Bordeaux v. Bordeaux
| Citation | 115 P. 25,43 Mont. 102 |
| Parties | BORDEAUX v. BORDEAUX. |
| Decision Date | 22 March 1911 |
| Court | United States State Supreme Court of Montana |
Appeal from District Court, Silver Bow County; J. Miller Smith Judge.
Action by John R. Bordeaux against Ella F. Bordeaux. From a judgment for defendant and an order overruling a motion for a new trial, plaintiff appeals. Order denying new trial affirmed and decree of divorce reversed, and cause remanded, with directions to enter decree in favor of plaintiff.
L. P Forestell and I. A. Cohen, for appellant.
John J McHatton, for respondent.
This is an action for divorce on the ground of desertion. The trial was by the court sitting with a jury. The jury being unable to agree upon anwers to special interrogatories submitted to them, the court discharged them and rendered judgment, dismissing the action, after refusing plaintiff's request for special findings upon the controverted issues. The plaintiff has appealed from the judgment and an order denying his motion for a new trial.
The parties were married on June 2, 1886, but have lived separate and apart since January 23, 1898. The complaint was filed on March 10, 1909. It contains two counts. In the first it is alleged that the defendant deserted the plaintiff on March 19, 1906; in the second the desertion is alleged to have occurred on March 15, 1907. At the trial the first count was abandoned. As shown by the allegations of the amended complaint and the evidence introduced, plaintiff's theory of the case is that from January 23, 1898, until March 15, 1907, he and the defendant had lived apart by mutual consent, and that on the latter date he in good faith sought a reconciliation with defendant and a restoration of the marital relation, but that she rejected his overtures and has ever since continued to reject them, thus rendering her guilty of desertion.
In her second amended answer the defendant denies that she ever deserted the plaintiff, and alleges that he willfully and without cause deserted and abandoned her, and for more than a year prior to March 10, 1907, refused to live with her. She asks for a decree granting her a limited divorce and requiring the plaintiff to pay her attorney's fee, and to provide for her separate maintenance. In their effort to reach an issue in the district court, the parties amended their pleadings in several particulars which they deemed material.
When the transcript of the record was filed in this court, counsel for defendant asked leave to file a supplement to it, which he insisted properly exhibited, by bill of exceptions, the action of the court in sustaining a motion of plaintiff to strike from her amended answer allegations deemed by him to be material. Leave was granted, subject to the right of counsel for plaintiff at the hearing to object to the consideration of the supplement as a part of the record. The purpose sought by filing the supplement was to have this court review the action of the trial court upon the motion to strike, under the authority conferred by the statute (Rev. Codes, § 7118), and affirm the decree, if satisfied that, on account of the error in sustaining the motion, it ought to be affirmed, notwithstanding any error committed against the plaintiff in other particulars. This supplemental transcript, in addition to copies of the pleadings upon which the trial was had, contains what purports to be copies of the original complaint, the original and first amended answers, and the motion to strike. It has neither a caption nor a conclusion; nor does it contain any recital identifying these papers or any of them. There was filed with the clerk, however, a document of which the following is a copy: This document does not purport to bring anything into the record by reference or otherwise. Whether it refers to the motion, a copy of which precedes it, or the other papers, we can but guess.
The order sustaining the motion is part of the judgment roll. So far as it is concerned, it is in the judgment roll and properly before us. Rev. Codes,§§ 6784, 6806.
The amended answer at which the motion was directed, together with the motion by which alone the stricken matter could be identified, are not authenticated in any way. The pleading as reformed into the second amended answer took the place of the pleading as originally drawn, which, because it was thus superseded and displaced, was no longer a part of the judgment roll or of the record on appeal. Raymond v. Thexton, 7 Mont. 299, 17 P. 258; Butte Butchering Co. v. Clarke, 19 Mont. 306, 48 P. 303. It could not therefore be considered a part of the record, unless made such by a bill of exceptions properly settled by the judge. This, as we have seen, has not been done. The conclusion must therefore follow, that the only paper before us showing what the action of the court was is the order found in the judgment roll. Whether it prejudiced the defendant we cannot say, because we have no means of knowing the theory upon which it proceeded or what its effect was. The section of the statute referred to, upon which counsel for defendant would rely, whether applicable to an order made anterior to the trial or not--and we do not decide whether it is--cannot avail him, because the record is not in proper form to give his exceptions material import. The supplemental transcript must therefore be disregarded.
Counsel for plaintiff contends that the decree should be reversed and a new trial ordered because of the refusal of the court to make specific findings. At the time the case was submitted, he not only prepared and submitted written findings, but also had his request for findings entered in the minutes. The refusal by the court to grant the request was clearly erroneous.
This an equity action. The office of the jury was merely advisory. Though they had agreed upon answers to the interrogatories submitted, the result would nevertheless have been a trial by the judge, and the final decision would have been his decision without regard to the action of the jury, for he still had the option to reject these findings and to make others conforming to his own views of the evidence. Lawlor v. Kemper, 20 Mont. 13, 49 P. 398; Power v. Lenoir, 22 Mont. 169, 56 P. 106; Wetzstein v. Largey, 27 Mont. 212, 70 P. 717.
Whether request was made for findings or not, it was the duty of the judge to make them. The statute declares: "Upon a trial of a question of fact by the court, its decision or findings must be given in writing and filed with the clerk within twenty days after the case is submitted for decision." Rev. Codes, § 6763. This command is clear and specific, requiring no interpretation. It is true that another section (6766) declares that "no judgment shall be reversed on appeal for want of findings at the instance of any party who, at tim close of the evidence and argument in the cause shall not have requested findings in writing and had such request entered in the minutes of the court. ***" Even so, the duty to make findings becomes imperative when timely request is made, as was done by plaintiff's counsel. Estill v. Irvine, 10 Mont. 509, 26 P. 1005; Quinlan v. Calvert, 31 Mont. 115, 77 P. 428. A party failing to make such request cannot allege error because of the omission to obey the command of the statute. Every finding necessary to support the judgment will then be implied. Morse v. Swan, 2 Mont. 306; Ingalls v. Austin, 8 Mont. 333, 20 P. 637; Forrester v. Boston & Mont. C. C. & S. Min. Co., 21 Mont. 544, 55 P. 229, 353; Vreeland v. Edens, 35 Mont. 413, 89 P. 735. Nevertheless its plain mandate should be obeyed in every case, by the making of specific findings upon all material issues of fact made by the pleadings, followed by the appropriate conclusion or conclusions of law, indicating the judgment to be entered thereon. Section 6764. The court having failed to pursue the statute, the plaintiff is entitled to have the decree reversed.
Counsel has assigned many errors upon rulings made in the admission and exclusion of evidence. The evidence admitted over objection was in some instances incompetent or immaterial. The presumption may be indulged that in reaching the final conclusion the court disregarded it. We find no prejudicial error in this regard; nor, except in one instance, was any of the excluded evidence of substantial value. In some instances the evidence offered had already been admitted or subsequently found its way into the record without objection.
For illustration: Upon his direct examination the plaintiff was asked what his intention was with reference to the manner of living he proposed to furnish to defendant if she had returned to live with him. He had theretofore testified, substantially, that he had invited her by letter to return to him, offering and intending at the same time to provide a home for her, and to furnish her such style of living as his means would justify. The court, upon defendant's objection, would not permit him to answer. The evidence called for was material to show plaintiff's good faith in his effort to bring about a reconciliation, and it was clearly competent for him to state what his real purpose was. Finch v. Kent, 24 Mont. 268, 61 P. 653; 1 Jones on Evidence,§§ 145, 167; Greenleaf on Evidence, § 328c; 1 Wigmore on Evidence, § 581.
The statement previously made by him, however, had already supplied the fact sought to be brought out. The error was...
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