Roush v. Fort

3 Mont. 175

• Court: Montana Supreme Court
• Decided: January 15, 1878
• Status: Published

Opinion

PlaKE, J.

This is the second appeal that has been taken in this case, and it is not necessary to repeat the facts, which are stated in the opinion on the first appeal that has been reported. 2 Mon. 482. After this decision had been rendered, and the cause had been remanded to the court below for further proceedings, the respondents filed March 15, 1876, by leave of the court, their amended and'supplemental complaint, o This complaint was filed in open court and it was ordered that the appellant plead on or before March 18, 1876. No pleading was filed by the appellant, and the respondents moved for judgment December 7, 1876, and the court ordered that the appellant be permitted to answer to the merits upon the payment of all costs. At the hearing upon this motion, the appellant asked leave of the court to file a motion to strike this complaint from the files, because no copy had been served upon him or his attorney, and the amendments changed the parties to the action and the character thereof. The court refused to allow this motion to be filed and made no other order than that which has been mentioned. Afterward, the answer of Fort was filed, and the court sustained two motions by the respondents to strike out parts of the same, and refused to permit certain amendments to be made by the appellant. Afterward, the cause was referred and judgment was entered on the report of the referee in favor of the respondents for a certain sum of money.

The errors relied on by the appellant will be reviewed in the order in which they appear in the record. The appellant .contends that the court acquired no jurisdiction over him until a copy of the amended and supplemental complaint bad been served on him or his attorney. He is correct in this position. The Civil Practice Act requires a copy of the amendments to be served upon the defendant, “ or upon his attorney, if he has. appeared by attorney. The defendant shall answer in such time as may be ordered by the court, and judgment by default maybe entered upon failure to answer, as in other cases.” Civ. Pr. Act, § 53. In the original action and on the hearing of the first appeal, E. W. Toole, Esq., appeared as an attorney of the appellant. The clerk of the court below was directed by the respondents to serve upon said Toole a copy of said amended complaint, but the latter refused to receive it on the ground that he had ceased to be an attorney in the action. It appears that the appellant, removed from this Territory during the pendency of the cause and resided in the State of Missouri in 1876. Said Toole never withdrew his appearance as an attorney for Fort in said action, or notified the respondents or any other persons that his connection with the same had ceased, and no attorn e_ys had been substituted in his place. While the name of said Toole remained on the record as the attorney of the appellant, he was the proper person on whom the service of said copy of • the supplemental complaint could be made. When he refused to take the same from the clerk of the court, he waived his rights and those of the appellant thereto. We think that the respondents complied substantially with the Civil Practice Act by causing said copy to be served upon said Toole, after he appeared as the attorney of Fort, under the foregoing circumstances. In Grant v. White, 6 Cal. 55, judgment was rendered against White, who moved for a new trial, and employed, in the mean time, other attorneys. No substitution of attorneys was filed and no notice thereof was given to Grant. The attorneys for Grant served some papers on the attorney of record, who informed them that he was no longer in the case. The court held that this service was valid under the statute. In Roussin v. Stewart, 33 Cal. 208, the court holds that the service of a certain notice was properly made on persons who “ appear by the record to have been the attorneys of the plaintiff in the court below.”

It is claimed that the amendments to the complaint changed entirely the character of the action. If they had this effect, the authorities are uniform that courts will not permit them to be filed. Pratt v. Bacon, 10 Pick. 123; Shields v. Barrow, 17 How. (U. S.) 130; Ayres v. Carver, id. 591. The Civil Practice Act has .adopted the following rule: “ "Where facts occurring subsequent to the commencement of the action render it proper, the same may be presented by supplemental pleadings and issue taken thereon in 'the same manner as in the case of original pleadings.” Civ. Pr. Act, § 75. The reports contain many cases in which amendments have been made to the complaint under legal rules similar to this section. Upon . an examination of the pleadings in this action, on which the first appeal was heard, it is evident that the judgment-of this court, to the extent that it disposed finally of a number of issues which appear therein, made some .amendments not only proper but necessary on the part of the respondents. The subject of controversy between' the respondents and Eeece and Stoner, two of the defendants in the original case, was determined finally by this court at the January term, 1876, in Roush v. Fort, supra. It was, therefore, proper that said Peeco and Stoner should be retained no longer in the action, when their interests could not be affected in any manner by the judgment which might be entered.

It is also apparent that some of the matters relating to the appellant and the respondents remained undetermined, and the •cause was remanded to the court below to secure a trial of the same. This court established the legal and equitable relations of Fort and the respondents, and afforded a partial relief to the respondents, and the respondents were compelled to amend their pleadings to obtain a full and complete remedy in conformity with the decision in Roush v. Fort, supra. Under such circumstances, it would be proper to present these facts, which had occurred since the commencement of the action. Pomeroy on Remedies, § 566, and cases there cited. In Robinson v. Willoughby, 67 N. C. 84, the action was brought to recover the possession of land under a deed which was absolute on its face. The <court, on appeal, held that the deed Avas a mortgage, and reversed the judgment of- the court below and granted a new trial. Before the second trial, an amendment to the pleadings was permitted by the court changing the cause of action from its original form to one for the foreclosure of the mortgage. In Baker v. Bartol, 6 Cal. 483, it is held that it is no objection to a supplemental bill that it prays for a different relief from the original bill, and the court says: “ It is true, that in some aspects the character of the ease is altered by the supplemental bill, and so it must be in every case where an amended or supplemental bill is filed. Every additional and pertinent fact either enlarges- or limits the right to relief, or affects the nature of it.” Buckley v. Buckley, 12 Nev. 423; Story’s Eq. Pl., ch. 8. We are satisfied that it was proper for the court below to allow the supplemental complaint to be filed, and the order requiring the appellant to plead within a certain time was essential under the Civil Practice-Act. The substantial rights of Fort have not been affected by these amendments, and this court cannot reverse the judgment, - if it appeared that an error had been committed in this respect. Civ. Pr. Act, § 19.

While the appellant was ordered to plead on or before March 18, 1876, no action was had in the cause until December 7,1876, and the default of the appellant might have been entered at any time between these dates. No excuse was offered to the court for this delay, and there was no error in the order, which the court made in the exercise of its discretion, that Fort must, answer to the merits and pay the costs. The circumstances that have been specified brought the parties within the seventy-sixth section of the Civil Practice Act, which authorizes the court, in furtherance of justice and on such terms as may be deemed proper, to enlarge the time for an answer.

After the appellant filed his answer, the court, on the motion of the respondents, struck therefrom a part which alleged that the respondents were indebted to the appellant in the sum of $1,492.24, on account of the judgment rendered in the action in which the appellant foreclosed his mortgage upon the property of the respondents, and prayed that the same might be revived and set off against the claims of the respondents^for rents and profits. The court also refused to allow an amendment to be made to the answer, which embodied the same facts that had been passed upon in considering said motion to strike out, and contained an averment that the respondents were insolvent. The appellant insists that the court heard this motion in violation of the rules of the third judicial district, which allowed parties twenty-four hours to examine the same before a determination thereof. Conceding that the action of the court was irregular in this matter, the rule was directory merely, and the appellant does not show or claim that he was injured thereby. If the ruling of the court below was correct upon the question before it, it would be unjust for us to reverse the judgment by reason of the infraction of the rule prescribing the time for hearing the motion.

The appellant cites the authorities, which decide that parties will not be remitted to another action, when the matters in controversy can be adjusted in one that is pending, and declare the principles applicable to set-off and counter-claim. This court has announced similar doctrines. Wells v. Clarkson, 2 Mon. 230; Boley v. Griswold, id. 447. In the last case, we held that a party who had filed a motion to set aside the satisfaction of a judgment and revive the same had no standing in a court of equity until the court had acted thereon favorably; and that without this decision, he had no debt which could be a set-off. Under the proceedings in the action by Fort to foreclose the mortgage, the property of the respondent was sold by the sheriff, who made his return showing that the judgment had been satisfied. This court in Roush v. Fort, supra, set aside the sale of the property by the officer to the appellant, and the appellant contends that the satisfaction of the judgment, to the amount that it was affected by this decision, should be vacated and the judgment pro tanto be revived. These demands of the appellant are lawful, and this court would promptly satisfy them, if we had the power to do so. The Civil Practice Act protects in the most ample mode the rights of the appellant and points out clearly his remedy. He was empowered to file a petition setting forth the foregoing facts, and the court below was required to revive the original judgment. Civ. Pr. Act, § 286. Although this remedy was full, complete and adequate, Fort could have commenced an action in the nature of an equitable proceeding, and obtained the same relief without any difficulty. Cross v. Zane, 47 Cal. 602

*. "Wo think that the appellant.should have acted diligently and resorted to one of these remedies, after the sale to him had been adjudged void; but he remained passive and refused to take any steps to protect his interests. When the subject was brought before the court below, the principles laid down in Boley v. Griswold, supra, were followed, and the respondents’ motion to strike out and also disallow said amendment was properly sustained. Through the laches of the appellant, his claim against the respondents was not a proper subject of set-off or counterclaim at the time it was pleaded. This state of facts has not been changed since this appeal was taken, and, while we are desirous of granting relief to the appellant in this matter, he refuses to afford us the opportunity.

The referee was instructed to report upon certain issues. The judgment that is appealed from limits our inquiry into the action of the referee to the following items of the accounts between the parties. After the property of the respondents had been sold by the officer, under the execution obtained by the appellant, there remained in the hands of Fort $107.76, which belonged to the respondents. Roush v. Fort, supra. If the sale had been confirmed by tliis court, the respondents would have been entitled to receive this amount. But the’respondents appealed from the judgment of the court below, and procured a favorable decision of this court by which the sale was set aside on account of the fraudulent conduct of the appellant. Instead of ratifying the act of Fort, their trustee, which the respondents might have done, they waived their claim to the sum of $107.76 and elected another remedy and must suffer the consequences. The amount of this sum, with the interest thereon from November 10,1871, to June 30, 1877, $168.51, was found by the referee to be due to the respondents and forms a part of the judgment entered in this action. The respondents- cannot recover this amount, and, at the same time, treat the sale by the sheriff as void and hold the appellant responsible for the rents and occupation of the property, to which it has been adjudged that the appellant had no valid title. The court below erred in finding that the appellant was in-indebted to the respondents in any sum by reason of this account.

Under the directions of the court, the referee found that the value of the use and occupation of the property, which was bought by the appellant at the sheriff’s sale, from November 10, 1871, the date of the sale, to February 5,1876, when the sale was set aside, was $1,720. The officer delivered to the appellant November 10, 1871, a certificate of the sale, and, during the following six months, the respondents had the statutory right to redeem the property from the purchaser. Fort was not entitled to enter upon its possession, or receive the rents arising therefrom during this period. But under the agreement, which is referred to in Roush v. Fort, supra, the respondents made Fort their trustee and conferred upon him all the privileges of ownership of said property. What were the obligations of the appellant during this period % lie should have exercised the same prudence, care and diligence in the management of the estate and collection of the rents thereof, as men of ordinary diligence, care and prudence manifest in their own matters. Perry on Trusts, §§ 441, 527; Miller v. Proctor, 20 Ohio St. 442. In the order of reference, the court below required the referee to charge the appellant with the value of the rents, issues and profits of this property, which he might or should have received as the occupant from November 10,1871, to May 10,1872 and judgment was rendered upon the findings of the referee for the sum of $450, the value thereof. We have seen that the appellant was responsible to the respondents as their trustee, and not as an occupant of their property. What Fort might or should have received in these different relations affects to a great degree the amount which was found by the referee. The rule that was prescribed by the court was not authorized by law, and, as we cannot examine the testimony to determine the sum which should have been ascertained, we must strike from the judgment the sum of $450.

The appellant deprived the respondents of the possession and enjoyment of their property from IVIay 10, 1872, to February 5, 1876, by means of his fraudulent acts. Roush v. Fort, supra. What the respondents lost by the undue advantage taken by Fort must be made good, and the appellant must account for his misconduct, without regard to subsequent events of an accidental nature, which would have affected seriously the interests of the respondents. Bigelow on Fraud, § 512; Kaye v. Powel, 1 Ves. Jr. 408; Fox v. Mackreth, 2 Cox, 320. It was, therefore, proper to compel tlie appellant to account as an occupant of the premises from IVIay 10, 1872, to February 5, 1876. During this time, the appellant sold a building, which was located on this property, and removed after the sale, and the court adjudged rightfully that the respondents were entitled to recover the value of the same, $50.

The appellant maintains that the court below could not divert the rents of the premises from their application on the judgment, which was recovered in the original action by Fort against the respondents. We have passed upon this question, and reiterate that there is no judgment in existence in favor of the appellant and against the respondents, because the appellant refuses or neglects to resort to the appropriate remedy to revive the same. A court cannot be required to do an impossible act, and we know of no mode by which these sums can be applied in payment of a judgment, which appears in the transcript to have been fully satisfied. Before the supplemental complaint was filed, this court had determined that a judgment, that had been satisfied, could not be a set-off until it had been revived. Boley v. Griswold, supra. The appellant ignored this decision by attempting to file his amended answer, and asking the court below to apply said amounts in satisfaction of said judgment.

The judgment of the court below is modified by striking therefrom the sum of $618.51, and in all other respects the judgment is affirmed.

Judgment affirmed.

This case was affirmed in Scherr v. Himmelmann, 53 Cal. 313. — B.