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between plaintiff and her mother and others who came to the house for consultation with this plaintiff. The property and furniture in the house were not disarranged, except that one chair had been moved by the keeper from the dining room to the kitchen, where the custodian maintained a fire and spent a large portion of his time, and the bedroom used by him was not well cared for. Within the time from the levy until removal of the property, Mrs. Cloutier served affidavit of ownership of a part of the property upon the sheriff and demanded its return to her, as did also Mrs. Moriarity, a resident of San Diego, Cal., and this plaintiff, assuming to act under as assignment to her of her husband's right to claim the property as exempt, made and served upon the sheriff an affidawit of ownership of the property in controversy, claiming it exempt and demanding its return. All of Mrs. Moriarity's property was returned to her, and likewise all but a small portion of that claimed by Mrs. Cloutier. The plaintiff's demand was refused. Trial resulted in verdict and judgment for defendants upon both causes of action. Appeal is from the judgment. [1] Numerous errors are assigned by appellant, but we think none merit serious consideration, save and except instruction No. 5 proposed and given by the court. Before passing to a discussion of it, however, we think a condition fairly appears from the record worthy of passing observation. The record is entirely devoid of any facts or circumstances to justify some three or four different keepers remaining in the house at 622 Harrison avenue, where their presence under the most favorable circumstances would be embarrassing to two ladies, for a period of 18 days. All were strangers to plaintiff and her mother, their presence in the kitchen and elsewhere about the house at various times of the day and night apparently wholly uncalled for, and why such an unusual length of time was consumed in making inventory and preparing the property for removal and actually removing it is not shown by the record, is inexplicable, and warrants severe condemnation. At the close of all the evidence the plaintiff proposed ten instructions, all of which were refused save one. The defendants offered four which were all refused, the court instructing the jury in writing in accordance with its views of the law applicable to the facts of the case. Instruction No. 5, given by the court, is as follows:

“You are further instructed that as a matter of law, under the facts of this case, the defendants had the right to enter the premises in question and to seize said property under the writ of attachment and to leave such goods in the house, but only so long as it was reasonably necessary under the circumstances to pack up and prepare the same for removal and to remove the same, unless the removal of said goods from said house was prevented by the

act of the plaintiff, Mabel Himmelbauer, or her husband, Antone Himmelbauer, or their agents, or unless they gave consent to the goods remaining there.”

[2] There is no conflict in the evidence as to the manner in which the entrance and levy were made. Hageman was in possession of the house at 622 Harrison avenue on April 1st. He was a constable and stated that he had attached the property the day before. He admitted the sheriff, who thereupon made the levy. Under that state of facts we think instruction No. 5 not erroneous. While the general doctrine that a man's home is his castle, where an officer may not enter against the consent of the owner for the service of civil process, is well established (Ilsley v. Nichols, 12 Pick. [Mass.] 270, 22 Am. Dec. 425), the rule cannot apply under all circumstances. The design of the law is the preservation of the sanctity of the home, rather than the protection of the property therein (Ilsley v. Nichols, supra), and hence the rule should not be applied under all circumstances as that it might become an instrument to defeat the ends of justice. If the entry of a dwelling house is made without force, peaceably, and even permissibly, an officer may proceed to levy upon goods in the house. 6 C. J. 219; 4 Cyc. 581; Hitchcock v. Holmes, 43 Conn. 528. The writ commanded the sheriff to attach the property of defendants. The statute requires that the officer shall seize and take possession of the property in making his levy (Rev. Codes, §§ 9260, 9262), and hence, having gained a peaceable entrance, he was but pursuing the plain requirement of the law in making the levy and seizing the property. In substance, the instruction complained of so told the jury and was a correct statement of the law as applied to the facts of this case.

[3] Appellant assigns as error the refusal of the court to give his offered instruction No. 1, being a statement of the issue as defined in the pleadings. While the practice of giving such statement to the jury is commended (Paxton v. Woodward, 31 Mont. 195, 78 Pac. 215, 107 Am. St. Rep. 416, 3 Ann. Cas. 546; Rand v. Butte Electric Ry. Co., 40 Mont. 398, 107 Pac. 87; Frederick v. Hale, 42 Mont. 153, 112 Pac. 70), error cannot be predicated upon its failure so to do.

Other assignments of error are without merit and require no further consideration.

We think the jury was fully and fairly instructed upon all matters of law applicable to the case, and that the judgment should be affirmed, and it is so ordered.


CALLAWAY, C. J., and COOPER, HOLLOWAY, and STARK, J.J., concur.

On Rehearing.

SPENCER, District Judge. More mature consideration, after a rehearing, has disclosed

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(220 P.)

that error upon the part of the trial court prejudicial to the rights of appellant was committed in giving instruction No. 11, Sufficient statement of the facts appears in the former opinion, and we think that decision correct in material particulars, save and except so much thereof as fails to disapprove of instruction No. 11.

[4,5] Appellant urges all specifications of error made upon the original hearing, but lays particular stress upon the giving of instructions Nos. 5 and 11, and only these require consideration. As the order of this court heretofore made must be overruled and a new trial granted, attention should be called to the record to show why No. 5 has our approval. Instruction No. 5 reads as follows:

“You are further instructed that as a mat

ter of law, under the facts of this case, the defendants had the right to enter the premises in question and to seize said property under the writ of attachment and to leave such goods in the house, but only so long as it was reasonably necessary under the circumstances to pack up and prepare the same for removal and to remove the same, unless the removal of said goods from said house was prevented by the act of the plaintiff, Mabel Himmelbauer, or her husband, Antone Himmelbauer, or their agents, or unless they gave consent to the goods remaining there.”

The record fails to disclose in what manner the constable effected his first entrance into the house in question; fails to show how or from whom he obtained the key with which he later admitted the sheriff : fails to show whether he admitted the sheriff pursuant to previous arrangement or in consequence of a request after a casual meeting; and fails to impart any information as to what was the result of the attachment which the testimony showed he levied the day prior to the levy by the sheriff.

On April 1, 1918, the house at 622 Harrison avenue was in the apparent possession of Hageman, who produced the key and allowed the sheriff to enter. No circumstances appear in the record to arouse the suspicion, much less to justify the belief by the sheriff, that such possession was not rightful, nor do we think the record discloses any facts which would require the sheriff before making his levy to make further investigation after his entry was made without force, peaceably, and even by permission of one not only in apparent but actual possession. Neither Hageman nor the deputy sheriff were produced as witnesses to explain the circumstances attending the entrance of either officer, and while anOther trial of this case may disclose circumstances such as to make instruction No. 5 wholly inapplicable, we think it not erroneous when applied to the undisputed facts of this case. The injection of the name of Antone Himmelbauer into the instruction was not

justified by the evidence, since he was not

even remotely connected with any of the proceedings in relation to the levy upon, detention, or removal of the property; but we think the jury was in no manner misled thereby, and the error, if any, was harmless. [6] Instruction No. 11, however, especially in so far as it applies to the second cause of action, is erroneous. It reads:

“You are instructed that if you find from a preponderance of the evidence in this cause that the property described in the complaint was property exempt from attachment, and that demand had been made therefor, your verdict should be for the plaintiff for the reasonable value of such property on the 1st day of April, 1918, not, however, exceeding the sum of $1,000 with interest thereon from said date at 8 per cent. per annum; also, for such additional sum as you may find that she has incurred as expenses in the pursuit of said property, not exceeding the sum of $100.

“And upon plaintiff's second cause of action, if you find that the property is exempt and that she made demand therefor, and if you find from a preponderance of the evidence that the conduct of the officers, while in the house where the property was situated and during the time when the plaintiff was present, acted in a wanton and malicious manner and not reasonably necessary for the preservation and care of the property, you may find for the plaintiff such actual damages, if any, as you believe from the evidence she has suffered therefron, and for such exemplary damages as you think she is entitled to under all the facts and circumstances in this cause; but you cannot award the plaintiff any damages for mere humiliation or injury to feeling in any event occasioned or caused by the mere fact of the attachment having been made upon the property, or the mere fact of the presence of the officers in caring for such property.”

Under this instruction the jury was advised that at least three facts must exist before the plaintiff could prevail in actual damages, viz.: (1) That the property in question was exempt; (2) that plaintiff made demand therefore; and (3) that the officers acted in a wanton and malicious manner. The second cause was not founded upon the theory that the property was exempt, the demand was admitted in the pleadings, and the wanton and malicious conduct of the officers, if any, could only apply to exemplary damages, not to the actual, and hence it becomes apparent that the jury was not required to find the existence of any of these facts, in order to base a verdict for actual damages in favor of plaintiff. The instruction was an incorrect statement of the law, and indulging the presumption that the jury followed the instructions of the court, was clearly prejudicial to the rights of appellant, and for this error plaintiff is entitled to a new trial.

The former order of this court is overruled, the judgment of the lower court is ordered reversed, and a new trial granted.

CALLAWAY, C. J., and COOPER, HOLLOWAY, and STARK, JJ., concur.


(Supreme Court of Montana. Nov. 9, 1923.)

1. Husband and wife 3-285/2-District court held empowered to grant separate maintenance and temporary alimony, attorney's fees, and suit money, without joining action for divorce. In view of Rev. Codes 1921, § 5768, recognizing the right of the district court to grant maintenance without a divorce, and sections 5784, 5800, making it the husband's duty to support the wife, and sections 10545, 10549, 10703, 10704, as to effect of the Code application of the common law, etc., the district court held empowered to grant a decree for separate maintenance together with alimony, attorney's fees, and suit money, during the pendency of the action, on the ground of willful neglect for less than a year, without the necessity of joining there with an application for divorce under sections 5736, 5747, notwithstanding section 5769, authorizing such a suit on ground of desertion only.

2. Statutes 3-239 - Common-law rules not overturned except by clear and unambiguous language. Common-law rules are not to be overturned by statute except by clear and unambiguous language.

Original petition by the State, on the relation of O'Brien La Point, for writ of prohibition, against the District Court of the Second Judicial District in and for the County of Silver Bow, and Joseph R. Jackson, as Judge thereof. Respondents' motion to quash sustained.

Timothy Nolan, of Butte, for relator. H. A. Tyvand, J. F. Emigh, and J. J. Bourquin, all of Butte, for respondents.

STARK, J. [1] On or about the 10th day of September, 1923, Violet La Point, as plaintiff, commenced an action in the district court of Silver Bow county against O'Brien La Point, as defendant, to obtain a decree of separate maintenance. In her complaint she alleged her marriage with the defendant on the 24th day of January, 1923; that she had resided in the state of Montana for more than one year next preceding the commencement of the suit; that there was living as the issue of her marriage with the defendant a minor child, Juanita La Point, born on the 25th day of August, 1923; that said child was in her custody; and that she was a fit and proper person to care for her. She further alleged that since the 23d day of August, 1923, the defendant had neglected to provide the common necessaries of life for the plaintiff and her minor child, although he had the ability to do so; that she had no money or property of her own with which

to maintain herself and the child; that $75 a month was a reasonable and necessary amount to be allowed to her for that purpose; that $200 was a reasonably necessary sum to be paid by her to her attorney for prosecuting the action; and that $50 was a reasonable Sum to be allowed for court costs. On the filing of the complaint, Hon. Joseph R. Jackson, the district judge in whose court Said action was pending, issued an order requiring the defendant to show cause why he should not be compelled to pay alimony pendente lite, together with attorney's fees and court costs. On the return day of the order the defendant appeared and filed a motion to dismiss the same on the ground that the complaint did not state facts sufficient to constitute a cause of action, which motion was subsequently overruled by the court, and the order to show cause was heard upon its merits. At the conclusion of the hearing an order was made requiring the defendant to pay to the plaintiff as alimony during the pendency of the action the sum of $40 per month, and also an attorney fee of $50. Subsequent to the making of this order, the defendant in the action filed his petition in this court asking for a writ of prohibition directing the above-named district court and the judge thereof to annul, vacate, and set aside the order requiring him to pay alimony and attorney's fees, and to refrain from further proceeding thereunder. Upon the filing of the petition an alternative writ of prohibition was issued out of this court requiring the respondents to appear and show cause why such, writ should not be granted. On the return day respondents appeared and filed a motion to quash the writ on the grounds that the petition does not state facts sufficient to entitle relator to the relief asked, and that the court was without jurisdiction. The matter was argued and submitted to this court for determination. Under the arguments and briefs of counsel, the sole question presented for decision is whether, under the laws of this state, a wife can maintain an action for separate maintenance on the ground of willful neglect independent of an action for divorce. Counsel for relator contends that this cannot be done, and his argument runs along this line: He cites section 5736, Revised Codes 1921, which provides that absolute divorces, separations from bed and board, or decrees of separate maintenance may be granted for the causes therein enumerated, amongst them (3) willful desertion and (4) willful neglect; also section 5747, which declares that willful desertion or willful neglect must continue for the space of one year before there is ground for divorce; and section 5769, providing that while an action for divorce is pending the court or judge may require

the husband to pay as alimony any money self and children, or to prosecute or defend

&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(220 P.) necessary to enable the wife to support her-, mental jurisdiction of courts of equity in all

cases where authority is granted to the courts

the action, and “when the husband willfully to hear and determine such causes.”

deserts the wife, she may, without applying for a divorce maintain in the district court an action against him for permanent support and maintenance of herself and children,” and the court may “during the pendency of such action * * * require the husband to pay as alimony” the necessary funds to enable her to prosecute “the action and for support and maintenance.” From a consideration of these sections, counsel argues that since section 5769, supra, is the only one which makes provision for the allowance of alimony pendente lite and suit money, and as that section makes a specific provision that an action for separate maintenance may be maintained on the ground of willful desertion before the expiration of the time required to make it a ground for divorce, and that being the only exception under the statute, therefore an action for separate maintenance on any ground Other than willful desertion cannot be maintained until such time as the basis of complaint has ripened into a cause for divorce and an action for divorce is joined therewith. From this he contends that, since the complaint in the action filed in the district Court does not contain an allegation that the willful neglect had continued for a period of one year, but, on the contrary, affirmatively shows that plaintiff and defendant had been married for less than one year, and that the alleged willful neglect had continued for a space of only seventeen days, the plaintill does not and cannot state facts sufficient to give the court jurisdiction of the subjectmatter. If the power of the court to entertain an action for separate maintenance is limited by these provisions, relator's contention might have merit. In Edgerton v. Edgerton, 12 Mont. 122, 29 Pac. 966, 16 L. R. A. 94, 33 Am. St. Rep. 557, this court decided in 1892 that the district court in the exercise of its equity jurisdiction had authority to grant separate maintenance to a wife, independently of an action for divorce, when it was shown that the husband had abandoned her without cause, or by his cruelty or other improper conduct had given her cause for living separate and apart from him. In State ex rel, Wooten v. District Court, 57 Mont. 525, 189 Pac. 236, 9 A. L. R. 1212, it was held that the defendant wife in an action brought by her husband for the annulment of the marriage was entitled to allmony, suit money, and attorney's fees, pendente lite, although the statute giving the Court jurisdiction to entertain such an action made no provision therefor. In the course of the opinion the court said: "The overwhelming weight of authority * * * holds that the right to award alimony in matrimonial cases is a part of the funda

Counsel for relator does not question the doctrine of the cases of Edgerton v. Edgerton and State ex rel. Wooten v. District Court, supra, but claims they have no application to this case because of an implied limitation which he argues is contained in Section 5769, supra; that is, he seeks to apTyly the rule comprehended in the maxim that the expression of one thing is the exclusion of others. It therefore becomes necessary to inquire into the results which flow from the enactment of this statute, which at most is a mere declaration of the commonlaw rule that had existed long prior to its passage and was not therefore a new enactment of law. l

Section 10704, Revised Codes 1921, is as follows:

“The provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments.”

Referring to just what is meant by the “common law,” in AEtna Accident & Liability Co. v. Miller, 54 Mont. 377, 382, 170 Pac. 760, (L. R. A. 1918C, 954), Mr. Justice Sanner said:

“Broadly speaking, it means, of course, the common law of England; but it means that body of jurisprudence as applied and modified by the courts of this country up to the time it became a rule of decision in this commonwealth.”

Section 10703, Revised Codes 1921, is as follows:

“In this state there is no common law in any case where the law is declared by the Code or the statute; but where not so declared, if the same is applicable and of a general nature, and not in conflict with the Code or other statutes, the common law shall be the law and rule of decision.”

Sections 10704 and 10703, above, were enacted as sections 3454 and 3452, respectively, of the Code of Civil Procedure of 1895, and have been in force at all times since. Under identical statutory provisions the Supreme Court of California, in Quist v. Sandman, 154 Cal. 748, 99 Pac. 204, Michaelson v. Fish, 1 Cal. App. 116, 81 Pac. 661, Lux v. Haggin, 69 Cal. 255, 384, 4 Pac. 919, 10 Pac. 674, and Sharon v. Sharon, 75 Cal. 1, 13, 16 Pac. 345, has held that statutes are but continuations of the basic common law, and that when the statute is either silent or ambiguous, in order to determine rights under it an examination of both the common law and the statute is necessary.

Our Code further recognizes the continuance of the common law, and that the codification does not embrace the whole body of the law in section 10545, Revised Codes 1921, Where it is said, “Laws whether organic or ordinary are either written or unwritten,” and in section 10549, Id., which is as follows:

“Unwritten law is the law not promulgated and recorded, * * * but which is, nevertheless, observed and administered in the courts of the country. It has no certain repository, but is collected from the reports of the decisions of the courts and treatises of learned men.”

It will be observed that the provisions of section 5769, supra, under consideration, are affirmative in character and contain no negative expressions. “It has been said that statutes are not presumed to make any alterations in the common law further than is expressly declared, and that a statute made in the affirmative without any negative expressed or implied does not take away the common law.” 25 R. C. L. 1954, § 180.

[2] The rules of the common law are not to be overturned except by clear and unambiguous language. Ryalls v. Mechanics' Mills, 150 Mass. 190, 22 N. E. 766, 5 L. R. A. 667.

In Endlich on Interpretation of Statutes, 127, the rule is thus stated:

“The principle is recognized that an intent to alter the common law beyond the evident purpose of the act is not to be presumed. It has been expressly laid down that ‘statutes are not presumed to make any alteration in the common law further or otherwise than the act does expressly declare; therefore in all general matters the law presumes the act did not intend to make any alteration; * * : * the rules of the common law are not to be changed by doubtful implication.’”

See, also, Potter's Dwarris on Statutes & Constitutions, p. 185; 2 Lewis' Sutherland on Statutory Construction (2d Ed.) $$ 454, 455.

The case of Yazoo & Misssissippi Valley Rd. Co. v. Scott, 108 Miss. 871, 67 South. 491, L. R. A. 1915E, 239, Ann. Cas. 1917E, 880, arose out of an action for personal injuries. Upon the first trial in the lower court Scott prevailed and was awarded $100 damages. On appeal he obtained a reversal for the reason thot the damages awarded were inadequate. In reversing the judgment, however, the new trial directed was restricted to the ascertainment of damages only, and in so far as it settled the question of liability the judgment was permitted to remain in full force and effect. A second trial resulted in a verdict in favor of Scott for $6,750. The railroad company took an appeal and contended that the Supreme Court was without power to direct that the case should be tried on the question of damages only, and therefore the trial court had erred in restricting the trial to that issue. One of the propositions raised by the appellant was that since the Code had given the Supreme Court authority in some instances to reverse a case partially, and the right to grant a retrial on the issue of damages only

Was not among those enumerated, it was excluded by implication. In rejecting this contention, after pointing out that at common law.an appellate court had the inherent power to award a new trial on the issue of damages only, the court said:

“In arriving at our conclusion in this matter we have not left out of view the suggestion of counsel for appellant that under the rule of ‘expressio unius est exclusio alterius' the grant of power to this court to reverse partially contained in sections * * * of the Code, impliedly prohibits it from so doing in cases not coming within the provisions of these sections. In so far as the right of this court to limit the issues when ordering a new trial is derived from the common law this rule has no application. A great many of our statutes dealing not only with the substantive, but also with the adjective, law consist merely of codifications, sometimes general, but in most cases only partial, of some particular rule or principle of the common law; and, should the courts hold that, when any rule or principle of the common law is by the Legislature partially incorporated into a statute, the remainder of the rule is thereby repealed or annulled, endless trouble and confusion would result, necessitating in all cases a complete codification of the subject dealt with, by the statute.”

It is our conclusion that under the foregoing rules of construction, the district court sitting in equity is not divested of jurisdiction to grant a decree of separate maintenance independent of an action for divorce, by the exception contained in section 5769, supra,

The contention of counsel for relator seems to be negatived by section 5768, Revised Codes 1921, which provides:

“Though judgment of divorce is denied, the court may, in its discretion, in an action for divorce, provide for the maintenance of the wife and her children, or any of them, by the husband.”

Assume that the wife commenced an action for divorce on the ground of willful neglect and in her complaint by mistake or otherwise alleged that the same has continued for a period of more than one year, but on the trial it developed that it had continued for only a period of nine months, or for any period of time less than one year, and for that reason alone the court denied a judgment for divorce, still under the above section the court in its discretion could award maintenance and support to the wife and children. It is not reasonable to assume that it was the intent of the Legislature to authorize the court to award maintenance and support to the wife where she has come into court with an allegation which, so far as the statutory period of time is concerned, is intentionally or otherwise untrue, and to deny the relief when she truthfully states the fact. This section is not limited to a case where divorce is sought on any particular ground,

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