City of Helena v. Brule

ON MOTION NOR REHEARING.

— A petition for a rehearing has been filed, based upon the ground that counsel for appellants expected to argue the case orally, but could not, because it “ became necessary for said counsel to attend the district court at White Sulphqr *433Springs, Montana, and tbe nature of his business there was such that he could not, without a violation of professional duty, decline or refuse to give personal attention to it.”

The supreme court docket is now nearly eighteen months behind. It is therefore imperatively necessary that causes be submitted upon the dates set for their hearing, to the end that the work of the court may progress. Moreover, if, after causes are set in this court, professional engagements of counsel in other state courts conflict with the sitting of the supreme court, we think the primary duty of counsel is to the appellate tribunal. We must insist upon the enforcements of this unwritten, but manifestly proper, rule.

The excuse of counsel being insufficient, we decline to consider the motion for a rehearing.

Motion denied.

— We are of opinion that the affidavit to set aside the default and judgment is wholly insufficient. The rest of the appeal being from the judgment only, we are confined in our examination to the question of whether the complaint states a cause of action, and supports the judgment. (Foster v. Wilson, 5 Mont. 53; Haggin v. Lorenz, ante, p. 309.) We think it does. It sets forth the corporate existence of the city of Helena, pleads the nature of the action brought by Lockey against Walker as treasurer,°the injunction issued therein, the giving of the legal undertaking, and the decision in that case. It further sets up that the city is the real party in interest, Walker, as treasurer, being a mere nominal party, and that the damages sustained were sustained by the city of Helena; that the damages amounted to three hundred dollars, paid for counsel to assist the city attorney in procuring the dissolution of the said injunction. In Creek v. McManus, 13 Mont. 152, it was held that attorneys’ fees paid to procure the dissolution of an injunction are recoverable as an item of damages in an action on the bond given in the injunction suit. The record to which we are confined discloses no radical error which will vitiate the judgment, and none will be presumed. (Dimick v. Campbell, 31 Cal. 240.)

Where a case has been submitted to the court, as was this, without argument or brief on appellants’ part, we do not feel that it is our duty to make very diligent search to reverse a judgment by default, where no obvious fatal error appears. (State v. Roberts, 9 Mont. 12; Territory v. Mooney, 8 Mont. 151; Territory v. Stanton, 8 Mont. 157.)

The order refusing to set aside the default and judgment, and the judgment, are affirmed.

Affirmed,