State ex rel. Cornwell v. District Court, Seventeenth Judicial Dist., Valley County

• Decision Date: 10 December 1948
• Docket Number: 8867.
• Citation: 200 P.2d 706,122 Mont. 266
• Parties: STATE ex rel. CORNWELL v. DISTRICT COURT, SEVENTEENTH JUDICIAL DISTRICT, VALLEY COUNTY, et al.
• Court: Montana Supreme Court

200 P.2d 706

122 Mont. 266

STATE ex rel. CORNWELL v. DISTRICT COURT, SEVENTEENTH JUDICIAL DISTRICT, VALLEY COUNTY, et al.

No. 8867.

Supreme Court of Montana

December 10, 1948

Original proceeding by the State, on the relation of A. E. Cornwell against the District Court of the Seventeenth Judicial District of the State of Montana in and for to County of Valley and the Honorable R. M. Hattersley, District Judge sitting in place of the Honorable John M. Hurly disqualified, for a writ of supervisory control.

Writ denied and proceeding dismissed. James T. Shea, of Glasgow, and Loble & Loble, of Helena, for respondents.

ADAIR Chief Justice.

This is an original proceeding by the State of Montana, on the relation of A. E. Cornwell, for a writ of supervisory control against the District Court of the Seventeenth Judicial District in and for the county of Valley and the Honorable R. M. Hattersley, district judge sitting in the place of the Honorable John M. Hurly, disqualified.

It appears from the petition for the writ that on February 7, 1948, the relator A. E. Cornwell, as plaintiff, filed in the respondent district court, a complaint containing two separate causes of action seeking to recover damages from the defendant J. L. Bjorstad.

First Cause of Action. The first cause of action is for the alleged alienation of the affections of plaintiff's wife and avers: 'That on or about the seventeenth day of November, 1947, while the plaintiff was living with his wife * * * in the city of Glasgow, state of Montana, the defendant wrongfully contrived to injure the plaintiff and to deprive him of the company, society, and assistance of his said wife' and 'unlawfully, wickedly, and maliciously gained the affections of the said' wife 'and sought to persuade her and entice her by offers of money and otherwise to leave the plaintiff' and that 'on or about the fourth day of January, 1948, the defendant enticed and unlawfully and maliciously induced the said' wife 'to desert the plaintiff and refuse to cohabit and live with him as his wife' by reason whereof she 'has become estranged from the plaintiff, and her affections and regard for plaintiff have been destroyed and plaintiff has been, and still is, wrongfully deprived by the defendant of the company, society, support, and advice of his said wife, and the happiness and benefits he otherwise would have received at her hands, and has suffered great distress of body, mind, and estate, to his damage in the sum of $12,500.00.'

Second Cause of Action. The second cause of action is for crim. con. and avers: 'That on or about the seventeenth day of November, 1947, while the plaintiff was living with his wife * * * in the city of Glasgow, state of Montana, the defendant wrongfully contrived to injure the plaintiff unlawfully, wickedly, and maliciously gained the affections of the said' wife 'and enticed her to have carnal intercourse with him; that thereafter and at various times between the time aforesaid and the sixth day of February, 1948, the defendant continued his unlawful and wrongful intercourse with the said' wife by reason whereof 'plaintiff's affections and regard for said' wife 'have been destroyed and he has suffered great distress of body, mind, and estate to his damage in the sum of $17,500.00.'

Motion for Bill of Particulars. On June 21, 1948, defendant, by counsel, appeared in the action by filing therein a motion for an order requiring plaintiff to serve upon defendant a bill of particulars as to the first cause of action alleged 'setting forth in what manner it is maintained by plaintiff that defendant sought to persuade and entice' plaintiff's wife to leave him and setting forth 'in what manner offers of money were made to her, the amounts thereof and the times and places of such offers, the circumstances thereof, and the persons present, and setting forth therein what is meant by the word 'otherwise,' and, further, a statement of the nature and extent of the damages and distress of 'estate' of which plaintiff complains in each cause of action set forth in the complaint, and further setting forth therein, the times, places, facts and circumstances surrounding the alleged acts of carnal intercourse referred to in the second cause of action of the complaint on file herein.'

Order Granting Motion. On September 21, 1948, after hearing had and over plaintiff's objections, the trial court made an order reciting: 'It is ordered by the Court, That the said Motion be and the same is hereby granted and the said plaintiff be and he is hereby required, to furnish to the said defendant, within thirty (30) days from the date of receipt of notice of this order, together with a copy thereof, a Bill of Particulars as requested in said Motion heretofore referred to.'

Petition for Writ. On October 15, 1948, the relator, Cornwell, filed his petition in this court for a writ of supervisory control seeking: (1) An order staying the trial court's order for a bill of particulars pending determination of this proceeding; (2) an alternative writ directing annulment of the trial court's order or requiring respondents to show cause why such order should not be vacated and (3) upon hearing had, for a peremptory writ annulling the trial court's order. The alternative writ issued, was served and a hearing had.

At the time of filing the motion for a bill of particulars defendant's counsel James T. Shea, Esq., made, swore to, subscribed and filed in the district court in said cause a paper designated 'Affidavit in Support of Motion for Bill of Particulars.'

In his petition herein relator contends: (A) That the affidavit filed on behalf of defendant by his counsel was insufficient in law or in fact to support defendant's motion for a bill of particulars and (B) that even if the affidavit had been sufficient, the trial court exceeded the bounds of sound judicial discretion in granting defendant's motion. Relator argues that defendant's motion: (1) Is ambiguous, (2) that it requires the setting forth of immaterial and impossible details, (3) that it requires the disclosure of names of witnesses, (4) that it requires relator to particularize his claim for general damages which cannot be particularized and (5) that it requires relator to specify his claims whereby 'the plaintiff would be seriously handicapped in the trial of his action and limited in the evidence which he would be allowed to introduce.'

The rule of certainty in pleading was stated by this court in Kozasa v. Northern Pac. Ry. Co., 61 Mont. 233, 201 P. 682, and approved in State ex rel. King v. Smith, 98 Mont. 171, 176, 38 P.2d 274, as follows: 'The object of pleading is to notify the opposite party of the facts which the pleader expects to prove, and so it is that the allegation of such facts must be made with that certainty which will enable the adverse party to prepare his evidence to meet the alleged facts.'

'* * * certainty, at least to a common intent, is necessary.' Smallhorn v. Freeman, 61 Mont. 137, at page 143, 201 P. 567, 569.

In 41 Am.Jur., 'Pleading,' page 309, section 30, it is said: 'One of the established rules of pleading is that the facts must be stated with reasonable definiteness, certainty, and clarity, in order that they may be understood by the party who is to answer them, by the jury who is to ascertain their truth, and by the court which is to give judgment. Unless a pleading meets this requirement of certainty and definiteness, it may be attacked by a motion that the pleading be made more definite and certain, or its equivalent, under the local practice, and in some states by special demurrer.'

In this jurisdiction ambiguity, unintelligibility or uncertainty appearing upon the face of the complaint may be reached: (1) By special demurrer (sub. 7 of sec. 9131, Rev.Codes of Montana 1935; Herbst Importing Co. v. Hogan, 16 Mont. 384, at page 387, 41 P. 135, at page 136; Reed v. Poindexter, 16 Mont. 294, 40 P. 596; Flaherty v. Butte Electric Ry. Co., 40 Mont. 454, at page 464, 107 P. 416, 135 Am.St.Rep. 630; Wahle v. Great Northern Ry. Co., 41 Mont. 326, at page 331, 109 P. 713; Allen v. Bear Creek Coal Co., 43 Mont. 269, at page 279, 115 P. 673; Jenkins v. Northern Pac. Ry. Co., 44 Mont. 295, 119 P. 794; Smallhorn v. Freeman, supra; Didriksen v. Broadview Hdw. Co., 58 Mont. 421, at page 428, 193 P. 63; Grant v. Nihill, 64 Mont. 420, at page 435, 210 P. 914; Adams v. Durfee, 67 Mont. 315, at page 318, 215 P. 664, at page 665); (2) by motion to make more definite and certain (Gordon v. Northern Pac. Ry. Co., 39 Mont. 571, at page 582, 104 P. 679, 18 Ann.Cas. 583; Galvin v. O'Gorman, 40 Mont. 391, at page 395, 106 P. 887; Marcellus v. Wright, 51 Mont. 559, at page 561, 154 P. 714; Roberts v. Sinnott, 55 Mont. 369, at page 372, 177 P. 252; Jorud v. Woodside, 63 Mont. 23, at page 25, 206 P. 344; Weibush v. Jefferson Canal Co., 68 Mont. 586, at page 590, 220 P. 99; McCulloch v. Horton, 105 Mont. 531, at page 545, 74 P.2d 1, 114 A.L.R. 823) or (3) by motion for a bill of particulars. Weibush v. Jefferson Canal Co., supra; Rogness v. Northern Pac. Ry. Co., 59 Mont. 373, at page 381, 196 P. 989; Gorden v. Northern Pac. Ry. Co., supra; Flaherty v. Butte Electric Ry. Co., supra; Jenkins v. Northern Pac. Ry. Co., supra.

The power of the court to order a bill of particulars is not dependent upon any statutory provision but is incident to the court's general authority in the administration of justice and in the exercise of a sound discretion. Rogness v Northern Pac. Ry. Co., supra; State ex rel. Wong Sun v. District Court, 112 Mont. 153, at page 156, 113 P.2d 996. In Weibush v. Jefferson Canal Co., supra [68 Mont. 586, 220 P. 101], this court quoted with approval from 3 Encyc.Pl. & Pr. 517 as follows: ...