Chowning v. Madison Land & Irrigation Co.
| Decision Date | 19 April 1929 |
| Docket Number | 6439. |
| Citation | 276 P. 946,84 Mont. 494 |
| Parties | CHOWNING v. MADISON LAND & IRRIGATION CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Madison County; Henry G. Rodgers, Judge.
Action by J. W. Chowning against the Madison Land & Irrigation Company. From a judgment for plaintiff and an order taxing costs, defendant appeals. Affirmed.
R. F Gaines, and Earle N. Genzberger, both of Butte, for appellant.
M. M Duncan, of Virginia City, for respondent.
The complaint in this case sets forth two causes of action. The first seeks to recover upon an alleged account stated between plaintiff and defendant on August 22, 1922. The second is for goods, wares, and merchandise alleged to have been sold and delivered to defendant by plaintiff between August, 1921, and August, 1922. Defendant's answer denies the material allegations of the complaint. Trial was had before the court sitting with a jury. A verdict was returned in favor of plaintiff for the amount claimed against defendant. Judgment was accordingly entered. Defendant's motion for a new trial was denied, and it appeals from the judgment and from the order taxing costs.
At the close of plaintiff's case defendant's motion for a nonsuit was denied, and defendant predicates error upon the ruling.
Upon a motion for nonsuit, the evidence must be taken in the light most favorable to plaintiff, and deemed to establish whatever it fairly tends to prove. Boyd v. Great Northern Ry Co., 84 Mont. ---, 274 P. 293; Pyles v. Melvin, 84 Mont. ---, 275 P. 753; Westerdale v. Northern P. Ry Co., 84 Mont. ---, 273 P. 1051. The record in the case is voluminous, and no useful purpose would be subserved in setting forth even a brief summary of the evidence; suffice it to say that we have carefully examined the record, and are of the opinion that there is ample evidence to take the case to the jury.
Counsel next contend that the evidence is insufficient to support the verdict. The evidence in the case is in sharp conflict. The law is settled in this jurisdiction that the verdict of a jury will not be disturbed on appeal on the alleged ground of insufficiency of the evidence to sustain it, where the evidence is in substantial conflict upon the material issues raised by the pleadings. Westerdale v. Northern P. Ry. Co., supra; Robinson v. Woolworth, 80 Mont. 431, 261 P. 253; Independent M. & C. Co. v. Ætna Life Ins. Co., 68 Mont. 152, 216 P. 1109; Sharp v. Sharp, 66 Mont. 438, 213 P. 799; Northwestern H. & S. Co. v. Winnett, 67 Mont. 545, 216 P. 568.
Defendant predicates error upon the order of the court overruling its motion to tax costs and the objections made to the memorandum of costs filed by plaintiff. At the commencement of the action, plaintiff procured a writ of attachment to be issued, and placed the same in the hands of the sheriff for service on January 25, 1924. At that time the sheriff had in his possession certain personal property, consisting of horses, automobiles, tractors, and other farm equipment, the property of defendant, by virtue of a writ of attachment issued out of the district court of Gallatin county, in the case of McKay against defendant herein. The regularity of the execution of that writ and the right of the sheriff to hold the property thereunder, are not questioned. The McKay action was settled on January 25 and the attachment dissolved. The sheriff took no affirmative action under the writ in this case, but continued to hold the property under it. On January 24 the sheriff served copy of summons and the writ on John Crum, as agent and manager of defendant, and appointed him keeper of the property under attachment; it was agreed between them that Crum should receive $3 per day for such service, which amount would be credited upon wages due him from defendant. On February 16, 1924, upon application of the sheriff, the court made and entered its order that the sheriff "be and he is hereby authorized to appoint a keeper of said attached property at a price of not to exceed $3.00 per day," etc. Crum remained in the employ of defendant until October 26, 1925; during all of that time he acted as keeper of the attached property. Thereafter he continued to act as keeper and was so employed at the time of trial. After trial and verdict, plaintiff duly served and filed her memorandum of costs, including therein keeper's fees from January 25, 1924, to March 13, 1928. Defendant filed its motion to tax costs, specifically objecting to the keeper's fees. Upon the hearing, testimony was introduced on behalf of defendant in support of its motion, and the court reduced the keeper's fees $78, for charges from date of appointment until the order authorizing the sheriff to appoint a keeper; with this reduction the costs were taxed in accordance with plaintiff's memorandum.
Counsel insist that at the time of the attempted levy of the attachment the property was in the possession of T. M Hodgens, and that, under ...
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