Harmon v. Comstock Horse & Cattle Co.

• Citation: 23 P. 470,9 Mont. 243
• Parties: HARMON v. COMSTOCK HORSE & CATTLE CO.
• Decision Date: 28 January 1890
• Court: Montana Supreme Court

23 P. 470

9 Mont. 243

HARMON v. COMSTOCK HORSE & CATTLE CO.

Supreme Court of Montana

January 28, 1890

Appeal from district court, Custer county.

James H. Garlock and J. W. Shevell, for appellant.

C. R Middleton, for respondent.

BLAKE C.J.

This action was commenced by Harmon to recover damages for the wrongful taking by the appellant, a corporation, of certain horses which are described in the complaint. The cause was tried by the court below without a jury, and the findings of the facts which are pertinent to this hearing are to this effect, to-wit: That Harmon commenced an action May 14, 1887, in the probate court of Custer county, against one Speelman, upon an account for $200.16; that an attachment was then issued out of said court, and placed in the hands of the sheriff of the county; that the writ of attachment was levied the same day upon said horses, by filing a copy thereof in the office of the recorder of deeds of the county, with a list of said property annexed thereto, and a notice that the said range stock was attached by virtue of the writ; that said horses were then range stock, and running and roaming at large upon the range; that afterwards the appellant, without the consent of Harmon or the sheriff, took and drove away the horses from their range, and converted them to its use; that a judgment was entered in the probate court June 3, 1887, for Harmon and against Speelman, for the sum of $255.66, which has not been paid, and is wholly due; that the sheriff, after diligent search, has not been able to find the horses, or any property of Speelman out of which any part of said judgment can be satisfied; and that Harmon has been damaged by these acts of the corporation in the sum of $255.66. The judgment was entered accordingly for Harmon. The motion for a new trial was refused, and the corporation appealed.

No testimony was offered by the company, and the notice of the motion for a new trial specifies the particulars in which the evidence produced on the trial is insufficient to justify the findings. An examination of the transcript satisfies us that none of the findings can be set aside upon this ground. An analysis of the testimony, and a statement of the deductions therefrom, would be valueless to the parties, and are therefore omitted.

The errors of law which are assigned and relied on in the brief of the appellant will be reviewed. At the trial the appellant made many objections to the introduction of the testimony which depend upon one legal proposition: that the complaint does not state grounds sufficient to constitute a cause of action, and that it does not appear that the probate court had the right to issue the writ of attachment in the case of Harmon v. Speelman. We quote from the pleading the paragraphs which relate to these matters: "That on the 14th day of May, A. D. 1887, the plaintiff commenced a suit in the probate court of said county against one S.W. Speelman upon an account for the sum of $200, and interest thereon, and then and there procured from said court a writ of attachment in said cause; *** that on the 3d day of June, A. D. 1887 the said probate court rendered judgment in favor of this plaintiff, and against the said S.W. Speelman, in the sum of $209.56, and costs in the sum of $46.10, amounting in all to the sum of $255.66." These allegations are not denied by the answer, and for the purposes of this action must be taken to be true. This court has held in Charlebois v Bourdon, 6 Mont. 376, 12 P. 775, that "the probate court is of limited jurisdiction." In pleading at common law the judgment of this inferior tribunal, it is necessary to set forth the facts which confer jurisdiction. Turner v. Roby, 3 N. Y. 193, and cases cited; Smith v. Andrews, 6 Cal. 652; Townsend v. Gordon, 19 Cal. 188. This rule has been modified in this state by the the enactment of the following section of the Code of Civil Procedure: "In pleading a judgment or other determination of a court or officer of especial jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial the facts conferring jurisdiction." Section 103. Statutes of the same import have been passed in New York, California, Indiana, Nevada, and other states, and received judicial interpretation. In Hunt v. Dutcher, 13 How. Pr. 540, the court holds that an allegation that "judgment was entered in said action *** is clearly not equivalent to the words that such judgment has been made, or was 'duly given or made."' In Young v. Wright, 52 Cal. 410, Mr. Justice CROCKETT, in the opinion, says: "A party wishing to avail himself of a provision of this character must comply strictly with its terms. In exonerating him from an obligation which would otherwise be incumbent upon him, the statute prescribes the precise conditions on which he is to be relieved; and they must be strictly performed. In this case the averment is not that the judgment was duly 'given or made,' but that it was 'duly rendered;' and we are inclined to think these are not equivalent terms. A judgment is duly 'rendered' when it is duly pronounced and ordered to be entered. Gray v. Palmer, 28 Cal. 416; Peck v. Courtis, 31 Cal. 207; Genella v. Relyea, 32 Cal. 159. But a judgment duly 'made or given' is a complete judgment properly entered in the judgment book, so that it may be pleaded in bar of another action." In Keys v. Grannis, 3 Nev. 551, the court says: "To show the jurisdiction is as necessary, under our practice, as it ever was; the only change being in the manner of stating it." See, also, Crake v. Crake, 18 Ind. 156; Judah v. Fredericks, 57 Cal. 391; Los Angeles v. Mellus, 59 Cal. 451. This court held in Territory v. Cox, 3 Mont. 205, that an averment in a complaint which alleges that letters testamentary which had been granted were "duly revoked" by the probate court was sufficient. In Hootman v. Bray, 3 Mont. 411, Chief Justice WADE says, in the opinion: "Neither the original answer nor the proposed amendmen...