Dorais v. Doll

• Decision Date: 18 December 1905
• Citation: 83 P. 884,33 Mont. 314
• Parties: DORAIS v. DOLL et al.
• Court: Montana Supreme Court

83 P. 884

33 Mont. 314

DORAIS v. DOLL et al.

Supreme Court of Montana

December 18, 1905

Appeal from District Court, Silver Bow County; E. W. Harney, Judge.

Action by D. Dorais against George E. Doll, Con. Fleming administrator of the estate of T. P. Fleming, deceased, and others. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant Fleming appeals. Affirmed.

Chas O'Donnell, for appellant.

Kirk & Clinton, for respondent.

BRANTLY C.J.

This action was commenced by one Louis Dupuis to recover a balance alleged to be due upon a settlement between the parties for ice sold and delivered by plaintiff to defendants. At the time the transactions occurred out of which the controversy arose T. P. Fleming, with his co-defendants George E. Doll T. E. Fitzgerald, and W. O. Fisk, were dealing in ice in the city of Butte, under the firm name of the "Consumers' Pure Ice Company." During the pendency of the action Dupuis for value assigned his claim to Dorais, who was substituted as plaintiff in his stead. The three defendants, other than Fleming, defaulted and, judgment having been entered against them, the action proceeded against Fleming alone in the name of the assignee. In the meantime Fleming died, and the present defendant, his administrator, was substituted as defendant in the action. Amended and supplemental pleadings were filed to meet the changed relations of the parties. Upon a trial in the district court plaintiff had judgment. This appeal is from the judgment and an order denying defendant a new trial.

The issue presented by the pleadings and tried by the district court was whether the estate of T. P. Fleming is liable for the amount of plaintiff's claim; the administrator alleging that it grew out of dealings between Dupuis and the Consumers' Pure Ice Company prior to the time when T. P. Fleming became a copartner. Error is assigned upon the action of the district court in refusing to grant the defendant a postponement of the trial, in admitting evidence, and in submitting certain instructions to the jury. Contention is also made that the evidence is insufficient to sustain the verdict.

1. When the cause was called for trial, the plaintiff by leave of court filed an amendment to the complaint, by which he incorporated therein the necessary allegation (Code Civ. Proc. §§ 2604, 2612) that his claim had been presented to the administrator of Fleming for allowance within the time prescribed by law, and had been by him rejected (Code Civ. Proc., § 2604). Counsel for defendant moved for a postponement of the trial for 20 days to enable him to prepare an amended answer. The ground alleged was surprise; but counsel, though asked by the court to show wherein he was taken by surprise, declined to do so. Thereupon the court overruled the motion, but postponed further hearing until the opening of the afternoon session, when the trial proceeded. Defendant alleges prejudicial error. Under section 774 of the Code of Civil Procedure the court had discretionary power to permit the amendment under such terms as it deemed just and proper. This it did. It does not appear that defendant was surprised by the presentation of an issue which he could not meet, or that he did not meet it with all the evidence available in any event. In the absence of an affirmative showing of an abuse of discretion by which prejudice was suffered, the assignment must be held to be without merit. Jorgenson v. Butte, etc., Co., 13 Mont. 288, 34 P. 37; Montana Ore Pur. Co. v. Boston & Mont. C. C. & S. M. Co., 27 Mont. 288, 70 P. 1114; Christiansen v. Aldrich et al., 30 Mont. 446, 76 P. 1007.

2. For the purpose of showing that his claim had been presented to the administrator and rejected by him, the plaintiff, over objection of defendant, was permitted to introduce, with other evidence, the original claim found in the files of the district court in the matter of the estate of T. P. Fleming with the indorsements thereon. The objections made were that the claim was not properly verified by affidavit, that there was not attached to it a copy of the instrument upon which it was founed, and that it did not appear therefrom that it had been rejected. Error is alleged in this regard. The claim as presented to the administrator was supported by the affidavit of both Dupuis and Dorais. The affidavit of Dorais was in form and effect such as is required by section 2604, supra, except that it closed with the words "to the knowledge of said claimant," instead of "to the knowledge of the affiant," the words used in the statute. This section permits a claim to be presented by the claimant himself, or by some one in his behalf. When presented by another in his behalf, the accompanying affidavit must set forth the reason why the claim is so presented. In such a case the statements must be to the knowledge of the "affiant." But, when the claimant acts for himself, the term "claimant" meets all the requirements of the statute, for the affiant and the claimant are one and the same person. The affidavit in question was sufficient. But, to make the matter doubly sure, the claim had the affidavit of Dupuis attached also. To this extent the plaintiff went further than the statute requires, in the absence of a demand by the administrator of satisfactory vouchers or other proofs in support of the claim under the provisions of section 2604, supra. It does not appear that any such demand was made in this instance. The cause of action stated in the complaint is for a balance due on a settlement between Dupuis and the Consumer's Pure Ice Company, a copartnership consisting of T. P. Fleming and...