Bielenberg v. Higgins
| Decision Date | 13 May 1929 |
| Docket Number | 6457. |
| Citation | 277 P. 636,85 Mont. 69 |
| Parties | BIELENBERG v. HIGGINS et al. |
| Court | Montana Supreme Court |
Rehearing Denied June 4, 1929.
Appeal from District Court, Powell County; George B. Winston, Judge.
Action by Claude N. Bielenberg, as special administrator of the estate of Nicholas J. Bielenberg, deceased, against W. I Higgins and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.
This is an action to recover judgment for money paid by N. J Bielenberg as accommodation maker of a promissory note for $29,000, made by W. I. Higgins as principal obligor, and to foreclose a mortgage given by defendants W. I. Higgins and Alma M. Higgins, his wife, to secure N. J. Bielenberg against liability on the note. The court sustained a general demurrer to the amended complaint filed by the defendant bank, and a general and special demurrer filed by the defendants W. I and Alma M. Higgins. Judgment was entered for defendants, and this appeal followed.
No argument having been presented by appellant on the question of the correctness of the court's order sustaining the demurrer of the defendant bank, we have treated the assignment of error in that respect as waived and will consider the sufficiency of the amended complaint as to the defendants W. I. and Alma M. Higgins only.
The amended complaint consists of three separate causes of action. The first sets forth that on October 17, 1917 Nicholas J. Bielenberg signed a $29,000 note as accommodation maker with the defendant W. I. Higgins as principal obligor, and that Higgins agreed in writing to hold him harmless; that W. I. Higgins and Alma M. Higgins executed and delivered a mortgage covering certain real property to N. J. Bielenberg to secure him against loss on the note; that N. J. Bielenberg thereafter paid the note, and no part of it has been repaid to him; that defendants W. I. Higgins and Alma M. Higgins are indebted to his estate in the sum of $43,538.87 with costs and interest, the same being the amount paid by N. J. Bielenberg on the note; that N. J. Bielenberg died on July 6, 1927; and that Claude N. Bielenberg is the duly appointed and qualified special administrator of the estate, and brings this action to protect and preserve the estate.
The second cause of action is the same as the first, except it omits all reference to the mortgage and written instrument securing N. J. Bielenberg against loss.
The third cause of action is the same as the second, except that it pleads an agreement made by N. J. Bielenberg and W. I Higgins on December 15, 1920, whereby they agreed to sell certain mining property owned by them and to apply the...
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