Frisbee v. Coburn

• Decision Date: 10 December 1935
• Docket Number: 7434.
• Citation: 52 P.2d 882,101 Mont. 58
• Parties: FRISBEE v. COBURN et al.
• Court: Montana Supreme Court

52 P.2d 882

101 Mont. 58

FRISBEE v. COBURN et al.

No. 7434.

Supreme Court of Montana

December 10, 1935

Appeal from District Court, Glacier County; R. M. Hattersley, Judge.

Suit by C. E. Frisbee against John W. Coburn, as administrator of the estate of Stella S. Carroll Scroggins, deceased, and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

George E. Hurd, of Great Falls, for appellant.

G. S Frary, of Cut Bank, and Hall & McCabe, of Great Falls, for respondents.

ANDERSON Justice.

Plaintiff brought this action to secure relief from an alleged void judgment of foreclosure of a real estate mortgage, and to quiet his title as against the purchaser at sheriff's sale and the lien of the mortgage theretofore sought to be foreclosed in the proceeding. The cause was tried before the court sitting without a jury. A judgment was entered finding the issues generally in favor of the defendants and quieting their title to the lands and premises in question. The appeal is from the judgment.

Defendants have filed in this court a motion to strike the bill of exceptions from the transcript on appeal, on the ground that the trial judge was without jurisdiction to settle the bill. It appears from the record that plaintiff served his proposed bill of exceptions on November 14, 1934, which was admittedly within time. The proposed bill was filed with the clerk of the court of Glacier county on November 15, 1934. On November 19 thereafter defendants served upon counsel for plaintiff and filed with the clerk of court, their proposed amendments. On November 23 counsel for the plaintiff served on counsel for the defendants a notice that on December 12, 1934, the plaintiff would "call up for settlement his proposed bill of exceptions and defendants' proposed amendments thereto and pray that the same be settled, signed and allowed as and for the bill of exceptions in the above-entitled cause." On December 12 counsel for the defendants objected to the settlement of the bill "on the ground and for the reason that said proposed bill of exceptions was not presented to the court for settlement within the time allowed by statute." The trial judge then allowed certain amendments at this hearing and took the matter of the settlement of the bill under advisement. Later, on December 18, 1934, the objection of defendants was overruled and the bill was settled and allowed.

As we understand the position of counsel for the defendants, it is conceded that the proposed bill and the amendments thereto were served within time, but it is urged that it was incumbent on counsel for plaintiff, since he gave notice of a time and place of settlement of the bill, to fix the date for settlement in such notice at some time within the ten-day period immediately following the service of the amendments and on five days' notice.

The pertinent portion of section 9390, Rev.Codes 1921, relative to the settlement of bills of exceptions, is as follows: "Within ten days after such service, the adverse party may propose amendments thereto, and serve the same, or a copy thereof, upon the other party. The proposed bill and amendments must, within ten days thereafter, be presented by the party seeking the settlement of the bill to the judge who tried or heard the case, upon five days' notice to the adverse party, or be delivered to the clerk of the court or judge."

This court has repeatedly said in construing this section that where, as here, amendments are proposed to the proposed bill which are not accepted, three methods are available to secure the settlement of the proposed bill of exceptions, namely: (1) Within ten days after the service of the amendments, present the proposed bill and amendments to the judge on five days' notice to the adverse party, or (2) deliver them to the clerk, or (3) deliver them to the judge. Girard v. McClernan, 39 Mont. 523, 105 P. 224, 225; Freeman v. Weare, 42 Mont. 472, 113 P. 466; Best Mfg. Co. v. Hutton, 49 Mont. 78, 141 P. 653; State ex rel. Thelen v. District Court, 51 Mont. 337, 152 P. 475.

It appears from the record that the proposed bill of exceptions was filed with the clerk, and likewise the proposed amendments were filed with that officer by counsel for the defendants. However, notwithstanding the fact that the amendments were not filed by plaintiff but by the defendants, a substantial compliance with the statute was accomplished. Best Mfg. Co. v. Hutton, supra.

Admittedly, if counsel for the plaintiff was proceeding under plan 1 above outlined, the date noticed for hearing was without the time provided by section 9390. Counsel for the defendants argue that counsel for the plaintiff first attempted to proceed under plan 2, but later attempted to continue under plan 1. A situation not unlike this arose in the case of Girard v. McClernan, supra. There the proposed bill was served within time; likewise amendments to the proposed bill were presented to and served on opposing counsel within time. The amendments were served on July 17, and they, not being accepted, were on July 24, together with the proposed bill, delivered to the judge. The proposed bill "was noticed for settlement for July 30th at which time objection was interposed to the settlement, and the hearing was continued until August 7th following. On July 31st counsel seeking to settle the bill give written notice of the hearing for August 7th." It will be noted that there, as here, the notice seeking settlement of the bill fixed a date beyond the expiration of the ten-day period following the service of the amendments. In that case the court, speaking with reference to these notices, said: "In the view we take, it is wholly immaterial that notices for the several hearings upon the settlement of the proposed bill were given by counsel for Girard." The court, after discussing the question in detail and enumerating the three methods provided by statute, said of counsel's conduct in that case: "He chose the third alternative, but was fully within the law." Here counsel chose the second alternative, and before any of the notices were served, he had fully complied with the law.

It is argued, however, that in the Girard Case the bill and the amendments were delivered to the judge, and here the bill and the amendments were delivered to the clerk. The procedure is identical under plans 2 and 3, except that under plan 2 the bill and amendments are delivered to the clerk of the court, whereas under plan 3 they are delivered to the judge. There is no distinction between the facts in this case and those in the Girard Case.

The trial court properly overruled the objection to the settlement of the bill and proceeded to settle it, and accordingly defendants' motion to strike the bill is denied.

Plaintiff by his complaint alleged the appointment and qualification of the defendant Coburn as administrator of the estate of Stella S. Carroll Scroggins, deceased, the corporate capacity of the defendant Barnes Bros., Inc., and the capacity of the defendant Glacier county. He then alleged that he was the owner and entitled to the possession of certain described lands in Glacier county, except a reservation of 2 per cent. of the oil and gas; that on June 30, 1919, and until November 7, 1932, one George D. Lockie was the owner and in possession of these lands; that on June 30, 1919, Lockie and wife executed and delivered to Barnes Bros. a note for $1,800, maturing on July 1, 1924, secured by a real estate mortgage describing the lands in question; and that the note and mortgage were transferred by assignment in writing to Stella S. Carroll Scroggins, recorded in September of the year 1919. It is alleged that on July 1, 1924, an action was begun in the district court of Glacier county wherein Stella S. Carroll Scroggins was designated plaintiff, and Lockie and wife, Barnes Bros., and Glacier county were named as defendants; that summons under the seal of the court was issued and "duly served upon all of the above-named defendants, and thereafter such proceedings were had and taken in said action as resulted in the duly making and giving of a decree on the 18th day of February, 1925," wherein it was adjudged that the plaintiff therein have and recover from the defendants Lockie the amount of the principal, interest, attorneys' fees, and costs, and directing the foreclosure of the mortgage and the sale of the property at decretal sale and the payment of the proceeds realized therefrom to Stella S. Carroll Scroggins; that the sheriff of Glacier county pursuant to the decree on April 4, 1925, sold the property, "at which sale some person unknown to plaintiff bid in the property in the name of S. S. Carroll Scroggins for the full amount of the judgment"; that the sheriff made his return on the sale and executed and delivered to the purchaser a deed purporting to convey the lands in question unto such purchaser on June 26, 1926; that on November 7, 1932, Lockie and wife executed a deed conveying the lands and premises in question unto the plaintiff, reserving 2 per cent. of the oil and gas produced from the lands, which deed was recorded.

Plaintiff then alleged that S. S. Carroll Scroggins died at Pinole Cal., on or about July 8, 1924, and that "some person unknown to the plaintiff caused said action hereinbefore referred to *** to be instituted in said court and to be maintained therein, and caused said property to be sold to S. S. Carroll Scroggins and the sheriff's deed above mentioned to be executed and delivered to her." It was further alleged, on information and belief, that the fact of the death of S. S. Carroll Scroggins before the action was commenced and while it was pending was not at any time made known to the court in which the action was then pending; nor was this...