I am unable to concur in the views announced in the majority opinion, to the effect that appellant had a full, complete and adequate remedy by motion. When appellant learned of the facts constituting the basis of the relief sought by this proceeding, the judgment in the foreclosure action was already fully satisfied and discharged by a sale of the property. Under such circumstances, it had no remedy by motion, by force of the decision of this court in the case of Foster v. Hauswirth,5 Mont. 566, 6 P. 19, which was reaffirmed in the case of Green v. Wiederhold, 56 Mont. 237, 181 P. 981.
True, in the cases cited above, the defendant was the moving party; but, if section 9187 extends to those in whose favor judgment has been rendered, as well as to those against whom judgment has been entered, then it must so operate upon like terms and conditions and subject to the same limitations, one of which is that the remedy by motion is not available after the judgment has been satisfied. Also it is true that in theHauswirth Case the objection was one that went to the jurisdiction of the court to enter the judgment complained of, but such was not true in the Green Case, and neither was want of jurisdiction assigned as the reason for the conclusion in theHauswirth Case. The reason assigned was that the judgment had been satisfied. There was no right of any third party involved in the Hauswirth Case. There, as here, the plaintiff had become the purchaser of the property at the execution sale, and this fact alone is what the court referred to in its opinion, wherein it said: "The rights of third persons have intervened, or, at least, additional rights have been created thereby."
In my opinion, also, no part of the opinion in the GreenCase may properly be characterized as obiter dictum. The court, after giving one reason why the action of the lower court, in granting the motion to set aside the judgment, could not be sustained, said: "There is still another ample reason why the action of the court below can[not] be sustained. Upon the judgment rendered and entered October 13, 1916, *Page 99 a writ of execution was issued, delivered to the sheriff, and by him returned, showing complete satisfaction of the judgment. The matter had therefore passed beyond the jurisdiction of the court in this proceeding." When more than one reason is assigned by an appellate court for sustaining or overruling the action of the lower court, both become the judgment and decision of the court, and neither is dictum. As was pertinently observed by Mr. Justice Brewer, speaking for the United States supreme court inUnion P. R. Co. v. Mason City etc. R. Co., 199 U.S. 160,50 L. Ed. 134, 26 Sup. Ct. Rep. 19, 20: "Of course, where there are two grounds, upon either of which the judgment of the trial court can be rested, and the appellate court sustains both, the ruling on neither is obiter, but each is the judgment of the court, and of equal validity with the other. Whenever a question fairly arises in the course of a trial, and there is a distinct decision of that question, the ruling of the court in respect thereto can, in no just sense, be called mere dictum."
The above decisions of this court, whether right or wrong (and that is a question not here involved), constituted the law of this state at the time of the discovery of the facts relied upon here, and at the time the cross-complaint in this action was filed.
Since appellant had no remedy by motion, in view of these decisions, it is my opinion that the remedy invoked by appellant in the cross-complaint is available, and that the cause should be considered on its merits.
I express no opinion whether the judgment should be affirmed on the merits, since that question has not been considered in the majority opinion.
Rehearing denied December 5, 1929. *Page 100