City of Helena v. Brule

39 P. 456, 15 Mont. 429, 1895 Mont. LEXIS 31

Opinions

Hunt, J.

— We are of opinion that the affidavit to set aside the default and judgment is wholly insufficient. The rest of the appeal being from the judgment only, we are confined in our examination to the question of whether the complaint states a cause of action, and supports the judgment. (Foster v. Wilson, 5 Mont. 53; Haggin v. Lorenz, ante, p. 309.) We think it does. It sets forth the corporate existence of the city of Helena, pleads the nature of the action brought by Lockey against Walker as treasurer,°the injunction issued therein, the giving of the legal undertaking, and the decision in that case. It further sets up that the city is the real party in interest, Walker, as treasurer, being a mere nominal party, and that the damages sustained were sustained by the city of Helena; that the damages amounted to three hundred dollars, paid for counsel to assist the city attorney in procuring the dissolution of the said injunction. In Creek v. McManus, 13 Mont. 152, it was held that attorneys’ fees paid to procure the dissolution of an injunction are recoverable as an item of damages in an action on the bond given in the injunction suit. The record to which we are confined discloses no radical error which will vitiate the judgment, and none will be presumed. (Dimick v. Campbell, 31 Cal. 240.)

Where a case has been submitted to the court, as was this, without argument or brief on appellants’ part, we do not feel that it is our duty to make very diligent search to reverse a judgment by default, where no obvious fatal error appears. (State v. Roberts, 9 Mont. 12; Territory v. Mooney, 8 Mont. 151; Territory v. Stanton, 8 Mont. 157.)

The order refusing to set aside the default and judgment, and the judgment, are affirmed.

Affirmed,

De Witt, J., concurs.