State Ex Rel. Phillips v. Ford , 116 Mont. 190 ( 1944 )

I concur in the principal result reached by the majority but I cannot agree on two points covered in the majority opinion. First, I cannot agree that there is no evidence tending to show coercion on the part of Simmons practiced in obtaining relator's resignation. The lower court specifically found that coercion as a matter of fact and to my mind there is evidence supporting that conclusion. Where there is evidence supporting the lower court's conclusion, this court of course has no power to delete the lower court's finding.

I dissent also from the court's ruling in which it denies to the relator damages by way of attorney's fees and expenses, allowable under section 9858, Revised Codes 1935. The record shows and there can be no question but that relator had to employ counsel in order to prosecute this action; that as a matter of fact he was successful in the trial court and here only because of the great diligence of eminent counsel employed by him. Proof was adduced in the trial court showing the obligations incurred by the relator in the way of attorney's fees and his expenses in connection with the prosecution of these proceedings. As I understand the majority opinion the rule now adopted in this jurisdiction is that before damages by way of attorney's fees and expenses in a mandamus action may be recovered, it is necessary for the relator to specially plead in his bill these damages. But prior to the decision in the instant case that was not necessary, nor is there any provision in the statute requiring it. Relator's principal counsel, an eminent lawyer of long standing and extensive practice before the bar of Montana, when he drew the bill in this case, could very easily have pleaded these damages and his failure to do so was of course dictated by the state of the law in Montana at the time he entered the case. Under Stateex rel. Golden Valley County v. District Court, 75 Mont. 122,242 P. 421, 422, this court had expressly and directly said that it is unnecessary to specially plead these damages. In speaking of section 9858, Revised Codes, 1921, now section 9858, Revised Codes, 1935, this court said in that case, speaking through Mr. Justice Galen and concurred in by Mr. Chief Justice Callaway and Associate Justices Holloway, Matthews and Stark: "The statute is silent as to the proper course to be pursued in making claim for the damages authorized to be awarded, and with propriety some future legislative assembly may specifically outline the proper procedure. In the absence of definite direction as to the proper practice in such cases, we think the applicant for the writ may, with propriety, make claim in his original application for such damages as can then be reasonably anticipated; or the course pursued in the instant case, by filing in the action a bill of particulars, covering the several items of damages claimed, would be unobjectionable if adopted before conclusion of the hearing. Where the method of procedure is not definitely pointed out by a statute conferring a specific right, any suitable mode of procedure may be resorted to which may appear best to conform to the spirit of the law. (Sec. 8882, Rev. Codes 1921)".

In this case the bill of particulars was not filed until after the conclusion of the proceedings in the court room of the district court and the majority points out that relator for that reason did not comply with the requirement of this prior decision of our court. This is not the case for two reasons: First, because in the language above quoted this court did not suggest that the only procedure to be followed was that followed in that case. It specifically pointed out that any suitable mode of procedure might be resorted to which might best appear to conform to the spirit of the law, and second, the court went on to say this: "Manifestly, however, the right to recover damages must be claimed and proof submitted in support thereof before the conclusion of the hearing; otherwise the court, after final judgment entered, is without jurisdiction to make award thereof." What the court there said to the world and to the lawyers of the State of Montana was not that the claim must be made before the oral hearing is completed but that if you wish to secure damages by way of attorney's fees for your client in a mandamus proceeding you must make suitable claim some time during the proceedings for those damages, but no specific method need be followed so long as the claim is made and proof submitted prior to the time judgment is entered. Further than that the court pointed out that the reason the claim had to be made and proof submitted before judgment was entered, was because otherwise the district court would be without jurisdiction to consider them. Relator's counsel here had a right to rely on what was said in this prior decision of our court, which has stood for twenty years.

This court suggested in that case that it might be well for the legislature to pass an Act specifically covering the manner of making claim for this type of damages in a mandamus proceeding. This the legislature has not seen fit to do. If the procedure sanctioned in this prior decision in 75 Mont. 122,242 P. 421, is bad, it might be well for this court to point it out in its decision in this case, and thus indicate to the members of the bar that in the future this court would look with disfavor on the method followed in that case and in this for claiming these attorney's fees as damages. But it seems to me unjustifiable to cause this great financial loss to relator and most probably to his counsel where reliance has been had on the settled law of this state. If lawyers in preparing their pleadings in matters like this cannot rely on the decisions of this court in the past, how are they going to avoid pitfalls such as this? A case indirectly covering this same proposition is State ex rel.Snidow v. State Board of Equalization, 93 Mont. 19, 17 P.2d 68. There an original application for mandate was filed in this court. No evidence was submitted to this court on this matter of damages by way of attorney's fees and expenses and yet this court held unanimously on this point with Mr. Chief Justice Callaway writing the opinion that it could fix the value of those attorney's fees without any evidence, based entirely upon the memorandum of costs and disbursements filed with the court after the hearing. More recently in the case of State ex rel. Lynch v. Batani, 103 Mont. 353, 62 P.2d 565, 569, where no proof was adduced before this court, we unanimously held that we had "the power to fix and allow a reasonable attorney fee without the reception of evidence with respect to the same. * * * Here counsel signed the petition and appeared on behalf of the relator throughout the entire course of this proceeding; he performed much of his labor in the presence of this court; the pleadings also evidence it. For us to hold, before we could find that some service has been performed, that relator should have proved all the service rendered by his counsel, would be to insist on an idle act not required by law. (Sec. 8761, Rev. Codes)".

I think this is a much stronger case than either of the latter two cited for the allowance of these attorney's fees. Respondents knew that under the statute relator was entitled to attorney's fees as damages, if he prevailed on the principal question. Evidence was introduced in the proceedings before the trial court during the course of the hearing covering these services and respondents had an opportunity to controvert this evidence. A bill of particulars was filed prior to judgment and while the court had jurisdiction. No one was taken by surprise. No one suggested that the amount of damages by way of attorney's fees allowed was excessive. All of the counsel representing relator were capable, experienced practitioners. They could have moved to amend their bill at any time in the district court. They could have sought additional time in which to file a bill of particulars prior to the close of the hearing. But, as experienced counsel they thought they could rely on the decision of this court, State ex rel. Golden Valley County v. DistrictCourt, supra, and this they did. And I dissent most vigorously from that portion of the majority opinion which denies to relator the damages provided by the statute.

I question also the propriety of the ruling of this court to the effect that costs be divided on this appeal. In the first place, under section 9858, costs automatically go to the applicant for a writ of mandamus if judgment be given for him, and as I read the Act, the court is without discretion in the matter, at least in the district court. Here this relator has been engaged for years in pursuing his remedy. The writ was issued in the lower court and his principal contention is sustained in the majority opinion. I can see no justice or equity in dividing the costs upon the modifications made here in the judgment of the district court.

Rehearing denied September 5, 1944.