Porter v. Industrial Printing Co.

• Decision Date: 09 December 1901
• Citation: 66 P. 839,26 Mont. 170
• Parties: PORTER et al. v. INDUSTRIAL PRINTING CO.
• Court: Montana Supreme Court

66 P. 839

26 Mont. 170

PORTER et al. v. INDUSTRIAL PRINTING CO.

Supreme Court of Montana

December 9, 1901

Brantly C.J., dissenting.

Appeal from district court, Cascade county; J. B. Leslie, Judge.

Action by W. N. Porter and another, partners doing business under the firm name of Porter Bros., against the Industrial Printing Company, a corporation. Judgment for plaintiffs. From an order granting defendant's motion for a new trial, plaintiffs appeal. Affirmed.

Stanton & Stanton, for appellants.

Greene & Cockrill, for respondent.

MILBURN J.

This is an appeal taken by plaintiffs from an order granting the defendant's motion for a new trial. The plaintiffs commenced an action to recover a sum of money from the defendant. On the 10th day of March, 1898, the defendant answered, making certain denials, and attempting to set up certain counterclaims; thus seeking to recover of plaintiffs a total sum largely greater than the amount sued for by the plaintiffs. On the 4th day of May, 1898, the defendant filed its præcipe, asking for default of reply to the counterclaims, and the clerk, in pursuance of the demand entered the default. On May 9, 1898, the plaintiffs filed a reply to the counterclaims, denying each of the allegations of the answer. On May 11, 1898, the defendant filed its motion to strike the reply from the files, because not filed in time, which motion was afterwards granted, plaintiffs excepting. The cause was by consent referred to a referee to make and report findings of fact. Proof was made by the plaintiffs, and the referee found for them on their claims in the sum of $1,308.83. No proof was made by the defendant in support of its counterclaims; it, as is now claimed depending upon the default of plaintiffs. Plaintiffs and defendant severally moved the court to adopt the findings of the referee and for judgment. The court adopted the findings, and, declaring that only three of the counterclaims of the defendant stated, severally, causes of action, the day after finding for the plaintiffs entered judgment for them in the amount claimed and proved by the plaintiffs, and for costs, less the amount of the sufficiently pleaded counterclaims, and $30 penalties, levied upon the plaintiffs as costs upon overruling certain motions. Thereafter the defendant moved the court for a new trial, the principal ground, and the only one, really urged by counsel, being that the court below "changed front," as the court's action was styled in Newell v. Meyendorff, 9 Mont., at page 262, > Pac., at page 334, 8 L. R. A., at page 442, 18 Am. St. Rep., at page 742; and thereby, as the judge declared in giving his reasons for granting a new trial, the defendant was surprised to its damage; and defendant further claims that this surprise was such as ordinary prudence could not have guarded against.

There is nothing properly in the record to show that the court at any time before judgment held that the answer was bad for substance in respect of any counterclaim. The court's opinions cannot be looked to to determine what was done or not done in the case. The defendant's bill of exceptions does not in any wise refer to any action or decision of the court upon any motion or demurrer relating to the answer. In the specifications of error submitted to the court in connection with the bill of exceptions used on motion for a new trial, one ground is that the court "erred in finding for plaintiffs upon motion for judgment for defendant in holding certain counterclaims insufficiently pleaded, when the court had previously before trial held the same good against a motion to strike them out of the answer," and that the court erred in "ordering judgment for plaintiffs without referring the cause to the referee for a new trial, and allowing defendant to amend its answer, by reason of the fact that the pleading of the counterclaims had all been held good by the court before the cause was referred to the referee, and no legal right existing whereby an amendment might be by the referee allowed." But there is no statement in the bill of exceptions to show that any such motion (or demurrer) attacking the answer was made, submitted, or decided. It appears that at the time of the making of the order made and signed July 28, 1898 (the day before the judgment was rendered), the court, in adopting the findings of the referee, ordered "that judgment be entered in favor of plaintiffs in the sum of $996.95 and costs, credited by defendant taxed costs for overruled motions against plaintiffs herein," and filed "a memorandum of opinion," in which the judge stated that no objection was made to the findings of the referee, and that "the only questions that remain are in determining the sufficiency of the counterclaims," and that "it is urged by defendant that inasmuch as plaintiffs failed to interpose a demurrer, that now, after default, they cannot object to the pleading if it falls short of stating a cause of action." On November 11, 1898, the judge signed, settled, and allowed a bill of exceptions on motion of plaintiffs, in which there appears an opinion of the judge, with argument and authorities to support the views of the court why it believed that the defendant had been surprised by certain action of the court, which action is, after the granting of the motion for a new trial and in the so-called bill of exceptions of plaintiffs, referred to in the following language: "Subsequently to the filing of its answer by the defendant the plaintiffs appeared, after notice to the defendant, and moved the court to strike out each of the six demands set out in defendant's answer as counterclaims, upon the grounds that the same were sham, irrelevant, indefinite, uncertain, and did not state facts sufficient to constitute a cause of action or defense. Each said demand and counterclaim in defendant's said answer was by said motion sought separately to be stricken out. After argument the said motion was submitted, and the court denied said motion upon the theory that the said matter sought to be stricken out, if defective, should have been assailed by a general demurrer to each counterclaim, and that the remedy was not by motion to strike out. I am of the opinion that, as to three of said demands, said motion should have been sustained. Lomme v. Kintzing, 1 Mont. 290; Sands v. Maclay, 2 Mont. 35; Smith v. Davis, 3 Mont. 109; McMahon v. Thornton, 4 Mont. 46, 1 P. 724; Dodson v. Nevitt, 5 Mont. 518, 6 P. 358. Afterwards said cause was referred to Fletcher Maddox to hear the testimony, and find facts and report the same to the court, which was done; and thereupon the cause was submitted to the court upon pleadings and findings of the referee, and judgment was rendered in favor of the plaintiffs, disallowing the three said counterclaims heretofore referred to, and which are specifically set out in the ruling of the court thereon, heretofore made, and were disallowed upon the ground that they each failed to state a cause of action. I am of the opinion that the ruling of the court in denying said motion to strike out, and subsequently disallowing said counterclaims, was a surprise to the defendant, within the meaning of subdivision 3, § 1171, Code Civ. Proc., and such a surprise which ordinary prudence could not have guarded against. No reply having been filed, and the default of the plaintiffs on said counterclaims having been entered of record, no evidence was received or offered in support of said counterclaims, and the defendant, perhaps, had the right to assume that, said motion to strike out having been denied, his counterclaims were sufficiently well pleaded, Monson v. Cooke, 5 Cal. 436; Carpentier v. Small, 35 Cal. 362; Hartson v. Hardin, 40 Cal. 267; Tennant v. Pfister, 45 Cal. 272; Hayne, New Trial & App. § 37."

Although we may not consider the opinion of the court below,--only its acts, and not its reasons, being properly part of the record to be brought to this court on appeal,--still when, as in this case, it is submitted by all parties in their briefs that the acts referred to in the opinion last above quoted were done at the time and in the manner stated by the judge, it is not improper or illegal for us to assume them to have been done as stated; and the opinion of the judge, while in no wise to be considered as any part of the case, having, however, been submitted to us without objection, it may, not unwisely, be read and considered by us as possibly suggestive of what may be the just and lawful determination of this appeal. The question to be decided is a close one. New trials are statutory. If granted, they must be granted upon statutory grounds, and none other. Ogle v. Potter, 24 Mont. 501, 62 P. 920.

The record is obscure in many places, very redundant in others and absolutely wanting in most important points. If it were not for the fact that the briefs submit to this court matters as part of the case which do not appear in the record, it would be impossible to tell what were the grounds on which hearing of motion for a new trial was had. It is certain from the record and the concessions contained in the briefs of the parties, taken together, that the court had submitted to it and argued before it, on the hearing on motion for a new trial, the fact that, pending answer, it had denied the motion to strike certain counterclaims in the answer, the ground of such...