Kasun v. Todevich

Decision Date06 October 1924
Docket Number5511.
Citation229 P. 714,71 Mont. 315
CourtMontana Supreme Court

Appeal from District Court, Cascade County; H. H. Ewing, Judge.

Action by Kalara Kasun against Roko Todevich. From a judgment for plaintiff, defendant appeals. Affirmed.

F. A Ewald, of Great Falls, for appellant.

W. P Costello, of Great Falls, for respondent.


In February, 1913, in an action pending in the justice of the peace court for Great Falls township, Cascade county, wherein Kalara Kasun was plaintiff and Ivan Polich was defendant, the plaintiff recovered a money judgment, and Polich appealed to the district court. To render his appeal effective he filed an undertaking on appeal, with John Mihelich and Roko Todevich as sureties. After more than four years the cause was brought to trial, and on April 30, 1917, a verdict was returned in favor of the plaintiff and against Polich for $261.80, but judgment on the verdict was not rendered or entered until December 6, 1917. Thereafter counsel for Polich moved the court to set aside the judgment and dismiss the action, on the ground that the judgment had not been entered for more than six months after the verdict was returned. Five years elapsed before the motion was heard, but it was finally denied and Polich undertook to appeal from the order, but failed to take his appeal within the time limited by statute and his attempted appeal was dismissed. John Mihelich died and in September, 1923, this action was commenced against Todevich, the remaining surety, to enforce the penalty of the undertaking on appeal referred to above. The parties agreed upon the facts and the cause was submitted to the court without a jury, with the result that a judgment was rendered and entered in favor of the plaintiff and against Todevich for $388 and costs, and it is from that judgment that this appeal is prosecuted.

It is insisted by the appellant Todevich that he is not liable on the undertaking, because the appeal taken by Polich from the judgment entered in the justice of the peace court was neither withdrawn nor dismissed. The undertaking on appeal after reciting that a judgment had been recovered from which Polich desired to appeal, proceeds:

"Now, therefore, in consideration of the premises and of such appeal, we, the undersigned, John Mihelich and Roko Todevich of said county of Cascade do hereby jointly and severally undertake in the sum of four hundred seventy-five and no-100 dollars that the said appellant will pay the amount of the judgment appealed from, and all costs, if the appeal be withdrawn or dismissed in the amount of any judgment and all costs that may be recovered against him in the action in the district court."

Section 7124, Revised Codes of 1907, in force at the time the appeal was taken (now section 9757, Rev. Codes 1921), provided that the undertaking on appeal from a justice of the peace court to the district court must be conditioned "that the appellant will pay the amount of the judgment appealed from, and all costs, if the appeal be withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against him in the action in the district court." The meaning of the statute is perfectly plain: If the appeal be withdrawn or dismissed, the limit of liability is the amount of the judgment rendered in the justice of the peace court with costs, but if the appeal be not withdrawn or dismissed, the limit of liability is fixed by the amount of the judgment and costs recovered in the district court. The only hope of escape for the sureties is that the party appealing will be successful in the district court, but if judgment there goes against him and becomes final, the liability is absolute.

The undertaking above complies strictly with the statute, except that after the word "dismissed" the word "in" is inserted instead of the statutory term "or," and because of this error appellant Todevich claims absolute exemption from the liability which otherwise he could not escape. In other words, he contends that the sureties on the undertaking agreed to become liable only in the event the appeal was withdrawn or dismissed, and since it was neither withdrawn nor dismissed, liability ceased after the cause was tried in the district court. This argument ignores all of the language of the undertaking after the word "dismissed," and to justify his position counsel for appellant is driven to say that the portion ignored "is indefinite and unintelligible, and is in no way connected with that part of the paragraph preceding it." But this is the undertaking of the sureties, and the language employed in it is their language, to be interpreted most strongly against them (section 7545, Rev. Codes 1921), and they must bear the burden of explaining or removing whatever uncertainty exists. Blankenship v. Decker, 34 Mont. 292, 85 P. 1035; Weir v. Ryan, 68 Mont. 336, 218 P. 947. Instead of explaining or removing the uncertainty, appellant seeks to take advantage of it. In effect he is contending that, because of his mistake or design in inserting the word "in" where "or" should have been used, he is relieved from liability, even though the undertaking in its present form enabled his principal, Polich, to gain every advantage which the appeal could afford.

We agree with counsel for appellant that this undertaking is to be treated as an ordinary contract, and that it is not the province of the courts to make a new contract for the parties, or to alter the one that they made for themselves, but it is the province of the courts to interpret the contract, and to that end the Code prescribes certain rules for their guidance, among them the following:

"Sec. 7532. The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other. * * *

Sec. 7534. A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done, without violating the intention of the parties. * * *

Sec 7544. Words in a contract which are wholly inconsistent with its nature, or with the main intention of the...

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