Gilna v. Barker
| Decision Date | 24 February 1927 |
| Docket Number | 6071. |
| Citation | 254 P. 174,78 Mont. 357 |
| Parties | GILNA v. BARKER et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Cascade County; John C. Huntoon, Judge.
Action by Thomas Gilna against David L. S. Barker and others, as statutory trustees for the Big "7" Mining Company a dissolved corporation, with counterclaim by defendants. From a judgment for plaintiff, defendants appeal. Affirmed.
Maddox & Church, of Great Falls, for appellants.
Graybill & Graybill, of Belt and Great Falls, for respondent.
This is an action of debt, brought against statutory trustees of a defunct corporation.
Big "7" Mining Company was a domestic corporation organized for the purpose of acquiring, holding, working, and developing quartz mines. December 20, 1912, its corporate life expired. At that time certain parties were directors of the corporation. Upon the dissolution of the corporation they became, by virtue of what is now section 6011, Revised Codes 1921, then in force, trustees of the creditors and stockholders of the expired corporation, with power to settle and liquidate its affairs. They are the defendants herein.
Plaintiff alleges that, in 1921 and 1922, defendants leased to plaintiff certain mining properties, under their control that had belonged to the corporation, in order that plaintiff might mine the same, and therefrom extract ores. Plaintiff and defendants were to share, upon specified terms, the net proceeds thereof. In each of two causes of action pleaded, plaintiff alleges compliance, on his part, with the terms of the lease involved, and how much became due him, as a result thereof, and alleges that a part thereof has been paid him, and that the remainder is due and owing to him by defendants and unpaid. In a third cause of action pleaded by plaintiff he alleges damages in the sum of $5,000, by virtue of breach, by defendants, of their lease agreement.
Defendants answered, admitting the organization and dissolution of the corporation, their resulting trusteeship and the leases to plaintiff, and then deny owing anything. In addition, the answer sets up what is called a plea in bar. The answer further pleads an affirmative defense, alleging various settlements in full with plaintiff, accepted by him as such. Defendants then plead a counterclaim against plaintiff, alleging damages in the sum of $4,000, at his hands, in connection with the leasing and mining operations, and asking judgment for that amount against him.
Plaintiff made appropriate reply. Trial by jury was had, and plaintiff obtained a judgment against defendants. They appealed.
There are statements in the brief of each, the plaintiff and the defendants, that are not based on anything in the record. In plaintiff's brief there is much of such matter. Except for some admissions, made in briefs, contrary to the interest of the party or parties making them, we may consider only what appears in the record. Our decision must be based on it and any such admission supplementing it.
The record contains the judgment roll, the notice of appeal, and a short bill of exceptions. The bill of exceptions contains none of the evidence adduced at the trial nor any of the instructions given or refused. It contains only recital of the facts that the cause came to trial before a jury; that, upon motion of defendants, it was ordered that the court first try separately the issue of law raised by defendants' plea in bar; that it was agreed between counsel, by stipulation entered in the record, that the matter set up in defendants' plea in bar be deemed demurred to, as insufficient in law, on the face thereof; that the demurrer was argued and submitted and was sustained.
Counsel for defendants assign three specifications of error: (1) The ruling of the court in sustaining plaintiff's demurrer to defendants' plea in bar. (2) The (amended) complaint fails to state a cause of action against defendants, as statutory trustees. (3) The court had no jurisdiction over the defendants or the subject of the action.
Neither brief before us cites many authorities. The briefs consist mostly of argument, original reasoning. We have carefully examined all of the authorities cited in either brief and many more; all that could be found in the realm of the law on the controverted points.
The presumption is that the trial court had jurisdiction of parties and subject-matter; that the court's rulings were correct; that the judgment is regular and lawful. The judgment must stand, unless the contrary may be shown, in one or more particulars. Ringling v. Smith River Dev. Co., 48 Mont. 467, 138 P. 1098; Dover Lumber Co. v. Whitcomb, 54 Mont. 141, 168 P. 947; State v. Schoenborn, 55 Mont. 517, 179 P. 294.
We have searched diligently to see if authority may be found to overthrow that presumption in any particular, as well as to ascertain if the weight of authority upholds it in every particular. We take up the specifications of error in the order assigned.
1. Did the trial court err in sustaining plaintiff's demurrer to defendants' plea in bar? The plea in bar is set forth in paragraph 2 of the answer to plaintiff's first pleaded cause of action, and is repeated in answer to each of the other causes of action pleaded.
Ordinarily, a demurrer may not be interposed to a portion only of a pleading. Martin v. Northern P. Ry. Co., 51 Mont. 31, 149 P. 89; State ex rel. Lease v. Wilkinson, 59 Mont. 327, 196 P. 878. However, in this instance, it was done by express stipulation of counsel, entered in the record. Therefore we shall consider it.
The plea in bar admits the incorporation and the dissolution of the corporation, and that, upon dissolution, the parties named, in a representative capacity, as defendants, became trustees for the defunct corporation, charged with certain duties, and that they so acted until about December 21, 1923. It alleges that on or about October 19, 1923, by a decree of court (naming the court, title and number of cause), duly made and given, all of the property of the defunct corporation was ordered sold, and the proceeds were ordered to be paid to certain preferred creditors adjudged to have preferred claims, and that, on or about December 21, 1923, defendants, pursuant thereto, sold all of the property, and paid the proceeds to preferred creditors, so far as sufficient, but that the proceeds were insufficient to pay in full all; that, since December 21, 1923, defendants have had in their possession no property of the defunct corporation; and that, on that date, their trust ended, by completion of their duties as trustees, and since then they have not been trustees; and that, at the time of the institution of suit, they were, and are still, nonexistent, in other words, no such defendants exist to be sued-they are dead, out of existence. They allege that the allegations of the amended complaint raise purely moot questions. They denominate the plea a plea in bar, and allege lack of jurisdiction of the persons of defendants and of the subject-matter of the action, and ask dismissal of the action.
Had defendants appeared specially for the sole purpose of challenging jurisdiction of their persons, they would have preserved their rights, if any, in that respect, and would have been entitled to a ruling on that issue. However, they did not do that. They appeared generally. In their plea in bar, they united with their objection to jurisdiction of their persons objection to jurisdiction of the subject-matter. They went further than that, too; they put in a general denial and an affirmative defense, and pleaded a counterclaim. A party desiring to challenge the jurisdiction of the court over his person must make a special appearance therefor. Hinderager v. MacGinniss, 61 Mont. 312, 202 P. 200. Any kind of appearance, except a special appearance, limited to challenging jurisdiction of the person, is a general appearance, and a general appearance waives any question of jurisdiction of the person. State ex rel. Mackey v. District Court, 40 Mont. 359, 106 P. 1098, 135 Am. St. Rep. 622; Stoffels v. Cherry, 67 Mont. 443, 215 P. 1098; State ex rel. Carroll v. District Court, 69 Mont. 415, 222 P. 444.
Defendants appeared generally, and thereby waived the question of jurisdiction of their persons.
The chief plea remaining then, in the plea at bar, is that which challenges jurisdiction of the subject-matter. Why did not the court have jurisdiction of the subject-matter? Can any valid reason be given? The learned counsel for defendants, in their brief, give no citation of authority for such contention. All of their citations are, and the most of their argument is, made in an attempt to show that there was no jurisdiction of the persons of defendants. The only argument counsel for defendants make in their brief, in contending for lack of jurisdiction of the subject-matter, is that, by order of court, all of the property of the defunct corporation had been sold, and the proceeds had been paid to creditors, and the defendants had no assets in their possession, and therefore their trust had terminated. They claim it terminated December 21, 1923. Even so, the instant case was begun long before that date.
However were the defendants discharged of their trust by the completion of their duties, as provided in section 7923, Revised Codes 1921? What were their duties? They are set forth in section 6011, Revised Codes 1921: "To settle and liquidate its affairs" (the affairs of the defunct corporation). To "settle" means to ascertain, adjust, pay, satisfy (Standard Dictionary); to determine, free from uncertainty, adjust, pay, dispose of (Webster's International Dictionary). In this connection we think it means to dispose of. "Liquidation" means "the act or operation of...
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