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eBook details

• Title: Griffith v. Montana W.G. Assn.
• Author : Supreme Court of Montana
• Release Date : January 23, 1926
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 63 KB

Description

Conversion ? Right of Appeal ? Who not "Aggrieved Party" ? Default Judgments ? Amended Pleadings ? Failure of Service ? Jurisdiction ? Record on Appeal ? Amendment After Decision ? Waiver. Appeal ? Who may not Appeal. 1. Unless a party has an interest in the subject of litigation which is injuriously affected by an order made or judgment rendered therein, he is not an "aggrieved party," within the meaning of section 9761, Revised Codes of 1921, and cannot appeal therefrom. Same ? Conversion ? Intervenor not "Aggrieved Party" ? Dismissal of Appeal. 2. In an action by a mortgagee for damages for the conversion of a mortgaged crop, in which a bank had intervened as holder of orders given it by the mortgagor drawn on defendant purchaser of the grain which remained unpaid, where plaintiff claimed nothing as against the intervenor and the latter made no claim to anything in which plaintiff was interested and the judgment merely awarded to plaintiff the damages claimed, not mentioning intervenor, held, that the bank was not aggrieved and therefore not entitled to appeal from the judgment, and appeal dismissed. Conversion ? Complaint ? Contents. 3. Where plaintiff in an action for conversion is not the absolute owner of the property in controversy, his complaint must disclose the character and extent of his interest in it at the time it was converted. - Page 467 Default Judgment ? Non-service of Amended Complaint ? Lack of Jurisdiction to Render Judgment. 4. An amendment to a pleading made as a matter of right under section 9186, Revised Codes of 1921, does not become effective for any purpose until it is filed and served; hence where an amended complaint was never served, judgment by default could not be rendered against defendant. Same ? Appeal ? Record must Disclose Acquisition of Jurisdiction ? Presumption. 5. The service of an amended complaint performs the same function as the service of summons in the first instance, and on appeal from a default judgment the record must disclose acquisition of jurisdiction over the defendant by service of the amended pleading or waiver thereof, the presumption of jurisdiction in such a case not obtaining. Waiver ? Definition. 6. A waiver is the relinquishment of a known right and implies knowledge of the existing facts and an intention to forego a right which might have been asserted. Amended Complaint ? Waiver of Service ? Insufficient Showing. 7. Where, after plaintiff had filed an amended complaint which had not been served, counsel entered into a stipulation by which defendant was granted further time to plead but no mention was made therein of the filing of the amended pleading, and the record did not disclose that defendant had any knowledge of its filing, the contention that by entering into the stipulation defendant waived service held without merit. (See par. 6, above.) Record on Appeal ? Amendment After Decision Rendered ? Denial. 8. Leave to amend the record on appeal, after decision and on motion for rehearing, will be denied, where counsel, though advised of the defect by the brief of his adversary, made no effort to have the correction made either before or at the time of submission of the cause.

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