Harrington v. Butte & Boston Mining Co. , 35 Mont. 530 ( 1907 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court:

This is the fourth appeal in this case. For a statement of the facts it will be sufficient to refer to the former decisions of this court. (Harrington v. Butte etc. Min. Co., 19 Mont. 411, 48 Pac. 758, 27 Mont. 1, 69 Pac. 102, 33 Mont. 330, 114 Am. St. Rep. 821, 83 Pac. 467.) In this instance the plaintiff had judgment in the district court, and from that judgment the defendants have appealed.

The first contention made is that the evidence is insufficient to support the judgment; but this contention cannot be considered. There is not any appeal from an order denying defendants a new trial. Neither does it appear that a motion for a new trial was ever passed upon by the district court. All that does appear is that the statement on motion for a new trial was settled. Section 1736 of the Code of Civil Procedure provides, among other things: “Any statement used on motion for a new trial may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing a new trial.” So far as this record discloses, the motion for new trial was never passed upon, and therefore it cannot be said that the statement was used “on motion for a new trial.” A statement on motion for a new trial is not a part of the judgment-roll. (Code Civ. Proe., sec. 1196.) These considerations dispose of all questions raised which do not appear upon the judgment-roll itself.

It is urged that the court committed error in giving instruction No. 2; but the only argument advanced against this instruction is that it ignores the provisions of sections 2604 and 2610 of the Code of Civil Procedure. Section 2604 relates to claims against an estate, and section 2610 relates to actions founded upon claims against an estate which have been disallowed by the executor or administrator.

Before this last trial in the district court, John A. Leggat, one of the original defendants, died, and Alexander J. Leggat, His administrator, was substituted. A supplemental complaint was filed alleging these facts, and also the fact that a verified claim for the amount sued for was duly presented and disallowed by such administrator. An answer to this supplemental complaint was filed, in which these facts are admitted. ' It is now insisted that, notwithstanding such admissions, it was incumbent upon the plaintiff to prove that such claim was presented and disallowed: that this instruction ignores such fact, and section 2612 of the Code of Civil Procedure is cited in support of this contention. But this section is not susceptible of the construction for which appellants contend.

Counsel must concede that if upon the trial of this case plaintiff had offered to make proof of these facts, and-defendants had thereupon in open court admitted them, and such admission had gone into the record, then a sufficient showing would have been made, and the facts would have been proved conformably to section 2612 above. But such an admission could not have any greater force or effect than the solemn admission of the defendants in this answer. Juries are called to try issues of fact raised by the pleadings, and there cannot be any issue involved in an instance where plaintiff alleges a fact, and the defendants admit it. It is a general rule, too well established to admit of discussion, that the plaintiff need not prove a fact admitted by the defendants, and this rule is not in any sense in conflict with section 2612 above. In Frank v. Symons, 35 Mont. 56, 88 Pac. 561, this court said: “To the extent of the admissions in the pleadings, both the court and the jury are bound by them.”

This disposes of all matters properly presented by defend-' ants. Not finding any error in the record, the judgment is affirmed.

Affirmed.

Mr. Justice Smith concurs. Mr. Chief Justice Brantly, being disqualified, takes no part in the foregoing decision.