[Download] "Torelle v. Templeman Et Al." by Supreme Court of Montana # eBook PDF Kindle ePub Free
eBook details
- Title: Torelle v. Templeman Et Al.
- Author : Supreme Court of Montana
- Release Date : January 20, 1933
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 59 KB
Description
Quiet Title, Real Property, Payment of Delinquent Taxes — Actions, Dismissal as to Certain Defendants, Service of Summons — Deeds, Warranty, Taxes, Delinquent Taxes as Encumbrance. 1. Covenants — Grantors must answer for delinquent taxes. Under express and implied covenants of warranty deed by which grantors promised to forever warrant and defend right, title and interest in and to premises, and quiet and peaceable possession thereof, unto the grantee against the acts and deeds of the grantors and all and every person or persons whomsoever lawfully claiming same, grantors could be required to answer for delinquent taxes. 2. Judgment — Words and Phrases "with prejudice" — "without prejudice." The term "with prejudice" is the converse of the term "without prejudice" and has reference to right to bring future action, and a judgment or decree of dismissal with prejudice is as conclusive of rights of parties as if suit had been prosecuted to final adjudication adverse to plaintiff. 3. Dismissal and Non-suit — Dismissal as of course — When not allowed. A plaintiff may dismiss or discontinue an action where no judgment other than for costs can be recovered against him by defendant; but when, under pleadings and evidence relevant thereto, such other judgment may be recovered, plaintiff will not be permitted, as of course, to dismiss or discontinue. 4. Judgment — There must be an express declaration as to "merits." Under a statute providing that a final judgment dismissing complaint, either before or after trial, shall not prevent new action for same cause of action, unless it expressly declares, or it appears by judgment roll, that it was rendered upon its merits, it must be shown that judgment is upon merits, and fact that it is upon merits must appear by express declaration either from judgment or elsewhere from judgment roll. 5. Judgment — Words and Phrases "upon the merits." For a judgment of dismissal to be "upon the merits," it is not necessary that rights and wrongs of parties have been tried. Page 40 6. Judgment — Question depends on facts of case. Whether judgment of dismissal is upon merits largely depends upon facts and circumstances of particular case. 7. Action — Rights must be expeditiously settled. Rights of parties to lawsuit must be settled once and for all and as expeditiously as possible, and courts should not lend themselves to furtherance of procrastination. 8. Judgment — Judgment on merits proper here. Where, after plaintiff had lost right to dismissal without prejudice, by reason of filing of counterclaim by defendant, it appeared that plaintiff could not make a case in support of his complaint, and he not only failed to do so and refused to proceed with presentation of his case but participated in trial upon defendants counterclaim, judgment of dismissal on merits was proper.