Williard v. Federal Surety Co.
Decision Date | 29 February 1932 |
Docket Number | 6885. |
Citation | 8 P.2d 633,91 Mont. 465 |
Parties | WILLIARD et al. v. FEDERAL SURETY CO. |
Court | Montana Supreme Court |
Appeal from District Court, Fergus County; F. E. Stranahan, Judge.
Action by Harry O. Williard and others, as trustees of the Gordon Campbell-Kevin Syndicate, a common-law trust, against the Federal Surety Company. Judgment for defendant, and plaintiffs appeal.
Reversed and remanded, with directions.
Louis P. Donovan, of Shelby, and Belden & DeKalb, of Lewistown, for appellants.
Donald Campbell, of Great Falls, and Ayers & Ayers, of Lewistown for respondent.
This action was instituted by the plaintiff syndicate to recover from the defendant $10,000 damages, alleged to have been sustained in consequence of the issuance of an attachment against plaintiff's property in an action commenced by the Gordon Campbell Petroleum Company against the plaintiff to recover from it the sum of $41,651 on an account stated bond for which attachment was executed by the defendant in the sum of $10,000. Upon issue joined the cause was tried to a jury. Upon the completion of the testimony offered by the plaintiff, the court granted the defendant's motion for a nonsuit, and judgment thereon was regularly entered, from which the plaintiff has appealed.
It appears that the plaintiff at the time the attachment action was instituted was the owner and holder of record of several oil and gas leases on lands located in Cascade and Toole counties, which were by the sheriffs of such counties attached in the action as real estate or an interest therein by filing with the county clerk of Toole county, and with the county clerk of Cascade county, as to property covered by leases held by the defendant in such action in each of said counties, a copy of the writ of attachment, together with a description of the property, or any interest therein standing on the record in the county in the name of the plaintiff, who was defendant in such action. Damages are claimed by reason of the fact that the plaintiff's title to the property was thereby clouded and rendered unmarketable and unmerchantable, and by reason of the fact that the plaintiff herein was put to great expense in bringing about a final determination of the action on the merits in the plaintiff's favor. Gordon Campbell Petroleum Co. v. Gordon Campbell-Kevin Syndicate, 75 Mont. 261, 242 P. 540. The provisions of the undertaking on attachment follow the requirements of section 9259, Rev. Codes 1921, and provide "that if the defendant recover judgment *** the plaintiff will pay all costs that may be awarded to the defendant, and all damages he may sustain by reason of the issuing out of the attachment."
The plaintiff has assigned many errors as reason to reverse the judgment and order a new trial, but all of such alleged errors revolve around the basic question as to whether the attachment of the plaintiff's interest in the several oil and gas leases was legal. Apparently the court took the view that the attachments were illegal and therefore could have been dissolved on motion made in the action, thus summarily removing any possible cloud on the title; and thereby removing from consideration any damages incurred by reason of delay and the expense incident to a trial on the merits. Upon this theory much of the plaintiff's offered evidence as to the value of the property before and after the attachment, and the actual damages by plaintiff sustained in consequence, was refused admission.
In passing upon the admissibility of evidence tendered by the plaintiff in the case before us, the court said: And again: "The offer of proof is denied for the reason that as the case now appears this court is of the opinion that the attachment should have been dissolved and discharged immediately, *** in fact, that no attachment was ever made of the properties." Plaintiff's Exhibit P, being an oil and gas lease dated June 3, 1920, executed by Joseph C. Byrne to Gordon Campbell, was admitted in evidence, so as to advise the court of the form of all of the leases involved, the granting clause, and other pertinent provisions of which read as follows: ...
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Mieyr v. Federal Surety Co. of Davenport, Iowa
... ... Williard and others, as trustees of the ... Gordon Campbell-Kevin Syndicate, a common-law trust, and the ... Gordon Campbell-Kevin Syndicate filed their petition for an ... order permitting them to levy execution on certain property ... of the Surety Company, which order was granted. From a decree ... ...
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Santa Rita Oil & Gas Co. v. Board of Equalization
... ... and helplessness, so largely due to the course of dealing of ... the Federal government with them and the treaties in which it ... has been promised, there arises the duty of ... estate in the land itself. It is an interest in the land, ... although incorporeal. Williard v. Federal Surety ... Co., 91 Mont. 465, 8 P.2d 633. Such an interest in land ... may be ... ...
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Mieyr v. Federal Surety Co. of Davenport, Iowa
... ... Williard and others, as trustees of the ... Gordon Campbell-Kevin Syndicate, a common-law trust, and the ... Gordon Campbell-Kevin Syndicate filed their petition for an ... order permitting them to levy execution on certain property ... of the surety company, which order was granted. From the ... ...
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Rist v. Toole County
... ... what this court said in Williard v. Federal Surety ... Co., 91 Mont. 465, 8 P.2d 633, 635: ... "Profit ... a ... ...
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CHAPTER 15 BALANCING RISK IN TITLE OPINIONS1
...106 (citing Stokes v. Tutvet, 328 P.2d 1096 (Mont. 1958); Rist v. Toole County, 159 P.2d 340 (Mont. 1945); Williard v. Federal Sur. Co., 8 P.2d 633 (Mont. 1932)). [110] In re Towe, 225 B.R. 492, 495 (Bankr. D. Mont. 1997). [111] See Williams & Meyers, supra note 106. [112] Ingram v. Ingram,......