DocketNumber: No. 8461.
Citation Numbers: 151 P.2d 171, 116 Mont. 190, 1944 Mont. LEXIS 32
Judges: Erickson, Lynch, Johnson, Anderson, Morris
Filed Date: 5/10/1944
Status: Precedential
Modified Date: 11/10/2024
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 *Page 207
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,
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
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 *Page 210 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.