Middle States Oil Corporation v. Tanner-Jones Drilling Co.
| Decision Date | 18 April 1925 |
| Docket Number | 5620. |
| Parties | MIDDLE STATES OIL CORPORATION v. TANNER-JONES DRILLING CO. et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Big Horn County; Robert C. Stong, Judge.
Action by the Middle States Oil Corporation against the Tanner-Jones Drilling Company and two others. From a judgment in favor of named defendant, plaintiff appeals. Affirmed.
C. F Gillette, of Hardin, for appellant.
Guinn & Maddox and T. H. Burke, all of Hardin, for respondents.
This is an action in conversion, begun by the plaintiff against the Tanner-Jones Drilling Company, hereafter called the defendant, the sheriff of Big Horn county, and the sheriff's bondsman, to recover the sum of $25,000, the alleged value of casing seized and disposed of by the sheriff at the direction of the defendant.
The complaint was filed March 14, 1924. On April 3 the sheriff and his bondsman by their counsel, Mr. Haven, demanded of the plaintiff, a foreign corporation, security for costs under the provisions of section 9807, R. C. 1921. What further action in the case these parties took, if any, the record does not show. Security bond was filed by plaintiff April 26.
The defendant appeared in the action by answer and counterclaim March 25 with Messrs. Guinn & Maddox as its counsel. The answer embodied matter in which it was pleaded that the plaintiff by acts done and representations and admissions made had estopped itself from maintaining the action. By the counterclaim the defendant asked judgment against the plaintiff for the sum of $11,039.61. Plaintiff having failed to plead to the new matter set forth in the answer or to the counterclaim, counsel for defendant on April 19 filed a præcipe for the default of plaintiff. Two days later they served on counsel for plaintiff notice that on May 1st they would move for judgment on the pleadings. On April 26 counsel for plaintiff filed a demurrer to the counterclaim and also a notice that on May 1st plaintiff would move the court to strike the præcipe for default from the files for the reason that the alleged new matter in the answer is not such as to require a reply. In turn, counsel for defendant gave notice that on May 1 they would move to strike the demurrer to the counterclaim from the files.
On May 1 the court granted defendant's motion to strike plaintiff's demurrer to the counterclaim, denied plaintiff's motion to strike defendant's præcipe for default, and took defendant's motion for judgment on the pleadings under advisement. On the next day, May 2, counsel for plaintiff gave notice that on May 15 he would move to set aside the default of the plaintiff for failure to reply to the separate answer and counterclaim on the ground of excusable neglect. The matter coming on for hearing on May 15, the court denied plaintiff's motion to set aside the default and granted defendant's motion for judgment on the pleadings. The court ordered defendant to submit proof in support of its counterclaim. This having been done, it was ordered that plaintiff's complaint be dismissed and that defendant have judgment upon its counterclaim. From the entry of that judgment plaintiff prosecutes this appeal.
1. Demand for security for costs made by the sheriff and his bondsman, in which this defendant did not participate, did not operate to stay proceedings between plaintiff and this defendant. A defendant, entitled to the privilege extended by the statute, if he desires the benefit it affords, must himself insist upon it.
2. It will not serve any useful purpose to enter into a discussion over the sufficiency of defendant's affirmative defense in which estoppel is pleaded, nor respecting the counterclaim. It is enough to say that when we indulge the reasonable inferences in favor of defendant's pleading as we must, when it is attacked upon appeal from a default judgment (Crawford v. Pierse, 56 Mont. 371, 185 P 315; Hodson v. O'Keefe, 71 Mont. ---, 229 P. 722), we are constrained to hold that estoppel is pleaded in the affirmative defense and the counterclaim is not vulnerable to the objections lodged against it in plaintiff's brief.
Estoppel may not be proved unless pleaded, if the pleader has had an opportunity to plead it-unless, of course, evidence showing estoppel is admitted without objection. Capital Lumber Co. v. Barth, 33 Mont. 94, 81 P. 994; Eisenhauer v. Quinn, 36 Mont. 368, 93 P. 38, 122 Am. St. Rep. 370, 14 L. R. A. (N. S.) 435. The estoppel was new matter. The plaintiff neither demurred nor replied to it. It stood admitted. As the estoppel pleaded completely avoided the cause of action set forth in the complaint, the defendant was entitled to judgment on the pleadings. Section 9158, R. C. 1921; State ex rel. Montana Central Ry. Co. v. District Court, 32 Mont. 37, 79 P. 546; State v. Quentic, 37 Mont. 32, 94 P. 500; Anaconda C. Min. Co. v. Thomas, 48 Mont. 222, 137 P. 381. The defendant also was entitled to judgment upon the counterclaim. Authorities supra; Munger v. Nelson, 61 Mont. 104, 201 P. 286.
3. The court did not err in refusing to set aside the default for the plaintiff did not show excusable neglect. Practically the only excuse made for the failure to either demur or reply to the answer, or to demur or answer to the counterclaim, is according to the affidavit of Mr. Gillette, that a tacit understanding existed between the members of the bar of Big Horn county to the effect that one would not enter default against another without first giving him notice and an opportunity to plead, which policy had become firmly established between the attorney for the plaintiff and the attorneys for the defendant; and that the default in this instance was taken without notice to the attorney for the plaintiff and without giving him an opportunity to file any pleading. It is true that Mr. McNally of Sheridan, Wyo., added an additional element in his affidavit, but it does not aid the plaintiff substantially. He deposed that he is an attorney for the plaintiff in this case; he is the general attorney in connection with its business in the states of Wyoming and Montana. He averred that negotiations for a...
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