216 P. 791 | Mont. | 1923
District Judge, sitting in place of MR. JUSTICE GALEN, disqualified, delivered the opinion of the court.
Sufficient statement of the issues as defined by the pleadings is contained in the two former opinions of this court and need not be repeated here. (Union Bank & Tr. Co. v. Himmelbauer, 56 Mont. 82, 181 Pac. 332; Id., 57 Mont. 438, 188 Pac.
The facts essential to a determination of the question here
The complaint alleges a cause of action against the defendants as makers of both the note and mortgage, but plaintiff’s reply, admitting the allegations of the answer that Mabel Himmelbauer did not sign the mortgage, left but one theory open to plaintiff upon which it could prevail if at all, viz., that even though she did not sign the mortgage .she was nevertheless bound by its terms by reason of its being a part of the one transaction between the plaintiff bank, herself, and husband, the purpose and the details of which she knew and consented to. There is not any allegation in the complaint or
It is elementary in pleading that all elements essential to
The evidence of plaintiff not only fails to disclose that Mabel Himmelbauer had any knowledge of the mortgage in question or any of the facts and circumstances surrounding its execution, but it affirmatively appears from the uncontradieted testimony of the defendant that she had no knowledge of, gave no consent to, nor was present at the delivery of, the chattel mortgage at the time of its execution.
Under the only theory available to the plaintiff it not only commenced its action prematurely, but the proof is insufficient to sustain the judgment.
The judgment is reversed and the caused remanded to the district court, with directions to enter judgment dismissing the complaint and for defendant’s costs.
Reversed and remanded.