MR. COMMISSIONER JACKSON
prepared the opinion for the court.
In this case the defendant, an attorney at law, is sued by the plaintiff to recover judgment for the sum of $1,808.89, with interest from February 15, 1917. The plaintiff alleges that on February 23, 1916, an action was commenced in the district ■20urt of the fourth district of Montana, wherein John Buck-house et al. were plaintiffs and Donald Buckhouse et al. were defendants, for the purpose of partitioning the estate of Henry Buckhouse, deceased, and dividing the proceeds thereof among the heirs, one of whom was the plaintiff in this action. No summons or complaint was served on the plaintiff, and he was out of the state between November 26, 1915, and May 29, 1917; that the defendant, without authority, appeared in the partition suit for the plaintiff, and after the right of plaintiff in this action was determined, and he was decreed the sum of $1,808.89, the defendant, without plaintiff’s authority, received the said money and turned it over to one Fleety Buck-house, about February 15, 1917, and that she was not entitled to any part of the same; that plaintiff had no knowledge of this proceeding until about March 17, 1917, and shortly thereafter demanded of defendant the payment of the money, which was refused. By answer, the defendant admits he appeared for plaintiff, but alleges that his appearance and all of his acts in connection therewith were lawful and with plaintiff’s authority and consent; admits plaintiff’s interest was determined in the partition suit, and alleges that the portion of the estate allotted to the plaintiff and his wife, Fleety Buckhouse, was the sum of $2,177.77; that a portion was paid out of this sum to the Missoula Mercantile Company, leaving a net sum of $1,808.89, which defendant admits he received as attorney for plaintiff and his wife, and turned over to [161]*161her, less $221.49, his fees for services in the partition suit, and in a divorce action wherein Fleety Buckhouse was plaintiff and the plaintiff herein was defendant, and which was pending at that time; admits the demand by plaintiff for the money and his own refusal. Defendant then alleges: That on February 25, 1916, Fleety Buckhouse had him file proceedings against plaintiff for divorce, and custody of their four children. That service was had by publication in March, 1916, and a divorce granted February 17, 1917, awarding Fleety Buckhouse the custody of the children. That after the action for divorce had been filed, service of summons in the partition suit was had on Fleety Buckhouse. That on or about March 18, 1916, she employed defendant to represent the interests of herself and her husband in the said suit. That she represented to have, and in fact did have, authority from her husband to employ counsel on his behalf, and was empowered to deal in such manner as she deemed fit and proper with all of his property, in accordance with exhibits “A” and “B,” as follows: “Exhibit ‘A.’ Missoula, Mont., Nov. 26, 1915. I hereby give Fleety Buckhouse authority to sign my name to any leases or to do as she sees fit with any real estate which I possess. [Signed] Donald Buckhouse.”
“Exhibit eB.’ Missoula, Mont., Nov. 26, 1915. To Whom It may Concern: I have sold and delivered to Fleety Buckhouse all my personal property except one threshing machine for the sum of ($1.00) one dollar value received. [Signed] Donald Buckhouse. ’ ’ That under the authority vested in her, he turned over the money, and that no proceedings were had to determine the interests of plaintiff and Fleety Buckhouse in the fund, and that nothing is due plaintiff from defendant. That plaintiff had, at the time the divorce action was instituted, deserted Fleety Buckhouse and their children, and failed and refused to contribute to their support, and for more than two years before she received the money turned over to her by defendant she had no means whatever for providing herself with the necessaries of life, and that the sum [162]*162so received of $1,587.40 was reasonably necessary for providing tbe necessaries of life for her and her children, and that the sum of $221.49 was reasonable for defendant’s services in the partition and divorce actions. That plaintiff was legally obliged to support his wife and children and that he should be estopped from denying the authority of the defendant to pay over the said money. Issue was joined by .the reply. The trial was had to a jury and at the conclusion of all the testimony plaintiff and defendant each moved the' court for a directed verdict. The motion of the plaintiff was granted and a verdict returned for him in the sum of $1,808.89. Motion by defendant for a new trial was granted, and from that order plaintiff appeals. The sole assignment of error is the granting by the court of the motion for a new trial.
[1] A motion for a new trial lies in cases where it appears from the record that there is an issue of fact wrongfully or erroneously determined after trial and decision by a jury, a court, or by referees. (Sec. 6793, Rev. Codes.) It is immaterial, as far as the motion is concerned, as to how the verdict was reached, whether by the jury or direction of court. If the record shows it comes within the purview of section 6794, the motion is proper, and the trial court may grant a new trial.
[2] Plaintiff contends quite vigorously that a motion for a new trial cannot lie when both parties move for a directed verdict, and that defendant’s only remedy is by appeal from the judgment. He urges that, since each has moved for the directed verdict, they thereby concede in effect that it is a submission of an agreed statement of facts to the court. That this is the law, as far as the purpose of the motion is concerned, there is no doubt, but no authority can hold that the mere ex parte motion of either or both is binding on the l’ecord or the court’s action. Such a motion merely states to the court that, in the opinion of the movant, from all of the testimony in the case, giving to the adverse party the [163]*163extreme benefit of Ms proof, there is but one legal conclusion to be drawn therefrom. And while the court may grant the motion and direct the verdict, it would be a far-fetched course of reasoning that would prevent a re-examination of the facts upon wMch the judgment of the court was based, when, upon a motion for a new trial, the court is convinced it had made an error in drawing its conclusion, to which proper exception had been taken, and where under a reexamination the correct determination would be had. If the directed verdict had been erroneously granted, it is an error in law during the trial, and one of our statutory grounds for a new trial.
[3] The motion for a new trial was made on the ground of insufficiency of the evidence to justify the verdict, which moves the discretionary power of the court, and also error in law occurring at the trial and excepted to by the defendant, which, standing alone, presents a question of strict legal right. In either assignment, if borne out by the record, the granting of the motion is not error. (McIntyre v. Northern Pac. Ry. Co., 56 Mont. 43, 180 Pac. 971; Jones v. Shannon, 55 Mont. 225, 175 Pac. 882; State v. Schnepel, 23 Mont. 529, 59 Pac. 927; Hayne on New Trial and Appeal, sec. 100.)
In the long line of authorities cited by both parties, the ultimate result determined was whether or not the record of the case justified the action of the court in its rulings. (Clement v. Rowe, 33 S. D. 499, 146 N. W. 700;
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MR. COMMISSIONER JACKSON
prepared the opinion for the court.
In this case the defendant, an attorney at law, is sued by the plaintiff to recover judgment for the sum of $1,808.89, with interest from February 15, 1917. The plaintiff alleges that on February 23, 1916, an action was commenced in the district ■20urt of the fourth district of Montana, wherein John Buck-house et al. were plaintiffs and Donald Buckhouse et al. were defendants, for the purpose of partitioning the estate of Henry Buckhouse, deceased, and dividing the proceeds thereof among the heirs, one of whom was the plaintiff in this action. No summons or complaint was served on the plaintiff, and he was out of the state between November 26, 1915, and May 29, 1917; that the defendant, without authority, appeared in the partition suit for the plaintiff, and after the right of plaintiff in this action was determined, and he was decreed the sum of $1,808.89, the defendant, without plaintiff’s authority, received the said money and turned it over to one Fleety Buck-house, about February 15, 1917, and that she was not entitled to any part of the same; that plaintiff had no knowledge of this proceeding until about March 17, 1917, and shortly thereafter demanded of defendant the payment of the money, which was refused. By answer, the defendant admits he appeared for plaintiff, but alleges that his appearance and all of his acts in connection therewith were lawful and with plaintiff’s authority and consent; admits plaintiff’s interest was determined in the partition suit, and alleges that the portion of the estate allotted to the plaintiff and his wife, Fleety Buckhouse, was the sum of $2,177.77; that a portion was paid out of this sum to the Missoula Mercantile Company, leaving a net sum of $1,808.89, which defendant admits he received as attorney for plaintiff and his wife, and turned over to [161]*161her, less $221.49, his fees for services in the partition suit, and in a divorce action wherein Fleety Buckhouse was plaintiff and the plaintiff herein was defendant, and which was pending at that time; admits the demand by plaintiff for the money and his own refusal. Defendant then alleges: That on February 25, 1916, Fleety Buckhouse had him file proceedings against plaintiff for divorce, and custody of their four children. That service was had by publication in March, 1916, and a divorce granted February 17, 1917, awarding Fleety Buckhouse the custody of the children. That after the action for divorce had been filed, service of summons in the partition suit was had on Fleety Buckhouse. That on or about March 18, 1916, she employed defendant to represent the interests of herself and her husband in the said suit. That she represented to have, and in fact did have, authority from her husband to employ counsel on his behalf, and was empowered to deal in such manner as she deemed fit and proper with all of his property, in accordance with exhibits “A” and “B,” as follows: “Exhibit ‘A.’ Missoula, Mont., Nov. 26, 1915. I hereby give Fleety Buckhouse authority to sign my name to any leases or to do as she sees fit with any real estate which I possess. [Signed] Donald Buckhouse.”
“Exhibit eB.’ Missoula, Mont., Nov. 26, 1915. To Whom It may Concern: I have sold and delivered to Fleety Buckhouse all my personal property except one threshing machine for the sum of ($1.00) one dollar value received. [Signed] Donald Buckhouse. ’ ’ That under the authority vested in her, he turned over the money, and that no proceedings were had to determine the interests of plaintiff and Fleety Buckhouse in the fund, and that nothing is due plaintiff from defendant. That plaintiff had, at the time the divorce action was instituted, deserted Fleety Buckhouse and their children, and failed and refused to contribute to their support, and for more than two years before she received the money turned over to her by defendant she had no means whatever for providing herself with the necessaries of life, and that the sum [162]*162so received of $1,587.40 was reasonably necessary for providing tbe necessaries of life for her and her children, and that the sum of $221.49 was reasonable for defendant’s services in the partition and divorce actions. That plaintiff was legally obliged to support his wife and children and that he should be estopped from denying the authority of the defendant to pay over the said money. Issue was joined by .the reply. The trial was had to a jury and at the conclusion of all the testimony plaintiff and defendant each moved the' court for a directed verdict. The motion of the plaintiff was granted and a verdict returned for him in the sum of $1,808.89. Motion by defendant for a new trial was granted, and from that order plaintiff appeals. The sole assignment of error is the granting by the court of the motion for a new trial.
[1] A motion for a new trial lies in cases where it appears from the record that there is an issue of fact wrongfully or erroneously determined after trial and decision by a jury, a court, or by referees. (Sec. 6793, Rev. Codes.) It is immaterial, as far as the motion is concerned, as to how the verdict was reached, whether by the jury or direction of court. If the record shows it comes within the purview of section 6794, the motion is proper, and the trial court may grant a new trial.
[2] Plaintiff contends quite vigorously that a motion for a new trial cannot lie when both parties move for a directed verdict, and that defendant’s only remedy is by appeal from the judgment. He urges that, since each has moved for the directed verdict, they thereby concede in effect that it is a submission of an agreed statement of facts to the court. That this is the law, as far as the purpose of the motion is concerned, there is no doubt, but no authority can hold that the mere ex parte motion of either or both is binding on the l’ecord or the court’s action. Such a motion merely states to the court that, in the opinion of the movant, from all of the testimony in the case, giving to the adverse party the [163]*163extreme benefit of Ms proof, there is but one legal conclusion to be drawn therefrom. And while the court may grant the motion and direct the verdict, it would be a far-fetched course of reasoning that would prevent a re-examination of the facts upon wMch the judgment of the court was based, when, upon a motion for a new trial, the court is convinced it had made an error in drawing its conclusion, to which proper exception had been taken, and where under a reexamination the correct determination would be had. If the directed verdict had been erroneously granted, it is an error in law during the trial, and one of our statutory grounds for a new trial.
[3] The motion for a new trial was made on the ground of insufficiency of the evidence to justify the verdict, which moves the discretionary power of the court, and also error in law occurring at the trial and excepted to by the defendant, which, standing alone, presents a question of strict legal right. In either assignment, if borne out by the record, the granting of the motion is not error. (McIntyre v. Northern Pac. Ry. Co., 56 Mont. 43, 180 Pac. 971; Jones v. Shannon, 55 Mont. 225, 175 Pac. 882; State v. Schnepel, 23 Mont. 529, 59 Pac. 927; Hayne on New Trial and Appeal, sec. 100.)
In the long line of authorities cited by both parties, the ultimate result determined was whether or not the record of the case justified the action of the court in its rulings. (Clement v. Rowe, 33 S. D. 499, 146 N. W. 700; Fifty Associates Co. of Great Falls v. Quigley, 56 Mont. 348, 185 Pac. 155; De Burg v. Armenta, 22 N. M. 443, 164 Pac. 838; Beuttell v. Magone, 157 U. S. 154, 39 L. Ed. 654, 15 Sup. Ct. Rep. 566; Empire State Cattle Co. v. Atchison Ry. Co., 210 U. S. 2, 15 Ann. Cas. 70, 52 L. Ed. 931, 28 Sup. Ct. Rep. 607.) Consequently, we are brought to the merits of the instant case to determine whether or not the granting of plaintiff’s motion for a new trial was well taken.
[4] This action was brought against the defendant and Fleety Smith, formerly Fleety Buckhouse, and dismissed before [164]*164trial as to the latter. Plaintiff proved a prima facie ease in showing that the defendant appeared in the partition suit without his authority, collected the money, refused to pay it to plaintiff, and plaintiff did not authorize him to turn it over to anyone else. The defendant’s chief, and in our opinion only, defense was based on the provisions of section 6480, Revised Codes: “If a husband and wife be sued together the wife may defend for her own right, and if the husband neglect to defend, she may defend for his right also.” He proved that Donald Buckhouse deserted his wife, Fleety Buckhouse, and their four children of tender years, in the latter part of November, 1915, with the evident intention of abandoning them; that Fleety Buckhouse knew nothing of his whereabouts, although she had tried to locate him; that she requested the defendant to appear in the partition suit on her behalf, and likewise to defend for her then husband. Since the defendant’s evidence so appears, we are compelled 'to the conclusion that the plaintiff was certainly guilty of negligence with respect to any property right he may have had at that time, and Fleety Buckhouse, who was still his wife, in spite of the fact that she had brought suit against him for divorce, had not only the right, but the duty, to defend for him and for herself in the partition suit, both being parties defendant. The only possible construction that can be placed on section 6480, Revised Codes, is that the wife represents her husband when he neglects to defend, and that she is clothed with authority, as his agent, for the purpose of the defense.
“It is a familiar principle of the law of agency that every authority given to an agent, whether general or special, express or implied, impliedly includes in it, and confers on such agent all the powers which are necessary, or proper, or usual, to effectuate the purposes for which such authority was created. It embraces appropriate means to accomplish the ■ desired end.” (Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Dec. 384, quoting Justice Storrs.)
[165]*165[5] Our statute would indeed be emasculated and nugatory if tbe wife had not the power to employ counsel and bind the negligent husband by the contract of employment. There seem to be no cases directly in point, construing section 6480, but the trend of judicial viewpoint may be gathered from Butts v. Newton, 29 Wis. 639, and Savage v. Davis, 18 Wis. 608. Having this power conferred on her by the law, in what position is the defendant? We pass over the ethics of his appearance for Fleety Buckhouse in the divorce action, and at the same time his representing both her and plaintiff in the partition suit, because under our construction of the statute, she had a right to hire defendant, and, as far as the partition suit was concerned, the interests of both Donald and Fleety Buckhouse were not antagonistic.
The defendant was the lawful employee of his clients, and in turning over to Fleety Buckhouse the amount decreed to be the share of Donald and Fleety Buckhouse in the estate of Henry Buckhouse, deceased, he acted lawfully. We have no concern as to the duty of Fleety Buckhouse with respect to this fund.
For the reasons herein set forth, we recommend that the order of the lower court in granting the motion for a new trial be affirmed.
Per Curiam:
For the reasons given in the foregoing opinion, it is ordered that the order of the lower court granting the motion for a new trial be affirmed.
Affirmed.