Tracy v. Harmon

• Decision Date: 27 January 1896
• Citation: 17 Mont. 465
• Parties: TRACY v. HARMON.
• Court: Montana Supreme Court

17 Mont. 465

TRACY

v.HARMON.

Supreme Court of Montana.

Jan. 27, 1896.

Appeal from district court, Gallatin county; F. K. Armstrong, Judge.

Ejectment by William H. Tracy against W. F. Harmon. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Sutten & Thresher, for appellant.

Hartman & Hartman, for respondent.

PEMBERTON, C. J.

This is an action in ejectment, brought by plaintiff to recover possession of certain town lots or parcels of land, situated in the city of Bozeman, Gallatin county. The complaint is substantially such as is ordinarily used in such actions. The answer denies specifically the allegations of the complaint, and also sets up an affirmative defense, which is denied by the replication. It will not be necessary to treat the questions involved in the affirmative defense. The case was tried to a jury, who made and returned special findings of fact, and a general verdict in favor of the defendant. Judgment was rendered in accordance therewith. From the judgment and an order refusing a new trial the plaintiff appeals.

The first question that confronts us is the description of the land in controversy. Counsel for the respondent contend that the description is so uncertain, indefinite, and vague as to be absolutely void, and that, by reason thereof, if the jury had returned a verdict for the plaintiff, the court could not have rendered judgment thereon for the plaintiff, but would have been compelled to have sustained a motion in arrest of the judgment. Hence, counsel contend that this court must affirm the judgment appealed from in this case, regardless of any error that may have been committed by the trial court. These questions were not raised in the lower court, and are presented here for the first time. These questions go to the sufficiency of the complaint to sustain a judgment, and this court held, in Foster v. Wilson, 5 Mont. 53, 2 Pac. 310, that they could be raised here for the first time. The description of the land in controversy is as follows: “Commencing at a point 200 feet south of the north line of what is known as the block eight in Springbrook addition to the city of Bozeman, as shown by the recorded plat of said addition now on file in the office of the recorder of deeds of Gallatin county, Montana, and on the west line of the S. E. 1/4 of the N. E. 1/4 of section 12, Twp. two S., range 5 east; thence running west to the west line of the said block, about 35 feet; thence south, along the east line of said block, 50 feet; thence west about 36 feet, and to a point on the west line of the S. E. 1/4 of the N. E. 1/4 of Sec. 12, Twp. 2 S., R. 5 E.; thence north to point of commencement.” The west line of the S. E. 1/4 of the N. E. 1/4 of section 12, township 2 S., range 5 E., mentioned in the...