Abbildungen der Seite
PDF
EPUB

the provisions of this act others, set forth therein, providing that if any person, mining, ditch, or milling company shall dam the waters of any stream of this territory so that the water shall overflow any wagon or other road situated on the margin or banks of said stream, or so as to cause the road to become undermined or damaged, said person, company, or corporation shall rebuild the same, or pay the costs of the having the same done. Both of the sections were continued in force until February 5, 1885, when sections 40-42 of “An act to amend an act regulating roads, highways, and bridges" were enacted. See 14th Sess. Laws, 143. These provisions were re-enacted in sections 968, 969, Rev. St. 1887. This statute required all persons or corporations desiring to run water over any public road to construct ditches, and build good substantial bridges over the same, and keep them in order. If this duty was neglected, the overseer of highways was required to construct the same, and keep them in order, at the expense of the owners of the ditch. This obligation rested on the owner or owners of ditches crossing highways, whether in or out of a city or town. Section 43 of the act of February 5, 1885, (13 Sess. Laws, p. 173,) organizes each incorporated city in this territory into a separate road district, and authorizes the city council to elect a road supervisor, who shall have all the power and perform all the duties of road supervisors appointed by the county commissioners. These provisions were carried into Rev. St. 1887, in section 887, which gives the council in cities the same power as county commissioners, and they may cause bridges, causeways, etc., to be erected on streets whenever necessary, and keep the same in good repair. See, also, section 7139, Rev. St. Idaho. It will be seen, therefore, that both the common law and the statutes in force at the time of the construction of this bridge, and for a long time prior thereto, compelled the defendants to reconstruct and repair said bridge whenever the same became unsafe or inconvenient for public travel. The amendment to the charter of the city of Lewiston in 1881 extended the city limits so as to cover and include the point on E street where this ditch crosses the same. This did not change or weaken the obligation of the defendants to keep said ditch securely bridged, but transferred the power to compel the same from the county commissioners of the county to the city council of the city. The obligation resting upon defendants to rebuild said bridge whenever necessary authorizes the city, in case they neglect or refuse to do the same, to build it at the expense of the defendants.

The question as to whether the city or the defendants would be liable for any injury occurring to the person or property of an individual which might happen by reason of the unsafe condition of the bridge has nothing whatever to do with the question at is

[ocr errors]

sue in this suit. The building of the bridge by the city creates an implied contract on the part of the defendants to pay the costs and expenses of the same by operation of law.

The plaintiff claims that the court erred in not finding that the defendants had obtained a prescriptive right to maintain their ditch across the street without a bridge. A private party or corporation constructing a ditch across a public highway or street of a town or city in such way as to render the highway or street unsafe or inconvenient for public travel, and maintaining such a ditch without a bridge or other safe and convenient way of crossing, would be guilty of maintaining a nuisance. Section 3620, Rev. St. Idaho. No lapse of time can give a prescriptive right to maintain a nuisance. Section 3630, Rev. St. Idaho.

The counterclaim for damages is a cause of action which arises, if at all, from an act which would be a trespass to property; and a cause of action for trespass to property cannot be a subject for counterclaim against an action arising upon a contract, express or implied. The judgment of the court below is affirmed, with costs to the respondent.

HUSTON, C. J., and SULLIVAN, J., con

cur.

(3 Idaho [Hasb.] 682) CHASE v. HAGOOD. (Supreme Court of Idaho. Nov. 17, 1893.) PRACTICE-DEFECTIVE SERVICE OF PROCESSWAIVER BY ANSWER OVER.

While it appears to be the accepted rule that a party who has objected to the sufficiency of process, by answering over. waives such objection, this rule does not apply to appeals from justice or probate courts to district court, under our statutes, which, in such appeals, give either party the benefit of all legal objections and exceptions in the court below, and the trial in the district court is de novo.

(Syllabus by the Court.)

Appeal from district court, Idaho county; W. G. Piper, Judge.

Action by Charles R. Chase against W. R. Hagood. From a judgment dismissing the action, plaintiff appeals. Affirmed.

H. L. Frost, for appellant. J. F. Ailshie, for respondent.

HUSTON, C. J. Plaintiff brought action in probate court to recover $300 damages alleged to have been sustained by him through the wrongful acts of defendant, in breaking into inclosure of plaintiff, destroying a certain pigpen, and driving away certain hogs from the premises and possession of plaintiff. The action was commenced by filing complaint, and issuing summons thereon. Summons was dated May 10th, returned May 15th, and served May 11th. The summons contained the following words: "The said action is brought to recover a judgment for the sum

of three hundred dollars, damages done to the plaintiff, together with the costs of this suit, against you, as more fully appears in plaintiff's complaint, now on file in my office at Mt. Idaho, in the county of Idaho and state of Idaho," which is the only statement of the case which appears in the summons. No copy of the complaint was served with the summons. On the return day of the summons, defendant appeared specially, and Inoved to quash the summons upon the grounds (1) that the defendant had never been served with a copy of the complaint in the action; (2) that the summons does not give the defendant sufficient notice, as required by law. This motion was overruled by the court. The defendant then demurred to the plaintiff's complaint generally, and upon the ground of ambiguity and uncertainty, which demurrer was overruled; and the defendant then filed his answer, denying generally and specially all the allegations of the complaint. The case was then heard by the court without a jury. At the close of the proofs on the part of the plaintiff, as appears by the record, "defendant, by his attorney, demurred, and set up as a cause of demurrer that the court has no jurisdiction over the subject-matter.. Demurrer tained, and cause dismissed without prejudice to plaintiff's legal and lawful rights." From this judgment, plaintiff appealed to the district court for said Idaho county. In the district court the defendant appeared specially, and moved to quash the summons on the ground that the copy of summons served on defendant does not give him sufficient rotice, in that it does not contain a sufficient statement of the cause of action, in general terms, to apprise defendant of the nature of the claim against him; that defendant was not served with a copy of the complaint in said action. The district court sustained the motion, and dismissed the action at cost of plaintiff. From this judgment of dismissal, plaintiff appeals to this court. The appeal of plaintiff 1rom the judgment of the probate court was, as appears by the notice of appeal, taken on both law and facts.

sus

The sole contention of appellant in this court is that, by answering and demurring in the probate court, defendant waived all objections to the original process, and cannot raise such objection either in the district court or here. It seems to be conceded, as is undoubtedly the fact, that the summons in this case was fatally defective, in not containing "a sufficient statement of the cause of action, in general terms, to apprise the defendant of the nature of the claim against him," as provided in subdivision 2, § 4655, Rev. St. Idaho. Had the district court overruled the defendant's motion to quash the summons, and had the plaintiff then elected to demur or answer, or both, the rule in the California cases cited by appellant might properly be invoked; but the Revised Stat

utes of Idaho (section 4841) provide that, in appeal to the district court, from a probate or justice's court, either party may have the benefit of all legal objections made in the probate or justice's court. In this case the defendant's motion to quash the summons, made in the probate court, seems to have been, finally, virtually sustained by that court, although not until after the defendant had both demurred and answered, and the plaintiff had put in his proofs; and the plaintiff appeals to the district court, where the action was tried de novo. Rev. St. Idaho, § 4840. On the calling of the case for trial in the district court, as appears from the record, defendant appeared specially, and moved to quash the summons upon the grounds stated in his motion, which were, in substance, the same as those upon which his like motion in the probate court was made, and the district court sustained his motion, and dismissed the action, and it is from this judgment of dismissal by the district court that this appeal is taken. The plaintiff never answered or demurred in the district court, and herein lies the distinction between the case under consideration and those cited by appellant. It would seem to be pretty well settled that where a party, after having appeared specially for the purpose of objecting to process, and having such objection overruled, then answers to the merits, he waives all objection to process. But this case comes to this court as an original case in the district court, and that court sustained the motion to quash the summons. As the statute provides that where appeal is taken from probate or justice's court to the district court on both law and fact there shall be a trial de novo in the latter court, and either party shall be entitled to any and all objections and exceptions taken in the lower court, we cannot consider anything anterior to the proceedings in the district court. The judgment of the district court is affirmed, with costs to the respondent.

MORGAN and SULLIVAN, JJ., concur.

(3 Idaho [Hasb.] 674) AH KLE et al. v. GREGORY, Sheriff. (Supreme Court of Idaho. Nov. 15, 1893.) EXECUTION OF RESTITUTION-INDEMNITY TO

SHERIFF.

This court, at a prior term, (32 Pac. 200,) decided the appellants entitled to the possession of certain mining claims, and ordered that they be put into the possession of them. The court below thereon issued a writ of restitution. The sheriff made return to the writ "that he found parties in possession of the premises that were not parties to the suit, and who were claiming the premises by location under the laws of the United States." The sheriff was cited to show cause why he did not execute the writ of restitution, to which he made answer that the plaintiffs refused to indemnify him, he having inade demand therefor. He'd that the sheriff was not entitled to indemnity. (Syllabus by the Court.)

Appeal from district court, Idaho county; W. G. Piper, Judge.

Action by Ah Kle and others for a writ of mandate to C. S. Gregory, sheriff, requiring him to execute a writ of restitution. There was judgment for defendant, and plaintiffs appeal. Reversed.

Jas. W. Reid and Jas. W. Poe, for appellants. Forney & Tillinghast, for respondent.

HUSTON, C. J. Appellants having recovered, on appeal to this court, a judgment for the restitution of certain mining claims and property, a writ was issued out of the district court for Idaho county, and delivered to the sheriff of said county, commanding him to place appellants in possession of the property. To this writ the sheriff made the following return: "I found M. L. Murray, C. L. Rice, T. S. Ratcliff, and Pat Sullivan in charge of property, who decline to obey the writ of restitution." Thereupon, appellants applied to said district court for a writ of mandate to the sheriff of Idaho county, commanding him to enforce the writ of restitution, and place the appellants in possession of the said property, according to the exigency of said writ, and in obedience to the judgment and order of the supreme court. To the alternative writ, the sheriff made answer that he found certain persons named in possession of the premises, claiming to have located them under the laws of the United States. This position is not tenable, as the mining claims in question were not open to location; they having been located in 1862, and continuously worked by the appellants, and those under whom they held, for a period of nearly 30 years.

It is also stated in the answer of the sheriff to the alternative writ that he had demanded indemnity from one of the appellants, which had been refused. This statement is not entirely in accord with the return made by the sheriff upon the writ of restitution, but, accepting it for all it is worth, it constitutes no excuse for the officer refusing to execute the writ. It can hardly be expected that we will permit the judgments and orders of this court to be negatived or set aside upon the whim or caprice of an executive officer. The judgment of the district court is reversed, and an order will be entered directing the district court for Idaho county to issue the writ of mandate as prayed for.

MORGAN and SULLIVAN, JJ., concur.

(3 Idaho [Hasb.] 672)

KELLY et al. v. LEACHMAN. (Supreme Court of Idaho. Nov. 15, 1893.)

PAROL EVIDENCE.

A promise, in writing, signed by the party to be charged, to pay the interest due upon a pre-existing debt, is an acknowledgment of the whole debt, from which a promise to pay may be implied; and the identity of the sum

included in the promissory note, with the interest on the debt, and that it was given for such interest, may be proved by parol testimony. 33 Pac. 44, affirmed.

On rehearing. Denied.

MORGAN, J. The appellee files his petition for rehearing in the above-entitled cause, and cites the following authorities in support thereof: 2 Kent, Comm. (13th Ed.) *238 note E. In this note the editor quotes the decision in Hartley v. Wharton, and refers the reader to this case for a construction of the statute under discussion, in which he adds: "The energy of the statute is much weakened." The language quoted does not assume nor intimate that the decision in Hartley v. Wharton is not the law, and in his statement the editor differs from the four learned judges, to wit, Lord Denman, C. J., Littledale, J., Patteson, J., and Coleridge, J., who all join in the decision of Hartley v. Wharton. See 11 Adol. & E. *934. And in Browne on Frauds (section 409a) it is said parol evidence is admitted at common law to show the circumstances under which the parties have executed a written agreement, with a view to fix its application to the subjectmatter which they had in their minds, and this is equally true, although the agreement be one which cannot, consistently with the statute, be made without writing. And in the appendix to Browne on Statute of Frauds (page 512) the statute construed in Hartley v. Wharton is quoted, and the above case is referred to, without comment, for the construction of said statute. The quotation made in the petition for rehearing from Browne on Frauds, which we find in section 350, refers to contracts mentioned in the fourth section of the statute of frauds of 29 Car. II. c. 3, and has no reference to section 5, St. 9 Geo. IV. c. 14, which the court in Hartley v. Wharton was construing and giving effect to. This statement is made to show that neither the quotation made in the petition, nor the section of Browne from which it is taken, has any reference to the kind of promise or acknowledgment under discussion in the case at bar. The whole chapter refers to agreements mentioned in section 4, St. Frauds 29 Car. II., supra. And in Peugh v. Davis, 96 U. S. 336, the court, by Field, J., says: "The rule which excludes parol testimony to contradict or vary a written instrument has reference to the language used by the parties. That cannot be qualified or varied from its natural import, but must speak for itself. The rule does not forbid an inquiry into the object of the parties in executing and receiving the instrument. Thus, it may be shown that a deed' was made to defraud creditors, or to give a preference, or to secure a loan, or for any other object not apparent on its face. The object of the parties in such cases will be considered by a court of equity. It constitutes a ground for the exercise of its juris

diction, which will always be asserted to prevent fraud or oppression, and to promote justice. Hughes v. Edwards, 9 Wheat. 489, and other cases there cited." So, in Miller v. McKenzie, 95 N. Y. 578, speaking of parol testimony to explain, the court says: "Notwithstanding the statement in the note that it was given for cash loaned, it is open to either party to show the true consideration thereof." When papers or documents are introduced collaterally in the trial of a cause, the purpose and object for which, and the reason why, they were made in the particular form, inay be explained by parol. Browne,

Par. Ev. p. 18, § 15; Manchester v. Braender, (N. Y. App.) 14 N. E. 405. Such evidence does not in the least vary or contradict the drafts themselves. As the form of the drafts might confuse the jury, the plaintiffs had a clear right to explain how they came to be made as they were. Bank v. Kennedy. 17 Wall. 19. The additional authorities submitted by attorneys for defendant have been carefully examined by the court. In Opp v. Wack, (Ark.) 12 S. W. 565, the court makes a distinction which is apparently without a difference; thus: "Parol proof may be admitted to show that there was but one obligation due from defendant to plaintiff, and thus identify the debt to which the promise refers; but, where there are two or more distinct obligations, the written obligation must itself identify the one or ones to which the promise to pay attaches." It would seem very difficult to give a reason for the admission of parol proof in the one case which would not apply equally as well in the other. In Gartrell v. Linn, (Ga.) 4 S. E. 918, it does not appear that any parol proof was offered for any purpose, and therefore the decision cannot be considered as in point. It is also evident that in the Arkansas and Georgia cases the court felt constrained to give the statute a strict construction, while in our own state, so far as this being proper, our statute enjoins upon the court a liberal construction of all statutes for the promotion of justice. Rev. St. Idaho, § 4. The application must be denied, and it is so ordered.

HUSTON, C. J., and SULLIVAN, J, con

cur.

(3 Idaho [Hasb.] 676]

MCCAULEY v. SEARS et al. (Supreme Court of Idaho. Nov. 16, 1893.) PARTIES-SUBSTITUTION of.

To authorize substitution of defendants under section 4109, Rev. St., the claims must be identical, they must arise upon, or seek recovery upon, the same contract. Where two suitors are seeking to recover from a general debtor, the one upon express contract, and the other upon garnishment.-there is no such identity of claims as is contemplated by, or essential to the invocation of, the provisions of section 4109.

(Syllabus by the Court.)

Appeal from district court, Shoshone county; J. Holleman, Judge.

Action by James McCauley against Charles F. Sears and others. From the judgment rendered, defendant Sears and another ap peal. Reversed.

Albert Hagan, for appellants. W. T. Stoll and Albert Allen, for respondent.

HUSTON, C. J. Plaintiff brought action against the appellants and the Coeur d'Alene Silver Lead Mining Company. The complaint alleges that on the 2d day of July, 1890, John Bresnaham was indebted to the plaintiff in the sum of $122.50; that the Coeur d'Alene Silver Lead Mining Company on said day was indebted to the said Bresnaham in the sum of $2,200, whereupon said Bresnaham gave to the plaintiff in payment of his said claim an order directed to the Coeur d'Alene Silver Lead Mining Company, demanding and requesting it to pay to the plaintiff the said sum of $122.50; that thereupon, on said day, the said Coeur d'Alene Silver Lead Mining Company, defendant herein, by its duly-authorized agent, promised and agreed to pay the plaintiff said sum of $122.50; that, though requested so to do, the defendant has not paid the same, or any part thereof. The complaint then proceeds to set forth various other causes of action in favor of plaintiff and against said Coeur d'Alene Silver Lead Mining Company, all of which are predicated upon orders drawn by said Bresnaham upon said Coeur d'Alene Silver Lead Mining Company in favor of various parties, and by such parties assigned to plaintiff, and accepted and agreed to be paid by said company; which various orders aggregate the sum of $972.85. Then follows the following allegåtion in the complaint: "That the defendant Charles F. Sears and John Doe Barger, copartners doing business as Barger & Sears, have commenced an action in the above-entitled court against the said John Bresnaham, and have had a writ of attachment issued therein and served upon the Coeur d'Alene Silver Lead Mining Company, by which they claim to have some lien upon the money so owing as aforesaid by the defendant the Coeur d'Alene Silver Lead Mining Company to the said John Bresnaham, or some interest therein; wherefore the plaintiff prays judgment against the said Coeur d'Alene Silver Lead Mining Company for the sum of nine hundred and twenty-two and 85100 dollars and costs of this suit; that the defendants Barger and Sears may be required to set up and state in their answer to this complaint any claim they may have to the money hereby sued for, or be forever barred from so doing; for such other relief as to the court may seem meet and proper." The defendants Barger & Sears demurred generally to the complaint for want of facts sufficient to sustain a cause of action, and also upon the ground of misjoinder of causes

of action and misjoinder of parties. This demurrer was sustained by the court, and the action was dismissed as to the defendants Barger & Sears. Subsequently, upon the filing of an affidavit on the part of the Coeur d'Alene Silver Lead Mining Company under the provisions of section 4109 of the Revised Statutes of Idaho, an order was made by the court on motion of the said defendant company substituting the said Barger & Sears as defendants in said action in place of said Coeur d'Alene Silver Lead Mining Company, upon the depositing with the clerk of the court by said company of the sum of $972.85. This order was served upon Barger & Sears, but they neither answered nor demurred thereto, and their default was duly entered, and thereafter, on the 23d day of April, 1892, after setting forth an epitome of the proceedings as above given, the court entered the following judgment: "Wherefore. on motion of plaintiff's attorney, W. T. Stoll, for judgment, it is ordered and adjudged that the plaintiff, James McCauley, do have and recover of and from the defendants Chas. F. Sears and Harry Barger, copartners as Barger & Sears, the sum of nine hundred and seventy-two and 85-100 dollars, together with his costs of this action, taxed at $, and that the clerk of this court pay to the said plaintiff or his attorney said sum of $972.85 so deposited as aforesaid by said Coeur d'Alene Silver Lead Mining Company in payment and satisfaction thereof."

This case seems to have been heard and determined as one coming under the provisions of section 4109 of the Revised Statutes of this state. That section is as follows: "Sec. 4109. A defendant against whom an action is pending upon a contract, or for specific personal property, may, at any time before answer, upon affidavit that a person not a party to the action makes against him, and without any collusion with him, a demand upon the same contract, or for the same property, upon notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount claimed on the contract, or delivering the property or its value, to such person as the court may direct; and the court may, in its discretion, make the order." The second paragraph of the complaint avers, inter alia, "that on said day [July 2, 1890] the Coeur d'Alene Silver Lead Mining Company was indebted to the said Bresnaham in the sum of twenty-two hundred ($2,200.00) dollars;" the claim of the plaintiff by virtue of the several orders of Bresnaham upon said company, and accepted by said company, amounts to the sum of $972.85. What amount was claimed by Barger & Sears against Bresnaham is not disclosed by the record, nor does the record disclose the amount due from said company to Bresnaham at the time the attach

ment in favor of Barger & Sears was served upon them. The affidavit of Clark, made on behalf of the Coeur d'Alene Silver Lead Mining Company, is as follows: "State of Idaho, County of Shoshone ss.: [Title of Court and Cause.] Patrick Clark, being duly sworn, on his oath says that he is the general manager of the defendant the Coeur d'Alene Silver Lead Mining Company. That said defendant is a corporation duly organized in the state of Montana under the laws thereof. That Charles F. Sears and Barger, partners under the name of Barger & Sears, without any collusion with this defendant, made a demand upon this defendant for the same fund sued upon in this action, and prior to bringing this action had caused papers in attachment to be served upon this defendant, thereby asserting that this defendant was attached as a debtor of the John Bresnaham mentioned in the complaint. That this defendant has no interest in the fund sued upon of nine hundred and seventy-two 85-100 of the twenty-two hundred dollars alleged to be owing said Bresnaham, and should not be burdened with the expense of litigating about the same, and is desirous of availing itself of the provisions and benefits of section 4109 of the Revised Statutes of Idaho; and thereupon prays the court to make an order authorizing it to make deposit of said fund in court, subject to the retention by the clerk of all the costs which have accrued to this date of such order in this action. Patrick Clark." "Subscribed and sworn to before me, June 11, 1891. H. M. Davenport, Notary Public. [Seal.] Filed June 26, 1891." There was no fund in question, and, if there were, there is no identity shown of the fund sued upon and that stated by Clark in his affidavit, for the former is stated to be $2,200, while the latter is said to be "nine hundred and seventytwo and 85-100 dollars of the twenty-two hundred alleged to be owing said Bresnaham." Clark states in his affidavit that prior to the commencement of this action by plaintiff, Barger & Sears had commenced an action against Bresnaham and had served attachment papers upon the company, but for what amount they had sued, or whether such suit was instituted before or after the acceptance of the orders upon which the action of plaintiff is brought, does not appear. It will readily be seen, if the orders were accepted by the company after the service of the attachment, the company cannot evade its liability under the attachment by urging the subsequent acceptance of the orders given by Bresnaham. From aught that appears in the record, the sum owing from the company to Bresnaham at the time this suit was instituted was sufficient to pay both the claim of plaintiff and of Barger & Sears. In the case of Pfister v. Wade, 56 Cal. 43, which was an action brought upon a statute from which section 4109 of the Revised Statutes of Idaho was copied, the

« ZurückWeiter »