Ferrat v. Adamson
| Decision Date | 22 January 1917 |
| Docket Number | 3719. |
| Citation | 163 P. 112,53 Mont. 172 |
| Parties | FERRAT v. ADAMSON, CONSTABLE ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; J. M. Clements Judge.
Action by W. D. Ferrat against James M. Adamson, as Constable of Helena Township, Lewis and Clark County, State of Montana and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
Galen & Mettler and C. A. Spaulding, all of Helena, for appellants.
Carleton & Carleton, of Helena, for respondent.
In March, 1914, J. H. Madden owned a pool hall business, in the conduct of which he employed certain pool tables, cues, and balls, and also kept for sale small quantities of tobacco cigars, etc. He sold the entire property in one transaction to W. D. Ferrat without attempting to comply with the Bulk Sales Law of this state. Leo Spring, a creditor of Madden, reduced his claim to judgment, secured an execution, and placed it in the hands of J. M. Adamson, a constable. Assuming to act under the execution, Adamson seized and sold the pool tables, cues, and balls as the property of Madden. Ferrat thereupon commenced this action to recover damages and joined as a defendant the American Surety Company. Issues were framed, and the cause tried, resulting in a judgment for plaintiff, from which the defendants appealed.
On Motion to Strike.
The verdict was returned on March 19, 1915. On the day following counsel for defendants secured an order granting them 60 days in addition to the statutory time within which to prepare and serve a proposed bill of exceptions. Ten days later the same counsel gave notice of intention to move for a new trial upon affidavits and bills of exceptions thereafter to be prepared and upon the minutes of the court. Within the time allowed for that purpose defendants presented and served a proposed bill of exceptions, and the same was settled and allowed. No further steps were taken in the new trial proceedings. Upon this appeal the record is made to consist of the notice of appeal, the judgment roll, and the bill of exceptions. Respondent has moved the court to strike the bill of exceptions from the record, upon the theory that it was prepared in aid of the new trial proceedings, and, since it was not used for that purpose, it has no place in the record.
Our Practice Act is complicated, but the complications ought not to be multiplied by construction which proceeds upon the theory that it was intended to be as abstruse as it can be made. Under the Code of Civil Procedure of 1895 a bill of exceptions settled during the trial of a cause pursuant to section 1154 became a part of the judgment roll (section 1196) and a part of the record on appeal from the final judgment (section 1736). A bill of exceptions settled after trial pursuant to section 1155, or a statement of the case prepared under section 1173, did not become a part of the judgment roll. If the statement of the case was used on motion for a new trial, it might be used on appeal from the final judgment (section 1736); otherwise it could not be so used. Harrington v. Butte & B. Min. Co., 35 Mont. 530, 90 P. 748. It was doubtful whether a bill of exceptions settled after trial could be used on appeal from a final judgment in any event, and, apparently for the purpose of making definite that which was uncertain, section 1736 was amended in 1907 (Laws 1907, c. 42). The amended act made the record on appeal from a final judgment to consist of the notice of appeal, the judgment roll or such parts of it as might be necessary to be considered, and any bill of exceptions upon which the appellant relies. As if to leave no possible room for doubt as to what was intended, the amended act provides further:
"Any statement of the case settled after the decision of the motion for a new trial, when the motion is made upon the minutes of the court, as provided for in section 6796 (1173), or any bill of exceptions settled as provided for in section 6787 (1154) or in section 6788 (1155), or used on the motion of a new trial, may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing a new trial."
This language appears to be sufficiently explicit. Any bill of exceptions settled pursuant to section 1154 (6787, Rev. Codes) or section 1155 (6788, Rev. Codes), whether used on motion for a new trial or not, may be used on apeal from a final judgment.
It is contended, however, that the bill of exceptions in question was not settled under the provisions of either of those sections, but was prepared in aid of new trial proceedings under section 6796, Revised Codes. There is not anything in the record to justify this assumption. When the extension of time was secured for the purpose of preparing this bill of exceptions, the new trial proceedings had not been initiated, and there is nothing to indicate that they were then contemplated by the defeated parties. They were authorized to proceed under section 6788, and apparently did so. The motion to strike is overruled.
On the Merits.
1. Does the complaint state a cause of action against the American Surety Company? That company is sued only in its capacity as surety upon the official bond of the constable, and unless it is alleged that the relationship of principal and surety existed at the time of the seizure of the property (October 15, 1914) or the sale (November 7, 1914), or at some time between those dates when the property was held wrongfully, no cause of action is stated against the company. The allegation of the complaint which seeks to fasten liability upon the company is to the effect that on January 1, 1913, Adamson gave an official bond as constable, and that the American Surety Company "is surety upon said bond." This last phrase must be construed as referable to the time when the complaint was filed, November 20, 1914. It may have been the intention of the pleader to alleged that the surety company became surety on such bond on January 1, 1913, but, whatever his intention, he failed to state the fact, and even if he had succeeded in carrying his intention into effect, it would still have been insufficient; for a surety on an official bond may withdraw therefrom at any time. Section 401, Rev. Codes. To charge that the company is now, November 20, 1914, surety on such bond does not imply that it sustained that relationship at any time previously, and certainly does not imply that it was surety at the time of the alleged wrongful acts of the constable. Further discussion is foreclosed by the decision of this court in Sawyer v. Robertson, 11 Mont. 416, 28 P. 456.
The specific defect in the complaint was pointed out by objection to the introduction of any evidence, and plaintiff was given every opportunity to amend. He did amend by adding to paragraph 3 of his complaint the words "upon said bond," but with the amendment the pleading charged nothing against the surety company which was not alleged before the amendment was made. The objection to the introduction of evidence saved the point. It was not necessary to repeat the objection every time evidence was sought to be introduced to bind the company. A point once saved is saved for all purposes, unless it is thereafter waived.
The complaint fails to state a cause of action against the surety company, and the objection to the introduction of evidence against it should have been sustained.
2. Did the pool tables, cues, and balls used in conducting the pool hall business constitute a stock, or part of a stock, of goods, wares, or merchandise the sale of which is regulated by the Bulk Sales Law (Revised Codes, §§ 6131-6135)?
The title of the act is:
"An act regulating the sale of merchandise in bulk and making provision for the protection of the creditors of the vendor." Laws 1907, p. 373.
Nearly every state in the Union has adopted a like stat...
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