oft-repeated rule in Montana

1935(Allen v. Petrick, 69 Mont. 373 , 222 Pac. 451 ; Gravelin v. Porier, 77 Mont. 260 , 250 Pac. 823 .) It must be remembered that a preponderance of the evidence may be established by the testimony of a single witness against a greater number of witnesses who testify to the contrary.

1935(Allen v. Petrick, 69 Mont. 373 , 222 Pac. 451 ; Gravelin v. Porier, 77 Mont. 260 , 250 Pac. 823 .) It must be remembered that a preponderance of the evidence may be established by the testimony of a single witness against a greater number of witnesses who testify to the contrary.

1935(Allen v. Petrick, 69 Mont. 373 , 222 Pac. 451 ; Gravelin v. Porier, 77 Mont. 260 , 250 Pac. 823 .) It must be remembered that a preponderance of the evidence may be established by the testimony of a single witness against a greater number of witnesses who testify to the contrary.

1935(Allen v. Petrick, 69 Mont. 373 , 222 Pac. 451 ; Gravelin v. Porier, 77 Mont. 260 , 250 Pac. 823 .) It must be remembered that a preponderance of the evidence may be established by the testimony of a single witness against a greater number of witnesses who testify to the contrary.

1985Appellant cites the oft-repeated rule, " . . . that written findings are required to establish both the need and reasonableness of an award of attorney's fees. " See, e.g., Duffey v. Duffey (Mont. 1981), 631 P.2d 697, 699 , 38 St.Rep. 1105 , 1107.

1985Appellant cites the oft-repeated rule, “. . . that written findings are required to establish both the need and reasonableness of an award of attorney’s fees.” See, e.g., Duffey v. Duffey (Mont. 1981), 631 P.2d 697, 699 , 38 St.Rep. 1105 , 1107.

1934When the evidence, fully considered, furnishes reasonable grounds for different conclusions, the findings will not be *Page 377 disturbed. ( Poague v. Poague , 87 Mont. 433 , 288 P. 454 ; Allen v. Petrick , 69 Mont. 373 , 222 P. 451 ; Ayres v. Buswell , 73 Mont. 518 , 238 P. 591 ; Gravelin v. Porier , 77 Mont. 260 , 250 P. 823 ; McQuay v. McQuay , 81 Mont. 311 , 263 P. 683 .)" Objectors have made certain specifications of error relating [13] to admission of testimony over objection.

1934When the evidence, fully considered, furnishes reasonable grounds for different conclusions, the findings will not be *Page 377 disturbed. ( Poague v. Poague , 87 Mont. 433 , 288 P. 454 ; Allen v. Petrick , 69 Mont. 373 , 222 P. 451 ; Ayres v. Buswell , 73 Mont. 518 , 238 P. 591 ; Gravelin v. Porier , 77 Mont. 260 , 250 P. 823 ; McQuay v. McQuay , 81 Mont. 311 , 263 P. 683 .)" Objectors have made certain specifications of error relating [13] to admission of testimony over objection.

1934When the evidence, fully considered, furnishes reasonable grounds for different conclusions, the findings will not be *Page 377 disturbed. ( Poague v. Poague , 87 Mont. 433 , 288 P. 454 ; Allen v. Petrick , 69 Mont. 373 , 222 P. 451 ; Ayres v. Buswell , 73 Mont. 518 , 238 P. 591 ; Gravelin v. Porier , 77 Mont. 260 , 250 P. 823 ; McQuay v. McQuay , 81 Mont. 311 , 263 P. 683 .)" Objectors have made certain specifications of error relating [13] to admission of testimony over objection.

1934When the evidence, fully considered, furnishes reasonable grounds for different conclusions, the findings will not be *Page 377 disturbed. ( Poague v. Poague , 87 Mont. 433 , 288 P. 454 ; Allen v. Petrick , 69 Mont. 373 , 222 P. 451 ; Ayres v. Buswell , 73 Mont. 518 , 238 P. 591 ; Gravelin v. Porier , 77 Mont. 260 , 250 P. 823 ; McQuay v. McQuay , 81 Mont. 311 , 263 P. 683 .)" Objectors have made certain specifications of error relating [13] to admission of testimony over objection.

1925This rule has been so often restated that reference is made only to a few recent cases: Harri v. Farmers’ Co-operative Co., 69 Mont. 149 , 223 Pac. 109 ; Scott v. Prescott, 69 Mont. 540 , 223 Pac. 490 ; Bischoff v. Bischoff, 70 Mont. 503 , 226 Pac. 508 .

1925This rule has been so often restated that reference is made only to a few recent cases: Harri v. Farmers’ Co-operative Co., 69 Mont. 149 , 223 Pac. 109 ; Scott v. Prescott, 69 Mont. 540 , 223 Pac. 490 ; Bischoff v. Bischoff, 70 Mont. 503 , 226 Pac. 508 .

1996In addition, we stated in First Call v. Capital Answering Serv., Inc. (1995), 271 Mont. 425, 428 , 898 P.2d 96, 97 , that: It is an oft repeated rule of statutory construction, equally applicable to our interpretation of the rules governing practice and procedure in the courts of this State, that “the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA.

1996In addition, we stated in First Call v. Capital Answering Serv., Inc. (1995), 271 Mont. 425, 428 , 898 P.2d 96, 97 , that: It is an oft repeated rule of statutory construction, equally applicable to our interpretation of the rules governing practice and procedure in the courts of this State, that “the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA.

1962“In Thomas v. Oklahoma Tax Commission, 198 Okl. 301, 304 , 177 P.2d 498, 502 , the court quoting from Powers v. Brown, 122 Okl. 40 , 252 P. 27 , stated: “ ‘A “collateral attack” on a judgment or judicial proceeding is an attempt to avoid, defeat, or evade it, or to deny its force and effect in some manner other than by appeal, writ- of error, certiorari, or motion for a new trial, or by proper action in equity.’ ” By reason of the authorities as shown in the above cases and the oft repeated rule of this court, this case is a collateral attack upon a foreign decree.

1962“In Thomas v. Oklahoma Tax Commission, 198 Okl. 301, 304 , 177 P.2d 498, 502 , the court quoting from Powers v. Brown, 122 Okl. 40 , 252 P. 27 , stated: “ ‘A “collateral attack” on a judgment or judicial proceeding is an attempt to avoid, defeat, or evade it, or to deny its force and effect in some manner other than by appeal, writ- of error, certiorari, or motion for a new trial, or by proper action in equity.’ ” By reason of the authorities as shown in the above cases and the oft repeated rule of this court, this case is a collateral attack upon a foreign decree.

1962“In Thomas v. Oklahoma Tax Commission, 198 Okl. 301, 304 , 177 P.2d 498, 502 , the court quoting from Powers v. Brown, 122 Okl. 40 , 252 P. 27 , stated: “ ‘A “collateral attack” on a judgment or judicial proceeding is an attempt to avoid, defeat, or evade it, or to deny its force and effect in some manner other than by appeal, writ- of error, certiorari, or motion for a new trial, or by proper action in equity.’ ” By reason of the authorities as shown in the above cases and the oft repeated rule of this court, this case is a collateral attack upon a foreign decree.

1962“In Thomas v. Oklahoma Tax Commission, 198 Okl. 301, 304 , 177 P.2d 498, 502 , the court quoting from Powers v. Brown, 122 Okl. 40 , 252 P. 27 , stated: “ ‘A “collateral attack” on a judgment or judicial proceeding is an attempt to avoid, defeat, or evade it, or to deny its force and effect in some manner other than by appeal, writ- of error, certiorari, or motion for a new trial, or by proper action in equity.’ ” By reason of the authorities as shown in the above cases and the oft repeated rule of this court, this case is a collateral attack upon a foreign decree.

1947Upon this state of facts we are not permitted to disturb the judgment being governed by the oft-repeated rule that this court will not overturn the findings of the trial court unless there is a decided preponderance of evidence against them; when the evidence, fully considered, furnishes reasonable grounds, for different conclusions, the findings will not be disturbed.” To the same effect is Williams v. Williams, 85 Mont. 446 , 278 Pac. 1009 .

1947Upon this state of facts we are not permitted to disturb the judgment being governed by the oft-repeated rule that this court will not overturn the findings of the trial court unless there is a decided preponderance of evidence against them; when the evidence, fully considered, furnishes reasonable grounds, for different conclusions, the findings will not be disturbed.” To the same effect is Williams v. Williams, 85 Mont. 446 , 278 Pac. 1009 .

1937(In re Mullen’s Estate, 97 Mont. 144 , 33 Pac. (2d) 270 .) Defendant contends that, since plaintiff entered into an agree-ment with Johnson to convey to him an undivided one-half interest in the lease, although the conveyance of the interest was never executed, an equitable estate arose in Johnson which has not been extinguished by any reconveyance, and hence a variance between the pleading and proof arose, in that plaintiff alleged he owned the entire leasehold interest when, in fact-, he owned something less.

1937(In re Mullen’s Estate, 97 Mont. 144 , 33 Pac. (2d) 270 .) Defendant contends that, since plaintiff entered into an agree-ment with Johnson to convey to him an undivided one-half interest in the lease, although the conveyance of the interest was never executed, an equitable estate arose in Johnson which has not been extinguished by any reconveyance, and hence a variance between the pleading and proof arose, in that plaintiff alleged he owned the entire leasehold interest when, in fact-, he owned something less.

1934When the evidence, fully considered, furnishes reasonable grounds for different conclusions, the findings will not be *Page 377 disturbed. ( Poague v. Poague , 87 Mont. 433 , 288 P. 454 ; Allen v. Petrick , 69 Mont. 373 , 222 P. 451 ; Ayres v. Buswell , 73 Mont. 518 , 238 P. 591 ; Gravelin v. Porier , 77 Mont. 260 , 250 P. 823 ; McQuay v. McQuay , 81 Mont. 311 , 263 P. 683 .)" Objectors have made certain specifications of error relating [13] to admission of testimony over objection.

1934When the evidence, fully considered, furnishes reasonable grounds for different conclusions, the findings will not be *Page 377 disturbed. ( Poague v. Poague , 87 Mont. 433 , 288 P. 454 ; Allen v. Petrick , 69 Mont. 373 , 222 P. 451 ; Ayres v. Buswell , 73 Mont. 518 , 238 P. 591 ; Gravelin v. Porier , 77 Mont. 260 , 250 P. 823 ; McQuay v. McQuay , 81 Mont. 311 , 263 P. 683 .)" Objectors have made certain specifications of error relating [13] to admission of testimony over objection.

1925This conclusion is paraphrased from the language embodied by Mr. Justice Holloway in the case of Lefebure v. Baker, 69 Mont. 193 , 220 Pac. 1111 , in dealing with the necessary affirmative allegations of a complaint. *72 Under the oft-repeated rule of this court, applicable here, where there is conflict in the evidence, the findings as made will not be set aside, save when the evidence is wholly preponderating against them.

1925This conclusion is paraphrased from the language embodied by Mr. Justice Holloway in the case of Lefebure v. Baker, 69 Mont. 193 , 220 Pac. 1111 , in dealing with the necessary affirmative allegations of a complaint. *72 Under the oft-repeated rule of this court, applicable here, where there is conflict in the evidence, the findings as made will not be set aside, save when the evidence is wholly preponderating against them.

1925This rule has been so often restated that reference is made only to a few recent cases: Harri v. Farmers’ Co-operative Co., 69 Mont. 149 , 223 Pac. 109 ; Scott v. Prescott, 69 Mont. 540 , 223 Pac. 490 ; Bischoff v. Bischoff, 70 Mont. 503 , 226 Pac. 508 .

1925This rule has been so often restated that reference is made only to a few recent cases: Harri v. Farmers’ Co-operative Co., 69 Mont. 149 , 223 Pac. 109 ; Scott v. Prescott, 69 Mont. 540 , 223 Pac. 490 ; Bischoff v. Bischoff, 70 Mont. 503 , 226 Pac. 508 .

1925The rule has been recently reaffirmed in Bischoff v. Bischoff, 70 Mont. 503 , 226 Pac. 508 ; Dyk v. Buell Land Co., 70 Mont. 557 , 227 Pac. 71 ; Batchoff v. Melzner, 71 Mont. 411 , 230 Pac. 48 ; and immaterial findings made by the court not *428 warranted by tbe proof do not affect the judgment.

1925The rule has been recently reaffirmed in Bischoff v. Bischoff, 70 Mont. 503 , 226 Pac. 508 ; Dyk v. Buell Land Co., 70 Mont. 557 , 227 Pac. 71 ; Batchoff v. Melzner, 71 Mont. 411 , 230 Pac. 48 ; and immaterial findings made by the court not *428 warranted by tbe proof do not affect the judgment.

1925The rule has been recently reaffirmed in Bischoff v. Bischoff, 70 Mont. 503 , 226 Pac. 508 ; Dyk v. Buell Land Co., 70 Mont. 557 , 227 Pac. 71 ; Batchoff v. Melzner, 71 Mont. 411 , 230 Pac. 48 ; and immaterial findings made by the court not *428 warranted by tbe proof do not affect the judgment.

1925The rule has been recently reaffirmed in Bischoff v. Bischoff, 70 Mont. 503 , 226 Pac. 508 ; Dyk v. Buell Land Co., 70 Mont. 557 , 227 Pac. 71 ; Batchoff v. Melzner, 71 Mont. 411 , 230 Pac. 48 ; and immaterial findings made by the court not *428 warranted by tbe proof do not affect the judgment.

1925This rule has been so often restated that reference is made only to a few recent cases: Harri v. Farmers’ Co-operative Co., 69 Mont. 149 , 223 Pac. 109 ; Scott v. Prescott, 69 Mont. 540 , 223 Pac. 490 ; Bischoff v. Bischoff, 70 Mont. 503 , 226 Pac. 508 .

1925This rule has been so often restated that reference is made only to a few recent cases: Harri v. Farmers’ Co-operative Co., 69 Mont. 149 , 223 Pac. 109 ; Scott v. Prescott, 69 Mont. 540 , 223 Pac. 490 ; Bischoff v. Bischoff, 70 Mont. 503 , 226 Pac. 508 .