King v. Pony Gold Min. Co.
| Decision Date | 27 April 1903 |
| Citation | 72 P. 309,28 Mont. 74 |
| Parties | KING v. PONY GOLD MIN. CO. et al. |
| Court | Montana Supreme Court |
Commissioners' Opinion. Appeal from District Court, Lewis and Clarke County H. C. Smith, Judge.
Suit by Rockwell King against the Pony Gold Mining Company, Samuel T Hauser, William W. Morris, and Henry Elling. Judgment against Morris and Elling, and they appeal. Afterwards Elling died and Thomas Duncan and others were substituted, as executors in his place and stead. Affirmed.
This is an appeal from the final judgment, and from an order overruling a motion for a new trial, in a suit brought by a judgment creditor of the Pony Gold Mining Company against Henry Elling, William W. Morris, and Samuel T. Hauser, as stockholders of said company, to recover an amount alleged to be due and unpaid upon the capital stock of the company held or owned by said defendants, to be applied in the liquidation of said judgment. The Pony Gold Mining Company is also made a party defendant to the suit. The theory upon which plaintiff claims that there is an amount unpaid upon said defendant's stock is that practically the entire capital stock of the company was issued and delivered to said defendants Elling and Morris, as full-paid stock, for the purchase of certain property by the company, the value of which is alleged to have been far below the par value of said capital stock. It is alleged that the company issued and delivered to said defendants 499,991 out of 500,000 shares of the capital stock of said company (the par value being $10 per share) in payment for certain property which plaintiff claims was not worth over $250,000. It is also alleged that in addition to the issuance and delivery of said stock, the company paid the defendants Elling and Morris $50,000 in cash, and executed and delivered a mortgage to them upon the property thus purchased for the sum of $150,000. The record discloses that at the conclusion of plaintiff's case a motion for nonsuit made by the defendants was submitted to the court, which was sustained as to defendant Hauser, but denied as to defendants Elling and Morris. By this action of the court, defendant Hauser was eliminated from the case, and it proceeded to a final judgment against defendants Elling and Morris. The action was one in equity, and upon the trial certain special issues were submitted to the jury. The jury returned findings upon these issues in favor of plaintiff, which were adopted by the court. The court then made additional findings in plaintiff's favor, entered judgment against defendants Elling and Morris, and denied their motion for a new trial. From this action of the court, defendants Elling and Morris appealed to this court. After the appeals were perfected, appellant Henry Elling died, and, by order duly entered, Thomas Duncan, Mary B. Elling, Mabel M. Hutt, and the Union Bank & Trust Company were substituted herein, as executors, in his place and stead. For brevity, we will refer to the appellants as Elling and Morris in the following opinion.
Robt. B. Smith, W. A. Clark, and Cullen, Day & Cullen, for appellants.
T. J. Walsh and F. P. Sterling, for respondent.
CLAYBERG, C. C. (after stating the facts).
Before entering upon a consideration of the questions involved in this appeal, it is important to consider some of the preliminary objections presented by respondent's counsel to the record of the case, and to certain points relied upon by appellants in their brief. A great many questions are sought to be raised in appellants brief, many of which are objected to, and it seems to be the duty of the court to sift these objections, and determine what questions are properly before the court for consideration. These preliminary objections are as follows: (1) That this court cannot consider any alleged errors involved in overruling the motion for a new trial, as there is no notice of intention to move for a new trial in the record. (2) That this court cannot consider the alleged error involving the striking of Cullen, Day & Cullen from the separate answer of defendant Hauser, because such error is an irregularity of the court below, which can only be presented to this court by affidavits filed with the court below on the motion for a new trial, and no such affidavits appear in the record. (3) That this court cannot consider the alleged errors assigned upon the insufficiency of the evidence, because the record does not disclose that it contains all of the evidence introduced at the trial, or the substance thereof. (4) That this court cannot consider whether the property conveyed by defendants to the company is of any other value than that alleged in the complaint, because defendants' denial of such allegations was general. (5) That this court cannot consider the errors assigned upon the instructions of the court to the jury, given or refused, because the case is one in equity, and in equitable cases this court cannot review the instructions given or refused. We shall consider these objections seriatim.
1. As to the absence of notice of intention to move for a new trial:
In this case the record on appeal contains nothing aside from a statement of the case, properly settled and signed, and the judgment roll. The notice of intention to move for a new trial is entirely omitted, and the question is whether this omission is proper. The consideration of this question is necessarily limited to the conditions presented by the record in this case, and to none other, and this court desires to be understood that this opinion shall be construed as applicable only to similar conditions and cases. For a full elucidation of the question, a reference to the statute seems necessary.
Under section 1171, Code Civ. Proc., a motion for a new trial may be based upon one or more of seven grounds therein stated. Section 1172 provides that when the application is made for a cause mentioned in the first, second, third, and fourth grounds stated in section 1171, it must be made upon affidavits, and, if upon other grounds, either upon a bill of exceptions or statement of the case, at the option of the moving party. Section 1173 provides that within 10 days after the verdict of the jury, or notice of the decision of court or referee, the party intending to move for a new trial must file with the clerk and serve upon the adverse party a notice of his intention, "designating the grounds upon which the motion will be made." Subdivision 3 of section 1173 further provides:
It is apparent from the foregoing provisions of the Code that the only purposes of the notice of intention to move for a new trial are (1) to notify the adverse party of the grounds upon which the motion will be based; and (2) to guide the judge or referee in the settlement of the statement when proposed, in only allowing such grounds of motion to be stated or claimed therein as are set forth and relied upon in the notice of intention. When the statement is prepared in pursuance of the notice, it must specify particularly the insufficiency of the evidence, and the particular errors of law relied upon in the notice of intention. It is then made the duty of the judge or referee to "make the statement truly represent the case," and to settle and sign the same. In order that the statement "truly represent the case," the judge or referee must not allow to be included therein any grounds of motion not stated in the notice of intention and relied upon by the moving party. The notice of intention must therefore be referred to and considered in settling the statement, and if there is any objection to its form or substance, or if it has not been filed or served in time, such objections should be then presented, and the proper reference thereto should be inserted in the statement, so that the higher court, upon appeal, may consider and pass thereon. When the statement is settled, all the functions and offices of the notice of intention have been performed, and it need only be incorporated in the statement in cases where some point involving its consideration is desired to be presented to the supreme court. In all other instances there is no occasion to present it to the higher court. There having been no question raised in this record concerning the notice of intention, there was no occasion for it to be brought to this court.
We find the former decisions of this court in great confusion, as to whether the record on appeal from an order granting or refusing a motion for a new trial should contain the notice of intention. The first case where the question was considered is that of First National Bank v McAndrews, 5 Mont. 251, 5 P. 879, where a motion was made to strike the statement on motion out of the transcript "for the reason that there is nothing in the record to show that there was either a motion for a new trial filed, or a notice thereof served upon the adverse party, as required by section 287 of the Code of Civil Procedure." This court sustained the motion, and held that a decision upon motion for a new trial may not be reviewed on the record when the record does not show that any motion for a new trial was filed in the lower court, nor that any notice of motion, designating the errors complained of, was filed or...
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