American Surety Co. of New York v. Kartowitz

• Decision Date: 17 January 1921
• Docket Number: 4708.
• Citation: 195 P. 99,59 Mont. 1
• Parties: AMERICAN SURETY CO. OF NEW YORK v. KARTOWITZ.
• Court: Montana Supreme Court

195 P. 99

59 Mont. 1

AMERICAN SURETY CO. OF NEW YORK v. KARTOWITZ.

No. 4708.

Supreme Court of Montana

January 17, 1921

Appeal from District Court, Hill County; H. C. Hall, Judge.

Action by the American Surety Company of New York, a corporation against Herman F. Kartowitz. From order denying motion to dissolve attachment, defendant appeals. Affirmed.

A. A Grorud, of Helena, for appellant.

Kline & Elwell, of Havre, for respondent.

HOLLOWAY J.

This action was instituted in May, 1915, a writ of attachment secured and property belonging to the defendant seized. Later a motion was made to dissolve the attachment, on the grounds that a sufficient affidavit had not been filed, and that a demurrer to the complaint had been sustained. The motion was overruled, with leave to renew it after the amended complaint was filed. On appeal to this court the order was affirmed. 54 Mont. 92, 166 P. 685. In January, 1919, defendant renewed the motion to dissolve upon the ground of insufficiency of the affidavit, but the record fails to disclose that the motion was acted upon. However, on January 27, 1919, by permission of the court, plaintiff filed an amended affidavit. On December 16, 1919, defendant again moved the court to dissolve the attachment upon the ground that the original affidavit was insufficient and incurable by amendment. The motion was denied, and this appeal was prosecuted.

At the same time that the last-mentioned motion was presented, a like motion was made by one A. Johnson, who claimed that he had purchased a portion of the attached property after the levy of the writ. The record does not disclose that Johnson was ever made a party to the action in the lower court, or that any disposition was ever made of his motion. He did not attempt to appeal, but has applied to this court to be made a party appellant and to be heard.

Whatever may be said of Johnson's right, under section 6684 Revised Codes, to interpose his motion in the lower court and have it heard and determined, the fact, so far as disclosed by this record, is that it has not been determined, and that he has not appealed. He cannot therefore obtain any relief from this court, except so far as the relief, if any, granted to Kartowitz, the appellant, may inure to his benefit. MacGinniss v. Boston & Mont., etc., Co., 29 Mont 428, 75 P. 89.

The defendant's appeal is altogether without merit. If, at the time he interposed his first motion to dissolve the attachment he had failed to incorporate any then existing ground of the motion, he would be held to have waived such ground thus omitted. King v. Pony Gold Mining Co., 24 Mont. 470, 62 P. 783. But, apparently, he then included in his motion the very ground relied upon in the motion now before us; in any event, the ground now relied upon was existent and available to him at the time his first motion was made. It is elementary that a party may not make successive application for relief upon the same ground ( Bown v. Somers, 55 Mont. 434, 178 P....