Cook v. Galen
| Decision Date | 27 November 1928 |
| Docket Number | 6347. |
| Parties | COOK v. GALEN. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; W. H. Poorman Judge.
Action by A. B. Cook against Laura T. Galen. Judgment for defendant and plaintiff appeals. Reversed with directions.
Gunn Rasch, Hall & Gunn, of Helena, for appellant.
Henry C. Smith, of Helena, for respondent.
This cause is before this court upon an appeal from a judgment, for defendant, rendered upon an order of the trial court, sustaining a demurrer to an amended complaint. Therefore, a question of pleading only is involved.
The following narrated facts are disclosed by the amended complaint: In the district court of Lewis and Clark county, Charles E. Pew and Ira T. Wight sued Isabel Dolenty. October 14, 1914, they obtained against her a judgment in the sum of $4,153.35 and it was docketed. December 21, 1914, a certified transcript of the judgment was filed in the office of the clerk of the district court of Broadwater county. In that county was and is situate certain real estate involved herein. November 6, 1918, Isabel Dolenty executed and delivered to defendant and another person a quitclaim deed to that real estate. March 3, 1919, defendant and such other person, as principals, and a surety company, as surety, executed and delivered to plaintiff a certain bond in the sum of $4,000, reciting that the principals had contracted to sell to plaintiff such real estate and by deed had conveyed it to him and had received from him therefor, as the consideration, the sum of $35,741.70, and reciting the rendition of the judgment herein mentioned, and, further, that a sum not in excess of $4,000 was due thereon. The bond provided then that, if the principals thereto should cause such judgment to be fully paid, satisfied, and discharged, or forever hold the premises described and plaintiff free and harmless from any and all suits, damages, and liability of whatsoever kind and character, by reason of the lien of such judgment upon such premises, the obligation should be null and void; otherwise, to remain in full force and effect. October 14, 1920, under and by virtue of a writ of execution, based on the judgment and issued by the clerk of the district court of Lewis and Clark county, after due notice the sheriff of Broadwater county sold such real estate at public auction upon the highest bid to Charles E. Pew and Ira T. Wight, herein mentioned, for the sum of $1,000, and the sheriff issued and delivered to them a certificate of sale of the real estate so sold to them, and a duplicate was filed with the county clerk. October 12, 1921, the principals in the bond having failed and refused to pay, satisfy, or discharge the judgment or redeem the real estate from such sheriff's sale, plaintiff redeemed it by paying to Pew and Wight the sum of $1,000, with interest, in all $1,120, and he received from them a certificate of redemption. Plaintiff had paid the consideration and received the deed mentioned in the bond.
All of the foregoing is alleged in the amended complaint, and, in addition, in the third paragraph thereof, wherein is the allegation of the filing in the office of the clerk of the district court of Broadwater county of a transcript of the judgment, there follow, after such allegation, these words:
"In which county the land described in said bond or undertaking is situated, and thereupon said judgment became a lien upon the lands and real property described in said Exhibit 'A,' then owned by the said Isabel Dolenty."
Exhibit A, attached to the amended complaint and made a part thereof, is a copy of the bond to which we have referred. It contains a description of the real estate of which mention has been made.
Plaintiff instituted this action, to recover of defendant the sum of $1,120 and interest thereon, March 29, 1927. Defendant demurred generally and specially to the amended complaint. As grounds of special demurrer, the demurrer specifies that the amended complaint is ambiguous in certain designated particulars; likewise, unintelligible; also, uncertain. The demurrer was submitted to the trial court, and thereafter it was sustained. The order sustaining it does not state on what ground it was sustained. Plaintiff declined to plead further. Judgment, dismissing the action and for costs, was rendered in favor of defendant, and plaintiff appealed therefrom. The appeal was submitted on briefs and, in their brief, counsel for plaintiff specify but one assignment of error, the order of the trial court in sustaining the demurrer.
Counsel for plaintiff, in their brief, contend the amended complaint states a cause of action and cite authority in support of the contention.
Counsel for defendant begins his brief with this sentence:
"The only question in this case is whether the amended complaint states facts sufficient to constitute a cause of action."
Thereupon he argues that it does not, and cites authority in support of his argument.
A reply brief was filed by each, and therein respective counsel argue to the same effect as originally.
Therefore, while there was special and general demurrer, and while the trial court did not disclose which was sustained, the respective counsel have based their arguments upon the sole question of whether or not the amended complaint states facts sufficient to constitute a cause of action, raised by general demurrer, and we consider that the only question before us, and we shall confine our consideration to it.
Counsel for defendant, in his briefs, makes his principal argument in support of the contention, advanced by him, that there is nothing in the amended complaint to show that the judgment rendered in favor of Pew and Wight and against Isabel Dolenty ever was a lien upon the land in question, and, as a specification of the contention, says there is nothing alleged to show that Isabel Dolenty ever was the owner of the land. His briefs are replete with assertions to that effect. He refers to Isabel Dolenty as "an absolute stranger to the record title, so far as the complaint discloses." He says:
"There is no allegation in the complaint that Isabel Dolenty ever had the legal title to said lands or any interest therein whatsoever."
The statement, above set forth, in the amended complaint, that, upon the filing in Broadwater county of a transcript of the judgment, "said judgment became a lien upon the lands and real property described in said Exhibit 'A', then owned by the said Isabel Dolenty," counsel for defendant seems to regard as mere recital and not an allegation. If it be an allegation, certain it is, we deem, that Isabel Dolenty is alleged to have been, at the time, owner of the land, and the law would make the transcribed judgment a lien upon her land situate in Broadwater county. Section 9413, Rev. Codes 1921.
It was a rule of common-law pleading that allegations must be direct and positive, and not by way of recital. 1 Chitty on Pleading (16th Am. Ed.) 336. The same rule has been carried into Code pleading (1 Bancroft's Code Pleading, 73); but not with the strictness exacted at common law. Toledo, St. L. & W. R. Co. v. Lander, 48 Ind.App. 56, 95 N.E. 319; Darter v. Grubb, 56 Ind.App. 206, 102 N.E. 843; Battrell v. Ohio River R. Co., 34 W.Va. 232, 12 S.E. 699, 11 L. R. A. 290.
As to what constitutes recital and what an allegation, much authority may be found, but we have not found any involving the identical language being considered, nor has any been cited to us.
The most common form of recital encountered in common-law pleading was the quod cum; that is, the expression "for that whereas." Matter following was held uniformly at common law to be purely by way of recital, and it is held bad in Code pleading. Battrell v. Ohio River R. Co., supra. In conformity with that holding, we have the rule that "a recital is not a statement but is...
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