Gillette v. Bullard

ERROR to the Supreme Court of the Territory of Montana.

Bullard, assignee of Marden, sued Gillette upon an appeal bond. The action was commenced on the 30th of January, 1872. The complaint alleged that on the 15th June, 1868, Marden recovered a judgment in the District Court of the Territory against Plaisted & Wheelock, which yet remained in full force, unreversed and unsatisfied except as thereinafter stated; that on the 16th day of July, 1868, Plaister & Wheelock appealed from that judgment to the Supreme Court of the Territory, and that on such appeal Gillette executed a bond, whereby he became bound for the payment of the judgment and all damages and costs that might be awarded against the appellants if it should be affirmed; that on the 31st December, 1868, said judgment was affirmed by the Supreme Court of the Territory, and costs adjudged against the appellants; that on the 2d of July, 1870, Marden assigned the judgment and his interest therein to the plaintiff; that by virtue of executions issued, certain sums were made on the 22d of August, and the 26th of September, 1870, but that a large balance still remained unpaid, for the recovery of which the action was brought.

The answer, filed on the 21st of February, A.D. 1872, did not deny any of the averments in the complaint, but alleged by way of defence, that on the ___ day of January, 1869, Plaisted & Wheelock appealed from the judgment of the Supreme Court of the Territory to this court; that they thereupon executed and filed with the clerk of the Supreme Court of the Territory a good and sufficient bond on appeal, and that court stayed all proceedings upon the judgment and granted a supersedeas in the action; that no remittitur or mandate had ever been issued from this court to the Supreme Court of the Territory, or from the Supreme Court of the Territory to the District Court, and that the judgment of the Supreme Court of the Territory still remained in that court 'so stayed by the order thereof by the giving of the bond on appeal and by the supersedeas.'

After the filing of the answer, judgment was given against Gillette upon the pleadings, and he brought the case here.

The question was whether the answer stated facts sufficient to constitute a defence to the action.

By the seventy-eighth section of the Practice Act of Montana it is provided, that 'in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.'Mr. Robert Leech (a brief of Mr. W. F. Sanders being filed), for the plaintiff in error: