Sawyer v. Robertson

• Court: Montana Supreme Court
• Writing for the Court: HARWOOD, J.
• Citation: Sawyer v. Robertson, 11 Mont. 416, 28 P. 456 (Mont. 1892)
• Decision Date: 04 January 1892
• Parties: SAWYER v. ROBERTSON.

28 P. 456

11 Mont. 416

SAWYER v. ROBERTSON.

Supreme Court of Montana

January 4, 1892

Appeal from district court, Gallatin county; FRANK HENRY, Judge.

Action by Jeremiah Sawyer against J. M. Robertson for conversion. Judgment for plaintiff, and defendant appeals. Reversed.

Luce & Luce, for appellant.

J. L Staats, for respondent.

HARWOOD J.

This is an action for damages for the alleged wrongful taking and conversion of personal property. The points insisted upon by appellant in this appeal are that the summons issued and served upon him in this action is defective on the grounds set forth in the motion to quash, hereinafter referred to and that the complaint does not state facts sufficient to constitute a cause of action. The action was brought in the district court within and for Gallatin county, and the plaintiff alleged, as the facts constituting his cause of action, (1) that "on the 8th day of May, 1890, plaintiff was, and is now," the owner and in the possession of certain personal property, to-wit, about 30 tons of ice which was then stored in a building in the city of Bozeman, state of Montana; (2) that said property was then of the value of $150; (3) "that on or about the 12th day of May, 1890 at Bozeman, Mont., the said defendant took said property from said plaintiff, and converted and disposed of the same to his own use, to the damage of plaintiff in the sum of one hundred and fifty dollars." The complaint further alleges that plaintiff demanded possession of said property from defendant, but he failed and refused to deliver the same, or any part thereof, to plaintiff; and the complaint closes with a demand for judgment against defendant for the sum of $150 and costs of suit. It appears from the record that an alias summons was issued and served upon defendant who, by his counsel, appeared specially for the purpose, and moved the court "to vacate and set aside that which purports to be an alias summons in said action," on the grounds: " First, that said summons does not contain the cause or general nature of the action; second, that said summons does not contain the notice required by law."

The portions of the summons which appellant criticises as insufficient, and not in conformity with law, read as follows: "The said action is brought to recover the sum of one hundred and fifty dollars, the value of thirty tons of ice belonging to said plaintiff, and taken possession of and disposed of by said defendant on or about the 12th day of May, 1890, at the city of Bozeman, state of Montana; also for all costs of suit. And you are hereby notified that, if you fail to appear and answer said complaint as above required, the said plaintiff will take judgment against you for the sum of one hundred and fifty dollars and costs of suit." It does not appear from the record what action, if any, was taken on said motion to quash the summons. That portion of the proceedings was probably not brought here, because it is no part of the judgment roll, where judgment is entered on default of defendant. Section 306, Code Civil Proc. Judgment was taken for the sum of $150 and costs, upon the default of defendant. This appeal, being from the judgment, brings up for examination the judgment roll, which in this case should contain "the summons, with the affidavit or proof of service, and the complaint, with a memorandum indorsed upon the complaint that the default of the defendant in not answering was entered, and a copy of the judgment." Subdivision 1, § 306, Code Civil Proc. The judgment roll, therefore, should be reviewed on the points of error assigned.

1. We think the summons is sufficient in its statement of the "cause and general nature of the action," as contemplated in section 68, Code Civil Proc. But as to the notice contained in the summons, it will be seen, when looked at in connection with the cause of action stated in the complaint, that such notice is not in conformity with the requirements of said section. The statute (Id.) provides: " Fourth, in actions arising on contract for the recovery of money or damages only, a notice that, unless the defendant so appears and answers, the plaintiff will take judgment for the sum demanded in the complaint, stating it; fifth, in other actions, a notice that, unless defendant so appears and answers, the plaintiff will apply to the court for the relief demanded in the complaint." Now, it is clear that this is not "an action arising on contract for the recovery of money or damages." It is clearly an action for the wrongful or tortious taking and conversion of the personal property alleged to belong to another. The cause of action arose, according to the complaint, not by virtue of any covenant or agreement, or contractual relation existing between the parties, but by...