Collier v. Ervin

• Decision Date: 31 August 1875
• Citation: 2 Mont. 335
• Parties: COLLIER, respondent, v. ERVIN, appellant.
• Court: Montana Supreme Court

2 Mont. 335

COLLIER, respondent,

v.ERVIN, appellant.

Supreme Court of the Territory of Montana.

August Term, 1875.

Appeal from First District, Jefferson County.

THIS action was based upon the same instruments and indebtedness as the case of Rader v. Ervin, 1 Mon. 632.

CHUMASERO & CHADWICK and M. C. PAGE, for appellant.

SHOBER & LOWRY and A. G. P. GEORGE, for respondent.

KNOWLES, J.

The bill of exceptions in this case shows that the appellants excepted to the ruling of the court in overruling their motion to strike out amendment to complaint, and motion to strike out complaint as amended. No point is made upon this exception in appellants' brief, and hence it will not be considered. The third exception of appellants is the overruling of their demurrer to the complaint. The first ground of demurrer set forth is: That the complaint does not state facts sufficient to constitute a cause of action. This demurrer is to the whole complaint, and not to any separate cause therein set forth. If there is one good cause of action set forth in the complaint, then the ruling of the court was correct. Upon a careful examination I am satisfied that the complaint contains at least two good causes of action?? The second ground of demurrer is, the court has no jurisdiction of the subject of the action. I do not understand how such an objection can be urged. The complaint sets forth at least two good causes of action for the foreclosure of a mortgage upon property within the jurisdiction of the court. The third ground is, that several causes of action have been improperly united?? There is no further specification under this head. All grounds o?? demurrer, save those above specified, namely, want of a cause o?? action, and want of jurisdiction, should specifically point in wha?? the defect consists. The language of the statute will not be sufficient for this purpose. This ground of demurrer, failing to specify the defect as required, should be disregarded. There was no error in the court overruling this demurrer. The next point presented is the exception to the findings of the court. The exception is in this language simply: “To the findings of the court.” This exception would include all of the said findings. If one of the findings is correct, the exception is too general. One of the findings both parties agree is correct. It may be also observed that an exception to a finding of fact should point out specifically wherein the finding is erroneous. This exception has no pretensions of this kind. The fifth exception is to the decree, and is in this language: “To the decree herein, and each and every part thereof.” An appellant need not be so specific in pointing out an error of law as one of fact. Solomon v. Reese, 34 Cal. 28. The appellant in his brief points out in what the defect in the judgment consists. It is that the amount secured by the Rader mortgage is embraced in the decree, when it was found by the court that said mortgage was insufficient in law. Both parties seem to have been satisfied with this finding. The causes of action set forth, and attempted to be set forth in the complaint, are each for the foreclosure of a distinct and separate mortgage. The findings there that the mortgage sought to be foreclosed in one cause of action was insufficient in law, disposed of that cause. No recovery could be had upon it. But respondents claim that the amount secured by that mortgage was also secured by the Blacker mortgage? It is true that this mortgage was given to ??ndemnify Blacker. Should he be compelled to pay the notes set forth in the Rader...