Pincus v. Pincus' Estate

• Decision Date: 13 November 1933
• Docket Number: 7087.
• Parties: PINCUS v. PINCUS' ESTATE et al.
• Court: Montana Supreme Court

26 P.2d 986

95 Mont. 375

PINCUS v. PINCUS' ESTATE et al.

No. 7087.

Supreme Court of Montana

November 13, 1933

Appeal from District Court, Silver Bow County; W. E. Carroll, Judge.

Action by Jacob Pincus against the Estate of Adolph Pincus deceased, and another. From a judgment for plaintiff defendants appeal.

Cause remanded, with directions.

J. A Poore, of Butte, for appellants.

H. L. Maury, of Butte, for respondent.

ANDERSON Justice.

Plaintiff brought this action against the executor of his deceased brother's estate to recover upon a claim which had been disallowed by the defendant.

Adolph Pincus died on January 17, 1930. His will was admitted to probate. The first notice to creditors was published on March 1, 1930, requiring claims to be presented within ten months thereafter. Within the time limit of this notice plaintiff presented his claim to the defendant, who disallowed it on December 9, 1930.

Plaintiff alleged in his complaint that in the year 1916 he and his brother entered into a copartnership for the purchase and sale of personal property, store fixtures, and particularly jewelry. Each of the parties was to furnish his services in promoting the business of the firm; they did embark on a number of adventures. Both the complaint and the claim filed allege certain particular transactions into which these parties entered, as follows: (a) The purchase in 1916 from one Mose Linz of a certain lot of jewelry pledged to him by one Creighton Largey for $1,450, and sold by Adolph Pincus to the Bonner Manufacturing Company for $8,000, realizing a profit of $6,550, of which plaintiff claimed one-half, or $3,275. (b) The purchase in 1916 from Creighton Largey of a diamond for $400, thereafter sold to James Higgins for $1,360, realizing a profit of $960, of which plaintiff claims one-half, or $480. (c) The purchase of five units of Burke Divide stock for $500, of which two units were sold for $200, plaintiff claiming one-half of the dividends received on the stock and to be the owner of a one-half interest in the three shares of stock remaining. (d) The purchase and sale, in 1917, of a soda fountain at a profit of $3,100, of which the plaintiff claims one-half, or $1,350. (e) The purchase of diamonds from a Mrs. Gruell for the sum of $980, and the sale of the same for $1,600, at a profit of $620, of which plaintiff claims one-half, or $310. (f) The purchase, in the year 1927, of a diamond from one Jack Susser for $1,550, and the sale of the same for $7,000, realizing a profit of $5,450, of which the plaintiff claims one-half, or $2,725.

The defendant by his answer denied all the allegations of plaintiff's complaint, except that he admitted the death of Adolph Pincus, his appointment as executor, and the presentation and disallowance of the claim.

The plaintiff in his claim and complaint admitted that the sum of $310 had been paid on the various sums alleged by him to be due as the result of the above transactions.

The case was tried before the Honorable William E. Carroll, one of the judges of the district court of Silver Bow county, sitting with a jury; a general verdict was returned in favor of plaintiff for the sum of $8,025, that no payments had been made except those admitted, and that the plaintiff was the owner of an undivided one-half interest in the three units of the Burke Divide stock. Judgment was entered in accordance with the verdict on July 26, 1932, directing that the sum therein found to be due be paid by the executor in due course of administration of the estate.

On August 2, 1932, defendant served and filed his notice of intention to move for a new trial. The following day an affidavit of disqualification in the statutory form (subdivision 4, § 1, chap. 93, Laws of 1927) was filed against Judge Carroll, who on that day transferred the case to department No. 1 of that court, "for the hearing of all further proceedings herein, the Hon. Frank L. Riley, Judge presiding." Thereafter, on August 9th, a like affidavit of disqualification was filed by the plaintiff against Judge Riley, who on the following day made an order calling in the Honorable Benjamin E. Berg, judge of the Sixth judicial district, to hear defendant's motion for a new trial. Thereafter Judge Berg accepted the invitation of Judge Riley, heard the motion for a new trial, and made an order denying the motion upon condition that the plaintiff would file within six days a remittitur of the items listed as "c" and "d"; such remittitur was filed within time, and Judge Berg thereafter settled the bill of exceptions containing the testimony and the proceedings occurring at the trial of the cause before Judge Carroll. Other bills of exceptions were also settled including therein other proceedings in the case not occurring at the trial. The appeal is from the judgment so modified.

Plaintiff has filed in this court a motion to strike from the record the entire bill of exceptions settled by Judge Berg, which includes all the proceedings occurring at the trial before Judge Carroll. By this motion it is asserted that the bill of exceptions should be stricken for two reasons, which may be summarized as follows: (1) That upon the disqualification of Judge Riley, he was without jurisdiction to call in Judge Berg, and therefore Judge Berg was without jurisdiction to hear the motion for new trial or to settle the bill of exceptions. (2) That the cause was an equity case and, since the notice of motion for a new trial included none of the grounds upon which such motion may be granted under the statute in an equity case, therefore all the new trial proceedings subsequently had before Judge Berg were invalid, and consequently Judge Berg was without jurisdiction to settle the bill of exceptions against which this attack is made. It becomes necessary, therefore, for us to consider certain elementary principles in passing upon the first ground of plaintiff's motion, as set forth above.

Any judge of the district court may hold court for any other district judge. Constitution, art. 8, § 12. "If one district judge invites another to hold court for him, and the invitation is accepted, the invited judge, when he appears, and while he presides, has all the authority of the local judge." Rowan v. Gazette Printing Co., 69 Mont. 170, 220 P. 1104, 1106; section 9098, Rev. Codes 1921; Farleigh v. Kelly, 24 Mont. 369, 62 P. 495, 685. "When a judge is disqualified for imputed bias he is without authority to act further in the action in which he is disqualified, except to arrange the calendar, regulate the order of business, call in another judge, or transfer the cause, if a transfer is proper." Rowan v. Gazette Printing Co., supra; see subdivision 4, § 1, chap. 93, Laws of 1927. If there be more than one judge in the district, the one first disqualified in a given cause must call in another judge of the same district. Subdivision 4, supra. Upon the second or any subsequent disqualification of a judge in the cause, a district judge of another judicial district of the state must be called in to proceed, or the cause transferred to a district judge of another judicial district of the state. Subdivision 4, § 1, supra. Where the business of the court is distributed into departments presided over by different judges, the change of judge is usually effected by a transfer to another department. State ex rel. Goodman v. District Court, 46 Mont. 492, 128 P. 913.

None of the bills of exceptions contained in this record contain the rules of court in Silver Bow county. This court cannot take judicial notice of the existence of the rules of the various district courts. Middle States Oil Corporation v. Tanner-Jones Drilling Co., 73 Mont. 180, 235 P. 770. When Judge Carroll was disqualified, he still retained jurisdiction to invite another judge and to arrange his calendar. He exercised this jurisdiction by transferring the case to Judge Riley's department, which was a proper method, within the statute, for inviting in a judge of the same court. Upon the disqualification of Judge Riley, he still retained jurisdiction to call in an outside judge and to arrange the order of his trial calendar.

Since the record fails to show that any rules of court have been adopted in the Second judicial district for the apportionment of the business between the judges of that court, in the absence of such rules each of the judges had all the power and authority concerning any business in the district that is conferred upon any judge in this state. Rowan v. Gazette Printing Co., supra. Furthermore, Judge Carroll transferred the case to Judge Riley's department for all further hearings. Therefore Judge Riley was within his jurisdiction in calling in Judge Berg.

If we assume for the sake of this discussion that counsel for the plaintiff is correct in his assertion that this was an equity case, a question upon which it appears from the briefs and the oral argument there is serious controversy, and as to the correctness of the assertion of counsel for plaintiff we express no opinion, we will now give consideration to the second ground of plaintiff's motion, as stated above.

The causes for the vacation of a verdict and the granting of a new trial are enumerated in section 9397, Revised Codes 1921. Section 9396, Id., provides that "no new trial shall be granted in equity cases *** except on the grounds mentioned in the first, third, and fourth subdivisions of section 9397."

The notice of intention to move for a new trial served and filed in this cause did not contain any of the grounds enumerated in any of the grounds mentioned in section 9396, supra. Section 9390 provides that "whenever a motion for a new trial is pending, no bill of exceptions need be prepared or settled until the decision of...