Bank of Commerce of Owensboro v. Fuqua

• Decision Date: 14 December 1891
• Citation: 28 P. 291,11 Mont. 285
• Parties: BANK OF COMMERCE OF OWENSBORO v. FUQUA et al. [1]
• Court: Montana Supreme Court

28 P. 291

11 Mont. 285

BANK OF COMMERCE OF OWENSBORO v. FUQUA et al. ^[1]

Supreme Court of Montana

December 14, 1891

Appeal from district court, Lewis and Clarke county; WILLIAM H HUNT, Judge.

Action by the Bank of Commerce of Owensboro against J. A. Fuqua and others on a bill of exchange. Judgment for plaintiff. Defendant Crutcher appeals. Affirmed.

Thos C. Crutcher, for appellant.

Henry G. McIntire, for respondent.

HARWOOD J.

The bill of exchange sued on in this action was drawn for the principal sum of $4,000, and provided for interest at 6 per centum per annum after maturity until paid, and that "the parties hereto agree to pay all attorneys' fees in case of suit on this paper." The defendants, one of whom is appellant, were, according to the allegations of the complaint, both accepters and indorsers of said bill of exchange. Judgment was rendered against appellant, G. W Crutcher, one of the alleged accepters and indorsers, for the said principal sum of $4,000, together with $400 for attorneys' fees for services in prosecuting the action and costs of suit. This appeal is from that portion of the judgment relating to attorneys' fees allowed in said action. Respondent contends that an appeal from part of a judgment is not proper practice, and cites in support of his position the cases of Barkley v. Logan, 2 Mont. 296, determined at the August term, 1875, and the case of Plaisted v. Nowlan, Id. 359, determined at the January term, 1876, of the supreme court of Montana, in which latter case the former was again considered on motion for rehearing, and affirmed. These cases would support respondent's position but for the fact that since the determination of them the statute under which they were determined has been so amended as to provide for an appeal from the judgment, "or any part thereof." The sections of the statute (369 and 380) referred to in the cases cited are as found in the civil practice act, enacted by the seventh session of the legislative assembly, convened in 1871. Now, in 1877, about one year following the announcement of the decisions cited supra, the Code of Civil Procedure was revised by the legislative assembly at the tenth session thereof, and the same sections again appear in the Code as sections 408 and 431, (10th Sess. Laws,) and in the latter section appears the additional words, "or any part thereof," making the section read: "An appeal may be taken to the supreme court in the following cases: First, from a final judgment, or any part thereof, entered in an action or special proceeding commenced in those courts or brought into those courts from other courts." The statute has since remained in that form. We therefore hold that an appeal may be prosecuted from part of a judgment. See In re Davis' Estate, 11 Mont.--, 27 P. 342. In California, under statutes very similar, the practice is to entertain an appeal from part of a judgment. Hayne, New Trial & App. § 185, p. 562.

Appellant G. W. Crutcher, as a defendant in said action, appeared, and answered said complaint, and, among other averments, set forth two paragraphs as follows: "(4) This defendant, for answer to the seventh paragraph of said plaintiff's complaint, alleges that said attorneys' fees in said suit provided for were not due at the time this suit was filed. (5) And for further answer to said seventh paragraph he alleges that the bill herein sued on was, as alleged in said complaint, made in the state of Kentucky, and payable in that state, and said contract was to be wholly performed in that state, and that by the laws of the state of Kentucky the sum of two dollars and fifty cents, and no more, is provided for by the statutes of the said state of Kentucky in such cases, and that any contract for a greater sum as attorneys' fees is by the laws of said state of Kentucky illegal and void, and that no greater sum than two dollars and fifty cents can be recovered in said state under the contract set out in the complaint herein." These paragraphs plaintiff's counsel moved the court to strike out of said answer, on the ground that the averments therein contained were sham and irrelevant allegations, and constituted no defense to plaintiff's complaint. The court sustained said motion, and struck from the answer said paragraphs 4 and 5. The said motion and order appear in the record, and the appellant complains that the court erred in said proceedings; but respondent interposes the objection that said proceedings of the court below are not properly before this court for review on appeal from the judgment, because, as he contends, said motion and the order of the court thereon are not part of the judgment roll. This objection leads into a region of practice much debated by the profession and bench in this jurisdiction, commencing with the case of Noteware v. Sterns, 1 Mont. 314, and running through a number of decisions, which discussion, perhaps, as intimated by the learned judge in Barber v. Briscoe, 8 Mont. 214, 19 P. 589, has tended rather to entangle and obscure the region than to trace plain paths through it. If this be true, it warns us to look well to our bearings from the stand-point of statute and principle when we enter here. It may have so appeared, with much reason for it, to Justice LIDDELL, in treating that case; but with the opinion in that case and the statute we do not view the point with so much embarrassment, nor need we dwell long upon it. In the opinion just cited, section 290 of the Code, which prescribed what matters shall be deemed excepted to,-- i. e., what proceedings of the court the law reserves an exception to in favor of the party desiring to have the same reviewed,--was first considered. It is then observed: "When we come to examine the matters which are deemed excepted to it will be seen that there are two kinds,--those orders, decrees, and rulings which appear upon the face of the pleadings; and the other is of that class where the decision, order, or ruling is based upon evidence dehors the pleadings." And again: "The mere fact that the law has reserved an exception will not avail a party any more than if he had not excepted, unless the grounds and reasons, with so much of the evidence as is necessary to explain the point, be embodied in a bill of exceptions properly settled and signed, as is required by the Code of Civil Procedure. *** We have two lines of authorities *** founded upon the distinction above stated, perfectly in accord with the strict letter of the statute, and in conformity with the California authorities on the same subject. The second paragraph of section 306 of the Code of Civil Procedure defines what shall constitute the judgment roll, specifying the summons, pleadings, verdict, or findings of the court, Commissioner, or referee, all bills of exceptions taken and filed in said action, and copies of orders sustaining or overruling demurrers." The Montana cases are then reviewed, and it is further said: "From these cases it appears that when the order, decision, ruling, or other matter deemed excepted to by law is apparent upon the face of the pleadings, no formal bill of exceptions is necessary in order to have the ruling reviewed on appeal based upon the judgment roll." The correct distinction upon this point of practice appears to be there expressed, and, in our view, that case goes far towards reconciling the two lines of Montana cases which are mentioned as being wholly at variance. In the case at bar the judgment roll is brought here on appeal from the judgment, and we are asked to review an order striking out a portion of appellant's answer. This order is deemed excepted to by the provisions of section 290, Code Civil Proc. It is provided by section 306 of the Code that the judgment roll shall include, among other papers, all pleadings and copies of orders sustaining or overruling demurrers. Now, a motion to strike out a portion of a pleading is in fact and in substance a demurrer to that portion attacked.

This motion is used to trim off and cast out improper matter inserted in a pleading which contains proper averments, while the demurrer is made use of to root up and cast out the whole pleading at which it is directed. Bliss, Code P1. (2d Ed.) § 423. Such a motion being of the nature of a demurrer, which is part of the judgment roll, and the order sustaining the same being deemed excepted to, it is held reviewable on appeal from the judgment. In the case of Dodson v. Nevitt, 5 Mont. 518, 6 P. 358, a motion was made to strike out a counter-claim set up in the answer, and sustained. This proceeding was held reviewable on an appeal from the judgment, on the ground that such motion was in the nature of a demurrer.

Was the action of the court in striking out said paragraphs 4 and 5 erroneous? As to paragraph No. 4, we unhesitatingly deem it sham, and without force as a defense. The language of the clause in the bill of exchange as to attorneys' fees is "The parties hereto agree to pay all attorney's fees in case of suit on this paper." Appellant reasons that this is a promise of a certain sum upon the happening of a contingency, and until that contingency happens, and the attorney's fee is earned, by prosecuting the action to judgment, there is nothing to pay, and that such fee cannot be recovered in the same action. It seems to us that the contingency for the employment of an attorney arose when default was made in the payment of said bill, at the time and place of payment expressed therein; and that the attorney's fee, if lawful to be charged, was earned when judgment was obtained, and was proper to be allowed therein. It was incidental to the enforcement of said debt by suit, and was a proper part of the collection to be made in the same suit, if lawful at all. Paragraph No. 5...