(DOWNLOAD) "Malano v. Bressan" by Supreme Court of Montana " eBook PDF Kindle ePub Free
eBook details
- Title: Malano v. Bressan
- Author : Supreme Court of Montana
- Release Date : January 29, 1926
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 56 KB
Description
Justices Courts ? Pleadings ? Liberal Construction ? Entry in Docket ? Statutes ? Construction ? Partnership ? Action Between Partners ? Pleadings ? Evidence ? Admissibility Under General Denial ? Directed Verdict ? Motion by Both Parties ? Theory of Case ? Appeal. Appeal ? Theory of Case. 1. Where a cause was tried in both the justice and district court on the theory that issue had been joined, appellant is not in a position to contend to the contrary on appeal in the supreme court. Justices Courts ? Pleadings ? Entry in Docket ? Statutes ? Construction. 2. Under the rule that the pleadings in a justice court as well as the statutory requirements with relation thereto must be liberally construed, held that section 9638, Revised Codes of 1921, requiring that if a pleading be oral its substance must be entered in the docket, and section 9703 declaring that the justice must enter therein a concise statement of the material parts of all oral pleadings, mean no more than that he shall enter such a recital thereof as would advise a person of common understanding of the nature of the pleadings. Same ? Pleadings ? Oral General Denial ? Entry in Docket ? What Sufficient 3. A general denial has no "parts" within the meaning of section 9703 above, providing that if a pleading in the justice court be oral an entry shall be made in the docket containing a concise statement of the "material parts," hence an entry that defendant interposed an oral general denial is sufficient. Pleadings ? General Denial ? Evidence Admissible. 4. A general denial puts in issue every material allegation of the complaint and casts upon plaintiff the burden of establishing each essential fact by a preponderance of the evidence, and where plaintiff has made a prima facie case by testifying to all his material allegations, defendant under his general denial may introduce any evidence which tends to controvert any one of them, and if successful in overcoming plaintiffs prima facie case or in establishing an equipoise in the proof, he is entitled to a verdict. Partnership ? Action Between Partners for Recovery of Money Deposited by Plaintiff as Individual ? General Denial ? Evidence Admissible. 5. In an action by a partner against his co-partner to recover money alleged to have been deposited by him individually in a - Page 367 joint fund to be used by himself, defendant and another in a private venture, and wrongfully withdrawn by defendant, evidence introduced by the latter that the money deposited belonged to the partnership tended to overcome the prima facie case made by plaintiff and to defeat plaintiffs recovery as an individual, and was admissible under a general denial. (See par. 4, above.) Pleading and Practice ? Motion for Directed Verdict ? Applicability of Rule. 6. Quaere: Does the rule that where both parties move for a directed verdict their action amounts to a submission of the cause as upon an agreed statement of facts, apply where, both sides having rested, defendant moved for an instructed verdict, whereupon, the motion having been denied, plaintiff made a like motion in his favor? Instructions ? When Properly Refused. 7. An offered instruction containing matter not in issue and not supported by the evidence may be properly refused.
 "Malano v. Bressan" by Supreme Court of Montana " eBook PDF Kindle ePub Free){kind=link}