Hoskins v. McGirl

Montana Supreme Court

Hoskins v. McGirl

29 P. 1120, 12 Mont. 246, 1892 Mont. LEXIS 47

DecidedMay 16, 1892

StatusPublished

This text of 29 P. 1120 (Hoskins v. McGirl) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hoskins v. McGirl, 29 P. 1120, 12 Mont. 246, 1892 Mont. LEXIS 47 (Mo. 1892).

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Opinion

De "Witt, J.

This action was for the foreclosure of a mortgage given to secure an obligation upon a written instrument, which the parties called a promissory note. The answer sets up several defenses. The pleadings seem to indicate that “a complete determination of the controversy cannot be had without the presence of the other parties.” (Code Civ. Proc. § 26.) That this was also in the mind of the court seems to be indicated in the findings. But the court did not order such other parties to be brought in. (Code Civ. Proc. § 26.) After making several findings and conclusions, the court concludes that the action should be dismissed without prejudice. The defendant appeals.

Upon the argument the counsel informed this court that after the dismissal of this case in the District Court another suit was commenced upon the same cause of action, and is now pending. The effect of dismissal without prej udice is that such a judgment of dismissal is not a bar to another action. (Black on Judgments, § 721, and cases cited.) The issues in this action so dismissed were somewhat complicated, and the dismissal without prejudice leaves them wholly undetermined. This appeal presents conditions somewhat anomalous. There is, in fact, nothing to be determined by a decision in this court. If the judgment of the District Court be affirmed, it is simply affirming the dismissal therein without prejudice, and the parties may go on with the other action, which they inform us was commenced on this dismissal, and is now pending, and in such action the merits can be determined. The action having been dismissed without prejudice, this can result in no bar to adjudicating in the action now pending the alleged rights found by the jury in the case dismissed. If, on the other hand, judgment should be entered on the verdict of the jury, which the District Court set aside, this would still leave other issues in the action wholly undetermined; issues upon which this court is in no position, with this record, to make any order whatever. Therefore, in this action it is apparent that this appeal must be so determined as to leave the parties in an attitude to present all the issues in[248]*248volved in the case which is now pending. We decline to entertain the appeal. (State ex rel, Begeman v. Napton, 10 Mont. 369.)

Let the case be remanded to the District Court witb the foregoing expression of our views.

,Remanded.

Blake, C. J., and Harwood, J., concur.

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De "Witt, J.

This action was for the foreclosure of a mortgage given to secure an obligation upon a written instrument, which the parties called a promissory note. The answer sets up several defenses. The pleadings seem to indicate that “a complete determination of the controversy cannot be had without the presence of the other parties.” (Code Civ. Proc. § 26.) That this was also in the mind of the court seems to be indicated in the findings. But the court did not order such other parties to be brought in. (Code Civ. Proc. § 26.) After making several findings and conclusions, the court concludes that the action should be dismissed without prejudice. The defendant appeals.

Upon the argument the counsel informed this court that after the dismissal of this case in the District Court another suit was commenced upon the same cause of action, and is now pending. The effect of dismissal without prej udice is that such a judgment of dismissal is not a bar to another action. (Black on Judgments, § 721, and cases cited.) The issues in this action so dismissed were somewhat complicated, and the dismissal without prejudice leaves them wholly undetermined. This appeal presents conditions somewhat anomalous. There is, in fact, nothing to be determined by a decision in this court. If the judgment of the District Court be affirmed, it is simply affirming the dismissal therein without prejudice, and the parties may go on with the other action, which they inform us was commenced on this dismissal, and is now pending, and in such action the merits can be determined. The action having been dismissed without prejudice, this can result in no bar to adjudicating in the action now pending the alleged rights found by the jury in the case dismissed. If, on the other hand, judgment should be entered on the verdict of the jury, which the District Court set aside, this would still leave other issues in the action wholly undetermined; issues upon which this court is in no position, with this record, to make any order whatever. Therefore, in this action it is apparent that this appeal must be so determined as to leave the parties in an attitude to present all the issues in[248]*248volved in the case which is now pending. We decline to entertain the appeal. (State ex rel, Begeman v. Napton, 10 Mont. 369.)

Let the case be remanded to the District Court witb the foregoing expression of our views.

,Remanded.

Blake, C. J., and Harwood, J., concur.

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29 P. 1120, 12 Mont. 246, 1892 Mont. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoskins-v-mcgirl-mont-1892.

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