Second National Bank v. Kleinschmidt

The opinion states the case. McLeaky, J. This action was brought on the thirtieth day of September, 1886, by the respondent against the defendants, to recover judgment on a certain promissory note, dated May 14, 1884, for the principal sum of five thousand five hundred dollars and interest. Personal service was had upon all the defendants in the case. On the nineteenth day of November, 1886, Reinhold H. Kleinschmidt and Louis Hillebrecht filed their answer to the complaint, to -which a replication was filed by plaintiff on the twenty-second day of November, 1886. Blackfoot Horse and Cattle Company, Carl Kleinschmidj;, and Albert Kleinschmidt, entered their appearance by their attorneys, but failed to answer within the time limited by law; whereupon their default was duly entered in open court, by and with the consent of their attorneys. On the 8th of December, 1886, the case came regularly on for trial upon the complaint, the answer of Reinhold H. Kleinschmidt, and Louis Hillebrecht, and the replication filed thereto by plaintiff. The defendants Reinhold H. Kleinschmidt and Louis Hellebrecht, by their attorneys, in open court waived a trial of the issue thus formed, and consented that their default might also be entered. The court below entered judgment for the amount due on the note, on the eighth day of December, 1886, in the sum of $6,917.61, and $11.65 costs of suit. On the 24th of December, 1886, the defendants Reinhold H. Kleinschmidt and Louis Hillebrecht moved the court to direct and order that an execution be first issued against the property of the other defendants named in the action, which the court overruled, and to which they then and there excepted. The transcript in the case presents but two questions, to wit: 1. Was the judgment authorized? 2. Was the motion of appellants, for issue of execution against the property of the other defendants, properly denied? [149] We will examine these questions in the order in which they are stated in the brief of the appellants. 1. We find, upon an examination of the transcript, that the appealing defendants were copartners, doing business in the city of Helena, and were the makers of the notes sued upon. They claimed in their answer that they were accommodation makers only, and undertook to set up facts which, if true, might possibly have modified the judgment as against them; but the plaintiff filed a replication to this answer, in which it denied all ,the material allegations of the answer, and alleged facts which would show, beyond cavil or question, the right of plaintiff to recover a judgment against the appellants. This formed a distinct and fair issue for trial between the appellants and plaintiff: This issue came on for trial, whereupon the appellants refused to proceed, but waived a trial, and consented that -their default might be taken. This was done. As already shown, the default of all the other defendants had been entered by consent, so that when the appellants waived their right of trial, and consented to default, there was nothing to try, and the court could do nothing but enter judgment for the amount claimed by plaintiff against all the defendants. In this there was no error committed. 2. As to the denial of the motion: there is nothing in the record to show on what the motion was based. We suppose it to have been based on the allegations set out in the defendants’ answer. But these allegations were denied by the plaintiff in its replication, and were not supported by any proof whatsoever; and furthermore, the record shows that the appellants waived a trial, and consented that their default be entered. This left no issue of any kind whatever to be tried, and was a virtual confession of all the allegations in the complaint. The recitals in the judgment, which in this case must be taken as correct, show that this -was, in effect, a judg [150] ment by consent. There is nothing in this record to support the motion made by these defendants below, and it was properly denied. No brief is filed for the appellants, and indeed, there does not appear sufficient irregularity in the record on which to make even a show of contest. From an inspection of the record, and a careful consideration of all the facts and circumstances of this case, we consider this a proper case for the enforcement of rule 23. Damages for delay are therefore awarded against the appellants in the sum of one hundred dollars, and the judgment is affirmed, with costs. Judgment affirmed. McConnell, C. J., Bach, J., and Galbraith, J., concur.