Finlen v. Heinze

• Decision Date: 24 July 1903
• Citation: 73 P. 123,28 Mont. 548
• Parties: FINLEN v. HEINZE et al.
• Court: Montana Supreme Court

73 P. 123

28 Mont. 548

FINLEN v. HEINZE et al.

Supreme Court of Montana

July 24, 1903

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

Action by Miles Finlen against F. Augustus Heinze and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

This action was originally commenced by the plaintiff, Finlen against the defendants, Arthur P. Heinze, Montana Ore Purchasing Company, the Johnstown Mining Company, and F Augustus Heinze, to recover possession of the Minnie Healy lode mining claim. The complaint alleges that the plaintiff had certain leases and bonds from John Devlin, Mrs. Devlin and Mrs. Reilley upon an undivided three-fourths interest in the claim, and from Caroline V. Kelley upon an undivided one-twentieth interest therein; that under the terms of these leases and bonds he had the option to purchase such interests at any time prior to February 3, 1900, upon complying with the terms thereof, and paying the purchase price agreed upon that he had kept all the terms of the leases and bonds by him to be kept or performed; "that on or about the ___ day of ___ 1899, and before the commencement of this action, and while plaintiff was in actual possession of the whole of said Minnie Healy claim, and, by virtue of said lease and agreements above mentioned, entitled to the possession of said Minnie Healy claim, the said defendants above named forcibly, and without plaintiff's consent, and against his will, and without any right so to do, entered into and upon the said Minnie Healy lode claim and the underground workings thereof, and ousted and ejected plaintiff therefrom and ever since have, and do now, retain from plaintiff the possession of said claim, and every part thereof." The complaint contains a second cause of action for damages for ores extracted, and prays for an injunction restraining the defendants from further operating the mine.

To this complaint the defendants Arthur P. Heinze and the Montana Ore Purchasing Company filed an answer, denying that they, or either of them, ever at any time entered into the possession of the Minnie Healy lode claim, or any portion thereof, or mined or extracted any ore therefrom, or converted the same to their own use. The defendant Johnstown Mining Company interposed an answer denying the material allegations of the complaint, and setting up its claim to an undivided one-eighth interest in the property acquired from the rightful owner, without any notice of the plaintiff's outstanding claims. The defendant F. Augustus Heinze filed an answer admitting the allegations of the complaint with reference to the original ownership of the Devlins, Reilley, and Kelley, the execution of the leases and bonds, and their transfer by mesne conveyance to the plaintiff, and denying the other material allegations of the complaint. The answer sets up new matters by way of affirmative defenses, and also an equitable counterclaim ("cross-bill," so called), in which, after reciting the history of the execution of the leases and bonds, their transfer to the plaintiff, his possession and working the claim thereunder (in which operations it is alleged he expended a large amount of money without being able to make discovery of any ore of commercial value), it is alleged the plaintiff represented to defendant Heinze that the claim would not justify his further prosecuting work or expending money on it, and that he was anxious to dispose of his options on the property. It is further alleged that on November 21, 1898, the plaintiff entered into an agreement with the defendant Heinze whereby he made an optional assignment of all of his interests in the leases and bonds to Heinze, upon consideration that Heinze would go into possession of the property, work the same, keep the leases and bonds alive, and, if the property appeared to him (Heinze) to be of sufficient value to justify its purchase under the leases and bonds, then he would pay to the plaintiff, Finlen, $54,000. It is alleged that this assignment was made by a verbal agreement, but that plaintiff agreed to execute formal written assignments as soon as they could be prepared and presented to him; that he (Heinze) was put in possession of the property by the plaintiff, and, relying upon the agreement so made and the representations of the plaintiff, he fully kept and performed all the terms of the leases and bonds to be kept and performed by the lessee, and, with the full knowledge and consent of the plaintiff, expended large sums of money in exploring and developing the property; that he discovered and exposed large bodies of valuable ore, whereby the claim was greatly enhanced in value, and became worth much more than when he took possession of it; that he deemed himself justified in purchasing, and would purchase, the interests of the Devlins, Reilley, and Kelley, and is ready and willing to pay to the plaintiff, Finlen, the agreed sum of $54,000, but that the plaintiff now refuses to make such written assignments; and denies that the defendant has any interest in the leases and bonds, or any of them, and has assumed to purchase from Mrs. Kelley her one-twentieth interest in the property, and has taken a deed therefor. The prayer of the counterclaim is that Finlen be required to make such assignments; that he be declared to be a trustee for the benefit of the defendant Heinze of the one-twentieth interest acquired from Mrs. Kelley; and that he be required to make transfer of the same, upon defendant Heinze paying into court the sum of $54,000, and the further sum which the plaintiff had paid to Mrs. Kelley for her interest in the property. To this counterclaim the plaintiff filed an answer denying all the material allegations thereof, and to this answer the defendant Heinze filed a reply.

Upon the issues raised by the counterclaim, answer and reply, the cause was tried to the court, sitting without a jury, and, upon the conclusion thereof, findings of fact and conclusions of law were made in favor of the defendant Heinze, and in July, 1901, a decree in accordance with the prayer of his counterclaim was entered. On March 18, 1902, the court made certain modifications of the decree. The appeals are from the decree, from the order overruling plaintiff's motion for a new trial, and from the order of the court modifying the decree.

W. W. Dixon, A. J. Shores, C. F. Kelley, Forbis & Evans, and D. Gay Stivers, for appellant.

McHatton & Cotter, Toole & Bach, J. M. Denny, and Chas. R. Leonard, for respondents.

HOLLOWAY, J. (after stating the facts).

1. It is contended that the evidence is insufficient to justify the findings of the court. An examination of one of the specifications, wherein the evidence is claimed to be insufficient, will suffice for all, for they are in substantially the same form. "(1) The evidence is insufficient to justify the finding that on the 21st day of November, 1898, or at any time, the plaintiff orally assigned, conveyed, or set over to the defendant F. Augustus Heinze all or any of the leases or agreements referred to in the complaint and attached thereto as exhibits, or all of his right, title, interest, or claim thereunder to the Minnie Healy lode mining claim." This is merely saying that the evidence is insufficient to justify finding No. 1 as made by the court, and is in no sense a compliance with the provisions of section 1173 of the Code of Civil Procedure which provides, among other things: *** When the notice of motion [for a new trial] designates as the ground of the motion the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient. *** If no such specifications be made the statement shall be disregarded on the hearing of the motion. ***" In construing section 695 of the California Code of Civil Procedure, identical with our section 1173 above, and in discussing specifications in effect the same as those found in this record, the Supreme Court of that state, in Eddelbuttel v. Durrell, 55 Cal. 277, says: "In the case before us there is not even an attempt made to specify the particulars in which the evidence is alleged to be insufficient to sustain the findings of the court below. Appellants might as well have said, in a general way, that none of the findings of the court were sustained by the evidence. The purpose of the statute is apparent. It was to direct the attention of court and counsel to the particulars relied on by the moving party, to the end that the evidence bearing on the specifications of error might be inserted in the statement and considered by the court." To the same effect is the decision in Parker v. Reay, 76 Cal 103, 18 P. 124. In King v. Lincoln, 26 Mont. 157, 66 P. 836, this court said: "It is contended that the evidence is insufficient to justify the verdict. We cannot examine the evidence to determine whether this contention is well founded, for the reason that the statement used in support of the motion for a new trial fails to specify the particulars wherein the evidence is insufficient. The only specification found in the statement is the following: 'The evidence is insufficient to support the verdict of the jury in finding for the plaintiff in the sum of ninety-five and 70/100 dollars, with interest. Said verdict is contrary to the evidence.' *** As an attempt to point out any particular in which the evidence failed, or the absence of any material fact to warrant the jury in finding as they did, as is contemplated by the statute (Code Civ. Proc.§ 1173), it is inexcusably insufficient (Zickler v. Deegan, 16 Mont. 198, 40 P. 410; Hayne, New Trial & App. § 150), and the trial court was justified in ignoring it. It amounts to no more...