Morse v. Swan

• Decision Date: 31 August 1875
• Citation: 2 Mont. 306
• Parties: MORSE, respondent, v. SWAN, appellant.
• Court: Montana Supreme Court

2 Mont. 306

MORSE, respondent,

v.SWAN, appellant.

Supreme Court of the Territory of Montana.

August Term, 1875.

Appeal from First District, Gallatin County.

THIS was an action for trespass, and the prayer for relie?? claimed treble damages, as provided for by section 300 of Civil Practice Act. The trial was by the court, and the findings and judgment in favor of plaintiff.

S. WORD and G. MAY, for appellant.

Appellants claim that the court below erred, in overruling thei?? demurrer to plaintiff's complaint; sustaining oral motion to strik?? out part of complaint without having the record show the same ?? requiring defendants to answer over instanter; rendering judgmen?? against defendants; overruling motion for new trial and vacating the decision of the court.

This action is brought under a punitive statute, and must stan?? or fall by that statute. The findings of court do not show plaintiff to have been in possession of the premises at the commencement of this action. This was necessary to sustain the action.R. P. VIVION and M. C. PAGE, for respondent.

1. The demurrer was to the whole complaint and was properly overruled, if the same contained a cause of action sufficiently pleaded.

2. The demurrer, as to ambiguity and uncertainty, does not point out in what it consists, and should have been disregarded.

3. The demurrer goes only to the relief. If plaintiff was not entitled to treble damages, it might have been stricken out on motion, or would have been mere surplusage if it stood.

KNOWLES, J.

No bill of exceptions was taken in this case. We find a motion for a new trial, the order overruling the same, and a statement that this ruling was excepted to. This motion is as follows: “And now comes the defendant * * * and moves the court for a new trial and vacation of the decision and judgment of the court herein rendered for the following reasons, to wit:

1. Because of the insufficiency of the evidence to justify the verdict or findings and decision, and that the same is against law.

2. Error in law occurring at the trial and excepted to by the defendant.

3. Surprise which ordinary prudence could not have guarded against.”

No statement of the evidence is set forth. This court cannot determine whether the findings of the court were unsupported by the evidence, or whether they are against law. The record does not disclose any rulings of the court upon questions of law, occurring at the trial, to which appellant excepted. The record does not disclose any matters that were a legal surprise to appellant. The affidavits of appellant and of Bowers go to the point, that the building torn down by the defendant was not worth more than $150. The value of this building was an issue in the case.

This court cannot tell whether this evidence would be cumu??ative, for it does not know what evidence was produced on the ??rial. There is no reason shown why this evidence in these ??ffidavits could not have been produced on the trial. It appears, from the affidavit of appellant, that the finding of the court, as to the value of the house and milk-house, was supported by evidence. In this affidavit he says: “There are excessive and punitive values placed upon said improvements, instead of real and true values, although seemingly sustained by the testimony.” A new trial cannot be granted on the ground of newly-discovered evidence, unless it appears that this evidence is not cumulative, and could not have been produced on the trial.

The appellant claims to be surprised, for the reason that his attorneys told him that the consideration paid for the pre-emption tract of land made no difference in this case. The findings of the court show that it did not, and he could not have been surprised by this advice. I think the court properly overruled the motion for a new trial. It appears imperfectly, from the record, that the appellant moved orally to strike out a part of the complaint. This motion was sustained.

Appellant complains because the record does not show the motion or what part of the complaint was stricken out. There is no error of which the appellant can complain. If he had made his motion a part of the record, the ruling would be plain. It is difficult to comprehend what counse...