Bennett v. Meeker

• Decision Date: 14 November 1921
• Docket Number: 4479.
• Citation: 202 P. 203,61 Mont. 307
• Parties: BENNETT v. MEEKER.
• Court: Montana Supreme Court

202 P. 203

61 Mont. 307

BENNETT v. MEEKER.

No. 4479.

Supreme Court of Montana

November 14, 1921

Commissioners' Opinion.

Appeal from District Court, Gallatin County; Ben. B. Law, Judge.

Action by George Bennett against Vina Meeker. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Reversed and remanded, with directions.

Gibson & Smith, of Livingston, for appellant.

Keister & Bath, of Bozeman, for respondent.

JACKSON C.

This is an action in claim and delivery to recover the possession of a cow and increase two calves. The cause was first tried to a justice of the peace and judgment rendered for plaintiff. Upon appeal a trial was had in the district court, a jury being waived by both parties. Judgment was duly given and entered for the plaintiff. From the judgment and the order denying a motion for a new trial defendant appeals.

There is no conflict in the evidence. It appears that in the fall of 1914, the cow strayed from plaintiff, and came, along with defendant's cattle, to her ranch, and that she made diligent inquiry of the range riders, and also advertised in the Shields Valley Record, a weekly, published at Wilsall Park county, Mont., and generally circulated in the neighborhood of her ranch, to ascertain the owner. In the advertisements, the brand was first described as EK, and later, after the cow had been sheared it looked like 5K, and was described accordingly in the advertisement. Both parties herein live in Gallatin county, Mont.

In December, 1914, or January, 1915, one Edgar Gibson, a resident of Clyde Park, Park county, Mont., claimed the cow as his property, and sold it to defendant for the sum of $25. Defendant has ever since the animal came to her ranch retained open possession of the cow and her increase. In the summer of 1917, plaintiff, after having continuously searched for it and made inquiries among his neighbors, appeared at defendant's ranch and demanded the cow. It bore his recorded brand, 5K. There is no question raised as to the identity or ownership of the animal, but defendant contends that the action for its possession is barred by the statute of limitations (subdivision 3 of section 6449, Rev. Codes, as amended by chapter 47 of the Session Laws of 1917). The pertinent portion of the amended section reads as follows:

"Section 6449. Within two years:

1. An action upon a liability created by statute other than a penalty of forfeiture.

2. An action for waste or trespass on real or personal property provided that, when the waste or trespass is committed by reason of underground work upon any mining claim, the cause of action shall not be deemed to have accrued, until the discovery by the aggrieved party of the facts constituting such waste or trespass.

3. An action for taking, detaining or injuring any goods or chattels including actions for the specific recovery of personal property.

4. An action for relief on the ground of fraud or mistake the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.

5. An action for killing or injuring stock by a railroad corporation or company."

This is not an action for relief on the grounds of fraud or mistake under the fourth subdivision, as this applies only to actions for fraud or mistake within the common acceptance of the term. Havird v. Lung, 19 Idaho, 790, 115 P. 930, and cases cited.

The law is well settled that in construing a statute, we must ascertain if possible the intent of the Legislature in enacting it, and so construe it as to give effect to that intention.

It will be observed that under subdivisions 2 and 4 the cause of action does not accrue until a discovery is made by the party aggrieved. No mention of any such discovery appears in subdivision 3, under which this action is brought, and we cannot read into it that which the Legislature, with apparent design, omitted. When, then, did this plaintiff have the right to sue for his property? Plaintiff's position is that the statute does not apply because he was diligent in search for his animal and on account of defendant's failure to advertise in Gallatin county, and likewise to correspond with the recorder of brands, and that therefore defendant was guilty of...