Donovan v. McDevitt

• Decision Date: 25 October 1907
• Citation: 92 P. 49,36 Mont. 61
• Parties: DONOVAN v. McDEVITT et al.
• Court: Montana Supreme Court

92 P. 49

36 Mont. 61

DONOVAN v. McDEVITT et al.

Supreme Court of Montana

October 25, 1907

Appeal from District Court, Cascade County; J. B. Leslie, Judge.

Action by James Donovan against James McDevitt and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Jas Donovan and C. A. Spaulding, for appellant.

Downing & Stephenson, for respondents.

HOLLOWAY J.

On November 5, 1901, James McDevitt recovered a judgment against the appellant, Donovan, in a mortgage foreclosure proceeding and on April 19th following an order of sale was issued; but before the day of sale the parties entered into a stipulation which fixed the amount of Donovan's indebtedness to McDevitt, provided for its payment in certain installments and for a stay of execution if such installments were paid. It also provided that McDevitt should collect rent from certain property belonging to Donovan, and apply such rentals towards the discharge of the judgment. The sum of $695 was paid by Donovan on the judgment. On October 20, 1903, counsel for McDevitt, without notice to Donovan, secured an order of sale, had certain real estate seized and sold by the sheriff and, upon the sheriff's return being filed, had a deficiency judgment for $223.07 docketed against Donovan, and on May 28, 1906, caused an execution to be issued and certain real estate in Great Falls belonging to Donovan to be levied upon and advertised for sale to satisfy such deficiency judgment. Donovan thereupon commenced this action against McDevitt and the sheriff of Cascade county, setting forth the facts above narrated, and alleging, further, that between May 10, 1902, and November 11, 1904, McDevitt had collected rents from the property mentioned in the stipulation to the amount of $675, with which he refused to discharge his deficiency judgment, and for which he has failed and refused to account. It is further alleged that McDevitt has no other claim against Donovan, and that, after satisfying such deficiency judgment, there still remains a balance due Donovan in the sum of $451.93. The prayer of the complaint is for an injunction restraining the sheriff from selling the property seized or proceeding further under the execution, and that McDevitt be required to account for the rents received, and for general relief. To this complaint the defendants interposed a general demurrer, which was sustained, and, the plaintiff electing to stand upon his complaint, his default was entered and judgment rendered and entered in favor of the defendants, dismissing plaintiff's complaint, dissolving a temporary restraining order theretofore issued, and awarding defendants their costs. From that judgment, the plaintiff has appealed.

While some question is raised as to the sufficiency of the demurrer to raise the question determined by the district court, still, assuming, without deciding, that it was sufficient, it did not merely raise the question of the sufficiency of the allegations in the complaint to state a cause of action entitling plaintiff to the relief demanded. A general demurrer raises the question: Does the complaint state facts sufficient to constitute a cause of action? In other words, under the facts stated, is the plaintiff entitled to the relief demanded, or any relief? And, if so, the complaint is proof against a general demurrer. In 16 Encyclopaedia of Pleading and Practice, 793, the rule is stated as follows: "Under Code procedure generally, the function of a demurrer in respect to pleadings is to determine the sufficiency of the facts alleged therein to constitute a cause of action or a defense, and not to determine whether or not facts are stated which are sufficient to entitle the pleader to the relief demanded. In other words, to sustain the demurrer it must appear that, upon the facts pleaded, no relief can be had."

(a) Does the complaint state facts sufficient to constitute a cause of action for an injunction? It is a well-recognized rule that a court of equity will not interfere to enjoin the enforcement of a judgment, if the judgment debtor has a plain, speedy, and adequate remedy at law. And that the plaintiff Donovan had such a remedy in this instance is perfectly plain. Section 1201 of the Code of Civil Procedure, among other things, provides: "*** Whenever a judgment is satisfied in fact, otherwise than upon an execution, the party or attorney must give such acknowledgment, or make such indorsement, and upon motion the court may compel it, or may order the entry of satisfaction to be made without it." Under this section, plaintiff could have had all the relief which an injunction would afford him, and for this reason his complaint does not state facts sufficient to warrant the issuance of an injunction. Gregory v. Ford, 14 Cal. 139, 73 Am. Dec. 639; Imlay v. Carpentier, 14 Cal. 173; Ketchum v. Crippen, 37 Cal. 223.

(b) Does the complaint state facts sufficient to entitle the plaintiff to an accounting? The purpose of a suit for an accounting is to have settled a complicated account, the exact status of which plaintiff is unable to determine for himself; for, if he knows the exact amount due him on the account, a court of law can furnish him a complete remedy. Under such circumstances, his action is one for a money judgment, and not a suit for an accounting. According to the allegations in plaintiff's complaint, McDevitt has collected $675 belonging to plaintiff, against which the defendant's only claim is his deficiency judgment amounting to $223.07; so that, if these allegations be true an action for a money judgment for $451.93 would afford plai...