Scott v. Waggoner
| Decision Date | 26 February 1914 |
| Citation | 139 P. 454,48 Mont. 536 |
| Parties | SCOTT v. WAGGONER ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Powell County; Geo. B. Winston, Judge.
Action by Ida D. Scott against A. W. Waggoner and others. From a judgment for plaintiff, and from an order granting her motion for a new trial, defendants appeal. Order granting new trial affirmed, and appeal from judgment dismissed.
Scharnikow & Paul and L. W. Jordan, all of Deer Lodge, for appellants.
W. E Keeley and S. P. Wilson, both of Deer Lodge, for respondent.
This proceeding, with its separate appeals from the judgment and from an order granting a new trial in the same case, aptly illustrates one of the anomalies of our appellate procedure. As the effect of an order granting a new trial is to set aside the verdict or other decision upon the facts, and thus to abrogate the judgment founded thereon, and as the order granting the new trial in this case was entered before the notice of appeal from the judgment was filed, it would seem that there was no judgment to appeal from. The office of an appeal from the judgment is to present questions of law, but its effect, if successful, is to do what in this case has been done, viz to abrogate the judgment. The effect of the order appealed from is, of course, conditional, and a reversal of it would operate to restore the judgment; so that, from this point of view, we are asked by one of these appeals to undo what by the other it is sought to have done.
The order granting a new trial was a general one and must be affirmed, if it can be justified upon any of the grounds urged in vindication of it and stated in the notice of intention. These are: Error in permitting the defendants to plead and to produce evidence in support of their counterclaim; error in the instructions, and that the verdict is contrary to the evidence.
Plaintiff for a cause of action, alleges: That on July 25, 1910, she leased by written instrument to A. W. Waggoner and Melvina Waggoner certain premises in the city of Deer Lodge known as the Scott House, "together with certain personal property therein contained," for the term of two years at the rental of $100 per month; that, in consideration of the lease, a bond in the sum of $1,500 was executed by the Waggoners as principals, and by the defendants O'Neil, Moe, and Smith as sureties, conditioned that the Waggoners should pay the rent and perform all the other agreements imposed upon them by the lease; that the Waggoners entered upon, occupied, and used the Scott House as a hotel from August 1, 1910, to February 1, 1911, when, having failed in their hotel business, they abandoned the said premises without the permission or consent of the plaintiff, and without notice to her or her agents; that at the time of such abandonment there was due plaintiff the sum of $50, balance of the rent for January, 1911, and $100 rent for February, 1911, no part of which has been paid; that since August 1, 1911, "many articles of personal property leased by the plaintiff to the Waggoners have been broken, destroyed, injured, and carried away from the premises, and * * * are now not in or about the said premises, and injury and waste has been committed in and about the premises to the property leased," to the plaintiff's damage in the sum of $240, no part of which has been paid; that notice of all this was given to defendant sureties, and payment demanded of them; that there is also due the further sum of $100 rent for the month of March, 1911, no part of which has been paid.
A general demurrer to the amended complaint was filed, submitted, and overruled; whereupon two separate answers were filed--one by the Waggoners, and one by the other defendants--which answers admitted the execution of the lease and bond, denied all the other allegations of the amended complaint, pleaded certain affirmative defenses based upon an alleged unlawful eviction of the Waggoners by the plaintiff, and closed with a counterclaim which is to the following effect: That the Waggoners "went into the possession of said premises, under and by virtue of said lease aforesaid, and at great cost and expense prepared said premises for the purposes of conducting a hotel and lodging house therein, and that they refitted and refurnished said building, and put into said building, under and by virtue of the terms of said lease aforesaid, the following described personal property of the value of $350, or more"; that on or about the month of February, 1911, plaintiff, without cause or reason therefor, unlawfully evicted and ousted the Waggoners from the premises, and at the same time took, and has since kept, possession of the personal property above referred to, and has refused to surrender the same or pay the value thereof, notwithstanding the demands of the Waggoners, and to their damage in the sum of $350. To this counterclaim as pleaded by the Waggoners and as pleaded by the other defendants, demurrers and motions to strike were filed, specifically urging that the counterclaim is not of the character specified in section 6541, Revised Codes. These demurrers and motions were overruled, and the essential allegations of the counterclaim were put in issue by replies.
It is stated in the brief of appellants, though without any warrant apparent in the record, that the new trial was granted because in the opinion of the district judge the counterclaim was not a proper one, and to this much argument is directed. Section 6540, Revised Codes, provides, among other things, that an answer may contain a statement of any new matter constituting a counterclaim, but such counterclaim "must tend, in some way, to diminish or defeat the plaintiff's recovery, and must be one of the following causes of action against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action: (1) A cause of action arising out of the contract or transaction, set forth in the complaint, as the foundation of the plaintiff's claim, or connected with the subject of the action; (2) in an action on contract, any other cause of action on contract, existing at the commencement of the action." Section 6541. That these provisions are designed to enable parties litigant to adjust their differences in one action, so far as that can logically be done, and thereby to prevent multiplicity of suits, is made plain by the further provision that, if the defendant omit to set up a counterclaim in the classes mentioned in subdivision 1 of section 6541, neither he nor his assignee can afterwards maintain an action against the plaintiff thereon. Section 6547. For statutes so highly remedial, a broad and liberal construction is required, in order that the purposes designed by them shall be most completely served.
Thus premising, we take up the declaration of respondent that "the counterclaim of defendants was a cause of action in tort for conversion of personal property, and therefore not the proper subject of counterclaim against plaintiff's cause of action upon contract." In the prolonged effort to achieve full understanding of the true meaning and purpose of the reformed procedure, many decisions have been promulgated which give countenance to this view; but we think that it cannot be correct. Subdivision 1, above quoted specifies three things as possible bases of counterclaim, viz.: The contract sued on, the transaction set forth, and the subject of the action. Either these things are different and distinct, or the provision is "a misleading tautology." Elementary rules of interpretation require that some different significance be given to these terms; but, if they are different and distinct, then counterclaims may exist which do not sound in contract. The reason assigned for the doctrine that a counterclaim sounding in tort cannot be pleaded as against a demand upon contract is the supposed impossibility of legal connection between the two events; but every money demand is either upon contract or upon tort, and the same reason may be and is assigned with stronger emphasis for denying the right to plead a counterclaim in tort as against a demand in tort. If a counterclaim in tort cannot be pleaded as against a demand either upon tort or in contract, then, in the case of money demands, we have a counterclaim which is not a counterclaim--a conclusion which cannot be accepted. As pointed out by Mr. Pomeroy (Code Remedies, div. 6, subd. 1), the solvent of the difficulty lies in the breadth and scope of the terms "transaction" and "subject of the action." The term "transaction" is not legal and technical, it is common and colloquial; it is therefore to be construed according to the context and to approved usage. (Rev. Codes, § 8070.) As so construed, it is broader than "contract" and broader than "tort," although it may include either or both; it is "that combination of acts and events, circumstances and defaults, which, viewed in one aspect, results in the plaintiff's right of action, and viewed in another aspect, results in the defendant's right of action" (Pomeroy's Code Remedies, § 774), and it applies "to any dealings of the parties resulting in wrong, without regard to whether the wrong be done by violence, neglect or breach of contract." 34 Cyc. 686; 1 Sutherland on Code Pleading, § 633; Craft Refrigerating Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 29 A. 76, 25 L. R. A. 856; Story & Isham Com. Co. v. Story, 100 Cal. 30, 34 P. 671; Advance Threshing Co. v. Klein, 28 S.D. 177, 133 N.W. 51; Woodruff v. Garner, 27 Ind. 4, 89 Am. Dec. 477; King v. Coe Com. Co., 93 Minn. 52, 100 N.W. 667. When in this sense of the word a cause of action...
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