Haupt v. Simington

• Decision Date: 06 March 1903
• Citation: 71 P. 672,27 Mont. 480
• Parties: HAUPT et al. v. SIMINGTON et al.
• Court: Montana Supreme Court

71 P. 672

27 Mont. 480

HAUPT et al. v. SIMINGTON et al.

Supreme Court of Montana

March 6, 1903

Appeal from district court, Silver Bow county; John Lindsay, Judge.

Action to revive a judgment, brought by H. L. Haupt, George H Casey, and J. C. Robinson against Elias Simington, William Smith, John A. White, Enos Carman, and James McDonald. Judgment for plaintiffs, and defendant McDonald appeals. Affirmed.

Ella Knowles Haskell, for appellant.

McBride & McBride, for respondents.

HOLLOWAY J.

In 1885, Hickey, Stapleton, and Robinson commenced an action in the district court of Silver Bow county against the defendants Simington, Jas. McDonald, and about 20 others to recover possession of certain real estate, and for damages. That cause was numbered on the register of actions, and will hereafter be referred to as cause "No. 1,292." A judgment was obtained by the plaintiffs, awarding them the possession of the property in controversy. Thereafter Haupt and Casey succeeded to the interests of Hickey and Stapleton in the judgment and the property, and in 1892 they, with Robinson, commenced this action against the same defendants to revive that judgment. To this action the defendant McDonald made separate appearance, and in his amended answer alleges that the judgment obtained in cause No. 1,292, as to him, is absolutely void, for the reason that he was never served with summons in that action, and never appeared therein. These allegations are denied in the replication. McDonald thereupon demanded a separate trial, which was refused. Upon the trial plaintiffs offered in evidence the complaint and judgment in cause No. 1,292, which were admitted without objection. They also introduced evidence to show the assignments by Hickey and Stapleton of their interests in the original judgment to Haupt and Casey. Other evidence was admitted, which it is not necessary to consider. When plaintiffs rested, defendant McDonald offered in evidence the judgment roll in cause No. 1,292, and the entries in the register of actions and in the minute book referring to that action. To this the plaintiffs objected, on the ground that the evidence offered was insufficient to impeach the judgment, which objection was sustained; and thereupon counsel for plaintiffs admitted that the register of actions in cause No. 1,292 shows no appearance on the part of McDonald in that action, and no service of summons upon him. McDonald then offered to prove by his oral testimony that in fact he never was served with summons in that action and never appeared therein, and had no knowledge that such an action was pending until long after the entry of judgment. This was also objected to on the ground of its incompetency which objection was sustained, and the court directed the jury to bring in a verdict in favor of the plaintiffs, which was done; and from the judgment entered thereon and from an order denying his motion for a new trial McDonald appealed.

Numerous errors are assigned in appellant's brief, but only two are discussed, and this court will therefore decline to review any others. The first error complained of is the court's refusal to grant defendant McDonald a separate trial. In support of this contention this proposition is advanced: "In an action for the recovery of land, brought against many defendants holding separate portions thereof and having no common interest, and who rely upon different sources of title, it is the duty of the court, on motion, to order separate trials;" and cases are cited which maintain that contention. The weakness of appellant's position in this regard is found, however, first, in the fact that this is not an action to recover land, but to revive a judgment; and, secondly, in cause No. 1,292 and in this action there is no showing whatever that the defendants hold separate portions of the property, or have no common interest therein, or rely upon different sources of title; and the mere fact that the defendant McDonald sets up a different defense from that set up by the other defendants, in this: that he claims that the judgment in cause No. 1,292 as to him is void, did not entitle him, as a matter of right, to a separate trial. The trial court might have granted him one, but we cannot say that in refusing to do so it abused its discretion. Townsley v. Hornbuckle, 2 Mont. 584.

The principal error relied upon by McDonald is the refusal of the trial court to receive in evidence the judgment roll in cause No. 1,292, the entries in the register of actions and minute book referring to that cause, and oral testimony of the witness McDonald. This was evidently offered for the purpose of showing that the defendant McDonald was never served with summons in that action, and never appeared therein. It will be observed, however, that the attack which he makes upon the judgment in cause No. 1,292 is simply by way of a defense in this action, and not in any sense by way of cross-complaint or, more...