Glass v. Basin & Bay State Min. Co.
| Decision Date | 03 April 1906 |
| Parties | GLASS et al. v. BASIN & BAY STATE MINING CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; J. M. Clements Judge.
Action by James Glass and another against the Basin & Bay State Mining Company. Judgment for defendant. Plaintiffs appeal. Reversed.
M. S Gunn and Edward Horsky, for appellants.
Bach & Wight, for respondent.
Action for money had and received. The complaint is in the ordinary form, alleging that the defendant, a corporation organized under the laws of Montana, is indebted to the plaintiffs in the sum of $140,000 for money had and received for the use and benefit of plaintiffs. Judgment is demanded for that amount and costs.
The answer presents six separate defenses. The first is a denial of all allegations contained in the complaint. The second third, fourth, and fifth allege, respectively, that the cause of action is barred by the provisions of subdivision 1 of section 514 of the Code of Civil Procedure, of subdivision 1 of section 513 as amended by Session Laws 1903, p. 292, of subdivision 3 of section 514 as amended by the same act, and by section 512 of the same Code. The sixth defense alleges in substance, that heretofore, on August 21, 1901, in an action then pending in the district court of the Fifth judicial district of the state of Montana, in and for the county of Jefferson, between the plaintiffs herein as plaintiffs and the defendant herein as defendant, being the same parties as are parties to this cause, and for the same cause of action, there was interposed by defendants a motion for judgment on the pleadings, which, upon consideration by the court, was sustained and a final judgment rendered and entered for defendant dismissing the action. The amended replication denies that the cause of action is barred by any of the provisions relied upon by the defendant in the second, third, and fifth defenses, or otherwise, or at all, and alleges by way of avoidance of the sixth defense that in the month of February, 1900, the plaintiffs began an action against the defendant in the district court of the Fifth judicial district upon the same cause of action as stated in the complaint herein; that judgment was rendered and entered therein in favor of the defendant as alleged; that the plaintiffs thereupon appealed to the Supreme Court; that such proceedings were had in the cause in the Supreme Court that the judgment was on June 27, 1904, affirmed on the ground that the complaint therein did not state a cause of action, but that said judgment was not a judgment upon the merits. It is further alleged by way of avoidance of the defense of the statutes of limitation that since the accrual of the cause of action stated in the complaint each and all the officers and agents of the defendant upon whom service of process could be had had been absent from the state, except for a period of about two years and eight months prior to the commencement of this action. Upon these pleadings the defendant moved for judgment, on the ground that no issue of fact is presented upon the fourth defense pleaded in the answer, for that the same is not denied in the amended replication, and for the reason that the avoidance thereof pleaded in said replication is contrary to the laws of the state of Montana, and for the further reason that there is no issue of fact to be tried on the sixth defense pleaded in the answer, the same being admitted in the amended replication, and the avoidance thereof pleaded in the replication is contrary to the laws of the state of Montana. This motion was, after argument, granted and judgment entered for the defendant. The appeal is from the judgment.
The judgment referred to in the pleadings was affirmed in 31 Mont. 21, 77 P. 302, under the title of Glass et al. v. Basin & Bay State Min. Co. In this case two questions are submitted for decision: (1) Whether the right to maintain this action is barred by the judgment in the former action; and (2) Whether upon the face of the proceedings it is apparent that the cause of action is barred by any of the limitations pleaded. It is contended by appellants that upon the face of the pleadings both of these questions should have been answered in the negative and that the motion for judgment should have been denied.
1. Does it appear that the former judgment was upon the merits of the controversy? Section 1007 of the Code of Civil Procedure declares that "a final judgment dismissing the complaint, either before or after a trial, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment roll, that it is rendered upon its merits." The appellants' position is that the judgment pleaded does not expressly declare that it was rendered on the merits; and, since the judgment roll was not before the district court, it could not tell on the trial of the motion what its effect was. The argument of respondent is that section 1004 of...
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