Stefonick v. Stefonick

• Decision Date: 30 March 1946
• Docket Number: 8607.
• Parties: STEFONICK v. STEFONICK.
• Court: Montana Supreme Court

167 P.2d 867

118 Mont. 528

STEFONICK v. STEFONICK.

No. 8607.

Supreme Court of Montana

March 30, 1946

Appeal from District Court, Fifth District, Beaverhead County; C. E Comer, Judge.

Action for divorce by Berta J. Stefonick against Peter Stefonick wherein the defendant filed a cross-complaint. From an order fixing counsel fees and costs to be paid by defendant to plaintiff on appeal by defendant from judgment in plaintiff's favor, the defendant appeals.

Affirmed.

Gilbert & Gilbert, of Dillon, and Gunn, Rasch & Gunn, of Helena, for appellant.

John Collins, of Dillon, and Maury & Shone, of Butte, for respondent.

ANGSTMAN Justice.

Defendant has appealed from an order fixing counsel fees and costs to be paid by him to plaintiff on the appeal by him from the judgment in plaintiff's favor, which appeal is numbered 8572 in this court, 167 P.2d 848.

The order which was made upon plaintiff's petition fixed attorneys' fees in the sum of $2,500 and costs in the sum of $310.

Defendant contends that the court erred in making the order for three reasons. One reason urged by defendant is that the main action for divorce is not being prosecuted by plaintiff in good faith. The outcome of the appeal in the main action, No 8572, and what is said in the opinion therein, are sufficient to demonstrate that this contention is without merit.

The defendant also argues that the court erred in reciting in its order that 'no evidence was offered by the defendant, Peter Stefonick,' whereas the record discloses that by stipulation and at his suggestion the bill of exceptions in the main action was considered a part of the record in this matter by reference. This recital in the court's order will be treated as surplusage and harmless error unless the bill of exceptions in the main case would compel a different result.

We shall hereinafter point out what that bill of exceptions reveals, so far as it bears upon the issues in this matter.

The point urged by defendant with the most emphasis is that the court erred in receiving in evidence the affidavit of plaintiff and that without it the evidence is insufficient to show the necessity for an allowance of attorneys' fees and costs. It is urged by plaintiff that the affidavit was admissible as evidence because of section 10636, Revised Codes, reading: 'An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, or upon a motion, and in any other cases expressly permitted by some other provision of this code.' The affidavit purported to show the necessity for an allowance of attorneys' fees and costs in resisting the appeal. Defendant's contention that this affidavit was inadmissible as evidence must be sustained.

Construing an identical statute in California, in the case of Pavaroff v. Pavaroff, Cal.App., 130 P.2d 212, 214, the court said: 'A most casual reading of the statute serves to make clear that it was enacted to obviate oral testimony on certain incidental matters only 'where serious and frequent inconvenience would be caused by requiring the calling of witnesses in court and where under the special circumstances there is little reason to fear false testimony and little need for the searching process of cross-examination.' Wigmore on Evidence, vol. VI, §§ 1709, 1710. No court, so far as we are advised, has ever assumed, much less held, that under statutes such as section 2009 of our Code of Civil Procedure basic and controlling issues of fact could be tried by affidavits, in whole or in part. Statutes substantially similar to section 2009 are in force in the Canal Zone, Idaho, Kansas, Kentucky, Montana, Nevada, Oklahoma, Oregon, Philippine Islands, Puerto Rico, South Dakota and Texas, but in none of the decisions construing these statutes is there the semblance of a thought favoring the view expressed by respondent. On the contrary, the Supreme Court of Idaho, in Cornelison v. Cornelison, 53 Idaho 266, 23 P.2d 252, 253, involving the identical question before us and the construction of a statute identical with ours, reversed the trial court for basing its decision on affidavits, with instructions that the question of a change of custody be rested 'upon the testimony of witnesses in open court, tested by cross-examination.' For similar holdings see Wolfe v. Wolfe, 242 Ky. 162, 45 S.W.2d 1043; Passantino v. Passantino, 255 A.D. 713, 5 N.Y.S.2d 697, and Rizzo v. Rizzo, 246 A.D. 838, 284 N.Y.S. 853.'

Also in Lacrabere v. Wise, 141 Cal. 554, 75 P. 185, 186, the court declared the purpose of the California statute identical with our section 10636 by saying: 'But this section has no application to the proof of facts which are directly in controversy in an action. It was not intended to have the effect of changing the general rules of evidence by substituting voluntary ex parte affidavits for the testimony of witnesses. The section only applies to matters of procedure; matters collateral, ancillary, or incidental to an action or proceeding; and has no relation to proof of facts the existence of which are made issues in the case, and which it is necessary to establish to sustain a cause of action.' To the same general effect is Watkins v. Grieser, 11 Okl. 302, 66 P. 332. The...