Radosevich v. Engle
| Decision Date | 20 March 1941 |
| Docket Number | No. 8003.,8003. |
| Citation | 111 Mont. 504 |
| Parties | RADOSEVICH v. ENGLE. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Fourteenth District, Musselshell County; William L. Ford, Judge.
Action in the justice court by John Radosevich against Clark Engle wherein judgment was given for defendant who interposed a demurrer, and on appeal to the district court, the trial resulted in a verdict for plaintiff, and the defendant appealed.
Reversed and remanded.
Rockwood Brown and H. S. Davis, both of Billings, W. W. Mercer, of Roundup, and M. N. Hoiness and F. S. Longan, both of Billings, for appellant.
G. J. Jeffries, of Roundup, for respondent.
This action was originally brought in the justice court of Roundup township in Musselshell county. In that court judgment was given for the defendant. Subsequently an appeal was taken to the district court of that county and trial was had before a jury which resulted in verdict for the plaintiff and judgment thereon.
There are many specifications of error, and among other questions raised by the specifications is one relative to the sufficiency of the pleadings on the part of the plaintiff. At the time of the trial and after the first witness was sworn and before any testimony was introduced the defendant objected to the introduction of any testimony upon the grounds,
The objection was overruled. The objection and specification necessitate consideration in detail of the pleadings. The first pleading in the action, omitting the title of the court and cause, which was entitled simply “Account” is as follows:
“Clark Engle in Account With John Radosevich:
Nothing further appears in this instrument and except for the title of the court and cause it is given completely in the quotation. A demurrer was filed to this complaint but no ruling appears in the record. The defendant under the provisions of section 9649, Revised Codes, filed a demand for the items of account and for a bill of particulars. Whatever was delivered in response to this demand was not filed in the court. However, the defendant filed an answer in which he admitted owing the plaintiff a stated sum for rent but which sum the answer states he had paid the plaintiff since the commencement of the action.
The defendant then sets out as an exhibit a copy of a lease arrangement between the parties and alleges that it is the only agreement existing between them. This agreement concerns certain real property which the defendant occupied under the lease. In this instrument he agreed to pay certain rental. However, the agreement is silent as to any of the things mentioned in the plaintiff's complaint. Further in the answer the defendant alleges that in response to his demand for a bill of particulars the plaintiff submitted a list of items which appears as follows:
“Memorandum
Plaintiff is entitled to reimbursement for the following described articles:
Further in the answer defendant alleges that the total of the items as appearing from the bill of particulars exceeds $300, the jurisdictional amount. It appears that this answer was filed on the day the cause was set for trial in the justice court. At that time it is shown by the various motions of counsel in the trial of the cause in the district court and by their briefs the plaintiff presented what he has entitled a supplemental complaint, but it does not appear in the transcript of the justice court proceedings, and which is as follows, omitting the title of the court and cause:
“Supplemental Complaint
No answer appears to this supplemental complaint, however, even though by appropriate motion the plaintiff sought judgment on the theory that the defendant had failed to answer this supplemental complaint which apparently plaintiff contends was really an amended complaint, the matter proceeded to trial. We do not believe that, when considered together and given the fullest possible effect, not only to the complaint but also to the so-called bill of particulars and the supplemental complaint, the pleadings are sufficient even in a justice court. Section 9626 of the Revised Codes provides: “An action in a justice's court is commenced by filing a copy of the account, note, bill, bond, or instrument upon which the action is brought, with a statement of the amount due thereon, or a concise statement in writing of the cause of action, either of which is deemed a complaint.”
From the title of the original pleading on the part of the plaintiff it would appear that it was his intention to proceed under the first portion of that section, i. e., by filing a copy of the account rather than under the second portion of the section which requires a concise statement in writing of the cause of action. Defendant's brief points out that the items sued on are not ordinarily under the circumstances within the definition of “account” as used in the statute, and with this plaintiff agrees. In his brief he says this:
If the action here, then, is not on an account as plaintiff admits and as is made apparent by a study of the testimony adduced in support of the complaint, in order for it to be sufficient the complaint, the memorandum and supplemental complaint together must furnish “a concise statement in writing of the cause of action.” From the quotation from plaintiff's brief, it is apparent that it is his theory that in reality this is an action based on conversion coupled with an action for damages. So far as the action for rent is concerned that is no longer before us by reason of the fact that tender of rent was made which was found sufficient by the trial court and the issue of the rent due was not presented to the jury.
Bearing in mind the provisions of the statute last above quoted, and section 9640 and also section 9638, which provides that pleadings in justice's court need not be in any particular form but only that they “must be such as to enable a person of common understanding to know what is intended,” and also the various pronouncements of this court to the effect that technical rules of pleading should not be applied to the justice courts and that a complaint filed therein must be construed with great liberality (Lambert v. Helena Adjustment Co., 69 Mont. 510, 222 P. 1057;Rhule v. Thrasher, 88 Mont. 468, 295 P. 266, and many others), we are still constrained to hold the pleadings insufficient. We have examined all the cases touching this point in this jurisdiction and in California in addition to decisions from many other states. We have been unable to find any case on all fours with this; but see Barrett v. Shipley, 63 Mont. 152, 206 P. 430, where the complaint in claim and delivery was conceded insufficient in a justice's court in the absence of an allegation of right of possession. In most of the actions where the question of the sufficiency of the complaint arises, the action is on an account, bill or note as contemplated by section 9626. The mere fact that great liberality is allowed in justice courts does not dispense with the necessity for some pleadings and certainly the provisions of 9626, 9638 and 9640 requiring a concise statement in writing of the facts constituting plaintiff's cause of action so as to enable a person of common understanding to know what is intended, is entitled to as much force as the provisions of those sections dispensing with any great formality.
In the case of St. Louis & S. F. R. Co. v. Hoff, 76 Kan. 506, 92 P. 539, 540, the court said: “It is true that a very informal statement is held to be sufficient in a bill of particulars before a justice of the peace; but where there is an absolute omission to state a fact essential to the cause of action, and such fact is not deducible nor inferable from those which are stated, the defect is fatal where a proper objection is taken, and there is no waiver.”
In Terry v. Superior Court of San Diego County, 110 Cal. 85, 42 P. 464, it is said, and we believe very aptly so, “It need only be said that, however liberal the rules of pleading may be in a justice's court, nevertheless a cause of action must there be stated, and it must be the cause of action relied on, for in that as in every court the allegata and the probata must correspond, and the judgment must be upon the demand, and within the pleadings.”
While it is true that the justice court is the layman's forum so far as the plaintiff is concerned, it is also the layman's forum so far as the defendant is concerned. He is entitled to complaints sufficiently definite so that he can know from them what proof he must meet. In other words, as was said by the California court, the allegations must be...
To continue reading
Request your trial
-
State ex rel. Morgan v. State Bd. of Examiners
...of him, and that it accrued to him in the capacity in which he sues.' 71 C.J.S., Pleading, Sec. 71, p. 187; Radosevich v. Engle, 111 Mont. 504, at page 512, 111 P.2d 299, 303. In Moshannon Nat. Bank v. Iron Mountain Ranch Co., 45 Wyo. 265, 18 P.2d 623, 21 P.2d 834, at page 835, the court sa......