Sklower v. Abbott

• Decision Date: 15 February 1897
• Citation: 47 P. 901,19 Mont. 228
• Parties: SKLOWER v. ABBOTT.
• Court: Montana Supreme Court

47 P. 901

19 Mont. 228

SKLOWER v. ABBOTT.

Supreme Court of Montana

February 15, 1897

Appeal from district court, Meagher county; Frank Henry, Judge.

Action by Max Sklower against C. P. Abbott to quiet title. From a judgment in favor of plaintiff on refusal of defendant to amend after a demurrer to the answer was sustained, defendant appeals. Reversed.

This was an action to quiet title to real estate situated in Meagher county. From the complaint and answer on file, the facts presented for the court's consideration are as follows: A judgment was duly obtained by a creditor of the original owner of the land on September 28, 1892, but was not docketed by the clerk of the court until October 4, 1892. Appellant (defendant below) bases his title upon this judgment. On October 3, 1892, respondent (plaintiff below) as a creditor, instituted a suit against, the owner of the land, and caused an attachment to be levied thereon. The complaint also alleges that, at the time of the levy of the attachment, respondent, as well as the members of the firm of attorneys representing him (this firm having also represented the first creditor in obtaining judgment against the original owner), was fully aware of the existence of the undocketed judgment, and levied the attachment to destroy its value, and to cheat and defraud appellant. The answer to the complaint raised a direct issue as to who was in the actual possession of the premises. A demurrer was filed on the ground that said answer contained no defense. It was sustained. Appellant refusing to amend, judgment was rendered in favor of plaintiff. The appeal is from the judgment.

Smith & Gormley, for appellant.

Max Waterman and Lew. L. Callaway, for respondent.

BUCK J. (after stating the facts).

The first question to be determined is whether the judgment relied upon by appellant was a lien upon the real estate in controversy before it was docketed. The question must be determined by the statute in force at the time. This statute (section 307, Code Civ. Proc.; division 1, Comp. St. 1887) is as follows: "Immediately after filing a judgment roll the clerk shall make the proper entries of the judgment under appropriate heads, in the docket kept by him; and from the time the judgment is docketed it shall become a lien upon the real estate of the judgment debtor, not exempt from execution, in the county, owned by him at the time, or which he may afterward acquire, until said lien expires. The lien shall continue for six years, unless the judgment be previously satisfied." Under said section, it is manifest that this judgment did not become a lien upon the real estate until after the creation of the attachment lien of respondent. The language of said section 307 admits of no other construction, but, as fortifying it, certain language in the case of ...