[Download] "Graham Et Al. v. Superior Mines" by Supreme Court of Montana ~ eBook PDF Kindle ePub Free
eBook details
- Title: Graham Et Al. v. Superior Mines
- Author : Supreme Court of Montana
- Release Date : January 27, 1935
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 63 KB
Description
Chattel Mortgages ? Foreclosure ? Dismissal of Action by Plaintiff Before Trial ? Defendant Entitled to Costs and Attorneys Fee ? Estoppel. Dismissal of Action by Plaintiff Before Trial ? Procedure. 1. While, under section 9317, Revised Codes 1921, where defendant has not interposed a counterclaim or asked for affirmative relief, the usual procedure for plaintiff to obtain a dismissal of his action before trial is the filing of a praecipe for dismissal and direction to the clerk to enter it on the register of actions, whereupon the case is beyond the jurisdiction of the court except for the purpose of entering judgment for costs in favor of defendant, the same result may be reached by a motion to the court for dismissal and having the order entered on the register. Same ? Rendering Judgment for Costs Before Demand ? Non-prejudicial Irregularity. 2. Where the court in an action dismissed by plaintiff before trial committed technical error in rendering judgment for costs before defendant had demanded them, the irregularity could not have worked prejudice in view of the fact that the cost bill was thereafter filed - Page 428 to which plaintiff filed objections resulting in a hearing, particularly so where the latter did not raise the point that the bill was filed out of time. Same ? Judgment of Dismissal Carries Costs. 3. A judgment of dismissal carries with it a judgment for costs as much so as does one on the merits. Same ? Appeal from Order Denying Costs ? Estoppel ? Theory of Case ? Change of Position on Appeal. 4. Where defendant interposed a demurrer to the complaint on the ground of want of jurisdiction which had not been passed upon at the time plaintiff dismissed the action, defendants assertion on appeal from an order denying him a part of his costs that the trial court, notwithstanding his demurrer, had jurisdiction to enter judgment for costs did not create such a change of position as to amount to a violation of the equitable doctrine of estoppel. Mortgages ? Foreclosure ? Allowance of Attorneys Fees ? Statutory Provision Reciprocal. 5. Section 9798, Revised Codes 1921, making it incumbent upon the district court in a mortgage foreclosure action to allow a reasonable attorneys fee is reciprocal, and therefore applicable to plaintiff and defendant. Same ? Dismissal of Action by Plaintiff Before Disposition of Defendants Demurrer ? Costs Awardable to Defendant. 6. Where a mortgage foreclosure suit was dismissed by plaintiff before the trial court passed upon defendants demurrer to the complaint, contention of plaintiff, on appeal by defendant from an order denying him part of his costs, that by dismissing the action he (plaintiff) in effect confessed the demurrer and that defendant, therefore, could recover no costs other than those allowed under section 9797, Revised Codes 1921, providing that where a demurrer or motion is sustained, the losing party must pay to the other $10 as costs, held without merit. Same ? Dismissal of Action by Plaintiff ? Defendant Entitled to Reasonable Attorneys Fees. 7. Defendant in a suit to foreclose a chattel mortgage held entitled to a reasonable attorneys fee upon dismissal of the cause by plaintiff prior to trial.