King v. Pony Gold-Min. Co.

• Decision Date: 19 November 1900
• Citation: 62 P. 783,24 Mont. 470
• Parties: KING v. PONY GOLD-MIN. CO. et al.
• Court: Montana Supreme Court

62 P. 783

24 Mont. 470

KING v. PONY GOLD-MIN. CO. et al.

Supreme Court of Montana

November 19, 1900

Action by Rockwell King against the Pony Gold-Mining Company and others. Judgment for plaintiff. Defendants Henry Elling and another appeal. Plaintiff moves to dismiss appeal. Denied.

Robt. B. Smith, W. A. Clark, and Cullen, Day & Cullen, for appellants.

T. J Walsh, for respondent.

PIGOTT J.

1. Elling and Morris, who were impleaded as co-defendants with the Pony Gold-Mining Company and Hauser, have appealed from a judgment against them and an order denying their motion for a new trial. In July last the respondent moved that the appeals be dismissed. Upon the denial of the motion, leave was granted to renew it upon grounds other than those contained in the first motion, and thereupon the respondent filed the motion now before the court. The grounds of the present motion existed and were known to the respondent when he filed the original motion to dismiss, and no reason is suggested why the matters now urged were omitted from the former motion. The general rule is that successive motions will not lie to dismiss an appeal where the grounds of the second motion existed at the time the first motion was interposed. It is not pretended that this court is without power to entertain appeals in the class of cases to which the one at bar belongs. It is not said that this court is without appellate jurisdiction of the subject-matter of actions of the class within which the one at bar falls. The sole contention is that this court is without jurisdiction of the appeals for the reason that the undertaking on appeal is void. By failing to incorporate into the first motion to dismiss an appeal all the grounds which then existed, the respondent must, ordinarily, be deemed to have waived the grounds not therein specified. In the present instance however, the court granted to the respondent leave to move anew for the dismissal of the appeals upon grounds not stated in the former motion, and the motion now made sets out only additional grounds assailing the undertaking as void. Such a practice is, as was held in Succession of Edwards, 34 La Ann. 216, and Stevens v. Higginbotham, 6 Utah, 341, 23 P. 757, irregular, may lead to interminable delay, and should not be permitted. In granting leave to the respondent to renew his motion without restricting him to the presentation of matters occurring since the filing of the first motion, the court acted without due consideration, and it may perhaps be said that the order was improvidently made; but, since leave was granted, and the new motion filed in pursuance thereof, we feel indisposed to strike it from the files. We proceed, therefore, to consider the several grounds of the new motion.

2. To effectuate the appeals, an undertaking in the sum of $300 was filed. The Union Bank & Trust Company was the sole surety, and the undertaking is not accompanied by any affidavit of financial responsibility. The Union Bank & Trust Company was and is a domestic corporation organized and doing business under and by virtue of the provisions of chapter 1, entitled "Trust Deposit and Security Corporations," of title 3 of part 4 of division 1 of the Civil Code of 1895, being sections 590 to 611 of that Code. Subdivision 3 of section 604 provides, among other things, that corporations may be created under chapter 1 for the purpose of executing or guarantying "any bond or bonds required by law to be given in any proceedings in law or equity in any of the courts of this state or other state, or of the United States," and subdivision 10 provides that such corporations may be created for the purpose of becoming "indorser and surety *** for a compensation upon such terms and conditions as shall be agreed upon by the trustees of such corporation." The amount of the capital stock actually subscribed by such a corporation shall not be less than $100,000. Section 605. If its directors shall knowingly declare and pay dividends when the corporation is insolvent, or pay any dividends which would render it insolvent, "they shall be jointly and severally liable for all debts of the corporation then existing and for all that shall thereafter be contracted while they shall respectively continue in office." Section 606. Correct accounts of the transactions of the corporation shall be kept by the directors, and they must have full statements of the condition of affairs made out and exhibited to the stockholders as often as once in each year, at least 10 days before the day of election. The books and all records of the proceedings of the corporation shall at all times during their hours of business be open for inspection and examination to all stockholders, and to the auditor of the state, or to such person or persons as the legislative assembly or the state auditor shall designate or appoint for that purpose. Section 607. Section 607 further provides that every such corporation shall make a report of its condition to the state auditor on the first Monday of each January, April, July, and October, and at such other times as the auditor may call for it, under the oath of its president or treasurer, attested by a majority of the directors, showing in detail its liabilities and assets, and specifying its investments under heads of loans on mortgages, loans on collateral security, bonds and stocks, deposits in bank, and cash on hand; and that any officer or clerk of the corporation willfully making a wrong or false affidavit relative to the financial condition of the corporation shall be deemed guilty of perjury, and, upon conviction thereof, shall be punished accordingly. The sections referred to are parts of an act of the third legislative assembly approved on the 8th day of March, 1893. Laws 1893, p. 105. The articles of agreement and association set out the purposes for which the company was formed, among which are those hereinbefore mentioned. By section 1725 of the Code of Civil Procedure it is provided that an undertaking to secure an appeal must be in a sum not less than $300, and must be executed by at least two sureties; and by sections 1731 and 1899 of the same Code the clerk with whom the undertaking is filed must require the sureties to accompany it with an affidavit that they are residents and householders or freeholders within the state, and are each worth the sum specified in the undertaking over and above all their just debts and liabilities, exclusive of property exempt from execution. Sections 1900 and 1901 of the Code of Civil Procedure, being sections 1 and 2 of "An act relative to sureties on undertakings and bonds," approved March 9, 1893 (Laws 1893, p. 70), are as follows:

"Sec. 1900. In all cases where an undertaking or bond with any number of sureties is authorized or required by any provision of the Code, or any law of this state, any corporation with a paid up capital of not less than one hundred thousand dollars, incorporated under the laws of this state for the purpose of making, guarantying or becoming a surety upon bonds or undertakings required or authorized by law, may become and shall be accepted as security or as sole and sufficient security upon such undertaking or bond, and such corporate surety shall be subject to all liabilities and entitled to all the rights of natural persons as such sureties; provided: that whenever the liabilities of any such corporation shall exceed its assets the state auditor shall require the deficiency to be paid up in sixty days, and if it is not so paid up then he shall issue a certificate, showing the extent of such deficiency, and he shall publish the same once a week for three weeks in a daily paper published in the town or city wherein the principal office of such corporation is, and until such deficiency is paid up such company shall not be accepted on any bond; in estimating the condition of any such company, the state auditor shall allow as assets only such as are allowed under existing laws at the time, and shall charge as liabilities in addition to eighty per cent of the capital stock all outstanding indebtedness of the company, and the premium reserved equal to fifty per centum of the premiums charged by said company on all risks then in force.

"Sec. 1901. In all cases where an undertaking or bond is authorized or required by any law of this state, the officer taking the same must, except in the case of such corporation as is mentioned in the next preceding section, require the sureties to accompany it with an affidavit that they are each responsible and householders or freeholders within the state and are each worth the sum specified in the undertaking or bond over and above all their just debts and liabilities, exclusive of property exempt from execution. But when the amount specified in the undertaking or bond exceeds three thousand dollars and there are more than two sureties thereon they may state in their affidavits that they are severally worth amounts less than the amount specified in the undertaking or bond, if the whole amount be equivalent to that of two sufficient sureties. Any corporation such as is mentioned in the next preceding section may become one of such sureties. No such corporation shall be accepted in any case as a surety whenever its liability exceeds its assets, as ascertained in the manner provided in the preceding section."

The first ground of the motion is that sections 1 and 2 of the act of March 9, 1893, being sections 1900 and 1901, quoted are repugnant to the part of section 26 of article 5 of the constitution of Montana which ordains that "the legislative assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: *** Regulating the practice in courts of justice." Although couns...