Gallagher v. Cornelius
| Decision Date | 05 June 1899 |
| Citation | 57 P. 447,23 Mont. 27 |
| Parties | GALLAGHER et al. v. CORNELIUS et al. (CORNELIUS, Intervener). |
| Court | Montana Supreme Court |
Appeal from district court, Cascade county; C. H. Benton, Judge.
Action by P. B. Gallagher and another against J. W. and Minnie Cornelius, in which Morgan Cornelius intervened. From a judgment in favor of plaintiffs, and from an order refusing a new trial, defendants and the intervener appeal. The appeal from the judgment is dismissed, and the order is affirmed.
Thos E. Brady and Donovan & Lyter, for appellants.
This action was brought to foreclose a lien in the nature of a mortgage upon certain real and personal property alleged to have been transferred to the plaintiffs by the defendants, J W. Cornelius and Minnie Cornelius, as security for the indemnity and protection of the plaintiffs against any loss or damage resulting to them from the payment by them of certain debts theretofore incurred by J. W. Cornelius in the part performance of a certain contract for the construction of a sewer, awarded by the city of Great Falls to one Scotten for the secret benefit of J. W. Cornelius, who was the real contractor, and from outlay incident to the completion by them of said sewer at the request of J. W. Cornelius, and upon his express promise to reimburse them for all expense in excess of the price stipulated to be paid by the city for the faithful performance of the contract by Scotten. The plaintiffs, in pursuance of the request of the defendant J. W. Cornelius paid for him the said debts, and completed the sewer according to the terms of the contract. The complaint seeks also a personal judgment against J. W. Cornelius for $6,348.14, that sum being the difference between the said contract price and the total of the expenses paid by the plaintiffs. Several defenses were pleaded by the defendants J. W. Cornelius and Minnie Cornelius. Morgan Cornelius intervened, claiming to own the horse Montana Sneak and the steamboat Minnie, which were included in the bill of sale made by defendants, J. W. Cornelius and Minnie Cornelius, to the plaintiffs. The case was tried by a referee, who found for the plaintiffs, and a judgment was entered in their favor. The defendants moved for a new trial, which was denied, and they appeal from the order refusing a new trial and from the judgment. Respondents have not appeared in this court.
1. The attempted appeal from the judgment must be dismissed for want of jurisdiction. The judgment was entered on the 15th day of October, 1895, and the notice of appeal was filed and served on the 2d day of March, 1897, --more than one year after its entry. Section 421, div. 1, Comp. St. 1887 (section 1723, Code Civ. Proc. 1895).
2. The defendants complain of the failure of the referee to make express findings on every issue, and they contend the findings that were made are defective. But it does not appear that the defendants requested findings in writing, as is required by section 1114 of the Code of Civil Procedure. It is true, there is inserted in the transcript a paper containing objections and exceptions made by defendants to the findings for defects therein; but this paper is improperly in the transcript, and will not be considered, for the reason that it is not settled in any bill or statement. Sections 1114, 1115, Code Civ. Proc.
3. Insufficiency of the evidence to justify the decision, and errors in law occurring at the trial, are the grounds upon which, in their notice of intention, the defendants say they will move for a new trial; but the omission from the statement of the case on such motion of any specification of errors in law restricts our investigation to a consideration of the evidence. The specifications of the particulars in which the evidence is insufficient to justify the findings are in proper form, but they are wholly lacking in substance and in merit. There is no need of incumbering the opinion with an abstract of...
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