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I
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BEPOBTS
CASES ASGUED ASD DETERMINED
SUPREME COURT
OV TKB
STATE OF MONTANA,
▲T
THE DECEMBER TERM, 1893, AKD THE MARCH AKD JUNE
TERMS, 1894.
BY
TLETCHEB MADDOX,
BBPO&TBS.
Volume XIY.
BAN FRANdSOO:
BA.NCBOPT-WHITNEY COMPANY,
Ii4W PVBUtXXU AND JOM BOOEnLLBU.
1895.
A^*^'
S'r-
Ekitered aooording to Aet of OongroH m tho jmt 1898^
By BANCROFT- WHITNBY COMPANT,
In the Offioe of the Libnma of OomgieM^ at WMhmgtoB.
62c.y. >^^^. // /fy^ ^
Bam VBAxaacos
TBS FXLIinipBOIXtMS SUKTBOrm COKPAXT*
TTFOaftAFHBBI AMD BnBIOTTnBai
JUDGES
or
The Supreme Court of the State of Montana^
Hon. WiLUAH T. Pekbbbton, Chief Josdoe.
Hon. Edoab N. Habwood, )
> AflBOdflte Josboob
Hon. WmJAM H. Db Witt,)
OFFICEBS OF THE OOUBT,
Hknbi J. HAfflncTiTi, Attorney GenecaL
Smr JAiOH WsBfirTEBy Clerk. .
Flktohsb Maddoz, Beporter.
ATTORNEYS AM) COUNSELORS AT LAW.
AxmirrED ibom BnniiBBa 18^ IBH, to DiamD 81, 18M.
BEAOH, EMOBTV.
BENDEB, JOHN O.
BBAZELT09, JOHN 7,
GOOMBE, BOBEBT
OBULL, ELDOBN J.
CULLEN, W. E., Jb.
ETAN8, L. OBYIS
QBINDBOD, EDWABD
HABDEST7, JESSE
HATHHOBN, FEED. H.
HAYWABD» ABTHUB P.
JACKSON* EVAN O.
KENNEDY, EDWABD B.
KIBK, JOHN W.
LEEHT, HAUBIOE D.
NASH, FBANK N.
PIEBSON, GEOBOB W*
BSOTOB, OHABLEB H.
fiANNEB, 8TDNEY
8TEBBINB, OHABLES B.
/
JUDGES AND JUDICIAL DBTEIGTS.
The First Jadioial District embraces the Connfy of Lewis
and Clarke; Wiujam H. Hunt and Horagb B. BUCK|
Judges; residing at Helena. •
The Second Jadidal District embraces the Coonty of Silver
Bow; John J. MoHattok and William O. Spebb, Jadges;
residing at Butte.
The Third Jadicial District embraces the Gonnties of Deer
Lodge and Qranite; Theodore Bbantlet, Jadge; residing
at Deer Lodge.
The Fourth Judicial District embraces the Gonnties of Mis-
soula and Bavalli; Fbakk H. Woodt, Judge; residing at
Missoula.
The Fifth Judidal^istrict embraces*the Counties of Beaveiw
headj Jefferson, and Madison; Fbank Showebs, Judge; resid-
ing at Boulder.
The Sixth Judicial District embraces the Counties of Park
and Meagher; Frai;k HENRf, Judge; residing at Livbgston.
The Seventh Judicial District embraces the Counties of
Yellowstone^ Custer, and Dawson; Oeobge B. MilbubN|
Judge; residing at Miles City.f
The Eighth Judicial District embraces the Connty of Cas-
cade; Chables H. Benton, Judge; residing at Great Falls;
The Ninth Judicial District embraces the County of Ghd-
latin; Fbane K. Abmstbong, Judge; residing at Boseman.
The Tenth Judicial District embraces the Counties of Flat-
head, Teton, Choteau, Valley, and Fergus; Dudley Du Bosb,
Judge; residing at Fort Benton*
TABLE OP CASES KEPOBTED.
Aadmca* Steto t. ^ Ml
Wftlli „,.., 4e2
Bttker, Elliion T. « 96
Baniftrd, QoaldT 886
Bknvk, BteteasnLfirato&T , li
Bfolrabarg^^ohaionT 606
BUttaltJOdBiohmidtT , 81
Bomd of OommiirionOTi of CtolUiin Ooimtyt OtQwUy T . , . . . ^ 299
Board of Hedind Examlnen t. Kellogg 348
Bookwallv TtOi«riid«««*««##«»^ • ••••.. 68
Bni<hwsfit»TiflirT«j<^.i//«4««. .<..««••••••. 906
BroolwT. Jozdan 876
Oidwily OHjof ]
Garothen, Kayer t 974
Ontmi^.*OlBrir.-....'....^.-..%««...w#. •«•••• «. '. ••• 801
OkMT.BelKM^]>iatrioi>H«mWr8,]liaioiikiOouty. 186
Oiia^BtBtoer re). JofaoKm ▼«///./< ###««« •#.•••» • ••• 690
Ctaeyr. Wright;. ..:;.:si««i.ii/o. «•##«#«##«««• 816
Chamben,'T]Mmaa T;-.....M«...tii%*.iati4«**.. •.••«• 498
Cltyof BomaaiTT. OidweU....i.«i..«i*i«..N»....^..« • 480
City of Helena, WbMalMr ▼....•.*.... ^ 194
Clark, Oamai T ;.:...i.-^. .«.!««••• •••••••••t*!. « 801
OoekrillT. Davie 181
OonradiBeebwalierT.. %•••.. «..«••.« 69
OookTi OreeBOQf^.'a V ^,%^-.-^^<^v^«. •..•••••••••••••••••••••••«•••••••«•••••••• 869
OocA, Slate eiiekBailej ▼••*«««« 889
Oook,BteteesreLIIerfoBdT^«#^^^«»..««»*^..^ •• •..•« 901
Crowley t. Board of Ooininiarimiera of Gallatin Oonn^ 999
Ofoii»T.Xa.lIott ^ 866
Omi; MUUgaa ▼ * 866
Daly-r. lOleii. ••....^^^•.*. 90
DmTfe, CoekrUlT #^/ii.^/^#««^^^###..#«*.w * •• 181
]>ett],8weelMrT * 466
Beitrfadrr. Steam Bredge< and AnialgMiiatov • • « 961
I)litvtet'eoiBr^efTUffdJidMaiNa«ciot»Btate»Bd.Cota^ 476
l>oooTaa;ifelM»'T«....i%» •»%»••»#• ..•••••••••••• • « 78
Xloiiyef^'Blate ▼.•.'.•.'.•.-. %%.###«#^##^^#. ••«#*« «..^ 70
lfeindiig;- TUu i ni l^aii^ jb Oo»p^ay-Vm>. >..>^^-.^...^»»»»r»«.»«.. r 648
yiii Tabls of Cassb Bbpobtxd,
Sdiall, KoChiire ▼. •«••••» WB
Bightti Jndioba Diftrioi Oorat, State « leL New Toik Bbi^ Oo. 177
EUiMB T. Bttkor M
BDgluh, State T , ^ 8M
Xnrin. Knih t W
Unkelfteiii T. Finkelstetn 1
OmlTint.lCaoMiiiisgaiidlCiUiiigGompaay M6
Qouldy. Barnard ••• ••••. 886
Grand Opera Honae Company T. Kagoiie- •.. 668
aiaTee,8eUT. 811
Great NorfhemBailwayi State esreLHaekeUT.r • 881
Greenongh, OookT • •• 868
GreiMr, Klelneohmidt ▼ « • 486
Griggs T. Ealifpel Mereaniile OoBpaay.i 800
flaggin T. Baile k. 111!I*** ^
Hanke, Kline t •••• •'•• 881
HarTey.BraithiraiteTw ..•.. 808
HUl.MayT 888
In re MoniUerat's Eitate. ^ 816
In re Bioker'a Estate , 168
Jeffries y. Montana Milling Oompasy ••• 118
Johnson ▼• Beilenberg * • •••• 608
Jordan, Brooke T. • • , •••••••••• 876
Kalispel Marftan^le Company, Griggs t. •• ••••' 800
Kane, FarrottT • 88
Kellogg, Board of Medical fUaminersT. « 818
KeUogg, State y 661
Kellogg, State ex rel. Baldwin y. , 688
Kleineohmidiy. BlnseL « ••••• 81
Kleinsohmidt y. Qreiser *.. 486
Kline T. Hanke , • 881
La Mott, Crowe y. 866
Lay y. Nixon 84
Leggatty. Le^^ti 104
Logan y. Blekards • 884
Mao Mining and Milling Company, Galyia ▼ • ••• 808
Magoiie, Grand •Opeva House Oo.y. • • 668
Manhattan Milling Company y. Sweteland 968
Marion, State y 468
Marthiy.Maxey 86
Maxey, Martin y. 86
Maxey,Byan y «••••• •* • 81
Mayer y. Carotheis 874
May y. Hill 888
MoOnlloh y.Prioe • 880
MoDeyitt, ParxDtty.. ...^ 808
MoDonaldT» Montana Wood Company 88
Tablb of Oasxb Bbpobtxi). iz
■flQlaMH,8teteT. M
MoQpivvT^JUiaU. SM
McB9Uj, ll«nitt ▼ fiS
MerrittT.lIdKAlly - M
MUm, Btly T.........5.- tO
IfUUgui ▼. Onff. • M6
MoiitHUiliaiiiigOompwyT. J«fflrifli : 118
MontMu Wood Oompwy, ICdDooAldT 88
MoiTii^ WaOdiia ▼ 86A
Morrifon T. Morrison ...• •.» 8
]IoiiiUttmi'tIiteto,Iiire 816
]fiieU«r,.Wa]i]iT 78
MiiUar^QiiizkT 497
MntfaT.Erwin « 827
IT. DonoTaa • •••••# •••• •• 78
HiiOD^LijT 84
OVciU. . Walfon T • ..•••• 197
0BMi»8tetoT ^ 008
FuioUt.K«d9..> ••*. 88
Parrot! ▼,llp]}«TiU ^ 808
Peno PJaoer Mining Co. T. Bokrei&er 181
Pxieo, MeCoUoh ▼ 880
QoirkT.MoUer 487
IT. Baoich ••••« 886
Bejnolds, State «x reL Marion t • 888
Biekirdi, LoguiT 884
Biek«r'sEttete»Inre 168
ByanT. Maawy 81
i
Bailo T. Haggin • 78
BGhriiner,PainFlaeer Mining GompanyT. 181
861loo^Di•tricl Number 8, liia8onla!Connty,Oaa6T 188
BaeondJndidalDiatrieiOonrt, State as reL Marion ▼. 898
BeUT.OraTaa 841
SeTanthJodidalDiatrietOoorl^BteteasraLHendriekBT. 462
ttmplrina t. Simpirfni 886
Stete ax ral.BaU«yT.Oook, Auditor. 888
Stete «z raL Baldwin T. Kellogg 488
State ax raL Benton ▼. Banm 18
State az vaL Oolamaa t. Diatriot Oonrt of Third Jndieial Biatrtet 476
Stete ez raL Haskell T. Great Northern Bailway Oompany 881
Steto ax iel.HendriflkaT.SeTanthJndioial Diatriot Ooort 462
State ex raL Harford T.Oook 801
State ex roL Johnion ▼. Oaie • 690
State ex reL Marion T.Beynolda 888
Stete ex nL New Torkjaheep Oompany t. Bighth Jndidal Diftriel Oonri.,.. 677
State ax nL Nixon T.SeoondJndioial Diatriot Oonrt 898
State ex laLMoOormiokT. Woody. 466
State ▼. Indenon 641
Stete T.DoDjM... fvv ••••^••••••••» ^®
X Tabu m Oasbs Bepobtbd.
SteteT.BngUili WB
BtntaT.KeUoflg ^. *•««.. 4Sk
BtetoT.MarioiL •«..«•..• 4BS
State T. McQinniai .•.*....•.■»•-••««.*•>••-•••«• .••••.^•. • ••• 468
fliteto T. Omea. 668
ai>«ia.Iteedg» and Afnalgamntor, Deitarkih ¥. / Ml
atenoionT.Oad«8lL *. ^ ni
BwMtnE v; DttU. 496
B^ato j^p ^ , ll^n^^ffytT^ IffiUing Oomptny t • S69
Thamltng t.DqIEbj.. •••••»•••» 667
ThoniM .T« Obamben* 4tt
TiiooiaaKaii0 4 Oomp«i7T.Dawniiig*».» *..^».., 8A8
ViMon, Waited. 4M
WaiteT^YiJwm * i06
Walsh T. MueUer 76
WatUaa.T.Botds. 8M
Wateo&T.O'HaOL -, 197
Wells, Barden t. i62
WhUtakirT.CtityoCHfilma lU
Woodf, BtetoaxxttLMoOosmiflkv ,,... 406
Wrighl»Oasflf f •816
TABLE OF CASES CITED.
AdtlftT. Bnd7,4HlU.690; 40 Am. I>fO. 300 WB
AmjT. Saperrifora, 11 WalL186 288
An^ewi T. Are, 104 KaM. 234 446
Arnold T. BinoUbr, 12 Mont 348-61 62, 68» 77, 4d6
A«iideaT« Nizoii,4 How. 467 220
BMrY.Chdir,7Wiib.681 464
fiarbtt T. Briiooe, 8 Mont. 214 61
Barber Y.BH4dod, 9 Mont. 841 207
BurnejT. Banndert, 16 Hov. 585 189
finiielt T. Drew, 4 Luis. 444 86
B&tenun T. Baperior Oonrt, 64 Gal. 285 595,508
Banm, la re, 10 Mont. 228 19
fiajT. Coddington, 5 Johns. Oh. 54; 20 Johns. 687 674
BtekettT.8e]oTer.7 0al.215;68Am.Deo.287 257,268
BeUy. Moniaon. lPet.852 224-226
Bennett T.Whitney, 94 N. 7. 802 288
Bidden T.Brizwlira, 66 Oal. 882 225
BfsaeU T. Spring YaUey, 124 U.B. 225 58
Bookwmlter T. <S>nrad, 14 Mont 62 205
BoD ohand y. Diss, 8 Denlo, 288 58
Boulder YaUey eto. Go. T. Famhsm, 12 Mont 1 58
Bowers t. Oherokae Bob, 46 Oal. 502 878
BosemaiiNatB«nkT.8peith,8Moikt495 82
Brown T..Wsrren, 16Srey.287 828
Bartw.Hoettinger,28Ind.214 85
Oabto t. C6ttni6<itMIfh (St.), 20 8. W. Bep. 220 404
Gani^oharie Nat Bank ▼. Diefendorf, 128 N. Y. 191 574
darmthersy. CointtilMondM, 6Mont482 465
Chester y. Bakersfleld eto. Assn., 64 Oal. 42 854 .
Gkrk, Eit4te Of , 58 Oal. 865 188,191
Clarkaon y. De Poster, 1 Hopk. Oh. 426 188-190
Cobb y. Speith, 8 kcwt 494 82
Oohn y. Neeyes, 40 Wit. S98 98
Golbiimy.NorthdMPao.By. Co., 19Mont476 186
Oomanohe Mining Oo. y. Bamley, 1 Mont 205 206,207
Commonwealth t. ThofatMOU, 99 Mass. 444 404
CoriheU y. Mead, 19 Col. 886 524,527
Creek y. MoMsnos, 18 Mont 152 288
Cmoey. Onioe,81Mo.676 188,189,191,192
DK^Iingy.OroweU,6N.H.421 824
Dayjs y. Tomer, 4 How. Pr. 190 86
Bewar, Satate of, 10 Mont 426 180,181
Dewar's EaUte, In re. 10 Mont 442 484
Docker y. Somes. 2 Mylne A K. 655, 666 187,889
Doyle y. Qore, 18 Mont 471 77
Duchenean y. Honae, 4 Utah, 868 526
Duciey.%d,138U.S.587...,. 179
Dygeri y. Dygart, 4 Ind. App. 276 56
IT. Olwkim»0ar.,82ired. B0P.24 88
Enhrfob,Iare,85 0BL9» 188,191
" »ofahBfc,5S08l.86» 189,m
zii Tabl£ of Ca8XS Citxd.
EiteieofDewBr,10][ont.426 180.181
E8Uteofmil.62 0al.186 261,960
EftateofLoahe,62 0aL413 251,869
B0tepT.Lunh,21Ind.l96 66
Farmen'ete. Bank T. Noxon, 46 N. 7. 762 678
Fifleld ▼. ICarinette Oo.. 62 Wif . 532 817.818
Finkelftein.lQre^T. CiiTtii.13Mont.425 4,897
FirttNat. Bfiirik f . Grt^en, 13 N. Y. 298 678
First Nat. n^sk v. IInck^Lt, Gl Wis. 836 825
First Nat. Ebnk t. m,i^ora, 13 Minn. 407; 97 Am. Deo. 289 80
FUckv. GuldHiJl etc/ Mining Oo., 8 Mont 298 278
FoistT. Coppiu, l^lmL 471 624
Foote T. GibW 10r«j,4l2, 60.61
Foster ▼. Aldcn. 31 Mich. 507.., 624
Foster t. TUo RkUfird BttJ^t^^d. 100 Maai. 412; 1 Am. Bep. 125 61
Foxy, MLadiam, 6 Nelx 63a 624
Fox ▼. NudtUJiuim. 3 W^h, 634 625,528
FraserT. Alci*nder, 75 CbI, 152 464
French B^iikOi^e. 53 C*a. 495 594
Frey ▼. Clifford* 44 Cftl. 343 828
FrOBt T. WinstoD, 32 Mo. 439 188
Oallatin Oanal Co. ▼. Laj. 10 Mont. 528 128
Gannon ▼. Doogbertj. 41 Cal. 661 , 860
Garfield etc. Mining Co. ▼. Hammer, 6 Mont 58 272-274
Garlinghouie T. Jaooba. 29 N. Y. 297 240
Gere ▼. Dibble, 17 How. Pr. 81 86
Gillett T. Board, 67 111. 256 472.474
Goll ▼. HubbeU. 61 Wis. 293-800 824» 825
Good Betom Min. Co.. 4 Deo. Dep. Int 221; Morriaon's Min. lUj^ti, 7th ed..
184 02
Goodyear ▼. Betta. 7 How. Pr. 187 85
Gordon y. Trerarthan. 18 Mont 887; 40 Am. 8t Bep. 452 544
GoaldT. EvansTilleeto.B. B. Co.. 91U. 8.526 68
Granite Mt Min. Co. t. Weinstein, 7 Mont 846 62
Gray ▼. Palmer, 28 Cal. 416 27
Greag[ T. Jamea. Breese, 143; 12 Am. Dec. 152 860
Griffin ▼. Seymour, 15 Iowa, 30; 86 Am. Deo. 396 58,58
Grocers' Bank ▼. Penfleld, 69 N. Y. 502; 25 Am. Bep. 221 574
Gunny.Barry, 15 Wall. 610 88
Haldom, Inre, 10 Mont 222 a4
HamillT. Bosworth, 12B. 1. 124.... 524
Hammond ▼. Hudson Biver etc. Machine Oo., 20 Barb. 878 86
Hargrave ▼. Penrod, Breese, 401: 12 Am. Dec. 201 152
Harmon y. James, 7 Smedes AM. Ill; 45 Am. Deo. 296 828
Hart V. Smith, 44 Wis. 218 817
Harvey V. Whitlatch, 1 Mont 718 206
Hathaway ▼. Dayis, 83 Cal. 161 80
Hayes y. DiBtrict Ocurt 11 Mont 225 525
HayesT. Hayes. 2Del. Ch.l91; 78 Am. Deo. 709 860
Helena, City of, Y. Albertose, 8 Mont 499 74
Hihn V. CourHs, 81 Cal. 402. 287
Hill. Estate of. 62 Cal. 186 251,260
Hilly.Burke, 62N.Y. Ill 29
HiU y. Krott. 29 Pa. St 188 860
Bines y. City of Lockport, 50 N. Y. 286 288,240
Hoskins y. White, 13 Mont 70 185
Hoyer y. Barkhoff, 44 N. Y. 118 288
Howard y. Qalnn. 2 Mont 840 814
Hughes T. United States, 4 Wall. 282. 54,56
In re Banm.'lO Mont 228 19
In re Dewar's Estate. 10 Mont 442 484
In re Eschrich. 85 Cal. 98 188,191
In re Finkelstein y. Curtis. 18 Mont 425 4,897
In re Haldora. 10 M6ht 222...... 14
InreMoCutoheon, 10'Montll5 886
In re MoFwland'f Estate, 10 Mont 445 ^ 257
Tablb of Gasbs Citbd. xiii
jMdDMm T. D« Lano^, 4 Oow. 197 .«^ 829
Jackson t. !)• I^uioey, 11 Johns. 888. i 888
Jelfreijs T. Hsnoook, 57 Osl. 646 860
Johnson Y. Powors, 189 U. B. 166 920, 298
JoDflST.Bsok of LoidTille, 10 061. 464 694
Josephi T. Ibdy Clothing Co., 18 Mont. 186 928
Keene T. Welsh, 8 Mont 806 907
Keller T. Stolaenhaoh, 20 Fed. E^. 47 66
Kelloggr. BlAirson, 16 Barb. 68 828
King T.Thomas. 6 Mont. 400 286,987,291
Kramer T. Goodlander, 98 Pa. Bt 868 94
Kmeger T. Bpeitb, 8 Mont 482 82
L4k« Bbore etc. It. R. Go. r. Miller, 26 Hiofa. 274 128
Ljiii« t. Cadwell. 13 Mont. ^58 616
Lebcher v- Commbaioners, 9 Hont. 816 • • 861
L«T* Lee. 31 tii. 26; 76 Am, Dec. 681 860
Ug:gat T. 8t^w»rt. 5 Mont. 1(J7 116
htwfr, Superior Court, 66 CaL 292 627
UwlAY. Stout MWiB.aM 466
Lick r. O'Doonell, 3 Cal. 50; 58 Am. I>fO. 888 828
Litertnore y. Cimpl)ellt 63 CmL 76 626
Lore T. TmmAti. iJ Oliio BL 58 66
LoBhe, Eatatfl of, 63 Gil. 413 961,988
LowF. Bartlett, e Allen. 253 220,222
Lyon T. Petty, €5 0*1.313 860
ICagrmw t. McGlynn, 26 OaL 481 261,280
HaJoj T.BerUn, 11 Mont 138 420,421
Marbury T. Brooks, 11 Wheat 79 272
Marsh t. Kinna. 2 Mont 647 814
MarsfaaU T. fiaaroad Ck>., 16 How. 814 474
Mazey T. Bpeith, 8 Mont 494 82,86,87
MoOormiok Y.Brown, 86 Oal. 185; 96 Am. Deo. 170 225
McOntoheon, In re, 10 Mont 116 885
MoFarbmd's Estate, In re, 10 Mont 445 , 257
McQehee Y. State, 68 Ala. 860 404
McKay Y. Montana Union By. Co., 18 Mont 16 288,888
McKiiistryY.OUrk,4Mont870 272-274
McLangUin Y. Dougherty, 64 OaL 619 28
McLean Y. Meek, 18 flow. 16 220
Merrilleld Y. Longmire, 66 Oal. 180 188,191
Metcalf Y. Presoott. 10 Mont 298.... 287
Moore Yi Olty of Albany, 98 N.T.410 987
MnUer Y. Bnyck, 12 Mont 864 179
Munro Y. OoliiDB, 95 Mo. 88 179
Mordock Y. Brooks, 88 OaLBOO.. 80
Hational Bank Y.KimbaU, 108X7.8.789 818
Nickerson Y. Roger. 76 N. Y. 279 674
Northern Pac. B. B. Ck>. Y. Patterson, 10 Mont 90. 818
Howell Y. Wright 8 Allen, 166; 80 Am. Deo. 62 288,240
Ocean Nat Bank Y. Oarll, 66 N. T. 440 , 674
Otis Y. Town of JanesYiUe, 47 Wis. 422 129
Packet Oo.Y. Sickles, 6 WaU. 680-92.. 66,68
Paige Y. Carter, 64 Oal. 489 860
PameU Y. Hancock, 48 Oal. 452 80
Parrott y. Hnngelbnrger, 9 Mont 526 26-28, 8a 206
Parrott Y. Kane. 14 Mont 28 206
Parsons Y. Meybnrg, 1 DuYall. 206 85
Patterson Y. Donner, 48 Oal. 869 474
Patterson T. Tatnm, 8 Saw. 164; F^ Oas. No. 10880 466
Paol Y. Armstrong.l NeY. 96 698
People Y. Bart 48 Oal. 561,. 668... 464
Peonle T. Delaware Common Pleas, 18 Wend. 668. 624
People T. Moore, 46 OaL 19.. •• • 404
fr^: Tablb of Casks Cnoa
People T. Hei^lai, 96 OJ. 677 981
Peopl^T. Fyper/eUcah, 160.... 181
r«opl« T. S^pli^n, 51 Bdw. Fr. 385 68,67
People T, a^TiS^rt, 107 ilJ. 49i. , «»
Pettigrew r. I)i>bbc?lfrar, m Cat 896 8SS
Phelpf y. Piatt, 50 B^rb, 434) 86
Piercer. Whitinsp 63 Cal. 53S 80
PioobeT. Paiil22Cil.l06..., 881
Pond T. Btir^h « tO Paige, 140^ 888
Pretfcym*D t. Wiiaton, 3* 111.176 888
Prideftax T, Mkzaorfti Point, 43 Wii. 618; 88 Am. Bep. 658 188
S^nffor J VfKidpB. 43 Mich/sii;' 88 'Aitt! 'Bep.'i88!'.V.V.'/.V/.V.! !!'.!!'/.!... 888
BeedT.Ownb7,44Mo.206 887
Bichardson y.' Marqnese, 69 Miss. 80; 48 Am. Bep. 858 888
BobinsonT. OhMnberlaio, S4 N. T. 889 888
BobinsonT. Howard, 6 Gal. 489 68
Bocbe ▼. Mayor. 40 N. J. L. 857 464
Bus8eUT.Ptaoe.94U.8.608 66
Byan t. Kinney, 8 Mont. 454 868, a54» 868
Byan ▼. Maxey, 14 Mont. 81 80
SftcrMnento, Citj Of, v. Bird, 15 C«L 894. » 464
Saunders T. Seed Co., eUt^h, 431 886
Scbicffclin v, 3U3 w&rt. 1 Johm. Ch. 690; 7 Am. Dm. 607 187, 189, 190
Seyraoar t. McKmstry, 106 N. Y. 340 674
Bljarau v. Shnron. ^4 Cal. A3i 80
ShflMan V. Etlw^ida. 35N, Y. 286 64
Bluauhtrd T. Tamer. 3 McCurd. 24^; 15 Am. Beo. 631 860
Bioax Fans Nat. Bmk r. McEee (S.D., JaU.86. 1898), 60 N. W. Bep. 1067. .636, 687
Smith T. Auld. ai Kan. 263, ;...; 61
Bmlth ▼. OatrinRton, 4 Oranebt 70. . . . ;. 878
atuitbT. £we^23PA. BL IIG; 60 Am. Deo. 78 860
SmUh V.Li vJngBton, 111 Mafls. 343':...::.... 674
dmith T. McDoaald, 4i CaL 4M 887
Smith T. Mit^hfeU. 12 Mich. ISO....... 884
Bmuh T. Sac Gouniy, 11 Wall. 133 676
Bmitb T. Waj^hin^tim Gulfght Co.. 81 ]|a. 1$; 100 ^m. Pee. 4|9 860
Speera?. Bterrett, 29 Pa. St. 194.;..T..... 860
9p«rltiigT. Calfefl, 7 Moot 529 88
eiacy T. Thraeber, fl How, 44 : 880-S^
atankyT. Jfine»»7 Biag. 369 _ .471, 4n
Stata T. Ab Jim. 9 Mont.l67„.. 470
SLatoT. Conklm^^ 19 Co.]. £01........ 464
State ¥. Coop^-r, 89 Win. 066. ." 818
State T. DuudoM. 45 La. Ann, 741 404
State V. Evmn, 13 Mont. 239 , 686,588
Siate f. Kellogg, 14 Moot. 42a 468
State v.Kenney. 9 Mont ajl8 4^
Ototov. l|arian,14 Mont. 458 468
BtateT.O'NaUl,!k6N.J.L.68 464
BUteT.PoUwd.6.B.L880 466
State i:.&mifb,18MQni. 378 78, 78
State ▼. SalUTan, 9 Mont. 494 886
State Bailroad Tax Oases, 93 U.S. 576 819
StTLoois smelting Oo. t. Kemp; 104 U. B. 686 M
SCeamOangeftLlktitemCo.T. Mevrose, a7Fed. Bep. 818 61
Steel T. Smelting Co., 106 U. S. 447 880
fitepben8T.Santee.40N.T.86. 684
Stewart T. Lansing, 104 n.S.505 674.576
Stool^ ^. S^lsbee, 41 Mioh. 616 967,808,816
Strong Y. Lynn, 88 Minn. 815 888
SalliYan T. Langley, 180 Mass. 437 574
Sweeney T. Great Falls etc. By. Co., 11 Mont. 84 77
Sweeney y. Great Falls etc. 1^,99., ^Mpi^t, 631 836
pM t. King» 6Moiit 76 ^ 889-891
;T.BoesmaQ.iaMont404. 84
HacoiOi.18Od.140. Oli
Tablb oy Ca8B8 CiraD» xr
, ▼. Bnrstii, 8 Mont 07 7. 8I8-M8
IteitoryT. OUjton, 8 M out. 1 • 80T
tmiiorjr.miiaj,! Uoni.K» 814
TvriUnry ▼. Potti, 8 Mont 884 •••• 088
TiKTitory ▼. Bkooker, 9 Mont 6 408
Tbnitoi7 T. Willard. 8 Mont 838 • 408
" I T. Andenon, 66 Oal. 48 M
ToQOhaid T. Kerem 21 OaL aoa 878
TralRndT. Hafl 7 B. L 104: 83 Am. Deo. 689 880
Tniito6iT.Bboplierd.189lil.U4. 680
United StetaiT.OliflIn, 97 U. 8.061 484
United StatoiT.Geir. 8 How. 180 480
TantOboT^ T. Bliok, 9Mont871 87
▼aafl^T.8olimili]6.10Mdntl86 180
▼oUt. Bailer. 49 GiL 74 878
ToibvshT. Diefendorf; 11911. T. 807; 18 Am. 8t Bep. 886 919, 078
irilheeT.nnoh,a4Mi6h.906 84
Willi T.WaUker, 99 Am. Deo. 398» note 188
WililiT.Hatohingi,60Oi].328 88
Wirdr. Gommii^ieri, 13 Mont 88 819
Wuhington oto. Btoun Pioket Oo. T. Bioklei, 84 How. 888. 08
WeilieT.8tethim.07 Oil. 84 901,800
W«immorT.8iitherlind,74Cil. 848 034
Wellington T.KdlT. 84 N.T. 648. 471
Wibinz T. GrinneO LiTwtoek Go., 9 Mont 164 180
Wi]ionT.Bojoi,93n.8. 836 881
WiliOttT.Book».68N.T.648 674
IHnterT.Vitspitriok, 86 011.969 034
HHiooniin Oent B. B. Go. T. linooln Go., 07Wlf.478. 817
WoodlindT.Nowhill,81FM.Bep.484 08
WoodminT.Oilkini,18Mont 80 ••••• • 180
T.ChdIb00D»8Wi]L880... •• • • 898
GASES DETESMINED
SUPREME COURT
DECEMBER TERM, 1893.
PBE8ENT:
Hon. William Y. Pembertok, Chief Justice.
Hon. Edqar N. Harwood, ) .
TT Tir TT T% Tir J-Associatc Justices.
Hon, William H. De Witt, )
FINKEL6TEIN, Respondent, v. FINKELSTEIN,
Appellant.
[Sabmitted Deoember 20, 1898. Decided January 2, 18M.]
Xabbuox Aia> 'Difoaum^Alimony pendente Kte.— A snlBoleiit prima facie ihow-
ing of marriage to inpport an order for alimoDj pendente lite is made where
the plaintiff alleged a marriage wiih the defendant in Bntaia, and the birth of
flTe ohUdren, and the defendant, while admitting the birth of fonr children aa
their lawful isaae and long cohabitation, claimed that the marriage waa Inyalid
under the laws of that country; that plaintiff had been gnU^TiOf adultery, and
that he had obtained a Moeaio diroroe.
Bax»— Amount of oZirmmy.— Although defendant claimed that a large tailoring
bnaineM, which he waa alleged to own, belonged to another, the undiaputed
liMt that he waa conducting such a buaineaa ia a aulBcient showing of hia abil-
ity to pay thirty dollars a month alimony and a counsel fee of fifty dollars.
Appeal from Fird Judicial District^ Lewis and (Xarke ChwrUy.
AcnoN for divorce. Plaintiff's application for alimony
pmdmle Ute was granted by Buck, J, Affirmed.
You ZIY.^l
2 FiNKBLSTBIN V. FiNKBLSTEIN. [DeC. T., 1893
McConnell, Ctayberg & Ounn, for Appellant.
The affidavit of appellant is both evidence and a pleading
in the nature of an answer, so far as the motion for alimony
is concerned. The statement that the law of Russia prohibited
the marriage of a minor is in the nature of a confession and
avoidance. The statements that appellant was a minor, and
that the person pretending to solemnize the rites of matrimony
between respondent and himself was neither a magistrate,
rabbi, priest, or minister, are allegations of fact, and should
have been met by counter-affidavits if not true, and, in the
absence of any such denial, must be taken as true. {OoUvm
v. CoUins, 71 N. Y. 274.) The relation of husband and wife
must exist in order to warrant the granting of alimony. This
needs no citation of authority. The right to support and main-
tenance arises only from the marital contract, hence if there is
no marriage there can be no obligation to support. While it is
true that where a marriage has been duly entered into, and sol-
emnized, between parties who are incompetent at the time to
make a contract of marriage, but who, after the removal of
the disability, continue to cohabit together, such cohabitation
will be regarded as a ratification of the previous marriage, and
makes it good and valid from the beginning. This principle
applies only to a case where the marriage is void for tlie want
of ability of one, or both, of the parties to enter into the mar*
riage contract In such cases where the disability is removed
the continued cohabitation shows that the consent has been
given, or, rather, that the consent already given is ratified,
and thus the marriage is made good. But where the marriage
is in violation of positive law, no subsequent cohabitation or
ratification can make such marriage good. The mere fact that
the parties lived together as husband and wife, under a belief
that the marriage was valid, does not help the case. (CbKna
V. OoUvM, 80 N. Y. 1; Ro9e v. Bose, 67 Mich. 619; Ooldbeok
y. Oddbeek, 18 N. J. Eq. 42.)
J^. E. Stranahan, for Bespondent.
I. A prima facie case of marriage de facto, or a cohabita-
tion having the semblance of marriage, need only be made out
14 MontJ FiNKBLSTKIN V. FiNKBLSTBIlf. 3
by the plaintiff to sustain the order for alimony pendente lite,
and tills prima facte case must be thoroughly defeated and the
defense fully established by the husband, or putative husl>and,
before he will be relieved. {Brinkley v. Brmkley, 50 N. Y.
184; 10 Am. Rep. 460; North v. Nwih, 1 Barb. Ch. 241; 43
Am. Dec. 778; Porlmaidh v. Poj-tenuyuth, 3 Addams Eccl. 63;
Smiih V. Smith, 1 Edw. Ch. 255; Hammond v. Hammond,
Clarke Ch. 153; Smyth v. Smyth, 2 Addams Eccl. 254; Vin-
cent V. Vmeent, 17 N. Y. Supp. 497; Lea v. Lea, 104 N. C.
603; 17 Am. St. Bep. 692; 1 Bishop on Marriage and Divorce,
386, 404.)
II. "Supposing it to be admitted that the husband's version
is correct, as to law and fact of the marriage in Poland,
yet it will not be contended that the subsequent cohabitar-
tion was meretricious, or that the contracting parties did
not do all they could to make the marriage legal, or that the
disability was not removed in the state of New York, where the
mutual present consent alone is necessary, and where they lived
and cohabited as man and wife, and whe|^ children were born
to them after the removal of the disability contended for.
(1 Bishop on Marriage and Divorce, sees. 387, 970, 975, 980,
982, 985; Starr v. Feck, 1 Hill, 270; Qayton v. WardeU, 4
N. Y. 230; CatyoUe v. Ferric, 23 N. Y. 90; aGara v. Eieen-
lohr, 38 N. Y. 296; Foster v. Hawley, 8 Hun, 68; Eynes v.
McDermoU, 91 N. Y. 451; 43 Am. Rep. 677; Peet v. Peet, 52
Mich. 464.) The only act of disai&rmance was the sending to
respondent by appellant the Mosaic divorce, thirteen years
after the marriage, and when he, according to his own testi-
mony, was twenty-nine years of age.
III. ^^ There are practical reasons, yet not supported by
much judicial authority, for holding the proofs of a fact
of marriage less strict when the celebration was abroad
than when in the country of the forum. And it has been
deemed that the proof of a foreign law may be more easily
dispensed with in proportion as it becomes difficult. Hence as
marriage is specially favored, the courts may well relax the
rules of proof when a foreign marriage is in litigation. (1 Bish-
op oin Marriage and Divorce, sea 1130; Brower v. Bowers, 1
4 FiNKELSTEIN V. FiNKELBTSIN. [DeC. T., 1893
Abb. App. Deo. 214; PhUlipa v. Gregg, 10 Watte, 168; 36
Am. Dec. 168.
ly. The appellant admitted the marriage by swearing to
it before the police magistrate; by sending his wife the Mosaic
divorce; and charging her with adultery by reason of his
non-access at the time she conceived her last child. ''And
generally in our states, since confessions to a domestic mar-
riage are admissible, so they are to a foreign.^' (1 Bishop
on Marriage and Divorce, sec. 1127.)
y. A merchant or other person who holds no official
situation, and who is unconnected with the legal profession,
cannot be heard to expound the law of a foreign country,
though the judge may be satisfied that he really possesses
ample knowledge on the subject. (1 Bishop on Marriage and
Divorce, sec 1123.)
De Witt, J. — ^This is an action for a divorce and alimony,
and to set aside an alleged fraudulent conveyance of property
by defendant, in on^r that plaintiff may realize alimony from
such property. Defendant appeals from an order of the dis-
trict court awarding plaintiff alimony pencfen/« 2ife,and counsel
fees. We refer to the case of In re Finkehtein v. Curtis, 13
Mont 425, for a statement of some of the fisusts.
The appellant contends, on several grounds, that the order
for alimony and counsel fees should be reversed. The first,
which we will examine, is that it does not sufficiently appear,
as counsel urges, that the respondent is the wife of said appel-
lant. The plaintiff^s motion for alimony and counsel fees was
made upon the complaint and affidavite. The plaintiff alleges
in her complaint that she and the defendant were married at
Pultusk, in Russian Poland, December 27, 1870, and thereby
became, and ever since have been, and now are, husband and
wife. She further alleges that, at divers times between the
last-mentioned date and the commencement of this action, the
defendant has been guilty of adultery with one Sarah Eisbert,
aliaa Sarah Jones, alias Sarah Finkelstein, a person with whom
defendant purporte to have intermarried in the year 1883.
The plaintiff further alleges that there are living issue of
her marriage with the defendant, five children, ranging from
14 Mont.] FiNKKLSTEIN V. FiNKKLSTBIN, 6
twenty-one years of age to twelve years. She further allies
that she is in indigent circumstances, dependent upon her labor
for the support of herself and children, and that she is in ill
health, and has no property whatever.
Her daughter, Esther, twenty*one years of age, makes an
affidavit in which she says that ever since she can remember,
with the exception of periodical desertions of her mother by
her father, he, the defendant, has lived and cohabited with her
mother as his wife, and has acknowledged and introduced her
to^the world at large as such. This daughter further sets forth
the indigent circumstances of her mother.
In opposition to the motion, the defendant filed his own
afiBdavit. He allies that the relation of husband and wife
has never existed between him and the plaintiff. He alleges
that about the time that plaintiff says the marriage took place
he and plaintiff appeared before a third person, who was not a
magistrate, rabbi, priest, or minister, or any person authorized
by the laws of Russia to perform a marriage ceremony, and
that this third person presumed to pronounce plaintiff and
defendant husband and wife. He further says that when this
ceremony took place he was sixteen years of age, and that there
was a law of Eussia in force that no male person under the
age of twenty-one years was allowed to marry, and that any
such attempted marriage was absolutely void and invalid for
all purposes.
Of course, one of the essential facts to plaintiff's cause of ac-
tion, is that she is the wife of defendant. If that fact is not
present, plaintiff has no case. But on the hearing of a motion
for alimony pendente lUey it is not for the district court to
finally determine that faot. The question is whether there is a
sufficient prima fade showing of the alleged fact of marriage.
In this case the plaintiff unequivocally alleges the fact of mar-
riage with defendant in Russia in 1870, and that they ever
since have been, and now are, husband and wife. She also
allies that there is issue of that marriage five children. The
defendant admits that there are four children who are the issue
of himself and plaintiff. So we have the undisputed fiict of
four children, and we also have the undisputed fact of a long
cohabitation of plaintiff and this defendant as husband and
6 FiNKBLSTBIK V. FiNKBLSTBIN. [DoC. T., 1893
wife, interrnpted only hj defeudaot's periodical desertions of
plaintiff. To oppose these allegations of plaintiff and these
conceded facts, there is the affidavit of defendant, that the per-
son who performed the alleged marriage ceremony in Russia
was not authorized so to do by the laws of Russia, and that his
alleged marriage when sixteen years of age was void and in-
valid under the laws of that country. The defendant contends
that his affidavit in this respect mnst be held to be both a
pleading and evidence. Taking his view, and looking at the
affidavit as evidence, we have before us a statement of one not
a lawyer as to what is the law of Russia. The statement of
such a person is not competent testimony of what the law is in
a foreign country. But appellant contends that his statement
as to the law of Russia is not denied by plaintiff. We do not
regard it as a matter of any consequence whether plaintiff
denies it or not. She is not shown to be learned in the law
and competent to testify any more than he is. Her denial
would be of no more value than his asseveration. Neither of
them is a witness competent upon the subject
Turning from defendant's affidavit regarded as evidence, and
looking at it as a pleading, as he requests, we observe this
situation. The plaintiff alleges marriage and the present ex-
istence of the relation of husband and wife. The defendant
sets up facts which he claims, if true, show that there was no
marriage and no relation of husband and wife. In our opinion
this leaves the matter of marriage simply in the condition of a
contention between the parties. But there are some further
allegations in defendant's affidavit, which instead of attacking
plaintiff's claim that there was a marriage, rather lend strength
to her contention. They are as follows: He says that in 1883
plaintiff and himself agreed to separate, and get a divorce in
accordance with the Jewish religion and practice; that accord-
ingly, he, the defendant, went to a rabbi in Cliicago and ob-
tained from him a divorce from the plaintiff according to the
law of Moses, and that he sent the same to the plaintiff, and
that she accepted and agreed to abide by it, and has abided by
it for a period of ten years. So it appears that the defendant
himself at that time fully recognized the relation of husband
and wife between himself and the plaintiff. Again the defend*
14 Mont.] FlNKBLSTSIN V. FiNKBLBTBIN. 7
aiity in his affidavit, in effect aocusea the plaintiff of aclQlteiy,
in .that he says, that for more than eighteen mouths prior to
the birth of plaintiff's last son, Emanuel, the defendant was
continnonslj away from her iu another city, and he says that
he has never condoned this offeuse by the plaintiff. As a
matter of course, she could not be guilty of adultery, as he
oharges m effect^ unless the relation of husband and wife ex-
isted between the parties. So as above remarked, these matters
set op by defendant, instead of lending aid to his contention
against the marriage, have rather a tendency in the other direo*
tion.
It may be true that, if on a motion for alimony pendente liie^
the defendant shows facts and conditions which absolutely
establish that there is no marriage, and that plaiutiff is not the
wile of defendant, it would not be proper to grant such alimony.
Bnt there is no such showing in this case. To recapitulate
the district court had before it this situation: A direct allega-
tion of marriage by the plaintiff, which the defendant denied,
by alleging what he claimed was a'law of Bussia, which would
render the alleged marria^ void. There is the further fact
of long cohabitation by plaintiff and defendant, as husband
and wife, and the birth of four children as the result thereof
Again there is the action of defendant in obtaining the Mosaic
divorce. Again there is the implied admission of the marriage
by defendant in his charge against the plaintiff of adultery.
It is our opinion, that there was an ample pima facie show-
ing upon which the district court was justified in granting the
alimony and counsel fee.
Another point presented by the appellant is, that it does
not appear that the defendant has the faculty and ability to
pay alimony; It does appear that he is conducting a large
tailoring business, and plaintiff claims that the business is, in
fact, his own, and is being fraudulently conducted in the name
of Sarah Finkelstein, the person defendant claims to be his
wife; Defendant, on the other hand, says, that this business
belongs to Sarah. But, in any event, it does appear, without
contradiction, that the defendant is engaged in conducting this
business, and, if he were able to do so, it is a fair showing that
he has the fiionlty and ability to earn money to pay the mod-
8 Morrison v. Morrison. [Dec. T., 1893
erate sum allowed hj the oourt in this case as alimony and
counsel fees. The alimony was thirty dollars a month, apd
the counsel fee was fifty dollars.
There are some questions upon the statute of limitation as
to plaintiff's cause of action, raised by defendant's affidavit;
but with the substantial priina fdde showing of a marriage,
and the charges of adultery made by the defendant against this
plaintiff, we are of opinion, that these questions as to the stat-
ute of limitations, which are simply alleged in defendant's affi-
davit, should properly be determined upon the trial of the case
upon the merits, and should not be settled in advance upon
the hearing of the application for alimony pendente Hie.
The ruling of the district court is affirmed.
Affirmed.
Prmberton, C. J., and Harwood, J., concur.
MORRISON, Respondent, v. MORRISON, Appellant.
[Babmitted October 8, 1898. I>eoidad Juiiiary 2, 18M.]
KABaikom AMD DiTOBOB— 5p0o(aZ/lfid£n^«.— ^peoftal flndingi maybe properly sub-
mitted to and passed apon by the Jury in a diroroe suit, under section 275 of
the Code of Oivil Procedure.
BAXESabitual drunketineM anderueUi;—OondonerMnL-^BAhifnMX drunkenness,
acts of Tiolenoe» abuse, and frequent abandonment of a wife by her husband,
during a period of several years preceding a final separation in January, 1889,
are not condoned by a cohabitation together until October, 1888, when the
defendant, shortly before the commencement of an action for dlToroe in April,
1889, while intoxicated had broke into plain tiffs house, armed with a pistol, and
threatening to kill her droTe her to seek refuge with a neighbor.
BiMM—SMenoe— Neglect to support.— While neglect of a husband to support his
wife is not a ground for divorce in this state, such neglect may be proved in
an action for divorce sought upon the grounds of habitual drunkenness and
extreme cruelty, when confined to showing the tenor of defendant's oonduet
towards his wife.
Appeal from Second Judicial Dieiricty Silver Bow Qmnty.
Action for divorce. Decree was rendered for the plaintiff
below by Pembebton, J. AflBrmed.
Thompson Oampbell, for Appellant.
/. 8. Bhropahiref for BespondenU
14 Mout.] Morrison v. Morrison. 9
Habwood, J. — ^Plaintiff sought and obiaioed a divoroe
from the bonds of matrimony existing between herself and
defendant; and also the custody of four infant children of
said marriage, ranging in age from two to eight years, to-
gether with alimony and oosts of suit.
The grounds alleged for such divorce are, habitual drunk-
enness on the part of defendant for a period of more than one
year immediately prior to the commencement of the action;
and extreme cruelty in the treatment of plaintiff by defendant
through his threats of yiolence toward her; and false accusa-
tions charging her with infidelity to her marriage vows, all of
which is particularly alleged. And by reason thereof plaintiff
allies that she has suffered great mental and physical dis-
tress; that her health has been greatly injured, her happiness
and peace of mind destroyed, and that her personal safety in
longer living with defendant in the bonds of matrimony is
endangered. Wherefore her pniyer for divorce therefrom and
alimony and costs of suit.
Plaintiff's allegations wer6 put in issue by defendant's
answer, and the court proceeded to try the cause with a jury,
the result of which was a finding in favor of plaintiff by both
general and special verdict. Whereupon judgment was en-
tered dissolving the bonds of matrimony existing between
plaintiff and dtf ndant, and awarding plaintiff the sole care
and custody of said infant children, and alimony for counsel
fees in the sum of two hundred and fifty dollars; and it hav-
ing been made to appear that defendant was the owner of one
hundred thousand shares of capital stock of the '^ Golden Gate
Mining Company,'' a corporation organissed and existing under
the laws of the state of Montana, it was decreed that defend-
ant should transfer and deliver to plaintiff fifty thousand
shares of said capital stock, as permanent alimony, to be used
by plaintiff toward the support and education of said children.
Defendant prosecuted this appeal from the judgment, and
from an order overruling his motion for a new trial, but pre-
sents no brief of points and authorities relied upon to obtain a
reversal of the conclusion reached by the court below. The
statement of the case on motion for new trial, however, contains
certain specifications of alleged errors and irregularitiea.
10 Mo&BisoN V. Morrison. [Dec. T., 1893
1. It 18 speoified thai ''the court erred in permitting the
jarj to pass on special findings presented to them in this case,
the verdict of the jarj should have been general.'' It appears
from the record that the jury returned a general verdict in
favor of plaintiff, but also returned 8i)ecial findings on several
propositions submitted. There is no statute forbidding special
findings in such a case, nor has appellant cited any authority
to support his contention. Moreover, the statute of this state
provides for submission of special findings to be returned by
the jury (Code Civ. Proa, § 275), and there is no exception
made as to divorce suits. Indeed, the divorce statute pro«
vides that the same rules of proceeding shall prevail ^'as in
other cases in chancery''; and special verdicts are common in
chancery practice. We find no merit in the first specification.
Nor is there any logical coherency in specifying that the
court erred in allowing the jury to return any Uiing more than
a general verdict, and, secondly, specifying that the general
verdict in favor of plaintiff 9ught to be vacated because the
jury did not answer all the special questions propounded. In
the second specification it is argumentatively urged that the
general verdict should be set aside, because the jury did not
find whether or not plaintiff and defendant cohabited together
up to the 1st of October, 1888; that if the parties cohabited
together up to that time it would manifest condonation. The
jury did not so find, and there is no ground for claiming for-
giveness or condonation of any of defendant's offenses against
his marriage vows alleged in this case. The history of his
conduct toward plaintiff, as shown by the evidence, is that
of continued drunkenness, acts of violence, false accusations,
threats, and abuse of plaintiff for several years past during
their residence about mining camps in this state; with frequent
abandonment of plaintiff and said children for considerable
periods of time, and final separation in January, 1889, fol-
lowed by this suit for divorce instituted by the wife in April,
1889. And, as appears from the evidence in the record, de*
fendant continued his habits of drunkenness, as well as his acta
of cruelty towards plaintiff, up to near the time of commencing
this suit; and the same seems, from the evidence, to have in-
creased in intensity and aggra vation^ rather than to have abated
14 Mont.] Morrison v. Morrison. 11
in any degree, as time went on. Shortly before oommencenient
of this sait plaintiff was driven from her house by defendant's
last visit, when he broke in the door, armed with a pistol,
threatening to kill plaintiff. He was then in an intoxicated
condition. Plaintiff sought refuge and a hiding-place in a
neighbor's house, to escape from the abuse and threatened
assaolt, and injury by defendant, which plaintiff testified she
fimred. There is no ground to daim coudonemeat under the
fiusts shown in this case*
The third s|)ecificatiott is to the effect that the court erred in
allowing proof of defendant's neglect to provide necessaries for
the support of plaintiff, but left her and said children destitute
thereof, and thereby cast upon her the whole burden of the
care and support of said children. It appears that plaintiff
was without means of support, and that she maintained herself
and said children by employment at teaching school and other-
wise. Objection was made to the introduction of this evidence
on the ground that such neglect is not made by statute cause
for divorce in this state. The evidence of defendant's delin-
quency in tliis respect appears to have been iidmitted to throw
light upon his conduct toward plaintiff, alleged in the plead-
ings and supported by proof, and not as ground of divorce; for
the oourt instructed the jury that '^neglect or refusal of de-
fendant to support plaintiff is not ground of divorce under the
laws of this state." And, by the observations of the court
when that testimony was admitted, it was to be confined to
showing the general tenor of defendant's conduct toward plain-
tiff. And thus confined by the observations of the court, when
that testimony was admitted and also curtailed in its effect by
the instruction mentioned, we think there was no error in
admitting the proof of such delinquency on defendant's part.
The duty to support the wife and child as comfortably, and
according to their station in life, or as comfortably as the hus-
bond is able to provide, is not the least among the duties as-
sumed by him in the marriage bond. Possibly, however, in
this case, it was the least among defendant's offenses against
his marital duties. Neglect to suppoit the wife, although
not ground for divorce here, is made so by statute in several
states, thus showing that it is considered an o&nse of no light
12 Statb v. Baum. [Dec. T., 1893
character, where the wife is without meaDs for maiDtenaDce;
and we think proof of sach neglect, confined, as it was in this
case, to an interpretation of defendant's other conduct and dis-
position towards plaintiff, was not error, especially where the
record shows that the case was fully made out on other grounds.
The other specifications go to the point that the evidence
is insufficient to support the verdict. The jury in the court
below found the contrary, and the record shows abundant sup-
port for that view. The order denying a new trial and the
judgment is therefore affirmed with costs.
Db Witt, J., having been counsel for one of the parties in
the commencement of this case^ did not engage in the foregoing
consideration.
Pembebtok, C. J.^ concurs.
STATE- EX REL. BENTON v. BAUM.
[Babmitted January 26, 1898. Decided Jumary 2, 189i.]
Anoiunm—D»5arment.— Where an attorney made an agreement to try a case for
his client in the Justice court for $25, and another to try it in the district court
for $25, and a third to appeal it to the supreme court for $25, which scTeral
amounts he received, performing only the first two seryices and deli!>erately
neglecting to take the appeal, and during the time within which he might haya
appealed procured and couTerted $28 which had been paid into court for hia
client on the Judgment fk-om which he agreed to appeal; and also opened a leU
tor addressed to another client, which had been sent in his care, containing %
check for $100, upon which ha indorsed his client's name, and procured
the money, which he refused to pay over upon demand, although having no
daim or lien upon it for fees or otherwise— such conduct is ground for disbar-
ment under sections 106, 107, 6th division of the Compiled Btatutea veating tha
supreme court with power, in its discretion, to disbar an attorney for mal-
conduct in his profession, and also for refusing, upon dmnand, to paj atrnt
money to which his client is entitled.
Application for the disbarment of an attorney. Granted.
Db WitT| J. — ^This is an application for the disbarment of
Peter M. Baum, an attorney of this court. The relator,
Charles H. Benton^ judge of the eighth judicial district court,
filed, in this court, written charges against said Baum. An
14 Mont] Statb v. Baum. IS
order was issued that respondent show canse why his license
sfaoald not be revoked, and his name stricken from the roll of
attorneys. Upon service of that order, Mr. Baum filed an
answer. The matter was thereupon referred to E. R. Bussel,
Esq., of Great Falls, who was appointed by this court as
referee, with the usual powers of such officer, to take the testi-
mony of witnesses and report the same to us. That report is
now before us. We will examine it, and ascertain whether
the charges were proved, and whether they are sufficient upon
which to pronounce a judgment disbarring respondent from
the practice of law.
We will give our attention to only two of the charges. The
first may be stated as follows: Joseph Horn employed Baum
to prosecute an action for him, in a justice court, against one
James Baatz, on a claim amounting to |71.60. The price
agreed upon for the service was |25, which amount Horn paid
to Baum. The service was performed, and judgment was ren-
dered in the justice court for |60 in favor of Horn. Baats
appealed to the district court. Thereupon Baum and Horn
made a second agreement that Baum should try the case in the
district court for another |25. This amount was also paid by
Horn to Baum. In the district court, Horn obtained a judg-
ment against Baatz for $30. Thereupon a third contract was
made between Horn and Baum, by which Baum agreed to ap-
peal the case, and argue it in the supreme court, for another
|26. This money was paid by Horn, and accepted by Baum.
Baum did not appeal the case to the supreme court, but
allowed the time for so doing to expire. Judgment for costs
was entered against Horn in the district court by reason of the
fact that the judgment of the justice of t^e peace was reduced
on the trial de novo in the district court; The sheriff collected
this judgment for costs from Horn. The defendant, Baatz,
against whom was the judgment for |30 in the district court,
paid that amount of money into court in satisfaction. Baum,
as Horn's attorney, received this |30 from the clerk of the
district oourt, less ^7 costs, which belonged to the justice of
the peace. This |23, so received by Baum, he retained, and
eonverted to his own use.
i, The second charge is as follows: One Robert Temple was
14 Statb v. Baum. [Dec. T., 1893
arrested, cbai^ed with peijary. He employed Baum to defend
him. While he was in jail he paid Baam ^20, and, after
being released on bail, he paid him a fartlier sum of |30 as a
retainer. Temple wrote to a relative in Washington, D. C,
asking for money, and directing the relative to send the letter
in care of the law firm of which Baum was a member. This
letter was sent, containing a check for |100, payable to Tem-
ple. This letter was by Baum opened. Baum took the check,
|100, and indorsed it, **R. Temple, per Peter M. Baum,'' and
''Peter M. Baum.'' He cashed this check at a Gi^at Falls
bank, and retained the money. Temple gave Baum no aa-
thority to open his letter, or to take his check or indorse it^ or
to receive money on it. Temple, discovering what Baum had
done, discharged him from his service, and demanded the
$100, which was refused. We do not deem it necessary to
notice the other charges made in the complaint.
At the hearing before the referee, Mr. Baum appeared in
person, and was present at every session, the referee never pro-
ceeding with testimony until Baum appeared. Baum was not
only afforded a full cross-examination of the witnesses for the
state, but he was permitted to revile the witnesses and counsel,
to insult the referee, to ridicule the proceedings, to challenge
persons to fight, and to indulge generally in such disgraceful
conduct that we much regret that the referee did not stop the
hearing, and at once certify to us the acts which were taking
place before him, for the referee was a part of this court, and
Banm's offenses against the referee were offenses against the
court. {In re HaMom^ 10 Mont. 222.)
Perhaps it may not be amiss to note a few examples of
Baum's conduct. Early in the proceedings Mr. Baum re-
marks ''that he does not care any thing for the people who
appear in this proceeding; that he defies them, and defies the
supreme court to do him any harm in this case; and that
nothing can be proved. I say tliat Ed L. Bishop never made
a cent in this country until I took him into business. I took
him into my office a pauper. That he don't know enough to
chew gum^ and has cheated me every time he has had a
chance."
Again, Baum remarks: " Mr. Baum asks now that yoa
14 Mont.] State v. Bauk. 15
bring ia the oonrt olown/' Again, Baam says to one of the
coanael: ^Yoo stole the balance of my money* If I was the
l>igg^t coward on earth, I wonld knock out the man tliat said
that to me.'' At another point we have the following: ''Here
Mr. Baum noticed W. M. Cockrill, clerk of the district court
of Oascade county, standing in the door of the referee's office,
and said to him, 'Come in William and see the circus.''' Mr.
Baum, in objecting to a question does it as follows: Mr. BauuL
Mr. Baum says that that question is leading, and outrageous,
and ridiculous, and nobody but a fool would ask such a ques-
tion. I say that to the supreme court, and also say that Mr.
Baum says it is directory." Again, commenting upon a ques-
tion, he says: ''Who ever heard of a lawyer asking a question
that way. Just say now, also, that if Mr. Bishop was a gen-
tleman, and born south of Mason and Dixon's line, he would
have licked Mr. Baum before this time." Speaking of him-
self, Baum again says: "We will see. Counsel may be drunk,
but I would rather have his head drunk than yours sober.
We will have a circus before we get through." Mr. Baum
remarks to one of the counsel as follows: "Relating to this
check: Bishop, if you had my head, drunk, it would be worth
millions of dollars to you." At another time Mr. Baum says:
"Old man [naming one of the members of this coui*t]
will be amused when he sees this." Addressing Mr. Cockrill,
a bystander, Mr. Baum says: "Sit down before I lick you,
Cockrill." Mr. Horn, a German, being upon the stand as a
witness, Mr. Baum remarks: "Oh, a Dutchman will do any
thing, you know. I wish you would say to the supreme court
that I would like to have such a thing as that Bishop out in a
green field. I believe the crows would be scared." Again
Mr. Baum remarks to one of the counsel: "I would like to
have you put down that, now. Baum now says he would like
to take Bishop out, and slap his &ce; that I think he is the
laciest dam dog that was ever born. I now say that Pop
Baum took him into his office when he hadn't any reputation
w business, and let him make money, and that all the money
be ever got, and all the reputation he ever had, he got through
Pop Baum. Pop Baum made every thing there is in hinu"
Speaking of the same German witness above noted, Baum
16 State v. Baum. [Dec. T., 1893
remarks: ^'I think he lies about that'' The following is one
of Mr. Baum's methods of objecting to a question: ^Objected
to upon the ground that Bishop is a fool. I want to show the
supreme court what a fool you are, you dirty loafer." To the
witness he says^ ^'Pull off your shoes, and wash your feet.
Now, you keep your mouth shut, and don't tell him a damn
thing.'' To punish Baum for this conduct before the referee
is now impracticable (further than the judgment disbarring
him) as he absconded from this state about the time the evi-
dence for the state in this proceeding was dosed.
The two charges above recited were clearly and amply
proved by the witnesses for the state. We will examine the
Horn matter for a moment. It is proved beyond a cavil that
there were three express and well-understood contracts between
Horn and Baum — one contract to try the case in the justice
court for ^26; another^ to try it in the district court for |26;
and the third, to appeal and try it in the supreme court for
|26. These several amounts were all paid to Baum. He
performed the first two services. He was paid to appeal the
case to the supreme court. He did not forget lo take the
appeal. He deliberately did not do it, but, ou the other hand,
did something else; that is to say, during the time within
which he might have appealed, he went to the clerk's office
and collected |23 which had been paid into court for his client
on the judgment from which he had agreed to appeal. This
^23 he appropriated and converted. So he not only deliber-
ately and knowingly omitted to do that which he had agreed
to do, and had been paid for doing, but he also converted a
sum of money belonging to. his client. There is no pretense,
by the mouth of any witness, that Baum had, or ever made or
pretended to have, any claim upon this $23 for fees owing
from Horn. In Baum's cross-examination of Horn he tries
to make it seem unreasonable and ridiculous that an attorney
would agree to take a case to the supreme court for $26, and
that therefore it must be untrue that he agreed to do it It
may be unreasonable to believe that an attorney would attempt
such a service, paying costs, transcribing, printing, and ex-
penses, for |26. But Baum did not attempt the service. The
evidence does not show that he ever intended to take the appeal.
14 Mont.] Statb v. Baum. 17
bat it does show tliat be intended to promise to do it^ and that
he intended to get the |25 for the promise^ and intended to
give oo further oonsideration for that money than the promise.
So much for the Horn matter.
We will look at the Temple charge. Here the evidence is
just as clear. It is established that Peter M. Baum opened
Robert Temple's letter; that he took therefrom Temple's check
for |100; that he indorsed Temple's name, and collected Tem-
ple^s moneji and put it into his pocket — and all this without
permission or authority, expressed or implied. There is no
pretense here that, even if Baum had 'obtained possession of
this money lawfully, he had any right or claim or lien upon
it, for fees or otherwise. Upon the last day that evidence was
taken Mr. Baum was present, as he was at every hearing. An
adjournment was taken to March 4, 1893, at 10 A. M. Ad-
journments were taken as follows: To the same day at 2 p. M.;
to March 13th, 10 A. M.; to March 27th, 10 A. M.; to April
19th, 10 A. H. At none of these hearings did Baum appear.
The referee then closed the hearing. Mr. Baum did not offer
a syllable of proof, by himself or any other witness, in contra-
diction of the charges and testimony of the state.
As above noticed, he has lefl this jurisdiction. We have lield
the report of the referee from the date of its filing, May 23d,
until this time, January 2, 1894, so that respondent should have
ample opportunity to make a defense. After the filing of the
complaint in this matter, and pending the proceeding, Baum's
conduct towards Judge Benton was such as was utterly unbecom-
ing an attorney. About the time the hearings before the referee
were being continued from day to day, awaiting Baum's pres-
ence, some further afiGdavits were filed in this court setting
forth Baum's conduct. Although evidence was not taken upon
these charges, the affidavits were made by respectable persons
of Great Falls, and Baum has never appeared to controvert the
charges therein contained. It may therefore be proper to refer
to them in connection with the other matter above reviewed.
It is set forth that Baum, in the presence of several persons,
stated that Judge Benton was a hypocritical ■
■■ - , and ought to be impeached; that he (Baum) owned the
court (referring to Judge Benton); and that '^ Charley Benton
Vol. xrv.— a
18 State v. Baum. [Dec. T., 1898
IB afraid of me [Baum], and will do what I want him to/'
Another affiant alleges that Baum^ on the streets of Great Falls^
in the presence of anuniberof persons, stated that he had been
running the judge of the district court for a year or so, and
that the judge did whatever he (Baum) desired him, regarding
litigation in which he was interested, and that the judge was
all right while he was under Baum's control. The other
charges in these affidavits are as to personal abuse by Baum of
Benton, and some of it in Benton's chambers at the courthouse.
The conduct described must have sorely taxed the judicial calm
of Judge Benton, and made him wish, for the time, that he
were a citizen only, and not a judge of the court. The charges
in these affidavits can add nothing to the severity of the judg-
ment of this court. They only further show the abyss of
degradation into which the respondent has fallen. We have
shown what the charges against Peter M. Baum are. We have
shown that they were proved. We have shown what Baum's
conduct was in the presence of the referee, and his conduct
pending those proceedings.
We have the following statute: ''In all cases where an
attorney of any court of this state, or solicitor in chancery,
shall have received, or may hereafter receive, in his said office
of attorney or solicitor, in the course of collection or settle-
ment, any money or other property belonging to any client, and
shall, upon demand made, and a tender of his reasonable fees
and expenses, refuse or neglect to pay over or deliver the same
to the said client, or to any person duly authorized to receive
the same, it shall be lawful for any person interested to apply
to the supreme court of this 'state for a rule upon the said
attorney or solicitor to show cause, at a time to be fixed by the
said court, why the name of said attorney or solicitor should
not be stricken from the roll, a copy of which rule shall be
duly served on said attorney or solicitor at least ten days pre->
vious to the day upon which said rule shall be made returnable;
and if, upon said rule, it shall be made to appear to the said
court that such attorney or solicitor has improperly neglected
or refused to pay over or deliver said money or property so
demanded as aforesaid, it shall be the duty of said court to
direct that the name of said attorney or solicitor be stricken from
14 Mont.] Statb v. Bauic 19
the roll of attorneys in said court/' (Comp. Stats.^ div. 6,
p. 621, § 107.) We also have a provision, in section 106, that
the justices of the supreme court, in open court, shall have
power, in their discretion, to erase the name of an attorney or
counselor at law from the roll for malconduct in his profes-
sion. Section 107 is sufiBcient to sustain a judgment disbarring
Baum. We are of opinion that section 106 is also ample
authority. Baum's acts were ^'malconduct in his profession.''
It would be undignified for a court to stop to discuss whether
Baum's acts, as above described, were professional malconduct.
He shocks professional ethics and all common morals. The
standard of morals in the profession of law ought to be at a
high mark. Mr. Baum was once very near expulsion from
that profession (July term of this court, 1890). At that time
he was saved by the view that we took of the courtesy which
seemed to be due from us to the supreme court of the state of
New York. {In re Baum, 10 Mont. 223.) The offenses
charged against him at that time were committed in the state
of New York, and it seemed tliat the New York supreme court
had jurisdiction, and had taken proceedings against Baum,
which were then pending and undetermined. On that ground
we then omitted to take action.
Furthermore, perhaps it is not amiss to state that this court
was then addressed in behalf of Mr. Baum by gentlemen of
the bench and bar in high standing in sister states. Mr.
Baum was by us given the opportunity to secure an honorable
place in his profession in a rapidly developing community, and
among a generous people. It is characteristic of the people of
the west to forgive the past, and to give the helping hand of
fellowship to every struggler for a larger day and better life.
Mr. Baum has flagrantly abused this sentiment of the court
and the people of this state. It is the judgment of this court
that the license, as an attorney, of Peter M. Baum, is revoked,
and that his name be stricken from the roll of attorneys of
this court, and that he is debarred from practicing in any of
the courts of this state, or from exercising any of the privileges
of an attorney or counselor of law.
Pembebton, C. J., and Harwood, J., concur.
20 Daly v. Milen. [Dec. T.. 1893
DALY, Respondent^ v. MILEN ep al., Appellants.
[Sabmitted Febraary 6, 1898. Decided Juiiuay 16, 18M.]
JuDOKBHT— S;p0c<aZ jlndtn^j—inooyMUtonoy.— When the Jury, in an action to en-
Join the collection of a Judgment, fonnd apecially that the note upon which
•ach Judgment waa rendered had not been aettled pending the anit, and thai
defendant had not agreed to diamias anch action, which findinga were adopted
by the court, a Judgment for plaintilT will be rerereed on appeal aa inoonaiatent
idth and unanthorised by the flndinga.
Appeal from SeoerUh Judicial District, Coder Obwity.
AoTiON to enjoin oollection of, and to vacate, a judgment.
The cause was tried before MilbubN| J.^ who rendered judg-
ment for plaintiff. Reversed.
Middldon & LiglU^ for Appellant.
T. H. Porter, and C H. Lofud, for Respondent.
Pemberton, C. J. — ^The plaintiff alleges in his complaint
that on the twentieth day of July, 1888, the defendant Milen
began a suit in the district court of Custer county against him
(plaintiff) to recover judgment on a promissory note given by
plaintiff to said defendant, in the sum of five hundred and
seventy-four dollars, with interest at twelve per cent from
October 30, 1887; that summons was issued in said suit and
served on plaintiff; that on the twenty-first day of May, 1889,
and while said suit was still pending in said court, the plain-
tiff and said defendant had a settlement of all demands and
accounts existing between them, including the amount and the
note on which this said suit was brought; that thereupon, and
in consideration of said settlement, said defendant Milen and
his attorney agreed to dismiss said suit at the costs of said
Milen, but that, instead of dismissing said suit, said defendant
Milen's attorney, on the twenty-second day of May, 1889,
caused and procured judgment to be entered in said court in
•aid action in the sum of six hundred and seventy-nine dol-
lars, with interest and costs, against this plaintiff, in violation
of his rights and of the terms of said settlement; that said
judgment was entered of record in said court, and still re-
mains of record therein; that plaintiff had no knowledge of
14 Mont.] Dalt v. Milin. 21
said jadgment having been obtained and entered^ as aforesaid,
nniil execution issued thereon was levied on his property by
the sheriflP; that defendant E. J. Jones is the sheriff; that said
sheriff has levied said execution upon two thousand four hun«
dred sheep belonging to plaintiff, and has taken them into
his possession thereunder, and threatens to remove them, etc
Plaintiff therefore brings this suit, and asks judgment that the
defendants be enjoined from taking and selling said property
under said execution; that said execution and judgment of tlie
district court be vacated, and declared null and void; that his
property be restored; and for costs, etc. All the material
allegations of the complaint are denied by the answer of the
defendant. The case was tried by the court with a jury. A
number of special findings of fact were submitted to the jury.
These special findings of fact were made and returned in favor
of the defendants. The jury also returned a general verdict in
favor of the defendants. The plaintiff' thereupon filed a motion
to set aside the special findings of fact and tlie general verdict
of the jury in favor of defendants, and for judgment in favor
of the plaintiff. On the hearing of this motion the court set
aside the general verdict of the jury, adopted the special find-
ings of fact, and rendered judgment in favor of the plaintiff in
accordance with the prayer of his complaint. From this judg-
ment defendants appeal.
The main issue in the trial of this cause was this: Was the
note on which judgment was rendered in the district court on
the twenty-second day of May, 1889, in favor of defendant
Milen, and against the plaintiff in this action, included in and
settled in the settlement had between the said parties on the
twenty-first day of May, 1889, as alleged in the complaint,
and was it agreed at the time of said settlement that said suit
should be dismissed by said defendant Milen? This issue
wafi submitted to the jury in special findings Nos. 7 and 8.
They found in favor of the defendants, as will be seen by the
interrogatories Nos. 7 and 8, and the answers thereto, which
are as follows:
'^7. Was there ever any stipulation made or signed by the
parties to this action, or their attorneys, to dismiss the action
whioh was pending in this district court on the twenty-first
22 Daly v. Milbn. [Dec. T., 189»
day of May^ 1889^ in which Milen was plain tiff, and Dalj was
defendant? Answer. No. Jesse Haston^ Foreman.
^'8. Was there any oral agreement May 21, 1889, to dismiss
the case in the district court? Answer. No. Jesse Hasten,
Foreman.'^
The court approved and adopted these findings, as well as
others^ and included them in the judgment rendered in this
case. To authorize the court to render a judgment vacating
and restraining the enforcement of the judgment in contro-
versy as null and void it was necessary that it should be
shown and found as a fact that the note on which said judg-
ment was rendered had been paid and settled in the settlement
of May 21, 1889, between the parties to this suit. But the
finding was the other way, both by the jury and the court.
Before the court could hold the attacked judgment null and
void, order it vacated, and enjoin its enforcement, it must have
been shown, as a sine qua non, that it had been paid, or tliat
the claim on which it was recovered had been paid before its
rendition, as is the contention in this case.
The respondent moves this court to strike the evidence which
accompanies the record therefrom, for the reason that it was
not properly made a part of the record — ^that it was not made
a part of the record within the time, or in the manner^ pro-
vided by law. This same motion was made in the lower court,
and was overruled pro forma. This motion was not proper in
the lower court. If the evidence was not properly made a
part of the record on appeal for any cause, the respondent had
the right to have the record show this, with his objections, and
the lower court to properly certify thereto. Then, when the
case was filed in this court, his motion to strike out would have
been proper, for the reasons shown in the record, and certified
to by the trial court. But this is an appeal from the judg-
ment. It is only necessary for the determination of this case
to examine the judgment-roll, which is brought here by an
appeal from the judgment. The findings of fact by the jury
are a part of the judgment-roll (Code Civ. Proc., § 306), and
the court adopts these findings^ and incorporates them into
judgment appealed from. We think the findings of fact so
incorporated in the judgment are inconsistent with, and an-
14 Mont.] Parrott v. Kanb. 28
tagonistical to, the judgment. In trutb^ the findings of fact do
not authorise or support the judgment.
The judgment is therefore reversed, and the cause remanded
for a new trial.
Beversed.
Habwood and De Witt^ J J.^ ooncur.
14 23,
14 206
35« 248
3«» 194'
PAREOTT, Respondent, v. KANE bt al., Appellants. ^4 ^3j
LSobmitted Ootober 26, 1898. Decided Jannaij 16, 18M. ~
iVDaatm-'JBniry— Appeal bond— Defense of 9wreUe$.^An objection by the tiire-
tiee on an appeal bond, that the judgment from which the appeal wae taken
had^never been entered, and that the bond wae therefore void, comes too late
when nrged for the first time in defense to an action upon the bond, where the
bond recited an entry of the Judgment, which was affirmed on appeal after
eonnsel for both sides had appeared, no motion haying been made to dismiss
the appeal as premature, and the execution of the Judgment had been stayed
for over two years by Tirtue of such appeal bond.
Bnaamsa— Undertaking on appeaI^Defenses,—BxaetieB on a stay bond cannot
maintain in bar to an action instituted by the plaintiff in ejectment to reooyer
damages caused by a stay of execution of a judgment in his faror by yirtue of
such bond, that the damages occurred by reason of an order of the district
court recalling a writ of restitution which it had issued upon a remittitur from
this court affirming such Judgment, and staying all proceedings thereunder,
and which order was stiU in force, where the writ was stayed pending the
action on the bond and not upon any grounds affecting the Talidityof the
Judgment.
Appeal from Third Judicial Dittrid, Deer Lodge OownJty.
AcnoN on appeal bond. Judgment was rendered for the
plaintiff below by Woody, J. Affirmed.
Cb& A Whitehill, for Appellants.
L As a general rule a surety may set up in an action against
him any legal or equitable defense which would have been
available to his principal, and may introduce any evidence
tending to maintain such defense. He is not entitled to every
exception which his principal may urge, but any thing which
goes to the contract itself, such as fraud, violence, or whatever
entirely avoids the obligation, he may plead. (Brandt on
Suretyship, sec. 145; Baylies on Guarantees, p. 402, sec. 6;
24 . Parrott v. Eakb. [Dec. T., 1898
1 Wait on Actions and Defenses, p. 700; Jarraii v. Martin^ 70
N. a 459; Shreffler y. NodeOufer, 133 lU. 536; 23 Am. St
Bep. 626.)
II. If no judgment were entered in the case of Parrott
Y. Hungdburger, there was no appeal^ and this court was
without jurisdiction to affirm or modify such judgment.
An appeal taken in such case is abortive, and leaves the case in
the court below as undisturbed as though no attempt at appeal
had been made. The judgment of this court, made in said
action on the fourteenth day of May, 1890, was absolutely void.
There being then no affirmance of the judgment on appeal, the
sureties were not liable, and they should have been allowed to
make such defense. (Comp. Stats., div. 1, § 421, p. 174;
Rader v. Nottingham^ 2 Mont. 158; Murphy v. King^ 6 Mont.
30; Home of Inebriates v. Kaplan, 84 Cal. 486; McLaughlin v.
Doherty, 54 Cal. 519; Thomas v. AndersoUy 65 Cal. 43; Haynes*
New Trial and Appeal, sec. 183; Elliott's Appellate Procedure,
§ 19; Wells' Jurisdiction, § 10.) In this action the sureties
are not estopped by the recital of the bond. There being no
ap])ealy the statutory bond could not be given. The ap])eal
being void, the bond also is void, unless it be good as a com-
mon-law bond. It is not a common-law bond, for there is no
signature of the principal. The recital in the bond in this case,
that the defendant was about to appeal ''from a judgment made
and entered against defendant and in favor of plaintiff/' is not
the recital of any act of these sureties. It is not pretended that
they made and entered the judgment in the district court, or that
they knew any thing whatever about such entry. A person is
only estopi^ed from denying his own acts, not the acts of another.
(Brandt on Sureties, sec. 46; Ney v. Orr, 2 Mont. 559.) It was
admitted in the pleadings that there was a stay of proceedings
by order of the lower court, so that no execution could issue
on the judgment against the defendant and appellant in the
case of Parrott v. Hungelburger, 9 Mont. 626. It appean
from the bond sued on in this action, that the defendant,
Hungelbnrger, is the principal, and the defendants, Eane and
McDevitt, are sureties. It also appears therefrom that the'
condition of the bond is that the appellant, Hungelbnrger, will
pay the penalty thereof. The only liability of these defend-
14 Mont.] Pabbott v. Eanb. 26
ants, then^ is upon the default of the principal, and, until an
execution can be enforced in the original action, there can be
no liability on the bond, and we contend that whatever defense
the principal in the bond might have should also be available
to the surety, and that the lower court erred in disallowing
these appellants from making such defense. {Pamell v. Hatir
cock, 48 Cal. 462; Sharon v. Sharon, 84 Cal. 434; First NaL
Bank v. Rogers, 13 Minn. 407; 97 Am. Dec. 239.)
Edward Sdiai-nikow^ and Robinson & Slapleton, for Re-
spondents.
The instrument sued on in this case is a statutory undertak-
ing, not a bond. It has no principal. The contract of the
defendants is a separate one on their part. Its execution is
admitted, and the new matter set up by the defendants con-
stitutes no defense. The undertaking recites that the judgment
was entered, which is a special recital, and the defendants are
thereby estopped from asserting to the contrary. (Bigelow on
Estoppel, 308-09; HiU v. Burke, 62 N. Y. 111-17; Brandt
on Suretyship, §§ 42-44, 642; McMillan v. Dana, 18 Cal.
346; Murdoch v. Brooks, 38 Cal. 600; Hathaway v. Davis,
33 Cal. 161; De Castro v. Oarke, 29 Cal. 14; San Francisco
V. RandaU, 54 Cal. 408; Smith v. Fargo, 57 Cal. 158; Piefce
V. Wluting, 63 Cal. 538.) The foregoing authorities we think
pretty well establish what we contend for, that appellants are
estopped by the recital in the undertaking that the judgment
of Parrott v. Hungelburger, 9 Mont. 526, was entered, from
asserting the contrary. None of the authorities of appellants
touch this question. That the judgment was not entered is
the sole ground of complaint. This alone, and nothing more.
If it is so, that whatever defense the principal could interpose
the surety could. Had this been a bond, as it is not, and had
Hungelburger signed it, which she did not, and with the recital
it contains (that the judgment was entered), she would have
been also estopped by such recital, and could not have been
allowed to make the defense stricken out. The entry of the
judgment would have been no part of this record on appeal.
It was the judgment which was appealed from, and that judg-
ment constituted part of the record, not its entry, and the
26 Parrott v. Kanb. [Dec. T., 1893
undertaking reciting the entry of the judgment gave the
appellate court jurisdiction. Even did it not contain such
recital, their defense would not be good. Their contract was
to pay in a certain event, and that event occurred. {Builard
V. GUUtU, 1 Mont. 510; BahbiU v. Finn^ 101 U. S. 13; Oram
V. Weymovth, 54 Cal. 476.)
De Witt, J. — ^The plaintiff herein is the same person
who was the plaintiff in the case of Parrott v. HungMurger^
reported in 9 Mont 626. He brought this action against
John Eane and another, who were sureties on the stay bond
on the appeal of Parrott v. HungeJburger. See the report of
that ease for the facts therein. That action was in the nature
of ejectment, judgment being for the plaintiff. The bond given
by defendant thereon, on appeal, was that she would pay the
value of the use and occupation of the premises, not exceeding
five hundred dollars, pending the appeal. In this present
action on that bond, plaintiff recovered judgment for five
hundred dollars. The defendants appeal.
The complaint in this case sets up the fact of the judgment
in the district court in Parrott v. Hungelburger, for the resti-
tution and possession of the premises; also, the ap|)eal by the
defendant Hungelburger from the judgment, and the giving of
the undertaking on appeal by the persons who are the defend*
ants in the case at bar (which undertaking is set out in full as
an exhibit to the complaint). The complaint further sets up
the fact of the stay of proceedings by virtue of the undertaking,
and the keeping of plaintiff out of possession of the premises;
also, the fact of the affirmance of the judgment in Parrott v.
Sungelburger^ 9 Mont. 526, and the remUiUur to the district
court The undertaking on appeal in Parrott v. Hungelburger
recites as follows: "Whereas, the defendant in the above-
entitled action is about to appeal to the supreme court of the
territory of Montana from a judgment made and entered
against defendant, and in favor of plaintiff, in said action, in
said district court, on the thirtieth day of October, 1888, for
the restitution of the premises described in the complaint, for
damages, and for costs; and whereas, the appellant is desirous
of staying the execution of said judgment so appealed from^
14 Mont.] Parbott v. Kanb. 27
in 80 far as it relates to the possession of the land and prem*
1868 described in the complaint/^ The undertaking then goes
on to bind the sureties for the value of the rents and profits.
The defendants denied that in ParroU v. JSungelburger, 9
Mont. 626, any judgment was ever given^ rendered, or entered
in the district court in favor of plaintiff in that case. This
denial was by the district court stricken from the answer, the
court holding that defendants could not be heard to make it.
Defendants contend that this was error. We will examine
this contention.
Hnngelburger died pending the appeal of ParroU v. Hun^
gdburgeTf 9 Mont. 526, in this court, and Peter McDevitt,
administrator, who is also a defendant in the present case, was
substituted. It is not contended in argument by the appeU
lants but that the judgment in ParroU v. Hungelburger was
rendered, nor, as it appears, could it be so contended. In
the record of that case, in this court, a copy of the judgment
appears, formal in all respects, signed by the judge, and
indorsed, "filed and entered October 30, 1888." But appel-
lants say that, in fact, the judgment was not entered, and, if
not entered, the appeal was premature and a void proceeding,
and the undertaking given thereon was also void. Appellants
urge that, therefore, on the trial below, they had the right to
allege and prove that the judgment in ParroU v. Hungelburger
had not been entered.
A distinction has been made between "rendering" and "en-
tering" a judgment. That distinction is pointed out by Mr.
Justice Sawyer in Oray v. Paimer, 28 Cal. 416. Rendering
judgment is the judicial act of the court. Entering it is the
ministerial act of the clerk. A judgment is a judgment when
it is rendered. It is the rendering which makes it a judgment.
The entering makes a record of the judgment which the court
has rendered. (See, also, 1 Black on Judgments, § 106, and
cases cited.)
As to the time for taking an appeal from a final judgment
in an action commenced in the court in which the judgment is
rendered, it is provided by our statute that it shall be taken
"within one year after the entering of the judgment." (Code
Civ. Proa, § 421.) Construing the same language as is used
28 Pasbott v. Eanb. [Dec. T., 1898
in this seotioD^ the California supreme court has held that an
appeal would, on motion, be dismissed, if taken before the
entering of the judgment. {Thomaa v. Anderson, 55 Cal. 43;
McLaughlin v. Dougherty, 54 Cal. 519; Hayne's New Trial
and Appeal, p. 549.) The appeals in these cases were held to
be premature. There was no question but their subject matter
was within the jurisdiction of the court, but it was held that
thej had been brought into court before the time provided by
law. For this reason thej were dismissed upon a motion made
when the case came to the supreme court. But there is a very
different state of facts in the case at bar. No motion to dis-
miss the appeal was ever made in ParroU v. Hungdburger, 9
Mont. 526. In fact, the persons now complaining of the
entertaining of the appeal in that case are the persons who
gave the stay bond on that appeal, which was so entertained.
The appellants in this case stand in this position: They exe-
cuted and filed their undertaking in PajroU v. Hungelburger,
in which they solemnly recited that judgment had been made
and entered in that case. That judgment was brought before
this court for review. The clerk certified that it was the judg-
ment in that case, and, furthermore, certified that judgment had
been entered. Counsel for both sides appeared, and argued the
appeal twice in this court. Not a suggestion was made by any
one that the judgment had not been entered, and it is conceded
all through the history of the case that the judgment was in
fact rendered. After the decision in this court no motion for
rehearing was made. The remittitur was sent to the district
court, and filed therein. That remittUur was read in evidence
on the trial of the case at bar. It was a record of this court,
and became, by filing in the district court July 22, 1890, a
record of that court in that case. It appears thereby, and
therefore was in evidence on the trial of this case, that the
judgment in Pan^oU v. HungeUmrger was entered October 30,
1888. The decision of this court, affirming the judgment, was
upon May 4, 1890. The defendant in Pairott v. Hungelburger,
9 Mont. 526, enjoyed the stay of proceedings from October 30,
1888, to November 28, 1890, at which time a writ of restitu-
tion was issued. The plaintiff in the case of ParroU v. Hvmgd"
burger, 9 Mont. 626, against whom the appeal was taken, never
14 Mont.] Pabbott v. Kanb. 29
asked to have it dismissed, and the defendaDt, Hungelbaiger,
Dot only did not ask to have it dismissed, but was the active
agent in bringing the appeal to this court, and having it heard
The consideration for the undertaking was the stay of proceed
inga. That consideration was received. The stay was had.
After all this history of the proceedings, and when the plain-
tiff, who had been kept out of the possession for over two years
by virtue of the appeal and the stay bond, asks to be made
good for his damages, he is met with the objection for the first
time that the judgment had not been entered. We are of opin-
ion that the objection at this time comes too late.
The case of HiU v. Burke, 62 N. Y. Ill, was an action
upon an undertaking given upon appeal. The following re-
marks by the New York court of appeals, in deciding the
case, are in point, both as to the fiicts and the conclusions:
''The objections relate to the regularity of the appeal, and, I
think, are not well founded. It appeared upon the trial, by
the remittiiur of the court of appeals which was introduced in
evidence, and it is stated as a fact in the case that the remiUi-
tur showed, among other things, that an appeal was taken from
the judgment of the general term of the supreme court, referred
to in said undertaking, to the court of appeals, and that said
judgment was duly affirmed by the court of appeals, with costs,
and the proceedings duly remitted to the court below. This
was, I think, conclusive evidence that an appeal had been
taken by the filing of the notice with the undertaking, the
service of the same, and a copy of the undertaking, as the
code requires; and it was not necessary to establish, by other
and independent evidence, that these preliminary steps, which
are required to perfect the appeal, had been taken. It may
also be remarked that the complaint alleged that the judgment
appealed from was by the court of appeals duly affirmed, with
one hundred and thirty-two dollars and twenty-one cents costs;
and upon the trial it was admitted by the defendant's counsel
that the judgments referred to in the complaint were duly
recovered, as therein stated. But even if the provisions of
the code had not been complied with in the particulars named,
it was, at most, an irregularity; and the submission of the
caofie to the court of appeals by the respondent, without any
80 Parrott v. Kanb. [Dec. T., 1893
objection to the jurisdictioD, must be regarded as a waiver of
the filing and service, and obviate the allied defect/' (See,
also, Murdoch v. Brooks^ 38 Cal. 600; HaUiaway v. Davis, 33
Cal. 161; Fierce v. WhUing, 63 Cal. 538.)
Another point of appellants must be noticed. They con-
tend that plaintiff has not suffered any damages, caused by
a stay by virtue of the undertaking, but that the damages
occurred by reason of an order of the district court staying
execution, which order is still in force. In regard to that
order and the time when it was made, we observe the follow-
ing facts, as they appear in the record : The remittitur from
this court in Parrott v. Hungdburger^ 9 Mont. 626, was filed
in the district court July 22, 1890. The following November
28th a writ of restitution was issued. A year later, Decem-
ber 3, 1891, the writ of restitution was, on motion of defend-
ant, recalled and quashed, and all proceedings were stayed.
This action now before us on appeal was commenced March
27, 1891 — prior, it is observed, to the quashing of the writ
of restitution — but, when the case was tried, the stay of
December 3, 1891, was still in force. As to this, the appel-
lants urge and state in their brief, ''so long as there is an
order of the court in force staying execution on judgment
against the party who had appealed from a lower court, the
sureties on his appeal bond cannot be sued." Appellants, in
this connection, cite Pamdl v. Hancock, 48 Cal. 452; Sharon
V. Sharon, 84 Cal. 434; Fird Nat. Bank v. Rogers, 13 Minn.
407; 97 Am. Dec. 239. It is said in Pamdl v. Hancock:
''Before the defendants, as sureties of Porter, can be sued,
Paruell, their principal, must have himself become absolutely
liable to pay the judgment of the county court.''
But in the case at bar, the defendant, when this action was
commenced, was, and still is, absolutely liable on the judg-
ment in Parrott v. Hungdburger, 9 Mont. 526. Her liability
to restore possession of the premises was adjudged by the dis-
trict court, and was affirmed by the supreme court, and the
remittitur was sent down. The judgment is final and conclu-
sive. It is not suggested that it can ever again be questioned.
The liability of defendant in that case is settled, and nothing
remains but to enforce the judgment. Such were the facts
14 Mont.] Kleinschmidt v. Binzbl.
81
and conditions when this action was commenced. The keep-
ing of plaintiff out of possession, and absorbing his rents and
profits, and this wrongfully, were all complete facts at the
commencement of this action. But pending this action, and
before its trial in the district court, that court stayed the writ
of restitution, but not on any grounds that affected the valid-
ity or integrity of the judgment, or the rights of plaintiff, or
the liabilities of defendant thereunder. The liabilities of
defendant in this case had all accrued and were completed
before the action of the district court in recalling the writ
of restitution. We are therefore of opinion that the dam-
ages to plaintiff were caused by the stay of execution worked
by the undertaking.
The judgment is affirmed, with remittitur forthwith.
AJirmed.
PfMBEBTOK^ C. J.| and Habwood, J.^ concur.
KLEINSCHMIDT, Respondent, v. BINZEL,
LANT.
[Sabmitted Ootober 19, 1892. Bedded Jannsry 22| 1894.]
APPEIi-
tncmwti—Ses Judhaia— Judgment on demurrer,— Where a dexnnrrer hM been
Interposed to a complaint upon seTeral groundB, enibr&ciiig objections to form
M weU as to tlie merits, and is sostaiDed generally, and the pleader abides by
his pleading, and snifers jadgment, sach Judgment does not estop the same
party in another action, between the same parties or their privies, where it
neither appears by the record, or by extraneous eyidenoe, that the demurrer in
the former action was sustained on consideration of the merits; and, in the
absence of such showing, it will be presumed to have been sustained for
defects of form rather than upon each of the several grounds alleged.
Appeal from Fird Judicial District, Lewis and Clarke Oovmty,
Ejectment. Judgment on the pleadings was rendered for
the plaintiff below by Hunt, J; Eeversed.
Statement of the case by Mr. Justice Habwood:
There is but one question involved in this appeal^ namely,
what effect ought to be given to plaintiff's plea of former
adjudication, set up in bar of defendant's oross-oomplaint
interposed in this action?
J
82 ExBiNSCHMiDT V. BiNZSL. [Deo. T.| 1898
Eespondent oontends that by order of the court sustaining a
demurrer to a complaint in an action formerly instituted by
this defendant^ and no further proceedings having been taken
to avoid or reverse such rulings the rights and equities claimed
by defendant in and to the property in controversy set forth
in his cross-complaint in this action have been adjudicated and
determined against him, and that he is thereby estopped from
now asserting the same in defense of the present action. And,
respondent's position having been sustained by the trial court,
appellant, through this appeal^ seeks to controvert the correct-
ness of that ruling.
We will narrate, as briefly as consistent with deamesis, the
facts and proceedings which gave rise to this question, as
shown by the record.
This is an action in the nature of ejectment, whereby plain-
tiff seeks to recover possession of a certain described lot of
land, situate in Helena, Lewis and Clarke county, allying in
his complaint ownership thereof since April 9, 1889, and that
since that date he has been entitled to possession thereof; that
defendant, Binzel, on that date, wrongfully entered and took
possession, and has ever since withheld possession from plain-
tiff, and refused to deliver the same, although demanded.
The value of the rents and profits during the time of the
wrongful detention is also alleged. Upon which allegations,
plaintiff demands judgment for restitution of possession, and
for recovery of the value of the rents and profits. Defendant
made answer to this complaint, specifically denying all its alle-
gations, and in addition to such denial, by way of further
defense and cross-complaint, alleges that on June 5, 1880, and
for a long time prior thereto, defendant was in the quiet and
lawful possession of a certain tract of land, which is partic-
ularly described, and ^' which said lot embraced, and now
embraces, and includes within its exterior boundaries, all the
land referred to in plaintiff's complaint," and which said lot
defendant held in quiet, peaceable, and lawful possession on
June 5, 1880, by virtue of a contract whereby Deborah M.
Hoyt and her husband, E. M. Hoyt, agreed to convey said
land to this defendant| a copy of which contract is annexed
14 Mont.] Elbinschmidt v. Binzbl. 83
to and made a part of the answer and oross-oomplaint, aa
Exhibit A.
This contract mentioned as '^ Exhibit A/' purports to have
been executed and acknowledged by said Deborah M, and
E. M. Hojty as the parties of the first part, and said Binzeli
as party of the second part^ and sets forth that the parties of
the first part^ for a certain consideration mentioned, to be paid
at any time within two years from the first day of May, 1878,
with interest, eta^ covenant and agree with Binzel to convey
to him, or his heirs or assigns, by good and sufficient deed, the
tract of land mentioned, and defendant Binzel, on his part,
covenants to well and truly pay for said land as stipulated in
the contract, and it was further agreed between said parties
that the party of the second part was to have possession of said
premises until default of such payment for 60 days, when he
was subject to ouster.
Having introduced said contract, the answer and cross-com-
plaint proceeds to allege, that, by mutual agreement between
Deborah M. and E. M. Hoyt, the owners, and this defendant,
the said contract to purchase and convey '^was in full force
and virtue on June 5, 1880, and for a long time thereafter'';
that prior to said date defendant had caused to be placed on said
land, '' including the land described in plaintiff's complaint,''
divers permanent buildings and improvements, of the value of
$6,000, which were thereon June 5, 1880; that, by reason of
such improvements, defendant became, and was on that date,
financially embarrassed, and unable to pay the unpaid purchase
price then due on said lot to said Hoyts, together with a bal-
ance due and unpaid on the cost of erecting the buildings and
improvements on said lot, all aggregating $4,000; that, to pro-
care a loan of $4,000 to make such payments, defendant entered
into an agreement with William H. Weimer and Carl Klein-
Bchmidt, ^'of which said agreement plaintiff had full notice on
and after June 6, 1880," by the terms of which agreement
Weimer and Carl Eleinschmidt were to pay off and discharge
half of said $4,000 indebtedness, for an undivided half-interest
in the ownership of said lot, ^'and they further agreed to pay, as
a loan to defendant, the remainder of said $4,000 indebtedness^
to wit, $2,000, and thus procure, without delay, the title to
Vol. XIY.— 3
84 Klkinschmidt v. Binzsl. [Deo. T., 1893
Baid lot^ under defendant's aforesaid eontract to purchase the
same from Deborah M. and E. M. Hoyt'^; that on June 6,
1880, pursuant to that agreement^ ^'defendant conveyed to said
Weimer and Carl Kieinsclimidt the whole of said lot K, one
undivided one-half thereof absolutely, in consideration of their
agreement to pay one-half of said $4,000 indebted ness, and to
advance as a loan to defendant $2,000, to pay the other half of
said indebtedness, and the remaining undivided half of said
property was conveyed to said Weimer and Carl Kleinschmidty
to be by them held as security for said sum of $2,000 to be
advanced by them as a loan to defendant, wherewith to ^my
and discharge the remaining half of said $4,000 indebte<lness;
that said Weimer and Carl Eleiuschmidt did, on receipt of
said deed from defendant, execute and deliver to him their
agreement in writing to reconvey to defendant an undivided
half-interest and ownership in and to said lot E, and to all
buildings and improvements thereon, at any time within three
years from said June 5, 1880, on payment by defendant of
said $2,000 to be by them advanced as a loan as aforesaid,'' a
copy of which last-mentioned agreement is annexed to his
answer and cross-complaint, as a part thereof, marked ^'Ex-
hibit B."
Turning to Exhibit B, it is found to disclose an instrument,
in form a bond for deed, purporting to have been executed and
acknowledged by William H, Weimer and Carl Kieinsclimidt,
whereby they firmly bind themselves in the sum of $2,000,
lawful money of the United States, unto Belthaser Binzel,
conditioned as follows:
''The conditions of the above obligations are such that at any
time within three years from the date of this obligation; that is to
say, on or before the fifth day of June, a. d. 1883, that the said
B. Binzel shall pay, or cause to be paid, the sum equal to one-
half the indebtedness against that certain property known as
the 'Penobscot Brewery,' viz., one-half of four thousand dol-
lars, said sum to be paid, out of the profits of said brewery,
from the date of this instrument, or at any time previous to
that date heretofore mentioned that the profits shall exceed the
indebtedness. We bind ourselves to make and deliver to said
B, Binzel a good and sufficient deed« for the consideration ol
14 Mont.] £leiksghmidt v. Binzbl. 85
one dollar, in and to the undivided one-half interest in and to
that certain property known as the * Penobscot Brewery/ and
also one frame dwelling-house, one frame ice-house, one log
oooper-shop, one malt-kiln, also one-half interest in a certain
bill of sale of personal property, dated this date, from B. Bin-
sel to said first parties; all of the above-described property
being situated on lot £ in section 30, township 10 north, range
3 west, according to the plat of lot No. 2, as it is recorded in
Book U. S., pages 88 and 89, Lewis and Clarke county, Mon-
tana Territory, Records. In case said B. Binzel fails to make
such payment in the time above specified, tliis obligation to be
null and void; otherwise, to remain in full force and virtue.''
Returning to the answer and cross-complaint, it proceeds,
after introducing Exhibit B, to allege that plaintiff had " due
notice and knowledge" of said contract, shown in Exhibit B,
''at and long prior to the time of his purchase of said lot K,
or any interest therein, from William Weimer and Carl Klein-
schmidf ; that Weimer and Carl Kleinschmidt wholly failed
and refused to advance to, or on behalf of, defendant, or cause
the same to be done, said |2,000, or any part thereof, agreed
by them to be advanced to defendant, and to secure payment
whereof defendant conveyed to them an undivided one-half
interest in said lot K as security, as aforesaid; that pursuant
to their agreement with this defendant, which was duly trans-
ferred to said Weimer and Carl Kleinschmidt, the said Debo-
rah M. and E. M. Hoyt conveyed unto said Weimer and Carl
Kleinschmidt the whole of said lot K, by sufficient deed, dated
June 12, 1880, which deed was received by them under and
subject to their contract with this defendant, of whicli phn'ntiff
well knew, and of which he had due notice long prior to his
purchase of any interest in said lot, or any part thereof; that
whatever right, title, interest, or claim plaintiff has acquired
in lot K is subsequent and subject to, and with due notice of,
all the right, interest, claims, and equities of this defendant in
and to said lot, including all the land and premises described
in plaintiff's complaint; that plaintiff acquired all such inter-
est as he may own in said premises from said Weimer and
Carl Kleinschmidt, with due notice of their contract relating
thereto with defendant, and with full knowledge that they had
86 Klbinsohmidt v. Binzbl. [Dec. T., 1893
wholly failed and refused to pay, advanoe, or account for the
|2,000 which they agreed to advance as a loan to defendant,
and to secure which they acquired and held an undivided one-
half interest in said lot K^ including the land described in
plaintiff's complaint; that before June 5, 1883, to wit, June 4,
1883, ''defendant, desiring to purchase his peace and avoid
litigation, did duly tender unto plaintiff the sum of |2,000,
lawful money of the United States, under and in conformity
with the terms and conditions of said contract,^' marked
'^ Exhibit B,'' and with such tender demanded of plaintiff the
execution of a deed of conveyance, conveying to him an undi-
vided one*half of said lot £, including the land described in
the complaint, but plaintiff refused to accept said tender, or
execute such conveyance to defendant, and has ever since con-
tinued such refusal and neglect; that, ever since such tender,
defendant has been, and now is, ready and willing to pay to
plaintiff the sum of $2,000, or such sum as the court may
determine to be due on defendant's contract, and he now
tenders the same to plaintiff, in court, and continues his
demand for a conveyance of an undivided half-interest in said
property according to the terms of said contract marked
''Exhibit B,'' which plaintiff avers he has fulfilled, except in
so far as prevented from so doing by the wrongful acts of
plaintiff and said Weimer and Carl Kleinschmidt.
Defendant further avers that prior to all the dates and times
mentioned in plaintiff's complaint, and prior to all the dates
and times mentioned in his answer and cross-complaint,
defendant was, and is now, in the quiet and peaceable pos-
session of the whole of said lot K, ''embracing the lands and
premises described in plaintiff's complaint, as tenant in com-
mon and co-owner with said Weimer and Carl Eleinschroidt
and plaintiff," which possession is jointly and as tenant in
common with plaintiff. Wherefore, defendant prays judgment
quieting his joint ownership of a half-interest in said premises;
that an accounting be had between said defendant and said
Weimer and Carl Kleinschmidt, or plaintiff, ascertaining the
amount advanced by them and the amount due plaintiff pur-
suant to said oontiact| and that, on payment thereof| plaintiff
14 Mont.] Elbinsohmidt v. Binzbl. 87
be required to convey to defendant an undivided one-half inter-
est in and to said premises in controversy.
Plaintiff replied to this answer and cross-complaint^ alleging
that on June 22^ 1883, defendant Binzel commenced an action
hj filing in this court his complaint, which complaint is fully
set forth in ;the replication. It appears from that complaint
that Binzel, as plaintiff, on June 22, 1883, commenced an
action against Carl Eleinschmidt, Reinhold H. Eleinsohmidt,
James M. Bjan, Michael Jacobi, William H. Weimer, and
Albert Eleinschmidt, as defendants, alleging in his complaint
substantially all the facts set forth in the cross-complaint in
the case at bar, with the same exhibits attached to said com-
plaint of June 22, 1883, as are attached as Exhibits A and B
to the cross-complaint in this case, and thereon demanded sub-
stantially the same relief on behalf of Binzel as he now seeks
through his cross-complaint in the present case. The only
substantial difference between the complaint of Binzel in his
action of June 22, 1883, and his cross-complaint as a defense
in die case at bar, is that in the former action the complaint
went further, and in addition to the contracts evidenced by
Exhibits A and B, and the facts alleged in relation thereto,
the complaint of June 22, 1883, set forth a copartnership com-
pact alleged to have been entered into between Binzel and said
Weimer and Carl Eleinschmidt, whereby they agreed, on cer-
tain terms and conditions, to engage in and carry on the busi-
ness of brewing in the Penobscot brewery, situate on the
property in question, evidenced by a contract which was
attached to said complaint of June 22, 1883, as Exhibit C,
and that complaint alleged certain violations of the terms of
said copartnership agreement, and injuries to certain partner-
ship property, and also the destruction of said brewing business,
resulting from alleged wrongful acts of said Weimer and Carl
Eleinschmidt, alleged and set forth in said complaint, whereby
plaintiff Binzel claimed to have been damaged in a large sum,
for which he demanded judgment, along with the relief which
he demanded upon the agreements evidenced by Exhibits A
and B, and the facts alleged in reference thereto. There was
also a further exhibit annexed to the complaint of June 22,
38, Klbinschmidt v. Binzbl. [Dec. T., 1893
1883) which purports to be an assignment by Binzel to defend-
ants Weimer and Carl Kleinschmidt of the contract between
Binzel and said Hoyts for the sale and purchase of said land;
and in reference to that exhibit it was alleged that^ through
such assignment^ Weimer and Carl Kleinschmidt were enabled
to obtain][the conveyance of the title of said tract of land to tiiem
from said Hoyts. As to the other defendants named in said
complaint of June 22, 1883, namely, !Reinhold H. Kleinschmidt,
James M. Ryan, Michael Jacobi, and Albert Kleinschmidt, it
wa«| alleged that they claimed some interest in said premises
by way of pretended conveyances from, or as tenants of,- said
defendants Weimer and Carl Kleinschmidt, but that such con-
veyances or tenancy were acquired with full notice and knowl-
edge of the rights of Binzel in said premises.
Having set forth that complaint which Binzel filed in his
action of June 22, 1883, respecting the subject of this contro-
versy, the plaintiff further alleges, in his reply to the cross-
complaint in this action, that said complaint was demurred to by
defendants therein, by filing their demurrer February 6, 1884;
that such demurrer was sustained by the court, and plaintifiT
Binzel's bill dismissed, and judgment entered in favor of
defendants in said action. That plaintiff in the case at bar
''is successor to the aforesaid parties in and to the said property
therein described, and is now the lawful owner thereof, and is
entitled to the possession of the same, as set forth and alleged
in his complaint.'' And upon that showing, as a reply to
defendant's cross-complaint, plaintiff asserts "that by reason
of the premises the said right, title, and equity of said Binzel
has been adjudicated and determined, and by reason whereof
he is estopped from asserting his pretended claim to said
property," wherefore, plaintiff demands judgment as in his
complaint. And thereupon plaintiff moved the court for judg-
ment on the pleadings, which motion, after hearing, and
examination of the record of 1883, and the alleged damage for
wrongful withholding of possession having been waived, was
sustained by the court, and judgment rendered for plaintiff's
recovery according to the prayer of his complaint.
It appears from the record in the action of 1883 that two
14 Mont.] Elbinsohmidt y. Binzbl. ^ 89
demurrers to said complaint were filed. The first was over-
ruled, as the record shows. Thereafter, auother demurrer, of
February 25, 1884, was interposed by defendant Carl Klein-
schmidt, on the following alleged grounds:
^'1. Said complaint does not state facts suflScient to consti-
tute a cause of action. 2. Said complaint shows that the cause
of action against this defendant for damages, if any existed, is,
and was at the time of the commencement thereof, barred by
section — ^ c. — , entitled, ' Limitations of the Kevised Statutes
of the Territory of Montana.' 3. The three causes of action
set out in said complaint are not separately stated, as required
by the statute. 4. There is a misjoiner of parties — Rein-
hold Kleinschmidt, James M. Ryan, and Michael Jacobi — as
defendants herein. 6. There is a misjoiner of causes of action,
in this: An action for specific performance and damages. 6.
The complaint shows that the parties interested in the real
property are not interested in the damage suit. 7. Said com-
plaint shows that the parties against whom damages are claimed
have no legal or equitable title to the real property in contro-
versy. 8. No cause of action for specific performance is shown
in said complaint.^'
This demurrer was sustained, as shown by the following
record entry of March 10, 1884: "This cause having been
heard upon defendant's motion to strike out, and demurrers,
it is by the court ordered that the said motion to strike out,
and demurrers, be sustained, to which plaintiff duly excepted.*
Plaintifi* has leave to amend the complaint herein.''
Following that record entry is another of November 12,
1884, that: '' In this action, plaintiff abiding his complaint,
judgment is rendered in favor of defendants." And after-
wards, of December 4, 1886, another entry, that: ''In this
action, it is ordered that the judgment be entered nunapro
iwao the entry thereof made in tlie journals of said court
November 15, 1884."
No formal judgment was found in the records of the court;
but in the register of actions it is noted, of date December 4,
1886, that judgment was entered ''for defendant for costs;
amount, $17.20."
40 Klbinschmidt v. Binzel. [Dec. T., 1893
McCdnneU, Gayherg & Ounn^ for Appellant.
There is but one question presented by the record for oon«
sideration: Is the plaintiff's plea of former judgment as a bar
supported by the evidence? It is an elementary principle of
law that a former judgment will not operate as a bar to a sub-
sequent suit upon the same cause of action unless such judg-
ment was rendered upon the merits. (Freeman on Judgments^
§ 260. Cases hereinafter cited.) Does the evidence in this
case establish the fact that the judgment^ which is pleaded as
a bar^ was a judgment iipou the merits? The record discloses
that the judgment which is relied u|)on as a bar was rendered
npon a demurrer both general and special in character. This
demurrer was upon eight grounds. No evidence was intro-
duced to show, and the record does not disclose, whether the
demurrer was sustained upon one, two, or all of the grounds
therein stated. Under these circumstances it will be pre-
sumed by the court that the demurrer was sustained upon
the objections which did not go to the merits. {Griffin v.
Seymour, 16 Iowa, 30; 83 Am. Dec. 396; Bisaell v. Sping
Valley Tovmship, 124 U. S. 232.) The principle established
by these decisions is also in harmony with and based upon
the principle of law that where a judgment may have pro-
ceeded upon both of any two or more distinct facts, the party
desiring to avail himself of the judgment as conclusive evi-
dence upon some particular fact must show affirmatively that
it went upon that fact, or else the question is open to a new
contention. (Dygert v. Dygert, 4 Ind. App. 276; Lewis v.
Ocean etc. Pier, 125 N. Y. 341; Bdl v. Meiiifield, 109 N. Y.
202; 4 Am. St. Eep. 436; Russell v. Place, 94 U. S. 606;
Packet (Jo. V. SicUes, 5 Wall, 580; Woodland v. Newhall, 31
Fed. Rep. 436; Sawyer v. Woodbury, 7 Gray, 499; 66 Am.
Dec. 618; McDowell v. Langdon, 3 Gray, 513.) The plea
of a former adjudication as a bar cannot be established by
inference and presumption, but must be supported by posi-
tive evidence [cases last cited]. The plaintiff having failed to
show that the judgment relied upon as a bar was rendered
because the complaint did not state a cause of action it will be
presumed that the judgment was not a judgment upon the
14 Mont.] Elbinschmidt v. Binzel. 41
merita. No proof having been offered by plaintiff to show
the fact decided by the judgment which is pleaded as a bar,
the whole matter is open for further litigation. Where a
demurrer is sustained and the parties are left in court a judg-
ment rendered upon such demurrer is not a judgment on the
merits. (Herman on Estoppel, § 274.) Considering the whole
reoord| then, the demurrer must have been sustained because of
formal defects, and the judgment rendered cannot be pleaded
as a bar. (Herman on Estoppel, § 274.) We therefore sub-
mit, that, under the principles of law stated and in the light of
the facts^ the judgment should not be regarded as a judgment
on the merits, and the plea in bar is not well taken. But if
the judgment was rendered upon the ground that the com-
plaint did not state a cause of action it would not be a bar to
the cause of action set forth in the cross-complaint^ if it appears
that there are different and additional allegations in the cross-
complaint, and the cause of action stated in the cross-complaint
is good in substance. (Freeman on Judgments, § 267; City
of Loa Angdea v. MeUus^ 59 Cal. 452; Oilman v. Rivesy
10 Pet. 301; Qensh v. PraU^ 6 Minn. 61; Lampen v. Kedge-
win, 1 Mod. 207; Moore v. Dunn, 41 Ohio St. 62; Wdls
V. Moortj 49 Mo. 229; Oovld v. JEvansville etc. R. R. Co., 91
U. S. 526; Herman on Estoi)pel, § 274; City of Aurora v.
Wed, 7 Wall. 82.) The cross-complaint differs from the com-
plaint in the former action in that there are different allega-
tions and a different cause of action is stated as hereinafter
shown. By an examination of the opinion in the case of
Gould V. Evansmlle R R. Co., 91 U. 8. 526, relied upon
by respondent in the court below, it will be noticed that the
record showed that the judgment was rendered on a general
demurrer and that the allegations of the second declaration did
not differ from those of the first. The case is not analogous
to the case at bar in any particular. Is the cause of action
stated in the cross-complaint the same cause of action stated in
the complaint in the former case? {Terry v. Hammonds, 47
Cal. 32.) The first cause of action was for specific perform-
ance, and for a trespass, while the second cause of action, or
the cause of action under the cross-complaint, is a cause of action
to quiet title, or, in other words, to have the deed of the one-
42 Elbiksohmidt v. Binzbl. [Dec. T., 1893
half interest which was made and given as security for the pay-
ment of a debt declared a mortgage and canceled. (Ga&sert v.
Bogk, 7 Mont. 686; Kleinsclimidi v. Kleinsdimidt, 9 Mont 477.)
In the one cause of action the defendant sets up an equitable
title^ and asks to have a specific performance of a contract to
convey to him the legal title^ while in the present action the
defendant asserts the legal title to said property^ and asks to
have his legal title quieted.
The distinction between the two causes of action is this: In
the one there was an absolute conveyance with a contract to
reconvey^ while in the other there was a conveyance which
was in reality a mortgage. The fact that makes the convey-
ance in the one case a mortgage is the existing indebtedness
between the parties^ and it is the nonexistence of the indebted-
ness that makes the conveyance and the contract in the other case
a contract to recouvey. (3 Pomeroy's Equity~Juri8prudence,
sec. 1196.) It thus appears that the two causes of action are
different, and that they require different evidence to sustain
them. Under these circumstances the causes of action in the
cross-complaint is not res judicata^ (Herman on Estoppel,
§§ 102 and 106; Freeman on Judgments, § 262; 2 Black on
Judgments, § 610; Washingixm do. Packet Oo. v. Sickles, 24
How. 333; Linne v. StoiU, 44 Minn. 110; Washington etc Packet
Co, V. SiokUsy 5 Wall. 580.) If two causes of action require
different evidence to sustain them they cannot be the same.
(Norton v. Huxley, 13 Gray, 286; Freeman on Judgments,
§ 269; Herman on Estoppel, § 96; Stotoell v. C/iamberlain, 60
N. Y. 272; Gark v. Blair, 14 Fed. Rep. 812; Marsli v. Mas-
terton, 101 N. Y. 401.) It is claimed that this is not one of
that class of cases where extrinsic evidence is admissible to
show the judgment conclusive, which must be shown by the
party seeking to-avail himself of a judgment as a bar. The dis-
tinction is drawn between judgments rendered upon issues of
law and judgments rendere<1 upon issues of facts. No cases
are cited in which this distinction is recognized, and we believe
none can be found. On the other hand, the case of Griffin v.
Seymore, and other cases cited in onr former brief, clearly show
that no such distinction exists. (See, also, Foder v. ** The
Siehard Busked;' 100 Mass. 409; 1 Am. Bep. 126; Edep y.
14 Mont] Eleinschmidt v. Binzbl. 43
Larsh, 21 Ind. 190.) It is also claimed that the judgment in
the former case dismisseil the complaint^ and that as the case
was an equity case^ and the dismissal absolute^ the judgment or
decree is a bar to the present action. In answer to this, it is
sufficient to call the attention of the court to the record, which
merely shows that judgment was ordered. No judgment or
decree is made a part of the record, and therefore it does not
appear whether the judgment or decree, whicli was entered,
dismissed the case absolutely or without prejudice, or at all*
To support the contention of respondent, it is necessary for the
court to indulge in the presumption that the judgment, which
was entered, was a judgment dismissing the case absolutely.
Such presumption is unwarranted. (Black on Judgments,
§ 115.) If, however, the former case was dismissed absolutely,
under the facts as they appear of record, such dismissal would
not be a bar to the present action. {Cluise^s easey 1 Bland's
Ch. 206; 17 Am. Dee. 277; 8mUh v. AiUd, 31 Kan. 262; Foa-
terv. ''The Richard Busieed/' 100 Mass. 409; 1 Am. Rep.
125; Keeler v. Stolzenbaoh, 20 Fed. Rep. 47; Lore v. Truman,
10 Ohio St. 45.) It is also claimed that a judgment sustain-
ing a demurrer upon grounds which go to the form rather than
the substance is a bar to a future action. This is not the law
to-day. (2 Black on Judgments, § 693; Hughes v. United
8iaie8j 4 Wall. 232; Terry v. Hammonds, 47 Cal. 32; Oray v.
Dougherty, 25 Cal. 266; Lea v. Lea, 99 Mass. 403; 96 Am.
Dec. 772, and note.) It is claimed that section 243 of the
first division of the Compiled Statutes of Montana conclu-
sively determines the question that the judgment relied upon
as a bar was a judgment upon the merits. Section 243 is the
same as section 582 of the Code of Civil Procedure of Cali-
fornia. Notwithstanding this provision the courts of Califor-
nia have universally held that a judgment which does not go
t<o the merits of an action, even though such judgment does not
come within the provisions of the section preceding, is not such
a judgment as will operate as a bar to a future action. {Qray
V. Dougherty, 25 Cal. 266; Terry v. Hammonds, 47 Cal. 32;
Ferrea v. Ouibot, 63 Cal. 654; (My of Los Angeles v. Melius,
69 Gal. 444.)
44 Klbinschmidt v. Binzel. [Dec. T., 1893
Ibole & WaUaoe^ for Respondent
The complaint in the original case and cross-complaint, and
answer thereto, in tliis case present exactly the same facts and
comprise emphatically the same transactions and cause of action*
The only difference being in the legal deduction made by the
pleader, and particular relief demanded. The prayer for gen-
eral relief being the same in both. When the same facts are
thus pleaded, the rules of evidence being the same, the same
evidence is of course admissible in both cases. Hence the
same questions could have been litigated. {Dunham v. Botoer,
77 N. Y. 76-79; 33 Am. Rep. 570; Malloney v. Horan, 49
N. Y. Ill; 10 Am. Rep. 335; Cdltina v. BenneU, 46 N. Y.
490.) The formal relief demanded in the complaint or cross-
complaint is not controlling in determining the nature of
the action. Any relief may be had consistent with the facts
pleaded. It necessarily follows that when the same facts are
pleaded the same relief would be afforded. {Hale v. Omaha
Nat, Bank, 49 N. Y. 626; Pomeroy's Remedies and Remedial
Rights, § 580; Bell v. Merrijield, 109 N. Y. 210, 211; 4 Am.
St. Rep. 436.) It being axiomatic that if the same facts are
pleaded in both cases the same evidence was admissible and
the same relief could have been had in either, there is but one
question presented in this case worthy of consideration: Is a
judgment upon a general and special demurrer, in an equity
cause, conclusive as a bar as to all matters that might have been
litigated upon the complaint in the action, or an amended com-
plaint that might be properly filed therein. It is claimed that
the court cannot determine from the record whether the de-
murrer was sustained upon the special grounds, the ones going
to the merits of the action. This is not that class of cases
where extrinsic evidence is admissible to show certain fiicta,
making the judgment conclusive, which must be shown by the
party seeking to avail himself of a judgment as a bar. If sus-
tained upon either, it was the duty of the defendant to amend
or correct the error, if any, upon appeal. If he fails to do
this, the law fixes the effect of the judgment to be co-extensive
with what might have been accomplished had that course been
pursued. The former class of cases depend upon questions of
&ct which it became necessary to determine in the progress of
14 Mont.] Klbinschmibt v. Binzel. 45
the trial, and which did not appear /rora the pleadings. The
latter depends upon legal propositions raised by the demurrer
and wbioh might be obviated hj amendment^ or corrected on
appeal^ and upon which extrinsic evidence is inadmissible*
No remedy is afforded by oral proof, for the reason that it
became the duty of the defendants, if the demurrer was sus-
tained for cause which was amendable, to amend ; if on account
of the error of [the court in sustaining it, to appeal and correct
the error, and if on formal matter, to have the judgment so
state. If he does neither the presumptions are that no sych
reasons exist as will admit of amendment Hence the rule
must necessarily be different, the burden being upon the defend-
ant in the first instance, his failure to act does not shift it to the
plaintiff, but makes it conclusive against him. The judgment
is based upon the defendant's failure to proceed further, and the
grounds of demurrer cease to longer be important. If he de-
sired to have the judgment such as would operate without pre-
judice to another action he should have acted accordingly, and
had the ground upon which the demurrer was sustained stated.
Tested by the rule invoked by appellant, if the grounds upon
which the demurrer was sustained must be collected from the
record, how does the case stand? Does the record show a
prima facie case of estoppel or bar? If it does, it devolves
upon defendant to rebut the presumption by showing that the
judgment was rendered upon formal and not substantial causes.
The demurrer was based upon three distinct grounds — Mis-
joinder of parties, misjoinder of causes of action, and insuffi-
ciency of the facts stated. We need not call the attention of
the court to the practice so universal and so familiar to both
bench and bar, that leave is given upon request to amend in
either of the instances mentioned. The leave therefore given
to amend, of itself, does not, in our judgment, in any manner
suggest the ground upon which the demurrer was sustained,
or the judgment rendered. To illustrate: If it was sustained
as to a misjoinder of parties, none but those improperly joined
could have taken advantage of it, and the demurrer would
have been sustained as to them, and the case permitted to pro-
ceed as to the others. Hence the judgment would have been
aooordingly. We might, thereforei well contend| all intend*
46 Klbinschmidt v. Binzbl. [Dec. T., 1893
ments being in favor of the regularity of the judgment^ that
it was not rendered upon that ground^ bat, on the contrary,
that it was based upon grounds that warranted a recovery by
all the defendants, which necessarily included those who were
proper parties to the action; if it was, as in this case, rendered
in favor of those properly joined, the presumption logically
follows that it must have procee<]ed upon the assumption that
no cause of action was stated against them. Besides, if law is
a science, the presumptions would be that the judgment was
not erroneous. If, to avoid a bar, it is necessary to conclude
that there was error, this concession must certainly be based
upon the fact that the error committed affirmatively appears.
Assuming that defendant in the former action, standing as he
did upon the judgment on the demurrer, had appealed, would
not the court above pass upon all the grounds presented by it?
It would assume that as the demurrer was sustained generally,
that the lower court had passed upon it generally and not
overruled it as to some of the causes stated. The same reason
and inference are as applicable to the second ground of the
demurrer. Being sustained generally it will be assumed that
the objections were properly taken, so as to properly uphold
the judgment. Had the court not sustained the demurrer gen-
erally, the presumptions are that it would have so stated. It
stands like a general verdict when many issues are involved.
It prima fade includes them all. It is claimed by appellant
that the judgment could not iiave been rendered upon the third
ground of the demurrer, because leave* was given to amend.
We do not think this is tenable. The practice in this state
does not admit of such confusion. That leave is given to
amend under such circumstances is a rule with which the
court and the practitioner are familiar. To illustrate: Sup-
pose A should sue B upon a contract which, among others,
provided that after the performance of all the conditions upon
A's part, and the delivery of a statement in writing with his
signature thereto, B would at once execute to A a deed for cer-
tain premises. A brings a suit to comi)el the conveyance from
B to him, but fails to allege the delivery of the instrument
mentioned. B demurs to the complaint as not stating facts
sufficient to constitute a cause of action, and the court sustains
14 Mont.] Kleinschmidt v. Binzkl. 47
thedemarrer. A asks leare to amend, and leave is given. Is
not this the usual practice in this state? Cannot A amend
and set op the additional fact ivhich shows a breach of the
condition of the contract, places B in default, and gives rise
to a cause of action? Is the fact that leave was given to
amend presumptive of the grounds upon which the demurrer
was sustained, in the one case any more than in the other?
We respectfully submit that upon logical principles the pre-
sumptions are that the demurrer was sustained on the three
grounds presented by it. In so far then as the leave to
amend is concerned, it raises no presumption either the one
way or the other under our practice and the rules of the
courts. In the case at bar leave was given to amend, and
this was his remedy. If^ as claimed, the complaint may have
been amendable, he refused to go further and amend, or else he
was unable to so amend as to bring himself within the ruling
of the court. At all events the judgment was based upon the
ground that he would not or could not go further. In this
the case at bar differs from all those cited by counsel for appel-
lant. He cannot ignore the leave given to amend if he could,
or consequences that result if he could not. Plaintiff could
not amend without leave, he would not, or could not, amend
with leave, and will not, after judgment, be permitted to main-
tain a second action without the judgment shows that it is
without prejudice to another action, i. e., a leave to sue again.
The judgment, therefore, in this case is based upon more than
the ruling upon the question raised in the demurrer. It com-
prises a judgment upon the merits, and is to the effect that the
defendant under the leave given could not, or would not, amend,
the former importing that he had no cause of action, and the
latter that he abandoned it, if he had. It is conclusive in
either case, and is a bar to a second action based upon the
same facts. In addition, therefore, to the elements involved
in a judgment u[K)n a demurrer, whether general or special,
the judgment here comprises whatever follows by a failure to
amend upon leave given therefor. The failure, under such cir-
cumstances, to amend must n^ative the presumption that he
oould amend, and if the law is as claimed, devolve uiK>n him
at least to -prove dehar$ the record that he oonld. We emphati-
48 Elbinschmidt v. Binzel. [Deo. T., 18Uo
oallj insist that in either event, whether he conid amend, and
would not or did not because he could not, the judgment is
conclusive of the cause of action included in the former suit,
and is a bar to the preseut. The judgmeut under such cir-
oumslances must conclude the contention. It cannot be rea-
sonably presumed that the parties were still left in court,
under the judgment rendered in the former suit, or that by it
leave was given to again litigate the same facts tendered by it.
Had the demurrer been overruled generally it would follow
that none of the grounds presented by it was meritorious;
having been sustained generally it will be assumed, at least
until the contrary appears, that all the objections were well
taken. Besides, according to the numerous decisions under the
code, while the practice act controls, the principles applicable
to causes in equity nevertheless prevail. Hence by analogy,
the sustaining of the demurrer and the refusal of the com-
plainant to go further in the former suit necessarily involves
an abandonment by him, and is tantamount to a dismissal of
the cause. We take it, therefore, that the principles of equity
still adhere to the character of judgmeut thus rendered. That
unless it would amount to a dismissal without prejudice it is
a bar to a retrial of all the facts which were presented by the
complaint. It is in effect a dismissal of the bill for want of
merit acquiesced in by the complainant and without any reser-
vation of his rights to further litigate the same questions which
were presented. (Freeman on Judgments, § 270; Fooie v.
Oibbs, 1 Gray, 412; 2 Black on Judgments, p. 868, § 720;
Tankeraly v. Pettis, 71 Ala. 179.) If the party against whom
a ruling is made on a demurrer wishes to avoid the effect of
the demurrer as an admission of the facts in the pleadings
demurred to, he should seek to amend his pleadings, or answer,
as the case may be. Leave for that purpose will seldom be
refused by the court upon a statement that he can controvert
the facts by evidence which he can produce. If he does not
ask for such i)ermission the inference may justly be drawn
that he is unable to produce the evidence, and that the fact is
as alleged in the pleading. Courts are not established to
determine what the law might be upon possible &cts, but to
adjust the rights of parties upon existing facts; and when their
14 Mont.] Kleinschmidt v. Binzel. 49
jurisdiction is invoked parties will be presumed to represent in
their pleading the actual^ and not supposable^ facts touchiug
the matters in controversy. The law on this subject is well
stated in Gould's Treatise of Pleading, chapter 9, part 1, section
2. (See, also, Bouc/iard v. Dias, 3 Deuio, 238; (hfin v. Knotty
2 Greene, 582; 62 Am. Dec. 537; Birckhead v. Brawriy 5 Sand.
134; WhUe V. Simonds, 33 Vt 178; 78 Am. Dec. 620.) It
therefore follows that leave being giveu to amend if defendant
could do so, his failure to amend, and judgment accordingly
must be conclusive as to the facts stated, and also that he could
not amend under the. evidence at his command. This is also
in accord with the doctrine announced in 2 Black on Judg-
ments, page 849, section 710. (See, also, 0<mld v. Evansville etc.
R. H. Oo,, 91 U. S. 526.) In this case the court could not
have supported the demurrer as to the misjoinder of the par-
ties so as to render the judgment in favor of all the defend-
ants, and not as to those which were not properly joined. (17
Am. & Eng. Ency. of Law, 608; Hwion v. Sledge, 29 Ala.
478; Bragg v. FaUerson, 85 Ala. 233; Bloomingdale v. Durell,
1 Idaho, 33; RidUmyer v. Ricktmyer, 50 Barb. 65; Brovmaon
V. Gifford, 8 How. Pr. 389; Johneon v. Davis, 7 Tex. 173;
Emmons v. Oldham, 12 Tex. 18.) It necessarily follows, there-
fore, that in order to render a general judgment in favor of all
the defendants the demurrer must be sustained upon such
ground as will justify such a judgment. All the parties can
join in that branch of the demurrer which makes an insuffi-
cient complaint grounds for a judgment on demurrer. The
judgment will, therefore, be construed accordingly. (Hayne
on New Trial and Appeal, §§ 284, 285.) The very object
of the action being to get at the merits of the contention, and
the organization of the courts, and the enactment of the laws,
being in furtherance of that purpose, the presumptions are
that the ruling was upon a point involving the merits unless
by the terms of the judgment it is shown to be based upon
formal matters. {Bisaell v. Spring Valley Township, 124 U. S.
232.) So here under the demurrer the defendants admit all
the facts set np in the former complaint. Leave was given to
amend, and plaintiff in the case would not, or could not, do so.
Judgment was rendered accordingly, which must be construed
Vol, XIY.~i
50 Klbinschmidt v. Binzbl. [Dec. T., 1893
to be coextensive with the admission and become a bar in so
far as the sufficiency of those particular facts are concerned.
These identical facts constitute the cause of defense here,
involve the same transaction, and the sufficiency of them will
not be reheard except on appeal. {Oregonian By. Cb. v. 0?'e-
g<m By. and Nav. Co., 27 Fed. Rep. 283.) The case of People
V. Stephens, 51 How. Pr. 235 et^seq., among others, presents
the precise question, and emphatically determines the same in
favor of the position contended for by the respondent. In
that case, like this, the demurrer was based upon three grounds:
The misjoinder of parties defendant, misjoinder of causes of
action, and an insufficiency of the facts pleaded; the court sus-
tained it generally, and rendered a general judgment upon such
ruling; a second action was instituted, and the judgment pleaded
as a bar; it was contended, as it is here contended, that the
presumptions were that the judgment was based upon the
grounds of misjoinder and not upon the sufficiency of the facts
alleged, and the court emphatically decides that the pi^ump-
tions are that the judgment was based upon the latter. In
deciding the question the court says: ''The judgment of a
court of competent jurisdiction upon a question directly at
issue between parties, unless reversed, forever concludes and
estops all parties to the action and those in privity with
them from questioning its accuracy or justice in another action.
In support of the principles announced in the foregoing
opinion, we cite: House v. Mullen, 22 Wall. 42; Bouchaud v.
Bias, 3 Denio, 238; While v. Simonds, 33 Vt. 178; 78 Am.
Dec. 620; Foote v. Oibbs, 1 Gray, 412; Jenniaon v. Inhain
itants, etc., 13 Gray, 544; Day v. ValUlte, 25 Ind. 42; 87 Am.
Dec. 353; Champion ▼. Plymouth Qm. Society, 42 Barb. 441;
Bwivell V. Knight, 51 Barb. 267; Yonkera etc Ins. Cb. v.
Bishop, 1 Daly, 449; Sheldon v. Edwards, 36 N. Y. 279.
It is claimed that the plea of a former adjudication as a bar
cannot be established by inferences and presumption, but must
be supported by positive evidence. While this may be true
with reference' to questions of fact, which may easily arise
where the issue is to be determined upon extrinsic testimony,
it cannot have any application where the presumptions are to
be gained from the record, where the judgment is pleaded as a
14 Mont.] Klbinschmidt v. Binzbl. 51
tecliuical bar. In the latter case, as shown by the anthorities
cited by the appellant {Griffin v. Seymour, 15 Iowa, 30, 83
Am. Dec. 396, and BisaeU v. Spring VaUey etc., 134 U. S. 225),
the court determines the question upon the presumptions that
arise from the record before it. While, in the former, evidence
outside the record is introduced to show what was actually
tried, it is claimed by appellant that the cause of action
stated in the former suit is not identical with the cause of
action set up in the answer and cross-complaint in this suit.
Here, precisely the same instruments comprised the cause of
action, and the only difference is the interpretation put upon
them by the pleader. He now claims under the deed and con-
veyance, and construes it a mortgage instead of an agreement
to reconvey. These are bare legal deductions, while the court
could afford any relief consistent with the facts pleaded.
(Pomeroy's Eemedies and Bemedial Kights, § 580.) If the
instruments which are construed a mortgage are based upon
an actual conveyance by deed of the legal title to the mortgagee,
and a separate defeasance from the mortgagee to the n^ortgagor,
it necessarily follows, that, upon a tender of the amount due
upon the mortgage, it would become the duty of the mort-
gagee to reconvey the legal title thus conferred by the deed to
him. And this was precisely what was asked in the former
case, and would lead to precisely the same results in the case
at bar. We may further add, in conclusion, that if the answer
and cross-complaint are based upon the same facts which
existed and were stated in the former complaint, that the same
evidence is admissible in the latter, and the same relief may be
had. {Walker v. Tiffin Q<M etc. Min. Co., 2 Col. 89; Gra-
ham V. Stevens, 34 Vt. 166; 80 Am. Dec. 675; Jones on Mort-
gages, § 244.) Again tlie provisions of our statute, section
243, that every judgment, whether upon demurrer or other-
wise, is made a judgment upon the merits, except those men-
tioned in section 242, ought to be conclusive of this question.
Habwood, J. — ^Defendant having alleged in his crofiB-eom-
plaint those contracts and transactions concerning the land in
controversy, shown in the above statement of the case, demand-
ing afiBrmative relief, plaintiff set up in bar thereof the oum-
52 Klbinschmidt v. Binzbl. [Dec. T., 1893
plaint of defendant in an action which he commenced in 1883;
wherein he alleged substantiallj the same facts^ and demanded
substantially the same relief^ as in his cross-complaint in the
present action. To which complaint in the defendant's action
in 1883 demurrer was interposed and sustained, and no further
action was taken therein. And the plaintiff here, who was one
of the defendants in the action of 1883, avers that he has suc-
ceeded to the rights of all the other defendants in that action.
Wherefore, he insists, that, bj said proceedings in the former
action, the right, title, and equity claimed by Binzel, defendant
here, in and to tlie property in controversy, has ^^been adjudi-
cated and determined, by reason whereof he is estopped from
asserting his pretended claim to said property.'' In this posi-
tion plaintiff was sustained by the ruling of the trial court.
Appellant has made some attempt to point out differences
or distinctions between the complaint of Binzel in the action of
1883 and his cross-complaint in the present action. But a
careful comparison of these pleadings we think discloses a sub-
stantial similarity in the facts alleged and relief sought; with
this exception, that the complaint of 1883 went further than
the cross-complaint in this action, and contained allegations in
reference to an alleged copartnership compact engaged in
between Binzel and certain of those defendants, and a viola-
tion thereof, and other grievances, for which he demanded a
large amount of damages. As to those matters the cross-com-
plaint in the present action is silent. But in so far as it goes in
alleging the contracts and facts, on which Binzel claims rights
of ownership and possession in and to the tract of laud in con-
troversy, the cross-complaint to this action is substantially the
same as his complaint of 1883 on that branch of the case.
The authorities support the proposition urged by respondent
that if the alleged cause of action is submitted on the merits
by demurrer, admitting the facts alleged, but placing over
against them in the judicial scale, the proposition of law that
the facts pleaded and thus admitted are insufficient to warrant
judgment in favor of the pleader; and upon due weighing of
the law and the facts, those facts are adjudged insufficient by
sustaining the demurrer, and this ruling is allowed to stand;
those facts thereby pass under the rule of ihinga adjudicated;
14 Mont.] Klbinschmidt v. Binzel. 63
and the party against whom each adjudication proceeds^ as well
as his privies and representatives, are thereby barred from
again asserting the same facts in another action pertaining to
the subject as effectually as though such facts were found from
the proof or admitted ore ienvs in the course of the trial. Such
appears to be the rule deducible from the authorities, without
much conflict {Gould v. EvanamUe etc. R. JB. Q>., 91 U. S.
526; BmeU v. Spnng Valley y 124 U. 8. 225; QHffin v. %-
moavy 15 Iowa, 30; 85 Am. Dec. 396; JBoWrwon v. Howard^ 5
Cal. 429; Bouchaud v. Dicw, 3 Denio, 238; People v. Stephen,
61 How. Pr. 235.)
But this rule should always be stated and applied with due
regaixl to some modifying conditions, which it is not permitted
to violate. Thus, when the pleader has submitted to the rul-
ing of the court on demurrer, against the sufficiency of the ,
cause of action or defense, as stated, that ruling would not bar
him or those in privity with him from again asserting the same
facts, accompanied by additional allegations which complete
the statement of a good cause of action or defense. {Gould v.
Evansville etc. R. JR. Ck>., 91 U. S. 526.) Nor where an action
is commenced to efiectuate a certain purpose — such as specific
performance or to obtain injunction — and demurrer is inter-
posed and sustained on the ground that the complaint does not
show facts sufficient for such action — ^that is, to invoke such
relief — such ruling would be no bar to an action for the proper
remedy. It being pointed out in the consideration of such
demurrer that, although the plaintiff, for instance, alleges an
agreement for the sale and purchase of a piece of real prop-
erty, and payment of part, or even all, of the purchase price,
and the breach of such agreement by the vendor; still, if no
other equities were shown, the court would hold that the com-
plaint, while good for damages, is indeed insufficient to sup-
port a decree for specific performance {Boulder Valley etc. Ck>.
V. Famhamf 12 Mont 1), and would therefore sustain the
demurrer. It may be said that this would be on the ground
of want of jurisdiction. But that arises because of insuffi-
cient showing of facta to support the relief asked. The pleader
would have mistaken his remedy, and, under a system where
courts of law and equity were separate, the demurrer in such
54 Klbinsghmidt v. Binzei.. [Dec. T., 1893
oaaea would prevail, and the party be remitted to the proper
court and action for redress. And under our united jurispru-
deuce, where equitable and legal remedies are administered in
the same court, and frequently in the same action, the demurrer
in such a case, as instanced, would undoubtedly prevail, because
the relief asked could not be granted on the facts stated; and
although the court might have jurisdiction under our united sys-
tem to grant other relief, it would probably not be forced upon
the plaintiff until he had shaped his action to that end. But
when he came into court with his suit for damages, it would
be found that he pleaded the same transaction and breach
whereby he would allege he was damaged in a certain sum,
for which he would ask judgment. Likewise, if the action
was commenced prematurely, as appeared on the face of the
complaint, it would be held insufficient on demurrer for that
cause. {Shddea v. Edwards, 35 N. Y. 286.) If it were held,
in such cases, that the order sustaining the demurrer devital-
ized the facts first pleaded, it would prevent setting up those
facts in another action, at the proper time, or in the proi)er
form, and for available relief. So it is said by eminent author-
ity in considering these conditions: ''If the first suit was dis-
missed for defect of the pleadings, or parties, or a misconception
of the form of proceedings, or the want of jurisdiction, or was
dis|x>sed of on any ground which did not go to the merits of
the action, the judgment will prove no bar to another suit.'^
{Hughes v. United States, 4 Wall. 232.)
It is clear, however, that defendant's cross-complaint falls
within tlie rule, and not the exception. He has in the case at
bar reasserted substantially the same facts as in complaint of
1883, with no additional matter; and he asks substantially the
same character of relief. Demurrer was sustained to his com-
plaint, and that ruling stands in force. Therefore, if we had
no further point for consideration, we should, without hesi-
tation, affirm the ruling of the trial court, that the matter
pleaded in the cross*comp1aint is res adjudiocUa, and therefore
barred. But before proceeding to that conclusion, it must be
inquired whether it is shown that the demurrer to Binzel's
complaint of 1883 was sustaine<1 on consideration of the
merits; for the authorities harmoniously concur in the propo-
}.4 Mont.] Klsinschmidt v. Binzbl. &6
Bilion tliat it must clearly appear from tliQ reoord in the
former ease, or be proved by compeieut extraneoua evideuoe,
Uiat the matter as to which the rule of re« adjudiocUa ia
invoked as a bar was in fact adjudicated in the former action.
Upon this point it is said by Mr. Justice Nelson, in Packet
Co. V. Sickles, 6 Wall. 592.
''As we nuderstaud the rule in respect to the conclusiveness
of the verdict and judgment iq a former trial between the same
parties, when the judgment is used in pleading as a technical
estoppel, or is relied on by way of evidence as conclusive, pet
M, it must appear, by the record of the prior suit, that the
particular controversy sought to be concluded was necessarily
tried and determined — ^that is, if the record of the former trial
shows that the verdict could not have been rendered without
deciding the particular matter, it will be considered as having
aettled that matter as to all future actions between the parties;
and further, in cases where the record itself does not show that
the matter was necessarily and directly found by the jury, evi-
dence aliunde consistent with the record may be received to
prove the fact; but, even where it appears from the extrinsic
evidence that the matter was properly within the issue con! re-
verted in the former suit, if it be not shown that the verdict
and judgment necessarily involved its consideration and deter-
mination, it will not be concluded."
And again, in the case of RumU v. Pktce, 94 U. S. 608,
Mr. Justice Field, in expressing the opinion of the court,
observes:
''It is undoubtedly settled law that a judgment of a court
of competent jurisdiction, upon a question directly involved in
one suit, is conclusive as to that question in another suit
between the same parties. But to this operation of the judg-
ment it must appear, either upon the face of the reoord or be
shown by extrinsic evidence, that the precise question was
raised and determined in the former suit. If there be any
uncertainty on this head in the record — as, for example, if it
api)ear that several distinct matters may have been litigated,
u)>on one or more of which the judgment may have passed,
without indicating which of them was thus litigated, and upon
which the judgment was rendered, the whole subject matter of
56 Kleinschmidt v. Binzel. [Dec. T», 1893
the action will be at large, and open to a new contention, unless
this uncertainty be removed by extrinsic evidence showing the
precise point involved and determined. To apply the judg-
ment, and give effect to the adjudication actually made, when
the record leaves the matter in doubt, such evidence is admis-
sible.
" Thus, in the case of the WcLshington etc. Steam Padkd Co. v.
Sicklesj 24 How. 333, a verdict and judgment for the plaintiff*
in a prior action against the same defendant on a declaration,
coiitaiuing a special count on a contract, and the common
counts, was held by this court not to be conclusive of the exist-
ence and validity of the contract set forth in the special
count, because [.the verdict might have been rendered without
reference to that count, and only upon the common counts.
Extrinsic evidence showing the fact to have been otherwise
was necessary to render the judgment an estoppel upon those
points.
''When the same case was before this court the second time
{Packet Co. V. Sickles, 5 Wall. 580), the general rule with respect
to the conclusiveness of a verdict and judgment in a former suit
between the same parties, when the judgment is used in plead-
ing as an estoppel, or is relied upon as evidence, was stated to
be substantially this : That, to render the judgment conclusive,
it must appear by the record of the prior suit that the particu-
lar matter sought to be concluded was necessarily tried w
determined — that is, that the verdict in the suit could not have
been rendered without deciding that matter, or it must be
shown by extrinsic evidence, consistent with the. record, that
the verdict and judgment necessarily involved the consider-
ation and determination of the matter.''
Announcements to the same effect could be drawn from
many other cases of undoubted authority. (See Hughes v.
United Stales, 4 Wall. 232; Lote v. Tiniman, 10 Ohio St. 53
Estep V. Larsh, 21 Ind. 196; KeUer v. StolzerAach, 20 Fed.
Rep. 47; Woodland v. NewhaU, 31 Fed. Rep. 434; Difgeri v,
Dygeii, 4 Ind. App. 276.)
Now it appears that the demurrer in the former actipn speci-
fieil eight objections to the complaint, but the same may be
properly consolidated into three statutory grounds of demurrer.
14 Mout.] Kleinschmidt v. Binzel. 67
namely: !• Wantof sufficient facts alleged to oonstitate a canse
of actioD; 2. Misioinder of causes of action; 3. Misjoinder of
parties defendant. The other nominal objections are merely
specifications of particulars in which the complaint is wanting
or defective on some of those grounds. The record does not
disclose the particular ground upon which the court sustained
the demurrer. As to that ruling it is recorded that the demur-
rer was sustained by the court But respondent's counsel
insists that from the general order sustaining the demurrer,
the presumption follows, that it was sustained on all the
grounds alleged against the complaint in the demurrer. This
view, although urged by an admirable argument contained in
respondent's brief, and sought to be supported by citations of
authority, we think cannot be maintained, because it is contrary
to reason, and the rule of law upon this subject, sustained by
the great weight of authority. The case of People v. Stevens^
61 How. Pr. 235, among others cited by respondent in su^h
port of the presumption which he contends for, appears to
be the nearest in point. It is a New York decision, not
of the last resort, but of the supreme court, general term.
The demurrer under consideration in that case went to three
grounds: Defect of parties; improper joinder of causes; and
want of sufficient facts alleged to constitute a cause of action.
The demurrer was sustained by a general order, not showing
whether upon one or more of the alleged grounds of objection
to the oomplaint. When this judgment was pleaded in bar of
setting up the same facts in another action, it was insisted that
the demurrer in the former action was sustained upon all the
grounds of the objection stated therein. In considering that
proposition the court said:
''It was according to the order and judgment, ' the demur-
rer,' which came on for argument at the special term, and it
was 'upon the demurrer' that the judgment in favor of
defendant was given. It was sustained, not in part, but as a
whole, and that could only be done by reaching a conclusion
unfavorable to the plaintifis upon every issue which it pre-
sented."
With due deference, we are unable to adopt or follow that
holding. It seems to us, a moment's reflection suffices to
68 Kleinbohmidt v. Bikzsl. [Dec. T., 1893
show that the conclusion there stated contradicts the real state
of the law, as well as the constant practice of the courts. It
is well known that if either ground of the demurrer is sus-
tained, that is sufficieut to support the order sustaining the
demurrer. How, then, could it be affirmed that the demurrer
could only be sustained '^ bj reaching a conclusion unfavorable
to the plaintiffs upon every issue which it presented.'^ That
untenable conclusion is reached by arbitrarily declaring that
the demurrer was sustained as a whole, when the same order
could have been made on finding only one objection well
founded. It would seem as proper to presume from the fact
that several shots were fired by one person at another, either
of which taking effect in a vital spot would produce death,
and death ensueil, that every shot hit the mark with fatal
effect, and so hold without any further showing.
There is a presumption following a judgment that those
things were adjudicated, without which the judgment could
not have been rendered. This proposition is frequently as-
serted in the authorities, and is well founded, because it is an
inherent implication that those things were considered and
determined, without which the ultimate conclusion would not
have been announced. This implication shows that the court,
in sustaining the demurrer, held some one of the grounds fatal
to the complaint, stated in the demurrer, well founded; for
without such finding the ultimate conclusion that the demurrer
be sustained would not have been announced by the court
But this is not sufficient to maintain respondent's position.
To support that position the presumption must go farther,
and cover the broad proposition that by a ruling sustaining a
demurrer which attacks the complaint by several fatal objeo*
tions it must be presumed that the court adjudicated and
held good all the grounds which the demurrer set forth. This
proves too much, and tliereby weakens the proposition so that
it falls of its own untenable weight Because from that pre-
sumption it follows that where the complaint is demurred to
ou several grounds, such as misjoinder of causes, and also mis-
joinder of parties, and want of sufficient facts to constitute a
cause of action, as in the case of the demurrer to Binzel's com-
plaint of 1883, if the court adjudicated and determined every
14 Mont.] Kleinsohmidt v. Binzbl. 59
groiiDd unfavorable to the plaintiff, it proves that the oourt,
while holding that the ease was not in oourt in proper form of
action, but contained a misjoinder of causes which could not
be lawfully adjudicated together, and also a misjoinder of par-
ties defendant contrary to the provisions of law, nevertheless,
being aware that the case was not properly before it, the oourt
determined to hold the case fast in its grasp, and pass upon
the merits. Such is the inevitable effect of presuming, from the
order merely sustaining such a demurrer, that the court passed
upon and sustained all the grounds the demurrer alleged. The
impropriety of such action seems plain, and we therefore think
the current of presumption is the other way, as directly held
by the supreme court of Iowa, in Oriffin v. Seymour, 16 Iowa,
30, '83 Am. Dea 396, where it was held that in such a case it
would be presumed that the oourt, having found some formal
defect, by reason of which the case was not properly in court,
would not then proceed to consider and pass upon the merits.
This is also in accord with the reasoning and conclusion of a
great number of cases (some of which have been cited supra),
that it must be clearly shown that the very matter as to which
the bar of res adjudicata is invoked was adjudicated and deter-
mined on Uie merits in the former action. That it is not
enough that such matter was attempted to be drawn in ques-
tion if the same decision could have been rendered without
its adjudication; that is, if its adjudication is not inherently
implied in the judgment, it will not be held barred unless the
record is supplemented by extraneous proof to the effect that
such matter was adjudicated. The very rule that such evi-
dence may be introduced in its tendency contradicts the idea
that the uncertainty will be covered by presumption.
The application of the presumption contended for by re-
spondent would, we think, frequently contradict or suppress the
real fact with unjust consequences. Suppose a complaint is
filed which is subject to the objection of misjoinder, or defect
of parties, or improper joinder of causes of action. And, a
demurrer having stated these grounds, also alleges the unten-
able ground of insuflScient facts to constitute a cause of action.
Now, the court, in considering the demurrer, would find one of
the first mentioned objections well founded. But as to the
60 Elbinschmidt v. Binzel. [Dec. T., 1893
latter objection the court would either not consider it at all,
because the case was not properly in court, or if the court did
consider that objection, it would be found untenable. But for
the other defects the demurrer would be sustained. Thereupon
an order would be eutered to the effect that the demurrer is
sustained. The defect fully supports that order, and we ven-
ture that in a great majority of cases in our practice, where the
demurrer is used with great frequency, no more specific order
would be entered. In such a case, if the plaintiff and his
counsel who attended the argument concluded the court was
right in its ruling on the demurrer, because there was a mis-
joinder, or defect, of parties, or an improper union of causes,
they would not api>eal, for the appeal would be unavailing.
Now, if the presumption for which respondent contends be
established, the plaintiff in such a case would be barred from
setting up those facts in another action against the same par-
ties, or some of them, or their privies, free from the former
defects, while as a matter of fact the former ruling did not
touch the merits. It is said that in such a case it is the plain-
tiff's duty to see that the entry in the record specifies the ground
on which the former ruling was made, or that it was made
without prejudice to another action, and a case is cited in sup-
l>ort of that view. {Foote v. Gfibbs, 1 Gray, 412.) It may
well be answered that, the time has come when it is not con-
sidered altogether amiss to claim some duties as due from the
court toward litigants; and one should be to so shape the entry
of court rulings in its record as not to raise unjust and untrue
implications against the suitor, of which he is not the author,
to burden or defeat his effort to obtain justice. Of course no
such thing would be done knowingly, but it would arise in
many cases where demurrers are sustained by general order, if
the presumption contended for prevailed. And in the multi-
tude of ruliogs which the trial judge is called upon to make
he does not always expound the grounds thereof, nor, if
expounded, would they be noted in the record. In the case
last above cited it was held that where a cause was dismissed,
and the entry of the order showed no qualification, as that it
was dismissed '^ without prejudice," it would be presumed to
have been dismissed on the merits. This ruling, however,
14 Mont.] Klbinschmidt v. Binzbl. 61
would hardly apply uuder our oode. (Comp. Stats., § 242.)
Moi'eover, in a later case (Foster v. " Tlie Richard Busteed/'
100 Mass. 412, 1 Am. Kep. 125), the supreme court of Mass-
achusetts cites, but does not follow, Foote v. Gibba, 1 Gray,
412, as correctly aunouncing the rule of procedure appli-
cable to the couditions meutioned; and likewise did Judge
Brewer in Smith v. Auld, 31 Kan. 262. (See, also, to the
8Jime effect, the case of Steam Gauge & Lantern Co. v. Meyroae,
27 Fed. Bcp. 213.) It is further iusisted that section 243 of
Code of Civil Procedure makes it obligatory to render judg-
ment on the merits in all other cases than those stated in the
five subdivisions of the preceding section. The context, the
whole chapter of which that section is a part, shows that sec-
tion 243 relates to the case at a stage beyond the formation of
the pleadings, where it stands for consideration and judgment
on the merits, unless it is dismissed or nonsuited. The inter-
pretation and application of that section, according to respond-
ent's contention, would make a judgment or order on demurrer
conclude the merits, even if the demurrer stated no ground
which went to the merits, because such a case would be *' other
than those mentioned in section 242.'' We think it clear that
the provisions of section 243 do not apply to this consideration.
It follows that the order sustaining the demurrer to Binzel's
complaint of 1838 might have been based upon defects not
touching the merits, and it not having been shown that such
judgment proceeded upon a consideration of the merits, the
i-uling of the trial court holding that the facts set up in the
cross-complaint were adjudicated in the proceedings of 1883
cannot be sustained. The judgment in this action is therefore
reversed, and the cause remanded to be proceeded with in con-
formity to the views herein expressed.
Bevereed.
Pembebton, C. J. and De Witt, J., concur.
1 14
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62 BooKWALTEB V. CoKRAD. [Dec. T., 1893
BOOKWALTER, Respondent, v. CONRAD bt al.,
Appei^lants.
[Submitted December 28, 1898. Decided Jaanary 22, 18M.]
ArPEAia— Motion for change of venue— How reviewed,— An order denying a
motion for a change of yenae is reyiewable on appeal without a bill of excep-
tions or a statement If the papers on which the motion was made are prop-
erly certified to this conrt, as provided by section 488 of the Code of Civil
Prooedure, that is sUflScient. {Granite Mountain Mining Co. ▼. Weinstein, 7
Mont. 846; Barber v. Briscoe, 8 Mont. 214; Anu)ld t. Sindair, 12 Mont. 260,
cited.)
AppecUfrom Fourth JudidcU District^ Missoula OowUy.
On motion to dismiss appeal. Denied.
Toole & Wallace^ for the motion.
Sanford & OrM, Bickford, ^iff & Hershey^ and A. J.
Shores, contra.
Per Curiam. — ^The respondent moves to dismiss the appeal.
The appeal is from an order denying defendants' motion for a
change of venue. The ground of the motion to dismiss the
appeal is, that it does not appear that any bill of exceptions or
statement was ever signed by the judge to authorize the appeal.
But this is an appeal from an order, and may be brought up
without a bill of exceptions or a statement. Section 438, Code
of Civil Procedure, provides that *^on appeal .... from an
order the appellant shall furnish the court with a copy of the
notice of appeal, undertaking, or undertakings on appeal, the
judgment or order appealed from, and a copy of the papers
used on the hearing in the court below, such copies to be cer-
tified in like manner to be correct.''
The motion in the case at bar was made ''on the demand
and affidavit of merits, and on the pleadings and papers on
file in said action." Therefore, if the papers on which the
motion was made are certified to us by tlie clerk, that is suffi-
cient {Granite ML Min. Co. v. Weinsteiny 7 Mont. 346; J5ar-
ber v. Briscoe, 8 Mont. 214; Arnold v. Sinclair, 12 Mont. 260.)
The clerk certifies that the transcript, consisting of (enu-
merating all the papers), is a full, true, and correct copy of all
14 Mont.] BooKWALTER V. Conrad. 63
the papers tliat were asked for in the proBcipe for a transcript.
The clerk does not say in bis certificate that these were the
papers used on the Itearing below, but he certifies that they
are correct copies of the files in his court, and that they were
ordered put into the transcript by the person requesting the
record for the appeal. Arnold v. Sinclair, 12 Mont. 248, was
a motion for a new trial. Some of the grounds for motion
were upon affidavits. As to the affidavits portion of the
motion, we said: ''There might in some cases be difficulty in
ascertaining what 'papers were used on the hearing in the
court below/ if contention should arise concerning that point,
but that matter could be made certain by a certificate of the
judge who heard the motion and made the order, setting forth
the paj)ers used ( Walsh v. HutchingSy 60 Cal. 228); but no such
contention is involved here. It is stated in the notice of inten-
tion to move for a new trial, among other things, that said
motion will be made on a statement of the case and affidavits
setting forth newly discovered evidence; and, pursuant to that
notice, two distinct classes of matter were presented in support
of the motion. The notice of intention accompanies the affida-
vit and statement on motion for new trial, and the same are
certified to be correct copies of the 'files and proceedings had
and done in the cause of,' etc., giving the title of the action; and,
such notice being requisite to the proceeding, and, among the
files, we must presume that the same was one of the papers
used on the hearing in the court below, in the absence of show-
ing to the contrary •'' So, in the case at bar, there is no show-
ing or claim to the contrary. Indeed, the respondent, moving
to dismiss, says in his brief: "We do not wish to be under-
stood as claiming that the papers in the record were not used
on the trial."
The motion to dismiss the appeal must therefore be denied,
and it is so ordered.
61 Lay v. Nixon. [Dec. T., 1893
LAY, Respondent, v. NIXON, Appeixant.
[Submitted Maroh 22, 1893. Decided Januaiy 22, 1894.]
BmoBTiEa—Appecd bond— Defenses.— A. sarety npon an appeal bond cannot main-
tain in bur to an action upon the bond that his coeurety was in reality the
principal, and that'he had signed the bond npon the agreement of such cosurety
to saye him harmless, and that the plaintiff, knowing said facts, had compro-
mised with his said cosurety for one-half of the obligation, and released him
from further liability.
Appeal from NinUi Judicial District, OallaJ&n County*
Action on an appeal bond. Judgment on the pleading was
rendered for ike plaintiflf below by Aiimstbonq, J. Affirmed.
E, P. CadweU, for Appellant.
/. i. Siaata, and Charles 8. HarimaUy for Respondent
Pemberton, C. J. — This is an action on an appeal bond,
executed by appellant, and one Kleinschmidt in an appeal to
the supreme court in a case in which the respondent recovered
judgment against the Gallatin Canal Company, the said appel-
lant and Kleinschmidt being sureties on said bond. The
coniplaiut is such as is ordinarily used in such cases. The
defendant Nixon filed his separate answer, in which he alleges
substantially, among other things, that his codefeudant, Klein-
schmidt, although signing and executing the bond sued on as
surety with appellant, Nixon, was in reality the principal; that
he (Nixon) sigued said bond at the request of said Klein-
schmidt, and with the assurance, and under an agreement with,
said Kleinschmidt, that the said Kleinschmidt would hold
and save him (Nixon) free and harmless from all damages by
reason of his signing and executing said bond as cosurety with
said Kleinschmidt; that plaintiff well knew all these facts,
and, knowing said facts, plaintiff compromised with said
Kleinschmidt by receiving payment of one-half of said bond
from him, and thereby released said Kleinschmidt from all
further liability oh said bond. The appellant pleads these
facts in bar of the plaintiff's right of action, and asks that the
case be dismissed as to him, and that Kleinschmidt be adjudged
the principal in said bond, and that judgment be had against
14 Mont.] Lay v, Nixon. 65
liiin for the amount remaining due on said bond, to wit, the
one-half thereof claimed to be owing from Nixon. Upon the
filing of this answer in the court below the plaintiff filed his
motion for judgment on the pleadings, on the ground that the
answer .did not state facts sufficient to constitute a defense.
The court sustained this motion, and the appellant, Nixon,
refusing and declining to amend his answer^ judgment was
rendered against him for the amount claimed. The appellant
appeals from the judgment, and the order sustaining the
motion for judgment on the pl^dings.
The principal cause of complaint of the action of the trial
court urged by appellant in his brief is, that the court refused
to permit him to litigate the equities alleged in his answer to
exist between him and Kleinschmidt, and to have Klein-
Schmidt adjudged to be the principal in the bond sued on,
have the judgment in this case so state, and execution to issue
first against him, as provided in section 1293, page 1005, of
the Compiled Statutes.
But the answer to this contention is that the answer of
appellant does not seek such adjudication and relief. The
appellant's answer is a plea in bar to any right of recovery
against him in this action, and he asks that he be dismissed
with his costs, which would, in effect, leave respondent with-
out remedy against him. In his answer he does not invoke
the aid of said section 1293. In his answer appellant denies
that plaintiff is entitled to any judgment whatever against
him. In his brief his counsel admits that plaintiff is entitled
to judgment against appellant* We have here one case made
in the answer, and an entirely different one made in the brief
and argument in this court. Upon the pleadings in this case
we do not see how the court could have consistently done
otherwise than it did. The answer set up no sufficient defense,
and sought no relief that the court was authorized to give.
The appellant, upon the court's sustaining the motion for
judgment on the pleadings, declined to amend his answer so
as to have any equities that might exist between himself and
Kleinschmidt adjudicated in this case, as provided for by said
section 1293.
Yoii. XIY.— 5
66 Lay v, Nixon- [Dec. T., 1893
The judgment and order of the court are affirmed.
Harwood^ J., concurs.
De Witt, J, — ^The district court, upon motion of plaintiff,
rendered judgment on tbe pleadings in his favor. The defend-
ant appeals.
In an action in which the (Gallatin Canal Company was
plaintiff, and Lewis E. Lay, the plaintiff herein, was defend-
ant, said Lay obtained a judgment against the canal company
for eleven hundred and eighty-Uiree dollars and eighty cents.
The canal company appealed to this court. Upon that appeal
the judgment was affirmed. Appellant duly filed an appeal
bond in the sum of two thousand two hundred and seventy
dollars and sixty cents, staying execution on the judgment,
and providing for the payment of the same if it were affirmed.
The sureties on that bond were Albert Kleinschmidt and J.
H. Nixon, the defendants in this action.
The said Lay (now plaintiff herein) brings this action, setting
forth the above facts, and alleging that his judgment against
the canal company has not been paid. He demands judgment
against the defendants for the amount of the judgment in the
other case, and interest and costs. The defendant Nixon filed
a se])arate answer^ He alleges that his codefendant, Klein-
schmidt, was the principal owner in, and manager of, the Gral-
latin Canal Company, and that the appeal bond mentioned
was really for said Kleinschmidt; that in the matter of the
indebtedness arising upon the bond, by reason of the affirm-
ance of the judgment, Kleinschmidt was in fact principal, and
Nixon surety for Kleinschmidt; that Nixon signed said bond
with Kleinschmidt upon Kleinschmidt's agreement that he
would protect and hold him (Nixon) free and harmless from
any loss by reason of said bond, and, if said judgment were
affirmed, he (Kleinschmidt) would pay the same from the funds
of said canal company; that, after the affirmance of the judg^
ment, Kleinschmidt paid one-half thereof out of the moneys
of said canal company, and received from Ihe plaintiff herein.
Lay, a full release of all claims against him (Kleinschmidt)
on account of the bond; furthermore, that the plaintiff there*
upon agreed to dismiss this action against Kleinschmidt^ and
14 Mont.] Lay v. Nixon, 67
to release all claim against him. The answer states that this
matter is alleged " by way of affirmative relief, and by way of
a plea in bar.'' The defendant asks judgment that this action
may be dismissed as against him^ and that Kleinschmidt may
be adjudged to be the principal on said bond and indebted ness^
and this defendant only the surety^ and an execution issue
against defendant Kleinschmidt before it issues against this
defendant, Nixon.
UiH>n the filing of this answer, the plaintiff moved for a
judgment on the pleadings, as against Nixon, for one*half
the amount demanded in the complaint. This motion was
made upon the ground that the answer does not state any
defense to the cause of action. This motion was by the court
granted, and judgment was entered against defendant Nixon
for one-half the amount demanded in the complaint. Defend-
ant Nixon appeals.
Defendant's answer is to some extent inconsistent. He
pleads certain matter as to the affairs and conduct of Klein*
Schmidt and plaintiff, which he asserts in his answer is a plea
in bar, and he asks to be dismissed. At the same time he
asserts in his answer that said same matter is pleaded for the
purpose of affirmative relief, and he asks that it be adjudged
that Kleinschmidt is the principal, and that he (Nixon) is the
surety; and he further asks that execution be issued against
Kleinschmidt before it is issued against him (Nixon). He
thus seems to concede that he is liable, and wishes the priority
of liability settled between himself and Kleinschmidt, under
the provisions of section 1293 of the Compiled Statutes.
liThile that section, in my opinion, is not applicable to the
facts in the case at bar, yet it seems that the answer, if we read
one part of the language, undertook to present the alleged
facts for treatment by that section. For these reasons it has
seemed to me appropriate to express the following views: By
virtue of the statute of this state (Comp. Stats., div. 5, c. 76),
one joint debtor, or more, may make a compromise or com-
position with the creditor of the joint debtors, and such com-
promise or composition shall be a full and effectual discharge
to the debtor, or debtors, making the same, and to them only,
of all liability to the creditor. Such compromise or com-
68 Lay v. Nixon. [Dec. T., 1893
position with one joint debtor, or more, shall not discharge the
other debtor or debtors, but shall be deemed to be a payment
to the creditor, eqaal to the proportionate interest of the joint
debtor or debtors so discharged; but the provisions of that
chapter do not apply to any ^'debtor or debtors who, by the
express terms of the contract upon which the indebtedness
exists or arose, was the principal debtor while the other joint
debtor or debtors were sureties.'* (Comp. Stats., div. 5, c. 76,
§ 1292.) The following section then provides ''that upon the
rendition of any judgment in any court in this state, if it
shall be shown that one or more of the defendants against
whom the judgment is to be rendered are principal debtors,
and others of the said defendant are sureties of such principal
debtor or debtors, the court may order the judgment so to
state, and upon the issuance of an execution upon such judg-
ment it shall direct the sheriff to make the amount due
thereon out of the goods and chattels, lands and tenements of
the principal debtor or debtors, or if sufficient thereof cannot
be found within his county to satisfy the same, then that he
levy and make the same out of the property, personal or real,
of the judgment debtor who was surety.'* (Comp. Stats.,
§ 1293.)
In the indebtedness to Lay on the appeal bond in question,
the principal debtor was the Grallatin Canal Company, and
the sureties were Kleinschraidt and Nixon. All three were
debtors. Lay originally sued Kleinschmidt and Nixon, sure-
ties. It does not appear, " by the express terms of the con-
tract upon which the indebtedness arose" (§ 1292) — ^that is,
it does not appear by the terms of the appeal bond — that Klein-
schmMt was a principal debtor to Lay, and Nixon a surety.
On the contrary, it appears by the terms of that contract that
Kleinschmidt and Nixon stood in the same relation to Lay,
and were joint debtors to him. Therefore, the provisions of
chapter 76 apply to Kleinschmidt and Nixon, and one of them
could make a separate compromise and composition, and take
from Lay a discharge and release. This Kleinschmidt did.
He paid one-half the debt, and was discharged in full. This
released Kleinschmidt, and was a payment of the debt to the
extent of one*half* This occurred afler the commencement of
14 Mont.] Lay v. Nixon. 69
the action. Plaintiff herein^ tlierefore, cannot take any judg-
ment against Kleiuschmidt. He has released and discharged
binij and has agreed to dismiss the suit against him; and this
for a valuable consideration. I am therefore of opinion that
section 1293 does not apply to these facts. That section refers
to ^' one or more of the defendants against whom the judgment
is to be renderedJ^ Judgment is not to be rendered against
Kleinschmidt in this action, as shown above. Therefore, he is
not "a defendant against whom judgment is to be rendered.^'
That being true, the method of rendering judgment provided
in section 1293 cannot be here applied. Kleinschmidt is no
longer in the case, under the facts set np in the answer, which
now, on demurrer, are taken to be true.' The action is now
(since the discharge and release of Kleinschmidt) simply against
Nixon alone, and in such action that defendant sets up the
facts of an alleged claim of his against Kleinschmidt. Such
&ct8 must be litigated, and their legal efiect determined, in an
action in which Kleinschmidt is a party. He is not now a
party in this action.
Appellant cites to us cases wherein it appeared that one
defendant was principal and one was surety, and judgment was
entered as provided in section 1293; and he. contends that such
relation of principal and surety between the defendant debtors
may be shown on the trial, without a pleading of the facts, and
notwithstanding the statute of frauds as to the requirement of
a contract to answer for the default of another being in writ-
ing. We need not review those cases, or treat those proposi-
tions, because in none of those cases do the facts appear as
herein, namely, that one debtor had been discharged released,
and the action against him dismissed, and that the action before
the court was proceeding against the undischarged debtor
alone. I am of opinion that the judgment should be affirmed,
with costs.
70 State v. Donyes, [Dec. T., 1893
STATE, Respondent, v. DONYES, Appellant.
[Submitted January 9, 1894. Decided January 22, 1894.]
CiUMiNAL JjAW—AssauU withirdent to kiil—£}o%denoe.—A, oonviotion for anaaaanlt
is amply sustained by eridence from which it appeared that one W. was attempt-
ing to do hauling over a road crossing defendant's mining claim; that the
road was not public, but that defendant had giyen one M. a license to make or
use it; that defendant had excavated a shaft some three or four feet deep
across the road, rendering it impassable for teams; that W. and his men, upon
arriving at the shaft with loaded t* ams, commenced to fill it up; that, as defend-
ant testified, he was struck with rocks thrown into the hole by W.'s men; that
W. and another man beat him, and, ui>on being pursued and seized, he fired
his revolver, endeavoring to shoot under W/s arm; that, as W.'s party testi-
fied, defendant tried to fire some giant powder when they began shoveling into
the shaft; that W. knocked the light from defendant's hand; that defendant
then palled a revolver and threatened to kill W., and shot him when but a few
feet away.
8A]CK—JEbtd«nc0.— Evidence in the case at bar that the teams of the proaecnting
witnesses could not turn out and go past the shaft which defendant was dig.
ging was admissible as part of the res gestCB to show the immediate surround-
ings at the time of the assault, and was not objectionable as an attempt on the
part of the state to Justify a trespass.
BA]i£~^tid<7ice.~Cros8-examination of one of W.'s men as to his intention to
cross the mining claim against defendant's will was properly excluded, as such
intention on the part of the witness would not be evidence of a similar inten-
tion on the part of W.
HAXE^Same. — A notice of location of defendant's mining claim was admissible on
behalf of the defendant in showing his intention in going upon the ground
and making the excavation, but was properly excluded as testimony offered in
justification of an assault by defendant with intent to murder a person coming
upon the claim. (State y. Smith, 12 Mont. S78, cited.)
Bamb — ii>t/ienc«.— Objections to testimony and alleged error in permitting certain
questions upon cross-examination, when no reasons for such objections are
pointed out, or any showing that such questions were prejudicial to defendant,
will not be reviewed on appeal. (6^^^ of Helena v. Alberione, 8 Mont. 499, cited. )
8AifB—£^ot<ience.— Defendant's ofi'er in evidence of the record of an action in which
the court refused to restrain him from felling trees across the road where the
assault occurred was properly refused, since an undisputed ownership by
defendant of the premises in question would not justify him in repelling a
trespass by an attempt to murder.
SAVX—^vuitfncs.— Evidence that on a former occasion defendant repelled a bare
trespass by another only a short distance from the place of the present assault
by the use of a deadly weapon, and also threatened to kill future trespassers,
together with the record of his prosecution and conviction for that ofiense, was
admissible on behalf of the stat« for the purpose of showing the intent and
object of defendant in being upon the premises armed as he was at the time of
the assault.
AppecUfrom Tldrd Judicial Diaindy Deer Lodge County.
Conviction for an assault. Defendant was tried before
Brantley, J. AflSrmed.
14 Mont.] Statb v. Dokyss. 71
J» <X Bobinsan, for Appellant
Henri J. Haakdl, attorney general^ for the state^ Bespondent
Db Witt, J.— On January 20, 1891, the defendant shot
one James Weller. The grand jury indicted defendant for an
assault with intent to commit murder. The trial jury found a
verdict for a simple assault
A motion for new trial was made, and denied by the district
court The errors now complained of were presented to that
court on that motion. Defendant appeals from the judgment
The appellant contends that the evidence was insufficient to
sustain the venlict The facts may be epitomized as follows:
Defendant was one of the locators and owners of the Broad*
head Mining Claim. The claim was in a mountainous coun-
try. Weller, the deceased, had a lot of cord wood which .he
was moving, or endeavoring to move. This mining claim lay
between Weller's depository of the wood and his proposed
destination of the same. He wished to haul it over a road
which passed over the mining claim of Donyes, It seems
that tiiis was not a county road or a public highway. About
tlie most that a[>pears is, that Donyes had sold or given to one
Morgan a license to make and use this road, and that Morgan
or Donyes had given Weller no leave or license to use the
same. On January 20th, the day of the difficulty, the road
was broken; that is, it was a path over which sleighs could be
drawn. James Weller, with seven sleighs loaded with wood,
with their teams and drivers, came along this road. At a nar-
row place they found Donyes and a hired man named O'Rourke
at work in a shaft or hole in the road. The shaft was three
or four feet deep, and extended across the road, so as to make
it impassable for teams or sleighs. After some conversation,
Weller and some of his assistants began to fill up the hole.
Up to this point there is no conflict in the evidence, but here the
accounts of the state and tlie defendant to some extent diverge.
Defendant's story is, that Weller's people began throwing
rocks and clods into the hole, which struck him, the defend-
ant; that Weller and another jumped into the shaft and com-
menced beating him; that he leaped out of the shaft and ran
72 State v. Donybs. [Dec. T., 1893
towards his ooat^ in which was his pistol^ and which was^at a
considerable distance; that the Waller party closely pursued
him; that while running he picked np his coat and got it on;
that he was seized by his enemies and pinioned, and while in
this condition he managed to get hold of his revolver, and
fired the same, endeavoring to shoot under Weller's arm.
The account of Weller^s party, however, is a stronger show-
ing against defendant. Tbey say that their people began
shoveling into the shaft; that Donyes tried to fire a fuse attached
to a stick of giant powder; that Weller knocked the light out
of Donyes' hand; that then Donyes jumped out of the shaft,
reached into his hip pocket, and pulled a revolver, exclaiming,
*'You son of a bitch, FU kill you.'^ Weller walked toward
Donyes, and, when within eight or ten feet, Donyes fired the
shot from his pistol.
On this evidence, somewhat conflicting, as above noted, and
on the indictment for a felony, the jury found the defendant
guilty of an assault, a misdemeanor punishable by the lightest
penally known in the criminal law. The jury passed upon the
facts, and there was ample evidence to sustain a verdict of a
simple assault. Even if Weller and his party were guilty of
a trespass against the property of Donyes, not a dwelling-house,
this is not a provocation which justified Donyes in assaulting
the trespasser with a deadly weapon, with the intent to kill
him. {State v. Smith, 12 Mont. 378.) The objection that the
verdict was not sustained by the testimony was properly over-
ruled by the district court.
The state introduced evidence tending to show that the
Weller teams could not turn out and go past the shaft which
Donyes was digging, and defendant objected ^' that it was an
attempt by the state to enforce a trespass.'^ We do not under-
stand just what this objection means. If it means that the
evidence was an attempt by the state to justify a trespass by
Weller and his party, the answer is, that there is nothing what-
ever to show that the testimony was offered for such purpose;
ihdt is, nothing except the defendant's accusation of such a
design on the part of the state. It is apparent that the nar-
rowness of the passage, and the obstruction of it by the hole
dug by Donyes, stopped the teams coming along the road.
14 Mont.] Statk v. Donyss. 73
These facts led to the encounter between the two partiesi
Defendant claims that the Weller party were committing a
willful and forcible trespass^ and that he, defendant, therefore
had the right to kill him. We do not hold that it is compe-
tent to excuse a trespass, by showing that its commission was
an advantage to the person committing it, but in a contention
and encounter leading to the terrible results which occurred in
this case, we believe it is part of the res gestx to show the close
and immediate surroundings of the actors in the tragedy. That
was shown by the testimony describing the condition of the
road, and the shaft, and the surroundings. These remarks
cover several objections made in the bill of exceptions.
Elmer Gale, a witness for the state, said: ''We all knew that
Donyes objected to our going over that road.'' The bill of
exceptions states that ''we" had reference to Weller and bis
party. On cross-examination the court refused to allow
defendant to ask this question: "Then you went there for the
purpose of going over, whether Donyes wanted you to or not?''
This is assigned as error. If the witness went to the mining
claim for the purpose of going across it, against the will of
Donyes, that was not testimony of the intention of Weller in
going to that place, even if such intention were a material
inquiry. There was, therefore, no error in excluding this ques-
tion.
The defendant offered in evidence the notice of location of
the Broadhead Mining Claim, on which mining claim this
difficulty occurred. The state objected to the document, on
the ground that it was not a justification of the act of defend-
ant. The objection was sustained, and error is assigned. That
the ground where this difficulty happened was located as a min-
bg claim by defendant, and, indeed, that it was owned as a
mining claim by defendant, is not a justification by defendant
in attempting to kill and murder a person coming upon that
claim {State v. Smithy 12 Mont 378), and, if the notice of loca-
tion were offered for that purpose, it was properly excluded.
The court, however, did receive it in evidence for the purpose
of showing the intention of defendant in going upon the ground
referred to, and in making the excavation, and his acts in con-
nection therewith. This ruling of the court in so limiting the
74 ' State v. Donybs, [Dec, T., 1893
testimony as to the notioe of location is assigned as enon iWe
think the court was wholly right Defendant's ownership of
the claim was proper testimony as the court admitted it, but it
was not testimony of a justification of an attempt to commit
murder.
There are a number of objections scattered throughout the
bill of exceptions, to the effect that certain questions were not
proper cross-examination. Perhaps some of them were not,
but the court must exercise some discretion as to the order of
admitting testimony, and there is no sort of showing that the
defendant was in any way injured by the action of the court in
this respect.
There are some objections to testimony found in the bill of
exceptions, but defendant, in objecting, does not point out
wherein the testimony criticised is objectionable. He gave no
reasons to the district court, and there is therefore nothing to
show but his objections were properly overruled. {OUy of
Hdena v. Albetiaae, 8 Mont. 499.)
The court refused defendant's offer in evidence of the recoi*d
of the district court, in the case of Durand v. Donyea, in which
case it appeared that tlie court refused to restrain the defend-
ant from felling trees across the road where the difficulty
occurred. The defendant proposed, or offered, to connect
Weller and his party with Durand and the injunction case,
aud to show that that injunction was brought for the benefit
of Weller along with Durand. In this connection defendant
also offered a letter written by Donyes' attorney to him, and
received by Donyes, showing that the injunction had been dis-
solved, and that Donyes knew of that fact. We do not think
that there was any prejudicial error in excluding this testi-
mony. The defendant was claiming ownership of the ground
over which the road ran, and the record of the court offered in
evidence tended to prove nothing more than that the district
court on some showing — we know not what — had declined to
restrain Donyes from committing certain acts upon his own
premises. Even if all this were true, and even, furthermore,
as noted above, if Donyes were the undisputed owner of the
premises and in possession, he was not justified in repelling
14 Mont.] State v. Donyes. 75
a trespass upon property other than a dwelling by an attempt
to murder.
The point worthy of attention in this case, we think, is the
following: Over the objection of defendant the state proved,
by one Dazelle, that, two or three weeks prior to the Weller-
Donyes difficulty, he, Dazelle, had trouble with Donyes about
passing over this same road. This occurred about two hun-
dred yards from the place of the Weller trouble. The witness
testified: "He, Donyes, came out there with a rifle. He pulled
out the rifle and pointed it at me that way [illustrating how he
did it]. He said to stop tliere. Don't go any further, because
ni hurt you. Then, after I went to his cabin, he put the rifle
across a staple, and said: ^You see that rifle. Somebody will
leave his gut there before he gets through with it' *' The state,
in this connection, also oflered the records of the district court,
showing tiiat for this ofiense Donyes had been prosecuted and
convicted, on the charge of drawing and exhibiting a deadly
weapon in a rude, angry, and threatening manner, and not in
necessary self-defense. This testimony being objected to by
defendant, the court admitted it for the purpose of showing
the intent of defendant, and the character with which he went
to tlie ground, and the object with which he went there.
It is held in the decisions that upon the trial of criminal
charges caution should be exercised in admitting testimony of
other oflenses; but if the testimony offered is material to the
case on trial, that testimony is not rendered inadmissible be-
cause it proves some other offense. The question is simply
the materiality of the evidence to the charge being tried. The
question of the admissibility of this testimony in this case can
be clearly viewed by keeping before the mind the issue or con-
tention which was the subject of the investigation before the
district court The situation was this: The state was contend-
ing that there was an assault with intent to murder. The
defendant was urging in his defense that Weller and his
party were trespassers, and that he, defendant, acted only in
self-defense, and used only such force as he was justified in
using, and was necessary to prevent the trespass. But, as fre-
quently observed in this opinion, a bare trespass against prop-
erty,.uot a dwelling-house, does not justify an assault with
14 n
I 15 550
36*226
I 39*860
76 Walsh v. Mueller. [Dec. T., 1893
iDtent to kill. Now, io this case, if defendant made an assault
with intent to murder, he was guilty as diarged. Evidence
of his intent to commit such an offense was competent; that is,
it was competent to show that he intended to repel a bare tres-
passy not against the dwelling, by a homicidal assault. Now,
the facts as to the Dazelle matter showed Donyes' intent to
prevent a trespass upon the property in question by assaulting
the trespasser with a deadly weapon* The testimony as to
this former trouble, in our opinion, was evidence tending to
show the iutent and object of defendant in being npon the
premises, in the road, and armed, as he was at the time of the
difficulty. On the former occasion he had repelled a bare tres-
pass by the use of a deadly weapon, and at that time he had
made declarations which tended to show jiis intent to kill any
trespasser in the future. The former difficulty was two or
three weeks prior to the latter one; it occurred over the same
property, and was as to the same claims of right by the
defendant. (See 3 Bice on Evidence, c. 26, and cases cited
and reviewed.)
Counsel for appellant, in his brief, contends that there were
errors in the instructions. But the instructions are not here
in a bill of exceptions, nor are they proj^erly authenticated for
review. The judgment is affirmed, and it is ordered that it be
carried into efiFect as adjudged by the district courL
Pemberton, C. J., and Harwood, J., concur.
WALSH ET AL., Appellants, v. MUELLER et al.,
Respondents.
42l| [Bubmittod December U, 189a. Decided Janiury 22, 1894.]
New TuikLB^SetaefMtU of atatemenl—Waiter of lapse of (tme.->Pa!lixra to
object to extensiODB of time beyoud the statatory period for the ■ettlement of
A statement on motion for a new trial, o£foring amendments, and joining in
the settlement thereof wlthont objection, operates as a waiyer of the lapse of
time for the serrioe of the statement.
Bamb— Service of notice and ekitemenl^AUomeys.—A, notice and statement on
motion for new trial need not be served on all the attorneys of certain of the
respondents, when attorneys representing aU the respondents were properly
served.
14 Mont.] Walsh v. Mueller. 77
Appeal from SioBih Judicial District^ Meagher County.
On HonoN to dismiss appeal. Denied.
Took A Wallace^ for the motion.
SL ff. Melfitire^ and MoOonneU, Ctayberg & Ov/nn, contra.
Per Curiam. — ^The respondents move to dismiss the appeal
from the order of the district conrt denying a new trial. The
first ground of the motion is that the statement on motion
for new trial was not served within the time provided by
statute, or within the thirty days from the period to which it
might be extended. (Comp. Stats., § 536, p. 201.)
We observe, by the record, that the time was extended very
much more than thirty days, and without the consent of the
opposite party; and if this were all that ap])eared, the state-
ment on motion for new trial could not be considered. {Doyle
V. Oore, 13 Mont. 471.) But it appeared by the judge^s cer-
tificate, in settling the statement, that not only no objections
were made to these extensions, and the lapse of time, but that
the opposing party came in with amendments, aud joined in
the settlement, without objections. The lapse of time was
therefore waived. {Sweeney v. ChreaJt Falls etc. By. Co., 11
Mont. 34; Arnold v. Sinclair, 12 Mont. 261.)
Other grounds for dismissing the appeal are lirged, in that
the notice of motion and statement on motion for new trial
was not served on all the attorneys for certain defendants.
Messrs. Waterman and Callaway were attorneys for certain
defendants. Mr. T. C. Bach was attorney for certain other
defendants. The objection is made of want of service upon
Messrs. Waterman and Callaway, and Mr. T. C. Bach. But
the papers were served on Messrs. Toole and Wallace, who,
we think it sufficiently appears from the records and appear-
ances, were attorneys for all the defendants.
The motion is denied.
78 Nelson v. Donovan. [Dec. T., 1893
NELSON, Respondent, v. DONOVAN et ai^, Appel-
liANTS.
[Submitted December 38, 1898. Decided JumMrj 22, 1894.]
Nzw Tbialb— ZIffiM/or taking appeal,'— An appeal fix)m an order grantiDg motion
for a new trial, not taken within sixty days from the fiUng of the order, as
required by section 421 of the Code of Civil Procedure, will be dismiwed on
motion.
ApPKALjkBUB O&DSB.— An Older granting a motion for judgment on the pleadings
is not appealable.
Appeal from Eigklh Judicial Didrid, Oasoade QmrUy*
On MOTION to dismiss appeal. Granted.
Ed L. BUhop^ for the motion,
Donowin & Lyter, conirai
Per CcTRiAM. — The respondent moves to dismiss the appeal
from the order granting a new trial, for the reason that the
appeal was not taken within sixty days afler the order was filed
with the clerk of the district court.
It ap])ears by the record that the new trial was granted in
April, 1893, and that the appeal was taken August 12, 1893.
The appeal must be taken " within sixty days after the order
. • • • i^ made and entered in the minutes of the court, or
filed with the clerk.'' (Code Civ. Proc, § 421.) The
appeal from the order granting a new trial was not taken
within the time prescribed, and must be dismissed, and it is so
ordered. After the district court had granted plaintifi* a new
trial, it granted plaintiff's motion for judgment on the plead-
ings. From this order defendants also appeal. Respondent
also moves to dismiss the appeal from this order. This motion
is also granted, as an order granting a motion for judgment on
the pleadings is not appealable. But the judgment itself is
appealable, and the notice also states that defendants appeal
from the judgment.
The case is therefore left in court standing upon the appeal
from the judgment.
14 Mont.] Haogin v. Sailb. 79
HAGOIN, Respondent, v. SAILE et au, AppEiXAinB.
[Sabmitted April 3, 1893. Decided January 29, 1894.]
AnsAXr— iV«to (rioi.— An order granting a new trial will not be reyened on appeal
when, upon consideration of the evidence and aaalgnmenti, no i^buie of di»-
oretion appean.
Appeal from Third Judidal District, Deer Lodge County.
AcnoN for injuDction. Defendants had judgment below.
Plaintiff's motion for a new trial was granted hj DubfeEi J.
Affirmed.
Farbia & ForbiSy for Appellants.
M. Kirhpaitick, for Respondent.
Pemberton, C. J. — This case involves a dispute as to pri-
ority of right to the use of the water flowing through Glover
cafion, situate in Deer Lodge county. Plaintiff sought to
enjoin defendant from interfering with his alleged prior right
to the use of said water.
The case was tried to the court and a jury. The jury
returned special findings in favor of defendants, which find-
ings the court adopted, and rendered judgment accordingly, to
the effect that defendants are entitled to all of the water in
question, prior to the claim of plaintiff. Plaintiff then moved
the court, upon a statement of the case, for a new trial, which
motion was by the court granted. From that order defend-
ants prosecute this appeal.
Plaintiff claims title to said water by virtue of the appro-
priation thereof by one Alexander Glover, in 1872, and use
thereof continuously, until 1883, when he sold and conveyed
the same, together with a parcel of land, to plaintiff; and
further use of said water by plaintiff. Defendants concede
that said Alexander Glover had a valid appropriation of said
water, and conveyed the same to plaintiff as aforesaid. But
defendants contend that plaintiff had abandoned, and neglected
to use, said water, and that defendants had appropriated said
water, and used the same continuously for the period of more
than five years, adversely to the claim of plaintiff. A review
14
17
368
14
823
879
14
36
A
JJ
■ '
79
486
14
41
79
439
80 Haggin v. Sailb. [Dec. T., 1898
of the record discloses the fact that defendants' claim to the
prior right to the use of said water depends upon the alleged
&ct of abandonment thereof bj plaintiff, and the adverse use
and enjoyment thereof by defendants during the period of five
years limitation ; and further discloses that if the use made of
such water afler purchase by plaintiff, upon his lands, in the
operation of making brick| carried on by one Campbell, under
contract, was a use by or on behalf of plaintiff, then the claim
of adverse possession set up by defendants fails. Appellants
admit that the case as here presented, on the question whether
the court was justified, or abused its discretion, in granting a
new trial, depends upon a review and construction of the testi-
mony of said Campbell, who was engaged in manufacturing
brick upon the land of plaintiff, and by the use of said water
thereon, under contract.
The very situation under which we must review this case, if
it is to be returned for another trial, precludes a discussion as
to the force of the evidence upon the vital points in the case.
We therefore refrain from such discussion. We have care-
fully considered the evidence and assignments set forth in the
record, and cannot find therefrom that the evidence upon the
important points in the case is so clear as to warrant us in
reversing the order of the trial court granting a new trial.
In order to justify us in reversing the order of the trial court
granting a new trial it must appear that there was an abuse of
judicial discretion on the part of the trial court in granting
such motion. This we do not find* The order appealed from
will therefore be affirmed.
Habwood, J., concurs.
14 Mont.] IIyan v. Maxby. 81
EYAN BT AL., Appelt.ants, v. MAXEY bt al., Re-
spondents.
[Sabmltted March 24, 1898. Decided Janaary 29, 1894.]
ArrkCBjasT— Waiver of lien— Appeal,— ka attaching creditor does not waive hia
attachment lien by taking judgment and selling the attached property under
execution, while an appeal from an order dissolving the attachment is pend-
ing and undetermined.
^vsLSameSwrviving partner— Statutory eonstruction,— The amendment of
section 229 of the Probate Pnustioe Act (Seas. Laws 1889, p. 146), requiring a
sunriving partner to settle the affiurs of the partnership without delay, *' treat-
ing all creditors alike, and giving no preference to any, except such as are
made so by mortgage, pledge, or lien," enacted prior to a sale of partnership
property under execution, cannot be construed to abrogate an attachment lien
acquired thereon prior^to its passage, as such construction would render it
retroactiye.
Gbxdrob'8 BiLLSupplementary proceedings— Judgment Zten.— A creditor's biU
to enforce a Judgment lien against property claimed by defendants under a
judicial sale need not be preceded by proceedings supplementary to execution,
as such summary process is applicable to the discovery of property subject to
execution, concealed or withheld by the debtor or others in collusion with him
without pretense of substantial right, and not to cases where the attitude of
the parties to the property in controversy is fully understood.
Appeal from Ninth Judioial District, OaUaiin Comdy.
Cbeditor's Bill. Judgment was rendered for defendants
below by Abmstbong, J. Affirmed.
E. P. CadtoeU, for Appellants.
Luce & Luee, for Respondents.
Habwood^ J. — ^Through this action, in the nature of cred-
itor's bill, plaintiffs seek to establish and enforce judgment
liens claimed by them upon certain property held and claimed
to be owned by defendants. These conflicting claims arose in
this wise: Plaintiffs are the owners of certain judgments ren*
dered against Jacob F. Speith, as the surviving partner of the
firm of Speith & Krug, aggregating in amount about twenty
thousand dollars, which judgments were rendered in 1888, and
are unsatisfied. Defendants are also judgment creditors of the
same character; that is, they own judgments recovered against
said Jacob F. Speith as surviving partner of Speith & Krug.
It ap])ears, however, that these defendants, in the commeuce-
YoL. XIV 6
82 Ryan v. Maxby. [Dec. T., 1893
ment of tlieir actions against said surviving partner, levied
attachments upon all of the proi)erly of said firm available for
payment of its debts, and thereafter said property was sold on
'executions issued to enforce the judgments and attachment
liens acquired by defendants through said actions; and by
virtue of sach judicial sales, these defendants claim title to the
property in controversy in this action.
Plaintiffs in this action, who obtained or succeeded to judg^
ments against said surviving partner, but who failed to get
any of the proceeds of the proi)erty of said firm in satisfaction
of their judgments, now, through this action, undertake to
establish what they claim to be liens on said property arising
from their judgments.^ They maintain that said attachments,
torerunning those judgments of defendants in this action, were,
for certain reasons to be hereafter considered, void processes.
The process of attachment levied upon said property in said
actions of defendants against Speith, surviving partner, etc.,
were contested by motion to dissolve the same, which motion
prevailed in the trial court; but that ruling was reversed on
appeal to the supreme court, wherein it was held that such
attachments would lie. (See Krueger v. SpeUhj 8 Mont 482;
Cobb V. Bpeiih^ 8 Mont. 494; Maxey v. Speith^ 8 Mont. 494;
Bozeman Nat. Bank v. Speith, 8 Mont. 495.) So it appears
that those attachments were upheld, and in due course the
title now held by these defendants tvas acquired by sale of the
attached property on execution issued upon the judgments
obtained in those attachment suits.
One of the minor points urged by appellants is, that those
attachment liens were waived, or became void, because the
plaintiffs in those attachment suits proceeded, after obtaining
judgment, to sell the attached property under execution, while
the appeals from the respective orders dissolving said attach-
ments were pending, undetermined. No authorities are cited
to support this proposition, and we fail to perceive any
force in it, either from analogy to other rules of waiver, or
upon principle or reason. The proposition assumes that those
attaching creditors, by appealing, and superseding or holding
in abeyance the order of the trial court dissolving their attach-
ments^ and then prosecuting their appeals to the effect of
14 Mont.] Eyan v. Maxby. 83
reversiog those orders, waived the rights and liens acquired
through those attachments, because they proceeded to take
judgment and execution in the same actions, as the law pro«
vides. It is not surprising that appellants have failed to cite
any cases, or text of commentator, in support of this position.
After the decision upholding the attachment liens, cited
9upra, the legislature of Montana enacted an amendment to
section 229 of the Probate Practice Act. (Sess. Laws 1889,
p. 146.) Appellants contended that the provisions of said
statute, as amended, require that all of said partnership estate
be applied to the payment of the partnership creditors ''alike,
and giving no preference to any, except such as are made so by
mortgage pledge or lien,'' and that, this provision having been
enacted prior to the sale of the partnership property under
execution in the cases above referred to, had the effect of so
changing the law relating to those cases, while in progress, as
to annul the attachment liens acquired and existing prior to
the passage of that amendment, and that the sale of said prop-
erty nnder execution was void as in contravention of that
statute. We do not think appellants' view can be maintained.
It would give the statute under consideration the retroactive
effect of abrogating the liens lawfully acquired by attachment,
and existing when the present statute was enacted. In our
opinion, the ruling of the trial court in refusing to so construe
the statute was correct {Ounn v. Bary^y, 15 Wall. 610,
Eastman v. Clackamas G>., 32 Fed. Hep. 24.) In order to
sustain plain tifis' action it was necessary to give the statute
such retroactive effect. We think the demurrer was properly
sustained.
Respondents raise a question of practice, insisting that this
action, in the nature of a creditor's bill, is improper procedure,
that such action has been superseded by the statute providing
for proceedings supplementary to execution, which proceedings,
respondents contend, should have been invoked for the relief
sought by appellants. In support of this view, several cases
are cited, among which is Sperling v. Oalfee, 7 Mont. 529,
wherein it is remarked that those provisions of our code (Code
of CSvil Procedure, chapter 2, title 9), for proceedings supple-
mentary to execution have^ to a great extent, if not wholly.
84 Eyan v. Maxby. [Dec. T., 1893
superseded the equitable action known as the ''creditor's bill.''
Similar observations have been made in many other cases, and
Hire in no manner question their correctness; for in many
respects the relief formerly achieved through the creditor's bill
is now afibrded with less expense, formality, and delay, and
with equal potency, through the summary proceedings supple-
mentary to execution authorized by statute. But it is hardly
to be concluded, either from those observations or the provi-
sions of the statute authorizing supplementary proceedings,
that the same were intended to utterly abolish equitable pro-
ceedings to set aside fraudulent conveyances, assignments;
encumbrances, and the like, to enable the judgment creditor to
reach equitable assets put beyond t}>e reach of ordinary legal
process by some fraudulent device of the judgment debtor —
remedies which supplemental proceedings are inadequate to
accomplish — preserving to disputants the ordinary method of
trial touching property rights. Indeed, the statute contem-
plates the development of conditions, in the course of supple-
mental proceedings, which cannot be adjudicated therein, and
therefore the statute directs that proper suit be ordered by the
court to adjudicate and determine the same. (Code Civ. Proc.,
§ 356; Teiiig y.Boesniany 12 Mont. 404.) It seems to have been
the intention of tlie framers of that statute, to provide a sum-
mary process for the discovery and application to the judgment
of property subject to execution, concealed and withheld by the
debtor, or others in collusion with him, without pretending,
when it came to a test under oath, to assert any substantial
ground therefor. But '.where the property alleged to belong
to the judgment debtor is claimed by others, either by way of
absolute title or pledge or mortgage, or debts claimed to be
owing to the judgment debtor are disputed by his alleged
debtor, such claims of ownership, lien, or denial of indebted-
ness cannot be adjudicated and determined summarily, and
the property ordered applied to the judgment, without the
usual formalities of forming issues and trial, guaranteed as
applicable to the determination of property rights. While it
might be proper enough to turn the searchlight of supple-
mental proceedings onto the subject, to discover the attitude of
parties towards the property or fund in question, and through
14 Mont.] Martin v. Maxey. 85
that proceeding obtain an order forbidding the disposition
thereof, still many cases will arise where that proceeding alone
cannot accomplish all that may be necessary to cut off adverse
claims, and avail the judgment creditor of the assets in con-
troversy. On the other hand, it may be that the attitude of
the parties to the subject of controversy is, fully known, as in
the case at bar, where it seems proceedings supplemental to
execution could neither accomplish nor aid the relief sought.
And, in our opinion, in such cases, the appropriate action to
test the claims or defenses which parties may assert in opposi-
tion to taking the property or fund for application on the
judgment should not fail because supplemental proceedings
did not precede it. This appears to be the view taken by the
courts where these distinctions have been considered — espe-
cially in the New York courts, where the statute for proceedings
supplemental to execution originated — as shown by Mr. Free-
man in his work on Executions, section 394. (Oere v. Dibble,
17 How. Pr. 31; Goodyear v. Betta, 7 How. Pr. 187; Davis v.
Turner J 4 How. Pr. 190; BariUUv. Drew, 4 Lans.444; Phelps
V. Platty 50 Barb. 430; Hammond v. Hudson River etc. Machine
Co., 20 Barb. 378; BuH v. Hoetdnger, 28 Ind. 214; Parsons
V. Meybwg, 1 Duvall, 206.)
For the foregoing reasons the judgment of the trial court
will be affirmed.
Pembebton^ C. J.^ concurs.
Affirmed.
MARTIN, Appellant, v. MAXET, Bespondent.
[Submitted Noyember 8, 1898. Decided Febmazy 6, 18M.]
knkCBMSsrs-^Waiver of Ken,— An ftttacbing creditor does not abandon bis attach-
ment by taking Judgment and selling under execution the attached premisea
while an appeal from an order diaaolying the attachment is pendmg and unde-
termined.
ArrELL— Matters not reviewable,— A question of practice relating to the regularity
of an appeal from an order dissoMng an attachment, and which appeal was
entertained and determined, will not be reyiewed by this court seyeral years
later on an appeal by one attacking in a subsequent action the title of the
attaching creditor.
86 Martin v. Maxky. [Dec. T., 1893
Appeal from Ninth Judicial District, OaUaJUn County.
Creditor's Bill. Judgment was rendered for defendant
below by ArmstronOi J. Affirmed.
E. P. Oadwdl, for Appellant.
Luee A Luoe, for Respondent.
Harwood, J. — This action is of kindred nature, and mainly
determined by Byan v. Maxey, just decided by this court. (See
ante, p. 81.) But a few sliglit distinctions should be noticed.
Appellant insists: 1. That tlie attachment lien acquired by
attachment of the property in controversy was lost by taking
out execution and selling the attached property thereon, while
the appeal from the order of Judge Liddell dissolving the
attachment was pending in the supreme court. {Mazey r,
Speith, 8 Mont. 494.) The attaching creditor perfected his
appeal from that order, and, while the same was pending and
undetermined, he prosecuted the action in which the attach-
ment was issued to judgment, and took execution on the judg*
ment, and sold the attached premises. Appellant insists that
thereby the attachment was abandoned, but acknowledges that
he could find no cases to cite in support of this proposition;
and we consider it illogical and untenable to contend that
while a litigant appeals from an order dissolving his attach-
ment, and prosecutes such a])])eal to the effect of reversing
the order appealed from, because he also pursues the attached
property by execution, after prosecuting his action to judg-
ment, he thereby abandons the attachment which he is at the
same time seeking to uphold and keep in force by all the means
provided by law on his behalf.
2. Appellant contends that the attachment in question
failed, because the appeal from the order dissolving it was
not taken within five days after tliat order was made, as pro-
vided in section 428, Code of Civil Procedure. We know,
from the treatment of that appeal, that it was taken from the
order dissolving the attachment in question, and that the
appellate court considered that appeal, and reversed the order
dissolving said attachment. We presume therefrom that the
14 Mont.] Martin v. Maxby. 87
appeal was taken^ as required by law, to keep in force the
attachment The contrary view would assume that the court
on that appeal considered and determined a case not properly
appealed^ so as to give the appellate court jurisdiction, and its
determination eiFect upon the proceedings in question. We
cannot now review the question of practice raised by appel-
lant, relating to the r^ularity of the appeal taken, enter-
tained, and determined several y(ears since, as reported in
8 Montana Reports, 494.
3« Appellant insists that although respondents support their
daim to the property in question by several sheriff's deeds,
executed in pursuance of a sale of the property in question on
independent judgments in several and distinct actions, the pur-
chase of those outstanding titles by respondents merged them
in that obtained by him through the sale of the same prop-
erty on execution on his judgment; and insists that by reason
of such merger, if the title founded on appellant's judgment
can be found wanting in any respect, such defect taints all the
other independent outstanding titles acquired to said property
by purchase. Appellant asserts that he has cited authorities
to support this position, but we think it doubtful, as there
seems to be no reason in it The case of Vantilburgh v. Blacky
2 Mont. 371, is against that proposition, although in that case
equitable titles were in question, while here legal titles are in
question. It is unnecessary to determine this point, however,
as appellant has been unable to show grounds to avoid the
attachment lien of respondents, which he acquired through his
own attachment and judgment We therefore leave the point
with these observations.
An order will be entered affirming the judgment of the trial
court.
Affirmed.
Pembebtok^ C. J., concurs.
88 McDonald v. Montana Wood 'Co. [Dec. T., 1893
MoDONALD et al., Respondents,^ MONTANA WOOD
COMPANY, Appellant.
[Snbmitted Juiaazy 9, 1893. Dedded February 6, 1894.]
Hnnu AND MxMnro— PZootfr claim.— It ii not necessary that a separate disooyeryp
separate marking of the boundaries, separate recording, and separate work
shonld be made and performed npon each twenty acres contained in a one
hundred and sixty ftcre placer claim, which, under section 2880 of the Bevised
Statutes of the United States, may be located by one person or an association
of persons.
SiKX—jPVw/tfiturtf—P^eadinj^.— Forfeiture of a placer mining claim for failure to
do annual representation will not be sustained when such forfeiture is not
pleaded, and no evidence is disclosed by the record of a relocation by any one
on account of such fiulure, or that defendant had acquired an adverse out.
standing title.
Tbispabs— 2VeMe damages— IfaZtce.— Treble damages for the cutting of timber on
plaintiff's land, and its conversion by defendant, are not recoverable under se<^
tion 868 of the Code of Civil Procedure in an action for willful and malicious
trespass, in the absence of proof of malice, wantonness, or evil design.
AppecUfrom Fifth Judicial District^ Jefferson County.
Action for trespass. The cause was tried before Gal-
BBAITH, J. Plaintiff had judgment below. Modified.
Qnoan & Parker ^ for Appellant.
L In the case at bar eight individuals, not united in inter-
est, attempted to locate eight placer claims, while they had
made discovery of gold upon but one of such claims, or, in
other words, gold was found in but one place on the entire
tract Seven of these claims are attempted to be held without
any discovery having been made upon them, or either of them,
and defendant is charged with having committed a trespass
upon claims so situated. No authority can be found in any
of the law books which would sustain the location of eight
placer claims by the discovery of placer deposits upon but one
of them. A placer claim consists of not more than twenty
acres (U. S. Rev. Stats., § 2331; 15 Am. & Eng. Ency. of
Law, p. 624), and is subject to same rules and conditions,
relative to location and holding, which pertain to lode claims.
(U. S. Rev. Stats., § 2329; 15 Am. & Eng. Ency. of Law,
551, and note 5; Sweet v. Webber y 7 Col. 443; Carney v.
Arizona Mfg. Co., 65 Cal. 40.) Discovery and appropriation
14 Mont.] McDonald v. Montana Wood Co. 89
are the souroes of right. (16 Am. & Eng. Ency. of Law,
628, § 8.) Plaintiffs acquired no title or right of possession
under such a discovery, hence their action must fail. And
again, the appellant contends that no discovery was made
within the general boundaries of the tract of land claimed, as
the same was described in their notice of location, and as the
same was marked upon the ground. Plaintiffs marked their
eight claims upon the ground by the blazing of four trees, one
at each of the four corners of said tract. Boundaries beyond
the maximum extent of a legal location would not import
notice, and would be equivalent to no boundaries at all. (15
Am. & Eng. Ency. of Law, 536, note; Hauswirth v. BtUdier, 4
Mont. 299.) Placer claims, held in common, are each subject
to annual representation. {Chambers v. Harrinffton, 111 U. S.
350.)
11. The evidence in this case discloses the facts: 1. That
no member of the defendant corporation felled any of the
trees or timber mentioned ; 2. That such trees and timber were
felled by divers men at work for themselves, and not in the
employ of, nor under the direction of, defendant. The evi-
dence will not, therefore, support the allegation of trespass;
and in particular will not support the theory of a malicious
trespass and treble damages. Exemplary damages cannot be
recovered for a trespass not malicious in its character. {Phelps
v. Owerw, 11 Cal. 23; Dorsey v. Manlove^ 14 Cal. 553; Night"
ingcde v. Scannell, 18 Cal. 315 ; 8elden v. Oashman, 20 Cal. 57;
81 Am. Dea 93.)
Thomiis Joyes, for Kespondents.
I. Defendant denies the validity of plaintiffs' location, but
does not attempt to show any right in itself to the land, or any
right to cut timber thereon. This naked trespasser cannot be
heard to dispute the right of possession of the plaintiffs.
{Werner v. Loweryy 11 Cal. 104.) The plaintiffs' location
notice being properly made out, sworn to, and recorded as
required by law, is frima fade evidence of what the law
requires it to contain, where it is sufficiently set forth in the
notice. {Jardzen v. Arizona Copper Co. (Ariz., Jan. 19, 1889),
20 Pac. Eep. 93; 15 Am. & Eng. Ency. of Law, 532.)
90 McDonald v. Montana Wood Co. [Dec. T., 1893
II. It is only necessary that the claim should be identified
with reasonable certainty, and whether or not the boundaries
can be readily traced is a question of fact for the jury. (15 Am.
& Eng. Ency. of Law, 534, notes.) In this case the jury found
that there was a proper marking on the ground, discovery,
and recording, and there is no evidence to the contrary.
III. There can be no forfeiture until some other person
lias entered upon and relocated the claim; until that has been
done, plaintiffs may at any time resume work and hold under
their original location. The question as to performance of
annual labor cannot therefore be raised in tiiis case. {Lakin v.
Sierra Buttea Gold Min. Co., 25 Fed. Rep. 343; Belk v. Meagher,
104 U. S. 279.)
ly. A placer claim may contain . more than 20 acres.
One person can only locate 20 acres in one claim, but a
location may contain 160 acres for an association of eight
persons. (U. S. Bev. Stats., §§ 2330, 2331.) Such tracta
have been uniformly treated as one claim. The law has been
so construed by the interior department in granting patents to
placer claims.
V. The cases cited by appellant as to the necessity of
showing malice relate entirely to damages claimed for the
seizure of personal property and have no bearing* upon this
statutory proceeding. We proceed under section 363, jwige
159, Compiled Laws of Montana, which contains no allusion
to malice, but authorizes the recovery of treble damages where
the trespass is committed "without lawful authority.'' How-
ever, in this case, malice was alleged and proved.
Pemberton, C. J. — On the twenty-third day of September,
1890, plaintiffs (being seven in number) and Thomas Joyes
located the Landlock placer mining claim, a tract of ground in
Jefferson county, which they estimated at the time contained
160 acres, but which afterwards, by a survey, was found to
contain about 76 acres. Plaintiffs made but one discovery on
the entire tract. They marked the boundaries by blazing a
tree at each corner of the entire tract of ground, and desig-
nated each of said corners of the claim by writing with a i>encil,
on the re2:ipective blazed trees, the name of tlie claim, and the
14 Mont.] McDonald v. Montana Wood Co. 91
corner each tree represented. Thej also marked a tree at the
discovery shaft, and posted a notice on the claim. The notice
contained the names of all the locators, and a description of the
ground claimed. The tract of land so located was not in any
way snbdivided into 20 acre claims, and no other discoveries
were made, or marking done on the ground, than as stated above.
During the year 1891 plaintiffs did work and made improve-
ments on the entire tract of land to the amount of about |150.
Theoomplatnt, which was filed November 21, 1891, charged that
in the month of December, 1890, and at divers times between
that date and the commencement of this suit, the defendant
knowingly, willfully, and maliciously entered upon said land
without the consent of plaintiffs, and cut down and carried away
a large amount of trees and timber growing thereon, etc., claim-
ing actual damages in the sum of $3,000, and asking judgment
for treble damages under section 363 of the Code of Civil Pro-
cedure. The answer denies the title of plaintiffs, and all the
material allegations of the complaint. The case was tried by
the court with a jury. The jury returned a verdict for plaintiff
in the sum of $649.63, as actual damages, which they trebled,
making the sum of $1,648.49, for which sum judgment was
tendered. Defendant moved for new trial. This motion was
overruled. The defendant appealed from the judgment, and
the order refusing a new trial.
The appellant ooutends that the location of the mining claim
in the manner as above described is a nullity, and conferred
apon plaintiffs no right or title to the Landlock placer mining
claim, or to the right of possession thereof. The appellant
claims that, under the law, the plaintiffs should have made a
discovery on each 20 acre tract contained in the land sought
to be located; that each 20 acre tract therein contained should
have been marked upon the surface thereof, so that the boun-
daries thereof could have been readily traced; that a separate
location of each 20 acre tract was necessary under the law;
and that work or improvements of the value of $100 should
have been done on each 20 acre tract contained therein, for
the year 1891. Section 2330 of the Revised Statutes of the
United States, among other things, provides: ''But no loca-
tion of a plaoer olaim made after the ninth day of July, 1870,
92 McDonald v. Montana Wood Co. [Dec. T., 1893
shall exceed 160 acres for any ooe person or association of
persons/' This statute^ it seems to us, confers the right upon
an association of not less than eight persqns to locate not to
exceed 160 acres in one claim. This has been the holding
and ruling of the United States land department uniformly^
as far as we have been able to discover; and patents have uni-
formly issued in such cases^ when there was a showing of an
expenditure of $500 in work or improvements upon any part
of the 160 acre claim. (See Oood Betum Min. Co., 4 Dec
Dep. Int.^ 221; also^ Morrison's Mining Bights, 7tfa ed.,
134.) In SL Louis Smelting Co. v. Kemp, 104 U. S. 636,
Mr. Justice Field, delivering the opinion of the court, says:
'^ Tlie last position of the court below — that the owner of con-
tiguous locations, who seeks a patent, must present a separate
application for each, and obtain a separate survey, and prove
that upon each the required work has been performed — is as
untenable as the rulings already considered "; and in the same
case it is said: "It would be absurd to require a shaft to be
sunk on each location in a consolidated claim, when one shafl
would suffice for all the locations." In this case just cited,
Mr. Justice Field is speaking of the things necessary to be
done by an applicant to obtain a patent to placer mining
ground. In no case, nor in any ruling or decision of the
United States land department, that we have been able to find,
is it held to be necessary that a separate discovery, separate
marking of the boundaries, separate recording, and separate
work should be made and performed upon each 20 acres con-
tained in a 160 acre placer claim authorized to be located under
one location by an association of persons. If the plainti£& in
this suit had made such a discovery on the ground in contro-
versy, and had made such a location thereof, and were per-
forming such work, and making such improvements thereon,
as would entitle them to a patent therefor under the mining
laws of the United States, then they had such title and right
to possession as would entitle them to prosecute this action for
damages for the trespass complained of.
The appellant further contends that th^ evidence shows that
the plaintiffs had forfeited any right or title they may have
had to the ground in controversy, by failing to do the required
14 Mont.] McDonald v. Montana Wood Co. 93
amount of work thereon for the year 1891. The evidence in
this case shows, that work of the value of about |150 was
done for that year upon the entire claim. If, under the deci-
sions of the land department, and the tendency of the adjudi-
cations of the courts, $500 in work and improvements on any
part of a 160 acre claim, or any one of a number pf contiguous
claims, is sufficient to entitle applicants to a patent for the
whole of such ground or claims, then, by parity of reason, it
would seem that $100 in work or improvements expended or
made upon such 160 acre claim in any one year would save it
from forfeiture. Such seems to be the view taken by the laud
offices, and is in accordance with the customs, rules, and regu-.
lations of miners in this jurisdiction. But in this case a for-
feiture was not pleaded by appellant in its answer, although
the court below permitted evidence of the amount of work
done on said claim for the year 1891. There is no evidence
of a re-entry or relocation by any one on account of failure to
to do the required work by plaintiffs on said ground; nor does
the defendant connect itself with any outstanding title adverse
to plaintiff, or plead any license or warrant to enter upon the
ground in controversy. We do not find any thing in the rec-
ord to support the plea of forfeiture.
The appellant contends that in this case, if it were liable for
actual damages, the court below erred in rendering judgment
for treble damages. This suit was instituted for damages for
willful and malicious trespass; but respondents contend that,
notwithstanding the complaint charges willful and malicious
trespass, they are nevertheless entitled to treble damages, under
section 363, Code of Civil Procedure. The respondents con-
tend that it was not necessary, under said section, to allege or
prove malice, wantonness, or evil design, etc.
In Endlich on the Interpretation of Statutes, section 129,
the author, commenting on similar statutes, says: ^'Similarly,
statutes giving punitive, double, or treble damages against one
cutting and converting to his own use timber growing on the
land of another, without the latter's consent, are held confined
to cases where some element of willfulness, wantonness, care*
lessness, or evil design enters into the act.''
In Cohn v. Neeves, 40 Wis. 393, the court, in a case iuvolv-
94 McDonald v. Montana Wood Co. [Dec. T., 1893
ing the oonstraction of a statute similar to the one under oou-
sideration here, says: "The importaut question arising upon
the various exceptions taken by defendants is: Does the statute
give the treble damages when the conversion is merely a
technical conversion in law, as in the case before us, or was it
only intended to apply to cases where some ingredient of will-
fulnessi wantonness, or evil design enters into the act? Accord-
ing to the view of the circuit judge, the statute applies to every
case of the conversion of logs, timber, or lumber floating in
any of the waters of this state, or lying on the banks or shores
of such waters, or on any island where the same may have
drifted, and gives treble damages as the measure of recovery.
It seems to us that this is an unreasonable and unsound con-
struction of the provision. True, the language used is general,
and, if literally interpreted, would include any conversion.
But, says an acknowledged authority on this subject, in inter-
preting a statute it is not always a safe rule, or a true line of
construction, to decide according to the strict letter of the act,
but courts will rather consider what is its fair meaning, and
will expound it differently from the letter, in order to preserve
the intent Qui hoard in Uiera^ hasrd in oortioe. (Broom's
Legal Maxims, page 636.) Observing this rule of interpreta-
tion, looking at the object and purpose of the statute, we can-
not think it was intended to apply to every conversion of this
kind of property, situated or found as . described, without
regard to the question whether the conversion was wanton
and willful or not. It is needless to observe that the law is
highly penal in its character. By way of punishment it sub-
jects the wrongdoer, in certain cases, to an extraordinary liabil-
ity for the property of another appropriated to his use. In some
cases the conversion may be merely a technical one in law,
arising from accident, mistake, or even carelessness, without
any evil design, and where the damages recoverable at common
law afford an adequate compensation to the party injured.'^
The same conclusion is arrived at, and the same oonstruotion
placed upon a similar statute, in WcUlaoe v. Itnoh, 24 Mich.
256.
In Kramer v. Ooodlander^ 98 Pa. St 363, construing a
statute almost identical with ours, the court say: ^'Its [the
14 Mont] McDonald v. Montana Wood Co. 95
statute's] object is the preveutioii of willful or careless catting
of another's timber, by at once punishing the wrongdoer^ and
amply compensating the owner."
In the case at bar the evidence shows that the land in con*
troversy was located out in tlie wilderness, far away from
human habitation. The plaintiffs had to cut a trail through
the timber to get to it. The defendant, coming to the land from
another direction, had to cut a trail also. The defendant found
but little evidence that any of the land in the vicinity had ever
been claimed by any person for any purpose, except the blaz-
ing of four or five trees, and a small discovery shaft on the
ground in controversy, as the work of plaintiffs. There was
nothing to indicate that anybody actually asserted ownership
or dominion over any part of the country thereabout The
circumstances attending the trespass complained of here are
vastly different from a case where a person cuts down a shade
tree in front of another's house or lot, or enters another's close
and damages trees or timber therein, when all the evidences of
ownership in another are present These are the acts and tres-
passes we think are intended to be denounced and punished by
oar statute. The evidence in the case does not. snpport the
contention that there was any willfulness, wantonness, or
maliciousness in the acts or conduct of the defendant. We
therefore think that the evidence did not justify the render-
ing of judgment for treble damages against defendant in this
case.
It is ordered tliat the judgment of the court below be modi-
fied, by rendering judgment in favor of plaintiffs against the
defendant, for the amount of actual damages found by the jury,
and in other respects the judgment is affirmed as modified.
Modified and affisrrMd.
HabwooDi J,| ooncora.
96 Ellison v. Barker. [Dec. T., 1893
ELLISON ET AL., Appellants, v. BABKEB et ai-.,
Respondents.
[Submitted February 21, 1898. Decided February 12, 1S9L]
8iLX8 OF "pKaBovkLTi—Fraudulent repreBenUUioru.^A. finding that goods were
not obtained upon a fraudulent statement as to the vendee's financial con-
dition, is supported by evidenoe that shortly prior to the sale the vendor had,
after examining the vendee's financial condition, agreed to compromise aa
existing indebtedness at fifty cents on the dollar, and to extend future credit,
which compromise was finally effected at the time of making the statement,
and purchasing the goods in controversy.
Appeal from First Judicial Distiidy Lewis and Qarke County.
Action for claim and delivery. The cause was tried before
BucKy J. Defendant had judgment below* Affirmed.
jT. J. TFa&A, for Appellants.
Two important allegations of the complaint are left wholly
undenied, namely^ that at the time the representations were
made Barker was insolvent, and that he knew it. The inves-
tigation is, therefore, narrowed to two inquiries, Did Barker
make the representations, and did plaintifib rely on them?
The evidence admits the making of the representations, so that
the only real question is as to whether plaintifis relied on them.
In the consideration of this proposition it should be remem-
bered that though this is a fact to be proven by the plaintiffs,
yet on proof that material representations were made, and that
they were false, a presumption arises that they were relied
upon, and the burden falls on the defendant to show that they
were not. (Benjamin on Sales, 556; Ihhback v. Miller, 15
Nev. 428-43; Kerr on Fraud and Mistake, 75; Holbrook v.
Burly 22 Pick. 546-52; Benjamin on Sales, 677; Redgrave v.
Hurdy L. R., 20 Ch. Div. 1-24.) In addition to the presump-
tion afforded by the law, the testimony of Bodman B. Ellison
is direct and positive that it was on his faith in the representa-
tions that he agreed to let Barker have the goods, that he relied
on the truth of the same, and that the goods would not have
been delivered if the statement containing the representations
had not been executed. The question of whether plaintiffs
relied upon the representations made to them is a question of
14 Mont.1 Ellison v. Barkbb. 97
the state of their minds^ and manifestly their positive assertion
as to such a matter can only be affected by the most oonvino-
ing circumstances. Conceding that the statement was not
made until the day following the compromise, and that on the
latter day they were willing to let the goods go without a
statement, plaintiffs still had a perfect right to change their
minds at any time before the delivery of the goods, and to
refuse to let them go unless they had further assurance of
defendant's ability to pay — ^being responsible, of course, for
any damages he might suffer, if plaintiffs had contracted with
him to deliver the goods. (Nebi'oska Giy v. Nebi^atUca Hydravr
He etc. Q).y 9 Neb. 339; Qark v. MarHglia, 1 Denio, 317; 43
Am. Dec 670.) If the representations were made at any time
before the delivery of the goods, and the plaintiffs relied on
them, or they were one of the inducements to the sale, then it
was voidable. It was error to admit testimony by defendant
as to his purpose in making the statement at the time of com-
promise, whether it was to obtain credit or to deceive and
defraud plaintiffs. This testimony was irrelevant and preju-
dicial. The introduction of it violates the fundamental rule
that every one is presumed, conclusively, to intend the natural
and necessary consequences of his own acts, at least when they
are acted upon to the damage of anotlier. But the intent with
which the false representations are made is wholly immaterial
as established by the following authorities. {Reed v. Pinney,
86 III. App. 610; Case v. Ayera, 65 111. 142; Fasier v. Oiarlea,
6 Bing. 396; KdOi v. OoldfsUm, 22 111. App. 457; Qough v.
BL John, 16 Wend. 646; Johnson v. Peck, 1 Wood & M., 334.)
Aehbum K. Barbour, for Respondents.
The answer does not deny that Barker was insolvent at the
time of making the representations; it denies the making of
the representations set forth in plaintiff's complaint, and denies
that they were false and fraudulent. The denial that the rep-
resentations were false and fraudulent embraces the denial
that Barker knew that they were false at the time of making
them. In order to constitute fraud in the matter of the state-
meoty the element of knowledge on Barker's part was essential.
{Satt V. lAUle, 63 N. Y. 427-31; BraekeU v. Oriswold, 112
Vol. XIV.— 7
^6 Ellison v. Bakkbk. [Dec. T., 1893
N. Y. 467; Plant v. OondU, 22 Ark. 459; PetUgrew v. OieUia,
41 N. H. 96; 3fot*8e y. Dearborn^ 109 Mass. 594; Taylor v.
li^oat, 39 Miss. 328; Bond v. Oark, 36 Vt. 577; Shippen y.
Bowen, 48 Fed. Rep. 659.) The gist of this action is the &lse
and fraudulent re])resetitatious made by Barker. Iq order to
recover^ the plaintiffs must sliow that the statement: 1. Was
made to them^ or with the direct intention that it should be
communicated to them, and that thej should act upon it;
2. It must be false in fact; 3. It must be false to the knowl-
edge of the defendant, or be made by him recklessly, etc.;
4. It must be a material representation; and 5. Tlie plaintiffs
must have acted upon the faith of it, and suffered damages.
(Benjamin on Sales, rev. ed., § 694; Arthur v. GrmDold,
56 N. Y. 405; Morris v. TalcoU, 96 N. Y. 100; Maeullar
V. McKinley, 99 N. Y. 356; Taylor y. Frost, 39 Miss. 328;
Bond V. Qarkj 35 Vt 577; Morse v. Dearborn^ 109 Mass.
593; Shippen v. Bofven, 48 Fed. Rep. 659; 8tUt y. lAUle, 63
N. Y. 427-31.) A representation false in fact gives no right
of action if innocently made by a party who believes the truth
of what he asserts. (Benjamin on Sales, §§ 679-89, inclu-
sive.) This is a settled rule in England, and is concurred in
both by the queen's bench and tlie exchequer. (Evans v.
Cbllins, 6 Q. B. 820; Ormrod v. Huth, 14 Mees. ft W. 650;
Dickson v. Reuiertf TeL Co., 3 Com. PI. Div. 1.) False
representations to avoid a contract must be made for the
purpose of inducing the party complaining to enter into the
contract, and must have been relied upon by him. (Bernnger
v. Cbift, 68 Mich. 667; Humphrey v. Merriam, 32 Minn. 197.)
In an action to recover possession of goods sold and delivered
to defendants, on the ground that the sale was induced by false
and fraudulent representations made by them, the burden is
upon the plaintiffs to establish that such representations were
made with the intent to deceive and defraud. (Coffin v. Hoi"
lister, 124 N. Y. 644; BothschUd v. Portery 19 N. Y. Supp.
177; Morse v. Dearborn, 109 Mass. 693.) In actions for false
representations and deceit, it must be shown that the defend-
ant knew the representations to be false at the time of making
thenu In other words, the soienier, as it is termed^ must be
14 Mont Ellison v. Babkbb. 99
proved. (Plata v. QmdU, 22 Art. 459; PeUigreio v. CftdSi,
41 N. H. 96.)
Pembebton, C. J. — ^This is an action for the recovery of
the possession of personal property, and for damages for the
alleged wrongful detention thereof.
The complaint alleges "that on the third day of January,
1891, at the city of Philadelphia, state of Pennsylvania, the
defendant James W. Barker, for the purpose of inducing
plaintiffs to sell him certain goods, represented to the plain-
tiffs that he was worth the sum of $7,800 over and above all
debts and liabilities, and that he was indebted for borrowed
money in the sum of $1,300 only, and that his total liabilities
amounted to but $3,400, including $2,100 due for merchan-
dise; that the plaintiffs were thereby induced and did sell and
deliver to the defendant James W. Barker goods, wares, and
merchandise of the value of $1,000; that said representations
were false, and the said defendant James W. Barker was not
worth at said time $7,800 over and above all his debts and lia-
bilities, or any other sum whatever, but at said time was insol-
vent, and had not sufficient property with which to pay his
debts, and these facts were then known by the said defendant
to be so; that at the times said representations were made the
said James W. Barker was indebted to the First National Bank
of Helena, as plaintiffs are informed by the officers of said
bank, in the sum of $3,134.43 and accrued interest, borrowed
money; that he was then indebted to one E. H. Reynolds,
as platutifis are informed by said Reynolds, in the sum of
$500, or more, for borrrowed money, and that he was then
indebted to the Thomas Cruse Savings Bank in the sum of
$180, for borrowed money, all of which indebtedness the said
James Barker then well knew''; that defendant Barker after-
wards transferred a certain part of said goods, of the alleged
value of $566 (which are described in the complaint) to
defendant Davidson; that plaintiffs have demanded of said
Davidson the possession of said goods; that he refused to
deliver the same, and now unlawfully and wrongfully with-
holds and detains the same. Plaintiffs ask judgment for the
possession of the goods, or their value, and $500 damages for
100 Ellison v. Babkbr. [Dec. T.^ 1893
the detention thereof. Defendant Barker does not answer, the
cause having been dismissed as to him. Defendant Davidson's
answer denies all the material allegations of the oomplaint^
and alleges affirmatively as follows:
'U. U{)on information and belief, defendant alleges that the
goods, wares, and merchandise sold and delivered by plaintiffs
to defendant James W. Barker, as set forth in plaintiffs' com-
plaint herein, were sold to said Barker in pursuance and in
accordance with a certain agreement of settlement made and
entered into by and between said plaintifis and said James W.
Barker on the second day of January, 1891.
^'2. Tliat, upon the second day of January, 1891, the said
James W. Barker was indebted to plaintiffs in the sum of
$4,675.99; that according to the terms of said agreement the
said defendant James W. Barker was to pay the said plaintiffs,
in cash, the sum of $2,728, and the remaining sum of $1,847.99
in five promissory notes, four of which said promissory notes
were to be made for the sum of $350 each, and the fourth of said
promissory notes was to be for the sum of $447.99; and that
the plaintiffs thereupon agreed to sell, and did sell, to said
Barker, upon said agreement, goods, wares, and merchandise
of the value of $1,016.81, the said goods including the goods,
wares, and merchandise mentioned in plaintiffs' complaint
herein.
^'3. That the said Barker, in pursuance of the terms of said
agreement, did, on or about the — day of February, A. D.
1891, pay to the said plaintiffs the sum of $2,728 in.cash, and
on the second day of January, 1891, did make, execute, and
deliver to the said plaintiffs the four promissory notes as here-
inabove mentioned and described; and that in pursuance of
said agreement the said plaintiffs did ship and deliver said
goods, wares, and merchandise to the said James W. Barker.
^'4. And defendant alleges, upon information and belief, that
fliiid goods and merchandise were sold and delivered in pursu-
ance of said agreement, and in consideration thereof^ and not
upon any representations or statements made by the said
James W. Barker upon the third day of Jannary, 1891« or at
any other time or place, or upon any other statement."
The affirmative matter of this answer is denied hj repli«
14 Mont. Ellison v. Babksb. 101
cation. The case was tried bj the ooart with a jary, and
resulted in a verdict and judgment for the defendant. Plain-
tiffs moved for a new trial, which was denied. From the judg-
ment and order denying a new trial this appeal is prosecuted.
It will be observed that the pleadings raise two issues:
1. Did Barker, by making said allied false statement, induce
the plaintiffs to sell him the goods involved in this contro-
versy? 2. Were said goods sold by plaintifib to said Barker
under and in accordance with the agreement of compromise
set up in the answer?
The ap{)ellant's principal contention in this court is, that
the verdict of the jury in the court below is not supported by
the evidence. The statement made by Barker as to his finan-
cial condition, and allied to be false, is in writing, dated
January 3, 1891, and signed by himself, and is in evidence in
the case, and is substantially as alleged in the complaint.
R. B. Ellison, one of the plaintiffs, testifies that he sold the
goods to Barker on the faith of said statement, believing it to
be a correct statement of his financial condition, and that he
would not have so sold the goods to him without said state-
ment having been given. His evidence supports the material
allegations of the complaint. Samuel W. Lambeth, who
swears that he has been for thirty years an assistant in the
collection and credit department of the plaintiffs' firm, testi-
fies that he was present when Barker made and signed the
said statement, and his evidence is substantially to the same
effect as R. B. Ellison's. These are the only witnesses on the
part of plaintiffs to the facts attending the sale of the goods.
Barker testifies that the goods in controversy were ordered by
him in October or November, 1890, of John W. Moore, a
salesman of the plaintiffs' firm; that at that time he ordered
of said Moore $2,000 worth of goods; that he did not purchase
them in fact in January, 1891, the date of said financial state-
ment; that at the last date he changed the order he had given
Moore in October or November, 1890, by cutting it down to
the amount of $1,000, the amount mentioned in the complaint;
that he did not purchase the goods in controversy under and
by virtue of the financial statement made by him; that when
he made said statement he was in Philadelphiai without hm
102 Ellison v. Barker. [Deo. T., 1898
books, or any data from which he could make a correct state-
ment; that he told the plaintiffs he could not make a correct
statement; that they insisted that he make it as best he could;
that no trouble would ever come of it; that it was the custom
of the firm; that prior to his making the statement he had
made a contract or agreement with plaintiffs^ by which he had
compromised his ^indebtedness then existing to them at fifty
cents on the dollar, and for future credit; that the purchase
of tlie goods in controversy was completed as a result of said
compromise; that this compromise agreement was made on
the second day of January, 1891; that in pursuance and in
accordance with the terms thereof he paid plaintiffs $2,728
cash, executed and delivered to them his four promissory
notes, and delivered to them $25,000 in shares of mining
stock as security for said notes, and for future credit for
goods; that said goods were sold and delivered under and
in pursuance of said compromise, and not on account of said
financial statement; that said plaintiffs well knew his financial
condition on the second day of January, 1891, the date of said
statement, and prior thereto; that in December, 1890, Lam-
beth, witness for plaintiffs, the credit man of the plaintiff
firm, came to Helena to examine, and did examine, his finan-
cial condition; that Lambeth took an inventory or account of
his stock in Helena; that the compromise above mentioned
was entered into verbally with said Lambeth for said plaintiffs
at tliat time; that, in accordance therewith, he went to Canada
to raise the necessary money to carry out said compromise on
his part; that Lambeth was with him in Canada; that from
Canada they went to Philadelphia, where said compromise
agreement was reduced to writing, and signed by plaintiffii
and Barker; that said contract is in evidence in this case; that
the sale and delivery of the goods in controversy was the result
of said compromise, and was not induced, and did not in any
way result from, said financial statement mentioned in the
complaint; that plaintiffs have never returned, or offered to
return, the money paid, and the notes and mining stock, or
any part thereof, delivered by Barker in pursuance of said
compromise. The evidence in relation to this compromise is
not dbpnted. That Lambeth was in Helena in December^
14Mont.l Ellison v. Babkbb. 108
1890y and examined the financial condition of Barker for
plaintifisy is not questioned.
It being undisputed that plaintiffs^ after a full examination
of Barker's condition^ and with full knowledge thereof, in
writing, compromised their claim against Barker at fifty
cents on the dollar, and agreed to extend future credit on
the second day of January, 1891, how can they now consist-
ently say that they relied on his statement of his financial
condition made at the same time, as they say, and were induced
thereby to part with the goods in controversy? Lambeth, the
credit man of tlie firm, knew Barker was insolvent The very
contract of compromise signed by the plaintiffs is a showing
that Barker was insolvent at the date thereof. Do these cir-
cumstances and proofs not tend to show that plaintiffs did not
rely upon the financial statement made by Barker as a con-
trolling inducement to part with their goods? Do these facts
and circumstances, taken in connection with Barker's evidence,
not tend to show that the plaintiffs delivered and parted with
their goods under and in accordance with the terms of the
written agreement of compromise, and for future credit in
evidence in this case? From these facts and circumstances,
were not the jury authorized to believe and find that the goods
were not obtained by fraud, as alleged in the complaint, but
that they were delivered under the terms of the compromise
between plaintiffs and Barker? We think so; We are there-
fore of the opinion that the contention of appellants that
the verdict of the jury is not supported by the evidence is
untenable.
The appellants assign other errors as to the instructions of
the oourt and the admission of certain evidence. We have
examined the instructions, and think they clearly and fairly
declared the law governing the case. We think there was no
error in admitting the evidence complained of. We are of
opinion that the holding in regard to the sufficiency of the
evidence to support the verdict is decisive of this appeal.
The order and judgment appealed from are affirmed.
Affirmed.
Habwood, J., concnrs*
104 Leggat v. Lkggat. [Dec. T., 1893
LEGGAT, Respondent, t>. LEGGAT et al., Appellants.
[Submitted Febroazy 7, 189S. Decided Febraaiy 12, 1894.]
hlUDiTLSirr CovYKiAxicsa—AUonMy in fact—CoUusi(m,-^k conyejanoe will ba
■at Mide m frtodalent, where it appeared that the plaintiff had, at the instance
of one brother-in-law, appointed another brother-in-law her attorney in fact,
and that the latter had then con?eyed her interest to the former for a groesly
inadequate ooutideration, which was accepted by plaintiff in ignorance of the
facts, the having reposed entire confidence in them, and haying no other source
of information, and they, acting in collusion, had concealed from her the yalue
of the property, and falsely represented the title to be in litigation, and the
property to become a source of expense, while in fact it was yielding consider-
able reyenue, and its title virtually unassailable.
Bams— Df/ense~ZDtdanc0.— A claim of equitable ownership of such property by
the defendant, he alleging to have originally conveyed it to plaintiff's husband
•s security for a loan, is contradicted by evidence that the property was pur-
chased by him from defendant for several thousand dollars; that thereafter he
had for several years paid hid proportion of the eipense of annual representa-
tion, which expense also included items for personal services by defendant,
and that defendant, in his letters to plaintiff, referred to plaintiff's interest ae
" your interest" in the property, and at the time it was conveyed to plaintiff
by her husband through defendant he asserted no claim to it.
8lMB—i2a<i^ation—jB^mifnoe.— Evidence that defendant immediately after pur-
chasing the property had written to plaintiff, informing her of the sale, and
referring to lawsuits affecting the property, saying, " The third interest I
bought from.you I deeded to Alex for a loan of two hundred dollars, which I
sorely needed," and thereafter had sent her a portion of the money, which she
received and retained for several months without repudiating the sale, although
in possession of letters from defendant, tending to show that he was not the
equitable owner of her property, is insufficient to show a ratification of snoh
■ale by plaintiff with full knowledge of the facts.
Appeal from Seoorid Judioial District^ Silver Bow ODunty,
Action to annul fraudulent oonveyanoe. Judgment was
rendered for plaintiff below by McHatton^ J. Affirmed.
Forbia & Forbis, for Appellants.
I. It is a well-settled rule of law, that one who alleges
actual fraud against another must prove the fraud as alleged,
and that relief will not be granted upon the proof of construct-
ive fraud, or upon proof of any other fraud than that alleged
in the complaint. (Kerr on Fraud and Mistake, 382, 383,
and note; 1 DanielFs Chancery Practice, 327, 328, 383, and
note; Eyre v. Potter, 16 How. 42; Bigelow on Fraud, 466;
Herder v* Leuna, 39 Cal. 632; Leighton v. OrarU, 20 Minn.
14 Mont.] Leooat v. Leggat. 105
345; CblKna v. Jackson, M Mich, 186, 190; Barnes y. Quigley,
59 N. Y, 265; Bumham v, Noyes, 125 Mass. 85.) John A.
Leggat made no false representations to the plaintiff. He did
not induce her to appoint R. D. L^gat as her attorney, but
in fact recommended other parties. There is no proof of any
collusive conduct between John A. Leggat and R. D. Leggat.
The complaint does not allege sufficient to show a fiduciary
relation existing between plaiutiiBf and defendant John D. Leg-
gat, nor does the proof show it. In matters of this kind the
brother-in-law, we think, does not stand in a fiduciary relation
to the sister-in-law, and that merely doing friendly offices, as
was the case on the part of John A. Leggat toward the plaiu-
tifif, does not constitute a fiduciary relation, and if there was no
fiduciary relation then there is nothing in the fact that title to
property has been misrepresented, even if a misrepresentation
as to the title could be shown. {Robins v. Hope, 67 Cal. 493.)
II. It is also a well-settled rule of law, that where a party
has been defrauded as the plaintiff claims she was in this case
she must use diligence in disclaiming the transaction when it
is discovered, and that she must do nothing to ratify or con-
firm it afler the facts are brought to her notice. Plaintiff did
not contradict the statements of John A. Leggat as to the con-
dition of affairs between himself and plaintiff's husband, nor
did she disclaim the action of her attorney in making the sale,
but over two months afterwards received, without protest, the
sum sent to her as the purchase price, and used it; and not
until fourteen months after she had received the money did
she disclaim the sale which had been made, although all of
tlie evidence upon which she seeks to avoid a sale was, during
the whole of this time, in her possession. The authorities
upon this question are too numerous for citation, because we
believe it is a universal rule of law, decided by almost every
court, that the transaction must be repudiated with diligence if
it was procured by fraud, and that any waiver or ratification of
the fraud would preclude the party defrauded from seeking
the remedy thereafter. {Upton v. TrebUcodk, 91 U. 8. 45;
Bigelow on Fraud, 443; Kerr on Fraud and Mistake, 298
et seq.; Bweetman v. Prinee^ 26 N. T. 224; Saratoga do. R. R.
Cb. V. Row, 24 Wend. 74; 35 Am. Dec. 598: Sanger v. Wood^
106 Legoat v. Leogat. [Dec. T., 1898
3 Johns. Cli. 416; Veimol v. Veimoly 63 N. Y. 46; StaughUry.
Oerson, 13 Wall. 379; Sample v. Bamea, 14 How. 70.)
William SoaUonj for Bespondent.
I. John A. Leggat stood in confidential relations to tbe
plaintiff; his letters to the plaintiff^ as well as his evidence,
show that he acted about her property as her agent and man-
ager, both before and after this transaction. He alludes to the
application for patent and entry of the claim. He collected
rents for her, sold some personal property, gave leases on
claims, etc. His management does not merit any commenda-
tion, but he did assume to manage plaintiff's properties in
Montana; he assumed to act as her adviser and her confiden-
tial friend. He promised repeatedly that he would assist and
advise any attorney whom she might appoint, and suggested
the name of B. D. Leggat. Besides, B. D. Leggat's action
in deeding this projjerty to John A. Leggat was a clear viola-
tion of his duty — a fraud on the plaintiff. John A. Leggat
knew it, and took and reaped the benefit of it. This makes
him equally guilty with B. D. Leggat, even if there were no
other act of fraud on his part.
II. There was absolute fraud as shown by the concealment;
the relations of the defendants; their relations to plaintiff; the
alleged conversation between the defendants, and the manner
in wliich the deed was given; the inadequacy of consideration;
falsity of defenses; failure to consult plaintiff, or fairly state
the case to her; and other circumstances, even irrespective of
collusion — but there is collusion. Where suspicious circum-
stances exist, inadequacy of consideration is almost conclusive
evidence of fraud. {Gofer v. Moore, 87 Ala. 705; WeUzdl v.
Fryy 4 Dall. 218; 2 Pomeroy's Equity Jurisprudence^! 927)
note 2; Kerr on Fraud, 189; AUore v. Jewell, 94 U. S. 606;
HaUdi V. CoUins, 10 How. 182; Qrvber v. Baker, 20 Nev.
453.)
III. ^* Collusion between two persons to the prejudice of a
third is, to the eye of the court, the same as a fraud.'' (Kerr
on Fraud, 195, 270; Ead India Ob. v. Henchman, 1 Ves.
Jr. 288; note to PoUer^s Appeal, 7 Am. St Eep. 279 et seq.)
Nor does it make any difference that the agent or person in
14 Mont.] Leggat t?. Legoat. 107
oonfidential relations is a voluntary agent, or that no benefit is
derived by him directly from the transaction. (Kerr on Fraud^
270; Hunsaher v. Sturffia, 29 Cal. 142.)
rV. When any third person, even though a stranger, col-
ludes with one in fiduciary or confidential relations to the
plaintiff the case becomes one of constructive fraud; and the
same burden is cast upon the third person as would be on an
agent, and the case is governed by the rules applicable to con-
structive fraud. (Bigelow on Fraud, 2d ed., 1888, p. 676 et
0eq.; Mecham on Agency, § 797.) An agent who fraudu-
lently and wrongfully transfers his principal's property to a
third person who has knowledge or notice of the fraud, or to
one who is not a bona fide purchaser for value, does not deprive
the principal of his title to the property, nor bar his right of
action to recover the property or its value from the person so
receiving it. (1 Wait's Actions and Defenses, 285; 1 Perry on
Trusts, 4th ed., § 211.)
V. The burden is upon the defendant to show that he
dealt fairly with the plaintiff; that the latter was made fully
acquainted with the value, and all of the circumstances and
conditions of the property; that the price was fair, and tliat
the defendant was guilty of no inequitable practices, or of con-
cealment or misrepresentation; and that full disclosure was
made to the plaintiff. (1 Story's Equity Jurisprudence, 318;
Bigelow on Fraud, 261-63, 296-99.) That John A. Leggat
sustained confidential relations to the plaintiff is shown by
the following authorities, applied to the facts of this case:
Bigelow on Fraud, 262; Kerr on Fraud, 183, 193; 2 Warvelle
on Vendors, 866, note 5; Bishop on Contracts, § 740, note 6;
wherein he quotes Seevers, C. J., in Leighton v. Or, 44 Iowa,
679, to the effect that ^'it matters not what the relation is, if
confidence is reposed and influence obtained." (2 Pomeroy'a
Equity Jurisprudence, §§ 951, 963; Pastor v. Baloh, 69 Mo.
123; Baylis8 v. Williams, 6 Cold. 440; 1 Perry on Trusts,
§§ 201, 204; Huguenin v. Basdey, 2 White & Tudor'a Leading
Cases in Equity, part 2, pp. 1233, 1234; Hunsaker v. SturgiSf
29 Cal. 142; note to Patterns Appeal, 7 Am. St. Rep. 279 et seq.)
VI. Upon the facts of this case no laches or acquiescence
can be imputed to the plaintiff. Before laches can be imputed
108 Legoat v. Leggat, [Dec. T., 1898
the injured party mnst have acquired knowledge of the fraud,
and have delayed an unreasonable time after the discovery;
and he must have been fully apprised of all the facts relating
to the fraud before he can be guilty of laches; and the discov-
ery of only a part of the fraud is not sufficient (12 Am. A
Eng. Ency. of Law, 557, 658, 578, 604, 605; HalleU v. CWKiw,
10 How. 186; Allo9'e v. Jewell, 94 U. S. 506-12.) In this case
six years held not a bar. This action was brought within two
years, and before the statute of limitations could possibly
have run. So laches cannot be imputed. (Bigelow on Fraud,
23, 38-40; Kerr on Fraud, 300; 12 Am. & Eng. Ency. of
Law, 545; 2 Pomeroy's Equity Jurisprudence, § 965, and note
2, toward end of note; Lux v. Haggin^ 69 Cal. 267.) The
defense of laches is an affirmative one, and the burden is upon
the defendant to establish it. (Bigelow on Fraud, 136.) The
sale was one in which plaintiff might have acquiesced, but she
did not do so.
VIL The rule stated in Robins v. Hope, 57 Cal. 493— that
a party is conclusively presumed to know the condition of his
title to real estate — is not correct. If correct, it would follow
that there could be no relief granted for mistakes as to title,
but such relief has many times been granted. (Kerr on Fraud,
398-401, 406, 413, 415; 1 Story's Equity Jurisprudence,
§ 122 and following, and 130; 2 Pomeroy's Equity Juris-
prudence, 847, 848, and notes, 849, especially on p. 314; Trigg
V. Bead, 5 Humph. 529; 42 Am. Dec. 447; HalleU v. Cbffiw,
10 How. 186; BUlinga v. Aspen Min.ete. O)., 51 Fed. £ep. 338.)
Harwood, J. — Through this action plaintiff sought and
obtained a decree annulling the sale, and canceling the con*
veyance, whereby defendant John A. Leggat acquired and held
title to one-third interest in the Old Glory mining claim, situ*
ate near Butte City, in Silver Bow county, Montana, with pro-
vision for the restoration of said property to plaintiff, together
with the rents and profits obtained therefrom by said defend-
ant while he held the title thereto. The annulled sale and
conveyance were made by defendant Boderick D. Leggat, act*
ing as attorney in fact for plaintiff. The grounds for soch
relief, as alleged in the complaint, and affirmed by the decree.
14 Mont.] Legoat v. Leggat. 109
were false and fraudulent representations and oonoealments by
defendants^ acting in collusion, concerning the value, and con-
ditions affecting the value, of said property, whereby they
betrayed the trust and confidence which plaintiff had been led
to repose ;q them, and induced plaintiff to accept a grossly
inadequate price for said property. From the decree, and the
onler of the court overruling defendants' motion for new triaU
this appeal is prosecuted.
Appellants assign in their brief, and urge in argument, two
propositions, on which they insist the judgment is not supported
by the evidence, and for which reasons it should be reversed:
1. Because the alleged fraud is not proved as charged in the
complaint; 2. Because the proof shows that plaintiff acquiesced
in^ approved, and ratified said sale and purchase, and received
the price paid with full knowledge of all the facts in relation
to said property on which she now predicates fraud, and seeks
to avoid the transaction. The pleadings and proof must there-
fore be reviewed from the standpoint of these assignments.
During the times mentioned in these proceedings, plaintiff
resided in the state of Missouri, while defendants, her brothers-
in-law, resided at Butte City, state of Montana, very near the
location of the property in question. Plaintiff sets forth in
her complaint that on the 6th of May, 1888, and for two
years prior thereto, she was seised in fee and possessed of an
undivided one-third interest in and to a certain quartz lode
mining claim, known as ^^Old Glory mining location,'^ situate
in said county, etc., giving particular description thereof.
That on December 15, 1887, by power of attorney executed
and delivered, she appointed and empowered defendant Boder-
ick D. Leggat as her attorney in fact, to manage and sell cer-
tain of her real estate situate in Silver Bow county, Montana,
and particularly her interest in said Old Glory mining claim,
which power was accepted by Boderick D., and continued in
force until revoked, in 1888. That such appointment was
made because so advised by defendant John A., who, through
liis correspondence with plaintiff, had pretended to act as her
friendly and confidential adviser in respect to her property and
afiairs in Montana, and particularly her interest in said lode
daim^ both before and after such appointment, whose state-
110 Legqat t;. Leggat. [Dec. T., 1898
ments she believed, and whose counsel she trusted and relied
Upon, and because of her trust and confidence in both defendants
as brothers of her late husband, Alexander J. Leggat That
on or about May 6, 1888, Roderick D., acting as plaintiff's said
attorney, sold and conveyed plaintiff's one-third interest io
said Old Glory mining clainai to defendant John A., for $1,000,
a greatly inadequate consideration, for said property was worth
at least five times said amount, and was constantly increasing
in value. That about the 23d of April, 1888, a short time
prior to said sale to John A., a small portion of the surface,
only, of said claim, without conveying any rights to the min-
eral therein, was sold and conveyed to Adam Farrady for
$3,000, of which plaintiff's share was $1,600; and both defend-
ants were parties to that conveyance, Roderick D. signing it
as plaintiff's attorney in fact. That such fact was concealed
from plaintiff by both defendants, and plaintiff discovered the
snme only within about two weeks before instituting this action.
That none of her share of the proceeds of said sale to Farrady
was accounted for or paid to her. That a large portion of the
town of Centerville, in Silver Bow county, Montana, is built
on said mining claim, and all, or nearly all, of the occupants
thereof were paying, or had agreed to pay, ground rent to the
owners of eaid claim, which ground rent was worth several
thousand dollars per annum; and many valuable buildings are
erected on said claim, which, as plaintiff is advised, become
part of said property belonging to the owners thereof. That,
in addition to the value of the surface ground, the vein of said
mining claim is of considerable value. That, until a few weeks
])rior to the commencement of this action, plaintiff was in com-
plete ignorance of the value of said property, its condition and
title. That defendants were plaintiff's only source of informa-
tion. That they, as plaintiff is informed and believes, and
therefore alleges, confederated together for the purpose of con-
cealing from plaintiff the value of said property, and mislead-
ing her concerning the same, and thereby to fraudulently induce
plaintiff to accept for her interest a grossly inadequate snm;
and that, pursuant to such collusion and conspiracy, defendant
John A. several times wrote to plaintiff that said claim was
the source of much annoyance and ezpensOi was involved io
14 Mont.] Legoat v. Leogat. Ill
litigation, and the title thereto was doubtfal, and. that he was
compelled to devote much time, labor, and money to protect
the plaintiff's interest therein; and that defendant Koderick
D. concealed the true facts in regard to said property from
plaintiff, and gave her no correct information thereof. That
such statements made by John A., and each and all of them,
were false, and known by him to be false, except the statement
that he pretended to manage said claim; for, in fact, when
plaintiff's interest in said property was conveyed to John A.,
tlie title to said claim was good and uncontested, and the
ground rents for the occupied portions thereof were of great
value, as aforesaid, besides the value of the claim itself, and
the value of said property was constantly increasing, as defend-
ants well knew. That such sale of plaintiff's interest was
made by Roderick D. to John A., without the knowledge or
consultation of plaintiff; but afterwards plaintiff was informed
of such sale by letters received from each of the defendants,
wherein they stated that $1,000 was all that plaintiff's inter-
est was worth, and that the title thereto was doubtful and in
litigation, or threatened with litigation, which statements were
false, as both defendants well knew; but plaintiff then relied
upon and believed said statements, and, being deceived thereby,
was induced to accept $1,000 for said property, whereby
defendants defrauded plaintiff, and deprived her of many thou-
sands of dollars of value in said property. That plaintiff only
discovered such fraud a few weeks prior to the commencement
of this action. That she then tendered back to John A. the
sum paid for her interest in said property, with interest since
payment, and demanded a reconveyance thereof to her, all of
which was refused. That while defendant John A. has held
title to said property he has received rents and profits thereof
to a large amount, for which plaintiff asks an accounting and
judgment, together with a decree compelling the restoration of
said property to her.
Defendants made separate answers to the complaint^ but very
similar in substance. There is no denial of the transfer of
said property by Roderick D., acting as plaintiff's attorney in
fact, to John A., for $1,000 consideration; nor denial that
plaintiS's interest in said property was worth upwards of five
112 Leqgat 17. Leggat. [Dec. T., 1898
times that sum; Dor that defendants were nnaoqnainted with
its value^ or the oircumstanoes whioh enhanced its value. As
to the alleged sale of a small portion of the surface of said
elaim to Farradj, it is denied that the proportion of the pro-
ceeds of that sale due to plaintiff's interest amounted to $1,500,
or any sura greater than $1,000. But defendants specifically
deny all the material allegations of the complaint charging
them with false representations and fraudulent concealments in
reference to said property; and by way of new matter of defense,
in support of the good faith of the transaction, defendants allege
that John A. Leggat was in fact the equitable owner of said
interest during all the time the legal title thereof was held by
plaintiff and her late husband, Alexander J. Leggat; that, in the
year 1882, John A. conveyed the legal title to said interest to
Alexander J. to secure a loan of $200, which the former had
borrowed from the latter; that such conveyance was in fact a
mortgage, and so considered and intended by the parties thereto,
to secure repayment of said sum of $200; that the title to said
property was afterwards conveyed to plaintiff, Ruth F., in
consideration of her husband's love and affection for her, and
for no other consideration; and defendants allege, on informa-
tion and belief, that plaintiff was ''fully aware of the character
of said transaction between John A. and her husband, Alex-
ander J., and knew, or ought to have known, that the title
which she had to said property was intended as security for
the amount due from defendant John A. to Alexander J. Leg^
gat^'; that defendant John A. paid the sum of $1,000 to
Ruth F., through her attorney, Roderick. D., to redeem said
property from such pledge as security, and to procure its recon-
veyance to him; that said sum was greatly in excess of the
amount due for such redemption, but on account of his rela-
tionship to plaintiff, and his desire to relieve her necessities,
John A. paid such liberal sum for the redemption of said inters
est. All this new matter of defense is specifically denied by
plaintiff's replication.
The trial ensued, whereat the respective parties introduced
their evidence, argued and submitted the case to the court
without asking special findings^ and 'with the~ understanding
that the court, after due deliberatioui would determine the case
14 Mont.] Leogat v. Leoqat. 118
bj a general finding; and thereafter the court returned its gen-
eral finding in favor of plaintifi^, to the effect that all the alle-
gations of her complaint had been established by the proof,
and were true; whereupon judgment was rendered accordingly,
as aforesaid.
Passing to an examination of the evidence, bearing in mind
the assignments of appellants, it must be ascertained: 1.
Whether the fraud was proved as alleged; and 2. Whether
plaintiff acquiesced in and ratified the sale in question with
full knowledge of the facts. '^
There appears to be no dispute that the conduct of Boderick
D.y as the attorney in fact for plaintiff, in reference to her
interest in question, was a fraudulent betrayal of the trust
reposed in him by plaintiff. But as to John A. it is contended
there is no showing that he was in collusion with Bo<lerick D.,
or guilty of any false representations or deceptions in reference
to the subject of this action. We find ourselves, however,
unable to place that interpretation upon his conduct or his
representations in this matter. We find in the evidence, giving
it as favorable interpretation towards John A. as it will bear,
abundant support for the conclusion reached by the trial court
The attitude assumed by John A. towards plaintiff, as shown
in his letters to her ^fter the decease of her husband, Alexander
J., seemed to have been calculated to lead plaintiff to place
confidence in him, and to rely upon and adopt his counsel in
relation to her property in Montana. There is in these letters
the appearance and expression of good faith, kindness, and
earnest solicitude for the welfare of plaintiff, yet perfect inde-
pendence and disinterestedness; even more, they exhibit a
spirit of chivalrous generosity and magnanimity of one, strong,
well informed, and experienced, towards the weak and depend-
ent, mingled with occasional expressions of affection towards
the widow and children of a deceased brother. In several
volnminous letters written in that spirit to plaintiff, subsequent
to her husband's death, and during the year prior to his get-
ting title to said interest in the Old Glory claim, John A.
dwells at great length upon the condition of plaintiff's prop-
erty in Montana; advised the appointment of an attorney, with
You XIV.— 8
114 Leggat v. Leggat. [Dec. T., 1898
full power in reference thereto, and suggested Roderick D« as
a proper person for that commission; and, witlial^ assured
plaintiff* repeatedly of his desire and intention to aid her and
her attorney, to the best of his ability, by his counsel and
information in respect to said property. In this respect he
wrote, in a letter of February, 1887:
' "I have some knowledge of every thing connected with all
your property here, and will do, aid, help, and advise, to the
uttermost of my power, to assist whoever you appoint, when
requested or consulted in regard thereto, for your interests/'
And again, speaking, evidently, of his own appointment as
such attorney, in a letter of July, 1887, he said: ** I inclose you
power of attorney to sign and acknowledge before a notary pub-
lic; or, if yon think of or desire any one else to act as such, do
so at once, and I will help and advise them all I can.'' And
again, in a letter of October, 1887, he observed: "Mining
property, especially, needs watchful care and promptness of
action. I have suggested, time and time again, that you
appoint some one with authority to act for you in matters out
here. I have assumed it as far and as long as I could. Your
property is being trespassed upon continuously, and no one to
say stop." Again, in the same letter, he said: " Now, for the
last time, I would suggest that, if you care about the property in
this territory, give Rod., or some one, full power to act for you
in these matters, or come yourself and look the situation over.
Some thing should be done at once. You can rest fully assured
that I will render all the help and do all I can to protect and as-
sist your interests, no matter who you have to represent you."
Plaintiff appears to have adopted, relied upon, and carried out all
these suggestions of defendant John A., to her ultimate disadvan-
tage and loss, and, as it happened, with all his protestations of
good faith, kind intentions, and his great solicitude for plain-
tifl's welfare, her loss was his gain. But his suggestions in ref-
erence to the appointment of an attorney, and the good offices
he promised to volunteer .for the aid and benefit of plaintiff,
but never fulfilled, was not all of his conduct which tended
to the disadvantage of plaintiff. He accompanied these sug-
gestions with a narration of facts and circumstances tending
to depreciate in plaintiff's estimation, the value of her property
14 Mont] Legoat v. Leqoat. 115
ID Montana, and especially the Old Glory mining claim,
lliat claim seems to Lave been the central point of calamity^
vexation, menace, and expense in the gloomy picture drawn by
defendant John A. in his letters to plaintiff. In this regard
he writes, in a letter of June, 1887: '^I had a talk with Mr.
Foster in regard to the purchase of your interest here in Silver
Bow county in the properties. He did not want to buy, but
has concluded, on my urging the matter, to do as I wish should
be done. He owns interests in some of it, and as I have all
the work, trouble, time, and expense to stand to maintain the
title and possession, I feel that I am about weary of it; and I
will sell what interest I have in the whole matter at what I
can get, and let those that remain in take the responsibilities
and worry that I have so long borne without recompense, or
harilly thought of thanks from my partners, whose interests
I have maintained and protected so long.''
" Mr. Foster declines to buy any of my interests, as he deems
me a safeguard to his title. All the properties which are
embraced in the deed which I inclose are more or less in liti-
gation. The Old Glory especially had a heavy dose of trouble
— an unpaid cost of suit in the supreme court, of over two
years' standing, and a pending suit against over one hundred
people who have squatted on, and now occupy, the ground.
None of the properties embraced in deed are producing any
revenue, and will not, unless after the expenditure of consider-
able money to develop them.^^ Again, in his letter of July
24, 1887, having drawn a very discouraging picture in refer-
ence to the property in which plaintiff was interested in Mon-
tana, and having said, ''None of this property is really of any
value,'* he continued: "The Old Glory claim, the title of
which is not received from the government, is squatted on by
over a hundred houses, on certain claimed titles thereto, which
may involve possible bloodshed, or, at least, a long and trouble-
aome lawsuit, to remove." Again, he says, in a letter of Octo-
ber 25, 1887: "Some of the property is valuable, but no one
that I know of can do a d with it, and it will cost time,
money, work, to settle difficulties which have already arisen in
regard to mnch of it Bod. will possibly tell you how easy it
is to guard mining interests here from the encroachments of
116 Lbgqat v. Leggat. [Dec. T,, 1893
designing and dishonest sharpers. Two instances m oases I
will mention, which Rod. is cognisant of. The Old Glory
has had two expensive lawsuits to maintain to defend its right.
The last one^ which went to the supreme court, I fought, I
defended, and won, without the shadow of authority to do so
from either you or Alex. Had this fact been discovered by
the opposite parties' attorneys, the case would have been beaten.
And now there is another lawsuit looming up, dark and ugly,
as the whole claim has been squatted on and built over, there
being upward of one hundred houses with families thereon.
Suits of ejectment will have to be entered. Trouble, money,
and maybe worse, will have to be expended, ere the end is
reached.'' His letters constantly reiterate such depressing and
discouraging statements in reference to plaintiff's interests in
Montana in general, and as to the Old Glory claim in particu-
lar; and these statements are either wholly false, or gross
exaggerations. It is true, there was some litigation in respect
to said claim, but it does not appear to have been of a very
formidable character. The main case, which he speaks of as
having gone to the supreme court, was determined in 1885.
(Leggat v. Stewart, 5 Mont. 107.) This case grew out of an
adverse claim to the same property, under a location known as
the ^^ Raven lode location." Such litigation in respect to
mining claims of known or promised value is not uncommon.
But the claimants of the Old Glory prevailed in said case in
both the trial and appellate courts; and their title seems to
have been regarded thereafter as so firmly established that of
the one hundred occupants who had built residences thereon,
it being in a populous mining district, more than two-thirds
of them made terms for ground rent without litigation. Some,
however, were recalcitrant, and in 1888 one ejectment suit was
instituted against some twenty-eight of them as defendants;
but they made no appearance to dispute the right of the own-
ers of the Old Glory claim to assert dominion over the ground
they occupied for residences. It is admitted that no other liti-
gation occurred in reference thereto.
The fact that the claim was so situated as to make its sar-
fiioe desirable for residence purposes greatly enhanced its worth
to the owners; and the presence of these occupants, about
14 Mout.l Leggat V, Legqat. 117
which 80 much <1oIefa] maleiliction went forth from John A.
to plaiDtiffy was in fact a source of value and income^ for the
ground rent they paid is shown to have been six to eight hun-
dred dollars per quarter. But this false and discouraging pre-
sentment in respect to said interest, coming from one assuming
to act as friend and confidential adviser, and relied upon as
such by plaintiff, residing at a great distance therefrom, with
no other source of information, was calculated to prepare her
mind to gratefully accept a small price for her interest in such
unpromising and expensive property. The view he presented
is shown by the testimony to have been false. The truth was
that said property was valuable, was salal>le, was yielding a
good income^ and the tilte of the owners was practically uncon-
tested.
Was there collusion between Jo6n A. and Roderick D. in
this affair? The facts admit of no other conclusion. The
appointment of the latter as plaintiff's attorney to manage and
sell her property was suggested by John A. It is true, he was
not the only person mentioned for such appointment. Other
names were mentioned, but accompanied with some sugges-
tions of doubt as to their availability or willingness to act in
that behalf. But the suggestion of the appointment of Roderick
D. goes for very little in determining the question of collusion
between defendants to mislead or defraud plaintiff^ in the
respect alleged. That determination proceeds upon the show-
ing of alliance between them, and the co-operation of Roderick
D. with John A., to the end that he acquired title to said inter-
est of plaintiff for a grossly inadequate consideration. Acting
against the interest of plaintiff, and contrary to his trust and
duty as her agent, Roderick D. appears to have espoused the
claim of John A., that he was the equitable owner of the inter-
est held by plaintiff in said Old Olory mining claim, on his
assertion that he had conveyed it to plaintiff's husband to
secare a loan of $200, according to John's 'information and
bdief/' as he alleges in his answer, and therefore the legal title
ought to be conveyed back to him, on payment of a mere
fraction of its value, by way of redemption. Having thus
subserviently allied himself with John A., and subscribed to
his demands against plaintiff's interest without even consull-
118 Leggat v. Leggat. [Dec, T., 1898
ing plaintiff, Roderick D., through bis power of attorney from
her, proceeds to invest John A. with the legal title to plaintiff's
interest in the Old Glory claim for the payment of $1,000«
This was a most convenient and effectual service of Boderick
D. to John A. in aid of the consummation of his purpose.
But, apparently not satisfied with that service to John A;,
Roderick D. undertakes to smooth the way for the effectual
operation of the scheme by writing false statements to plaintiff
in ;|respect to the value of said property, tending to lull her
into the belief that she had received all her interest in said
property was worth, thus seeking, by falsehood, to aid John
A. in quietly holding said interest without remonstrance from
plaintiff. To this end, in his letter reporting the transaction
to plaintiff, Roderick D. tells her that her title in said claim
''was extremely shaky and doubtful; besides, John A. had
charge of it, and was doing all tlie fighting at his own
expense''; that he ''could not have realized the same amount
from any one else,*' nor from John A. "the day after, for he
would not have had the money''; and, continuing, Roderick
D. says: "So, I think it was a wise and prudent act, for it
saved both you and myself considerable trouble and expense,
for, even with a clear title, few men would take it at half the
figure."
When Roderick D. wrote these false statements he knew
that the title of the owners of the Old Glory claim was good
and practically uncontested; that it was valuable, and salable
in the market for a sum greatly exceeding $1,000; was yield-
ing rents, so that plaintiff's portion for one year would amount
to about as much as the price for which the whole interest was
sold to John A.; moreover, that practically, through the per-
fidy and collusion between himself and John A., the latter
was paying the pretended purchase price with plaintiff's own
money, derived; from her interest in said property; and John
A. knew the same while he was availing himself of the fraudu-
lent conduct of Roderick D. to work out the evident design of
John A. to get said property for an inadequate price. The
conduct of each defendant operated harmoniously and directly
with that of the other to accomplish the end ultimately
achieved* The acts of each supplemented and combined witJi
14 Mont.] Legqat v. Leggat. 119
the acts of the other to effect the result attained. We think
there is ample showing of oollasion; or possibly the more
proper designation is^that Roderick D. was the pliant instru-
ment and agent used bj John A. along with his own efforts,
to work out his will and purpose of obtaining said property
for an inadequate consideration. The averment that John A.
Leggat was the equitable owner of the interest held by plaintiff
in said mining claim, he having conveyed it to Alexander J.
Leggat as security for a loan of $200, is contradicted by an
array of facts and circumstances which fully supports the
implied finding of the trial court that such claim is fictitious.
This proof comes principally from the letters of John A. to
plaintiff, and her husband, Alexander J., during his lifetime.
It is shown that Alexander J. acquired an interest in the min-
ing claim in question, together with interests in other mining
property in Montana, through John A. Leggat, by payment
of several thousand dollars; and thereafter, during several
years, Alexander J., and plaintiff, after his death, paid one-
tliird of the expense of annually representing and otherwise
protecting the Old Glory claim, which expense amounts to
more than $200, and includes items for personal services by
John A. These facts are shown in letters of, and in bills ren-
dered by, John A. It is not likely that if John A. was the real
owner, and Alexander J. held that interest for security of the
small sum of |200, John A. would have demanded, or Alexander
J. have paid for, personal services of John A. in respect thereto.
Besides these facts, John A. repeatedly referred to that interest
as ''your interest in the Old Glory,'' in his letters to Alexander
and to plaintiff, wherein he speaks of the representation, the
sale, development, or protection of that claim or interest; and
just prior to the death of Alexander, and when that event was
imminent, Alexander conveyed said interest in the Old Glory
claim to John A., and he immediately conveyed it to plaintiff,
with no assertion, reservation, or arrangement showing that
John A. was the real owner thereof, and the legal tftle was
held by the others as security for repayment of a small loan;
and John A. afterwards, in letters to plaintiff, refers to said
interest as her interest, and in no wise intimates that he
claimed to own it, until his letter informing plaintiff that he
120 Leggat v. Legqat. [Deo. T., 1898
had bouglU lier inlei^ed. The proposition that plaintiflF acqui-
esced in, ratified^ or approved said sale with full knowledge of
the facts is not supported by the record. This is argued from
the fact^that, immediately after said sale, John A. wrote plain-
tiflF, and having mentioned that there were twenty-eight eject-
ment suits against squatters and 'trespassers on the Old Glory
alone, said:
"I bought from Rod., your attorney in feet, your title to
this Old Glory claim, paying $1,000 cash for your title of one-
third interest therein. For the past four years this claim has
been in lawsuits, and I am the only one of all interested that
fought the fight. The other parties are useless and indiflPereut,
and I had got my blood up to beat the attempted swindle, and
carry the war on"; and, after saying more about lawsuits
involving said claim, he observes: "The third interest I
bought from you I deeded to Alex for a loan of $200, which
I sorely needed." Thereafter, Boderlck.D. sent plaintiflP $800,
of said price paid, reserving $200 to pay expense in relation to
someother interests of plaiutiflFin Montana. PlaintiflP received
said money, and did not then repudiate said sale, although she
was in possession of the letters of John A. to Alexander J.
and herself, which tended to show that John A. was not the
equitable owner of said interest. From these facts it is argued
that plaintiflP was cognizant of all the facts which showed the
fraud and imposition, if any was practiced on her, when she
received, and retained for several months, the consideration for
conveyance of said interest to John A. This conclusion is
much broader than the facts disclosed by the record justify.
With all the information and sources of information which
plaintiflP had in the letters of John A. and Roderick D., there
was no showing that she had been imposed upon or defrauded.
They had informed her to the contrary. And what diflPerence
did it make to her that John A., without just ground therefor,
asserted that he was the equitable owner of said interest, if he
had bought her interest, and paid plaintiflP all it was worth,
and more than any other one would pay? It was through
subsequent investigation, outside of the information which
plaintiflP had when she received said purchase price, that she
discovered the fraud and imposition which she had suflPered.
14 Mont.] Pbnn Placbb M. Go. v. Schbbinbb. 121
Her main enlightenment was in the discovery of the fact that
her interest in said claim was worth several thousand dollars
more than that represented bj Roderick, and paid by John A.
therefor; that it was yielding a large revenue; that a small
part of her interest had been sold, before the conveyance to
John, for all that he paid therefor; that the statements that a
large number of lawsuits were pending, and others were threat-
ened, and looming up " dark and ugly,'' of " war," danger of
"bloodshed,'' of large expense to defend, rof "shaky title,"
etc, in respect to said claim, were false statements or gross
exaggerations. But when said purchase price was sent her,
accompanied and preceded by such false statements, she did
not know they were false, but it appears she believed them,
and was mbled and deceived by them. It cannot be main-
tained that plaintifi' received and retained such purchase price,
for some time, with full knowledge of the fitcts.
The exceptions saved in the record as to the admission of
certain evidence were not insisted on in the argument by appel-
lants' counsel. Our investigation of the record finds abundant
support of the decree. It will therefore be affirmed.
Ajffirmed.
Pbmbbbtok^ C. J.^ concurs.
PENN PLACER MINING COMPANY, Rebpondbot,
17. SCHREINER bt al., Appellanto. ,i* 121
dap ZH)
[Submitted Decided Februaiy 19, 1894.]
Nkw Taui^^StatementSxtetuion of time.— Where the time for filing a state-
ment on motion for a new atrial, or for doing any act of oonrt practice, is
extended *'to" a certain date, the date named is included within the period
preaoribed.
BiME-^Amendment8—Engros8merd,—A statement on motion for a new trial wiU
not be jdiaregarded because amendments thereto are not engrossed in the
leoord, bat ooonp7 a separate position at the close of the statement, where
inch amendments comprise additional matter ^which is complete and intelli-
gible in itself .
l^iME— Motion to $trike oi<t.~Hotion to strike ftom the record the statement on
motion for a new trial because the cTidence was not all reduced to narratlTtt
form denied in this case.
Appeal from Fourth JudioialDistrict, J^erson Cov/nJtg*
122 Pjsnn Plaobb M. Oo. v. Sohbkinsb. [Dec. T., 1893
On motiok to strike from the reooid the statemeat on
motion for a new trial* Denied.
MoQmndl, (Xayberg & Qunn^ for the motion.
Where the laDgaage of an order is '^ time extended to'' a
certain date the language is clearly exclusive of that date.
The word ^^ to'' *^ is opposed to from, and, in most of its uses^ is
interchangeable with * unto.' " (Webster's Dictionary; People
V. Robertson, 39 Barb. 9.) The time for serving statement
on motion for a new trial having expired on the first day
of December, 1891, the granting of a further extension on
December 2d was of no validity, and, the statement having
been served on the eighth day of December, was not within
the proper time. {Bear River etc Mining Co. v. Boles, 24
Cal. 354; Jenkins v. Frink, 27 Cal. 337; Campbell v. Jones, 41
Cal. 518; Hayne on New Trial and Appeal, § 147, p. 413.)
The amendments proposed to the statement on motion for a
new trial are tacked on at the end of the statement; and the
statement has never been properly, or at all, engrossed. Such
a statement has no place in the transcript on appeal. (Kim-
ball V. Semple, 31 Cal. 658; Bush v. Taylor, 45 Cal. 112; Fant
V. Tandy, 7 Mont 443.)
Toole & Wallace, Contra.
The word "to," or "till," or "until," when used in an
order of court, is inclusive. (Bv/noe v. Reed, 16 Barb. 347,
352; Dawkins v. Wagner, 3 Dbwl. Pr. 535; Houghton v. Bois^
aubwn, 18 N. J. Eq. 318; Delorme v. Ferk, 24 Wis. 202.)
Harwood, J. — This case stands on motion to strike from
the record the statement on motion for new trial: 1. Because
the statement on motion for new trial was not served within the
time prescribed by the statute, or within the | ciiod of time
provided by order of court. This all^d ground is based
upon the respondent's construction of the order of court extend-
ing time. They insist that where the court, by order, extends
time to a date named, as "to December 2d," the period of
extension expires at the close of the day preceding the date
named in the order, in this instance at the close of December
14 Mont.] Pbnn Placbe M. Co, v. Schreinbb, 123
Isi^ because December Ist reaches to December 2d. We think
the ooutemplation of such an order of court, or stipulation pro-
viding time to a certain date, within which to do an act in
eourt practice, such as flie filing or service of a paper/iucludes
the date named, as the close of the period prescribed. 2. It is
contended that service of statement on motion for new trial
was not made in time, although made within the period staled
in the order of court extending time to file statement. The
order extending time reads: "For fih'ng statement on motion
for new trial'^; and it is contended that this order did not
flufiSce to extend the time for service of said statement. The
record shows that service of statement was waived by telegram
from respondent's counsel to appellants' counsel, on the first
day of December — ^the dav the order of the court was made
extending time to "file statement.'' This telegram was made
part of the record by amendment, allowed by the trial court,
accompanying the objections to the settlement and allowance
of the statement, on the alleged ground that it was not served
in time.
It is further urged that the statement on motion for new
trial should be disregarded by this court, because the evidence
is not entirely reduced to narrative form; and that the amend-
ments are not engrossed in the record, but occupy a separate
l)osition at the close of the statement on motion for new trial.
These amendments embody several instructions given to the
jury by the court — ^the special findings of the jury; some esti-
mates used by counsel in argument of the case, which the jury
was, by agreement of counsel, allowed to take to the jury*
room; some record entries in relation to notice of motion for
new trial, extending the time for preparation of statement, etc.,
together with objections to the settlement and allowance of
statement inserted in the record, and made part thereof, by
way of amendment allowed by the court. All these amend-
ments comprise additional matter, complete and intelligible in
itself, and not of the character referred to in the case of Gal^
latin Caned Oo. v. Xay, 10 Mont. 528. Apparently no greater
convenience or certainty would result from these amendments
being in one part of the statement instead of another.
As to the objection that the testimony is not all in narrative
J
124 Whittaksb v. City of Hblbna. [Dec. T,, 1893
form^ other records have offended more grievously on that score
than this one, and jet have been tolerated by this court. This
record may be subject to some criticism on the ground that the
testimony is not all reduced to narrative, but it is well under-
stood that there are examples of testimony very difficult to
reduce to narrative form without losing or gaining some force
thereby, and where such is the case this court has been in the
habit of indulging the statement of evidence by question and
answer, as given on the trial. It is somewhat hard to draw
the line between the cases which should, and those which
sliould not, be dismissed on this particular ground. It is a
ground which the court should, and will, act upon of its own
motion. And when admonition is unheeded, and the abuse
exceeds a just indulgence extended to litigants, unaware of the
improper practice, rather than to counsel, who are the real
offenders, we shall then apply the pruning-knife of dismissal,
to sever from this appellate jurisdiction such records as
unwieldy, cumbrous, and improper engraflments thereon.
From our examination of this record we do not consider it one
which should be thus dealt with. The motion to strike out
the statement, in our opinion, should be overruled. An order
will be entered accordingly.
Motion overruled.
Pembebton, C. J., concurs.
WHITTAKER, Respondent, v. CITY OF HELENA,
Appellant.
[Sabmitted ICuoh 22, 1898. Decided Febraary 19, 1884.]
SaauamsaEr-Drvoer of vehMet.—The negligenoe of the owner and driTor of %
priYftte yehicle is imputable to one yolantarily riding with him by inyitation,
and defeats the right of the latter to reoover damages against a city for injorieg
o»naed by its negligence when such driver was goUty of oontribatoiy negl^
Appeal from First Judicial Didriot, Lewie and (XarJce OofwnX/y.
The cause was tried before Buck, J., who denied defend-
ant's motion for new trial. Reversed
14 Moni] Whittakeb v. City of Helbna. 126
Sydney H. Mclntire, (Xiy AUomey^ for Appellant.
L The theory of the defense all the way through this (
was that, if the obstructions to Grand street were permitted to
remain there, the city having enacted ordinances prohibiting
obstructions to the public streets, and making' it the duty of
the public police oflScers to remove such obstructiouSy the fail-
are or neglect of such officers to do their duty in the premises
would not make the city liable for any accidents occasioned
thereby. The law is well settled that a municipal corporation
is not liable for the willful and unlawful conduct or neglect
of a clear duty of the police officers; that such police officers
are the conservators of the public peace and agents of the
public at large and citizens of the entire state, and not in
any sense agents of the municipal oorporatiou, even though
the municipal corporation employs and pays them; they
cannot bind the corporatiou by any act of theirs, or cast
upon it 'any liability for their misconduct or failure to }>er-
form their duty; and in no sense has the doctrine of respon-
deat eupanor been held to apply in classes of cases similar
to the one at bar. {Peters v. City of lAndsborgj 40 Kan.
664; Wheeler v. OUy of Plymouth, 116 Ind. 158; 9 Am.
St. Rep. 837; Weller v. City of Burlington, 60 Vt. 28; Bines
v. (My of Charlotte, 72 Mich. 278; GalweU v. CUy of Boone, 51
Iowa, 687; 33 Am. Rep. 154; LitUe v. Madison, 49 Wis. 606;
35 Am. Rep. 793; Schtdiz v. Milwaukee, 49 Wis. 264; 36 Am.
Rep. 779; CoU v. Newburyport, 129 Mass. 694; 37 Am. Rep.
394; Board of Trustees v. Sohrader, 68 111. 353; WorUy v.
Inluibiiants etc., 88 Mo. 106; PHnce v. Lynn, 149 Mass. 193;
2 Dillon on Municipal Corporations, § 976; Lafayette v. lini'
berlake, 88 Ind. 330; Norristovm v. Fiizpatrick, 94 Pa. St. 121;
39 Am. Rep. 771.) There was no proof of negligence on the
part of the defendant, or any of its agents, in this case, and
the motion for nonsuit should have been granted.
II. The obstruction in the street must be the proximate
cause of the injury to render the city liable. It was not in
this case. The city cannot be held liable for injuries occa-
sioned by wild, skittish, or runaway horses. The witness
Dunn tried to make out that his horse was not easily fright-
126 Whittakbe v. City of Helbna. [Dec. T,, 1893
enedy but the fact remains that he was. This case seems to be
similar to Agnew v. Corunna^ 56 Mich. 428; 64 Am. Bep, 383;
BluffUm V. Matliewa, 92 Ind. 213; Pullman Palace Oar Co. v.
Barker, 4 Col. 344; 34 Am. Hep. 89; 2 Thompson on Negli-
gence, 1098; 2 Dillon on Municipal Corporations, § 1015;
TUiAB V. itorthbridge, 97 Mass. 258; 93 Am. Dec. 91; Stone v.
Huibarddon, 100 Mass. 64. The proximate cause of this
injury was unquestionably the conduct of the horse, and Dunn's
inability to manage him while frightened and shying.
III. For injuries sustained from licensed exhibitions ren-
dering streets unsafe through the failure of police officers to
remove them, the city would not be liable. (2 Dillon on
Municipal Corporations, § 1011 a; LitUe v. Madiaon, 49 Wis.
605; 36 Am. Eep. 793; Oole v. Neuoburyport, 129 Mass. 594;
37 Am. Rep. 394; OUy of Warsaw v. Dunlap, 112 Ind. 576.)
ly. The evidence seems to show that Dunn was heated at
his discussion in the council, and purposely put himself into a
position of danger, with full knowledge of what he was doing.
Should the city be held responsible for his reckless acts in
courting this accident? Certainly, in his own case, he could not
recover damages for his injuries, if any, because he contributed
directly to the result. And there are authorities holding that
the plaintifiP was in the same position and is governed by the
same rules. (Otis v. Janeatnlle, 47 Wis. 422; Prideaux v. Min-
eral Point, 43 Wis. 513; 28 Am. Rep. 558; Lake Shore etc
R. R. Co. V. Miller, 25 Mich. 274; Hovfe v. FvUcm, 29 Wis.
296; 9 Am. Rep. 568.)
F. Adkinson, and John S. Miller, for Respondent.
That the city is liable for damages upon the facts shown by
the testimony, see American and English Encyclopedia of
Law, volume 9, page 386, and authorities therein cited. The
negligence of Dunn, if any, could not be imputed to the plain-
tiff, and the proof is uncontradicted that the plaintiff did not
know of the existence of the tent until they came uiK>n it^
while there are some authorities which sustain the instruction
of the court upon this point, the great weight of them is to the
contrary. But however this may be, the instruction was not
prejudicial to the appellant, and is not one of which the oitj
14 Mont.] Whittakbb v. City 07 Helena. 127
ean oomplain. {Mdcalf v. Baker, 11 Abb. Pr., N. S., 431;
BobifiMon v. New York Ceni. & H. R. R. R. Co., 66 N, Y. 11;
23 Am. Rep. 1; Dyer v. Mie Ry. Co., 71 N. Y. 228.)
Pemberton, C. J. — ^This is an action to recover damages
for personal injuries sustained by plaintiff by being tiirown
from a buggy in tiie streets of said defendanl city. Among
other things^ the complaint alleges, substantially^ that on the
thirtieth day of August^ 1890, and for some days prior thereto^
the defendant wrongfully and negligently authorized and per-
mitted a certain show to be maintained and conducted in a tent^
or canvas-covered wagon, on Grand street, in said city; that
said show was such an obstruction as to render travel along
said street unsafe and dangerous, and was of such character as
to frighten gentle and well-broken horses driven along said
street; that on said thirtieth day of August plaintiff was riding
in a buggy drawn by a safe and gentle horse, which was beiiig
driven with due care and caution along said street, when said
horse, without any fault or negligence of plaintiff, became
frightened at said show tent or wagon, became unmanageable,
and ran away, upsetting said buggy and throwing plaintiff to
the ground with great force, whereby he was greatly injured
and damaged; that plaintiff, in the lawful transaction of his
business, had necessarily to pass along said street. The alle-
gations of the complaint are denied by the'answer. The case
was tried in the court below with a jury, and resulted in a
verdict for the plaintiff for one thousand dollars, for which
sum judgment was rendered. Defendant moved for new trial,
which was denied. This appeal is prosecuted from the judg-
ment and order denying the motion for new trial.
The evidence clearly shows that the plaintiff, at the time of
the accident set forth in his complaint, was riding with one
James S. Dunn, who owned the buggy and horse, and was
driving the same. Dunn, it seems, was on his way to lunch,
and invited plaintiff, who lived in the same part of the city, to
ride with him, as it seems he did almost every day prior
thereto. The evidence does not show that plaintiff knew of
the existence of the alleged obstruction to travel on the street,
but Dunn swears that he knew of iU Dunn was, at the Ume^
128 Whittakeb v. City of Hblbna. [Dec. T., 1898
an alderman of the city. It appears irotn that evideDce tne
the accident to plaintiff occurred at about one o'clock^ p. M.^ on
the thirtieth day of August. |At twelve, M., of said day
there was a meeling of the city council of said city. Dunn
swears that he was at that meeting, and in an earnest and
excited manner called the attention of the council to the fact
that this show in the tent or wagon was located and doing
business on Grand street, and also called the attention of the
council to its dangerous character; that the mayor stated that
he would see to its removal at once; that thereupon the council
adjourned, and that he went immediately to Edwards street,
got his horse and buggy, drove to Main street, took the plain*
tifi* into his buggy, as he was in the habit of doing every day,
and started up Grand street, and, in attempting to pass this
tent or wagon, the accident happened which resulted in plain-
tiff's b^ing injured and damaged; that the tent or wagon was
on one side of the street, and a pile of rook the city was using
in work on the street was on the opposite side of Grand street
from the tent or wagon; that, in attempting to pass between
the tent or wagon and said pile of rock, the horse became
frightened, and ran the buggy over the rock pile, turning the
huggy over, throwing the occupants out, and inflicting upon
the plaintiff the injuries for which he sues in this action. This
evidence of Dunn is in no way questioned. That he knew tiie
obstructed and dangerous condition of Grand street (if it was
in a dangerous and obstructed condition) when he drove upon
it is beyond dispute. Under this state of facts, could Dunn
recover if he were prosecuting this suit against the city? If
he could not recover, can this plaintiff, who was voluntarily
riding with him in his buggy, recover? Was Dunn guilty of
such contributory negligence as would defeat his right to
recovery, when he drove upon the street, knowing the condi-
tion thereof? If so, was his negligence imputable to the
plaintiff, so as to defeat a recovery on his part?
In Prideava v. Minercd Point, 48 Wis. 613, 28 Am. Rep. 558,
a case involving the question under discussion, the court says:
''One voluntarily in a private conveyance voluntarily trusts
his personal safety in the conveyance to the person in control
of it. Voluntary entrance into a private oonveyance adopts
14 Mont.] Whittakeb v. City of Hblbna. 129
the oonyeyanoe, for the time being, as one's own, and assumes
the risk of tlie skill and care of the person guiding it. Pro
hoe tncCj the master of a private yacht, or the driver of a pri-
vate carriage, is accepted as agent by every person voluntarily
committing himself to it. When pcUerfamiliaa drives his wife
and child in his own vehicle, he is surely their agent in driv-
ing them, to charge them with his negligence. It is difficult
to perceive on what principle he is less the agent of one who
accepts his or their invitation to ride with them. There is a
personal trust in such cases, which implies an agency. So,
several persons voluntarily associating themselves to travel
together in one conveyance not only put a personal trust in the
skill and care of that one of them whom they trust with the
direction and control of the conveyance, but appear to put a
personal trust each in the discretion of each against negligence
affecting the common safety. One enters a public conveyance
in some sort of moral necessity. One generally enters a pri-
vate conveyance of free choice, voluntarily trusting to its
sufficiency and safety. It appears absurd to hold that one
voluntarily choosing to ride in a private conveyance trusts tty
the sufficiency of the highway; to the care and skill exercised
in all other vehicles upon it; to the care and skill governing
trains at railroad crossings; to the care and skill of every thing
except that which is most immediately important to himself —
and trusts nothing to the sufficiency of the very vehicle in
which he voluntarily travels; nothing to the care and skill of
the person in charge of it. His voluntary entrance is an act
of faith in the driver; by implication of law, he accepts tlie
driver as his agent to drive him. In the absence of express
adjudication, the general rules of implied agency appear to sano-
lion this view. • • • . A woman may, and should, refuse to
ride vrith a man if she dislike or distrust the man, or his horse,
or his carriage. But, if she voluntarily accept his invitation to
ride, the man may, indeed, become liable to her for gross neg-
ligence; but, as to third persons, the man is her agent to drive
her — she takes man, and horse, and carriage for the jaunt; for
better, for worse.*' Otis v. Tovm of JaneavUle, 47 Wis. 422,
2 N. W. Eep. 783, is to the same effisct.
In Lake Slujre do. R. B. Co. v. MUkr, 26 Mich. 274, a case
YoL. XIV.-9
ISO Whittakbr v. City of Hblbna. [Dec. T., 189S
involviug the question whether or not the negligence of the
driver of a private team was imputable to one who was riding
voluntarily with the driver, Mr. Chief Justice Christiancy,
speaking for the court, says: ''The materiality of this question
must dei)end upon anotiier — whetiier the plaintiff's own neg-
ligence or that of Eldridge, who was driving the team, con-
tributed to the injury, within the meaning of the generally
settled rule upon this subject; for, as she was riding with
Eldridge, the owner and driver of the team, any negligence of
Eldridge equally affects her rights in this suit, as was prop-
erly held by the court.''
These authorities all hold that if the negligence of the party
injured, or of his driver, which is imputed to him, materially
contributed to the injuries, he cannot recover, although the
party complained of has not been free from negligence. In
the case at bar it seems clear that Dunn was not only guilty
of contributory n^Iigence, but that he was reckless in driving
into a street which he swears he knew to be dangerously
obstructed. His negligence must be held as imputable to
plaintiff. If Dunn could not recover under the facts and cir-
cumstances of the case, neither could the plaintiff, although the
defendant may have been guilty of negligence on its part,
which it is not necessary in this case to determine. There are
other assignments of error in the record, but we do not con*
sider it necessary to consider them, as we think the treatment
above decisive of the case. The court below recognized the
law as stated above as applicable to this case, and so declared
it to the jury in the instructions given; But the verdict seems
to us to have been rendered in disregard of the law as given
by" the court, as well as of the evidence in the case. We think
the court should have granted, for these reasons, the motion of
the defendant for a new trial.
The judgment is therefore reversed, and oanse remanded for
new triaL
HabwooDi J.| oonoun.
14 131
22 624
24 64
14 Mont.] CocKBiLL V. Davis, 181
COCKBILL, Respondent, v. DAVIE jsr al^ AppeI/- u m
LANTS. "' *"
[Sobmitted February 28, 1893. Deoided FebruAry 19, 1894.]
BuiLDiHO CowrEAcr^Construetion.—An tgreement in a building oontnot to
" proTlde and faruish all material and to do all labor" is not folfiUed unlets
the material and labor are paid for by the contractor.
BxfBxnEa— Liability— Failure of principal to «^.~Snreties npon a bond cannot
escape liability npon the ground that their principal did not sign it as it was
understood he should, where the liabUity of such principal is already fixed by
contract or by operation of law. ( Wiba^JX t. OrinnOl Live Stock Co., 9 Mont.
IM; BoekinB ▼. White, 18 Mont. 70; Woodman y. Calkin», 18 Mont. 868.)
6amb — Failure of principal to eiffn—Dtlivery.^ln an action against a surety on a
bond which the principal failed to sign» the plaintiff is not obliged to show an
express understanding by the surety that the bond should be delivered and
hare eiZisct without the principal's signature, where the principal's liability is
already fixed by another contract.
BAMK—JudgmefU—Appeal,—ln an action against two sureties on a bond where the
action was erroneously dismissed as to one, this court will, on sn appeal by the
surety against whom judgment was rendered, reverse the order of dismissal,
and modify the judgment, by providing that it shall not determine the right of
the appellant to enforce contribution of his cosurety, and that the case may
be opened at the instance of either the plaintiff or appellant to determine snch
ooBurety's liability on the bond.
Appeal frcm Eighth Judicial Didrtdy Ocuoade County.
Action on bond. The cause was tried before Benton^ J.
Plaintiff had judgment below. Modified and afiSrmed.
Thomas E. Brady, and A. J. Shores, for Appellants.
There is a great diversity of judicial opinion as to whether
an action can be maintained against the sureties upon a bond
where the principal has failed to sign. In the case of Ney v.
Orr, 2 Mont. 659, this court held that a bond unsigned bj the
principal whose name appeared in the body of the instrument as
such was an incomplete instrument. The following decisions
are to the same effect: Bunn v. Jetmore, 70 Mo. 228; 35 Am.
Rep. 425; Sacramenio v. Dunlap, 14 Cal. 421; People y. Hart-
ley, 21 Cal. 685; 82 Am. Dea 758; Bean v. Parker, 17 Mass.
604; Wood v. Washbume, 2 Pick. 24; Sharp v. United States,
4 Watts, 21; 28 Am. Dea 676; Fletcher v. Austin, 11 Vt
447; 34 Am. Dec 698; Johnson v. Erskine, 9 Tex. 1; Russell y.
Annable, 109 Mass. 72; 12 Am. Rep. 665; Cavanavgh v.
Cassebaium, 88 Cal. 649; Hessell y. Johnson, 63 Mich. 623;
182 CocKBiLL V. Davib. [Dec. T., 1893
6 Am. St. Rep. 334; Hall v. Parker, 37 Mich. 690; 26 Am.
Bep. 640; Johnsm v. KiwbaU Taumship^ 39 Mich. 187; 33
Am. Bep. 372; Board of EduoaUon v. Sweeney, 1 S. Dak. 642;
96 Am. St. Bep. 767, and cases cited; Ferry v. Burchard, 21
Cono. 602; Wild Oat Branch v. Ball, 46 Ind. 213. Some
courts have held that while such an instrument was upon its
&ce incomplete^ it was, notwithstanding, competent for the
obligee to show that the instrument was delivered by the sure-
ties with the intent that it should take effect without the signa-
ture of the principal. (Cavanaugh v. Oaesdman, 88 Cal. 649.)
There are still other cases holding that the obligation is a valid
one, and may be enforced, and that it is immaterial whether
the sureties intended that the principal should sign or not.
{Kurtz V. Forquer, 94 Cal. 91; Douglae Coufdy v. Bardon, 79
Wis. 641.) For fifteen years contracts have been controlled
by the decision in Nye v. Orr, 2 Mont 669, and when the
sureties in this case affixed their names to this instrument, they
had the right to rely upon this long established doctrine of
the law that there could be no liability resting upon them
unless and until the instrument was executed by Davie. This
unquestionably .established the law of the state at the time
tvhen Benner and Cornelius affixed their signatures to this
bond. It is the law of the state to-day. It is difficult to dis-
tinguish between the binding force of a rule of law established
by judicial decision and long acquiesced in and a rule embodied
in a legislative enactment. It has frequently been;held that a
change in the interpretation of a statute will affect only sub-
sequent contracts. (Louieiana y. PUldmry, 106 U. S. 294;
Douglass V. Pike OoutUy, 101 U. S. 686.)
Leslie & Downing, for Bespondent
The bond sued on in tl^is action is joint and severaL Any
or all of the sureties might be included in the action at the
option of the plaintiff where several persons are named in the
body of an instrument as parties thereto. It is not necessarily
invalid as against those who have signed it because others
named have not signed. {Kurtz v. Forquer, 94 Cal. 91; PeopU
▼. Lwe, 26 Cal. 623; Pe&fie v. Eoans, 29 Cal. 436; People v.
Slacy^ 74 CaL 87^; MendoiAno Couniy v. Morris, 32 OaL 148;
14 Mont.] CocERiLL V. Davib. 183
Wibaim v. OrmneU Livestock Co.^ 9 Mont 154.) The case
of Nye V. Or, 2 Mont. 659, is not similar to the case at bar.
In that case, aside from the fact that it was an appeal bond, at
the trial the sureties offered evidence showing that the bond
was delivered by them to the probate judge, with directions not
to file the same until one Kay signed. That the judge prom-
ised so to do, but filed the bond without Kay's signature, and
that the sureties did not know it was filed until the appeal had
been determined. The court very properly held that the evi-
dence of this should have been admitted, and the sureties not
liable. When part only of those mentioned in a joint and
several bond executed, those who did execute it will be bound,
unless they signed u{X)n condition that they were not to be
bound unless the other sureties named therein also sign, and
unless this condition is brought to a knowledge of the obligee.
{Douglas County v. Bardon, 79 Wis. 641; Kurtz v. Forquer^ 94
Cal. 91; People v. Staeey, 74 Cal. 374; City of Loa Angeles v.
3Mu8, 59 Cal. 444; People v. Love, 25 Cal. 521; People v.
Evans, 29 Cal. 430; WhUaker v. EuJiards, 134 Pa. St. 191;
19 Am. St. Eep. 684; Bollman v. Pasewctlk, 22 Neb. 761; State
V. Bowman, 10 Ohio, 445; Gibbs v. Johnson^ 63 Mich. 671;
Goodyear Dental eto. Co. v. Bacon, 148 Mass. 542; Ti-ustees etc*
V. I^eik, 119 111. 579; 59 Am. Rep. 830; Paiker v. Bradley,
2 Hill, 584; Loew v. Stocker, 68 Pa. St. 226; Eeyser v. Keen,
17 Pa. St. 327; Gnm v. School Directors, 51 Pa. St. 219;
Hadcins v. Lombard, 16 Me. 142; S3 Am. Dec. 645; Smith v.
Peoria County, 59 111. 414; Henick v. Johnson, 11 Met. 34;
StaU v. Peck, 53 Me. 284.)
Prerion H. Leslie^ also for Respondent.
Habwoob, J. — ^It appears that piaintiiF entered into a con-
tract, evidenced by writing, with defendant Davie, whereby
the latter agreed, for a certain consideration to ''provide and
famish all material, and do all labor necessary to the erection
and completion of a two-story frame dwelling-house'^ for plain-
tiff, aooording to certain plans and specifications, made part of
the contract. To guaranty the fulfillment of that contract, a
bond was executed by defendants Benner and Cornelius, and
134 CocKRiLL V. Davib. [Dec. T., 1893
delivered to plaintiff, in the sum of two thousand five hundred
dollars, referring to said contract, and conditioned that "if the
said Davie shall well and truly furnish said material, and con-
struct said house, as per said contract, and in all things fully
do and perform his part of said contract, constructing said
house within the time specified, according to said plans and
changes in the designs as said Cockrill may demand of bim^
then the above obligation is to be void; otherwise, to remain
in full force and virtue.'* The building appears to have been
constructed by Davie, and plaintiff paid him a considerable
portion of the contract price therefor; but Davie failed to pay
for certain labor and materials which he procured and used in
the construction thereof, by reason of which default certain liens
were applied and enforced against said property, the which
Cockrill was obliged to pay in order to save his property from
sale, under judgment of foreclosure to satisfy such liens.
Whereupon Cockrill undertook, by this action, to recover from
defendants the amount he was thus compelled to |)ay by rea-
son of Davie's failure to carry out said contract to furnish the
material and labor for the construction of said house. Defend-
ants Benner and Cornelius appeared, and, their demurrer to
the complaint having been overruled, answered, putting in
issue material allegations of the complaint, and alleging as a
defense that they signed the bond upon the express understand-
ing and arrangement between all the parties concerned that it
should not be delivered or have effect without the signature of
the defendant Davie. The trial resulted in judgment against
Benner alone for ten hundred and eleven dollars and fifty-
four cents, and he prosecutes this appeal therefrom, as well as
from an order overruling his motion for new trial.
Ai)pellant insists that the bond in question is wholly Void
because Davie, named therein as principal, did not sign it along
with the sureties. But, after much consideration of this sub-
ject and the authorities, we cannot sustain that view. The same
obligation was fixed upon Davie by another contract, and Benner
and Cornelius undertook and promised, in writing, to answer
for the default of Davie in respect to his engagements by virtue
of that contract, which the sureties described in their bond.
This bond was a collateral engraftment u{K>n the building con-
14 Mont] CocKRiix v. Davib. 186
tnet, wherebj these snreties took upon themselves the bnrden
of answeriDg for any default which Davie might make in
re6{)ect to his obligation thereunder. As to such obligations,
where the liability of the principal is fixed bj contract or by
operation of law^ the sureties who guaranty the fulfillment of
that obligation cannot avoid their obligation because the prin-
cipal did not sign the bond with them. There is no reason or
principal of law, or substantial right involved, which should
lead to such a ruling; and the same, we think, without doubt,
would be against the contemplation, understanding, and pur-
pose of the contracting parties, because the snreties in such a
case neither gain nor lose any substantial right by reason of
the principal signing, or omitting to sign, such undertaking,
which he procured on his behalf. On the other hand, under
a different species of bond, where the principal was bound only
by virtue of his executing the bond, a different ruling would
be applicable on such a defense. We think sufficient has l)een
said on this point in Wibattxv. GrinneULiveStockCo.yd Mont.
154; Hoskina v. White, 13 Mont. 70; Woodman v. Qdkins, 13
Mont. 363.
Appellant further contends that, because there was no pro-
vision in the building contract specially requiring Davie to
pay for the labor and material put into the construction of the
building, his obligation was fulfilled by furnishing the same,
and was not broken by his failure to pay therefor, and leaving
the building, and also the lot on which it was erected, subject
to sale to satisfy demands for said materials and labor. This
interpretation of the contract, we think, is untenable. Pnrties
are deemed to contract in view of the law relating to the sub-
ject of the contract. Davie fell short of furnishing the mate-
rial for the structure, as contemplated by his contract, when
he merely obtained and used such material in the structure,
leaving upon plaintiff* the burden of paying therefor. That
was not furnishing the material and labor according to the
terms of the contract, any more than one would fulfill a con-
tract to convey a piece of land to another by making a good
and sufficient deed therefor in form, while the title to the land
in no manner passed by such deed. {Cblbum v. Northern Poo.
By. Co.^ 13 Mont. 476.) It is contended that plaintiff should
136 CocKRiLL V. Davib. [Dec. T., 1898
have withheld payment of the installments for such building
until receipted bills for all labor and material used therein
were delivered to hinL We find no force in this proposition,
when considered in the light of the facts and the terms of the
contract. According to the contract, plaintiff was required to
pay certain installments as the erection of the building pro-
gressed; and, as to the last installment of upwards of eight
hundred dollars, it is provided that it shall be paid ^'when
said house is completed entire, and accepted by the party of
the first part, and receipted bills for all material and labor in
the construction of said house shall be furnished to said party
of the first part by said second party/^ It appears that plain-
tiff did withhold payment of the last installment, and applied
the same on the judgment for enforcement of said liens.
During the trial, at the close of the introduction of evidence
on behalf of plaintiff, the court overruled a motion for non-
suit interposed on behalf of both defendants Benuer and
Cornelius, but granted a motion to dismiss the case as to
defendant Cornelius, leaving the case to proceed against Ren-
ner. As we understand. from the record and briefs of counsel,
this ruling was made because plaintiff was unable to prove
that Cornelius signed the bond with the understanding that it
should be delivered and have effect without the signature of
Davie, the principal named therein. In our opinion it was
not necessary to show an express understanding to that effect
outside of the bond. Substantially, all that proposition implies
is that Cornelius admits he signed the bond, intending to be
bound according to its terms, if the principal Davie was like-
wise bound along with him. Sufficient answer to that propo-
sition is that, under the law and the facts, Davie is bound as
principal to discharge those very same obligations which the
sureties, through the bond, guaranteed he would discbarge;
otherwise, the sureties would not be bound for his default.
For, if the principal was not bound to do the thing in ques-
tion, there could be no default on his part, and hence no liabil*
ity on the part of the surety; because the surety is only bound
to answer for the default of tlie principal named in the bond
in respect to those things which the principal was bound hj
the contract to perform. The contract is described in the bond
14 Mont] CocKRiLL V. Davib. 187
safficiently to identify it, and we must go to that contract to
find what Davie, the principal, was obligated to do, as well as
to find what the sureties guaranteed he would do. Can any
one, therefore, doubt that Davie was bound as principal, along
with the sureties, to discharge the obligation before they could
be asked to recompense for his default? Davie was sued in
this action along with the sureties; and, if served, can any one
doubt judgment would go against him, as well as the sureties,
for the same damage? His liability and his default must first
be shown before judgment can go against his surety.
Both parties to this appeal insist that the court erred in
dismissing Cornelius, and giving judgment alone against Ren-
ner. When the case was dismissed as to Cornelius, Benner
moved again for dismissal as to himself, because it clearly
appeared that he refused to sign the bond unless accompanied
in that obligation by Cornelius; and when Cornelius was dis-
missed, as defendant in the suit, because the court held there
was not sufficient showing to bind him, that gave peculiar force
to the showing that Renner refused to engage in said obligation
unless joined therein by Cornelius.
But, while respondent's counsel claim that the court erred
in disinissing Cornelius, they say tliey are satisfied with the
judgment as it stands against Renner, and insist that appellant
cannot complain of it, because the obligation sued on — that is,
the bond — ^is a joint and several obligation. Respondent's
counsel may be right in their position that, under the law and
the terms of the obligation sued on, they have a right to pro-
ceed against one surety alone. But in this case they have pro-
ceeded against both sureties, and it has been adjudicated and
determined in this action that the cosurety with appellant is
not liable. If this determination is erroneous, as both appel-
lant and respondent insist, and as this investigation leads us
to conclude, then appellant has serious reason for complaint.
The liability of his cosurety to share the burden of loss by
reason of Davie's default has been removed by this adjudica-
tion; and, while such determination stands, appellant would
be unable to compel contribution from his cosurety, which
would not be the case if one surety had been proceeded against
severally. On this point, alone, we think the court erred.
138 Case v. School District. [Dec. T., 1893
Therefore, while the judgment of the trial ooart entered in
favor of plaintiff against Renner may properly be affirmed, it
should be so modified as to provide that nothing therein, or in
any proceeding of the trial oourt in said action, shall be con-
strued to determine either the rights of plaintiff against defend-
ant Cornelius or the rights of defendant Benner against said
Cornelius as his cosurety on the bond sued on; that the order
of nonsuit or dismissal, entered in favor of Cornelius, be
reversed and set aside, and that the case may be opened for
further proceedings, at the instance of either plaintiff or Ren-
ner, against defendant Cornelius, to ascertain and determine
his liability therein. The order of this ooart will be entered
accordingly.
Judgment modified and affirmed,
AffirfMdm
Pembebton, C. J.| concurs.
CASE, Respondent, v. SCHOOL DISTRICT No. 3,
MISSOULA COUNTY, Appellant.
[Sabmifcted . Dedded Febmuj 26, 18M.]
OoKTRk(yn^C<m8lriiction—8eho6Uea<^ier.-'iLn engagement asa^inpplyteaober**
at terenty doUan per month for a term of ten months, and plaintiff's accept-
ance thereof cannot be construed as a contract by which plaintiff was to receive
a salary of seventy dollars a month for the entire term witboat regard to
whether she actoally rendered any services or not, bat rather that plaintiff was
to be paid for the time she taught at the rate of seventy dollars per month, it
appearing that plaintiff was only called upon to teach several days daring the
first four months, and that daring that time she made no demand for sndi
salary, though knowing that the regular teachers were paid at the close of each
school month, nor any InquiryLas to the understanding of the trustees in
respect to her compensation; there also being evidence that during the first
month of the term she applied for appointment as a regular teacher in one of
the schools of the district for which the salary was seventv dollars per month.
Appeal from Fourth Judicial District^ JGasoula Ooufiiy.
Action upcn an account Judgment was rendered for the
plaintiff below by Bbantlet, J/ Plaintiff'a motion for new
trial granted. Reversed.
14 Mont.] Casb v. School Distbiot. 139
Henry C. 8Uf, tor Appellant,
Webster & Wood^ for Respondent;
Harwood, J. — This action is founded on an acconnt
wherein plaintiff demands of defendant school board two hun-
dred and eighty dollars for four months' services as school
teacher in district No. 3 of Missoula county. That demand is
made under an alleged contract of employment of plaintiff' by
the board of ti'ustees of said school district at the compensation
of seventy dollars per month. Payment of the demand being
refused, this action was brought to enforce the same; and in
the justice's court, where the action was first prosecuted, plain-
tiff recovered judgment against said school district in the sum
of one hundred and eighty dollars. From that judgment
defendant appealed to the district court of said county, wherein
the case was tried to the court, a jury having been waived;
and apon consideration thereof the court found plaintiff entitled
to recover the sum of twenty-four dollars and fifty cents on
her demand against said scliool district, for services rendered
under the contract of employment in question, and entered
judgment accordingly. Thereafter, motion for new trial was
granted on a statement of the case containing all the evidence
offered. From that order the trustees of said school district
appealed to this court, insisting that there is not sufficient
ground shown to justify the order granting a new trial. This
we conclude, upon careful consideration of the case, must be
sustained, for we are unable to find in the record a sufficient
showing to warrant an order granting a new trial.
The record purports to contain a transcript of all the evi-
dence offered on the trial. It is not claimed that there is any
newly discovered evidence; nor is it urged that the court erred
in any ruling; nor is there any conflict in the evidence, except
some slight difference between the testimony of plaintiff and
that of her principal witness. The motion for new trial is
founded upon the proposition that the decision of the court
upon the trial is not warranted by the evidence, and therefore,
if a new trial were granted, and the same evidence submitted
again, the court or jury, on consideration thereof, ought to
140 Cask v. School District. [Dec. T., 1893
arrive at a different decision. The question, then^ is narrowed
to the consideration whether a different decision, under the law
applicable to tlie facts as presented, should be made, or could
be sustained if made; and our investigation leads us to a nega-
tive conclusion on that proposition. It is not a question of the
weight of evidence, or the belief which ought to be accorded
to, or withheld from, the testimony of witnesses. All the
material and important facts are practically conceded, accord-
ing to this record; and the real question now is, shall these
facts be interpreted, and given the effect in law, as respondent
contends, or as appellant urges?
The record discloses the following facts: In the spring of
1891 plaintiff applied to the board of trustees of said school
district for a position as teacher in one of the schools thereof
at the succeeding term, to commence on the 1st of the follow-
ing Septemt)er, in her application expressing her preference for
a position in the primary department. Plaintiff's application,
with others, being referred to a committee of said board, desig-
nated as " Committee on Teachers and Salaries,*' that committee
elected from the applicants a full corps of teachers for the dis-
trict for the term of ten months, commencing with the month
of September of that year, without selecting plaintiff as one of
the regular teachers; but she was chosen as ^^ supply teacher,''
and in the report of said committee, afler naming the several
teachers chosen, and the amount of the salary of each, respect-
ively, it contained the following: ** Supply teacher, Mary Case,
salary per month, seventy dollars." This report of the oom-
mittee was adopted by said board of trustees. Soon after that
event plaintiff was, by letter from the clerk of said board,
notified of her selection as supply teacher at the compensation
mentioned, requesting her in such notice to signify her accept-
ance of the appointment if the same was agreeable. Plaintiff
accordingly wrote a note to the clerk of the school board
accepting the same. Thereafter it transpired that plaintiff was
called upon and served as supply teacher on two occasions dur-
ing the four months for which compensation is claimed, being
the first four months of said term, teaching altogether seven
days — four days in October and three days in November.
The report of the committee, its adoption, the notice to
14 Mont.l Casb v. School District. 141
plaintilTy and her acceptance of said appoiDtment^ are claimed
to constitute the contract to be interpreted in this action; and
counsel concede that the decision of this case depends upon
an interpretation of the employment^ engagement^ service, and
compensation to be rendered hj each party, as evidenced by
these documents.
On the part of plaintiff and respondent here it is contended
that the contract contemplated her engagement for the whole
term at seventy dollars per month, whether she rendered any
service in teaching or not. " That," she asserts in her testi-
mony, ''was what the contract called for"; that she was in
readiness to teach when notified, during said four months, but
did not claim compensation after the close of December, as she
was sick in January and a considerable portion of the
remainder of the year.
On the contrary, the defendant board of trustees (appellant
here) contends that the contract contemplated that plaintiff
was engaged as supply teacher to fill any vacancy which might
occur by reason of sickness, or absence from other cause, of
any teaclier in the schools of said district. The district, in
question, as we understand, includes the city of Missoula.
That a board of trustees of a school district has power,
under the provisions of law governing its action, to bind the
district, by contract, to pay supernumerary teaclier or teachers
a fixed salary while not rendering service as teacher, but
merely waiting a contingency, which might or might not hap-
pen, to require some service, is extremely doubtful. According
to the interpretation of this contract contended for by plain-
tiff, said trustees engaged to pay her seven hundred dollars for
acting as supply teacher during said term, when her services
might not be required at all, and, as actual experience showed,
were only required seven days in four months of the term.
This was the same compensation as was paid some of the
teachers in said district for constant service, which fact plain-
tiff admits she knew. It might be proper enough to pay those
who came at the eleventh hour, or came not at all, equally with
those who '^ have borne the burden and heat of the day" ; if the
trustees, like the master of the vineyard, were dispensing of
their own; bnt, in oar view, the law governing them forbids
142 Case v. School District. [Dec. T., 1898
Biich muDificeiice in their stewardship for the people of their
district.
Aside from that view of the case, it seems hardly reasonable^
in the light of the circumstances^ that plaintiff should conclude,
from her selection as '^supply teacher'' at the compensation
stated, that she was elected to a sinecure, the principal duty of
which, prospectively and practically, was to draw a salary equal
in amount to that paid teachers for constant service. In
adopting that conclusion, so far as the record shows, plaintiff
made no inquiry as to the understanding or contemplation of
the trustees. Indeed, the implication appears quite strongly,
from what is shown that plaintiff and her advisers avoided
raising that question, for, although plaintiff knew the teachers
of said district were paid at the close of each school month,
plaintiff made no application for the amount claimed. This
was not made at all until May or June following the months
for which the salary is now claimed.
Plaintiff's father, in testifying on her behalf, assumed to state
the reason why plaintiff did not apply for her alleged salary
at t}ie close of the school months as tliey progressed, by saying
that he had been trustee for thirty-iive years, ^^and it was the
custom for the clerk to pay the teachers without an application
from them." If such was understood by plaintiff and her
advisers to be the custom, it seems to us that the failure to
receive payment would have aroused inquiry without such
long delay; and it seems also that that very fact, if plaintiff
was really counting upon such payment without service, would
have tended, at least, to lead her to the conclusion that the
officers of the district did not contemplate paying a r^ular
salary for plaintiff's occasional service, or no service at all.
The statute of this state contains a just rule of interpretation
in this connection, in the provision that ^* when the terms of
an agreement have been intended in a different sense by the
different parties to it, that sense is to prevail against either
party in which he supposed the other understood it." (Code
Civ. Proc., § 636.) The clerk of said district, in his testi-
mony on behalf of plaintiff, states that in December (one
of the months for which she claimed salary) she again applied
by letter for appointment as regular teacher in one of the
14 Mont.J Montana Milling Co. v. Jeffries. 143
schools of said district^ the salary for which was seventy
dollars per month; that such application, with some others^
was delivered by the clerk to the committee on teachers
and salaries and was not returned to him; therefore^ he was
unable to produce it at the trial. Plaintiff disputed her wit-
ness iu this particular, denying that she made that application.
Nevertheless, the testimony of Mr. Musgrave, the clerk of the
district, who was called by both |>arties, sounds very frank and
disinterested. Indeed, if any leauing is discoverable at all, it
is towards the plaintiff; and that circumstance is told with so
mucli detail that it seems quite improbable he should be mis-
taken. However, that incident may only show that plaintiff
was seeking more work, and not more compensation.
The court found the plaintiff, under said engagement, was
entitled to compensation for the time served at the rate of
seventy dollars per month. In our opinion, this was the
proper interpretation. The case is therefore remanded, with
directions to overrule plaintiff's motioq for new trial. Costs
may follow the judgment.
Iim>ened.
P£MB£BTON, C. J., oonours.
14 148
sl8 500
MONTANA MILLING COMPANY, Appellaot. v.
JEFFRIES, Shebipp, Respondent.
(Sabmitted July 17, 189S. Decided Febraary 26, 1894.1
kmcBMBrr-^Sook aotfounU^Duty oftih&riffto sramisA.—- It ia the duty of a sher-
iff who has ISTied an attaohment upon a stock of goods, and baa in bis posses-
sion thereonder the books of account of the defendant, to garnish those who
appear therein as debtors, without first receiving a written notice from the
plaintiff or his attorney, as provided for in section 188 of the Code of Civil
Prooedure, sinoe sections 184, 185, and 186 reqnire a sheriff, when a writ of
attachment is placed in his hands, to attach and safely keep all the property of
the defendant, indnding debts.
Appeal from Fird Judicial Didrict, Lewis and Clarke Qmnty.
Actios for damages against a sheriff for &ilnre to execute
a writ of attachment. Tried before Hunt, J., on agreed case.
Defendant bad judgment below. Berersed.
144 Montana Milling Go. v. Jsffbies. [Dec. T., 1S93
Hdwof'd C. Ru89dj for Appellant.
The main points to be decided are: Was a written frcooipe
to respondent necessary, in strict compliance with section 188
of the Code of Civil Procedure, to secure the service of gar-
nishments under appellant^s writ of attachment? If no such
prcBdpe was necessary, was respondent negligent in not levying
said garnishment uuder appellant's, or a prior, writ? If such
a pi'CBcipe were necessary, was respondent justified in levying
under the so-called prcDcipea uuder which he acted? Appellant
contends that no such prascipe is necessary, but that the respond-
ent was commanded to garnish debtors by the writ and statute;
that section 188 is supplemental and additional to section 186,
and not contradictory to, or exclusive of, the fifth paragraph
of said section 186. Section 186 is a clear and express com-
mand to serve garnishments, with directions how to do it. Sec-
tion 188 is simply a repetition of the mode of procedure, aud
a direction to pursue it in case of notice given by the plaintiff.
It is not inconsistent with, or contradictory to, the command of
section 186, but supplemental. The writ of attachment (the
ordinary printed form) leads: "Now, we do therefore com-
mand you, the said sheriff or constable, that you attach and
safely keep all the property of the said defendant within your
county, not exempt from execution, or so much thereof as
may be sufficient to satisfy plaintiff's demand as above men-
tioned; unless,'^ etc., and the statute, section 186, became a
part of said writ, and made it include garnishments. The
doctrine of "-Eopreswo uniua est exclimo alteriut^^ applies only
when its assistance is necessary to determine the intention
of the legislature; or when that expressed is creative or in
derogation of common law or other provisions of the stat-
ute. (Sutherland on Statutory Construction, § 326.) The
maxim does not apply where the statute covers many cases,
and some are mentioned without intention of excluding others.
(Sutherland on Statutory Construction, § 329.) All statutes
which can stand together relating to the same subject should
be construed together and harmonised, if possible. (Sutherland
on Statutory Construction, § 283; Sedgwick on Construction of
Statutory Law, 209 et seq.) The legislature is presumed ta
14 Mont.] Montana Milling Co. v. Jbffbibs 145
iatend existing statutes, wliere they have not expressly abro-
gated them. Where no express repeal is needed none is deemed
ittl ended. (Sutherland on Statutory Construction, § 829.)
The statutes of Missouri (§ 1264) provide for a general direo-
tion for garnir.hment and a special direction giving names
of debtors, all in the writ of attachment, and this is prao-
tically the same as our statute (§§ 186-88.) This has beeo
construed in Fritchard v. Toole, 53 Mo. 356, to intend that
both directions shall be binding, and the officer shall exer-
cise diligence in levying garnishments under the general
direction, cited in 5 American and English Encyclopedia of
Law, under garnishment, page 1121. Again, as attachment
and garnishment are creatures of the statute, the service must
be made in strict accordance with the statute, or the garnishee
is not held; he pays at his peril; the rights of third parties are
not barred, and the garnishee is again liable. (Drake on
Attachment, § 451 6; Hdley v. Hannibal etc R. R. Co,, 80 Mo.
112; Fletcher v. Wear, 81 Mo. 524; Galea v. Tuslen, 89 Mo.
13; Connor v. Fope, 18 Mo. App. 86; Fratt v. Sanborn, 63
N. H. 115.) The sheriff must execute the process diligently,
and must answer to plaintiff in damages for negligence.
(Crocker on Sheriffs, §§ 280, 287, 851, 852.) The sheriff is
bound to make reasonable inquiry and search for property of
defendant. (Crocker on Sheriffs, §§ 432, 851; Drake on Attach-
ment, §§ 188, 190, 191, 191 a; Fisher v. Gordon, 8 Mo. 386;
Taylor v. Wimer, 30 Mo. 126; BeU v. Commonwealth, 1 J. J.
Marsh. 551.) The plaintiff is under no obligation to give the
officer information. (Freeman on Executions, §§ 107, 252, and
cases cited; Crocker on Sheriffs, § 851; Hargrave v. Fenrod,
Breese, 401; 12 Am. Dec. 203, and note; BaUe v. Oiandler,
63 Tex. 613.) "^
Letlie & Craven, for Eespoudent
Bespondent insists that sections 186 and 188 of the Compiled
Statutes are to be construed together, and as one continued
series of instructions to the sheriff, without regard to section
187, which gives instructions to the recorder. There is noth-
ing in either section but prescribed duties and directions to the
Vol. XIV. -10
146 Montana Milling Co. v. Jeffries. [Dec. T., 1893
sheriff as to what he shall do with the writ of attachment^ and
how and when he shall do it, in the varioas circumstances of
each case. The construction of section 186, which is claimed
by counsel for appellant, necessarily includes and embodies
every particle of power, authority, and duty imposed and con-
ierred upon the sheri£P by section 188. And if such power
and duty come to him by virtue of section 186, why and for
what reason was section 188 enacted and set forth in the
same chapter, in connection with the same subject matter,
and in the same act of the legislature? But is the con-
clusion that the section is only a repetition tenable when
tested by the principles of statutory construction? Sec-
tions 186 and 188 of the Compiled Statutes, with the excep-
tion of changes in the former in respect to the manner of
attaching real estate, are sections 96 and 97 intact, passed at
Bannock in 1864. Section 187, prescribing duties to the
recorder, was afterwards enacted. And to arrive at the
conclusion of the appellant in this cause we are asked to
believe that the legislature in its first session adopted section
188 as a vain and cumbersome repetition, and has since carried
it along through all the successive revisions, from that time to
this, as so much worthless luggage. How much more conso-
nant with every principle of statutory construction to conclude
that subdivision 5 oT section 186 specifies how debts, credits,
and other personal property not capable of manual delivery
may be attached, and that section 188 directs the sheriff when
and under what information the duty is imposed upon him, to
prepare and serve garnishments. Every clause and word of a
statute is presumed to have been intended to have some force
and effect. A fortiori the language of a statute is to be given
such a construction as will give the act some force and effect.
It is a cardinal principle that all statutes are to be so construed
as to sustain, rather than to ignore, them; to give them oper-
ation if the language will permit, instead of treating them as
meaningless. (Endlich on Interpretation of Statutes, §§ 265,
and cases cited, 399.) A statute must be so construed as to
give effect, if possible, to every portion of it, and without reject-
ing any part as surplusage or treating it as a re[)?tition of a
provbion already made. (Gates v. Salmon, 36 Cal. 676; 95
14 Mont.] Montana Milling Co. v. Jstfbiss. 147
Am. Dec. 139.) There are abandant reasons in support of the
justice of the theory that a sheriff need not garnish without
special instructions from plaintiff. Real and personal property
usually afford some idea to the officer of their value.
The officer knows before he levies whether any thing can be
realized from the property about to be taken. But in the case
of debts it is different. How can an officer know from the
fact that books of accounts show various amounts to be due
from a hundred or more debtors of a failing firm, that garnish-
ment of thesn all would result in sufficient money to even pay
his costs? Is he expected to accept the books as conclusive,
and act upon the presumption that all debtors are good, and
that there are no offsets, payments, or counterclaims? Or is
he to constitute himself a spy to find out all of these uncertain-
ties, and then garnish if the coast is clear?
If the sheriff must make search and find out whom to gar«
nish under the general mandate of the writ alone^ as contended
by plaintiff, how and why is it that he may act upon oral
information received from third parties, while the information
from plaintiff or his attorney must be in writing? A strange
construction surely that would compel the sheriff at his peril
to inquire from, and act upon, the oral statement of A, B, and
C, strangers to the suit, while the information from plaintiff* or
his attorney, in order to afford a basis for like action on the
part of the sheriff, must be in writing. The cases cited by
appellant showing the necessity of due diligence, do not apply
to statutes like ours. The Missouri statute, as to writs of
attachment, was not involved in the case of Pritohard v. Toole,
63 Mo. 356, cited by appellant. The presumption of law is
that the sheriff did his duty in this case. Neglect of duty free
from contributory negligence on the part of the plaintiff must
appear, before the officer can be made liable.
The books were in the store, and with all the contents were
taken into possession by the sheriff. It does not appear as to
whether he actually knew they were a part of the contents of
the store, not being properly the subject of attachment, except
for their actual value as so much bound paper, until his atteu«
tion was called to them by subsequent creditors in their
frascipea. As to whether they were properly kept and posted.
148 Montana Milling Co. v. Jxffbixs. [Dec. T., 1893
80 that he coald have known their contents without extraordi-
nary research does not appear. Tliere is nothing in the agreed
statement to show that the sheriff had any reason to know or
believe there was any debt owing to the defendants,
MeOmndl, Cfayberg & Ounn, also for Bespondent
P£MBSBTON, C. J. — This is an action for damages, bronght
against the defendant for n^lect and failure to execute a writ
of attachment in his hands as sheriff of Lewis and Clarke
county. The case was tried in the court below on an agreed
statement of faciS| which is as follows:
^' 1. That the Montana Milling Company was, at all the times
hereiuafler mentioned, and now is, a corporation organised
under the laws of the state of Montana, doing business at
Helena, in said county of Lewis and Clarke; that Charles M.
Jeffries was, at all times hereinafter mentioned, and now is, the
sheriff of said county of Lewis and Clarke.
^'2. That on the fifteenth day of September, 1890, the Mon-
tana Milling Company commenced an action against Kuphal
& Schumacher, and a writ of attachment was issued in said
action, and placed in the hands of Charles M. Jeffries, sheriff,
on the same day, and judgment against said defendants in
favor of said plaintiff was thereafter rendered.
'' 3. Six other writs ot attachment, in as many suits against
the same defendants, were in the hands of said sheriff when he
received that of the Montana Milling Company, and six or
more writs, in as many more suits against the same defend-
ants, were placed in the hands of said sheriff after that of the
Montana Milling Company.
^'4. In pursuance of the first and subsequent writs, includ-
ing that of the Montana Milling Company, the store of defend-
ants Kuphal & Schumaclier, together with stock of goods and
fixtures therein, was attached by said sheriff on said fifteenth
day of September, 1890.
"5. The books of account of said defendants Kuphal A
Schumacher were in the said store at the time of said levy,
were taken possession of by said sheriff, no one having made a
demand for them, but were never attached by said sheriff
*' 6. No written prascipe or notice, as contemplated by section
14 Mont] Montana Milliko Go. v. Jbffbibs. 149
188 of the Revised Statates of Montana, for garnishing debtoilB
of said defendants Kuphal & Schumacher^ was given to said
sheriff by the said Montana Milling Company, nor has any
ever been given. Though the said Montana Milling Com-
pany did, at the time of bringing said suit, have reason to
believe that certain parties were indebted to said Kuphal &
Schumacher, yet it failed to give said sheriff a written notice
containing the names of said parties so indebted and the
amounts of said indebtedness.
**7. Said sheriff attached no moneys due said Euphal &
Schumacher by garnishment until the twenty-ninth day of
Sep'tember, 1890, and then, under writs of attachment issued
iu the suits, respectively, of Oeo. i2. Newell <£r Oo. v. Kwphal A
Scfiumacher, placed in his hands September 24, 1890, and
Franklin MeVeagk & Co. v. Kwphal <£r Schumacher, placed in
his hands on the seventeenth day of September, 1890, a writ-
ten prcedpe for such garnishment having been filed with said
sheriff in the case of Franklin McVeagh & Co., on or about
the twenty-ninth day of September, 1890, and in the case of
Geo. B. Newell & Co. on the first day of October, 1890.
Copies of said prcecipea are hereto attached, marked, respect-
ively^ 'Exhibit A' and 'Exhibit B,' and made a part hereof.
^'8. That under the last-mentioned writs the sheriff col-
lected the sum of nine hundred and fifly-nine dollars and
twenty-seven cents, which he paid to 9aid plaintiffs Geo. B.
Newdl & Co. and Franklin McVeagh & Co., under their
writs of attachment, which were etobsequent to that of the
Montana Milling Company, which said sum was collected
from debtors of said Kuphal & Schumacher, who appeared to
be snob debtors by the said books of account of said Kuphal
& Scbamacher in the hands of said sheriff as aforesaid.
** 9. That, if said sum collected under said garnishments,
and paid over to said subsequent attaching creditors, had been
paid by said sheriff to the attaching creditors in the order of
their priority, the said judgment of the Montana Milling Com^
pany would have been paid in full.
'^ ** 10. That the said judgment of the Montana Milling Com-
pany is Btill unsatisfied, and there is no property in the sheriffs
160 Mqktana Milling Go. v. Jbffribs. [Deo. T.| 1898 '
hands, or andet his oontrol| of said Kuphal & Schamacher, to
satisfy it."
The points of contention submitted to the oourt below were
as follows: '^The Montana Milling Company claims that
Charles M. Jeffries, as sheriff is liable to it for the amount of
its said judgment against said Kuphal & Schumacher, by rea-
son of his negligence in not levying, under its said writ of
attachment, on the said credits of said Kuphal & Schumacher.
Charles M. Jeffries, sheriff, claims that he is not so liable, for
the reason that he was under no obligation to said Montana
Milling Company to levy upon such credits under said writ,
not having received any written pnxdpe or information in
writing from said plaintiff or its attorney, as contemplated io
section 188 of the Revised Statutes of Montana, page 74; (hat
if there was any negligence it was on the part of said Mon-
tana Milling Company, and not said sheriff."
Upon this statement of facts, and these points of contention,
the court rendered judgment in favor of the defendant. From
this judgment this appeal is prosecuted.
From the contention of the parties, as shown above, it will
readily be seen that the appellant contends that it was the duty
of the respondent, as sheriff, to attach the debts owing to
Kuphal & Schumacher, as shown by the books of account of
that firm, taken possession of by him under the writs of attach-
ment against said firm, without any written notice, while the
respondent contends that he was not required to attach such
debts, or garnish the debtors of said firm, without a written
notice so to do.
The law of this state requires a sheriff, when a writ of
attachment is placed in his hands, without delay to attach and
safely keep all the property of the defendant, including debts,
named in the writ, not exempt from execution, or so much
thereof as may be sufficient to satisfy the plaintiff's demand.
(Code Civ. Proc, §§ 184-86.) Subdivision 6 of said section
186 prescribes the manner of attaching debts and credits in
the hands of persons owing such debts, or having in their
possession such credits. Appellant contends that under these
provisions of the statute it was the duty of the sheriff to attach
the debts due the said firm of Kuphal & Schumacher in the
14 Mont] Montana Milling Co. i;. Jbffbibb 151
bands of the persons owing them^ as shown by the books of
account of said firm in the possession of the sheriff under Uie
writ of attachment issued against said firm without written
notice. The respondent contends that section 188 of the Coda
of Civil Procedure, which is as follows: "Upon receiving
information in writing from the plaintiff or his attorney, that
any person has in his possession, or under his control, any
credits or other personal property belonging to the defendant,
or is owing any debt to the defendant, the sheriff shall serve
upon such person a copy of the writ, and a notice that such
crtnlits or other property or debts, as the case may be, are
attached in pursuance of such writ''— controls and is decisive
in this case. In other words, the respondent contends that a
written notice under said section 188 was a sine qua non to the
fixing of the liability of the sheriff for failing to garnish the
debtors of said firm of Kuphal & Schumacher. Why was it
necesjsary to give the respondent notice in writing to garnish
any of the debtors of said firm? He had possession of the
books of account of said firm under the writs of attachment in
his hands. He had all the information necessary as to who
were the debtors of said firm. The books of account of the
attached firm gave him that information. It was his duty,
under the law, to attach, without delay, all the property of the
defendants in his county not exempt from execution, or so
much thereof as would be sufficient to pay the demand of the
plaintiff. The debts of the firm were as much property, and
as much subject to attachment, as any other character of prop-
erty. Then, why was it not as much his duty to attach the
debts in the hands of the persons owing them, in the manner
prescribed by law? If he failed to use due diligence in attach-
ing property, or did not attach sufficient to satisfy the demand
of plaintiff, he rendered himself liable to plaintiff for damages.
(Drake on, Attachment, §§ 188, 190, 191a.) Nor was the
plaintiff required to notify him in writing, or otherwise, as to
whom he should garnish, or what property to attach. It was
the duty of respondent to make reasonable effort to find suffi-
cient property and effects of the defendant to satisfy the
demands of the plaintiff. This he did not do. He oould as
well have garnished the debtors of daid firm, under the writ
162 Montana Milling Co. v. Jbffribs. [Dec T., 1893
issued in the suit of plaintiff, without written notioe, as he did
under subsequent writs with written notice; for the written
notice, in the subsequent attachments, to garnish debts, reads
as follows:
"Geo. R. Newell & Co. v. Kuphal & Schumacher: To the
sheriff: We understand that you have a list in jour possession
of the creditors of the above-named defendants. Since the
plaintiffs in the above-named cause are probably the last on
tlie list in the general attachment on the goods, will you please
garnish a sufficient number of those indebted to the defendants
wIjo have not been garnished, in order to have enough secured
by the writ to secure our demand.'' This notice did not desig-
nate any particular debtor or debtors. It simply called the
sheriff's attention to the list of debtors of said firm contained
in the books of account, and asked that they be garnished.
This was merely calling his attention to information he already
had, and to property which it was his duty to have attached
under former writs. We do not think the plaintiff was required,
under said section 188, to give the respondent written notice
to garnish the debtors of the defendant firm, under the facts
and circumstances of this case, or that such written notice was
a prerequisite to the liability of the respondent. (See Har-
grave v. Penrod. Breese, 401; 12 Am. Dec. 201, and authori-
ties cited in note; Crocker on Sherifi^, § 851.) It was the
duty of the sheriff to have attached the debts due said firm, as
shown by the books of account of said firm in his possession,
and to have paid out the proceeds or amounts so collected in
the order of the priority of the writs of attachment in his
hands; or, having garnished said debtors, and collected the
amount owing said firm, if he had any doubt as to how he
should proceed in paying out the same, he should have brought
the money into court, and asked for an order as to the dispo-
sition thereof. In this manner he could have protected himself
as well as this appellant.
The judgment of the court below is therefore reversed, and
the cause remanded, with instructions to enter judgment in
&vor of the plaintiff.
BtoetHdL
Habwood, J.« concurs.
CASES DETESHIKED
nr TBI
SUPREME COURT
IX XBB
MARCH TERM, 1894.
PBEBENT:
Hon. WnxTAM T* Pembbrtok, Chief Justioe.
Hon. Edgar N. Harwood, )
Hon. William H. Be Witt, )
In re RICKER« ESTATE.
[BnlmiKied Xiroh 7, 1898. Decided March 13, 1894.]
JkaauvovB—BentUing tniif.— The doctrine of eqiiitj that a tnistee shall not be
permitted to make any profit by the nae of trust funds does not warrant the
creation of a resulting trust in favor of an heir, in Unds which an executor
has parehased, using trust funds to the extant of one-half the purchase price,
where, punctually and as directed by the will, he accounted for the funds so
used with compound interest
BiXK— Commissions.— Where the administration of an estate continues orer a
period of years, an executor may properly charge the estate at the cloae of
each year, with the commission allowed by law on funds of the estate, actually
disbursed during the preceding year. (Jnre Dewaf*8 Ettate, 10 Mont 436,
distinguished.)
EiMB—Oamproniise of olaimM, — ^Where an executor has compromised a claim due
the estate after collecting some payments from time to time from the debtors,
wbo were generally regarded as insolyent, he should not be charged wltii die
amount rebated fh)m the debt upon the mere showing that for seyeral years
during the running of the debt title to certain land stood in the name of one
of the debtors, and which property was coiiT^yed for a consideration, as staisd
la the deed, mueh kifor Ihaa the amount of his indebtedtteis to the estaH ik
(l«)
164 In rb Ricksb'8 Estate. [March T., 1894
not ftppeiring th&t laoh pr o p erty wm fabJ«oi to cxMmttoii, or fluit the ooo*
•identton in the deed repreeented the tbIqo.
MiM^-Uke oftnutJktnd»^InUre$L'-Aik exeoator who hat reteined in his hands
fdnds of the estate which should have been deposited in bsnk at interest,
should not be required, in an equitable aeooonting, to paj arbitrary ratesSof
interest npon saoh funds in exoess of the statatory rate, parlioolarly where bo
aooounted for a higher rate than the banks, wherein ^tbe money was ordered
deposited, would hsTo paid,
Bahb— C7omiiiiistof»— iieeieto on oftpeal.— An ol^oetion thftt an exeeutor was
allowed a higher rate of oommission in oertain years than the statute allowed*
eannot be raised for the first time on appea'
Appeal from Fird Judicial IHstricU Leioii and Clarke Qmnhf.
Actios for an aooounting against an execntor* The cause
was tried before Buck, J., who rendered a decree for petition-
ers. Reversed.
Maaeena BuOard and D. B. Wade, for the Executor, Appel-
lant.
I. We admit at the outset that an executor or trustee must
make no profit or gain to himself of any kind, upon or out of
the funds in his hands as such executor or trustee. It is so
declared in our statute, and the statute but expresses in defi-
nite words the effect of numerous decisions. Courts have
sometimes enforced this rule and principle with such rigor, and
at other times with such laxity, that Chancellor Sanford, in
the case of Ctarkaon v. De Peysler, 1 Hopk. Cb. 606, in defin-
ing the duties and liabilities of trustees, applied the rule as
follows: ^'A jealous severity, which would deter prudent men
from accepting these trusts, and a lax indulgence which would
invite men to accept them for gain, are extremes which are
equally inexpedient.''
II. The failure to invest in government securitieB was not
malversation or breach of trust The court had the inherent
authority and power to make the order concerning the invest-
ment of these funds, when it became necessary so to do for the
protection or preservation of the funds and the interests of the
l^atees, or if it became impossible or impracticable to carry
out the provisions of the will concerning investments. (Cross-
well on Executors and Administrators, § 439; Schouler on
Bxecntors and Administrators, § 336; Twaddeffe Appeal^ 5
Prn. 8t» 17; Laneing v. Laming, 46 Barb. 182; Oraj/ v. In/nch,
14 Mont In bb Kicker's Estate. 155
8 Gilli 405.) In cases of unauthorized varying of the securi-
tieSy the trustee takes upon himself the- burden of proving
entire bona fides, and that there was reasonable ground to
believe that the fund would be benefited; and if this can be
shown, the courts will sustain his action. {Wcuhington v.
Emery, 4 Jones Eq. 32; Comunse v. Bourgum, 2 Ga. Dec. 15.)
The directions of the will are not to be followed, if the funds
of the estate would be lost or injured thereby. It would have
been waste^ and a squandering of the funds of the estate,
to have invested its funds as directed by the will. For
all practical purposes government bonds could not have
been obtained. They were from 17 to 20 per cent premium,
bearing but 6 per cent interest, which was soon after reduced
to 4 per cent interest, and to have purchased them would have
required the payment from the estate funds of from $2,500 to
$3,000 in premiums, which sum would have been entirely lost
to the estate, and when the bonds were obtained it would have
required three and one-half years' interest thereon to have paid
this premium. This order of the court, as to investing the
funds, relieved the estate from the payment of a burdensome
premium^ and has enabled the executor to add to the value of
the estate about $16^000 in interest received and accounted for
by him. But suppose there had been a breach of trust in not
following the will as to investments, what are the conse*
quences? The executor only becomes personally liable for
losses if the investment he made did not equal the investments
directed by the will. (See Schouler on Executors and Admin-
istrators, § 329, and note.) In such a case the standard or
measure of loss would be what would have been made or real-
ized by the estate or legatees if the directions of the will had
been followed. The court will inquireand ascertain the amount
due if the will had been followed. (1 Perry on Trusts, §472.)
If the executor accounts for more than he would have realized
by following the will, and has made no profit for himself, tiie
legatees cannot complain. They have no cause of complaint
if they have not been injured, and the executor has not been
benefited. The case is analogous to that of a statute requiring
tmstees to invest in certain securities, but they fail to do so,
and invest in others not named in ,the statute, in which cases
166 In bs Biokeb's Estate, [March T.| 1894
the trasteet are odIj required to make good the losBee in con-
seqneDce of departing from the statute. (See 1 Perrj on
Trosts, 663, and note; Schouler on Executors and Admiois-
trators,' § 336.) And so trustees may elect to invest in securi-
ties not Darned in a statute, and if they so elect they only
become responsible for losses. The' rule is fully stated by
Lord Cottenham aud quoted in Schouler on Executors and
Administrators, section 336. Even in such cases, if the trustee
acts in good faith, and exercises good judgment, and there is a
loss, he will be protected. (See TwaddMs Appeal^ 6 Pa. St.
18.) Undoubtedly, the same rule would be applied to a will
directing certain investments, and especially in a case where,
by departing from the will, the estate and legatees had been
greatly beneBted. (See SmiUi v. WeUingtm do. Cb., 83 HI.
498; Biehardaon v. Knight, 69 Me. 285.)
III. The trial court directs that the executor be charged
with compound interest upon the funds in his hands at the
rate of 18 per cent per annum from July 21, 1876, to August
31, 1880; from August 31, 1880, to January 20, 1886, with
compound interest at the rate of 15 per cent per annum;
and from January 20, 1885, to the date of the exhibit filed
herein, at the rate of 12 per cent compound interest per
annum. Having found that the executor mingled the trust
funds with his own, from the fact that all of the trust funds
were not at all times deposited in the banks, then follows the
order as to the rates of interest to be charged, which order is
based upon the testimony of certain bank officers, who testified
that money might have been loaned, not indeed at compound,
but at simple interest, at the rates and between the dates above
mentioned. There is no testimony in the case tending to show
at what rates money might have been loaned between those
dates at compound interest for a series of years. But the
injustice of charging an executor with compound interest at
these rates for a long series of years will be realized when it is
remembered that in loaning money for a long number of years,
with the utmost vigilance and care, there are always losses, and
always times of depression and stagnation when money oannot
be loaned at all. {King v. Ihlbot, 40 N. Y. 96.) Even in
old and well-established communities there are periods of
14 Mont.] In rb Ricker's Estate. 157
depression and stagnation which prevent or make unsafe the
lofining of money. For these reasons courts hold that it
would be unjust and a hardship to charge an executor or
trustee with the full legal rate of simple interest on funds in
his hands for a series of years. To charge compound interest
against a trustee for a long series of years, upon the supposi-
tion that he has received, or that it would be possible for him
lo have received, such interest^ is against the common ezperi-
ence of the business world. Interest is not charged against a
trustee under such circumstances to take from him what he
has not received. G)mpound interest will not be charged or
allowed as a penalty, or to punish the executor or trustee. It
18 only resorted to as a means to compel the trustee to refund
the interest he has actually received, or that he is presumed
actually to have received. (See Uiica Ins. Co. v. Lynch^ 11
Paige, 524; Hood's Estate, 1 Tuck. 396; Pt-escotes EstaU, 1
Tuck. 430; Spear v. Tinhliam, 2 Barb. Ch. 213; Manning v.
Manning, 1 Johns. Ch. 527; MeKnight v. Wahh, 24 N. J. Eq.
498; English v. Harvey, 2 Bawle, 305; In re Harland's
Accounts, 5 Rawle, 329; Lighi's Appeal, 24 Pa. St. 181; ifo-
OalPs Estate, 1 Aslim. 357; Baimey v. Saunders, 16 How.
635; Williams v. Fetticrew, 62 Mo. 460; Scott v. Crews, 72
Mo. 261; Boynton v. Dyer,\i% Pick. 1; De Peyster v. Gark--
son, 2 Wend. 77; Ackerman v. Emott, 4 Barb. 626; Gamiss
V. Gardiner, 1 Edw. Ch. 128; Lansing v. Lansing, 45 Barb.
182; Fay v. Howe, 1 Pick. 527, and note; Clemens v. Caldwell,
7 B. Mon. ni; Luken's Appeal, 7 Watts & S."48; Fall v.
Simmons, 6 6a. 272; Cartledge v. Culiff, 21 Ga. 1; 1 Perry
on Trusts, § 471; Hughes v. People, 111 111. 467; WUmerding
▼. McKesson, 103 N. Y. 329; Graver's Appeal, 50 Pa. St. 189.)
Again, by what theory or principle is the executor required to
pay interest from the very day of his appointment, when he is
compelled to hold the funds of the estate in his possession for
the purpose of paying the debts until a year from that date?
In 1 Perry on Trusts, fourth edition, section 4j62, it is said: '^ A
year is a reasonable time within ^which an executor may call in
a testator's estate and pay off his liabilities, and it is necessary
during that time that the executor should keep the money on
hand, Ab a general rule executors and administrators are not
158 In rb Kicker's Estate. [March T., 1894
chargeable with interest for one year after they have taken oat
letters (that time being allowed them to get in the estate and
settle their aooounts), nnless they have actually received it, or
have used the money doling that time.'' (Fox v. WUoooka^ 1
Binn. 194; 2 Am. Deo. 433; Vemer^s Edate, 6 Watts, 250;
Findlay v. Smith, 7 Serg. & R. 264; BUzer v. Hahn^ 14 Serg.
& R. 232; Commonwealth v. Mateer, 16 Serg. & R. 416; Wal-
tliour V. WcJthour, 2 Grant Cas. 102; Levin on Trusts, 279;
Ogilvie v. Ogilvie, 1 Bradf. 366; Jaoot v. Mnmdt, 11 Paige,
145.) After the expiration of one year interest begins to run
on the balance found in their hands on the annual accountings
{McChlTs IktcOe, 1 Ashm. 367; Boynian v. Dyer, 18 Pick. 2;
Oilman v. Oilman^ 2 Lans. 1.) "Where sums have been
received after that time the court will allow six months from
the time of tlie receipt before the charge of interest is to com-
mence.*' {Wo^rdPs Appeal, 23 Pa. St. 44; Dunacomb v. Duns^
comb, 1 Johns. Ch. 511; 7 Am. Dec. 604; MoKnight v. Walsh,
24 N. J. Eq. 498; Voorhees v. Stoothoff, 11 N.J. L. 155;
Cogswell v. Cogswell, 2 Edw. Ch. 231: see 7 Am. & Eng. Ency.
of Law, 427, and notes.)
lY. The foregoing considerations are of weight in fixing
the rate of interest with which this executor should be charged.
There is no testimony in the case showing, or tending to show,
tiiat the executor mingled the funds of the estate with his own
funds, or that he used the funds of the estate in his private
business, except the fact that his annual reports or accounts^
taken in ^nnectiou with the bank statement of money on
deposit in the name of the executor, show that all the funds
of the estate were not kept on deposit by the executor in
the banks. The complaint is not that the executor has not
accounted for these sums of money assumed by him, together
with interest thereon, or that he has not accounted for the
balances in his hands from year to year, or that he has not
accounted for every dollar that ever came into his hands
belonging to the estate, together with interest thereon. All
this is admitted, but the claim is that he has not accounted for
all the interest with which he is legally chargeable.
V, The testimony does not support the finding of the.
court that the executor mingled the funds of the estate with
14 Mont.] In bb Ricker's Estate. 150
his own^ and used them in his private business. It is shown
that the balances not deposited in the banks were the debts of
insolvent debtors assumed by the executor and the amounts
required to be kept on hand for the widow. But if the find-
ing of the court were true^ and supported bj the evidence^ is
the conclusion of the court thereon that the executor should be
charged with compound interest at the rate of 18, 15^ and 12
per cent per annum authorized or justified hy the law? Mr.
Peny, in his work on Trusts^ which is cited as authority by
the highest courts of the country^ in volume 1^ fourth edition^
section 468, answers the question as follows: ''If a trustee
retains balances in his hands which he ought to have invested,
or delays for an nnr^onable time to invest, or if he mingles
the money with' his own, or uses it in his private business,
• ... he will be liable to pay simple interest at the rate
esfabh'shed by law as the legal rate in the absence of special
agreements/' Tliis is exactly what the court found that this
executor did. ^/Phat "the said William A. Chessman mixed
large sums of money belonging to the said estate with his
]>rivate funds, and used the same on his own account," and
for doing which the court charges him, not with simple inter-
est at the statutory rate, in the absence of special agreements,
but with compound interest at illegal rates, except for special
agreements. Our statutory rate, in the absence of special
agreement, is simple interest at the rate of 10 per cent per
annum, and there is no statute, and never has been in our
territory or state, authorizing compound interest at any rate
whatever, either in favor of a dead or live man. (King v.
Talbot, 40 N. Y. 86; NeIsM v. Hagerdoton Bank, 27 Md. 53;
Dufy V. Duncan, 35 N. Y. 187; Young v. Brush, 38 Barb.
294; Owen v. Peebles, 42 Ala. 338; Wistai'^s Appeal, 54 Pa.
St. 60; NewUmy. Bennett, 1 Brown Ch. 359; Littlehales v. Gas-
eoyne, 3 Brown Ch. 73; Mousley v. Carr, 4 Beav. 49; Mum"
ford V. Murray f 6 Johns. Ch. 1; Jacot v. Emmett, 11 Paig^
142; KelleU v. Eathbun, 4 Paige, 102; DePeyder v. aarhaon,
2 Wend. 77; Oamisa v. Gardiner, 1 Edw. Ch. 128; l^ar v.
Itnkfiam, 2 Barb. Ch. 211; Manning v. Manning, 1 Johns.
Ch. 527; Broim v. Bicketts, 4 Johns. Ch. 303; WiUiavMrn
V. Wiliiameon^ 6 Paige, 298; Dumcfmb v. I>WMO0fmb, 1 John&
160 In bs Biojlbr'8 Estate. TMarch T.. 1884
Ch. 608; 7 Am. Dec 604; Minu9e v. Oox, 6 JohMi CSi. 448;
9 Am. Dec. 313; Cogswell v. Cogstcell, 2 Edw. Cb. SSI; Gray
V. Tliompaon, 1 Johns. Ch. 82; Atfnstrong y. MtUer, 6 Ofaio^
118; Aston'a Estate, 6 Whart. 228; WonelTs Appeal, 23 Pi.
St. 44; Chava^s Appeal, 60 Pa. St. 189; Hess' Estate, 68 Pa.
St. 464; Peyton v. Smith, 2 Dev. & B. Eq. 326; Jameson y.
Mcfty, 2 Humph. 198; jDyotf* jEite/e, 2 WatU AS. 666; JTerr
y. Laird, 27 Miss. 644; Zomoo; y. Pendleton, 3 Call, 638;
Handly y. Snodgrass, 9 Leigh, 484; Cbrfer y. CuUing, 6 Munf.
223; TFood v. Gamett, 6 Leigh, 271; Griswold y. Chandler, 6
N. H. 497; Xurwi y. iwnd, 41 N. H.366; Tumeyy. WiOiams,
7 Yerg. 172; Wright v. TFf-i^rAi, 2 McCord Eq. 185; Knoudton
y. Bradley, 17 N. H. 468; 43 Am. Dec 609; McKim y. Mb-
bard, 142 Mass. 422; In re Myers, 131 N. Y. 409. To the
same effect are numerous authorities cited in 7 Am. & Eng.
Eiicy. of Law, 426, note 3.) This rule is subject to the
qualification that the trustee shall make no profit out of the
trust fund. But there is no proof that this executor made any
profit wliatever out of the trust fund, or that he ever used the
same to his own gain or advantage in any manner. And it
has been heretofore pointed oat that for this long series of
years, and in this country, the executor could not have loaned
this considerable sum of money^ and received any greater
amount of interest than he has accounted for. The principle
of computation and the manner of charging a trustee with
interest, where he has mingled the trust fund with his own, as
announced in the De Peyster case, runs all through the deci-
sions, in cases where there is no fraud or willful breach of trust,
the principle being to avoid charging interest as a penalty,
and to arrive at the exact amount of interest the trustee has
received or that he is presumed to have received. In 1 Perry
on Trusts, section 468, the principle is stated in this way: ''The
proper mode of taking the account of trustees is to treat all the
income of the trust received during the current year as anpro-
ductive; and to charge against the income of the current year
all the disbursements, including the compensation or commis-
sions of the trustee for the same year^ and to strike a balance,
npon which, as a general rule, interest is to be allowed, but in
such a way as not to compound iV' citing the following
14 Mont.] In bb Rickek's Estatb. 161
authorities in 8Ui>i)ort of the proposition: Boynton v. Dyer,
18 Pick. 1; FeUua v. Oawamy 4 Rich. Eq. 92; Jan^s v. Jfor-
raU, 2 Sim., N. S., 241; DePeysUr v. aarkam, 2 Wend. 77;
Vanderheyden v. Vandeiluyden^ 2 Paige, 288; 21 Am. Dec. 86;
Lv]ce7C9 Appeal, 47 Pa. St. 356; Reynolds v. »Fa/ifc«r, 29 Miss.
260; Roadi v. Jc/L, 40 Miss. 754; Onimp v. GerocJfe, 40 Miss.
766; Eowland v. jBefi<, 2 McCord Eq. 317; Jordan v. JJmw/,
2 Hill Eq. 146; Walker v. %nMm, 4 Desaus. Eq. 655; Poirefl
V. Powell, 10 Ala. 900; Sheppard v. i8tori«, 3 Munf. 29; Bur^
weU V. ^nrf«-«a7i, 3 Leigh, 348; Garrea v. Qzir, 3 Leigh, 407;
Campbell v. Williams, 3 T. B. Mon. 122; Jbnea v. H^arrf, 10
Yerg. 160; Elliott v. SparreU, 114 Mass. 404. See, also,
7 Am. & Eng. Ency. of Law, 429; GaUaghan v. HaU, \
Serg. &R. 241.
VL As to the land found by the court to have been pur-
chased by the executor in his own name with funds of the
estate, we contend that there is no testimony whatever to sup-
port, authorize, or justify the finding. It has not even a pre-
sumption in its favor. It has nothing more than a vague^
shadowy suspicion or conjecture upon which to rest. The
private property of an executor or trustee cannot be taken
away from him by vague susiucions or conjectures. Land
cannot be impressed with a trust upon lame, unwarranted, or
inconclusive presumptions. (1 Perry on Trusts, § 137.) In
PhUpot V. Penn, 91 Mo. 43, the court says: "It has been
repeatedly held by this court that the onus of establishing a
resulting trust rests upon him who seeks its enforcement, and
where it is sought to establish such a trust by parol evidence,
it must, to warrant a decree, be so clear, definite, and certain
as to leave no reasonable ground for doubt.'' The same cer-
tainty, your honors will observe, as is required to convict of
crime. To the same effect are the following authorities: Rails'
back V. Williamson, 88 111. 497; Sfiepard v. PraU, 32 Iowa
296; Childs V. GrisuH>ld,J9 Iowa, 362; StaUy. ancinnati, 16
Ohio St. 169; Parmlee v. Sloan, 37 Ind. 469; Outler v. TuUle
19 N. J. Eq. 560; Whiie v. Sheldon, 4 Nev. 280; Ndson v.
WorraU, 20 Iowa, 469; Oaming v. Robins, 39 N. J. Eq. 46-
Oarke v. qwuikenbos, 27 111. 260; BaJcer v. Vinvng, 30 W
128; 60 Am. Dec. 617; Carey v. CaUan, 6 B. Mon. 44; Hyden
Vol. Xnr.— 11
162 In bb Bickbb's Estate. [March T., 1894
V. Hyden, 6 Baxt 406; Harvey v, Pennypacker, 4 Del. Ch.
445; WiUs v. Harney, 69 Md. 684| Parker v. Snyder, 31 N. J.
Eq. 164; BrickeU v. Earley, 116 Pa. St. 473; Malin v. ifa«h,
1 Wend. 626; SneBing v. UUerback, 1 Bibb. 609; 4 Am. Deo.
661; Green v. Dieirioh, 114 III. 636; I^omow v. Standiford,
49 Md. 181; Johnson v. Richardson, 44 Ark. 365; JS^uw y.
Hunter, 9 III. 211. Even if it had been proved on the trial
by sach testimony as the law requires, that this land was partly
puid for with the trust fund, and partly with the funds of
Chessman, the legatees, would not then be entitled to the land
they claim. The most that the law would give to them or
the estate in such case would be a lien upon the land for the
moneys of the estate or trust fund used in its purchase or
interest thereon. (2 Perry on Trusts, § 842; Hedrick v. Tuck-
wilier, 20 W. Va. 489.)
y II. The court below held that an executor was not entitled
to any compensation for his services until there had been a
final settlement of his accounts. Under our statutes an execu-
tor or administrator, in ordinary cases, must settle the estate
and render his final account in one year from the date of his
appointment. In such cases it may be that no compensation
is earned until the final acQpunt is rendered. But in a case
where an executor is also trustee for the legatees, and is
required to hold and to invest trust funds for a long series of
years, on interest, and where no final account can be rendered
until such period has elapsed, a very different rule as to com-
pensation should be applied. In Baker v. Johnston, 39 N. J.
Eq. 493, it is held that executors are entitled to commissions
as executors, and also as trustees, when, their duties as execu-
tors having ended, they take the estate as trustees, and after-
wards act solely in that capacity. (See! to the same effect
Pitney v. Everson, 42 N. J. Eq. 361; Blake v. Blake, 30 Hun,
469.) Besides his commissions as executor he was entitled to
a reasonable compensation for bis services as trustee, though he
has made no charge for such services. It is no trifling matter
to have the care and responsibility of keeping a large sum of
money invested on interest for a long period of years, and the
authorities on the subject are to the effect that a trustee is
entitled to reasonable compensation for such services.
14 Mont.] In bb Rickbb's Estate 163
yill. The testimony shows that^ as to the claims against
certain parties, the executor compromised and settled with said
debtors to the estate and received considerably more on each
of said claims than the appraised value thereof but less than
the amount due thereon. Our statute provides (Probate Prac-
tice Act, § 232, p. 332) that an executor or administrator may
compound or compromise with a debtor who is unable to pay
his debts, with the approval of the probate court or judge.
The executor made the compromises above referred to, without
first having obtained the approbation of the probate court or
judge, and therefore, as we understand him, the petitioner con-
tends that the executor should be charged with the full amount
of principal and interest due on these compromised claims. It
would shock the universal sense of justice to charge the execu-
tor with the worthless or uncollectible claims belonging to a
testator at the time of his death. No court could be found
that would charge an executor with the principal or interest
due upon such claims, and it was entirely unnecessary for one
l^islative assembly to have enacted, as it did in section 260 of
the Probate Practice Act, that ^'no executor or administrator is
accountable for any debts due the decedent, if it appears that
they remain uncollected without his fault.'' (See Smith's
Probate Practice/ 228.) Independent of any statute, executors
and administrators have full authority to compromise claims,
and are not liable for any damage resulting to the estate except
for an injudicious use of the power. If they act with fidelity
and prudence their compromises are sustained, and they are
protected. {Bacon v. Q'andon, 15 Pick. 79; Nebon v. Q>m-
foeO, 11 Gratt. 724; Potter v. Oammings, 18 Me. 55; Boyd v.
Ogled>y, 23 Gratt 674; Alexander v. Kelso, 12 Heisk. 311;
WUks v. Slaughter, 49 Ark. 235; Berry v. Parkea, 3 Smedes
& M. 625; Oiadboum v. Chadboum, 9 Allen, 173; Chase v.
Bradley, 26 Me. 531; Wyman'a Appeal, 13 N. H. 18; Pusey
V. Oemson, 9 Serg. & R. 204; Woolfork v. Stdlivan, 23 Ala.
648; 58 Am. Dec. 305; Coffin v. CotUe~4 Pick. 454; Bean v.
Famam, 6 Pick. 269; Patients case, 1 Tuck. 56.) Our stat-
ute which authorizes executors and administrators to compro-
mise claims with the approbation of the probate court does not
take away the common-law right which existed prior to the
184 In be Rickee*s Estate. [March T., 1894
passage of the statute. (7 Am. & Eng. Ency. of Law, 286,
and cases cited.) The execntor had the right to compromise
without obtaining leave of court, and there is no liability
upon him for so doing if he shows that the compromises
were for the best interests of the estate. (See Sehouler on
Executors and Administrators, § 298, pp. 386, 387; Wood v.
Tmnid^, 74 N. Y. 38; Qeigers v. Kaigkr, 9 S. C. 401.)
B. P. Cbrpen^. and Alexander C. Botkiut for the Petitioner,
Eespondent.
I. The contention that when land is partly paid for from
the trust fund, and partly from the individual money of the
trustee, the beneficiaries cannot impress a trust upon the pro)>-
erty, but only a lien for the moneys of the estate used in tlie
purchase, cannot be supported when the amount of the trust
fund so employed is an aliquot part of the entire purchase
price. In this case the court finds that the executor used
$5,000 of the estate's funds in buying the tract of land from
Child and Young, which was just one-half of the entire sum
paid. Chancellor Kent says (4 Kent's Commentaries, 306):
'^If only part of the purchase money be paid by the tliird
party there will be a resulting trust in his favor j^ro tanto;
and the doctrine applies to a joint purchase.'' {Sayre v. Tovm-
sends, 15 Wend. 647; WItite v. CkitT>enter, 2 Paige, 238-41;
Mdden v. Jordan, 21 Cal. 100; Case v. Chdding, 38 Cal. 193.)
IL Appellants endeavor to make it appear that the time
from which interest is charged is premature. This rests upon
the proposition that a trustee ought to have a reasonable
time to find investments. It would be absurd to apply it to
a case like this, where the executor had sought and procured
an order authorizing him to keep the funds deposited in cer-
tain banks of the city where he resided. It is for his failure
to do this, and not for a failure to look up new opportunities
for investment, that this responsibility is imposed upon him.
III. It is contended that the executor should not be
charged with interest on money that he was required to keep
on hand to meet monthly payments. Without pressing other
considerations equally pertinent and forcible, it appears from
his own testimony that he had an arrangement with Mr. Hersh-
14 Mont.] In bb Bickbb's Estate. 165
field, whereby lie kept the estate funds on open account for such
purposes, and drew interest on the balances as thej changed
from day to day. Under this arrangement there was no reason
whatever why he should not have kept the entire trust fund
on deposit and drawing interest during the whole period
involved.
ly. We come, now, to consider the question whether inter-
est should be compounded in computing the amount with
which the executor is chargeable. As a matter of fact, the
appellant, in his reports returned to the probate court, has
charged himself with compound interest with semi«anuual
rests, whereas the directions of the court below to the referee,
which were respected in the computation, called for annual
rests only. The rule of equity which here controls is that
stated by the chancellor in Broton v. Riekda, 4 Johns. Ch.
303, 8 Am, Dec. 567: "It may be declared to be a principle
of universal law that a tutor, curator, or trustee shall not
make a profit of the trust money, and then retain the profit.^'
The facts in proof are that the appellant had the use of the
sums of money which are subjected to charges of interest, and
that during this time he was himself a borrower from the
Helena banks. How, then, shall the court see that "the
trustee shall not make a profit of the trust money, and then
retain the profit? '^ Clearly, by charging against him what-
ever he would have had to pay as interest to the banks if
he had not had the use of the estate's funds. The rates
are not disputed; indeed, the proof shows that the interest
charged by the bank was above the rates fixed by the court;
and it is a matter of common knowledge that bank loans are
rarely made for longer than six months, which fixes the inter-
vals of compounding.
y. On the question of the rate of interest chargeable against
a trustee we conceive the law to be well settled. When there
is simply a failure to invest he must account for what is com*
nionly called statutory interest, meaning the rate provided by
law in the absence of express contract; when there is any
circumstance of malversation, or \vhere he has mingled the
money of the estate with his own, and cannot, or will not,
account for the profits that belong to the oestim que trud the
166 In bb Rickbb's Estate. [March T., 1884
trustee must account for the highest current rate of interest,
with at least annual rests. (Perry on TrustSi § 471, and note;
Barney v. Saundera^ 16 How. 537; Hook v. Payne, 14 Wall.
252-57; Estate of Holbert, 39 Cal. 597; Raphael v. Boehm, 11
Ves. Jr. 92; Sdiieffelin v. Stewart, 1 Johns. Ch. 620; 7 Am.
Dec 507; Spavlding v. Wahefieid'e EstaJte, 53 Vt. 661; Farvoea
V. Steen, 46 Vt. 678; Jenniam v. Hapgood, 10 Pick. 77.)
YI. Paragraph VII of the appellant's brief is addressed
to the executor's right to commissions prior to the final settle-
ment of his accounts. We apprehend that this is no longer an
open question in Montana. {In re Dewar^s Estate, 10 Mont.
426 et seq.) But it is argued that the executor at an earlj
period of the administration suffered a metamorphosis into
trustee, and that in the latter capacity he is entitled to compen*
satiou. There is no claim that the appellant was made trustee
by the terms of the will, or that any dual character was created
by that instrument; on the contrary, it must be assumed that
his relations to the estate would terminate with his discharge
by the court as executor. The principle that controls is suffi-
ciently stated in the authority here cited. {Hall v. Hall, 78
N. Y. 535.)
VII. Where an executor mingles the funds of an estate
with his own, and thereafter enters into investments or em-
barks in speculations, it will be presumed that the trust funds
were used in such investments and speculations. This pre-
sumption is confirmed where his explanations of what he has
done with the ^trust moneys are vague, evasive, and unsatis-
factory; where he is shown to have been a borrower at the
time such investments were made, and by other circumstances
such as are here in proof. {Trofwp v. Rice, 56 Miss. 278;
Crowder y. Shackelford, Z5 Miss. 324; Foxy. WUcocks, 1 Binn.
194; 2 Am. Dec. 433; Lupton v. WhiU, 15 Ves. 441; Nixon
V. Nixon, 8 Dana, 5; Weir v. Weir, 3 R Mon. 645; 39 Am.
Dec. 487.) The burden of proof is on the trustee to show the
amount of his own funds invested in such speculations, or
otherwise the cesttdslque trust will take the whole. (1 Story's
Equity Jurisprudence, § 468; Perry on Trusts, § 128; Austin
V. Sprague Mfg. Co., 14 R. I. 471; Russell v. Jackson, 10
Hare, 204-14; Molxurren v. Brewer, 61 Me. 402; Seaman v.
14 Mont.] In bb Bickbb's Estatb. 167
Cook, 14 111. 501-^5; Cannon v. Cooper, 39 Misa. 784; 80
Am. Dec. 101.) The cardinal object of equity is to see that
the trustee never profits by malversation of the trust funds.
To insure this, the beneficiaries are permitted to make their
election as to whether they will take the actual profits or
interest in lieu thereof. (1 Story's Equity Jurisprudence, § 465;
Docker v. Somes, 2 Mylne & K. 655; Weir v. Weir, 3 B. Mon.
645; 39 Am. Dec. 487; Norri^ Appeal, 71 Pa. St. 106-13.)
VIII. Our statute permits the compromise of claims by
executors or administrators '^with the approbation of the pro-
bate court or judge.'' (§ 232.) There is no pretense that such
approbation was secured in this case, and in its absence it
devolved upon the executor to show that there had been no
remissness on his part, and that the compromise was for the
best interests of the estate. (SchuUz v. PtUver, 11 Wend. 366;
Loweon v. Copeland, 2 Brown Ch. 156; PoweU v. Evans, 6
Ves. 839; Caffrey v. Darby, 6 Ves. 488; Woerner's American
Law of Administration, and authorities cited in note 4.)
Harwood, J. — ^This proceeding was instituted in the probate
department of the district court of Lewis and Clarke county,
by Martha P. Bicker, petitioner, on behalf of Jesse C. Bicker,
a minor heir and legatee of Joshua C. Bicker, deceased, to
require an account, under the provisions of the Probate Prac-
tice Act, sections 254-70, from W. A. Chessman, executor of
said estate, touching his administration, and disbursement of
the property thereof.
It appears from the record that Joshua C. Bicker died on
the 1st of June, 1875, a resident of Lewis and Clarke county,
Montana, leaving a widow, Martha P., and four minor children;
and an estate, consisting of money deposited in certain banks,
to the amount of about $18,000, which, together with other
assets, consisting of certain personal effects, and demands owing
the estate, and an undivided partnership interest with M. A,
Price in two ranches and certain cattle, etc, altogether
amounted to the appraised value of $34,467.55, excluding the
homestead. The management and disposition of this estate
was directed by the last will and testament of decedent^ whereof
William A. Chessman was appointed executor.
168 In KB Rigkbr's Estate. [March T., 1894
Bj said will the testator devised to his wife, Martha P.,
the homestead and household furniture situate in the city of
Helena, Montana, valued at $3,236; and directed the executor
to pay out of the funds of said estate, to said widow, for the
8ui>|)ort of herself, and the support and education of said minor
children, the sum of $200 monthly, for the {>eriod of five years,
and thereafter, the sum of $260, monthly; providing, liowever,
that as each of said minor children reached the age of majority,
and received a share of said estate, respectively, as provided-
in the will, then such monthly allowance should be diminished
to the extent of such child's proportion thereof.
The will further directed the executor, at such time, and for
such prices, as he deemed for the best interest of the estate, to
sell and convert into money all the effects of said estate; and
that all such funds not otherwise required to be paid out, as
provided by the will, be, as soon as practicable, invested in
United Stales government securities, and that the interest
accruing on such securities, save such part thereof as might be
necessary to carry out the provisions of the will, be, from time
to time, invested in like manner.
It appears from the first annual report by the executor,
returned to the probate court, at the close of the first year
of said administration, that the available funds of said estate,
then on hand, after paying said monthly allowance for the
widow and minor children, other current expenses, and cer-
tain debts of the estate and of Said partnership estate, was
$15,174.26. And thereafter, from year to year, the funds of
said estate, with additional receipts from sales of property,
collections of debts due-the estate, and accumulations by way
of interest on the funds on hand, ranged from the sum last
stated upward to $19^818.43, which was the largest sum on
hand at the close of any fiscal year during the administrationi
after meeting demands thereon by way of annuities, debts, and
expenses of the estate, and of tlie partnership estate aforesaid,
as shown by the annual reports returned and approved by the
court. When the partnership affairs were closed out in 1883^
and the estate received therefrom $4,360, tlie funds of the
estate reached said sum of $19,818.43, as shown by the eighth
annual report, returned that year, and approved by the probate
14 Mont] In bb Rickbr's Estate. 169
court The next annual report, returned in 1884, shows a
balance of $18,426 on hand. Out of this sum, in addition to
other demands, there was paid to the eldest child, March 5,
1886, the sum of $4,634, on her arriving at the age of major-
ity. The annual report for the year 1886, after such payment,
shows a balance of $11,980. Thereafter, the annual reports
show that the funds of said estate declined in amount, from
year to year, by disbursement of annuities, current expenses,
and the payment of two additional legacies to the second and
third of said minor children, respectively, as they arrived at
adult age; until 1891, when, as the report for that year shows,
the funds of said estate were practically exhausted.
The funds of said estate were not invested in government
securities, as directed by the testator in the will. The circum-
stances which are claimed to have justified the court in order-
ing a departure from the provision of the will in that respect,
as disclosed by the record, appear to be as follows: That the
investment of the funds in United States government securities
at the time in question would have required the payment of
about $3,000 premium; that said premium would, of course,
have reduced the funds of the estate by that amount; and that
with such reduction of the fund, the annual income from invest*
ment of the remainder in government securities would, accord-
ing to the testimony, Iiave been at the rate of five per cent
interest during the first part of the administration, which rate
was reduced to four per cent during the latter part of that
period; but considering the sacrifice of premium, the rate of
interest derived from said investment would have been, on the
whole, about three and one-half per cent; that the income
thus obtainable, as was plain, would fall far short of sufficient
to meet the required annuities and other demands upon the
funds of said estate; that from these conditions, apparent at the
bq^ning of the administration, as well as at all times there-
after, it was manifest that to carry out the provisions of the
will, requiring such funds to be placed in government securi-
ties, and only the interest derived therefrom used, as was evi-
dently contemplated by the testator, and at the same time carry
out the other provisions of the will as to the maintenance of
the fiunily, was impossible; because^ the amount required for
J
170 In rb Rickbr's Estatb. [March T., 1894
tbe maintenauce of the family alone was |2,400 per year, in
monthly installments, for the first five years, and thereafter
|3,000 per year, in monthly installments, for four and one-half
years, until tlie eldest child became of age, which would require,
during the first nine and one-half years of the administration,
the payment of |25,600 for maintenance of the widow and
cliildren; and if this had been the only demand on the funds
of said estate, it was manifestly im{M)6sible to put the estate
funds, available at any time, into government securities, and
leave the same in such investment, and make those payments;
that if the funds of the estate had been invested in govern-
ment securities it would have been necessary for the executor
to sell and convert into money, from time to time, sufficient
thereof to raise funds, in addition to the income, to pay the
annuities and other demands on said estate. That therefore
it appeared impossible for the executor, or any person charged
with the execution of said will, to carry out the provisions
tliereof, and that to attempt such procedure would have been
inexpedient, in view of the necessities of the family.
In view of these conditions, as appears from the record, soon
after the return of the appraisement and inventory, on July
21, 1875, an application was presented to the probate court
having jurisdiction of said estate, setting forth that the funds
thereof, as shown by the inventory and appraisement, amounting
to about 118,000, were on deposit in the First National Bank,
People's National Bank, and L. H. Hershfield & Brothers'
Bunk, of the city of Helena, respectively, where the decedent
had deposited the same in his lifetime, drawing interest at the
rate of twelve per cent per annum; and asking the court to
make an order ^'directing said money to remain in said banks,
respectively, on interest, during the term of the administration
of said estate, or at the option of said executor, during said
term/' Whereupon, the court, after consideration of said
application, made an order, 'Hhat the request of said peti-
tioner be granted; that the deposits on time of such moneys of
said estate, drawing interest for the estate, in such banks, be^
and is, hereby approved.''
Thereafter, the administration of the executor proceeded from
year to year during tlie course of sixteen years, with annual
14 Mont.1 In bb Rickbb's Estatb. 171
aooounts returned into court, verified by the affidavit of the
executor, showing in detail receipts and disbursements in
respect to said estate. Such accounts appear to have been con-
sidered and approved by the probate court, as provided in the
Probate Practice Act, sections 260-70. But in this proceeding
those accounts were all opened to any question which the peli-
tiuuer desired to raise against them. (Probate Practice Act,
§ 269.) Under this privilege a large number of specifications
were formulated and filed in this proceeding, contesting the cor*
rectness and good faith of said accounts. The evidence shows,
however, that there was no attempt to sustain these charges
by proof, with but one exception, and that was in respect
to an item of |400, credited in one of the executor's annual
accounts, for money claimed to have been paid out, on behalf
of the estate, to a person employed at the partnership ranch of
testator and said M. A. Price, as housekeeper. In this single
attack upon the integrity of the executor's accounts the court
below found against the accusation, and the evidence, as reported
in the record, appears to be overwhelmingly in favor of the
executor. So that, as a result of opening to the assaults of })eti-
tioner the sixteen annual aooounts returned from time to time
by the executor, and approved by the probate court, such
accounts appear to stand unimpeached in every item. These
accounts are in the record before us, and, after approval by the
court, are by statute made evidence of their showing, subject,
however, to be impeached on being opened to ooutest. (Pro-
bate Practice Act, § 269.) But after passing through such
contest, without any disparagement, such accountings must^
with more force, be considered as evidence of the showing
therein made. Therefore, the result of the management of
said estate by the executor herein set down is taken from
said accounts; wherefrom it appears that during said period
the executor accounted for $66,369.98, derived from said estate,
including accumulations by way of interest on the funds on
band from time to time. Out of this, it is claimed by the
executor, and not disputed, he paid to the widow and minor
children, and to the three children first arriving at the age of
majority, annuities and legacies amounting to |46,288.61; and
tliatthe liabilities of the estate, as shown by the annual reports
172 In lUB Rickbb'b Estatb. TMarch T., 1894
and aooountfl approved by the probate court, ooDsamed the
rest of the funds of said estate.
The iDcrease of said estate during administration, shown in
this result, was largely by way of interest on the funds on hand
from year to year. From this source the increase appears to
have amounted to between $14,000 and |1 6,000. The interest
is returned in gross sums in the annual accounts, but the rate,
according to 'the testimony of a witness called as an expert
accountant to investigate said annual accounts, amounts to
7 9-10 per cent per annum compound, upon the funds on
hand from year to year, on the average, for the whole period
of administration. These results are not controverted by the
Iietitiouer, except as to the one item of |400, above mentioned,
wherein the executor's account was sustained on the proof.
Notwithstanding these results, the court found and adjudged,
iu this proceeding, that, in addition to the amount so accounted
for, the executor ought, equitably, to account to the heirs of
said estate for the further sum of $51,000, and upwards
($51,684.73), on the 1st of June, 1891; and also for an
undivided one-half interest in a certain tract of land in the
city of Helena, the value of which is not 8|)ecifically shown,
hut from the testimony in the record appears to be of large
value. From this judgment, and the order of the court over-
ruling the executor's motion for new trial, this appeal is prose-
cuted.
In the review of the case here it is not proposed to enter
ujx>n an inquiry as to the legality of said order of the probate
court of July 25, 1876, authorizing the executor to keep said
funds in banks, at interest, instead of converting the same into
government securities; nor as to what additional responsibility
for the safety of such funds not so invested the executor and
his bondsmen may have assumed, by reason of such departure
from the will; because neither party has drawn into oonsider-
ation any such questions, as affecting the determination of this
proceeding. Said order of the court, allowing such departure
from the letter of the will, is only pertinent to this proceeding
as part of the history of said administration. The executor
would not be heard to question the legality of that order, or
allowed now to depart therefrom, to the detriment of said
14 Mont.] In bb Bickkb's Estatjb. 173
estate, nor has he sought any such position. And the peti«
tioner, for obvious reasons, does not desire an accounting to
proceed on the basis of the result which would have been
obtained by investing in government securities, instead of
accepting and retaining, along with the other heirs and lega*
tees, the larger rate of interest acquired and paid over by the
course pursued, ^or is it pretended that any loss whatever
hapi ened to the principal fund by reason of departure from
the wilJ. We observe, however, the court below took occasion
to animadvert upon that proceeding, in strong terms of con*
demnation of the executor, for procuring such order from the
court, and appears to regard it in some measure as ground for
finding that the executor ought to be removed. Thus the
action of the executor in that regard has been brought in
question as bearing upon his good faith in making application
for such order. Whatever additional responsibility for the
safety of said fund may have been assumed by the executor in
that matter, and whatever questions as to the legality of such
departure from the direction of the will in that particular
might be raised, if pertinent, we think the circumstances under
which that course was adopted — ^the fact that it was decided
upon to avoid foreseen sacrifice of thousands of dollars out of
the limited funds of said estate, and according to undisputed
testimony, after consultation and approval by the widow, the
only l^atee then of mature age, and upon advice of able coun-
sel, affirming the legality thereof, and sanctioned by the order
of the probate court, with the final return of interest to the
beneficiaries in double the amount which could have been
obtained from an investment, as directed by the will — repels
all attempted condemnation of the motive which prompted the
executor to that course.
We therefore pass to the questions demanding determination
in this case, which have been found entirely sufficient for our
most patient and painstaking consideration.
In proceeding with the consideration of these questions, and
the law and authorities applicable, it must be borne in mind
that in the case at bar the trustee has admittedly, at all times
since he became executor, in respect to this estate, punctually,
and as required by the conditions of the will, accounted for all
174 In bb Rickkr's Estate. [March T., 1804
of the princrpal fund of the estate which came into his hands,
together with interest on such funds from year to year, as the
same remained in his keeping, at rates which, according to the
testimony, equaled, on the whole, 7 9-10 per cent compound.
These results are admitted. The trial court, in treating the
])ropositions inyolved in this case, '^granted, that as a result
more profit and gain inured to the widow and children than
the testator contemplated when he made the will." So coun-
sel for petitioner, in treating this appeal, in their brief, say:
''As a matter of fact, the appellant, in his reports returned to
the probate court, has charged himself with compound interest,
with semi-annual rests, whereas, the directions of the court
below to the referee, which were respected in the computation,
called for annual rests only.''
It is tlierefore apparent that there is no contention that this
executor has failed to account for all the property and funds
committed to his chaise, together with interest on the funds,
at the rates mentioned. But it is contended that he should be
required to pay a higher rate of interest than he has returned
on such part of the estate funds as were, from time to time, in
his hands, not deposited in bank at interest, as provided by
said order of court. That demand is the only basis of claim
made against the executor in this proceeding, and thereon
rests said judgment for the recovery of money, as well as the
decree impressing a trust in favor of the heirs in certain lands
of the executor, as aforesaid.
1. With this premise, it is first to be inquired whether the
law warrants the court in declaring a trust interest in lands of
the executor in favor of the heirs, upon the proposition that
at a certain time he paid, in the purchase thereof^ moneys in
his hands belonging to the estate.
It is found in this case that at a certain time in 1882 the
executor, in the course of his private transactions, bargained
to purchase from Child <& Young a tract of land in the city of
Helena, Montana, for the agreed price of |10,000, paying at
the time of the bargain the sum of |2,000, and obliging him-
self in the transaction to pay, at a certain date the following year,
the balance of |8,000, whereupon a deed was to be delivered
by the vendors, conveying said land to the purchaser; that in
14 Mont.] In bb Bicker's Estate. 176
the final consummation of suck purchase in 1883 the executor
made use of $5^000 of said estate funds. This is disputed^ and
the finding is excepted to as not sustained by proof. But we
pass over this dispute, and consider the fact as found, together
with the other facts existing in the case. It also appears,
without dispute, as above shown, that the executor has long
since, and without any delinquency, accounted, as fast as the
terras of the will directed, to the legatees for said |5,000, which
is claimed to have been paid in the purchase of said land, with
interest thereon at the rate of 7 9-10 per cent compound.
Thus, the heirs have long since received and used said sum,
with the interest returned thereon. And so granting that said
sum of money has been traced into the purchase of said land,
it has also been traced out of, and beyond, said land into the
hands of the l^atees in the execution of the trust. Still it is
insisted that the heirs of said estate are entitled to a half
interest in said land.
This involves a peculiar situation. It plainly requires the
trustee to carry an interest in the land, for the benefit of the
heirs, for years after they have admittedly been paid, not only
all the principal of the trust fund, which is claimed to have
been paid into the purchase of said land, but interest thereon.
This would seem to be allowing one to reap where he had not
sown, and lefl the seed to the harvest. At least it would be
allowing the ceduia que trust to have and use the trust funds,
with interest thereon at the rate paid, for his maintenance, and
at the same time require the trustee to carry an estate in the
land in question, for the benefit of the heir, without any of
his funds remaining in said land.
It has already been pointed out that the only ground of
demand against the executor is, that he ought to pay additional
interest on such of the funds of the estate as were not kept
deposited, fat interest, in the banks, as will be more fully
explained hereafter. By computing compound interest on
such funds, at a higherrate] than the (executor^returned, a
claim arises against him for a certain sum over and above the
amount he has accounted for.
Now, counsel for petitioner insist, that when this sum
arising from such compound interest equals the amount paid
17d In rb Bicker's Estate. [March T., 1894
in the purchase of a certain tract of land^ by appellant^ dar-
ing said administration, the heir has a right to take the land,
at the purchase price, in lieu of an equal amount of the claim
for interest against the executor. This is the position taken by
counsel for i)etit]oner, in responding to the appeal by the exec-
utor; and also in the appeal by petitioner (which is con-
solidated with this), wherein petitioner's counsel urge their
exception to the ruling of the court in refusing to decree a
trust in favor of the heirs, as to the whole tract of land above
mentioned; and refusing also to declare a like trust interest, in
favor of the heirs, in certain other tracts of land held by the
executor. But the court impressed a trust upon lands of the
executor only in the one case above mentioned, where it was
found that in 1883 the executor had used, in the purchase of
said piece of land, estate funds equal to one-half the purchase
price; but which sum the executor had afterwards accounted
for, with interest as aforeifaid, without delinquency, in compli-
ance with the terms of the will. He must, therefore, not only
have accounted for said $6,000, which is claimed to have been
paid in the purchase of said tract of land, but for a large
amount of interest thereon, as it is not disputed that he returned
7 9-10 per cent annually, until such funds were entirely (mid
over to the heirs.
To impress upon lands of the trustee a trust in favor of the
beneficiary, under these circumstances, would be allowing him,
not only the advantage of compound interest, at rates deter-
mined on by the court, but would permit him to collect such
interest, by selecting lands out of the trustee's estate, purchase<l
during the continuance of the trust, at the purchase price paid
therefor years before. It would not only give the heirs the
advantage of compounding interest against the trustee, for
having temporarily used trust funds, in order to draw away
from him the profit of such use, but would also give them the
further advantage of increasing that exaction, by whatever
rate the property so selected might vouchsafe, whether it be
thirty, sixty, an hundred, or a thousand fold.
Counsel for the petitioner undertake to sustain the decree of
the court declaring said trust in the lands of the executor,
and their contention that the court ought to have gone fortheri
14 Mont.] In rk Eickbb's Estate. 177
and decreed to the heirs additional trust interests in the lands
of the executor, by invoking the doctrine of equity, that tlie
trustee shall not be permitted to make any profit by the use of
trust funds. While this is a salutary rule of equity, and must
be upheld, it does not warrant the court in transferring to the
heirs lands of the executor, or interests therein, under the facts
existing in the case at bar. We think this is abundantly
shown from the foregoing examination. But that doctrine
has been asserted with such confidence as sufficient to support
the decree of the court declaring the trust, we will briefly
examine the question from that particular point of view.
The question then is, if a trustee use trust funds, to the
extent of half the purchase price of a tract of land, but after-
wards, in the execution of the trust, accounts for the fund so
used, with compound interest at the rate of 7 9-10 per cent,
has the trustee profited by this transaction to the extent of half
the value of such tract of laud?
Suppose a man purchases a tract of land at the price of
$10,000, and, not having funds at hand to pay the whole price
at the time stipulated, he calls upon another having money on
hand, who supplies the purchaser with |5,000, and the trans-
action thus stands for a time, until such |6,000 is called
for, when the purchaser promptly returns the same, with
compound interest at the rate of 7 9-10 per cent per an-
num. Now, suppose some years after such payment, the
party giving such accommodation, pointing to said tract of
land, then of the value of $50,000, and, relating the ciroum-
stauces just narrated, insists that such purchaser is beholden to
him to tlie extent of half said tract of land, at its present
value, together with half of the issues and profits from said
land, since its purchase — in other words, that the purchaser
had actually profited by such accommodation, to the extent of
one-half the value of said land, and half the issues and profits
thereof since purchase — ^although the purchaser had long since
repaid the loan with interest. This would, we think, strike
practical men as an extraordinary proposition. But we have
drawn into this illustration material &cts which harmonize
with those existing in the case at bar, except that in the illus-
tration it was a voluntary accommodation and in the present
Vol. ZIV.— 12
178 In bb Rickbr's Estatb. TMarch T., 1894
caae trust fands were used, but we are simply inquiring now
as to the measure of profit flowing from one to the other bj
^uch use of funds.
Then, if the profits of such accommodation were to be taken
away from the purchaser, and transferred to the other, apply*
ing the theory proceeded upon in this case, it would require the
transfer of a half interest in the land, and half the issmes and
profits since the purchase, le8s|5,000, dropped from the account
of issues and profits, to offset the $5,000 which the pur-
chaser had returned to the lender, making no account, however,
of the interest which the purchaser paid for the use of said
loan. And, on this theory of accounting for profits, the one
whose |6,000 was thus temporarily used would find that he
had first received back his $5,000, on demand, with compound
interest; and thereafter, although the purchaser had carried
the investment in the land as his own burden alone, until it is
of great value, half of the land, worth 126,000, and also half
of the issues and profits, less |6,000, had been handed over,
merely to take away the alleged profit of the temporary use of
said $5,000.
The only difference between the illustration and the account-
ing pursued in the case at bar is, that in the illustration it was
a voluntary accommodation; and also in the account with
appellant, the |5,000, dropped to ofllset a half interest in the
land, accrued by way of comi)ound interest, computed at
higher rates thau the executor had returned prior to the date
of the purchase of said Child & Young tract of land. This
does not materially change the application of the illustration.
But aside from the other untenable conditions already
observed, the fact just mentioned, that the money upon which
this trust is proposed to be declared is not, in reality, for part of
the trust money found in said land from the time of purchase,
but is a demand for interest accruing on moneys which were
never even in said land would seem, in view of the authorities,
to be 8u£Scient to defeat all claim to a resulting or constructive
trust in favor of the heirs in the present case. In order to sus-
tain such a trust, on the ground that the land was purchased
with trust funds, which were otherwise to be accounted for,
the trust interest in the land must be founded on trust money
14 Mont.] In bb Bickbb's Estatb. 179
paid in the purchase thereof, and other demanda cannot be off-
set for an interest in the land. (Duck v. Fard, 138 TT. S. 687|
and cases cited; MvUet v. Buyck, 12 Mont. 364.) There is
some question made in the authorities whether a trust ought
to be declared in such a case where only a moiety of the pur-
chase price was paid |by trust funds or whether a lien only
should be fastened upon the land to secure reimbursement of
the trust fund. Mr. Story seems to approve the latter course,
as the more equitable and reasonable procedure. (2 Story's
Equity Jurisprudence, §§ 1211, 1277^. See also Perry on
Trusts, § 128; Munro v. OoUins, 96 Mo. 33.) If it appeared
in this instance that the trnst money had carried the burden of
half the investment in said land from the time of purchase
until the trust was declared it might then be necessary to
decide between the distinctions just mentioned. But such is
not the case here. The claim or money upon which the trust
in the land is declared in favor of the heirs in this case arises
for compound interest at a higher rate tlian the trustee^returneil.
And when the date of the purchase from Child & Young is
reached, in casting the interest account, $6,000 of the claim
Uius accruing for interest prior to that date is dropped to off-
set the amount constituting half the purchase price.
On the other hand, if it is proposed to claim an interest in
said land for interest on the fund which was put into the land
the difiBculties of the problem are still further augmented*
By that theory compound interest would be required from the
trustee /or the use of the money put into the land, and the cestui
would be allowed on this very demand for compound interest
(which is supposed to constitute the profit derived from the
use of the trust money) to go back and take the land also,
with its issues and profits from the time of purchase in pay-
ment of the interest. This would be recompensing the cestui
for the use of his trust money: 1. By way of compound inter-
est; and 2. By way of transferring to him the land, and the
rents, issues, and profitsof the land, besides compound interest
Counsel for respondent urge, to support the judgment, that
*Hhe beneficiaries are permitted to make their election as to
whether they will take the actual profits, or interest in lieu
180 Is{ BB Rickbk's Estate. [March T., 1894
thereof/' It plainly appears that the court below allowed
them to electa and take both ways.
We haye no doubt that with a closer investigation of these
conditions, and more mature consideration of the authorities,
the learned judge of the trial court would have denied the
claims put forth that a resulting trust could arise in favor of
the heirs, under the conditions shown in this case. For it can-
not be sustained by the application of appropriate principles
of equity, or by reason, or precedent
2. As to the executor's commission: And herein the question
to be determined is, whether or not an executor or adminis-
trator, where the conditions require the continuance of the
administration over a period of years, can lawfully be allowed,
at the close of each year, on the annual account, the commis-
sion provided by statute for the executor or administrator, on
moneys of the estate actually dbbursed during the preceding
year, by way of compensation for the care and management of
the estate.
That the executor in this case, in rendering his annual
account, at the close of each year, charged the estate with the
commission allowed by law on funds of the estate actually
disbursed during the preceding year is not disputed. And
this was approved, firom time to time, by the probate court
In the present accounting the court below caused these commis-
sions to be taken away from the executor; and not only so, but
required him to pay interest on the amount of commission from
the date of each allowance. The interest amounts to consider-
able more than all the commissions, and altogether, through
that ruling, the executor is adjudged indebted to the estate in
the Eum of 16,806.86. To support the ruling of the court
below, the case of Estate of Dewar, 10 Mont. 426, is cited.
That case is far from supporting the ruling here under con-
sideration. It seems remarkable that the court below, having
before it such a clear and painstaking elucidation of the sub-
ject of commissions, and the construction of the statute provid-
ing therefor, as found in that case should have so shaped a
ruling, as we find it in the case at bar, in this particular. In
this case the executor, at the close of the year, charged com-
mission for disbursements of the past year. He was thus
14 Mont.] In bb Bigkbb's Estats. 181
•
<)^^u]g for Mrvioes passed and finally oompleted. In the
Dewar case it is said: ''It is the law, that appellant's claim for
fees being unsettled, nnallowed, and inchoate, and the creature
of the statute, it fell with the law creating it/' Here, in the
case at bar, the commissions taken away from the executor
were $ettied, allowed^ and approved by the court, for past
services. Whereas, in the Dewar case, the administrator sought
to*charge commissions at the commencement, under the law as
then existing, for all the period of the administration, ignoring
mil changes in the law, by act of the legislature, during said
period. In the Dewar case the court further observed: '' Appel-
ant does not separate his services as to these two. periods, and
claim compensation upon services rendered in the three and a
half months' period under the old law, and upon those ren-
dered in the nineteen months' period under the amendment.
If he did so, and claimed a higher percentage upon services
fully performed and passed during the three and a half months'
period, the argument of vested right would address itself to us
with some force. {People v. Pyper^ 6 Utah, 160.)"
It appears that in the course of the executor's administration,
in the present case, the legislature reduced the rate of com-
missions, and the executor's commission was conformed to the
change, as shown by indorsement on the fourth annual report
of the executor by Judge Hedges. Thereby the learned judge
applied the construction of the law as approved several years
later in the case of Dewar^e EdaU, 10 Mont 426. The rul-
ing of the district court in this particular cannot be sustained.
3. What rate of interest should be required from the exec-
utor on funds to the credit of the estate not deposited in bank
at interest, in view of the facts involved in this case? and
further, as to the question of compounding interest in account-
ing with trustees.
As we proceed in the consideration of these questions we
shall also digress su£BcientIy to odnsider an exception, on behalf
of petitioner, to the ruling of the court in refusing to charge
the executor the full amount of a certain debt, and interest
owing said estate, where the executor had accepted, by way of
compromise, and reported to the court, a less amount in settle-
ment,.
182 In be Kicker's Estate. [March T., 1894
It appears that of the funds of said estate on hand at the
death of the testator^ some $6,000 was on deposit in the Peo-
ple's National Bank, then a linking institution in the city of
Helena; that in 1878 said deposit Amounted to 16,600; that
said bank became insolvent, and went into the hands of a
receiver about July or August of that year, and, on winding
up its afiairs, claimants against said bank received only 66
per cent of their demands; that about February or March
prior to said failure the executor, having oome into possession
of information concerning said bank, which led him to doubt
the safety of the estate funds therein, sought to draw such
funds out, but the officers in charge of said bank refused to
cash the certificate of deposit, claiming that it was a time de-
posit, and the sum was not demandable until maturity of the
certificate at a later date; that the executor, however, insisted
on drawing out such funds, and being at the time personally
indebted to said bank for loans obtained therefrom in the sum
of about |6,600, for which the bank held his individual note,
the executor, in order to get the funds of the estate out of said
bank, for the reason aforesaid, offset said certificate of deposit
for the credit of the amount thereof on his note of individual
indebtedness to said bank, and assumed the indebtedness of
said bank to the estate for the amount of said certificate
of deposit, namely, $6,600. This transaction substituted the
executor as debtor to said estate in the sum of |6,600, in place
of his indebtedness to said bank, for money theretofore bor-
rowed and used in hb affairs.
From this time on, during said administration, it appears
there were moneys to the credit of said estate not deposited at
interest in bank, as provided by the order of court, but inter-
est was returned thereon, as above shown. The executor testi-
fied that he returned interest every year on all moneys to the
credit of the estate, not deposited in bank at interest, at rates
as high as the banks paid on deposits, and at no time less than
8 per cent, even after the banks reduced the rate below 8
per cent. This testimony is not inconsistent with the other
facts shown; for, from the testimony of the bankers called
in the hearing, it appears that the rate of interest paid by the
banks on time deposits was reduced below 8 per cent about
14 Mout.] In be Ricksb'b Estate. 183
the year 1883^ and so continued thenceforwaid. This may
aoooaut for the fact that on the whole the interest returned
on the estate fuuds falls a fraction below 8 per cent. The
rate of interest paid by the banks during said administration
appears to have varied from 12 per cent on a descending
scale to 6 })er cent The rate of 12 per cent prevailed for
only a brief period after said estate came into the hands of
the executor, when it was reduced to 10 per cent, which rate
was allowed until about the year 1880, when 8 per cent was
fixed upon, and prevailed until 1883; in 1883 and 1884 seven
per cent was allowed, and thereafter 6 per cent.
In addition to the substitution of the executor as debtor to
the estate in place of the People's National Bank for said
16,500, he charged himself with |1,600, in favor of the estate,
under the following circumstances: It appears a debt was owing
the estate in the sum of |1,960, by Guthrie & Norris, bearing
interest at 2 per cent per month, and another debt owing by
the same Guthrie, in the sum of $3,000, bearing interest at
1 1-8 per cent per month, through transactions had between
the decedent and said debtors; that after the estate came
into the charge of the executor, said debtors were unable
to make payment, and their property affairs were not in such
condition that payment could be enforced. The executor says
in his testimony, that, under the circumstances^ he thought it
best to '' nurse the matter along,'' and try to get payments
from time to time, which it appears he did, and succeeded, in
the course of time, in getting payments of principal and inter-
est, altogether amounting to $6,225.98 on said $3,000 note;
and payments of principal and interest on the $1,950 note,
amounting to $3,137.12. It appears the debtors, for a time,
conducted a butcher business, and considerable of said collec-
tions was obtained by the executor taking supplies from them
for his household, and also for Mrs. Ricker and her familyi
and crediting the amount due for such supplies on said notes.
But as the time approached when the eldest child arrived at
the age of majority, and required her distributive share of the
estate, as provided in the will, there was more than $1,600 of
principal and interest together due on said debts; and in the
time Norris, as the evidence showsy had fiiiled altogether
184 In be Bicker's Estate. [March T., 1894
financiallj. This balance the executor agreed to oompromiae
with Guthrie — the only one of the debtors from whom there
was anj prospect of obtaining pay ment— at $1^600, if he would
then raise and pay that amount, so that the executor could
ascertain what amount of such collection could be counted on
for such distribution. Guthrie testified in this hearing that
he endeavored to raise said sum agreed upon as a compromise
of said debt, but could not; that he then arranged with tiie
executor to assume said sum as paid, and credit the estate there-
withy promising to pay said sum shortly thereafter; that the
executor made such credit accordingly, and thereby put to the
credit of said estate |1,600 which he had not actually collected,
and of which, according to the evidence, the executor never
received more than (700 from said debtors. Yet the executor
accounted for said |1,600, as collected, with interest thereon,
along with the other funds, as heretofore shown.
The petitioner, in his appeal, insists, notwithstanding these
facts, that the executor should be charged with the amount he
rebated from said claim by way of compromise. This demand
is based upon the showing from the public records of Lewis
and Clarke county, tliat in March, 1880, there was conveyed
to said Guthrie and John H. Ming, jointly, for a consideration
of |2,400, stated in the deed, '^ the south half of the south half
of the northwest quarter of . section 29, township 10 north,
range 3 west, less four acres'' ; that the title to said property
so remained until April, 1883, when, it appears from the record,
Guthrie executed a mortgage of his interest to said Ming, to
secure the sum of |6,000, and that in December, 1883, as
shown by such record, Guthrie divested himself of the I^al
title to one-half interest in said land by absolute conveyance,
for a stated consideration of |5,500.
From this showing of the record the petitioner contends
that it appears said claim could have been enforced in full
from Guthrie, by seizure of said land, and, therefore, the
executor should be charged the full amount of said claim and
interest for failing to make such seizure.
" The executor testifies that during all the time said indebted-
ness of Guthrie & Norris was owing to the estate said debtors
were insolventp according to the information gained by the
14 Mont] In ks Bicker's Estate. 186
executor, on diligent inqairy; that he did not bring snit against
theniy for the reason that he thought it more prudent to pro-
ceed as aforesaid in trying to collect said debts; that, in his
view, to attempt to enforce payment by suit might have driven
the debtors into such a condition that they could pay nothing,
while by the course the executor pursued he was obtaining some
payments. The executor also answered in his testimony that
he could not say positively whether he searched the records to
find whether the debtors had real estate, or interests therein,
subject to attachment
The testimony of Mr. Hershfield, a banker, is also to the
effect that during all the time in question claims against said
debtors were not considered good; that their paper was not
n^otiable, and they were not rq;arded as financially respon-
sible.
We think the court, under the circumstances shown, justly
refused to charge the executor any more than he had returned,
on account of said demands against Guthrie & Norris. The
mere fact that the legal title to a piece of land comes into the
name of an individual is not conclusive evidence that such
property is subject to execution against such individuaH
{Vaughn v. SchmalsUy 10 Mont. 186.) Nor is the record of
such transaction, in relation to a piece of real estate, evidence
that the amount set down in the conveyances represents the
value thereoC Such proof alone, without showing the real
value of the land, scarcely rises to any showing inconsistent
with the testimony of the other witnesses, to the effect that said
debts were not enforceable because of the insolvency of the
debtors. Guthrie says, in his testimony, that he does not
think a judgment could have been enforced against him, and
he appears to have been the most responsible, as well as the
most active, of the two debtors in trying to pay said debts.
It is our opinion that the court below not only was justified
in refusing to charge the executor with any more than he had
returned on account of said claims against Guthrie & Norris,
but the court should have also refused to require the executor
to pay further interest on said $1,500, inasmuch as it was
clearly shown that in giving credit therefor, before the actual
collection of that amount, the executor involved himself in a
186 In KB Bicker's Estatb. [March T., 1894
persoDal loss of $800, besides having returned interest on said
$1,600, from the time it was so credited to the estate, as above
shown.
Regarding the rate of interest which ought to be imposed on
the executor, the court below so ordered the accounting, that
he should be required to pay compound interest on all funds to
the credit of the estate, not deposited at interest in bank, at the
rates of 18, 16, and 12 per cent per annum oumpound, during
stated periods of the administration. The sum so accruing by
those rates was compounded by annual rests to carry the inter-
est over as principal. The rates required are, according to the
evidence, near the maximum rates shown to have been obtain-
able on loans by banks, during the periods stated, there being
no restriction by law on the rate of interest which might be
agreed upon between borrower and lender. The lq;al rate
provided by statute, enforceable on demands, in the absence of
an agreed rate, during the same period, was, and still is, 10
per cent per annum. Tlie statute in force since 1872 on tliis
subject reads as follows: ** Creditors shall be allowed to collect
and receive interest, when there is no agreement as to the rate
thereof, at the rate of 10 per cent per annum for all moneys
after they become due, on any bond, bill, promissoiy note, or
any other instrument of writing, and on any.judgment ren-
dered before any court or magistrate authorized to enter up
the same, within the territory, from the day of entering up such
judgment until satisfaction of the same be made; likewise ou
money lent, or mouey due on the settling of accounts, from the
day of such settlement of accounts between the parties and
ascertaining the balance due; on money received to the use of
another, and retained without tlie owner's knowledge^ and on
money withheld by an unreasonable and vexatious delay.''
(Comp. Stats., div. 6, § 1237.)
We have been unable to find authority to support the propo-
sition that a court has jurisdiction to impose arbitrary rates of
interest above the statutory rate, in an equitable aoooanting
with a trustee, although courts of equity frequently require a
lower rate in such accountings, as an equitable rate.
In England there appears to have been a rule of equity
lequiring what is called an tguUabU rate of interest^ in aoooiuit*
14 Mont.] In re Kicker's Estate. 187
ing with trastees; and this rate is UDiformly lower than the
Ugal rate. The legal rate there being 6 per cent, equity
usaally required 4 per cent in such accountings, under the
name of ''equitable interest in mitigation of legal rates.''
(Fonblanque's Equity, 443, note.) Mr. Spence, the standard
English authority on Equity Jurisprudence, says: ''Where it
appears that the trustee or executor has improperly or unneces-
sarily kept balances, or any considerable portion of trust moneys
in his hands, he will be charged with interest on what he has
so retained, generally at 4 per cent, but under special cir-
cumstances at 5 per cent.'' (2 Spence's Equitable Juris-
diction, 920.) From a passage in the opinion delivered by
Lord Chancellor Brougham in 1834, in Docker v. Somes, 2
Mylne & K. 666, it appears conclusively that English courts
of chancery did not feel at liberty to impose arbitrary rates of
interest upon trustees, in such accountings, exceeding the l^al
rate.
As to the rule in the United States, Mr. Perry, in his exam-
ination of the subject, says: " In the United States there is no
law by which different rates of interest can be applied to dif-
ferent degrees of negligence or misconduct; and the only ques-
tion here is whether simple or compound interest shall be
imposed.^' Further along, in summing up his examination,
he says: " The rate established by law as the legal rate, in the
absence of special arrangements,'' governs courts of equity in
accounting with trustees in this country. (2 Perry on Trusts,
§ 468.)
Mr. Story expresses the same view, saying: "And the
trustee, by mixing trust money with his own, at his* banker's
or otherwise, will become responsible for the replacing of the
money, and lawful interest during the intervening period.
. • • • So, too, when tlie trustee makes an improper invest-
ment of trust funds he becomes responsible for the same, with
interest." (2 Story's Equity Jurisprudence, § 12775^.)
The same conclusion is reached by Mr. Page in his recent
research on " Executors and Administrators," found in 7 Am.
A Eng. Ency. of Law, 426-29, with copious citations.
In Behi^dm v. Stewart^ 1 Johns. Ch. 620, 7 Am. Dea
507^ although one of the severest cases in this country in its
188 In bb Bicker's Estatk. [March T., 1894
exaction from the trustee, there appears to have been no thought
of imposing rates higher than the legal rate of 7 per cent.
(See, also, darkson v. DePeysUr, 1 Hopk. Ch. 426.) In Cal-
ifornia we find it held that the legal rate of interest should
not be exceeded in such tuxx>unting8. {EsUUe of Ctark, 53 Cal.
355; Merrifield v. Longmire, 66 Cal. 180; In re Ik(Arich, 86
Cal. 98.)
There is a passage in Ohice v. Cniee, 81 Mo. 676, relied on
by respondents to sanction the requirement of interest above
the rates fixed by statute; and while it may be so construed,
we do not think such was intended to be held, for, in that case,
only the legal rate of 10 per cent was allowed; and under the
{lassage relied on is cited Frost v. Wintion, 32 Mo. 489, where
it ap|)ears the rate charged was that prescribed by law.
In the examination of a great many cases on this subject,
and especially all of those cited by respondent, we fail to find
any authority contradicting the text of Mr. Perry, that the
legal rate is not exceeded, unless a lawful contract provides for
a higher rate.
We now pass to a brief examination of the question of com-
pounding interest in accounting with trustees.
Near the close of the last century the remedy of compound-
iog interest in such cases appears to have come into vogue in
the courts of equity of England and the United States, as a
convenient and potent remedy to draw from delinquent trustees
the actual or presumed profits derived from the use of trust
fuuds; although prior to that time it appears to be acknowl-
edged that the law was administered with great laxity in that
regard.
In 1805 we find Lord Elden, in his examination of the qnes-
tion of compounding interest in such accountings (RaphadY.
Boehm^ 11 Ves. 92), so much in doubt as to the proper prac-
tice, that he postponed the consideration, to give time to make
special inquiry on the subject, observing that it was a matter
of great importauce. And for his information, it appears he
went not to reports or treatises, but caused inquiry to be made
of the masters in chancery as to their understanding of the
correct practice. (See, also, an examination of this subject^ from
an historical, as well as legal, point of view, by Lord Chan-
14 MonU] In be Bickbb's Estate. 189
cellor Brougham, in Docker v. SomeSj 2 Mylne & K. 655; by
Chancellor Kent, in Schieffdin v. Stewart^ 1 Johns. Ch. 620, 7
Am. Dec. 507; by Chancellor Sanford, in QxirhBon v. De Pey^
der^ 1 Hopk. Ch. 426; by Mr. Justice Grier, in Barney v.
Saunders^ 16 How. 535; Perry on Trusts, and cases cited,
under § 468; CrvM v. Oruce^ 81 Mo. 676; the monograph by
Mr. Page, of the Pennsylvania Bar, on ''Executors and
Administrators,'' 7 Am. & Eng« Ency. of Law, 425 et seq.;
and the elaborate note to Walls v. Walker^ 99 Am. Dec. 296.)
There is no doubt the doctrine has been applied during
the present century, where circumstances appeared to war-
ranty as shown by an examination of the cases; but as to
the special conditions to which it ought to be applied, and as
to the rate of compoand interest considered equitable, tliere
seems to be much diversity of opinion. Sometimes the rule
has been exerted with extreme rigor against a trustee guilty of
fraud in respect to the trust funds, whereby he sought to enrich
himself therefrom, as was done by Lord Chancellor Lough-
borough, in 1798, in Baphad v. Boekm, 11 Yes. 92. Of this
case^ Lord Chancellor Brougham says (see Docker v. Bomes^ 2
Mylne & K. 655), it was the strongest instance of compound-
ing interest against a trustee in England; but it was a case
where ^'a gross breach of trust had been committed; for the
large sum of £30,000 was expressly directed to be laid out
for accumulation, and the executor having thought proper
to employ it in his own trade, the court ordered him to be
charged with interest at 5 per cent from the time of the
executor's death, .with half yearly rests, and interest for the
intermediate times. All the judges who have mentioned this
decree have considered it severe.'' And he adds that, in this
''most remarkable case, which indeed is always cited to be
doubted, if not disapproved, the compound interest was given
with a view to the culpability of the trustee's conduct, and not
upon any estimate of the profits he had made by it."
As has. been mentioned, the case of Sddeff'dm v. SUw-
art^ before Chancellor Kent, in 1815, is considered one that
applied the rule with great severity. Therein it appears the
executor had retained in his hands constantly for some ten
years thirty-three thousand dollars of trust funds^ '' without
190 In bb Rickbb's Estatb. [Maroh T., 1894
prodiioing auy benefit or advantage to the estate"; and the
ciiaucellor approved the report of the master, charging the
executor the legal rate of 7 per cent interest, with annual
rests for oom pounding the same. One of the cases relied on by
Ciiaucellor Kent, in support of that judgment, was Baphad v.
Baelim, 11 Yes. 92, but, of course, without knowledge of the
estimate in which it was held by the Euglish bench, as appeared
by later oommeuts. And the case of Sehi^eUn v. Stewart, 1
Johns. Ch. 620; 7 Am. Deo. 507, notwithstanding the great
weight of authority it carried by reason of the acknowledged
learning and judicial ability of tlie chancellor who delivered
the opinion, in its turn, seems to have been shaken by subse-
quent adjudications in New York, at least as to the rigor with
which it applied the rule of compounding interest. {Olarkson
v. De Peyster, 1 Hopk. Ch. 426.)
Mr. Perry states, as his deduction from the autliorities, that:
''It is difficult to lay down any general rule that is equitable
and applicable to all cases, as to the interest trustees shall pay
upon trust funds in their hands. In Eugland, if trustees suffer
money to remain iu their own hands, or in the hands of third
persons, or in bank for an unreasonable time, in addition to
their liability for its loss during such delay they will be
charged with interest at the rate of 4 per cent; but if the
trustees are grossly negligent or corrupt, or improperly call in
the money from a proper investment, and suffer it to lie idle,
or if they use it iu trade or speculation, or invest it in impro{)er
places, the court will charge them with interest at the rate of
6 per cent; and, in certain special cases of misconduct, the
court will onler annual or semi-annual rests, for the purpose
of charging them with compound interest. In the United
States there is no law by which different rates of interest can
be applied to different degrees of negligence or misconduct; and
the only question here is, whether simple or compound inter-
est shall be imposed. The general rules, so far as they can be
drawn from all the cases, areas follows: 1. If a trustee retains
balances in his hands which he ought to have invested, or
delays for an unreasonable time to invest, or if he mingles the
money with his own, or uses it in his private business, or^
deposits it in bank in his own name, or in the name of the firo)
14 Mont.] In bs Rigkbb's Estatb. 191
of which he was a member^ or neglects to settle his aocoant for
a long time^ or to distribute or pay over the money when he
ought to do so, he will be liable to pay simple interest at the
rate established by law as the legal rate in the absence of
special agreements. This rule is subject to the qualificabion
that trustees cannot make any advantage to themselves out of
the trust fund; and if they make more than l^al interest, they
shall pay more, as if they make usurious loans they shall be
charged with all their gains from the use of the money. If
the trustee cannot show what amount of interest he has received
he shall be charged with legal interest from the time when
the regular investment ouglit to have been made. There may
be an exception to the rule that a deposit of the trust money
in bank in the name of the trustee, or a mixing of the trust
fund with his own, will impose a liability of legal interest
There must be some element of a breach of trust in the trans-
action, or a breach of duty/' (1 Perry on Trusts, § 468.)
There are cases of comparatively recent date, however, in
which compound interest has been held proper by the supreme
court of one state, and refused by that of another, where the
cases appear to be surrounded by quite similar circumstances.
This will be seen by a comparison of CUirVs EdaUj 53 Cal.
355, Merrifield v. Longmire^ 66 CaL 180, and In re Esc/iriolij
85 Cal. 98, with tlie case of Oruce v. Oruce^ 81 Mo. 676,
where, apparently under very similar facts, the California court
allowed 7 per cent, compounded by annual rests; while the
supreme court of Missouri allowed only simple interest at the
legal rate of 10 per cent. But in the treatment of the latter
case, after referring to the fact that ^* the rule of exacting
interest from delinquent trustees has nowhere been enforced
more rigorously'^ than in Missouri, it was said that if the inter-
est had been compounded by annual rests, ''at the low rate of
6 per cent,'' it would have been allowed to pass. '' But, as
every case must be determined according to the facts and cir-
cumstances peculiar to it, I am satisfied," says the author of
that opinion, '' that it would be inequitable to order interest
compounded at the high rate of 10 per cent per annum against
the respondent. My reasons for this conclusion are as follows:
1. The account extends through fifteen years. The result of
192 In bb Ricksb's Estate. [March T., 1894
the oompatation, like all such arithmetical results^ would be
sarprising and excessive. It woald, iu 1117 judgment^ exceed
what could be expected from any prudent and careful adminia-
tration of the estate under ordinary circumstances* I think it
would be a marvelous achievement for any trustee of ordinary
skill and prudence to keep a fund of $5^000 or $6^000 so con-
stantly and securely invested for a period of fifteen years as to
produce the net result of compound interest at 10 per cent per
annum. In the ordinary course of events there would neces-
sarily be intervals of irregular length between investments, not
to say any thing of possible loss and depreciation of security.
The ability of investing the interest annually, as soon as col-
lected, may well be doubted when we consider its moderate
volume, and the frequency with which it would have to be put
out. The exaction of compound interest at such a high rate,
for so long a period of time, would, in my judgment^ be a
departure from the leading principle, which requires the chan-
cellor to approximate, as near as possible, the actual or pre-
sumed gains and profits of the fund«'' (Ouoe v. Qruoe, 81
Mo. 676.)
The theory upon which the court exacted such extraordinary
rates of compound interest from ,the executor in the case at
bar wasy that, according to the testimony of the bankers,
money could have been loaned at the time in question at such
rates. Nowhere in the record is there shown any proof as to
the net result of loaning money during a given period, even
by such experienced financiers as bankers, after deducting
expenses and losses, in order to ascertain the net profits which
could be derived from the use of money, by way of interest.
Without any such inquiry, the rates of 18, 16, and 12 per cent
were designated by the court, for stated periods of the admin-
istration, and the referee was directed to compute at those rates,
during such periods, compounding by annual rests.
Would it not be somewhat analogous if, in a given case, it
were found that a bailee of another's carriage-horse had kept
and used it for the period of say five years; and in order to
charge the bailee with the profits of such use the court should
take proof of the price for a livery animal of like quality for
one day, and without further inquiry as to expense of feeding
14 Mont.] In bs Bicker's Estate. 1\)S
or care, or as to the time such animal would ordinarily lie idle,
the coui*t should order the case to a referee to cast the aggregate
for the whole period at the price stated for a day, and enter
judgment accordingly? If liverymen could so reckon profit
their prosperity would no doubt be far difierent than practical
ez[)erience demonstrates.
So^ if loans of money were always promptly returned at
maturity with the stipulated interest^ and the gross rate was
never diminished by loss or delay through deterioration of
securities, death, disaster, or fraud, nor by the expense of con-
stant attention to such affairs, the employment of professional
services, of litigation, and so forth, even then it would not be
IK>6sible in practice to make the gain compound along the line
of the highest rates attainable; because in practice it would not
be possible to reloan the money and the accumulated interest
the instant it was due. If the debtor, through stubborn
n^lect or misfortune, is delinquent in payment the law must
be resorted to, and for such delay it will not require from the
delinquent debtor compound interest; so that in demanding
return of compound interest at the loaning rate in such
instances (which are not infrequent in experience) the law
would demand on the one hand of the trustee what it would
not allow him to collect on the other.
The problem of compound interest, when set in motion,
moves on for its allotted period with the certainty of time and
mathematics. All other conditions are assumed. It considers
no delay, no failure, no expense — ^its assumed creditors, for-
ever, with the r^ularity of perpetual motion, obey an assumed
demand — and the gain in turn is presumed to be reloaned
the instant of its payment. The problem contemplates con-
stant accretion by a composite process, but no diminution; it
omits no farthing, nor allows any to escape when gathered —
not even so much as the expense of postage, or the wear of
shoe-leather, to make a demand. The thriftiest management
and most fortunate consummation in practice cannot hope to
reach the quotient gathered by the problem, in the long run,
unless odds are given in fixing the rate to be compounded, to
offset the expenses, delays, and failures met with in practical
ext)erience. But with allowauce for such contingencies in fix-
VoimIUV.— 13
iy4 In be Rickkb's Estate. [March T., 1894
iug such rate^ no doubt common experience will admit that it
is practical to gain compound interest; and it has been, no
doubt justly, held equitable in accounting with trustees, where
they have iu their hands moneys for accumulation, or which
was made to accumulate, or has been used for the trustee's
profit, to require compound interest. But the rate must be
fixed with due consideration, or the result will be found out of
all proportion to what could have been accomplished iu the
field of practical affairs. We are suggesting here nothing new,
for these conditions have undoubtedly been considered, if not
mentioned in detail, by courts of equity, as shown in the fact
that they have in general gauged their requirements accord-
ingly. But, sometimes, as might have been expected in the
application of an abstract mathematical rule, the exact rela-
tions of which, to practical results, is not easily detected, some
hardship may have been worked.
There is evidence in the record to the effect, that from time
to time during the period in question, banking institutions
contracted to pay, for the use of funds left with them for a
stated time, a certain rate of interest per annum. That is the
only evidence in the record which approaches a safe criterion
from which there might have been found the measure of net
profits— or, in other words, the net earnings which could be
counted on for the use of money by way of interest While
this testimony did not take that form of inquiry exactly, it is
evidence of what money could have earned placed in such
institutions, they insuring the safety thereof, so far as their
own responsibility went, and bearing the expense and loss
incident to its use. The tendency of this evidence, more than
any other in the record, is to show what such financial institu-
tions could afford to pay for the use of money, and insure its
safety, and bear the expense and loss incurred in handling.
Who are more likely to get greater profit from the use of
money, under fairly safe and conservative conditions of hand-
ling, than bankers? If there are other financiers or business
men who can do better is it not likely bankers would learn
the way and adopt it?
But if we measure this executor's returns by that criterion
a balance is found in his favor; for, when the rate in the banks
14 Mont.] In kb Kicker's Estate, 195
went below 8 per cent^ the evidence is that be kept on
returuiug at tbat rate on moneys to the credit of the estate
not in bank.
If we look to the precedents in the books we find^ too^ that
the returns of this executor, made without delinquency or any
suspicion of fraud, rise above the exactions from trustees, by
way of compound interest, in cases where their accounts were
delinquent and conduct culpable. Shall a judgment of greater
severity be pronounced in this ease than in such? It appears
from numerous precedents from all sections of the country,
that this case would, in those courts, be dismissed; because
the executor has voluntarily and promptly made returns of
income double what could have been obtained by the course
contemplated by the testator's will, and n^ore than the banks
would have allowed during considerable portion of the time;
and more than the courts have found equitable to exact in
accountings with trustees whose conduct was found grossly
detrimental to the interest of the estate. This must be
admitted. And even granting the worst that has been asserted
against the executor, in the case at bar — the temporary use of cer-
tain of the trust funds in private affairs, which is made the occa-
sion for exacting compound interest in several cases, as we have
seen — still it appears, and is not disputed, that this executor
has seen to it, that the estate in no way suffered detriment
therefrom, and gained considerably thereby. If a man's foot
slip, or if be stumbles, and then regathering himself walks
uprightly, and delivers his burden in advance of all others,
without one whit missing, shall he be turned upon, and scourged
with a severity exceeding that laid upon one who refuses to
proceed with the discharge of his duty altogether? It may be
answered that if one who waivers is allowed to go without
punishment, others will walk unsteady. This answer does
not meet the situation. If he was found delinquent it would
be time to consider of his pnnishment, but if not finding him
delinquent in any respect more is exacted than for entire neg-
lect absolute default would be encouraged by such unjust
judgment.
But laying aside all figures of speech, as not much to be
indulged, in judicial iuvebtigations^ and viewing all phases
196 In bb Rickbb's Estate. [March T., 1894
of this case in the plaiuest fashion, it appears that if heavier
judgment is laid on such a case as this, the court will thereby
designate the plane of its exactions much higher than any
court has attempted to maintain, so £ir as we have been able
to discover.
With the oarefulest investigation of the law and facts, our
deliberate judgment is drawn to a negative conclusion on every
vital point in this case. There is no hardship in this, for the
ezeciltor must have managed the affairs of the estate with
solicitude, for the wel&re of the heirs, and that his manage-
ment has been largely fruitful of benefits to them is frankly
admitted. Such results do not come from indifference or
neglect
In rendering the extraordinary judgment in this case we
think the learned judge of the court below must, without the
deliberation usually manifested, have adopted views urged by
the forceful eloquence of petitioner's counsel. But things only
assumed, in whatsoever eloquent phrase, or forms only painted,
however real they seem at first impression, cannot support the
judgment of a court.
An order will therefore be entered reversing the judgment
in this proceeding, and remanding the case, with directions to
enter judgment in the court below dismissing this proceeding
at the cost of petitioner.
Beveraed.
Pembebton, C. J., and T>e Witt, J., concur.
ON BEHEABING.
Per CuBiAH. — Since the determination of this appeali
motion for rehearing has been presented and given careful
consideration, besides allowing counsel the unusual privilege
of argument, to more fully expound the grounds on which
rehearing is demanded. Nevertheless, there has been no
exposition of points wherein the court overlooked or erro-
neously applied any pertinent or controlling authorities or
material facts in the original determination. On the contrary,
this retrospection of the case, in the light of motion for rehear-
ing, tends to confirm the views of the court heretofore expressed,
as fully in accord with the authorities and facts, and that a
14 Mont.] Watson v. O'Neill, 197
just and proi)er determination was reached. The same will
therefore be allowed to stand as originally announced.
This motion for rehearing, however, raises a new point in
the case, which hitherto was neither presented in the brief nor in
the argument on appeal; nor does it appear that consideration
tliereof was had in the trial court — namely, that in certain
years the probate court of Lewis and Clarke county, then hav-
ing jurisdiction of said estate, allowed the executor a higher
rate of commission by 1 percent than the statute then provided;
in other words, it is asserted that, at certain times when 5 per
cent commission was allowed the executor, the statute pre-
scribed only 4 per cent. It is obvious, this being a court of
review, and not of original inquiry in these matters, it should
not enter upon an investigation, or make any order, touching
this question, for the reason already mentioned — ^that no
inquiry or determination on that feature of the case appears to
have been made by the trial court. Therefore, there is no order
or determination of the trial court to review on that point The
trial court denied the executor all commissions, on grounds
which did not touch the question of his having been allowed
by the probate court a rate exceeding that provided by statute.
That particular question seems not to have been adjudicated.
But whatever inquiry or order concemiog the readjustment of
said commission, on the ground alleged, may be pertinent, it
should, in the first instance, be proceeded with in the trial court;
The motion for rehearing will therefore be denied.
I 14 IW
| »19 5 4
WATSON, Appellant, v. O'NEILL et al., Ebspokd- m J^
ENTS. 1 2Li«
[Sabmitted March 29, 1898. Decided Muroh 12, 1894.]
Bosi>--'Befonnalion^I}videMe.~A. bond given in connection wiih a bnUding
contract, and conditioned for the famishing of all labor and material neces-
■ary to the completion of the bnilding, as specified and shown on the plans
ftimished by the architect, need not be so reformed, before a recovery thereon,
as to refer to said contract, since the instmments, being contemporaneous and
parts of the same transaction, may be construed together to explain each other
nuder section S32 of the Code of Civil Procedure.
198 Watson v, O'Neill. [March T., 1894
Appeal from First Judicial District, Lewis and Oarke Ckmnty.
AoriON on bond. Judgment was rendered for the plamtiff
below by Buck, J. Reversed.
WUliam M. Blackford, for Appellant.
Henry C. Smith, for Respondents.
Pemberton, C. J. — It appears that respondents, who were
defendants in this action, executed and delivered to plaintiff, as
sureties, an instrument as follows:
''Know all men by these presents, that Jos. O'Neill and
Jacob Switzer, of the city of Helena, county of Lewis and
Clarke, state of Montana, are held and firmly bound unto John
EL Watson, of the city of Helena, county of Lewis and Clarke,
state of Montana, in the sum of one thousand dollars, lawful
money of the United States of America, to be paid to the said
John E. Watson, his executors, administrators, or assigns, for
which payment well and truly to be made we bind ourselves,
heirs, executors, and administrators unto John B. Watson
firmly by these presents. Sealed with our seals, and dated
this third day of August, one thousand eight hundred and
ninety-two. The condition of the above obligation is such
that, should Frederick Eide b^in and complete the brickwork
on John B. Watson's business block, as follows: Frederick
Eide is to furnish all the material, lime, sand, brick, and all
labor necessary to the erection and completion of John B.
Watson's business block, on Main St., as specified and shown
on the plans as furnished by W. E. Norris, architect — ^then
the above obligation to be void; otherwise to remain in full
force and virtue. Frederick Eide. [seal]
**Jos. O'Neill. [seal]
"J. SwiTZER." [seal]
This action was brought against said sureties on said bond
to recover from them the sum of five hundred and forty-eight
dollars and eighty-four cents damages, alleged to have been
sustained by plaintiff tlirough tlie failure of defendant Eide to
furnish certain material and labor necessary to, and which were
14 Mont.l Watson v. O'Neill, 190
used 111^ the construcliou of said building in accordance with
the plans of the architect^ mentioned in said bond. In bring-
ing this action the appellant proceeded upon the theory that
the bond above referred to is defective, in that it does not refer
sufficiently to the contract to cover the damages sued for, and
asks that said bond be so reformed as to refer to the building
contract, and cover the damages as all^edy or the breaches
thereof, and, after being so reformed by the court, that he have
judgment against these respondents for the amount of such
damages. So he inserts in his complaint a series of allegations
to the effect that it was the intention of the parties to said
bond that it should refer to said building contract, in addition
to the references in the bond to the ''plans as furnished by
W. E. Norris, architect.'*
Answer was made by defendant sureties, Switzer and O'Neill,
denying all the allegations of the complaint, and trial ensued,
whereat, upon the close of the introduction of evidence on
behalf of the plaintiff, respondents moved the trial court for
judgment of nonsuit as to respondents O'Neill and Switzer, on
the ground that the evidence does not prove, or tend to prove,
any liability on the part of said sureties, which motion was
sustained by the court, and judgment for nonsuit entered
accordingly, from which judgment plaintiff prosecutes this
appeal.
It appears from the case shown by the record that the
motion for nonsuit was sustained upon the ground that no
sufficient showing was made to warrant the court in reforming
the bond in the respect sought by plaintiff, without consider-
ation as to whether, upon the whole case made out, plaintiff
was entitled to the recovery of damages sought to be recovered
upon the bond, as executed, without reference to reformation.
The bond as executed is pleaded, together with all the factfi^
relating to the &ilui*e of the contractor, Eide, in constructing
said building and furnishing the material and labor therefor,
as provided by the plans of the architect, referred to in said
bond, and the payment thereon, which involved the damage
sued for. And, although the plaintiff sought a reformation of
said bond to secure the extension of the terms thereof to include
the building contract, as \\M as the plans and sjiecifications,
200 Watson v. O'Nbill. [March T., 1894
we tliiuk the question arises, and shoald be oonsidered by the
court, first, whether plaintiff is entitled to the relief sought
against said sureties, under the terms of said bond, and plead-
ings and proof, without reformation of the bond, as sought by
plaintiff in this action; and, if that proposition should be
resolved in the a£Srmative, it would leave out of consideration
the whole question of reformation of said instrument, and the
allegations of the complaint setting up the facts upon which
reformation was sought would stand as surplusage. In other
words, in the view of this court, the question arises whether
the trial court was warranted in granting a nonsuit, thereby
denying plaintiff all relief in the action, upon the ground that
he had not made out sufficient facts to sustain his demand for
reformation of said instrument.
We are of the opinion that the whole question of reformation
of said bond was unnecessarily brought into said action. That
the terms of the bond, as executed, and providing that the
sureties guaranty in the sum of one thousand dollars, to the
effect that said Frederick Eide, the contractor and builder,
should ^^ begin and complete the brickwork on John R. Wat-
son's business block, as follows: Frederick Eide is to furnish
all the material, lime, sand, brick, and all labor necessary to
the erection and completion of John IL Watson's business
block, on Main street, as specified and shown on the plans as
furnished by W. E. Norris, architect,'' were sufficient to sus-
tain this action for the recovery of the sum of money which
the plaintiff may have been compelled to pay out towards the
furnishing of the material and labor necessary for the erection
and completion of the structure according to said plans, as
alleged in the complaint, without any reformation or extension
of the terms of said bond.
We think this action involves the construction and appli-
cation of said instrument to the subject thereof, rather than
the question of the reformation of the instrument. In con-
struing and applying the instrument to the subject to which it
relates, the court was entitled to receive evidence of the "cir-
cumstances under which it was made, including the situation of
the subject of the instrument, and of the parties to it, ... .
so that the judge be placed in the position of those whose
14 Mont] Stats v. Cook. 201
language he is to interpret'^ (Code Civ. Proo.^ § 632.) And
when the order of the nonsuit was entered, as appears from
the reoordy the court had before it, as disclosed in the evidence,
sufficient of such circumstances and situation of the parties to
the subject matter of said bond to enable it to clearly find
within the intendment of said instrument an obligation on the
part of the sureties to guarantee the furnishing of the material
and labor for the construction of the building, portrayed by
the plans mentioned in the bond. (Code Civ. Proa, §§ 631,
636, 638.)
It is evident from the record that the plans and specifications
of the buildings the contract for the erection and completion
thereof, and the bond sued on are all contemporaneous, and
parts of the same transaction — in fact, parts of the res gestce —
and, as such, should be construed together, in order to explain
each other, and determine the rights, obligations, and liabilities
of the parties thereto.
For the reasons stated above, the judgment appealed from
should be reversed, and it is so ordered.
JUvericd,
Habwood and De Witt, JJ., concur.
STATE EX REL. HERFORD v. COOK, State Auditob.
[Submitted Maxoh 6, 1894. I>6eid6d Uaioh 12, 1894.]
ComraB-^OlaaHJIoation-'Evidence.^WhBTi a portion of one county is attached
to another county, the last asBesament on the territory bo attached may be
acoertained by reference to the Msessment books of the former county in deter-
mining the claBsiflcation of the latter county aa eetabliihed l^ the aaseesed
valuation of property within its boundaries.
Original proceeding. Application for writ of mandamus.
Granted.
0. F» Goddard, for relator.
Henri J. Haahell, Attorney 0enera7,for the state, respondent.
De Witt, J. — ^The relator is, and since January 1, 1893, has
been, county attorney of Yellowstone county. The respond-
202 Statb v. Cook. [March T,, 1894
ent is state auditor. Relator prajs that a writ of mandamua
issue^ requiring the state auditor to draw a warrant in favor
of relator for certain sums, which he claims are due him as
county attorney of a second-class county. (Acts 2d Sess. p.
235, approved March 6, 1891.) The state moves to quash
the writ. The contention is whether the petition shows that
Yellowstone is a second-class county. A second-class county
must liave an assessed valuation of over $4,000^000 and less
than $8,000,000. (Act March 6, 1891, 9upra.) In 1892 the
assessed valuation of Yellowstone county was $3,800,000. On
October 15, 1892, a portion of the Crow Indian reservation
duly became a part of Yellowstone county. The property on
this iK)rtion of the reservation was, in 1892, assessed by Custer
couuty at $817,037. After this portion of territory became
part of Yellowstone county, October 15, 1892, the same projv-
erty so assessed remained thereon. It is therefore the fact that
when relator was elected, November, 8, 1892, and qualified,
January 1, 1893, the assessed valuation of Yellowstone county
was composed of two items: 1. $3,800,000 — the Yellowstone
. assessment of 1892; and, 2. $817,037, an amount assessed by
Custer county, and added to Yellowstone county by the accre-
tion of tlie piece of the reservation. These two sums aggre-
gate $4,617,037. Therefore, prior to relator's election and
qualification, his county had the assessed valuation of a second-
class couuty. (Acts 2d Sess., p. 235.) This fact entitles rela«
tor, under the provisions of the law passed (March 6, 1891)
])rior to his election and qualification, to a salary as a second-
class county officer. This the state auditor refused, hence this
application for a writ of mavidamus.
The only question is as to the evidence by which it is shown
that Yellowstone is a second-class county. The evidence by
which it is shown is Custer county's assessment in 1892 upon
the property, which at the time of the assessment was in Cus-
ter county, but which went, with the land on which it was
found, into Yellowstone county, October 15, 1892. That
asse&sed valuation was $817,037. That fact could be ascer-
tained on January 1, 1893, when relator's term of office com-
menced, by no m'^thod other than the assessment books of
Custer county. AVe are satisfied that it sufficiently appears
14 Mont.] Parrott v. McDbvitt. 203
-that when relator was elected county attorney, and when he
qualified, Yellowstone was a second-class county. He is there-
fore entitled to this writ. But counsel stated in argument that
relator at this time demands a warrant from the state auditor
for only the period of time since December 1^ 1893. There-
fore let the writ issue commanding the state auditor to draw
warrants in favor of relator in such amounts as shall pay him
as far as the state is liable for his salary at the rate of $1^500
per annum^ since December 1« 1893.
Writ issued.
P£MB£BTOK, C. J., and Harwood, J., concur.
PARROTT, Appellant, v. McDEVITT, Respondent.
[Bnbmittod February 6, ISM. Decided March 13, ISM.]
Arpwki^'-Orders^Bttt of exceptions.^-On an appeal from an order a bill of exoep-
tiona which contains all the papers properly certified which are required on
appeals from orders, wiU not be stricken from the record upon objections to
its settlement and service, since the matters included in the biU of exceptions
are properly before the court without a bill. {BookwaUer ▼. Conrad, ante,
p. ea, cited.)
JuBOMEKTB— JVtinc pTo tuno entry, — Befusal of the district court to order a Judg-
ment entered nunopro tuno as of the date of its rendition is error where the
reoords disclose wliat the Judgment was, and thAt it had actually been rendered.
' Appeal from Tliird Judicial District, Deer Lodge County.
Plaintipp's motion for the nunc pro tunc entry of the judg-
ment rendered in Parrott v. Hungelburger, 9 Mont 526, was
denied by Durfee, J, Reversed.
Brazelton & Schamikow, for Appellant.
L When a judgment has been rendered in a cause it
becomes the duty of the clerk to make a reconi entry of it in
an official book kept for that purpose. (1 Black on Judg«
ments, § 110; Keene v. Welsh, 8 Mont. 309; Code Civ. Proc.,'
§ 304, Comp. Stats.)
II. The neglect or failure of the clerk to make a proper
entry of record of a ju<Igmeut^ or a defective or inaccurate
1^22 182
204 Parrott v. McDevitt. [March T., 1894
entry of it^ will Dot, as between the parties, operate to invali-
date the judgment {Ounn v. Plant, 94 U. S. 664; Q'cUg v.
Alcorn, 46 Iowa, 660; Bridges v. ThomoM, 60 Ga. 378.)
III. The power of courts to make entries of judgments
nunc pro time, in proper cases, and in furtherance of the inter-
ests of justice, has been recognized and exercised from ancient
times. This power does not depend upon statute; it is inherent.
(12 Am. & Eng. Encj. of Law^ 80; 1 Black on Judgments^
§ 126; ChM8(m v. Baibour, 100 Ind. 1; McDotoeU v. MoDoweO,
92 N. C. 227.)
ly. It is competent for a court to enter judgment nunc
pro tune, at any mAseqaent term, both parties appearing and
being heard. (Freeman on Judgments, § 71; Shepherd v.
Brenton, 20 Iowa, 41; Murdoch v. Oanald, 47 Mo. 135; Jer-
reU V. Mahan, 20 Nev. 89; Burnett v. State, 14 Tex. 455; 66
Am. Dec. 131.) After the lapse of the term the court retains
jurisdiction of its record for the correction of clerical errors.
{Evans v. Fisher, 26 Mo. App. 641.)
Y. Where a court has rendered a formal judgment, but
the same has not been entered on record, through n^lect or
misprision of the clerk, the court has power to order that such
judgment be entered nunc pro tunc at any time. (12 Am. &
Eng. Ency. of Law, 81; 3 Estee's Pleadings, § 4768; 1 Black
on Judgments, § 130; Freeman on Judgments, § 61; Harvey
V. Whiilatch, 1 Mont 713; Comanche Mining Co. v. Rumley,
1 Mont 205; Territory v. Clayton, 8 Mont 17; Marshall v.
Ihylor, 97 Cal. 422; Dreyfuss v. TompUns, 67 Cal. 339;
Franklin v. Merida, 60 Cal. 289; Bousset v. Boyle, 46 Cal. 64;
Swain v. Naglee, 19 Cal. 127, and note; Oibson v. Oiouieau,
45 Mo. 171; 100 Am. Dec. 366; HoweU v. Marian, 78 111.
162; Chichester v. Cande, 3 Cow. 39; 16 Am. Dec. 238.)
y I. The decisions of the courts uniformly hold that if the
records of the court show that a judgment has been formally
rendered, and what such judgment was, that no other evidence
is required upon which to base an order to have such judgment
entered nunc pro tune. (1 Black on Judgments, § 135, and
cases cited; Keene v. Welsh, 8 Mont. 309; Barber v. Briscoe,
9 Mont. 345; BeOdn v. Bliodes, 76 Mo. 643; Groner v. Smith,
49 Mo. 318.)
14 Mont.] Parrott v. McDbvitt. 205
VII. The court may enter judgment as of the time when
it ought to have been entered, although a considerable time
has elai>8edy and tlie death of the defendant occurring in the
mean time. (6 Am. & Eng. Ency. of Law, 136; 12 Am. &
Eng. Ency. of Law, 80; Borer v. Chapman, 119 U. 8. 588;
Mitchell y. Overman, 103 U. S. 62; MUchell v. Sduxmovei-, 16
Or. 21 1; 8 Am. St. Rep. 282; L(mg v. Stafard, 103 N. Y. 274;
Mui-ray v. Ooopei*, 6 Serg. <& R. 126; Black v. Shaw, 20 Cal.
68; WVacm v. Myere, 4 Hawks, 73; 15 Am. Dec. 511; Maye
V. flawe«, 4 Stew. & P. 222; 24 Am. Dec. 750.)
F. W. Cole, for Respondent.
Db Witt, J. — A motion was made in this case to strike out
a large portion of the record, called a ^' bill of exceptions/' on
two grounds: 1. That D. M. Durfee, who signed the bill of
exceptions, was not, at the time he signed it (January 5, 1893),
a judge of the court; and 2. It does not appear that the bill
of exceptions was served on respondent's attorneys, or that
they had notice of the same.
While we have judicial knowledge of the fact that Judge
Durfee's term of office expired on the last day of December,
1892, still, in the record, we find him acting as judge, in sign-
ing a bill of exceptions, on January 5, 1893; and, for all that
appears, he could have been holding over until his successor
qualified. (Const., art. 8, § 12.) But this matter is not
im})ortant, nor is the objection that the bill of exceptions was
not served on counsel. The matters included in the bill of
exceptions are before us without a bill. The appeal is from
an order. Section 438 of the Code of Civil Procedure pro-
vides: ''On appeal .... from an order, the appellant shall
furnish the court with copy of the notice of appeal, undertak-
ing or undertakings on appeal, the judgment or order appealed
irom, and a copy of the papers used on the hearing in the
court below, such copies to be certified in like manner to be
correct."
These papers are in the record, and certified by the clerk to
be correct. That is sufficient to present them to us for review.
The motion is denied. {BookwaUer v. Oonrad, ante, p. 62.)
206 Parrott v. McDbvitt. [March T., 1894
This is the same case as that reported nnder the title of Par*
roil V. HungelbwyeTf 9 Mont. 526. The present defendant,
McDevitt, is the administrator of Hungelburger — appointed^
as is noted in the opinion of ParroU v. Hungelburger.
By reference to ParroU v. Kane, ante, p. 23, it will be seen
that it was claimed that judgment in this case was not entered,
although it was duly rendered. Writ of restitution herein was
issued, and was then recalled and quashed by the court Then
plaintiff moved the court to order the clerk to enter judgment
nunc pro tuno as of October 30, 1888. For a fuller statement
of the facts, see Parrott v. Kane, supra. The motion was
made upon all of the records and proceedings in the case. The
district court, on the motion, was most amply informed by the
records that judgment had been rendered in Parrott v. Hungel-
burger, 9 Mont. 626. It had before it the written and duly
filed opinion of the district judge, giving his reasons for
rendering judgment, and concluding with the following lan-
guage: ^^ The judgment of the court, therefore, is that plaintiff
have possession of said premises, and recover from defendant
the sum of thirty dollars per month, for issues and profits
thereof, since the day of , 188 — , with judgment for
oo9t8. S. Db Wolfe, Judge. Filed October 29, 1888."
The district court had also before it, u{)on the motion, the
minutes of the court in the case of ParroU v. Hungelburger^ 9
Mont. 526, of October 29, 1888, as follows: "This cause
coming on again this day, the court gives judgment for plain-
tiff, and against defendant, according to the prayer of plaintiff's
complaint, and judgment is ordered entered." The district
court also had before it a judgment, duly and formally written
out, giving judgment for the plaintiff, and signed by the dis-
trict judge, and marked by the clerk "Filed and entered Octo-
ber 30, 1888." Such was the showing by the records that
the judgment had actually been rendered, and what the judg-
ment was. On this showing the district court refused to order
the clerk to enter judgment nunc pro tuno. The court may,
at a su1)sequent term, order a judgment entered which has
theretofore been rendered, and where the records of the court
show what the judgment was, and that it had actually been
rendered. {Harvey v. Whillatch, 1 Mont. 713; Qmanche
14 Mont.] Parrott v. McDbvitt. 207
Mining Co. v. Rumleyy 1 Mont, 205; Territory v. Clayton, 8
ModU 1; ICeme v, Welsh, 8 Mout. 305; Barber v. Briscoe, 9
Mout. 341; 1 Black on Judgmeuts^ § 135, and cases cited.
See, also, apj^ellant's brief uiK>n this point.)
Why the district court refused to order the judgment
entered nunc pro tune does not appear by the record, nor can
the widest excursion into the field of surmise discover a reason
fur this decision, ' The order should have been made, as decided
in the cases above cited.
The plaintiff is lefl in a most unusual position for a success-
ful litigant. He obtained a judgment. On defendant's appeal
he obtained an affirmance. It has never been questioned that
he has b judgment. But the court quashed his writ of resti-
tution — whether rightfully or wrongfully is not now before us
for a review. The court stayed any further issuance of a writ
of restitution. These proceedings by the court were upon the
ground that judgment had not been entered. Then the court
refused to order the judgment entered. A wholly valueless
judgment is this. The plaintiff achieved a Pyrrhic victory —
such a one as would lead him to exclaim with the king of
Epirus, " Another such a victory, and I am lost." The law
cannot contem{>late such results.
The order of the district court is reversed, and the case is
remanded, with directions to that court to order judgment to
be entered as the same was rendered. BemiUUvr forthwith.
BeversecL
Fembebtok, C. J., and Habwood, J., concur.
208 Braithwaitb v. Harvey. [March T., 1894
BRAITHWAITE, Appellant, ©. HARVEY, Respond-
ent.
[Submitted Febraary 19, 1891. Bedded Xareh 19, 1894.]
ArmnriBnuLTOBS— jPorH^ judgment^ Pleading.-~A. Judgment reeoTered agidDtt
an administrator in another slate is of no binding effiect as against an admin-
istrator of the same intestate in this state, nor is it eyidenoe of a debt, and
therefore cannot be pleaded as a part of plaintifTs cause of action in a subse-
quent suit on the same demand against the administrator appointed in this
state. Nor is it necessary to plead such Judgment in order to show that the
demand sued on in this state had been given credit for a sum realized under
the foreign Judgment.
BjJa—BxtraUrritorial authority^£Btopp^-^Aii administrator has no authority
to act or bind the estate outside the Jurisdiction of his own state, and, there-
fore, where he has defended a suit in another state in the name of the admin-
istrator appointed in that state, he is not estopped from disputing the claim
upon which the action was brought when sued thereon in his own state.
Statutk of LmriATioNB—JVetrjmmiis^.— Letters ftom the defendant to a third
person in which he referred to plaintiffs claim, saying: ** If I do not hear from
you soon I will tender amount due .... whatever is due is ready • • • • when-
ever I can safely pay you or plaintiff. I am not satisfied about the settlement.
.... Please write me your understanding of it"; also, " if I settle with your
folks, if they will see me clear of plaintiff," contain no definite, unqualified
acknowledgment of plaintiflTs demand or promise to pay the same, and axe,
therefore, insufficient to remoye the bar of the statute of limitations.
Appeal from Seventh Judioial IHdriatf Ouster County.
Action against an administrator. Judgment was rendered
for the defendant below by Milburn, J. Affirmed.
George W. NenfUmj and Middldon & Light, for Appellant
Tlie facts alleged in paragraph 2 of plaintiff's complaint, in
connection with all the facts set forth in the other allegations of
the complaint, work an estoppel against the defendant in this
action, and against the estate of Leighton, to the extent that this
defendant as administrator is not now at liberty to question the
balance presented to him for allowance by the plaintiff against
the estate of the said Leighton, as a true balance due and
unpaid upon the contract in question. The facts set forth in
paragraph 21, in connection with other facts alleged in the
complaint, estopped the defendant from interposing the tech-
nical defense of the statute of limitations. The defendant has
had his day in court upon the claim in question. "Neither
the benefit of judgment on one side, nor the obligation on the
14 Mont] Braithwaitb v. Harvby. 209
other, are limited exclusively to the parties and their privies."
(Freeman on Judgments, 3d ed., §§ 174, 175.) "A party who
actually appears and defends in the name of another is bound
by the judgment," {Montgomery v. Vickeryy 110 Ind. 211;
Valentine v. Mahoney, 37 Cal. 389; Freeman on Judgments,
§ 163 a.) ''One who, though not a party, defends or prose-
cutes an action by employing counsel, paying costs, and by
doing those things which are usually done by a party, is bound
by the judgment rendered therein." {Stoddard v. TAoirtp^on,
31 Iowa, 81; Elliott v. Hayden, 104 Mass. 180; Train v. GoM,
5 Pick; 380; Jackson v. Oriswold, 4 Hill, 522; Falvier v.
Hayes, 112 Ind. 289; Bums v. Oavin, 118 Ind. 320; Roby
V. lagers, 130 Ind. 415; De Metton v. De Mdlo, 12 East, 234;
Oromwdl v. County of Sac, 94 U. S. 351.) An administrator,
wherever appointed, is in privity with the intestate, but there
is, ordinarily, no privity in law or estate between administrators
appointed in different sovereignties, and a judgment against one
is not a bar against the other. {Hill v. Tucker, 13 How. 466,
467.) They are deemed to stand like other persons not privies
in blood, privies in law or privies by estate. The facts alleged
against the administrator of Leigh ton's domicile, i. «.,the defend-
ant, bring him into such relation to the judgment rendered in
North Dakota against the ancillary administrator appointed
there, as to estop the defendant from saying that it was not cor-
rect or that the amount therein adjudged to be due is barred by
the statute of limitations L e,, the facts alleged in the complaint
in this action as a whole constitute a canse of action based upon
the contract of November 3, 1880, and an equitable estop{)el
against the defendant as to all defenses existing prior to its
rendition, either under the laws of North Dakota or Montana.
The ancillary administration is subsidiary and supplemental to
the domiciliary administration. If assets of the estate abroad
come to the knowledge of the principal administrator, and an
ancillary administration becomes needful or prudent, the princi-
pal administrator should procure his own or another's appoint-
ment, and will be held responsible for due diligence and fidelity.
(Schouler on Executors and Administrators, § 175.) In the
very nature of things, to the extent of the powers and duties
of the ancillary administrator they almost interlace, though
Vol. XIV.— 14
210 Braithwaitb v. Harvby. [March T., 1894
the domiciliarj administrator has the greater powers and duties.
Thus, the principal administrator may receive payment from a
debtor outside of the sovereignty from which he receives his
appointment, and it will be upheld even against an administra-
tor appointed where the debtor resides. {WUkins v. Ellett, 9
"Wall. 740.) "Where there are creditors, however, within the
jurisdiction of the ancillary administrator, they have a legal
right to insist that all assets therein be there administered and
distributed. The rule is founded u{)on the policy of the state
to protect the interests of its home creditors. {Wilkins v.
EUett, 9 Wall. 740.) After the payment of the home creditors,
the residuum is to be transmitted to and distributed at the
place of domicile {WUkins v. ElteU, 9 Wall. 740), unless for
some special reason, as to charge the security for faithful
administration in the ancillary administration, equity would
require its retention there. {Porter v. Heydock, 6 Vt. 374;
Jennison v. Hapgood, 10 Pick. 77; Parsons v. LymaUy 20
N. Y. 103; Stokdy's Estate, 19 Pa. St. 476.) An ancillary
administrator cannot recover in an action against a debtor of
the intestate not resident in the jurisdiction in which he acts,
even though no other administrator has been appointed {Abbott
V. Oobum, 28 Vt. 663, 67 Am. Dec. 735), but an administra-
tor appointed in the jurisdiction of the decedent's domicile
may maintain an action against any debtor of his intestate
wherever resident, when found within the jurisdiction of his
aoDointment. An administrator of the intestate's domicile
may appoint an attorney or agent to receive and discharge a
debt due to his intestate in any jurisdiction, certainly, where
there are no local creditors requiring ancillary administration.
( United Staies v. Coxe, 18 How. 100.) Except as the ancillary
administration conserves the interest of *^ home creditors" it is
subsidiary to the principal administration. They are, in law
even, very close to each other; the domiciliary administrator, in
a way, being the superior of the ancillary administrator by
virtue of his interest in tlie residuum of the estate. However,
the law does not hold them in privity any more than it does
other 2)ersous who are not privies in blood, privies in law, or
privies by estate. But we have shown other persons may, by
their acts, so connect themselves that both are bound by a
14 Mont.] Braithwaitb v. Harvby. 211
judgment against one. To the person thus bound and not a
party to the action the judgment stands as an equitable estoppel.
Though a volunteer he has submitted the matter involved to an
adjudication in the name of another. . Such is the case at bar.
The court erred in striking out paragraph twenty-two of plain-
tiff's complaint, in this, that defendant alleges acknowledgments
showing a continuing contract and new promises in writing. If
these new promises, admissions, and acknowledgments were suffi-
ciently specific, although made to a third person or to a stranger,
and it appears that they were intended to be communicated,
they toll tiie statute, and for that reason are material allegations.
Section 53 of the Code of Civil Procedure, provides; "No
acknowledgment shall be sufficient evidence of a new or con-
tinuing contract whereby to take the case out of the operation
of this act, unless the same is contained in some writing signed
by the parties to be charged thereby, but this act shall not alter
the effect of any payment of principal or interest.'^ An
acknowledgment of indebtedness made by a debtor to a stranger
with the intent that it shall be communicated to and influence
the creditor, is as effectual to defeat the statute of limitations
as if made to the creditor or his authorized agent. (De Freest
V. Warner, 98 N. Y. 217; 50 Am. Kep. 657.) It is alleged
that said promise and acknowledgment were made in relation to
the claim in question in this action, that it was made to J. D.
Biggert, who is alleged to have been acting on behalf of per-
sons interested in the said claim, viz: the interveners. Braith-
waite was also interested in the claim; he could maintain the
action in his own name for the benefit of himself and the inter-
veners as the party with whom and in whose name the con-
tract was made for the benefit of another, the trustee of an
express trust. {Braitliwaite v. Power, 1 N. Dak. 455, and
cases cited; Code Civ. Proc. § 6.) The law would presume
that an acknowledgment made to the agent of the parties in
interest, or any of them, was intended to be communicated.
In the case at bar the acknowledgments were communicated.
Tiiey tolled the statute of limitations. The allegations con-
tained in the twenty-second paragraph of the complaint are
plenary evidence of acknowledgments and new promises, and
they present material facts to be submitted to the jury.
212 Bbaithwaitb v. Hahvby. [March T,. 1894
Whether uew promises related to the debt iu question is for
the jury, and uo evidence is to be rejected on that issue. {Cook
V. Martin, 29 Conn. 63; Buckingham v. Smithy 23 Conn, 453;
Shipley v. Shitting, 66 Md. 558; McCormick v. Brovm, 36 Cal.
180; 95 Am. Dec. 170; Farrell v. Palmer, 36 Cal. 187; Schmidt
V. Pfau, 114 111. 494; Porter v. Ulam, 25 CaL 292; 85 Am.
Dec. 132.)
Sirevell & Porter, for Respondent.
I. A judgment rendered in a foreign state or jurisdiction
against an administrator in such foreign state or jurisdiction is
utterly without validity or efifect as a claim against an admin*
istrator of the estate of the same deceased person in this state.
In such case there is neither privity of law nor estate. This
doctrine has been so often and so unrelentingly h^ld 'that but
few leading cases need be cited to sustain it here. {Stacy v.
Thraslier, 6 How. 44; Aspden v. Nixon, 4 How. 467; Free-
man on Judgment 3d ed.^ § 163; McLean v. Meek, 18 How.
16; Stacy v. Thrasher, 6 How. 44; Brodie v. Bickley, 2 Rawle,
431; Story's Conflict of Laws, 739.)
II. But the appellant says the defendant in this action
appeared in the court in North Dakota, employed counsel and
did other things, and is therefore estopped to deny that a judg-
ment rendered against a foreign administrator is valid against
another administrator in this state. To this point the appel*
lant cites a number of authorities which are no doubt correct
law in cases to which they apply, but tliey have not the
remotest application to the case at hand. It is no doubt true
that iu some oases parties in direct privity may bind Uiemsel ves
by contesting in litigation where they are not directly parties,
but that is not this case. {Stacy v. Tlirasher, 6 How. 44;
Johnson v. Potoers, 139 U. S. 157.) It is urged by appellant
that by defending in the suit in Dakota, this administrator
and defendant in this case validated a judgment in a foreign
jurisdiction so as to make it binding as evidence of debt against
assets of the deceased in this state. So far from that position
having a semblance of authority to sustain it, it will be observed
in the case last cited the supreme court says such judgment
has no validity as evidence of debt, even though the judgment
14 Mont.] Braithwaitb v. Harvey. 215
be agaiDst the same admiuistrator who is sought to be charged
ill a jurisdiction foreign to the one where the judgment wa£^
rendered. If this judgment had been given in the state of
North Dakota^ in favor of the plaintiff in this action and against
this ideutical defendant as administrator^ it would have had no
validity to bind the estate of the deceased in this state. With
how little show of reason can it be urged then that any acts of
the defendant in defending a suit in a foreign jurisdiction
would bind the assets of the deceased in this state. It would
not have that effect if the judgment had been against this
defendant instead of one having no privity with him. In dis-
senting from the majority opinion in Johnson v. Powers, 139
U. S., Justice Brown, at page 164, says: ''It is true that these
proceedings are not binding npon others than parties and
privies, and if this were an action against the administrator of
the same estate in the state of New York, it is conceded at
once that under the case of Stacy v. Thrasher, 6 How. 44, the
action would not lie." (See, also, Woerner's American Law
of Administration, 360.)
III. Appellant discusses at considerable length in his brief
the relations of ancillary or auxiliary administration to admin-
istration at the domicile. Suppose we should admit that aux-
iliary and domiciliary administration are the same; suppose we
should go still further and admit that a judgment actually
existed in &vor of plaintiff and against this defendant as
administrator, in a foreign jurisdiction, would such admissions
confer validity upon such judgment to affect assets of the
deceased in this jurisdiction? There is not an authority to be
found, so far as we know, that such would be the effect of his
judgment.
IV. But the appellant avers that he had alleged facts in
his complaint sufficient to show that '' Mr. Leighton in his life-
time admitted the indebtedness and acknowledged his liability
thereunder." Suppose again we should admit that as a fact,
which is not true, but if it were, that would not release a stat-
ute of bar. Where is the actual unqualified promise to pay
which must always exist to waive the statute? In the letters
signed by Mr. Leighton in his lifetime there is scarcely suf-
ficient to make even a shadow of approach to the legal require-
214 Braithwaitb v. Harvey. [March T., 1894
ment to take a barred claim from under the statute of bar.
Of course appellaut can saj the contrary in his complaint, but
when he presents^ as he must present, the identical promise
upon which he relies, the court will judge the matter from ,
that, and not from the mere assertion of the pleader. What
is pleaded falsely, either as to fact or inference, can never be
well pleaded. It will be remembered that at the time these
alleged promises were made by the deceased an action was
pending in the court in North Dakota against him and the
two Powers and one Akin. '^ A new promise may arise out
of such facts as identify the debt, the subject of the promise,
with such certainty as will clearly determine its character, fix
the amount due, and show a present unqualified willingness
and intention to pay it at the time acted upon and acceded
to by the creditor.'' {Wachter v. AU}ee, 80 111. 47.) Did
th^se parties or any one of them at the time act upon this pre-
tended promise, abate the suit, or accept any promise or change
their conduct to the extent of one hair? Did the promise fix
any amount due or even intimate any amount which was due
to any one? The acknowledgment must be a direct, distinct,
unqualified admission of the debt which the party is liable and
willing to pay. {McOormick v. Brown, 36 Cal. 185; 95 Am.
Dec. 170; Biddd v. Brisszolara, 64 Cal. 355; Bell v. Motiison,
1 Pet. 351.)
V. And finally, what right has this plaintiff to maintain
this action ? Our statute in its very inception provides that
''every action shall be prosecuted in the names of the real party
in interest except as otherwise provided in the act itself.''
(Code Civ. Proa, § 4.) But appellant alleges Braithwaite is
trustee of an express trust and is therefore entitled under sec-
tion 6 of the same code to bring this action. Braithwaite's
right to maintain the former suit it seems was challenged in a
foreign state. Under the contract which was set up between
the interveners and Braithwaite, the court decided that be was
a trustee and therefore, under a statute not dissimilar to ours,
could maintain the action as such trustee. But all that, and
whatever there was in the account or contract was merged into
the judgment which was recovered in that action. (SeasioM v.
Johnson, 95 U. S. 347.) We are aware of cases which hold
14 Mont.] Braithwaitb v. Haevby. 215
that a creditor of a copartnership may proceed against the
assets of a deceased partner without exhausting his resources
against the surviving partners^ but we are not aware of any
case which holds that where a judgment was taken in a joint
action^ as in this case, the whole amount can be claimed from
a deceased obligor's estate^ and the other judgment debtors be
passed by.
Pemberton, C. J.— Through this action plaintiff seeks to
recover judgment against Phillip Harvey, administrator of
Joseph Leighton, deceased, on a demand for the payment of
five thousand five hundred and thirty-five dollars and ninety-
three cents, and interest, arising on a contract hereinafter
referred to. The claim was presented to, and disallowed by,
the administrator of the decedent. This action was then
brought in the district court thereon. The questions involved
in this appeal arise on the action of the trial court in striking
from the complaint portions thereof, on motion of defendant,
and thereafter sustaining demurrer interposed to the com-
plaint, on the ground that it shows no sufficient facts to con-
stitute a cause of action, because it appears on the face thereof
that the cause of action is barred by the statute of limitations.
It appears that in 1880 a contract for the transportation of
certain freight from Bismarck, Dakota, via the Missouri river
by boat to Fort Buford, was made between plaintiff, as trans-
porter, and decedent and several others, as consignors. The
contract was made and evidenced by the following letter:
"Bismarck, D. T., Nov. 3, 1880.
'^Capt Wm. Braithwaite^ Steamer * Eclipse J
"Dear Sir: On your accepting this proposition, will agree
to give you one dollar and seventy-five cents ($1.75) per one
hundred pounds, from Bismarck to Fort Buford, on freight
up to the amount of one hundred tons, and on all over and
above one hundred tons, one dollar and fifty cents ($1.50) per
one hundred pounds. Receipts to be equal to 100 tons to
Buford. Freight to be pajd on receipt of bills of lading by
drafb at ten days' sight on Jos. Leighton, St. Paul.
" Yours, etc. J. C. Barr,
"Agt. for H. C. Akin, Jos. Leighton & Benton Line."
216 Braithwaitb v. Harvby. [March T., 1894
The freight meutioned waa transported^ as appears, with
some delays and other incidents in relation to the fulfillment
of the contract, which are not necessary to recite in this deter-
mination, and thereby the daim for the enforcement of which
this suit is prosecuted accrued in said year.
The complaint not only pleads this contract, but alleges that
on the twelfth day of November, 1887, this plaintiff instituted
a suit in the district court of the then territory of Dakota, in
and for the county of Burleigh, now in the state of North
Dakota, against Joseph Leighton, and several other parties
alleged to be interested with him, to recover the amount
alleged to be due plaintiff thereon. This suit was by attach-
ment, and the property of Joseph Leighton in said territory
at the time was seized thereunder. All the proceedings in
said suit, and the history thereof, are set out in the complaint^
or referred to as exhibits, and made part thereof, including
the judgment of the district court, and the appeal therefrom ta
the supreme court of said territory, and the judgment of said
supreme court. In these allegations the death of Joseph
Leighton is shown to have occurred on the second day of Sep-
tember, 1888, at Custer county, in the state of Montana, where
he resided. Joseph Leighton was never personally served
with process in the Dakota suit. After his death one Harvey
Harris was appointed administrator of his estate in Dakota
territory, and appeared as such, and defended such suit It
seems, too, that, pending said suit in Dakota, certain other
parties were permitted to intervene therein. These matters
are particularly set out in paragraphs 17, 19, 20, 21, 22, and
23 of the complaint, and are as follows:
"17. That thereafter, on or about the eleventh day of Feb-
ruary, 1889, one Harvey Harris, of said Burleigh county, was
duly appointed administrator of the estate of said Joseph
Leighton, deceased, by the then probate court of said Bur-
leigh county, territory of Dakota, the same being a court of
general jurisdiction in probate matters, and having and pos-
sessing jurisdiction for the appointment of the said Harris, as
hereinbefore shown; that, after qualifying under said appoint-
ment, in accordance with the laws of the then territory of
Dakota, now state of North Dakota, the said Harris entered
14 Mont.] Braithwaitb v. Harvby. 217
upon the discharge of his duties as such administrator of the
estate of said Joseph Leighton, deceased^ in said Burleigh
county and territory, and continued in the discharge of said
duties as such administrator, until the said estate in said Bur-
leigh county, then territory of Dakota, now state of North
Dakota, was fully administered/'
"19. That thereafter, on or about the fifteenth day of March,
1889, by stipulation, a copy of which is hereto attached and
' referred to, and found upon page 46 of Exhibit *1/ and by an
order of said district court, in which said action was pending,
a copy of which order is hereto attached and referred to, and
found upon pages 47 and 48 of Exhibit ^ 1/ hereto attached,
said Harvey Harris, as administrator of the estate of Joseph
Leighton, deceased, came into said court, and entered his
appearance in said action, and as a party defendant therein,
and as the administrator and successor of the said Joseph
Leighton, deceased, and that said action was revived and con-
tinued against said Harris, as said administrator, and there-
afler proceeded with said Harris as said administrator of said
Joseph Leighton, deceased, as a party defendant.
*• 20. That on or about the twenty-third day of Febrnaryy
1889, William Rea and George F. Robinson, copartners as
Robinson, Rea & Co., J. C. Kay and Woodruff* McKnighty
copartners as Kay, McKnight & Co., A. W. Cadman as A. W.
Cadman & Co., and Joseph McC. Biggert, applied to said court
to intervene in said action, and by said court were permitted
so to do, and so did, and thereafter said action proceeded with
said interveners as parties thereto; and that a copy of the
order of said court permitting said intervention is hereto
attached and referred to, and found on pages 51 to 62 of
Exhibit * 1,' hereto attached; and said interveners served and
filed their complaint in intervention in said action, and a copy
of the same is hereto attached, and referred to and found upon
pages 63 to 60 of said Exhibit * 1/ hereto attached, and that
thereafter, on or about the twenty-second day of March, 1889,.
the plaintiff served and filed his answer to said interveners'
complaint, and a copy of the same is hereto attached, and
referred to, and made a part hereof, and found upon pages 61
to 66 of Exhibit * 1/ hereto attached.
218 Beaithwaite v. Harvby. [March T., 1894
'^21. That the defendant herein, as the general administrator
of the estate of said Joseph Leighton, deceased, immediately
upon bis appointment and qualification as such, as hereinbefore
shown, was notified of the pendency of said action in said
Burleigh county, territory of Dakota, now state of North
Dakota, and of the plaintiff's claim therein, and thereafler said
action proceeded to trial in said district court, and the defend-
ant berein tbe same contested and defended in the name of
said Harvey Harris as administrator, as hereinbefore shown,
and therefore invoked the jurisdiction and determination of
said court, employed counsel, produced evidence, and the issues
of said contest and defense prosecuted to a final determination;
and such proceedings were bad in said action from time to time
by the direction and co-operation of the defendant herein, that
on the twenty-eighth day of August, 1891, final judgment was
rendered and entered in said action, in favor of the plaintiff
and the said interveners, and against the defendant Harvey
Harris, as administrator of the estate of said Joseph Leighton^
deceased, to be paid in due course of administration, and the
other defendants in said action, except Akin, for the sum of
seven thousand three hundred and thirty-five dollars and
eighty-five cents, and for certain costs of said action, amount-
ing to the sum of two hundred and fifty dollars and thirty-six
cents, and that said judgment is in full force and unreversed^
and that a copy thereof is hereto attached, and referred to as,
and made a part of, this allegation, and found upon pages 73
and 89 of Exhibit ' 1,' hereto attached.
^^22. That the said Joseph Leighton, in his lifetime, in writ-
ing, signed by him, the said Joseph Leighton, and on the
twenty-first day of July, 1888, acknowledged the said indebted-
ness under the said contract for the work, labor, and service
performed under and by virtue of said contract of affreight-
ment by this plaintiff, as aforesaid, which acknowledgment was
in words and figures as follows, that ia to say:
"'Joseph Leighton, E. B. Weirick,
" * President. Cashier.
« ^ W. B. Jordan, H. B. Wiley,
« ' Vice Pres't. Asst Cashier.
"* 2,752 FiBST National Bank.
"'Capital |S0,000
"'Surplus and undivided profits 65,000
14 Mont.] Braithwaitb v. Harvey. 219
"'Miles City, Montana, 7/21, 1888.
« *J. D. Biggert, PUisburg,
" 'Dear Sir: Nothing from you yet If I don't hear soon,
I will go to Bismarck, and tender amt due, as I don't want to
be bothered any more. Whatever is due is ready, as it has
been for the last seven years, whenever I can safely pay either
you or Braithwaite. Yours truly, J. Leighton.'
''That the sum owing to plaintiff, as shown by the allega-
tions hereinbefore contained, was the amount, and not other-
wise, referred to in said letter; and the Braithwaite mentioned
therein is this plaintiff, and none other; and the said J. D.
Biggert, claiming to act and acting on behalf of said inter*
venors, was not a stranger to the transaction. That on divers
and sundry times the said Joseph Leighton acknowledged said
indebtedness, to wit, on the twenty-seventh day of June, 1888,
on the twenty-second day of July, 1888, and on the fifth day
of August, 1888, as will more fully appear from pages 74 to 77
of Exhibit ^ 1,' hereto annexed, and made a part hereof. That
again, on the first day of August, 1888, the said Joseph Leigh-^
ton, by one George T. Webster, his attorney, duly authorized
80 to do, acknowledged under oath the making of the contract of
affreightment hereinbefore mentioned, and the voyage, as will
more fully appear from pages 42 to 46 of said Exhibit ^ 1,' hereto
annexed, and made and referred to as a part hereof.
^'23. That there has been paid plaintiff, and applied in
liquidation of a part of the amount so due plaititiff, as afore*
said, from the said Harvey Harris, as administrator of the
estate of Joseph Leighton, deceased, the sum of four hundred
and thirteen and 92-100 (413.92) dollars, said payment being
made on the thirty-first day of March, 1892. That theretofore,
and the twenty-eighth day of November, 1891, there was paid
on account of said indebtedness owing to this plaintiff the
further sum of two thousand dollars ($2,000), which sum was
paid for and in behalf of the said Joseph Leighton by Kelly
& Jordan, who had heretofore obligated themselves to pay the
same for and in behalf of the said Joseph Leighton. And that
the estate of the said deceased in the territory of Dakota, now
state of North Dakota, has been fully administered upon, set-
tled, and exhausted, and said administrator's final accounts
220 Braithwaitb v. Harvey. [March T., 1894
preseuted to the couuty court iu aud for said Burleigh county,
state of North Dakota, the same having exclusive jurisdiction
therein, aud by said court passed, allowed, and approved, aud
said administrator discharged from said trust, and that a copy
of the order of said county court passing, allowing, and approv-
ing said final account is hereto attached, and referred to and
made a part hereof, and found on pages 92 to 94 of Exhibit
'1,' hereto attached."
On motion of the defendant the court struck these para-
graphs from the complaint, on the ground that they were
irrelevant and redundant This action of the court is assigned
as error. To determine this question it is necessary to deter-
mine the force and efiect of a judgment against an adminis-
trator in one state against an administrator of the same estate
in another state.
In Johnson v. Powers, 139 U. S. 166, this subject is
thoroughly discussed, and the authorities are collected and
cited. In this case Mr. Justice Gray, delivering the opinion
of the court, says:
^'A judgment m rem binds only the property within the
control of the court which rendered it, and a judgment in per--
sonam binds only the parties to that judgment and those in
privity with them.
'^ A j udgment recovered against the ad ministrator of a deceased
person in one state is no evidence of debt in a subsequent suit
by the same plaintiff in another state, either against an admin-
istrator, whether the same or a different person appointed there,
or against any other person having assets of the deceased.''
(Aspden v. Nixon, 4 How. 467; Stacy v. Thrasher , 6 How. 44;
McLean v. Meek, 18 How. 16; Low v. BarUett, 8 Allen, 269.)
In Stacy v. Thrasher, 6 How. 44, in which a judgment,
recovered in one state against an administrator appointed in
that state, upon an alleged debt of the intestate, was held to be
incompetent evidence of the debt in a suit brought by the same
plaintiff in the circuit court of the United States held within
another state against an administrator there appointed of the
same intestate, the reasons given by Mr. Justice Grier have so
strong a bearing on the case before us, and on the argument
of the appellant, as to be worth quoting from:
14 MoutJ Braithwaitb v. Harvky. 221
"The administrator receives bis autliority from the ordi-
nary or other officer of the government where the goods of the
intestate are situate. But coming into such possession by suc-
cession to the intestate, and encumbered with the duty to pay
his debts^ he is considered in law as in privity with him, and
therefore bound or estopped by a judgment against him. Yet
his representation of his intestate is a qualified one, and extends
not beyond the assets of which the ordinary had jurisdiction/^
Stacy v. DirasheTj 6 How. 63.
In answering the objection that to apply these principles to
a judgment obtained in another state of the union would be to
deny it the faith and credit, and the effect, to which it was
entitled by the constitution and laws of the United States, he
observed that it was evidence, and conclusive by way of estop-
pel, only between the same parties, or their privies, or on the
same subject matter when the proceeding was in rem; and that
the parties to the judgments in question were not the same;
neither were their privies, in blood, in law, or by estate; and
proceeded as follows:
"An administrator under grant of administration in one
state stands in none of these relations to an administrator in
another. Each is privy to the testator, and would be estopped
by a judgment against him; but they have no privity with
each other, in law or in estate. They receive their authority
from different sovereignties, and over different property. The
authority of each is paramount to the other. Each is account-
able to the ordinary from whom he receives his authority.
Nor does the one come by succession to the other into the trust
of the same property, encumbered by the same debts.'' {^acy
V. Thrash^, 6 How. 59, 60.)
"It is for those who assert this privity to show wherein it
lies, and the argument for it seems to be this: That the judg-
ment against the adiAinistrator is against the estate of the
intestate, and that his estate, wheresoever situate, is liable to
pay his debts. Therefore the plaintiff, having once established
his daim against the estate by the judgment of a court, should
not be called on to make proof of it again. This argument
assumes that the judgment is in rem, and not in persoimm^ or
that the estate has a sort of corporate entity and unity. But
222 Bbaithwaitb v. Harvey, [March T., 1894
that is not true, either in fact or in l^al construction. The
judgment is against the person of the administrator, that he
shall pay the debt of the intestate out of the funds committed
to his care. If there be another administrator in another state,
liable to pay the same debt, he maybe subjected to a like
judgment upon the same demand, but the assets in his hands
cannot be affected by a judgment to which he is personally a
stranger. The laws and courts of a state can only affect per-
sons and things within their jurisdiction. Consequently, botli
as to the administrator and the property confided to him, a
judgment in another state is res inter alios ada* It cannot
even be prima fade evidence of a debt, for, if it have any effect
at all, it must be as a judgment, and operate by way of estop-
pel.'' (Stocy V. Uiraslier, 6 How. 60, 61.)
In Low V. BarUeit, 8 Allen, 269, following the decisions of
this court, it was held that a judgment allowing a claim against
the estate of a deceased person in Vermont, under statutes simi-
lar to those of Michigan, was not competent evidence of debt
in a suit in equity brought in Massachusetts by the same plain-
tiff against an executor appointed there, and against legatees
who had received money from him; the court saying: ^The
judgment in Vermont was in no sense a judgment against
them, nor against the property which they had received from
the executor.* (8 Allen, 266.)
If the judgment recovered in Dakota against the adminis-
trator there is of no binding force and effect, not even effectual
as evidence of a debt, against the administrator in this state, as
is held by the authority just quoted, then the pleading of the
same, as is done in this case, could subserve no valuable pur-
pose, and it cannot be properly contended that the court erred
in striking the same, and all reference tliereto, from the com-
plaint. Appellant contends that it was necessary to plead
such judgment and proceedings in order to show that the
demand sued on here had been given credit for the amount
realized under the Dakota judgment. We think this position
untenable. Such credit could have been given in any suit on
the demand in litigation.
The appellant further contends that it was necessary to plead
the Dakota judgment and proceedings, in order to show that
14 Mont.] Braithwaitb v. Harvey. 223
the Montana administrator, the defendant here is estopped
from disputing the claim sned on by reason of his having
taken part, as alleged in paragraph 21, stricken from the com-
plaint, in defending said Dakota suit in the name of Harvey
Harris, administrator there. We think this contention can-
not be maintained. There was no privity between these two
administrators. This defendant had no authority to act or
bind the estate outside of the jurisdiction of his own state or
appointment.'' (See Johnson V. Powers, 139 U. S. 166, and
authorities cited therein. 1 Woerner's American Law of Ad-
ministration, § 160, p. 362.)
Appellant contends that, whatever force and effect the court
might give the Dakota judgment and proceedings set out la
the complaint, and the action of the court therein, still he has
a cause of action independent thereof, by reason of the alleged
new promise in writing of Leighton in his lifetime, pleaded ia
paragraph 22 of the complaint, which was stricken out by
the court. After striking out said parts of the complaint,
the court sustained defendant's demurrer thereto on the
ground that the demand sued on was barred by the statute of
limitations. This action of the court is especially attacked
and complained of by appellant, as he says the court, by strik-
ing out paragraph 22 of the complaint, left the same demur-
rable, as said paragraph set up, as claimed, a new promise,
made by Leighton in his lifetime, to pay the demand sued
on. While, perhaps, it would have been more appropriate to
attack this particular paragraph of the complaint by demurrer,
yet whether prejudicial error was committed by the court iu
its action we will consider later on. Does paragraph -22
of the complaint contain and plead such a new promise to
pay the demand sued on as will relieve it from the bar of the
statute of limitations? It is conceded that the demand is barred
unless the bar is removed by the new promise of Leighton in
his lifetime, set out in said paragraph 22. We will consider
this question as if said paragraph had not been stricken from
the complaint. The written new promise of Leighton relied
on to remove the bar of the statute of limitations in this case
is as follows:
224 Braithwaitb v. Hauvey. [March T., 1894
"Miles Cixy, Montana, 7/21, 1888.
"J. D. Biggeiiy PiUsburg,
" Deab Sir: Nothing from you yet. If I don't hear soon,
I will go to Bismarck, and tender amt. due, as I don't want
to be bothered any more. Whatever is due is ready, as it has
been for the last 7 years, whenever I can safely pay either you
or Braithwaite. Yours truly,
'* J. Leighton."
The appellant relies on two other written instruments, signed
by said Leighton, to relieve this demand from the bar of said
statute. These instruments are as follows:
"Miles City, Montana, 6/27, 1888.
^John Biggeti, PiUAurg,
" Dear Sir: Have just returned, and have been looking over
matters. I am not satisfied about the settlement of Eclipse
trip. Please write me your understanding of it. Also, if I
settle with your folks, if they will see me clear of Braithwaite,
&c. Write me at once. Yours truly,
'* J. Leighton."
"Miles City, Montana, 7/22, 1888.
*'J. D. Biggei't, Pittsburg,
"Dear Sir: Yours, with check, at hand. I am anxious to
see Joe better. He came out and figured up books, and saw
that we had a loss for 1, and went away satisfied, but we will
write him after I get his letter. I cannot wait long for your
decision. You know I am very ill, and I must have this thing
off my hands. I want to help you in the matter, but the suit
has got to be attended to. Very truly,
"J. Leighton.
"Why don't you write me about your letter of April, '82?"
These last two instruments are referred to as exhibits, and
the first instrument is set out in full in said paragraph 22.
Said first written instrument or letter is especially relied on by
appellant as constituting such an acknowledgment of the
demand sued on, and new promise to pay the same, as to take
the debt out of the operation of the statute of limitations.
In Bell V. Morrison, 1 Pet. 352, a case involving the doc-
trine under discussion^ Mr. Justice Story, speaking for the
14 Mont.] Bbaithwaits t;. Habvxt. 225
ooDrt^ says: '' To remove the bar of the statute of limitations
by a new promise it mast be determinate and unequivocal;
and, if the new promise is to be raised by implication of law
from an acknowledgment, there must be an unqualified
acknowledgment of a subsisting debt which the party is liable
and willing to pay/'
In Biddea v. Brizzolara, 56 Cal. 382, the court say: "If
there be no express promise, but a promise is to be raised by
^nplication of law from the acknowledgment of the party, such
an acknowledgment ought to contain an unqualified and direct
admission of a previous subsisting debt, which the party is lia-
ble and willing to pay. If there be accompanying drcum-'
dancei which repd the promise or intention to pay; if the
expressions be equivocal, vague, and undeterminate, leading to
no certain conclusion, but at best to probable inferences, which
may afiect difiTerent minds in different ways, we think they
ought not to go to a jury as evidence of a new promise to
revive the cause of action. Mr. Justice Story, Bell v. Morri'
son, 1 Pet. 362.'' "An acknowledgment of the debt to take
the case out of the statute of limitations must be clear and
unambiguous, and must recognize and be directed to the par-
ticular debt and amount to an unqualified admission that it is
due and unpaid." (5 Gen. Dig., U. S., § 526, p. 1399, and
authorities ther^ cited.
In McCbrmick v. Broum, 36 Cal. 185, 95 Am. Dec 170, the
court say: " The acknowledgment must be a direct, distinct,
unqualified admission of the debt which the party is liable and
willing to pay."
We think it cannot be contended that the two writings
claimed to be acknowledgments and new promises, dated
respectively 6/27, 1888, and 7/22, 1888, and set out above,
contain any such acknowledgments of this debt, or new prom-
ise to pay the same, as to relieve the demand sued on from the
bar of the statute. The instrument dated 7/22, 1888, says
nothing about this demand. The instrument dated 6/27, 1888,
shows that Leighton is not satisfied about the settlement of
the Edipse trip, and asks, ^* If I [Leighton] settle with your
folks, if they will see me dear of firaithwaite," etc. If there
is any promise in this, is it not conditional ? This certainly does
Vox. 2IV.— 15
226 Braithwaitb v. Harvby. [March T., 1894
uot come within the requirements to take it out of the opera-
ation of the statute, even if the instruments were otherwise
definite and certain, in which respect it seems fatally defective.
Now, as to the first instrument or letter of Leighton, chiefly
relied on to take this case out of the statute of limitations, this
letter, like the others, is written to one J. D. Biggert, at Pitts-
burg. In this letter Leighton seems to complain of Biggert's
delay. He says if he does not hear soon, he will go to Bis-
marck, and tender amount due, as he does not want to be
bothered any more. Then he says, " Whatever is due is ready,
as it has been for 7 years, whenever I can safely pay either
you or Braithwaite." Now, what are the legitimate inferences
to be drawn from this letter and the others? 1. That Leigh-
ton was ill, and was anxious to settle this matter in his life-
time; 2. That he was willing, and had been for seven years,
te pay whatever was due from him, when the amount could be
ascertained, and he should know to whom he could safely pay
such amount. It is very evident that there was a dispute as
to what was due, and to whom it was payable. Leighton
seemed anxious to pay when these two important matters were
settled. His willingness to pay was evidently conditioned
upon the ascertainment of the amount due, and when he was
made secure in paying either to the parties represented by Big-
gert or to Braithwaite. It does not appear that either of these
things was ever done, or that Leighton's letter and terms
therein stated were ever accepted or acted upon in any manner
by plaintiff or any other party connected with this matter.
These conditions should have been shown to have been per-
formed by plaintiff before he seeks the benefit of the allied
new promise to pay. {Bell v. Morrison, 1 Pet. 361.) This is
not shown to have been done. But plaintiff seems to have
disregarded the terms, conditions, and overtures of settlement
contained in this alleged new promise, and now, after the deatli
of Leighton, seek to avail himself of the benefits thereof, as if
such conditions were immaterial. We think no other conclu-
sion can be fairly reached from a pro2)er construction of all
these letters and alleged new promises to pay. In none of
these letters is there an unconditional, definite, certain, and
unqualified acknowledgment of this demand, or any certain
14 Mont.] MuTH V. Erwin. 227
demand and promise to pay the same. We are therefore of the
opinion that these written instruments or letters of Leighton
are in8u£5cient to remove the bar of the statute of limitations.
So holding, we see no error in the action of the court in hold-
ing the complaint bad on demurrer, or that any substantial
right of appellant was prejudiced by striking said paragraph
22 from the complaint, as, in our view, the complaint did not^
in any event, state facts sufficient to authorize a recovery, for
the reason that the demand sued on is barred by the statute of
this state.
We are of the opinion that the judgment should be affirmed,
and it is so ordered.
Affirmed.
Habwood and De Witt, J J., concur.
MUTH, Bespokdent, v. ERWIN, AppBLULirr.
(Babmiiied September 11, 1888. Bedded March 19, 1884.1
ATSMxmMMMT-^Amendment to affidavU.—li Is not error for the trial court to per-
mit an attachment plaintiff to amend his complaint and afBdayit on attach-
ment, withont an affidavit showing ground therefor, and pending a motion to
dIsaolTe, wbare 4he amendment doea not alfeot the anhstantial zighto of %be
parties.
Appeal from Sixth Judicial Disbrict, Park OowUiy.
Action on promissory note. Defendant's motion to dis-
solve attachment denied bj Henby, J. Affirmed.
OompbeU & Starh^ for Appellant.
Bawxge A Day^ for Respondent.
Habwood, J. — ^Respond^t, as receiver of the firm of
Greenhood, Bohn & Co., brought this action against defend-
ant to enforce payment of a promissory note, and sued out an
attachment writ in the action, by virtue of which it appears
certiun property was seized. Thereafter, motion was made by
the defendant to quash the attachment on the ground that it
did not appear by averment in the complaint or affidavit for
228 Merbitt v. McNally. [March T., 1894
attachment, that the receiver was duly authorized by the court
appointing him, to bring this action for the enforcement of
said debt Thereupon, plaintiff, by permission of court,
amended the complaint and affidavit by inserting therein such
averment, and thereafter the court overruled the motion to
dissolve the attachment. Defendant excepted to the action of
the court in allowing such amendment pending the ruling on
the motion to dissolve the attachment, and overruling such
motion, because the amendment had supplied the defect to
which the motion was pointed Such exception raises the
only question presented on this appeal.
The ruling of the trial court, excepted to, undoubtedly con-
forms to the intendment of the provisions of the Code of Civil
Procedure, as heretofore held by this court (Joaephi v. Mady
Qoihing Oo.y 13 Mont 196.) The defect amended was not
one which affected the merits of the demand or defense thereto,
and would scarcely need an affidavit to lay a foundation for
such amendment Moreover, an omission to require an affi-
davit to show ground for an amendment not affecting the sub-
stantial rights of the parties would not justify the reversal of
the judgment (Code Civ. Proc., § 119.) The order of the
trial court overruling defendant's motion to dissolve the
aftachment and the judgment will therefore be affirmed.
Affirmed.
Pembebtoit, C. J.^ and De Witt^ J.^ concur.
MERBITTi Appellant^ v. MoNALLY et au, Bebponb-
ENTB.
[Sabmitted Jane avisos. I>eoidfidlCaMh 19,18M.]
NaauGSiTGi— BuiUiny in$peetor^OUy ordinanc$,^k oiiy ordinuioe reqniiing a
building inapeotor to inspeot buildings in oonne of oonstniotion tnd to *<aee*
that they are being oonstrncted as provided by the ordinance imposes upon
him the daty of enforcing from bnilders obedience to its requirements, and
for a neglect of this duty he is liable in damages to one who sustains injury by
the fall of a building constructed in a careless and grossly negligent manner,
Baio— Pteodiny— 2>«/enss.— In an action for damages against a city oiBoer for
negligenoe of a duty prescribed by ordinance, an objection to the complaint
14 Mont.] Mbrritt v. McNally. 229
that it does not ihow that the officer had the meani of enforoing the proyiBions
of the ordinanoe will not be lUBtained on demorier, bat the Boffioieney of BOOh
mat of meani •• a defense may be determined upon an answer.
Appeal from First Judicial Didrid, Leuns and Garhe Oomdy.
Action for damages. Judgment was rendered for defend-
ant below by Hunt^ J., on demurrer. Reversed.
Statement of the case by Mr. Justice Db Wnr:
This action is against the defendant McNaily as building
inspector, and against his sureties upon his official bond as such
inspector. Separate demurrers of MoNally and his sureties,
respectively, were sustained. Judgment was thereupon entered
for defendants, from which the plaintiff appeals. The question
being whether the complaint sets forth a cause of action, it will
be necessary to recite the principal points in that pleading,
which are as follows: The city of Helena is a municipal cor-
poration. This city, under the acts of the legislative assembly,
has power to regulate, by ordinance, the construction of build-
ings within the dty. The city council passed an ordinance
entitled ^* Building,'' known as chapter 10 of the Ordinances of
the City of Helena. The whole ordinance, which is a lengthy
one, is pleaded in the complaint. Section 1 of the ordinance
provides for the appointment of an inspector of buildings, who
shall be a practical builder, and shall hold his office for the term
of one year, eta The defendant McNally, prior to the acta
complained of in the complaint, was duly appointed building
inspector, and was qualified to act as such at the time men-
tioned in the complaint. That ordinance further provides:
'' When any person or persons, or corporation, shall be desirous
of erecting, repairing, changing, or altering any building,
buildings, or structure within the limits of the city of Helena,
he or they shall make application at the office of the building
inspector for a permit for that purpose, and shall furnish said
inspector with a written statement of the proposed location,
dimensions, and manner of construction of the proposed build-
ing, buildings, or structure, and the materials to be used, and a
plan of the plumbing, draining, and ventilation, together with
plans and specifications of the proposed building, buildings, or
230 Mbrritt v. McNally. [March T., 1894
structure^ which shall be delivered to said building inspector,
and remain in his custody a sufficient length of time to allow
the necessary examination to be made of the same, and, if
required by the inspector, a copy of said plans and specifica-
tions shall be filed in the office of said inspector of buildings.
After which, if it shall appear to said inspector that the laws
and ordinances of the city are complied with, he shall give the
permit asked for, upon the payment of the following prescribed
fees: . . • • Blank forms for the detailed statement as herein
required may be obtained at the office of the inspector of
buildings for the applicants to fill out^ describing location of
proposed structure, number and height of stories, size of joists,
and distance apart, dimensions of supporting ironwork, for
what purpose the building, buildings, or structure is designed,
and such other information applicable to the proposed improve-
ment, which statement so properly filled out the owner or
owners, his or their architects or agent, shall sign, with the
agreement contained in said detailed statement that he or they
will, in all respects, construct the work in accordance with
such detailed statement, plans, and specifications, and in com-
pliance with the laws and ordinances of the city of Helena, and
it shall not be lawful to proceed to construct, alter, or repair
any building, buildings, or structure within the limits of said
city of Helena without such permit/'
Section 4 of that ordinance further provides as follows: ^ The
said inspector shall keep an office in the city hall, or such other
place as shall be provided by the city council, where it shall
be the duty of said inspector to keep a record of all permits
issued, which shall be regularly numbered in the order of their
issue, and also a record of the statements upon which permits
are issued. He shall also keep a record of, and report to the
common council, a full and complete register of the number
description, and size of every building erected in the city dur-
ing his term of office, of what material constructed, with the
aggregates of the number, kind, and costs of all buildings, and
the sanitary condition of all buildings/'
Section 6 of the ordinance is as follows: '' It shall be the
duty of every inspector appointed under the provisions of this
act to Tisit and inspect each and any house or houses, build-
14 Mont.J Mbrritt v. McNally. 231
ing or buildings which may be in the course of erection^ con-
structiouy or alteration within the limits of the citj, and to see
that each house or houses, building or buildings are being
erected, constructed, or altered according to the provisions of
this ordinance, and all acts and ordinances in force in said city,
and the manner adopted for the security thereof against fires,
and the safety of the occupants; that the materials used are
suitable for the purpose, and that the work is done in a sub-
stantial and workmanlike manner, and is of sufficient strength
and solidity to answer the purpose for which it is designed,
and before the foundations are laid he shall examine the
trenches dug for the same, and be fully satisfied that the soil
or substratum is sufficient for the structure, or, at least, the
best that can be obtained, and should the nature of the soil be
such, and the work of sufficient magnitude as to require piling,
flagging, or lagging, the same shall be done; promded, that it
may be deemed necessary by the inspector; that his visits and
inspection shall be repeated from time to time during the erec-
tion, construction, or alteration of such house or houses, build-
ing or buildings, until the walls shall have been completed and
the same inclosed, when his duties shall terminate. He shall,
oo application for that purpose, furnish tlie owner or ownersi
contractor or contractors, his certificate that the said house or
building is, in all respects, conformable to law and properly
constructed.''
In later sections of the ordinance there are detailed provi-
mons as to the strength of walls of certain heights, and for the
use of various kinds of materials, which provisions need not
be recited in full.
Section 57 provides as follows: ''Before the erection, con-
struotioo, or material alteration of any building in the city of
Helena the owners, architect, or builders shall submit to the
inspector of buildings full specifications and plans of the pro-
posed construction or alteration, and a detailed statement in
writing. Such statement shall give: .... The owner, his
agent, or architect shall then sign an agreement that he will
construct the work in accordance with the description as set
forth in such specifications, plans, or detailed statement, and all
matters and things connected with such construction or altera-
232 Mkrritt v. McNally. [March T., 1894
tion of any building shall be done in strict compliance with
the building ordinance. Thereupon, the inspector of buildings
shall issue a permit to make such construction or alteration,
upon the payment of the fees hereinbefore mentioned in this
article, and it shall not be lawful to proceed to construct or
materially alter any building without such permit.''
In section 68 we find the following: ^'Any person who
shall violate any of the provisions of this ordinance, where no
other penalty is provided, shall be subject to a fine of not less
than ten dollars, nor exceeding one hundred dollars, for each
and every ofiTense."
The complaint then goes on to allege that on the 6th of
August, 1891, the plaintiff was the owner of, and in possession
of, certain premises within said city, describing the premises.
That on or about the last of March, 1891, on premises adjoin-
ing those of plaintifiT, excavations were made for a building
foundation, and from that time on, up to and including said
fifth day of August, 1891, a two-story building of brick and
stone was in course of erection and construction.
That it was the duty of said McNally, by virtue of his office
as building inspector, to see that said building was erected in
accordance with the laws and ordinances relating to the con-
struction of buildings in said city, and to visit and examine
said building, and see that the walls thereof conformed to the
provisions of said ordinance. That said McNally wrongfully
disregarded his duty, and failed and n^lected and refused to
visit and inspect said building, although he well knew that it
was in process of erection. That he wrongfully neglected and
failed to see that said building was being constructed accord-
ing to the provisions of said chapter 10, entitled ^* Building."
And that he n^lected to see that the building was being con-
structed in such a manner as to insure the safety of the
occupants of said building, and of the plaintifiT's adjoining
premises.
Then follows detailed allegations of the building inspector's
negligence to see that certain things were done about said
building in accordance with the sections of the ordinance which
have been heretofore cited fully. That, by reason of defend-
14 Mont.] Mbrbitt v. McNally. 233
ant's negligence^ the walls of the building were oonstrncted in
an anskillful, careless, and grossly negligent manner.
Then follow details showing wherein was the negligence of
construction. That by reason of said negligeucei on the 6th
of August, 1891, the building in course of construction fell
upon the dwelling-house of plaintiff, and crushed and demol-
ished the same.
Then follow allegations of the particulars of the damage,
including the destruction of furniture, the killing of plaintiff's
infant child, the exposure of his wife to the inclemency of the
weather, the contracting of physicians' bills, funeral expenses,
etc.
The demurrers of the separate defendants were upon the
ground that the complaint did not state facts sufficient to con-
stitute a cause of action against the defendants.
Henri J. Haskell, and E. L. Knowles^ for Appellant
When one sustains an injury through the misfeasance or
nonfeasance of a public officer, who acts, or omits to act, con-
trary to his duty, the law renders him liable in a civil action
to any person thereby injured. (AdsU v. Brady, 4 Hill, 630;
40 Am. Dec. 306; N(ywell v. Wright, 3 Allen, 166; 80 Am.
Dec 62; Hover v. Barhhoof, 44 N. Y. 114; Smith v. Wright,
24 Barb. 172; Shearman & Bedfield on Negligence, 3d ed.,
§ 168, p. 209, and cases cited in notes; Bennett v. Whitney, 94
N. Y. 302, 306; Eobinson v. OMmberlain, 34 N. Y. 389; 90
Am. Dec. 713; Oovemor v. Dodd, 81 111. 162.) When the
law defines the duties of a public officer his sureties are
responsible for the faithful performance of such duties,^ and
are liable in case of his misfeasance or nonfeasance in office.
(Smith V. Lovell, 2 Mont. 332; Maddox v. Rader, 9 Mont. 126,
136; Van PeU v. Littler, 14 Cal. 198, 199; ForgaHy v. Flnlay,
10 Cal. 240; 70 Am. Dec. 714; MoComb v. Beed, 28 Cal. 281;
87 Am. Dec. 116; ZHegler v. Ocmmonweabh, 12 Pa. St. 227;
Missoula County v. JEdwards, 3 Mont. 60; Governor v. Ridgtoay,
12 111. 19.) Section 4 of chapter 10, entitled "Building/' of
the Bevised Ordinances of the city of Helena, page 89, is
mandatory, and has a penal provision thereto attached. Sec-
tion 6 of said chapter is also mandatory, and does not depend
284 Mbrritt v. McNally. [March T., 1894
fer its oonstnicfcioii upon the provifiioDB of section 4. It will
be seen that section 16 of chapter 7 of the Revised Ordi-
nances of the City of Helena, page 77, is mandatory, bnt
has no penal provision attached thereto. Section 2, page
71, of said chapter, is also mandatory. The individual
cannot sue for the reason that the grievance of one is the
grievance of all. Not so when the building inspector fails
to do his duty, and damages thereby accrue to a citizen.
The requirements of said section 4 are such that the act of
erecting a building within the city limits is constructive notice
to the inspector, bnt in this case the pleadings show that the
inspector had express notice of the construction of the build-
ing, and willfully neglected to perform his duty. There is no
ambiguity in this section, and the language used is simple and
dear. When the meaning of the statute as it stands is dear,
courts have no power to insert qualifications. (Sedgwick on
Construction of Statutory and Constitutional Law, p. 326,
par. 1; Supervisors of Niagara v. Peopk, 7 Hill, 511; C&rbeU
V. Bradley, 7 Nev. 106, 108; Smith v. WiUiama, 2 Mont. 198.)
The power of construing a statute strictly or liberally only
exists in those cases where the intent is ambiguous and the
effort to arrive at it hopeless. (Sedgwick on Construction of
Statutory and Constitutional Law, p. 826, par. 2; Koeh v.
Bridges, 46 Miss. 247; Smith ▼. WiUiams, 2 Mont 199, 201;
BidtpeU V. Wkitaker, 1 Mich. 469, 480.) The means of arriv-
ing at the intent are to be found in the statute itself. No
extrinsic facts are to be taken into consideration. (Sedgwick
on Construction of Statutory and Constitutional Law, 325,
note; Damds v. Andes Ins. Co., 2 Mont. 78; Endlich on
Interpretation of Statutes, § 431, p. 607.) Effect, if possible,
must be given to every word and clause of a statute. {AUor^
ney Oeneral v. Detroit ete. Plank Road Co., 2 Mich. 139, 142;
Bonnet v. San Francisco, 65 Cal. 231; Eo parte Reis, 64 Cal.
240; Hyatt v. Allen, 54 CaL 363, 369.) Where words have a
technical and a popular meaning courts will accord to them their
popular meaning. (WeUl v. KmfiM, 54 CaL 111, 113; In re
Maguire, 57 Oal. 604; 40 Am. Bep. 125; Appeal of Houghton, 42
Cal. 52.) The requirements of a statute can never be dispensed
with as being directory when the act or omission of it can, by
14 Mont.] MsRRiTT V. McNally. 235
any possibility work advantage or injury, however slight, to any
one affected by it. (Koch v. BridgeSy 45 Miss. 247; Looney v.
Hughes, 30 Barb. 606, 607, 608; People v. San Francisco^ 36
Cal. 603; Mines v. OUy of LochpoHj 5 Lans. 21; Territory v.
Board of Commissioners, 8 Mont. 409.) An officer acting
under his oath of office and bond is required to understand
thoroughly the duties, objects, and responsibilities of his office,
and to at all times know and contemplate the result of a viola-
tion of his duties. So, if a party contracts with reference to
a law or ordinance, the law itself becomes a part of the con-
tract, and he is bound thereby. {MaJLoon v. Eder, 6 Cal. 69.)
The condition of the bond is that he shall and will faithfully
and impartially discharge all duties of inspector of building
in the city of Helena, and that in all things he will faithfully
discbarge the duties of said office. Such a condition in a
notary's bond is the only proper condition to be inserted.
{Tevis V. BandaU, 6 Cal 632; 66 Am. Dec. 647.) Failure of
a person to perform a duty imposed upon him by statute or
other legal authority should always be considered evidence
of negligence or something worse. (Shearman & Redfield on
N^ligence, §§ 13 a, 64 a, p. 69; Siemers v. Eisen, 64 Cal. 420.)
Nor is the fact that the defendant contracted faithfully to per-
form his duties, not to the'plaintiff, but to the government, any
defense, for the action is founded, not on the contract, but ou
breach of duty. (Henly v. Mayor of Lyme, 6 Bing. 107, 109;
Farrani v. Barnes, 11 Com. B., N. S., 663; Marshall v. York
eto. R. R. Co., 11 Com. B. 656; Burnett v. Lynch, 6 Barn. &
C.689, 691,693; Winterbottom v. Wright, 10 Mees. & W. 109.)
A general power, granted by charter or by the legislature,
includes all incidental powers necessary to the carrying out of
the general power. (Oray v. OUy of Brooklyn, 7 Hun, 633;
Mayor etc v. Hoffman, 29 La. Ann. 666; City of Olympia v.
Mann, 1 "Wash. 389; Baumgartner v. Hasty, 100 Ind. 679,
680; 60 Am. Rep. 830; Hubbard v. Toum of Medford, 20 Or.
316; Oranin v. People, 82 N. Y. 318; 37 Am. Rep. 664; JFW-
fMor V. Curtis, 86 Ala. 364; 1 Dillon on Municipal Corpora-
tions, % %0, p. 148.)
236 Mbrritt v. McNally. [March T., 1894
Ward, Smith & Word, for BespondeDis.
I. Nowhere does the complaint allege that an application
was made or a permit granted for the construction of the
builduig^ the falling of which, it is alleged^ caused the injury.
The plans and specifications, which under sections 2 and 67
must be submitted to the inspector, must contain a description
of the materials to be used in the proposed structure, its pur-
pose and design, ita proposed location, and the number of its
stories. The performance of the duties set forth in section 5,
on the part of the inspector, plainly contemplates the per-
formance of the requirements of sections 2 and 67 on the part
of the builder. In other words, the inspection of *' each and
every building,^' made necessary by section 6, embraces only
those buildings for which a permit has been obtained. If
this be so, there was, then, no duty resting upon the defendant
officer to inspect the building mentioned in the complaint, and
for his failure to act he is not liable.
II. The duty of the officer must be entire, absolute, and
perfect, and he must be clothed with the ability to perform it
{Nowll V. Wright, 3 Allen, 266; 80 Am. Dec. 70; BarOdi v.
Oozier, 17 Johns. 460; 8 Am. Dec. 428; Hover v. Bwrkooffy
44 N, Y. 113; Weed v. BaUstcm, 76 N. Y. 329; Shearman &
Redfield on Negligence, §§ 172, 173; Beaneft v. Whitney, 94
N. Y. 302; Mecham on Public Offices, § 669.)
III. The alleged omission of the inspector to act was not
the proximate cause of the injury complained o£ It is not
enough for the plaintiff to show an iujury, but he must go
further and show that the injury was caused by the negligence
of the defendant {State v. Harris, 89 Ind. 363; 46 Am. Rep.
169; Eelava v. Jmes, 83 Ala. 139; 3 Am. St Bep. 699; Zoop
V. IAtdifield,42 N. Y. 351; 1 Am. Rep. 643; Anihmyv. Slaid,
11 Met 290; JMecham'on Public Offices, §§ 676, 680, and
cases.) Would an inspection by the officer in this case have
averted the injury complained of? Take the case of a build-
ing which is going up under a permit issued and an agreement
signed to properly construct the same. The inspector sees
during his visits that the architect is not following the plans
and specifications submitted. It may be that the variation is
a material one; that if allowed to continue it may weaken the
14 Mont.] Mbrritt v. McNally. 237
building and render it unsafe. Will it be contended that the
mere presence of the inspector of buildings, or his visits, how-
ever often repeated, would lessen or abate the danger? If it
will not, then this o£Scer is not liable bejond his duty to con-
demn the structure by refusing a certificate for the same, unless
under this ordinance he had the power, and it was made his
duty, to abate the defective building. The exercise of a posi-
tive power, the ability to condemn and destroy, was the rem-
edy in such a case. Counsel for appellant seems to see in
section 5, in the use of the words ^Wisit and inspect and see^'
that each house and building conforms to the provisions of the
building ordinance, the conferring upon the inspector such a
power, but respondents contend that a comparison of section 5
with the other sections of the ordinance, and a construction of
the above words in their usual and popular meaning, will lead
to the conclusion that no such power was, or was intended to
be, conferred. The powers of the inspector are in their nature
negative. He may refuse to grant a permit in the first
instance; he may refuse to issue a certificate that the building
is properly constructed in the second. Nor is it anywhere iu
this ordinance made his duty to notify the council, or other
officer or body, that a building is going up for which a permit
has not issued, or that an architect is not following in the con-
struction of t building the plans and specifications submitted.
In this respect the ordinance may be said to be defective, but
if 80, the blame cannot fall upon the inspector. To give to
section 6 the construction appellant seeks to put upon it is to
render it null and void. Under the charter of the city the
power to declare and condemn nuisances is vested in the city
council. Even that body cannot by an ordinance or resolu-
tion make that a nuisance which is not so in fact. (1 Wood
on Nuisances, §§ 744; Hennery v. City oj 8L Paul, 37 Fed.
Eep. 565; Yatea v. Milwaukee, 10 Wall. 497.) A further rea-
son that the construction sought to be given to section 5 must
be rejected is that it is vesting in an inspector of buildings the
functions of a judge, of a jury, and of a police officer. It is
placing the property of the citizens of the city at the disposal
of the inspector of buildings. It is delegating to this officer
functions and powers given to the city by the legislature.
238 Mbrbitt v. McNally, [March T., 1894
which the city holds in trusty and which are not sabject to
delegation. (16 Am. & Eng. Encj. of Law, 1043, note 1, and
cases.)
IV. The duties of the inspector of buildings are known as
quad judiciaL They are owing solely to the public For the
nonperformance of such duties there is no liability to individ-
uals. (Meeham on Public Offices, § 673; State v. Harris, 89
Ind. 363; 46 Am. Rep. 169; Cooley on Torts, 2d ed., 444-47;
2 Thompson on N^ligence, § 11, p. 822.)
De Witt, J. — ^The ground on which the demurrers were
sustained in the court below seems to be that, notwithstanding
how great the damage may have been which the plaintiff suf-
fered, the defendant McNally was not, by virtue of his official
position or otherwise, to be held liable for these injuries. The
defendant was a public officer, to wit, building inspector of the
city of Helena, and in the pay of the city as such officer.
The cause of action attempted to be alleged against him is that^
as such officer, he acted so negligently— or perhaps it might
better be said, so negligently failed to act — ^that the damage
described in the complaint resulted. Whatever may have been
the early rulings upon this point, it seems to be settled, in
modern times, that where a public officer is exercising minis-
terial powers, and where he performs his duties ciq;ligently, or
where he carelessly or willfully or knowingly &ils to perform
the duty at all, and from such failure on his part damage
results to another, such person so damaged has a cause of action
against such officer. (Throop on Public Officers, c. 29, § 724
et seq.; Ra/j/nrfard v. Phdpa, 43 Mich. 342; 38 Am. Rep. 189;
Hines v. (Xty of Lookport, 50 N. Y. 236; Amy v. BupertMorSf
11 Wall. 136; Shearman & Bedfield on N^ligence, 324, and
cases; Robinaon v. Chamberlain, 34 N. Y. 389; Hover v. Bark*
hooffj 44 N. Y. 113, and review of cases; AddJb v. Brady ^ 4
Hill, 630; 40 Am. Dec. 305; BenneU v. Whitney, 94 N. Y.
302; Nowellv. TfVi^A^, 3 AUen, 166; 80 Am.Dea62; Bishop's
Nonoontract Law, § 796.)
It is also held that if an officer of this sort is to be liable
for damages, it must appear that the duty imposed upon him
was a clear and absolute one. (See cases mpra and ii^/ra.)
14 Mont.] Mbrritt v. McNally. 239
"We will therefore first inquire whether the ordinance of the
city purports to impose upon the building iu8{)ector the duty
with the neglect of which he is charged. At the outset we
will endeavor to construe the word "see," as used in section
5. The words are, "and to see that each house or houses,
building or buildings, are being erected, constructed, or altered,
according to the provisions," etc. The respondent would give
to this word "see" a very literal construction. In his view it
would seem to mean simply to look at or to observe. On the
other hand we think the word is used in the sense of "to cause
to be done or accomplished." A parallel case may be observed
in section 6, artide YII, of the constitution of the state, which
reads as follows: " The supreme executive power of the state
shall be vested in the governor, who shall see that the laws are
faithiuUy executed." We are satisfied that the word "see," in
this case, does not mean simply that the governor shall stand
by and look at or observe the laws being fisiithfully executed,
but that this provision of the constitution is in the nature of a
command to the governor to require the laws to be faithfully
executed, whenever there is need for the interposition of the
executive arm. The word "see," as used in the ordinance, is
in the sense defined by the "Century Dictionary," in the fifth
subdivision of definitions of that word, as follows: "To bring
about as a result; superintend the execution or the performance
of a thing so as to effect a specified result; make sure; with an
object dat^ with Hhat' specifying the result. 'See that ye
fiill not by the way.' (Gen. xi v: 24.)" We are therefore of the
opinion that the use of the word "see," in this ordinance, is
the laying of a duty upon the building inspector to require
buildings to be erected in accordance with the provisions of the
ordinance. It seems to us that any other view of the meaning
of the word "see," in this connection, would be a wholly unrea-
sonable one. Therefore, we may conclude that the duty was
clearly imposed upon the building inspector to "see" or to
require tnat the building in question was properly erected.
The allegations of the complaint that the building was not
properly erected, in accordance with the ordinance, are perfectly
dear; also, the all^tions are dear that the inspector did not
see that the building was properly erected. Respondents here
240 Mkbritt v. McNally. [March T., 1894
interpose the suggestion that, even if a duty is imposed upon a
public officer, he is not liable for its nonperformance if the
law provides him no means for the performance. Cases of
bridge and highway commissioners are cited, in which the com-
missioners had no funds with which to repair the bridge or
highway upon which the injury occurred. (Throop on Public
Officers, 737, and cases; Oarlinghouae v. Jaoob%y 29 N. Y.
297; Hine% v. OUy of Lockporty 60 N. Y. 236; Shearman &
Bedfield on Negligence, § 324, and cases; NoweU v. Wright^ 3
Allen, 166; 80 Am. Dec. 62; Mecham on Public Offices,
§ 669; Cooley on Torts, 399.)
. It is contended by respondents that it appears by the com-
plaint that, even if the duty were laid upon the defendant, the
building inspector, to require the building to be properly con-
structed, yet it also appears by the complaint that defendant
had no means provided him of performing this duty, and he is
therefore not liable, and the demurrer was consequently prop-
erly sustained. But we are of opinion that there are all^a-
tions in the complaint which dispose of respondent's contention
adversely to him. A total and willful neglect of defendant's
duty is charged. It was his duty to 'Wisit and inspect" this
building (Ordinance, § 6), and to ''see" — ^that is, to require —
that it be properly constructed. The defendant not only did
not see or require that the building was properly constructed;
but he neglected to visit or inspect the building as required by
ordinance (§ 6). Moreover, he refused to visit or inspect the
building; and, furthermore, he knew that the building was in
process of construction, and his neglect and refusal to visit and
inspect the building, or to see that it was properly constructed,
was wrongful, and with knowledge. By reason of this neglect
and refusal pf defendant the acoident occurred. So that the
charge of the complaint is that the ordinance required def<»d-
ant to perform certain duties, and that he knowingly and will-
fully not only n^lected, but refused, to perform them, and
that, as a result of this neglect and refusal, the injury occurred.
But it does not appear by the complaint that the defendant
had no means by which he could visit or inspect the bnildbg,
or see that it was properly constructed, nor does it appear by
the complaint that defendant was unable so to do. We are
14 Mont.] Merritt v. McNally. 241
therefore of 02)iuioQ that this complaint is good on demurrer^
and that if it be true that defendant had not the means or tlie
ability to visit or inspect, or see that the building was prop-
erly constructed, or was prevented from so doing, the question
of the defense of such matter may be determined upon an
answer.
The objections to the complaint, which we have discussed,
are those presented by counsel. The judgment of the district
court is reversed, and the case is remanded, with instructions to
that court to overrule the demurrer.
Eeveraed.
PEBfBEBTON, C. J., and Harwood, J., concurring. — In our
opinion the complaint is not vulnerable in the points attacked
by demurrer, as contended by respondents' counsel on the
argument in this court. The interpretation that the clause of
section 6 of the ordinance in question, which provides that ^^it
siiall be the duty of every inspector appointed under the provi-
sions of this act to visit and inspect each and any house or
houses, building or buildings, which may be in the course of
erection, construction, or alteration within the limits of the
city, and to see that each house or houses, building or build-
ings, are being erected, constructed, or altered according to
the provisions of this ordinance,'^ lays upon the building
inspector no- responsible duty of exertion or action in his offi-
cial capacity, and authority to inspect and demand of builders
a compliance with the provisions of that ordinance, or, when
^'seeing'' the same violated, to lay such information before
other agents of the city, for the purpose of putting in force the
means provided by the municipality for the correction of the
violation of its ordinances, is untenable. Such interpretation
is neither conformable to the definition of the terms used, as
shown by dictionaries of authority, nor in accordance with the
common understanding of the force and effect of such a com-
mand of law applied to such a subject, or found in context like
that under consideration, where, all the way through the ordi-
nance, action is enjoined upon the inspector appointed and
compensated to discharge the d uties therein prescribed. Accord-
ing; to the interpretation of counsel for respondents, the build-
ToL. XIV. -16
242 Mbrritt v. McNally. [March T., 1894
iDg inspector might "see" that the ordinance put under his
monitory care was complied with or violated with the same
supine inertia on his part in either case. Under such inter-
pretation, it would have been quite as well, or perhaps even
better, as attended with less draught on the people's revenue,
and less danger and deception to inhabitants, arising from the
exi)ectation that he would see that anj thing was done, for the
city to have appointed a stone or wooden statue, as to appoint
a sentient being, to discharge the duties of building " inspector*';
for, if respondents' interpretation of the provisions of the ordi-
nance declaring his duties is correct, whether seeing that the
provisions of the ordinance were obeyed, or being utterly obliv-
ious to that fact, amounted to the same thing, so far as
responsibility on the part of the inspector to exert himself to
demand obedience or cause arrest of violation went, because,
under such interpretation, the inspector might "see*' dangerous
structures rise up, in violation of the ordinance, to fall and
destroy life and property, and yet neither demand compliance
with nor report violation of the ordinance to other municipal
authorities, in the attempt, at least, to prevent the mischief by
setting in motion such means as the municipal government has
provided to correct such abuse. This interpretation is not
according to the common understanding of the effect of such
injunctions of law, as found in the ordinance prescribing the
duty of the building inspector.
The other point of objection urged against the complaint —
that it does not show that respondent was clothed with the
necessary power, or had at his disposal the means of enforcing
the provisions of said ordinance, or arresting proceedings in
violation of its terms — is not, in our opinion, well taken.
Whatever facts in defense respondent may have to shield him-
self from liability for the injury charged to his negligence
should be set up in answer. If he can show that having used
the proi>er diligence in exerting the power of his office, and the
other available means which may have been commanded, and
having done his duty, the hurt, nevertheless, ensued without
his fault, because there were no means of arresting the viola-
tion of the ordinance, or because other agents of the munici-
pality did not pursue their duty, if it was necessary to call
14 Mont.] Board Mbd. Exam. v. Kellogg. 243
upon them, those facts are {)ecul]arly matters of defense, to be
set up by defendant's answer. The complaint charges that the
damage resulted from the negligence of defendant, in his fail-
ure to discharge certain duties pertaining especially to his
ofiSce. That is the issue which he must meet, and if he is able
to show that the damage resulted, not from his negligence, but
from other conditions, it is a matter of defense.
From a careful consideration of all the objections urged
against the complaint, we think the demurrer should be over-
ruled, and the order of this court will be entered accordingly.
BOARD OF MEDICAL EXAMINERS, Respondent, v.
KELLOGG, Appellant.
[Bubmittod March 6, 1894. Decided March 19, 1894.]
Phtsicuiib akd SuBOEasB—Bevocation of license — Stay of proceedings,— ^ThA
refasal of the trial court to stay proceedings npon an appeal from a judgment
reroking the license of a physician to practice his profession wiU not be dis-
turbed on appeal in the absence of an abase of discretion; nor will this court
in such case upon motion stay the operation of such judgment pending reriew
on appeaL
Appeal from First JudicicU Districty Lewis and Qarke Oov/nty.
Action by board of medical examiners to revoke the license
of a physician. On motion for an order fixing supersedeas
bond and staying operation of the judgment pending an appeal.
Denied.
r. J. Wahhf and J. W. Kinsley, for Appellant.
0. B. Nolan, and Blake & PenweU, for Respondent.
Per Curiam. — In this case appellant moves this court for
an order fixing ;the amount and conditions of bond to be exe-
cuted by appellant and sureties in behalf of a stay of proceed-
ings on, and superseding the operation of, the judgment of the
trial court, and asking that, on the execution, approval, and
filing of such bond, this court make such an order staying tlie
operation of the judgment i)endiiig review on appeal.
244 Board Med. Exam. €. Kbllogg. [March T., 1894
By the judgmcDt of the trial court, appellant's license to
practice medicine as a physician and surgeon in this state is
revoked and annulled, with judgment for costs of prosecution.
Therefore, by the effect of such judgment, appellant stands in
the attitude of one seeking to practice medicine in this state,
but without license so to do; and the act of practicing medi-
cine without license is by statute made a criminal offense,
punishable by fine or imprisonment, or both. The effect
sought by an order to stay proceedings on the judgment below,
in so far as the same regards enforcement of costs, is consum-
mated by the cost bond upon an appeal; but the further effect
sought by such order is to license or permit appellant to con-
tinue the practice of medicine, notwithstanding the revocation
of his license, until review and final determination of the
appeal by this court Whether such an order staying pro-
ceedings on the judgment, as sought, would stay the operation
of the statute against one practicing medicine without license,
and shield him from the prosecution and penalty therefor,
especially if the judgment revoking his license be affirmed, is
a question of grave importance, which would arise directly for
determination in the event of such a prosecution, and which,
in this collateral presentation, we do not feel at liberty to
determine, as within the purview of this motion. Aside from
that view, it appears application was made to the trial court
to stay proceedings in relation to the judgment pending the
appeal, and such stay was refused. Considering that a stay
of such a judgment would be a matter of discretion in the trial
court there is nothing shown in this proceeding, at this time,
which would lead this court to order the contrary, on the
ground that such discretion had been abused.
An order will therefore be entered overruling the motion.
14 Mout.] In KB Mouillbrat's Estate. 2-15
In re MOUILLERATS Estate.
[Submitted February 1, 1898. Decided March 19, 1894.] JJ ^
ADinsiSTRATOBS—AUoicanee of daim—Final judgment,— The allowance of a iS 246
claim agaiust an estate and its approval by the district judge under section
164 of the Probate Practice Act, providing that eyery claim so allowed and
approved must be ranked among the acknowledged debts of the estate and
paid in the due course of administratiom, does not render such claim a final
judgment so as to protect it from attack by protest agaiust the allowance of
the administrator's final account. (Ryan y. Kinneyt 2 Mont. 454, distin-
guished. Habwood, J„ dissenting.)
&AMsSame—Conte8t,^A. creditor whose claim against an estate may be reduced
by the allowance of an alleged debt is a person interested in the estate, and
may contest the administrator's final account under sections 266 and 267 of
the Probate Practice Ace, providing that on the day appointed for the settle-
ment of the account any person interested in the estate may appear and con-
test the same. (Habwood, J., dissenting.)
SAXK—Same—SUituie of 2imitottons.— Creditors of an estate may, upon the set-
tlement of an administi-ator's final account, contest an allowed claim as
barred by limitation, since under section 156 of the Probate Practice Act no
claim must "be allowed by the administrator which is barred by the statute of
limitations.
Appeal from Nirdh Judicial District^ Gallaiin CovmJty.
Proceedings by creditors to contest an allowed^ claim
against an estate. The contested claim was disallowed hj
Armstrong, J. Affirmed.
Statement of the case by the justice delivering the opinion;
Nixon and Crave, creditors of the estate, protested against
the allowance of the claim of Mendenhall, a creditor. The
district court sustained the protest, and disallowed the Men-
deuhall claim. Meudenhall and the administrator appeal.
The administrator, J. P. Martin, filed his final account
April 20, 1891. This account contains, among others, a list
of claims of the fifth class, presented and allowed. In this
list were the claims of the protestauts Nixon for $142.40, and
Crave for $300, and also the claim of J. S. Meudenhall, the
appealing creditor, for $400. It appears from the final account
that the estate will be able to pay only about forty-six per
cent of said fifth-class claims.
The claim of Meudenhall was filed September 4, 1890. His
affiilavit setting forth his claim contains the following state- *
ments material to this inquiry: That on the 2d of September^
246 In bb Mouillerat's Estate. [March T., 1894
1885, an action was pending on the United States side of tbe
territorial district court, on a bond for $1,600, in which case
the United States was plaintiff, and Frank Mouillerat, the
deceased, and one Olsen, as principals, and Charles Krug and
said Mendenhall as sureties, were defendants. That on the
4th of September, 1885, the United States obtained a judg-
ment against the defendants for $800; that Krug and Men-
denhall paid this judgment, share and share alike; that neither
Mouillerat or Olsen had paid to Mendenhall the $400 which
he thus paid, nor any part thereof. Mendenhall annexes to
his affidavit, setting forth the above allegations, a certified copy
of the proceedings in the United States court in the case, to
which he referred. That record is as follows:
"Wednesday, September 2d, a. d. 1885.
"The United States,
V8,
"Frank Mouillerat
ES, I
etai. )
"And now comes the plaintiff, by William H. De Wilt, Esq.,
United States attorney, whereupon tlie plaintiffs dismissed
their tait herein, the same having been compromised, and
eight hundred dollars paid by the defendants.
"It is therefore considered by the court that the defendants
go hence without day, and recover against the plaintiffs their
costs incurred herein, taxed at $ ''
It further appears from the record in the case at bar tliat
this claim of Mendenhall against the estate of Mouillerat was
allowed by the administrator June 27, 1890, and approved by
the court March 23, 1891.
As above noticed, the final account containing the claim of
Mendenhall, and that of the protestants, was filed April 20,
1891. On May 23, 1891, said Nixon and Crave duly filed
their protest to the allowance of this final account The ground
assumed by the protestants was, that the claim of Mendenhall
shows upon its face that it was not a judgment, and if it be
any claim it is one upon an account not in writing, and if it
be such an account, sufficient time elapsed between the aocru-
ing of the account, September 2, 1885, and filing of the same
against the Mouillerat estate, September 4, 1890, to constitute
14 Mont.] In rb Mouillbrat's Estatb. 247
the bar of the statute of limitations. The district court sus-
tained the protest^ and disallowed the Meiideuhall claim^from
which disallowance Mendenhall and J. P. Martin^ the admin-
istrator, take this appeal.
The position of appellants is this: 1. That the claim of
Mendenhall having been allowed by the administrator, and
approved by the court, is a judgment, and cannot be attacked
by this protest; and 2. That the protestants, Nixon and Crave,
as creditors of the estate, have no authority to plead the stat-
ute of limitations, or to compel the administrator to plead it.
Giarles 8. Hartman, and A. D. McPher^onj for Appellants.
I. The claim of Mendenhall, being an allowed claim, has
all the force and effect of a judgment, and cannot be attacked
collaterally. {Decl^B Estate v. Gherke, 6 Cal. 666; Ryan v.
Kinney, 2 Mont. 456; Moore v. Hillebrant, 14 Tex. 312; 65
Am. Dec. 118; Estate of Hidden, 23 Cal. 362; Estate ofSchroe-
der, 46 Cal. 304-17; Estate of McEinley, 49 Cal. 152; IMate
of Olenn, 74 Cal. 567; 2 Black on Judgments, § 641, note 678.)
II. The protestants, Nixon and Crave, as creditors of said
estate, have no right or authority to plead the statute of limi-
tations or compel the administrator to plead it. (Wood on
Limitations of Actions, § 41, pp. 79, 80; 13 Am. & Eng.
Ency. of Law, 706, title. Limitation of Actions, note 2, and
cases cited; Scott v. Haneockl 13 Mass. 162; Kennedy v. Pow^
eff, 34 Kan. 23; Brookville Nat Bank v. Kimbk, 76 Ind.
196; Allen v. SmUh, 129 U. S. 465; Shields v. Schiff, 124
U. S. 351.) The following authorities hold that an executor
or administrator represents the testator so far as the personal
property is concerned, and from the personal property he can
pay a well-founded claim, although barred, without being
obliged to take advantage of the statute of limitations. (13
Am. & Eug. Ency. of Law, 707^ note 2, and cases cited.)
But even if an allowed claim can be attacked collaterally, or if
a creditor can compel the administrator in this case to plead
the statute of limitations, is the claim of Mendenhall barred
by the statute of limitations? It appears from the face of the
proceedings that the sum of $800 was paid by defendants in
foil settlement of the case and the compromise judgment of
248 In re Mouillbrat's Estatb. [March T., 1894
dismissal entered aooordingly. This payment was the consideiv
alion for the judgment. It also appears that the entire sum
that was paid to obtain the compromise judgment aforesaid
was paid by said Mendenhall and Krug, who were sureties on
the bond, and, being sureties, they had a right to found their
claim upon such judgment, and keep it alive as against their
codefeudants. Upon this question there is some division in
tlie authorities; those of New York, Massachusetts, Alabama,
and North Carolina holding in some instances that it cannot
be done; however, in one New York court it has been held
that under circumstances showing the suretyship of the party
paying the judgment, and the fact that he was compelled to
pay the sum, that he be substituted in place of the creditor
and acquire his rights. On the other hand, the right to the
subrogation in such cases is affirmed in Coffee v. TemSy 17 CaK
239; Wheder'a EstaU, 1 Md. Ch. 80; Br<yum v. White, 29
N. J. L. 514; Melniyre v. Miller, 13 Mees. & W. 728. It
appears that Mendenhall and Krug were compelled to pay the
$800, and did pay it, and therefore they are entitled to be sub-
rogated to the rights of the United States^ the plaintiff in said
action. (12 Am. & Eng. Ency. of Law^ 160, note 7, and
cases cited; B, note 1, and cases cited; Sanford v. McLean, 3
Paige, 117; 23 Am. Dec 773; NuU v. Moore, 10 Ired. 324;
Freeman on Judgments, § 468.) Mendenhall having been
surety on the bond, and having been compelled to pay the
claim, equity substitutes him in place of the creditor as of
course without agreement therefor. (Freeman on Judgments,
§ 468; Sanford v. McLean, 3 Paige, 117; 23 Am. Dec. 773;
Head v. Gervaia, Walk. 431; 12 Am. Dec, 577; Barringer v.
Boyden, 7 Jones, 187. See, also, Dempsey v. Btuh, 18 Ohio
St. 376; Freeman on Judgments, 470; Fleming v. Beaver, 2
Eawle, 128; 19 Am. Dec. 629, and cases cited.) This compro-
mise judgment is what Mr. Bishop, in his work on contracts,
calls a contract created by law. (See Bishop on Contracts,
§ 556; Gunn v. Barry, 15 Wall. 610; Moaer v. White, 29
Mich. 69; (yBrim v. Y<mng, 95 N. Y. 428; 47 Am. Rep. 64.)
Actions upon judgments, contracts, and other written instru-
meuts or records, under the statute which controls in this case,
shall be commenced within six years from the time the cause
14 Mont.] In rb Mouillerat's Estate, 249
of action accrues. (See Code Civ. Proa, § 41, Comp. Stats.)
The claim of Meudenball is therefore not barred bj the stat-
ute of limitations, i/^as properly allowed, and the protest of
Nixon to the allowance of the administrator should be over*
ruled«
lAAce & Luce, for Respondents.
I. There are two points in administration where an ap-
proved claim may be contested when application is made for
the sale of property, and when an account is rendered for set-
tlement. And it can be contested by a creditor. {Estate of
Loahe, 62 Cal. 413-15; Estate of HiU, 62 Cal. 186; Weihe v.
Statham^ 67 CaU 84.) The supreme court of California in
Bedcett v. Selover^ 7 Cal. 215, 68 Am. Dec. 237, rendered an
exhaustive opinion on the very point in controversy, that the
allowance did not bind any one not a party thereto, (See
opinion in BecheU v. Mover ^ 7 Cal. 241, 242; 68 Am. Dec. 237.)
It is true this was a contest by the heir, but the reasoning of
the opinion applies to the creditor who contests under section
267 of our Probate Practice Act. If there were any doubt of
this, the foregoing citation and the case of the Esiaie of Hid-'
den, 23 Cal. 363, cited by appellants, should be conclusive.
This is no collateral attack. Conceding the allowance to be a
judgment, it is an erroneous one and has been vacated by the
court that rendered it, which it had jurisdiction to do, before
final judgment settling this account and decreeing distribution.
II. Upon the second proposition there is little need of
comment. A debtor may waive the statute of limitations, and
cannot be compelled to raise it, that we know of. An admin-
istrator cannot waive it, but both the administrator and the
probate court are by statute expressly forbidden to allow a
claim barred by the statute. (Comp. Stats., § 166, p. 313;
Estate of Hidden^ 23 Cal. 362.) You must first have a judg-
ment before you can claim the right to be subrogated to the
judgment creditor. You must have paid this judgment before
any question of subrogation arises. The judgment plainly
stated that it is a judgment of dismissal by agreement, and that '
the defendants recover of the plaintiff their costs; it is a judg-
ment, but it is a judgment in favor of the defendants. A
250 In bb Mouillbbat's Estate. [March T., 1894
jadgment of dismissal bj agreement and compromise is a
judgment on the merits against the plaintiff. {MeniU v.
Campbell, 47 Cal. 542; on rehearing, 47 Oal. 548; PhUlpotii
V. Blaadel, 10 Nev. 19, 23; Bank of QmmontDedth v. Hop-
Jdna^ 2 Dana, 395.) No claim has ever been presented to the
administrator except this claim on a pretended judgment, which
shows on its face that it is a judgment in favor of the very
party who claims that it is a judgment against him. If any
claim ever existed which could have been brought against
Mouillerat, in his lifetime, for money had and received, no
such claim has ever been presented to the administrator, and
if it had, it would have been barred by the statute of limita-
tions. {Chipman v. Morrill^ 20 Cal. 136.) No action for the
recovery of this $800, under said compromise, could ever have
beeu sustained upon the facts set forth in the claim of Men-
denhall. Mr. Sheldon (Sheldon on Subrogation, § 240) says:
"The doctrine of subrogation is not applied for the mere
stranger or volunteer who Las paid the debt of another with-
out any assignment or agreement in subrogation, and without
being under any legal obligation to make the payment, and
without being compelled to do so for the preservation of any
rights or property of his own." Money paid under a com-
promise does not come within this rule. (JSanford v. McLean,
3 Paige, 122; 23 Am. Dec. 773; Mna Life Ins. Co. v. JfuWfo-
pot-^, 124 U.S. 547.)
Be Witt, J. — Section 154 of the Probate Practice Act
provides: "Every claim allowed by the executor or adminis*
trator, and approved by the probate judge, or a copy thereof,
as hereinafter provided, must, within thirty days thereafter,
l)e filed in the probate court, and be ranked among the acknowl-
edged debts of the estate, and be paid in due course of admin-
istration.''
Mendenhall's claim was allowed by the administrator and
approved by the court. Appellants contend that these facts
constitute a judgment, which is final, and which must be
attacked by a motion for a new trial or an appeal, and which
cannot be disturbed on a contest of the account of the adminis-
trator. But such is not the law. It is a judgment of a quali-
14 Mont.] In re Mouillbrat's Estate, 251
fied nature only. Such approval and allowance i)lace the
claim ''among the acknowledged debts of the estate, to be paid
in due course of administration/' {Maffraw v. ilcGlynUy 26
Cal. 431; EstaU ofLoahe, 62 Cal. 413; Estate of HUl, 62 Cal.
186; WeUie v. Statham, 67 Cal. 84.) And "in due course of
administration'^ the estate reaches the stage where it is oper-
ated upon by the provisions of section 265, et seq., of the Pro-
bate Practice Act. Section 265 is as follows:
" When any account is rendered for settlement, the court or
judge must appoint a day for settlement thereof. The clerk
must thereupon give notice thereof by causing notices to be
posted in at least three public places in the county, setting
forth the name of the estate, the executor or administrator,
and the day appointed for the settlement of the account, which
must be on some day of a term of the court. The court or
probate judge may order such further notice to be given as
may be proper." Section 267 provides for a contest, as fol-
lows: "On the day appointed, or any subsequent day to which
the hearing may be postponed by the court, any person inter-
ested in the estate may appear and file his exceptions in writ-
ing to the account, and contest the same.*'
When this section of the statute provides that ^^any person
ifdereded in the estate?* may contest the account, it seems to be
a plain declaration that any person interested may make the
contest It would seem not o|)en to question that a creditor
Vras interested in the estate when the account showed the
liUowance of an alleged debt, which such creditor claimed to
be wrongfully allowed, and the allowance of which cut down
the i>ercentage which such creditor was to receive from the
estate. Such is the position of the creditors and protestants,
Nixon and Crave, as to the allowance of the Mendenhall claim.
Such was the course of proceeding in the lower court. Nixon and
Crave contested the account, as they might, under the provisions
of sections 265 and 267, etc. The allowance and approval
of the claim does not seem to be in the nature of a final judg-
ment, when the statute provides that it shall not be final, but
shall be open to a contest (Probate Practice Act, § 267) of the
administrator's account. Such seems to be a very plain view
252 In re Mouillbrat's Estate. [March T., 1894
of the statute. Od the other hand, the view contended for by
appellants would leave a person desiring to contest an aocount
remediless in many cases.
Returning to the portion of the Probate Practice Act treating
of the claims against the estate, we have to observe as follows:
Section 154 speaks about the allowance of a claim by the
administrator, and the approval by the probate judge. These
acts may be dene without any hearing at all. It is true that
section 156 provides: "When a claim is presented to the pro-
bate judge for his allowance, he may, in his discretion, examine
the claimants, and others, on oath, and hear any other legal
evidence touching the validity of the claim." The judge, it is
observed, may, in his discretion, examine the claimant and
hear evidence; but he is not required so to do, and there is
nothing to prevent him, if he happens to observe no objection
to the claim, from allowing it without any hearing at all.
Now, if the [)robate judge pursues this course, which he may
under the law, and which we doubt not is the most frequent
occurrence in that court, we have this situation: A claim
ag&inst the estate has been allowed. Another creditor of the
estate is injured thereby, for the reason that it reduces the per-
centage which he is to receive in case the estate does not pay
its debts in full. That creditor is interested in the estate, and
there is facing him, according to appellant's view, a final judg-
ment, which is to his injury, given without his knowledge, and
without his having a day in court. There has been no hear-
ing to which he has been invited; there has been no adjudica-
tion at which he has been notified to appear. Of course, it
may be said that he can be present in the probate court, or
before the probate judge, during all the period during which
claims may be filed, and watch for the presentation of the claim
to which he believes he has a valid objection. But we are of
opinion that the law does not require any thing of this sort,
especially where there is such a simple construction of the law
as we have above described, which gives such a creditor an
opportunity to come in upon notice upon the settlement of the
administrator's account*
Furthermore, here is another view: Suppose a claim l)e pre-
sented, allowed, and »j)proved without a hearing, as it mav be.
14 Mont.J In ru Mouillkrat's Estate. 253
as above noted; the record would appear in tins way: simply
the account of the alleged creditor^ supported by his ex parte
affidavit, and indorsed. In fact, the indorsements upon this
Mendenhall claim are as good an example as we could cite.
They appear as follows:
"No. 20.
'*In the Di8TRic?r Court
"op
'^ Gallatin County, Montana.
"Jw the Matter of tlie JEstate of
^^ Frank MouUkrat, Deceased.
"Claim of John S. Mendenhall, $400.00.
"The within claim presented to J. P. Martin, admr. of said
deceased, is allowed and approved for $400.00 this 27th day of
June, 1890. J. P. Martin, admr. of said deceased.
"Allowed and approved for $400.00, this 23d day of March,
1891. Frank Henry, District Judge.
"Filed Sept. 4, 1890.
"John McLeod, Clerk,
"By R. H. Crawford, Deputy Clerf
Now, according to appellant^s view, the creditor interested
in the estate, and wishing to make a contest, finds a record of
the sort described, which is to be held to be a final judgment;
that is to say, it is a bill or an account, with an ex parte affi-
davit, and the indorsements of administrator and judge, of
"Allowed" and "Approved." What could he present on a
motion for a new trial or appeal? His showing of the wrong-
fulness of the account would not be in the record, nor would
there be any evidence to review. We cannot hold such con-
struction of the law when we have before us section 267, pro-
viding for a contest by a creditor, in which he may have a
hearing.
Byan v. Kinney, 2 Mont. 454, has been mentioned in this
case. In that case there was clearly an attempt to attack col-
laterally a final judgment of the probate court. We fully con-
cur with the decision against that attempt. But here the
allowance by the administrator, and the approval by the pro-
bate judge, of the Mendenhall daim^ we have undertaken to
254 In R£ Mouillbrat's Estatb. [March T., 1894
showi were not a final judgment, and therefore the eontest of
Nixou and Crave is neither directed at a final judgment nor is
it a collateral attack upon what the probate court has done^
but, on the contrary, it is a pursuance of the direct j^roceeding,
provided by sections 265-68 of tlie Probate Practice Act, for
determining whether or not the Mendenhali claim was to be
paid out of the Mouillerat estate. Byan v. Kinney, 2 Mont,
454, did not mention or construe section 267 of the Probate
Practice Act, or any similar provision, which section 267, we
hohl, authorizes the contest by Nixon and Crave. That sec-
tion is part of the Probate Practice Act passed February 16,
1877 (10th sess., p. 370), a year after the decision of Byan v.
Kinney, 2 Mont. 454. But even if it, or a similar provision,
were a part of the law when Byan v. Kinney was decided, it
would not have been before the court for construction in that
case, as the proceeding was not taken under said section, or
any similar thereto. And it is this section, as is apparent
above, that we hold authorizes this contest. Therefore, Byan
v. Kinney, 2 Mont. 454, is not applicable to the case al
bar.
Appellants contend that the determination of the action in
the United States court in 1885 was a judgment in favor of
the United States, and against Mouillerat and his codefendants,
among whom was Mendenhali, and that Mendenhali was sub-
rogated to the rights of the United States in that judgment.
If that be true, then they contend that the statute of limita-
tions, in reference to judgments, would apply to the Mendenhali
claim, and that it would not be barred. If the United States
did not obtain a judgment in the case described in the United
States court, there was no judgment in which Mendenhali could
be subrogated. It is clear that the United States did not
obtain a judgment against Mouillerat, Olsen, Mendenhali, or
Krug. The record from the United States court states plainly
that that case was dismissed as compromised; and. it further
appears from that record that the judgment was that the defend-
ants go hence without delay, and recover a judgment against the
plaintiff for their costs. So, there was no judgment in favor
of the United States. Therefore, the most that appears is that
Mendenhali paid money for the benefit of Mouillerat in 1885.
14 Moiit.] In KB Mouillbbat's Estatb« 255
Mendenliall's claim against Mouillerat, therefore, does not
appear to be founded upon any judgment or upon any written
instrument. It was therefore barred by the statute of limi-
tations (Code Civ. Proc., § 44) in three years from September,
1885, and was consequently barred on September 4, 1890, when
it was filed as a claim against the Mouillerat estate.
Appellants argue that the statute of limitations is a per-
sonal privilege, and that one cannot be compelled to take
advantage of it unless he chooses. However true this may be
as a general principle, it does not apply to the administrator
in this case, ibr his action is controlled by section 166 of the
Probate Practice Act, which provides that '^no claim must be
allowed by the executor or administrator, or by the probate
judge, which is barred by the statute of limitations.'^
The judgment of the district court sustaining the protest of
Nixon and Crave, and disallowing the claim of Mendenhall, is
therefore affirmed.
Pbmberton, C. J., concurs. '
Harwoob, J., dissenting. — ^Appellant Mendenhall presented
his claim against the estate of Mouillerat, and the same was
approved by the administrator and duly allowed by the court.
(Probate Practice Act, §§ 153, 154.) About one year there-
afler, when the administrator presented his final account for
settlement, certain other creditors of said estate set up a con-
test of appellant's claim, on the ground that it was barred by
the statute of limitations. The court sustained said objection,
whereby appellant was denied payment of his claim out of the
funds of said estate. The claim was for money alleged to have
been paid out by Mendenhall, as surety for decedent, in a pro-
ceeding against decedent in the United States district court in
the year 1885. The record of said court shows the proceed-
ing, and that settlement was made; and the evidence undoubt-
edly establishes payment by Mendenhall, on behalf of decedent,
as claimed. But it is contended that the record of said pro-
ceeding in the United States court does not, in itself alone,
establish payment by the surety; and therefore it is contended
that appellant's claim would fall within the class barred by
the lapse of three years.
256 In be Mouillbrat's Estatb. [March T., 1894
The first proposition insisted on by appellant is that the dae
allowauoe of his claim by the administrator and the court
having jurisdiction of said estate, as provided by lawy amounted
to the establishment thereof in the nature of a judgment, and
that said claim i^as not subject to be contested by other cred-
itors of the estate at the time and in the manner pursued in
this contest*
The question as to the effect of the allowance of a claim
against an estate, as provided by the statute, appears to be one
of considerable difficulty. Some authorities affirm that such
allowance places the claim in the same status as a judgment
(See 2 Black on Judgments, 641, and cases cited; also, Cali-
fornia cases cited in appellant's brief); and, if that conclusion
is correct, such allowance cannot be disregarded or ignored,
and another and independent contest set up against said claim.
If the order of allowance is in the nature of a judgment, it
would be necessary, in order to avoid such judgment, to follow
it up by appeal, and obtain its reversal, or attack it by other
direct action.
In 8api>ort of the proposition that the allowance of the
claim against the estate establishes it in the nature of a judg-
ment, several provisions of the statute may be pointed to.
Thus, it is provided that, after allowance in the manner pre-
scribed, the claim shall be ''filed in the probate court, and be
ranked among the acknowledged debts of the estate, to be paid
in due course of administration/' (Probate Practice Act,
§ 154.) And it is further provided that "a judgment ren-
dered against an executor or administrator, upon any claim for
money against the estate of his testator or intestate, only estab-
lishes the claim in the same manner as if it had been allowed
by the executor or administrator and the probate judge, and
the judgment must be that the executor or administrator pay
in the due course of administration the amount ascertained to
be due." (Probate Practice Act, § 161.) This provision might
be taken as bearing strongly in favor of the view contended for
by appellant — that the proceeding resulting in the allowance
of the claim was equivalent in its force to a judgment. Again,
there are provisions of statute for the hearing of evidence by
the probate judge, as to the merits of the claim, before allow-
14 Mont.] In bs Mouillebat's Estatb, 257
aoce (Probate Practice Act, § 156); and also for a reference
of the claim for investigation through the agency of a referee,
(Probate Practice Act, §§ 164, 165.) It seems, too, that the
onler of allowance, and the proceeding leading up to that order,
are subject to rehearing on motion for new trial, as provided in
sections 323 and 324 of the Probate Practice Act, and to appeal,
as provided in section 445 of the Code of Civil Procedure.
(See In re McFarland'a Estate, 10 Mont. 445.)
The tendency of all those provisions would seem to point
to the conclusion that the final allowance of the claim of
a creditor against an estate by the administrator and probate
judge amounted to some thing more than a proceeding which
could be ignored at pleasure, and leave the claim open to con-
test by any party interested and desiring to question it; and,
from a consi<leration of i\\t statutes relating to this subject, and
the cases in which this question has been discussed, I ant
drawn to the conclusion that such allowance does establish th^
claim as against the collateral attack of all except the heirs and
their representatives. This exception in favor of the heirs is
made by statute, but does not appear to extend toothers. The
language is that "all matters, including allowed claims not
passed upon in the settlement of any former account, or on
rendering an exhibit, or on making a decree of sale, may be
eonUsLed by tlie heirs^ for cause shown.'' (Probate Practice Act,
§ 268.) This section undoubtedly holds the claim open to
question by Uie heirs in a contest independently of the pjx>ceed-
ings whereby it was theretofore passed upon and allowed by
the court. And the language of that section seems to limit
that privily as one reserved to the heirs alone. If it was
not the intention to so limit the privilege to set up another
contest as to the claim after its allowance, why did the legis-
lature so specifically declare that those matters were open
to contest "6y the heirs f^^ We have no doubt this is a wise
and just provision in favor of the heir. Where an estate
possesses sufi^cient assets to satisfy all demands, there is no
motive to lead claimants to investigate, find evidence, and con-
test one another's demands when presented for allowance, so as
to reduce each claim to its proper proportions, or, if without
merit, to cause its disallowance altogether. {BeekeU v. Selover,
Vol. XIV. -17
258 In rb Mouillbrat's Estate. [March T., 1894
7 Cal. 216; 68 Am. Dec. 237.) If the claim, however, after
allowance, is only opeu to ooutest by the heirs, as seems to be
the inteudment indicated by the language of the statute, it fol-
lows that the several creditors who so desire must present their
contest against demands of others when such demands are before
the court for allowance. A contrary holding would, in effect,
deny all force to the proceeding of the court wheveby claims
are investigated and allowed, and subject such proceedings to
be disregarded at the pleasure of any creditor who wishes to
introduce anotlier contest, and occupy the attention of the
court in trying the same. Such holding is contrary to the
views of the court in Ryan v. Kmney, 2 Mont. 454, and, I
think, is not in harmony with the theory of the statute provid-
ing the practice as to the investigation and allowance of claims.
There appears to be ample provision made by statute to enable
creditors to contest claims proposed against an estate, as the
same come up for consideration and allowance; and it would
seem that such would be the more convenient and acceiitable
time for contest of individual claims than a subsequent time
long afler the claim had been allowed and the administrator's
account is before the court for examination. The result of
such holding is to keep the affairs of an estate unsettled
indefinitely.
The provisions of section 267 of the Probate Practice Act,
that any person interested in the estate may contest the admin-
istrator's account, should not be so applied as to annul the force
of other special provisions of statute in reference to claims of
third persons against an estate. The administrator's account
contains numerous items besides accounts of third |)ersons
against the estate which have been allowed and approved by
the probate court As to such other terms, the administrator's
account should be, and is, open to contest by any person inter-
ested. But, as to claims of third persons against the estate,
the statute has made special provisions for their presentation,
contest, and adjudication, even to appeal from court to court.
According to the holding of the majority of this court, such
adjudication establishes nothing. It may be brushed aside by
any person interested in the estate; and, ignoring that adjudi-
cation, although it had gone to the court of last resort, he may
14 Mont.] In eb Mouillbrat*s Estate. 259
again open the contest when the administrator's account is pre-
sented. Such a result is not according to the theory plainly
visible in the statutory provisions, nor does it conform to the
authorities on the subject, especially decisions of the supreme
court of Montana, cited mpra.
The accounts of third persons against the estate are not in
fact the administrator's account. Those accouuts are indepeud-
ent of the administrator. He is not the one to prosecute them
against the estate, nor to defend the matter of their allowance
in case of contest of his account; yet the theory of tlie majority
opinion in this case seems to be that, because tlie administra-
tor's account may be contested, the allowed accounts of third
persons against the estate are thereby thrown open to contest
as if they were the administrator's accounts. The adminis-
trator would not be the supporter of such accounts; he should,
. and probably would, be the contestant at the proper time, and
until the account was established. Therefore, what difference
would it make to him if third persons' allowances were struck
out of his account, unless he bad paid the same on the strength
of the allowance by the court? But observe the peculiar result
of the holding in this case. If the administrator, having once
contested a claim against his estate, even to the court of last
resort, and has been defeated, and the claim established by such
adjudication, the administrator can still say, according to the
holding in this case — "That goes for nothing" — ^and, though
the estate comprise millions, he may refuse payment, and,
when the administrator presents his account, commence the
same contest, and go through the courts with it again. Or
defenses to claims against the estate may be set up by piece-
meal — ^some when the claim is presented for allowance, and
others when the administrator's account is presented; some by
one, and some by another, interested in the estate. Or, if
defeated at the first trial, this need not be followed up by
appeal or motion for new trial, as the statute provides, but
the attack may be suspended until a more convenient time.
Such are some of the peculiar results of the holding in this
case.
, The citations in the majority opinion neither support its
reasoning npr its conclusion. In the case of Edate of Loalie,
62 Cai. 413, the court* expressly decline to consider the point
260 Ik he Mouillbrat's Estatb. [March T., 1894
iuvolved in the case here, sajing: '^It is not necessary to con-
sider how far the allowavce or approval of a claim resembles
or gives the effect of a judgnieiit/' The California court points
to the statute of that state as authorizing the contest there under
consideration. So, the case of Estate ofHUl^ 62 Cat. 186, cited
in support of the majority opinion, is not in poiut, because the
contest in that case was ''by the heirs and distributees of
deceased.'^ Likewise, the case of Weike v. StaOiam^ 67 Oal. 84,
cited in support of the majority opinion, was an '' action by the
heirs of William H. Hill/' etc.; and the court say in that case:
''It has several times been decided that the allowance of a
claim by the administrator and probate judge is not conclusive
upon the heirs, but they may contest such allowance in subse-
quent proceedings of the probate court''; and the California
statute and cases are there cited. The same rule would hold
here by special provision of the statute, as we have pointed out
The case last above mentioned is the latest case cited from Cali-
fornia, and it may be observed bow carefully tliat court uses
language to confine the contest at that stage of the claim to the
heirs. One other case — Magraw v. MeOlynn^ 26 Cal. 431' — is
cited for support of the majority opinion, but I fail to find any
such case reported in the book. These citations illustrate how
easy it is to cite cases as supporting a view, and also bow
deluded one would be in looking to the citations for oonfiiv
mation of the jioint in question.
There is no warrant for the presumption asserted in the
majority opinion, that the administrator and probate court
would n^lect the solemn duty, imposed by law upon them, of
carefully investigating claims against the estate before allow-
ance thereof; and, had I found reason to subscribe to the con-
clusion reached in this case by the majority, I should withhold
concurrence in the observations which carry that imputation.
If such abuse and negligence in relation to a sacred trust, as
the opinion "doubts not is the most frequent occurrence in
that court,'' could be satisfactorily established by proper evi-
dence, it would be a matter for legislative consideration. It is
well known that in a judicial inquiry as to what the law is,
such considerations are not pertinent, except as mere sugges-
tions looking towards the expediency of a legislative change.
14 Mont.] Dietrich v* Stbam Dbbdob. 261
But DO SQch ounclusion is warrantable as a mere presumption;
and there is no showing that the probate courts in this state
neglect tiie solemn duties imposed upon them by law and the
nature of the trust confided to their care, nor was that a matter
for investigation in the case* M7 investigation of this question
has led to the belief that a statutory provision for vacating the
order of allowance of a claim against an estate upon presenta-
tion of sufficient grounds, supported by affidavit, within reason-
able time, such as that found in the Probate Code of Missouri,
would be an improvement of our statute on this point (See
Kelley's Missouri Probate Guide, § 309, p. 261.) There is
probably more need for such a provision since the adoption of
the constitution, giving our district courts original jurisdiction
of all probate matters; for under the former system, if a claim
was thought to be erroneously allowed against an estate, the
whole question could be carried by appeal, for trial anew, into
the district court. (Code Civ. Proa, §§ 445-58.) This gave
time and opportunity to reopen the case, and correct errors on
appeal. But those provisions have become obsolete through
the changes made by the constitution.
DIETRICH V. STEAM DREDGE AND AMALGA-
MATOR. I^gj
[BabmittodJuM 2S, 1898. Decided ICtroh 26, 1894.]
Appkax^— iSpeoiaZ order^Time for taking.^An order refneing to open a defimlt is
a ipeoial order made after final jndgment, from which an appeal, to be roTiew-
able, most be taken within sixty days.
ATTAOBVBirr OF BokTB—Appearanoc-^The filing of a demurrer by a judgment
creditor of a boat in an action bronght to sabjeot it to claims for serrioea, and
in which the creditor aesnmea to act and appear for himeelf alone, does not
oonatitnte an appearance of the defendant boat under section 216 of the Code
of ClYil Procedure, providing that any person interested in a boat that has
been attached may appear for the defendant and conduct the defense.
BAMJb—lnUrvtntion.^A. party who is a stranger to a suit as commenced, but who,
without a showing by complaint or obtaining leave of court, appears upon his
own motion and demurs to the complaint, is not an intervener within section
24 of the Code of Civil Procedure, and his demurrer ao filed may bo properly
disregarded by the trial court.
Appeal from Nintii JudioicU District, QaUaiin County.
262 Dietrich v. Stbam D&edob. [March T., 1894
Action in rem. Judgment was rendered for plaintiff below
by Armsteong, J. On motion to dismiss appeal* Granted*
Statement of the case hj the justice delivering the opinon:
This action was brought under the provisions of title 7,
chapter 5, of the Code of Civil Procedure^ as to '^ Attachment
of Boats."
The complaint opens with the allegation: ''That the defend-
ant is, and at all times hereinafter mentioned has been, a boat;
that the same has no name, to the knowledge of the plaintiff,
but has been used as a steam dredge or shovel, with an amalga-
mator attached for dredging streams and amalgamating pur-
poses/' The plaintiff names the owner of defendant as the
Montana Mining and Investment Company. The action is
in rem. The complaint sets up the rendering of services by
plaintiff to the defendant boat, the agreed price for the same,
the consequent indebtedness to plaintiff, and that the services
were rendered on board of the boat in furnishing, operating,
fitting out, etc., under a contract made within this state. The
further paragraphs of the complaint set out the rendering of
similar services to the boat by other persons for certain prices,
and the assignment to plaintiff of the claims of said other per-
sons against said boat. The complaint prays for a warrant to
seize the boat, and that the claims set out in the complaint be
adjudged to be liens against the boat, having preference to any
other claims, and for judgment for the amount of the same.
Summons was issued and served upon the alleged boat by
posting a copy thereupon, according to the provisions of the
Code of Civil Procedure, section 214. The defendant steam
dredge and amalgamator itself, or its master, agent, clerk, con-
signee, or owners (Code Civ. Proc., § 216), never appeared in
the action by demurrer, answer, or otherwise.
Within the time allowed by law to file a demurrer or answer,
the Commercial National Bank filed what it claims to be a
demurrer. That document introduces itself with the follow-
ing language:
'^ Comes now the Commercial National Bank, by its attor-
neys, L. M. Cuthbert and Robert B. Smith, and says that it
has an interest in the defendant steam dredge and amalgamator
14 Mont.] Dietrich t;. Steam Duedgb. 263
for the reason that it has a judgment against the same, and
execution levied thereon, and is seeking to make a just debt by
sale of said property, and therefore demurs to the plaintiQ's
complaint herein for the following reasons: 1. Tiiat said com-
plaint does not state facts sufficient to constitute a cause of
action/' The instrument then contains a specific demurrer to
each count of the complaint. This document is signed as fol-
lows: '' L. M. Cuthbert and Word & Smith, attorneys for the
Commercial National Bank of Cleveland, Ohio.'' On the
expiration of ten days afler the service of summons upon
the boat, as above noted, the following default was entered:
^* In this action the defendant steam dredge and amalgamator,
having been regularly served with process, and having failed
to appear and answer the plaintiff's complaint on file herein,
and the time allowed by law for answering having expired, the
default of the said defendant in the premises is hereby duly
entered, according to law, this sixth day of January, A. D.
1892. John McLeod, Clerk."
The filing of the alleged demurrer by the Commercial
National Bank is the only appearance in the case (if it can
be called an appearance) by any person or thing.
This demurrer was not ruled upon by the court, but the
coui-t, on June 18th, entered judgment for the plaintiff on
the theory of a default, and ignoring the alleged demurrer of
the Commercial National Bank. The judgment recites: ''And
default of the said defendant and the said the Montana Min-
ing, Land, and Investment Company, the owner of the said
property so seized as aforesaid, having heretofore been duly
entered for not answering or appearing in said action, and no
appearance having been filed by the said the Montana Mining,
Land, and Investment Company, or by any master, agent, clei*k,
or consignee of, or any other person interested in, the said boat,
dredge, and amalgamator, its tackle, apparel, furniture, and
appendages, or by said defendant, and no answer for the said
company, or by any master, agent, clerk, or consignee of, or
any other person interested in, the said boat, dredge, and
amalgamator, its tackle, apparel, furniture, and appendages, or
the said defendant, having been filed, and the time for so
answering having fully elajised, the court, having considered
264 DiETBicH V. St£am Dsbdge. [March T.. 1894
the premises and the sworn allegations of the complaint^ finds
iu favor of the plaintiff/' etc This judgment appears to be
entered June 18, 1892.
On June 23, 1892, the following motion was filed:
'^ Comes now the Commercial National Bank of Cleveland,
Ohio, claiming to be the owner of the above property, and
moves the court to set aside the default, and open up the judg-
ment in this cause, and allow the Commercial National Bank
of Cleveland, Ohio, to file a petition in intervention in this
cause, upon the affidavit of Rob't B. Smith, herewith tendered. •
" L. M. CuTHBBRT and Word & Smith,
^'Attorneys for the Commercial National Bank."
With this motion was tendered a petition in intervention.
The motion by the bank to open the default and for leave to
file intervention was denied September 13, 1892.
The bank, on the first day of February, 1893, filed the fol-
lowing notice of appeal:
" To the above-named jilaifdiffy Loma Dietrich^ and to Messrs.
Luce & Luce, cUtomeys for plaintiff :
'^ You will take notice that the Commercial National Bank
of Cleveland hereby appeals to the supreme court of the state
of Montana from the order and judgment of the above-entitled
district court in refusing to entertain the demurrer filed in said
cause by said bank, and in overruling the same and entering
judgment for plaintiff in said cause, and from the order refus-
ing to open up said judgment, and in refusing to allow the said
Commercial National Bank to file its petition in intervention,
and make a defense to said action of plaintiff, and to the whole
of said orders and judgment, and to each of them, and the said
Commercial National Bank objects, and from the same, and
each of them, this appeal is prosecuted this January 30th,
1893. L. M. CuTHBBRT and R. B. Smith,
'^Attorneys for Commercial National Bank of Cleveland.''
This notice of appeal, it is claimed, brings the case before
this court for review.
Smith & Wwd^ for Appellant.
14 Mont.] Dietrich v. Steam D&£Das. 265
Luce & Luee^ for Bespondent
L It is contended that the Commercial National Bank's
demurrer should have been considered. The statute (§ 216, p.
112) provides who may appear for the defendant boat. By
the naming of the persons that could appear upon the part of
the boat all others were excluded, unless they came within the
provisions of section 24, page 64, of the Compiled Statutes.
Expremo uniua eat exdusio aUei-ius. The demurrer was not
an appearance for or on behalf of the boat under the provisions
of section 216, nor was tiie Commercial National Bank one of
the persons contemplated by said section who could appear on
behalf of said boat, it being neither the master, agent, clerk, or
consignee, nor did it stand in any similar condition towards
said boat. The words ^' other persons interested in tlie boat''
mean other persons ejvsdem generis. When there are general
words following particular and specific words, the former
must be confined to things of the same kind. (Sutherland
on Statutory Construction, §§ 268-73; Sedgwick on Construc-
tion of Statutory and Constitutional Law, 360, 361.) If the
demurrer filed by the Commercial National Bank was an
appearance at all, it was simply an appearance for itself as a
judgment creditor.
There is no doubt that the Commercial National Bank had
such an interest as that it might have intervened in the action
if the proper application had been made to the court. {Horn
V. Volcano Water Cb., 13 Cal. 62; 73 Am. Deo. 569; Cofee v.
Greenfield, 55 Cal. 382.) Not having done so, however, it is
an interloper at this time and a stranger to the action.
IL The Commercial National Bank cannot prosecute this
appeal. An appeal cannot be prosecuted by a stranger to the
reconl. {Montgomery v. Leavenworth, 2 Cal. 67; Ec parte
Cutting, 94 U. S. 14; He parU Cockcroft, 104 U. S. 578; Guicm
v. Liverpool etc. Ins. Oo., 109 U. S. 173; Bayard v. Lombard,
9 How. 530.)
III. The second order attempted to be appealed from is
the order refusing to open up the judgment, and to allow the
Commercial National Bank to intervene. The appeal is not
tenable at this time for the order was a special order made after
final judgment^ and no appeal was taken within sixty days.
266 DiBTBiCH V. Stbam Dbbdqb. [March T., 1894
(Comp. Stats., § 421, subd. 3, p. 174.) That the appeal must
be brought within tiie time specified in the statute or it is lost,
see 1 American aud English Encyclopedia of Law, 621, and
cai*es cited.
De Witt, J. — ^We will first examine the notice of appeal,
and ascertain what is before us. In the notice it is stated that
the ap|)ellant appeals from the order of the court refusing to
open the default, and refusing to allow the Commercial Na-
tional Bank to intervene. These orders were made September
13, 1892, upon a motion made June 23, 1892. These were
special orders, made (September 13th) after final judgment,
which was entered June 18th. An appeal from a special order
made after final judgment must be taken within sixty days.
(Code Civ. Proc., § 421.) This appeal was taken February 1,
1893, which was much more than sixty days after September
13tb, the date of the orders. Therefore, as contended by
respondent, the appeal from the order refusing to open the
default and allow the bank to intervene is not before us for
review. We cannot, therefore, inquire into the merits of the
application to intervene.
Looking further into the notice of appeal, we find that it
purports to appeal from some orders which are not appealable,
but we think it is fairly oonstruable as an appeal from the
judgment. It appeals from *Hhe order and judgment entering
judgment.'' To state that an appeal is from a ^'judgment
entering judgment'' is not apt or well-chosen language, but we
are of opinion that the intention is expressed to appeal from
the judgment, and that we should so construe it On the
appeal from the judgment we may examine the action of the
court as to the alleged demurrer of the Commercial National
Bank. It is observed by the record that the court did not
overrule the alleged demurrer, but, on the contrary, ignored it
altogether, treated it as naught, and rendered judgment as if
there were no demurrer filed, and upon the theory that the
defendant was in defiiult. It is clear that the defendant itself,
the alleged boat, did not appear, answer, or demur in this case.
Its default was entered after the time for appearing expired,
aud judgment was rendered against it. But was the filing by
14 Mont.] DiETBiCH V. Stkam Debdge. 267
the Commercial National Bank of the demurrer an apx)earanoe
of the defendant boat?
Section 216 of the chapter of the Code of Civil Procedure,
upon the ''Attachment of Boats/' provides that ''any person,
master, agent, clerk, consignee, or other person interested in
the boat, maj appear by himself, his agent, or attorney, for the
defendant, and conduct the defense of the suit''
The bank, in its demurrer, states that it has an interest in
the boat as fi creditor, but the bank does not appear for the
defendant. It appears for itself. The demurrer states that it
is the bank that demurs. The attorneys sign the demurrer as
attorneys for the bank, and not for the defendant The appeal
to this court is taken by the bank, and not by the defendant.
Whatever the bank attempted it attempted for itself. It is a
creditor trying to get security on the boat, and not a friend of
the boat, attempting to defend it. Indeed, the whole conten-
tion of the bank in this case is, not that the boat or the owners
thereof are aggrieved, but that the bank is injured, and seeks
redress by appeal. Therefore, the attempted appearance being
by the bank for itself, and not for the boat, and the boat not
having appeared in the case below, judgment was properly ren«
dered against it
Therefore, taking the ground, as the record shows is the
fact, that the bank acted for itself in filing the demurrer, did
it thus get into court and the case, and become a party to this
action? It was not a party when the complaint was filed and
the summons issued. It did not become a party by interven-
ing, as permitted by the Code of Civil Procedure, section 24.
It was not brought into the case by the court in pursuance to
section 26 of the Code of Civil Procedure, nor by the provisions
of section 27. If the bank ever became a party in this case, it
became so simply by filing the demurrer. But we do not under-
stand what authority it had to file that alleged pleading. The
person who may demur to a complaint is the defendant (Code
Civ. Proc, § 87.) The bank was not a defendant Indeed, the
bank neither is now, nor ever was, a plaintifT or a defendant or
an intervener. It is an outsider as to this case. It may be
conceded, in this discussion, that the facts were such that the
bank could have become an intervener by properly proceeding
26S Dietrich v. Staam Dbbdgb, [March T., 1894
in time under the provisions of section 24 of tlie Code of Civil
Procedure. That section (24) is as follows:
''Any person may, before the trial, inlerveuie in an action or
proceeding who has an interest in the matter of litigation in
the success of either of the parties, or an interest against both.
An intervention takes place when a third peraon is permitted
to become a party to an action or proceeding between other
persons, either by joining the plaintiff in claiming what is
sought by the complaint, or by uniting with the defendant in
resisting the claims of the plaintiff, or by demanding any thing
adversely to both the plaintiff and defendant, and is made by
complaint, setting forth the grounds upon which the interven-
tion rests, filed by leave of the court, and served u{)on the })ar*
ties to the action or proceeding who have not appeared, and
upon the attorneys of the parties who have appeared, who may
answer or demur to it as if it were an original complaint.'^
It is observed that this statute provides how a i)erson may
come into a case who has an interest in the litigation, or in the
success of either of the parties, or against both. He may not
come in of his own motion or "of course.'' He must make a
showing by complaint. He must have leave of court to file
the complaint. That pleading must be served upon the other
l>arties, who may answer or demur; and the court must deter-
mine whether a proposed intervenor may come into the case.
But this bank ignored all these rules of practice and statute.
Being an outsider and stranger to the suit as commenced, it
never asked leave of court to come into the case. It never
presented any complaint to which the parties already in could
have demurred or an8wei*ed. It never gave the court oppor-
tunity to determine whether it had a right to intervene. But
it steps into the case with its demurrer, and says that it has an
interest in the litigation; and this statement^ by itself, it deter-
mines for itself, in its own &vor. It comes into the case ''of
course,'' and upon its own motion, and without leave. It is
clear that section 24 provides that the court, and not the inter-
venor, determines all these matters. Under these views, we
are of opinion that the district court committed no error when
it simply disregarded the demurrer filed by the bank, and
entered judgment for plaintiff. ^
14 Mont] Manhattan M. Co. v. Swetbland. 269
Some very important questions have been argued in this
case; for example, as to whether the allied boat was, under
the allegations of the complaint, a boat, and whether a cause
of action was shown as to the claims which were assigned to
plaintiff. The constitutionalitj of the statute (title 7, o. 5)
is also questioned. But it appears that we have no jurisJictiuu
of this appeal. We have no jurisdiction to open the default
and allow intervention, because, as shown above, that appeal was
not taken within the time prescribed by statute. (Code Civ.
Proc., § 421.) Again, we have no jurisdiction to disturb the
judgment, because no person who was ever a partj thereto lias
appealed.
We see no other course but to dismiss the appeal, and it is
accordingly so ordered.
Pehbebton, C. J., and Habwood, J., concur.
MANHATTAN MALTING COMPANY, Rispondeot,
V. SWETELAND, Appellant.
[SabmitteclJaly n, 1S98. Decided Marofa 26, 1804.]
B?iiiiiia>— Xos( ifutrumenU—CopieB of record, token odmissi&Ztf.—Seotioii 264,
diTMon 6» of the OompUed Btetates, proriding that an instramentor convey-
aDce thai is lost or not within the power of the party wishing to nse the same
maybe proved by a copy certified by the recorder, being special in its character,
controls section 889 of the Complied Statutes, making certified copies of all
papers filed in the office of the recorder furima facie eyidenoe in all cases,
which is a general statute, and, therefore, npon the proof of title in ejectment
the admission in evidence of certified copies of conveyances, without proof of
loss or inability to produce the originals, is error. (Fiick v. Oold BiU and
lee Mountain Min. Co., 8 Hont 298, cited; McEinftry v. Clark, 4 Mont. 870;
Oaxfi^H M, A M. Co, v. Hammer, 6 Hont. 63, reviewed and modified.)
Appeal from Ninlk JudicUU Disliictf OaUatin OowUy.
EjEcriHENT. The cause was tried before Abmstrong, J.
Plaintiff had judgment below. Reversed.
Luce & Litce, for Appellant.
The court erred in i)ermitting the reading from the records
of deeds by the witness Yaill^ and in allowing the certified
270 Manhattan M. Co. v. Swetbland. [March T., 1894
copies to be filed^ as the testimonj showed theorigiDals to be in
the possession of the plaintiff at this time of trial. A copy of
the record of any conveyance of real estate or the record itself
cannot be used as evidence without proof of the loss of the
original, or that it is not within the power of the party wish-
ing to use the same. (Comp. Stats., § 264, p. 662.) Statutes
prescribing forms of procedure or modes of proof must be
strictly construed and pursued. (Sedgwick on Construction of
Statutory and Constitutional Law, 276-78.) So, when the
law prescribed the manner in which an act is to be done, it can
be done in no other way, (Sutherland on Statutory Construc-
tion, §§ 326, 392, 393, and cases cited; §§ 454, 459, and cases
cited.) It may be contended that section 839, page 868, of the
Compiled Statutes allows a different procedure. This makes
copies of records ^^prirna fade evidence in all cases.'' This is
a general statute applying to all records and papers filed. The
record of a conveyance of real estate only becomes evidence when
the loss of the original is shown. It is still secondary evidence
if prima facie^ and must come within the exception. (Sutiier-
land on Statutory Construction, §§ 326-28; Booth v. Tietjian,
109 U. S. 208; Macy v. Goodwin, 6 Cal. 580; FaUon v. Dougl^
eiiy, 12 Cal. 106; Reeding v. Mullen, SI Cal. 104; 8d>reey.Dorr,
9 Wheat. 663.) The same doctrine has been announced by the
supreme court of Montana in Siapleton v.Pecue, 2 Mont. 650.
The decision in MoKinstry v. Qark, 4 Mont. 370, was based on
the admissibility of a notice of location, and was followed in
Garfield M. & M. Co. v. Hammer, 6 Mont. 64, without any
distinction between deeds and location notices. The true rule
is laid down in Flick v. Gold HUl & L. M. M. Co., 8 Mont.
303, to wit: "We understand the true rule to be that, when
the law requires a record of any instrument, the record itself
is the best evidence of the facts therein stated*' .... "but
the rule itself is limited to such facts and instruments as by
law are required to be of record." In other words, the record
of a location notice is the best evidence of its contents, it being
required to be made by law and filed in the recorder's office as
the foundation of the right to possession of the claim. The
original deed, however, is the best evidence of its contents, and
the record thereof at best is only secondary evidence. Giving
14 Mont.] Manhattan M. Co. v. Swetbland. 271
to Garfield v. Hammer, 6 Mont 64, and MoKindry v. CHarh,
4 Mont 370, the greatest possible weight, they amount merely
to a construction of paragraph 4 of section 627 of the Code of
Civil Procedure. That a certified copy can be used ^' when the
original has been recorded, and a certified copy is made evi-
dence by this code or other statute.^' A certified copy of a
deed is only made evidence when the original cannot be pro-
cured. (Code Civ. Proc., § 264. See, also, Toudiard v.
Keyes, 21 Cal. 202-11; Y(mnge v. QuHbeau, 3 Wall. 636;
Brooks V. Marbury, 11 Wheat. 79, 82, 83; Hemley v. Tarpey,
7 Cal. 288,) "To introduce into a cause the copy of any
paper, the truth of that copy must be established, and sufficient
reasons for the nonproductiou of tlie original must be shown."
(C. J. Marshall, in Smith v. GairiTigton, 4 Cranch, 70.) The
truthfulness of the copy is proved by certificate of the recorder
under section 839 of the Code of Civil Procedure; the other
iacts must be shown by the party desiring to use the same.
JBarftnan, Ha^lman & Staaia, for Respondent.
Pehbebton, C. J. — ^This is a suit in ejectment, wherein
plaintiff seeks to recover possession of lot 8, in block 20, of the
town of Manhattan, in Gallatin county, and for the rents and
damages for the wrongful withholding of the possession thereof
by defendant. Defendant, in his answer, denies the material
allegations of thid complaint, and sets up an alleged equitable
title to the property in dispute. Judgment was rendered in
favor of the plaintiff. Defendant moved for new trial, which
was refused. This appeal is from the judgment and. order
refusing a new trial*
In the trial of the case the court permitted the plaintiff to
prove its title to the land in dispute by offering and using in
evident the records and certified copies of the patent from the
government, and all the conveyances of its immediate and
remote grantors, without any showing of the loss or inability on
its part to produce the original of such patent and deeds. This
was done over the objection of the defendant. This action of
the court is the principal error assigned in this appeal.
Section 264, page 662, of the Compiled Statutes is as follows:
272 Manhattan M. Co. v. Swkteland. [March T., 1894
''When aujsuch oonvejanoeor instrument is acknowledged or
proved^ certified and recorded lu the manner hereinafter pre-
scribed^ and it shall be shown to the court that such convey-
ance or instrument is lost, or not within the f>ower of the party
wishing to use the same, the record thereof, or the transcript
of such record, certified by the recorder under the seal of his
office, may be read in evidence without further proof/'
Section 82 of 1 Greenleaf on Evidence, fifteenth edition, is
as follows: ''Best evidence required. A fourth rule which
governs in the production of evidence is that which requires
the best evidence of which the case in its nature is susceptible.
This rule does not demand the greatest amount of evidence
which can possibly be given of any fact, but its design is to
prevent the introduction of any which, from the nature of the
case, supposes that better evidence is in the possession of the
party. It is adopted for the prevention of fraud; for when it
is apparent that better evidence is withheld, it is fair to pre-
sume that the party had some sinister motive for not producing
it, and that, if ofiered, his design would be frustrated. The
rule thus becomes essential to the pure administration of jus-
tice. • • • • Thus a title by deed must be proved by the pro-
duction of the deed itself, if it is within the power of the party,
for this is the best evidence of which the case is susceptible;
and its nonproduction would raise a presumption that it con-
tained some matter of apparent defeasance.''
In all cases when the law requires the evidence of a trans-
action to be in writing, no other proof can be substituted for
that, as long as the writing exists, and is in the power of the
party. (1 Greenleaf on Evidence, 16tb ed., § 86. See, also,
Taucliard v. Keyes, 21 Cal. 202; Youvge v. Ouilbeau, 3 Wall.
636; Marbury v. Brooks, 11 Wheat. 79; Smith v. Qimw^ow,
4 Cranch, 70.)
The respondent contends that this action of the court is justi-
fied on the authority of McRinstry v. Clarhy 4 Mont 370, and
OarjUld etc. Mining Co. v. Hammer, 6 Mont. 53. It will be
observed upon examination that these cases are mining cases.
The law requires that the discoverer of a mine shall record a
certificate of his location. The recording of his certificate of
location, as required by statute, is a sine qua non to acquiring
14 Mont.] Manhattan M. Co, v. Swbtbland, 273
a perfect title to his claim. The best evidence that an instrn-
ment has been recorded which the law requires to be recorded
is the record itself. These cases, it is true, are to the effect
that certified copies of deeds may be admitted in evidence, with-
out first showing the loss or inability to produce the original
by the party wishing to use them. These cases proceeded in
this respect upon the theory that the general principles of evi-
dence enunciated in the statutes of this state, and section 839,
page 868, of the Compiled Statutes, which reads as follows:
" Copies of all papers filed in the office of the recorder of deeds,
and transcript from the books of record kept therein, certified
by him under the seal of his office, shall be prima facte evi-
dence in all cases,'^ and which refers to the duties of the county
clerk, controlled the question of the admissibility of such evi-
dence.
The doctrine of these two cases is materially modified in
Flick V. Oold Hill do. Mining Co., 8 Mont. 298, wherein the
court says: " We understand the true rule to be that, when the
law requires a record of any instrument, the record itself is
the best evidence of the facts therein stated. In McKinairy v.
(Xarhf 4 Mont. 370, and Garfield do. Mining Go. v. Hammer,
6 Mont 53, the court seems to have overlooked or ignored the
force and effect of section 264, page 662, of the Compiled Stat-
utes. This statute has special reference to the admissibility of
the record or certified copy of a conveyance which has been
lost, or which is not within the custody, power, or control of
the party desiring to use it in evidence, and it specifically pro-
vides that such record or certified copy thereof may be used
^'when it shall be shown to the court that such conveyance or
instrument has been lost, or not within the power of the party
wishing to use the same." The statute is special in its char-
acter, having reference to a special state of facts or condition.
The rule in such cases is that a special statute shall control gen-
eral statutes on the same subject. Our statutes provide that,
when a general and a particular provision are inconsistent, the
latter is paramount to the former. Compiled Statutes, section
631, page 225, McKinstry v. Gark, 4 Mont. 370, and Qarfidd
etc Mining Cb. v. Hammer, 6 Mont. 53, involved in the main
the construction of statutes relating to instruments which the law
Vol. XrV.-lS
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^m
f]5
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IS
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686
ae*i88
a8*883
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274 Matbb i;. Carothbb3« [March T., 1894
required to be recorded. The law deed not require deeds or
conveyances to be recorded. Tbe record of such instruments
gives tbem no vitah'ty. The record is simply a notice to tbe
world. We think McKinatry v. Gark, 4 Mont. 370, and <7ar-
fidd etc Mining Co. v. Hammer, 6 Mont 63, in so far as they
hold that the record of conveyances, or certified copies thereof,
are admissible in evidence, without first showing the loss of
the originals, or that they are not within the power of the
party wishing to use them in evidence, are in direct conflict
with the laws of the state, not supported by the elementary
principles of law, or the great mass of adjudications, and should
therefore be, in that respect, modified.
The appellant also complains that the court did not deter-
mine or pass upon his rights under the alleged equitable defense
set up in his answer. As the appellant did not insist upon
this alleged defense, or offer any evidence in support thereof
on the trial of the case, without passing upon the merits thereof,
we are unable to find any error in the action of the court in
this particular. There are other errors assigned, but, as the
case must go back for new trial, we do not feel called upon to
treat them now.
The judgment of the court is reversed^ and the cause re*
manded for new trial.
Beversed.
Harwood, and De Wrrr, JJ., concur.
MAYER ET AL., Respondents, v. CAROTHERS et al.,
Appellants.
[Submitted Febraary 24, 1898. Decided March 26, 1B9L]
MnisB AVD MnfiKO— 5totu<0 of Hmitatiofu. -^The statnte of limitations doos not
commence to ran against a mining claim until the issuance of a patent there-
for. (King t, Thonuu, 6 Mont. i09, affirmed.)
TSovnTJiT-^JHrecting verdict. — Where an equitable defense is pleaded to an action
of ejectment, and the court peremptorily directs the jury to find for the plain-
tiff, such direction is, in effect, a nonsuit of defendant's defense, and, there-
fore, whateyer defendant's testimony tends to prove as to such defense must
be taken as proved. (McKay v. Jilontana Union By. Co,, IS Mont. 15; Creek
y. McManus, IS Mont. 152» cited.)
14 Mont, i Matab v. Cabothsrs. 276
Sams— ^>e^efit— JE'<2t<ttoM« defente—EBtoppeh— When town lots ritnated upon
a patented mining claim are claimed by defendants throngh oonveyanoefl from
one who assamed title thereto under an arrangement hy which the residents
of a mining gulch, at a meeting held for that purpose, resolred to lay off a
townsite, and, among other things, provided that each person might take up
two lots—the fisot that one of plain tlflTs grantors attended such meeting and
took part in the proceedings, and another took up town lots pursuant thereto,
does not create an equitable defense to an action of ejectment brought by the
patentees of such olsim to reooyer possession of the portions covered by the
lots in controversy. ( TtiUboU y. IRng, 6 Hont. 76, dted.)
Appeal from Siosth Judicial District, Meagher County.
Ejectment to recover possession of town lots upon the sur-
face of a mining claim. The cause was tried before Henbt^ J.
Plaintiffs had judgment below. Affirmed.
Took & Wallace, for Appellants.
L The court erred in excluding evidence of the adverse
possession of defendants and their predecessors in interest prior
to the issuance of the patent. After the receipt of the pay-
ments for the land and issuance of the receiver's certificate,
the United States held the bare, naked, empty title, and the
holder was the sole beneficiary in the premises described in it.
(Comp. Stats., § 542, p. 202; Herr(m v. Dater, 120 U. S. 464;
United States v. Freyburg,^ 32 Fed. Rep. 195; Hamiltm v.
Southern etc M. Co.^ 33 Fed. Eep. 562; DaJd v. Montana
Copper Co., 132 U*. S. 264.) The statute always runs against
the eestm que trust of a perfect equitable title. (Tiedeman on
Eeal Property, § 715; UdeU v. Peak, 70 Tex. 547; Uniied
States V. Beebe, 127 IT. S. 338, in connection with 1 Am. &
Eng. Ency. of Law, § 12, pp. 243, 244.) The statutes of
Montana have provided how plaintiffs could lose the right
to the possession of these town lots, and they have lost it.
Even if they could invoke the aid of the United States for
their protection, the courts apply the doctrine of laches,
when the party seeking to recover is the sole beneficiary.
{Cawley v. Johnson, 21 Fed. Rep. 492; Hunnicutt v. Peyton,
102 U. S. 368.) In those forms where an equitable title will
support or defeat an action of ejectment, the statute will run
against such equitable title. {Moreland v. Bamhart, 44 Tex*
275; WriglU v. Hawkins, 28 Tex. 471; Catoley v. Johnson,
276 Maybb v. Carothbbs. [March T., 1894
21 Fed. Bep. 492; Adr<m v. Hammond^ 3 McLean, 107;
Feting v. De Lore, 71 Mo. 13; Hannibal ete. R. B. Ch. v.
Clark, 68 Mo. 371; Norria v. Moody, 84 Cal. 143; WiUon v.
Fine, 14 Saw. 38; 38 Fed. Rep. 789, and authorities.) The
local laws of the state are distinctly recognized in possessory
actions, so far as mining claims are concerned, and the
statute runs in all courts, and the legal title in the United
States is of no consequence, because ejectment is maintainable.
(U. S. Rev. Stats., §§ 910, 914, 1850, 2322, 2324, 2326; Camp-
bell V. SUver Bow etc Co., 1 C. C. of App. Rep. 155; 49 Fed.
Rep. 47; Bdk v. Meagher, 3 Mont. 65; U. S. Stats. 1891,
§ 16, p. 1101, 2d Sess., 51st Congress.) It is the cause of
action against which the statute runs, and it is set in motion
as soon as the cause of action accrues. (Pomeroj's Equity
Jurisprudence, §§ 1396, 1397, note 3, 1405; Lewis v. Soule, 52
Iowa, 11, 13; Bteama v. Falmer, 10 Met. 35; Tiedeman on
Real Property, § 715; Roper v. Holland, 3 Ad. <& E. 99; 1 Am.
& Eng. Ency. of Law, § 12, pp. 243, 244, note 1, and authori-
ties cited; Corap. Stats., § 29, p. 65; Faneoeur v. Newhouee, 43
Fed. Rep. 241, 242.) And section 39, pages 67 and 68, of the
Compiled Statutes show the only exception to the above rule.
(Angell on Limitations, 381, 382, 476, 478, 485; Tynan v.
Walker, 35 Cal. 634; 95 Am. Dec. 152; Woodbury v. OoUins,
19 Wis, 60.) So a title, easement, or servitude, acquired under
the statute, is absolute and sufficient upon which to base affirm-
ative relief. (Arrington v. Liscom, 34 Cal. 365; 94 Am. Dec.
722; LeffingweU v. Warren, 2 Black, 599, 601.) Suppose that
the plaintiffs had leased the property for years, and the lessee
was in possession when the patent was received by the lessor,
would they not be estopped from evicting the lessee on account
of his lease? Again, suppose that plaintiff had executed a
mortgage upon his right and title to the property, after his
certificate had issued, and it had been foreclosed and sold, and
the equity of redemption had expired, would the receipt of the
patent thereafter cut off the rights of the purchaser and author-
ize a recovery in ejectment by the patentee? And again, tak-
ing the case as it is, being likewise a title acquired under the
statute, does the subsequent issuance of the patent reinvest the
patentee with a right of possession he has los( under the local
14 Mont.] Matsb v. Cabothers. 277
laws? Is it not by foroe of the local statute that this right is
lost in the one case as much as the other^ and does not the loss
of the right in the one affect the question of the primary dis-
posal of the soil as much as the other? Hence section 2322
of the United States Revised Statutes^ granting to the locator^
his ^^ heirs and assigns/' the exclusive right to the possession
of a mining claim, so long as he complies with the local and
federal statutes, subjects it to a claim less than a fee, that
accrues not only on account of a conveyance, devise, etc., but
includes those acquiring rights therein by "other acts of law."
(Rapalje and Lawrence's Law Dictionary, title "Assignee.")
The rights of defendants are through and under the grantors
of plaintiffs, and the plaintiffs are affected by those rights.
They are, in the sense of the statute, "assignees" of the locator
on account of which the rights of plaintiffs are affected. In
this section assignee, in our judgment, means a successor to the
interest of the locator, which under the law accrues to an
adverse holder for the period of the statute of limitation. It
must mean a lawful successor to the interest of the locator to
subserve the purpose of the statute, else it is exempt from sale
upon execution, or the operations of law by which that title
passes. {BaUy v. De Orespigny, L. B. 4 Q. B. 186; Brown
V. Orookaton etc. Assn., 34 Minn. 645; Anderson's Law Dic-
tionary, title "Assigns," 82.) So that " assigns," used in con-
nection with " heirs" before the patent, and referring to rights
acquired by location, comprises in law a successor to the inter-
est of the locator. It is, therefore, not an attempt on the part
of the state to enlarge the grant, so as to include assigns not
otherwise included, but is a provision contained in the act of
Congress disposing of the public domain.
II. The court erred in directing the jury to return a ver-
dict for the plaintiffs under the facts in evidence before them.
The question is no longer an open one, that the court acts as a
special tribunal, under section 2326 of the United States
Bevised Statutes, for the sole purpose of determining who is
entitled to a patent, and cannot exercise its general common
law and equity powers in adjusting and determining any other
question than that expressly submitted to it. The equitable
right of ix)sse8sion as between the applicant, or a legal right
278 Maybb v. Oabothbbs. [March T., 1894
thereix), growing oat of a lease or other contract relations, can-
not legitimately enter into the issues to be submitted, but the
right of possession referred to is a right which carries with it
a right to a patent, leaving all others, at least of an equitable
character, to be adjusted in a proper forum, ex post jaxixi the
patent. The judgment is limited to the facts submitted, and
is only res judicata as to them. The judgment is the basis of
the patent, and the patent is only conclusive of the facts upon
which that judgment is or can be based. Hence it is, we find
the courts holding tliat these equitable rights between the
parties are open for adjudication, notwithstanding the patent.
{Doe V. Waterloo Jf. Cb., 43 Fed. Rep. 219, 221; Hunt v.
Patdiin, 35 Fed. Rep. 816; Suasenbach v. F^et NaL Bank, 5
Dak. 477; Doherty v. Jform, 11 Col. 12; Marquez v. -FWzWc,
101 U. 8. 473; Johnson v. Towdey, 13 Wall. 72; Sheptey v*
Oman, 91 U. S. 330; and especially Bectar v. Oibbon, 111
IT. S. 276; Irvine v. MarehaU, 20 How. 668; Burlingtm etc.
B. B. Cb. V. Johnson, 38 Kan. 142.) It is now settled law
that there may be two freeholders in the same body of earth,
measured superficially and perpendicularly down towards the
center of the earth, to which theoretically the unlimited owner-
ship of the soil extends. (Washburn on Easements and Servi-
tudes, 558; WiUdnaon v. Proud, 11 Mees. & W. 33; Bowbotham
V. Wilson, 8 El. & B. 123, 142; New Jersey Zinc Co. v. New
Jersey Franiliniie Co., 13 N. J. Eq. 341, 342; MacSwinney
on Mines, 26, 268.) The presumption of ownership to the
center of the earth arising from ownership of surface may be
rebutted by evidence of long, actual, separate enjoyment of the
surface and the mines of difierent owners. (MacSwinney on
Mines, 27; Humphries v. Brogden, 12 Q. B. 739; Bom v.
Greenfel, Ryan & M. 398; OuHis v. Daniel, 10 East, 273;
Barnes v. Mawson, 1 Maule & S, 84; Cox v. Olue, 5 Com. B.
548.) No presumption of surface ownership arises from the
fact of ownership of mines. (MacSwinney on Mines, 26;
TyrwhiU v. Wynne, 2 Barn. & Aid. 654; MarshaU v. VUes^
water etc. Co., 3 Best & S. 748.) The right of property in
the surface and in the underlying mines may be shown to be
in difierent hands. (MacSwinney on Mines, 27; Bieh v.
Johnson, 2 Strange, 1142; Bowe v. Oreenfd, Ryan & M. 398;
14 Mont.] Mayeb v. Gabothebs. 270
HodglcvMon v, Fletcher ^ 3 Doug. 34; Sarria v. Ryding^ 5 Mees.
& W. 72; Cox V. GZw«, 5 Com. B. 548; Keyse v. PoweC, 2
£1. <& B. 144.) If the grantors of defendauta held an avail-
able title to the surfaoe in law or equity against the grantors
of plaintiffs^ it is available in the action against plaintiffs.
1. Because the jury did not have an opportunity to pass upon
the notice of defendants and their grantor's equities, as set up
in their answer, on account of which, for the purposes of this
trial, it must be assumed they had such notice, and that such
equities existed. 2. The actual possession and occupancy
established by defendants, in themselves and predecessors in
interest, which must be regarded as a fact (the instruction
shutting it out from the jury), was notice of all their rights
and equities, whatever they may have been. (Code Civ. Proc.,
33-36; Hughes v. United States, 4 Wall. 232; and see authori-
ties cited under subdivision 6, which are alike applicable here.)
3. The acts and declarations of McCureand Sutton, aside from
thequestion of possession, while holding the Keegan Lodedaim,
were competent, and binding upon plaiutiffis as their grantees.
(Code av. Proc., §§ 620, 621; MacSwinney on Mines, 26;
Q-ease v. Barrett, 1 Cromp. M. & R. 919; Stanley v. Orem,
12 Cal. 148.) 4. If sufficient in such case to raise an equity
against the grantors of plaintiffs, it is available against plain-
tiffs also. (Bryan v. Bamirez, 8 Cal. 461; 68 Am. Dec. 340.
Stanley v. Oreen, 12 Cal. 148; Snodgraaa v. BicMtts, 13 Cal!
359; Carpentier v. ThirOm, 24 Cal. 268.) 5. The acts of
McCure constituted a donation of the property, and the donee
entering and fencing, in accordance with the terms, could not
afterwards be evicted by the donor or his successor, with notice
of such facts as would put a reasonable person upon inquiry.
(Story v. Black, 5 Mont. 26; 51 Am. Rep. 37; Hughes v.
Vniied States, 4 Wall. 232; Landes v. Brant, 10 How. 348;
McEinzie v. Pennll, 15 Ohio St. 162, 168; Jones v. Maris, 47
Cal. 242; Bay v. Birdsey, 5 Denio, 626; Wade on Notice,
§§ 273, 279; Williamson v. Brown, 15 N. Y. 355; Harris v.
Arnold, 1 R. I. 125; Bees v. Smith, 1 Ohio, 127; 13 Am.
Dec. 599; Rogers v. Jones, 8 N. H. 264; Havens v. Bliss, 26
N. J. Eq. 363; Wickes v. Lake, 25 Wis. 71; McLaughlin v.
Slieplierd, 32 Me. 143; 52 Am. Dec. 646; Bailey v. White, 13
282 Matbb v. Gabothbbs. [March T., 1894
in 6 Utab, 376; Anzar v. MUUr, 90 Gal. 342, which overrules
the dietwn of Jastice Fox in Norria v. Moody, 84 Gal. 143;
King y. Ihomas, 6 Mont. 409; Neader v. Bigdow, 60 CaL 98.)
Appellants contend, however, that inasmuch as a perfect, equi-
table title vested in plaintifis when they obtained the receiver's
receipt for the land in question, and that the United States was
the holder of the naked, l^al title only, and that inasmuch as
ejectment may be predicated upon such equitable title, that
therefore the statute began to run from the date of such
receiver's receipt Precisely the same argument was advanced
in the numerous cases in the state courts where the same point
was involved. However persuasive such argument may be it
cannot be followed. When the United States gives a patent to
a man it gives some thing more than a mere piece of paper; it
gives also the right to possess and enjoy the land described in
the patent ''With the legal title, when transferred, goes the
right to possess and enjoy the land, and it would amount to a
denial of the power of disposal of Congress if these benefits,
which should follow upon the acquisition of that title, could
be forfeited because they were not asserted before that title was
issued." {Oibaon v. aumSeau, 13 Wall. 100.) The case at
bar is clearly within the principle announced in Sparks v.
Pierce, 115 U. S. 412; Pierce v. Sparks, 22 N. W. Kep. 491
(Dak., Feb. 6, 1886).
II. But counsel for appellants seek to educe a different rule
in the case at bar because the premises in dispute are a portion
of the mineral lands of the United States; and while conceding
that there can be no question of the statute beginning to run
only on the issuance of a patent for agricultural lands, that as
regards mineral lands it begins to run from the date of the
receiver's receipt It is submitted that this is a distinction
without a difference. It is true that the locator ot mineral
lands has a much greater control over his claim than has an
agricultural entryman, prior to final entry, over an agricultural
claim; but after such final entry, after the issuance of the
receiver's receipt for the entry money, the rights of the agri-
cultural entrymen are fully as broad and comprehensive as
those of the mineral claimant He can dispose of the land;
it cau be seized under legal process against him; it is subject to
14 Mont.] Maysb v. Cabothbbs. 283
tazatioQ; he has nothing farther to do to i^rfect his title than
to receive the patent therefor; he is the owner of the fnll equi-
table title; the United States are the holders of the dry, legal
title merely in trust for him; his entry 'Ms equivalent^ so far as
the government is concerned, to a patent actually issued. The
execution and delivery of the patent after the right to it has
become complete are the mere ministerial acts of the officers
charged with that dnty.'^ (See cases cited in Steele v. BoUi/, 6
Utah, 376.) And yet with such a title as this, as we have seen
in the cases cited, supra^ the unquestioned rule is that the stat-
ute runs not from the date of the receiver's receipt, but from
the date of the patent. But we are not without direct author-
ity that as to mineral lands the statute begins to run only from
the date of the patent. Precisely the same point was squarely
raised and so decided in King v. Thoma8f 6 Mont. 409, and in
Nesder v. BigdaWj 60 Cal. 98, and is involved in Sparks v.
Pierce, 116 U. 8. 412. Afortiorij if the statute does not begin
to run at the date of the receiver's receipt, it does not run from
the date of the location of the claim.
IIL King y. Tlhomaa, 6 Mont. 409, was decided in 1887;
the rule there announced was a deliberate judicial decision con-
curred in by all the court; it is safe to say that it has become
a rule of property, that many and important rights have grown
out of the same, and even, therefore, if this court should doubt
its correctness, it at least should follow it under the doctrine of
slare deeisie. [Pioche v. Paul, 22 Cal 106; Smith v. McDonald,
42 Cal. 484.)
IV. As to the so-called equitable defense. It is apparent,
both from the plea in the answer and the testimony adduced
on the trial, that defendants were not basing their alleged
equitable title upon any title dependent upon that of the plain-
tiffs, but upon a hostile and adverse one, the contention being
not only that plaintiffs never owned the lots in dispute, but
that even if they had owned them, such title as they had had
passed from them to defendants by virtue of their adverse pos-
session under the statute of limitations. This being so, it
would follow that not having asserted such adverse claim at
the time of the application for the patent to the Keegan lode
under the United States Revised Statutes, section 2326, they
284 Mayxb v. Cabothbbs* [March T., 1894
are now barred from asserting it {Shafer v. OmsUins^ 3 Mont.
369; MaUingly v. Leunsohuy 8 Mont. 260; BuUe City Smoke^^
house Lode Cases, 6 Mont, 397; TcdboU v. Zingr, 6 Mont, 76;
Sparks v. Pierce, 116 U. 8. 412.) The authorities cited in
appellant's brief are clearly distinguishable from this view.
In those cases the claims which were held not necessary to
assert under section 2326 of the United States Revised Stat-
utes were such as were dependent upon^ and not hostile to, that
of the applicant for patent.
Y. Appellants seem to claim that the form of the two
deeds to plaintiffs is such as to '^ place them outside the pale
of bona fide purchasers/' possibly on the ground that tbey con-
tain the words '^ remise, rdease, and quitclaim." There is noth-
ingy however, to show that these words were intended to limit
the estate conveyed by the words of grant, bargain, and sale.
The evident intent of the grantors was to convey specific inter-
ests in the Keegan lode, to wit: Ten-twelfths and two-twelfths;
and even if they were ^'quitclaim," pure and simple, they are
sufficient to pass the interests conveyed, and would prevail
over any older but unrecorded conveyance. (Comp. Stats.,
div. 5, §§ 260, 270; Qraff v. MiddleUm, 43 Cal. 341; Frey v.
aifford, 44 Cal. 335.)
y I. The consensus of all the authorities is to the effect that
in order to constitute notice or knowledge to the subsequent
purchaser there must be a possession which is actual, open,
visible, exclusive, uninterrupted, unambiguous, and inconsist-
ent with the record title; it must be an occupation, a possessio
pedis; the alleged equitable owner, either in person or by his
agents or lessees, must be on the ground itself; the ground must
be subject to his will and control; a vacant or constructive
possession is wholly insufficient. An intending purchaser is
bound to inquire only of those on the ground at the time of
the purchase. (5 Lawson's Rights, Remedies, and Practice,
3831, 3832; Wade on Notice, §§ 288, 291; McMediam v.
Oriffing, 3 Pick. 149; 15 Am. Dec. 198; BiuJ:; v. HoUotoay,
2 J. J. Marsh. 180; Boggs v. Vatmer, 6 Watts & S. 469;
Jleehan v. WUliams, 48 Pa. St. 238; GampbeU v. Brackenridge,
8 Blackf. 471; Ely v. Wilcox, 20 Wis. 523, 531; 91 Am. Dec
436; SmUh v. Yule, 31 Cal. 180; 89 Am. Dec. 167; Sairifard
14 Mont.] - Mayeb v. Carothbrs, 285
V. Weeks, 38 Kan. 319; 5 Am. St. Rep. 748; Taylor v. Ontral
Poo. B. B. Co., 67 Cal. 615; Abbott's Trial Evidence, 716,
717.) Fencing a piece of land is not the actual possession or
occupation which is essential, {Wolf v, Baldwin, 19 Cal. 306.)
Nor can it be said that such an act is an unambiguous asser-
tion of title, or that it is inconsistent with the record title.
The testimony of defendants, wherein notice on the part of
plaintiffs was sought to be charged, was wholly insufficient;
nor was it in any way as broad as the allegations of the answer;
so that if the court did not err in overruling the demurrer to
the answer, neither did it err in holding such testimony insuf-
ficient to charge plaintiffs with fraud.
YIL Plaintiffs are not estopped from asserting their rights
because of the erection by defendants of improvements on these
lots. There was no privity between them and no inducements
held out; defendants were trespassers from the start as against
the rights of plaintiffs; and even if any explanation of plain-
tiff's nonaction were necessary, it is supplied by the fact that
prior to the erection of any buildings the then husband of
defendant Cornelia Carothers had sought and obtained per-
mission from plaintiff to build, and that defendants had not
asserted an adverse title until shortly prior to the beginning of
this suit.
yill. Upon the state of facts of this case there was noth-
ing to submit to the jury. If the cas^ has been submitted, and
the jury had brought in a verdict for defendants, the court
would have been constrained to set it aside as being contrary
to the evidence; to charge them, therefore, to find for plaintiffs
was no error. (Martin v. Ward, 69 Cal. 129.)
De Witt, J. — ^This is an action in the nature of ejectment.
Plaintifis recovered judgment. Defendants' motion for new
trial was denied. From the order and the judgment defend-
ants appeal. The subject of the action is described as lots 6,
6, 7, 8, and 9, in block 5, of the townsite of the town of Nei-
hart. These lots are a portion of the surface of the £eegan
mining claim. Plaintiffs became owners of this mining claim
by mesne conveyance from the locators on June 30, 1884.
On July 27^ 1887, plaintiff were granted a patent by the
286 Mayke v. Carothbrs. [March T., 1894
United States for Keegan miniDg claim, in pursuance to
an application made by them, and allowed April 4, 1886.
There are two points which are urged by appellants, and
which we will examine. This action was commenced June 27,
1891. On the trial the defendants offered to prove facts tend-
ing to show an adverse possession of the premises in contro-
versy for a period sufficiently long to bar the action, but a
portion of such period was necessarily prior to July 27, 1887,
the date of the issuance of the United States patent for the
Keegan mining claim. The district court held that such tes-
timony, showing adverse possession prior to the issuance of
patent, was not competent, for the reason that the statute of
limitations did not commence to run against a mining claim
until the issuance of United States patent therefor. This ml-
ing is assigned as error. The district court in this respect
followed exactly the decision in King v. Uiomaaj 6 Mont. 409»
in which case precisely the same point was decided, and in the
same manner as in the case at bar. In fact, on this appeal we
must, as to this point, affirm the district court, or we must
directly overrule the doctrine of King v. Thxmias, 6 Mont. 409.
Indee<1, the latter is what appellants' counsel, in a very able
brief, ask us to do. But to reconsider King v. Uiomas, 6
Mont. 409, would be to disturb a rule of decision and a princi-
ple as to titles of real property which are now of seven years'
standing. The case of Kirig v. Thomas, 6 Mont. 409, was
decided in the year 1887. It is a matter of history in this
state and in this court that at that time very many cases were
tried and pending in which the plaintiffs were grantees in
United States patents for mining claims, and the defendants
were occupying portions of the surface of such claims for town-
site purposes. There was great contention at that time in
such cases as to how the statute of limitations should be applied
as against lands held as mining claims; that is, whether the
statute should begin to run at the date of the location of tlie
claim, or at the date of the issuance of the final receipt from
the land-office, or at the date of the issuance of patent. King
v. Thomas, 6 Mont. 409, settled this contention, and announced
the rule that has now been undisturbed for seven years. It
must be that many contentions have been settled under this
14 Mont.] Maybb v. Caeothees. 287
doctrine, and that many titles to real estate have been governed
thereby. When we regard the history of conflicts between min-
ing claimants and townsite claimants in this state, the doctrine
of stare decisis in regard to such titles appeals to the court with
very great force. We feel at this time that we must decline to
reconsider the case of King v. Thomas, 6 Mont. 409, Counsel
refer to Fioelie v. Paul, 22 Cal. 106, and Smith v. McDonald, 42
Cal. 484. See, also, BUm v. Qmrtis, 31 Cal. 402; Beed v. Oum-
bjf, 44 Mo. 206; Moore v. OUy of Albany, 98 N. Y. 410; 1
Kent's Commentaries, 476; MeUxUfy. Prescott, 10 Mont 293.
The appellants ui^e a second point as follows: They pleaded
and offered testimony on what they insist is an equitable defense.
The offered testimony is as follows: In the spring of 1882
about fifteen or twenty people were in the gulch where the
town of Neihart now is; on the 6th of April of that year a
meeting of those citizens was held for the purpose of laying
off a townsite; the £eegan was then a located mining claim;
one of its owners, Paul McCure, attended the citizens' meet-
ing, and took part in the proceedings. It was resolved at that
meeting that the surface ground in the gulch be laid out for
townsite purposes, and the town was named Neihart. From
the minutes of that meeting, which were offered in evidence, it
appears that the boundaries of said town were fixed; a recorder
was appointed to' lay out the town and keep a book of records
of lots; the size of the lots and widths of the streets were
defined, and it was resolved that one person could ^'take
up" two lots only. These lots were " taken up," as it was
called, by the recorder making an entry in his book, and trans-
fers of claims seem to have been made in about the same way.
In pursuance to the proceedings of this citizens' meeting,
James L. Neihart filed upon, or ^'took up," the ground which
is now in controversy. Hesold to one Thompson, and Thomp-
son, on August 3, 1884, sold the premises to the defendants,
who have put valuable improvements on the same. The own-
ers of the £eegan claim were aware of the proceedings of the
citizens' meeting, and one of them, Sutton, took up two town
lots in pursuance to the proceedings of said meeting.
The defendants submitted to the court an elaborate set of
instructions. In view of the action taken by the court, and
288 Mayer v. Caeothers. [March T., 1894
set out below^ it is not necessary to review these instructions
further than to observe that tliey propose to submit the
so-called equitable defense to tlie jury. The court refused all
of these instructions^ and submitted the case to the jury upon
one instruction only, which is as follows: "The court instructs
the jury that, under the evidence in this case, the defendants
cannot recover in this action; your verdict must therefore be
for plaintiffs.*'
We must here turn aside from this alleged equitable defense,
and examine for a moment a question of practice as to the action
of the court just described. Defendants contend that the ac-
tion of the court in so peremptorily instructing the jury was, in
effect, a nonsuit of defendants as to the equitable defense, but that
no motion for a nonsuit was made, and that therefore, although
the effect of the action was a nonsuit, yet the defendants were
not in a position to apply the rules governing a nonsuit; that is,
defendants contend that, instead of nonsuiting their equitable
defense, the court took the verdict of the jury thereupon. But
in the view that we have heretofore taken of the nature of a
direction by the court to find a verdict, we are of opinion that
defendants were not injured by the action of the court. When
upon a trial the court peremptorily directs a jury to find for
the defendant, this is in effect granting a nonsuit against plain*
tiff, and must be treated as such. {McKay v. Montana Union
Ry. Co., 13 Mont. 15; also Oeek v.MoManu8, 13 Mont. 162.)
There seems to be no reason why the ruling of a nonsuit
against plaintiff should not be applied to what is in effect a
nonsuit of defendants' defense. Therefore, in this case, when
the court peremptorily directed the jury to find for the plain*
tiff, it practically nonsuited defendants as to their equitable
defense. Therefore the rules and principles applicable to a
nonsuit should be applied to defendants' situation in this case.
Therefore, whatever defendants' testimony tends to prove as to
the equitable defense will be taken as proved, and as the fact
Therefore, the consideration now before us is whether the di^
izens' meeting, and the taking up and transfer of lots, and all
the other facts detailed, constitute an equitable defense to this
action of ejectment. This contention, like the first point con-
sidered in this case, we are of opmion is at rest in this state.
14 MontJ Maybb v. Oarothers. 289
{TalbM V. Eing, 6 Mont 76.) We quote from that case as
follows:
"Matter is alleged in the answer as an estoppel, and on the
trial the defendants sought to prove that tlie former owners of
the Smokehouse claim, and while so the owners thereof, and
knowing that the said claim would be in the proposed bound-
aries of the townsite of Butte, joined others in petitioning the
probate judge to enter said townsite for a imtent, and in
acoordanoe therewith the town site was patented, and the own-
ers of the Smokehouse claim accepted from the probate judge
deeds to lots on said claim; and that these owners declared
that they would not interpose or assert their title to this min-
ing claim, or any rights thereunder, as against the townsite
patent, or those claiming under the same. This testimony was
rejected, and error assigned accord ingly,
"All these matters alleged as an estoppel took place and were
in existence before the time that respondents made their appli^^
cation for a patent to the Smokehouse claim. If tliey were
estopped at all, they were estopped from applying for or
receiving a patent Subsequent to these alleged acts and
declarations, the owners of the Smokehouse claim took the-
necessary steps for procuring a patent thereto. In order to do
so, they filed their application, as the law required, in the
proper land-office, showing acompliance with the laws, together
with a plat and the field notes of their claim, made by and
under the direction of the surveyor general of the United
States for Montana, showing the boundaries of their chim, and
they also, previously to the filing of the application, posted a
copy of the plat, with a notice of their intended application, in
a conspicuous place on the claim. When such application was
filed in the land-office, the register published a notice that such
apphcation had been made, for the period of sixty days, in a
newspaper nearest to such claim; and also posted a notice in
his office for the same period. It is a conclusion from the
issuing of the patent that all these requiremente were comph'ed
with in making their application. (Sieel v. Smelting Cb., 106
U. S. 447.)
"The object of this exceeding care and publicity in applying
for a patent for a mining claim is to give notice to any and all
Vou XIV. —19 y • *
290 Maybr v. Caeothers. [March T., 1894
adverse claimants that such application lias been made, in
order to give tliem an opportunitj to contest in tlie^manuer
provided by law, and before a court of competent jurisdiction,
the applicant's right to a patent for the ground he claims.
The conclusiveness of the title by patent grows out of the fact
that this opportunity has been given to all adverse claimants
to contest the right of the patentee. The theory of the law is
that, unless the adverse claimant sets up his title, and contro-
verts the right of the applicant for a patent during the period
prescribed for this pur()ose, he thereby loses his right or title,
whatever it may be, and cannot thereafter assert the same.
Therefore, if the respondents were not entitled to a patent for
the Smokehouse claim, for the reason that they were estopped
from applying for and demanding the same, an adverse claim
by appellants would have made this fact to appear^ and
defeated their application."
There is a parallel between the facts offered as a defense in
TaJboU V. King, 6 Mont. 76, and the facts so offered in the
case at bar, except that in Talbott v. King it would seem that
a much stronger showing was offered by defendants than was
shown in the case at bar. Here it is claimed that the mine-
owners devoted and donated the surface of the Keegan daim
to townsite purposes, by reason of the fact that one of them
attended and participated in the citizens' meeting described
above. In TdlbotL v. Kifog^ 6 Mont. 76, the mine-owners peti-
tioned the probate judge, an officer recognized by the laws of
the United States as the proper one for such purpose, to enter
as a townsite the surface ground of their mining claim, and
they thus helped to set in motion the governmental machinery
which finally turned out a United States patent for the town-
site.
The result of the action of the citizens of Neihart, including
the mine owners, was not to obtain any United States title to
a townsite, but simply to create a recording office, in which
persons could, as it was said, ^'take up" town lots. On tlie
other hand, the result of the action of the citizens of Butte,
including mine-owners, was the issuance of a United States
patent. The owners of the Keegan claim '^took up" two town
lots, in pursuance to the proceedings of the citizens' meeting.
14 Mont.] Maybb v. Cabothers. 291
The owners of the Smokehouse olaim of Butte accepted deeds
from the probate judge for lots granted by the townsite patent
from the government. The owners of the Keegan claim par-
ticipated in the citizens' meeting described, which purported to
devote the surface of mining claims to townsite purposes. The
owners of the Smokehouse claim petitioned a public officer to
apply for a townsite patent, and declared that they would not
interpose or assert their title to this mining claim, or any
rights thereunder, as against the townsite patented or those
claiming the same.
It is said in TalboU v. Eingy 6 Mont. 76, that all the mat-
ters set up took place and were in existence before the time
that the Smokehouse claimants applied for their mining title*
Such is true also as to the Keegan claim herein. It is said of
TaJboU V. King, 6 Mont. 76, if the Smokehouse claimants were
estopped at all, they were estopped from applying for, or
from receiving, a patent. Such would also be true as to the
Keegan claimants.
We need not compareany further the facts in the Smokehouse
case and those in the case at bar. We think it is perfectly
apparent that the Smokehouse case decides the appellants' con-
tention here adversely to them. If the facts offered in the
Smokehouse case were held not to constitute a defense, then,
a fortiori, the less forceful £Eicts offered in the case at bar
were not a defense, even when their truth is fully conceded.
The order denying a new trial and the judgment are
affirmed.
FfiHBERTON, C. J., and Habwood, J: Without being
understood as questioning the doctrine of King v. Iliomas, 6
Mont 409, we concur in the result
202 Obowlby v. Commissionbbs. [March T., 1891
CROWLEY, Appellant, v. BOARD OF COMMIS-
SIONERS OP GALLATIN COUNTY et al,, Re-
8POKDE17T8.
[Babmitftad lUrch 13, 18M. Decided March M, 18M.]
BoAi»^Proo€0ding9 to open—Validiiy.—ltk an aotton to enjoin the opening of a
road tfarongb plaintifTa land It ia no objection to the validity of the prooeed-
inga laying out the road that, aa finally ordered opened, it deTi*ted aomewhat
from the deaoription in the petition therefor.
SAMm^Same^Quaiyioation of «i«iMrt— JBeoord.— A rewlotion b7 » board of
coonty commiaaionera ordering a road opened in aecordanoe with their order,
appointing aa a board of liewera three peraona "who poaaeaa the atatntory
qoAlificationa,'' ia a anffleient reoord in their proceediuga that the viewera
i^ppointed were qaalifled *'aa hoaae-holden of aaid oonnty," aa provided by
atatate.
BjJtt^Same^'QuaHfieationi of 9ietoeri^Relatiofuhip,^Th» validity of proceed-
inga to open a road are not aiSected by the fact that two of the viewera appointed
to act in aoch proceedinga are related to each other; nor by the fact that one of
inch viewera waa a petitioner for the opening of the road, since the action of
the viewera being merely adviaory, the party complaining may .demand that
the qneation of damagea be anbmitted to a Jury, and alao baa the right of appeal.
BJJtm— Same—Width of rood.— It ia no objection to lach proceedings that the
width of the propoaed road waa not deaignated in either the report of the
viewera or the order opening the road, aince the width of all pablic highways
being fixed by atatnte, aach width prevalia where the proceedings are ailent
upon that point.
BAMM—Same-^FindingM try commisHonen—OUiwenihip of petUionert,^lD. the
absence of statutory reqoirementa aa to citiaenahip of petitioners for the open-
ing of a road, it ia not neceaaary that the commisaionera find in their proceed-
inga that the petitionera were dtisena of the United IStatea or of the eoonty,
or to make findings in detail of fiMts, the recording of which is not rsqnirsd
by statnta.
Appeal from Ninth Judicial Didiid^ OaUatin Oounty.
Action to enjoin the opening of a county road. Judgment
was rendered for the defendants below hj ABMBTBOKai J.^ on
demurrer to the complaint Affirmed.
Hartman & Hartnum^ for Appellant,
K X. Knoulu & John A. Lum^ for Respondents.
Habwood^ J. — ^Bj this action plaintiff invoked the power
of the court to enjoin the opening of a road through his land,
in his complaint alleging: His ownership of a tract of valuable
farming land situate in Gkillatin county, giving a particular
description thereof; that defendant board of county oommis*
14 Mout.] Crowlby v. Commissionbbs. 293
Bioners of said county and road supervisor threaten to, and
were about to, open a road through his said land, pursuant
to certain proceedings, to wit, a petition for the establishment
aud opening of said road as a public highway, and the approval
thereof, and appointment of road viewers by said board of
county commissioners for the purpose of viewing and report-
ing upon said proposed road, as provided by law; the report
of the viewers; the record of the action of the board of county
commissioners thereon, approving said report, and ordering
that ''said road is hereby established, and ordered opened,
according to a resolution adopted by the board of commis-
sioners hereto attached, and recorded in the journal of pro*
oeedings of the board of commissioners''; also, the notice that,
pursuant to those proceedings, said defendant Sloan, road
supervisor of the district wherein said road is established, had
been ordered to open and work the same from and after sixty
days from the da' e of said order, in acconlance therewith. A
copy of which petition, report, resolution, notice, etc., was
attached to the complaint as exhibits, to be pait thereof. And
the plaintiff proceeds to allege: That pursuant to those pro-
ceedings the defendant board of county commissioners and
said road supervisor of that road district threaten and are
about to open a public highway through the described tract of
land of plaintiff for the distance of one mile, ''one-half mile of
which will pass through said land diagonally, and the same
will appropriate about six acres thereof for said road, compel-
ling plaintiff to build fence a distance of a mile and a half, at
a cost of two hundred and eighty-eight dollars''; thereby ren-
dering valueless, for farming purposes, thirty acres of said
land, which is of great value to plaintiff, and that he will
thereby also suffer great and irreparable injury and damage
to all of his premises. That the proposed opening of said
road by defendants, and the pretended notice, and all the pro-
ceedings upon which the order for opening said road is based,
are null and void, and without any force and effect, for various
alleged causes, which are specifically enumerated in the com-
plaint. Such of these alleged grounds for avoiding said pro-
ceedings aa are relied on by appellant to support his complaint
on this appeal will be set forth and considered further along in
294 Crowley v. Commibsjonebs. [March T., 1894
till j opinion. Upon the filing and presentation of the oomplaint
to tlie judge of the district court wilbin and for said county,
together with the usual bond in such cases, a temporary
injunction was by the court granted, forbidding the opening
of said road until otherwise ordered by court. Thereafter,
defendants appeared, and demurred to the complaint on the
ground that it failed to state facts sufficient to constitute a
cause of action, and such demurrer was, upon consideration,
sustained. Consequently, the temporary injunction, being
without support, was dissolved. Plaintiff declined to amend
his complaint, and judgment of dismissal of the action, with
4906ts against plaintiff, was therefore entered, from which judg*
meut and order dissolving the injunction this appeal is brought
up by plaintifil
It is apparent from the record and briefs of counsel that
the demurrer was sustained because, in the opinion of the
court, the complaint, with the exhibits thereto, shows that the
county commissioners had proceeded r^ularly, and according
to the provisions of statute, in the matter of ordering said
road opened, as far as that proceeding had gone before injunc-
tion issued. With this premise, we proceed to examine the
claims on which plaintiff's counsel insist that the proceedings
for opening said road are void, as specified in the complaint
and their brief.
It is several times averred in the complaint that the pro*
posed road is not sufficiently described in the proceedings for
opening the same; but nowhere, either in the complaint or
brief, is there specification of defect or error in such descrii>-
tion. The proposed road appears to have been suffidentiy
described to enable plaintiff to make a verified allegation in his
oomplaint that said road ''runs through plaintiff's said land
a dktanoe of a mile, and for a distance of half a mile, runs
through said land diagonally"; that such road will appropriate
about six acres of said land, and compel plaintiff to build a
mile and a half of fence, at a cost of two hundred and eighty-
eight dollars. It seems that plaintiff was able to deduce from
the description of said road such exact data as to its pro|)Obed
location and effect on his premises, and all this appean
to be directly and readily deduoible from the description of
14 Mont.] Cbowlet v. Commissioners. 295
said road given iu the various exhibits attached to plaintiff's
complaint. Tiiat description^ as given in the notice of the
road supervisor that he would proceed to open said road as
directed hj said board of commissioners^ and work the same
sixty days after the date of said order, reads as follows: '^ Be-
ginning at the N. W. cor. of the N. E. i of sec 22, T. 1 N.,
R. 2 E., and run 2,643 feet S. on the quarter line of said sec
22; thence, in a S. W. direction^ to a point on the south line
of sec. 22, 1,698 & 8/10 feet east of the southwest corner of
said sec; thence, on same course south, 18 degrees 39 minutes
west, 386 & 7/10 ft.; thence south, 10 degrees 45 minutes west,
4,195 & 3/10 ft.; thence south, 42 degrees 40 minutes west,
1,125 & 5/10 ft, to southwest corner of section 27, T. 1 N.,
B. 2 E., — in Gallatin county, state of Montana." If this
description is not sufficient, plaintiff has &il6d to specify the
points wherein he has discovered defects or uncertainty.
There is also an objection that the petition for the opening
of said road did not accurately describe the same, and further-
more, that the road, as finally ordered opened, after report of
the viewers, and consideration of the question of opening such
road, deviated somewhat from the description in the petition
therefor. It is not unlikely that after report of the viewers,
and consideration by the county commissioners of the question
of opening such road, some deviation from the original pro-
posed location, as set forth in the petition, might be made.
Nor has any provision of law been cited, or any reason sug-
gested, forbidding such an exercise of discretion on the part of
the public agents charged with the duty of establishing publio
liighways. Such objection seems to be without force. Besides,
in this case, the variation between the petition and final order
for opening the road does not appear to be very great.
It is further contended that the proceedings of the county
commissioners in this matter did not show that the viewers
appointed were qualified ''as householders of said county," as
provided by statute. The resolution of the board of county
commissioners authorizing the opening of said road, a copy of
which is attached to the complaint, recites ''that, in accordance
with the order of said board of couuty commissioners, ma«1e
March 14, 1893, appointing three persons, who possess the
296 Ceowlky v. Commissioners. [March T., 1894
statutorj qualificatioDSy as a board of viewers^ aud fixiug the
time for their vieW| the said road is established, aud ordered
opened.'^ Such is the affirmance of tbe resolution of the
county commissioners as to the qualification of the road
viewers appointed in tliat behalf. Plaintiff does not allege
in his complaint, or assert in the brief of his counsel, that
either of said viewers were wanting in the qualifications
required hj law; bat confines his objection to the point tbat
the commissioners did not record in their proceedings that the
viewers possessed the statutory qualification, which is evidently
a mistake, as shown by the resolution of the board of county
commissioners.
Again, it is alleged in the complaint, and contended on this
appeal, that said proceedings of the board of county commis-
sioners are void because two of said road viewers were brothers-
in-law, and one of them a petitioner for the opening of said
road. This is the only objection found in the case which
appears to be of any force. It is of paramount importance,
as a safeguard to the administration of justice, that those
appointed aud empowered to decide upon the rights of parties
involved in con'.roversy should be disinterested and unbiased;
aud probably, even in the opening of a public highway, tbe
better rule would exclude from the viewers those who petition
for, as well as those wbo oppose, the opening of the same. But
inasmuch as no statute is violated in appointing a petitioner,
and inasmuch as the action of the viewers is neither final nor
controlling, but their recommendation, at most, is advisory to
the board of county commissioners, subject to be objected to,
contradicted, and disregarded by the board of commissioners,
in its final consideration, and, on tbe vital question of damage
by reason of opening such road, the parties have a right to
demaud that the same be submitted to a jury, aud to appeal to
the district court, if dissatisfied, we think, in view of these con-
ditions, the objection that the petitioner was also a viewer is
not sufficieut to avoid tbe proceedings. The fact that two of
the viewers were related to one another, as brothers-in-law,
does not, in our opinion, amount to ground of exception.
Jurors sitting iu the trial of a cause may be related^ and yet
14 Mont.] Crowlby v. Commissioners. 297
that fact is not disqualificatioD^ if they are not related to either
party to the controversy.
A farther objection urged against these proceediDgs is that
neither the report of the viewers nor the order directing said
road to be opened designated the width of the proposed road.
The statute on this subject provides that '^all public highways
hereafter laid out in this state shall be sixty feet in width ,
unless otherwise ordered/' (Comp. Stals., div. 6^ § 1822.)
In this proceeding it was not otherwise ordered as to the width
of said road, and therefore its width is fixed by law; and there
is no presumption that the supervisor would depart from the
requirement of the law, nor is it alleged that he threatened or
was about so to do. The petition asked for the oi>ening of a
road sixty feet wide, and finally, after the viewers' report was
brought in and considered, the commissioners ordered the
supervisor to give the notice required by law, and to open said
road. There is no force in the objection that the proceedings
did not specifically require that the road be sixty feet wide,
inasmuch as the law fixed that width for this road, where the
proceedings were silent on that point.
It is further objected that the board of commissioners did
not, in its proceedings, make findings of certain facts in detail,
namely, that the petitioners for said road were citizens of the
United States or of Gallatin county, or that they lived in the
vicinity of said proposed road, or that the road would be a pub-
lic convenience or of public utility, or set forth the names of the
parties whose property would be affected by the opening of such
road. It is not affirmed that any required fact was wanting
in the respects just enumerated, but the criticism is that these
facts were not recorded in detail in the proceedings of the
board of commissioners. We find no statute requiring that
the petitioners for the opening of a road must be citizens of the
United States or the county, nor is there any citation of law
to that effect. But the petitioners, in their petition for said
road, represented themselves as citizens of the United States,
" householders of the county of Gallatin, in the state of Mon-
tana, and that they reside in the vicinity" of said proposeil
road. How was this plaintiff injured by the lack of repording
298 Cbowlby t;. Commissioners. [March T., 1894
the names of the persons affected by the 0{)eiung of said road,
or other details meutioued in tbe objection of plaintiff last
above staled? The statute does not requu*e the recording of
those facts, nor is there any affirmation of a failure to give the
notice required by statute in these proceedings to persons inter-
ested or affected by the opening of said road. Moreover, some
of these objections contradict the record. For instance, the
report of the viewers recites that they found '^ said road to be
practicable, and of public utility and necessity/^ It appears,
also, tliat the county commissioners, on consideration, adopted
said report. We find no merit in the last-mentioned objec-
tions.
It is further alleged that 'Hhe viewers did not cause a suiw
vey and plat of the proposed road to be made by the county
surveyor, or other competent person, as required by law/'
This all^ation is contradicted by another part of the com-
plaint; for in the exhibit of the report of the road viewers,
which plaintiff attaches as part of his complaint, a survey and
plat are referred to as follows: *'The plat of said road, survey,
and report of the surveyor is hereto attached, and made part
of this reporf Also the resolution of said board of county
commissioners requiring said road to be opened, and awarding
the estimated damages to plaintiff, contains a reference to the
survey and plat of said road, as follows: That on the seventh
day of June, 1893, the board of county commissioners pro-
ceeded to consider the report of the road viewers, and all
objections thereto, *'and that it then and there determined to
open said road as a county road, and accordingly caused tbe
full and final report of the viewers aforesaid, and plat thereof,
to be recorded in the office of the county clerk of said county,
in the book kept for that pur|)ose.'' It is not alleged that no
survey and plat of said road accompanied these proceedings, as
mentioned. The allegation of plaintiff is that the viewers did
not cause a survey and plat to be made ''as required by law.''
This is pleading a conclusion of law, for it is not specified
wherein the survey and plat, mentioned in the exhibits to the
complaint as having been made, failed to conform with tlie pro-
visions ui law, nor is any such delect pointed out iu the ai^u-
14 Mont.] Crowley v. Commissioners. 299
meut. We find no error in the ruling of the trial court. It
k therefore affirmed. Affiniied.
Femberton, C. J., and De Witt, J., concur.
ON REHEARING.
Per Curiam. — Appellant's motion for rehearing, filed hereiui
is largely a repetition of the former treatment of the case, as
presented hj the briefs in the original hearing. The provhice
of a petition for rehearing is to call attention to controlling
facts or authorities which were overlooked, or not given their
proper force and effect, in the determination of the case. The
only new matter appearing in this motion for rehearing are
some bitter complaints against section 1821 (Comp. Stats., div.
6) of the road law, as being incompatible with American ideas
of justice, and repugnant to those rights vouchsafed by our
constitution, in that said section provides that, if the owner of
land over which a road is laid out by order of the pro]>er
public agents feels dissatisfied with the damages awarded him
by the viewers and county commissioners he must petition the
board of county commissioners for a ** way'' to ascertain the
compensation to which he is entitled by reason of the damage
suffered in the premises. This is a misinterpretation of that
section. By a reference to the original act on file in the office
of the secretary of state it is found that the word ^^way," as
printed in said section, is ^' jury." The context of that section
also shows that undoubtedly the word ''jury," in place of tlie
word "way," was the intention of the framers of the road law.
The insertion of the word "jury" in place of the word "way,"
as printed in section 1821 of the road law, would remove tlie
discomforture so bitterly complained of by appellant in this
respect Moreover, if he was dissatisfied with the damage
awarded (which appears to have been the case, as shown by
his brief originally filed), he was not limited to the jury men*
tioned in section 1821, to ascertain the damage. By provi-
sions of the same act he is given the right of appeal to the
district court to ascertain and recover the damage sufifered, but
such remedy appears to have been neglected. Motion for
rehearing ought to be overruled.
800 Obigos v. Ealispbl Mbr. Co. [March T., 1894
OBIGGS ET AL., Respondents, v. K ALISPEL MERCAN-
TILE COMPANY, Appellant.
[Babmitfted KarcU 6. 1894. Decided AprU 2. 1884.]
Affbal— Jfofion di$$oMng aUaOimeni—ReeortL—A. Btatement will not be
■trioken from * record on appeal from an order ovemiling a motion to dia-
iolTe an attachment, upon the gronnd that it waa not served within the time
required by Btatnte for the preparation and senrioe of Btatements on appeal,
where the statement, while not required on each an appeal, contained all th«
papers necessary to properly present for reTiew the order complained of.
Appeal from Tenth Judicial DitHriciy Flatiiead Oovmiy.
On motion to strike from the record a statement on appeaL
Denied.
H* O. Molntire, and P. J. MeLaugJdinj for Appellant.
O. H. Footj and Strevdl & Porter, for Respondents.
Per CuBLAM. — In this case respondents have interposed a
motion to strike from the reoord the statement on appeal, on
the alleged ground that such statement was not prepared or
served within the time required by law.
It appears that this appeal is taken from an order overrul-
ing a motion to quash attachment issued in said actioUi which
orde? was made on consideration of the affidavit in attach-
ment, and the complaint. On such an appeal it appears that
the practice does not strictly require a statement on appeal,
but that the record may consist of the order, with the affi-
davits on which the order was made annexed thereto, properly
authenticated as used on the hearing, ** in the place of the state-
ment." (Code Civ. Proc., § 437; Hayne on New Trial and
Appeal, § 261.) This record, although made in the form and
under the name of a statement on appeal, contains the matter
required, properly certified by the judge who made the order,
as being the affidavit on which tbe same was made. Respond-
ents' motion is therefore overruled.
14 Monti Carron v. Clark. 801
CAERON, Respondent, v. OLABE et al., Appellantb.
[Bafamittod September 0, 1888. Dedded April 2, 1891.]
BoAim-^Proeeedingg to open^Damagw— Pleading and proof,— V^pon fhe trial of
■n tctioD to enjoin the construotion of % county roed alleged to have been
opened withont compliance by the oonnty oommiasionerB with the atatiitory
reqairementa that the petition for laying oat the road be accompanied by an
affidavit of posting notices; that the posting of notices by tlie yiewers appointed
be proTed by an affidavit filed in the county clerk's office, and that such view-
ers file a report with the said clerk, the mere absence from the files of the
derk's office of such affidavits and report does not prove that no such proofii
or report were produced before the board of commisaioners when it acted upon
the petition and report; nor would the absenoe of such affidavits firom the files
establish an averment that no such notices were posted, and where plaintiff
ofliered no farther proof of such alleged omissions a nonsuit should be granted.
BJOa^Same— Posting notioM— Evidence,— Though proof of the posting of notices
of the time of meeting of road viewers in prooeedings to open a road is lequired
to be made by affidavit filed in the office of the county clerk, the testimony of
% witness that be actually posted the notices is admissible where the sffidavits
are absent from the files.
J>MMAawii— Pleading— Evidence.— E^iSioTiee of damage to a crop by stock entering
and destroying the same is inadmissible where plaintiff merely alleged in his
oomplaint that the defendant entered upon his land, threw down his fences
and exposed his crop, without stating the amount of damage, and concluded
with a prayer for Judgment for five hundred dollars damages for the treepaas.
AppecUfi'om Fowih Judicial Didrid, Missoula County.
AonoN for damages and an injunction. The canse was
tried before William H. Biokford, Esq.^ spedal judge, sit-
ting in plaoe of Woody, J. PlaintiiBT had jadgment below.
Reversed.
Henri J. HatikeU^ for Appellants.
MarJiaU^ Beeves & Mavshatt^ for Respondent
Habwood, J^ — ^When plaintilT rested in the introduction of
testimony on his behalf, defendants moved the court for an
order of nonsuit of the action (Code Civ. Proc., § 242), on the
ground that plaintiff had failed to introduce proof tending to
establish certain material allegations of his complaint. The
motion was overruled, and that ruling, among otliers, is
assigned as error.
The action was brought to enjoin defendants from opening
a public road through a certain field in possession of plaintiff
I H dull
f22 15
302 Carron v. Clark. [March T., 1894
as lessee, and to recover damages alleged tobavebeen siistaiued
by plaiiitifi* resulting from the removal of a portion of the fence
inclosing said field bj defendants in attempting to open said
roady as alleged, in violation of the law.
To lay the foundation for establishing the fiictthat said road
was opened by defendants without authority of law because of
faihire to conform their proceedings in that respect to the
requirements of statute, plaintiff allied in his complaint,
among other averments: That no order was ever made by said
board of county commissioners establishing said roa \ or declar-
ing it a public higiiway, on the 3d of December, 1888, or at
any other time. That the petition to the board of county
commissioners for the opening of said road was not accompanied
by satisfactory proof, or any proof, that notice of sail petition
had been given by posting notices thereof on the front door of
tlie county clerk's office, and in three public places in the
vicinity of said proposed road thirty days previous to the pre-
sentation of said petition, as required by statute. That when
the county commissioners appointed viewers to view and mark
out said road they did not, as required by statute, cause notices
to be posted in three of the most public places along the pro-
posed new road five days previous to the date fixed for the
view thereof, giving to parties interestei notice of the time
fixed by the county commissioners for the viewers to meet;
and that no such notices were posted. That a majority of the
viewers appointed to view and mark out said road did not sign
a report to the board of county commissioners, as required by
statute; nor did a majority of the viewers sign any report of
the view made by them. That, as plaintiff is advised and
alleges, the order of the board of county commissioners estab-
lishing said road, or declaring it a public highway, if any such
order was made, which plaintiff denies, and the order directing
the supervisor of that road district to remove all obstructions
from said proposed road, were and are void, on account of tiie
errors and irregularities above specified. Tiiere are other alle-
gations of the complaint relating to the dam«age which would
result from the opening of said road, and had already resulted
from the attempted o]>ening thereof. All the averments of the
complaint were denied by the answer of defendants.
14 Mont.] Carbon v. Clark. 303
As to proof of the allegations of the complaint, at the (rial;
plaintifT first introduced considerable testimony as to the field,
the fence inclosing the same; the character of tlie land inclosed,
and purposes to which it was devoted (the same being pasture,
hay, and wooded lands, with some five or siz acres cultivated
for raising wheat and oats); and further testimony describing
how said road supervisor, in May, 1889, removed certain por«
tioos of the fence inclosing said field, claiming to act pursuant
to the orders of the board of county commissioners establish-
ing and ordering said supervisor to open such road through
said field; and the damage which resulted from the removal of
the fence necessary to o])en such road, and by 'devastation of
stock entering the field through the way thus opened.
Plaintiff then undertook to substantiate, by proof, the alle-
gations of his complaint as to omissions and irregularities
charged against said board of county commissioners in their
proceedings through which they claimed to establish and open
said road as a public highway by authority of law. And the
only evidence introduced upon that branch of the case appears
to be certain records of the proceedings of the board of county
commissioners, introduced and read in evidence by plaintiff, as
follows:
An order of June 6, 1888, as follows: ^^In ihe MaUer of
ihe PeOiaa of Q. W. Diohinson, T. M. MoLaren, William
Phdps, and others, asking that a road be laid out and estab-
lished, commencing at a point on the road leading from
Stevensville to Corvallis, on the section line between sections
27 and 34, and following said section line as near as practi-
cable up Burnt Fork until it strikes a point on the road lead-
ing past James Phelps', in township 9, B. 12 W. J. A. J.
Chapman, Z. T. Saunders, and Sanford Strout appointed as
viewers to meet and view said proposed road on June 25th and
report at regular September session.'^
Another order of June 6, 1888, as follows:
« In ihe Matter of the Boad Petition of O. W. DicUnem, T. M.
McLaren^ and others.
''It appearing that the affidavit requiring to be filed as to
posting of notices on the presentation of a road petition has
304 Carbon v. Clark. [March T., 1894
not been filed in the above matter^ ordered^ that the order
made on yesterday^ appointing viewers^ be, and the same is
hereby revoked, and said ^letition lie over until next regular
Another order of September 4, 1888, as follows:
''In the Matter of the Boad Petition of WiUiam Phelps, Geo. W.
Dickinson d oL
'^ Viewers appointed as follows: J. A. J. Chapman, Greo*
W. Strout, Zacb. Saunders, to meet on October 1st, and report
at December session/'
And another order of December 3, 1888, as follows:
*'In the Matter of the Report of the Boad Viewere Appointed
upon the Petition of WiUiam Phdpe, Geo. W. JDickmson d aL
'^Said report read and adopted, and viewers discharged/'
Lastly, an order of April 16, 1889, as follows:
*' Ordered, that road supervisor, Thomas Clark, of road dis-
trict No. 2, remove all obstructions from the road petitioned
for by George W. Dickinson, Wm. Phelps et al., which was
declared a public highway on the 3d day of December, 1888;
and also that he put the said road in shape for public travel.''
Plaintifi' also introduced in evidence, from papers and files
in the office of the county clerk and recorder of said county,
a petition for the opening of said road, and an affidavit accom*
panying the same as follows:
'' To the Honorable, the Board of County Cdmmisnonere of
Mieaoula County, in CouncU Convened:
''We, the undersigned, residents and freeholders of Missoula
county, liable to be assessed for highway labor therein, do
hereby make application to you, the said commissioners, to lay
out a highway in said county, in township No. 9, commencing
at a point on the road leading from Stevensville to Corvallis,
on the section line between sections number 27 and 34 and foI->
lowing said section line, ' or as near as practicable,' up Burnt
Fork, till it strikes a point on the road leading past James
Phelps' in said township, and range 12 west.
''Dated at Stevensville, Missoula county, M. T., May 21,
1888.
14 Mont.] Cabron v. Clark. 305
"[signed] G. W. Dickinson, T. M. McLaren, Thos.
J. MoFarlin, and forty-one others.
"[indorsed]: Filed June 4, 1888.
"Alvin Lent, Co. Clerk,
"By Gust Moser, Deputy.*'
"Territory of Montana, "I
"County of Missoula. / "'
^'George W. Dickinson, being duly sworn, deposes and says:
That on or about the fourth day of June, 1888, he assisted in
posting three notices in the following places, to wit: One on
the section line between sections 27 and 34, at a point on the
road leading from Stevensville to Corvallis, in Tp. 9; one on
said section line, near Tom McFarlin's; and one on the said
section line on the road leading from Stevensville to E. J.
Holt's mill; and sent one to the county clerk, to be posted in
the courthouse at Missoula. Said notices set forth that a peti-
tion would be presented to the Hon. Board of County Com*
missioners of Missoula County, to open a public highway on
the section line between sections 27 and 34, at a point on the
road leading from Stevensville to Corvallis, in Tp. 9 N., of B.
20 west, and running east along said section line, or as near as
practicable, till it strikes the road leading from Stevensville to
Holt's mill, in Tp. 9, B. 19 west. Geo. W. Dickinson.
"Subscribed and sworn to before me this 28th day of
August, '88. J. B. McLaren, Justice of the Peace.
"[indorsed] 'Affidavit of posting notice for laying out
road.'"
According to the record before us, which purports to recite
all the evidence introduced in this case, the foregoing records
comprise all the testimony offered by plaintiff to establish the
all^;ations of his complaint that the defendant board of county
commissioners ordered said road opened without requiring the
various notices to be given, and proper report of the road view-
ers to be returned, as provided by law; and, plaintiff having
rested in the introduction of his proof, defendants interposed
their motion for nonsuit.
It appears to us, afler careful consideration of all the evi-
Vol. XIV.— 20
306 Carron v. Clark. [March T., 1894
dence offered, that the motion for nonsuit ought to have been
granted. The record in this case clearly discloses that plain-
tiff failed to introduce proof tending to establish the allega-
tions of his complaint that the board of county commissioners
ordered said road opened without the petition therefor being
accompanied hy satisfactory proof, or any proof, that the
notice of the presentation thereof had been given as required
by law, — that is, by posting such notices in three public
places in the vicinity of said proposed road, and on the
front door of the county clerk's office, thirty days prior to the
presentation of the petition to the county commissioners, and
*' that no such notices were in fact }X)sted/' Nor did plaintiff
introduce proof tending to support the allegation of his com-
plaint that when the board of county commissioners appointed
viewers to view, mark out, and report upon said road the
county commissioners did not cause notices to be posted in
three of the most public places along the proposed new road
five days previous to the date fixed for the view thereof, giv-
ing notice to the parties interested of the time fixed by the
county commissioners for the viewers to meet and proceed to
discharge their duties in the premises, as provided by statute;
and " that no such notices were posted." Nor was there proof
introduced tending to show that no report of at least a major-
ity of the viewers, showing the discharge of their duty in the
premises, was returned to the board of county commissioners.
We understand from the presentation of this appeal by
counsel that in overruling the motion for nonsuit the trial
court proceeded upon the theory that, if the affidavits affirm-
ing the posting of the required notices in such proceedings, or
a report of the viewers, were not found among the files of the
county clerk's office the conclusion must follow that no such
proof or report was produced before the board of county com-
missioners at the proper time, when it acted upon the matters
under consideration. (Comp. Stats., div. 5, §§ 1809, 1810,
1815.) And it was further held that if the affidavits showing
the posting of such notices were absent from the files of the
county clerk's office it must be concluded, as charged in the
complaint, that no notices were posted, as required by" law.
The absence of an affidavit or other paper required to be
14 Mont.] Oabron v. Clark. 307
retnrned id such prooeedinga is not sufficient to establish such
a negative as alleged in the complaint| or to give rise to the
presumption that the board of county commissioners proceeded
in the matter under consideration contrary to the provisions
of statute. {Stockle v. Sibbee, 41 Mich. 615.) Moreover, there
is in this record no testimony by the proper custodian that
such affidavits and report of the viewers cannot, with diligent
search, be found among the files of the county clerk's office.
From all that appears in this record, it was not even shown
that all the files of the county clerk's office relating to the
establishment of said road had been introduced in evidence
when plaintiff rested io his production of testimony. Such
was the status of the case when appellants' motion for nonsuit
was made and overruled. By this ruling of the court plaintiff
appears to have been relieved of the burden of establishing
the allegations of his complaint, charging such material omis-
sions by the board of county commissioners in their proceed-
ings in reference to the opening of said road.
When the motion for nonsuit was overruled, defendants did
not rest the case, as they might have done in view of the state
in which plaintiff left it, on closing the introduction of his
proof. Defendants offered evidence tending to contradict the
all^ations of the complaint; and, upon offering to prove by a
witness that he actually posted the notices of the time fixed
for the meeting of the road viewers, such evidence was
excluded, on the objection that it was not the best evidence of
that fact. It would seem to be an unnecessarily harsh ruling
to hold that, if the affidavits were not found among the files
of said office, the fact of having actually posted the required
notices could not be proved by evidence of a qualified witness,
who had knowledge of the actual posting thereof. That char-
acter of testimony is regarded by courts as more weighty than
a mere affidavit, because subject to more searching tests of
verity. It is true that the statute requires that the proof of
the posting of such notices shall be shown by affidavits filed
in the office of the county clerk and recorder. (Comp. Stats.,
div. 5, §§ 1809, 1810.) Nor should the filing of such affidavit
be neglected. But the absence of such an affidavit from the
files of that office does not alone prove tliat the county com-
808 Carbon v. Clark. [March T., 1894
missioners n^lected or violated the daties imposed upon tliem
hj law in the matter of opening a road, or that such affidavits
never were filed, as charged in the complaint If so, the loss
of a paper from the files, and the mere showing of its absence,
would convict those officers of such dereliction and of trespass,
as was sought in this case, and subject them to answer in dam-
ages, although in fact there may have been the most faithful
and careful observance of the requirements of law on their part.
The doing of the various acts required by law in reference to
opening a public highway, and not the mere paper evidence
thereof, is what authorizes the oi)ening of such road by the
proper public agents; and the neglect of doing those things
renders void or voidable such proceedings.
Negligence on the part of the proper officials to have filed
and recorded, as the law requires, the proper records in such a
matter is censurable and punishable* And while it may be
that the manner of keeping records in said office, or the delin-
quency in that respect, merits severe censure, still it would not
be conformable to reason or well-established principles of law
to declare void the proceedings for opening a road because a
required affidavit, for instance, showing the posting of certain
notices was not among the files or records of the proper office,
if in fact the required notices were posted, and such fact could
be shown by evidence considered more weighty than an ex parte
affidavit, because such holding would exclude the force and
effect of the substantial fulfillment of law in such matters,
and make the decision turn rather upon a particular method of
showing such fulfillment And pursuing such theory, although
the requisite acts were done, and could be shown by evidence of
even greater weight than such affidavit, the proceeding would be
declared void, because it was not shown by such affidavit Mr,
Justice Cooley, in an analogous consideration, and with his usual
clearness, in Stookle v. Silsbee, 41 Mich. 616, cited above, shows
that the law regards the substance of things done in such mat-
ters, rather than to make the manner of proving it the criterion
for decision when the proceeding is attacked as void. Numer-
ous decisions could be cited to the same effect, but we deem the
rule so strongly intrenched in reason as to need no citation to
show its justness and propriety. If, however, official condact
14 Mont.] Gabbon v. Clabk. 809
as to compliance with the reqairementa of law in keeping
records was under inquiry delinquency in that regard could
not be excused by showing that the required thing was done,
although the required record thereof was neglected. That is
not the point under consideration in this case, but the observa-
tion is pertinent^ as relieving this treatment of any implication
that such' official n^ligence may, or would be, in the proper
inquiry, passed over as unimportant.
Plaintiff properly alleged in his complaint that the commis-
sioners and road supervisor n^lected to do certain material
things required by statute to give them jurisdiction in the
premises. But when it came to the proof plaintiff did not
offer evidence tending to prove the omissions charged. With
introducing certain papers and records from the county clerk's
office concerning the opening of said road, and without even
showing that these were all the papers and records filed therein
concerning that matter, or that search had been made for others,
he rested his case. From these disclosures of the record it
dearly appears that the motion for nonsuit should have been
granted.
There are other assignments of error as to introduction of
proof upon the question of damages. The averments of the
complaint as to damage resulting from the acts of defendants
areas follows:
''That on or about May 4, 1889, the defendant, Thomas
Clark, acting under the authority and orders made by said
defendants John B. Latimer, W. J. Kennedy, and John Dooley,
acting as board of county commissioners for said county of
Missoula, entered upon the land so in possession of plaintiff as
aforesaid, and threw down his fences, and exposed his crop,
and has, from the said fourth day of May, 1889, kept said
fences open, and the crop of plaintiff exposed, and threaten to
keep open a public road through and over the land in posses-
sion of plaintiff as aforesaid."
The amount of damage resulting from said acts of defendants
is not alleged. The complaint, after averring that defendants
assumed to act by authority of their office and certain proceed-
ings in opening a public highway through said field^ and their
310 Carron v. Clark. [March T., 1894
various omissions to comply with the statute iu that respect^
then closes witii the prayer that plaintiff ^Hherefore prays for
judgment against the defendants in the sum of five hundred
dollars for damages for the trespass aforesaid, and for injunc-
tion restraining defendants/' etc., from opening and keeping
open said road.
The omission to allege the amount of damage resulting from
the wrongful acts of defendants, complained of, in throwing
down plaintiff's fence, and exposing his crop, is an example
of the looseness with which this pleading is drawn, as regards
its allegation of damages. But the particular point on which
error is urged is that under the allegations of said complaint it
was error to admit, over defendants' objection and exception,
evidence of the damage to a crop of wheat, hay, or pasture, by
reason of stock entering by the way opened by defendants, and
destroying the same, because it is only alleged that the crop
of plaintiff was exposed by opening said fences, and not that
the crop was damaged by the entering of the stock thereon.
Nor is there any allegation that any particular kind or quantity
or value of crop was destroyed, or even that any cattle entered
the field through the way opened. The only allegation is that
plaintiff's crop was exposed, without averring that it was dam-
aged in any manner or amount whatever. It would be just as
pertinent to this all^ation to prove damage for money paid
out by plaintiff in hiring servants to guard the place opened,
as to prove damage for stock entering, under the all^ations of
this complaint; either of which items of damage might be |)er-
missible if the foundation for proof were laid in the pleading.
But if either could be pro^ierly proved without a more particu-
lar allegation, how oould a defendant apprehend what damage
would be proved against him, and prepare to rebut the charges?
(Boone's Code Pleading, § 18, and cases cited.)
On the points mentioned the pleading is unquestionably
defective, and it was error to admit such proof over the objec-
tion of defendants thereto.
As shown above, the motion for nonsuit should have been
granted. An order will therefore be entered remanding the
caueej with directions to the trial court to reverse the judg-
14 Mont.] Stevenson v. Cabwell. 811
meDt, and enter nonfiuit therein acoording to the requirement
of statute in such cases.
Beversed.
Pbmberton^ C. J.^ and De Witt, J., ooneurred.
STEVENSON, Rispondent, v. CAD WELL, Appellant.
tSnbmitted October 8, 1898. Dedded Apxil 2, 1894.]
AmALS— DismiMoJ— KuZffD of court.— A. rule of the district court requiring appeftb
from Jostiee'B oonris to be filed within thirty days ftfter the appeal is perfected
is in DO sense Jarisdictional, bat simply a regulation of practice to be applied
with a reasonable discretion, and therefore the failure of an appellant to com-
jAj therewith should not be made ground of dismissal where the appeal is filed
before the hearing of the motion to dismiss, and it further appears that as
appellant was entitled to a Jury trial and no jury was in attendance until after
the flUng of the appeal the respondent conld not hare been injured by ttie
delay.
AppecUfrom MrUh Judicial Didrid^ OaBatin County.
Plaintiff's motion to dismiss the appeal was granted by
Benton, J., sitting in place of Abmstbong, J. Beversed.
Statement of the case by the justice delivering the opinion:
This action was originally commenced in a court of the jus*
iice of the peace. Judgment was rendered in favor of plaintiff
March 13, 1893. Defendant in due time gave notice of appeal,
and filed a bond upon appeal. On March 2l8t the justice
made out his transcript of the proceedings in the case, and left
the same with the clerk of the district court On April 24th
plaintiff served defendant with notice of a motion to dismiss
his appeal, on the ground that the same was not filed in the
district court within the time allowed for filing it, as provided
by statute and the rules of practice of the court, nor was the
same docketed within the time so allowed. The motion was
noticed to be made upon records of the case and an affidavit
to be filed. On May Ist defendant paid to the clerk his filing
fee, and the case was then filed and docketed. The defendant
filed his affidavit in resistance to the motion to dismiss. The
motion was heard May 8th, and granted. Defendant's appeal
812 Stevenson v. Cadwell. [March T., 1894
was dismissed, and judgmeut for costs was reudered iu favor
of plaintiff. Defendant now appeals.
E. P. OadtoeU, pro «e.
There is no statute or practice to sustain the order appealed
from. The only authority the district court had for making
said order is its rule 2, and the only warrant for said rule is
section 523, page 198, of the Code of Civil Procedure. Of
course this statute means, if it means any thing, that to regulate
the practice and procedure rules may be made. Not to make
a new practice or procedure, or to change in any way that
which is already existing, but to regulate that already existing
and established by the code. Olearly the rule is not such as
is contemplated by section 523. For instead of regulating a
practice already in vogue it tears down and endeavors to
establish a new practice; gives back to the justice^s court that
which the law says it has parted with — ^its jurisdiction. Ad-
mitting the rule to be good, is not the object of all rules of
court to promote justice rather than to defeat it? Such is the
doctrine of the California courts. {People v. WilHama, 32 Cal.
281; FickeU v. Wallaoe, 54 Cal. 147; Peoi^ v. Zee, 14 Cal.
612.) Here is a cause in which the appeal was perfected dur-
ing a vacation of the district court, at a time when the jury
was not in attendance upon the court. The cause is a jury
cause. It could not be tried until one week afler the transcript
was in fact filed. Who was prejudiced? Certainly not the
plaintiff, for the cause could not have been tried at any time
between the date of the appeal and the actual filing of the
transcript. The rule at best is merely directory — not jurisdic-
tional — and this supreme court has repeatedly held that being
80 it .should be liberally construed. {State v. Bdker^ 8 Nev.
141; McQuillan v. Doruxhoe, 49 Cal. 157; Territory v. Ifoo-
Key, 8 Mont. 169; People v. Lake Q>., 33 Cal. 487; Territory
V. Flowers, 2 Mont 392; Wood v. Forbes, 6 CaL 62; Shaw v.
BandaU, 16 Cal. 384.)
Stoats & Hotlowayj for Respondent.
The authority of the district judge to make the rule is
unquestioned. (Code Civ. Proc., § 523; McKay v. Superior
14 Mont.] Stevenson v. Cadwell. 313
Oourtj 86 Cal. 431.) Upon the failure of appellant to file the
transcript within the time prescribed by the court rules the
appeal will be dismissed. {In re BeecPs Edate (CaL March
17, 1892) 29 Pac. Rep. 245; TraMng y. Meyer^ 3 Wjo. 133;
Cbfltnt V. Johns<m, 3 Wyo. 133; Levy y. Eoereti (Cal, Oct. 4,
1892), 31 Pac. Rep. Ill; 1 Am. & Eng. Ency. of Law, 627;
MeKay y. Superior Court, 86 Cal. 431.) The filing of a
transcript after notice of motion to dismiss for failure
to file within the prescribed time will not cure the defect.
{Welch V. Kenney, 47 Cal. 414.) If the rule is merely direc-
tory, as appellant claims, then its enforcement in this case was
a matter purely within the discretion of the court, and no error
can be predicated of the ruling unless there was a violent abuse
of that discretion, which we feel sure will not be imputed of
the honorable judge presiding, and that this court will follow
the universal rule that orders or decrees involving the exer-
cise of judicial discretion are not subject to review in a court
of errors; only a violent abuse of that discretion will be inter-
fered with. {Pomeraj^a Leasee v. Bank of Indiana^ 1 Wall.
598; United States v. AtherUm, 102 U. S. 372.) Abuse of
judicial discretion which will justify interference with, implies
not only error of judgment but partiality, passion, and per-
versity of will. {People v. New York Gent. R E. Co., 29
N. Y. 431; White v. Leeds, 51 Pa. St 189.)
De Witt, J. — ^There was a rule of the district court that
appeals from justice's courts to the district court must be filed
within thirty days after the appeal is perfected, and that if,
through the neglect of the appellant, the same be not so filed,
the appeal may be dismissed. The appeal was not filed in the
district court within thirty days after it was perfected, and in
consequence thereof the district court dismissed the appeal.
The only inquiry which we will make is whether the district
court exercised a sound discretion in applying this rule and
dismissing the appeal. We are inclined to think it did not.
Defendant's appeal was perfected as required by statute. The
dismissal was not for a failure to comply with the law, but, on
the contrary, for simply neglecting to observe a rule of the
court. The object of the rule is certainly not to deny parties
314 St£V£nson v. Oadwsll. [March T., 1894
a hearing who wish one. The object is to require appeal ca^es
to be brought ou promptly for trial. It seems to us that the
object of the rule was attained in this case. The appeal did
not lie unheard for any* unconscionable length of time.
Respondent gave notice of his motion to dismiss at once upon
the expiration of the thirty days. Afler respondent had
served appellant with notice of his motioni and a week before
the motion was heard, appellant gave to the clerk of the dis-
trict court his filing fees, and the api)eal was filed and docketed.
It also appears that this was a case wherein appellant was enti-
tled to a jury trial, and that no jury was in attendance upon
the court from the date of appeal until May 1st, the day when
the case was docketed. Therefore respondent was in no way
injured. He could not have had a trial sooner under any cir-
cumstances. This rule of the court is in no sense a jurisdic
tional matter. It is not like some statutes regulating appeals
where a compliance with the statute is necessary to give the
court jurisdiction. The rule was simply a regulation of prac-
tice which the court must apply with a reasonable discretion.
We are not satisfied that an appellant should be turned
away from court under the circumstances shown in this case.
We believe that the results sought to be accomplished by the
rule were in fact attained — that is, the opportunity for a speedy
hearing of the appeal — and, that being true, the rule should
not have been used to wholly deny a trial of the case. The
action of the district court is reversed, and the case is remanded,
with instructions to deny the motion to dismiss the appeal.
The respondent makes no question as to reviewing, on appeal,
the action of the district court in this case. {Howard v. QiMttn,
2 Mont. 340; Marsh v. Einna, 2 Mont 547; Ihritory v. Mil-
roy, 7 Mont. 559.)
Pemberton, C. J., and Habwood, J., concur.
14 Mout.] Casey v. Wright. 315
CASEY, Respondent, v. WRIGHT, Appetj.ant. | fg J70
[Submitted October 3, 1893. Decided April 2, 189i.] 14 sijl
36 864
TiZATiOM— Ctoud upon title— Complaint in action to remove,— L complaint in
an action to set aside a tax deed as a cload upon plaintiiTB title, wLich avers
an irregular assessment of the property in controyersy and its subsequent sale
for unpaid taxes, but which does not allege some injustice or injury to plain-
tiff resulting from such assessment, or that plaiutiflF has paid, or oflfers to
pay, the taxes for which the property is properly chargeable, fails to state a
cause of action for equitable relief.
Bakb— iSafo of property in gross,— L tax sale of plaintiffs town lots, in connec-
tion witii others, for the gross amount of taxes due upon all is yoid.
Appeal from Seventh Judicial District^ Ouster CoutUy.
Action to remove a cloud upon title. Judgment was ren-
dered for the plaintiff below by MilbubN| J. Reversed.
Middleton & lAghi, for Appellant
StreveU & Porter, for Respondent.
Pembebton, C. J. — Plaintiff claims in his complaint to be
the owner of lots 1, 2, and 3, in block 81, of Miles City in
Custer county in this state, and alleges that the defendant
claims some interest or title therein by virtue of a tax deed to
said pro|)erty, which is of record in said county, and which
said tax deed is claimed to be a cloud on the title of plaintii!
to said property. This suit is brought to remove said cloud.
The plaintiff alleges in his complaint, in substance, that
said lots were attempted to be assessed for taxes for the year
1888, by the assessor of said county; that tlie assessment
thereof was invalid, for the reason that said lots were assessed
in gross, and not separately; that the taxes thereon for said
year were not paid, and that they were thereafter sold by the
treasurer of said county for such delinquent taxes; that said
lols and eight others in different blocks of said Miles City,
were sold in a lump, or in gross, for the total amount of taxes
remaining unpaid for said year 1888 on all of said lots so sold
by said treasurer; the plaintiff allegiug such gross assessment
aud gross sale of said lots, being in violation of law, were, for
such reason, void.
The defendant demurred to the complaint on the ground
316 Casky v. Wright. [March T., 1894
that it did not state facts sufficient to constitute a cause of
action. Tiiis demurrer was overruled. The defendant filed
his answer, which contains a general denial in words and form,
but he sets out tiierein the assessment of said lots for said year
1888, contained in the tax list including said property for said
year, which list was made out and returned by the assessor, as
no owner of said property returned any list thereof for said
year. The answer also contains a copy of the certificate of
sale of the transfer of said property so sold for taxes for said
year, and also a copy of the tax deed attacked in this action.
From these exhibits, which are part of the answer, and must
be construed with the denial therein contained, we think the
allegations of tlie complaint, in these respects, were not suffi-
ciently denied. On these grounds, among others, the plaintiff
demurred to the answer, and the demurrer was sustained.
Defendant declining to amend, and having decided to stand on
his answer, judgment was rendered in favor of the plaintiff.
Defendant appeals from the judgment.
The first assignment of error is the action of the court in
overruling defendant's demurrer to the complaint The com-
plaint contains no all^ation of payment, or any offer to pay
whatever just amount of taxes such lots were l^lly charge-
able with for the year 1888. Defendant claims that, although
the assessment complained of may have been irregular, and, in
some cases, might be held invalid, yet that in this equitable
proceeding for cancellation the plaintiff, before he can ask
equity, must do or offer to do equity, which rule would require
that he pay or offer to pay the just amount of taxes for which
said lots were legally chargeable for said year. Defendant
further claims that said complaint does not charge that the
taxes assessed against said lots were unjust or unequal^ or show
any other equitable grounds for not paying Uiem.
In StocUe v. Silsbee^ 41 Mich. 616, in a case involving an
irregular assessment, Mr. Justice Cooley says: ''In reviewing
the case it is a little embarrassing not to find the defectd which
are supposed to be fatal pointed out, esi>ecially as the finding
recites many irregularities, some of which are obviously trivial
and unimportant, and unworthy of a moment's consideration.
Pos.sib1y some of these may have seemed to the court fatal.
14 Mont.] Casby v. Wright. 817
but the time lias gone by, if it ever was, when the proceedings
of taxing officers are to be criticised with microscopic nicety;
and the exact time and method of every step examined to
detect a departure from the law, however insignificant or
unconstitutional. The policy of the law is that parties shall
pay legal taxes, even though there may be some irregularity in
demanding them, and that they shall complain to the courts
of those errors only which may injure them. The possibility
of collecting the state revenue depends upon the observance of
this policy, and we do not feel called upon to examine in detail
every irregularity which a record may show."
In Fifidd v. Mannette Co.^ 62 Wis. 632, a case similar to
the one at bar, the court says: ''It was further said in the case
of HaH V. Smithy 44 Wis. 218: 'Nor do we understand that
the rule, long established in courts of equity, that h^ who
seeks equity must do equity, is qualified or abrogated in favor
of a party who seeks to remove a cloud upon his title to real
estate by reason of illegal proceedings taken to enforce a valid
tax assessed thereon, and that such party may demand as a
right from a court of equity that such cloud shall be removed
without his doing what justice and equity demand; that is, pay
the tax. None of the cases in this court recognize any such
right on the part of the plaintiff, and we think no such right
exists. It would be a gross impeachment of the power of a
court of equity to deny it the right to demand of its suitors
good faith and common honesty before it shall be compelled to
grant them any relief.' .... We must hold, therefore, that
a complaint which does not allege in direct terms the injustice
and inequality of the tax assessed upon the plaintifi^'s lands,
and further allege a state of facts which, if proved on tbe trial,
would establish the truth of the general allegation of its injus-
tice, does not state facts sufficient to constitute a cause of action
for equitable relief, unless there be a further allegation of an
ofler to ])ay the taxes justly chargeable to the property of the
plaintiff on account of which he seeks relief.''
In Wiscimsin Cent. R. B. Co. v. Lincoln Co., 67 Wis. 478,
where the assessment roll was not signed or verified by the
assessor, as required by law, the court say: ** The question is,
do these irregularities and defects in the assessment and levy-
318 Gasby t;. Wright. [March T., 1894
ing of the taxes of 1876^ or either of them, render the tax pro-
ceedings so utterly null and void that it can correctly be said
that no taxes were assessed against the plaintiff's land in that
year? If none were so assessed, probably the exception in sec-
tion 4, chapter 21, of Laws of 1877, will not apply to such
lands. We conceive that the judgment of this court in Fifidd
V. MarineUe Cb., 62 Wis. 532, answers the above question in
the negative. In that case, as in this, the document purport-
ing to be the assessment-roll, and which was the foundation of
all the subsequent tax proceedings, was not signed, or other-
wise verified, by the assessor. It was held that the tax certifi-
cates were not necessarily void in equity because of such
omission, and that, to entitle the plaintiff to relief, he must
show that the tax levied against his property was unequal and
unjust; and, as a condition of relief, he must offer to pay the
sum as taxes which in justice and in equity he ought to pay.
In other words, it was held that such defective assessment is
not a nullity, furnishing no foundation for a tax based upon
it; but that a court of equity regards such assessment and tax
levy as conditionally voidable; the condition being that the
party complaining of the omissions and defects in the tax pro-
ceedings must show that these have resulted in injustice to
him, and must pay, or offer to pay, the amount which, under
a just assessment, would be required of him.'' In ISaie v.
Cooper J 69 Wis. 666, the court says: '^The relator is asking
relief from an improper assessment in view of taxation. In
such a case he must show equity in his behalf and not attempt to
evade just taxation." In Northern Pae. R. JB. Co. v. PaUeraoHf
10 Mout. 90, this court quotes with approval the language of
Mr. Justice Miller in National Bank v. Eimball, 103 U. 8.
732, which is as follows: ''We have announced more than
once that it is the established rule of this court that no one
can be permitted to go into a court of equity to enjoin the col-
lection of a tax until he has shown himself entitled to the aid
of the court by paying so much of the tax assessed against him
as it can be plainly seen he ought to pay; that he shall not be
permitted, because his tax is in excess of what is just and law-
ful, to screen himself from paying any tax at all until the pre-
cise amount which he ought to pay is ascertained by a court of
14 Mont.] Casky v. Wbiqht. 319
equity; and that the owner of property liable to taxation is
bound to contribute his lawful share to the current expenses of
the government^ and cannot throw that share on others while
he engages in an expensive and protracted litigation to ascer-
tain that the amount which he is assessed is or is not a few
dollars more than it ought to be, but that, before he asks this
exact and scrupulous justice, he must first do equity, by pay-
ing so much as it is dear he ought to pay, and contest and
delay only the remainder. {State Railroad Tax cases, 92
U. S. 675.) This bill attempts to evade this rule by alleging
that the tax is wholly void, and therefore none of it ought to
be paid.'' (See, also, Ward v. Cdmmissioners, 12 Mont 23.)
From a consideration of these authorities it seems to us that
the complaint should allege some injustice or injury to plaintiff,
resulting from said alleged invalid assessment, or payment, or
an offer of payment, of the just and legal taxes for which said
property was properly chargeable for said year 1888, before
equity will grant him the relief sought in Xhis action. In this
respect we think the complaint bad, and the demurrer thereto
should, for these reasons, have been sustained*
The appellant further complains of the action of the court
in sustaining the demurrer of plaintiff to the answer. The
answer discloses the fact, as shown above, that the lots in con-
troversy, with eight others, were sold by the treasurer of said
county, all together, for the gross amount of taxes due on the
eleven lots for the year 1888.
In Terrill v. Oroves^ 18 Cal. 149, a case very similar to the
one under consideration, the court says: ''The plaintiff claims
under a tax deed. It seems that these lots were assessed as the
property of one Alonzo Green. They were separately listed,
but valued jointly, apd the aggregate tax on all of them, and
of two other lots in other blocks, set down. The lots sued for
were contiguous to each other, and formed a part of block num-
ber twenty-eight on the plan of the city. These lots were put
up and sold together for the aggregate amount of this tax.
The appellants contend that this was illegal, and that the sale
and the consequent deed were void; and we are of the same
opinion/' We think the authorities are almost uniform that
14 naol
16 433'
320 McGuLLOH V. Price. [March T., 1894
sach a sale is void. (See Blackwell on Tax Title8| 4th ed.^ 313;
Cooley on Taxation, 341, 342, and authorities cited.)
We think, therefore, tiiere was no error in the action of the
court sustaining the plaintiff's demurrer to the answer of
defendant. But it does not follow because the sale of said
property was void that the assessment of the three lots in contro-
versy was also void. In this proceeding we hold the assessment
voidable only upon a proper showing that the assessment was
unjust or injurious to plaiutifi*, or that he had paid, or offered
to pay, the amount of taxes justly chargeable to said property
for said year 1888, which amount is easily ascertainable from
the tax books and rate of assessment for said year, said three
lots having been assessed separately from the eight others with
which they were sold.
There are other errors assigned, and extensively discussed in
the briefs, but we do not consider it necessary to treat them, as
we think the matters treated are decisive of the case. The
case is reversed and remanded, with instructions to sustain
the demurrer to the complaint, and for further proceedings in
conformity with these views.
BeverseJL
Habwood and De Wnr, J J., oononn
MoCULLOH, Respondent, v. PRICE, Appeltjlnt.
[Submitted October 6, 1898. Decided AprQ 9. ISM.]
J>MB)&-~Descr%ption^A8$ignmenU,^A. deeoriptioii of re$X estate la a deed of
Msignment, as ill the lands of the grantor of eyery deioription belonging to
him and wheresoeTer eitaated, passes the title of the lands to the asaignee, and
is not insufficient as being too general.
Sua—JMignmerU—Bxen\piion.^A. deed of assignment oonToying ell the grantor*!
lands is not void for nnoertaintj in that it excepts property exempt firom
execntion nnder the laws of the state, which exempt property ii not spedflc-
ally described.
Appeal from Fird Judicial Diatridf Leuna and darhe OounJty.
Ejectment. The cause was tried before Hunt, J. Plain-
tiff had judgment below. Affirmed.
Henry C. BmHh, for Appellant
14 Mont.] McGuLLOH t;. Peicb. 821
H. O. MelnHre, for Respondent.
A deed of assignment containing a general description of the
property assigned is sufficient to pass the title to real estate.
In the following authorities deeds, mortgages, and assignments
for the benefit of creditors have all been discussed. (WiUon
V. Boyce, 92 U. S. 320-25; BraAear v. West^ 7 Pet 608-14;
Peltigrew v. Dobbdaar, 63 Cal. 396; lAok v. G^DonnM, 3
Gal. 59; 58 Am. Dec. 38?; Frey v. Qiffordy 44 Cal. 343;
Sadler v. Immel, 15 Nev. 269; Broum v. Warren^ 16 Nev.
237; Eettogg v. Slawaon, 15 Barb. 58; Piatt v. LoU, 17 N. Y.
478; Turner v. Jaycox, 40 N. Y. 472; Raynor v. Raynor^ 21
Hun, 36; Jackson v. Delancey, 11 Johns. 365; Strong v. X^n,
38 Minn. 315; Jamaica etc, Corp. v. Cliandler^ 9 Allen, 159;
Harmon v. James, 7 Smedes & M. Ill; 45 Am. Dec. 296;
Blair v. BrunSy 8 Col. 397; Bitner v. JVino Fori rfo. Land Co.,
67 Tex. 341; Haii)ey v. JEcfen«, 69 Tex. 420; PreUyman v.
TFo&fon, 34 111. 175; Bird v. J5ird, 40 Me. 398; 6 Lawson's
Bights, Remedies, and Practice, § 3017, p. 4889; Boone on
mortgages, § 6; 1 Jones on Mortgages, § 65; Burrill on
Assignments, § 95, p. 137.) It is proper to insert in an
assignment a clause excepting exempt property from its terms.
(Burrill on Assignments, 137, 138; 4 Lawson's Bights, Beme*
dies, and Practice, § 1988, p. 3388, note 12; Richardson v.
Marqueze, 59 Miss, 80; 42 Am. Bep. 353.)
DeWitt, J. — This is an action in the nature of ejectment,
in which plaintiff recovere<i judgment. A motion for a new
trial was denied. From this order, and from the judgment,
defendant appeals.
Bespondent contends that the order denying the new trial
cannot now be reviewed, because the notice of motion was not
filed in time. But we may pass this contention, because the
only point made upon the motion for a new trial is also
properly preserved in a bill of exceptions; thus becoming part
of the judgment-roll, and reviewable on the appeal from the
jadgment. That point is as follows: Plaintifi* relied for title
to the premises in controversy upon a deed of general assign-
ment for the benefit of creditors made by Bennet Price,
defendant, to 8. E. Atkinson, as his assignee, said Atkinson
Vol. XIV.--21
322 McCuLLOH V. Pbica. [March T., 1894
afterwards conveying to plaintilT. When the deel of assign-
ment was offered in evidence as part of plaintiff's chain of
title defendant objected to it upon two grounds. His objec-
tions were overruled. He excepted, and now urges error in
this respect.
' The first objection was that, in the deed of assignment, tlie
description of the property was insufficient to pass the title to
real estate. The instrument was executed by this defendant
and J. H. Jurgens and wife. The granting and descriptive
portion of the deed of assignment is as follows: ^^Said parties
have/' etc., '^and by these presents do grant, bargain, sell,
assign, transfer, and set over to," etc., ''all and singular, the
lands, tenements, hereditaments, and appurtenances, goods, etc.
[describing personal property], of every description, belonging
to the said parties of the first part, or either of them, or in
which they, or either of them, have any right or interest
.... and wheresoever said property, or any jwirt thereof,
may be situated."
This description, appellant contends, is insufficient, as being
too general. He does not cite us to any authorities supporting
his contention. The description is of all the lands of this
appellant, of every description, belonging to him, wherever
situated.
The United States supreme court said in Wibon v. jBoyoe, 92
U. S. 325: "The question is. Does the word 'property,' in the
statute, create a valid lien on these lands? The generality of
its language forms no objection to the validity of the mortgage.
A deed 'of all my estate' is sufficient. So, a deed 'of all my
lands, wherever situated,' is good to pass title. {Jackson y.
DeLanoey, 4 Cow. 427; Pond v. Bergh, 10 Paige, 140; 1
Atkinson on Conveyancing, 2.) A mortgage 'of all n^y prop-
erty,' like the one we are considering, is sufficient to transfer
title."
We also cite as follows from Petiigrew v. Dobbelaar, 63 Cal.
396: "Appellant also urges that the second deed from Harvey
to Lacey contains no description, and is void. The descriptive
clause is, 'AH lands aud real estate belonging to the said part/
of the first part, wherever the same may be situated, together/
etc. If the lands in controversy belonged to Harvey they
14 Mont.] McCuLLOH v. Prick. 323
passed by the deed last mentioned. (Xibi v. (/DonneH, 3 Cal.
59; 58Ara. Dec. 3830"
In the case at bar there is no question but the lands belonged
to Price when the assignment was made. The contention in
this case is between assignor and assignee's grantee. There is
DO claim that this general description attempted to cover any
fraud, or was likely to work any fraud. There is no reference
to any schedule to limit the general description. Under all
these circumstances, there can be no doubt that the description
of the premises was sufficient. {Frey v. Clifford, 44 Cal. 343;
Brawn v. Warren, 16 Nev. 237; Prettyman v. WaUUm, 34 111.
175; Kellogg v. Slawaon, 15 Barb. 58; Harmon v. James, 7
Smedes & M. Ill; 45 Am. Dec 296; Strong v. Li/nn, 38
Minn. 315; Jackson v.DeLaneey, 11 Johns. 365; 6 Lawson's
Kights, Remedies, and Practice, § 3017, p. 4889; 1 Jones on
Mortgages, § 65; Burrill on Assignments, 5th ed., § 95.)
Tlie second objection made to the introduction in evidence
of the deed of assignment was that it was void for uncertainty,
in that it provides that certain exempt property shall be
excepted from the operation of the deed, which exempt prop-
erty is uncertain in amount. To the descriptive part of the
deed, which we have quoted heretofore in this opinion, is added
the clause, ^^ Except what are exempt to them (the first parties),
or either of them, from execution, by the laws of Montana
Territory.'**
Appellant cites us to no authority holding that such excep-
tion renders the deed of assignment void, nor does he suggest
any reasons why it should be so held. It was, indeed, so held
in Tennessee; but the Tennessee decisions were reviewed, and,
as we think, their reasons refuted, in Richardson v. Marqueze,
59 Miss. 80, 42 Am. Rep. 353, in which case the court says,
after speaking of the Tennessee cases:
"But we dissent from them, in thinking that a failure specif-
ically to describe the exempt property renders the conveyance
void for uncertainty. If it has any evil effect whatever, mani-
festly, it must be to render void the claim for exemption, and
to cause a forfeiture of such claim. It is the exception or reser-
vation that is insuflQciently described, and thereby left uncertain
and void, while the conveying words of the instrument, being
324 McCuLLOH V. Price, [March T., 1894
definite, and embracing all the property of the grantor, must
be operatiye to pass it all. Tlie rule is well settled that iu
order to except certain property out of a conveyance, which
without the exception would carry all, the words of exception
must be as definite as tliose required to convey title, and that
if they are not so the whole property passes. An excep-
tion must be a part only of the thing granted; must be a
particular thing out of the general one, and must be described
with certainty. (Coke on Littleton, 142 a.) In a grant of land,
excepting one and a half acres, the exception is void for uncer-
tainty, and the title to the whole passes to the grantee. The
language both of grants and of exceptions is to be taken strongly
against the grantor. (Darling v. OrofweUy 6 N. H. 421, and
cases cited.) We agree, however, with the supreme court of
Michigan, in Smith v. Mitdiell, 12 Mich. 180, that a reservation
of exempt property, without a minute specification of it, neither
avoids the deed, nor is void in itself for uncertainty. That is
certain which may be made certain. The law fixes the amount
of the exemption, and points out the mode of its ascertainment.
It was remarked by the court, in the case last cited, that 'a
bona fide selection is as practicable here as under a levy.' We
are not aware that officers holding executions or attachments
ever experience any difficulty in finding out what is and what
is not exempt by law to the debtor; and this, it would seem,
can be as readily done by an assignee under a general assign-
ment Where the right of selection resides in the debtor, he
can easily be made to exercise it, or forfeit it; and to compel
bim to do so would seem far more reasonable than to declare
a conveyance embracing thousands of dollars' worth of prop-
erty void, because of the failure accurately to enumerate and
describe the two mules, or the four cows and calves, that he
claims as exempt."
The authorities are with the view expressed in the Missis-
sippi case. (See cases therein cited; also, Burrill on Assign-
ment, 6th ed., § 96, p. 142; 4 Lawson's Rights, Remedies,
and Practice, § 1988, p. 3388, and cases cited in these text-
books.) Whatever was said in QoU v. HxMell, 61 Wis. 293,
following the Tennessee cases, and looking to appellant's view
of this matter, was abandoned upon a rehearing of the case
14 Mont.] Rausoh v. Rausch. 825
(OoU V. HubbeU, 61 Wis. 300), following the case of First NaJU
Bank v. JSooJbetf, 61 Wis. 336.
We are therefore of opinion that the objections to the deed of
assignment were properly overruled. The judgment b there-
fore affirmed*
PembebtoNi C. J.| and Habwoop, J.^ concur.
BAUSCH) Appellant, v. RAUSCH, Respondent,
[Babmitted Vebrouy 26. 18M. Bedded April 9, 18M.1
B woi g «L — Eytrftoftto tifl^— I>ot00r.~A wifie who edminieten npon the estate of %
hnebend, tOjWhom she suppoeed ehe wm UwftiUj married, and retome m
belonging: to him propciiy which he had parohaaed with her money, wron^-
ftillj taking the title in hia own name, and allows the same to be set apart by
the oonrt as her homestead, ia not thereby estopped from asserting an equi-
table title to the property as against the lawful wifo seeking to enforce a dower
right therein.
Afpetdfrom Mrd Jwlunal District^ Lewis and Clarhe Oounty.
AcmoN to enforce dower. The caase was tried before
Buck, J, Defendant had judgment below. Affirmed,
MeCbnndl, Clayberg A Ounn, for Appellant.
L The respondent having petitioned the probate court to
have the property in controversy set apart to her as a home-
steady and said petition having been granted and an order of
the probate court having been made setting said property apart
to her as a homestead^ she cannot now be heard to say that
George Rausch was not seised and possessed of said property
in his own right at the time of his death. The probate court
must have found before making said order that said property
was a part of the estate of George Rauscli, deceased, and the
respondent is concluded by tin's finding. ^^ Necessary and
inevitable inferences — facts without which the judgment could
not have been rendered — are equally covered by the estop-
pel as if they were specifically found in so many words."
(2 Black on Judgments, § 613.) Under the statutes of this
326 Kausch v. Kausch, [March 'i'., 1894
state, the court is only autliorized to set apart as a homestead
property belougiug to the estate. The respondent having pre-
sented proof by her verified petition invoked the adjudication
of the court that this property was a part of the estate of
Greorge Rausch, deceased, and obtained an order based on this
fact she is now estopped from asserting otherwise. (^McDonald
V. EainoTy 8 Johns, 442; 2 Black on Judgments, § 632.)
Orders of the probate court are conclusive of the facts found
and of the facts necessary to the making of said orders,
(2 Black on Judgments, § 633.) The respondent upon the
plainest principles of justice and under all the decisions is
estopped by the said order of the probate court made in her
favor, and obtained upon her petition from disputing the facts
upon which said order rests and necessary to the making
thereof.
II. The respondent having stated in the probate court,
under the solemnity of an oath, that this property was tlie
propei-ty of another whose estate she was administering ui)on;
and this same property having been appraised as the properly
of said estate, upon her application; the respondent having
gone still further and asked the court to set apart this property
to her as a homestead, and claimed she was entitled to it out of
the property of Greorge Rausch, deceased, and an order having
been made setting said property apart to her as a homestead
upon her petition, and she having taken the benefits of said
order, she is now estopped from claiming it as her separate
property. The respondent's previous conduct and her asser-
tions are wholly inconsistent with the fact that this pro{)er(y
was her own individual and separate property, or that Greorge
Rausch held it in trust for her. An administratrix who finds
proi>erty among the assets of an estate and takes possession of
it as the property of the estate, laying no claim to it herself,
is estopped from setting up her claim adverse to the estate.
(Miller v. Jones, 26 Ala. 247; Manlgavli v. 2)«w, 1 Bail. Eq.
283; Bigelow on Estoppel, 3d ed., 435; Benjamin v. QUI, 45
6a. 110; 2 Herman on Estop|iel, § 1125, p. 1261, and numer-
ous cases cited in note.)
III. The respondent having accepted this property as a
homestead under said order of the probate court, and having
14 Mont.] Bausch v. Kausch. 827
goue into possessioo^ and couUuuing to hold the same, as found
by tlie court, is estopped from asserting a title paramount to
tiiat of the estate. {Phelan v. Kelley, 25 Wend. 389; Jackson
V. Streeier, 5 Cow. 629; 2 Devlin on Deeds, 1289.) The court
having found that the appellant was the lawful wife of George
Rausch, deceased, at the time of his death we respectfully sub-
mit that under the other findings of fact made by the court
said appellant is entitled to her dower interest in said property.
The right of the wife to dower in the lauds of which her hus-
band was seised during coverture is given by the Act of Feb-
ruary 11, 1876, and affirmed by the supreme court in Chadvnck
Y. Taiem, 9 Mont 354.
Oeorge F. Shdion, for Bespondent.
I. The plaintiff forfeited her right to dower by the fact
that she and said Greorge Bausch separated in 1861, and in
1878 she married again, not having met or cohabited with her
first husband after such separation. If a woman leaves her
husband of her own free will, and afterwards lives in adultery,
the dower is forfeited. (2 Scribner on Dower, 633 et seq.;
HeiheringUm v. Oraham, 6 Bing. 135; Woodtoard v. Dowse,
10 Com. B., N. S.,722.) The statute, 13 Edw. 1, 34, com-
monly called the statute of Westminster the 2d,' upon which
the above decisions are based, has been recognized as a part of
the American common law, when no re-enactment has been
made in terms. {Bdl v. Needy, 1 Bail. 312; 19 Am. Dec.
686; Bed v. Elder, 62 Pa. St. 308; 1 Am. Bep. 414.) The
common law of England has been adopted by express enact*
ment in Montana. (Comp. Stats. 647.) The common law as
adopted by the legislature of Montana included such British
statutes of a general nature not local to that kingdom or not
in conflict with the constitution or laws of the United States,
nor of the territory as were in force at the time of the inde-
pendence of the United States. {Beni v. Thompson, 138 U. S.
114; Wilson v. Davis, 1 Mont. 193.) The principle that a
wife who voluntarily leaves her husband and lives in adultery
with another man cannot be heard afterwards to claim an
interest in his estate by the application of a doctrine analogous
to that of equitable estoppels has been uniformly recognized
828 Eausch v. Rauscit. [March T., 1894
by the ooarts. (Arthur v. Israd, 15 Col. 147; 22 Am. St.
Eep. 381; Duke v. Seed, 64 Tex. 705; Prater v. Prater, 87
Tenu. 78; 10 Am. St. Rep. 623; Odiom^s Appeal, 64 Pa. St.
175; 93 Am. Dec. 683; Gamer v. Gamer, 38 Iiid. 139.)
II. The doctrine of estoppel invoked by appellant is with*
oQt foundation in law or fact. It is claimed that respondent
is estopped by the inventory and petition to set aside home-
stead from asserting title in herself. Thai there is no merit
in this contention is established by numerous and well-con-
sidered authorities. {Aniliony v. Qiapnvan, 65 Cah 73; In re
Bauer^e Estate, 79 Cal. 311; Baker v. BrickeU, 87 Cal. 342;
Haley v. Oatewood, 74 Tex. 281; Carter v. McManue, 15 La.
Ann. 676; WerklieUer v. Werklieiaer, 3 Rawle, 326.) The
doctrine of estoppel is based ui)on the principle that some one
will be legally injured by permitting another to speak the
truth, but inasmuch as appellant could, under no conceivable
state of facts, have any greater or better title than George
Bauschy and as he had no title at all as against respondent,
appellant has suffered no injury and respondent has only
received tardy justice.
Harwood, J. — ^This case involves a claim by plaintiff to a
dower interest in certain lands situate in Helena, Lewis and
Clarke county, in the possession of defendant, who claims to
be the sole and exclusive owner thereof. On the trial of the
action in the district court findings of fact were made, and
thereon judgment was entered in favor of defendant, in effect
adjudging that plaintiff had made out no right of dower in the
premises in question; and therefore adjudging defendant's title
quieted as against said claim of plaintiff. Plaintiff appealed
from the judgment, insisting, in this court, that, according to
the findings of fact, the judgment should have been rendered
in her favor, establishing her claim of dower in said premises.
In brief, the facts as presented by the findings are as fol-
lows: That plaintiff and George Rausch were married in Aus-
tria, August 28, 1847; that about five years thereafter Greorge
immigrated to America, where he was joined later by plaintiff,
his wife; they lived together in Milwaukee, Wisconsin, some
time^ and afterwards in Denver, then territory of Colorado,
14 Mont] Bausch v. Kausch. 829
where, in the year 1861, these spouses separated, as found by
the court, each apparently going his and her own way, as subse-
quent events seem to imply, to seek their fortunes respectively,
independently of one another, and, as the findings recite, never
met again. The findings further show that George Rausch
came to Montana, and in the course of events, about the year
1868, married the woman who is defendant in tins action, rep-
resenting to her that his former wife was dead, and that there
was no legal impediment to his marriage with Eliza, this
defendant; tliat the latter marriage was solemnized by a priest
of the Roman Catholic church, in the city of Helena, theu
territory of Montana; that at the time of this marriage, as the
findings show, defendant Eliza Rausch was possessed of money
of her own earnings, acquired prior thereto, to the amount of
about two thousand two hundred and fifty dollars, and that said
(}eorge Rausch, at the time of his marriage with Eliza, had
nothing in the nature of money or property, not even sufficient
means for his own maintenance, and after such marriage he was
supported entirely by the property and earnings of defendant,
Eliza, until his death, which occurred in September, 1887;
that, on a certain occasion after said last-mentioned marriage,
defendant, having concluded to buy the property in question,
delivered to said Greorge Rausch, out of her own funds, money
sufficient to purchase the same, with direction to purchase it
and have tlie title conveyed to her name, which he promised to
do; that said George Rausch with such funds purchased the
property in question from the probate judge holding, as trus-
tee, the townsite of Helena, but caused the title of said prop-
erty to be conveyed to him, the said George Rausch, instead
of defendant, contrary to the express agreement between said
George and Eliza when the money was delivered to him to buy
said property; that some time afterwards, when defendant dis-
covered that the title had been placed In the name of George
Rausch, she was assured by him that it was all right; that
defendant was unable to read or write, and was ignorant as to
her legal rights in the premises; and the title to said ))ro})erty
remained in the name of George Rausch until he died in 1887,
Upon his death, administration proceedings were had as to
said property in his name, and, among other things, the prop-
330 Rausch v. Bausch. [March T., 1894
eriy iu question was, by order of the probate court Laving
jurisdiction thereof, set apart to defendant as her homestead, she
then being the supposed wife of the deceased, George Rausclu
While these events were transpiring in reference to the his-
tory of George Rausch, the plaintiff in this action, Johannah
Catherine Bausch, as appears from the findings, sought also to
carve out her fortune in the great western hemisphere, inde*
peudently of Greorge, her husband, and, among other events, at
Laramie City, Wyoming, entered into marriage bonds with
one Patrick G. Murphy, and lived with him in that relation
about seven years, when she obtained a divorce from him in
the courts of that jurisdiction, on the ground of his desertion
and failure to support hen
Now, after all these events, and after the death of Bausch,
plaintiff asserts her claim to dower right in said property, pur-
chased with defendant's money, in the city of Helena, and has
instituted this action to enforce such dower claim. Defendant
Eliza, in opposition thereto, set up, not only the proceedings
setting said property apart to her as her homestead by order of
the probate court, but also alleging her equitable right to said
property by reason of its having been purchased with her
money as aforesaid; all of which facts are found, and are
admitted to be true as the case now stands. But plaintiff's
counsel insist that defendant, having administered on the estate
of G^rge Bausch, and returned said property in the lists as
property belonging to his estate, and having allowed tlie same
to be set apart as her homestead, under her sup{)osed right as
the wife of George Bausch, is thereby estopped from now
asserting that said property was not, in fact or in equity, the
property of George Bausch, bat that she was, and still is, the
equitable owner thereof, independently of her supposed relation
to Bausch by marriage.
The estoppel proposed to bar the assertion of defendant's
equitable right to said property cannot be maintained. The
position taken by plaintiff's counsel throughout the argument
of this case is that defendant was never the lawful wife of
Bausch; that her marriage with him was void in law. But
that she was deceived and acted innocently, and without
knowledge of any legal im|)ediment to such marriage, is not
14 Mont.] Kausch v. Eausch. 331
disputed. Such appears to have been the view held by the
trial oourty aud is uot controveiled by defeudaut's couusel, aud
there seems to be no ground upon which to question its cor-
rectness. Then, admitting that defendant was never the law- '
ful wife of Rausch^ the acts and proceedings in reference to
his estate in favor of defendant, based upon the assumption
that she was his lawful widow, must have been void. But
those void proceedings were brought about by deception aud
imposition practiced upon defendant, Eliza, an innocent and
injured party. That nominal marriage of George Rausch with
defendant) and the proceedings based upon that fialse assump-
tion, being void, what were their relations in respect to said
property? It would seem to be that of one person receiving
money as agent for another, and with direction and under-
standing that such funds should be invested in the purchase
of certain property for, and the title thereto conveyed to,
the party furnishing the purchasing price; but, contrary to
such understanding and the right of the party furnishing the
money, the agent causes the title of said proi)erty to be con*
veyed to his own name. Under such conditions, the legal
title is held by the latter, as trustee for the former, and such
trust will be enforced, to the end that the equitable owner be
invested with the title of his or her own estate.
There is no principle of estoppel to bar defendant, under the
conditions shown in this case, from asserting her right to said
property. If so, then she is estopped by having suffered
wrongs and imposition through the misconduct of others in
matters wherein she was innocent and deceived; and the law of
estoppel, so operating, would augment her iujury. Such is
not the office of estoppel. It is interi)osed against guilty con-
duct to prevent imposition, deception, and injury to others
acting in goo<l faith in reference to the same subject. Nor
does it api)ear that any disadvantage resulted to plaintiff from
the events recited. Nor is her conduct as free from question
as that of defendant, against whom no suspicion of bad faith
or guilty knowledge is suggested. For, as appears from the
findings of fact, plaintiff* not only entered into formal marriage
relations with said Murphy after she and Bansch separated
(although it is found that she believed Bausch dead when she
832 Statb v. Cook, [March T., 1894
married Murphy), but "long before the death of Rauech, and
prior to plaintiff 's divorce from Murphy, she knew that Greorge
Rausch was alive, and was living with defendant as her hus-
' band." But there is no showing that defendant was given any
information as to the relation which existed between plaintiff
and said Rausch.
There is no ground shown upon which plaintiff can recover.
Let tlie judgment stand affirmed.
AffirmecL
Fembrktos, C. J., and De Wttt, J., concurred.
STATE KX RBL. BAILEY r. COOK, State Atjditob.
[Submitted April 2» 1894. Decided April 18, 1891.]
AppBOPBUTiOHi~2Viafi«/0r of unuMd portion to ^neral fimdU—Whetk the legial*-
tare appropriates specific sums of money for each of the two ensuing fiscal yean
to be used in the construction of a state prison, and only a smaU portion of the
fund is used during the first year, the unused portion of the appropriation did
not thereby lapse so as to authorize tlie state auditor, at the expiratlcm of the
first fiscal year, to transfer it, together with the appropriation for the second
fiscal year, to the general fund of the state.
Original PfiocEEDiNa. Application for writ of mandate.
Granted.
0. F. Ooddard, for Relator.
Henri J. HaakeU, attorney general, for the state, Bespondeni
Pemberton, C. J. — On the twenty-sixth day of July, 1893,
the relator entered into a contract with the prison commis-
sioners of the state to furnish sand to be used in the bnilding
of the eastern state prison at Billings. On the seventeenth
day of February, 1894, said relator presented his bill in the
sum of four hundred and twenty-five dollars for furnishing
said sand, to the state board of examiners, which was allowed
by said board, and thereafter transmitted to said respondent,
with a request for a warrant on the state treasurer for said sum.
The auditor refused to draw his warrant for said sum. Upon
such refusal to draw his warrant the relator makes this appli-
14 Mont.] State v. Cook. 333
caiion to this court for a writ of mandate to require said auditor
to draw said warraut for said claim.
By the act of March 3, 1893 (Laws 1893, § 15, p. 197),
forty-two thousand dollars were appropriated for the year
1893, to be used in the coustruction of said eastern prison,
and thirty thousand dollars appropriated for the same purpose
for the year 1894. It seems that only nine dollars of said
fund was actually used and paid out in the fiscal year 1893.
The auditor contends that he is not required to draw his war-
raut for the claim of relator, for the reason that the unused
balance of said appropriation of forty-two thousand dollars
was, on the first day of December, 1893, that being the day on
which the fiscal year of 1893 ended, by law transferred to the
general fund of the state, and that as the whole amount of said
appropriation for the year 1893 was not used and paid out
during said year, and was for that reason so transferred to the
general fund, and thirty thousand dollars appropriated for the
year 1894 was also transferred to the general fund on the first
day of December, 1893, and that there is therefore no appro-
priated fund on which he can draw his warrant to pay relator's
daim. We do not think this position tenable. The appro-
priation involved is for a specific purpose, and is for two years.
We think the appropriation in question, being for two years,
is subject to any demands and liabilities that may be incurred
by the state's agents during the whole period that it was
intended by the legislature that it should continue. Any
other construction would prevent tlie state's paying its legal
obligation, and embarrass ic in carrying out the public enter-
prises contemplated by the legislature in enacting such appro-
priation laws. This view has been held in other jurisdictions
under similar constitutions and laws to ours. (See People v.
Needles, 96 111. 577; People v. Swigert, 107 111. 494.)
We think the contention of respondent that said appropria-
tion or any part thereof lapsed on the first day of December,
1893, the end of the fiscal year for 1893, and was lawfully
transferred to the general fund on that day, is not supported
by authority or any legitimate construction of the laws of this
state.
It 18 therefore ordered that a peremptory writ of mandate
884 Logan v. Rickards. [March T., 1894
iBsne in. tliis case, requiring said auditor to issue his warraDt,
in accordance with the application of the relator.
OfvnUd.
Habwood and De Wnr, JJ., concur.
LOGAN« Respondent, v. RICKARDS et Aii., Appel-
lants.
[Submitted April 9, 1894. Deolded April 16, 189L]
Afpxjll— I><«miMat~jFVfidin^— BH«/i.— An appeal will not be dismiMed for fkil-
uro of appellants to exoept to flndinsi or to lek for farther flndingi; nor to
file briefs within the time required by the mlee of thii ooort
Appeal Jr(ym Ninth Judicial Didriol, OaHatin County.
On Motion to dismiss appeal. Denied.
E. P. OadtoeUy for the motion.
Hariman & Harlman, oorUra.
Per CiTBiAM. — Respondent's motion to dismiss appeal herein
should be overruled.
1. As to the failure of appellants to except to findings, or
to ask for further findings, that is a matter to be considered
on submission of the appeal for determination. Moreover,
there may be other matters relating to the judgment-roll,
which appellants may, if desired, have reviewed; and we can«
not assume at the present time that the findings, or want of
findings, will be the only question presented on such appeal.
2. As to the specification that briefs have not been filed by
ap])ellants within the time required by the rules of this court,
while that may be cause for summary disposal of the appeal
there has, so far, been no rule adopted providing for the dis-
mi&snl of appeals for failure to file brie& within the time pre-
scribed.
Motion denied.
14 Mont.] Gould t;. Barnard. 335
GOULD, ET AL., RjBSPONDENTSy V. BARNARD, Appel-
liANT. 2d 4S2\
[Bnbmitied October 16, 1898. Decided April 16. 1894.]
NoKBUiT.'After;,the OTerraling of a motion for nonsuit plaintlfF'B case is entitled
to any snpport supplied by the cTidence offered on behalf of the defendantb
{8\D$eney t. Great Falis eto. By. Co., 11 Mont^ 531; MoKay t. Montana Union
By. Co., 13 Mont. 15, cited.)
KiaHANia*8 Lnnr— ^u5con<raotori.— In an action by subcontractors to foreoloee a
lien, proof that the owner paid the contractor withont showing that the sub-
contractors reoeiTcd payment is insufficient to defeat the lien, as the owner in
order to protect his property should hare seen that the subcontractors were
paid for their work within the contract price.
Appeal from Second Judicial District, Siher Bow (hvmty,
AcnoK to fpreolose meohanic's lien. Judgment was ren-
dered for the plaintiffs below by McHatton, J. Affirmed.
BobvMon A Stapleton, for Appellant.
Forbia A Forbia, for Respondents.
Per CiTBiAM. — ^Tbe record herein presents a singular ease.
The action was brought to enforce payment of f 346.60 for
certain plumbing all^;ed to have been done in defendant's
buildings situate in the city of Butte, Montana, by foreclosure
of a mechanic's lien on said building. The controversy centers
upon the plumbing done in fitting rooms in said building to
be occupied by Dr. Murray. It appears that the block was
rebuilt, after destruction by fire, by J. W. Lambouru, con-
tractor and builder, under a contract with defendant, Baruard,
the owner of said property; that such contract provided for
the construction of said block, with certain plumbing to be
done therein, which building contract, according to the testi-
mony of defendant, contemplated and included the plumbing,
which U the subject of controversy in this suit. It fuilher
appears that plaintiffs were contracted with by said Lambouru
to do certain other plumbing in said building, under two
special contracts, one of which called for plumbing to the
amount of |790, and the other called for plumbing to the
amount of |465. In their complaint plaintiffs set forth three
items of plumbing — the first two above mentioned, and the
836 Gould v. Barnard. [March T., 1894
third item of |345.60 — ^and admit payment of the first two,
and seek to enforce payment for the third item by this actioD,
by foreclosure of the lien which it appears they filed upon said
property. Defendant denies that the value of said third item
of plumbing exceeded f 100, and also alleges that the same was
included and paid for in the plumbing comprised in the con«
tract above mentioned^ for which f 790 were paid.
The jury impaneled to try the issue involved returned their
verdict in favor of plaintiiTs, and judgment was rendered
accordingly, foreclosing their lien. The case is here on defend*
ant's appeal from the order denying his motion for new trial
on the assignment tliat the evidence is insufficient to support
the verdict; appellant's counsel insisting that there is no evi-
dence to support tlie finding that the plumbing here in contro-
versy was done under, or by virtue of, any contract.
We are inclined to the opinion that it might have been
necessary to sustain appellant's contention, had the want of a
contract or authority to do said work been made an issue, and
defendant's counsel had rested their case upon their motion for
nonsuit interposed at the close .of plain tijSs' testimony; for the
record, up to that point, hardly presents sufficient evidence to
support a finding in favor of plaintiffs. The weakness of the
case, up to that point, lies in the failure to show, substantially,
an express or implied contract on the part of defendant, or his
builder, Lanibourn, with plaintiffs, to do the plumbing in
question. But defendant did not rest on his motion for non-
suit, and his position was never so strong afterwards. The
testimony which he introduced, we think, materially cures the
weakness of plaintifib' showing, and they are entitled to any
support supplied by the evidence offered on the part of defend-
ant after the motion for nonsuit was overruled. (Sweeney v.
Oreat Falls etc. Ry. Co.y 11 Mont. 631; McKay v, Montana
Union Ry. Q)., 13 Mont. 15.)
It is shown by the evidence offered by defendant that the
plumbing in controversy was done in fitting up said rooms for
Dr. Murray, as provided in the contract between defendant,
Barnard, and Lambourn, contractor, to erect and finish said
block. Defendant, Barnard, asserts this in his testimony; and
the same is asserted in the deposition of Lambourn, introduced
14 Mont] Gould v. Barnard. 337
on behalf of defendant, with the qualification, according to
Lambourn's statement, that such plumbing exceeded that called
for in the building contract by one item. The same is further
shown by the testimony of Perry on behalf of defendant, to
the effect that he, along with defendant, on the completion of
said building, went through it, and checked up the items of
plumbing, to see whether the same had been done as required
by the terms of the building contract with Lambouru, and
that they found such plumbing, including that in the rooms
for Dr. Murray, done satisfactorily, according to the terms of
said contract Therefore, it a]>pears that this plumbing in
controversy was not work or expense put upon said building
in excess of that conteijiplated by the building contract; and
it also follows that said contractor, Lambourn, pursuant to the
terms of the building contract, was obliged to do, or cause to
be done, the plumbing in said rooms, as it was found by the
owner in checking the work over. The evidence introduced
on behalf of defendant shows that both the contractor. Lam-
bourn, and Barnard were present every day during the con-
struction and plumbing of said building, superintending the
same. Now, as observed above, the evidence offered in the
case is obscure, as to showing any special contract to do this
particular plumbing, but the amount of a contract, expressed
or implied, to do the plumbing in said rooms, was not the real
issue presented by defendant's answer. The answer does not
deny that plaiutifis had authority to do said plumbing. The
issue tendered is, as before stated: 1. That the value of said
plumbing does not exceed $100; and 2. That it was paid for
in the item of |790 paid to plaintiffs for certain plumbing
in said building, as aforesaid. The answer does not contro-
vert the fact that plaintifib had express or implied authority to
do the plumbing in controversy. The controversy is therefore
narrowed down, according to the pleadings, to the question
whether said plumbing was of the reasonable value alleged by
plainti&, and whether it had been paid for, on both of which
issues the evidence offered by defendant hardly raises a substan-
tial conflict
338 May v. Hill. [March T., 1894
The case made out shows that defendant contracted with
Lambourn to have said plumbing in the rooms to be occupied
by Dr. Murray done along with the rest of the plumbing
called for in the building contract, and that defendant paid
Lambourn therefor. But that plaintiffs received payment for
said plumbing is not shown. As the lien law now stands in
this state, in order to protect his property against this lien,
Barnard should have seen to it that the subcontractors were
paid for work done, within the contract price. The building
is therefore liable to a lien therefor. Order denying a new
trial a£Srmed.
All concur.
MAY, Bbspondent, v. HILL et al., BBANA6AN et al.,
Lin^BVEKOBS, Appellants.
[Sabmitted September 11, 189S. Decided April 2, 189i.]
AmomtiiiT OF Debt— i^otioe^Priortty a* againtt aUaefimenL^^oUob to a Ann
of the Msignment of a debt due by it is soiBoieDtly shown by proof that the
liaignee left with the person in faU charge of the firm's businees a written
order for the claim which was retained by such person with an nnderstanding
of the Bitoation, so as to gi^e snoh assignee priority OTor a creditor of tiie
assignor who garnished the Arm after snoh notice. Bnt quare, was proof of
inch notice material?
Appeal from Fifth Judicial DUtrict^ J^enan Oou/niy.
Action by assignee of debt. Attaching creditor intervenes
and defends. Judgment was rendered for plaintiff below by
Qalbbaith, J. Affirmed.
Statement of the case by Mr. Justice De Witt.
In October, 1891, Hill et a/., defendants, were indebted in
the sum of two hundred and ninety-seven dollars and eighty-
six cents, to one O. Rivard. This action is brought by the
plaintiff, May, against Hill et al.^ alleging that this indebted-
ness from defendants to Rivard had been assigned to May,
the plaintiff, for a valuable consideration. The indebtedness
claimed in the complaint was three hundred and ninety-five
dollars. Defendants filed an answer, in which they admit an
14 Mont.] May v. Hill. 339
indebtedness of two hundred and ninety-seven dollars and
eighty-six cents. They further state that John Branagan
et oZ. have garnished this money in an action by them against
Rivard. By consent, defendants retired from the litigation
after paying the money into court, and Branagan et al. filed an
answer, and became defendants. It is not necessary to recite
their answer in full. It is sufficient to state that the conten-
tion upon the trial was between the plaintiff, May, claiming
the funds in the hands of Hill e^ a^ by virtue of Rivard's
assignment of the same to him, by order drawn upon Hill
et aL, and Branagan et a/., claiming the same funds by virtue
of a garnishment served upon Hill etaL in sl suit of Branagan
et al. against Rivard. The jury found for the plaintiff for the
amount of money theretofore paid into court by Hill d oL
The defendant interveners moved for a new trial, which motion
was denied. From the order and the judgment the intervenors
appeal.
Cowan & Parker^ for Appellants.
De Witt, J. — It was specified in moving for new trial that
the evidence did not show an assignment of the indebtedness
by Rivard to May. But this specification is not pressed, and
indeed it could not be plausibly urged in face of the record in
this case. There was ample testimony of the existence, about
October 13th to 20th, of the indebtedness from Hill d al. to
Rivard. It was in evidence, uncontradicted, that Rivard was
indebted to May in a sum equal to or more than the debt from
Hill d al. to Rivard, and that, in consideration of this indebted-
ness, Rivard assigned and transferred to May, by written order,
the debt of Hill d al, to him (Rivard). It was also specified
that the evidence was insufficient, in that it did not show that
any notice of the assignment and transfer from Rivard to May
was given to Hill d al. prior to the service of garnishment in
the case of Branagan d al. against Rivard. It was assumed
by counsel, and the case was tried by the court upon the theory
that notice of the assignment from Rivard to May was mate-
rial. We will regard the case from this point of view of the
court below.
840 May v. Hill. [March T., 1894
The record shows that Hill et al. were a firm, under the
name of Hill, Logan & Co., composed of George H. Hill,
William K Logan, and Theodore H. Eleinscbmidt. Thej
were conducting a wood business and store. Their headquar-
ters, office^ and store were in the neighborhood of the railroad
station of Bernice. Eleinschmidt and Hill took no active
part in the business, and never came to the place at all, except
for an occasional visit. Logan came sometimes. One Mar-
tenstein was in charge of the store, and keeping the books and
accounts of the firm. Somewhere from the 13th to the 21st
of October, and before Branagan's garnishment of Hill d aL,
May went to the Hill store, and gave to Martenstein, the book*
keeper, and left with him, the written order by Bivard upon
Hill etoLto him (May). He told Martenstein that, by virtue
of said written order, he claimed the money due from Hill,
Logan & Co. to Rivard. Martenstein perfectly understood
his claim, and retained the order. At that time Hill and
Eleinschmidt were not about the business, nor was Logan
there for some ten days during this period. In fact, Marten-
stein, was the only person in charge of the place, and the only
person about connected with or representing the firm.
It is said by appellant that this book-keeper disclaimed any
authority. All that the book-keeper disclaimed was authority
to give a written acceptance of the order. It is a matter of no
materiality in this case whether the book-keeper accepted the
order or not We do not understand how May could have
possibly given this order, or notice of its existence, to Hill,
Logan & Co., in any other way than he did. He took it to
their recognized place of business, where all their aflairs out
of which this account grew were conducted. He gave it to
the person in full charge of that business, when the fact was
that two members of the firm were never there, and one mem-
ber was seldom there, and was upon a long absence at the time
of May's visit. It was simply a matter of giving the notice
as he did, or not giving it at all. We are of opinion that, if
it were necessary in this case to prove notice to Hill, Logan &
Co. of the assignment from Rivard to May, there was evidence
of the notice ample to sustain the verdict
14 Mont.] Sell v. Oravbs. 341
Appellants in their brief contend that the order from Bivard
to Maj is tainted with fraad. Bat this question is not raised
by specification or by issne in the pleadings.
The appellants contend that there were certain errors com-
mitted in the instrnctions, but their contention in this respect
is in the same line as their specification as to the insufficiency
of the evidence to sustain the verdict. We have diown that
the evidence was amply sufi^cient, and we are also of opinion
that the instructions very properly presented the case^ under
the evidence, to the jury.
The judgment of the district courts and the order denying
new trial^ are affirmed.
PembebioKj C. J., concurs.
SELL, Appellant, v. GBAYES, Respondent.
[Babmitt6dlUroh80,18U. Deddad April 16, 18U.]
Nsw Tsui^Faing $tatemerU,^-A Btttemeni on motion for a new trill whloh was
not filed after lettlement m required by labdiTieion 8 of lection 398 of the
Oode of OiTil Prooedore will not be stricken fh>m the record on appeal where
it WM filed wiib the <derk before eettlement, need npon the hearing of the
motion, and thereafter remained aa a file of the oonrt.
BAJoSeUUment of ttatemefU.-^A. statement on motion for a new trial will not
be Btricken firom the record npon the alleged ground that it waa not presented
to the Jodge who tried the oaee, or deliyered to the clerk for the Judge to settie
and sign within ten days after serrioe of the proposed amendmeDts, where it
appeared that after the statement and amendments thereto were filed both
were presented to ibe Judge and settled in the presence of respeotiTe oounsel.
BJOOr^ettlement of staiement— Waiver of objection,^The appearance and taking
part in the settlement of a statement on motion for a new trial by coufisel
for respondent ooostitntes a wairer of objection to the suflloienoy of sppel*
lanf s notioe of intention to apply for the settlement thereof.
Appeal from Tenth Judicial District, Oomdy of Flathead.
On HonoN to strike from the record the statement on
motion for a new trial. DeniecL
Mclntire & Clinton, for Appellant.
Banford & OnM, and Wakh & Newman, for Respondent.
342 Sell v. Graves. [March T., 1894
Per Curiam. — ^Respondent moves this court to eliminate
from the record the statement on motion for new trial:
1. Because the statement was not filed after the same was
settled and allowed by the judge who tried the action. The
motion cannot be sustained on this ground, because it appears
from the statement that the same was filed with the clerk imme-
diately after being prepared and served. Thereupon, respond-
ent filed amendments, and thereafter, as the record shows, the
court, with both counsel present, and aft^er hearing their argu-
ments, ^'settled said statement on motion for new trial, as being
full and correct, and duly signed the certificate in accordance
therewith.'^ While the record does not show that the statement
was refiled with the clerk aft^r being settled it does show the
filing of the statement and amendments with the clerk before the
statement was settled and aft^erwards the motion for new trial
was heard thereon. The statement on motion for new trial
should be filed after settlement. (Code Civ. Proc., § 298, subd.
3.) But in this case the statement was filed before it was settled,
and the tendency oF all the proceedings shows that it remained
with the clerk, as a file of the court, from the time it was first
filed until' it was settled, and the motion for new trial heard
thereon, and still remains as such file. Under such state of
facts, all the point amounts to is that the statement was filed
before instead of aft«r settlement, and this irregularity we
think insufficient, as ground for striking out the statement.
2. Bespondent urges the elimination of the statement on
motion for new trial from the record because the same ''was
not presented to the judge who tried the cause, or delivered to
the clerk for the judge to settle and sign, within ten days after
service of the proposed amendments." On this point, as before
recited, the record shows that the statement, after being prepared
and served, was filed with the clerk, and amendments were pro-
posed thereto by respondent, and filed with the clerk; and
thereafter, as the record discloses, the same were presented to
the judge and settled, counsel for both parties being present.
Under these circumstances, how it can be maintained that the
statement and amendments were not ''delivered to the clerk of
the court for the judge'' we are unable to conceive. The
record shows that both the statement and the amendments,
14 Mont.] Kanb v. Downing, 343
from the time of their preparation^ were filed with the clerk^
and; in due course^ were presented to the judge. . There is no
merit, on that allied ground, for striking out the statement.
The third ground on which respondent, moves to strike the
statement on motion for new trial from the record is that
appellant failed to give respondent five days' notice of his
intention to apply to the judge who tried the cause to settle the
statement. This ground of objection to the statement loses its
force, in view of the disclosure of the record that respondent's
counsel appeared, and took part in the settlement of the state-
ment, on motion for new trial.
The motion of respondent to strike out the statement on
motion for new trial will, therefore, be overruled.
Motion overruled.
All concur.
THOMAS KANE AND COMPANY, Appellant, v.
DOWNING, Eespondent.
[Bnbmitted October 6. 1898. IXeoided April 16, ISM.]
BuBflGBimoir to Fuhd— Zur&tiUy of delinquent tubscrtber—New promiae,^A,
delinqnent lubeoriber io a fond for the oonBtmctlon of in opera-hoiue is
liable in in action brought to enforce payment of hia sabBcription without
proof on the part of the plaintlfT that Home liability wai inenrred pnrsnant to
defendant's repeated promiaef to pay, made fnbseqnent to his snbioription,
where the action was based, not upon snob subsequent promises, but upon his
original subscription.
Bamb— /Sflfne— JIbidmcs.— ETidence that when a delinqueni subscriber signed a
subscription list the cost and character of the building contemplated was fully
explained to him, and that the trustees proceeded with the completion of the
enterprise, relying upon the subscription of defendant and others, is proper
where defendant pleaded that his subscription was intended for a lets expen-
siTe enterprise.
Appeal from Eighth Judicial Didrid, Cascade County.
Action to recover delinquent subscription to a fund. The
cause was tried before Benton, J. Defendant had judgment
below. Seversed.
Ed L. Biahopj for Appellant.
L The defendant does not claim to have revoked his sub*
scription, if at all, prior to the time the opera-house company,
344 Kanb v. DowNiNa. [March T., 1894
relying upon the same^ with others, had let the contract for
the building of the opera-hoase and incurred liability thereby
to an amount exceeding the total of the subscriptions. No
payee being named in the subscriptions in question, the defend-
ant's subscription constituted a continuing offer to pay the
same to any person who accomplished the object of the sub>
scription, "They who advanced money, did work, or fur-
nished materials, were proper promisees or payees/' and the
Great Falls Opera House Company, by accepting the subscrip-
tions in question and building the opera-house, became the
payee to whom the promise was made, as if made to it by
name. {Moaure v. WUsm, 43 111. 356; HaU v. OUy of Vir-
ginia, 91 HL 636; Bobmison v. ifarcfc, 3 Scam. 198; jRryor v.
Cain, 26 111. 292; MUler v. Ballard, 46 111. 379; Orunoold v.
Ihisteea of Peoria University, 26 111. 41; 79 Am. Dec. 361;
Swain v. HiU, 30 Mo. App. 436; CcmsUKk v. Howd, 15 Mich.
241; Tkonvpson v. Page, 1 Met. 669; Homes v. D(ma, 12
Mass. 190; 7 Am. Dec 66; Farmmgton Academy v. AUen, 14
Mass. 172; 7 Am. Dec. 201; Bryant v. Chodnow, 5 Pick. 228;
University of D$s Moines v. Livingston, 66 Iowa, 202.)
II. The organization of the Great Falls Opera House
Company and the uniting therein as stockholders of the sub-
scribers, for the purpose of collecting the subscriptions in
question and building the opera-house, constituted the com-
pany the common representative, agent, or trustee for the
entire body of the subscribers to carry out the object of the
subscriptions. (Stoain v. Hill, 30 Mo. App. 436; Edinboro
Academy v. Bobinson, 37 Pa. St. 210; 78 Am. Dec. 421;
Shober v. Lancaster Qmnty Park Assn,, 68 Pa. St. 431; Oib^
bons v. Orinsdl, 79 Wis. 365; MarysvUle etc. Oo. v. Johnson,
93 Cal. 538; 27 Am. St. Rep. 215; Athol Music HaU Oo. v.
Oarey, 116 Mass. 471.)
III. When tlie Great Falls Opera House Company
accepted and proceeded to collect the subscriptions it thereby
agreed to hold and appropriate the funds subscribed in con-
formity with the terms and object of the subscription, which
implied promise could have been enforced, and thus mutual
and independent promises were made which constituted a legal
and sufficient consideration for each other. {Ladie^ OoL InsL
14 Mont.] Kane v. Dowhinq. 345
V. li^ench^ 16 Gray, 201; Maine Oniral Ind. v. HcukeB, 73
Me. 142, 143; 26 Am. L. B. 2.) If either of the three pre-
ceding propoeitions are correct, the court evidently erred in
instracting the jury that in order to oonstitate defendant's
promise to pay the subscriptions to the company a waiver, they
must find that the company incurred liability in the erection
of the opera-house by reason of the promise, or took some
action in the building of the house they would not have taken
but for such promise.
ly. The admitted promise of defendant to pay to the
company, knowing that it had been formed for that purpose,
must be held to be a ratification of the acts of his co-subscrib-
en, and to have the same effect as if he had consented to the
organization. Defendant had ample opportunity to ascertain
by reading the first subscription paper, or by inquiry, whether
the opera-house to which he was subscribing was the same one
of which he had talked with Qerin, and how the same was to be
built, owned, and controlled. Without doing this he signed
an absolute, unconditional subscription, and upon the faith of
this others have not only subscribed to the enterprise, but have
since paid in a large share of it; the corporation has been
organized, engaged in business, expending large sums of
money, upon the strength of these subscriptions in entire
ignorance of the alleged misunderstandings or agreements set
up in the answer, while defendant stood by to see whether it
was going to be a profitable investment before coming in and
claiming his interest in the enterprise. To permit defendant
to release 'himself from liability on any such ground would
be a fraud on others who have subscribed and paid for stock,
and upon the corporation which has been organized and
incurred liabilities in reliance upon the subscriptions. His
promise being unconditional he cannot be allowed to invoke
conditions. {HaskeU v. WcfrfhingUm^ 90 Mo. 660; Minne^
apolis Thrahing Machine Oo. v. Davis^ 40 Minn. 110; 12 Am.
St. Rep. 701; Oeargt v. Harris, 4 N. H. 633; 17 Am. Dec.
446; OOeaheimer v. IfumpsM Mfg. Cb., 44 Mo. App. 182,
and cases dted; Bhowhogan dc.B. B. Q>. v. JEtfwiTian, 77 Me.
370.)
846 Kakb v. Downing. [March T., 1894
Ledie & Downingj for Respondent
Per Curiam. — ^This action is fonndel npon two certain
promises by defendant to pay the sums of |200 and $100 by
way of subscription to a fund for the purpose of constructing
an opera-house in the city of Great Falls, Montana. These
promises read as follows: '^ We, the undersigned, hereby sub-
scribe and agree to pay the amounts set opposite our respective
names, for the purpose of erecting an opera-house in the city
of Great Falls, upon the rear 50 feet of lots 1 and 2, in block
309; said land to be subscribed at the rate of $6,000, and the
building to cost |1 6,000,'' — to which defendant subscribed
$200, along with about seventy other parties, who subscribed
divers sums, ranging from $25 to $2,600 each.
The second subscription to the fund, for the same purpose^
reads as follows: *^ We, the undersigned, hereby subscribe and
agree to pay the further amounts set opposite our names, for
the purpose of erecting the proposed opera-house in the city
of Great Falls,''— to which defendant subscribed $100; which
undertakings or promises to pay are set forth in the complaint
And it is further alleged therein that pursuant to said sub-
scription, and by the concurrence of a majority of said sub-
scribers to the fund for said purpose, at a meeting, of which
all were notified, and at which a majority of said subscribers
were present, it was determined to organize a corporation, pur-
suant to the laws of Montana, in the name of the ^' Great
Falls Opera House Company," to proceed in due course to
build an opera-house on the land mentioned with the funds so
subscribed in the subscription lists above set forth; that the
various subscribers to said fund paid their subscriptions
respectively, with the exception of about $2,500, delinquent,
among which is that of defendant.
Plaintiff is a corporation, organized and existing under the
laws of the state of Illinois, and, as alleged in the complaint^
had obtained a judgment against the Great Falls Opera House
Company in the sum of $757.48, and such proceedings were
had as authorized plaintiff to bring this action to enforce pay-
ment of defendant's subscription to said opera-bouse fund.
The answer of defendant does not deny that he signed said
14 Mont.] Eans v. Dowminq. 347
sabeoription lists, as aforesaid, but sets up two grounds of
defense against the enforcement thereof: 1. Defendant alleges
that, before any corporation was formed or any liability
incurred in furtherance of the scheme of building said 0]>era-
house pursuant to said subscription, he revoked and rescinded
his subscription thereto; 2. For further defense, he alleges
that, prior to signing said subscription list, defendant, with a
few other citizens of Great Falls, discussed the project of build-
ing an opera-house in said city, which should cost the sum of
$6,000, exclusive of the lot on which the same should be
erected; the same to be constructed and owned by the persons
contemplating the erection thereof, as a copartnership under-
taking, under the management of John Gerin. That the sum
sued for in this action was defendant's subscription for the
building of an opera-house of that character and under those
conditions. But that contrary thereto, and without defend-
ant's knowledge or consent, a corporation was formed, and
obtained possession of said subscription lists which he signed,
and proceeded to erect an opera-house in said city at a cost
greatly exceeding |6,000, to which he had subscribed, to wit,
at a cost exceeding $40,000; that, by reason of such change in
the character of the company, the cost, management, and man-
ner of carrying out said enterprise, defendant was released from
the obligation entered into by said subscriptions.
The trial which ensued resulted in a verdict by the jury in
&vor of defendant, whereupon plaintiff moved the court for a
new trial, on a statement of the case containing all the evidence
introduced at the trial, and setting forth numerous specifica-
tions of error in the rulings of the court during the trial; and,
further, that the evidence is insufficient to support the verdict.
The record discloses that, upon the trial, plaintiff offered
proof in support of its complaint to the effect that in the spring
of 1891 the project for building said opera-house was initiated
by a meeting of a large number of the citizens of said city, the
purpose of which was to consider the subject of building an
opera-house therein; and thereat said enterprise was agreed
upon and inaugurated by opening a subscription list, which
was oiiealated and subscribed to, as above mentioned, by about
70 subscribers, in divers sums, aggregating about $18,356,
348 ELufB V. Downing. [March T., 1894
besides the rite on which said building was to be erected,
valued at $6,000; and thereto defendant subscribed the sum of
|200. That, when he signed said subscription list the purw
pose thereof was fully explained to him. And thereafter, at
another meeting of the subscribers, it being determined that
the funds already subscribed were insufficient to erect an opera-
house of the character desired, it was proposed and determined
to endeavor to increase the original subscription 50 per cent
Accordingly, another subscription paper was prepared, and
signed by all present, raising their original subscriptions 50
per cent, and the same being presented to defendant, with
explanation of the object and purpose thereof, be signed the
same in the sum of $100, increasing his original subscripticNi
60 per cent That immediately thereafter, at a meeting of a
majority of the subscribers, a committee was appointed to
organize and incorporate the Great Falls Opera House Com-
pany, and proceed with the building of the opera-house pui^
suant to the plans and purposes of the subscribers to said
subscription lists, which was done. That the secretary of said
company thereafter, on all occasions when meetings of the
stockholders thereof were called, or to be held, sent writtai
notices of such meetings to all the subscribers on said lists,
including defendant; and also, from time to time, called on
said subscribers for payment of certain proportions of their
subscriptions, respectively, as directed by order of the trustees
of said company. That, defendant being delinquent, the treas-
urer of said company also called on him personally, when the
construction of said opera-house was considerably advanoed,
and requested payment of defendant's subscription, and was
assured by defendant that in a few days he would call on the
treasurer and pay the same in full, but, such payment not hav-
ing been made, defendant was again called on personally by a
collector appointed by the company to collect the delinquent
subscriptions on said lists, to whom, on two occasions, defend-
ant promised to make payment, but that he failed to pay the
same.
The evidence introduced by defendant does not in any man-
ner substantially contradict the proof offered by plaintiff. Nor
is there proof offered by defendant to establish the all^;ation
14 Mont.] Eans v. Dowmikq* 349
toat he rescinded or revoked his said aubscriptioDS before the
building of said [opera-house was entered upon hy said com-
pany^ or at anj other time.
As to the defense set up by defendant, that the subscriptions
in question were made by him to build an opera-house^ at a
cost of $6y000, by a copartnership consisting of a few persons,
residents of Great Falls, and to be managed by Gerin, the same
should not have been considered at all, nor evidence in relation
thereto admitted over the objection of plaintiff, because that
defense does not controvert the allegation of the complaint or
the promises on which this action is founded, set forth in said
subscription lists. Nor does that defense allege facts in avoid-
ance of those promises. The subscription list pleaded in the
first instance sets forth the purpose thereof, to wit, that '' we,
the undersigned, subscribe and agree to pay the amounts set
opposite our respective names, for the purpose of erecting an
opera-house in the city of Great Falls, upon the rear 60 feet of
lots 1 and 2, in block 309; said land to be subscribed at the
rate of f 6,000, and the building to cost $16,000^'; an I this
subscription list was signed by defendant at the close thereof,
with more than 60 names preceding his, subscribing funds
aggregating over $18,000 for the purpose mentioned. Defend-
ant does not deny that he signed that and the subsequent
paper increasing his subscription thereto. Nor does he in any
manner allege circumstances of deceit or fraud whereby he was
induced to subscribe to that enterprise. Whatever discussion,
arrangement, or determination may have been had by defend*
ant and others as to the erection of an opera-house in said city,
at the cost of $6,000, exclusive of the ground on which it was
to be built, by a copartnership, under the management of
G^in, it is plain from the subscription lists on which this
action is founded that the same do not contemplate such a
scheme, and expressly show another, to which defendant sub-
scribed; and defendant has failed to set up facts to avoid the
same. But admitting the signing of said lists, which on their
face propose a building to cost greatly exceeding $6,000, and
in no manner alleging grounds to avoid his promise to pay
funds subscribed thereto, defendant seeks in defense to set up
the £ict that, prior to subscribing to that enterprise| he had,
850 Kanb v. Downing. [March T., 1894
with others, discussed a different one; which might have been
all true, but does not constitute a defense to this action. But
the court allowed defendant to undertake to establish by proof
that character of defense, and the same inconsistency appears
in stronger light from the evidence offered by defendant, for
his own proof shows that the scheme for building an opera-
house at the cost of $6,000, which defendant alleges he had
discussed with Grerin, the promoter and proposed manager
thereof, was abandoned, Mr. Gerin, testifying on behalf of
defendant^ in speaking of that scheme, says: ^^The house
originally contemplated by me, and devised, was not built
The enterprise as planned by me was not carried out" Fur-
thermore, defendant's repeated promises to pay his subscrip-
tions demanded in this action, when said opera-house was
well advanced towards completion, contradicts the allied
defense of the revocation of said subscriptions as fictitions and
unfounded in fact, and also tends to show that such subscrip-
tions were not understood by defendant to apply to the (6,000
opera-house scheme.
We have no doubt that with proper rulings of the court as
to admission of testimony consistent with the material allega-
tions of the pleadings, and with proper instructions to the jury,
a verdict would have been properly returned in favor of plain-
tiff, because, according to the showing of the record, no sub-
stantial defense to the action was supjiorted by proof.
The court instructed the jnry^ in ^ect, that notwithstanding
defendant's repeated promises to pay said subscriptions, while
said opera-house building was in course of construction, and
notwithstanding the showing on the face of the papers, and
other evidence, to the effect that such subscriptions were not
made in contemplation of building an opera-house at the cost
of $6,000, still plaintiff must show that the opera-house com-
pany incurred some liability pursuant to such promises of
defendant to pay said subscriptions, made subsequent to sign-
ing the same, or recovery could not be had. This was error.
Plaintiff sued on the original promises, and no substantial
defense thereto was supported by proof.
The instructions offered by plaintiff, and refused by the
court, plainly and fairly stated the law applicable to the trans-
14 Mont.] Eane v. Downing. 851
action in question, with more liberality towards defendant's
allied defense than was justified in vjew of the substance
thereof and the want of proof to support the same. Likewise,
the instructions offered bj plaintiff, and given by the court,
were proper and liberal statements of the law applicable to the
case, as developed in the pleadings and proof, but the court
erroneously modified the same by inserting therein the propo-
sition that plaintiff could not recover unless it was shown that
the opera-house company actually proceeded to incur liability,
relying upon the promises of defendant to pay said subscriptions
when he was called on as a delinquent, after the opera-house
construction was nearly completed. So, as to the numerous
assignments of error in the exclusion of testimony^offered by
plaintiff, such as testimony of witnesses that, when defendant
signed said subscription lists, the building contemplated by the
subscribers thereto, as to cost and character, was fully explained
to defendant, and that the property would be bonded to raise
funds, in addition to that subscribed, sufficient to erect such
opera-house, and that explanation of like character was made
when he signed the additional subscription list; also, the exclu-
sion of evidence offered by plaintiff to the effect that the trus-
tees of said company proceeded in the construction of said
opera-house, relying on the subscription of the funds made by
defendant and others, as shown in said subscription lists.
Such evidence was proper, and should have been admitted, and
we are unable to understand why the court excluded the same,
in view of the pleadings in this case. The assignments of
error, some twenty-six altogether, are well taken. The rulings
thus excepted to grew out of the erroneous theory on which
the court appears to have proceeded in the trial of this action,
which we think has been sufficiently discussed without treating
in detail the other assignments. All those rulings are a suc-
cession of minor errors, emanating from the erroneous tiieory
adopted by the court, as heretofore shown.
The order denying plaintiff's motion for new trial must
therefore be reversed, and the cause remanded for trial de novo,
proceeding therein according to the views herein expressed.
Order reversed.
All concur.
352 Cook v. Gbsbnouoh. [March T., 1894
^^ ___ COOK, Rbspokdbnt, v. GREENOUQH ep jll., Appel-
li ^ [Babmitted October 17, 1888. DMidad April 16» 18M.]
Laxntcnov Boxd— l>ama^M— .iltoriMy'f /«•.— In an aotion upon an injaneiion
bond the fiurt that plaintiff became liable for attomey'a feet in the injunction
■nit is anfflciently ihown by proof that he employed an attorney who prooored
a diMolation of the injunction, and of the reaaonable value of his aerrloea.
BAMm^8ame—Sxpm§$»,-'A yerdict for expensee in procuring a dinolution of aa
injunction, in ezoew of what were actually proved, ia improper, and ihonld be
nmitted to the amount warranted by the evidenoe or a new trial giantad.
Appeal from Fourth Judieial DiBtriet^ MisMuIa Oowuty.
Action upon an injunction bond. The canse was tried
before Mabshall. J., who denied defendant's motion for a
new trial. Bevened oonditionallj.
Waiter A Wood, for Appellants.
The complaint should state that the plaintiff has paid his
attorney's fee. (WiUsch v. MeEvoy, 25 CaL 170; Jaokton v.
Port, 17 Johns. 479; ChurckUl v. Hunt, 3 Denio, 321; Prader
V. Grimm, 28 Cal. 11; WUde v. Joel, 6 Duer, 671; BudamenU
V. Stewart, 65 Cal. 116; MUeheU v. Hatdey, 79 Cal. 301;
Hovey v. BiMer lip Fenoil Co., 60 N. Y. 336; JDiArow v.
Garcia, 62 N. Y. 664; 1 Sedgwick on Damages, $ 237; Hedgee
V. Meyers, 6 111. App. 347.)
Benry C Stiff, for Respondent.
There are some decisions holding that the attorney's fee mnst
be paid by the plaintiff before he can recover therefor on the
injunction bond, but there are numerous decisions to the effect
that the incurrence of a liability to pay the fee is all that is
necessary to entitle him to recover. {Miles v. Edwards, 6
Mont 180; Underhill v. Spencer, 26 Kan. 71; Loofborow v;
Slmffer, 29 Ean. 416; Brown v. Jones, 6 Nev. 374; Noble v.
Amdd, 23 Ohio St. 264; ShvUz v. Morri9on, 3 Met. (Ky.) 98;
SUde V. Thaidher, 66 111. 267.)
Per Curiam. — ^Tliis action is bronght against the sureties
on an injunction bond to recover damages suffered by defend-
14 Mont] Cook v. Gbssnougq. 863
ant in the injanotion suit wherein such bond was exeonted and
delivered, by reason of the employment of counsel and other
expense incurred in procuring a dissolution of the injunction.
Plaintiff recovered by the verdict of the jury one hundred dol-
lars for counsel fees, and seventy-five dollars for other expenses
incurred in the injunction action. This appeal is by defend-
ants from an order denying new trial. The specifications are
that the evidence does not sustain the verdict in two respects:
1. Appellants contend that there is no evidence that plaintiff
herein became liable to pay an attorney fee for services in the
injunction action; but, on the contrary, the evidence does show
that plaintiff's attorney in that action was employed by him,
and that he performed the services which resulted in a disso-
lution of said injunction, and that the services were reasonably
worth one hundred and fifty dollars. Defendants admit such
services were worth one hundred dollars, and this amount was
found by the jury therefor. These facta dearly show that
plaintiff became liable for such attorney's services.
2. The verdict also gave seventy-five dollars for other ex-
penses. The evidence in this respect^ by the most liberal inter-
pretation, shows damages not exceeding thirty-two dollars and
fifty cents. The court should have required plaintifi to remit
the amount of damages not warranted by the evidence, or
granted a new triaL
The case is remanded, with directions to grant a new trial,
luiIeBS such excessive damages are remitted.
Bemanded.
All concur.
Vou ZIT.— 38
854 Watkins ii. MoBBis. [March T., 1894
WATKINS ET AL., APPELLANlBy V. MORRIS £T AL^
Respondents.
[8abmittedJftniuu7 81,189i. Dedded April 28, 1894.]
AmkL—Oo9t bond.— Bni one cost bond ii required in Appeftling from » Jndff*
ment and tn order, where fooii appeal is oonaolidated into one record.
Appeal from Bird Judicial District^ Lewis and Clarke Cbwnig.
On motion to dismiss appeal. Granted as to appeal from
the jadgment.
Walsh A Newman^ for the motion.
Henry C. Smith, and F. N.A8.n. Molntire, eonira.
Per CuBiAic. — In this case the respondents move to dismiss
the appeal on two grounds: 1. Becaase it appears that there is
an appeal from the jadgment, and also an appeal from an
order denying a motion for new trial, and there is but one
cost bond given; 2. Because the notice of appeal from the
judgment was not served or filed within one year after the
entry of judgment.
The first ground of the motion to dismiss is not well taken.
It has been the universal practice in this state, and in the late
territory, in appealing from a judgment and an order, where
such appeal is consolidated in one record, to give but one cost
bond. The matter has never been before this court for adjudi-
cation, but it b held in California that the giving of one bond
in such an appeal is sufficient. The supreme court of Cali-
fornia said, in the case of Chester v. Bakersfield ele. Assn.
64 Cal. 42: ^'The practice of filing but one undertaking where
appeals are taken, as in this case, both from the judgment and
order denying new trial, is about as well settled as any ques-
tion of tliat kind can be, and we do not think that it should
now be treated as an open one.'' (See, also, Hayne on New
Trial and Appeal, § 211, p. 646.)
It appears that the appeal from the judgment was not taken
within one year after the judgment was entered. That appeal
must therefore be dismissed, and it is so ordered. Appellants
14 Mont.] Cbowb v. La Mott. 855
themselves concede that this must be done, and say that they
do not insist upon that appeal. Tliis leaves the case pending
in this court upon the appeal from the order denying new
triaU
All concur.
CROWE, Appellant, v. LA MOTT et al., Respondents,
[Babmitted Nojembor S» 1883. Dedded April 28, 189i.]
Equitt— Complaint to redegm—OkaUel morigag^.-^Jji an action to redeem from a
chattel mortgage a oomplaint which alleges that after the matarity of the debt
the assignee of the mortgagee took possession of the property and has ever
■inoe held possession, treating the same as his own and seUing portions thereof;
bnt which does not allege any facts showing that in taking possession defend-
ant in any manner Tiolated the terms of the mortgage or otherwise wrongfnllj
oonverted the property, fails to show grounds for equitable relief.
Appeal from Seventh Judicial District, YeHowdone County.
Action in eqqity to redeem from a chattel mortgage.
Defendant's demurrer to the complaint was sustained bj Mil-
BUBN, J. Affirmed.
K P. Ckidwdl, for Appellant.
I. A mortgagor may maintain his suit in equity to redeem
from a chattel mortgage after conditions broken, and after pos-
session is taken of the mortgaged property by the mortgagee or
his assignee. (Jones on Chattel Mortgages, § 801; 8 Am. &
Eng. Ency. of Law, 200; Heyland v. Badger, 35 Cal. 404;
Broum v. Bementy 8 Johns. 96; 3 Am. & Eog. Eucy. of Law,
200; Charter v. Stevem, 3 Denio, 35; 45 Am. Dea 444; Sand"
ford V. Flivt, 24 Mich. 26; Van Brunt v. WakeUe, 11 Mich.
177; Porter v. Pamdey, 62 N. Y. 185; 2 Story on Equity
Jurisprudence, § 1031; Story on Bailments, § 287; Spaulding
V. Barnes, 4 Gray, 330; Dupuy v. Oibson, 36 III. 197; Flan-
ders V. Oiamberlain, 24 Mich. 305.)
IL The complaint is sufficient. (Jones on Real Estate
Mortgages, 1090-99.) As to whether it is necessary to show
and plead a tender kept alive in court, see Daubenspedo v. Piatt,
22 Cal. 334; OoldsmiVi v. Osborne, 1 Edw. Oh. 560; WaUer v.
Harris, 7 Paige, 168; Jones on Chattel Mortgages, § 690;
366 Obowb 9. La Mott. [Maroh T., 1894
Lavigne v. Naramore, 52 YU 267; TaOon v. Emsm^ 3 Nek
63-74; Jones on Real Estate Mortgages, § 1095; Adams v.
Nebraska do. Bank, 4 Neb. 370. Wlien it is neoessary to
allege and show tender, see AUerton v* Belden, 49 N. Y. 373;
Lamb v. J^riey, 41 Mich. 719. As to whether we are entitled
to ask for an accounting in an action to redeem, see Quia ▼•
Brittain, 1 Ho£ Ch. 353; Barion v. May, 3 Sand. Ch. 460.
0. F. Ooddard, for Respondents.
Upon the breach of the condition the legal title to the chat-
tels mortgaged becomes absolute in the mortgagee, and the
mor^gor from thenceforth has no rights except such as are
recognized by courts of equity. The mortgagee may thereupon
take possession of the property, and so &r as the legal rights
of the parties are concerned he may treat it as his own, and
may squander, destroy, or give it away. (Thomas on Mort-
gages, 145; Jones on Chattel Mortgages, 699-702; Brotm
V. Bemetd, 8 Johns. 95; Addey v. Fmok, 7 Cow. 290; Lcvng-
don V. Bud, 9 Wend. 80; PaJbohm v. Pwrcc, 12 Wend. 61;
Jvdsm V. EoBton, 58 N. Y. 664; Heyland v. Badger, 36 Gal.
409.) After default the mortgaged property may be sold by
the mortgagee as his own, and although the mortgage contain
a power of sale^ it will not be neoessary for him to act under it
in order to vest the title in the purchaser. If the mortgagee,
after taking the property into his possession, has sold or
destroyed it, and thereby put it beyond the power of the oourt
to allow a redemption so as to reinvest the title in the mort-
gagor, the mortgagor may still seek compensation in equity,
but relief in equity can be granted only upon payment or ten*
der of payment of the whole mortgage debt, which must be
averred and proved. To enforce his equity the appellant must
do or appear to do equity, and that in an elective way.
(Jones on Chattel Mortgages, §§ 684, 690; Thomas on Mort-
gages, 449; Hall v. DiUon, 56 How. Pr. 19; Halslead ▼.
Bwarbi, 46 How. Pr. 289; Heylmd v. Badger, 36 Cal. 412.)
Per C0BIAM. — ^By this action plaintiff invokes the inter-
position of the equity power of the court to compel defendant
to allow plaintiff to redeem certain goods and chattels from the
14 Mont] Cbows v. La Mott. 357
eacumbranoe of a mortgage thereoDy and on snoh redemption
to require defendant to deliver to plaintiff all of said chattels
now in possession of defendant, and, further, to require defend-
ant to account for all proceeds derived from sales of portions
of said chattels since defendant took possession thereof, pre-
tending to act pursuant to said mortgage.
The complaint seta forth: That to secure payment of three
thousand dollars, evidenced by a promissory note executed and
delivered by plaintiff to defendant Sebastian Wustum, plaintiff
duly executed, acknowledged, and delivered to him a chattel
mortgage of plaintiff's one-half interest in and to a certain
band of horses, and other personal property, which said prom*
issory note and mortgage were thereafter duly assigned and
delivered to defendant La Mott. That, after maturity of the
debt secured by said mortgage, defendant La Mott took posses*
sion of said chattels, and has ever since held possesion thereof,
treating the same as his own, and selling portions thereof, the
proceeds of which sales amount to three thousand dollars; That
said property was of the value of eighteen thousand dollars.
(This averment not being clear, however, as to whether plain-*
tiff's half interest, or the whole property, was of that value.)
Li addition to said chattel mortgage executed and delivered
to secure said debt, certain real estate was also mortgaged as
further security for the same debt, which real estate was, on
default of payment, after maturity, of said debt, sold, pursu**
ant to the order of court, in a foreclosure action, in the sum
of five hundred dollars, to be applied on said mortgage debt
That, since defendant La Mott took possession of said chattels^
ho executed and delivered to defendant Wustum a chattel
mortgage thereon, purporting to secure a debt of three thou*
sand dollars owing by La Mott to said Wustum. Wherefore,
defendant Wustum is made party to this action, as still having
an interest in said chattels. Plaintiff further alleges that he
is able, willing, and desirous to pay all that may be found due
on his said mortgage, and interest, after an accounting and
credit thereon of the proceeds derived from sales of said
chattels by La Mott since he took possession thereof, as well
as the proceeds derived from the sale of said real estate under
said foreclosure proceedings. And plaintiff asks that an
358 Ceowk v. La Mott. [March T., 1894
account be required by order of court as to said proceeds^ and
to give credit accordingly, and ascertain the amount due on
said debt, and that redemption of said property be allowed and
enforced on behalf of plaintiff as aforesaid.
The complaint was demurred to on the averment that it fails
to state facts sufficient to constitute a cause of action. This
demurrer was, on consideration by the court, sustained; and,
plaintiff having declined to amend his complaint, judgment
was entered in favor of defendants, from which plaintiff prose-
cutes this appeal, insisting that his complaiut shows sufficient
grounds for equitable relief in the behalf demanded by plain-
tiff.
The demurrer was well taken, because, as appears from an
examination of the complaint, plaintiff entirely failed to allege
any fact showing that, in taking possession of said chattels,
defendant, in any manner, proceeded contrary to, or in n^lect
or violation of, the terms of said mortgage. According to
plaintiff's complaint, defendant La Mott took possession 0/
said chattels after maturity of the mortgage debt secured
thereby. So far plaintiff proceeds according to the terms of
the mortgage, which is, in hoBO verba, made part of plaintiff's
complaint. Thereafter, if La Mott proceeded to extinguish
the title and right of redemption in plaintifl^ by advertisement
and sale, according to the terms of said mortgage, or caused
the same to be done by action of the sheriff of said county,
according to law, and the terms of said mortgage, or accom-
plished the same by foreclosure thereof through action in court^
defendant may lawfully have become the purchaser of said
chattels, and still continue in possession, treating the same as
his own, as alleged in the complaint. But that La Mott did
neglect to do those things the complaint does not show. The
complaint is entirely silent upon these important and material
points. It is not permissible to assume, without averment,
that a man proceeded wrongfully to convert property. The
facts showing such ~ wrongful conversion must be alleged.
Defendant La Mott may have done all the complaint allies
in regard to said property, and yet violated no right or equity
of plaintiff, provided he likewise fulfilled the terms of said
mortgage as to advertisement and sale of the property, and
14 Mont.] McOuDLB v. Edsali.. 859
payment to plaintiff of any residue of the proceeds after sat-
isfying the mortgage debt. If he fulfilled those conditions^
and became purchaser of said property, his title may have
thereby become absolute. But, if he neglected those condi-
tions of the mortgage, there would be ground for an action on
behalf of plaintiff; and a court of equity would grant relief
if there appeared to be no adequate remedy at law, as for
wrongful conversion — a question not raised on this appeal, and
therefore not necessary to be here considered. But the com-
plaint is entirely wanting in allegations showing that defend-
ant n^lected to proceed in his action regarding said chattels
according to the terms and conditions of said mortgage, and
therein the complaint ^appears to be insufficient. Judgment
affirmed.
Pehbebton* C. J., and Habwood, J.^ concur.
Mc<}niBE^ AppELLAXTTy «. JBD3ALL et al.^ Eebponb-
ENTB.
[Bnbmitied Mtfoh 21. 1808. Dedded April 28, 189i.]
TxMAiiTM^O<mntercktlm.^TJudin seetioni 89 tnd 90 of the Code of OiTil Prooo-
dore, permitting a defendant, by uiBweT, to plead an ezlating oonnterclaim aa
new matter oonttituting a defenae, it ia error for the oonrt to permit defendant
bj amendment to plead aooonterolaim maturing after the action ia oommenoed.
Appeal from NirUh Judicial Disbriot, OtUkUin Qnmty.
JuDGKENT was rendered by Abmstbong, J., for plaintiff,
less a counterclaim. Beversed as to allowance of defendant's
counterclaim.
E. P. Oadwell, for Appellant.
Luee & Luce, for Respondents.
Per Curiam. — The sole question involved in this case ia
whether the trial court erred in permitting defendants, by
amendment of their answer, to plead a counterclaim against
the demand of plaintiff, which counterclaim matured after
S 346
860 McOuiBB V. Edsall. [March T., 1894
plaintiff's action waa oommenoed. The court allowed snob
amendment during the trial, and permitted evidence to be sub-
mitted in support of the counterclaim thus introduced into the
action. This practice cannot be sustained. Our statute pro-
vides upon this subject that the defendant, by answer, may
plead a counterclaim* as new matter constituting a defense
(Code Civ. Proc., § 89), and that the counterclaim mentioned
''shall be one existing in favor of the defendant or plaint ifi^
and against a plaintiff or defendant, between whom a several
judgment might be had in the action arising out of the follow-
ing causes of action/' (Code Civ. Proo., § 90.)
With scarcely any conflict of opinion, it is held that the
counterclaim thus pleaded must be one existing and matured
for action in favor of the party asserting the same at the time
the action was commenced wherein such counterclaim is sought
to be pleaded. This is held in several California cases, where
the subject appears to have been carefully considered, under
like provisions of statute, from which state, no doubt, our
statute on this subject was borrowed. Not only so; such hold-
ing is supported by the great weight of reason^ as will be
found expounded in the following cases. {Paige v. Oarter, 64
Cal. 489; Oannon v. Dougherty, 41 Cal. 661; J^eys v. Hamr
cooJfe, 57 Cal. 646; Traffbrd v. BaU, 7 R. I. 104; 82 Am. Dec.
689; Lee v. Lee, 31 Ga. 26; 76 Am. Dec. 681; Smith v. Wask-
wiffton Oaslight Co., 31 Md. 12; 100 Am. Deo. 49; Haye^ v.
Hayee, 2 Del. Ch. 191; 73 Am. Dec. 709; 8mUk v. Ewer, 22
Pa. St. 116; 60 Am. Dec 73; Shepherd v. Turner, 3 McCord,
249; 16 Am. Dec 631; Oregg v. Jame9, Breese, 143; 12 Am.
Dec 162; HiU v. Kroft, 29 Pa. St. 188; SpeerB v. Sterrett, 29
Pa« St. 194; Ly<m v. Petty, 65 Cal. 322; Bliss on Code Plead-
ing, § 369, et seq.)
It appears that upon the trial defendants succeeded in estab-
lishing their counterclaim to the satisfaction of the jury, and
the same was offset against the demand of plaintiff, and plain-
tiff was given judgment for the amount of his demand over and
above such offset We are satisfied that this was error, and
that therefore the judgment must be reversed and a new trial
ordered. This court cannot direct judgment, for the reason
that there was a conflict in the testimony^ and there is nothing
14 Mont.] EuNB V. Hanks. 361
before us hy which we may determine whether the jury, by
their verdict, allowed all of the eoanterclaim, or only a part
thereo£ Or whether they reduced plaintiff's claim, instead of
allowing the whole of the counterclaim. {Lebcher v. Ornimw*
sioners, 9 Mont 315.) Judgment reversed and cause remanded
for new trial. p.,^^^
All concur.
KLINE, Bespondent, «, TTANKE et al., appellants. ^ |g|
[Sabmitted Noramber 3. 1898. Dedded April 28, 189i.
Taus^Direetlng werdict—AeHon for rmt— On fhe trial of aa action to noorw
rent it ia error for tbe ooort to direct the Jury to find for the plaintiff when
there ia OTidenoe tending to aupport a defenae that defendant did not enter the
premiaea in qneation nnder » leaae for yeara, bnt merely aa a tenant from month
to month.
Aanon on LsAas— De/maea, consistency of. —Jn an action npon a leaae a defenae
that defendant waa merely a tenant from month to month ia not inooudatent
with a defenae that l^ reaaon of acta and omiaaiona of the plaintUT, amounting
to an etlotion, defendanta were oompeUed to remore from the premiaea.
Appeal from Fbrd Judieiat Didrid, Lewis and Clarke County.
AcmoN on a leaae. The cause was tried before BucK| J.,
who directed a verdict for plaintifEl Reversed.
Henry C. SmUh, for Appellants,
An i^reement for a lease will not be enforced if its condi-
tions are unperformed or broken by the landlord. (1 Taylor's
Landlord and Tenant, § 388; Tomilinaon v. Day^ 2 Brod. &
B. 681.) A tenant whose rent is payable monthly under a
general holding or a void parol lease will hold from month to
month, (Hurd v. Whilaett, 4 Col. 77; Western Union Tel. Co.
V. Fain, 52 Ga. 18; Brotmidl v. Weloh, 91 111. 523.) The
failure to complete the building amounted to an eviction.
{Boyee v. Guggenhein, 106 Mass. 201; 8 Am. Rep. 322; Skally
V. Shute, 132 Mass. 367.) The evidence as to the presence of
the lewd woman and the nuisances complained of should have
gone to the jury. {Dyett v. Pendleton, 8 Cow. 727; Cohen v.
Dupont, 1 Sand. 260; Alger v. Kennedy, 49 Vt. 109; 24 Am.
Rep. 117; Balligan v. Wade, 21 111. 470; 74 Am. Dec. 108;
862 Elins v. Hankk. [March T., 1894
Bissea V. Lloyd, 100 111, 214; 1 Tay Ws Landlord and Ten-
anty § 381; Bowboiham y. Pearce, 6 Houst. 135; LevUzh/ v. Oatir
nrnfff 33 CaK 299.) At least it was a question for the jary as
to whether by his acts plaintiff did not intend an eviction*
(1 Taylor's Landlord and Tenant, § 381.)
C JB. Fleischer^ also for Appellants.
H. 8. Hepner, for Respondent.
Even though an agreement to give a more formal lease be
embodied in the writing, still, if there are words of present
demise, it has been held to be only in the nature of a covenant
for further assurance. (Taylor's Landlord and Tenant, § 41,
and cases cited; Tiedeman on Real Property, § 179; Wash-
burn on £eal Property, 397, 398; 1 Woodfall on Landlord
and Tenant, *95, 96; BaUett v. Wylie, 3 Johns. 44, 47, 48; 3
Am. Dec. 457; Jackson v. Kisselbrack, 10 Johns. 336; 6 Am.
Dec. 341; Whitney v. Attaire, 1 N. Y. 305; Ba4xm v. Bowdoin,
22 Pick. 401. See, also, Ouipman v. Bluok, 4 Bing. N. C. 187.)
The theory on which appellants based their case rested upon a
new and different agreement than the one set out by plaintiff.
This new agreement was alleged tenanqrfrom month to month.
Appellants' contention of an eviction under such theory should
have no standing, inasmuch as they were at liberty to vacate
the premises at the expiration of each month; As there was
no evidence to indicate a notice of intention to move, testi-
mony of an eviction would have been proper, provided the
new agreement (under which such eviction is alleged to have
taken place) had been proven. This they failed to do.
Per CuBiAH. — ^The object of this action is to recover rent
alleged to be due from defendants to plaintiff under the terms
of a lease of certain premises in the city of Helena, which
demand is for rent accrued after defendants vacated said prem-
ises. The instrument on which plaintiff relies as a lease, set
forth in his complaint, discloses a contract between plaintiff
and defendants, whereby plaintiff agreed to erect a certain de-
scribed building on one-half of lot 31, block 2, of said city, to
be completed and ready for occupation by defendants on or
14 Mont] Klinb v. Hanks. 363
before Augnst 15^ 1890, and to lease the same to defendants
for the period of five years from that date at a rent of fifty-
two dollars and fifty cents per month, payable in advance; and
defendants, on their part, agreed, by the terms of said instru-
ment, to lease said premises for said period at the rent afore-
said, when so erected by plaintiff according to the terms of
said contract.
Defendants, by answer, admit the execution of said contract,
but allege that the same never became effectual, because said
building was never completed as provided thereby. That
defendants went into said building under another and entirely
different contract, entered into with plaintiff about the time
said building was completed; that is, a parol contract, whereby
defendants agreed with plaintiff to lease said building from
month to month, at a rent of fifly-two dollars and fifty
cents per month, and not otherwise. And defendants, for
further defense, allege that said building, by reason of the acts
and omissions of plaintiff, became untenantable, whereby de-
fendants' eviction therefrom' was caused by plaintiff, in that
no substantial roof was put upon said building, so as to pre-
vent leakage, and by reason thereof great quantities of water
came into said building upon defendants' goods, furniture, and
fixtures, whereby the same were damaged, and defendants'
business greatly interrupted. That plaintiff was frequently
notified of such defective condition of said roof, the leakage,
and the injury to defendants' goods and business therefrom;
but that plaintiff neglected to repair the roof of said building
to prevent such leakage. That the lower part of said build-
ing occupied by said defendants was by them used for the pur-
pose of conducting a butcher's business therein, and the upper
part of said building so leased by defendants was used for
residence purposes by one of the defendants and his family.
That plaintiff had control of other parts of the second story of
said building, and occupied apartments therein. That said upper
story was so arranged that it was necessary for both plaintiff
and those residing therein by his permission, and defendants
and his family, to use a hallway, hydrant, and sink in com-
mon, in their occupation thereof. That plaintiff's conduct in
his use and occupation of that portion of the building^ and the
S64 Elikb v. Hanks. [March T., 1894
parposes for which he allowed the same to be ased, were sach
as amoaated to a contiDuing nuisance, whereby defendants' use
and enjoyment of the portion thereof by them leased was pre-
vented, in this: that plaintiff emptied into said sink, situated
under said hydrant, wheref rom defendant and his family, resid-
ing in the upper part of said building, obtained water for fam-
ily use, certain filthy matter, brought thereto from plaintiff's
lodging apartments, whereby and wherefrom noxious odors,
offensive to the senses and deleterious to health, arose and per- '
meated the upper part of said building, and that such nuisance
was continued a long time; and that plaintiff also allowed lewd
women to occupy apartments in the upper story of said build-
ing, with whom defendant's wife was compelled to meet in her
use of said common hallway therein, whereby defendant was
prevented from continuing his occupation of said building with
comfort and enjoyment, or with safety to the health of himself
and family, and was thereby compelled to remove therefrom
as evicted by the acts of plaintiff.
By replication plaintiff put in issue all the affirmative alle-
gations of the answer, and on the issues thus raised by the
pleadings the trial ensued, whereat both parties introduced
testimony in support of their contention; but at the close of
the introduction of testimony the court, having excluded cer-
tain testimony offered on the part of defendants, directed the
jury, on motion of plaintiff, to return a verdict in his favor,
which the jury did accordingly.
The assignments of error which we deem necessary to examine
relate to the action of the trial court in striking out certain
testimony introduced by defendants, and also excluding other
evidence by them offered, and peremptorily directing the jury
to return their verdict for plaintiff; which assignments will
now be considered.
Upon the trial, plaintiff introduced evidence tending to sup*
port the allegations of the complaint, and, plaintiff having
rested, defendants introduced evidence on their part, tending
to support their defense that said original contract providing
for the erection of said building by plaintiff, and the lease
thereof by defendants for the period of five years, was aban*
doned by reason of the failure of plaintiff to erect and com-
14 Mont.] KuKB V. Hankb. 865
plete the same within the time provided; and that defendants
did not enter said premises pursuant to the terms of said con-
tract^ but went in under a parol agreement to lease and occupy
said premises from month to month, as averred in the answer.
This evidence was admitted, and tends to support that branch
of the defense, whereby it dearly appears that the peremptory
direction of the court to the jury to find for plaintiff, without
consideration of the evidence ofi'ered in support of that defense,
was erroneous. Not only so, the testimony of Schopfer, stricken
out, and that of other witnesses offered by defendants and ex-
cluded by the court, tended to support the allegations of defend-
ants' answer as to the imperfect roof on said building, the
leakage, and the creation and maintenance of a nuisance therein
by plaintiff. The objection to said evidence, sustained by the
court, states that the same is immaterial, irrelevant, and incom-
petent It appears to be tainted with none of those diar-
acteristics, for the testimony excluded purported to be that of
witnesses having personal knowledge of the conditions men-
tioned.
But the more remote cause of irrelevancy suggested is
that defendants' two defenses set ug are inconsistent Even
this would not justify the ruling of the court which denied
defendants the benefit of both defenses by directing the jury to
return a verdict for plaintiff, without consideration of any part
of the defense. The suggestion that the defense affirming that
defendants were, in effect, evicted from said premises by the
alleged misconduct of plaintiff is inconsistent with the other
all^;ed defenses to the effect that defendants had only leased
from month to month, and therefore defendants should not be
allowed to prove both defenses, cannot be maintained. Defend-
ants may allege as many defenses as they have. Two are
alleged in this case. It may well have been considered by
defendants that the court and jury might not adopt their con-
tention that they went into said premises under an agreement
to rent from month to month, independently of the original
contract If the court and jury interpreted the facts and cir*
eumstances against defendants on that defense, and hdd that
defendants were committed to a lease for five years, can it be
maintained that they could not show facts of which plaintiff
was the author, amounting to an eviction of defendants during
. 366 MiLLiGAN V. Cupp. [March T., 1894
said term of five years? We think not. There is no inoon-
sistencj, contradiction, or incompatibility in these two defenses
which forbids pressing both forward with such evidence as
defendants can command.
Judgment and order reversed, and caase remanded for new
trial,
Beoened,
All concur.
MILLIGAN, Rbbpondent, v. CUFF, Appellaistt.
[Sabmiitod October 26, 1898. Decided April 38, 1804.]
FoBOiBLB Emtet ahd Uhlawtdl Dxtaxhxe— PZaififtfT fnutl haoe pMeealle po^
MS«i<m.~The leiaor of a lot upon which the leoee had erected a building
nnder a lease proyiding that all improTemeDti put upon the premiaee dioold
become forfeited upon default in payment of rent for wixij days, cannot, after
lefaiing a tender of two months' rent, upon the exprees ground that rent
for three monthi was due, maintain an action for forcible entry against the
defendant to whom the lease had been transferred, where it appeared that
immediately after refusing the two months' rent he had placed two men witiiin^
the building during the temporary absence of the defendant who had occupied
the houM during the preceding night and that day until one o'clock, when he
went out for dinner, and who upon returning had forced his w»y into the
house and turned out the men, since the plaintiff had acquired no peaceable
possession at the time of defendant's entry; and had the two months' rent been
accepted there would haye been no sixty days' defult under which a forfeiture
of the building could have been declared.
BiJa—PoBseuion &yp2ain^.— The mere fiaet that lessor of premises had giten
permission to the lessee's mortgagee to remoye some furniture fh>m an upper
story and store it in a lower room, after such permission had been reftiaed bj
the lessee's agent, does not establish such a posaession ai to enable the lessor
to maintain an action for forcible entry.
Appeal from Third Judicial Didrid, Deer Lodge County.
Action for forcible entry and unlawful detainer. The
cause was tried before Dubfee, J. Plaintiff had judgment
below. Reversed.
BrazeUon & Scharnxkow^tot Appellant
The evidence conclusively shows that the defendant, or his
ageutSy were in constant possession of the property, although
frequently absent for a short time. That during such absence
George Plaisted went upon the premises. That upon his
return the defendant again took possession^ without force.
14 Mont.] MiLLiGAN V. Cuff. 867
Defendant entered in good faith and under claim of title aa
lessee, and therefore could not be guilty of unlawful detainer,
{Oonray v. Duane, 45 Cal. 597; Powdl v. Lane, 45 Cal. 677;
Shelby v. Houston, 38 Cal. 422.) No other evidence of pos-
session on the part of plaintifi* was produced than that George
Plaisted went upon the property in controversy for a short
time, during the temporary absence of the defendant or his
agents. This was a wrongful entry on his part, and is not
such a possession as will maintain an action of this character.
{Mason V. Hawes, 52 Conn. 12; 52 Am. Rep. 552; Harring^
Um V. 8coU, 1 Mich. 17; MUckeU v. Carder, 21 W. Va. 277.)
No evidence of any character is produced by the plaintiff that
any demand whatever was made for rent, or a notice of forfeit-
ure served on defendant This is necessary before a recovery
can be had. (2 Woodfall on Landlord and Tenant, § 449;
8 Am. & Eng. Ency. of Law, 140; Johnston v. Hargrove, 81
Va, 118; Cane v. Woodward, 66 111. 477.) No attempt what-
ever is made to show that a demand for possession was made
as required by statute, to recover possession from a tenant for
covenant broken. A failure to make this demand is an abso-
lute bar to this action. (Code Civ. Proc., § 727, Comp. Stats.;
Martin y.Splivalo, 56 Cal. 128; King v. QmnoUy, 51 Cal. 183;
MoDemU v. Lambert, 80 Ala. 536; McLean v. SpraU, 19 Fla.
97.) The court, in giving instructions for plaintiff,' erred in
holding that the only issue was the fact whether or not on
March 12, 1890, the plaintiff or agent was in the possession,
and the defendant took possession forcibly. The plaintiff hav-
ing admitted the execution of the lease, and failed to prove its
forfeiture, the possession of plaintiff would, of itself, be wrong-
ful, and not the issue to be presented to the jury, as they so
were in saia instructions, unless the demand for rent and pos-
session or declaration of forfeiture was also made, and found
by the jury. (Nason v. Best, 17 Kan. 408; Hyde v. Ooldsby,
25 Mo. App. 29; Lichty v. CXark; 10 Neb. 472; DuUtm v.
(Mby, 35 Me. 505; WiUiamson v. Paztm, 18 Gratt. 475.)
Durfee & Brown, for Bespondent.
The act of forcible entry and detainer is a summary proceed-
ing to recover possession of premises forcibly or unlawfully
868 MiLLiQAN V. CuFP. [March T., 1894
detained. The inquiry in sach cases is confined to the actual,
peaceable possession of the plaintiff in the original complaint
and the unlawful or forcible ouster or detention by the defend-
ant — the object of the law being to prevent the disturbance of
the public peace by the forcible assertion of a private right.
Questions of title or right of possession cannot arise; a forcible
entry upon the actual possession of the plaintiff being proven,
he would be entitled to restitution, though the feensimple title
and present right of possession are shown to be in the defend*
ant The authorities on this point are numerous and uniform.
{Parks V. Barklet/, 1 Mont. 514; Boardman v. Thompson^ 3
Mont 387; &ieehy v. Flaherty, 8 Mont 366; VM v. HoOm,
60 Cal 570; HoOand v. Qrem, 62 Cal. 67; Qidding v. '76 Zand
and Waier Oo., 83 Cal. 100.) The testimony shows that the
plaintiff by her agent, George Plaisted^ was in actual and
peaceable possession of the property in controversy from Feb*
ruary 26th or 28th, 1890, to March 12th, 1890, and had let a
portion of the house to other persons for storage purposes.
The testimony further shows that the property bad been vacant
and abandoned several months prior to the taking possession
of it by the plaintiff; that the manner of obtaining poesesaion
of the property was peaceable; that the plaintiff was ousted
from possession, and the property detained by force and violence.
The law requires no one to do a vain thing; the property in
controversy was abandoned and the whereabouts of thedefend*
ant or his grantor unknown; the plaintiff, through her agent^
used every diligence to collect the rent due, without ancoefls;
the defendant and his grantor had forfdted all right of posses-
sion they ever had, by nonpayment of rent and abandonment
As to whether the plaintiff demanded rent, or declared a for*
feiture, is immaterial, if her possession was actual and peac^
able and her ouster violent and forcible. The law is fixed on
this point, and the cases already cited on this subject are con*
elusive. Had the possession of the plaintiff been scrambling^
or other than open, peaceable, and notorious, the jury under the
instructions given for both the plaintiff and defendant had
ample warrant to so find and give the defendant their ver-
dict.
14 Mont.] MiLUGAN V. Cupp. 869
Per CuBiAM. — By tbU action, plaintiflF seeks judgment for
restitation of possession of a certain lot and building thereon
situate in Phillipsburgh, Deer Lodge county, whereof plaintiff,
by ber complaint, avers that she was on the 12th of March,
1890, the owner and in peaceable possession; that defendant,
then and there, contrary to tlie statute in such cases made and
provided, entered into said premises, and with strong hand
took possession thereof, and ever since has wrongfully withheld
possession, to plaintiff's damage in the sum of one hundred
dollars. Wherefore, plaintiff demands judgment for restitution
of said premises, and damages, in the sum of one hundred
dollars, for wrongfully entering and withholding possession
thereof. Defendant on his part, pleads not guilty of the
alleged forcible entry or unlawful detainer, and denies that
plaintiff is entitled to any dami^ by reason of defendant's
occupation of said premises.
Plaintiff prevailed on the trial, recovering judgment for
restitution of possession of said premises, and for damages
greatly exceeding the amount alleged or demanded in the com-
plaint, to wit, seven hundred and thirty-three dollars.
Defendant's motion for new trial specifies error in certain
instructions to the jury, and that the evidence is insufficient
to support the verdict; and, his motion for new trial having
been overruled, he appeals from that order, insisting that his
specifications are well founded, as shown by the record.
After the action was instituted plaintiff died^ and the present
plaintiff was substituted as her administrator.
The evidence shows that one Morris leased said lot about
Angust 7, 1889, fi>r the period of three years, conditioned, as
shown by the lease introduced in evidence, that the lessee
(Morris) should have the possession and use of said premises
for three years from that date, for which he agreed to pay the
sum of twenty-five dollars per month rent, payable monthly in
advance, and that default of such payment for sixty days should
subject the leasehold, and all improvements put upon said
premises by the lessee, to forfeiture; that, pursuant to such
lease, Morris took possession, and erected on said lot a two-
story frame building 24 x 85 feet in dimensions, at a cost of
about two thousand five hundred dollars, arranging the lower
Vol. XIV.-24
870 MiLLiGAN V. Cupp. [March T., 1894
story for the purpose of oonductiog a saloon business therein,
and furnishing the same with certain fixtures for the purpose
of carrying on such business; that the upper story of said
building was arranged in rooms, carpeted and furnished, for
lodging purposes. That Morris did not engage in a saloon
business in said building, as was intended by him when he
erected the same, for the reason, as he asserts in his testimony,
that the opportunity for such business was then unpromising.
But it appears the upper rooms were used for lodging purposes
by Morris, as far as he could find tenants therefor, during a
short period after the building was completed and furnished;
his wife the while having charge and taking care of the
lodging department of said house; that Morris, finding it neces-
sary, on account of the quiet state of business at Phillipsburgh,
to go elsewhere to seek employment, about October 2, 1889,
removed to Anaconda, where he found employment, and
brought his wife and family there shortly afterwards, leaving
said premises, with the furniture and fixtures therein, in charge
of defendant. Cuff, to whom, according to the testimony of
defendant and Morris, the leasehold and improvements on
said lot had been sold and conveyed by Morris. Afterwards,
Morris sent from Anaconda toplaintift fifty-one dollars in
payment of the rent, which, as all parties agree, paid the rent
up to December 16th of that year. Defendant Cuff, appears
to have assumed control over said premises aft;er the departure
of Morris, but was absent therefrom most of the time during
said winter. He claims to have left the premises in charge of
Charles McDermott, to take care of the building, and rent the
rooms in the upper story, in his absence. McDermott testifies
that he did the same in the absence of Cuff, and collected some
rents from lodgers in said rooms, and this is not disputed.
During all this time plaintiff, lessor of said premises, and her
husband, (xeorge Pliaisted, who acted as her agent in respect to
said lease and premises, resided a short distance therefrom; and
Greorge Plaisted testifies, on behalf of plaintiff, that during said
winter the building on said lot was not occupied, with the
exception of the occasional occupation of some of the rooms by
lodgers; that during said winter he frequently passed by said
14 Mont. I MiLLiGAN V. Cuff. 371
building, and on one occasion closed and put a prop against
the door thereof.
The event which plaintiff claims amounted to a forcible
entry and unlawful taking of possession of said premises by
defendant occurred about March 12^ 1890 (the particular date
being immaterial, except that these events happened prior to
March 16th, which all agree). At that time there were three
months' rent due. That according to the testimony of all the
parties, about that date Morris and Cuff visited G^rge Plaisted,
plaintifi 's agent, at the residence of the latter, and offered to
pay two months' rent, but Plaisted declined to take such pay-
ment. In speaking of this interview, in his testimony on
behalf of plaintiff, Plaisted says; ^^I wanted full rent. I
wouldn't take two months' rent, as they offered." And, accord-
ing to his testimony, that is the only reason he asserted for
declining the payment of two months' rent offered by defend-
ant* Immediately afler this interview, as shown by the testi-
mony, Plaisted called to his aid Simmons and Sherman,
whom he brought to said house, and directed them to stay
there, and hold possession thereof while he (Plaisted) would go
down town, as he said, and procure a lock, and return. As
Plaisted started on such errand, when but a short distance
from said house, he met defendant apparently going to the
house. Thereupon Plaisted turned and followed defendant.
Defendant, on reaching said house, attempted to open the door
and enter; but, finding the latch fastened, he climbed into the
house through a large opening in the door, where the glass
formerly therein had been broken out. While so doing, Sim-
mons tried to prevent defendant from entering; but failing,
defendant came in, and said to Simmons, ^^Now, you go out."
Whereupon Simmons went out, as all the witnesses agree. On
the part of plaintiff, however, the witnesses assert that, when
defendant ordered Simmons out, he took hold of his shoulder,
and pushed him. This defendant denies. It also appears that
about the same time defendant ordered Sherman out, and he
went out, also. While these events were transpiring plaintiff's
agent, Greorge Plaisted, was just outside of the building. There-
after def Midant continued in possession, and this action was
immediately instituted in the justice's court of that township.
872 MiLLiGAN V. Cuff. [March T., 1894
founded entirelj upon the proposition that, when the episode
just desoribed occurred, plaintiff was in the peaceable possession
of said premises, and that said acts of defendant, Cuff, amounted
to a forcible entry and unlawful detainer thereof.
The decision of the case must turn upon the question as to
which of these two contending parties had actual possession, in
contemplation of law, at the time defendant entered, and ordered
Simmons and Sherman out of said house. The evidence intro*
duced on behalf of defendant, and not disputed, is to the
effect that both Morris and defendant had occupied and slept
in said building during the previous night, and were in posses*
•ion thereof daring that morning ; that there were fixtures
and furniture in said building belonging to either Morris or
defendant, Cuff, the evidence not being dear which of them
owned the fixtures and furniture remaining therein; that, as
before stated. Cuff had that morning offered Plaisted payment
pf two months' rent due on said lease; that^ when Plaisted
declined to receive such payment^ he did so on the express
ground that he wanted all the rent paid, with no intimation
(hat he had assumed possession of said premises, or intended
to insist on a forfeiture of the leasehold and improvements
because the rent was in arrears. His expressions to defendant,
as related in his own testimony, fairlgr implied that the pay<^
ment of the rent in full would be satisftotory to plainti£ It
is to be borne in mind, too, that had Plaisted received die two
months' rent, as offered, on that occasion there would have
l^emained only one month's rent in arrears at that time, and for
tpch arrears the leasehold and improvements would not have^
been subject to forfeiture. Nor was plaintiff or her agen^
Plaisted, actually in possession at the time be declined to receive
the payment offered; but, according to the evidence disclosed
by this record, defendant was in possession, actually occupying
said premises. Defendant testifies that he not only slept in
said house the night previous, but was there during that day
until about one o'clock, when he went down town to a restau-^
rant for his dinner, and was returning therefrom when he met
Plaisted, and on going to the house found Simmons and Sher-^
man therdn, and ordered them out as aforesaid. His testimony
stands uncontradicted. According to the testimony disclosed
14 Mont.] MiLLiGAN V. CuFP, 373
hj the record, without ooDflict, plaintiff had acquired no ac*
tuai peaceable possesaion when the event took place on which
heaseerts that defendant made a forcible entry into said prem-
ises. At most plaintiff attempted to gain possession of said
premises and failed. We do not think plaintiff even succeeded
in getting what might be termed '* scrambling possession.''
{Boicera v. Oierokee Bob, 45 Cal. 602, and cases cited; VoB v.
BuOer, 49 Cal. 74.) The inference to be gathered from the
facts shown by the record is that plaintiff proposed and sought
to assume possession of said premises, and forfeit to her use
and benefit the improvements thereon, of the value of ovei^
two thousand dollars* for three months' rail, at twenty-five
dollars per month, then in arrears. Without notice or intima^
tion to the lessee of such purpose plaintiff attempted to take
possession of said premises, but fiuled to establish peaceable
possession, for she was repulsed in the attempt Instead of
being the one against whom i forcible entry was made, plain-
tiff herself, through her agent, was attempting to make ail
unlawful entry and failed. As before observed, had plains
tiff received (lie two months' rent offered there would have
been only thirty days' rent then in arrears, and consequently
tlie leasehold and improvements would not have been sub-
ject to forfeiture, under the terms of the lease. But, while
these environing circumstances may haj^e a bearing explana-
tory of the acts and intentions of the parties they relate more
directly to the right of possession, which is not under consid-
eration in this case. The decision turns upon the question ail
to who was in actual possession when the event occurred on
which plaintiff founds this action.
Plaintiff appears to rely to some extent on the fact that prior
to her attempt to take possession of said premises, as aforesaid,
she had given permission to Evans & Co. to store some
furniture in the lower room of said building. The facts on
this point, as disclosed by the record, show that Evans &
Co. held a chattel mortgage on certain furniture in the
upper rooms of said building, and, on taking possession thereof
to foreclose the mortgage, they applied to McDermott, who,
according to the testimony on behalf of defendant, was in
charge of said building for a time, as a representative of
374 MiLLiGAN V. Cuff. [March T., 1894
defendant, Cuff, for permission to take said goods from the
upper story, and store the same a short time in the lower
room; that McDermott declined to give any such permission,
whereupon Evans & Co. applied to Plaisted for like per-
mission in respect to said goods, and, according to Plaisted's
testimony, he granted the same, and said goods were trans-
ferred from the upper to the lower story of said building, and
remained there, in the care of Evans & Co. a short time,
until sold in foreclosure of said mortgage. It does not appear
that plaintiff had any interest in said goods whatever. The
same appear to have been the property of Morris, subject to
the lien of Evans & Co* thereon; and the mere permission
which plaintiff asserts he gave to Evans & Co. to move said
goods from one part of said building to another does not,
under the circumstances, have any weight in determining the
main question in this case.
The impression gained on the argument of this case was that
the &cts supported plaintiff's recovery, but^ on a thorough
consideration of the facts presented by the record, we find the
evidence entirely insufficient to sustain the finding that defend-
ant made the forcible entry or unlawful detainer charged
in the complaint. Moreover, the damages awarded greatly
exceed the amount warranted under the allegations of the
complaint
The instruction by the court to the jury which excluded
from its consideration the acts of McDermott, as representative
of Cufi^ as shown in evidence, on the ground that Cuff, as rep-
resentative of Morris in said lease, could not delegate his
authority to McDermott, was inconsistent with the charge to
the jury to consider the acts of Simmons and Sherman in
attempting to take and hold possession of said premises at the
instance of plaintiff's agent, Plaisted, as acts authorized by
plaintiff, and done in her behalf; the court thus assuming and
charging the jury that Plaisted, as agent of pluntiff, could
delegate his authority to act in aid and benefit of plaintiff in
reference to said premises, but that a representative of Morris^
in charge of said building, could do no such thing. This
instruction, in efftsct, lays down one rule of law to govern
14 Mont.] Brooks v. Jordan. 375
plaiatiff^s side of the case, and a contrarj rule to govern the
defendant, under similar conditions.
Judgment and order denying new trial reversed, and the
cause remanded, with directions to grant defendant's motion
for new trial, d ,
.i, MeversecL
All concur.
BROOKE, Respondent, v. JORDAN, Appem^ant,
[Babmltted Aogiui 9, 1883. Dedded April 80, 1891]
MnBEBom^lloit deed—ffearsay.—TbB introdactioik in evidenoe of the record of
the probata ooort reciting the ezecntion and deliyery by the probate Judge of
a deed of a lot, accompanied by testimony of the grantee's attorney that be
placed the deed in his safe at the request of the grantee; that his office waa
afterwards burglarized and the deed and other papers abstracted from the safe^
and that he had on sereral occasions made diligent but unavailing search in
his office, and also at the grantee's house and other places to find said deed,
constitutes a sufficient foundation for proof of the contentB of such lost deed.
And such sufficient foundation being laid, testimony by such attorney that the
person who robbed the safe confessed to having burned aU the papers, while
objectionable as hearsay, would not be ground for rcTersal.
TowiiBin—5iiro^.— Although certain lots were not laid off and platted by a cer-
tain surrey as part of the original townsite of Helena this fact did not render
such lots open to appropriation and entry as public land, where the 2ooia in
quo was within the townsite as entered and patented by the probate Judge.
Appeal from Unt Judicial District, Lewis and Garke CownJty.
Ejectment to recover possesBion of town lots. The canse
was tried before Buck, J, Plaintiff had judgment below.
Affirmed,
T. J. Walshj for Appellant.
Some evidence was given from which it might be inferred
that the deed may have been destroyed, but unless the evidence
is conclusive of destruction, proof of search must be made,
(Jackson v. Hasbrouek, 12 Johns, 192.) Under the authorities
it is indispensable that the heirs or personal representatives, in
ease the grantee is dead, should be called to testify to having
searched for the missing deed, or their failure to testify must
be explained, (Wharton on Evidence, 144.) The lack of
their testimony is not supplied by the testimony of Shober to
the effect that they had searched. {Taunton Bank v. Richard^
1 14 srm
16 47.
8e»480
38*924
876 Bbookb v. Jordan. [March T., 18&4
9m, 6 Pick. 443; PorJUiu v. Corhdt, 1 Can & P. 282.) Tbo
trial took place in April, 1892. The last search made by the
witness for the deed was in 1888 or 1889. This was altogether
too remote. {Fierier v. TFibm, 13 Pa. St 641.) Proof of
due execution is an essential prerequisite to the introduction of
secondary evidence of the contents of a lost deed. {PcrUr v.
TFtbon, 13 Pa. St. 641; Perry v. BoberU, 17 Mo. 36; Loftin
V* Loftin, 96 N. C. 94.) There must be clear and satisfactory
evidence of the genuineness of the signature. {Slone v. nonuUf
12 Pa. St 209; PoUm y. Qdeman, 86 Ala. 94.) The contents
of the deed must be clearly established. {Lampe v. Kennedy,
66 Wis. 249; HweU v. Walker, 62 Iowa, 266; Wakefield v.
Day, 41 Minn. 344; Edwarde v. Noye», 65 N. T. 125.) Hear-
say is not admissible upon this issue any more than upon any
other. (Phillips on Evidence, 517.)
Shober A Baeoh, for Respondent
The sufficiency of the preliminary proof to lay a foundation
for the introduction of a lost instrument rests in the sound
discretion of the court. The object of the ^roof is merely to
establish a reasonable presumption of the loss of the instru-
ment (1 Greenleaf on Evidence, par. 658; 13 Am. & Eng.
^noj.'oi Law, 1088; Oonoly v. Oayle, 61 Ala. 116; Ckmden
V. Belgrade, 78 Me. 204; Oraham v. CkmpbeU, 56 Qa. 258;
MeOulloh V. Hoffman, 73 N. Y. 615.) All that is required is
reasonable diligence to obtain the original. {Minor v. ItBoi'
eon, 7 Pet 99; Jemigan v. State, 81 Ala. 58.) The testimony
shows that diligent but unsuccessful search was made in all
places where, if it were still in existence, it should have been
found. The search was resumed after plaintiff's death with
no better result Its loss will be presumed. {Fretwell v.
Morrow, 7 Qa. 264; Vaughn v. Biggera, 6 Ga. 188.) Testi-
mony by the proper custodian of a deed that he has searched
for it and cannot find it opens the door for the admission of
secondary evidence. ( Woody v. Dean, 24 8. C. 499; Poetel v.
Palmer, 71 Iowa, 157.) The secondary evidence having been
admitted, it became the province of the jury to judge of its
credit and weight It took the place of primary evidence and
was entitled to the same consideration. {Bagley v. MoMickle,
14 Mont.] Brookb v. Jobdan. 377
9 CaL 480; Oraham v. CdmpbeUj 56 Oa. 258.) The question as
to the proper proof of the regular execution of the instrumenti
and the particularity of the testimony to establish its contents
has been passed upon bj various courts, where it was held that
when a deed to real estate has been lost, and its loss and the
Gonients thereof have been established, it will be presumed that
it was executed in accordance with the formalities required by
law. {Oiridy v. BunJ^, 25 Fla. 942; Parks v. OaudU, 58 Tex.
216; Qmgdon v. Morgan, 14 8. C. 587; Heaoook v. Lubuke,
107 III 396.)
Per CuBiAU. — By this action in the nature of gectment
plaintiff seeks to recover possession of lots 9 and 10, block 64,
of the dty of Helena, whereof he alleges in his complaint
ownership in fee and right of possession at all times since July
1, 1886, on which date, while plaintiff was such owner, and
entitled to possession of said premises, defendant wrongfully
entered and took possession of the same, and has ever since
wrongfully withheld possession thereof from plaintiff, to his
damage in the sum of fifly dollars; wherefore plaintiff
demands judgment for possession, damages, and costs.
The issue raised by the answer of defendant is correctly
stated in the brief of his counsel, as follows: '' Defendant
denies plaintiff's title, and alleges that the locm in gtM is not
a part of the original townsite of Helena, but of the N. E. i
of the N. W. t of the N. R J of sec. 36, tp. 10 N., R. 4 W.,
of which defendant is the owner.''
Before the trial plaintiff departed this life, and his admin*
istrators were substituted as plaintiffs in the action.
Upon the verdict returned by the jury judgment was
entered in favor of plaintiff for recovery of possession of the
premises described, one dollar damages, and costs; and defend-
ant's motion for new trial was overruled, and he appealed
from that order and the judgment.
The record raises for determination the following points:
1. It appears that decedent's title to lot 10 of said block
was shown by the introduction of a deed of conveyance thereof,
duly executed and delivered to him by the probate judge of
Lewis and Clarke county, who held title to said townsite as
S78 Brookb v. Jobdan. [March T., 1894
trustee. But to establish title to lot 9 in decedent it wa9
•ought to prove the contents of a deed claimed to have also
been executed aud delivered by said trustee, conveying said lot
9 to plaintiff, which deed was lost before the same was recorded.
After certain preliminary proof was introduced as to the exe-
cution and delivery of said deed conveying lot 9 to decedent,
the court permitted proof of its contents. On this point it is
contended by appellant that sufficient foundation had not been
laid for proof of the contents of the alleged deed as a lost
instrument^ because the evidence did not show sufficient search
therefor to authorize the proof of its contents. The evidence
produced on behalf of plaintiff in this r^rd is: 1. A record
of the probate court, introduced in evidence without objection,
which record recites that a deed of conveyance of said lot 9,
block 64, of the townsite of Helena, was executed and delivered
by the probate judge conveying the.same to Benjamin C. Brooke
on December 21, 1875; and 2. The testimony of witness John
H. Shober, Esq., was introduced on behalf of plaintiff, to the '
effect that said deed was put into his custody by decedent, along
with other papers for safe-keeping; that said witness, a lawyer
by profession, carefully examined said deed at the solicitation
of decedent, and from such examination testifies that the instru-
ment was a good and sufficient deed of conveyance of said
lot duly executed by said probate judge as grantor, to the
decedent, Benjamin C. Brooke, grantee; that witness put into
his safe said deed, with other documents belonging to dece-
dent, for safe-l^eeping; that afterwards the office of witness
Shober was burglarized, and his safe broken open, and certain
papers and documents belonging to himself, as well as papers
and documents belonging to decedent, were abstracted from
said safe, and the deed in question could not be found aft^r
that event. As to search for said deed, this witness testifies
that he made diligent search therefor in hb office, on several
occasions, at the request of decedent, and on other occasions
decedent and witness searched in the tatter's office together for
said deed; and that they also went together and searched dili-
gently therefor in the house of decedent; that, after Benjamin
C. Brooke departed this life, witness Shober, along with one
of the administrators of decedent, aud also an heir t>f the deoe*
14 Mont.] Brooks v. Jobdan, 879
dent, again made diligent search for said lost deed in places
where they thought it might be foandy which last search was
made nine or ten months before the trial of this action. Said
heir also testified to the fact of making the search last mea-
tionedy and each witness testified that such diligent searchiug
was unavailing to find said deed.
Witness Shober, while giving his testimony, stated that the
person who burglarized his office, and abstracted from his safe
certain papers, was an individual employed to take care of
said office, and that, after arrest upon the charge of such burg-
lary, said person confessed the same, jand said he burned all
the papers he took from the witness^ safe. Defendant moved
the court to strike out the statement of witness as to what said
burglar confessed in r^ard to his disposition of the papers
taken, which motion was overruled, and that ruling of the
oonrt is made the basis of an assignment of error, which assign-*
ment may conveniently be considered along with the main
question as to the sufficiency of proof of the loss of said deed.
While the testimony of the witness as to what said person
stated in respect to his disposition of the papers and documents
taken from the office of witness Shober was hearsay, and, like
many remarks made by witnesses, was objectionable from a
technical point of view, still its effect was not so prejudicial
as to be ground for reversal. At most, that statement bears
upon the question of the loss or destruction of said deed, to lay
the foundation for proof of its contents, which is a question
addressed to the court as a matter of law. Whether sufficient
foundation was laid for proof of the contents of said instru-
ment is a question of law for the court to decide; and we are
fully satisfied that the evidence produced, independently of the
objectionable statement, was sufficient to justify the court in
allowing' proof of the contents of the lost instrument. The
objectionable statement of the witness, therefore, being entirely
addressed to the court, on a point fully supported, without
regard thereto, was undoubtedly put out of consideration by
the court in passing upon the point in question, as fully as
though the court had excluded or stricken out said hearsay
statement Indeed, there was nothing in that statement to
exclude from the jury, because there was nothing therein for
880 Bbookb v. Jordan. [March T., 1894
the jury to ooustder. Both the oaajor and minor assignments
mentioned are untenable.
It is further contended bj appellant that the evidence offered
on the part of plaintiff is insufficient to support the verdict, in
that there is no proof that the lots in question are situate
within the townsite of Helena, '* according to the lines of said
townsite established by the survey of Wheaton/' While this
may be true, the proof is clear and positive, by the testimony
of surveyors showing competency and personal knowledge, that
the lots in question are within the townsite of Helena as
entered by the probate judge, trustee in that behalf, as shown
by the patent issued to him therefor; and the evidence is
equally positive that said lots in question do not lie within th6
parcel of ground described in the answtf, by subdivisions of
the United States survey, and alleged to be the property of
defendant. All that appellant's point amounts to in this
r^ard, therefore, is that, if those lots were not hid off and
platted by Wbeaton as part of the townsite of Helena defend<«
ant was at liberty to enter and appropriate them to his own
nse, notwithstanding said lots were a part of said townsite, and
duly laid off and platted by authority of the proper publiii
agents, bat not by Wheaton, who appears to have first su^
veyed and platted at least a part of said townsite. The titl6
of parties to parcels of land running to them from the United
States by patent through mesne con veyanoes is not interrupted,
broken, or divested, because, forsooth, the surveyor who sur*
veyed or platted the same was of one name or auother, so that
the land in question is clearly and exactly identified, as in the
present case.
^ , It is further insisted by appellant that the court committed
errors in giving and refusing certain instructions. This is
equally untenable. The instructions, as given to the jury,
&irly and adequately state the law applicable to the case, as
developed in the pleadings and proof of the respective parties.
There is no merit in the appeal. The judgment and order
overruling defendant's motion for a new trial will therefore be
affirmed.
Affinned.
All concur.
14 Mont.] Statjb v. Railway Co. 381
STATE EX BEL. HASKELL, Attobney Genebal^ v.
GREAT NORTHERN RAILWAY COMPANY.
[Babxnitted April 28, 18M. Dedded April 80, 18M.]
Mabdaxus— /urisdiction to compel railroad to operate its Knes.-~Thig oonrt hat
no jorifldiction to iMme a wzit of mandamui to compel an intentate railroad,
the employeea of wbioh haye gone out on a general atrUe, to operate its line
within this state npon a petition alleging that snfBoient competent men are
available and willing to Mrre laid road for reaaonable compenaation.
Original PBOCEEDiKa. Application for writ of man-
date. Denied.
Henri J. Baakdt, T. J. Wahh, and R. R PwrceB, for
Relator.
Per CuBiAX.-!— Upon this petition the attorney general asks
this court to issae a writ of mandamus addressed to and com-
manding the Great Northern Railway Company to operate its
lines of railway in this state^ as it had been accustomed to do
prior to the thirteenth day of April^ 1894| when suoh operar
tions ceased altogether, as described in the petition, to the end
tiiat the public shall not be inconvenienced and damaged by
deprivation of the use of this qiuxd public agency of commerce^
travel, and communieatioa.
In making this application counsel on behalf of the petition
admit — ^afiict of general notoriety, too— that the cessation of
operation of sud railway was occasioned by a general refusal
of the employees of said company engaged in operating the
same up to that date to serve the company for the wages pro-
posed to be paid, and because of the disagreement on that sub-
ject the employees on said lines went out on what is known as
a general ^'strike/' awaiting an adjustment of that contro-
versy.
The petition alleges that sufficient competent, skillful, and
experienced men are available, ready, and willing to serve said
company in the operation (^ said road for reasonable compen-
sation; and this is admitted to be the main predicate upon
which a decision in this proceeding would turn if the court
entertains the proceeding. It is therefore proposed that this
court shall inquire and determine what would be a fichedule of
882 State v. Railway Co. [March T., 1894
reasonable wages for a corps of skilled and unskilled employees
necessary to operate said railway, and then ascertain whether
the requisite number of employees can be procured at the
wages determined, and, if that fact is found to be true, as
alleged, then command the operation of sjiid railway under *the
penalties attached to disobedience of the writ of mandamus.
Those questions mentioned must be determined by the court
upon proper inquiry whether the respondent should answer and
traverse the allegations of the petition or no, because the court,
before sending forth this extraordinary writ, will, by careful
inquiry, become satisfied of its own jurisdiction, and. that the
conditions are such that the act commanded is feasible of per-
formance.
If the proposed scheme is feasible, and the court has juris-
diction to carry it out, it evidently affords a remedy going far
towards the solution of a problem of great moment to all par-
ties concerned* But, aside from the relations of this property
to interstate jurisdiction, as shown by the averments of the
petition, already asserted by the United States courts to some
extent, the difficulty is that this court does not at present possess
jurisdiction for the arbitrament of the question involved, as
aforesaid, and, having ascertained what is just in the piemises^
to enforce the same U|ion contending parties.
The time may come when the state, that is, the national
government, by reason of its interstate jurisdiction, may, by
proper provisions of law, come into the attitude of permanent
trustee of such property so vitally related to the wel&re of the
whole people, instead of the occasional exercise of trusteeship
by receivers, when the property has become financially swamped;
and then the proper courts will be empowered to interpose an
equitable authority in a threefold direction for the orderly
correction of abuses existing towards employees and investors
(minority as well as majority stockholders) of the vast capital
involved in such property, and also towards the public as
patrons thereof. For the reasons suggested, we must deny this
application.' The cases called to our attention lead to this con-
clusion also.
All concur.
14 Mont.J Statb v. Ekynolds. 383
STATE EX REL. MARION v. REYNOLDS, Sheriff.
[Babmitted April 80, 1894. Deoided May 8, 1894.]
Cbpqmal JjAM— Stay of exectttUm,— The approval by tbe oonii, pending a motion
for a new trial and for a stay of execution, of a bond conditioned for the
defendant's appearance and obedience to all orders of the oonrt does not by
implication stay execution of the sentence, and the defendant may be lawfully
imprisoned pending the determination of fhe motion for a new trial.
Sake— ImprisonmetU for eosta.— When costs of prosecution are required by the
statute under which a oonYiction is had to be included in the fine assessed, the
defendant may properly be imprisoned under a Judgment including such cost
as part of the fine. (State ▼. SuUioan, 9 Mont. 494, cited.)
OonsTiTUTioRAL tiAW—SeUing 2igiior.— Section 261, diyision 4, of the Compiled
Statutes, prohibiting the sale of liquors in any place where women or minors
are employed, is constitutional, being a proper exercise of police regulation.
Applioation for writ of habeas corpus. Petitioner re-
mandecL
Cteorge HaJdom^ and C £. OampbeU^ for Relator.
Hefnri J. HaskeUy aUomey general^ for the State, Respondent.
I. The act is constitutional. The right to engage in the
occupation or business of keeping a beer hall, and engaging in
the sale of liquor where women are employed for the purposes
of the business therein carried on is not an inherent right of
citizens. {Ex parte Chridensen, 85 Cal. 213; Eb parte Sing
iec, 96 Cal. 359; 31 Am. St. Rep. 218; In re Maguire, 57 Cal.
605, 610; 40 Am. Rep. 125; Ex parte FUehlin, 96 Cal. 360;
31 Am. St. Rep. 223; Orowley v. Christensen, 137 U. S. 91;
MeKinney v. 8taU, 3 Wyo. 727.)
II. It is not objectional as class legislation. (Ex parte
Ruhack, 86 Cal. 275; 20 Am. St. Rep. 226; In re Ak Fong,
3 Saw. 151; Ah Kaw v. Nman^ 5 Saw. 564.)
III. It is a proper exercise of police power. ( Wynehamer
V. People^ 13 N. Y. 451; Chy Lumg v. Freeman, 92 U. S. 275;
People V. Oregier, 138 111. 418; Ex parte Hayes, 98 Cal. 655.)
Per CuBiAM. — This is an application for discharge from
imprisonment, through the writ of habeas corpus.
It appears that relator was indicted and convicted under the
provisions of section 261, page 578, of the Compiled Statutes,
which reads as follows: ^'That hereafter it shall be unlawful
384 Statb v. Reynolds. [March T., 1894
for any person or persons, company or corporationi to sell or
dispose of any spirituous, vinous, or malt liquors in any room,
kail, or other place where women or minors are employed or
are allowed to assemble for the purpose of the business therein
carried on J* And the penalty of fine in the sum of three hun-
dred dollars and costs, together with imprisonment sixty days
in the county jail, was assessed as punishment, on the verdict
of the jury. At the close of the trial, defendant announced
his intention to move for a new trial, and thereupon moved the
court to stay execution, pending determination of said motion,
on defendant's giving a good and sufficient bond, to be approved
by the court conditioned for his appearance, and obedience to
all orders of court in the case. Thereupon, as disclosed by
the record, defendant procured to be executed on his behalf a
bond conditioned as mentioned, which was approved by the
court, and filed; but, without granting any stay of execution,
tlie court sentenced the prisoner according to the verdict, and
ordered him inta custody, for imprisonment^ aa .provided by
the judgment.
The first point insisted on by prisoner's counsel as ground
for discharge b that by reason of having produced said bond,
and the same having been approved by the court, and filed, the
court, in efiect, by implication, granted a stay of execution
pending the determination of the motion for new trial; or, as
otherwise stated, that the court, while retaining defendant's
bond or stay, could not lawfully imprison him on the judg*
meut during the pendency of said motion for new trial.
The facts shown hardly bear the interpretation insisted on
by defendant's counsel. It does not follow that because certain
things were done looking toward a stay of the execution, the
court, by implication, had granted such stay. If so, the mov-
ing for some order which the court may grant or refuse, and
the filing of a bond in the premises, which the court might
readily approve if requested so to do, while still considering
the propriety of granting the order sought, would ocftnmit the
court as having granted the order moved for, unless the oour(
made some special order, annulling the bond, to escape from
the implication that the motion had been granted. This view
is wholly untenable.
14 Mont.] State v. Rbynolds. 385
Secondly, it is affirmed that tlie imprisoDment of defendant
on this oonvictiou is illegal because the judgment includes the
cost of prosecution as part of the fine. Bj reference to the
statute under which the conviction was had it will be seen
that the costs of prosecution are required to be included in the
fine assessed. Therefore, this objection is untenable. {Stale v.
SuUivan, 9 Mont. 494.) Moreover, if the statute was so
framed that the costs could not be properly included in the
fine the prisoner would not, for that reason, be entitled to dis-
charge at this time, because it appears that he is confined at
present on the judgment for imprisonment independently of
the fine.
Thirdly, petitioner's counsel urge the proposition that the
provisions of said statute are unconstitutional because, in effect,
it prohibits a certain class, u «., women, from being employed
in a plac^ where intoxicating liquors are sold, and therefore
restrains such persons from engaging in a lawful employment.
This statute does not forbid the employment of women or
minors, but it does prohibit all persons and companies from
selling intoxicating liquors in a place where women or minors
are employed or assembled for the purposes of the business.
There appears to be wisdom and propriety in this provision,
as a police regulation, and we fail to find in it the infringement
of any provision of our constitution. The California court,
in cases cited on this point, had under consideration constitu-
tional provisions which are not found in the constitution of
this state, and which also appear to have been greatly modi-
fied by revision of the California constitution since the cases
relied on were decided.
Other points were urged, relating to procedure, which are
not pertinent to the inquiry on liabeas corpus. Besides, the
record of court proceedings is not properly before us in this
proceeding. {In re McOiddieony 10 Mont. 115.)
Finding no ground for discharge of petitioner he must be
remanded to custody, and the order of this court will be
entered accordingly. Prisoner remanded.
All concur.
Vol. XIV.-25
386 SiMPKiNS V. SiMPKiNS. [March T., 1894
SIMPKINS, Respondent, v. SIMPKINS, Appellant.
tSnbmitied NoTember 24, 1888. Decided May 7, 18M.]
JtrBoxKNT BT Dktault— DivoTce— IfoKofi to «a«af«.— Befaial to Tioaie % default
Jodgment in a divoroe case upon motion is an abuse of diaoretion where it
appeared that defendant, who was a nonreeident, immediately upon reoelT-
ing the summons employed ooansel where she li?ed, who at once wrote to a
local attorney inquiring whether he would appear for defendant; that the lat^
ter appeared in the case, but, after securing plaintiff's acceptance of a compro-
mise as to alimony which he understood he was authorised to offer on behalf
of defendant wrote that he would withdraw from the case unless such com-
promise was accepted by defendant; that defendant reftiaed such proposed
compromise .by telegraph, and followed the same with letters explaining such
refusal, but which were returned unopened; that upon receipt of such message
ha declined to file defendant's answer which he had in his possession* and
which disclosed a meritorious defense; and, refttsing to take further action
iuifered the case to go by default Nor would the merits of the motion be
alfected by the fact that the plaintiff had remarried immediately after such
Judgment; the condition of the parties to such marriage not being of defend-
ant's creation.
Appeal from Third Judicial District, Deer Lodge County.
AcnoN for divorce. Defendant's motion to vacate the jadg-
ment was denied by DukfeEi J. Reversed.
Statement of the case hy the court.
This is an action for divorce, commenced by filing complaint
March 23, 1892, in the tiiird judicial district court in and for
Deer Lodge county, the plaintiff alleging that he was a resi*
dent of that county. It appears that defendant was at the city
of La Crosse, Wisconsin, at the time of the commencement of
the action. The service of summons was by publication, and by
mailing a copy thereof to defendant at La Crosse. Demurrer
was filed April 22d, by H. B. Whitehill, attorney for defend-
ant. The demurrer was heard and overruled August 13th«
No further pleading being filed by defendant, on August 14th
her default was entered for failure to answer, and proof was
heard upon the part of plaintifiT, and judgment dissolving the
bonds of matrimony between plaintiff and defendant was made
and entered. On September 22d a motion was made by
defendant to set aside the judgment, open the default, and
allow her to defend the action. On that motion an answer
was tendered, whicli apparently pleaded a good defense to the
14 Mont.] SiMPKiNS V. SiMPEiNS. 387
cause of action set up in the ooraplaint. Her motion was by
the court denied. From this order she appeals.
It will be necessary to state somewhat fully the facts upon
which the motion was based. The defendant filed her own
aiBdavity setting forth what she claims was her diligence in
attempting to defend the case, and she annexed to said affidavit
tlie correspondence between her attorney, W. S. Burroughs, in
La Crosse, Wisconsin, and H. B. Whitehill, in Deer Lodge,
Montana. Her affidavit was not contradicted except in one
matter, which is noticed in the opinion below. From this
affidavit, and the letters annexed, the following facts appear:
Immediately upon receipt by her, through the mail, of a copy
of the summons, she went to W. 8. Burroughs, an attorney in
La Crosse, Wisconsin, and employed him as her counsel; It
appears that she was cognizant of the whole correspondence
which afterwards took place between Mr. Burroughs and Mr.
Whitehill. Mr. Burroughs at once (on April 19th) wrote to
Mr. Whitehill (having obtained his name from the 1^1
directory), and stated the fiict of the commencement of the
action, and inquired whether Mr. Whitehill would appear in
the case for defendant as local attorney. In this letter he
informed his correspondent of the condition of defendant and
the number of her children, and something of her circum-
stances and marital history.
To this letter Mr. Whitehill sent the following answer;
^'Deeb Lodge, Montana, April 2l8t, 1892.
" Wm. 8. BurrougJis, Esq.,
''Dear Sir: Tour letter of the 19th inst. is just received.
I will look up the complaint in 8imphin» v. SimpkinSy and
put in an appearance for Mrs. Simpkins so as to prevent a
default being taken against her. In case of a contest in the
matter I shall charge $250.00. A portion of that, however,*
can be collected from the husband. In case we can make a
settlement and procure an allowance for Mrs. S.'s support
without trial I shall charge $100.00. If Simpkins is so
very determined to have the divorce it is very likely that Mr.
Titus will make some offer here when he finds an appearance
Ims been made. In the mean time you might notify me of
the facts as to the desertion, which you say is the ground
388 SiMPKiNS V. SiMPKiNS. [March T., 1894
alleged for divorce, and also what amount Mrs. Simpkiiis
would acoept as alimonj. Yours very truly,
"H. R. Whitbhill."
(Mr. Titus was plaintiff's attorney.)
In aooordanoe with this letter of April 21st| Mr. Whitehill
on the next day filed a general demurrer on the part of defend-
ant To this letter Mr. Burroughs, on May 2d, replied sub-
stantially as follows: That his client would not be able to pay
the amount charged by Mr. Whitehill. He then asks whether
he cannot go on with the case, and gets his fee by virtue of an
order of the court for counsel fees against the plaintiff. He
discusses the procedure for obtaining such order quite at length.
Then he sets forth the facts of defendant's defense.
The cause of action set up in the complaint is desertion
solely.
In this letter Mr. Burroughs set out fully the facts which
he claims showed that there was no desertion. He states that
such facts can be proved, and says that depositions will be
taken at La Crosse to prove the same. He thus furnishes the
Deer Lodge counsel the material for preparing an answer. As
to what the defendant would be willing to accept as alimony,
her La Crosse counsel, in this letter, says: I think as she now
looks at the matter, if he would pay you, and send to her
11,000.00, she would let him go. Have the kindness to write
me that you have appeared and prevented default.''
In reply to this letter of Mr* Burroughs, Mr. Whitehill, on
May 26th, writes, and, afler apologizing for some delay, says:
'^ The case stands on a general demurrer, which Mr. Titus does
not seem anxious to get rid of, so there has been no hurry. I
shall look out for the case, and see that no advantage is taken
of Mrs. Simpkins, and in the course of a couple of weeks, when
•this term of court adjourns, will prepare the answer necessary,
and seud you for Mrs. Simpkins to verify."
Pursuant to this letter, on July 7th, Mr. Whitehill sends
the following:
« Wm. 8. Burrougha, E8q.,
''D£AB SiB: Inclosed I send yon answer in &mpkmB v.
Bimpkins for verification before a notary publia Our next
term of court begins on the 18th iust. Please return the
14 Mont.] SiMPKiNS t;. Simpkins. 889
answer at once. At the time of filing I will have citation
issued for Simpkins to show causey if anj^ why alimony pm^
dade lUe should not be allowed, and have an order made for
expenses and attorney's fees.
*' Tours truly,
"H. R. Whttehill/'
Ul>on receipt of this answer Mr. Burroughs had it verified
at once, and on July 11th forwarded it to Mr. Whitehill. On
July 9th Mr. Whitehill advised Mr. Burroughs of some nego-
tiation of compromise as to alimony, talked of between him
and Simpkins' attorney. To this letter Mr. Burroughs replies
that his client cannot accept a |1,000 alimony; that she has
no means of her own, and has two minor children, one 17 and
one 19 years of age. He says that the defendant wishes to
resist tlie divorce, but, if it is to be granted, she cannot get
along upon $1,000, and makes the following proposition,
which she, through Burroughs, in this letter, authorizes Mr.
Whitehill to make, namely, that she will accept |2,000 for
herself and the payment of Mr. Whitehill's fees, or the plain-
tiff may pay her $1,000, and secure her in some way the pay-
ment of |25 a mouth towards the support of her daughter,
who is 17 years old, until she shall became of age, which in
Wisconsin is 21 years.
To this letter Mr. Whitehill replies, on July 24th, as follows:
^'D£ER LoDQE, Montana, July 24th, 1892.
''TFifi. 8. BurrcvghB, Esq.,
''Dear Sib: I am surprised at your letter of the 16th
inst. stating that Mrs. Simpkins now demands $2,000. Some
time ago Mr. Titus came to me and offered $500 and $25
per mouth alimony during the minority of the youngest
child. (Full age for females here is 18 years.) I told him
that I could not settle on such terms, but that, if he would
pay Mrs. Simpkins $1,000 cash, and my fee, I would allow
him to enter judgment. I gave him time, at his request,
to see Simpkins. He came back in a few days after; and said
that Simpkins could only raise $500; that he would pay her
that amount only, and no alimony, but would pay my fee. I
told him again no, but that, if he would pay Mrs. S. $1,000,
I would reduce my fee to $100, making $1,100, and costs of
390 SiMPKTNB V. 81MPKINS. [March T., 1894
court At that time Mrs. Simpkins' answer had not been re*
turned^ so I told Mr. Titus that, unless my proposition was
accepted by the 23d instant, I would file the answer, and cite
Simpkins to appear and answer why an order of court should
not be made compelling him to pay attorney's fee and alimony
pendente lite. He agreed to see Simpkins again, but said: *I
know Simpkins has not got that much money, but he may be
able to borrow it/ Yesterday Mr. Titus came again, and said
Simpkins had arranged to borrow |500, but I told him Mrs.
Simpkins now wants $2,000. Now, I was authorized by your
letter of May 2d to settle with Simpkins for |1,000 cash and
my fee. I am satisfied that he has no money or property that
we can reach at all, and that, in case of a contest, Mrs. Simp-
kins can get nothing at all. Even were we to get a decree
for alimony none can be collected. Simpkins would simply
resign his position as conductor, and go ofi^ to some other state.
But I do not propose to bother with Mrs. Simpkins' case any
further. If she wishes to take |1,000, and let Simpkins take
a divorce, she can get it. If not, I shall withdraw from the
case, and you may arrange at once for some other attorney to
appear for her here. I shall not file the answer at alL Simp-
kins will simply dismiss his case here, refuse to pay her any
thing, and make application in some otlier court^ where she
can get no notice of the proceedings, and he will get his divorce
without paying her one cent. Answer at once by telegraph
whether this offer is accepted or not.
"Tours truly,
"H. R. Whttehill.''
Burroughs then, on July 28th, telegraphs as follows:
'' To H. B. WhiiehUl^ Attorney y Deer Lodge, Montancu No;
Mrs. Simpkins will not aocepU File answer and application
for alimony, as promised in your last letter. I will write
to-night. Wif. S. Burroughs.''
Upon receipt of this telegram Mr. Whitehill declined to file
the answer which had been prepared by him, and refused to
have anything further to do with the case, and so informed
plaintiff's attorney.
On JuTy 28th, the day of sending the above telegram, and
also on August 17th and August 29th, Mr. Burroughs wrote
14 Mont.] SiMPKINS V, SiMPKINS. 891
to Mr. Whitehill at his regular Deer Lodge address, and thesg
three letters came back to Burroughs, indorsed '^Return to
\irriter/' lu these three letters Burroughs urged Whitehill to
go on with the case, and begs him at least to file the answer.
During the time that these tliree letters were being written and
forwarded aud returned unopened to the writer the judgment
was entered, of which defendant had no knowledge. On the
6th of August the demurrer was set for hearing for the 13th.
On that daj the demurrer was overruled, aud defendant given
twenty^four hours to answer. She was then in Wisconsin, and
was unrepresented by counsel in Deer Lodge. At the ezpira*
tion of this twenty-four hours her default was entered, and on
the following day the judgment was entered. On the same day
— the 16th of August — the plaintiff married another woman.
Upon this showing the district court declined to set aside the
judgment and open the default. The question before us is
whether the court abused a sound discretion in denying this
application.
BrazeUon & Schamikow, for Appellant.
The provisions of section 116 of the Code of Civil Proced-
ore, upon which this motion is based are liberal in their terms,
remedial in their character, and are designed to afford parties
a simple, speedy, and efficient remedy in a most worthy class
of cases. The power conferred thereby should be exercised by
courts in the same liberal spirit in which they are designed, in
furtherance of justice, so that cases may be tried ou their
merits. The exercise of the mere discretion of the court ought
to tend, in a reasonable degree at least, to brifig about a judg-
ment upon the very merits of the case; and when the circum-
stances are such as to lead the court to hesitate upon the motion
it is better, as a general rule, that the doubt should be resolved
in favor of the application. (Watson v. San Francisco dc
R R. Co., 41 Cal. 20; Cameron v. Oarroa, 67 Cal. 600;
Dougherty v. Nevada Bank, 68 Cal. 275.) When a party
applies promptly for relief after he has notice of the judgment,
and has not been guilty of gross laches, and his affidavits and
answer present a meritorious defense, the court should not
hesitate to set aside a default and allow him to file his answer.
892 SiMPKiNS V. SiMPKiNS. [March T., 1894
(BueU V. Emerichy 85 Cal. 116; Beidy v. ScoU, 53 Cal. 69
Haggeriy v. Walker^ 21 Neb. 596; Gi-iswold Linseed Oil Co. v.
Lee, 1 S. Dak. 531; 36 Am. St. Rep. 761; TayUyr v. TrumbuU,
32 Neb. 508; MaUyne v. Big Plant Mining Oo., 93 Cal. 384.)
Rogers A Rogers, for Respondent.
The decree was fairly obtained; there is no pretense that
plaintifF perpetrated a fraud upon defendant or in any manner
imposed upon the court. In such cases the decree of divorce
will not be set aside and the defendant allowed to answer to the
merits of the action. (2 Bishop on Marriage^ Divorce^ and
Sei)aration, §§ 1533-35; Davis v. Davis, 30 111. 180-84; Lewis
V. Leans, 15 Kan. 181; R(mse v. R<mse, 47 Iowa, 422; Whiting
V. Whiting, 114 Mass. 494; Broum v. Brown, 59 111. 315;
Holbi^ooh V. Holbrook, 114 Mass. 568; Oreene v. Oreene, 2
Gray, 361; Lucas v. Lucas, 3 Gray, 136.) The negligence of
counsel is not cause for vacating a judgment. {Haighi v. Green,
19 Cal. 118; MtUholland v. Heyneman, 19 Cal. 605; Ekd v.
Swift, 47 Cal. 620; Smith v. TunsUad, 56 Cal. 175.)
Per CuBiAM. — ^The motion of defendant in this case to open
the default was upon the ground of allied excusable neglect
on her part The Code of Civil Procedure provides that "the
court may . • • • relieve a party, or his legal representatives,
from a judgment, order, or other proceeding taken against him
through his mistake, inadvertence, surprise^ or excusable
neglect.'^ (§116.)
Defendant contends upon her motion that, if there were any
neglect on her part in allowing default and judgment to eo
against her, it was excusable. It is perfectly evident from all
the facts shown by defendant's affidavit, and by the corre-
spondence between her counsel in La Crosse and Deer Lodge,
that she was anxious to defend this action. There is nothing
whatever looking to any intention to neglect it or allow it to
go by default. Her attitude was that of vigilance from her
very first knowledge of the commencement of the action up to
the time when she learned that the judgment had been ren-
dered. At that time she came at once from Wisconsin to Deer
Lodge, a distance of one thousand two hundred miles, and
14 Mont.] SiMPKiNS V. SiMPKiNS. 893
promptly commenced proceedings for the purpose of setting
aside the judgment and obtaining leave to defend the action.
She had at once^ upon receiving the summons bj mail, con-
sulted an attorney at her home in Wisconsin, and through him
had secured the services of an attorney at Deer Lodge. She
was cognizant of the letters written by Mr. Burroughs to Mr.
Whitehill. From them it clearly appears that she was
extremely vigilant and attentive to every step in the case.
When finally the ju<1gment was rendered against her she had
at that time a verified answer in the hands of her Deer Lodge
attorneyi setting up a complete and meritorious defense.
Wherein was defendant's negligence? It was sought to be
argued that it was in not at once employing other counsel upon
the receipt by her of Mr. WhitehilPs letter of July 24th, in
which he said that unless she accepted certain terms of com-
promise, which he set forth, he would have nothing more to
do with the case. It appears by Mr. Titus' affidavit, in con-
tradiction of defendant, that at this time the defendant and
her La Crosse attorney knew the names of Deer Lodge attorneys
other than Mr. Whitehill. It is claimed by plaintiff* that it
was negligence in defendant, in that u{)on the receipt of this
letter she did not at once employ some one else. , But it must
be remembered that Mr. Whitehill then had charge of her case,
and that he had in his possession the verified answer which
she had sent to him to file. Furthermore, Mr. Whitehill
never informed defendant that he had withdrawn from the
case. He had simply told her that he would do so if she did
not accept those certain terms, which she claims she had never
authorized him to offer to plaintiff. The most that ap|.ears is
that Mr. Burroughs had said at one time that he thought those
terms might be accepted. Burroughs telegraphed for Mrs.
Simpkins, to Whitehill, that she did not accept the terms, and
requesting Whitehill to file the answer and go on with the
defense. Then it was that Burroughs wrote fully, setting
forth, by reference to the correspondence, that defendant had
not authorized the offer which Whitehill thought he had power
to make. This was July 28th. This letter Mr. Whitehill
never opened. Nor did he open the two others which followed
it; but, on the other hand, he returned them unopened to the
894 SiMPKiNS V. SiMPKiNS. [March T., 1894
writer. We are of opinion that the defendant and her La
Crosse representative had reason to ex[>ect at least that these
letters would be opened and read hy Mr. Whitehill. They
explained fully that the offer which Mr. Whitehill claimed
that he was authorized to make to plaintiff's attorney had not
been so authorized. The defendant had the right to believe
that when Mr. Whitehill received these letters he would read
them^ and that, having read them^ their contents would lead
him to file her answer, or place her in some position to secure
other counselj or at. least notify her of his witlidrawal from the
case.
No question was raised as to Mr. Whitehill's fees, and, the
defendant having the right to believe that her Deer Lodge
oounsel would read the letters following July 28th, there waa
no reason apparent to her why he would leave her in default.
If Mr. Whitehill had read the unopened letters he would
have read therein the defendant's statements that he (White-
hill) was mistaken when he considered that he was authorized
to make the offer to plaintiff's attorney which he mentions
in his letter of July 28th, and the nonconcurrence in which
proposition by defendant was the cause of Whitehill's threat-
ened withdrawal. Then Mr. Whitehill, or any other fair
attorney, if he still persisted in withdrawing from the oase^
would have notified defendant, and put her in a position not
to suffer a default by his withdrawal. That is to say, this is
what defendant, sitting in her home at La Crosse, one thou-
sand two hundred miles from the court, had reason to believe;
and, so having reason to believe, she was not n^ligent in act-
ing as if she so believed.
We can see no n^ligenoe whatever of defendant which was
not absolutely excusable; and indeed it is difficult to find any
negligence on her part at all.
Under all these facts of the case we are of opinion tliat it
would be a reproach upon the administration of the law to
allow this judgment to stand. Divorce laws and procedure in
some jurisdictions are often a subject of adverse criticism. If
such a proceeding as the one before us is allowed to pass with
approval or unchallenged such criticism would be wholly
just.
14 Mont] SiMPKiNS V. SiHPKiNS. 396
It is urged that the merits of the motion are affected by the
fact that plaiutiff has remarried since the rendering of the
divorce judgment Yes^ plaintiff has remarried^ according to
the record, and he did this before the ink was dry upon the
judgment divorcing him by default from the woman who had
been his wife for twenty-five years, who had borne his children
and reared them to near their majority, and who had kept the
home and hearth for him and his children during all' these
years. And this judgment, obtained without a hearing on
the part of defendant, was upon a complaint not charging
cruelty or adultery, or any of the graver offenses against the
marriage contract, but upon a complaint alleging desertion
only, and a desertion after twenty-five years of married life—
a charge by plaintiff, upon the truth of which all the circum-
stances of this case throw the gravest suspicion. In this con-
nection it is appropriate to notice the verified answer which
was tendered with the motion. That answer not only denies
the allegation of desertion, but it emphatically denies that
plaintiff is a resident of the state of Montana, and it sets up
facts which, if true, show that he is a resident of the city of
La Crosse, Wisconsin. It alleges that the plaintiff was a rail-
road conductor, and that he was employed in different places,
and that, after having had many homes at divers times, they
finally settled in this home in La Crosse; that plaintiff always
treated it as such, and that he spoke of it as such in the letters
which he wrote to defendant and his children; that he wrote
to them in affectionate terms, and visited them np to a short
time before commencing this suit, and up to that time sent
them money and presents; and that never did he intimate his
claim of defendant's alleged desertion, or of his intention to
claim a residence in Montana. Now, under all these circum-
stances, for plaintiff to claim that his remarriage, in this hot
and indecent haste, is pertinent upon this motion is a sorry
sort of a reply to the motion of defendant setting up the
pitiable facts disclosed by this record. Nor is the situation of
the person whom plaintiff purported to marry on August 16th
a consideration that can set aside the rights of this defendant.
Such condition is not of defendant's creation or her fault
14
m\
15
7
3«»757l
40»
66
W*8»|
14
890
24
499
14
-m
28
SIM
U
396
32
161
396 State v. District Court. [March T., 1894
The order denying the motion to oi>en the default is reversed|
and the case is remanded, \irith directions to the district court
to grant the application, and to set aside the judgment, and
allow defendant to file her answer and make defense.
aCcocfmcu
All ooncur.
STATE, EX REL. NIXON v. SECOND JUDICIAL DIS-
TRICT COURT et ai.
[Submitted Mmj 10, 18M. Decided Mmj 14, 18M.]
AUMOVT—Orcler not revieuxMe on eertiorari or hab0a$ oorpuM.-^An order reqiiSv>
iDg the peyment of alimony by a defendant in a divorce case ia a Jadgment
fh)m which an appeal will lie, and therefore neither cfrtiorari nor habeatt oor-
pu» are aTailable to reyiew the action of the coort in impriBoning the dafend*
ant for contempt in disobedience of inch order.
BAMM^Semedy v:here party unable to pay,— One who has become unable to pay
alimony adjudged against him in a divorce case may inatitnte proceedings
seeking a modification of the Judgment under section 1004, division 6, Com«
piled Statutes, allowing the court from time to time to make such altarationa
in the allowance of alimony as shall appear reasonable and Jusi
Application for writ of oertiorari in aid of habecu eorpua.
Writ denied.
John W. CotUr, for Relator.
Oeorge Haldam, and (Xwer M. Eatt, for Respondents.
Per CuBiAM. — This is an application for a writ of eertiorari
to review the action of the district court in committing the
relator to jail for contempt in disobedience of an order oom-
pelting him to pay alimony pendente lite to the plaintiff Id the
divorce action of May Nixon against the relator. This appli*
cation is made in aid of an application of a writ of habeae
oorpu8f in which relator alleges that he is unlawfully impris-
oned by virtue of the order of the district court, committing
him for contempt, as above recited.
In that divorce action the court made an order that the
defendant (relator herein) pay to plaintiff as alimony pendente
lite forty dollars a month, and as counsel fees sixty dollars.
This alimony was paid for some months, and no appeal was
14 Mont.] State v. District Court, 897
taken from the order; nor does relator now complain that the
order as originally made was wrong in any respect. But the
alimony was not paid for the month of March, nor since that
time. Belator was accordingly cited in the district court to
show cause why he should not be punished for contempt for
the nonpayment of the same. On that hearing he recited facts
which be claimed showed his inability, or his want of faculty,
to pay the alimony. Notwithstanding this attempted showing
on his part, the court ordered him imprisoned until the order
for alimony was obeyed. This imprisonment relator alleges
was illegal, and on this writ of certiorari he asks us to review
the action of the district court in ordering him imprisoned on
such contempt proceedings. He also asks a discharge on his
application for a writ of haheas corpus*
The order to pay alimony pendente Hie was a judgment
whicb was appealable. {In re Finkelstein, 13 Mont. 425.)
No appeal was taken by defendant in the divorce case from
that order or judgment. When that judgment was rendered,
it must be presumed that the court passed upon and decided
the matter of defendant's faculty to pay the alimony; that is
to say, that action of the court adjudicated two matters:
1. That the defendant should pay such sum as alimony; and
2. That he had the faculty to pay it. That judgment remained
unattacked when the contempt proceedings were taken which
resulted in this present imprisonment of the relator. That
order for alimony was a judgment, and had the characteristics
and attributes of a judgment A judgment cannot be attacked,
as it was sought to do in this case, by presenting affidavits on
a proceeding seeking to enforce such judgment. When the
affidavits were presenled on the contempt proceeding, tliere
stood against the defendant a valid unchallenged judgment,
requiring him to pay the alimony, as therein set forth. If he
considered that judgment was wrong originally he could have
appealed therefrom. But, as above noted, he never appealed
from that judgment, and does not even now contend that it
was not properly rendered; but he urges before us at this time
that when the contempt proceedings were taken in the district
court circumstances had arisen, and changes in his affairs had
taken placCi which rendered a compliance with the judgment
898 State v. District Court. [March T., 1894
at that time— Murcli, 1894 — impossible. But he could uoi
urge or present those facts while the integrity of the judgmen*
was allowed to remain unassailed. It was practicallj attempt-
ing to avoid a judgment or order by ex parte affidavits in a
proceeding not directed against the judgment If the defend-
ant in the divorce suit (relator herein) had become unable to
pay the alimony adjudged against him he had a remedy. A
court would not imprison him for hb inability or want of
faculty to pay the alimony; but his remedy is not by habeas
corpus or eeiiiorati. He should have sought a modification of
the judgment for alimony by a proceeding for that purpose.
The alimony was pendente lite. The court had continuing
jurisdiction over that subject, and over the person of defendant
in that case. If any doubt could be presented as to this being
the law generally, that doubt would be resolved by our statute,
which provides, in reference to divorces, that the court ''may
also grant alimony pendente lite; and the court may, on appli-
cation, from time to time, make such alterations in the allow-
ance of alimony and maintenance as shall appear reasonable
and just" (Comp. Stats., div. 6, § 1004. See, also, 1 Bishop
on Marriage & Divorce, §§ 489-93.) If the relator herein had
made a regular application for a reduction of the alimony to
the district court in which the suit was pending he could have
presented all of this showing as to his want of faculty (o pay
the alimony, and plaintiff could have rebutted such showing
and the court would then have determined whether the ali*
mony should be reduced. On such determination an order
would be made, from which the defendant could have an
appeal, and on such appeal this court would have made a
review.
But as the matter is now before us the question of reduc-
tion of the alimony has never been tried or determined in a
proper proceeding by the district court, nor was there oppor-
tunity offered to so try and determine.' The court acted within
its jurisdiction. It had jurisdiction to make the original order
for alimony. That order had never been set aside or attacked
by proper i)rocecding, and the court certainly had jurisdiction
to enforce its order.
14 Mont>1 Statb v. English. 899
The order of commitmeDt therefore appearing to be war-
ranted by the proceedings as shown on return to the writ of
certiorari, and no ground being shown to warrant the prison*
er's discharge, he must be remanded to custody, and judg-
ment will be entered accordingly. The prisoner is therefore
remanded.
All concur.
STATE, BispoNBENT, V. ENGLISH, Appellant.
[Submitted May 7. 1834. Decided May U, ISM.]
hMaoMKJ^Formtr aequUtal^Se» yucKcoto.— Where defendant and another itole
a steer from the herd of one owner, and about an hoar after i tola a oow from
the herd of another owner, diiying both off together, the stealing of each ani-
mal was a complete and independent ofbnse, and an aeqaittal as to the theft of
the steer is not a bar to a prosecation for the theft of ttie oow. Nor is the
defense of an aHU, established upon the trial for larceny of the steer, res
jftdieaia that defendant was not present when the cow was stolen.
EnDBROB— Cof^estiotif of oooompZioe.— Confessions hj an aooompUoe in crime
not made in the presence of the defendant, nor daring the commission of the
offense or Ui its fbrtheraaoe, and not part of the res geOa, are inadmissible
against the defendant.
Ajppealjrom ISghih Judicial DMriot, Cascade OownJty*
CoTsmonos for larceny. Defendant was tried before Ben-
ton, J. Reversed.
Douglas Martin, Ed L. Bishop, and J. 0. Bair, for Appel-
lant.
I. It must be conceded in this case that the steer, of tUe
stealing of which appellant was acquitted, and the cow, for
the stealing of which he is now prosecuted, were taken by the
same two persons upon the same occasion; that the taking and
driving liway of the two animals was all one transaction, and
that they were taken under such circumstances that the defend-
ant could not be guilty of the larceny of the one and not
guilty of the larceny of the other. {State v. Cooper, 13 N. J.
li. 361; 25 Am. Dec. 490; State v. Colgate, 31 Kan. 511; 47
Am. Rep. 509; Lander v. Arno, 65 Me. 26; Bishop's Crim-
inal Law (1892), 937; State v. Ihurston, 2 McMull. 382;
Phillips V. State, 85 Tenn. 551; Roberts v. Stale, 14 Ga. 8; 58
400 State t;. English. [March T., 1894
Am. Dec. 528; Wibon v. State, 45 Tex. 78; 23 Am. Dec. 602;
Qypenhaven v. StaJte, 15 Ga. 264; Lortxm v. State, 7 Mo. 59;
37 Am. Dec. 179; Slate y. Hefxnesey, 23 Ohio St. 339; 13 Am.
Bep. 253; State v. Nelem, 29 Me. 335; Fuimer v. Gmimon-
weaUh, 97 Pa. St. 506; State v. Paul, 81 Iowa. 596; State v.
Lareon^ 85 Iowa, 659; Bex v. Bteaedale, 2 Car. & K. 765.)
''To constitute simaltaneousuess it is not necessary that there
should be exact coincidence in a particular point of time.''
(Wharton's Criminal Evidence^ § 589; Wharton's Criminal
Law, § 931.) In determining whether a transaction consti-
tutes more than one offense, the ownership of the articles stolen
is immaterial. (Hoike v. United States, 3 McAr. 370; 36 Am.
Rep. 106; Lowe v. StaU, 57 Ga. 171; StaU v. Mofj>hin, 37 Mo.
373; Lortan v. Staie, 7 Mo. 59; 37 Am. Dec 179; State v.
Newtxm, 42 Vt 537; Rapalje's Criminal Procedure, 159;
Nidioh V. CainiMmweaUh, 78 Ky. 180; Bishop's New Crim-
inal Law, 637; Wihon v. SUxU, 45 Tex. 78; 23 Am. Dec. 602;
Wharton's Criminal Evidence, § 588.) The prosecution when-
ever it is at liberty to join in one indictment all articles simul-
taneously stolen may be treated, when it selects one of them
for trial, as barring itself from indicting for the others.
(Wharton's Criminal Pleading and Practice, 340; note io Boberte
V. suae, 58 Am. Deo. 539.)
II. Even though the judgment of acquittal be not a bar
to this action, still if the record shows that the particular con-
troversy sought to be concluded was necessarily tried and
determined, or that the verdict could not have been rendered
without deciding that matter, then such judgment is conclusive
evidence, and the prosecution was estopped to assert the
contrary. {Stale v. Dewey, 65 Yt. 196; Kldnsclimidt v. Binzel,
35 Pao. Bep. 464, 466; ante, p. 31; Herman on Estoppel and
Bes Judicata, §§ 106, 111.) The only defense made by appel-
lant in the case in which he was acquitted, was an alibi — that
he was not present when the two animals were together driven
away, and was not one of the two persons who drove them
away, and in finding him not guilty the jury necessarily passed
upon and decided that question. There was no other possible
ground that they could find him not guilty upon, and the con-
14 Mont.] State v. English. 401
dusion is inevitable. "A judgment is conclusive upon every
matter actually and necessarily decided in the former suit,
though not then directly the point in issue. If the facts
involved in the second suit are so cardinal that without them
the former decision cannot stand, they must now be taken as
conclusively settled." (Freeman on Judgments, §§ 256, 258.
See, also, liusseU v. Place, 94 U. S. 606; Herman on Estoppel
and Res Judicata, §§ 105, 226, 227; Tuska v. O'Brien, 68 N. Y.
449; Pray y. Hageman, 98 N. Y, 358; Bigelow on Estoppel,
110.)
IIL The act or declaration of one conspirAfor or accom-
plice in the prosecution of the enterprise is considered the act
or declaration of all, and is evidence against all. Each is
deemed to assent to or command what is done by any other in
furtherance of the common object. (Wharton's Criminal Law,
§ 702.) The act or declaration must be done or made during
the pendency of the conspiracy, in pursuance of the common
design and in furtherance of its objects. (Brotcn v. UnUed
SiaUa, 150 U. S. 93; 1 Greenleaf on Evidence, § 111; People
V. Moore, 45 Cal. 19; People v. Stanlej/, 47 Cal. 114; 17 Am.
V. Moore, 45 Cal. 19; People v. Stanley, 47 Cal. 114; 17 Am.
Rep. 401; Wharton's Criminal Evidence, 598; Rapalje's
Criminal Evidence, 254.) Actfi or declarations not done or
made during the i)endency of the conspiracy to carry out the
design are inadmissible against a co-conspirator. (LuUrell v.
State, 31 Tex. Cr. Rep. 493.) The distinction between acts
or declarations done or made in furtherance of the common
design, and those not so made, is illustrated clearly in the fol-
lowing decisions: Slate v. McGee^ 81 Iowa, 17; Potion v.
Stale, 6 Ohio St. 470, 471; Samples v. People, 121 111. 547.
Statements as to measures taken in the execution or further-
ance of any such common design are not relevant. (7 Am. &
Eng. Ency. of Law, 49. note 1; Lojan v. United l^ates, 144
U. S. 263; New Yoj-k Guar. & Ind. Co. v. Oleaaon, 78 N. Y.
514, 515.) Mere narratives of past events are not admissible.
(1 Greenleaf on Evidence, § 111; People y. Aleck, 61 Cal. 138;
People V. English, 52 Cal. 211; People v. DUwood, 94 Cal. 89;
People V. Ii-vnn, 77 Cal. 504.)
Vol. XIV.— 26
402 State v. English. [March T., 1894
AUomejf Oeneral Henri J. Haskell, for the state, Respond-
•ent.
L The defendant's plea of autrefois aoquii is not a good
plea in bar to this information. (Price v. State, 19 Ohio, 424;
iSlate V. Williams, 45 La. Ann. 936; OommonwecUih v. Raby^
12 Pick. 496; AsfUon v. Stale, 31 Tex. Cr. Rep. 482; Reddich
V. Stale, 31 Tex. Cr. Rep. 587; People v. Kerm, 8 Utah, 268;
Cbmmonwealth v. Bakeman, 105 Mass. 53; Wrigld v. State, 17
Tex. App. 152; Alexander v. StaJU, 21 Tex. App. 407; 57
Am. Rep. 617; HarringUm v. State, 31 Tex. Cr. Rep. 577;
Kedon v. Oommonwealih, 92 Ky. 522; Winn v. State, 82 Wis.
671; (hmmonwealth v. Fredericks, 155 Mass. 455; Stale v.
Hoimeman, 16 Kan. 455.) In Tertitory v. Willard, 8 Mont.
332, the court defines the rule by which the correctness of the
plea of aiUrefois acquU can be tested, as follows: ''Where the
evidence necessary to support the several indictments would
have been sufficient to procure a legal conviction upon the
first the plea is generally good, but not otherwise.^' (Comp.
Stats., § 313, div. 3.)
II. The second point contended for by appellant must
dei>end, if decided in his favor, ui)on the law of res judicata
laid down in civil cases. The authorities cited by the state
u{K>n the first point are conclusive upon the second raised by
the defendant. In order to successfully plead res judicata the
record in the first case must be before the court in this case.
(RusseU V. Place, 94 U. 8. 606; Aiken v. Peck, 22 Vt. 260;
Hooker v. Hvlbard, 102 Mass. 245.)
Per Curiam. — The defendant appeals from the judgment
convicting him of the crime of larceny of one cow. The juilg-
ment must be reversed upon one of the points argued, but we
will express our views upon some other questions raised, as it
seems that they will necessarily be before the court again on a
new trial.
The defendant was tried upon a plea of not guilty, and also
upon the plea of autrefois acquit. The defendant and one Les-
lie De Witt were charged with stealing a cow, named in this
information, and belonging to one Lars Waldeland. They
were also charged with stealing a steer belonging to Charles
14 Mont.] Statb v. English. 403
Carthrae. This defendant, English, was fried for the offense
of stealing the steer, and was duly acquitted. He was then
tried on the other information for stealing the cow, and was
convicted. It is from the judgment on this conviction that
he now appeals.
The acquittal on the charge of stealing the steer is what the
defendant claimed as a former acquittal which barred this
]>rosecution. His argument proceeds upon the theorj^ that the
taking of the steer and the cow was one act, and therefore there
could be but one prosecution. On the trial of this information
the evidence as to the taking of the animals was to the effect that
De Witt and this defendant first cut out the steer from Carth-
rae's herd, drove it away some distance, and left it; that about
half an hour or an hour afterwards they went to the herd of
Waldeland, from half mile to a mile distant, and took the cow
mentioned in this information, drove her to where they had left
the steer, and then drove them both way. We are of opinion
that there were clearly two acts and two offenses in these trans-
actions. The takings of the two animals were at different times,
and at different places, under different circumstances, and from
different owners. Each was in itself an absolute, complete, and
independent offense We cannot doubt that, if an information
h;id set up what the facts showei in this case, namely, that
these persons took, 'and drove away the steer of Carthrae, and
half au hour or an hour later, and half a mile or a mile re-
moved, took, and drove away the cow of Waldeland, a court
would have held that the information was bad, in that it set
up two offenses. But defendant here is informed against for
stealing the cow only, and on the trial of that information he
was not in jeopardy of a conviction for stealing the steer. It
is said in the case of Territory v. WUlard^ 8 Mont. 328, quot-
ing from Wharton: " Where the evidence necessary to support
the second indictment would have been sufficient to procure a
l^al conviction upon the first, the plea of autrefois is generally
good, but not otherwise.'' Applying that rule to the case at
bar, it is dear that the evidence necessary to support the
information for stealing the cow would not have been suffi-
cient to procure a legal conviction upon the information for
stealing the steer. (See, also, Territoy-y v. Stocker, 9 Mont. 6.)
404 Statb v. Engush. [March T., 1894
There can be no doubt that the plea of former acquittal in
this case is insufficient. It should have been bo determined as
a question of law by the court.
Defendant also makes the contention that the judgmeut
upon the trial for stealing the steer is res adjwdicaJta in this:
that the only defense made upon the trial was an alibi that the
defendant being acquitted, it is res adjudiecUa that he was not
present when the steer was stolen; and that the evidenoe in
this case shows that the steer and cow were stolen together
and therefore it was established as res adjudiocUa that defend-
ant was not present when the cow was stolen. But we have
heretofore shown that the stealing of the steer aud cow were
two offenses, committed at different times and places. The
defendant, under the circumstances appearing, was not neces-
sarily absent from the one stealing because he was absent from
the other.
It seems, upon the argument of this case, that Leslie
De Witt, the associate of defendant in these transactions, had,
before the trial of this cause, been convicted and sentenced for
his participation in these events. On this trial the court, over
the objection of defendant, admitted in evidence testimony of
the confessions made by De Witt, implicating him and defend-
ant in the stealing of the cow. It is clear from the testimony
that these confessions were not made in the presence of defend-
ant, nor were they made during the pendency of the commis-
sion of tlie larceny, nor in its furtherance, nor were they part
of the res gesUz. They were simply narrations by De Witt,
after the larceny was completed, of the events which were past
and accomplished. Under sach circumstances the confessions
of an accomplice, or of one of two persons charged with a
crime, can be used as against the confessing person only. In
the case at bar they were used as against the other person only.
This was error. This is elementary, and ancient and modern
law; and it is just. (1 Greenleaf on Evidence, §§ 111, 233;
Wharton's Criminal Evidence, 8th ed., § 699; 3 Am. &
Eng. Ency. of Law, 482, notes and cases; Wharton's Crimi-
nal Law, § 696; People v. Moorey 45 Cal. 19; McGehee
V. Siate^ 58 Ala. 360; Qmnumtoealth v. Thompson, 99 Mass.
444; Cable v. Oommmtoealih (Ky.), 20 8. W. Eep. 220; SUiU
14 Mont.] Waitb v. Vinson. • 405
V. Dondon, 45 La, Ann. 744.) See, also, cases cited by api^el-
lant It is a matter of regret that proseoatiDg attorneys should
insist ui>OD, and the trial court permit^ the introduction of
illegal evidence, which must result in the reversal of cases,
when such errors could be so easily avoided by a little reflec-
tion and research of the authorities.
The judgment is reversed, and the case is remanded for a
new trial.
All concar.
MtvctBccU
WAITE. Respondent, v. VINSON bt aii., Appellants.
[Submitted January 8, 18M. Decided May 14, 1804.]
VAETKEBSBJF—OonitrucHoe iraud^Sale of parinenhip properly ly one partner
without consent of (he other.—k sale by one partner of a large portion of the
firm property for the purpose of paying firm obligations, the proceeds of the
sale being devoted to that purpose, though made without the concurrence of
the other partner, but with his knowledge that a sale was contemplated, can-
not be avoided as aconstmctiye fraud at the suit of the noficoncurring partner,
upon the mere showing that the vendee knew of the latter's interest in the
property and want of consent, where the price paid was the ftill market Talue
and the sale was highly beneficial to the interests of the firm.
l^Tjm—FraudviJienJt Male^Besdeeion— Tender of prioe.— Where one partner seeks
relief In equity firom an alleged fraudulent sale of partnership property made
by the other partner without his consent, where a fair price was obtained and
the proceeds devoted to the liquidation of the firm obligations, be must first
do equity by tendering to the vendee the price which he paid for the prop-
erty. {Maioy Y. Berkin, 11 Mont 188, cited.)
Appeal jrom Tenth Judicial Distrid^ Ferguis Counbi^
Action for accounting and to rescind a sale. The cause
was tried before Du Bo6E, J. Plaintifi' had judgment below.
Beversed.
Oeorge W. Taylor, for Appellants.
I. A member of a copartnership may, without the consent
of his copartner, dispose of the partnership property for the
purpose of discharging the partnership debts, there being no
assets on hand with which such debts can otherwise be paid.
Where the copartner was absent from the state such a convey-
ance has been sustained in Anderson y. Tompkins, 1 Brock. 466;
14 405
d33 89
406 Waitb v. Vinson. [March T., 1894
McOuUough v. 8<mmerviUe, 8 Leigh, 415; Gordon y. Cannon,
18 Gratt. 387. Also where the copartner was not absent from
the state. (MabbeU v. WhiU, 12 N. T. 442; Grcuer v. S«B-
wageri, 25 N. Y. 317.)
II. The next question is, Was there any fraud on the part
of Vinson, and was David an innooent purchaser? Fraud is
the gist of the action, and we hold that having allied fraud,
it is incumbent on the plaintiff to show the same beyond doubt,
and unless fraud is shown then he cannot maintain his action.
One who alleges fraud must clearly and distinctly jtrove
the fraud he alleges. (8 Am. & Eng. Eucy. of Law, 654.)
If a case of actual fraud be allied relief cannot be had by
proving constructive fraud. (8 Am. & Eng. Ency. of Law,
664, note 3; Mount Vernon Bank v. Sime, 2 B. I. 129; 57
Am. Dec. 709; Piper v. Hoard, 107 N. T. 67; 1 Am. St. Rep.
785.) Fraud must be proved by evidence so clear and strong
as to produce satisfactory conviction. {Qreer v. Caldwdl^ 14
Oa. 207; 58 Am. Deo. 653.)
E^ W. Morrison, for Respondent.
The copartnership was formed for the purpose of engaging
in the sheep business. Consequently the transfer by Vinson
was not in the usual course of the business of the firm, nor
for carrying out the purpose for which the firm was organized.
It was clearly not within the scope of his authority. In
Osborne v. Barge, 29 Fed. Rep. 726, the court, after stating
the general rule governing the authority of each partner, says:
'' But that, as to acts not in furtherance of the business of the
partnership in the ordinary way, but which may put an end
to the same, or the natural result of which is to take control
and management of the firm business and properly from tlie
partners, it is necessary, to sustain the validity of such acts,
that it ap})ear that the same were done with the assent of all
tlie partners.'^ Indeed, the rule is well settled that the author*
ity of each copartner to dispose of the property of the firm
without the consent of his copartners extends only to the usual
business of the firm. (Note to Davies v. Atkinson, 7 Am. St
Rep. 377; 1 Bates on Partnership, §§ 401, 404; 17 Am. &
Eng. Ency. of Law, 987, 988, note 1; 2 Lawsou's Rights,
14 Mont.] Waitb o. Vinson. 407
Remedies^ and Practice, §§ 646, 1216, note 1.) One partner
has no implied power, without the consent of his copartner, to
sell the property of the firm, upon the continued use of which
the business of the firm depends. (Authorities cited, supra;
17 Am. & Eug. Ency. of Law, 1011, note 3; Blaker v. Sands,
29 Kan. 551; Hunter v. Waynich, 67 Iowa, 656; Myers v.
MoviUm, 71 Cal. 498; Shellito v. Sampson, 61 Iowa, 40; Mo-
Nair v. WUcoXy 121 Pa. St. 437; 6 Am. St. Rep. 799; 1 Bates
on Partnership, § 338; Mayer v. Bemsiein, 69 Miss. 17; ShaU
tuck V. Oiandler, 40 Kan. 516; 10 Am. St Rep. 227; Lotoen-
siein V. Flauraud, 82 N. Y. 494; Osborne v. Barge, 29 Fed.
Rep. 725; Coleman v. Darling^ 66 Wis. 156; 67 Am. Rep.
253; Stdnhofi v. Fyhiie, 6 Mont. 463.)
Wade & Barrows, also for Respondent,
Per CtJBiAM. — ^The object of this action, brought by a mem-
ber of a copartnership firm, as deduced from the pleadings,
ap|)ear8 to be twofold.
1. To obtain dissolution of the copartnership existing, as
alleged, between plainti T and defendant Vinson, in the firm
name of W. E. Vinson & Co.; to acquire an accounting, to
ascertain and state the account of each member, touching their
respective interests in and obligations to said firm; to provide
ior the payment of the firm's debts out of the assets thereof;
and then to make division of the property or proceeds remain-
ing, according to the re8i)ective interests of the copartners; and,
in general, to wind up the afiiiirs of said firm.
2. To cancel and set aside a sale of certain property of said
firm, made by defendant Vinson, one member thereof, acting
on behalf of the firm, to defendant C. C. David, not a member
of said firm, which sale is alleged to be fraudulent and void
for the reasons hereinafter set forth, as alleged in the com-
plaint.
To the end that these purposes of the action might be efieo-
tual, plaintiff asked, and, on commencement of the action,
obtained, appointment of a receiver to take charge of all the
property of said firm, including the proi)erty sold to defend-
ant David, and also obtained an injunction restraining defend-
ants from interfering with the property in question.
408 Waitb v. Vinson. [March T., 1894
The assigDments of error brought up for consideration by
this appeal relate entirely to the last-mentioned branch of the
adjudication, namely, the cancellation of said sale, and dispos-
sesision of defendant David of those effects claimed to have
been sold and delivered to him. As to the dissolution, account-
ing, |)ayment of debts, and winding up of the affairs of said
firm, the action appears to have been still pending in the trial
court when the present ap|)eal was taken from the judgment
declaring said sale to defendant David null and void. There-
fore, the proceedings, pleadings, evidence, and judgment relat-
ing to the cancellation of said sale, as shown by the record,
will be reviewed upon the assignments specified in defendant's
motion for new trial, which motion was overruled, and from
which order, as well as the judgment, this appeal was taken.
The amended complaint, on which the action is founded,
sets forth: That in November, 1890, plaintiff and defendant
Vinson entered into a copartnership, on equal terms and shares,
for the purpose of engaging in and carrying on the business of
sheep raiicliing in Meagher county, Montana, under the firm
name and style of W. E. Vinson & Co., and thereupon
engaged in and continued such business until about October
25, 1892. That, during the continuance of said copartnership
business, defendant Vinson has wrongfully applied to his own
use, out of the receipts of said business, certain money, the
amount of which plaintiff is unable to state, because said
defendant has neglected and refused to account to plaintiff
therefor, although often requested so to do.
" III. That on or about the twenty-fifth day of October,
1892, the said defendant W. E. Vinson, without the knowl-
edge or assent of the plaintiff, assigned and tiansferred his
interest in the said property of the said copartnership, being
the property used for carrying on the business thereof, to the
defendant C. C. David, wiio well knew of the plaintiff's inter-
est therein, and who now claims to be the owner thereof, and
who also claims, as the plaintiff is informed, to be the owner
of the entire partnership property of the said firm, by pur-
chase from the said W. E. Vinson; and that the said C. C.
David, without the knowledge or consent of the plaintiff, has
taken exclusive possession of the said property, and refuses
14 Mont.] Waite v. Vinson. 409
to recognize the plaintiff's interest therein^ and is conducting
the business thereof upon his own account, aud threatens
to deprive the plaintiff of his interest therein, and refuses to
account to the plaintiff therefor. Since the said transfer the
defendants have also taken possession of the books and stock
and all effects of the said copartnership, and ever since have
prevented the plaintiff from having access to the same, or from
participating in any manner in the partnership business, to the
plaintiff's great and irreparable injury and damage.
^' ly. That the said sale and transfer was made for the pur-
l>ose of defeating and defrauding this plaintiff, in this: That
the said copartnership is indebted to this plaintiff, on account
of moneys advanced by the said plaintiff to the said copartner-
ship for the purpose of defraying the expenses and carrying on
the business thereof, in the sum of three hundred (300) dollars
over and above his share of the capital stock thereof, and also
that the said copartnership is indebted in a large sum to other
parties, for the payment of which the plaintiff is individually
liable, all of which the defendant C. C. David well knew at
the time of the sale and transfer/'
Following these allegations, the complaint sets forth a list
of the property of said firm, and demands judgment: 1. That
said copartnership be dissolved, and that an accounting be
taken, etc., according to the usual practice in such cases; 2.
That a receiver of the property of said firm be appointed,
clothed with the usual power in such cases; 3. That defend-
ants be restrained by injunction from interfering with said
property; 4. That the effects of the firm be sold, and its lia-
bilities discharged, and the surplus, if any, divided between
the parties according to their respective interests.
In reviewing a case on the assignment that the findings or
decision is not warranted by the evidence it is necessary to
refer to the complaint to see what has been alleged as ground
for the relief sought and obtained by the decision, and what
issue has been formed thereon by the other pleadings, as a
starting point from which to review and consider the evidence
on such assignment. In looking into the complaint for the
grounds alleged for annulling said sale it is found that all the
averments relating thereto are comprised in paragraphs 3 and
410 Waitb v. ViiJSOK. [March T., 1S84
4, quoted above, wlierefrom it will be observed that while
there are undoubtedly sufficient facts allied to 8up|K)rt au
action for dissolution, accounting, and division between the
copartners, or their successors in interest, according to their
respective interests in the coparinership effects, the averments
relating to said sale are not sufficient to show any fraud touch-
ing that matter. When stripped of verbiage the allegations of
the complaint relating to the alleged fraudulent sale are to the
efiect that Vinson, at a certain time, '^assigned and transferred
his interest in the property of said copartnership" to defendant
David, who well knew of plaintiff's interest therein, and who,
as plaintiff is informed, claims to be the owner of the entire part-
nership property by purchase from Vinson; that defendant
David, without knowledge or consent of plaintiff, has taken
possession of said property, and refuses to recognize plaintiff's
exclusive interest therein, and threatens to deprive plaintiff
thereof. The further allegations found in paragraph 3 of the
complaint, to the effect that defendants have also taken possession
of the books, stock, and all the effects of said copartnership, and
ever since prevented plaintiff from access to the same, and from
participating in the business of said firm, have no bearing upon
the question of the fraudulent sale, as showing grounds for its
vacation. . Besides, the jury found that such allegations as to
the taking of the books, eta, and refusing plaintiff access
tliereto, were not triie. Moreover, the allegation that ^defend-
ants'' had taken the books includes one copartner, who could
rightfully be in possession of the books and papers of said firm,
but could not rightfully deprive other members of access
thereto. Those allegations, however, do not relate to tlie
matter of fraudulent sale, which is tlie subject of special inquiry
on this appeal. The all^ation that defendant Vinson ''assigned
and transferred his interest in said co|)artnership property" to
defendant David without consent of plaintiff, the vendee David
knowing that plaintiff' had an interest therein, is not ground
for avoidance of the sale of Vinson's interest. A copartner
may sell his interest in a firm to any purchaser found willing
to buy, or his intei^est may be sold under execution, without
assent of the other members of the firm; and that alone
amounts to no fraud on the other members^ unless some pro-
14 Mont.] . Waitb v. Vinson. 411
vision of the partnership agreement is violated thereby^
although the sale of a member's interest to a stranger is held
ground for dissolution and winding up of the affairs of the
firm, because the other members are not bound to continue
in copartnership with a stranger, with whom they have not
chosen to engage in such relation. (Parsons on Partnership^
§§ 9, 106.) All the further allegations relating to the charge of
fraudulent sale are comprised in paragraph 4 of the complaint,
which avers that said sale — that is, the sale of Vinson's inter-
est in the copartnership, was made for the purpose of defeating
and defrauding plaintiff, in that said copartnership is indebted
to plaintiff, for money by him advanced to the firm, in the
sum of $300 over and above his share of the capital, and also
because said firm is indebted to other parties in a large sum,
for which plaintiff is individually liable, all of which was
well known to defendant David at the time of said sale and
transfer.
Giving these averments all reasonable force and effect, or
even going beyond the rule, and giving them the strongest
interpretation admissible iu favor of plaintiff's case, and they
fail to disclose sufficient ground to warrant the cancellation of
the sale alleged; for, granting that the firm was indebted to
plaintiff and others as alleged, that fact did not forbid a sale
by Vinson of his interest in the firm, as allied, if he could
find any one willing to buy it Nor did that fact relieve Vin-
son from liability to plaintiff for overdrafts out of the firm
assets. Nor did it relieve Vinson from his liability, along
with plaintiff, for the debts of the firm contracted prior to (he
sale of Vinson's interest Nor did such sale relieve the firm
or defendant Vinson of their liabilities to plaintiff for his
advancements in au accounting. This sale of Vinson's inter-
est may have put his affairs in better condition to meet such
liabilities; and if defendant David, having bought Vinson's
interest, undertook to assume the whole property of the firm
as his own, and exclude plaintiff from his rights therein, as
alleged, while such conduct was ground for dissolution,
accounting, and winding up of the affairs of the co|)artner8hip,
in the proper action, and by interiK>sition of a receiver, it was
not ground for the cancellation of the sale of Vinson's inters
412 Waitb v. Vinson. [March T., 1894
est to David. When the affairs of the firm were thas wound
up, David would, if he showed title to Vinson's interest, be
entitled to Vinson's share of the residue, if anj was found to
belong to him on the accounting. Such is the showing of the
complaint on the subject of the alleged fraudulent sale; and,
while no question is raised touching its sufficiency in that
regard, we must consider what its allegations are, in order to
understand on what alleged facta it is proposed to cancel said
sale, and to ascertain from the pleadings the issue on that sub-
ject.
Defendants made separate answers. The answer of Vinson,
after denying each allegation of the complaint, for further
defense, by way of new master, alleges that by the terms of a
verbal agreement, whereby said copartnership was formed,
Vinson was made the sole and exclusive agent and manager of
its business, with power to buy, sell, and otherwise handle and
manage the property and business thereof, and also empowered
to contract debts on behalf of the firm, and secure the same,
if necessary, by execution of a mortgage on the firm property,
or to sell the property of the firm to satisfy such debts; that,
at the time of the formation of said copartnership, defendant
Vinson was the owner and in possession of certain real and
])er8onal ])roperty, consisting of horses, cattle, sheep, and other
personal proi)erty, together with certain corrals, fences, houses,
and other improvements upon lands owned by said defendant,
of the value of $4,000, as agreed by and between plaintiff
and defendant Vinson in said copartnership agreement; that,
according to the terms of said copartnership agreement, the
whole of said property was, by Vinson, transferred to said
copartnership firm, as capital stock thereof, in consideration of
which transfer plaintil!' agreed to pay defendant Vinson for
the one-half interest in said property and in the copartnership
business the sum of $2,000: that although payment thereof
had been often requested, plaintiff has failed and refused to pay
the same, except the sum of $209.60 paid thereon by plaintiff;
that in said copartnership agreement it was agreed between
plaintiff and defendant, as members of said firm, that for his
services as manager of the copartnership business, to be car-
ried on as aforesaid, defendant Vinson was to receive from the
14 Mont.] Waitb v. Vinson. 413
firm the sum of $40 per month; that there is due and owing
from said firm to defendant Vinson, by reason of sach serv-
iceSi under the provisions of the contract, $1,160, which sum
has not been paid, except as hereinafter stated; that, bj reason
of plaintifiTs failure and refusal to pay his share of the ex-
penses of said copartnership business, the firm became heavily
indebted to divers parties, to wit, in the sum of $6,471, exclu-
sive of the amount due defendant Vinson for services aforesaid;
that prior to the 26th of October, 1892, and prior to the sale
of certain copartnership effects mentioned below, defendant
Vinson notified plaintiff of the condition of the business of
said firm, and demanded of him a settlement, and further noti-
fied plaintiff of the mortgage existing on the sheep belonging
to saiJ firm to secure indebtedness to the amount of $4,500,
and notified plaintiff that, unless he paid the amounts due from
him to said copartnership, it would be necessary to sell part or
all of the property and effects of the firm for the purpose of
liquidating its indebtedness, all of which plaintiff well knew,
that plaintiff failed and neglected to comply with said requests
of Vinson, and Vinson, for the purpose of paying the indebt-
edness of said firm, and for no other purpose, sold to defend-
ant C. C. David 1,920 head of stock sheep, 4 head of horses,
8 head of cattle, and certain other personal property of said
copartnership, for the sum of $2,714, ''subject to the terms
and conditions of a certain mortgage of $4,500 against the
said sheep, making the aggregate purchase price of said prop-
erty $7,214; that the price received for said property was
its full, fair, and just value"; that said sum of $2,714 so
received by defendant Vinson for the sale and transfer of
said property, and the whole thereof, was paid out by defend-
ant Vinson in payment of tlie partnership indebtedness, except
the sum of $843, which defendant retained as part payment of
the amonut due him from plaintiff, and the further sum of
$82, still in the bank to the credit of the firm, which was
reserved to pay certain indebtedness of the firm to W. W.
De Witt, amounting to the sum of $76 and interest, which
this ('efendant was restrained from paying by the injunction
issued in this action; that there is still due from plaintiff to
this defendant on account of the purchase price of one-half
414 Waitb v. Vinson. [March T., 1894
interest in tlie busines"^^ aud on account of wages due him as
manager thereof^ the sum of about $1,000.
The answer of defendant David specificallj denies the alle-
gations of the complaint relating to him, and to the alleged
fraudulent purchase of said property^ or an interest therein,
by Iiim^ and further denies that he is insolvent, or unable to
respond in damages to any extent which might be awarded to
plaintiff for his interest in said property, and alleges that he
(David) is the owner of real and personal property of the value
of $20,000, subject to execution, but does not deny that he
knew the property sold to him was copartnership effects, or
that plaintiff had an interest therein as a member of said firm,
or that the sale was made without plaintiff's consent, and for
further defense alleges, substantially, the same facts regarding
the sale and delivery of certain described property of said firm
to him by Vinson, subject to mortgage, and the payment of
the consideration, as set forth in the answer of Vinson, and
that said sale and purchase was made in good faith, and the
consideration paid therefor was a full and fair valuation of the
property in question, and denies that he (defendant David)
claims ownership of, or has ever taken possession of or assumed
any control over, any property of said firm, except that bought
by him as aforesaid; that, aside from that transaction, he has
had nothing to do with, nor is concerned in, said copartnership
firm.
Plaintiff, by replication, put in issue the new matter allied
in said answers, except that he does not deny the allegation of
the answers that the sale to David was of certain property of
the firm outright, and not of Vinson's interest therein, only,
as alleged in the complaint. But plaintiff denies that David
paid therefor the sum stated in the answers, or the full, fair,
or just valuation thereof. The replication also admits that
defendant Vinson is entitled to the sum of $960 for services
rendered said firm under the provisions of the [)artnersliip
agreement*
It therefore appears that two issues were raised as to the
alleged fraudulent sale. One issue raised by the allegation of
the complaint and answer was as to an alleged fraudulent sale
of Vinson's interest in said firm, which allegation of fraud
14 Mont.] Waitk v. Vinson. 416
was preclicaled on the fact that plaintiff Waite had an inter-
est in said firm property, and l)a<l made advancements thereto
over and above his share of the capital, and was also liable for
the firm debt8| all of which was known to defendant David
when he bought Yii^s^^i^'s interest, which facts constitute no
fraud, because, notwithstanding those facts, Vinson, as a copart-
ner, had a right to sell his interest in the firm, nnless condi-
tions of the copartnership compact forbade such sale for a
stated period, and no such conditions are alleged. Nor did
such purchase exceed the right of defendant David to buy if
he saw fit. The answer denies those allegations of the com*
plaint, and thus raises an immaterial issue touching said sale,
so far as any issue is raised between the complaint and answer.
The other issue, as to the alleged fraudulent sale, and the only
material issue in that respect, is raised by the new matter alleged
in the answer, to the effect that, by said sale to David, certain
described property of the firm was sold outright, in good faith,
for the full value thereof, paid and assumed by David, which
averments as to the alleged good faith of said sale, fair price,
and payment were denied by the replication. This appears to
have been the issue tried.
Therefore, it is apparent, and should be observed, that while
defendant David may have been a proper party to the action
for dissolution and accounting, as successor to Vinson's inter-
est in the firrn^ by purchase, that allegation presented no ground
for cancellation of the sale of Vinson's interest, and does not
appear to have been relied on after defendant David answered,
disclaiming ownership of any interest in the firm, but claiming
to have purchased certain property thereof outright. But by
the real issue relating to David, raised by the new and affirm-
ative averments of the answer and denials of the replication,
it really became an action involving two distinct causes, which
could not be properly joined; that is, an action between part-
ners for dissolution, etc., and also joining therewith an action
against a stranger to the firm, to set aside a sale of firm proj)-
erty made to him on grounds of alleged fraud. But no ques-
tion is raised as to this peculiar aspect of the case, and therefore
the same is only noticed here to avoid the implication that such
practice as appears in this case was sanctioned as proper.
416 Waite v. Vinson. [March T., 1894
The main assigDment, and the one tinder which all theqtie&>
lions presented by this appeal may be considered^ is that the
evidence is insufficient to justify the finding that such sale was
fraudulent, and the decision that the same be declared void.
At the trial plaint ifi* fell as far short of producing proof
tending to show a fraudulent purpose on the part of either
party to said sale as he did of alleging fads to that end in the
complaint. The evidence introduced by both parties, with
scarcely any contradiction on material {)oints, shows the state
of facts alleged in Vinson's answer regarding the condition of
the firm in general when said sale was made, and tlie facts
relating thereto.
It appears from the evidence that plaintiff resided in the
state of New York, while defendant Vinson was in sole charge
and management of said copartnership business in Montana,
except in so far as he was occasionally advised in relation
thereto by plaiutiflf's agent, Walter A. Waite; that the firm
was indebted substantially as alleged in Vinson's answer; that
plaintifiT was in default somewhat in relation to said firm, but
that question pertains to an accounting between the members,
a question with which we have nothing to do in this appeal.
The sheep belonging to the firm were mortgaged, as alleged
in Vinson's answer, as to which mortgage, and debt secured
thei*eby, and several renewals thereof, plaintiff appears to have
had full knowledge, and there apjiears to have been no ques-
tion raised as to its good faith and validity, so far as shown
by the record; and, besides that mortgage debt, the firm was
indebted to divers parties, aggr^ting about $2,000, as alleged
by Vinson, over and above the amount due Vinson from the
firm. Prior to the sale in controversy, it appears that there
had been interviews between Vinson and plaintiff's agent,
Walter A. Waite, and with plaintiff himself, who appears on
one occasion to have been in Montana, wherein the state of
business of said firm was discussed, and an adjustment between
the parties, and payment of the amount claimed to be due from
plaintiff to the firm and to Vinson, was requested by the latter.
The books and papers relating to the firm's affairs were avail-
able for examination by plaintiff and his agent, and it api^ears
from the testimony of Walter A. Waite that he examined said
14 Mont.] Waite v. Vinson. 417
books^ to some extent, at least. In tliode interviews the pai*-
ties also discussed the matter of the sale and purchase of
Waite's interest, for which it appears he asked $5,000, but
Vinson declined to pay so much therefor. It appears, also,
that defendant Vinson notified plaintifi* that unless a settle-
ment of his indebtedness to the firm was immediately made,
and something done to raise money to pay the indebtedness
of the firm, a considerable portion of the property thereof must
be sold to raise funds to pay the outstanding indebtedness
thereof, and that unless such settlement and provision for
payment of the debts were made, defendant Vinson would
proceed to sell a portion of the firm property to raise money
to satisfy its indebtedness. But no such adjustment, settle-
ment, and provision for payment of the firm debts were made
by the partners, acting together.
Under these conditions defendant Vinson, on the 25th of
October, 1892, sold to defendant David certain effects of the
firm, described in a bill of sale thereof, for the consideration
of |2,714, paid by David therefor, subject, by express terms of
the bill of sale, to the chattel mortgage thereon to secure the
sum of $4,500. The jury found that such payment of |2,714
was made by David, and this finding is fully in accord with
the evidence; and there is no evidence in the record to sup|K)rt
the modification of that£nding by the court, to the effect that
defendant David placed in the bank, to the credit of W. £.
Vinson & Co., $2,000, ''but as to what amount of that money
was used by Vinson in paying the debts of the firm, and as to
wliat amount was paid back to C. C. David, is a question the
court will refer to a referee to decide, with other questions
involving an account between the parties.'^ Such modification
is wholly without support, because there was no evidence intro-
duced to justify such intimation, and this record purports to
contain all the evidence introduced. Fraud must be proved,
and not presumed. According to the evidence disclosed by
this record, David paid over to Vinson, in purchase of the
property sold, said sum of $2,714, and Vinson us 
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