Raymond v. Blancgrass

• Decision Date: 01 February 1908
• Citation: 93 P. 648,36 Mont. 449
• Parties: RAYMOND v. BLANCGRASS et al.
• Court: Montana Supreme Court

93 P. 648

36 Mont. 449

RAYMOND v. BLANCGRASS et al.

Supreme Court of Montana

February 1, 1908

Appeal from District Court, Lewis and Clark County; J. M. Clements Judge.

Action in equity by Mary Raymond against John Blancgrass and others.From a judgment for plaintiff, John Blancgrass and Philip Chevalier appeal.Reversed.

Albert I. Loeb, Walsh & Nolan, and I. Parker Veazey, Jr., for appellants.

E. A Carleton, for respondent.

BRANTLY C.J.

It is alleged in the complaint herein that on April 29, 1904, the plaintiff, in an action brought for that purpose against her husband, Pierre Raymond, in the district court of Lewis and Clark county, obtained a decree providing for the separate maintenance of herself and her four minor children, which the decree awarded to her custody; that the decree directed the husband to pay to her monthly, and on the first day of every month thereafter during the joint lives of plaintiff and defendant, or until reconciliation should be effected, or until the further order of the court, the sum of $80; that it further directed that the defendant forthwith pay to her the sum of $50 to purchase necessary clothing for the plaintiff and her children, and also an additional sum of $48 to pay rent then due and owing by the plaintiff; that none of said sums have been paid by the defendant, or any one in his behalf, but are long past due; and that the said defendant is wholly insolvent, has no other property within the jurisdiction of the court out of which the sums so awarded may be realized, and is, and has been since soon after the rendition of the decree, a nonresident of the state of Montana.It is then alleged as follows: "(5)Plaintiff further avers: That no reconciliation has ever taken place between her and her said husband, Pierre Raymond, and there is no likelihood that any will ever occur between them.That ever since said decree of separate maintenance was entered the said Pierre Raymond has utterly failed and neglected to contribute in any manner whatsoever to the support or maintenance of the plaintiff or her said minor children, nor has he communicated with them in any way, but has utterly abandoned this plaintiff and her said children.(6) That such proceedings were had in this court under and by virtue of said decree of separate maintenance.That the visible and known property of said Pierre Raymond, after he had departed without this state and had refused and failed to comply with said decree, was set apart by the court for the benefit of plaintiff and her said minor children in order to carry out and make effectual the provisions of said decree, but that the funds derived from the sale of said property of said Pierre Raymond have become almost exhausted, and will, in a very short period of time, be wholly consumed, thereby leaving plaintiff and her said minor children without any means of support, as this plaintiff is without any other property or means of her own.(7)Plaintiff avers that she brings this suit in behalf of herself and her said minor children to enable her to provide the means for her and their support and to secure to her and them the rights and benefits to which they are entitled under and by virtue of the aforesaid decree.(7a)Plaintiff further avers: That on or about March 10, 1904, at Lewis and Clark county, in the state of Montana, these defendants combined, connived, and conspired together to hinder, delay and defraud the plaintiff of her rights in the property of her said husband, and said defendants combined, connived, and conspired together to defeat the plaintiff in her said suit for separate maintenance against her husband, which was then pending in this court, as these defendants well knew, to make ineffectual any decree which she might obtain against her husband.And so it was that at the time and place aforesaid these defendants unlawfully and wrongfully took and carried away 150 head of sheep, of the particular kind known as wethers, then and there the property of the said Pierre Raymond and in his possession, and which said wethers were of the value of $900, and converted and disposed of the same to their own use to the damage of plaintiff in the sum of $900.(8) That in the unlawful taking and converting of said 150 head of wethers, as aforesaid, the defendants have been guilty of fraud, oppression, and malice."The prayer demands judgment for the sum of $900, with interest on this sum since March 10, 1904, and costs of suit, and that the amount, when recovered, be devoted by the court to the payment of the sums awarded plaintiff under the decree.The defendants in their answers admit the rendition of the decree, as alleged, but put in issue all the other allegations of the complaint.At the commencement of the trial the defendants objected to the introduction of any evidence in support of the allegations of the complaint on the ground that they do not state a cause of action.The objection was overruled.At the close of plaintiff's case the defendants made separate motions for nonsuit, basing their motions upon the same ground upon which their objection was made.The motion of defendant Blaise was sustained, and the cause dismissed as to him.Those of the other defendants were denied.The latter declined to offer any evidence.The court submitted the case to the jury for two special findings, viz., whether the defendants converted the sheep, and what was their value at the time of the conversion.The jury having found that the defendants were guilty of the conversion, and that the sheep were of the value of $712.50, judgment was rendered and entered in favor of plaintiff for this sum, with interest and costs.The defendants Blancgrass and Chevalier have appealed from the judgment and an order denying them a new trial.

The question submitted for decision is whether the complaint states facts sufficient to warrant any relief.It is not clear from an inspection of it whether it attempts to state a cause of action for a conversion, or one for damages in the nature of an action on the case for the wrongful conduct of defendants, by which plaintiff has been prevented from having satisfaction, pro tanto, of her judgment, or whether the plaintiff has attempted to invoke the aid of equity to reach an asset of her husband which cannot be reached by the ordinary process of execution.The form in which an action is brought is of no consequence; nor does it matter that the complaint contains allegations not appropriate to the purpose sought to be attained.In determining the issue of law presented by a general demurrer to the complaint, or by any other appropriate method of raising the question-as here, by an objection to the admission of evidence at the trial, on the ground that the facts stated do not warrant any relief-matters of form will be disregarded, as well as allegations that are irrelevant or redundant; and if, upon any view, the plaintiff is entitled to relief, the pleading will be sustained.Donovan v. McDevitt,36 Mont. 61, 92 P. 49.

We inquire, first, whether the complaint states a cause of action in conversion.In such an action the plaintiff must allege and prove a general or special ownership in the property and a right to the immediate possession of it at the time of the unlawful taking by defendant.Harrington v Stromberg-Mullins Co.,29 Mont. 157, 74 P. 413;Glass v. Basin & Bay State Min. Co.,31 Mont. 21, 77 P. 302.The allegations of the complaint here do not meet this requirement.It is nowhere alleged that the plaintiff was the owner of the sheep at the time of the conversion, nor that she had any special property in them, nor that she was in possession of them.Indeed, the contrary appears, for it is alleged that "these defendants unlawfully and wrongfully took and carried away 150 head of sheep *** then and there the property of the said Pierre Raymond, and in his possession," etc.The idea that plaintiff had any interest in them, even by possession, is thus excluded.Further, the conversion took place prior to the rendition of the decree, and it is not alleged that the cause of action arising out of it was set apart to the plaintiff under the terms of the decree, supposing this could have been effectively done.Does it, then, state a cause of action for damages, upon the theory that, by the wrongful acts of the defendants, the plaintiff has been prevented, in part, from having satisfaction of her judgment against her husband?Just here it may be observed that the result of the action for separate maintenance was a personal judgment against Raymond which could be enforced by execution as any other judgment."A judgment is the final determination of the rights of the parties in an action or proceeding."Code Civ. Proc. § 1000.While decrees in equity often extend to and cover matters entirely beyond the purview of judgments at law, they are nevertheless judgments within the definition of the statute, supra, and, so far as they award in any case a recovery of money, they are in nowise different from judgments at law.In legal effect there is no distinction.5 Ency.Pleading & Practice, 489.When properly docketed they become liens upon the real estate of the debtor.They are enforced by execution just as are judgments in legal actions.Code Civ. Proc. § 1214.An order directing the payment of money is, pro haec vice, a judgment, and may be enforced by execution.Code Civ. Proc. § 1825.Even if the statute did not contain this specific provision, the court would adopt the most appropriate process.Code Civ. Proc. § 205.And it cannot be doubted that the execution would be most effective and appropriate.The plaintiff, then, by the recovery of her judgment against her husband, became his creditor for the amount adjudged to be due her at...