Mccormick v. Hubbell

• Decision Date: 31 January 1881
• Citation: 4 Mont. 87
• Parties: McCORMICK v. HUBBELL and others.
• Court: Montana Supreme Court

4 Mont. 87

McCORMICK

v.HUBBELL and others.

Supreme Court of the Territory of Montana.

January Term, 1881.

Appeal from First district, Custer county.

Warner & Garlock, for appellant.

H. N. Blake, for respondents.

WADE, C. J.

This is an action upon an undertaking on appeal. It appears from the transcript that on the twenty-eighth day of September, 1878, judgment was rendered by the probate court of Custer county in favor of Thomas H. Burton against Elizabeth Young for the sum of $369 and costs of suit, and on the twenty-eighth day of October, 1878, Young appealed to the district court of Custer county. On this appeal the defendants Kelly and Hubbell entered into an undertaking whereby they undertook and promised to pay any judgment that might be rendered against the defendant Young in the district court. On the twenty-seventh day of May, 1879, the cause was tried in the district court, and a verdict and judgment thereon rendered against Young for the sum of $302 and costs. The defendant did not file a motion for a new trial, or appeal from this judgment. Thereafter the plaintiff Burton, in that action, sold and assigned all his interest in said judgment and undertaking to John McCormick, the plaintiff herein, who brings this action on said undertaking. To this action the defendants, the sureties upon the undertaking aforesaid, in their answer, set up several matters in defense, and among them the following: First. That on the twenty-eighth day of September, 1878, and thereafter until the eighth day of February, 1879, the county of Custer was an unorganized county in the territory of Montana, and that during said period of time such county had no lawfully authorized or qualified county officers, and that during such period the county of Custer had no probate judge or probate court, and no person authorized and qualified to act as such, and therefore that the judgment alleged to have been rendered by the probate court of Custer county is without force or effect, and utterly void; second, that there was not on the twenty-eighth of September, 1878, nor thereafter until the eighth day of February, 1879, any district court within and for the county of Custer; third, that Young and her attorneys induced and procured these defendants to sign said undertaking by false and fraudulent representations; fourth, that the judgment in the district court was not entered by the clerk or signed by the judge thereof on the twenty-seventh day of May, 1879, but that some time in August of that year the amounts, both of damages and costs, as they now appear in the judgment, were surreptitiously entered therein in a wrongful and unlawful manner, and that the name of the judge signed to said judgment was not signed or authorized by said court; fifth, that the jurymen who tried the case in the district court were corruptly biased in favor of the plaintiff, in this, that they were creditors of the plaintiff, and that the plaintiff promised such jurymen if a judgment were rendered in his favor to pay such jurymen the amount of their claims against him; and, sixth, that at the time said judgment was rendered in the district court against the said Elizabeth Young she was a married woman, and the wife of Richard Kelly, one of these defendants, and that Kelly was not made a party to said action. Thereupon the plaintiff moved to strike out said several matters of defense, which motion was sustained, and this action of the court is assigned as error.

1. In this action the judgment of the probate court cannot be attacked. Sureties upon an appeal bond or undertaking cannot go behind the judgment to set up any matter of defense of their liability which might have been pleaded or shown in the original action. If the probate court was not properly constituted or authorized, or if the judgment was improperly rendered therein, the defendant in that action might have made that defense in the probate court or had the same retried on her appeal to the district court. Having failed to do this, the sureties cannot now make this collateral attack upon the judgment. There is another consideration which renders the question as to whether or not the probate court of Custer county, at the time of the rendition of the judgment therein, was properly constituted and authorized, an immaterial question. A cause of action reaching the district court from the probate court under section 435 of the Code is tried as a new action. The statute provides that such a case shall be tried in the district court de novo. New pleadings may be filed therein, and the action proceeds in all respects as if it had been commenced in that court. When the transcript and papers are sent from the probate court to the district court, and the parties appear therein without objection, the jurisdiction of the district court at once attaches, and the case is tried anew, and is...