that, if the account of Mrs. Thornton can be proved, so that it is shown that that amount is owing by her, that she would still pay the judgment, and not claim the statute of limitations ? Answer: There is absolutely
In Lockhart v. Gee, 3 Tenn. Ch. 332, the complainant had a receiver appointed to take charge of all of certain property .and collect the rents, but the supreme court of Tennessee decided that the appointment was illegal. The chancellor said: “Having no right to a receiver, the complainant is, of course, liable to the defendants for all the consequences of having had one appointed.”
In Terrell v. Ingersoll, 10 Lea, 77, the complainant obtained an injunction to restrain the defendants from receiving moneys, on notes and accounts belonging to the partnership, and asked for the appointment of a receiver to take possession of and collect the assets. The chancellor granted the prayer and appointed a receiver, and afterward dissolved the injunction, and ordered a reference to a master to hear proof and ascertain what damages, if any, had been sustained by the defendants by reason of the wrongful suing out of the injunction. Judge Cooper, for the court, said: “The plaintiff in an action who wrongfully sues out a writ of injunction is liable for all the injury which proximately results from it, and must be held te active diligence in the conduct of all proceedings under it. It is his duty to see that a receiver is appointed to take charge of
In O’Mahoney v. Belmont, 62 N. Y. 133, the court said: “The appointment of the receiver in this action, and the subsequent proceedings had in regard to the same, was an invasion of the rights of the parties, calculated to waste and deplete the alleged fund, and not demanded by the nature of the action or the circumstances of the case. * * * It is sufficiently apparent that the entry of the order under the circumstances, 'by the attorney employed by and with the concurrence of the receiver, was an abuse of the proceedings, which cannot be disregarded, and for which he should be held responsible. It constituted him an intruder, and a trespasser upon the rights of the parties.”
In Day v. Bach, 87 N. Y. 56, the court said: “The authorities seem to establish these propositions: 1. That a void writ or process furnishes no justification to a party, and he is liable to an action for what has been done under it at any time, and it is not necessary that it should be set aside before bringing the action. (Brooks v. Hodgkinson, 4 Hurl. & N. 712.) * * * Where, however, property has been taken, the party against whom the writ issued is entitled to restitution from the party who sued out the writ, of any property or money of the defendant in his hands.”
In Dynes v. Hoover, 20 How. (U. S.) 65, 15 L. Ed. 838, the court said: “Such is the law in either case, in respect to the court, which acts without having jurisdiction over the subject matter; or which, having jurisdiction, disregards the rules of proceeding enjoined by the law for its exercise, so as to render the case coram non judice. * * * In both cases the law is, that an officer executing the process of a court which has acted without jurisdiction over the subject matter becomes a
Mr. Sutherland, in his work on Damages (third edition), says: “If a defendant is a trespasser from the beginning his defense wholly fails, and he is liable for the same sum in damages which he would be compelled to pay if he had gone on without any precept or pretense of authority and done all the acts proved upon him. * * * The facts and circumstances attending the trespass, as has already been stated, may always be proved, that the jury may understand its intrinsic character; to enable the plaintiffs to show'aggravations and bad motive, and to enable the defendant to controvert these; but the defendant, if guilty of the trespass, is bound to make reparation for the actual injury. Absence of bad motive and of all aggravations cannot relieve him from making full compensation for property taken, destroyed, or injured. An admission of counsel on the trial of an action of trespass that the defendant acted without malice will preclude the plaintiff from claiming vindictive damages; and therefore evidence on the part of the defendant in the nature of justification of his tortious act is inadmissible by way of mitigation.” (Section 1107.)
Under the authorities, John D. Thomas, Bretherton, and the receiver were trespassers ab initio, and their acts particularly described in the complaint cannot be justified. The plaintiff does not demand as damages interest, prospective profits, or exemplary damages, and the allegations of the complaint concerning the extent of the business of the company, or the conduct of said trespassers tending to show fraud, oppression, or malice, must be treated as surplusage. The defendants did not plead any facts in mitigation of damages, and the jury were required to find the market value of said stock of goods, property used in said business, and accounts and bills receivable at the time said receiver took possession thereof, and also the costs and expenses incurred in the certiorari proceedings.
The measure of damages is defined by the provisions of the Civil Code:
“Sec. 4330. Eor the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for .all the detriment proximately caused thereby, whether it could have been anticipated or not.”
“Sec. 4333. The detriment caused by the wrongful conversion of personal property is presumed to be: (1) The value of the property at the time of its conversion, with the interest from that time; or, where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; and (2), a fair compensation for the time and money properly expended in pursuit of the property.
“Sec.- 4334. The presumption declared by the last section cannot be repelled, in favor of one whose possession was wrongful from the beginning, by his subsequent application of the-property to the benefit of the owner, without his consent.”
The instructions given and refused are numerous, covering forty pages of the transcript, and will not be quoted fully. The first instruction is a prolix statement of all the issues set forth in the pleadings, regardless of their materiality, but the criticism of appellants that the court displayed therein partiality for the respondent is not well founded.
The third and fifth instructions are attacked because they ignore the questions of malice and want of probable cause. The appellants maintain that the plaintiff must prove the allegations of the complaint touching these matters in order to-recover any sum as damages. According to our view of the-law, these issues were rightfully eliminated from the consideration of the jury.
It is claimed that the instructions numbered 6 and 17, requested by plaintiff, are inconsistent and contradictory. The sixth instruction embodies sections of the Civil Code, supra,
Was this error prejudicial to the appellants ? The decision of this court in Robinson v. Mills, 25 Mont. 391, 65 Pac. 114, is directly in point. There was a conflict in the instructions, and Mr. Chief Justice Brantly, for the court, said: “That the conflict exists is clear, and it is impossible to reconcile it; but it does not therefor follow that the defendant is entitled to a. new trial. The rule is recognized by this court that, where the instructions are upon a material point, and are in conflict, a new trial will be granted, unless it also appears that the defendant has suffered no prejudice. (State v. Rolla, 21 Mont. 582, 55 Pac. 525 ; Heilbronner v. Lloyd, 17 Mont. 299, 42 Pac. 853.) If, however, the conflicting instructions are upon an immaterial point, and it is not reasonably apparent that the
There is no force in the argument of appellants relating to the sixteenth instruction, and we think the question of the responsibility of the receiver for the failure to collect the account from Mrs. Thornton was correctly submitted to the jury.
We are unable to perceive any inconsistency between the instruction numbered 1, given by the court of its own motion, and instruction numbered 13, given at the request of respondent. The said instruction numbered 1 recites the allegations of the complaint respecting the elements of the damages claimed in this action, and limits the respective amounts which can be recovered, making a total sum of $22,050. The thirteenth instruction is based upon the evidence with reference to the accounts in the books and the good or collectible notes of the company. The appellants contend that the following sentence in said thirteenth instruction is not law: “You are instructed that accounts having once been shown to be good and collectible are presumed to have continued so, and that the fact that the accounts appear upon the books of the company and are testified to have been good and collectible is evidence for your consideration of the value of those accounts.” This presumption is recognized in the Code of Civil Procedure: “All other presumptions are satisfactory, if uncontradicted. They are denominated disputable presumptions, and may be controverted by other evidence. The following are of that kind: * * *
It is also asserted that the instruction does not inform the jury that some of said accounts and bills receivable were taken possession of under a writ of attachment in the suit of W. A. Clark & Brother against the company to satisfy its indebtedness. Section 4334, Civil Code, covers this objection.
The twenty-second instruction mentions the judgment-rolls in five actions commenced against the company, in which some of the property in the possession of the receiver was levied on under execution and sold, and tells the jury that defendants are entitled to credit for the proceeds of the sales which were applied upon the payment of said judgments. Under the circumstances surrounding this entire transaction, the instruction allowing these amounts to be applied in this manner was favorable to the defendants.
All the instructions requested by the parties bear the names of the respective attorneys, and this is claimed to be error prejudicial to the appellants. The question has been disposed of by this court. (State v. McDonald, 27 Mont. 230, 70 Pac. 724; State v. Martin, 29 Mont. 273, 74 Pac. 725.)
The instructions requested by the defendants and refused by the court, viewed as a whole, are contrary to the principles of law upheld in this opinion, and, if given, must have resulted in a verdict for the defendants upon every proposition.
All the exceptions presented in the transcript have been examined, and we do not find any error of law entitling the appellants to a new trial.
We recommend that the judgment and order appealed from be affirmed.
Per Curiam. — Por the reasons stated in the foregoing opinion, the judgment and order are affirmed.
Affirmed.