State v. District Court of Ninth Judicial Dist.

Decision Date25 June 1908
Citation96 P. 337,37 Mont. 298
PartiesSTATE ex rel. STIEFEL v. DISTRICT COURT OF NINTH JUDICIAL DIST. et al.
CourtMontana Supreme Court

Original application for a writ of mandamus by the state, on relation of E. A. Stiefel, against the district court of the Ninth judicial district and W. R. C. Stewart, judge thereof, to compel the dismissal of a case against relator because of plaintiff's failure to demand and have entered a judgment by default within the statutory period. Writ granted.

Walter Aitken and Walrath & Patten, for relator.

Hartman & Hartman, for respondents.

HOLLOWAY J.

Original application for writ of mandamus. From the affidavit of the relator it appears that in November, 1905, an action was commenced in the district court of Gallatin county by the Commercial National Bank against Harris Kirk, A. L. Love, the relator, E. A. Stiefel, C.J. Kirk, and C. P. Kirk; that service of summons was had upon the defendants Harris Kirk Love, and Stiefel, that thereafter, in December, 1905, the default of the defendant Stiefel for want of an appearance was duly entered; that in March, 1908, Stiefel moved the district court to dismiss the action as against him, for failure on the part of the plaintiff to demand and have entered a judgment against him within six months after his default was entered. This motion was denied, and the application was thereupon made to this court for relief.

In response to the alternative writ issued, the respondents filed an answer admitting the allegations of the affidavit material to be considered here, and setting forth affirmatively, and more in detail, facts appearing in the case of Bank v. Kirk et al It appears from this answer that the defendants C. P Kirk and C.J. Kirk have been at all times since the commencement of the action nonresidents of this state and residents of the state of Pennsylvania, and service of process could not be made upon either of them in this action, that defendants Harris Kirk and Love appeared by demurrers, that the demurrers were overruled, that the defendant Harris Kirk afterwards filed an answer, and plaintiff demurred thereto; that the default of the defendant Love, for failure to answer within the time allowed, was entered in February, 1906, that another action by the same plaintiff against the same defendants upon the same causes of action has been commenced in the state of Pennsylvania, and by reason of this fact, and by reason of certain allegations contained in the separate answer of Harris Kirk, the plaintiff has never applied to the district court for judgment against Stiefel or Love. To this answer the relator interposed a general demurrer, and the proceeding was thereupon submitted for determination.

The case of Bank v. Kirk et al. was brought pursuant to section 451 of the Civil Code of 1895, as amended by Sess. Laws 1903 p. 45, and the liability, if any, of the defendants, is joint and several. Section 1004 of the Code of Civil Procedure of 1895, among other things, provides: "An action may be dismissed or a judgment of nonsuit entered in the following cases: *** (6) By the court, when after verdict or final submission, the party entitled to judgment neglects to demand and have the same entered for more than six months." Applying the rule of noscitur a sociis, the words "final submission," found in this subdivision, mean a submission which is the equivalent of the return of a verdict, or, in other words, they refer to that state of the case when a judgment may rightly be demanded as of course. In McCallon v Waterman, 1 Flip. 651, F. Cas. No. 8,675, it is said: "The verdict is the conclusion of the trial It is an adjudication of the questions put in issue by the pleadings, and, unless a motion in arrest or for a new trial is made, the entry of a judgment follows as a matter of course, except so far as the assessment of damages is concerned. A default has practically the same effect as a verdict. Until set aside, it is a final determination of the matters set up in the declaration. *** The default, which is an admission of the plaintiff's case, stands in the place of a trial in a litigated action, which is only a determination of the issues made by the pleadings of both parties." This language is quoted with approval in Hibernia Savings & Loan Society v. Churchill, 128 Cal. 633, 61 P. 278, 79 Am. St. Rep. 73. In Johnson v. Pierce, 12 Ark. 599, it is said: "It is true that, by failing to defend, the defendant admitted the truth of the allegations contained in the declaration, that is, he admitted the existence of every fact which the plaintiff would have been called to prove in order to maintain his action, because, by refusing to make an issue with the plaintiffs upon the facts set forth by them, he deprives them of an opportunity of making such proof, and therefore from necessity the facts must stand admitted upon the same principle that whatever is not traversed in pleading is admitted." We agree with the conclusions reached by these courts. Upon the entry of Stiefel's default, there was a final submission of the case as against him; that is, the plaintiff was thereupon entitled to judgment as of course, to the same extent that it would have been had Stiefel defended and a verdict in favor of the plaintiff had been returned upon the trial of the case.

But it is urged that a court ought not to determine a case piecemeal and enter up several judgments when one would be ample, and, while we admit the force of the argument if directed to the Legislature, we cannot concede it when addressed to a court, for, while the Legislature might have provided properly for but one judgment in any case, it has not done so. Section 1002, Code Civ. Proc. 1895, particularly clothed the district court with power to enter more than one judgment in a case in which the defendants are liable jointly and separately. See, also, State ex rel. Heinze v. District Court, 28 Mont. 227, 72 P. 613. The fact that another action between the same parties is pending in Pennsylvania is not any excuse whatever for the failure to have the judgment entered in the district court of Gallatin county.

But it is urged with great emphasis that, since the defendant Harris Kirk has set forth in his answer facts which, if true constitute a complete defense for Stiefel as well as himself, ...

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