Baker v. Butte City Water Co.
| Decision Date | 20 May 1903 |
| Citation | 72 P. 617,28 Mont. 222 |
| Parties | BAKER v. BUTTE CITY WATER CO. |
| Court | Montana Supreme Court |
Commissioners' Opinion. Appeal from District Court, Silver Bow County; John Lindsay, Judge.
Action by Ben Baker against the Butte City Water Company. Judgment for plaintiff. Defendant appeals. Affirmed.
T Bailey Lee and Forbis & Evans, for appellant.
J. E Healy, for respondent.
This was an action in ejectment. Plaintiff alleged ownership of the premises in question, an illegal ouster therefrom by defendant, and an unlawful withholding of the possession thus acquired. The defendant denied plaintiff's ownership and that the ouster was illegal. It then affirmatively alleged "that at all times mentioned in plaintiff's complaint it was, and now is, the owner of, in possession of and entitled to the possession of the premises described in plaintiff's complaint." The question of the possession of the premises was not, therefore, an issue in the case. Plaintiff testified without objection that defendant was in possession of the property, and the court instructed the jury as follows: "You are instructed in this case that the defendant is in possession of the premises in dispute, and it devolves upon the plaintiff to establish by a preponderance of the testimony his right to the possession of said premises by showing a valid location; and if he fails in this respect, your verdict must be for the defendant." At the close of the case the defendant requested four special interrogatories to be submitted for findings by the jury, of which that marked "No. 1" was as follows: "Was the defendant in this action, the Butte City Water Company, at the date of the commencement of this action, in possession of the ground in controversy?" The court complied with defendant's request in this regard. The record does not disclose whether plaintiff objected to the submission of this question, but the statement and bill of exceptions were prepared and presented by defendant, and settled in his behalf, and could not properly contain plaintiff's objections or exceptions. Westheimer v. Goodkind, 24 Mont. 90, 60 P. 813. So that no presumption can be indulged as to whether plaintiff objected or consented to its submission. It is very clear that the court ought not to have submitted this question to the jury, because it was upon no issue involved in the case. The jury answered the question in the negative, and at the same time returned a general verdict for plaintiff, reciting therein "that the defendant withholds the possession of the same (the premises in dispute) from him." The record, therefore, discloses that the general verdict is inconsistent with this special finding. After the rendition of the verdict, plaintiff's attorney moved the court to enter judgment for plaintiff in accordance with the verdict of the jury, which motion, after a hearing, was sustained by the court. Defendant gave notice of intention to move for a new trial to be based upon "affidavits to be filed and upon a statement of the case to be prepared and settled." A statement on motion for a new trial and bill of exceptions was then settled. The record does not disclose whether a motion for a new trial was ever made or passed upon by the court. The appeal is taken from the judgment only.
The first error assigned is: "The court erred in setting aside finding No. 1." We cannot consider this alleged error for the following reasons:
First. The record does not disclose either a specific objection or exception to the action of the court in that regard. The question arose upon the hearing of plaintiff's motion for judgment upon the verdict. The court, in its ruling, stated "This day motion to adopt findings and for judgment is argued by counsel, and by the court sustained, with the exception of finding No. 1, and judgment is ordered entered herein in accordance with said verdict." No objection to this action of the court in regard to the special finding is disclosed by the record. The only exception we find, which, by any possible construction, could be held to refer to this action of the court, is stated as follows: "The court ordered judgment entered in favor of plaintiff and against defendant, to which action of the court, and the whole thereof, the defendant then and there duly excepted." In other words, counsel did not specifically object to the action of the court below in disregarding finding No. 1, and did not specifically except thereto, but relied entirely upon an exception to the entry of judgment. We do not think that...
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