State v. District Court of Second Judicial Dist. of Silver Bow County

• Citation: 105 P. 721,40 Mont. 206
• Parties: STATE ex rel. LA FRANCE COPPER CO. v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT OF SILVER BOW COUNTY et al.
• Decision Date: 24 December 1909
• Court: United States State Supreme Court of Montana

105 P. 721

40 Mont. 206

STATE ex rel. LA FRANCE COPPER CO. v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT OF SILVER BOW COUNTY et al.

Supreme Court of Montana

December 24, 1909

Mandamus by the State, on the relation of the La France Copper Company, against the District Court of the Second Judicial District of Silver Bow County and the judge thereof to compel such court and judge to dismiss an action, or show cause why it should not be dismissed. Demurrer to the petition sustained, and proceedings dismissed.

Chas R. Leonard and Gunn & Rasch, for relator. Breen & Hogevoll for respondents.

SMITH J.

At some time during the year 1908 an action was begun in the district court of Silver Bow county by Sadie A. Monson, as administratrix of the estate of John Monson, deceased against the La France Copper Company, the above-named relator, to recover damages on account of the death of John Monson, her husband, while in the employ of the relator as a pumpman. At the close of plaintiff's case, the defendant interposed a motion for a nonsuit, on the ground among others that the evidence did not show what was the cause of Monson's death. This motion was denied. The plaintiff had verdict and judgment. The defendant made a motion for a new trial, which was overruled, whereupon it appealed to this court from the judgment and order. See Monson v. La France Copper Co., 39 Mont. 50, 101 P. 243. This court on appeal considered but one question, viz., whether the motion for a nonsuit should have been granted. It was held that it should have been, for the reason that the plaintiff's evidence failed to show how deceased came to his death. The conclusion and mandate of this court were expressed as follows: "The court [below] was in error in denying the motion for a nonsuit. This conclusion renders it unnecessary to consider other grounds of the motion or alleged errors based upon the refusal of the court to submit certain instructions. The judgment and order are reversed." Upon the remittitur being filed in the district court of Silver Bow county, the cause was again set for trial, whereupon the relator objected to a retrial, and moved the court for a judgment "dismissing said action in compliance with the mandate of the Supreme Court." The objection and motion were overruled, and the relator thereupon sued out of this court an alternative writ of mandate requiring the district court and the Honorable John B. McClernan, a judge thereof, to either dismiss said action or show cause why it should not be dismissed. The respondents have filed a general demurrer to the petition. The matter has been argued, and submitted for decision.

The question presented is somewhat difficult of solution. Section 6253, Rev. Codes, reads, in part, as follows: "The Supreme Court may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had. The decision of the court must be given in writing, and a syllabus thereof must be prepared by the court and filed with the opinion; and in giving its decision, if a new trial be granted, the court must pass upon and determine all the questions of law involved in the case, presented upon such appeal, and necessary to the final determination of the case." It is argued for the relator that, as no new trial was ordered, it is apparent that this court did not contemplate that another trial should be had, for otherwise it would have passed upon and determined all questions of law involved in the case. The truth is, however, that this court was of opinion, and properly so, that there was no necessity for, or propriety in, determining other questions of law involved in a record which disclosed that the plaintiff had, as a matter of law, failed to make out a case sufficient to go to the jury, because, of necessity, in case of a retrial the record would not be the same, and different questions must necessarily arise. We confess, also, that we assumed that the plaintiff had, as she should have done, introduced all of the evidence which she could procure, and that a failure to prove so vital a matter as the cause of her husband's death was due to inability to do so, rather than neglect to offer evidence which it was in her power to produce. Any other conclusion would be a reflection upon counsel, in which we should be loath to indulge. While it has been customary to dispose of cases substantially as indicated in section 6253, supra, the latter portion of that provision of the Code is not binding upon this court. "The Legislature can no more require this court to state the reasons of its decisions than this court can require, for the validity of the statutes, that the Legislature shall accompany them with the reasons for their enactment." Field, J., in Houston v. Williams, 13 Cal. 24, 73 Am. Dec. 565.

Again it is urged by counsel for the relator that if the lower court had either sustained the motion for a nonsuit or directed a verdict for the defendant, as it should have done, the judgment would have been affirmed by this court, and such affirmance would have ended the case. There is considerable force in this suggestion, but it does not necessarily solve the problem. There can be no doubt that the question presented on a motion for a nonsuit is one of law ( Emerson v. Eldorado Ditch Co., 18 Mont. 247, 44 P. 969), and the ruling of the court may be reviewed on appeal from the judgment as well as upon appeal from an order denying a new trial. We think, however, that this court, in determining whether dismissal of a case should be ordered, under circumstances similar to those disclosed here, ought not...