Hutchinson v. Burton

• Decision Date: 20 September 1952
• Docket Number: No. 9117,9117
• Citation: 247 P.2d 987,126 Mont. 279
• Parties: HUTCHINSON et al. v. BURTON et al.
• Court: Montana Supreme Court

Page 987

247 P.2d 987

126 Mont. 279

HUTCHINSON et al. v. BURTON et al.

No. 9117.

Supreme Court of Montana.

Submitted April 25, 1952.

Decided Aug. 13, 1952.

As Amended on Denial of Rehearing Sept. 20, 1952.

Michael J. O'Connell, Joseph B. Gary, Bozeman, Ralph J. Anderson, Helena, for appellants.

H. A. Bolinger, Jr., George W. Horkan, Bozeman, for respondents.

ADAIR, Chief Justice.

On May 31, 1949, R. E. Davis and his daughter Lola E. Hutchinson, lessors, executed a written lease whereby they leased to Donald E. Burton and James Scollard, Jr., lessees, 1,600 acres of land and other property in Gallatin county, Montana, for the period from May 31, 1949, to January 1, 1952, and agreed to furnish lessees a shop as well as living quarters for the family of each. The shop was on the ground floor and the living quarters on the second floor of a two-story brick building in the town of Willow Creek. The lease here involved was before this court in appeal No. 9113, entitled Davis v. Burton, and reported in, Mont., 246 P.2d 236.

On August 1, 1949, the lessees entered into the possession of the aforesaid living quarters and shop. The shop as designated by the lessors consisted of the south thirty-nine feet of the ground floor of the afore said brick building.

In November 1949, without the knowledge or consent of the lessees and during their temporary absence, the lessors constructed a partition which divided the shop into two rooms. Thereupon the lessors claimed the right to occupy and use the space on one side of the partition which they had so constructed as and for a double garage. Upon their return the lessees promptly discovered the alterations so made in the shop and the claims so advanced by the lessors whereupon the lessees removed a part of the partition so that they again had access to and could use the entire thirty-nine feet of space as a shop which they thereafter kept under lock and key thus excluding the lessors therefrom.

Complaint. On November 30, 1950, the lessors as plaintiffs brought this suit against the lessees as defendants. In their complaint as amended the plaintiffs alleged that on or about May 1, 1950, at a time when they were entitled to and in the actual, peaceable and quiet possession of that certain garage space the aforesaid two-story brick building in Willow Creek, the defendants, during the absence of the plaintiffs, with violence and by force, cut a door in the south inside wall of said garage through which defendants entered into said garage and with force and violence expelled therefrom the property of the plaintiffs and thereafter locked the door, prohibiting plaintiffs from entering or using such garage and that ever since defendants have illegally, forcibly and unlawfully detained possession of said garage from plaintiffs.

In their complaint, as amended, plaintiffs seek judgment: (1) For restitution of the claimed garage space; (2) for the sum of $900 as treble the amount of actual damages claimed by plaintiffs; (3) for three times the reasonable monthly rents and profits of the garage space so claimed and (4) for the sum of $500 as exemplary damages. Also by affidavit filed at the time of the commencement of the action plaintiffs sought an injunction restraining defendants from interfering with plaintiffs' use of the claimed garage space pending the final determination of the cause.

Answer. To such complaint the defendants filed a joint answer and cross-complaint. By appropriate denials the answer first placed in issue each allegation of plaintiffs' complaint. As a separate, further and first affirmative defense the defendants alleged that by the terms of the written lease so entered into on May 31, 1949, a copy whereof was attached to and made a part of the answers, plaintiffs leased, demised and let to defendants for the period from May 31, 1949, to January 1, 1952, certain farm lands therein described and agreed to furnish living quarters for each of the defendants and their families and a shop for the use of defendants during the term of said lease, said living quarters and shop being in the two-story brick building referred to in plaintiffs' complaint; that pursuant to the provisions of such lease defendants, on or about August 1, 1949, entered into possession of the south thirty-nine feet on the ground floor of said brick building such space being designated by the plaintiff R. E. Davis as the shop which plaintiffs had so agreed to furnish to defendants and being the identical space referred to in plaintiffs' complaint as shop and garage space; that at all times since August 1, 1949, defendants have been and until January 1, 1952, will continue to the entitled to the possession of said south thirty-nine feet of the ground floor space of said two-story brick building and 'that defendants now are, and since the 1st day of August, 1949, have been in the actual, peaceable and quiet possession of said south thirty-nine (39) feet of ground floor space of said two story brick building.'

Cross-complaint. In their cross-complaint defendants alleged that on or about November 13, 1949, at a time when defendants were entitled to the possession of the property so leased and while defendants were in the actual peaceable and quiet possession thereof, plaintiffs with force and violence did, during the absence of defendants therefrom, wilfully, maliciously, oppressively and with intent to deprive defendants of a portion of said shop so leased by them, erect a partition dividing the leased shop into two separate rooms and that at said time the plaintiffs shut off the heat and power to a portion of said shop to the damage of the defendants and cross-complaintiffs in the sum of $500, by reason whereof the defendants and cross-complaints sought judgment against the plaintiffs and cross-defendants in the amount of $500 as compensatory damages and $5,000 as exemplary damages.

Reply. The judgment roll shows no challenge or objection by the plaintiffs, either by demurrer, motion or otherwise, to the propriety, form, substance or sufficiency of the defendants' answer, affirmative defense or cross-complaint, but shows that plaintiffs joined issue by filing a reply wherein they admitted certain allegations of the affirmative defense and of the cross-complaint, including the making of the above mentioned written lease, and denied the averments not so specifically admitted. Compare Gleason v. Missouri River Power Co., 42 Mont. 238, 248, 254, 112 P. 394; Molt v. Northern Pac. Ry. Co., 44 Mont. 471, 483, 120 P. 809.

Verdict. The issues thus presented by the aforesaid pleadings were tried by a jury which returned a verdict finding the issues in favor of the defendants and against the plaintiffs on the latters' complaint; finding the issues in favor of defendants and cross-complainants and against plaintiffs on defendants' cross-complaint; finding and assessing defendants' actual damages in the sum of $250 and awarding to the defendants and cross-complaints exemplary damages in the sum of $3,000.

Judgment. On March 27, 1951, judgment in conformity to the verdict was duly filed and entered and on the following day, March 28, 1951, notice of the entry of such judgment was duly served upon plaintiffs' attorneys of record who in writing, that day acknowledged the receipt of a copy each of said notice and the judgment referred to therein.

The plaintiff R. E. Davis is a layman as is his daughter and co-plaintiff Lola E. Hutchinson. They had competent counsel to represent them in the bringing, prosecution and trial of this action. Plaintiffs were in attendance at the trial and each testified thereat, the direct examination of the plaintiff Davis being conducted by Michael J. O'Connell, Esq., of counsel for plaintiffs, while that of the plaintiff Lola E. Hutchinson was conducted by Joseph B. Gary, Esq., also of counsel for plaintiffs at the trial.

R. E. Davis Takes Over. In an affidavit filed June 12, 1951, in the trial court in this cause the plaintiff Lola E. Hutchinson, swore 'that subsequent to the rendition of verdict and entry of judgment in the above entitled action she left the control and management of the future conduct of this case to her co-plaintiff and father.'

No Motion for New Trial. There was neither notice of intention to move for a new trial nor was there any motion for a new trial made in this cause for the simple reason that the plaintiff R. E. Davis informed his trial lawyers that he 'didn't desire a new trial.' In their joint affidavit filed June 12, 1951, plaintiffs' trial counsel swore that 'on the 27th day of March 1951, judgment was entered * * * in favor of defendants and against the plaintiffs in conformity with said verdict; that at said time the plaintiff R. E. Davis stated to these affiants that he didn't desire a new trial.'

Bill of Exceptions. On March 27, 1951, the day whereon judgment was entered plaintiffs' two trial lawyers advised the plaintiff Davis that in their opinion 'the evidence didn't sustain the verdict.' Under the law of this jurisdiction to enable this court on appeal to review the proceedings had at the trial including the question of whether the evidence sustains the verdict the party appealing must within the time expressly prescribed by statute, prepare, serve and file a bill of exceptions containing such proceedings.

R.C.M.1947, § 93-5505, provides that 'the party appealing from a final judgment, if he desires to present on appeal the proceedings had at the trial, must, within fifteen days after the entry of judgment if the action was tried with a jury * * * or within such further time as the court or judge thereof may allow, not to exceed sixty days, except upon affidavit showing the necessity for further time, prepare and file with the clerk of the court and serve upon the adverse party a bill of exceptions, containing all of the proceedings had at the trial upon which he relies * * *.' (Emphasis supplied.)

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