State v. District Court of Twelfth Judicial Dist. in and for Sheridan County

• Decision Date: 18 November 1914
• Docket Number: 3544.
• Citation: 144 P. 159,49 Mont. 595
• Parties: STATE EX REL. CULBERTSON FERRY CO. v. DISTRICT COURT OF TWELFTH JUDICIAL DIST. IN AND FOR SHERIDAN COUNTY ET AL.
• Court: Montana Supreme Court

144 P. 159

49 Mont. 595

STATE EX REL. CULBERTSON FERRY CO. v. DISTRICT COURT OF TWELFTH JUDICIAL DIST. IN AND FOR SHERIDAN COUNTY ET AL.

No. 3544.

Supreme Court of Montana

November 18, 1914

Mandamus by the State of Montana, on the relation of the Culbertson Ferry Company, against the District Court of the Twelfth Judicial District of State of Montana in and for the County of Sheridan and Frank N. Utter, one of the judges thereof. Dismissed.

R. O Lunke, of Sidney, and Walsh, Nolan & Scallon, of Helena, for relator.

Frank M. Catlin, of Culbertson, and Norris, Hurd & McKellar, of Glasgow, for respondents.

SANNER J.

Mandamus. The petition avers the following facts: The relator, a ferry company, filed its complaint in the district court of Sheridan county, seeking to recover from one H. G. Hinz $500 damages for the alleged cutting of its ferry cable and to procure a decree enjoining him from interfering with it in the use and operation of a public ferry near Culbertson. Hinz answered, joining issue and pleading a counterclaim in damages to the amount of $1,000 for trespass by the relator in occupying certain of his lands without his permission for its ferry equipment and approaches. The relator did not reply, and, after the time for filing a reply had passed Hinz moved for judgment. The default of relator for failure to reply was entered by the clerk, and thereafter the cause "came on regularly for trial" before the court sitting with a jury, upon the amount of damages sustained by Hinz under the allegations of his counterclaim. A verdict for $900 was rendered, and judgment was entered accordingly. Thereafter the relator served and filed its notice of intention to move for a new trial, which, upon motion of Hinz, was stricken from the files. The peremptory writ of mandate of this court is now sought to compel the district court to reinstate the notice of intention and thereafter to proceed as may be proper.

It is elementary law that the writ of mandate will not issue to compel the doing of an idle or useless thing (13 Ency. Pl. & Pr. 493; 26 Cyc. 147), but only to compel the performance of a clear legal duty (Rev. Codes, § 7214; State ex rel Donlan v. Commissioners, etc., 49 Mont. 517, 143 P. 984). If, therefore, the relator's notice of intention was properly stricken, or if, though improperly stricken, its reinstatement would be useless, the relator cannot have relief in this proceeding.

That the counterclaim was sufficient and required a reply is not denied. This being so, the respondent contends that the ruling complained of was proper, and that the restoration of the paper to the files would be useless, for several reasons, among them this: That a motion for new trial does not lie because the allegations of the counterclaim stood admitted by failure to reply, and there was no issue of fact to be tried or retried. The relator, on the other hand, insists that, as to the amount of respondent's damages, there was an issue to be tried; that at the hearing the relator, as well as the respondent, appeared by counsel; that the relator claimed and was accorded the right to cross-examine the witnesses produced on behalf of Hinz; that witnesses were sworn and testified for the relator; that the jury were instructed by the court and addressed by counsel for both parties; and that proceedings so conducted are a trial, the results of which are subject to review on motion for a new trial.

The solution of the problem thus presented depends, not so much upon what was done at the hearing, as upon what was required to be done. A new trial is the re-examination of an issue of fact (Rev. Codes, § 6793); and unless there was an issue of fact to be tried, and which may now be re-examined, neither the participation of relator in the proceedings, nor the unnecessary formality with which they were clothed, can be decisive. What an "issue of fact" is, and how it must be raised to be the subject of a retrial, are thus settled by our Code and by the decisions of this court:

"An issue of fact arises: * * * (1) Upon a denial, contained in the answer, of a material allegation of the complaint; or upon an allegation, contained in the answer, that the defendant has not sufficient knowledge or information to form a belief, with respect to a material allegation of the complaint. (2) Upon a similar denial or allegation, contained in the reply, with respect to a material allegation of the answer. * * *" Rev. Codes, § 6723; Code Civ. Proc. 1895, § 1033.

"A new trial is a re-examination of an issue of fact. * * * The expression 'issue of fact,' used in its broader sense, would include every issue of fact, whether arising upon formal pleadings or upon a motion. As used here, however, it refers only to issues of fact raised by formal pleadings, as defined in section 1033 of the Code of Civil Procedure." State ex rel. Heinze v. District Court, 28 Mont. 227, 72 P. 613.

"While the provisions of the Codes relative to new trials and appeals apply generally to probate proceedings (Rev. Codes, § 7712), controversies which do not arise upon written pleadings authorized or required by statute do not fall within them, because a 'new trial' is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court, or by referees. Rev. Codes, § 6793. * * * As was pointed out in State ex rel. Heinze v. District Court, supra, the expression 'issue of fact' * * * refers to an issue arising upon formal pleadings only." In re Antonioli's Estate, 42 Mont. 219, 111 P. 1033.

In aid of its general contention, and in avoidance of the apparent effect of the foregoing expressions, the relator insists that, in an action ex delicto, the amount of damages claimed is not a material allegation; that default in such an action does not admit the amount of damages, but has the effect of an interlocutory judgment only, leaving the amount of damages to be determined by the proof; that in the assessment of damages the party in default "may appear and demand a trial by a jury; that he may cross-examine the witnesses called by the plaintiff; that he may call other witnesses and prove any matter which properly goes to extenuate or mitigate the damages; that he may prove all the facts and circumstances relating to any immediate provocation, which in judgment of the law, tends to mitigate damages; that he may require the court to give to the jury proper instructions as to the measure and extent of damages; that he may by himself and counsel argue the question of damages; that he may move for a new trial; and that he may reserve by bill of exceptions any question affecting the assessment of damages." These propositions, collected from Briggs et al. v. Sneghan et al., 45 Ind. 14, are claimed to have support in Loeb v. Kamak, 1 Mont. 152; but a consideration of both cases will establish, we think, that they do not enforce the possibility of a new trial, under the conditions stated. In this jurisdiction new trials are purely statutory (Ogle v. Potter, 24 Mont. 501, 62 P. 920; State v. District Court, 29 Mont. 176, 74 P. 414; Vreeland v. Edens, 35 Mont. 413, 89 P. 735; Canning v. Fried, 48 Mont. 560, 139 P. 448); and when we say that a new trial lies for the re-examination of an issue of fact created in the manner prescribed by section 6723, Revised Codes, we say that it lies under no other circumstances whatever. Now, the Indiana decision above cited expressly holds an allegation of the amount of unliquidated damages to be not traversable; no admission follows from failure to deny it, because no...