Hutchinson v. Burton , 1952 Mont. LEXIS 41 ( 1952 )

MR. JUSTICE ANGSTMAN:

(dissenting).

I think my associates are in error in holding that the bill of exceptions may not be considered.

That courts may relieve a person from his default in presenting the bill of exceptions within the time allowed by law has been well settled in other jurisdictions having statutes similar to our section 93-3905, R. C. M. 1947.

The courts of California under an identical statute have held that the court may grant relief under the statute for failure to file the bill of exceptions in time. Stonesifer v. Kilburn, 94 Cal. 33, 29 Pac. 332; Banta v. Siller, 121 Cal. 414, 53 Pac. 935; People v. Everett, 8 Cal. App. 430, 97 Pac. 175; Haviland v. Southern California Edison Co., 172 Cal. 601, 158 Pac. 328; Jones v. Title Guarantee & Trust Co., 178 Cal. 375, 173 Pac. 586; California National Bank v. ElDorado Lime & Minerals Co., 200 Cal. 452, 253 Pac. 704. The Supreme Court of Utah also holds that the court may grant such relief under a statute similar to ours. Morgan v. Oregon Short Line R. Co., 27 Utah 92, 74 Pac. 523; George B. Leavitt Co. v. Couturier, 82 Utah 256, 23 Pac. (2d) 1101. And this may be done even though the rule is there, as here, that without such relief the court has no jurisdiction after the lapse of the statutory time to settle the bill. Findlay v. National Union Indemnity Co., 85 Utah 110, 38 Pac. (2d) 760.

“It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits.” Benjamin v. Dalmo Mfg. Co., 31 Cal. (2d) 523, 190 Pac. (2d) 593, 594.

And an appellate court will listen more readily to an appeal from an order denying relief than to one granting it. Hambrick v. Hambrick, 77 Cal. App. (2d) 372, 175 Pac. (2d) 269.

I think the court was right in relieving plaintiffs of their default in presenting the bill of exceptions in time and that the bill should be considered by us. Since there was no appeal taken by defendants from that order they are in no position to question the sufficiency of the showing of inadvertence or excusable neglect as distinguished from the question of the jurisdiction or power of the court.

Further I think the judgment appealed from by plaintiffs cannot stand even though the bill of exceptions may not be resorted to. Defendants sought to interpose a cross-complaint in their answer. The complaint was for forcible entry and unlawful detainer. The judgment on its face shows that it is based on the cross-complaint.

This court has held that our statutes do not contemplate that a counterclaim may be interposed in such an action. Spellman v. Rhode, 33 Mont. 21, 81 Pac. 395.

The purpose of R. C. M. 1947, secs. 93-9701, et &eq., relating to forcible entry and unlawful detainer actions, was to provide a speedy remedy to obtain possession of real property. Spellman v. Rhode, supra; Herzog v. Texas Company, 88 Mont. 580, 294 Pac. 962.

The courts generally hold that this purpose would be frustrated if defendants are permitted to interpose every defense usual or permissible in ordinary actions at law, and it is quite generally held that neither counterclaims nor cross-complaints are permissible in such actions unless provided for by statute. 36 C. J. S., Forcible Entry and Detainer, sec. 28, page 1168; 22 Am. Jur., Forcible Entry & Detainer, sec. 42, p. 940.

Our statute, section 93-8415, relating to cross-complaints, is substantially the same as section 442 of the California Code of Civil Procedure and the California courts have repeatedly held that a cross-complaint may not be interposed in a forcible entry and unlawful detainer action. Arnold v. Krigbaum, 169 Cal. 143, 146 Pac. 423, Ann. Cas. 1916D, 370; Smith v. Whyers, 64 Cal. App. 193, 221 Pac. 387; Schubert v. Lowe, 193 Cal. 291, 223 Pac. 550; Henderson v. Miglietta, 206 Cal. 125, 273 Pac. 581.

The same has been held by the Supreme Court of Arizona in Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 167 Pac. (2d) 394, 397, wherein the court said: “As we have said, the object of a forcible entry and detainer action is to afford a summary, speedy and adequate remedy for obtaining possession of premises withheld by tenants, and for this reason this objective would be entirely frustrated if the defendant were permitted to deny his landlord’s title, or to interpose customary and usual defenses permissible in the ordinary action at law. For this reason counter-claims, offsets and cross-complaints are not available either as a defense or for affirmative relief in such action, as indicated by our statutes and the statutes of most states. And for the same reason, the merits of the title may not be inquired into in such an action, for if the merits of the title and the other defenses above enumerated were permitted and the court heard testimony concerning them, then other and secondary issues would be presented to the court and the action would not afford a summary, speedy and adequate remedy for obtaining possession of the premises. ’ ’

One exception to this rule is where the tenant has voluntarily surrendered possession of the premises and hence where the issue of possession is removed from the case and the case has become one for the recovery of unpaid rent. Heller v. Melliday, 60 Cal. App. (2d) 689, 141 Pac. (2d) 447; Samuels v. Singer, 1 Cal. App. (2d) 545, 36 Pac. (2d) 1098, 37 Pac. (2d) 1050; Servais v. Klein, 112 Cal. App. 26, 296 Pac. 123; D’Amico v. Riedel, 95 Cal. App. (2d) 6, 212 Pac. (2d) 52. The pleadings disclose that this case does not fall within the exception.

Since the pleadings, without a bill of exceptions, show the pleading of a cross-complaint which is not permissible in an action for forcible entry and unlawful detainer and since the judgment roll discloses a judgment based upon the cross-complaint I think the ease stands the same as if a court entered a decree quieting title to real property in a divorce action.

The objection that a complaint (and the same rule applies to a cross-complaint) does not state facts sufficient to constitute a cause of action is never waived (R. C. M. 1947, sec. 93-3306) and may be raised for the first time in this court. Hand v. Heslet, 81 Mont. 68, 261 Pac. 609 and cases there cited.

The procedure of questioning the sufficiency of a pleading for the first time on appeal is not looked upon with favor, Galland v. Galland, 70 Mont. 513, 226 Pac. 511, and when this is done every reasonable deduction will be drawn in order to uphold the pleading, particularly where the defect relied on is such as might have been remedied by amendment. Munson v. Solace, 66 Mont. 70, 212 Pac. 1103. But here the objection to the cross-complaint is fundamental. It is an objection that cannot and could not be cured by amendment. The cross-complaint could not be amended to conform to proof so as to state a defense in a forcible entry action.

Hence if we may not resort to the bill of exceptions to determine that plaintiffs did in fact question the sufficiency of the cross-complaint at the trial in the district court, still they may raise the point for the first time in this court where as here the question goes to the very root of the cause of action attempted to be stated in the cross-complaint and where the same ,may not be cured by amendment.

' I think the infirmity of the judgment in favor of defendants appears from the judgment roll without the aid of a bill of exceptions and that the same should be set aside as unwarranted.