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HARVARD!.' \ 'OOL 






REPORTS 



OF 



CASES ARGUED AND DETERMINED 



IN THE 



SUPREME COURT 



OF THE 



STATE OF MONTANA 



FROM APKIL 6, 1903, TO OCTOBER 5, 1903. 



OFFICIAL REPORT. 



t 

[L 



Volume XXVlll. 



SAN FRANCISCO : 

BANCROFT-WHITNEY COMPANY, 

Law I'uBM!>HRKa and Law Booksrixeu!). 
1903. 



Copyright VMi. 
By JUnchokt-Wiiitney Company. 



Anaconda, Mont . 
.STANDAHi) Publishing (Company. 

PUINTKUS AND BiNDKKS. 



The opinions in this volume of the Montana Reports have 
Leen edited and are reported, under the supervision of the 
justices, by Oliver T. Crane, Esquire, a member of tlie bar of 
the Supreme Court. 




HARVARPI'< lOOL 



DIRECTORY 



OF THE 



Judicial Districts of the State of Montana. 

1903. 



f IKST JUDTCIAT. DiSTlUCT. 

roniity of ].cwis and Clarke. County Seat, Helena. 

District Jndfires: Hon. Henry C. Smith; Hon. James M. 
Clements. 

Oltieers: County Attorney, Lineoln AVorkin^r, Esq.; Clerk 
of District Court, Finlay :McEae; Sheriff, Jefferson O'Connell. 

Second Judicial District. 

County of Silver Bow. County Seat, Butte. 

District Judges : Hon. William Clancy ; Hon. E. \V. Harney ; 
Hon. J. B. McClernan. 

Ofiieeri^: County Attorney,' Peter Breen, Esq.; Clerk of 
District Court, Samuel M. lloberts ; Sheriff", J. J. Quinn. 

Third Judicial District. 

Counties of Deer Lodge, Powell and Gi'anite. 

District Judge, Hon. Welling Xapton. 

Officers (Deer Lodge County — County Seat, Anaconda) : 
Cninity Attorney, Joseph J. McCaffery, Esq. ; Clerk of District 
Court, William PI Thomas; Sheriff, George A. Storrar. (Pow- 
ell Crainty — County Seat, Deer Lodge) : County Attorney, 
0. E. Emerson, Esq. ; Clerk of District Court, E. Lee Kelley ; 
Sheriff, J. C. Barnden. (Granite County — County Seat. Phil- 
ipsburg) : County Attorney, David M. Durfee, Esq. ; Clerk of 
District Court, James E. Abbey ; Sheriff, F. J. McDonald. 

(Vll) 



VIII Directory of Judicial Districts 

FouRTJi Judicial, District. 

Counties of Missoula and Ravalli. 

District Judge, Hon. F. C. Webster. 

QfBcerg (Missoula C!ounty — County Seat, Missoula) : County 
Attoi-ney, Charles H. Hall, Esq. ; Clerk of District Court, R. 
W. Kemp; Sheriff, H. W. Thompson. (Ravalli County- 
County Seat, Hamilton) : County Attorney, William P. Baker, 
Esq. ; Clerk of District Court, John F. Cone ; Sheriff, Joshua 
Pond. 

Fifth Judicial District. 

Counties of Beaverhead, Jefferson and Madison. 

District Judge, Hon. Montgomery H. Parker. 

Officers (Beaverhead County — County Seat, Dillon) : County 
Attorney, C. W. Robinson, Esq. ; Clerk of District Court, 
George W. French; Sheriff, Marmaduke Gist; (Jefferson 
County — County Seat, Boulder) : County Attorney, C. R. 
Stranahan, Esq. ; Clerk of District Court, A. J. HoUoway ; 
Sheriff, A. V. Gibson. (Madison County — County Seat, Vir- 
ginia City) : County Attorney, M. M. Duncan, Esq. : Clerk of 
District Court, James G. Walker; Sheriff, Charles C. Hill. 

Sixth Judicial District. 

Counties of Park, Carbon and Sweet Grass. 

District Judge, Hon. Frank Henry. 

Officers (Park County — County Seat, Livingston) : County 
Attorney, A. P. Stark, Esq. ; Clerk of District Court, Arthur 
C. Davis, Jr. ; Sheriff, A. S. Robertson. (Carbon County — 
County Seat, Red Lodge) : County Attorney, L. O. Caswell, 
Esq. ; Clerk of District Court, E. E. E^elstyn; Sheriff, M. W. 
Potter. (Sweet Grass County — County Seat, Big Timber) : 
County Attorney, E. M. Hall, Rjq. j Clerk of District Court, 
H. C. Poimd ; Sheriff, Oscar A. Fallang. 

Seventh Judicial District. 

Counties of Yellowstone, Custer, Dawson and Rosebud. 
District Judge, Hon. Charles H. Loud. 



OF THE State of Montana. ix 

Officers (Yellowstone County — County Seat, Billings) : 
County Attorney, CharLs Ia Harris, Esq. ; Clerk of District 
Court, T. A. Williams; Sheriff, George W. Hubbard. (Custer 
County — County Seat^ Miles City) : County Attorney, James 
H. Johnston, Esq. ; Clerk of District Court, A. T, McAusland ; 
Sheriff, William E. Savage. (Dawson Coimty — County Seat, 
Glendive) : County Attorney, C. C. Hurley, Esq. ; Clerk of 
District Court, James Eivines; Sheriff, George B. Williams. 
(Rosebud County — County Seat, Forsyth) : County Attorney, 
J. C. Lyndes, Eisq. ; Clerk of District Court, D. J. Muri ; 
Sheriff, Charles Davis. 

Eighth Judicial District. 

County of Cascade. County Seat, Great Falls. 
District Judge, Hon. Jere B. Leslie. 

Officers : County Attorney, Eu W. Berry, Esq. ; Clerk of 
District Court, John T. Athey ; Sheriff, Herman E. Benner. 

JTiNTH Judicial District. 

Counties of Gallatin, Broadwater and Meagher. 

District Judge, Hon. W. R C. Stewart. 

Officers (Gallatin County — County Seat, Bozeman) : County 
Attorney, George D. Ptease, Esq. ; Clerk of District Court, 
Charles B. Anderson; Sheriff, Thomas J. Fowler. (Broad- 
water Countjf — County Seat, Townsend) : County Attorney, 
J. A. Matthews, Esq. ; Clerk of District Court, Fred. Bubser ; 
Sheriff, James Munden. (Meagher County — County Seat, 
White Sulj^ur Springs) : County Attorney, Max Waterman, 
Eisq.; Clerk of District Court, Baker W. Badger; Sheriff, 
Charles H. Sherman. 

Tenth Jubiciai. District. 

County of Fergus. County Seat, Lewistown. 
District Judge, Hon. Edwin K. Cheadle. 
Officers : County Attorney, O. W. Belden, Esq. ; Clerk of 
District Court, Edmund Wright; Sheriff, L. P. Slater. 



X Directory of Jtjdtcial Districts 

Eleventh Judicial District. 

Counties of Flathead and Teton. 

District Judge, Hon. D. F. Smith. 

Officers (Flathead County — County Seat^ Kalispell) : County 
Attorney., G. H. Grubb, Esq. ; Clerk of District Court, James 
K. Lang; Sheriff, O. P. Gregg. (Teton County — County Seat, 
Chouteau) : County Attorney, J. E. Etickson, Esq. ; Clerk of 
District Court, Sterling McDonald ; Sheriff, O. Wallace Taylor. 

Twelfth Judicial District. 

Counties of Chouteau and Valley. 

District Judge, Hon. John W. Tattan. 

Officers (Chouteau County — County Seat, Fort Benton) : 
County Attorney, Charles N. Pray, Esq. ; Clerk of District 
Court, Charles H. Boyle; Sheriff, John Buckley. (Valley- 
County — County Seat, Glasgow) : County Attorney, John J. 
Kerr, Esq. ; Clerk of District Court, John Survant ; Sheriff, 
Harry Cosner. 



TABLE OF CASES REPORTED. 



Abbott, Corby v 523 

Allen V. Reely 525 

American Developing & Minin*^ Co., Clark v 468 

Baker v. Butte City Water Co 222 

Ballard et al. v. Patten et al 593 

Barnard et al., Cblusa Parrot M. &; S. Co. v 11 

Barnes, Evkovich v . r 586 

Beck et al. v. Holland et al 460 

Bender et al., Foster et al. v 526 

Birney v. Warren 64 

Board of Commissioners of Broadwater County et al., Will- 
iams et al- V 360 

Boe V. Hawes et al 201 

Boston & Montana Consol. C. & S. Mining Co., In re Ap- 
plication of 221 

Boston & Montana Consol. C. & S. Mining Co., Wetzstein v. 451 

Boston & Montana Consol. C. & S. Mining Co., Wetzstein v, 583 

Billiard V. Smith. : 387 

Butte & Boston Consol. Mining Co. et al., Larkin et al. v. . 41 

Butte City Water Co., Baker v 222 

Butte Hardware Co. v. Knox Ill 

Butte & Ruby Valley Smelting Co., Cotter v 593 

Colusa Parrot M. & S. Co. v. Barnard et al 11 

City of Butte, Hanley v 36 

City of Butte, Holland v 34 

City of Butte, Less v 27 

City of Butte, O'Donnell et al. v 35 

Clark V. American Developing & Mining Co 468 

Coburn et al., Phillips et al. v 45 

Coleman v. Perry et al 1 

(xl) 



XII Table op Oases Eeported. 

Conley v. Dunn 295 

Oonley v. Dnnn 585 

Cook et aL v. Gallatin Eailroad Co 340 

Cook & Woldson v. Gallatin Railroad Co 509 

Coombe et al. v. Knox et al 202 

Coram, Stanford v 288 

Corby v. Abbott 523 

Cornell et al. v. Matthews et al 457 

Cotter V. Butte. & Ruby Valley Smelting Co 593 

County of Custer, Matador Cattle Co. v 286 

County of Custer, Western Ranches, Limited, v 278 

Courtney et al., Woodward et al. v 594 

Curran et al., Stevens et al. v 366 

Dahlman v. Dahlman et al 373 

Dahlman et al., Dahlman v 373 

Dahlman's Estate, In re 379 

Dayton v. Ewart 153 

Deuninck et al. v. West Gallatin Irr. Co 255 

District Court et al.. State ex rel. Anaconda Copper Min- 
ing Co. et al. v 590 

District Court et al., State ex rel. Boston & Montana Con- 
sol. C. & S. Mining Co. v 588 

District Court et al., State ex rel. Boston & Montana Con- 
sol. C. & S. Mining Co. v 590 

District Court et al.. State ex rel. Brogan v 592 

District Court et al., State ex rel. Heinze v 227 

District Court et al.. State ex reL Melville v 587 

District Court et al., State ex rel. Parrot Silver & Copper 

Co. V 528 

District Court et al.. State ex rel. St Peters v 585 

District Court et al.. State ex rel. Stromberg-MuUins Co. v . 123 

District Court et al.. State ex rel. Weinstein Co. v 445 

Donovan, Rumney et al. v 589 

Donovan, Rumney et al. v 69 

Doty V. McClusky et al *. 507 



Table of Oases Reported. xin 

Dunn, Conley v 295 

Dunn, Conley v 585 

Emerson v. McNair et al 578 

Evkovich V. Barnes 586 

Ewart, Dayton v 153 

Farleigh et aL v. Kelley 421 

Farris v. Western Union Telegraph Co 583 

Featherman et al. v. Granite County 462 

Finlen v. Heinze et al . .' 548 

Fitzpatriek et al., Reynolds v 170 

Foley, Adm'r, v. Kleinschmidt et al 198 

Foster et al. v. Bender et al 526 

Frederick et al. v. McMaLon 263 

Fredericks et al., Milligan v 586 

Gallatin Railroad Co., Cook et al. v 340 

Gallatin Railroad Co., Cook & Woldson v 509 

Gemmell v. Swain et al 331 

Goddard et al., Muth et al. v 237 

Granite County, Featherman et al. v 462 

Great J^'orthern Ry. Co., Nelson v 297 

Greene v. Montana Brewing Co. 380 

Griffin (Intervener and Respondent) 507 

Hanley v. City of Butte 36 

Hardee, State v 18 

Harris, Adm'r, v. Root et al 159 

Hawes et al., Boe v .* 201 

Hegaas v. Hegaas 266 

Hegaas, Hegaas v 266 

Heinze et al., Finlen v 548 

Hershfield, Wilson v 595 

Hill, Mack V 99 

Holland et al., Beck et al. v 460 

Holland v. City of Butte 34 



XIV Table of Oases Reported. 

In re Application of the Boston & Mditana Consol. C. & S. 

Mining Co 221 

In re Bahlmjan's Estate 379 

In re Kelly's Estate 588 

In re Logan • 589 

In re Weed 264 

In re Weston 207 

John Caplice Co., Tague v 51 

Kelley, Farleigh et al. v 421 

Kelly's Estate, In re 588 

Kempton, Oakes et aL v 584 

King V. Pony Gold Mining Co. et al 74 

King, State v 268 

Kleinschmidt et al., Foley v 198 

Knobb V. Reed et al 42 

Knox, Butte Hardware Co. v Ill 

Knox et al., Cwmbe et al. v 202 

Largey, Mantle v 38 

Larkin et al. v. Butte & Boston Consol. Mining Co. et al . . 41 

Lawrence v. Westlake 503 

Less V. City of Butte 27 

Lewis, Stanton" v 267 

Lewis and Clarke County, Northwestern Mutual Life Ins. 

Co. V 484 

Lisker v. O'Rourke 129 

Logan, In re 589 

Longley et al., Robertson et al. v. . . : 128 

Mack V. Hill 99 

Mantle v. Largey 38 

Martin, Melton v 150 

Matador Land & Cattle Co. v. Custer County 286 

Matheson et al., Miller et al. v 132 

Mathews, Wright et al. v 442 



TabI/E of Cases Rbpokted. xv 

Matthews et al, Cornell et al. v 457 

McCliisky et al., Doty v 507 

MeGlauflin v. Wormser 177 

McMahon, Frederick et al. v 263 

MeXair et al., Eimerson v 578 

Melton V. Martin 150 

Merrill v. Miller 134 

Miller et al. v. Matheson et al 132 

Miller, Merrill v 134 

Milligan v. Fredericks et al 586 

Montana Brewing Co., Greene v 380 

Mungus et al., Spencer et al. v 357 

Muth et al. v. Goddard . . . : 237 

Xapton, State ex rel. Power et al. v 336 

Xeil, State Publishing Co. v 587 

Xelson V. Great jSTorthem Ky. Co 297 

Xorthwestem Mutual Life Ins. Co. v. Lewis and Clarke 

County 484 

(yDonnell et al. v. City of Butte 35 

Oakes et al. v. Kempton 584 

* O'Eourke, Lisker v 129 

Patten et al., Ballard et al. v 593 

Peck-Williamson Heating & Ventilating Co., Riddell v . . 594 

Perry et al., Coleman v 1 

Phillips et al. v. Cobum et al 45 

Pickering et al., Wilson v 435 

Pony Gold Mining Co. et al.. King v 74 

I 

Rakestraw, Small v 413 

Eeed et al., Knobb v 4^2 

Eeely, Allen v 525 

Reynolds v. Fitzpatrick et al 170 

I Reynolds, Yoder v 183 

[ Riddell v. Peck-Williamson Heating & Ventilating Co. . . 594 



XVI Tablk of Casks Eepokted. 

Eobertson et al. v. Longley et al 128 

Root et al., Harris v 159 

Ejumney et al. v. Donovan 589 

Riimney et al. v. Donovan 69 

Ryan v. Weston 207 

Small V. Rakestraw 413 

Smith, BuUard v 387 

Snell V. Welch et al 37 

Snell V. Welch et al 482 

Spencer et al. v. Mungus et al 357 

Stanford v. Coram 288 

Stanton v. Lewis 267 

State ex reJ. Anaconda Copi>er Mining Co. v. District 

Court et al 590 

State ex rel. Boston & Montana Consol. C. & S. Mining Co. 

V. District Court et al 588 

State ex rel. Boston & Montana Consol. C. & S. Mining Co. 

V. District Court et al 590 

State ex rel. Brogan v. District Court et al 592 

State ex rel. Heinze v. District Court et al 227 

State ex rel. Milville v. District Court et al 587 

State ex rel. Parrot Silver & Copper Co. v. District Court 

et al 528 

State ex rel. St. Peters v. District Court et al 585 

State ex rel. Stroriiberg-Mullins Co. v. District Court et al . 123 

State ex rel. Weinstein Co. v. District Court et al 445 

State v. Hardee IS 

State V. King 268 

State ex rel. Power et al. v. Ifapton 336 

State ex rel. Hicklin v. Webster 104 

State Publishing Co. v. Neil 587 

Stevens et al. v. Curran et al 366 

Swain et al., Gemmell v 331 

Tague V. John Caplice Co 51 

I'aney v. VoUenwdder 147 



Table of Cases Reported. g^vii 

Vollenweider, Taney v 147 

Waltz et al. (Interveners) 340 

Warren, Bimey v 64 

Webster, State ex rel. Hicklin v 104 

Weed, In re 264 

Welch et al., Snell v 37 

Welch et al., Snell v 482 

West Gallatin Irrigation Co., Deuninck et al. v 265 

Western Ranches, Limited, v. County o£ Custer 278 

Western Union Telegraph Cb., Farris v 583 

Westlake, Lawrence v 503 

Weston, In re 207 

Weston, Eyan v 207 

Wetzstein v. Boston & Montana Consol. C. & S. Mining 

Co 451 

Wetzstein v. Boston & Montana Consol. C. & S. Mining 

Co 583 

Williams et al. v. Board of Commissioners of Broadwater 

County 360 

Wilson V. Hershfield 595 

Wilson V. Pickering et al 435 

Woodward et al. v. Courtney et al 594 

Wormser, McGlauflin v 177 

Wright et al. v. Mathews 442 

Yoder v. Reynolds 183 



TABLE OF CASES CITED. 



(For cases cited from the Montana Reports, see tablt; 
at the end of this volume.) 



Adams Express Co. v. Trego, 35 Md. 47 248 

Agnew V. Walden, 84 Ala. 502 196 

Alabama, etc. R. R. Co. v. Thomas, 83 Ala. 343 323 

Allaire v. Allaire, 37 N. J. Law, 325 431 

Anderson v Coonley, 21 Wend. 279 251 

Anthony v. Grand, 101 Cal. 235 359 

Anvil Mining Co. v. Humble, 153 U. S. 540 476 

Arnold v. Illinois Cent. R. R. Co., 83 111. 273 315 

Atchison, T. & S. F. R. R. Co. v. Ditmars, 3 Kan. App. 459 314, 322, 325 

Attorney General v. Railroad Companies, 35 Wis. 425 213 

Atwood V. Munnlngs, 7 B. & C. 278 248, 249. 250 

Augusta & S. R. Co. v. Randall, 85 Ga. 297 174 

Baker v. Baker, 13 Cal. 87 322 

Balch V. Arnold, 9 Wyo. 36 440 

Baldwin V. St. Louis, K. & N. Ry. Co., 68 Iowa, 37 174 

Bank of Kentucky v. Adams Express Co., 93 U. S. 174 323 

Barber v. Babel, 36 Cal. 11 441 

Barger v. Sample (Kan.), 64 Pac. 1026 466 

Barr v. Armstrong, 56 Mo. 577 506 

Bartlett v. Pittsburgh, C. & St. L. Ry. Co., 94 Ind. 281 225 

Beatie v. Butler. 21 Mo. 313 255 

BeLarrell v. Quimby, 162 Mass. 571 180 

Bell S. & C. M. Co. v. First Nat'l Bank, 156 U. S. 470 252 

Bergen v. Bennett, 1 Caine's Cases, 2 254 

Blair v. City of Charleston, 43 West Va. 62 33 

Boggs V. Merced Mining Co., 14 Cal. 279 421 

Bohall V. Dilla, 114 U. S. 47 419,420 

Bohm V. Metropolitan El. Ry. Co., 129 N. Y. 576 32 

Bowers v. Richmond & D. R. R. Co., 107 N. Car. 721 312 

Bradbury v. Cony, 62 Me. 223 574 

Branch v. Wilmington, etc. R. R. Co., 88 N. Car. 573 323 

Broumel v. Rayner, 68 Md. 47 518 

Brown v. City of Seattle, 5 Wash. 35 32 

Brown v. Dunckel, 46 ,Mich. 29 441 

Bryant v. Herbert, 3 C. P. Div. 189 311 

Burden v. Burden, 141 Ind. 471 119 

Burk V. McDonald, 2 Idaho, 1022 574 

Butchery. Vaca Valley Ry. Co., 56 Cal. 598.. 174 

Byard v. Holmes, 34 N. J. Law 296 120 

(xlx) 



XX Table of Cases Cited. 

Byers v. Leavenworth Lodge, 54 Kan. 821 466 

Byrne v. Cummlngs, 41 Miss. 192 « 467 

Byrne v. Sisters of St. Elizabeth, 45 N. J. Law, 213 180 

Cade V. Head Camp W. O. W.. 27 Wash. 218 119 

Calderwood v. Brooks, 28 Cal. 151 83 

Caldwell v. Stephens, 57 Mo. 589 506 

California Bank v. Brooks, 126 Cal. 198 441 

Callender v. Marsh, 1 Pick. 418 31 

Camden S. D. & T. Co. v. Abbott, 44 N. J. Law, 257 248 

Carson v. Smith. 5 Minn. 78 245 

Carter & Bro. v. Mo. M. & L. Co., 6 Okl. 11 225 

Central R. R. Co. v. Pickett. 87 Ga. 734 327 

Central Pac. R. R. Co. v. Shacklef ord, 63 Cal. 261 398 

Chandler v. Cushing- Young Co., 13 Wash. 89 234 

Cheney v. Powell, 88 Ga. 629 119 

Chicago V. Taylor, 125 U. S. 161 32 

Chicago, St. L. etc. R. R. Co. v. Champion, 9 Ind. App. 510 194 

City of Atlanta v. Green, 67 Ga. 386 32 

City of Bloomington v. Pollock, 141 111. 346 33 

City of Champaign v. McMurray, 76 111. 358 315 

City of Denver v. Kent, 1 Colo. 336 108 

City of Dubuque v. C. D. & M. R. Co., 47 Iowa, 216 501 

City of Fort Worth v. Howard, 3 Texas Civ. App. 537 32 

Clark V. Ryan, 95 Ala. 406 434 

Clark V. St. Louis, etc. Ry. Co., 64 Mo. 440 315 

Clark V. Sullivan, 3 N. Dak. 280 205 

Cleveland, C. C. & L Ry. Co. v. Wynant, 134 Ind. 681 194 

Cllne V. Robblns, 112 Cal. 581 * 102 

Cole V. Railway Co., 71 Wis. 114 9 

Coles & Co. V. Louisville, etc. R. R. Co., 41 111. App. 607 315 

Commissioners v. Lang, 8 Kan. 284 281 

Commissioners v. New York Mining Co.. 76 Ind. 549 281 

Connecticut Mut. Life Ins. Co. v. Commonwealth, 133 Masj. 161 494 

Continental N. B. & L. Ass'n v. Scott, 41 Fla. 421 73 

Cook v. Chains, 55 Kan. 363 466 

Corbett v. Chicago, St. Paul, etc. R. R. Co., 86 Wis. 82 ., 327 

County of Amador v. Gilbert, 133 Cal. 53 106 

Cowing V. Rogers, 34 Cal. 648 102, 103 

Cox V. McLaughlin, 63 Cal. 196 180 

Crane v. Larsen, 15 Oregon, 345 .* *. . . 455 

Crawford v. Hazelrigg, 117 Ind. 69 440 

Crawford v. Schmidt, 47 Cal. 617 ". 68 

Crookston v. County Commissioners, 79 Minn. 283 284 

Curnow v. Blue Gravel Co., 68 Cal. 262 352 

Curran v. Foley, 67 111. App. 543 467 

Cutter v. Powell, 2 Smith's Leading Cases, 55 518 

Daggett v. Gray, 110 Cal. 171 372 

Dallmeyer v. Dallmeyer (Pa.), 16 Atl. 72 194 

Damon v. Denny, 54 Conn. 253 455 

Daniels v. Daniels, 9 Colo. 133 234 



Table of Cases Cited. xxi 

Davidson v. Board of Com'rs, 26 Colo. 549 206 

ttovls V. Hurgren. 125 Cal. 48 ...359 

Dodge V. Nevada Nafl Bank, 109 Fed. 726 398-399 

Dominguez v. Mascottl, 74 Cal. 269 83, 84, 85 

Dowell V. City of Portland, 13 Oregon, 248 68 

Dews V. Glaspel. 4 N. Dak. 251 359 

Dumell V. Terstegge, 85 Am. Dec. 466 440 

Dykes v. Mortgage Co., 2 Kan. App. 217 281 

Eachus V. lios Angeles Con. El. Ry. Co., 103 Cal. 614 32, 33 

Eddelbuttel v. Durell, 55 Cal. 277 561 

Edgerton v. Ross. 6 Abb. Pr. 190 448 

Edwards V. Ford & O'Connor, L. D. June 18, 1894 417 

Elliott V. Hayden. 104 Mass. 180 59 

Elliott V. Leopard Mining Co., 52 Cal. 355 206 

Ely V. Holton. 15 N. Y. 595 399 

Express Co. v. Caldwell, 21 Wall. 264 317, 323 

E^xpress Co. v. Cooper, 66 Miss. 558 328 

Express Co. v. Jackson, 92 Tenn. 326 327 

Farmers' Nat'l Bank v. Backus, 63 Minn. 115 73 

Felton y. Girardy, 104 Fed. 127 9 

Ferreira v. Depew, 17 How. Pr. 418 249 

Ferrer v. Home Mut. Ins. Co., 47 Cal. 427 85 

First Nat'l Bank v. North,,2 S. Dak. 480 434 

Fisk v. Atkinson, 71 Cal. 457 454 

Flynn v. Hudson River R. R. Co., 6 How. Pr. 308 312 

Forrest v. Forrest, 25 N. Y. 501 94 

Fox v. Boston & M. R. R. Co., 148 Mass. 220 327 

Prazer v. Superior Court, 62 Cal. 49 339 

French v. Cunningham, 149 Ind. 632 169 

French v. Edwards, 13 Wall. 506 281 

Gardner V. Gardner, 23 Nevada, 207 94 

George T. Burns, 4 L. D. 62 417 

Girdner v. Beswick, 69 Cal. 112 84 

Gregory v. West M. R. R. Co., 2 H. & C. 944 324 

Grentner v. Fehrenschield, 64 Kan. 764 119 

Hanley v. Walker, 79 Mich. 607 180 

Harmon v. City of Omaha, 17 Neb. 548 32, 33 

Harper v. Hildreth, 99 Cal. 266 236 

Hart V. McHugh, 17 L. D. 176 417 

Hart V. Pa. R. R. Co.. 112 U.S. 331 317, 319, 320, 323 

Haverly v. Elliott, 39 Neb. 201 194 

Hawkshurst v. Rathgeb, 119 Cal. 531 144 

Hayes v. City of Nashville, 80 Fed. 641 476 

Hebert v. Duparty, 42 La. Ann. 343 193 

Hecht V. Boughton, 2 Wyo. 385 68 

Hecht V. Hecht, 28 Ark. 92 234 

Hedrick v. Hedrick, 28 Ind. 291 216 

Hemstreet v. Burdick, 90 HI. 444 ^ 245 



xxir Table of Cases Cited. 

Hendrick's Appeal, 103 Pa. St. 358 33 

Hesa V. Mo. Pac. Ry. Co., 40 Mo. App. 202 327 

Hewett V. Chicago Ry. Co., 63 Iowa, 611 327 

Hickman v. City of Kansas, 120 Mo. 110 32, 33 

HIgglns V. Brown, 78 Me. 473 407 

Hilborn v. Bucknam, 78 Me. 482 406 

Holker v. Parker, 7 Cranch, 436 168 

HoIIoway v. HoUoway, 103 Mo. 274 455 

Hovey v. McDonald, 109 U. S. 150 234 

Huckell V. McCoy, 38 Kan. 53 578 

Hudson V. McCartney, 33 Wis. 331 180 

Hughes V. Davis, 40 Cal. 117 103 

Hughes V. Ward. 38 Kan. 452 194 

Humphrey v. Merrlam, 32 Minn. 197 120 

Hunt V. Rousmanier's Adm'rs, 8 Wheat. 174 253 

Huston V. Vail, 51 Ind. 299 576 

Hyman v. Wheeler, 29 Fed. 347 59 

In re Blair, 102 Fed. 987 386 

In re Blumer & Co.. 13 Fed. 622 251 

In re Doyle's Estate, 73 Cal. 546 428 

In re Kenney, 95 Fed. 427 386 

In re Pease, 4 Am. Bankr. R. 547 386 

Insurance Co. v. Commonwealth, 87 Pa. St. 173 494 

Jack V. Sinshimer, 125 Cal. 563 .' 262 

Jenks V. Dyer, 102 Mass. 235 156 

Johnson v. Towsley, 13 Wall. 72 419 

Johnston v. Wright, 6 Cal. 373 : 249 

Jolly V. Bryan, 86 N. Car. 457 457 

Kansas & Ark. V. R. R. Co. v. Ayers, 63 Ark. 331 328 

Kennicott v. Leavitt, 37 111. App. 435 457 

Kerr v. Lydecker, 51 Ohio St. 240 440 

King V. Murphy, 49 Neb. 670 94 

Kittanning Coal Co. v. Commonwealth, 79 Pa. St. 100 494 

Klopenstein v. Mulcahy, 4 Nevada, 296 121 

Knight V. Freeport, 13 Mass. 218 575 

Knight V. Sawin, 6 Me. 361 568 

Lake County v. Sulphur Bank Q. M. Co., 66 Cal. 17 68 

Lament v. Nashville R. R. Co., 9 Helsk. 58 327 

Lamy v. Burr, 36 Mo. 85 ^ 245, 251, 253 

Lau V. Fletcher, 104 Mich. 295 7 

Lawrence v. Miller, 86 N. Y. 131 481 

Leary v. Railroad Co., 139 Mass. 580 9 

Leavitt v. Blatchford, 17 N. Y. 521 89 

Lee V. Johnson, 116 U. S. 48 419 

Leighton v. Serveson, 8 S. Dak. 350 206 

Lent V. Morrill, 25 Cal. 492 440 

Leonard v. Chicago & Alton Ry. Co., 54 Mo. App. 293 323, 325 

Levor v. Seiter, 8 Am. Bankr. R. 459 385, 386 



Table of Cases Cited. xxiii 

Lewis V. City of Seattle, 5 Wash. 741 32 

Lfipscomb v. Lyon, 19 Neb. 511 175 

London & S. F. Bank v. Bandmann, 120 Cal. 220 439 

Longr Beach, etc. v. Dodgre, 135 Cal. 401 262 

Lord V. Dale, 12 Mass. 115 568 

Marr v. Given, 23 Me. 55 245 

Martin v. Hoff (Arizona), 64 Pac. 448 107 

Mawich V. Elsey, 47 Mich. 10 174 

McCall V. Village of Saratoga Springs, 9 N. Y. Supp. 170 33 

McCall V. Village of Saratoga Springs, 121 N. Y. 704 33 

McDaniels v. McDaniels. 40 Vt. 364 575 

McDonald v. Jacobs, 85 Ala. 64 94 

McElroy v. Kansas City. 21 Fed. 257 34 

McHarry v. Stewart (Cal.), 35 Pac. 141 418 

McSkimin v. Knowlton, 14 N. Y. Supp. 283 157, 158 

Mechanics' Bank v. Schaumburg, 38 Mo. 228 249 

Meyer v. Roth, 51 Cal. 582 174 

Michaells v. Wolf. 136 111. 68 180 

Michalitschke v. Wells. Fargo & Co., 118 Cal. 687 315 

Minneapolis, St. Paul, etc. Hy. Co. v. Home Insurance Co., 64 Minn. 

ei ^ 315 

Missouri Pac. Ry. Co. v. Harris, 67 Texas, 166 323 

Mobile Transportation Co. v. City of Mobile. 128 Ala. 335 284 

Monroe v. Ried. 46 Neb. 316 94 

Montana Co. v. St. Louis. M. & M. Co., 152 U. S. 160 545. 546 

Moody V. Nichol, 26 Miss. 109 467 

Moore v. Robbins, 96 U. S. 530 419 

More V. Calkins, 95 Cal. 435 254 

Morley v. Lake Shore Ry. Co., 146 U. S. 169 293, 294 

Morrill v. Everson, 77 Cal. 114 564 

Moulton V. St. Paul Ry. Co., 31 Minn. 85 323 

Mullen V. Mullock. 22 Kan. 598 455 

Myers v. Baltimore County, 83 Md. 385 281 

Nelson v. Harrington, 72 Wis. 591 312 

Nesmith v. Insurance Co.^ 8 Abb. Pr. 141 575 

Newl>ert v. Cunningham, 50 Me. 231 206 

New Jersey Nav. Co. v. Merchants' Bank, 6 How. 344 311, 323 

New Orleans, etc. R. R. Co. v. Albrltton, 75 Am. Dec. 98., 467 

Nicoll V. East Tenn. etc. Ry. Co., 89 Ga. 260 315 

North River Bank v. Aymar. 3 Hill, 262 248 

Northrop v. Jennison, 12 Colo. App. 523 467 

Northwestern Mut. Fire Ins. Co. v. Blankenship, 94 Ind. 535 225 

O'Brien v. Philadelphia, 150 Pa. St. 589 33 

O'Brien v. Young, 95 N. Y. 428 293 

Oliphant v. Eckerley. 36 Ark. 69 ^ 441 

Owen V. Louisville & N. R. R. Co., 87 Ky. 626 328 

Oxley V. Railway Co., 65 Mo. 632 323 

Pacific Express Co. v. Selbert, 142 U. S. 339 492 

Pacific Factor Co, v. Adler, 90 Cal. 110 262 



XXIV Table of Cases Cited. 

Palmer v. Laberee, 23 Wash. 409 294 

Palmer v. Utah Nor. Ry. Co., 2 Idaho, 291 574 

Paola & Fall River Ry. Co. v. Commissioners, 16 Kan. 302 365 

Parker v. Armstrong, 55 Mich. 176 120 

Parker v. Reay, 76 Cal. 103 561 

Patent Brick Co. v. Moore, 75 Cal. 205 262 

Patterson v. Ward, 6 N. Dak. 359 284 

Paul V. Virginia, 8 Wall. 168 491 

Peck V. Pierce, 63 Conn. 310 575 

Peek V. North S. R. R. Co., 10 H. L. Cas. 478 324 

Pelham H. E. Co. v. Bagrgaley, 12 N. T. Supp. 219 449 

Pemberton v Lockett, 21 How. 257 169 

People V. Equitable Trust Co.. 96 N. Y. 387 494 

People V. Getty, 49 Cal. 581 339 

People V. Home Ins. Co., 92 N. Y. 328 494 

People V. McCreery, 34 Cal. 482 501 

Poeple V. Richmond. 16 Colo. 274 219 

People V. Whipple. 47. Cal. 591 68 

People V. Whyler, 41 Cal. 351 601 

Perkins v. Brainerd Quarry Co., 32 N. Y. Supp. 230 194 

Perkins v. Hart, 11 Wheat. 237 518 

Pforzheimer v. Selkirk, 71 Mich. 600 120 

Pico V. Cohn, 78 Cal. 384 *. 84.85, 87 

Pierce v. Southern Pac. Co.. 120 Cal. 156 323 

Piercy v. Hedrick, 2 West Va. 458 251 

Pollack V. Farmers' L. & T. Co., 158 U. S. 601 496 

Polsley & Son v. Anderson. 7 West Va. 202 .169 

Pope V. Allis, 115 U. S. 363 58 

Porter v. Rock Island, etc. R. R. Co.,76 111. 561 494 

Posner v. Bayless, 59 Me. 56 245 

Powder River Cattle Co. v. Board of Com'rs, 45 Fed. 323 281 

Preston v. Hill, 50 Cal. 43 168 

Quinby v. Conlan, 104 U. S. 420 419, 420 

Railroad Co. v. Lockwood, »17 Wall. 357 323 

Railroad Co. v. Pratt, 22 Wall. 123 323 

Railroad Co. v. Stevens, 95 U. S. 655 325 

Reddish v. Smith. 10 Wash. 178 .• 480 

Reld V. Reid, 73 Cal. 206 175 

Rideout v. M. L. S. & W. R. Co., 81 Wis. 237 312 

RIgney v. City of Chicago, 102 111. 64 32 

Robinson v. Pogue, 86 Ala. 257 476 

Root V. New York, etc. R. R. Co., 83 Hun. Ill 323 

Rosenfleld v. Peoria, etc. Ry. Co., 103 Ind. 123 323 

Runge V. Brown, 23 Neb. 817 ^ 120 

Salt Lake F. & M. Co. v. Mammoth M. Co.. 6 Utah, 351 94 

Sanford v. Sanford, 139 U. S. 642 420 

Sawyer v. Campbell, 130 111. 186 94 

Schaller v. City of Omaha, 23 Neb. 325 32 

Schmidt v. City of North Yakima, 12 Wash. 121 180 



Tabt.e of Cases Cited. xxv 

Scott V. Brown, 9 Kan. App. 870 466 

Scottish U. & N. Ins. Co. v. Herrlott, 109 Iowa, 606 491, 494 

Scrlbner v. Crane, 2 Pai^e, 147 431 

Searle v. City of Lead, 10 S. Dak. 312 33 

Settle V. Winters, 2 Idaho, 215 480 

Sharon v. Sharon, 67 Cal. 185 234 

Shepley v. Cowan, 91 U. S. 340 419 

Shrlver v. Sioux City R. R. Co., 24 Minn. 508 323 

Slanson v. City of Racine, 13 Wis. 398 .• 500 

Slusser, Taylor & Co. v. City of Burlington, 47 Iowa, 300 174 

SmelUng Co. v. Kemp, 104 U. S. 640 110. 419, 421 

Smith ▼. Calcote, 41 Miss. 656 467 

Smith V. Chicago & N. W. Ry. Co., 49 Wi.s. 443 312 

Smith V. Liawrence, 26 Conn. 468 457 

Southern B. St L. Ass'n v. Norman. 98 Ky. 294 491, 494 

Southworth v. Smith, 27 Conn. 355 457 

Squire v. N. T. Cent. R. R. Co., 98 Mass. 244 317 

Stainback v. Read, 11 Gratt. 281 247 

Stames v. Railroad, 91 Tenn. 516 318 

State V. Central Pac. R. R. Co., 21 Nevada, 270 287 

State V. Dulutb G. & W. Co., 76 Minn. 96 500 

State V. Hirzel, 137 Mo. 435 72 

Slate V. Johnson, 13 Fla. 33 73 

State V. McGinnls, 34 Ind. 452 287 

State V. Poynter, 59 Neb. 417 496, 498, 501 

Steel V. Smelting Co., 106 U. S. 447 420 

Stetson V. Riggs, 37 Neb. 797 119 

Stewart v. McHarry, 159 U. S. 643 418 

St Louis, etc Ry. Co. v. Lesser, 46 Ark. 236 320 

St Louis Mut Life Ins. Co. v. Cravens, 69 Mo. 72 59 

Stockton V. Bishop, 4 How. 155 312 

Stoddard v. Lord, 36 Oregon, 412 206 

Taylor v. Guest. 58 N. Y. 262 120 

Tenney v. Berger, 93 N. Y. 524 169 

Teralta L. & W. Co. v. ShaflCer, 116 Cal. 518 398 

Thomburg v. Savage Mining Co., 7 Morr. Min. R. 680 545, 546, 548 

Tod V. Gurney Ranch Co. (Kan.), 53 Pac. 789 466 

Toledo, etc. Ry. Co. v. Craft, 62 Ind. 395 225 

Topeka Water Supply Co. v. Roberts, 45 Kan. 363 281 

Trltlipo V. Lacy, 55 Ind. 287 225 

Trustees v. Greenough, 105 U. S. 527. 234 

Tunno v. Internation, etc. Co., 34 Fla. 300 467 

Tuttle V. Claflin, 88 Fed. 122 234 

United States v. Hartwell, 6 Wall. 385 897 

United States Exp. Co. v. Ellyson, 28 Iowa, 370 494 

University of California v. Bernard, 57 Cal. 612 501 

Valleau v. Superior Court, 62 Cal. 290 339-340 

Van Home v. Henderson, 37 Fla. 354 467 

Vermillion A. W. etc. Co. v. City of Vermillion, 6 S. Dak. 466 194 



XXVI Table of Oases Cited. 

Vick V. Smith, 83 N. Car. 80 440, 441 

Vollrath V. Crowe, 9 Wash. 374 573 

Vosburgh v. Huntlngrton, 15 Abb. Pr. 254 448 

Wabash Ry. Co. v. Brown, 152 111. 484 327 

Wallace v. Branch Bank. 1 Ala. (N. S.) 565 248 

Warren v. Mayor, etc. of Charlestown, 2 Gray, 84 496 

Waterman v. Banks. 144 U. S. 394 478 

Weil V. Jones. 53 Cal. 46 476 

Wells V. Harter, 56 Cal. 342 439 

Westbrook v. Schmaus, 51 Kan. 214 466 

Western Ranches v. Custer County, 89 Fed. 577 281, 283 

Western Union Tel. Co. v. Semmes, 73 Md. 9 169 

Western Union Tel. Co. v. State Board, 80 Ala. 273 494 

White V. Furgeson, 29 Ind. App. 144 245 

White V. Smith, 39 Kan. 752 120 

Whitmore v. S. F. Savings Union, 50 Cal. 146 254 

Whittenton Mfg. Co. v. Memphis, etc. Packet Co., 21 Fed. 896 311, 312 

Williams v. Morgan, 111 U. S. 684 234 

Williams v. Uncompahgre Canal Co., 13 Colo. 469 ^ 353 

Winton v. Spring, 18 Cal. 452 *.... 476 

Witting V. St. Louis & S. P. Ry. Co., 28 Mo. App. 110 315 

Witting V. St. Louis & S. F. Ry. Co., 101 Mo. 634 326 

Wright V. Estlick, 125 Cal. 517 ^ 573 

Wright V. Snowball, 45 Cal. 654 83 

Wunderlin v. Cadogan, 75 Cal. 617 144 

Wyoming Nafl Bank v. Brown, 7 Wyo. 502 293 

Yocum V. First Nafl Bank, 144 Ind. 272 287 

York Company v. Central R. R. Co., 3 Wall. 107 323 

Young V. Salt Lake City, 24 Utah, 321 501, 503 



CASES DETERMINED 



IN THE 



SUPREME COURT 



AT THE 



MARCH TERM, 1903. 



The Hon. Theo. Brantly, Chief Justice. 

Associate Justices. 



The Hon. George R. Milburn, i 



The Hon. William L. Holloway, j 



Commissioners: 

Hon. John B. Clayberg,* 
Hon. Lew L. Callaway,* 
Hon. W. H. Poorman.* 



QuallAed April l, 1903. 



COLEMAN, Respondent^ v. PERRY et al.^ Appellants- 

(No. 1,506.) 
(Submitted March 21, 1903. Decided April 6, 1903.) 



28 


1 


88 


61 


28 


90 


28 


1 


30 


68 


30 


336 


28 


1 


29 


883 



Master and Servant — Injury to Employe — Motion for NonsuU ^ ^^j 

— Question for Jury — Defective Machinery — Assumption of ^ \ 

Risk — Instructions — Pleading. ^ ^ 

|28 1 

1. On motion for a nonsuit every fact will be deemed proved which the evl- |'*^ *^^ 

dence tendB to prove. 

vot. xxvni-i 



2 COLEMAN V. Pbrby et ai,. [Mar. T.*03 

2. Evidence in an action by an employe for injuries received from machiney 
held sufficient to warrant the submission of plaintiff's case to the Jury, 
and that a motion to nonsuit was properly denied. 

8. Whether a laundry mangle Is defective is a proper subject for expert evi- 
dence. 

4. Code of Civil Procedure, Section 1171 , Subdivision 1, authoriaes a new trial 
for any irregularity or abuse of discretion preventing a fair trial. Section 
1172 requires that when application is made for such a cause it must be 
upon affidavits. Held, that the failure to show by affidavit an alleged error 
of the court in commenting on the probable effect of evidence at the time of 
its reception precludes its review on appeal. 

5. The question whether the danger of operating a particular laundry mangle 
is so obvious that an inexperienced employe could not fail to notice and 
avoid it in exercising ordinary care, is for the jury. 

6. Civil Code, Section 4330, provides that for the breach of an obligation not 
arising from contract the measure of damages is the amount which will 
compensate for all the detriment proximately caused thereby, whether it 
could have been anticipated or not. Held, that an Instruction^ n an action 
by an employe, that, if she was injured by defendants' negligen^'e, she was 
entitled to recover what would compensate for all damage "proximately 
caused by the negligence of defendants, whether such damage could be an- 
ticipated or not," was not objectionable for failing to specify by whom the 
damage need not be anticipated, where there is no showing in the record 
that appellants asked for any more definite declaration upon the subject. 

7. The doctrine of assumption of risk has no application to a case where an 
Inexperienced laundry employe Is directed to feed a mangle, the work re- 
quiring experience, and the employe receiving no instruction, notice, or 
warning of defects. 

8. Under Code of Civil Procedure, Section 720, requiring a reply only when 
the answer contains a counterclaim, failure to reply in a personal Injury 
case does not admit allegations of contributory negligence. 

Ms. Justice Milbubm dissenting in part. 

Appeal from District Court, Silver Bom County; John Lind- 
say, Judge. 

Action, by Elizabeth Coleman against Oliver N. Perry and 
others. From a judgmeint in favor of plaintiff and from an 
order denying a motion for a new trial, defendants appeal. 
Affirmed. 

Messrs. Handlton & Thresher, for Appellants. 

When all the facts upon which the opinion is founded can be 
ascertained and made intelligible to the court or jury, the opin- 
ion of witnesses is not to be received in evidencei (Sa^enfield 
V. Main St. By. Co., 27 Pac 590 (Cal.) ; Ferguson v. Hubble, 
97 N. T. 507.) 

The remarks of the court in the presence of the jury was pre- 



28 Mont] Coleman v, Perey et al. 3 

judicial error. (Sappenfield v. Mam St. By. Co., 27 Paa 593 
(CaL) ; N alley v. Carpet Co., 51 Oonn. 524; Morse v. Ry. Co., 
30 Minn, 465 ; Corcoran v. PeeksleUl, 108 K Y. 151.) 

An emploiye knowing the nature of the service to be rendered 
and being able to foresee or anticipate any danger or injury 
that may come to him or her because of auch employment, is 
preBiimed to have assumed the risk of such employment and 
can not recover. (Ooodwell v. M. C. Ry. Co., 18 Mont 298; 
Chicago Ry. Co. Y.Ross, 112 U. S. 377; 14 Am. k Eng. Enc 
of Law, page 852 ; JowmeoAix v. Stafford Co., 81 Is. W. 259 ; 
Sappenfield v. Main St. Ry. Co., 27 Pac. 593 ;DeForest v. Jew- 
ett, 23 Hun. 490; Richards v. Rough, 18 K W. 785.) 

Conflicting and contradictory instructions upon a material 
point are misleading to the jury and ground for reversal. (Heil- 
bronner v. Lloyd, 17 Mont 307 ; Flick v. Mvrmig Co., 8 Mont 
305.) i '; 

The trial court correctly stated the law in instruction No. 12. 
(McAndrews v. Ry. Co., 15 Mont 290 ; 14 Am. & Ehg. Ency. 
of Law, page 852.) 

If the plaintiff knew that the machine in question was out 
of repair in such a way as to be dangerous to her, and failed 
to mention the fact to her employers, and continued to operate 
it without complaint, she is presumed to have undertaken the 
risk and cannot now recover. (Bogenschutz v. Smith, 1 S. W. 
578 (Ky.) ; Latwng v. Ry. Co., 49 K Y. 521; Kelly v. Ry. 
Co., 29K W. 173 (Minn.) 

Mr. Guy L. Reed, Mr. Peter Breen, and Mr. Rohcrt Mc- 
Bride, for Eespondent 

Master is bound to furnish reasonably safe machinery for the 
use of his servants. (Beach on Negligence, p. 350 ; 2 Thomp- 
son on N'eg. p. 972 ; Sherman & Eedfield, p. 197 ; Bailey, Mas- 
ters' Liability, Chap. II ; Johnston v. B. & M. Co., 6 Mont 
178.) 

When one Tvho is known to be an inexperienced person is put 



4 Coi-EMAN V. Pbrey et al. [Mar. T.'OS 

to work upon dangerous machinery the employer is bound to 
give him such instructions as will cause him to fully understand 
the danger attending the employment and the necessity for care. 
(Verdelli v. Grays Harbor Cow/mercial Company, 47 Pac. 364 ; 
Ingerman v. Moore, 90 Cal. 410, 27 Pac 306 ; Jones v. Mining 
Co., 66 Wis. 277, 28 K W. 210; Verdelli v. Grays Harbor 
Commercial Co., 47 Pac. pp. 365-367 ; Nadeau v. White River 
Lumber Co., 43 N. W. 1138 ; Neilon v. M. & M. Paper Co., 
4A N. W. 774; WolsU v. Knapp, Stout & Co., 63 N. W. 87; 
Arizona Lurnber Co. v. Mooney, 33 Pac. 590-592 ; McDaugaLl 
V. Ashland Sulphite-Fiber Co., 73 K W. 330.) 

One who is well acquainted with the use of a mechanical ap- 
pliance is competent to testify as to whether such an appliance 
was reasonably adapted for the purpose for which it was used, 
and also as to its condition at the time of the accident. (Bail^, 
Masters' Liabilities, p. 534 and cases cited; Alabama Connells- 
ville Coal & Iron Co. v. Pitts., So. Rep. 13, 135 ; Blogett Paper 
Co. V. Farmer, 41 N. H. 389.) 

Evidence of similar accidents resulting from the same cause 
is competent to show dangerous condition of machine. (Bailey 
on Masters' Liabilities, pp. 515 and 520; Morse, Adm*x, v. 
Minneapolis & St. L. R. R., 16 N. W. 358 ; Quinlan v. Utica, 
11 Hun. 217, affirmed, 74 N. T. 603 ; District of Columbia v. 
Armes, 107 U. S. 519.) 

A wrong reason for a correct ruling will not invalidate the 
ruling. (Brown v. Barnes, 39 Mich. 211 ; Hayne, New Trial 
and Appeal, p. 384, and cases cited.) 

Errors in law are errors in rulings made by Uie court upon 
questions presented during the trial. (Hayne, Ifew Trial and 
Appeal, p. 100.) 

An irregularity of the ciourt is not an error of law, within 
the meaning of the law. Errors in law only occur when there 
are rulings made at the trial upon questions of law. (Hayne, 
New Trial and Appeal, p. 29.) 

The statement itself was not the ruling, and if appellant's 
contention is correct, that the court did not correctly state the 



28 Mont] C!oLEMAN v. Perby et al. 5 

law, it is not an error of law but rather an irregularity on the 
part of the court {McMirm v. Whelwn, 27 Cal. 320.) Our 
Code has provided that in &uch case the application for a new 
trial must be made upon aflSdavits. (Sections 1171 and 1172, 
Code of Civil Procedure, ) 

MR JUSTICE HOLLOWAY delivered \he .pinion of tiie 
court 

This action was brought by the plaintiff, Elizabeth C6leman, 
against the defendants, as copartners operating the Union Steam 
Laundry, in. Butte, Montana, to recover damages for personal 
injuries received by her while at work in that laundry. The 
plaintiff claims that she was employed to check the laundry 
when it came in, to fold it after it had passed through the dif- 
ferent processes of laundry, and check it out again; that on 
February 3, 1896, she was directed by one of the defendants to 
work on the mangle or ironing machine, feeding the fabrics into 
it ; that while engaged in this occupation, without any negligence 
on her part, her hand was caught, crushed, and burned in the 
mangle, by reason of which she suffered great personal injury 
and damages. She further claims that the defendants were 
guilty of negligence in keeping for use and permitting to be 
used an ironing machine which was out of repair, and in an 
unsafe condition for operation. The answering defendants 
d^iy any negligence on their part, plead contributory negligence 
on the part of the plaintiff, and set up in their answer that the 
danger incident to the operation of the mangle was one of the 
risks of the employment, which the plaintiff assumed when she 
went to work. Uipon the trial of the cause, at the close of the 
plaintiff's testimony, the defendants interposed a motion for 
nonsuit, which was overruled. Among others the court gave 
instruction No. 2, which is as follows: "The court instructs 
the jury that if the jury find from the evidence that plaintiff 
has been injured by the negligence of the defendants, substan- 
tially as set forth in her complaint, then she is entitled to re- 
cover from the defendants such an amount aa mil compensate 



6 Ooi-EMAisr V. Pebey et ai*. [Mar. T/03 

her for all the damage proximately caused by tha negligence of 
defendants, whether such damages could be anticipated or not'' 
The jury returned a verdict in favor of plaintiff for $2,100, 
and from the judgment and an order denying defendants' mo- 
tion for a new trial theee appeals are prosecuted. 

The contention of the plaintiff was that she was employed to 
do particular work which would not, in any event, bring her 
into contact with the laundry machinery ; that she had had no 
previous experience in laundry work; that she knew nothing 
whatever about the machinery; that, as a matter of fact, the 
mangle in use was out of repair, and in a dangerous condition ; 
that the rollers were not operating evenly ; that it was necessary 
for the person feeding it to place the left hand much nearer the 
rollers than the right, in order to get the fabrics through ; that 
all of these facts were unknown to her ; that there was no guard 
on the machine to protect the operator; but, notwithstanding 
her inexperience, and the fact that she had been employed to do 
other work, she was directed by one of the copartners on the 
morning of her injury to feed this mangle; that she was not 
cautioned, instructed, or notified as to the dangerous character 
of her employment ; and that it was without fault on her part 
that she received the injury. The evidence offered on her be- 
half tended to prove this contention, and under the rule, well 
established, that on motion for a nonsuit every fact will be 
deemed proved which the evidence tends to prove {State ex rel, 
Pigott V. Benton, 13 Mont 306, 34 Pac 301 ; Morse v. Granite 
County Commissioners, 19 Mont 450, 48 Pac. 745 ; Cavn v. 
Gold Mt, Mining Co., 27 Mont 529, 71 Pac. 1004), flie evi- 
dence should have gone to the jury, and the motion for nonsuit 
was properly denied. 

Complaint is made that the witnesses Lewis and Stanhope^ 
for the plaintiff, were each permitted to state, in answer to a 
hypothetical question, that, in his opinion, the mangle was out 
of repair. The contention is that, a description of the machine 
having been given by other witnesses, the jurors were as well 
qualified to say whether or not the machine was out of order as 



28 Mont] Coleman v. Pbkry bt al. 7 

the witnessea whose opinions were given; or, in other words, 
that this was not an instance where expert testimony should have 
been received. We are of the opinion, however, that the evi- 
dence was properly admitted. We cannot say, as a matter of 
law, that -the jurors were as competent to pass upon the safety. 
of the appliances used as men who had special knowledge, gained 
from years of experience in handling such machinery. (Law- 
son, Expert and Opinion Evidence (2d Ed.) 78.) In Lau v. 
Fletcher, 104 Mich. 295, 62 N. W. 357, the court had imder 
consideration a personal injury case. The imdisputed facta 
were that a circular saw used in a pulpmill having been broken, 
the employer took another saw, which had a crack in it, had 
some repairing done on it, put it in place, and, the employe 
having been injured when this saw broke, it became a material 
question as to whether the employer had used reasonable care 
in providing safe appliances for his employe to use. In sup- 
port of his contention that he had not been guilty of negligence, 
the employer offered and had admitted in evidence the opinions 
of experts to the effect that the saw used was suitable and safe 
.for use, and upon this the suprenie court- makes this comment: 
'^e think the testimony was properly admitted. It cannot be 
said that one unfamiliar with the use of such machines is as 
com^petent to judge of their safety and fitness as those experi- 
enced and skilled in their use, and who have knowledge of their 
construction." 

Upon croesrexamination of one of the defendants, plaintiff's 
counsel sought to show that soon after plaintiff was injured the 
defendants undertook to put a guard on the mangle, and in rul- 
ing upon an objection made by counsel for defendants the dis- 
trict court used this language: "I shall allow the testimony 
sought to be adduced to go to the jury, believing that, if it can 
be shown that the defendants here realized that the machine in 
question was defective, and that they sought, within a few days 
after the injury to this plaintiff, or after the alleged injury, to 
cure or remedy such defect, for the reason that it would tend to 
show that at the time of the injury the machine was then de- 



8 C5oLBMAN V, Pebry et al. [Mar. T.'OS 

fective. The witness may answer the question." Exception 
was taken to the language used by the court in the presence of 
the jury, and it is now urged here that this was prejudicial 
error. If error was oonmiitted, it was because of the irregu- 
larity or abuse of discretion on the part of the trial court in 
thus freely escpressing before the jury an opinion upon the prob- 
able effect of evidence. If the language of the court so used 
constituted error, it is one of the designated causes for which a 
new trial may be granted. (Section 1171, Subd. 1, Code of 
Civil Procedura) However, such error can only be shown by 
affidavit, otherwise it is not properly in the record or before this 
court (Section 1172, Code of Civil Procedure) ; and, as the 
alleged error was not so saved, consideration of the matter is 
not propferly before this court upon this hearing. In this con- 
nection it may be said that we are not asked to pass upon the 
action of the court in admitting the evidence with reference to 
which the remarks weie mada 

It is further contended on the part of the defendants that the 
danger of operating this mangle was a risk incident to the em- 
ployment of the plaintiff, and one which she assumed when she 
went to work. The question whether or not the dangers of 
operating this particular machine were so obvious that even an 
inexperienced person could not fail to notice and avoid them 
if exercising ordinary care and prudence, was for the jury's 
solution under proper instructions. 

Particular complaint is made of instruction No. 2, above. 
Under Section 4330 of the Civil Code, which provides: "For 
the breach of an obligation not arising from contract, the meas- 
ure of damages, except where otherwise expressly provided by 
this Code, is the amount which will compensate for all the detri- 
ment proximately caused thereby, whether it could have been 
anticipated or not," we are of the opinion that the instruction 
is not open to the objection made to it. In any event, there is 
no showing in the record that the defendants asked for any more 
definite- declaration upon the subject. 

There is no dispute in the record that the plaintiff was em- 



28 Mont] Coleman v. Pbrbt et al. 9 

ployed to check and tally the articles of laundry, and in the 
discharge of this duty she did not come in contact with the laun- 
dry machinery at all. In view of the plaintiff's testimony that 
she knew nothing whatever about the machinery, and the de- 
fendant Congdon's testimony that the feeder of tho mangle must 
know her business, and that he did not know whether the plain- 
tiff had any knowledge of the machinery or not, and her further 
testimony that she was directed by Coddington, one of the co- 
partners, one of the defendants, and the foreman of the laundry, 
to feed the mangle on the morning of the accident, and that she 
received no instructions, notice, or warning, it ia pertinent to 
suggest that the rule that employes assume the risks incident 
to the employment has no application to the facts of this case 
as found by the general verdict of the jury. In Felton v. Oir 
rardy, 43 C. 0. A. 439, 104 Fed. 127, the court, after stating 
the general nde, said : "But when a servant is ordered by one 
having authority over him to do a temporary work beyond the 
work which he had engaged to do, and the superior knows, or 
ought to know, from all the circumstances of the case, that the 
work which the subordinate is directed to do is of a peculiarly 
dangerous character, and is aware, or under the circumstances 
should be aware, that the risks and hazards of the work, or the 
proper mode of doing the work to avoid the incident risks, are 
not obvious or known and appreciated by the subordinate, by 
reason of his youth, incapacity, or inexperience, it is the duty 
of the superior to caution and instruct such disqualified servant 
safHciently to enable him to understand the dangers he will en- 
counter, and how to do the work with safety if he exercise due 
care himself. {Leary v. Railroad Co,, 139 Mass. 580, 2 N". E. 
115, 62 Am. Eep. 733; Cole v. Railway Co., 71 Wis. 114, 37 
X. W. 84, 5 Am St. Rep. 201.) * * * The principle is 
that, if an employer knows that the servant will be exposed to 
risks and dangers in any labor to which he assigus him, and is 
aware that the servant is from any cause disqualified to know, 
appreciate, and avoid such dangers, the dangers not being ob- 
vious, the master is guilty of a breach of duty, unless he gives 



10 Coleman v, Pebby bt al. [Mar. T.'OS 

such reasonable cautions and instructions as should reasonably 
enable the servant exercising due care to do the work with safety 
to himself." 

It is further contended that the allegations of contributory 
negligence contained in the defendants' answer, being undenied 
by a reply, are admitted. At the time the pleadings were pre- 
pared and the issues made up, Section 720 of the C5ode of Civil 
Procedure was in force, and a reply was required only when the 
answer contained a counterclaim. This section was afterwards 
amended by Act of the Sixth Legislative Assembly (Laws of 
1899, p. 142), but this was long after the issues were made up 
in this action. 

The other particulars to which our attention has been called 
do not merit special mention. 

The evidence is sufficient to sustain the verdict. We find no 
error in the record. 

The judgment and order appealed from are affirmed. 

AfprmecL 

Mr. Justice Milburn : I dissent. A jury trying a damage- 
suit wherein a woman is trying to recover compensation for in- 
juries to her hand which has been crushed and mutilated by the- 
defendants' machine, in my opinion, should not be given an in- 
struction such as ISTo. 2 herein. This instruction is not in the 
language of the Civil Code, Section 4330, quoted by Mil Just- 
ice HoLLOWAY. If the instruction, like the section of the Code, 
be ambiguous, in tliat it does not say in plain language that the 
defendant, and not the plaintiff, is referred to as the person 
who could or could not anticipate the detriment, then it should 
not have been given. It would not, in my opinion, relieve the 
situation to say that the section of the Code is as ambiguous ag^ 
the instniction. The language of the Code is not always a safe 
and sure means of conveying thought, or of stating the law to 
a juror. (State v. Baker, 13 Mont. 160; 32 Pac. 647 ; State v. 
Shafer, 26 Mont. 11, 66 Pac 463 ; State v. FelJcer, 27 Mont. 



28 Mont.] Colusa Pabbot M. & S. Co. v. Barnakd. 11 

451, 71 Pac 668.) As was said in the Shafer Case: "Jurors 
are not learned in the law. Ordinarily, they have not experi- 
ence and knowledge sufficient to enable them to draw nice dis- 
tinctions necessary in the application of legal principles, and, 
unless the court oomes to their assistance, and declares these 
distinctions so that they may understand and apply them, they 
are left to grope in confusion and uncertainty." The instruo- 
tion easily could be understoodi by a juror as mean- 
ing that the woman could recover even though she could 
reasonably see the danger and anticipate the damage; even if 
the machine was such as was obviously very dangerous, and 
certain to cripple her if she undertook to operate it. Jurors 
cannot be expected, comparing all the instructions, to resolve 
all doubts as to what th^ mean, and to draw fine distinctions. 
I think injustice may in many cases be anticipated if such an 
instruction be given to twelve men who are asked by a woman 
to award h^r compensation for the crippling of her hand. 



COLUSA PAEJROT MINING & SMELTING COMPANY^ 
Appellant, v, BAKNAED et ax... Respondents. 

(No. 1,786.) 
(Submitted April 2, 1903. Decided April 11, 1903.) 

Injunction Pendente Lite — Refusal — Appeal—Admission of 
Incompetent Evidence — Cross-Eocamination — Presumptions 
— Costs. 

1. Upon an appeal from an order refusing an injunction pendente lite, the 
principal question for consideration is whether, upon the evidence intro- 
duced at the hearing, the court below manifestly abused its discretion in 
refusing the injunction. 

2. An admission of incompetent evidence on the hearing of a motion for an 
injunction pendente lite is not ground for reversal in view of the presump- 
tion that the court acted only on the competent evidence adduced. 

3. In view of the presumption that the court below did not consider incompe- 



12 Colusa Pabrot 1L & S. Co. v. Babnabd. [Mar. T.'OS 

tent testimony in refusing an injunction pendente lite, improper cross- 
ezaminatlon of plaintiff's witnesses is not ground for reversal, no injury 
baring been sbown. 

4. Tbe power to allow costs is purely statutory, and unless some statutory 
authority exists for their allowance, an allowance thereof is erroneous. 

5. An allowance to defendant, on the refusal of a motion for an injunction 
pendente lite, of "all costs,*' is erroneous. 

-6. Evidence sufficient to authorize a preliminary injunction or its refusal, is 
not necessarily sufficient to maintain a like decision upon the final trial 
on the merits. - 

Appeal from District Court, SUver Bow Co^irUy; Willia/m 
Clancy^ Judge. 

Suit by the Colusa Parrot Mining & Smelting Company 
against A. W. Barnard and others. Prom an order refusing an 
injunction pendente lUe, plaintiff appeals. Modified. 

Messrs, Roote & Clark, and Mr. Walter M. Bickford, for 
Appellant. 

The deed of a corporation, signed by its proper officers and 
having the seal of the corporation, is admissible in evidence 
without further proof. {Crescent City, etc., Co. v. Simpson, 
77 Cal. 286 ; Bliss v. Kaweah C. & I. Co., 65 OaL 502 ; Miners' 
Ditch Co. V. Zellerbach, 37 Cal. 543 ; UnderhUl v. Santa Bar- 
bara, etc., Co., 93 Cal. 300.) 

The exclusion of proper evidence is error, which must result 
in the reversal of the order of the court refusing to grant the 
injunction. (Bennett Bros. v. Congdon, 20 Mont 208.) 

The source of a stream cannot be interfered with. The 
springs which supply its waters, or the tributaries which con- 
duct portions of the same, are a part of the stream, and their 
waters before reaching the stream as much a part of it as after 
the same have commingled with its waters. (Sfrichler v. City 
of Colorado Springs, 26 Pac 313; Ely v. Ferguson, 27 Pac 
587 ; Brown v, Ashley, 16 Nev. 317 ; Cross v. KUts, 69 Oal. 
217; Bameich v. Mercy et al., 68 Pac. 689.) 

If the testimony in the case established that an appropriation 
or location and use of the waters of Silver Bow and Black Tail 
Deer creeks was made for the purpose of the reduction plant, 



28 Mont] OoLusA Pabrot M. & S. Co, v. Babnakd. IS 

then the plaintiff was entitled to use sufficient water to operate 
it at any time, although the amount necessary at a later period 
was greater than the amount at an earlier period by reason of 
the enlargement of the works, provided, of course, that not more 
than one thousand inches claimed was used or being used by the 
plaintiff. (McDonald v. Larmen, 19 Mont 78; Salazer v. 
Smart, 12 Mont 395; Murray v. Tvngley, 20 Mont 260.) 

Even if the defendants had a riparian right in the waters of 
Black Tail Deer creek, which they have not, they could not be 
permitted to dam and reservoir the water. (Ferria v. Kruipe, 
28 Cal. 340; Bameich v. Mercy et al,, 68 Pac. 589.) 

The Parrot Silver & Copper CJompany is a corporation. Its 
manager had no right or authority to make a verbal lease, or 
any other kind, without being vested with special delegated 
authority from the company therefor. {Butte & Boston Con. 
Mining Co. v. Montana Ore Purchasing Co,, 21 Mont 539.) 

The appellant has the right to the use of 300 inches of water, 
the same being necessary for the operation of its reduction plant 
as it now exists. (McDonald v. Laawien, 19 Mont 78 ; Sdlaza/r 
v. Smart, 12 Mont 395 ; Murray v. Tvngley, 20 Mont 260.) 

Girton and his successors in interest, the respondents herein, 
have no right by virtue of any claim of appropriation of use of 
the water for irrigation purposes to any water beyond the water 
that was used or necessary for use for irrigating purposes on the 
Girton homestead. (Po^ver et cd. v. Swiizer, 21 Mont. 523 ; 
Tooh^y V. Campbell, 24 Mont 17.) 

The change in use by the respondents deprives the appellant 
of its right to use the water, and therefore the respondents have 
no right to interfere with the water in this manner or to main- 
tain said dams or reservoirs or to store any water therein. (Co- 
lumbia M, Co. V. Holier, 12 Mont 296; Creek v. Bozenum W. 
W. Co., 15 Mont 128 ; Oassert v. Noyes, 18 Mont 220 ; Last 
Chance Co. v. Bur^erhill Co., 49 Fed. 434 ; Note 8, Vol. 17, 
p. 604, Am. & Eng. Ency. of Law.) 

Mr. Peter Breen, and Messrs. McBride & McBride, for 
Sespondents. 



14 Colusa Pabbot M. & S. Co. v. Basnakd. [Mar. T.^03 

It appears to the respondents that there is but one qne&tion 
involved in this appeal. Does tlie evidence show an abuse of 
discretion by the trial court in making the order ;.omplained of ? 
If notj then the order of the lower court should be sustained. 
(Montana Ore Purchasing Co. v. B. & B. Con. Mining Co., 26 
Mont. 427 ; Anaconda C. M. Co. v. Heime et al., 27 Mont) 

A water right can exist wholly separate and apart from a title 
to land. {8mi{k v. Denmff, 24 Mont 20 ; Twohy v. Campbell, 
24 Mont 13.) Where there is nothing to show that the waters 
of a spring or well are supplied by any defined flowing stream, 
the presumption will be that they have their source in the ordi- 
nary percolation of the waters through the soil. Percolating 
waters and those whose sources are unknown, belong to the really 
<m which they are found. Such a spring belongs to the owner 
of the land. It is as much his as the earth or minerals beneath 
the surface, and none of the rules relating to watercourses and 
diversions apply. {WUlow CreeJc Irrigation Co. v. Michaelson^ 
61 L. R A. 282, citing Bloodgood v. Ayers, lOS K T. 400 
Crescent Mi/ru Co. v. Silver King Min. Co., 17 Utah, 444 
Kinney on Irrigation, Sec. 48 ; Hanson v. McCue, 42 Cal. 303 
Bouthem Pacific R. R. Co. v. Dufovr, 96 Cal. 616, s. c 30 Pac. 
783.) 

Water, whether moving or motionless, in the earth is not, in 
the eye of the law, distinct from the earth. (Roth v. Driscoll, 
20 Conn. 640; Hanson v. MeCue, 47 Cal. 303.) 

Where percolating waters are gathered in a stream running 
in a definite channel, no distinction exists between waters so 
Tunning under the surface or upon the surface of the land. 
(Cross V. Kits, 69 Cal. 222.) 

The amount of water which an appropriator is entitled to use 
— commonly designated as the extent of his appropriation — 
is a question of fact to be determined by a jury. The right of 
the prior appropriator in this respect is limited to the amount 
or extent of his actual appropriation as against s-'ubsequent ap- 
propriators and claimants; and he cannot, after their subse- 
-quent rights have attached, by changing the place or nature of 



28 Mont] Colusa Pakbot M. & S. Ck). v. Babnaed. 15 

his use, or by enlarging his works, or otherwise, extend his 
daim, or increase the amount of water diverted or used, to the 
prejudice of such subsequent parties. (Pomeroy on Water 
Eights, Sec. 85, citing, Nevada Water Company v. Powell, 24 
Cal. 109 ; Ortmaai v. Dixon, 13 OaL 33 ; Atchison v. Peterson, 
20 Wallace, 514; MacDonaM v. Lamjien, 19 Mont 82; Creek 
V. Bozeman Waterworks Co., 15 Mont 121; Oassert v. Noyes, 
18 Mont 222 ; Toohey v. Campbell, 24 Mont 17 ; Power v. 
Switzer, 21 Mont 523; Long on Irrigation, Par. 112, p. 214; 
West Point Irr. Co. v. Moroni & Mt. Pleasant Irr. Co., 61 Pac. 
16; Saint v. Ouerrerio, 17 Colo. 443, s. c 30 Pac. 335 ; Hill' 
man v. Newington, 57 Cal. 56.) 

MR. COMMISSIONER OLATBERG prepared the opinion 
for the court 

This is an appeal from an order refusing to grant an injunc- 
tion pendente lite restraining respondents from interfering with 
appellant's use of the waters of Blacktail Deer creek, in Silver 
Bow county, Montana, to which appellant alleges it has the 
prior right 

Under the former decisions of this court the principal ques- 
tion for consideration is whether, upon the evidence introduced 
at the hearing, the court below manifestly abused its discretion 
in refusing the injunction applied for. (Craver v. Stapp, 26 
Mont 314, 67 Pac 937; Nelson v. O'Neal, 1 Mont 284; Blue- 
bird Mimmg Co. v. Murray, 9 Mont. 468, 23 Pac 1022 ; Klein 
Y. Davis, 11 Mont 155, 27 Pac 511 ; Cotter y. CoUer, 16 Mont 
63, 40 Pac 63 ; Anaconda Copper Mirmvg Co. v. Butte & Bos- 
ton Mining Co., 17 Mont 519, 43 Pac 924 ; Heinze v. Boston 
& Montana C. C. & S. Mining Co., 20 Mont 528, 52 Pac 273 ; 
Boston & Montana C. C. & 8. Mimng Co. v. Montana Ore Pur- 
chasing Co., 23 Mont 557, 59 Pac 919.) 

The evidence submitted to the court below in behalf of the 
respective parties was very contradictory, and a review thereof 
seems unnecessary to this decision. Much competent testimony 
was introduced and received in behalf of respondents, tending 



16 Colusa Pabkot M. & S. CJo. v. Babnabd. [Mar. T.'OS 

to show their prior right to and use of the water in question. 
The weight of such testimony was for the court l)elow. There- 
fore this court cannot say that the discretion vested in that court 
was, upon the testimony adduced, manifestly abused. 

All the evidence offered by appellant which was excluded by 
the court was either immaterial in a preliminary hearing like 
this, cumulative, or offered by the appellant in its case in chief, 
instead of in rebuttal, as it should have been. At the close of 
appellant's case the court overruled a motion made by counsel 
for respondents to dismiss the application, thereby, in effect, 
holding that appellant had made a prima fade oase for the in- 
junction sought Appellant offered no evidence in rebuttal, but 
was content to rely upon the case it had made in chief. 

In answer to appellant's contention that much irrelevant and 
incompetent testimony was admitted at the hearing against 
the objections of its counsel, it seems sufficient to say 
that presumably the court did its duty, and based its decision 
upon such of the evidence as was competent, and did not con- 
sider such as was incompetent or irrelevant. (Montana Ore 
Purchasing Co. v. Butte & Boston Consol. Mining Co., 25 Mont 
427-432, 65 Pac. 420.) 

Counsel for appellant object to the character of <^e crossr 
examination of its witnesses by respondents' counsel. It must 
be remembered that this hearing was before the court u].on a 
motion. The methods of procedure in such cases are lai^ly 
within the discretion of the court, and will not be interfered 
with unless injury is shown. None is shown by appellant, and, 
in view of the presumption above stated, this court will not in- 
terfere. 

Appellant further assigns error upon the ruling of the court 
below in allowing costs to respondents. The language of the 
order complained of is, "And it is further ordered that the said 
Butte Ice Company and W. McC. White have and recover from 
the plaintiff all costs accruing upon the said order to show 
cause." 

The power to allow costs is purely statutory, and therefore, 



28 Mont] Colusa Pareot M. & S. Co. v. Barnard. 17 

iinless some statutory authority exists for their allowance in 
matters of this character, the allowance made was erroneous. 
The statutes of Montana allow costs to the prevailing party 
upon final judgments rendered in certain actions. (Code of 
Civil Procedure, Section 1851.) By Section 1853 costs are left 
to the discretion of the court in other actions. This section also 
provides that no costs shall be allowed in certain instances. 
Certain other sections of the chapters on costs allow thera 
in certain other proceedings in court, but there is no provision 
allowing costs upon motions concerning injunctions. In fact, 
Section 1861, Code of Civil Procedure, by providing that the 
losing party upon all motions must pay the other $10 "as costs," 
precludes the court from allowing any other costs. 

Counsel for respondents seek to justify this allowance under 
the provisions of Section 880 of the Code of Civil Procedure. 
This section provides as follows: ^'Where an injunction order 
is granted without notice, and the same is afterwards dissolved 
upon the application of the party enjoined thereby, the court 
or judge to whom the application to dissolve is made, may 
award as costs of the application against the plaintiff, and in 
favor of the party applying, such sum as to the court or judge 
may appear just^ not less than ten dollars, nor more than one 
hundred dollars." We think the provisions of this section are 
inapplicable to the present case. The record discloses no appli- 
cation on the part of respondents to dissolve any "injunction 
order." Again, in the application of the provisions of this sec- 
tion, the court or judge must fix a definite amount, not less than 
$10 or more than $100, which he awards "as costs" in favor of 
the person making the application. No sum is fixed here, but 
all costs are allowed. It is very apparent from the reading of 
the order made that the court did not have in mind, and did 
not intend to apply, the provisions of either Sections 880 or 
1861, supra, when he made the order appealed from. 
• We deem it proper to say that this court does not decide, or 
even intimate an opinion, as to whether the evidence offered 
would warrant a decision against the plaintiff on a trial of the 

Vol. XXVni-2 



28 18, 



18 Statx V. SJuoMES. [Mur. T,1IS 

etas ea its nieiitfi. The rule is well settled liiat evidence suffir 
CMBt te «utik<N-UBe e grairtiiig of a preiiminarj injunction or to ' 
warrant the refusal tbereof may not be soffideat to maintain a 
like <iecision upon a final trial of the action on its merits. 
(€raver y. Stapp, 2« Mont 814, 67 Pac. 937 ; Mal&ney v. Kimg, 
25 Mont 188, 64 Pac 851.) 

We therefore conclude that the court erred in allowing costs 
to respondents, and that the order appealed from ought to be 
modified in that regard hj striking out the provisions for costs, 
and, as so modified, be affirmed. 

Peb Curiam. — ^For the reasons contained in the forgoing 
opinion, the order appealed from is affirmed, with the modifi- 
cation suggested. 



STATE, Respondent, v. HARDEE, Appellant. 

(No. 1.879.) 
(Sabmitted April 3, 1903. Decided April 11. 1903.) 

Homicide — Evidence — Proof of Venue — Hofnicidal Moruh 
Tnaniof-^New Trial — Newly Discovered Evidence — CumuLor 
tive Evidence, 

1. In a proaecHtion for murder, evidence considered, and held to show that 
the crime was committed in the county alleged in the indictment. 

2. In a prosecution for murder, evidence considered, and held to show too 
much deliberation to be the result of any sudden impulse, and to be incom- 
patible with the theory that the defendant was afflicted with homicidal 
monomania. 

8. Where, in a prosecution for murder, the insanity of defendant was placed 
in issue, in support of which defendant called witnesses who testified, and 
the facts to be proved by newly discovered evidence were merely cumu- 
lative on that issue, and were not such as to make It clearly probable that* 
a different result would follow another trial, nor was it shown that they 
could not have been produced on the former trial by the oTerclse of reason- 
able diligence, a new trial was properly refused. 



28 ICout] Statb v. ICabdsx. 19 

Appeal from District Court, YMey County; John W, Tot- 
te»> Jydge. 

WiLLiAic R HisDEE was convicted of nuird^. From a judg- 
meat seatenciiig himi to death, and f roza an order denying him 
a new trial, he appeals. AffirmedL 

Mr, Oeorge E. Hurdj and Messrs. Nohm & Loch, for Appel- 
lant 

If thare is any evidence to establish the venue and the queE»- 
tion arises as to ite sufficiency, it cannot be considered upon an 
appeal from the judgment^ but where there is no evidence its 
absence becomes a qneetion of law and is reviewable upon such 
an appeal (Penal Code, Section 2321 ; Emerson v. Eldorado 
Ditch Co., 18 Mont 247; Withers v. Kem/per, 25 Mont 432.) 

In criminal prosecutions the venue is a jurisdictional fact 
and must be proved. (Brooks v. Sfaie, 120 Ala, 386; Fore- 
hand V. State, 53 Ark. 46 ; Moore v. People, 150 III 405 ; Har- 
lan V. State, 134 Ind. 339 ; State v. Young, 99 Mo. 284 ; Early 
V. Com., 93 Va- 765.) 

The proof of venue must affirmatively appear from the 
record on appeal. (HUe v. State, 9 Yerger, 357; Terry v. 
State, 22 Tex. App. 679.) 

When a bill of exceptions purports to set out all the evidence 
and the venue is not established, judgment will be reversed. 
(People V. Griffith, 122 CaL 212 ; Cathom v. State, 63 Ala. 
157; Harrison v. State, 3 Tex. App. 558.) 

The affidavits as to newly discovered evidence are uncontra- 
dicted. Under the peculiar conditions of this case the affidavits 
disclose a meritorious case where the application for a new trial 
upon this ground should be favorably considered. (Thompson 
on Trials, Sec. 2762 ; State v. Brooks, 23 Mont 146 ; Ander- 
son V. State, 43 Conn. 514; Denrds v. State, 103 Ind. 142. 

Mr. James Donovan, Attorney General, for the State. 

A new trial will not be granted on the grounds of newly dis- 



20 State i;. Hakdee. [Mar. T.'03 

covered evidence unless such evidence is material and would 
be likely to change the result, if the motion were allowed. 
{Territory v. Bryson^ 9 Mont 42, 22 Pac. 147; People v. De- 
masters, 109 Cal. 608 ; Shafer v. yViUis, 124 Cal. 36 ; People 
v. Warren, 130 Gal. 683 ; Davis v. State, 51 Neb. 360 ; Limr 
scott V. Inswrance Co., 88 Me. 497 ; Smith v. State, 143 Ind. 
685.) 

If the new evidence is cumulative, a new trial will not be 
granted. {Morse v. Swan, 2 Mont 307; People v. Kloss, 115 
Cal. 567; 1 Bish. New Criminal Procedure, Sec, 1279; Nor- 
folk V. Johnaki/n, 94 Va. 285 ; Sisler v. Shaffer, 43 W. Va. 
769; Condon v. Mead, 172 111. 13; Allhright v. Banna, 103 
la, 98; People v. Brittan, 118 Cal. 469; Kvhlman v. Bums, 
117 Cal. 409 ; Niosi v. Empire Steam Laundry, 117 Cal. 257.) 

A person seeking a new trial on the ground of newly discov- 
ered evidence must show that he could not have discovered the 
evidence and produced it on the trial by any reasonable dili- 
gence on his part. Strict proof must be made on this point, 
and facts, not conclusions, stated in the moving affidavits from 
which the court may draw the conclusion that due diligence 
was used. {Bradley v. Norris, 67 Minn. 48 ; I/iJcens v. Oar- 
ret, 2 Kans. App. 722 ; Butter v. Vassavlt, 40 Cal. 74 ; People 
V. Chvng Hing Chang, 74 Cal. 389; People v. Urqvidas, 96 
Cal. 239.) 

The moving party must show by his own affidavit that the 
new evidence was not known to him at the time of the triaL 
Upon that question the affidavits of other persons are not suffi- 
cient {Arnold v. Skaggs, 35 Cal. 684.) 

An application for a new trial on the ground of newly dis- 
covered evidence should be regarded with distrust and disfavor. 
{People V. Howard, 74 Cal. 547; People v. Sutton, 73 OaL 
243; Tibet v. Tom Sue, 125 Cal. 544.) 

And a party who relies upon that ground must make a 
strong case, both in respect to diligence on his part in prepar- 
ing for the trial, and as to the truth and materiality of the 
newly discovered evidence, and that, too, by the best evidence 



28 Mont] State v. Hasdee. 21 

obtainable, and if he fails in either respect his motion must 
be denied. (People v. Freeman, 92 Cal. 359.) 

The granting of a new trial on this ground is largely a matter 
of discretion, the exercise of which will not be disturbed by 
the appellate court except in the case of an abuse clearly dis- 
closed by the record. (O^Rovrke v. Vennekohl, 104 Cal. 254; 
Heintz v. Cooper, 104 Cal. 668 ; People v. Rushing, 130 Cal. 
449; People v. Mitchell, 129 Cal. 584.) 

MR, COMMISSIONER POORMAlSr prepared the opinion 
for the court. 

On the 26th day of September, 1901, an information was 
filed against the defendant in Valley county, charging him 
with the crime of murder in the first degree^ for killing Charles 
Snearly in that county. 

The defendant was apprehended and arrested on or about 
the 11th day of September, and placed in jail at the county seat 
of said county on or about the 12th day of the same month, 
where he remained continuously until the time of his trial. 
On November 27, 1901, counsel for the defense called the at- 
tention of the trial court to the fact that the defendant was, in 
his judgment, mentally incompetent to furnish his counsel with 
any of the facts necessary in the preparation of his defense. 
The court thereupon made an order requesting that Drs. Hoyt, 
Clay, Meminger, and Atkinson, four regularly licensed and 
practicing physicians in said county, examine the defendant as 
to his sanity. This examination was made on the 28th day of 
November, and the physicians so appointed reported to the 
court that they found the defendant physically broken down 
from the use of morphine and opium, but that he was at the 
time of said examination mentally sound. The trial was then 
proceeded with, the defense being insanity ; it being sought to 
be shown that the defendant's mental derangement took the 
form of homicidal monomania, A verdict of guilty of murder 
in the first degree was rendered. Judgment sentencing de- 



22 State v. Habmtb. [Mar. T/03 

fendant to death waa entered. Tbe motion was then made for 
a new trial on the ground of newly discovered evidence^ which 
motion waa overruled. From this judgment, and from the 
order overruling the motion for a new trial, the defendant ap- 
peals. 

Two assignments of error are contained in the record : First, 
that the record fails to show that the offense was committed 
in Valley county; second, that the court erred Jn refusing to 
grant a new trial on the ground of newly discovered evidenccw 

1. The record before us contains all the evidence in the 
cause. On the first assignment of error, we find these material 
facts established : Mrs. Alice Smith, a witness* on behalf of 
the state, testifies : "I am the wife of J. P. Smith, called T>oc 
Smith.' My residence is about eighteen or twenty miles north 
of Culbertson, in this county and state. I was at home at my 
house on the 9th of September of this year, and know the de- 
fendant, William E Hardee. I know Charles Snearly." The 
witness then proceeds to relate the circumstances of the 
killing, which occurred there on the evening of that day. She 
further says that she started to Culbertson that evening with 
the men who were taking the deceased in, and continued with 
them until she met her husband, when she came back home 
with him, Fred Wagar, another witness on the part of the 
state, testifies: "My home is in N"orth Dakota, The early 
part of last September I was in the state of Montana, on Doc 
Smith's ranch, near Culbertson, in this county." The witness 
then proceeds to detail the circumstances of the killing as it 
occurred there at Smith's place on the 9th day of September. 
J. P. Smith testifies : "My name is J. P. Smith. I live fifteen 
miles from Culbertson. Mrs. Smith, a witness in this case, is 
my wife. . I live north of Culbertson, in Valley county, state 
of Montana. On or about the 9th of September of this year I 
was at Culbertson. I went home that night or the next morn- 
ing. On the way home I met the wagon bringing Snearly into 
town. I went on home, and my wife did also. * * * 
When I got home that night I don't think I went into that west 



28 Mont] Stats v. Hakdbb. 3S 

liedroom. I think I went in first next morning. I thioik Mr. 
Ford was with me. There was a whole lot of Wood in there." 
The defendant also testifies, after repeatedly &tating that he 
was at Doc Smith's ranch: "I had trouble with Snearly. I 
killed him- I do not know when I killed him. I killed him 
because he jumped onto -mo, I guess, at Doc's.'' This testi- 
mony clearly establishes the fact that this homicide was com- 
mitted at the ranch of J. P. Smith, in Valley county, Montana. 
2. The defendant's contention that he is entitled to a new 
trial on the ground of newly discovered evidence, establishing 
the fact that he was insane at the^time of the commission of 
this offense, calk for a brief review of the actions of the de- 
fendant at the time of, and subsequent to, the killing. It ap^ 
pears from the testimony : that the defendant and the deceased 
came to the ranch of Mr. Smith some time in August, 1901, 
and, after remaining there several days, went away. They 
returned there on the morning of the 9th of September. The 
defendant's first inquiry of Mrs. Smith was whether the de- 
ceased had said anything to her about their trip. The defend- 
ant then told Mrs. Smith that they had been out after some 
horses, and were driving them to market; that they had been 
without food for some time ; that he had shot a chicken ; and 
that the boy (referring to the deceased, who was about 17 years 
of age) was pretty hungry, and insisted upon stopping to cook 
the chicken ; that the defendant insisted upon continuing their 
drive cf the horse© until 12 o'clock, but that, at the instance 
of Snearly, they stopped and cooked the chicken, and while 
they were doing it the horses got away from thenu This made 
the defendant very angry, and he threatened to kill Snearly, 
and stated that he did not kill him at that time because the 
boy begged so hard, and he thought he would wait until he got 
where he could have a decent burial. That in the afternoon of 
September 9th the defendant, the deceased, and one Jackson 
went hunting, returning to Mr. Smith's place in the evening. 
That the deceased then busied himself with cleaning and oiling 
a revolver, and, after he had finished, rubbed his oily hands 



24 State v. Habdbb. [Mar. T.'03 

through the hair of the defendant ^This did not appear to 
anger the defendant at the time, and soon after the defendant, 
who was sitting down, got up, took the revolver from where the 
deceased had laid it, carried it out into the kitchen, and laid 
it down. The revolver was unloaded. The deceased and de- 
fendant then went into the bedroom, where they apparently 
had some disagreement. The defendant soon come out in a 
hurried manner, rushed into the kitchen, picked up the pistol, 
and, on his way back to the bedroom, picked up a double-bar- 
reled shotgun. Passing into the room where the deceased was 
standing, he threw the pistol on the floor at the feet of -the de- 
ceased, and said, "Pick it up, if you have any nerve,'' and al- 
most immediately fired one barrel of the shotgun at the de- 
ceased, inflicting the wound from which deceased died on Sep- 
tember 11, 1901. Defendant remained there for some little 
time, and every few minutes would ask the deceased if he 
wanted the other barrel, and said to the deceased, "I promised 
this to you." The deceased replied, "Yes ; but I did not think 
you would do it," when defendant said, "You ought to know 
that I am a man of my word. You found out that I was." A 
little later, when those present proposed taking the woimded 
man to Culbertson, the defendant objected, and said, "You had 
better not take him until the coroner comes," but afterwards 
gave his consent Snearly repeatedly called for morphine, and 
defendant finally gave him some that he had with him; and 
afterwards, when Snearly asked for more morphine, he gave a 
spoonful of it to Mrs. Smith, told her to give it to Snearly, 
and said, "That will fix him, sure." Defendant then ordered 
the men who were present to saddle up the best horse Doc 
(meaning Smith) had, which defendant then mounted and rode 
away, following the wagon in which they were conveying 
Snearly for some distance. Prior to leaving the Smith resi- 
dence he asked one of the men if Snearly was shot bad, and on 
being informed that he was, and that he could not live, defend- 
ant said : "That is good enough for me. If I thought he was 
not killed, I would shoot him again." After Snearly had been 



28 Mont] Statb v. Hardee. 25 

placed in the wagon, he asked to have his boots removed. The 
defendant then remarked : "That is good enough for me. He 
is gat-shot, and will die before we get him, to town." The next 
night after the killing, defendant, while at the house of Mr. 
Olson, heard Mr. MacDonald, who had just coine from Cul- 
bertson, remark that the boy (meaning the deceased) was dead, 
or not expected to live. Defendant immediately asked : "Did 
the boy say anything — tell anything?" On being informed 
that he had not, he expressed his satisfaction, and said he 
lioped that he would live. Defendant was taken to jail, and, 
being addicted to the use of opium, was placed under the care 
of the county physician. Since the defendant has been in jail 
lie has frequently talked to the sheriff about the killing of 
Snearly, and expressed himself aa being very sorry, and about 
^^eeling very badly^' on account of .it On the trial of the case^ 
the defendant, in speaking of deceased, says: "I have seen 
him down there lots of times in the jail. He has been there 
lots of times, and I have seen him once in a while. I saw him 
two or three days ago, and last night he just came there and 
looked in and went away. I told him to get away." Further 
on the defendant, in testifying, says: "Since I have been in 
jail I have thought about this Snearly matter a great deal. I 
dream, about it every night I see Snearly in my dreams. He 
won't talk to me. I talk to him sometimes." 

The circumstances and facts attending this homicide show 
too much deliberation to be the result of any sudden impulse, 
but appear, rather, to be the result of anger occasioned by the 
deceased causing the defendant to lose the horses, and a fear 
on the part of defendant that the* deceased might make some 
remark relative to some past transaction. This is evident from 
the solicitude of the defendant as to whether or not the de- 
-oeased had "said anything — ^told anything." The fact that the 
defendant has evidently been brooding over this iffair, and has 
expressed himself as very sorry that he had killed Snearly, is 
not compatible with the theory that the defendant was at the 
time of the killing afflicted with homicidal monomania. The 



36 State v. 'ELaxwol [Mar- T.'Oa 

teetimony of the physiciaiis on this point is to the effect that if* 
a man is a homicidal monomaniac, and in that condition kills 
another^ he would not afterwards be soriy or grieve over his 
act It is further in evidence that Dr. Hoyt saw and examined 
the defendant within .three or four days after the commission 
of the homicide, and that the defendant has been in his care 
at all times since; that he has never been able to detect any 
signs of insanity about defendant Defendant was further 
examined by four physicians the day prior to his trial, who 
reported that he was at that time mentally sound. It is further 
stated in the testimony of the physicians that, if defendant 
had been the victim of mania or of insanity in any of its forms, 
it would not have passed away in the interval between the kill- 
ing and the time when he was placed under the care of Dr. 
Hoyt Sheriff Griffith also .testified that during the time that 
the defendant has been in his care he has detected no signs of 
insanity, that the defendant has been at all times able to con- 
verse upon matters, and Ihat it was only when placed upon the- 
witness stand to give testimony in this case that his memory 
failed him. Mr. and Mrs. J. P. Smith also testified that they 
knew the defendant — ^had known him for some time prior to 
the homicide; that he had frequently been about their home; 
that they had never thought him insane, nor detected signs of 
insanity about him. One of the physicians testified that at the 
examination on the 28th of November the defendant appeared 
to be afflicted with melancholia, which fact is also a refutation 
of the homicidal maniac theory, for it is a part of the evidence 
of the physicians that melancholia is a milder form of insanity, 
and that a person afflicted with homicidal monomania would 
not afterwards pass into a condition of melancholy. 

The facts which defendant wishes to prove by nis newly dis- 
covered evidence are cumulative, tending to prove the allega- 
tions of mental incapacity, which became an issue on the trial, 
and in support of which defendant called witnesses who testi- 
fied, and are not such as to make it clearly probable that a 
different result would follow another trial ; nor does it appear- 



28 Mont} Less v. CJity op Butte. 2T 

tbat the testimany could not have been produced upon the for- 
mer trial by the eKeorcise of reasonable diligence, for the testi- 
monj j»t>dueed upon the former trial shows that the defendant 
waa mentally capable at all times from the day when he shot 
Charles Snearly until the time of his trial of giving his counsel 
all the required information necessary in the preparation of 
his defense. (Territory v. Bryson, 9 Mont 32, 22 Pac. 147 ; 
State V. Brooks, 23 Mont 146, 57 Pac 1038.) 

It appears from the record that the defendant had a fair and 
impartial trial, that he was ably defended, and that the court 
did not in any manner abuse its discretion in overruling the 
motion for a new trial. 

We therefore recommend that the judgment and order ap- 
pealed from be affirmed. 

Per Oubiam. — ^For the reasons stated in the foregoing opin> 
ion, the judgment and order are affirmed. 

Mk. Justice Mii^burit did not hear the argument in this 
case, and therefore takes no part in this decision. 



LESS, Respondent, v. CITY OF BUTTE, Appellant. 

(No. 1,508.) 

(Submitted April 3. 1903. Decided April 11, 1903.) 

1,28 271 

Mumcipal Corporations — Streets — Establishing Grades — |f% 36[ 
Damages to Property — Compensation — Constitution — Emir^ ^ J7 
nent Domain. 

1. Section 14 of Article III of the Constitution is both mandatory and pro- 
hibitory, and It is also self-executing. 

2. Obiter: The constitution (Article III, Section 14) does not authorize a 
remedy for every diminution in the value of property that is caused by 
public improvements; the damages for which compensation is to be made^ 



28 Lgbss v. City of Buttb. [Max. T.'03 

being a damage to the property itself, and not including mere infringement 
of the owner's personal pleasure or enjoyment. 
3, Under Constitution, Article III, Section 14, declaring that private property 
shall not be "taken or damaged" for public use without just compensation, 
a landowner is entitled to compensation for damages owing to the grading 
of a street on which his property abuts, in accordance with a grade fixed 
by city, notwithstanding the fact that such grade is the fli-si one ever fixed. 



Appeal from District Court, Silver Bovr Covnty; Jotm Lini- 
^ay. Judge, 

Action by Andrew Less against the city of Butte. From a 
judgment for plaintiff, defendant appeals. Affirmed. 

Statement of the Case by the Commissioner Who 
Prepabed the Opinion. 

On June 8, 1881, the owners of the ground included in the 
present Leggatt & Foster addition to the city of Butte platted 
the same in lots and blocks, with intervening streets, and filed 
•a plat thereof with the county clerk of Silver Bow county, 
Montana. East Broadway street, designated upon the plat^ is 
•an extension of Broadway street in said city. On March 26, 
1893, this addition was regularly annexed to the city of Butte, 
and East Broadway was dedicated to the city as a public street 
Some time in the year 1893 the plaintiff became the owner of 
lot 9 in block 4, fronting on East Broadway in said addition, 
built upon his lot a two^story house, and made other improve- 
ments thereon, relying upon the grade of the street as it then 
-existed, and in conformity to the street as the same was then 
traveled and used. 

By an ordinance passed and approved July 17, 1895, a 
grade line was established along Broadway street, across and 
over the Leggatt & Fostei* addition, and in front of the lot 
owned by plaintiff. The grade thus established was the first 
and only grade established by the corporate authority of the 
city upon the street in front of the lot of plaintiff. Thereafter, 
on April 21, 1897, the city council passed a resolution ordering 
Broadway street excavated and graded from the east side of 



28 Mont] Less v. City op Butte. 29- 

Oklahoma avenue to the east side of Gaylord street, in front 
of plaintiflF's property, to said grade line. 

The city did not agree, or attempt to agree, with the plain- 
tiff, upon the amount of damages which he would sustain to 
his premises on account of such change of grade and excava- 
tion, and did not pay or tender to plaintiff anything on account 
thereof, and did not appoint any freeholders to make an ap- 
praisement of the damages or of the benefits which would re- 
sult to the plaintiff's premises by reason of the change of grade 
and excavation of the street; but pursuant to said resolution 
the city did, during the summer of the year 1897, proceed to 
grade and excavate the street so as to make the same conform 
to the grade line so established as aforesaid. The street in 
front of plaintiff's premises was thus graded and excavated to 
the depth of about seven feet, and the sidewalk in front of the 
plaintiff's house was located at about the same depth, in order 
to conform to the street as graded. 

The plaintiff then presented his claim to the city council, 
demanding $500 damages because of the grading and excava- 
tion mentioned, but the city refused to pay the same, or any 
part thereof. The plaintiff thereupon began this suit The 
case was tried upon an agreed statement of facts and upon oral 
testimony. At the conclusion of plaintiff's case the defendant 
moved the court for a nonsuit upon the ground "that the grade 
on Broadway street adjoining the property of the plaintiff was 
the first and only grade ever established on Broadway street^ 
and under the laws of Montana in force at the time the city 
of Butte had a right to establish said grade to reduce the street 
in conformity to the grade established, and is not liable to the 
plaintiff by reason of any damages that he may have sustained 
by reason of the first establishment of the grade." 

The court overruled the motion, and gave judgment for 
plaintiff in the sum of $500, as prayed for in his complaint- 
From this judgment the defendant appeals. 

Mr. Edwin M. La/mi, for Appellant 



iO Lmas t;, Olty op Butte. [Mar. T.'OS 

The establishmeait of a grade and the change of grade from 
the natural grade to such established grade is not wiliiin the 
meaning of Section 4940 of the Political Code. (Section 
4800, Political Code; Oardmer v. Tovm of Johnston, 12 AtL 
891; Aldrich v. Aldermen of Providence^ 12 E. I. 241.) 

The establishment of a grade line and the change of the 
grade of a street to conform thereto, which lessens the valu^ of 
abutting property, is not such damage by the public to private 
property as comes within the meaning of Section 14 of Article 
III of the Constitution* (Dillon on Municipal Corporations, 
4th Ed., Sees. 995a, 995b, 995c; Cailender v. March, 1 Pick. 
431 ; City of Denver v. Bayer (Cola), 2 Pac. 7 ; City of Dc^ir 
^er V. Vemia (Colo.), 8 Pac. 659; Rigney v. City of Chicago, 
102 III 80; Beardon v. City of San Francisco (CaL), 6 Pac 
326 ; The Jvlia BvUdrng Association v. Bell Tel. Co., 88 Mo. 
274.) 

Messrs, McHaMon & Cotter^ for Respondent , 

Section 14 of Article III of the Constitution changes the 
common law, gives a right which did not exist at oonunon law, 
is self-executing, and entitles the plaintiff in this case to re- 
cover. {Beardon v. Sanfi Francisco, 66 Cal. 492; Eachus v. 
Los Angeles C. By., 103 CaL 614, 37 Pac. 750 ; Holland v. U. 
P. By. Co., 14 Fed. 394; Blanchard v. Kansas City, 16 Fed. 
444 ; McElroy v. Kansas City, 21 Fed. 257 ; Bigney v. City of 
Chicago, 102 111. 64; Chicago v. Taylor, 125 U. S. 161; Har- 
mon Y. City of Om^aJia, 23 N. W. 503 ; Henderson v. McLean, 
39 L. R A. 345 ; Smith v. Kansas City By. Co., 98 Mo. 20 ; 
Sheedy v. Kansas City Cable Co., 94 Mo. 575 ; Searles v. City 
of Lead, 73 N. W. 101, 39 L. R A, 345 ; Brovm v. City of 
Seattle, 31 Pac. 313 ; Lewis v. City of Seattle, 32 Pao. 786 ; 
6 A. & R Ency. of Law, 544, Note 2 ; Davis v. Mo. Pac., 119 
Mo. 180, 24 S. W. 777, see authorities cited p. 779; Hickman 
V. City of Kansas, 120 Mo. 110, 23 L. R A. 658, and cases 
cited; Graff v. Philadelphia, 150 Pa. 594; New Brighton v. 
United Presby. Church, 96 Pa. 331 ; Wirth v. City of Spring- 



d6 Itovt] LoBB V. Ott OX' Buns. 31 

field, 78 Mo. 107 ; Ciiif of Elgim. v. EaiM., 83 Ul. $35 -.BarOeU 
V. rorryfown, 62 Hun. (N. Y.) 38 ; JfcCott v. 8(mUoga Bpgs., 
56 Hun. (K Y.) 639, 121 N. Y. 704/tffirming 29 K Y. SB. 
6»»; /« re Cittrc*. ojf Our Lady of Mercy, 22 K Y. SR. 967, 
10 K Y. Suppi «e8; -Pf. W^orth-v. Howmrd, 3 Tex Civ. App. 
587, 22 S. W. 10S9; O'Brien v. FWIckirfpfeta, 150 Pa. 669; 
/ones V. Borou^ of Bwngor^ 144 Pa. St 038 ; CHy of Blaomr 
ington v. PoUock, 141 lU. 351, 31 K K. 146 ; Blair v. Oharlee- 
<<m, 35 L R A. 862.) 

MR. COMMISSIONER CAI^LAWAY prepared the opin- 
ion for the coxiil 

By the oommon law municipal eorporations were not held 
liable for consequential damages resulting to property owners 
by reason of changes in street grade©. The municipal authori- 
ties might change or alter the grades of public thoroughfares 
at will, and the adjoining owners had no redress. It was con- 
sidered that, public improvements being for the good of the 
body politic, and always being in contemplation, the individual 
purchased his city or town property charged with knowledge 
that changes might be made as required by public necessity and 
convenience So, too, when one platted a townsite, and dedi- 
cated certain portions thereof to the public for streets, he and 
his grantees were presumed to contemplate the changes which 
would necessarily result from public improvements. The rule 
dammum absque injuria was held to apply to all such cases, un- 
less the injury could be shown to have resulted from the negli- 
gent or improper manner in whidi the work was done. Such 
is the doctrine asserted in Callender v. Marsh, 1 Pick. 418, and 
other cases cited by appellant 

The framers of our Constitution abrogated this harsh rule 
by Section 14, Article III, which reads as follows: "Private 
property shall not be taken or damaged for public use without 
just oomipensation having first been made to, or paid into court 
for the owner." It seems very dear to us that this section was 



32 Less v. City of Butte. [Mar, T/03 

drafted in the broad language stated for the express purpose of 
preventing an unjust or arbitrary exercise of the power of emi- 
nent domain. It overturns the doctrine that one owning city 
or town property must continually live in dread of the changing 
whims of successive boards of aldermen. Constitutions whidi 
provide that "private property shall not be taken for public use 
without just compensation" are but declaratory of the common 
law, and contemplate the physical taking of property only. 
Under constitutions which provide that property shall not be 
'^taken or damaged" it is universally held that "it is not neces- 
sary that there be any physical invasion of the individual's prop- • 
erty for public use to entitle him to compensation." (Root v. 
Butte, Anaconda & Pacific By. Co., 20 Mont 354, 51 Pac. 155, 
and cases cited.) The owner of a city lot has "a kind of prop- 
erty in the public street for the purpose of giving to such land 
facilities of light, of air, and of access from such street" 
{Bohm V. Metropolitan El. By. Co., 129 K Y. 576, 29 N. E. 
802, 14 L. R A. 344.) "These easements are property, pro- 
tected by the constitution from being taken or damaged without 
just compensation." {Boot v. Butte, Anaconda & Pacific By. 
Co., mpra; Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct 820, 
31 L. Ed. 638 ; Eachus v. Los Angeles Consol El. By. Co., 103 
Cal. 614, 37 Pac 750, 42 Am. St Eep. 149 ; Bigney v. City of 
Chicago, 102 111. 64; Brown v. City of Seattle, 5 Wash. 35, 31 
Pac. 313 ; Lewis v. City of Seattle, 5 Wash. 741, 32 Pac 794 ; 
Hicknum v. City of Kansas, 120 Mo. 110, 25 S. W. 225, 23 L. 
R A. 658, 41 Am. St Rep. 684; City of FoH Worth v. How- 
ard, 3 Tex. Civ. App. 537, 22 S. W. 1059 ; Harmon v. CHy of 
Omaha, 17 Neb. 548, 23 K W. 503, 52 Am. Rep, 420 ; Schaller 
V. City of Omaha, 23 Neb. 325, 36 K W. 533.) Moreover, it 
may frequently occur that "the consequential damage may im- 
pose a more serious loss upon the owner than a temporary spoli- 
ation or invasion of the property." (City of Atlanta v. Oreen, 
67 Ga. 386.) 

But the appellant insists that it should not be held liable ill 
this action for the reasons stated in its motion for a nonsuit 



28 Mont] Less v, Gity of Butte. 33 

The first point is that the appellant cannot be held liable be- 
cause the grade complained. of is "the first and only grade ever 
established on Broadway street." The constitution does not 
distinguish between the first grade and subsequent ones. It 
provides against the damage occasioned in either case. (Searle 
V. Oil/ of Lead, 10 South Dakota, 312, 73 K W. 101, 39 L. E- 
A. 345 ; City of Bloomington v. Pollock, 141 111. 346, 31 K R 
146; Eachus v. Los Angeles Consol. El, By. Co., 103 Oal. 614, 
37 Pac. 750, 42 Am. St Rep. 149.) The mischief to be reme- 
died may be greatest in the first instance. {McCall v. Village 
of Saratoga Springs (S^p.), 9 K Y. Supp. 170; Id., 121 K 
T. 704, 24 K R 1100.) The first grade of Broadway street 
was that provided by nature, and the alteration made by appel- 
lant was as much a change of grade as if the change had been 
made from a grade previously established by the authorities. 
{Eendrick's Appeal, 103 Pa. 358; O'Brien v. Philadelphia, 
150 Pa, St 589, 24 Atl. 1047, 30 Am. St Eep. 832 ; McCall 
V. Village of Saratoga SpHngs (Sup.), 9 N. Y. Supp. 170; Id., 
121 X. Y. 704, 24 K E. 1100; Blair v. City of Charleston, 
43 West Va. 62, 26 S. K 341, 35 L. R A. 852, 64 Am. St Rep. 
837.) 

As to whether the appellant is liable "under the laws (stat- 
utes) of Montana in force at the time" is wholly immaterial. 
Section 14, Article III, of the Constitution, is both mandatory 
and prohibitory. It is self-executing, and requires no legisla- 
tion to rouse it from dormancy. (Searle v. City of Lead, 10 
South Dakota, 312, 73 N. W. 101, 39 L. R A. 345 ; Hickman 
V. City of Kansas, 120 Mo. 110, 25 S. W. 225, 23 L. K. A. 
658, 41 Am. St Eep. 684; Harmon v. City of Omaha, 17 NeK 
548, 23 'N. W. 503, 52 Am. Rep. 420.) 

While it is doubtless true that the constitution does not au- 
thorize a remedy for every diminution in the value of property 
which is caused by public improvement, the damages for which 
compensation is to be made being a damage to the property it- 
self, and not including mere infringement of the owner's per- 
sonal pleasure or enjoyment {Eachus v. Los Angeles Consol. 

Vol, XXVIII-3 



34 Holland v. Citt of Butte. [Mar. T.^03 

El, Ry, Co,, supra) y in the case at bar it is practically conceded 
that respondent is entitled to damages in the amount of the 
judgment rendered provided the appellant is liable at all. 

We think the operation of this section of the constitution 
ought not to be restricted. The declarationg of constitutions 
are placed therein to be obeyed, and are not to be "frittered 
away by construction.^' In McElroy v. Kansas City (C. C), 
21 Fed. 257, Mr. Justice Brewer, in passing upon a similar 
constitutional provision^ said: "I think, too, in thcLe days of 
enormous property aggregation, where the power of eminent 
domain is pressed to such an extent, and when the urgency of 
so-called public improvements rests as a constant menace upon 
the sacredness of private property, no duty is more imperative 
than that of the strict enforcement of these coiistitutional pro- 
visions intended to protect every man in the possession of his 
own. * * * Such constitutional guaranty needs no legis- 
lative support, and is beyond legislative destruction." 

We are of the opinion that the judgment ought to be affirmed. 

Per Curiam. — ^Tor the reasons stated in the foregoing opin- 
ion, the judgment is affirmed. 



HOLLAND, Respondent, v, CITT OF BTJTTE, Appellant. 

(No. 1,509.) 
(Submitted April 8, 1908. Decided April 11, 1903.) 

Mwnicipal Corporations — Streets — Ch<mginff Grade — Da/magea. 

Judgment affirmed upon tbe authority of Leas y. City of Butte, ante, 27. 

Appeal from District Cov/rt, Silver Bow County J John Lind- 
say, Jvdge. 



28 Mont] (yDoNNELL bt ai.. v. City of Butte, 35 

Action by Michael B. Holland against the city of Butte, 
Montana. Frona a judgment in favor of plaintiff, defendant 
appeals. Affirmed. 

Mr. E. M, Lamb, for Appellant 

Messrs, McHatton & Cotter, for Respondent 

Peb Oueiam. — ^As agreed in open court by counsel for appel- 
lant and respondent, practically the same questions are involved 
in this case as in the case of Less v. City of Butte, decided this 
day. Therefore, on the authority of the last mentioned case, 
the judgment of the district court is affirmed. 



O'DONNELL ET AL., Respondents, v. CITY OF BTITTE> 

Appellant. 

(No. 1,511.) 
(Submitted April 3, 1903. Decided April 11, 1903.) 

Municipal Corporations — Streets — Changing Orade- — Damages. 

Judgment affirmed upon tbe authority of Less y. CH^ of ButU^ anUy 27. 

Appeal from District Court, Silver Bow Cownty; John Lind- 
say, Judge. 

Action by William O'Donnell and another against the city 
of Butte, Montana. From a judgment in favor of plaintiffs, 
defendant appeals. Affirmed. 

Mr. E. M. Lamh, for Appellant 

Messrs. McHatton & Cotter, for Respondents. 



36 TTanley v. City of Butte. [Mar. T.'OS 

Pee Curiam. — ^As agreed in open court by counsel for appel- 
lant and respondents, practically the same questions are involved 
in this case as in the case of Less v. City of Btitte, decided this 
day. Therefore^ on the authority of the last mentioned case, 
the judgment of the district court is affirmed. 



HANLET, Eespondent, v. CITY OF BUTTE, Appellant. 

(No. 1,520.) 
(Submitted April 3, 1903. Decided April 11, 1908.) 

Municipal Corporations — Streets — Changing Orade — Damages. 

Judgment affirmed upon the authority of Leas v. City of BvtU, anU^ 27. 

Appeal from District Court, Silver Bow County; William 
Clancy, Judge, 

Action by Annie Hanley against the city of Butte, Montana, 
From a judgment in favor of plaintiff, defendant appeals. Af- 
firmed. 

Mr. JE. M. Lamb, for Appellant 

Messrs. McHatton & Cotter, for Respondent 

Per Curiam. — ^As agreed in open court by counsel for appel- 
lant and respondent, practically the same questions are involved 
in this case as in the case of Less v. City of Butte, decided this 
day. Therefore, on the authority of the last mentioned case^ 
the judgment of the district court is affirmed. 



I 



28 Mont] Snkll v. Welch bt al. 37 

SNEOLL, Plaintiff, v. WELCH bt al.. Defendants. 

(No. 1,941.) 
(Submitted April 23, 1903. Decided April 24, 1903.) 

Supreme Court — Original Jurisdiction — Propriety of Exercise 
— Injunction — Constitutionality of School Text-Book Law. 

The sapreme court will not entertain an original proceeding to test, by an in- 
junction to restrain the state text-book commission from advertising for 
bids, the constitutionality of a statute relating to a uniform system of text- 
books, and requiring the books contracted for to bear "nnion labels;*' no 
pressing necessity appearing for a speedy determination of the Question, the 
court calendar being three years in arrears, and the matter being one 
which should ordinarily, and in the Urst instance, be submitted to the 
district court; especially where it is apparent that the interests of the 
public, so far as they are involved, may be as well protected if the parties 
are left to pursue the usual course. 

Obiginal suit by Charles H. Snell against W. W. Welch, 
state superintendent of public instruction, and others, constitut- 
ing the state text-book commission. Dismissed. 

Mr, Edward Horshy, Mr, Robert B. Smith, and Mr. E. A. 
Carleton, for Plaintiff. 

Mr. James Donovan, Attorney Oeneral, for Defendants. 

MR CKIEF JUSTICE BEANTLT delivered the opinion 
of the court 

This action was brought by complaint filed in this court to 
obtain an injunction to restrain the defendant W. W. Welch, 
superintendent of public instruction of the state, and the said 
Welch and the other defendants as the state text-book commis- 
sion, created by an Act of the Eighth Legislative Assembly 
known as "Senate Bill 54" (Chapter CXXII, Laws of 1903), 
from proceeding to advertise for bids for contracts to supply a 
uniform system of text-books for use in the public schools of the 
state, as authorized and required by the provisions of the said 



38 Mawtlb v. Labgbt. [Mar. T.^03 

Act The court, upon application, permitted the complaint to 
be filed, reserving for consideration the question whether the 
circumstances wore such as required it to assume jurisdiction 
of the cause in the first instance. 

The action involves the constitutionality of a provision in 
Section 13 of the Act requiring all books contracted for by the 
commission to bear "union labels," — ^ihat is, to be published by 
firms entitled to use and using the label of the printers' union. 
After consideration, the court concludes that no urgent necessity 
is shown to exist why it should entertain the action in the first 
instance. The calendar of this court is much in arrears. In 
the absence of some pressing necessity, we do not think we 
should postpone other causes which have been awaiting decision 
— some of them for as much as three years — ^in order to permit 
parties to reach a speedy decision upon a matter which should 
ordinarily, and in the first instance, be submitted to the district 
court This is especially true of cases like the present, when it 
is apparent that the interests of the public, so far as they are 
involved, may be protected as well if the parties are left to pur- 
sue the usual course. 

The action is therefore dismissed. 

Dismissed, 



MANTIJE, Eespondknt, v. LARGEY, Appellant. 

(No. 1,798.) 
(Submitted April 11, 1903. Decided April 27, 1903.) 

Appeal — Reversal of Order for Ncxu Trial — Stipulation — Ef- 
fect. 

Where, after an appeal from an order srrantlng a new trial, the parties, in pnr- 
snance of a settlement which they have reached, file a stipulation request- 
ing a reversal of the order, that disposition of the case will be made (when 



28 Mont] Mantle v. Labget. 39 

there 1b no question as to the district court's Jurisdiction in the case), 
though It is not apparent that, upon an examination of the record, affirm- 
ance might not be proper. 
Mb. Justice Hilbubn dissenting. 

Appeal from District Court, Silver Bow County; E. W. 
Homey J Judge. 

SriT by Lee Mantle against Lulu F. Largey, gdininistratrix 
of the estate of P. A. Largey, deceased. From nn order grant- 
ing plaintiff a new trial after judgment for defendant, defend- 
ant appeals. Reversed. 

Mr. Bernard Noon^ Messrs. McBride £ McBride, and Messrs. 
Forbis & Evans, for Appellant 

Mr, Frank TT. Hashins, Messrs. Roote & Clark, and Messrs. 
McHatton & Cotter, for Respondent. 

MR CHIEF JUSTICE BRANTLY delivered the opinion 
of the court 

This action was brought for the purpose of obtaining a de- 
cree in favor of plaintiff declaring the defendant, Patrick A. 
Largey, a trustee for plaintiff of a one-sixteentli interest in the 
Speculator quartz lode mining claim, situate in Silver Bo\^; 
county, and requiring the defendant to execute to the plaintiff 
a deed for that interest, and to render an accounting for a one- 
sixteenth interest in the ores extracted from the property by 
the defendant After the institution of the suit the defendant 
died, and Lulu F. Largey was substituted in his place, as his 
administratrix: The judgment in the court below was for de- 
fendant Subsequently, on motion of the plaintiff, the court 
entered an order granting plaintiff a new trial. Thereupon 
defendant api)ealed. 

The parties to the action have filed in this court a stipulation 
wherein it is set forth that they have settled their differences 
and controversies by a compromise of all matters involved ; that 
they desire the order from which the appeal is taken reversed, 



40 Mantle v. Labokt. [Mar. T/03 

fio that the judgment of the district court may stand as ren- 
dered ; that reimttitvr be issued at once ; and that this disposi- 
tion of the appeal is desired because it is in accordance with the 
terms of the compromise and settlement made by the parties. 
This court is asked to make the order according to the terms of 
the stipulation. When the stipulation was filed, and counsel 
mjoved for the order, we entertained doubt as to whether this 
court could, with propriety, reverse the action of the district 
court upon an agreement of the parties, without an examination 
of the record, and a determination that the action of that court 
was in fact erroneous. Upon consideration, however, we deem 
it the duty of the court, so far as it may, when there is no ques- 
tion as to its jurisdiction in the particular case, to assist parties 
to settle their controversies by removing any obstruction which 
may stand in the way of such settlement This cause involves 
title to valuable mining property, and, as the settlement between 
the parties contemplates the existence of a valid and subsisting 
judgment in favor of defendant^ we think that tho order desired 
may be made with propriety, though it is not apparent that the 
plaintiff would not, upon examination of the record, be found 
entitled to an affirmance of the order. 

It is therefore adjudged that the action of the district court 
in the premises be reversed, and that the cause be remanded, 
with directions to that court to vacate the order q:ranting a new 
trial, and that it permit the judgment in favor of defendant to 
stand aa rendered. 

Reversed and reminded. 
Mr. Justice Milburn : I dissent. 



28 Mont] Lakkin v. B. & B, C. M. Co. 41 



LAEKIN ET AL., Respondents, v. BUTTE & BOSTON ji'\l^j 
CONSOLIDATED MINING 00. et al.. Appellants. m « 

(No. 1,530.) 
(Submitted April 16, 1903. Decided April 27. 1903.) 

Appeal — Briefs— ^Rides of Supreme Court — Affirrticmce. 

Where appellants' brief falls wholly to comply with Subdivision 3 of Rule "X of 
the Supreme Court, the Judgment appealed from will be affirmed. 

Appeal from District Court, Silver Bow County; William 
Clancy, Judge, 

Action by Clara A. Larkin and another against the Butte & 
Boston Consolidated Mining Company and othors. From an 
order appointing a receiver, defendants appeal. Affirmed. 

Messrs. Forbis & Evans, for Appellant 

Mr. Charles R. Leonjard, and Messrs. Cullen, Day <& Cullen, 
for Respondents. 

Peb CuRiAM.-T-The brief filed by tlie appellants in this ac- 
tion fails in every particular to comply with Subdivision 3 of 
Rule X of this court, and, upon the authority of Casey v. Thiev- 
' iege, 27 Mont 516, 70 Pac. 755, and cases cited, the order ap- 
pealed from is affirmed. 

Affirmed. 



I 28 42 
f28 283 



42 Knobb v. Eesed et al. [Mar. T/OS 

KNOBB, Respondent, v, REED bt al.. Appellants. 

(No. 1,534.) 
(Submitted April 10, 1903. Decided April 27, 1903.) 

Appeai — Briefs — Bides of Supreme Court 

1. Under Supreme Court Rul« X, Subdivisions 4 and 5, In the absence of con- 
sent by his adversary or an order of the court based upon a sufficient show- 
ing of some reason why the rule should be relaxed, counsel for respondent 
(when in default under the rule) may not file a brief or appear and argue 
orally the questions presented by the appeal, nnless by express request of 
the court, — and a brief filed In violation of the rule will be stricken from 
the files. 

2. Under Supreme Court Rule X, Section 3, an appellant's brief referring to- 
the complaint, with citation of page and marginal number, but to no other 
matter which would aid the court In examining the points In controversy. 
Is not a compliance with the rule, and necessitates an afflrmanace of the- 
judgment. 

Appeal from District Court, Lewis and Clarice County; S. H. 
Mclntire, Judge. 

Action by Eli Knobb against Williaroi Reed and others. 
From a judgment for plaintiff, and an order denying a new 
trial, defendants appeal. Affirmed. 

Messrs, Stranahan & 8tranali<in, for Appellants. 

Mr. B, B. Purcell and Mr, T. J. ^Yalsll. for Respondent. 

]MR, CHIEF JUSTICE BRANTLY delivered the opinion 
of the court 

From the imperfect statement contained in appellants' brief 
this action appears to be one in conversion, by which the plain- 
tiff seeks to recover from the defendants the value of certain 
mares and a stallion, together with, one-half of their increase 
during the years from 1891 to 1898, inclusive. It appears that 
the animals were taken charge of by the defendants in 1891,. 
at the request of one Seymour, their owner, under an agreement 



28 Mont.] Knobb v. Rbbd bt al. 4ft 

thafc they were to be bred and oared for by the defendants, the 
latter being allowed to retain one-half of the increase as their 
compensation. Thereafter the plaintiff became the owner by 
pnrchase of the interest of Seymour. In August, 1898, the 
plaintiff demanded from the defendants a delivery of the prop- 
erty to himself under the terms of the arrangement made by 
Seymour. This the defendants refused, asserting title in them- 
selves. Upon a trial, verdict and judgment were for plaintiff. 
These appeals are from the judgment and an order denying a 
new trial 

1. The transcript was filed in this court on March 19, 1900. 
Appellants' brief was filed on May 18, 1900. The respondent 
made no appearance, nor did he file his brief until March 21, 
1903, a few days before the hearing. This was done without 
the consent of counsel for appellants. At the hearing counsel 
for respondent appeared, and, though objection was made, re^ 
quested the court that he might be heard. The request was de- 
nied, there being no offer to show why the brief had not been 
filed in conformity with the rula 

Subdivision 4 of Rule X provides that counsel for respondent 
shall file with the clerk of this oourt seven copies* of his brief, 
and serve a copy upon counsel for appellant within thirty days 
after appellant's brief shall have been served upon him. Sub- 
division 5 provides that, when respondent is in default under 
this rule, he shall not be heard except upon consent of his ad- 
versary or by request of the court In the absence of consent 
by his adversary, or an order of the court based upon a showing 
by affidavit or otherwise of some reason why the rule should be 
relaxed, counsel may not file a brief, or appear and argue orally 
the questions presented by the appeal, unless by fjxpress request 
of the court The rule was promulgated for the purpose of re- 
quiring counsel to prepare their cases for hearing in ample time 
before they are set for that purposfe, and also to insure ample 
notice to opposing counsel of the points upon which it is in- 
tended to rely. The fact that the calendar of cases pending in 
this court is in arrears at the present time makes no difference 



44: Knobb i). Rbkd bt ai.. [Mar. T/03 

in the application of the rule, for, if obedience to it were not 
enforced, the result would be much confusion and misunder- 
standing between counsel and the court touching the orderly 
submission and deteamination of causes. This cause was set 
for hearing on April 10th by an order entered on March 7th. 
The brief was filed fourteen days after the order was made. 
Under like circumstances in many cases the appellant would 
be deprived of the opportunity to prepare and file a reply brief, 
or else the submission of the cause would be delayed in order 
to furnish such opportunity, the only reason therefor being that 
the respondent had n^lected the plain requirements of the rule. 
For good reasons made to appear, the rule may be relaxed ; but, 
when no such reason is made to appear, the penalty must be 
exacted. The brief of the respondent is therefore ordered 
stricken from the files. 

2. But, notwithstanding respondent is in default and ca,n- 
not have his brief considered, the merits of these appeals cannot 
be examined, because appellants' brief wholly fails to comply 
with the requirements of Subdivision a of Section 3 of Rule X. 
The statement or abstract required by the rule oontiiins no refer- 
ences to the transcript in such a way that the pleadings, evi- 
dence, orders, and judgment may be readily found. It con- 
tains reference to the complaint, with citation of page and mar- 
ginal number, but to no other matter which would aid the court' 
in examining the points in controversy. Under the rulings 
heretofore made in many cases, the judgment and order must 
be affirmed. It is so ordered. 

Affirmed. 



28 Mont] Philups et al. v, Coburn et al. 4:& 



28 

PHILLIPS ET AL., Appellants, v. COBTJIIN et al., 3? 
Bespondents. 

(No. 1,515.) 
(Snbmltted April 6, 1903. Decided April 27, 1903.) 

Water Rights — Evidence — AppeaZ — Opimon of Trial Court — 
Findings — Insufficiency of Evidence — Specifications of Par- 
ticulars — Conflicting Evidence, 

1. On appeal the opinion of the lower court has no place In the record and 
cannot be looked to for any purpose, and a contention that It shows that 
tlie court did not consider certain evidence which was admitted without 
objection cannot be entertained. 

2. In an action to enjoin defendants from diverting certain waters clalmed 
by plaintiffs for Irrigation purposes, the parties stipulated that no question 
should be made as to the titles of the respective parties to the lauds de- 
scribed in the pleadings, and in connection with which the water claimed 
by each was to be used. Held, that evidence that defendants* premises 
were located upon an Indian reservation, which they could not lawfully 
occupy, was inadmissible. 

3. In an action Involving the priority of appropriations of certain water 
rights plairtiffs contended that the appropriation made by their predecessor 
in interest was made in July of a certain year, and the court found that 
the appropriation was made In October of that year. Held that, notwith- 
standing this finding, evidence of declarations made by plaintiffs' prede- 
cessor in interest, tending to show that in August of the year In question- 
they had made no appropriation, was admissible under Code of Civil Pro- 
cedure, Section 3125. 

4. Where the specifications of particulars wherein the evidence is alleged to be 
insnflcient to support the findings do not meet the requirements of Section 
1173, Code of Civil Procedure, they will be disregarded. 

5. Where the evidence is conflicting, findings of fact of the district court are 
conclusive on appeal. 

Appeal from District Court, Chateau County; Dudley Du 
Base, Judge. 

Action by Benjamin D. Phillipe and others against Robert 
J. Cobum and another. Prom a judgment for defendants, and 
from an order denying a motion for a new trial, plaintiffs ap- 
peaL AfBrmed. 

Statement of the Case. 

Action by plaintiffs for a perpetual injunction to restrain the 



46 Phillips et al. v. Ooburn et al. [Mar. T.'03 

defendants from diverting tlie waters of Big Beaver or Warm 
Springs creek, in Choteau county. The plaintiffs allege a prior 
right to the free and unobstructed use of 2,000 inches of said 
waters for agricultural purposes upon lands owned by them, 
and p-articularly described in the complaint This claim is 
based upon two appropriations — one of 1,000 Inches, alleged 
to have been made by plaintiffs Sieben and Ester on August 2, 
1889 ; and the other made by John T. Mercer and Henry Mar- 
shall, the predecessors of plaintiffs, on July 8, 1889 — both of 
which rights are now held in common by all the plaintiffs. It 
is alleged that defendants were engaged at the commencement 
of the action in diverting the waters so that they did not reach 
the heads of the plaintiffs' ditches, and threatened to continue 
to so divert them, so that plaintiffs were and would be prevented 
from using them to irrigate their growing crops of grain and 
grasses, thus suffering irreparable injury. The defendants deny 
all the material allegations contained in the complaint, and then, 
by way of counterclaim, set up a right in themselves to the free 
and unobstructed use of the watprs to the extent of 700 inches 
under an appropriation of them made by themselves on July 30, 
1889, followed immediately by diversion and continued use of 
them thereafter for agricultural purposes upon lands owned and 
occupied by the defendants. Their answer concludes with a 
prayer that they be decreed to have a prior right to the ecxtent 
•of 700 inches, and for general relief. There was issue upon the 
•counterclaim by replication. 

At the beginning of the trial the parties entered into the fol- 
lowing stipulation : "It is agreed in this case that no question 
is made or will be urged as to the titles of the respective parties 
plaintiff and defendant to the lands described and mentioned 
in the pleadings herein, and the various denials in that regard 
are hereby withdrawn, it being the intention of the parties here- 
to to have determined only the respective rights of the parties 
hereto to the water and water right asserted by them, respect- 
ively, and to the quantity of water which their respective ditches 
were capable of carrying when first used. The O3nveyanoes of 



28 Mont] Phii^ups et al. v. Cobubn et al. 47 

the titles of the respective parties to the waters in question from 
their predecessors in interest are not denied, and the denials in 
that r^ard are also withdrawn. '^ 

Upon the evidence submitted the district court found that the 
defendants actually diverted the waters to the extent claimed 
by them on August 11, 1889, and thereafter continuously used 
them for agricultural purposes ; that Sieben and Ester diverted 
them to the extent of 500 inches on September 25, 1889 ; that 
the Mercer and Marshall diversion to the extent of 300 inches 
was completed on October 1, 1889 ; and that, as a matter of law, 
the parties were entitled to the use of them in the order indi- 
cated by these dates, and to the extent of their respective appro- 
priations. A judgment was entered accordingly. From the 
judgment and order denying them a new trial, plaintiffs have 
appealed. 

Messrs. Toole & Bach, for Appellants. 

Cited: Eevised Statutes, TJ. S., Sections 2339, 2340 ; Bvitz 
V. N. P. By., 119 IT. S. 55 ; Bwrden v. N. P. By, Co., 145 TJ. 
a 535; McFadden v. M. V. M. Co., 97 Fed. 670. 

Mr. H. O. Mclnivre, and Mr. Fletcher Maddox, for Eespond- 

ent& 

Eeepondents' title is at least good against every person except 
the government (First Natl Bank v. Boberts, 9 Mont 373 ; 
Natoma W. & M. Co. v. Clarhin, 14 Cal. 544; California 8. T. 
Co. V. Alt^ T. Co., 22 Cal. 430 ; Uruion W. Co. v. Murphy F. 
F. Co., 22 CaL 630.) 

Hie issue as to whether respondents' ditch was upon the In- 
dian reservation was an immaterial one; when the appropria- 
tion was made it was upon the public domain, and there can be 
no doubt of the right to appropriate water flowing through the 
public domain, (Lehi Irr. Co. v. Mayle (Utah), 9 Pac. 875; 
Kaylar v. Campbell (Oregon), 11 Pac 301; Smith v. Denniff 
(Mont), 60 Pac 398.) 



48 Phillips et al. v. Coburn et al. [Mar. T.'03 

Findings are only necessary upon material issuea {Knowles 
V. LecUe, 64 Oal. 377; LouvM v. Qvdley, 70 CaL 507 ; Malone 
V. Coimiy of Del NoHe, 77 Cal. 217.) 

Even if this was a material issue, the failure of the court to 
find thereon is not reversible error, inasmuch as ippellants pre- 
sented no request for such findings. (Code of Civil Procedure, 
Sec. 1114; Hoggin v. Saiie, 23 Mont 375; Oailagher v. Cor- 
nelius, 23 Mont 27; Currie v. Mont. Cent. Ry. Co., 60 Pac 
989; Noland v. Bidl (Oregon), 33 Pac 983; Dutertre v. Shal- 
lenberger (Nev.), 34 Pac 449; Bank of California v. Dyer 
(Cal.), 44 Pac. 534; Larimer & W. I. Co. v. Wyatt (Colo), 
48 Pac 528.) 

MR CHIEF JUSTICE BEANTLY, after stating the case, 
delivered the opinion, of the court 

1. Contention is made by counsel for appellants that the 
district court erred in excluding certain evidence tending to 
show that the defendants' ditch and premises axe upon the Fort 
Belknap Indian reservation. This contention proceeds upon 
the theory that, if it were made to appear that defendants' ditch 
and lands are within the limits of the reservation, this fact 
would necessitate a finding that defendants are not entitled to 
the use of any of the waters in controversy, because they could 
not lawfully occupy any portion of the reservation, or make an 
appropriation of waters thereon. The record discloses that the 
evidence was offered by the plaintiffs, and admitted without 
objection. Presumably, it was considered by the court so far 
as it was pertinent to any question involved in the case. Coun- 
sel say, however, that the memorandum opinion of the court 
filed with the clerk and incorporated in the record shows that 
the court expressly excluded this evidence in making up the 
findings, and refer to the memorandum as the basis upon which 
to predicate this assignment of error. The opinion of the 
court has no place in the record, and cannot be looked to for 
any purpose. {Cornish et al. v. Floyd-Jones, 2f! Mont 153, 



28 Mont], Phiulips et ai-. v. Coburn et al. 49 

66 Pae. 838 ; Menard v. Montana Central Ry. Co., 22 Mont. 
340, 56 Pac 592; Butte & Boston Mmmg Co. v. Societe 
Anonyme des Mines de Lexington^ 23 Mont. 177, 58 Pac. 131, 
75 Am. St. Rep. '505.) It is, th^crefore, not apparent from the 
record, to which alone this court may look, that the plaintiffs 
were prejudiced by the trial court in refusing to give such 
weight to the evidence in question as it deserved: We do not 
wish, however, to be imderstood by anything here said as hold- 
ing that the evidence was competent, and should have been con- 
sidered. Under the stipulation above referred to, an inquiry into 
the title by which the defendants hold their lands was not per- 
tinent to the casa Whether the right of defendants to the use 
of the water through a ditch which was taken out upon the reser- 
vation could thus be attacked in a collateral way, or whether 
this was a question exclusively between defendants and the 
federal government, we do not undertake to decide, because it 
is not properly before us. 

2. It is argued that the court erred to the prejudice of the 
plaintiffs in admitting evidence of declarations by Marshall 
and Mercer, the predecessors of plaintiffs, in disparagement of 
their right to the use of any of the waters of Warm Springs 
creek under the appropriation alleged to have been made by 
them on July 8, 1889, and prior to their convey anoe to plain- 
tiffs. The evidence tended to show that early in August, 1889, 
they had some conversation with certain of the witnesses who 
testified at the hearing, and at that time stated that they de- 
sired "to take up" a water right, and asked for information as 
to how they should proceed. The argument is that, inasmuch 
as the court found that their appropriation was made on Octo- 
ber 1, 1889, their declarations made in August could not be 
regarded as in disparagement of their title, because they could 
not then have been in possession of the property about which 
they were speaking. There is no merit in this contention. The 
plaintiffs claimed through Marshall and Mercer under an al- 
leged appropriation by them in July, and continuous posses- 
sion and use by them until they conveyed to plaintiffs. They 

Vol XXVIII-4 



50 Phillips et aIu v. Cobxjew bt al. [Mar. T.'03 

ofFered evidence tending to support this daim. This being so, 
plaintiffs could not effectively resist tlie introduction of their 
declarations made subsequent to that date, wihich tended to show 
that their claim was unfounded. The evidence falls clearly 
within the rule declared by Section 3125 of the CJode of Civil 
Procedure, and was admissible. Its admissibility and probative 
character was not affected by the finding of the court that the 
appropriation was in fact made at a later date than that daimjed. 
Presumably, these very dedaraticxns in a measure influenced 
the court in finding as it did. Ajcoording to the plaintiffs' con- 
tention, they should have been held admissible only after con- 
clusive proof that the appropriation had been made by Mercer 
and Marshall bs alleged. 

3. The point is made that the evidence is insufficient to 
support the findings. The specifications of particulars wherein 
the evidence is alleged to be insufficient da not meet the re- 
quirements of the statute (Section 1173, Code of Civil Pro- 
cedure), but are subject to the same infirmity as those criticised 
in Cain v. Oold Mountain Miming Co., 27 Mont 529, 71 Pac- 
1004, and cases cited. We find, however, from cuch examina- 
tion as we have been able to make of the evidence, unassisted 
by suitable specifications, that it is conflicting upon all the 
issues involved. We must, therefore, accept the judgment of 
the district court thereon as conclusive. 

The judgment and order are affirmed. 



28 Mont] 



Tague v. John Oaplice Co. 



51 



TAGUE, Respondent^ v. JOHN CAFLICE COMPANY, 1"^-^ 



Appellant. 

(No. 1,501.) 
(Submitted March 20, 1903. Decided April 27, 1903.) 

Corporations — Borrowing Money — Officers — Powers — Action 38 
— Contvniumce — Absence of Witness — Admissions — Effect — 28 6| 

Evidence — Pleadings in Other Suits — Issues — Withdrawal -^ 

— Appeai — Misconduct of Court — Preservation — Affidavits 
— Review. 




28 


61 


40 


35 


40 


497 



Where, in an action for money loaned, defendant claimed that plaintiff 
and C. were partners, and that the money was loaned by plaintiff to be 
used in their business, and thereafter the notes of a third person who con- 
ducted the business for the firm were received by plaintiff in settlement of 
the advancement, a verified complaint in an action by defendant against 
the wife of such manager, in which defendant claimed to be the owner of 
snch business, was admissible. 

Where defendant's articles of incorporation provided that it was organized 
to buy and sell wood, etc., and the minutes of a stockholders' meeting 
showed a motion, duly passed, ratifying certain contracts modifying a prior 
contract with N. employing him to manage the business, such contracts 
were not objectionable on the ground that their execution by the officers 
of the company were acts ultra vires. 

In the absence of any proof to the contrary, the executive officers of a 
corporation executing a contract under the corporate seal, in the name and' 
on the behalf of the corporation with reference to business comprehended 
In the articles of incorporation, and in which it is shown that the corpora- 
tion is actually engaged at the time, will be presumed to have full author- 
ity to bind the corporation by such act, and by the declarations and admis- 
sions contained in the contract itself, hence such contract is not objection- 
able for failure to prove the authority of the officers to execute the same. 
The admission of evidence in chief for the purpose of disproving an affirm- 
tive defense contained in defendant's answer, which would have been proper 
in rebuttal, was not error. 

Under Code of Civil Procedure, Section 1172, providing that when an ap- 
plication for a new trial is made for irregularity in the proceedings of the 
court, or for an abuse of discretion, it must be made on affidavits, an al- 
leged error, consisting in the use of certain language by the court in the 
presence of the Jury during the trial, cannot be reviewed, where the error 
Is not preserved and brought into the record by affidavit. 
The exclusion of evidence cannot be reviewed where no offer to prove the 
facts sought to be elicited by the excluded interrogatory was made. 
The exclusion of impeaching evidence was not error where the offer of 
proof did not fix the time when the alleged conversation occurred, or desig- 
nate the persons present, and no foundation was laid therefpr in the ex- 
amination of the witness sought to be Impeached, as required by Code of 
Civil Procedure, Section 3380. 



52 Tague v. John Oaplice Co. [Mar. T.'OS 

8. Under Code of Civil Procedure, Section 1039, tiie fact that plalntiflF ad- 
mitted tliat defendant's absent witnesses would testify as alleged, if pres- 
ent, did not deprive plaintiff of the right to object to the competency, rele- 
vancy, and materiality of such facts. 

9. Where evidence excluded by the trial court is not in the record, the alleged ■ 
error of the court in excluding it cannot be reviewed. 

10. Where, in an action for money loaned, there was no evidence that plaintiff 
had any knowledge that defendant intended to loan the money to N., or 
that plaintiff had agreed to accept N.'s notes in payment of the loan to 
defendant, the notes executed by N., some of which were made payable to 
defendant, and some to plaintiff by direction of defendant's trustees, with- 
out authority from plaintiff, were inadmissible. 

11. Where there was no evidence whatever on an issue raised by the pleadings, 
it was proper to withdraw such issue from the jury. 

Appeal from District Court, Silver Bow Cowniy; John Lind- 
say, Judge. 

Action by Thomas Tagne against the John Oaplice Com- 
pany, a corporation. From a judgment in favor of plaintiff^ 
and from an order denying its motion for a new trial, defendant 
appeals. Affirmed. 

Statement of the Case. 

This action was commenced in the district court by the plain- 
tiff, Tague, against the John Oaplice Oompany, a corporation, 
to recover a balance of $10,842.32, alleged to be due the plain- 
tiff for moneys loaned by him to the defendant company. The 
answer denies the material allegations of the complaint, and 
sets up these affirmative defenses: First That the plaintiff, 
Tague, and John Oaplice had been engaged in the wood busi- 
ness at Bemioe, Jefferson county, Montana, and that all moneys 
mentioned in plaintiff's complaint were by the plaintiff, Tague, 
delivered "to this defendant, to be by this defendant used for 
the benefit of said plaintiff and of the said John Oaplice in car- 
rying on the said wood business and in paying the expenses 
thereof." Second. That Tague and Oaplice entered into ne- 
gotiations with one Hiram N'elson to conduct the wood business 
for them, and that N'elson, to secure the necessary means to 
carry on such business, borrowed this money and executed his 
promissory notes therefor; that such notes were transmitted 



28 Mont] Tagots v. Joiln Caplice Co. 53 

to this defendant company, by it delivered to the plaintiflf, and 
by the plaintiff accepted and received aa payment and settle- 
ment in full for all moneys so advanced by him. When the 
cause came on for trial, the defendant company made a motion 
for continuance upon the ground of the absence of two -witr 
nessee, J. Eoss Clark and J. K. Heslet The application was 
made upon an affidavit setting forth the facts to which these 
witnesses would testify if present in court Thereupon the 
plaintiff admitted that, if the witnesses were present, the evi- 
dence would be offered as set forth in affidavit, but to certain 
portions of such evidence the plaintiff Reserved the right to ob- 
ject when it was offered. Thereupon the court overruled the 
nuytion for continuance, and the cause proceeded to trial. The 
court, after defining the issues raised by the pleadings, in- 
structed the jury that no evidence had been offered to establish 
the fact that any association had ever existed between the plain- 
tiff and John Caplice in the wood business, or that any of the 
moneys loaned by the plaintiff had ever been paid by the notes . 
of Hiram Nelson, or otherwise, and directed the jury to disre- 
gard those defenses set forth in the defendant's answer, and 
that the only question before them for determination was 
whether the naoney was loaned to the defendant, John Caplice 
Company, and that the burden of proof was upon the plaintiff 
to establish this fact The jury returned a verdict in favor of 
the plaintiff for the full amount claimed, and from the judg- 
ment entered thereon, and from an order denying its motion 
for a new trial, the defendant has appealed. . 

Mr. Jesse B. Boote, and Mr. W. A. Clark j Jr., for Appellant 

Whether a note is taken in payment of a debt is a question for 
the jury. (Crabtree v. Rowand, 33 111. App. 423; Goldshede 
V. Cattrelh 2 Mees. and W. 20; Lyman v. Bank of U. S., J 2 
How. (TJ. S.), 225 ; MyaUs v. Bell, 41 Ala. 222 ; Cat^ey v. Wea- 
ver, 141 Mass. 280 ; Comer v. Pratt, 138 Mass. 446 ; Cobum v. 
Odell, 30 K H. 540, 557; Johnson v. Cleaves, 15 N. H. 332; 



54 Tague v. John Oaplicb Co. [^ar. T.'OS 

White V. JoneSj 38 111. 159 ; Bonnell v. Champerlain, 26 Ooim. 
487 ; Susquehamna Fertilizer Co. v. White, 66 Md. 444, 59 Am. 
Eep. 186; Solomon v. Pioneer Co-Operative Co,, 20 Fla. 374, 
58 Am. Rep. 667; Bvllen v. McGilcuddy, 2 Dana (Ky.), 91; 
Gardner v. Gorham, 1 Dougl. (Mich.), 207; Kerl v. Bridgers, 

10 Smed. & M. (Miss.), 612; Seltzer v. Coleman, 32 Pa. St 
493 ; Homer v. Hower, 49 Pa. St 475 ; Brown v. /Sco«, 51 Pa. 
St 357; Union Batik v. Smizer, 1 Sneed (Tenn.), 501; JoArir 
son V. Weed, 9 John. (N*. Y.), 310; same case reported in 6 
Am. Decisions, 279.) 

If a note of a third person is taken for a debt, such note will 
be deemed to have been accepted by the payee in payment, un-, 
less the contrary be expressly proved. (Whitbech v. Van Hess, 

11 John. (N. Y.), 409; also 6 Am, Dec 383; Melledge v. Bos- 
ton Iron Co., 5 Ciish. (Mass.), 158, 51 Am. Dec. 59; 2 Ben- 
jamii^ on Sales, 6th Ed., 938 ; 18 Am. & Eng. Encgr. of Law, 
169.) 

If the question of whether a note was accepted in payment 
is a question for the jury, then evidenoe of any fact tending to 
prove that question is competent to go before the jury in deter- 
mining the ultimate fact It is not necessary to prove an ex- 
press agreement to the effect that the note was taken in settle- 
ment ; this fact may be proven by facts and circumstances sur- 
roimding each case; said question is one of fact for the jury. 
(White v. Jones, 38 111. 159 ; Holclii)i v. Secor, 8 Mich. 494.) 

Where there is evidence tending to prove a fact having an 
important bearing upon the law of the case, though strongly 
contradicted, an instruction is erroneous which ignores the ex- 
istence of such a fact, and takes it from the consideration of 
the jury. (Chicago P. & P. Co. v. Tilton, 87 HI. 547.) 

When the evidence tends to prove a certain state of f ac?ts, the 
party in whose favor it is given has a right to have the jury 
instructed on the hypothesis of such a state of facta, and leave 
it to the jury to find whether the evidence is sufficient to estab- 
lish the facts supposed in the instruction. If the instructions 
are pertinent to any part of the testimony, they should, if cor- 



28 Mont] Tague v. John Caplioe Co. 55 

rect, be given -witliout regard to the amount of evidence to which 
they apply. (Oriel v. Marks, 51 Ala, 566; Stale v. Qibhons, 
10 la. 117; KervMl v. Brown, 74 111. 232.) 

When an instruction is asked upon a question concerning 
which there is no direct testimony, yet if there be any proof 
tending to establish it, such question should be submitted to 
the jury, as the party asking instruction is entitled to the bene- 
fit of whatever inference the jury may think proper to draw 
from the proof, however slight {Peoria Ins. CV>. v. Anapow, 
45 111. 87 ; Flonmoy v. Andrews, 5 Mo. 518 ; Camp v. Phillips, 
42 Ga. 289.) 

The instructions of the court should be restricted to the is- 
sues made by the pleadings, and to the evidenca (Nollen v. 
Wisner et ai., 11 la. 190 ; Iron Mount. Bank v. Mwrdock, 62 
Mo. 70.) 

If there was any evidence in this case — and there certainly 
was an ample amount of it — ^which tended in the remotest de- 
gree to prove that Tague accepted the notes in question as pay- 
ment, then he could' not recover in this case if the jury would 
so find, and the court should have instructed the jury upon all 
the facts pertinent to the issues of which there was any evidence 
to support theuL (Eli v. Tollman, 14 Wis. 28 ; Hill v. Can 
field, 56 Pa. St 4:54t;Hov;e 8. Mach. Co. v. 0. Laymen, 88 111. 
39; Atkins v. Nicholson, 31 Mo. 488; Toledo, etc. Ry. Co. v. 
Shuckman, 50 Ind. 42 ; Waha^h Rd. Co. v. Eenks, 91 111. 400.) 

The charge of the court should be strictly confined to matters 
of law, and it is erroneous for the judge to tell the jury what 
facts are proved and what are not The court has no authority 
to instruct the jury as to what the evidence proved. (Russ v. 
Steamboat, etc.^ 9 la. 374; Thompson v. Hovey, 43 111. 198; 
see note to Section 1080, pp. 259 to 262 of the Code of Civil 
Procedure of Montana, 1895.) 

It is error for the court to take from the consideration of the 
jury any evidence that tends to prove a fact, though strongly 
contradicted, that has an important bearing on the case. (Chi- 
cago P. & P. Co. V. Tilton, 87 111. 547.) 



66 Tagub v. John Oaplioe CJo, [Mar. T/03 

The province of the court is to instruct the jury as to the law 
of the ease and that of the jury to find the facts proven by the 
evidence. It is ertor for the court in giving an instruction to 
assume that facts have been proved or not proved or that a cer- 
tain state of facts exists. (Russell v. Mmteer, 83 111. 150; 
Stier V. The City, etc, 41 la. 353; Siebert v. Leona/rd, 21 
Minn. 442.) 

It is error to tell the jury, without qualification, that the evi- 
dence raises a preBumption of a particular fact, or is sufficient 
to justify finding a particular fact, if it raises not a presump- 
tion of law, but only a presumption of fact on which they might 
find either way. {Stone v. Geyser Q, M. Co.y 52 Cal. 315 ; 
Allison V. State, 42 Ind. 364, 357; Read v. Hurd, 7 Wend. 
408.) 

If the court instructs the jury that the matters given in evi- 
dence are conclusive on the one side, and the matters given in 
evidence on the other side are not sufficient^ and that if the jury 
agree with him in opinion they ought to find so and so, without 
more, it is error. {Firemen's Ins. Go, v. Walden, 12 John. 513, 
7 Am. Dea 340; Oord(m v. Littte, 8 Serg. & R 533, 11 Anr. 
Dec. 632 ; Allis v. Leonard, 58 K Y. 288 ; Massoth v. Delaware 
& H, C. Co., 64 K Y. 524, 533.) 

It is a settled, rule of law as old almost as the law itself, that 
in trials by a jury, the judge decides questions ^f law and the 
jury questions of fact (Ck)ke on Littleton, 155-156; Foster's 
Cr. Law, 256.) 

The jury, in action at law, are judges of the facts, and the 
judge has no power or right to give binding instructions, where 
no conclusive fact is proven; and even if he thinks the testi- 
mony to establish a material fact was incredible he cannot in- 
struct the jury to cast it aside. {Curry v. Currj/, 114 Pa- St. 
367.) 

The court has no right to direct as to the weight the jury shall 
give to any evidence submitted to them. {State v. Hojfma/n, 
(Oregon), 16 Pac Kep. 640.) 

"Where the evidence conflicts without any apparent prepon- 



58 Mont] Tague v. John Caplice Co. 57 

deranoe on either side, it was error to instruct the jury to find 
for the defendant" (Adams v. Berg (Miss.), 3 So. Rep. 465.) 
In other words, the court must not invade the province of the 
jury. (Note 2, page 238 of Vol. 11, 1st Ed. Am. & Eng. Ency. 
of Law.) 

It is the duty of the court to instruct upon whatever state of 
facts there is evidence tending to prove and the* instructions 
should be confined to the issues. (Proffat in Jury Trial, Sec. 
^13; Nollen v. Wisner, 11 Iowa, 190; King v. Kmg, 37 Ga. 
205 ; Miles v. Douglas, 34 Conn. 393 ; Hill v. Canfield, 56 Pa. 
St 454; Hooker v. Johnson, 6 Fla. 630.) 

The judge in this case was not bound to simi up the evidence, 
much less strike any of it out, but as he did so he should have 
presented all the material facts under the issues and not have 
instructed the jury upon any isolated facts, and should not give 
undue prominence to certain portions of the evidence; and if 
he assumes to state the evidence to the jury it is his duty to 
state all the evidence to them fairly and candidly without strik- 
ing out any or giving undue prominence, to any part of it 
(Thompson, Charging the Jury, 109, 111 ; State v. N orris, 3 
Hawks (l!?. C), S90;Penn. R. Co. v. Zebe, 33 Pa, St 318.) 

The judge should not frame his instructions as to assume a 
disputed state of facts as proven. This rule is of equal appli- 
cation in both civil and criminal cases. (Seibert v. Leonard, 
21 Minn. 442 ; StroAis v. Minzesheimer, 78 111. 492 ; Boddie v. 
State, 52 Ala, 395 ; Wash,, etc. R. Co. v. Oladmon, 15 Wall. 
(U. S.), 401; N. Y. Life Ins. Co. v. Baker, 94 U. S. 611; 
Peck V. Ritchey, 66 Mo. 114; Oaither v. Martin, 3 Md. 162; 
State V. Kennedy, 7 Nev. 374; Ki/nney v. Williams, 1 Colo. 
191 ; Wall V. Ooodenowgh, 16 IlL 415 ; Walters v. Chicago, etc. 
R. Co., 41 Iowa, 71; McDonald v. Beal, 55 Ga,, 288; Chapter 
of Instructions in Vol. 11, page 236 of the 1st Ed. of the Am. 
& Eng. Ency. of Law, and Chapter 18 of Hayne on N"ew Trial 
and Appeal, Sec 120, page 329.) 

The court erred in sustaining the objections made by counsel 
for plaintiff to the evidence offered on the part of defendant. 



58 Tagub v. John Caplice Co. [Mar. T/OS 

(Eice on Evidence, Vol. I, Chap. XI, p. 431 ; Plainer v. Plat- . 
ner, 78 K Y. 90 ; Trull v. True, 33 Me. 367 ; 3 Wait^ L. & Pr.^ 
272 ; Hwrt v. Newland^, 3 Hawks. 122 ; Home Ins. Co. v. Weide^ 
(78 U. S.-) 11 Wall. 4S8;nagertjfY. Andrews, 94 N. Y. 195 r 
Rice on Evidence, Vol- I, Chap. XII, p. 488.) 

Mr. W. W, Dixon, and Messrs. McHatton & Cotter, for Re^ 
spondent 

ME. JUSTICE HOLLOWAY, after stating the case, deliv- 
ered the opinion of the court 

Upon the trial the plaintiff offered in evidence a complaint 
in an action oommenced by the defendant herein, the John 
Caplice Company, against Fannie Ifelson, in the district court 
of Silver Bow county, on May 18, 1896, in which complaint 
the John Caplioe Company claimed to be the owner of the wood 
business at Bemice, Jefferson county, Montana, which com- 
plaint contains copies of two contracts purporting to have been 
executed between the John Caplioe Company and Hiram Nel- 
son with reference to the wood business at Bemice. The com- 
plaint further claimed that the defendant^ Fannie Nelson, was 
attempting to assert ownership to the wood and to dispose of it, 
and asked that by a decree of the district court the John Caplice 
Company be declared to be the owner and entitled to the pos- 
session of such wood. This complaint was verified by the sec- 
retary of the company. This evidence was objected to as im- 
material and incompetent, and upon the gi'ound that the con- 
tracts set out in the complaint show that their execution by the 
officers of tliis defendant company were acts vHvd vires. The 
objection was overruled, and error is now assigned. 

We think the evidence was properly admitted. It is a well- 
settled rule that declarations or admissions of a party made. in 
pleadings are admissible against him in another action in behalf 
of a stranger to the action in which such pleadings were filed, 
if they were verified by the party or prepared under his in- 
structions. (Pope V. Allis, 115 U. S. 363, 6 Sup Ct 69, 29* 



28 Mont] Tague v, John Oapxice Co. 5^ 

L Ed. 393; Hyman v. Wheeler (C. C), 29 Fed. ^347; 8t 
Lovis Mutual Life Ins. Co. v. Cravens, 69 Mo. 72 ; Elliott v. 
Hoyden, 104 Mass. 180.) The contracts referred to in the 
complaint were made with reference to the wood, business at 
Bemioe, one dated December 10, 1894, and the other dated 
April 6, 1895, which referred to the same subject-matter, and 
purported to modify somewhat the terms of the prior contract. 
The order of proof may have been somewhat irregular, but in 
view of the fact that plaintiff immediately offered in evidence 
the articles of incorporation of the John Caplice Company, 
which, among other things, provided that the objects for which 
the corporation was organized were "to buy and sell wood and 
lumber and building material of whatever kind, to establish,, 
conduct and carry on the business of cutting, buying and selling 
and manufacturing cord wood," etc., and further offered in 
efvidence the minutes of the meeting of the stockholders of such 
corporation showing the election of officers, and which minutes 
contain this recital : "It was moved by John Branagan that 
the contract dated the 10th day of December, 1894, made be- 
tween the John Caplice Company, a corporation, party of the 
first part, and Hiram Nelson, party of the second part, be ap- 
proved and ratified. The motion was seconded by Arthur H. 
Wethey, and was caCrried unanimously" — ^which minutes were 
signed and attested by the president and secretary of the corpo- 
ration — ^we cannot say that the district court erred in its ruling. 
The plaintiff also offered in evidence a contract between the 
John Caplice Company and Hiram and Fannie ?Telson, dated 
July 8, 1896, which provided for the compromising of certain 
lawsiiits, and which coiitract further contained the provision 
that the John Caplice Company was at that date t£e owner of 
the wood business at Bemice, and further provided for the dis- 
position of the wood. This contract recited that the John Cap- 
Kce Company made the contract, and caused it to be executed 
by its president and secretary, by whom it was signed, and to 
which the corporate seal was attached. To this offer the defend- 
ant company objected on the ground "that it does not appear 



60 Tague v. John Caplice Co. [Mar. T.'03 

that the party executing this contract as president of the John 
Caplice Company had any authority to do so." This objection 
was overruled and exception taken, and it is now urged that the 
district court erred in permitting this evidence to go to the jury. 
We think there is no merit in the contention. The record of 
the iproceedings of the organization of the corporation, the elec- 
tion of its oflScers, the adoption, of its corporate seal, a copy of 
its articles of incorporation, and evidence that the company was 
actually engaged in the wood business at Bemice, had all been 
introduced, and the contract was signed by the executive offi- 
cers designated by the trustees of that company and attested by 
the corporate seal, and, in the absence of any proof to the con- 
trary, the executive officers of a corporation executing contracts 
in the name and on behalf of the corporation with reference to 
business comprehended in the articles of incorporation, and in 
which it is shown that the corporation was actuallv engaged at 
the time of the execution of such contracts, will be presumed 
to have full authority to bind the corporation by such acts, and 
by the declarations and admissions contained in the contracts 
themselves. (4 Thompson on Corporations, Sec 5106.) 

Objection was made to all of this documentary evidence on 
the ground that it was immaterial, and, so far as this objection 
is concerned, w© may say that we are of the opinion that the 
plaintiff assumed a burden which it was not necessary for him 
to do. At the beginning of the p^roceedings the defendant had 
asserted in an affirmative defense that the wood business at Ber- 
nice was carried on by the plaintiff herein and one John Caplioe, 
and it was not necessary for the plaintiff to offer evidence to 
dispute that, or to show that as a matter of fact such wood busi- 
ness was actually carried on by the John Caplice Company, 
until after the defendant company had offered some evidence 
in support of such affirmative defense; in other words, this evi- 
dence was properly rebuttal, but it was directed to an issue 
fairly raised by the pleadings, and no possible harm oould have 
been suffered by the defendant by reason of the fact that the 
plaintiff was assuming the burden, in the first instance, of dis- 



28 Mont] Tague v. John Caplice (3o. 61 

proving an affirmative defense contained in the defendant'^ 
answer by evidence which would have been, perfectly proper in 
rebuttal. If there was error at all, it was in the order of proof , 
and entirely without prejudice. 

During the progress of the trial, in a colloquy between the 
court and counsel, the court made use of certain language in 
the presence of the jury, to which the defendant took exception,, 
and it is now urged that this was prejudicial error. If error, 
it was because of an irregularity in the proceedings of the courts 
or an abuse of its discretion, as specified in Section 1171 of the 
Code of Civil Procedure, and such error can only be saved and 
brought into the record on appeal to this court by affidavit 
(Section 1172, Code of Civil Procedure; Coleman v. Perry,. 
28 Mont. 1, 72 Pac. 42.) This was not done, and the allied 
error is not, therefore, before us. 

Upon the examination of the witness Corbett for the defend- 
ant, this question was asked : "Did you ever have any conver- 
sation with Mr. Caplice, or hear Mr. Caplioe have any conver- 
sation, regarding this wood business that is in litigation in this 
case, at any time?" An objection to the question was sus- 
tained, and error is now predicated upon such ruling. No offer 
to prove the facts sought to be elicited by the question was made, 
the excluded evidence is nqt before us, neither is it apparent 
from the question itself, and it is therefore impossible for this 
court to say whether tbere was error in the ruling of the trial 
court. 

An offer was made by defendant to prove the substance of a 
conversation had between Mr. Heslet, the then president of the 
defendant company, and the plaintiff to this action, and, had" 
the proper foundation been laid, the evidence would have been 
admissible and material, as tending to contradict the plaintiff's 
theory of the case, and possibly discredit the plaintiff himself ; 
but it was clearly impeaching evidence, and the offer did not 
fix the time when the alleged conversation occurred or designate 
the persons who were present at the time, neither was the state- 
ment contained in the offer related to the plaintiff when he was 



<52 Taqxje i;. John Caplice Co. [Mar. T.'03 

on the witQess stand, and the proffered testimony was therefore 
properly excluded. (Section 3380, Code of Civil Procedure; 
State V. O'Brien, 18 Mont 1, 43 Pac 1091, M Pac. 399.) 

When the defendant came to offer its. proof, :ind attempted 
to introduce in evidence the affidavit containing the testimony 
to which it was admitted the absent witnesses J. Roes Clark 
and J. K. Heslet would testify, objections were made to certain 
portions of that testimony, and by the court sustained. The de- 
fendant now claims that this was error, and that it was misled 
by the ruling of the court in first denying its motion for contin- 
uance upon the ground that the plaintiff had admitted that the 
witnesses, if present, would testify to those facts, and then ex- 
cluding certain of the facts. Upon this we may say that an 
admission, upon the part of one party, that witnesses for the 
other, if present, would offer to testify to certain f acts^ does 
not admit the competency, relevancy, or materiality of the evi- 
dence, or preclude the party making the admission from object- 
ing to any portions of the testimony to be offered upon any of 
those grounds. This is clearly the meaning of Section 1039 of 
the Code of Civil Procedure. If the absent witnesses had been 
present, the plaintiff would have had the undoubted right to 
make such objection, and the court to sustain it, so that the der 
fendant was in no worse position than he would have been had 
his witnesses been in court However, the evidence excluded is 
not embraced in the statement on motion for new trial, and not 
before this court at all. It is therefore impossible for us to say 
whether or not the testimony sught to be adduced, but excluded, 
should have been admitted. 

The defendant offered in evidence the eight notes which had 
been taken from Hiram Nelson, four of which were made pay- 
able to the John Caplice Company and four made payable to 
the plaintiff, Tague, by direction of J. Ross Clark, a trustee of 
the defendanat company. Upon objection they were excluded. 
There is absolutely no evidence in the record tending to show 
that the plaintiff, Tague, had any knowledge whatever of what 
use was being made of his money after it was delivered to the 



28 Mont] Tague v. John Caplice Co. 63 

defendant There is no evidence in tlie record whatever that he 
had ever authorized the defendant to loan his money to and 
take -therefor the notes of third parties, or that he had ever 
agreed to accept such notes in paynuent for the money loaned by 
him; and neither at the time these notes were offered in evi- 
dence, nor at any other time during the course of the trial, was 
any attempt made to show that the plaintiff had ever agreed 
to tate these notes, or any of them, further than the mere fact 
that when plaintiff had directed John Oaiplice, who had poe^ 
session of certain papers belonging to Tague, to turn over to 
hia attorney, W. W. Dixon, all of his (Tague's) papers, Gaplice 
had, among others, delivered to Mh Dixon these notes, and they 
had been retained by him until the time of the trial. 

Complaint is made that the court invaded the province of 
the jury in instructing them that no evidence had been offered 
proving, or tending to provei, the existence of any copartnership 
or association between the plaintiff, Tague, and John Caplice 
in the wood business at Bemioe, or that proved, or tended to 
prove, that the plaintiff had ever accepted the Nelson notes in 
satisfaction for the money which he had delivered to this de- 
fendant While it is true that the jury are the sole judges of 
the facts in the case, and to them should be submitted for their 
determination every issue of fact upon which there is any sub- 
stantial evidence, it is the duty of the court, when no testimony 
whatever has beten offered upon an issue raised by the pleadings, 
to withdraw it from the jury, and not permit them, by mere 
surmises, conjectures, or speculations^ to determine such an is- 
sue by their verdict (Campbell y. Metcdlf, 1 Mont 378; 
Sweeney v. Darcy, 21 Mont 188, 53 Pa^j. 540.) 

The only question before the court and jury for determination 
upon the pleadings and the evidence in this case was whether 
or not the plaintiff's money had actually been loaned to the de- 
fendant company, and that issue was fairly submitted, upon 
proper instructions, to the jury, and determined in the plain- 
tiff's favor. 

We have carefully examined the other errors assigned by the 



64 BiRNEY V. Warren. [Mar. T/Oa 

defendant, but find no merit in them. The evidence is amply 
sufficient to support the judgment, and, no error appearing in 
the record, the judgment and otrder appealed from are affirmed. 

Affirmed. 



og 64! 

38 i3§ BIRKBY, Appellant, v. WAKREN, Respondent. 

(No. 1,502.) 
(Submitted March 21, 1903. Decided April 27, 1908.) 

Taxaiion — Personal Property — Assessment — Misnomer — 
Effect on Sale — Caveat Emptor — Statement of Facts — Con- 
clusion of Lam — Cordradiction — Effect. 

1. Political Code, Sections 3700, 3707, wMcli proride tliat personal property 
must be assessed to the person by whom it is owned or claimed, and that 
if the name of an absent owner is unknown it must be assessed to "un- 
known owners," are mandatory, and a misnomer of the owner of personal 
property assessed as the property of a particular person yitlates the assess- 
ment and renders a sale thereunder void ; Section 3916, which provides 
that, when land is sold for taxes correctly imposed as the property of a 
particular person, no misnomer of the owner, or supposed owner, shall 
affect the sale, not applying to personal property. 

2. The rule of caveat emptor applies to sales of property for delinquent taxes. 

3. Under Code of Civil Procedure, Section 1117, which provides that an agreed 
statement of facts has the effect of special findings, a conclusion of law 
contradictory of the agreed statement is sufficient to vitiate the Judgment. 

Appeal from District Court, Broadwater County; F. K. Armr 
strong. Judge. 

Injunction by Charles A. Bimey against John J. Warren. 
From a judgment for defendant, plaintiff appeals. Reversed. 

Statement op the Case. 

The action was commenced by the plaintiff, Bimey, to se- 
cure an injunction restraining the defendant, Warren, from 
removing certain hoisting and other mining Snachinery and 



! 

j 28 Mont] BiBNBY v. Wabkesn. 65 

certain frame buildings from, unpatented mining claims situate 
in Jefferson (now Broadwater) county, Montana. The plain- 
tiff in his complaint claims that he was at the date of the com- 
mencement of the action, April 26, 1897, the owner, in posses- 
sion and entitled to the possession, of the above-mentioned prop- 
erty, and that the defendant threatens to and will, unless re- 
strained by the court, remove the same and carry it away. The 
defendant answered, setting up his claim to the property by vir- 
tue of a bill of sale which he had received from the county 
treasurer upon a pretended sale of the po-operty for delinquent 
taxes for the year 1896. The parties then agreed upon a state- 
ment of the facts, upon which tlie cause was tried, it being con- 
ceded and certified in the bill of exceptions thut the agreed 
statement contains all the facts. The facts agreed upon, so far 
as they are material to a decision of this case, are : That the 
county assessor assessed the property above jnentioned for the 
year 1896 as personal property, having a value of $1,500 inde- 
pendent of the mining claims upon which it was located and to 
which it was appurtenant; that he assessed it in the name of 
the Queen Bee Mining Company ; that no objection was made 
to the board of equalization of the assessment of the property ; 
that the tax- levied upon the property was not paid ; that the 
treasurer sold the same in the manner provided by law for the 
sale of personal property for delinquent taxes ; that the defend- 
ant Warren, became the purchaser at such sale^ and received 
a bill of sale from the treasurer for the property ; that, as a 
matter of fact, no such corporation or concern as the Queen Bee 
Mining (Company was in existence until after the date of the 
sale of the property ; that the plaintiff, Bimey, and one Mc- 
Pherson purchased the property in January, 1896 ; and that they 
were both nonresidents unknown to the assessor. The agreed 
statement then contains this paragraph: "That on the 13th day 
of July, 1896, Charles A. Bimey, the plaintiff herein, suc- 
ceeded to all the rights of the said McPherson, and was then 
the owner of the property mentioned in the complaint herein, 
and was the owner of said property at the time of the sale for 

Vol. XXVIII-6 



66 BiBNBY V. Waebbn. [Mar. T.'03 

taxes mentioned in defendant's amended answer, and was the 
mvner of tlie same at the time of the commencement of this 
action," 

Upon the trial the court mjsuie the following conclusions of 
law: "(1) That the taxes assessed and levied upon the prop- 
erty in controversy in this action for the year 1896 by the asr 
seseor of Jefferson county, Montana, were assessed and levied 
according to law. (2) That the tax sale of said property to 
defendant by the treasurer of said Jefferson county, had on the 
27th day of February, 1897, was made according to law. (3) 
That by said sale the ownership and right of possession to said 
property, and the whole thereof, passed to John J. Warren, the 
purchaser at said sale, and the defendant herein. (4) That said 
John J. Warren is now, and has been ever since said 27th day 
of February, 1897, the owner and entitled to the possession of 
all of said property." Judgment for costs in favor of the de- 
fendant was entered- thereon, from which this appeal is taken. 

Messrs, Toole & Bach, for Appellant 

Mr. E. H, Ooodman, for Respondent. 

MR. JUSTICE HOLLOWAY, after stating the case, deliv- 
ered the opinion of the court 

The first conclusion of law made by the court is, in our judg- 
ment, erroneous. Under Section 3672 of the Political Code, 
all machinery used in mining, and all property and surface im- 
provements upon or appurtenant to mines and mining claims, 
which have a value separate and independent pf such mines or 
mining claims^ shall be taxed as other personal property, and, 
as the property in controversy comes within the purview of this 
section, it was properly assessed as personal property. Section 
3700 of the same Code provides that the assessor must ascertain 
the names of all taxable inhabitants and all property in his 
ooimty subject to taxation, and must assess such property to the 
persons by whom it was owned or claimed, or in whose posses- 



28 Mont] BiRNBY v. Warren. 67 

fiion or control it was, at 12 o'clock m., on the first Monday of 
March next preceding. Section 3706 of the same C5ode provides 
that, if the owner or claimant of any property is absent or un- 
known, the assessor must make an estimate of the value of the 
property ; and Section 3707 provides that, if the name of the 
absent owner is known to the assessor, the property must be 
assessed in his name; if unknowoi, it must be assessed to "un- 
known owners." The record discloses the fact that the property 
in question was assessed to the Queen Bee Mining Company. 
The corporation bearing that name had no existence whatever 
until after the sale of the property. The record further shows 
that the property was owned by this plaintiff and McPherson, 
both of whom were nonresidents unknown to the assessor. There 
is no showing in the record that any one had actual possession 
of the property on the first Monday of March, 1896, or that 
any one other than Bimey and McPherson had constructive 
possession of it. The assessor, them, did not assess the property 
to the persons by whom it was owned on the first Monday of 
March of that year. He did, however, following the require- 
ments of Section 3706, make an estimate of the value of the 
property, and then, notwithstanding Section 3707 required in 
this case that the property should be assessed to "unknown 
owners," he assessed it to the Queen Bee Mining Company, to 
whom he supposed the property belonged. The query then is, 
what is the effect of a mistake in the name of the o^vner of per- 
sonal property upon the assessment so made? Section 3916 of 
the same Code provides: ^When land is sold for taxes correctly 
imposed as the property of a particular person, no misnomer of 
the owner, or supposed owner, or other mistake relating to the 
ownership thereof, affects the sale, or renders it void or void- 
able." Applying to this section the rule of interpretation, 
"Expressio urmis est exclusio Merius," the conclusion neces- 
sarily follows that, when personal property is sold for taxes 
imposed as the property of a particular person, a misnomer or 
mistake relating to the ownership thereof does vitiate the assess- 
ment, and renders the sale void; in other words, the provisions 



68 BiBNEY V. Wabskn. [Mar. T.'03 

of Sections 3700 and 3707 axe mandatory, and, >vitli the quali- 
fications therein mentioned, require the aseeBsor to assess per- 
sonal property in the name of the real owner, if known ; if not 
known, then to "unknown owners." (People v, Whipple, 47 
Cal: 591 ; Dowell v. City of Porttand, 13 Or^pn, 248, 10 Pac 
308.) In Crawford v. Sclimidt, 47 Cal. 617, in constnaing Sec- 
tion 13 of the Eevenue Act of California of 1861, which pro- 
vides that the assessor shall list and assess property to the per^ 
son owning, claiming, or having possession or control of the 
same, and, if the name of such an absent owner ig known to the 
assessor, the property shall be assessed in his name, and, if un- 
known to the assessor, tlie property shall be assessed to "un- 
known owners," the court makes this comment: "The statute 
is imperative that the property must be assessed to the owner, 
if known, and, if not, to unknown owners. In this case the 
assessment was not, and does not purport to have been^ made to 
unknown owners. It cannot, therefore, be assumed that the 
name of the owner was unknown to the assessor. But instead 
of assessing the property to Caroline Schmidt, who was the 
owner, he assessed it to — ' — ■ Schmidt, a designation which 
would have applied as well to any other Schmidt, whether male 
or female, aa to the real owner. We think this was not a com- 
pliance with the statute, and that the assessment and sale were 
void." In LaJce County v. Sulphur Bank Q. M. Co., 66 Cal. 
17, 4 Pac 876, the court, in construing Section 3628 and sub- 
sequent sections of the Political Code of California, held that a 
mistake in the name of the owner of real property does not in- 
validate the tax, but that an assessment of personal property to 
a named person other than the owner is absolutely void. 

Neither is the defendant in this case in a position to com- 
plain of the harshness of this rulec The assessment and sale of 
property for delinquent taxes is a proceeding ifi invitum; the 
purchaser at such a sale buys at his peril, and the mile of caveat 
emptor applies. (Lake County v. Sulphur Bank Q. M. Co., 
above; Hecht v. Boughton, 2 Wyo. 385.) 

In conclusion we may say that the fourth conclusion of the 



28 Mont] Rtjmnby bt ai- v. Donovan. 69 

court, "that said John J. Warren is now, and has been ever 
since said 27th day of February, 1897, the owner and entitled 
to the possession of all of said property," is directly in conflict 
with and contradictory of the statement contained in paragraph 
12 of the agreed statement of facts quoted above, which is that 
Birney was the owner of the property at the time of the com- 
mencemnt of this action (April 26, 1897). Section 1117 of 
the Code of Civil Procednre provides that the agreed statement 
of facts has the effect of special findings of fact, and we are of 
the opinion that a conclusion of law directly contradictory of a 
finding of fact would in itself suffice to vitiate a judgment en- 
tered thereon. 

For the reasons herein set forth, the judgment appealed from 
IS reversed, and the cause remanded for further proceedings not 
in conflict with the views herein expressed. 

Reversed a/nd remanded. 



RUMNEY ET AL., Respondents, v. DONOVAN", Appellant. 

(No. 1,920.) 
(Submitted April 13, 1903. Decided April 27, 1903.) 

Receivers — Order of Appointment — Appeal — Supersedeas — 
Return of Property — Contempt 

1. Under the ezpress provisions of Session Laws of 1899, p. 146, an ea parte 
order appointing a receiver is appealable. 

2. An order of the supreme court staying proceedings under an order appoint- 
ing a receiver requires the immediate return of the property to the person 
from whom it was taken. 

3. Where, after an order of the supreme court staying proceedings under an 
order appointing a receiver, the receiver, in good faith and under advice of 
counsel, did not return the property to the person from whom it was taken, 
the question of whether or not the order staying proceedings operated to 
require such a return being previously unlitigated, the receiver was guilty 
of merely a technical contempt, and should be required to pay only a 
nominal fine. 



70 RuMNEY ET Ai^ V. DoNOVAN. [Mar. T.'03 

Appeal from District Court j Lewis and Clarke County; J. 
M. Clements, Judge. 

Action by Sarah F. Rumney, individually and as a guaiv 
dian, against James Donovan, in which William T. Lnddy was 
appointed receiver of certain property. Defendant appeals. 
On hearing of an order to show cause why the receiver should 
not be punished for contempt of court for failure to return the 
property to defendant after entry of an order suspending the 
order of appointment. Receiver adjudged guilty of contempt 

Mr. F. W. Mettler, for Appellant 

Mr. M. 8. Qurm, and Mr. A. J. Oalen, for Respondents. 

Messrs. McConnell & McConnell, for the Receiver. 

MR JUSTICE HOLLOWAY delivered the opinion of the 
court 

This action was commenced in the district court on February 
13, 1903, by the plaintiffs, to foreclose an alleged vendor's lien 
upon certain personal property. In addition to this, the prayer 
of the complaint was that a receiver be appointed to take pos- 
session of such property. Upon application ex parte, the court 
on the same day appointed Wm. T. Luddy receiver, and di- 
rected him to take immediate possession of the property in con- 
troversy, consisting of certain stock cattle. From the order ap- 
pointing the receiver the defendant Donovan appealed to this 
court, and upon his application an order was made by the 
justices, of this court on February 14, 1903, staying all pro- 
ceedings in the district court until the further order of this 
court, and particularly staying all proceedings under the order 
appointing such receiver. This order was made to be effective 
upon the appellant, Donovan, giving a sufficient undertaking, 
to be approved by the clerk of this court Such an undertaking 
was approved and filed by the clerk on February 18, 1903. 

On March 20, 1903, the respondents filed a motion to dismiss 



28 Mont] E.UMNEY et al. v. Donovait. 71 

the appeal on the ground that the order appointing the receiver, 
made ex parte, is not an appealable order. This motioai was 
heard, considered, and denied by this court on the 30th day of 
March, 1903. On March 28th an application was made to var 
cate the order staying proceedings upon the ground that the 
order appealed from is not an appealable order, and because of 
certain defects in the record on appeal. On the same day an 
application was made by appellant to this court for an order 
directed to the receiver, requiring him to show cause, if any he 
had, why he should not be punished for contempt for refusing 
to return to the possession of the appellant the property in con- 
troversy, then in the possession of such receiver. The applica- 
tion was made upon afSdavits setting forth the facts herein de- 
tailed, and the fact that, after filing the stay bond required of 
him by this court, appellant demanded the return of such prop- 
erty from the receiver, and the refusal of the receiver to comply 
therewith. An order to show cause was issued, and upon return 
thereof the cause was argued and submitted. The affidavit of 
the receiver, filed in answer to the order to show cause, raises 
no material issue of fact; and the only questions before this 
court for determination arc whether the order made by this 
court staying proceedings in the lower court should be vacated, 
and whether such order operated, ipso facto, to require of the 
receiver a return of the property to the possession of the appel- 
lant, from whom it was taken. 

1. Upon the first pro^wsition wie may say that, upon the 
motion to dismiss the appeal herein, this court (^nsidered the 
same matters as are now contended for upon this motion, and 
in refusing to dismiss the appeal we held that the order ap- 
pointing the receiver, though made ex parte, was an appealable 
order, under Section 1722 of the Code of Civil Procedure, as 
amended by an act of the Sixth legislative assembly approved 
February 28, 1899 (Session Laws of 1899, p. 146), which pro^ 
vides: "An appeal may be taken to the supreme court from a 
district court in the following cases. * * * (2) * * * 
From an order appointing or refusing to appoint a receiver." 



72 RuMNEY ET AL. V. DoNovAN. [Mar. T/03 

That decision becsanie the law of this case upon that question, 
and we reiterate it now. Authorities have been cited in support 
of respondents' contention that no appeal liea fronu an order 
made ex parte appointing a receiver, but those decisions are by 
courts from states having different statutory provisions from 
ours^ or from states whose statutes have not been called to our 
att oition To give to Section 1722 the construction asked for 
is to read into its language qualifying provisions not contem- 
plated by the framers of the law. This we cannot do. The 
section gives the right of appeal irom. every order appointing a 
receiver, and that, too, in plain and explicit terms, which are 
not susceptible of a construction which w^ould limit materially 
their operations. Upon suggestion of diminution of the record, 
the apparent defects in that regard have been cured. 

2. Did the supersedeas operate, ipso facto, to require the 
receiver to return the property ? We are of the opinion tbat it 
did. The effect of the stay was to suspend the operations of 
the order appointing the receiver. From the moment it became 
effective there was nothing which he could do under tiie order 
appointing him. His hands were stayed, so far as carrying out 
the order of the district court was concerned. That order re- 
quired him to take immediate possession of the property, and 
when that order was suspended by the supersedeas the right of 
the receiver to retain such possession, as against the party from 
whom possession was obtained, ceased. "Where an appeal is 
taken from an order appointing a receiver, pending a determi- 
nation of which a supersedeas is ordered or granted, the func- 
tions, powers, and duties of the receiver are thereby suspended." 
(23 Am. & Eng. Ency. of T^w (2d Ed.), 1127 ; Boston & Mon- 
tana ConsoL C. & S. M. Co., v. Montana Ore Purchasing Co, et 
al, 27 Mont. 431, 71 Pac. 471.) In State ex rel Railroad Co 
V. Ilirzel Judge, 137 Mo. 435, 37 S. W. 021, it wa£ said : "We 
are obliged to hold that ho (the judge) was in error in not re- 
quiring tlie receiver to let go when the appeal bond was ap- 
proved and tlie appeal perfected. .* * *• So the approval 
of the bond in the Spencer case operated to stay all proceedings 



28 Mont] RuMNBY et ai*. v. Donovan. 73 

to enforce the recseivership order ; and, as incident to that stay, 
it had 'likewise the efiFect to release the property to the party 
from whom it had been taken by reason of the ord^r of appoint- 
ment of the reoeiver." Farmers' Naifl Bank v. Backus, 63 
Minn. 115, 65 X. W. 255, was a case wherein the receiver had 
taken ix)sse6sion before the appeal was perfected. Said the 
court: *'The supersedeas docs not undo or render nugatory 
any action of the receiver already had under the order before 
the appeal was taken and the bond duly filed, but it terminates 
the right of the lower court, and its oificer from further acting 
in the matter. It suspends the operation of the order, or, as 
has been said, 'paralyzes' the arm of the receiver. His author- 
ity to proceed is absolutely stayed and suspende<l by operation 
of law. The rights and powers of the receiver being sus- 
pended, of which he was duly notified, he should have restored 
possession of the premises to the appellant; for, his authority 
to take being inoperative by the suspension, his authority to 
hold was equally so, both being derived from the same order. 
The legal effect of the appeal and supersedeas was to withdraw 
from the receiver the right to the possession of the projxerty, 
and vest that right in the party from whom it had been taken." 
{State v. Johnson, 13 Fla, 33; Continental N. B. & L. Ass'n 
T. Scott, 41 Fla. 421, 26 South. 726.) There is nothing in the 
language used by this court in Forrester <& MacGinniss v. Bos- 
Ion & Montana Consol C. & S. M. Co., 22 Mont. 430, 56 Pac 
868, in conflict with the views herein expressed. The applica- 
tion for an order vacating the order staying proceedings is 
denied. 

Inasmuch, how'ever, as the receiver apparently acted in per- 
fect good faith, under advice of counsel, and with reference to 
a question not heretofore passed upon in tliis jurisdiction, and 
upon this hearing manifested a disposition to cheerfully com- 
ply with the order of this court, we deem the contempt com- 
mitted a technical one, and are not disposed to impose any 
hardship upon the receiver. 

The order of this court is that the receiver, Wm. T. Luddy, 



2S 


74 


28 


120 


»~ 


^ 


tM 


i2H 


28 


74 


31 


21 


28 


74 


34 


516 


28 


74 


40 


497 



74 King v. Pony Gold Mining Co, [Mar. T.'03 

be, and he is hereby, adjudged guilty of contempt of this court, 
and his punishment fixed at a fine of $1 — ^the amount of the 
costs incurred in this proceeding. 



KIXG, Eespondent, v. POKY GOLD MINING COM- 
PANY ET AX.., Defendants; MORRIS 
ET AL., Appellants. 

(No. 1,514.) 
(Submitted April 6, 1903. Decided April 27, 1903.) 

Apj)eal — Record on Appeal — Notice of Inteniian io Move for 
New Tiial — Practice — Stare Decisis — New Trial — Striking 
Attorneys' Names from Answer — Discretion — Affidavits — 
Insufficieney of Evidence — Record — Review — Pleading — 
General Denial — Waiver — Suits in Equity — Instruction^ — 
Evidence — llannlcss Eiror — Corporations — Liability of 
Stockholders — Actions — Statute of Limitation's — Briefs, 

1. The notice of intention to. move for a new trial is not a necessary part of 
the record on appeal from an order denying a new trial unless some objec- 
tion is presented to the notice in the trial court which the party making 
desires to have the supreme court pass upon. 

2. Where the court has fallen into error upon a question of practice, and the 
correction of that error can in no way or manner injure any litigant in 
pending cases, the decision making the mistake should be overruled and 
the true and correct practice stated. 

3. Under Code of Civil Procedure, Section 1172, providing that, when a mo- 
tion for a new trial is based on error in the exercise of the trial court's 
discretion, the motion must be made on affidavits, alleged error In striking 

• certain attorneys' names from the answer cannot be considered on appeal 
where the record contains no affidavits. 

4. Sufficiency of the evidence to support the decree cannot be considered where 
it does not appear from the certificate of the trial Judge settling the state- 
ment, or from the statement or bill of exceptions, that the record contains 
all the evidence or its substance. 

6. Where the statement on motion for a new trial stated that plaintiff called 
certain witnesses, who testified as therein set forth and "plaintiff rested,*' 
and that defendant called certain witnesses, whose testimony was also 
given, "whereupon defendants rested," it was not made to appear that all 
the evidence given was contained in the record. 

6. Alleged insufficiency of a general denial cannot be first ralsd on appeal. 



28 Mont] 'KiNQ v. Pomr Gold Mining Oo. 75 

7. On appeal in a salt in equity, alleged error in instructions cannot be con- 
sidered; the Terdict being merely advisory. 

8. Where, in appellant's original brief and in the oral argument, do reference 
was made to error in refusing to grant a motion for a nonsuit, an assign- 
ment based on such refusal will be considered waived. 

9. Admission of incomi>etent evidence in an equity case is not reversible error, 
it being presumed that the court considered competent evidence only, ex- 
cept where it clearly appears from the record that the court actually con- 
sidered the incompetent evidence in making up Its findings, or where the 
record — containing all the evidence— does not disclose sufficient competent 
evidence to warrant the findings. 

10. Where the record does not purport to contain all the evidence, it will be 
presumed that there was sufficient competent evidence to support the de- 
cree. 

11. In a suit against stockholders of a corporation, defendants could not allege 
error in the admission in evidence of the report of a stockholders' meeting, 
when by subsequent amendment of their pleadings they admitted the exist- 
ence of the evidence objected to. 

12. Assignments of error in sustaining objections to certain questions cannot 
be considered where there is no showing as to what the answers would 
have been, and the questions give no indication of the specific evidence 
sought to be adduced. 

13. Under Compiled Statutes of 1887, Division Y, Section 457, providing that 
the stockholders of every company incorporated under the act shall be 
liable to the creditors of the company to the amount of unpaid stock held 
by them, etc., the liability of the stockholders arises only after execution 
on a Judgment against the corporation has been returned unsatisfied, and 
limitations do not begin to run against an action against the stockholders 
until such time. 

Appeal from District Court, Lewis and Clarkr County; H. 
C. Smith J Judge, 

Suit by Rockwell King against the Pony Gold Mining Com- 
pany, Samuel T. Haiiser, William W. Morris, and Henry El- 
ling. Judgment against Morris and Elling, and from the judg- 
ment and an order denying a new trial they appeal. After- 
wards Elling died, and Thomas Duncan and others were sub- 
stituted, as executors, in his place and stead. Affirmed. 

Statement of the Case by the Commissioner Preparing 
THE Opinion. 

This is an ap'peal from the final judgment, and from an ot- 
der oveiTuling a motion for a new trial, in' a suit brought by 
a judgment creditor of the Pony Gold Mining Company against 
Henry Elling, William W. Morris^ and Samuel T. Hauser, as 
stockholders of said company, to recover an amount alleged to 
be due and unpaid upon the capital stock of the company held 



16 King v. Pony Gold MnsriwG Co. [Mar. T.'OS 

or owned by said defendants, to be applied in the liquidation 
of said judgment. The Pony Gold Mining Company is also 
made a party defendant to the suit The theory upon which 
plaintiff claims that there is an amoimt unpaid upon said de- 
fendants' stock is that practically the entire capital stock of the 
company was issued and delivered, to said defendants Elling 
and Morris, as full-paid stock, for the purchase of certain prop- 
erty by the company, the value of which is alleged to have been 
far below the par value of said capital stock. It is alleged that 
the company issued and delivered to said defendants 499,991 
out of 500,000 shares of the capital stock of said company (the 
par value being $10 per share) in payment for certain property 
which plaintiff claims was not worth over $250,000. It is also 
alleged that, in addition to the issuance and delivery of said 
stock, the company paid the defendants Elling and Morris 
$50,000 in cash, and executed and delivered a mortgage to 
them upon tlie property tlius pairchased for the sum of $150,- 
000. The record discloses that at the conclusion of plaintiff's 
case a motion for nonsuit made by the defendants was submit- 
ted to the court, which was sustained as to defendant Hauser, 
but denied as to defendants Elling and Morri& By this action 
of tlie court, defendant Hauser was eliminated from the case, 
and it proceeded to a final judgment against defendants Elling 
and Morris. The action was one in equity, and upon the trial 
cei1:.ain special issues wea'o submitted to the jury. The jury 
returned findings ujwn these issues in favor of plaintiff, which 
were adopted by the court. The court then made additional 
findings in plaintiff's favor, entered judgment against defend- 
ants Elling and Morris, and denied their motion for a new trial. 
From tliis action of the courts defendants Elling and Morris 
appealed to this court 

After the apipeals were perfected, appellant Henry Elling 
died, and, by order duly entered, Thomas Duncan, Mary B. 
Elling, Mabel M. Hutt, and the Union Bank & Trust Company 
were substituted herein, as executors, in his place and stead. 



28 Mont] Kma v. Pony Gold Mining Co. 77 

For brevity, we will refer to the appellants as Elling and Mor- 
ris in the following opinion. 

Mr, Robert B. Smith, Mr. ^^\ A. Clark, and Messrs, CuUen, 
Day & Cullen, for Appellant*. 

The court erred in striking out the new matter in the answer 
of the defendants Elling an,d ^lorris, relating to the statutes of 
hmitations. (Wood on Statute of Limitations, Sec, 149 ; 1 
Cook on Cor}X>rations, Sec. 225 ; Thompson on Liability of 
Stockholders, Sees. 292, 293; Compiled Statutes, 1887, First 
Div. Sec, 20; Longlcy v. Little, 26 Me. 162; Hunt v. Ward, 
99 Cal. 612, 34 Pac. 335; Kelly v. Clarh, 21 Mont 291-342; 
Powell V. Oregonian Ry, Co,, 36 Fed. 726; Stilplion v. Ware, 
45 Cal. 110; Herman v. Coleman, 23 Pac. Rep. 62; Redding- 
ion V. Cornwall, 90 Cal. 49, 27 Pac. 44; Barik v. Pacific Coast 
Steamship Co,, 103 Cal. 574, 37 Pac 499 ; Joggers Iron Co, 
V. Walker, 76 X. Y. 521 ; Hardman v. Sage, 124 Js^. Y. 25, 26 
X. E. 354 ; Close v. Potter, 49 X. E. 686 ; Patterson v. Thomp- 
son, 86 Fed. 85; Blake v. Clausen, 38 N. Y. Supp. 514; 
Bassett v. Hotel Co,, 47 Vt, 314; Sullivan v. Manufacturing 
Co,, 20 S. C. 79 ; Losee v. Bullard, 79 X. Y. 404 ; Rector of 
Trinity Church v. Vanderbilt, 98 X. Y. 170; State Savings 
Bank v. Johnson, 18 Mont 440.) 

Tlere was no statute of the territory of Montana in force at 
the time when these transactions took place, which w^ould re- 
quire the plaintiff to recover judgment against the corporation 
before suing the stockholders, and wo tliink this court will not 
now establish such a doctrina There are numerous authorities 
to the effect that suit may be brought against a stockholder with- 
out bringing suit against the corporation. (Teny v. Tubman, 
92 U. S. 156; Camden v. DoremAis, 3 How. 516-533; Stutts 
V. Handley, 41 Fed. 531 ; First National Bank v. Green, 64 
Iowa, 445 ; Cleveland v. Marine Bank, 17 Wis. 545 ; Samavn- 
ego V. Stiles, 20 Pac. 607; Barrack v. Clifford, 24 N. E. 259.) 

Mr. T. J, Walsh, and Mr. F. P. Sterling, for Kespondent 



78 King v. Pony Goij> Mining Co. [Mar. T.'03 

The statute of limitations begins to run when the plaintiff's 
cause of action a<»cnies or ripens. The appellants contend that 
the plaintiff's cause of action against them as stockholders in 
the Pony Gold Mining Company came into existence and was 
perfect immediately upon the accruing of the original indebted- 
ness against the corporation in. 1889. We say that it did not 
come into existence until the plaintiff had reduced his claim to 
judgment and had exhausted his remedies for the collection of 
the same from the corporation. (Kelly v. Clark, 21 Mont. 
291; Thompson on Liability of Stockholders, So.3s. 32, 36, 37; 
Cuyhendall v. Coming, 88 N. Y. 129 ; Handy v. Draper, 89 N". 
Y. 334.; Roclcy Mountain Bank v. Bliss, 89 N. Y. 338; Hardr 
man v. Sage, 124 ^JT. Y. 25 ; Christenson v. Quiniard, 36 Hun. 
334 ; Bains v. Bahcock, 27 Pac 674; Walter v. Merced, 59 Pac 
136 ; Vermont Marble Co, v. Declez Granite Co,, 67 Pac 1057 ; 
2 Spelling on Corpo-rations, 823; GUlm v. Sawyer, 44 Atl. 
677 ; Powell v. Ry, Co,, 38 Fed. 187 ; Wehn v. Fall, 76 K W. 
138 ; Hawkins v. Glenn, 131 U. S. 319 ; Hatch v. Dana, 101 
U. S. 205-214; Thompson's Commentaries, 3770; 2 Beach on 
Private Corporations, 569; 1 Cook on Corporations, 195-225f ; 
Clark on Corporations, 239 ; Crofoot v. Thatcher, 57 Pac 171 ; 
Jows V. Whitwo-rth, 94 Tenn. 602 ; Mei^itt v, Reid, 10 Daly, 
310; Trustee v. Semple, 80 Ala. 159; Allibone v. Hager, 46 
Pa. St 48 ; Scoville v. Thayer, 105 U. S. 143 ; Thompson on 
Liability of Stockholders^ 291 ; Younglove v. Lime Co,, 33 N. 
E. 234 ; Bronson v. Schneider, 33 N. E. 233 ; Hardman v. Sage, 
124 X. Y. 25.) 

MR COMMISSIONER CLAYBERG prepared the opinion 
for the court 

Before ent-ering u^wn a consideration of the questions in- 
volveil in tliis ap|X*al, it is important to consider some of the 
pivliniinary objwtions presented by respondent's coimsel to the 
nH»ord of tlu^ case, and to certain points relied upon by appel- 
lants in tlioir brief. A great many questions are sought to be 



28 Mont] King v. Poitt Gold Mining Co. 79 

raised in appellants' brief, many of which, are objected to, and 
it seems to be the duty of the court to sift these objections, and 
determine what questions are properly before the court for con- 
sideration. These preliminary objections are as follows: (1) 
That this court cannot consider any alleged errors involved in 
oveirniling the motion for a newi trial, as there is no notice of 
intention to move for a new trial in the record. (2) That this 
court cannot consider the alleged error involving the striking 
of Cullen, Day & CuUen from the separate answer of defendant 
Hanser, because such error is an irregularity of the court below, 
which can only be presented to this court by affidavits filed with 
the court below on the motion for a new trial, and no such affi- 
davits appear in the record. (3) That this court cannot consider 
the alleged errors assigned upon the insufficiency of the evi- 
dence, because the record does not disclose that it contains all 
of the evidence introduced at the trial^ or the substance tliereof . 
(4) That this court cannot consider whether the property con- 
veyed by defendants to the ooonipany is of any other value than 
that alleged in the complaint, because defendants' denial of 
such allegations was general. (5) That this court cannot con- 
sider the errors assigned upon the instructions of the court to 
the jury, given or refused, because the case is one in equity, 
and in equitable cases this court cannot review the instructions 
given or refused. We shall consider tliese objections seriatim. 
1. As to the absence of notice of intention to move for a 
new trial : 

In this case the record on appeal contains nothing aside from 
a statement of the case, properly settled and signed, and the 
judgment roll. The notice of intention to move for a new trial 
is entirely omitted, and the question is whether this omission 
is proper. Tho consideration of this question is necessarily 
Hmited to the conditions presented by the record in this case, 
and to none other, and this court desires to be understood that 
this opinion shall be construed as applicable only to similar con- 
ditions and cases. For a full elucidation of the question, a 
reference to the statute seems necessary. 



80 King v. Pony Qou) Minino Co. [Mar. T.'03 

Under Section 1171, Code of Civil Plrooedixre; a motion for 
a new trial may be based upon one or more of seven grounds 
therein stated. Section 1172 provides that when the applica- 
tion is made for a cause mentioned in the first, decond, third 
and fourth grounds, stated in Section 1171, it must be upon 
affidavits, and if upon other groundis, either upon a bill of 
exceptions or statement of the case, at the option of 
the moving ,piarty. Section 1173 provides that within 
ten days after the verdict of the jury, or notice 
of the decision of court or referee, the party intending 
to move for a new trial must file with the clerk and serve upon 
the adverse part}- a notice of his intention, "designating the 
grounds upon which the motion will be made." Subdivision 3 
of Section 1173 further provides: "When the notice of the 
motion designates as the ground of the motion the insufficiency 
of the evidence to justify the verdict or other decision, the state- 
ment shall specify the particulars in which such evidence is 
alleged to be insufficient.. When the notice designates as the 
ground of the motion errors in law, occurring at the trial and 
excepted to by the moving party, the statement shall specify 
the particular errors upon which the party will rely. If no 
such specifications be made the stateonent shall be disregarded 
on the hearing of the motion," 

It is apparent from the foregoing provisions of the Code that 
the only purposes of the notice of intention to move for a new 
trial are (1) to notify the adverse party of the grounds upon 
which the motion will be based ; and (2) to guide the judge or 
referee in the settlement of the statement when proposed, in 
only allowing such grounds of motion to be stated or claimjed 
therein as are set forth and relied upon in the notice of inten- 
tion. When the statement is prepared in purusance of the no- 
tice, it must specify particularly the insufficiency of the evi- 
dence, and the particular errorg of law relied ui)on in the notice 
of intention. It is then made the duty of the judge or referee 
to "make the statement truly represent the case," and to settle 
and sign the same. In order that the statement "truly repre- 



28 Mont] King v. Pony Gold Mining Oo. 8] 

sent the case," the judge or referee must not allow to be in- 
cluded therein any grounds of motion not stated in the notice 
of intention and relied upon by the moving party. The notice 
of intention must therefore be referred to and considered in 
settling the statement^ and if there is any objection to its form 
or substance, or if it has not been filed or served in time, such 
objections should be then presented, and the proper reference 
thereto shc^iild be inserted in the statement, so that the higher 
courts upon appeal, may consider and pass thereon. When the 
statement is settled, all the functions and offices of the notice 
of intention have been performed, and it need only be incorpo^ 
rated in the statement in cases where some point involving its 
consideration is desired to be pr^ented to ,the supreme court. 
In all other instances there is no occasion to present it to the 
higher court There having been no question raised in this 
record oonceming the notice of intention, there was no occasion 
for it to be brought to this court. 

We find the former decisions of this court in great confusion., 
as to whether the record on appeal from, an order granting or 
refusing a motion for a new trial should contain the notice of 
intention. The first case where the question was considered is 
that of First National Bank v. McAndrews, 5 Mont. 251, 5 
Pac, 879, where a motion was made to strike the statement on 
motion out of the transcript "for the reason that there is nothing 
in the record to sho^v that there was either a motion for a new 
trial filed, or a notice thereof served upon the adverse party, 
as required by Section 287 of the Code of Civil Procedure." 
This court sustained the motion, and held that a decision upon 
motion for a new trial may not be reviewed on the record 
^^ien the record does not show that any motion for a new 
trial was filed in the lower court, nor that any notice of motion, 
designating the errors complained of, was filed or sensed upon 
the adverse party. This decision was adopted and indorsed in 
the case of Gum v. Murray, 6 Mont 10, 9 Pac 447. It was 
next cited with approval in Arnold v. Sinclair, 12 Mont 248, 

29 Pac. 1124. 

Vol. xxvin-6 



82 Kmo V. Pony Gold Mining Co. [Mar. T.'03 

These decisions were all made while there was a statute in 
force requiring the appellant to furnish ta this court, on orders 
appealed from in new trial proceedings, among other things, 
"a copy of the papers used on the hearing in the court below." 
(Section 425, Code of Civil Procedure, Eevised Statutes of 
1879 ; Section 438, Code of Civil Procedure, Compiled Statutes 
of 1887.) 

In 1895 the legislative assembly enacted the present Code of 
Civil Procedure, and by Sections 1176 and 1738 made a new 
requirement as to the papers necessary to be sent to this court 
on appeals from orders granting or refusing new trials. Section 
1176 provides: "The judgment roll, and the affidavits, or bill 
of exceptions or statement, as the case may be, used on the hear- 
ing, with a copy of the order made, shall constitute the record 
to be used on appeal from the order granting or refusing a new 
trial/' Section 1738 provides: "On an appeal from an order 
granting or refusing a new trial, the appellant must furnish the 
court with a copy of the notice of appeal, of the order appealed 
from, and of the papers designated in Section 1176 of this 
Coda" Under these sections, it is- very apparent that the only 
papers properly constituting the record on appeal in the present 
case are the judgment roll, the statement, the order appealed 
from, and the notice of appeal. 

Kecalling the fact that xmder Section 425, Code of Civil Pro- 
cedure, Revised Statutes of 1879, and Section 438, Code of 
Civil Procedure, Compiled Statutes of 1887, the papers con- 
stituting the record were a copy of the notice of appeal, the un- 
dertaking on appeal, the order appealed from, and "a copy of 
the papers used on. the hearing in the court below, 'certified' by 
the attorneys, of the parties to the appeal or by the clerk, to be 
correct," we must conclude that, under the old practice, if Ae 
notice of intention was used in the court below on the hearing, 
a copy was required to be included in the record, certified to be 
correct^ as provided by the statuta (Arnold v. Sinclair, 12 
Mont. 248, 29 Pac 1124.) 

Under the present statutes, the only way in which the notice 



28 Mont] King v. Pony Gold Mining Co. 88 

of intentioin can be brought before this oourt is by insertion in 
tie statement or in the bill of exceptions. It has a proper place 
in the statement or bill, as we have above seen, only, when some 
objection is made to its sufficiency at the tune of the settlement 
of the statement or bill, and therefore, unless some such objec- 
tion is presented to the notice of intention at that time, so that 
it becomes necessary to incorporate it in the statement or bill, it 
has no place in the record on appeal. 

In determining this question, it is very important to refer to 
the statutes and decisions of the supreme court of the state of 
California, because we find that in that state the same statutes 
irare enacted, and the same questions arose as arise here, and 
had been definitely setfled by the oourt of last resort of that 
state long prior to the adoption of our present CJode of Civil 
Procedure, as hereinafter stated. Section 346, c. 5, p. 106, of 
the Laws of California of 1851, and Section 32, c 64, p. 64, of 
the Laws of 1854, were practically identical with our Section 
425, Code of Civil Procedure, Revised Statutes of 1879, and 
Section 438, Code of Civil Procedure^ Compiled Statutes of 
1887. Under the Laws of 1851 and 1854, supra, the supreme 
court of California held (as this court held under Section 425, 
Code of Civil Procedure, Revised Statutes of 1879, and Section 
438, Code of Civil Procedure, Compiled Statutes of 1887), 
that the notice of intention was a necessary part of the record 
on appeal froim an order granting or refusing a motion for a 
new trial. (Calderwood v. Brooks, 28 Cal. 151; Wright v. 
Snowball, 45 Cal. 654.) The legislature of California in the 
year 1874 adopted a new Code of Civil Procedure, changing 
the provisions of the old Code concerning the record on appeal 
frwn orders granting or refusing new trials, and substituting 
the present Sections 661 and 952 for Section 346. These last 
sections did away with the requirement of certifying to the 
supreme court the papers used on the hearing of motion for a 
new trial in the court below, and only required the papers men- 
tioned in those sections to become parts of the record. The 
supreme court of California, in Domingiuez v. Mascotti, 74 Cal. 



84 Keptg v. Pony Gold Mining CJo. [Mar. T/03 

269, 15 Pac 773, uses the following language: "Formerly the 
notice was part of the record on appeal. But by careless 1^&- 
lation it is no longer so.^^ The same court also said in Pica v. 
Cohn, 78 Cal. 384, 20 Pac 706 : "Formerly the notice was 
made a part of the record on appeal by express statutory pro- 
visions. But it is not so under the present Code. (Code of 
Civil Procedure, gee. 670 ; Girdner v. BeswicJc, 69 Cd. 112, 10 
Pac. 278; Dommguez v. Mascotti, 74 Cal. 269, 15 Pac. 773.) 
Nor is there any provision of the Code requiring that such no- 
tice shall be brought to this court by including it in the state- 
ment, or in any other manner. The papers necessary to be 
brought up are set out in Sections 661 and 952 of the Code of 
Civil Procedure, and the notioe of intention is not one of them. 
The foirmer sftatute having made the notice of intention a part 
of the record, we must assume that it was omitted from the pres- 
ent Code with a purpose. Being omitted from the section pro- 
viding what papers shall constitute the record on appeal, and 
no provision being made for bringing it up in any other way, 
it is fair to piresume that it was not intended to require it to be 
brought to this court at all. This leads us to the conclusion that 
it was the legislative intention that the notice should be the 
basis of the motion to be made in the court below, and that, 
upon the proper statement being filed, and the necessary motion 
made and passed upon by the court below, the notice has per- 
formed its functions, and is not a necessary part, of the record 
on appeal, or to be presented here in any form. When the case 
comes to us, we must look to the statement or bill of exceptions^ 
and the specifications in which the decision of the court below 
is not sustained by the evidence, and the specifications of errors 
of law, as our guide in reviewing the case, and to these alone. 
If a question is presented by such specifications, and is properly 
saved in the statement or bill of exceptions, this court will look 
no further, but must presume that the question was properly 
presented to the court below, and passed upon in its ruling upon 
the motion for a new trial. We do not put this upon the ground 
of waiver by the opposite party, as is done in some of the earlier 



28 Mont] Knra v. Pony Gold Mjcning Oo. 85 

cases, but upon the sole ground that we must look alone to tke 
statement or bill of exceptions for the questions to be deter- 
mined, in the absence of any showing by the respondent that no 
notice, or an insufficient one, was given. Undoubtedly the no- 
tice of intention is neoesaary, but if it has not been given, or has 
been given too late, that must be shown by the respondent, as 
against the settlement of the statement or bill of excepions, or 
at the time of and in opposition to the motion for a new trial ; 
and, if the court below rules against him, hu must cause the 
facts necessary to present the question to be then included in the 
statement or a proper bill of exceptions, so that this court can 
determine whether a proper notice has been given or not The 
specifications in the statement or bill should conform to the 
notice of intention to move for a new triaL If they do not, the 
opposite party should move such amendments thereto as will 
remove therefrom all matter foreign to the grounds stated in 
the notice, and in settling the same the court below should see 
that the statement does not go beyond the notice, either in the 
body of it otr in the specifications. If this is done^ and the 
statement or bill is properly made up, no injury can result to 
any one from the failure to bring up the notica" 

In 1895, as above stated, our legislature also enacted new 
provisions in regard to the papers which shall constitute the 
record on appeals from orders granting or refusing new trials. 
(See Sections 1176, 1738, Code of Civil Procedure.) By the 
adoption of these two sections the legislative assembly enacted 
practically the identical provisions of Sections 661 and 952 of 
the Code of Civil Procedure of California. The supreme court 
of that state has, since the adoption of their Code in 1874, fre- 
quently decided that the notice of intention need not be a part 
of the record on appeal. {Ferrer v. Home Mutual Ins. Co,, 47 
Cal. 427 ; Hook v. Hall 68 Cal. 22, 8 Pac. 596 ; Dominguez v. 
MascoUi, 74 Cal. 269, 15 Pac 773 ; Pico v. Cohn, 78 Cal. 384, 
20 Pac 706.) 

All these decisions were made subsequent to the adoption of 
the Code of California of 1874, and prior to the change in our 



86 King v. Pont Gou) Mining Co. [Mar. T/08 

Code of Civil Prooedirre. We having adopted Sections 1176 
and 1738 from the Code of California, under the decisions of 
this court we must be held to have adopted such sections with 
the construction theretofore placed upon them by the highest 
court of the state of California. (JDavenport v. Klevnschmidi, 
6 Mont 502-538, 13 Pac 249; First Nat'l Bank v. Bell S. £ 
C, M. Co., 8 Mont. 32, 19 Pac 403; Stackpole v. 
Hcdlahan, 16 Mont 40, 40 Pac 80; MvrroAf v. Heinze, 17 
Mont. 353, 42 Pac 1057, 43 Pac 714; La/rgey v. Chapman, 
18 Mont 563, 46 Pac 808; Sharman v. HiLot, 20 Mont 555, 
52 Pac 558, 63 Ain. St Rep 645 ; Stadler v. First NaflBank, 
22 Mont 190, 56 Pac 111, 74 Am. St Rep. 582; Butte <& 
Boston Consol Mining Co. v. M. 0. P. Co., 25 Mont 41, 63 
Pac 825.) 

Unfortunately, however, the California decisions above re- 
ferred to w«ere not called to the attention of this 
court when the question was first presented to it for 
consideration under the provisions of the Code of 
1895, and by various decisions rendered since that 
time it has been held that the notice of intention is a 
necessary part of the record on appeal, and must come up in 
the statement (Orinnell v. Davis, 20 Mont 222, 50 Pac 656 ; 
Harrigan v. Lynch, 21 Mont 36, 52 Pac 642 ; Carr, Ryder & 
Adams Co. v. Closser, 25 Mont 149, 63 Pac 1043 ; In re ReiU 
ly's Estate, 26 Mont 358, 67 Pac 1121 ; Madigan v. Harring- 
ton, 26 Mont 358, 67 Pac 1121 ; Carr, Ryder & Adams Co. v. 
Closser, 27 Mont 94, 69 Pac 560.) 

This court has also held that the filing and service of this 
notice, and the omission thereof from the statement, if filed and 
served, is waived if the adverse party appears at the settiement 
of the proposed statement and offers amendments thereto. {Har- 
rigan V. Lynch, 21 Mont 36, 52 Pac 642 ; In re ReUly's Estate, 
26 Mont 358, 67 Pac 1121.) By such decisions this court 
tacitly admits that the omission of the notice from the record is 
not jurisdictional. Is not such holding tantamount to saying 
that the insertion of the notice in the statement is only jurisdic- 



28 Mont] KiiTG v. Pony Gold Mining Co. 8Y 

tional in cases wbere tbis oaurt is requested to pass upon sooLe 
question as to the validity or sufficiency of the notice itself, or 
as to its effect? We have seen that in such instanoes the party 
raising such question must cause the notice and his objections 
thereto to be incorporated in the statement or bill of exceptions. 

We are of the opinion, after a careful and conscientious in- 
vestigation and consideration of the statute^ and cases upon sim- 
ilar statutes in other jurisdictions, that the functions of the 
notice of intention to move for, a new trial are fully exhausted 
when the statement of the case or bill on such motion is settled, 
and that it has no further force or effect, except in cases where 
an objection is made to it upon the settlement of the statement 
which the party making desires to have this court pass upon. 
This court, in Carr^ Ryder & Adams Co, v. dosser, 27 Mont 
94, 69 Pac 560, recognizes the correctness of the California 
decisions, as shown by the following language: "Sections 1176 
and 1738, supra, were adopted' from' the statutes of California 
after the supreme court of that state had interpreted them in 
Pico V. Cohn, 78 Cal. 384, 20 Pac 706. While Ilarrigan v. 
Lynch and In re Reillys Estate, supra, were under advisement, 
die members of this court examined the transcriot in Grinnell 
V. Davis, supra, and found that the new. trial proceedings were 
instituted after these sections had become law. It is probably 
true that in Grinnell v. Davis this court should have followed 
the interpretation wliich had been placed upon similar sections 
by Pico V. Cohn, and that an injustice was worked by niot fol- 
lowing it. Doubtless the court Avould have conformed to the 
practice established by Pico v. Cohn, had it been advised of 
that decision." 

This leaves a single question for determination upon this 
branch of the case, and that is whether, under all the circum- 
stances, the court will now correct the doctrine as laid down in 
Carr, Ryder & Adams Co. v. Closser, supra, Thi^ court., in the 
case of Wetzstein v. Boston & Montana Consol, C, & 8, Mining 
Co., 25 Mont 135, 63 Pac- 1043, in treating of a question of 
practice, uses the following language: "The rule of stao'e de- 



88 Kino v. Pony Gold Mining Co. [Mar. T/03 

cisis does not here control, as it is not nnusual, but proper, in 
matters of practioe, to establiah a correct and legal practice, if 
an error has been coimnitted ill-advisedly in a former opinion 
of thia court, provided that it is apparent that no substantial 
injury will be suffered by litigants by reason of reliance upon 
the precedent" In this opinixm the court does not lefer to the 
case of Ramsey v. Bums, 24 Mont 234, 61 Pac 129, in which 
this cpurt uses the following language : "Decisions upon mere 
matters of practioe, or interpretations of what may perhaps not 
improperly be called 'adjective law,' should never be disturbed ' 
unless it be apparent that injustice would result from adher- 
ence thereto." But it is well to note that the rule of practice 
affirmed in that case was one which, if changed by the courts 
would entail hardship upon litigants whose appeals had been 
taken to, and were pending in, this court The principle of 
practioe reaffirmed was in relation to the validity of bonds on 
appeal, and clearly, if the court overruled' a former decision 
holding bonds on apipeal of a particular form to be valid, all 
appeals in which a similar bond was filed would have to be dis- 
missed, and thus very serious hardship would be inflicted upon 
appellants who had taken their appeals in reliance upon the 
good faith of a decision of the supreme court of the state. This 
court again said, in the ca5^ of Carr, Ryder & Adams Co, v. 
Closscr, 27 Mont 94, 69 Pac 560: "That decisions upon mere 
matters of practice be not disturbed, even if erroneous, is of 
prime importance. It is most desirable that the practioe be set- 
tled and known. Unless it bo apparent that injustice will likely 
result from adherence to such decisions {Ramsey v. Bums, 24 
Mont 234, 61 Pac. 129), or that a change will not work a 
wrong, the\' should not be disturbed. Only the most cogent 
reasons can justify a court in overturning them." It will be 
noticed that Wetzstein v. Boston & Montana Consol, C. £ 8. 
Minw{f Co., supra, is not referred to in this decision. We thus 
see that this court has fallen into an inconsistency in the de- 
cisions of the three cases last cited, but we believe the true rule 
to be tliat if the court has fallen into error upon a question of 



28 Mont] King v. Pony Gold Mining Co. 89 

practice, and the oorrection of that error can in no way or man- 
ner injure any litigant in pending caaes, the decision making 
the mistake should he overruled, and the true and correct prac- 
tice stated. 

Chief Justice Johnson, of the court of appeals of New York, 
in a dissenting opinion in the case of Leavitt v. Blatchford, 17 
X. Y. 521-544, seeans to state the rule correctly in the use of 
the follo\\ang language : "To depart from a decision is imdoubt- 
edly an act by which a court incurs a high degree of responsi- 
bility, and it should certainly be satisfied that its course is such 
that the future judgment of the enlightened- profession of the 
law will approve its determination. But when it is satisfied 
that an erroneous determination has been made, and that, too, 
with a full consideration of the merits of the question decided ; 
when it sees that to correct it wnJl render void no one's honest 
acts^ nor disappoint any just expectation; when, in short., it is 
fully persuaded that there is no one reason why such a decision 
should again be made, except that it was once made befoire — 
then I think the court would be sacrificing substance to shadow 
if it refused to correct its error. Nor do I believe that by so 
doing a court would disturb the public confidence in the sta- 
bility of its judgments. Couxta are not inclined, any more than 
men out of courts, to admit that they have erred ; and where 
the administration of justice is public, and must proceed upon 
reasons assigned for every judgment, there is little danger from 
the exercise, under the responsibilities necessarily attending 
its exercise, of the po^-er which, a court possesses to retrace its 
steps when it is satisfied that an error has been committed.*' 

2. As to striking the names of OuUen, Day & GuUen, as 
attorneys, from the answer of defendant Hauser : 

We are of the opinion that this alleged error is not properly 
presented upon this appeal, for the following reasons, viz. : 
The statutes provide thsLt, when the motion for a new trial is 
based upon this ground, it must be made upon affidavits. (Sec- 
tion 1172, Code of Civil Procedure) Ifo affidavits of this 
character appear in the record. This court has said, in Cole- 



90 King v. Pony Qoud Mining Co. [Mar. T/08 

man v. Perry, 28 Mont 1, 72 Pac 42 : "If error was oommit- 
ted; it was because of the irregularity or abuse of disoretiou on 
thje part of tbe trial court in thus freely expressing before the 
jury an opinion upom the probable effect of evidence. If the 
language of the court so used oonstituted error, it is one of the 
designated causes for which a new trial may be granted. (Seo- 
tion 1171, Subd. 1, Code of Civil Procedure.) However, suoh 
error can only be shown by affidavit ; otherwise it is not prop- 
eriy in the reoord or before this oourt (Section 1172, Code of 
Civil Procedure) ; and, as the alleged error was not so saved, 
consideration of tlie matter is not pToperly before this court 
upon this hearing." 

3. As to the alleged insufficiency of the evidence: 

We are of the opinion that none of these errors are properly 
before the court for consideration- The record does not posi- 
tively or even inferentially disclose that it contains all the 
evidence introduced at the trial below, or the substance thereof, 
bearing upon the erroTS assigned. This oourt^ in the case of 
State V. Sh^pphard, 23 Mont 323, 58 Pac. 868, had occasion 
to state very fully and clearly the law relative to the require- 
ment that the record disclose all the evidence introduced 
at the trial below, or its substance, applicable to the errorsi as- 
signed', in order to present the question of the insufficiency of 
the evidence to this court A reference to that case upon this 
point would seem sufficient for the purposes of this opinion, 
without making extensive quotations therefrom. 

A brief restatement of the law is as follows, viz. : Tl.i^* court 
cannot consider errors assigned upon insufficiency of the evi- 
dence to sustain the findings or judgment in cases where the 
record does not disclose that all the evidence introduced before 
the trial court^ or its substance, bearing upon the errors as- 
signed, is contained therein, {State v. Shepphard, 23 Mont 
323, 58 Pac 868; Currie v. Mont. CerU. Ry. Co,, 24 Mont 
123, 60 Pac 989 ; T. C. Power & Bro. v. Stocking, 26 Mont 
478, 68 Pac. 857.) 

Under the authorities above cited there seem to be two ways by 



28 Mont] King v. Pont Gk)ij) Miwmo Co- 91 

which the reoord can explicitly disclose that it contains all the 
evidence, or the substance thereof, bearing upon the errors as- 
signed, which was introduced in the court below, viz. : (1) The 
certificate of the trial judge settling the statement on motion for 
a new trial or bill of exceptions; and (2) from the. statement 
or bill of exceptions itself. 

The certificate of the trial judge to the statement on motion 
for a new trial in this case is as follows: "I, Henry C. Smith, 
judge. of said district oourt^ do hereby certify that the defend- 
antg having proposed a statement, and the plaintiff having of- 
fered certain amendments thereto, the same were settled by me, 
and engrossed in the foregoing statement, oonsisting of 117 
typewritten pages, and the same is hereby allowed by me, and 
is correct Done this 22d day of Septenxber, A. D. 1899. 
Henry C. Smith, Judge." 

It will be petroeived that this certificate is entirely silent as 
to the contents of the statement, save as to the number of pages 
it contains. No reference is made to the evidence, or the sub- 
stance thereof. We find no declaration, or even inference, in 
the body of the statement on motionj for a new trial, tending to 
show that all the evidence, or its substance, bearing upon the 
errors assigned, is contained therein. It coaninences as follo^vs: 
"Be it remembered that on the 16th day of June, A. D. 1899. 
that being one of the days of the court, the plaintiff, to main- 
tain the issues on his part^ called and. had sw^om one Samuel T. 
Hauser, who testified as foUowis." Following this appears the 
testimony of witness Hauser. When his testimony ^vas con- 
cluded, other witnesses were sworn, and at the completion of 
plaintiff's testimony the recital appears: "Plaintiff rested." 
Then it appears that certain motions for nonsuit were submitted 
to, and disposed of by, the court-, which is followed by the re- 
cital: "And the said defendauts, to maintain the issues on 
their part, called A. J. Seligmfl.n, who testified as follows." 
Other witnesses were called for the defendants, find at the con- 
chision of their examination we find the recital, "Whereupon 
defendants rested." 



92 King v. Pony Goud Mining Oo. [Mar. T/03 

This court, in the caae o£ Stat^ v. She-pphard, supra, after a 
careful review of the authorities on the statement or motion for 
a new trial in that particular case, uses the following language, 
which we adopt as conclusive in this case: "But it is not at 
all dear by this record that there was no other evidence before 
the jury than that included in the record, and, in the absence of 
an affirmative showing of a connected narrative or a positive 
statement that the entire evidence is therein, defendant has 
failed to avail himself of the point he would rely on." 

4. As to the sufficiency of the general denial of all^ations 
of value: 

We are of the opinion that this court cannot consider this 
suggestion. Both parties to the suit tried the case upon the 
theory that this denial was sufficient. Testimony was introduced 
pro and con. This court said in the case of Hamilton v. Huson, 
21 Mont. 9, 53 Pac 101, "in the court below the parties treated 
the denial (a general one) as good and: sufficient, and the case 
was tried on that understanding. This question cannot be 
raised now, the parties having treated the pleading as sufficient 
in the court below." See, also, Sweeney v. Great Falls & Can- 
ada Ry, Ca., 11 Mont. 523, 29 Pac 19, and cases cited. 

5. As to the errors assigned upon the instructions to the 
jury: 

We are of the opinion that none of these errors can l>e con- 
sidered on this hearing. This is an equity case, and the law is 
well settled, by various decisions of this court, that the verdict 
of the jury is merely advisory to the court, and that this court 
will not review errors assigned upon the instructions of the 
court to the jury. It is therefope no longer an open question 
in this stata (Lawlor v. Kemper, 20 Mont 13, 49 Pac 398, 
and cases cited ; Sanford v. Gates, Townsend & Co., 21 Mont; 
277, 53 Pac. 749, and cases cited.) 

Counsel assign as error the ruling of the court below in re- 
fusing to grant their motion for a nonsuit In the argument 
in the original brief filed by tiem, we find no reference to^ or 
reliance upon, this alleged error. No reference was made to it 



28 Mont] King v. Pony Gold Mining Co. 93 

in the oral apgumeait Under these cireumstaiiceQ, this error is 
presumed* to have been waived, and will not be considered by 
the court. (Murray v. Mont. L. & M, Co., 25 Mont 14, 63 
Pac. 719; Moloney v. King, 25 Mont :I38, 64 Pac. 351; An- 
derson V. Cooh, 25 Mont 330, 64 Pac. 873; Matusevitz v. 
Hughes, 26 Mont 212, 66 Pac. 939, 68 Pac. 467; Hayes v. 
Union Merc. Co., 27 Mont 264, 70 Pac 975.) 

We therefore conclude — distinguishing the substantial from 
the unsubstantial, the substance froan the shadow, in the record 
presented — ^that there are only two questions properly presented 
to this court for consideration, viz. : (1) Was error committed 
in the admission or rejection of evidence? (2) Was error com- 
mitted in the rulings of the court below upon the question of 
statute of limitations, as pleaded by defendants? 

As to the evidence : 

Numerous errors are assigned as to the admission of what 
is claimed to have been incompetent evidence, but, under the 
new of the case which we have taken, all of these assignments 
can be considered and disposed of together. Before entering 
upon such consideration, for a better understanding of the prin- 
ciples of law involved, we deem it important to refer again 
briefly to the nature of the suit, and the condition of the record 
irpon which these appeals are presented: The suit, as shown 
by the stateanent of the case preceding this opinion, was one in 
equity, brought by a judgment creditor of the Pony Gold Min- 
ing Company to recover from the defendants amounts unpaid 
upon the capital stock of that company, which are alleged to 
have been unpaid because of conveyances of property by the 
defendants to the company in consideration of the issue of a 
certain amount of fully paid capital stock, which property was 
of a value much less than the par value of such stock. 

We have decided that the record does not discloss positively, 
or even inferentially, that it contains all of the evidence intro- 
duced at the hearing, and that therefore the appellants 'cannot 
attack the finding of the court cm the ground of the insufficiency 
of the evidenoa These findings are therefore conclusive upon 



94 King v. Pony Gold Mining Co. [Mar. T/03 

appellants. They are full and oomplete PreBumably, tliey 
w€ane based upon oompeteait evidence ; and, the record not beLng 
shown to contain all the evidence, the further presumption is 
to be indulged that there was suiKcieat coanpetemt evidence given 
at the trial to support the findinga 

It is the vtrell-settled law that in an equity case the mere ad- 
mission of inoompetent evidence will not be sufficient to war- 
rant a reversal, because of the presumption that the court below 
only considered competent evidence in making up its findings. 
(Merchants' Nai'l Bank v. Oreenhood, 16 Mont. 395, 41 Pac 
250 ; Forrest v. Forrest, 25 N. T. 501-510 ; Sawyer v. Ca/mp- 
bell, 130 111. 186, 22 K E, 458 ; Gardner v. Gardner, 23 N"ev. 
207, 45 Paa 139 ; McDonald v. Jacobs, 85 Ala. 64, 4 SoutL 
m^lSoLi Lake F. & M. Co, v. Mammoth Min. Co., 6 Utah, 
351, 23 Pac 760 ; Monroe v. Reid, 46 Neb. 316, 64 N. W. 983 ; 
King v. Murphy, 49 Neb. 670, 68 N. W. 1029.) There ifl the 
following exception to this rule : Where it dearly appears from 
the record that the court actually considered the incompetent 
evidence in making up its findings, or where the record, con- 
taining all the evidence, does not discloee sufficient competent 
evidence to warrant the findings. It is not clearly apparent, 
however, in this case, that the court considered incompetent 
evidence ; and, as we have already held the record not purport- 
ing to contain all the evidence, we cannot presume that there 
was not competent evidence before the court sufficient to sus- 
tain the findings. So that it appears that the exception above 
stated does not aipply in this case. 

Again, one of the most important allegations of the complaint 
was to the effect that the board of trusteee of the Pony Gold 
Mining Company, of which the appellants were members, by 
resolution duly adopted, purchased certain property of appel- 
lants and one Samuel T. Hauaer, and agreed, in consideration 
therefor, to issue to appellants and Hauser 499,991 shares of 
the full-paid capital stock of the company, andl to give to said 
defendants the company's three notes, of $50,000 each, secured 
by mortgage from the comipany, on all the property so pur- 



28 Mont] King v. Pony Gk)LD Mining Oo. 95 

chased and ocxnveyed. After tibe plaintiff had introduced ihe 
record of thia meierting oveor defendants' objecstions, appellants 
amended their answer, alleging ^^that, while the books of by- 
lawH and the minutes of the Pony Gold Mining Company show 
the issuance of 499,991 shares of stock of the Pony Gold Min- 
ing Company for the comsideratian of certain property men- 
tioned in the complaint, the fact is as follows: That the said 
defendants Elling and Morris were the owners of all the prop- 
erty mentioned in the complaint ; that, by a contract with their 
oodefendant S. T. Hauser and the Pony Gold Mining Company, 
the said Hauser and the said Pony Gold Mining Company 
agreed to pay to these defendants for their property the follow^ 
ing, torwit: They were to cause the construction of a railroad 
from Saptpdngton, in the county of Gallatin, to the mines and 
property of these defendantsy above the town of Pony, and the 
said Pony Gold Mining Company was to erect, equip, and fur- 
nish, complete, a four hundred ton concentrator for the treat- 
ment of ores of the mines conveyed by these defendants to said 
company. That these defendants were to be paid two hundred 
thousand dlollars — ^£fty thousand dollars in cash, and one hun- 
dred and fifty thousand dollars in deferred payments, by the 
note of the said Pony Gold Mining Company, secured by a 
mortgage on all the property of said company. In addition 
thereto these defendants were to receive 133,333 shares of the 
capital stock of said company. That the above and foregoing 
was the conaaderation, and the only. consideration, received by 
these defendants, or either of them, for or on account of the 
property conveyed to S. T. Hauser and to the Pony Gold Min- 
ing Oonq)«ny by these defendants." By this proceeding of ap- 
pellants, they asserted the existence of the very proof which 
ihey had objected to, and therefore clearly waived their objec- 
tion to its introduddon. Having relied upon the records of the 
company themselves in one regard, they could not be heard toi 
say that the very same records were not properly identified and 
admissible Under the principles above announced, this court 



96 King v. Pony Gold Mining Co. [Mar. T.'03 

will not enter into the consideration of the question of the ad- 
missibility of tlie eviderce complained of. 

There were also various errors assigned to the rulings of the 
court upon the ' voss-examination of witnesses, but we do not 
perceive how any injury to appellants oould have been occa- 
sioned by any of such rulings. Besidesi, there is no showing in 
the record what the answers would have been to the questions 
which were excluded. Neither do the questions give any indi- 
cation of the specific evidence sought to be adduced. This court 
will not reverse a case upon such uncertain ground. 

Aa to the statute of limitations : 

We shall consider all the errors assigned upon this question 
together, because all are directed to the same end, and there- 
fore wall be disposed of by the same decision. 

In order to decide this question, we must fully understand 
the nature of the liability sought to be avoided. One of the 
fundamental questions applicable to the confiideration of all 
statutes of limitation is, when did the cause of action arise, 
and, therefore, when did the statute begin to run ? If, under 
the statute imposing the liability, a suit might have been insti- 
tuted against the stockholders immediately and directly, then 
such statute would at once have commenced to run. If, how- 
ever, under the statute, it was necessary that suit be instituted 
and concluded against the corporation, and execution returned 
unsatisfied, before there could be said to be a liability 
against the stoclcholder, then the cause of action against the 
stockholdea" would not arise until that time, and the' statute 
would only then begin to run. In other words, was the lia- 
bility of the stockholder direct and primary, or secondary ? 

This court, in Kelly v. Clark, 21 Mont 291, 53 Pac. 959, 
42 L. R A. 621, 69 Am. St Rep. 668, says^ "The shareholders 
are only secondarily liable," etc. 

The liability of the stockholder in this case is based upon the 
provisions of Section 457 of the Fifth Division of the Com- 
piled Statutes of 1887, which is as foUowis: "The stockholders 
of every company incorporated under the provisions of this 



28 Mont] Kino v. Pony Gold Mining C<>. 97 

article [chapter] ahall be severally and individually liable to 
the creditors of the company in which they are stockholders, to 
the amount of unpaid stodc held by thfion reepectively, for all 
acts of and oontracts made by such company, until the whole 
amount of capital stock subscribed for shall have been paid in.'* 
Section 458, Fifth Division, Ooraj)aled Statutes^ provides: 
**The trustees of such company may purchase mines, manufac- 
tories and other property necessary for their business, and issue 
stock to the amount of the value thereof in payment thereof, 
and the stock so issued shall be declared and taken to be full 
stock, and not liable to any further call ; neither shall the hold- 
ers thereof be liable for any further payments imder the pro- 
visions of Section 457 of this chapter; but in all statements 
and reports of the company to be published, this ctxxJc shall not 
be stated or reported' as being issued for cash paid into the com- 
pany, but shall be reported, in this respect, according to the 
facts." 

Plaintiffs daim that the trustees issued stock as full paid to 
the appellants on the purchase of property from them, veiy 
much in exoese of "the amount of the value thereof," and that 
under the decision of this court in Kelly v. Clark, 21 Mont. 
291, 53 Pac 959, 42 L. R A. 621, 69 Am. St. Rep 668, there 
was unpaid upon said stock the difference between the actual 
value of the property and the par value of the stock. The theory 
of the enforcement of this statutory liability is that this unipaid 
balance on the stock is an asset of the corporation, and a trust 
fund for the benefit of its creditors. The bill filed is in the 
nature of a creditors' bill to reach and apply a portion of this 
equitable trust fund to the indebtedness. The indebtedness 
was against the corporation, and not against the stockholders. 
By this statute they are "liable to the creditors of the company 
in which they are stockholders to the amount of unpaid stock 
held by them respectively, for all acts of and contracts made by 
such company.'' Under the statute the enforcement of this 
unpaid balance is to be aJCcomiplished by the same means as 
would be used in case the stockholders had subscribed for the 

Val. XXVIII— 7 



98 King v. Pony Gold Mining Co. [Mar. T/03 

capital stock of the company, and a portion of such subscrip- 
tion yet remained unpaid. 

In the fourth edition of his exoelleait work on Oorporations, 
at Section 200, Mr. Cook discusses this question as follows: 
"Although it may be considered settled law, at least in the 
United States, that unpaid subscriptions to the capital stock of 
corporations constitute a trust fund for the benefit of corporate 
creditors, yet such unpaid balances of subecription are not tiie 
primaiTy or regular fund for the payment of corporate debts. 
Persona transacting business with a corporation look to the cor- 
poration itself for the payment of their debts. Credit is given 
to the corporation, not to the stockholders ; and it is the natural 
order of business that the creditors of the corporation are to be 
paid by the oorporatian from funds in the corporate treasury. 
Ordinarily corporate creditors have no knowledge or concern 
about the subscription, list, and unpaid or partially paid sub- 
scriptions are a matter entirely between the corporation and 
the subsoribera So long as the corporation, meets its obliga- 
tions in the ordinajy course of business, corporate creditors 
have no need to oonoem themselves about unpaid subscriptions 
of stock. But when the corporation is in default and embar- 
rassed, oi* for any reason fails to pay its debts, then its oreditorB 
have rights with reference to such unpaid subscriptions. They 
then have the right to know whether all the subscriptions for 
stock have been fully paid in, and, if not, they have the right 
to compel such payment. It axjcordingly becomes important to 
know at what point, in their efforts to collect what is due them, 
corporate creditors may cease to pursue the corporation, and 
proceed directiy against its delinquent members. The well- 
established rule upon this point is that a corporate creditor's 
suit to enforce payment of unpaid subeiSriptions can be prop- 
erly brought only after a judgment at law has been obtained 
against Ihe corporation, and an execution returned unsatisfied. 
* * * By this is meant that judgment shall have been duly 
recovered against the corporation, and execution issued and 



28 Mont] Maok v. Hill. 99 

r^ularly returned unsatisfied. Nothing short of that exhausts 
the remedy against the corporation." 

Of course, if the corporation has been declared a bankrupt, 
or is utterly insolvent, or haa been dissolved, no proceedings 
need be taken against such company, because the law does not 
oontemplate useless acts. 

It is apparent, therefore^ that the cause of action against 
appellants did not arise until after the execution against the 
company was returned unsatisfied, and that the nilings of the 
court upon the question of the statute of limitations were cor- 
rect 

We are therefore of the opinion that the judgment and order 
appealed from should be affirmed. 

Peb Curiam. — ^For the reasons stated in the foregoing opin- 
ion, the judgment and order denying motiom for new trial, ap- 
pealed from, are affirmed. 



MACK, Appellant^ v. HILL, Respondent. ^ w 

(No. 1,529.) 
(Submitted April 9, 1903. Decided April 27, 1903.) 

Warranty Deed — Equitable Mortgage — Equitable Relief. 

1. A grantor cannot maintain a suit in equity for the sole purpose of having 
a deed absolute on Its face declared a mortgage, but must alsc offer to re- 
deem the property, and place himself wholly within the Jurisdiction of the 
court to settle the whole controversy between him and his grantee. 

2. He who seeks equity must do equity. 

Appeal from District Court, Cascade County; J. B, Leslie, 
Judge, 

Action by Wilhelm D. Mack against Fred L. Hill to have 
a warranty deed declared to be anaortgage. A demurrer to the 
(X)niplauit was sustained, and plaintiff appeals. .Affirmed. 



100 Mack v. Hill. [Mar. T.'03 

Mr. Howard 8. Greene, and Mr. James Donovan, for Appel- 
lant. 

The demurrer is on two grounds, the firat oady of any mater- 
iality, as the second is the conjunctive and must be overruled. 
(White V. Allatt, 87 CaL 245 ; Oreenbaum v. Taylor, 102 Ol. 
624.) 

The right of redemption can only be lost by f oredoeure and 
sale. The court ought to have overruled the demurrer and de- 
creed a f oredoeure and sale to satisfy the debt, or held that the 
deed was only a security. (Watts v. Keller, 56 Fed. 1; Book 
v. Beasley, 40 S. W. 101 ; Bv/^knum v. Alwocd^ 71 HI. 155 ; 
Biglom v. Ayranct, 46 Barb. (K T.), 143; May, Fraudulent 
Con,, Sec 51.) 

Defeasance may be parol. (Jackson v. Lodge. 36 Cal. 28.) 

To sustain the demurrer allows a fraud. A court of equity 
will interfere to prevent sudb acts. (Stoay, Eq. Juris., Sec 
439 ; Pamdee v. Lawrence, 44 111. 405, 410.) 

The deed as a conveyance is void. (Peugh v. Davis, 96 U. 
S. 332; Kerr's Sup. Wilt Mtg. Forcl., Sees. 889, 896, 897.) 

Mr, Thomas E. Brady, for Eeepondent 

MR (COMMISSIONER OALLOWAY prepared the opin- 
ion for the court. 

In his complaint, plaintiff, appellant here, alleges that "at 
all times hereinafter mentioned the plaintiff was, ever since 
has been, and now is" the owner of certain land in Cascade 
county, Montana, deeeribing it That on June 13, 1897, he 
executed and delivered to the defendant his certain promissory 
note in the sum of $1,000, due in one year, and at the same time 
executed and delivered to defendant a mortgage deed on said 
land to secure the payment of the note. That on August 25, 
1899, he executed and delivered to the defendant "his certain 
warranty deed, covering the said described land, upon the fol- 
lowing contemporaneous agreement, to-wit: That said deed 



28 Mont] Mack v. Hii-Lw 101 

waa net to oonvej the title to said grantee, bat that any time 
within one year thereafter the said grantor, the plaintiff herein, 
had the right to piy the sum. due on the aforesaid mentioned 
note, together mth interest thereoni, and that the defendant, 
upon the payment to him of eaid sum,^ ^would cancel said deed 
and deliver bs paid to the said plaintiff the said note; that the 
flaid plaintiff herein had full authority to sell and dispoee of. 
said lands, using the money derived therefrom to take up and 
pav the said note, which the said defendant herein retained and 
held, and now does retain and hold ; that the said conveyance, 
although absolute on its face, was intended, executed, and re- 
ceived under said agreement aa a mortgage or security for the 
payment of eaid debt" That on AuguBt 26, 1899, the defend- 
ant placed the deed of record. "That the said defendant, at 
the time of making the agreement above mentioned, .promised 
the said plaintiff that he would in no manner undertake to dis- 
pose of said property without the consent of said plaintiff, but, 
notwithstanding said- agreement, the said defendant is now 
threatening and has threatened plaintiff on the 20th day of 
October, 1899, that, unless said sum of money mentioned in 
gaid note is paid within forty-eight hours thereafter, that the 
said defendant would sell and dispose of said land, which threat 
plaintiff believes defendant intends to carry out Wherefore 
plaintiff prays a decree of this court adjudging and declaring 
the said deed above mentioned to be a mortgage, and further 
decreeing that the title to said land, although standing in the 
name of defendant, is in the plaintiff herein." 

To this complaint the defendant, respondeat herein, de- 
murred, alleging that it does not state facts sufficient to consti- 
tate a cause of action. 

Other grounds of demurrer are assigned, but as they are not 
properly alleged, and are not neeeeeary to this decision, wfe shall 
not pass upon them. 

The court below sustained the demurrer, and, the plaintiff 
refusing to plead further, judgment was entered for the defend- 
ant for costs, from which the plaintiff appeals. 



102 Mack v. Hill. [Mar. T.'03 

Tke queetioDi then is, doea the complaint state facts suflSicient 
to constitute a cause of action ? 

It will be observed that this is not an aotioiL to have a deed 
absolute on its face declared to be a mortgage, and to have the 
equitable mortgagor's right of redemption enforced, in- 
cluding the reconveyance of the property by the equituble 
mortgagee. Under the facts stated in the complaint, the court 
is unable to enforce the contract alleged to exist between the 
parties. I^or does the appellant ask it. On the contrarjt, it 
appears that the appellant^ having entered into an unwise ocai- 
tract, asks the court to interpret it in his favor only. He does 
not allege that he will in any wiise be injured if respondent 
carries out his threat to sell the property in question ; for aught 
that appears in the complaint, appellant's indebtedness to re- 
spondent may be greatly in excess of the value of the property. 
And it may be inquired, in passing, how the defendant is to 
"cancel" the deed, which is of record. Probablv the plaintiff 
may desire a reconveyance of the property, but he does not say 
so. ISTor does the appellant even intimate that he ever expects 
to pay the indebtedness which the deed was given to secure. He 
does not allege a tender of the sum due respondent, nor does 
ha assert his willingness to pay it when the year mentioned shall 
expire. He also fails to state any f act9 which show that he has 
not a full and complete remedy at law for the respondent's an- 
ticipated malconduct, for, so far as the court is advised, re- 
spondent is solvent, and fully able to respond in damages for 
the breach of his contract with the appellant 

Appellant ooonmenoes his brief with the statement that "this 
action is brought to declare a deed, absolute on its face, a mort- 
gage." In Coming v. Rogers, 34 Oal. 648, the court said: "No 
precedent is cited of an action instituted for the sole purpose 
of having an absolute deed declared a mortgage." This lan- 
guage is quoted with approval in Cline v. Bobbins, 112 Cal. 
581, 44 Pac 1023. We have searched the books diligently, but 
in vain, for such a case, and quite agree with the suggestion of 
the supreme court of California. 



28 Mont] Mack v. Hiix. 103 

The fact of declaring this deed a mortgage, and stopping 
there, might compel the respondent to bring an action to fore- 
close it. Coiurts will not try lawsuits by piecemeal They in- 
cline to the maxim, "It is foi^ the public good that there be an 
end to litigation.'' 

In Cowng v. Rogers, supra, it is said: "If the position, of 
the plaintiflF is correct that, notwithstanding this action and a 
judgment in his favor declaring the deed to have l^en intended 
as a mortgage it is necessary for the grantee to foreclose the 
mortgage in order to realize the money, intended to be secured, 
then the present suit was essentially idle and useless." And 
again: "It is very clear that whetn he does sue, offering to re- 
deem and praying that the premises may be reconveyed to him, 
the court is authorized, if the facts warrant it, to declare that 
the deed, absolute in its terms, was intended as a mortgage, and 
to prescribe the terms of redemption and reconveyance. Such 
judgment ia as binding upon the grantor in respect to the re- 
demption as upon the grantee in respect to the character of the 
instrument and the reconveyance. It is one of the incidents of 
a mortgage that, where the mortgagor seeks the aid of a court 
of equity in effecting a redemption, the court inay prescribe 
the terms of the redemption." 

If the appellant desires the court to declare that, in equity, 
the transaction between himself and respondent constitutes a 
mortgage, he must offer to redeem. -He cannot f nil to perform 
his part of the a>ntract and demand that equity be done. He 
must place himself wholly mthin the jurisdiction of the court 
to settle the entire controversy. See Hughes v. Davis, 40 Cal. 
117. 

In commenting on the maxim, "He who seeks equity must 
do equity," Mr. Pomeroy observes: "It says, in effect, that 
the court will give the plaintiff the relief to which he is enti- 
tled, only upon condition that he has given, or consents to give, 
the defendant such oorresiponding rights as he also may be en- 
titled to in respect of the subject-matter of the suit." (1 Pom- 



104 State ex eel. Hicklik v. Wbbstbb. [Mar. T/03 

eroy's Equity Jurisprudence, Sec 385.) This the plaintiff 
has not done or offered to do. 

In our opinion, the judgment should be aflirmed. 

Per Curiam. — For the reasons stated in the forgoing opin- 
ion the judgment appealed from is affirmed. 



STATE ex reu HICKLIlSr, Relator, v. WEBSTER, 
Respondent. 

(No. 1,859.) 
(Submitted April 2, 1903. Decided April 27, 1903.) 

Pvhlic Lands — Unsurveyed Portion of Townsite — Conveyance 
— Judges — JurisdicHon. 

Under Act of Congress, March 2, 1867, as amended by Act, July 1, 1870, and 
Compiled Statutes of Montana, 1871-2, page 546, et aeq., a district Judge 
has no Jurisdiction to issue a deed for an unsurveyed portion of a town- 
site to a person not claiming to be an occupant of the land at the time 
the townsite was entered, before such portion had been surveyed, platted, 
and necessary streets, etc., laid out as required by Section 5117 of the 
Political Code. 

Mandamus by tlxe state, on relation of R B. Hicklin, against 
F. O. Websiter, judge of the Fourth judicial district, and ex 
officio probate judge of Missoula county, and trustee of Mis-» 
soula to^^^llsita Peremptory writ denied. 

Messrs. Duncan & Draff eii, and Messrs. Nolan & Loeb, for 
Relator. 

Messrs. Marshall & Stiff; and Mr. Frank Woody, for Re- 
spondent 



88 Mont] Statb bx kei«. Hicexut v. Wbbsteb. 105 

MR (X>MMISSIONER POOEMAN prepared the opinion 
for the court 

Thia ie an application for a -writ of mandate to the judge of 
the Fourth judicial district of Montana, ex officio probate judge 
of Missoula county, and trustee of the townsite of 
Missoula, commanding him to execute and deliver to 
relator a deed to a certain piece of land, 50 by 105 feet in 
dimensions, situate within the limits of such townsite as origi- 
nally entered. An alternative writ was issued, and the respond- 
ent, the judge of said district court, has shown cause by answer. 
The relator had previously made application to respondent for 
a deed to said piece of land, which application had been denied. 
At the hearing in the district court the First National Bank of 
Jiisaoula filed a protest against the issuance of a deed to rela- 
tor, controverting the material allegations of relator's applica- 
tion, and claiming the land as its own, but made no demand for 
a deed. School District No. 1 of Missoula county also filed 
with respondent a petition requesting that the piece of land in 
question be surveyed, platted, and offered for sale at public 
auction for the benefit of such school district. 

It appears from the record that the townsito was entered 
under the Act of Congress aipproved March 2, 1867 (14 Stat 
541), as amended by Act approved July 1, 1870 (16 Stat 
183), providing, in substance, "that when any portion of the 
public domain was settled' upon and occupied as a townsite it 
might be lawful * * * for the judge of the county court 
for the county in which such townsite was situated, to enter 
the knd * * * in trust for the several use and benefit of 
the occupants thereof * * * the execution of which trust 
as to the disposal of the lots in such town, and the proceeds of 
the sale thereof to be conducted under such regulations as may 
be prescribed by the legislative authority of the state or terri- 
tory in which the same might be situated." 

This townsite was surveyed and the oflScial plat thereof was 
filed in the office of the county clerk of Missoula county on the 



106 State ex rel. Hickun v. Webster. [Mar. T.'OS 

5tii day of April, 1871. It further appears that the particular 
piece of land for which conveyance is sought is a portion of a 
a. larger piece or strip of laad included within this townsite, 
which strip has never been surveyed, numbered, or platted, ex- 
cept as it is included within the exterior boundaries of said 
townsite, and has never been laid off into lots and blocks ; that 
the necessary roads, streets, lanes, and alleys, if any are neces- 
sary through the same, have not been laid out or dedicated to 
the public use; and that the only description of the land for 
which a conveyance is sought, which respondent had or was 
able to obtain, was that furnished by relator from a private sur- 
vey which relator had caused to be made of that particular part 
of said strip of land for which he demanded a deed. A juris- 
dictional question is thus presented, as to whether the respond- 
ent, as such trustee, at the hearing before him, had jurisdiction 
in the premises further than to ascertain whether antecedent 
acts had been complied with. 

The Acts of Congress leave it entirely to the state and terri- 
torial legislatures where the land is situate to prescribe the 
mode of procedure to be observed in dealing mth land within 
townsite entries, and, if the laws of the state of Montana in 
force with respect thereto at the time the application was made 
for this deed required tliis land to be "surveyed into suitable 
blocks and lots,'' the respondent, as such truste?, upon ascer- 
taining that this had not been done, could go no further. (Sec- 
tion 2391 Eev. St. TJ,. S. (U. S. Comp. St 1901, p. 1459) ; 
Edwards v. Tracy, 2 Mont. 49 ; Hershfield v. RocJcij ML B. T. 
Co., 12 Mont. 102, 29 Pac 883 ; Miiig v. Foote, 9 Mont 221, 
23 Pac. 515; Comity of Amador v. Gilbert, 133 Cal. 53, 65 
Pac. 130.) 

The territorial law in force at the time this townsite was 
entered made specific provision that a survey and plat should 
be made, and that the townsite should be surveyed "into blo<4s, 
lots, streets and alleys," and that no lot should exceed in area 
4,200 square feet. Further specific provisions were made as to 
the manner of disposing of lots, both claimed and unclaimed ; 



28 Mont] State ex bel. Hicklin v. Webster. lOY 

but no provision whatever waa made, prescribing a method of 
dealing with any part of a towtneite not "surveyed into blocks 
and lots." (C5om|pu St 1871-72, p. 546 et seq.) It was evi- 
dently the intent of the territorial law that all the land included 
within a townsite entry should be "surveyed into blocks, lots, 
streets and alleys" in the first instance, and no further survey 
was provided for. The law so far gives the trustee authority to 
dispose of only that part of a townsite which had been surveyed 
into blocks and lots. What, then, shall be done with the un- 
8un^ey«i portion? 

In this connection we find an able opinion citsd in respond- 
ent's brief, written by Mr. Justice Belford, of the supreme 
court of Colorado, and cited in the case of Martin v. Hoff 
(Ariz.), 64 Pac 448, where the court uses this language: 
"Some land would be found in each subdivision not actually 
built upon or otherwise occupied for town" purposea What, 
then, is to be done with this land not occupied or improved? 
To whom is it to go ? Clearly, not to the general government, 
for its title has ceased by the issuing of the patent ; not to the 
territory, for it never had any interest ; not to the trustee, for 
he is a mere conduit or channel through which the title passed 
from the government to the cestui que trust; not to the indi- 
vidual citizen, for the Act of Congress defines the extent of his 
individual interest. The trust is manifestly a double one-— 
the first a trust for the occupants of the town as individuals ; 
the other a trust for them collectively as a coimmimity * * 
* *. This whole matter is left to the local legislature. To 
it belongs the creation of the tribunal before whom individual 
rights shall be adjudicated. It prescribes the kind of evidence 
necessary to make good a claim of title. It prescribes what 
kind of dispoeition shall be made of the money arising from 
the sale of lota, and in fact has full and plenary power over the 
whole subject-matter of the trust. And to strengthen this 
power conferred by congress, the law declares that any act done 
by the trustee, inconsistent with or in violation of the rules 
and regulations prescribed by the legisuature for the execution 



108 Statb ex bsl. Hickugbt v. Webstbxk. [Mar. T.'03 

of the trust, shall be void and of nom© effect GongneBS seems 
to have contented itself with declaring simply who might enter 
the land, and! dienominating ihe cestvi que trust; all else it 
hands over to the territorial legislating which ia better fitted, 
on account of its proidmity to the sfubject-matter of the truat, 
to supervise and direct its detail& * * *. By an oversight 
the legislature made no provision for the disposition of por- 
tions of this land to which no individual claim existed, and 
there is nothing in either Act of Congress f rami which a power 
of sale in the trustee can be inferred, and much to repel such 
an inference. The Acts of CSongress leave it altogether to the 
territorial legislature to determine what disposition shall be 
made within the objects of the trust of towtoi lots belonging to 
the community at large, and of the proceeds of such of them 
as may be sold. This part of the trust most clearly cannot be 
executed without the intervention of local legislation. The 
trustee cannot sell under the Acta of Oongresa, because they do 
not authorize him to sell any portion of the trust property, or 
to make any disposition whatever of moneys that might oome 
into his possession on such sale. It being evident that it was 
the intention of congress that the lands included within the 
townsite, and to which no rigjitful claim exists on the part of 
any individual, should be sold, and the proceeds disposed of 
under the directions prescribed by the legislature, wiho are to 
establish rules and regulations for the whole execution of the 
trust ; and, it being further evident that the legLslature failed 
to provide for the disposition of the same^ it is clear to us that 
any sale of such land made by the probate judge or trustee, in 
the absence of these rules audi regulations, wias wholly unwar- 
ranted and absolutely void * * *. It was entirely compe- 
tent for him to make oomveyanoes to those having a valid and 
rightful claim to land at the date of the entry, provided they 
furnished the proper and requisite proof, — ^beyond this his acts 
were ultra viresy and could in no manner affect the rights of 
the community." (City of Denver v. Kent, 1 Colo. 336.) 
In 1895 the legislature of the state of Montana enacted Sec- 



zt Mont] State ex rei*. Hicklin v. Webstee 109 

tion 5117 of the j»ee©nt Political Code. Prior to that time 
there was no authority given the trustee by legislative enact- 
ment for disposing of unsurveyed portians of a towmsite, and 
he can only dispose of such land now in the manner authorized 
by this section. The land must first be surveyed into lots and 
blocka All necessary roads, streets, and alleys must be laid 
through the same, and dedicated to the public use. The relator 
does not claim to have been an occupant of this land at the time 
of the entry of this townsite, and does not claim to have occu- 
pied the same prior to the 21st day of April, 1902. He isi not, 
therefore, a prior claimant under the law in force at the time 
of the entry of this townsite, or at the present time, as' that law 
and the rights of oooupante thereunder is considered and inter- 
preted in the case of City of Helena v. Albertose, 8 Mont. 499, 
20 Pac 817, and the land which the relator claims, if required 
therefor, may be taken for a street or alley ; and there is nothing 
in this record to show that the land claimed by relator, or at 
least a portion of it, will not be within a necessary street or 
alley when the survey is finally made. The trustee of a to^vn- 
sita has no authority to issue a deed conveying my part of a 
street (Hershfield v. Rocky Mi. B, T. Co., 12 Mont 102, 
29 Pac- 883; Parchen v. Ashby, 5 Mont 69, 1 Pac. 204.) 

It is claimed by counsel for relator, in the very able brief 
filed, that there "is no provision of law anywhere, or in force 
at any time, authorizing a subsequent survey and plat to be 
made." Counsel, perhapsi, have refereince to the law in force 
at the time this townsite was entered, for it cannot be contended 
that Section 6117 of the present Political Code does not give 
this authority; and whether the plat filed as a result of this 
subsequent survey is called a new plat, or the completion of the 
old one, is immaterial. It must be done before the trustee has 
jurisdiction to grant title to this land, or any part of it 

Counsel for relator further contend that "the law presumes 
that everything was done that was required should be done by 
the predecessors of the resi)ondent trustee with reference to the 
entry of the townsite of Missoula, and with reference to the 



110 State ex rel. Hicklin v. Webster. [Mar. T.'03 

acts required to be done by hia predecessors undei' the law, im- 
mediately following the entry of said townaite." 

In the case of Ming v. Foote, supra, this court quotes with 
approved the following language from the opjinion of Mr. Jusr 
tice Field in Smelting Compcmy v. Kemp, 104 U. S. 640, 26 
L. Ed. 875 : "So, also, aooording to the doctrine in the cases 
cited^ if the patent be issued withofut authority, it m<ay be col- 
laterally impeached in a court of law. This exception is sub- 
ject to the qualification that when the authority depends upon 
the existence of particular facts, or upon the performance of 
certain antecedent acta, and it is the duty of the land depart- 
ment to ascertain whether the facta exist and the acts have been 
performed, its determination is afi oonduaive of the existence 
of the authority against any collateral attack as is its determina- 
tion upon any other matter properly submitted to its decision. '' 
The court then adds, as a part of the opinion in Ming v. Foote : 
"The authority of the probate judge did depend uipon the ex- 
istence of certain facts. It was his duty to ascertain whether 
these facts existed'. His determination is evidenced by his deed, 
and the same is conclusive against collateral attack.'' 

The respondent trustee made inquiry as to whether these 
antecedent acts had been performed, and, finding no record or 
other evidence that the acts required by law had been complied 
with, very properly decided that he had no authority to issue 
a deed to relator. 

The view here taken renders it unnecessary to discuss the 
other questions raised by respondent in this case. 

We are of the opinion that the application for a peremptory 
writ of mandate should be denied. 

Per Curiam. — For the reasons given in the forgoing opin- 
ion, the alternative writ of mandate heretofore issued in this 
cause is quashed, and the peremptory writ prayed for denied. 



28 Mont] Butte Habdwaeb Co. v. Knox. Ill 



BUTTE HAKDWAEE COMPANY, Appeli^t, v. KNOX, 



28 ml 

31 121 



Respondent. m j3& 

(No. 1,518.) 
(Submitted April 14, 1903. Decided April 27, 1903. 

Pleading — Counlerclavm — Fravd — Faise Representations — 
Judgment on the Pleadings, 

I Fraud la never presumed, nor can It be proved unless the ultimate facts 
constitutlngr It be spedflcally alleged, and where no such facts are al- 
leged. Inferences and Innuendoes are wholly insufficient as a pleading, 

2. In an action on a note, defendant alleged by way of counterclaim that she 
had purchased a boiler of plaintiff, which was to be of a certain heating 
capacity, and tliat on testing the boiler it was found to be insufficient and 
otherwise defective. The. only allegation that the seller made any repre- 
sentations as to the boiler, or that the buyer relied upon any such state- 
ments in making the purchase, was that the buyer was deceived by false 
representations that the boiler was a first-class boiler and sufficient, but 
there was no direct allegation that any such statements were made or relied 
on by the purchaser. It was alleged that the note in suit was given to 
settle the balance of an account, 1>ut there was no statement that this 
account represented the balance due on the holler. Held not to state 
facts constituting a defense or counterclaim. 

Appeal from District Court, Silver Bow County; William 
Clancy, Judge. 

Action by the Butte Hardware Gampany against Jessie C. 
Ejiox. From a judgment for defendant, plaintiff appeals. 
Eflvereed. 

Mr, Bernard Noon, and Mr, F, T, McBride, for Appellant. 

In order to render it actual fraud in any case, the following 
essential elements should be present: First. The mjisrepre- 
sentation must be of a matter of fact, and not of law. Second. 
It must be of a f acrt as digtinguished from a mere expression 
of opinion. Third- It must be of a fact at the time or pre- 
viously existing, and not a mere promise for the future. Fourth. 
It must be of a material matter. Fif tL It must be relied upon 



112 Butte Hakdwabb Co. v. Knox. [Mar. T.'03 

by the person to whom it is roade or whx)se action it m intended 
to influence. (Vol. 8, First Ed., Am. & Eng. Ency. of I^aw, 
p. 636.) 

Representations of the value and utility of machines and 
the like are mere matters of opinion. (Vol. 8, First Ed., Am. 
& Eng, Ency. of Law, p. 636 ; Neidefer v. Chaslam, 71 Ind. 
363, 36 Am. Eep. 198.) 

If the representation ia as to a matter not equally open to 
both parties, it may be said to be a statement of a fact; but if 
it is aa to a matter that rests entirely in the judgment of the 
person making it, and the means of information apoci which a 
fair judgment can be predicated are equally open to both par- 
ties, and there is no artifice or fraud used to prevent the per- 
son to be affected thereby from making an examination and 
forming a judgment for himself, the representation is a mere 
expression of opinion and doe© not support an action for fraud. 
(Vol. 8, First Ed., Am. & Eng. Ency. of LaWj, p. 636 ; 2 Addi- 
son on Torts, p. 422, Sec. 1186.) 

]S'or will misrepresentation be a def eoise to the oon tract where 
the party learns of the facts in tima to back out, yet chooses 
to complete or affirm the contract {Whiting v. TIUl, 23 Mich. 
399; Pratt v. PKjlhroolc, 41 Me. 132; Yerrall v. Verroll, 63 
X. Y. 45 ; Bridge v. Permirrum, 105 K Y. 62.) 

The law presumes that men are honest in their dealings, 
and it is. therefore well settled as a general rule that unless 
there is some special relation involving trust or confidence, or 
other exceptional circumstances, fraud is never to be presumed 
but must be clearly proved by the party allegjing the same. 
(Vol. 14, 2d Ed. Am. & Eng. Ency. of Law^ p. 190, and cases 
cited in note 3.) 

Equity aids the vigilant, not the slothfuL This maxim has 
been termed a "special form, of the yet more general principle^ 
he who seeks equity must do equity." But in the form above 
stated it has a particular importance, because for a long time 
it supplied in equity the place of the statute limitations at law. 
Very early in their history the courts of chancery began to re- 



28 Mont] Butte Habdwabe Go. v. Knox. 113 

quii^ of suitors before them promptnees as a conditLon of re- 
lief. Indeed, the application of this maxim is defended for 
the same reasons and upon the same groundis as the statute of 
limitations. (Vol. 11, 2d Ed. Am. & £ng. Eney. of Law, p. 
165; Pratt v. Cal Min. Co., 24 Fed. 876; Aikens v. Hill, Y 
Ga. 573; Wolf v. Great Falls Water Power, etc. Co., 15 Mont 
49.) 

General demurrer raises question of lachea (1 Beach, Mod- 
em Bq. Pr. See. 258, -p. 291, and cases cited in- note 2.) 

An action for relief ooi the ground of fraud- or mistake (the 
cause of action in such case not to be deemed to have accrued 
until the discovery by the aggrieved party of the facts consti- 
tuting fraud or mistake), shall be commenced within two years. 
(Subd. 4, Sea 524, Code Civ. Ppoc; Sec 5165, Pol. Code; 
Subd. 4, Sec 42, First Division Compiled Statutes of Mon- 
tana.) 

Mr. John N. KirJc, Mr. L. J. Hamilton, and Messrs. Sinclair 
& Dygert, for Respondent 

Where there is an issue raised by the pleadings, it is error 
to render judgment thereon. (Bach, Cory £ Co. v. Mont. L. 
& P. Co., 15 Mont 346, 39 Pac 291 ; Floyd v. Johnson, 17 
Mont 471, 43 Pac 631.) 

Unless all the material issues in the case can be virtually 
settled by the pleadings, a judgment on the pleadings should 
not be rendJered {Leopold v. Silverman, 7 Mont 287, 16 Pac 
580.) 

Answering appellant's argument on its motion to instruct 
the jury for judgment on tbe evidenjce and to make findings of 
facli as requested by it, we submit the following as the law ap- 
plicable to the evidence oa trial : Seca 2291, 2292, Civil Code ; 
Ency. of Law, Vol. 14, pp. 34, 35, and cases cited. 

Where there is any doubt as to whether a statement was in- 
tended and understood as a mere expression of opinion, or a 
statement of fact, the question must be passed upon by a jury. 

VaL XXVni— 8 



114 Butte Habdwarb Co. v. Knox. [Mar. T.'03 

(Ency. of Law, Vol. 14, p. 35 ; Muse v. Shatv, 124 Mass. 59 ; 
Teague v. Irwin, 127 Mass. 217; Foster v. Kennedy, 38 Ala. 
359, 81 Am. Dec 66.) 

A representation that a house is "as good as new," whereas, 
in fact, it was an old building ^n part and had been repaired 
by the vendors, and some of the timbers and boards used in it 
were rotten, was the false rep.resentation of a fact and entitled 
the purchaser to rescind. (Eibel v. Von Fell, 55 "N. J. Eq. 
670.) 

Aa a general rule,, if statements are made positively aa of 
his own knowledge by one who is apparently in a position to 
know the truth and are relied upon by the person to whom they 
are made, they are not to be treated as mere mattcis of opinion. 
(Ency. of Law, Vol. 14, p. 44; Henderson v. Henshad, 54 Eed. 
420 ; Green v. Fwrmer, 80 Fed 41 ; Clifford v. Conill, 29 Cal. 
589; Todd v. Pigott, 114 HI. 648; SUnd v. Pierce, 6 AUen, 
413 (Mass.) ; Hawen'v, Neil, 43 Minn. 315; Cressler v. Rees, 
27 Neb. 515 ; Messer v. Smyth, 59 K H. 41 ; Van Epps v. 
Harrison (N. Y.), 6 Hill, 63.) 

Representations in regard to the quaJtities and r»haracteristies 
of an article made by the seller who may be presumed to speak 
from actual knowledge are not statements of mere opinion. 
(Darby v. Stuart, 63 Vt 570,) 

A false statement by the seller of an article "that it is well 
miade and will stand up to concert pitch," may authorize the 
buyer to rescind and is not mere opinion. (Shmd v. Pierce 
(Mass.), 6 AUen, 413.) 

The seller is liable in sm action for deceit for false represen- 
tations aa to soundness, where the representatiom was tiiat, "that 
it was sound/' or "wias sound as far as he knew," where the 
seller knew at the time that it was unsound. (West v. Emery, 
17 Vt. 583, 44 AnL Dec 356.) 

A statement by the seller that "they are as thrifty and healthy 
a lot as he has ever owned, and that he has been Sn the business 
for a good many years," is a miaterial representation of a fact 
and not a mere matter of opinion, and if false, and known to 



28 Mont] Butte Habdwabe Co. -y. Knox. 115 

him to be false^ will authorize a verdict for fraud and deceit 
{Stevens v. Bradley, 89 Iowa, 174 ; Lewis v. Jewell, 161 Masa 
345, 21 Am. St. Rep. 454; Balcer v. Faucet, 69 111. App. 300; 
Perkins v. Rice, 12 Am. Dee. 298 ; Coon v. Atwell, 46 N. H. 
510; MaHin v. Jordan, 60 Ma 531; Sill v. Wilson, 88 Gal. 
92; Mason v. Roplie, 66 Barb. 180.) 

It is sufficient for the plaintiff to offer in the pleading to 
return to: the seller what he has used, and, if their rights can be 
adjusted by the judgment, the rule that one who seeks to rescind 
a contract on the ground of fraud must place the other party 
in as good a situation as he waa 'in before the oontract is satis- 
fied. (Smith V. HouleU, 51 K^. Y. S. 910.) 

Where a purchaser has no knowledge that statements of fact 
of a vendor are false, he may rely on them implicitly if they 
are not so openly and palpably false that their untruth is aip- 
parent to an ordinarily prudent person. (City\ of Tacoma v. 
Tacama Light & Water Co,, 50 Pac. 55.) 

A statememt that an article is "sound as a dollar," and the 
purchaser relying on such statement makes the purchase, the 
seller is liable for all damage necessarily sustained by the buyer 
by reason of breach of such warranty. (Schee v. Shore, 50 
Pac 903.) 

It is not essential that misrepresentation, whereby one ob- 
tains an advantage over another, should be intentionally false. 
(McCready v. Phillips, 76 I^T. W. 885 ; Morre v. Hinsdale, 77 
Mo. App. 217.) 

False representations of a seller of personal property, made 
to bring about a sale of the property, is ground for rescision 
of the sale whether or not the seller knew them; to be false, as 
he is bound to know that representations made by him are true. 
{Beetle v. Anderson, 73 N. W. 560; Schofield G. & P. Co. v. 
Schoiield, AO K\X. 1046.) 

Whether a representation "good as gold'' is a matter of opin- 
ion or a atatenuent of fact on which the vendee was entjltled to 
rely is a question for the jnry. {Andrews v. Jackson (Mass.), 
47 ST. R 412.). 



116 Butte Haedwakb Co. v. Knox. [Mar. T/03 

To entitle the buyer to reoover for misrepresentations by the 
seller, lie need not Lave relied solely on tbe represei^tationa, but 
it is sufficient if the representations bad a material influence 
in indudng the purchase. (Hcmdj/ v. Waldeon, 35 AU. 884.) 

MR OOMMISSIOKER POORMAN^ prepared the opinion 
for the court 

This action was brought for the purpose of obtaining judg- 
ment against defendant for the amount alleged to be due on a 
promisBoiy note executed by defendant and payable to plaintiff, 
and for the f oredoeure of a certain real estate mortgage given 
by defendant to secure the payment of said note. The com- 
plaint is in the usual form, and sets out a copy of the note and 
mortgaga 

The defendant filed an ansiwer, in which she admitted the 
allegations of the complaint, but, aa a plea in avoidance, al- 
leged certaiiDi facts relating to the executioox of said note and 
mortgage. The answer is here given in full in so far as it is 
neoeesary to refer to the same in determining the questions 
raised with respect thereto by the errors assigned: 

"(1) At the time of the execution of the said promissory note 
and mortgage sued upon in this action, and for a long time prior 
and subsequent thereto^ the defendant was engaged in the busi- 
ness of conducting a greenhouse in the city of Butte, state of 
Montana ; that defendant had in her employ a man by the name 
of J. H. Mitchell; that said Mitchell contracted with J. M. 
Montgomery & Co., who were conducting a boiler works in the 
city of Butte, for a 40-horse powier boiler to be tised in the 
heating of the greenhouses run by defendant; that the said 
boiler was to have suflScient capacity to heat all the greenhouses 
defendant then had standing, andi, in addition' thereto, to heat 
at least as many more greenhouses when they were erected, and 
said boiler was to furnish the heat at a moderate cost for fuel ; 
that said boiler was to be first class in every respect, and the 
price thereof, set up, was to be $785." 



28 Mont] Butte Habdwabb Co. v. Knox. 117 

Paragraph 2 alleges, on information and belief, that the firm 
of J. IL Montgomery & Co. wag eomiposed: of J. M. Montgom- 
ery and the plaintiff. 

Paragraph 3 alleges that J. M. Montgomeay & Co. placed a 
certain five-flne steamboat boUer in the greeoihouse of defend- 
ant; that the same was entirely unfit for the purpose for which 
it was contracted. 

Paragraph 4 alleges that the defendant gave the boiler a 
thorough test, and found that the same consumed an enormous 
amount of fuel, and was not fit for the purpoee of heating the 
gresnhoiase ; that some of her planita froze, and she was damiaged 
to the extent of $1,500. 

Paragraph 5 alleges that the boiler never was a first-class 
boiler, nor intended to be used for heating purposes; that the 
defendant was obliged to remove the same from her greenhouse, 
and to replace it with a 54-flue boiler. 

"(6) That defendant was deceived' and misled in the pur- 
chase of the boiler by the said J. M. Montgomery & Co., in their 
false representatioins that the said boiler was a first-class boiler, 
and would do the heating of sand greenhouse, and other green- 
houses to be erected by def^dant, at a moderate cost for fueL" 

"(7) That defendant paid on' aooount of said boiler the sum 
of $285.'' 

"(8) That the said note and mortgage sued upon in this ac- 
tion was given to secure the balance of an aooount due the said 
J. M. Montgomery & Co., which account defendant alleges, 
npon information' and belief, has, previous to the execution of 
tiie note and mortgage sued uipon in this action, been assigned 
to the plaintiff herein ; and defendant further alleges that she 
has already paid more than' said boiler was wiorth, and that she 
never received any consideration for the note and mortgage 
whidi she executed to this plaintiff, and which is sued upon in 
this action; that the same was executed and delivered' through 
a misapprehensioin of her rights in the premtises ; and that she 
is now ready and willing to turn' over to the said J. M. Mont- 



118 Butte Hardware Ck). v. Knox. [Mar. T.'03 

gomery & Co., or to the plaintiff hereiii, the said boiler, and 
tende(rs the same to either of them/' 

The answer then concludes with a prayer that the note and 
mortgage described in plaintiff's complaint be canceled by de- 
cree of court. 

The plaintiff moved for judgment on the pleadings on the 
ground "that the answer of defendant does not state facts suffi- 
cient to constitute a defense toi plaintiff's complaint" This 
motion was by the court overruled. Plaintiff then filed a rep- 
lication. At the trial the defendant claimed the right, and was 
allowed, to open and dose the case. Plaintiff thereupon ob- 
jected to the intrpductioni of any testimony on the part of de- 
fendant, for the reason "that defendant's answer does not state 
facta sufficient to constitute a defense or counterclaim to the 
cause of sustioa set out dn plaintiff's complaint." This objec- 
tion was by the court overruled. Judgment was rendered for 
defendant From this judgment the plaintiff appeals, and as- 
signs the action of the court in overruling the motion for judg- 
ment on the pleadings, and in overruling plaintiff's objedfion 
to the introduction of any testimony on the part of defendant, 
as errors Nos. 1 and 2 in its brief filed. These errors properly 
present for determination the sufficiency of the answer as a 
defense to the action, and will be considered together. 

It is a well-reoognized principle of pleading that, where it 
is sought to set aside or avoid a contract on the ground of false 
representations or of fraud, the ultimate facta constituting siich 
representations or fraud must be specifically alleged, that the 
court may be advised as to whether the matters pleaded will, if 
proved, be sufficient to. warrant the relief demanded. Men are 
presumed to act fairly and to deal fairly with each other in 
their business transactions, and fraud is never presumed, nor 
can it be proven unless alleged. Mere expresstons of opinion 
or of judgment do not, except in particular cases, which must 
be shown by the pleading, constitute actionable fraud or false 
representations. Statements made by the owner of property 
as to the superior kind, quality or character of his poeseasions 



28 Mont] BuTTB Kabdwakb Co. v. Knox. 119 

do not of themdelves oonstitute actionable fraud or false repre- 
sentatjions, though such statemBnta may not accord with the 
tnith. Where a contract is attacked! on the ground that it was 
procured thnough false repa-eeentations or fraud, the opposing 
party is entitled to know from direct and consistent allegations 
of the pleading that he is called upon to defend against such 
charges. 

The foregnting principles are supi^rted in whole or in part 
by the following cases: T'erritory v. Underwood. 8 Mont. 133, 

19 Pac 398 ; YorJc v. Steward, 21 Mont, 518, 55 Pac. 29, 43 
L R A. 125 ; State ex rel Crawford v. M, & M. L. £ I. Co,, 

20 Mont 203, 50 Pac. 420; Budd v. T, C. Power & Co.. 8 
Mont. 384, 20 Pac. 820 ; BicUe v. Irvine, 9 Mont. 253, 23 Pac 
244, and cases cited ; First Nat'l Bank v. Boyce, 15 Mont. 173, 
38 Pac, 829 ; State ex rel N, W. NaVl Bank v. Dickerman, 
16 Mont. 288, 40 Pac. 698 ; Ency. Pleading & Practice, Vol. 
8, p. 906; Cheneij v. Po^ucll, 88 Ga. 629, 15 S. E. 750 ; Burden 
V. Burden, 141 Ind. 471, 40 N. E. 1067 ; Cade v. Head Camp 
W. 0. ^Y., 27 Wash. 218, 67 Pac. 603; Qrentiier v. FeJirenr 
scMeld, 64 Kansas, 764, 68 Pac. 619. 

The case of Stetson v. Biggs, reported in 37 Xeb. 797, 56 X. 
W. 628, was an action for tlio foreclosure of a mortgage on cer- 
tain real estate, in which the defendant filed an answer alleging 
that a part of the consideration for the note and mortgage sued 
upon was the purcliaso price of certain real estate wliich the 
defendant had purchased from the j)laintiff ; thai the plaintiflE 
had represented that the real estate was jin a certain locality, 
and showed the same to tlie defendant, but that in the convey- 
ance the plaintiff described a certain other piece of land, which 
had not been shown to defendant as such ]mrcbas(*r, and which 
he had never agreed to purchase; that the piece of land actually 
conveyed was worth $500 less than that which was showTi to 
defendant by the plaintiff, and which he had: contracted for. 
The plaintiff at tiie tr;ial objected to the introduction of any 
evidence, for the reason that the answer did n<t stote facts suffi- 
cient to constitute a defense. The supreme court, in passing 



120 Butte Kasdwabb Oo. v. Knox. [Mar. T/03 

upon the case, uses this language : "The defense of Eiggs was 
in effect an action against Stetson for damagea for false repre- 
sentations made by the latter. This answer, then, to be good, 
must allege wdth reasonable certainty: (a) That Stetson made 
some representation to Edggs, meaning he should act on it ; (b) 
that the representation made was false; (c) that Riggs believed 
such representation to be true, relied and acted upcn it, and was 
thereby damaged. (Byard v. Holmes, 34 N. J. Law, 296, and 
cases there cited.) * * * Rwnge v. Brown, 23 I?"eb. 817 
[37 K W. 660]." The court then holds the answer insufficient 
as not constituting a cause of action against Stetson, and fe- 
versed the judgment of the lower court. 

"It is incumbent upon the party claiming to recover in an 
action for deceit founded upon false representations to show 
that he was influenced by them * * * to his damage.^' 
{Taylor v. Ghaest, 58 N. Y. 262.) 

"To sufiftain a judgment for damages for fraud and deceit 
in the sale of a newspaper, upon the ground that its subscrip- 
tion list was not as large as represented, it must be alleged, and 
also shown, that the purchaser relied on the representation of 
the number of paying subscribers as an induceanent to the pur- 
chase" {White v. Smith, 39 Kan. 752, 18 Paa 931.) 

"It is also necessary for the plaintiff in such an actflon [dam- 
age for false representation] to prove that he believed and relied 
upon the false representation in order to entitle him to re^ 
cover." {Humphrey v. Merriami, 32 Minn. 197, 20 ]N'. W. 
138.) 

"It should be averred that the false statements were believed 
to ]ye true by the plaintiffs, and, thus believing, were relied 
upon by them, and that they induced tlie action taken by the 
plaintiffs which resulted in damage to them." {PforzJieim^r v.. 
Selkirk, 71 Mich. 600, 40 K W. 1^\ Parker v. Armsirong, 55 
Midi. 176, 20 K W. 892.) 

"False representations or fraud will not avoid a sale unless 
it api^ears that the seller was thereby induced to do that which 



28 Mont] BuTTB Habdwabe Co. v. Knox. 121 

he would probably not have done except for such, fraud or de- 
ception." (Khpenstein v. MuLcdhy, 4 Nev. 296.) 

Innuendo cannot perform the office of direct statement, nor 
inference suffice for positive allegation. 

From the foregoing authorities it is apparent that if this an- 
sewer ds sufficient it must appear therefrom with reasonable 
certainty: (1) That certain representations which defendant 
had a right to rely upon were made by or at the instance of the 
vendor; (2) that they were false; (3) that defendant believed 
such representations to be true, and did rely upon them, and 
was induced thereby to enter into the contract ; (4) that de- 
fendant suffered damages thereby; (5) that the nott sued upon 
represents the purchase price, or a part of it, for the boiler dor- 
scribed tin the answer. 

From an examination of this answer it is found that para- 
graph 1 thereof contains the allegation that this boiler was 
purchased from J. M. Montgomery & Co. by the agent of the 
defendant; that it was to possess certain qualities, and to ao- 
oranplish cert^n purposes. Further on, in paragraph 2, we 
find the statement that it was entirely unfit for the purposes for 
which it was contracted ; and this statement is repeated in dif- 
ferent forms in paragraphs 4 and 5. 

It will be further found that nowhere, except in paragraph 
6 of the answer, is there any allegation, or even an intlimation, 
that the vendor ever made any representations or statements 
whatsoever with reference to this boiler ; nor is there any state- 
ment or intimation that the defendant ever reliod upon any state- 
ments made by the vendor, or that she was induced to make the 
purchase by reason of jpiy representations. The whole of para- 
graph 6 is in the nature of an inference to be drawn from some 
other part of the pleading, and no other part of the pleading 
justifies such an inference. It is more properly an innuendo, 
without any previous direct statement to base it upon. And, 
as we have seen heretofore, fraud is not to be inferred nor pre- 
sumed, unless the facts, properly stated, justify such an infer- 



122 Butte Hardware Oo. v. Knox. [Mar.T/08 

ence or presumptlion ; and, where no such facts are alleged, in- 
ferences and innuendoes are wholly insufficient as a pleading. 

Paragraph 8 of the answer contains the allegation that the 
note and mortgage sued upon were given to secure the balance 
of an account due said J. M. Montgomery & Oo. ; but there is 
no statement, direct or indirect, that 'this account represented 
the balance due on this boiler account For aught the pleadings 
show, this accofunt may have been for other commodities or 
articles of merchandise. It is true it is alleged in this para- 
graph that defendant never received any con&idej-ation for the 
note, but this is based, upon the theory that the note is void be- 
cause of false representations made, and tliese representations 
are not sufficiently pleaded to constitute a defense or counter- 
claim to this action. 

It may be urged that the answer filed by tlie defendant is in 
the nature of a counterclaim, and not a defense, and that plain- 
tiff's motion for judgment on tlie pleadings is not sufficfient for 
the reason that he does not use the term "counterclaim" therein. 
Whatever there may be in this contention, it is not neoessaiy 
to discuss or to decide here, for we are considering thjis assign- 
ment of error in connection mth the second assignment, which 
raises practically the same question, and in which second as- 
signment the term "counterclaim" is used. 

The action of the trial court in ovemiling plaintiff's objec- 
tion to the introduction of any testimony on the part of defend- 
ant was, for the reason heretofoi*e stated, erroneous, and the 
judgment rendered by the district court in said cause should be 
reversed. 

We therefore I'ecommend that the judgment heretofore en- 
tered in this cause by the trial court be reversed, and the cause 
remanded. 

Per Curiam. — For the reasons stated in the foregoing opin- 
ion, the judgment is reversed, and the cause remanded. 



I Mont] State ex rel. S.-M. Co. v. Dist. Ct. 128 



STATE EX REL. STROMBERG-MULLINS CO., Relator, , 23 1231 

V, DISTRICT COURT OF THE SECOND JU- l^^i 

DICIAL DISTRICT et al.. Respondents. I '^ ^\ 

(No. 1,932.) 
(Sabmltted April 18, 1003. Decided May 4, 1903.) 

New Trial — Statutory Provisions — Noivcompliance — Effect — 
Statement — Settlement — Loss of Ri<)Kt — Revivor — Amend- 
ments — Acceptance — Notice — Mandamus, 

1. since a motion for a new trial Is a statutory remedy. In ordei to success- 
fully Invoke It, the mode pointed out by the statute must be pursued. 

2. Under Code of Civil Procedure, Section 1173, Subdivision 3, providing that, 
where amendments to a statement of the case for a new trial are not 
adopted, the proposed statements and amendments shall be presented to 
the judge by the movant within ten days, on five days* notice to the ad« 
verse party, or delivered to the clerk for the judge, where movant notified 
his adversary that the statement would be presented to the judge for set- 
tlement at a certain time, and at the time appointed failed to appear, and 
did not present the statement to the judge or leave It with the clerk, or 
then and there adopt the amendments of the adverse party, it lost Its 
right to have the statement settled at all. 

8. The right could not be revived by a subsequent adoption of the adverse 
party's amendments. 

4. A motion filed with the clerk for the settlement of a statement on motion 
for new trial, reciting the acceptance of the adverse party's amendments 
to the statement, but not called to such adverse party's attention, is not 
notice to him of such acceptance. 

5. Under the provisions of the Code of Civil Procedure, It Is the duty of the 
judge to settle statements and bills of exceptions, and for this purpose they 
must be presented to him, and not to the court as such. Quaere: Whether 
in a proceeding for a writ of mandamus to compel a district judge to settle 
a statement It Is proper practice to make the court a party to the pro- 
ceeding? 

Original application for writ of mandamus by the state, on 
the relation of the Stromberg-Mullins Company, against the 
Second Judicial District Conrt in and for the county of Silver 
Bow, and William Clancy, a judge thereof. On motion to 
quash. Motion granted. 

Messrs. Kirk & Clinton, for Relator. 

If r. J. E. Healy, for Respondents. 



124 State ex bbl. S.-M. CJo. r. Dist. Ot. [Mar. T/08 

MR CHIEF JUSTICE BRAJ^TLT delivered the opinion 
of the court. 

Original application for a writ of mandamus to compel Will- 
iam Clancy, as judge of the Second judicial district court, to 
settle a statement on motion for a new trial. On application to 
this court an alternative writ was issued, directing the defend- 
ant judge to settle the statement or show cause why he had not 
done so. He appeared by motion to quash the writ, and also 
by answer. After argument, the question of law arising upon 
the record was submitted. 

There is no material controversy as to the facts. So far as 
fhej' are necessary to be stated, they are the following: The 
cause of Harrington v. Stromberg-MuLlms, Company, a corpo- 
ration, was tried in the district court of Silver Bow county on 
December 8, 1902, the defendant judge ipresiding. The plain- 
tiff had verdict, and a judgment was rendered thereon. On 
December 10th the relator, througji its counsel, served and filed 
its notice of intention to move for a new trial, and on the samie 
day obtained an order granting it*thirty days' additional time 
in which to prepare and serve its statemient The statement was 
served on counsel for the plaintiff in the case on January 17, 
1903. Counsel proposed various amendments to the statement 
on January 20th. On January 21st he was served with notice 
that certain of the amendments had been adopted, but that 
others of them had not, and that the statement would be* pre- 
sented to the defendant judge for settlement on January 27th, 
at 10 o'clock a. m., at the courtroom where the judge held court 
At the appointed hour counsel for the plaintiff appeared. Coun- 
sel for the defendant (relator) did not appear, nor did they on 
that day leave with the clerk of the court or with the judge the 
statement, with the amendments. Soimetime in the afternoon 
of that day, however, one of counsel for the relator took the 
statement, without the amendments, to one of the clerk's depu- 
ties, and, after having him indorse upon it the date of its recep- 
tion, took it away again. It was retained by. counsel until the 



28 Mont] State ex bel. S.-M. Co. v. Dist. Ct. 125 

moming of January 31st, when it waa again brought to the 
office of the clerk, but without the amendments, either in a sepia- 
rate paper or incorporated in the statement as a part of it On 
January 31st, upon motion of counsel for relator, the statement 
was set for hearing on February 7th, the plaintiff's attorney 
orally objecting to the setting of the hearing, or any oonsideiv 
ation of the matter of settlement, on the ground that it was pre- 
sented out of time. On February 3d, oounsel for relator filed 
with the derk a motion, in which they recited that they accepted 
all of the amendments proposed by opposing counsel, and asked 
that the statement be settled and ordered filed. INTo order was 
then made or entered by the court or judge upon this motion. On 
Febniary 7th the hearing was contimied until February 14:th. 
On this latter date plaintiff's counsel filed his written objection 
to the settlement, setting forth as a ground thereof, among 
others, that the proposed statement, with the amendments, had 
not been presented to the judge for settlement., nor left with the 
derk foi* the judge, under the requirements of the statute, and, 
therefore, that relator had lost its right to have the same settled. 
The matter of settlement was continued, thereafter from time to 
time until March 21st, when, after a hearing, the judge made 
an order sustaining the plaintiff's objection, and declined* to 
settle the statement 

The question presented, therefore, is : Did the relator, by its 
failure to present the statement^ with the amendments, in ac- 
cordance with the statute, or, in lieu thereof, by its failure to 
leave them with the derk for the judge, lose its right to have the 
statement engrossed and settled- ? It is argued by coimsel that, 
notwithstanding they had first elected to pursue the course in- 
dicated by their notice to secure the settlement, and the situa- 
tion in which they found themselves on February 3d, they never- 
theless had the right at that time to adopt the amendments there- 
tofore rejected, and insist that the judge should settle the state- 
ment In this we think counsel are in error. A motion for a 
new trial is a statutory remedy, and, in order to successfully 
invoke it^ the mx>de pointed out by the statute must be pursued. 



126 State ex rel. S.-M. Co. v. Dist. Or. [Mar. T.'03 

(Ogle V. Potter, 24 Mont 501, 62 Pac. 920.) If the purpose 
is to make the motion upon a statement of the case, the statement 
must be prepared and settled under the provisions of Section 
1155 and Subdivisions 2 and 3 of Section 11Y3 of the Oode of 
Civil Procedure. Under these provisions, if no amendments 
are proposed by the adverse party, the statement may be pre- 
sented to the judge for settlement within a reasonable time; if 
amendments are proposed and adopted, the statement may be 
engrossed and presented for settlement within a like reasonable 
time. In neither case is notice to the adverse party necessary. 
If the amendments are not adopted, either of two courses may 
be pursued by the moving party: The statement and amend- 
ments may be presented to the judge within ten rays after the 
amendments are proposed, upon five days' notice to the adverse 
party, or they may be delivered to the clerk for tbe judge. If 
they are presented to the judge at the time appointed, he may 
proceed at once to a settlement, or he may appoint another time 
for that puTpjOsa If they are delivered to the clerk, he must at 
once deliver them to the judge when the judge is in the county ; 
if the judge is absent from, the county, the clerk must, upon 
notice in writing by any of the parties, forward them to tihe 
judge, otherwise the clerk must deliver them to the judge im- 
mediately upon his return. Thereupon it becomes the duty of 
the judge to fix a time for the settlement, and to cause the par- 
ties to be notified by the clerk. At the time so fixed, or at a time 
to which a postponement may be had, the judge must make the 
settlement The judge is not authorized nor required to settle 
a statement not presented in substantial conformity with these 
requirements. The moving party is entitled to have his motion 
heard and disposed of upon the basis upoai which he makes it 
(Sweeney v. Great Falls & Canada By, Co., 11 Mont. 34, 27 
Pac 347), yet he camuoti insist that the court shall settle the 
statement upon which he intends to predicate the motion, unless 
he has observed the requirements of the statute or such observ- 
ance has been waived by the adverse party. In this instance 
the relator notified the adverse party that it would piieBent the 



28 Mont] State ex kel. S.-M. Co. v. Dist. Ct. 127 

statement to the judge at a specified time and place. Though 
the adverse party appeared at that time and place, the relator 
did not Its counsel did not then present the statement, with 
the amendments!, to the judge, nor did they then or thereafter 
leave the statement and amendments with the clerk for the judge. 
If the judge was absent (and it does not appear from the record 
in this cause whether he waa or not), the statement should have 
been left with the clerk for him. One or the other course should 
have been pursued. As the relator pursued neither, and did not 
notify the adverse party then and there that it would accept the 
amendments, it lost its rigjit to have the statement settled at all. 
So far as the record shows, it never gave the adverse party notice 
that the amendments had been adopted, but left counsel to find 
out this fact from the written motion filed with the clerk. Un- 
der the circumstances, no obligation rested upon the defendant 
judge to settle the statement Nor could the relator thereafter 
revive this right by adopiting the amendments and then asking 
that the statement as amended be settled'. But^ conceding that 
it might have preserved its right, and, by adopting, accepted the 
amendments, and notifying counsel of the adverse party that it 
had done so, it failed to give this notioa A mere metion filed 
'with the clerk, but not called to the attention of the adverse 
parly, is not notice to such adverse party, unless the statute so 
provides. We know of no provision of the statute authorizing 
the notice to be given in this way. 

We note that the court is made a party to this proceeding. 
Under the statute, it is the duty of the judge to settle statements 
and bills of exception, and for this purpose they must be pre- 
sented to him, and not to the court as suck No point is made 
by counsel on either side as to whetier this is proper ip(ractice. 
We therefore pass it without comment 

Hie alternative writ is quashed and set aside, and the pro- 
ceeding is dismissed. 

Dismissed. 

Rehearing denied May 18, 1903. 



128 ROBEKTSON ET AL. V. LoNGLEY ET AL. [Mar. T.'03 



'JL«6 ROBERTSON et al.. Appellants, v. LONGLEY bt al., 
g |a Respondents. 

(No. 1.564.) 
(Submitted May 2, 1903. Decided May 4. 1008.) 

Appeal — Sufficiency of Evidence — Review — Bill of Exceptions 
— Specification of Particvlao's — Complete Record. 

i. Under Code of Civil Procedure, Section 1162, providing that, when an 
exception to a verdict or decision is on account of the insuiflciency of the 
evidence, the objection must specify the particulars in which the evidence 
is alleged to be insufficient, a bill of exceptions containing no specifications 
whatever, nor pointing out in any manner any insufficiency, will not war- 
rant a review of the evidence. 

2. Where it is not apparent from any recital in the record that it contains 
all the evidence, or the substance thereof, and there is no statement in the 
certificate of the Judge from which it may be inferred that the bill con- 
tains all the evidence in substance, its sufficiency cannot be reviewed. 

Appeal from District Court, Park Couniy; FrarJe Henry, 
Judge. 

Action by Frank C. Robertson and others against T. W. 
Longley and ano^er. Judgment for defendants, and plaintiffs 
appeal. Affirmed. 

Mr, T. J. Porter, and Mr. A. P. StarJc, for Appellants. 

MR. CHIEF JUSTICE BRANTLY delivered the opinion 
of the (K>iirt 

This acstion waa brought by the pjaintiifs, aa stockholders of 
the Enterprise Mining & Smelting Company, a corporation, to 
obtain a decjree declaring the defendants trustees of the title to 
the New: Enterprise and Blue Mountain quartz lode minijig 
claims for the benefit of the corporation, and requiring theci 
to make conveyances of the property to it. From a judgment in 
favor of the defendants, plaintiffs have appealed. 



28 Mont] LisKEB v. O^Eotjrke. 129 

There was no motion for a new\ trial ia the court below, and 
the only queation argued in the brief of appellants is the insiiffi- 
cien<y of the evidence to sudtain the findings. Upon examina- 
tion of the transcript, w© find tha.t we cannot consider this ques- 
tion for two reasons: 

1. Section 1152 of the Code of Civil Procedure provides 
that, "when, the exception is |» the verdict or decision, upon the 
ground of the insufficiency of the evidence to justify it, the ob- 
jection must specify the particulars in which such evidence is 
alleged to be insufficient" The bill of exceptions found in tlic 
record contains no specifications whatever, nor any attempt in 
any manner to point out any alleged insufficiency of the evi- 
denoa It must, therefore, be disregarded. 

2. It is not apparent from any recital in the record that it 
contains all the evidence, or the substance thereof, heard by the 
court below at the trial ; nor is there any statement in the cer- 
tificate of the judge from which the inference is permissible 
that the bill contains all the evidence in substance. The record, 
therefore, does not present the question which appellants desire 
to have reviewed. (State v. Shepphaa-d, 23 Mont 323, 58 Pac. 
868; T. C. Power & Bro. v. Stocking et ah, 26 Mont 478, 68 
Pac. 857 ; King v. Pomj Gold Mimng Co. et al, 28 Mont 74, 
72 Pac 309.) The judgment is therefore affirmed. 

A,ffirmed. 



28 129 

LISKER^ Appellant, v. O'ROHRKE, Respondent. 3i ^| 

(No. 1.554.) 'g^ 

(Sabmltted AprH 29, 1003. Decided May 4, 1003.) 

Trial — Witnesses — Exaanmation in Chief — Anticipating De- 
fense — Responsiveness of Answer — Appeal — Record — Omis- 
sion of Judgment — Dismissal. 

1. It was not error to exclude eridence of plaintiff in chief, which, thongh 
relevant to the issue made by the answer, was not necessary to establish 
the case aa alleged in the complaint. 

Vol. XXVIII— 9 



130 LisKEE V. O'EouRKE. [Mar. T.^03 

2. It was not error to strike out a voluntary statement made by defendant, 
not responsive to the question asked him, and Irrelevant to the Issues in 
the case. 

8. Under Code of Civil Procedure, Sections 1722, 1736, providing that an 
appeal may be taken from a tlnal judgment entered in an action, and that 
appellant must furnish the court with a copy of the Judgment roll, where 
the record does not show that any Judgment has been entered in the caae 
in the court below, an appeal from the judgment will be dismissed. 

4. A minute entry directing Judgment to be entered for defendant is not a 
Judgment. 

5. Under Code of Civil Procedure, Sections 17^8, 1176, upon appeal from an 
order denying a new trial the record must contain a copy of the Judgment 
roll. 

Appeal from District Court, SUver Bow County; John Lind- 
say, Judge. 

Action by A. A. Lisker against John O'Rourke. From a 
judgment for defendant and from an order denying a new trial, 
plaintiff appeals. Appeal from judgment dismiased; order 
affirmed. 

Mr, E. B. Howell, and Mr. Charles E. Sackett, for Appellant. 

Mr. John 0. Bender, for Respondent 

MR CHIEF JUSTICE BRANTLY delivered the opinion 
of the court. 

This action was brought by the plaintiif, as surety, to obtain 
contribution from the defendant^ his cosurety. The defendant 
had judgment. The plaintiff has appealed from the judgm/ent 
and an order denying a new trial. 

1. Upon the appeal from the order, the errors assigned are 
urppn the rulings of the court in excluding certain evidienoe of- 
fered by the plaintiff, and) in striking out a certain statement 
made by the defendant when testifying in his own behalf. The 
evidence offered and eixcluded was neitheir relevant to, nor did 
it tend in any way to establish, the cause of action alleged in the 
complaint. It related wholly to matters allegjed in the answer 
by way of affirmative defense. The plaintiff cannot complain 
because he was not permitted' to introduce in chief evidence 



28 Mont] LisKEE v, O'Rourke. 131 

which, though relevant to the issue made by the answer, was not 
neceseaiy to naake out his case ag alleged. The evidence was 
properly excluded. The evidence stricken out was a vduntary 
statement made by the defendant, not responsive to any que©-, 
tion asked him, and wholly irrelevant to the issues in the oaee. 
This ruling was also correct. 

2. We cannot consider any error assigned upon the appeal 
from the judgment, for the reason, that the record does not show 
that any judgment has been entered in the case in the court 
below. To support an appeal, the judgment must not only be 
entered (Oode of Civil Procedure, Sec. 1Y22, Session Laws of 
1899, p. 14r6), but the record on apipieal must contain a copy of 
it (Code of Civil Procedure, Sec. 1736). The record contains 
a copy of a minute entry directing judgment to be entered for 
the defendant. This order is not a judgment {Butte & Boston 
Cm. Mining Co. v. Mont. Ore Pur. Co., 27 Mkmt. 152, 69 Pac 
714.) This appeal must therefore be dismissed. (Brunell v. 
Logan, 16 Mont. 307, 40 Pac. 597.) 

The appeal f rami the judgment is dismissed ; the order deny- 
ing a new trial is affirmed. 

OiT Motion for Rbhbaehstg. 

(Submitted June 6, 1908. Decided June 8. 1903.) 

MR CHIEF JUSTICE BRANTLY delivered the opinion 
of the court. 

Hie plaintiff has submitted a motion for a rehearing kerein, 
in which the point is made that this court was in error in hold- 
ing in the original opinion that the evidence excluded was prop- 
erly excluded because it was offered. in chief, whereas it related 
wholly to matters allegied in the answer by way of an affimmtive 
defense and should have been offered, if at all, by way of re- 
battal It ia argued that under a stipulation filed by coimsel at 
the opening of the trial, the burden was cast upon the plaintiff 
to avoid the effect of the affirmative nmtter so set u)p in the an- 



132 Miller v. Matheson. [Mar. T/03 

swer, and this being so, and th6 evidence tending directly to 
show an estofppel upon the defendant, it was competent and 
should have beea admitted. We do not think this position ten- 
able. After an examination of the record under the assumption 
that the theory of the plaintiff as to the burden of proof ig cor- 
rect, we find that the evidence was not relevant to any issue in 
the case. There was therefore no error iiu the ruling. But even 
if there were, the plaintifF is in no position to take advantage 
of it 

Our attention is now, called to the fact that the appeal from 
the order denying a new trial should also have been dismissed, 
for the reason that the record fails to show that judgment had 
been entered in the district court and, therefore, that there is 
no judgment roll in the record as filed in this court This course 
should have been punsued by this court, for upon appeal from 
an order denying a new trial the record must contain, among 
other things, a copy of the judgment roll. (Sections 1738 and 
1176, Code of Civil Procedure.) liTo question presented on the 
appeal from the order denying a new trial wasi properly before 
the court for oonsiideration. The same result is reached, how- 
ever, in the disposition of the case as made, and we shall not 
now reopen it in order to rectify this technical error in practice. 

The motion for a rehearing is denied. 

Derded. 



MILLER, ET AL., Respondents^ v, MATHESON bt ajl,. 
Appellants. 

(No. 1.562.) 
(Siit>initted May 2, 1903. Decided May 4, 1906.) 

Appeal — Denial of CorUimjumce — Record — Insufficiency — 
Review, 

Where there was nothing In the record to show that any motion for a con- 
tinuance was made, heard or determined by the court, or that the court 



28 Mont] MiuLEK v, Mj^thbson. 133 

ever made an order contlnQlng or refusing to continue the cajise, an aaslgn- 
ment that the conrt erred In overrallng defendant's motion for a continu- 
ance could not be reviewed. 

Appeal from District Court, Teton County; D, F. SmUh, 
Judge. 

Action by C. A. Miller and A. O. Langnniir, co-partners 
and doing business under the firm name of Miller & Longmuir, 
against Ix D. Matibeson and Isaac Morehouse, (s>partnerB and 
doing business imder the firm name of L. D. Matheson & Ob. 
from a judgment in favw of plaintiffs, defendants appeal. 
Affirmed. 

Mr, Charles O'Dormell, for Appellants. 

Mr. J. G. Bair, and Mr. H. 8. Hepner, for Eespondente. 

MR-. JUSTICE MILBURN delivered the apdnion of the 
court. 

This is an action by the plaintiffs to recover from the defend- 
ants the sum of $500. After issue had been joined and the 
case set for trial, the defendants (appellants herein) served and 
filed the affidavit of Isaac Morehouse, one of the defendants, it 
being an affidavit for continuance of the cause. The case was 
set to be tried on the 22d day of I^avember, 1899, and came on 
for trial on the following day, on which day the court gave and 
caused to be entered judgment for the plaintiffs, from which 
judgment this appeal is taken. 

The only error assigned by appellants is that the court "erred 
in overruling defendanta' motion for a continuance of the trial 
of said cause on the grounds of said motion being based' on the 
affidavit of Isaac Morehouse.'' There is not anything in the 
record to show th^t any motion for a continuance was made, 
heard, or determined by the court It does not appear that the 
court ever made any order continuing or refusing to continue 
the said cause. Therefore the judgment must be affirmed. 

Afp/rmed. 



134 Mbbbill v. Milleb. [Mar. T/03 



2g 134 MKRRILL, Respoitdent, v. MILLER, Appellant. 

(No. 1,489.) 
(Submitted March 18, 1908. Decided May 4, 1903.) 

Pleading — Complaint — Allegation of Equity — Amendment — 
Trial — Findings — Decree — Accounting — Appeal — 
Correction of Error by Trial Court — Patents — Suit for Con- 
veyance — Jurisdiction of State Court, 

1. A suit to obtain a conveyance of an alleged interest in an invention, to 
enjoin defendant from disposing of plaintiff's interest therein, and to com- 
pel defendant to account for sums received by him for a sale to a third 
party of an interest therein — the sole issue being whether defendant had 
sold an interest in the machine to plaintiff — was not a suit arising under 
the patent laws, and the state court had Jurisdiction thereof. 

2. A suit was brought to obtain a conveyance of an alleged interest in an 
invention, and to enjoin defendant from disposing thereof to a third party, 
based on an agreement to render mutual assistance in obtaining the patent. 
Plaintiff had procured loans of money in aid of the project, and negotiated 
a sale of an interest in the machine, the proceeds of which he and defend- 
ant agreed to use in taking the machine to the Klondike and operating it. 
Defendant had violated the agreement, and refused to assign plaintiff any 
interest in the machine, and threatened to sell the same to a third party, 
and converted the money procured by the sale negotiated by plaintiff to 
his own use. Held, it was not necessary for plaintiff to allege an offer to 
pay a proportionate part of the expense of applying for a patent in de- 
fendant's name. 

8. Where a complaint praying an accounting contained no allegation thitt 
the parties were partners, and there was no evidence to that effect, or that 
there were any profits trom the project undertaken by them — ^the Implica- 
tion from the complaint being that there were none — it was error to decree 
an accounting and Judgment for plaintiff's interest in the profits. 

4. An assignment that the court erred in a finding will not be considered on 
appeal, where the court amended its finding, and there was no assignment 
that the amended finding was erroneous. 

5. It is not error for the trial court, at fhe time it heard and determined a 
motion for a new trial, on discovery that it had Inadvertently and through 
obvious mistake made an error in favor of plaintiff in a conclusion of law, 
to amend the same with plaintiff's consent. 

0. It was not error for the court to permit an amendment to the complaint, 
after denial of a motion for nonsuit on plaintiff^ evidence and before 
Judgment, where no hardship or surprise to defendant was shown, and 
where no change of the issue resulted. 

Appeal from District Court, Lewis and Clarke County; S. H. 
Mclntire, Judge, 



28 Mont] Merrill v. Miller. 135 

Action by Frank Merrill against Louis E. Miller. From a 
judgment for plaintiff, and an order denying a new trial, de- 
fendant appeals. Modified. 

Messrs. Clayherg & Qunn, for Appellant. 

In view of the allegations of the complaint, the (.pening state- 
ment of the attorney for the plaintiff to the jury, and the evi- 
dence introduced, the proposition that the plaintiff and defend- 
ant were joint inventors cannot be disputed. (Ecaubert v. Ap- 
pleton, 67 Fed. 917-922 ; Seymour v. Osborne, 11 Wall. 552 ; 
Lamson v. Martin, 35 N. E. 78 ; WasKbum v. Gould, 3 Story, 
122; Cah^ofb v. Ring, 1 Cliff. 612.) 

As the defendant and the plaintiff are joint inventors, and it 
is alleged andptroven that the defendant has made an applica- 
tion for a patent in his own name, any patent issued on such 
apphcation would be absolutely void. {Slerrvmer s Appeal, 98 
Am. Dec. 248; Kennedy v. Hazelton, 128 TJ. S. 667; Walker 
on Patents (3d Ed.), Sec 50; IT. S. Rev. Statutes, Sec 4892.) 

As the patent to be issued on such application ^vill be void 
under the showing made by the plaintiff, the court ^dll not de^ 
clare the defendant a trustee for the plaintiff of an interest in 
such ]>atent, or direct the defendant to convey such interest. 
(Kennedy v. Hazelto?!, 128 U. S. 667; Slemmers Appeal, 98 
Am. Dec 248.) 

As the complaint was based upon the theory that the plaintiff 
and defendant \viere joint inventors, it was necessary for the 
court, in order to grant the relief demanded, to determine the 
question of whether or not the pjaintiff and the defendant were 
joint inventors. Under such circumstances, the court had no 
jurisdiction of the case, as the case was one arising under the 
patent laws of the United States over which the circuit courts 
of the United States are given exclusive jurisdiction. {Slera- 
mer's Appeal, 98 Am. Dec. 248; U. S. Rev. Statules, Sec 711.) 

The finding that the plaintiff is entitled to an accounting of 
the profits made by the defendant out of the machine and in- 



136 Mebbill v. Milubr. [Mar. T.'OS 

veation, and to a judgment for an interest theorein is unauthor- 
ized. It is admitted that the defendant was the owner of an 
interest in the machine, invention, and patent which may be 
issued therefor. Under these circumstances he cannot be called 
upon to account (DewUt v. Elrndra Mfg, Co., 66 ^N". Y. 459 ; 
Yose V. Singer, 4 Allen, 226.) 

Where there is an error in a finding of fact or conclusion of 
law it can only be corrected after judgment by granting a new 
trial. {Hawxhurst v. Rathgeb (Cal.), 51 Pac. 846; Los Alt'- 
geles Co. v. Lankershiin (Oal.), 35 Pac. 153; Wunderlin v. 
Cadogan, 75 Cal. 617 ; Bradnf v. Burke, 90 Gal. 1 ; Srruth v. 
Taylor, 82 Cal. 533; Pico v. SepuLveda, 66 Cal. 336; Bate v. 
Miller, 63 Cal. 233 ; Condee v. Ba/rton, 62 Cal. 1.) 

The court erred in permitting the plaintiff to amend the com- 
plaint. (Newell V. Meyendorff, 9 Mont 254 ; 1 Ency. of PI. & 
Pr. Sec 548, and cases cited.) 

Mr. R. R. Purcell, and Mr, T. J. Walsh, for Eespondent 

MR. JUSTICE MILBUKN delivered the opinion of the 
court 

This is an appeal from the judgment, and from an order de- 
nying defendant's motion for a new trial. The complaint, be- 
fore amendment, alleged that the plaintiff and the defendant 
on the 1st day of October, 1897, "agreed that they would assist 
each, other in the develo|pfment of an. idea" for the construction 
of a machine to thaw frozen placer ground, and that^ no such 
niacliino having Ix^n invent/cd theretofore, they would apply 
for, and procure to be issued to them, letters patent from the 
United States for the invention, and that they should each own 
an undivided one-half interest in the machine and the patent ; 
that, in accordance with the agreement, they forthwith pro- 
ceeded to "develop the said idea" and construct a working model, 
and in so doing the plaintiff rendered valuable assistance, and 
procured parties to advance money to aid them ; that about the 
20th day of January, 1898, the model having been completed 



28 Mont] Meseill v. Mxlleel 137 

by the joint efforts of the partiea hereto, the defendant made 
application to the gofvemment for a patent ; that hia application 
for aiich patent was pending at the time of the commencement 
of the suit; that the invention was very valuable and new, and 
the principle involved novel ; that the capacity of the machine 
and its usefulness hadi never been determined, and that it had 
no determined value ; that it was diflScult, if not quite impossi- 
ble, to determine the actual value thereof; that the plaintiff 
procured certain parties to advance sums of money for the pur- 
poses aforesaid, and, the patent having been aprpjied for, the par- 
ties being desirous of raising additional funds to pay those there- 
tofore advanced and to take the miaohine to the Klondike coun- 
try, the plaintiff, acting under his original agreement with the 
defendajit, negotiated the sale of an undivided one-fourth in- 
terest in the invention and machine to one William Tamkin-, 
who paid to the defendant $500 for such interest ; that it was 
agreed between the said Tamkin and the plaintiff that with part 
of the said $500 a boiler should be purchased- for the purpose 
of operating the machine, and that Tamkin should, if the mfl- 
ehine proved a suooess, advanoe, if necessary, $50,000 for the 
purpose of building similar machinery and operating the same; 
that the parties agreed u(pon the p^ayment of the said $500 that 
they should both go to the Klondike country and operate the 
machine jointly, and that the plaintiff and the defendant should 
use the balance of that sum for the purpose of taking themselves 
and the machinery to said country; that the def^^ndant con- 
verted the $500 to his own use, and, having taken l^he machinery 
to the city of Seattle, was at the time of the commencement of 
the suit about to take the same to the Klondike country; and 
that the defendant had refused, and always refused, to assign 
and transfer to the plaintiff any interest in the machine, inven- 
tion, or patent which is to be issued, and denied that the plain- 
tiff had any right or intere9t in the invention or machine. Plain- 
tiff further averred that the defendant threatened to sell and 
dispose of the entire remaining three-fourths interest in the 
saidi machine, invention, and patent to be issued thereon. The 



138 Merrill v. Miller. [Mar. T.'OS 

defendant answered before amendment of the complaint, and 
denied all the material allegations of the complaint, except that 
he admitted the applicatioD for the patent, and that the inven- 
tion was newi and the principle novel, and that he had received 
the sum of $500, and used the same for his own benefit, but 
denied any wrongful conversion thereof. He further admitted 
that he refused to convey to the plaintiff any interest in the in- 
vention, machine, o-r patent, and declared that plaintiff never 
had any right, title, or interest in the machine, invention, or 
patent ; denied that he was then threatening to sell the property, 
or any of it, but said that he had already done so before the 
commencement of the action. 

Evidence having l^en introduced in support, of the complaint, 
the defendant moved the court for an order of nonsuit, whidi 
was denied. The defendant excepted to this ruling, and stood 
upon his motion for a nonsuit ; stating to the court that he did 
not desire to introduce any testimony, and consenting that the 
jury might be discharged. The plaintiff also consenting, the 
cause was tried by the court without a jury. Thereafter, but 
before the court made any findings or conclusions in the prem- 
ises, the plaintiff moved to amend his comjpjaint by inserting 
after the phrase, "development of an idea," the sentence, "which 
had been conceived by the defendant, who was n machinist;" 
and by modifying the sentence, "they would apply for and pro- 
cure to be issued to them letters patent," so that it would read, 
"they would procure to be issued letters patent ;" and by insert- 
ing after the word "defendant," in a certain paragraph, the 
sentence, "who was the sole inventor of the same," referring to 
the "model machine" alleged by plaintiff to have been "com- 
pleted and constructed by the joint and united tfiorts of the 
parties hereto." These amendments were made by leave of 
court; the defendant duly excepting, and saving an exception 
to the order of the court granting such leave. The record does 
not show the ground of objection. Plaintiff prayed judgment 
that the defendant be enjoined, from disix)sing of any interest 
in the machine, invention, or patent belonging to plaintiff ; that 



28 Mont] Merrill v. Miller. 189 

the court decree that the defendant held an imdivided three- 
eighths interest in the niiachine and inveiatioin in trust for the 
plaintiff; that the plaintiff had such an interest in the machine, 
invention, and any patent which may be issued; that the de- 
fendant be required to execute a proper conveyance; that de- 
fendant be required to account to the plaintiff for all sums re- 
ceived from Tamkin ; and that the plaintiff have judgment for 
such an amount of the moneys so received as might be just 

No amendment to the answer was made or suggested. After 
the amendments to the complaint were made, the oonirt made 
findings of fact and conclusions of law, condensed by us as fol- 
lows: That on or about the 1st of October, 1897, the parties 
agreed that they would assist each other in the development of 
an idea for the construction of said machine ; that, the machine 
bemg constructed, they would procure letters patent to be issued, 
and that each should own an undivided one-half interest in the 
machine, invention and patent ; that the said idea was conceived 
by the defendant, and, the agreement having been entered into^ 
the parties proceeded to construct the model expressing the idea 
conceived by the defendant ; that the defendant was a machinist, 
and the plaintiff was not, but that he aided the plaintiff (de- 
fendant) in the construction of said nuachine and in putting it 
into operation, and procured parties to advance money so that 
the work could be carried on, and in all respecits carried out his 
agreement with the defendant; that "the defendant, being the 
sole inventor of the said machine, has made application to the 
government of the United States for a patent for the same, and 
that his application for patent was pending at the time of the 
commencement of this action ;" that the defendant procured the 
sale of a one-fourth interest to one William Tamkin for the sum 
of $600, which was paid, to the defendant, it being agreed be- 
tween the parties that "the said sum of $500 should be used in 
constructing a boiler to operate the said machine, and the re- 
mainder used to transport the same and the said machine and 
the parties hereto to the Klondike country, where they should 
operate the said machine;" that the defendant converted the 



140 Merrill v. Miller. [Mar. T/03 

said $500 to his own use, and took the machine to Seattle, where 
he asserts he disposed of all or part of his interest in the same, 
and, being about to take the same to the Klondike conntry, and 
having made other arrangements, he returned to Tamkin the 
money obtained from him, and took from him! a reconveyianee 
of the interest formerly transferred to Tamkin. The court fur- 
ther found that the defendant denies that the plaintiff has any 
interest in the machine, invention, or patent ; that the averments 
made by the defendant in his affirmative defense are untrue; 
that the plaintiff is the owner of an undivided one-half interest 
in the machine, and that the defendant holds any patent which 
may have been issued, and will hold any patent which may be 
issued, in trust for the plaintiff and himself, "each in equal 
parts;" that the plaintiff is entitled to a conveyance from the 
defendant for an undivided one-half interest in the invention, 
and in any patent which has or may be issued ; that the plaintiff 
is entitled to an accounting from the defendant for all profits 
which may have been made out of said invention, and to a jud^ 
ment for one-half of the same. Judgment was entered accord- 
ingly. A motion for new trial was duly made, and, ujpon a 
hearing thereof, was denied. At the time when the motion for 
a new trial was denied, the court, having discovered an error, 
apparently inadvertently made, in its findings and in the judg- 
ment, made the following order : "In this cause, the motion for 
new trial herein having been heretofore argued before, submit- 
ted to, and by court taken under advisement, court this day 
ordered that unless the plaintiff agree to the modification of the 
judgment as indicated in the opinion filed, motion for new trial 
would be granted. Whereupon counsel for plaintiff agreed that 
the judgment might be amended accordingly." The court had 
found that a one-fourth interest had been sold to one Tamkin 
by the parties to this suit, and afterwards bought from Tamkin 
by the defendant; and therefore the court, on refiection, con- 
cluded that it should have found that the plaintiff owned' only a 
three^ighths, and not a one-half, interest in the invention, ma- 



28 Mont] Mebkill v. Milleb. 141 

chine and patent, and was only entitled to three-eighths of all 
profits, and judgment for one-half of the said $500. 

The defendant declares in his brief that the court erred : (1) 
In denying defendant's motion for a new trial, for the reasons 
(a) the court erred in overruling the motion for nonsuit; (b) 
the court erred in finding that the defendant was the sole in- 
TOitor; (g) the court erred in. finding that the plaintiff is enti- 
tled to an accounting of profits made by the defendant out of 
the machine and invention, and to a judgment for a one-half 
interest therein ; (d) the court erred in finding that the plaintiff 
is entitled to a conveyance of an undivided one-half interest in 
the machine, invention, and patent. (2) The court erred in 
making amended conclusions of law. And (3) the court erred 
in permitting the complaint to be amended. 

As to assigned error la, we do not find that the court erred 
in denying the motion for nonsuit In the brief, counsel base 
their assignment of error as to the denial of said motion upon 
several grounds: (1) That the plaintiff and defendant were 
alleged by plaintiff, and by him proven, to be joint inventors, 
and that therefore the patent, if issued to their client, would be 
void, he having applied in his own name for the issuance there- 
of; (2) that as the patent to be issued under such application 
would be, as defendant says, void, the court could not declare 
the defendant a trustee for the plaintiff of any interest therein ; 
(3) that it was necessary for the court to determine whether or 
not the plaintiff and defendant were joint inventors, and that 
this question can only be determined in the United States courts, 
in that it would be a question arising under the patent laws of 
the United States; (4) that "he who seeks equity must do 
equity,'' and that plaintiff does not offer to pay his share of the 
expenses of procuring a patent 

The first and second of these points are sufficiently discussed 
infra. 

We do not consider the point as to the jurisdiction of the 
court well taken, No question arises here under the United 
States patent laws. The sole question is whether or not defend- 



142 Merkill v. Miller. [Mar. T.'03 

ant sold an interest in the invention to plaintiff. If he did, 
such contract of sale would be valid between the parties without 
any written evidence thereof. One of the purposes of this suit 
is to get from the defendant a written conveyance of the alleged 
interest of the plaintiff. It ia of no concern to the defendant 
whether the plaintiff records such conveyance in the proper 
federal office, or not, after he obtains it There is no question 
of infringement of the patent or of any of the rights of the 
plaintiff by any one except by the defendant The state court 
in this case is not called upon to enforce any of the patent-right 
laws. 

As to the fourth point under this head, we need only say that 
under all the circumstances of the case, as pleaded, it does not 
seem to have been necessary for the plaintiff to have alleged 
an offer to pay a pro}>cii'tionate part of the expense of applying 
for a patent in the name of the defendant This point does not 
appear among the grounds of the motion for nonsuit as made 
to the court, and is merely stated, and not argued, in the brief. 

Appellant complains and says that "the court erred in find- 
ing that the defendant was the sole inventor." (lb, supra.) 
Without commenting on the rather anomalous position taken l^ 
the defendant in complaining of a finding that he was the sole 
inventor of a machine for which he alone, and in his own name, 
is applying for a patent, without any assignment from any one, 
we take up the question involved. Appellant says in his brief: 
"In view of the allegaitions of the complaint, the opening sitate- 
ment of the attorney for the plaintiff to the jury, and the evi- 
dence introduced, the propos-ition that the plaintiff and defend- 
ant were joint inventors cannot be disputed." In another part 
of his brief it is said: "In view! of all the evidence, the plain- 
tiff and defendant were joint inventora There is no evidence 
to the contrary." The complaint, as amended, alleges that the 
defendant was the sole inventor, and thia is not denied by the 
defendant in hia pleading, nor was any attempt made to amend 
the answer by denying it. It is hardly probable that a person 
who has applied for a patent in his own name, without holding 



28 Mont] Mebrili. v. Miller. 143 

any aseignmont froim any one else, would care to swear in a 
pleading that he was not the sole inventor. We do not find any- 
thing in the evidence of the pilaintiff or any of his witnesses 
showing or tending to show that he suggested any improvement, 
or in any wise advanced any ideas which found expression in the 
machine, 6r were included in the claims of the defendant in 
his application for patents It is true that the plaintiff, in his 
testimony, states that he assisted the defendant in developing 
the idea, which was apparently that of the defendant The dis- 
cussion of this point, of course, involves a consideration of al- 
leged error !N"o. 3, which will be considered infra. 

As to specification Ic, supra, we are of the opinion that the 
oonrt erred in finding that the plaintiff is entitled to an ae- 
ODunting of profits, and to a judgment for any interest therein. 
We note, of course, that the assignment refers only to the one- 
half interest mentioned in the judgment and findings before 
the same were amended ; but, as to this point, it may be con- 
sideredi as governing the whole question as to profits. It need 
only be said that we do not find any allegation in the comjplaint 
that the parties were partners, and, further, there is nothing 
in the complaint or in the evidenoe to show that there were any 
profits. On the other hand, the complaint implies that there 
were none. We do not think that there is sufficient stated in 
the complaint to warrant any decree ordering an accounting for 
profits. 

The alleged error Id, to-wit, that the court erred in finding 
that the plaintiff was entitled to a conveyance of an undivided 
one-half interest in the machine^ invention, and patent, need 
not be considered, for the reason that the court amended its find- 
ings, and found that the plaintiff was entitled to a conveyance 
of a three-eighths interest, as alleged im the amended complaint 
It is not assigned that the court erred in finding any interest 
other than one-half, except soi far as the second assignmielnt of 
error, to-wit, that the court erred in making amended conclu- 
sions of law, covers the point 

Did the court err in nmking amended conclusions of law, as 



144 Merrill, v. Milleb. [Mar. T/03 

claimed in assignment No. 2 ? We think not It appears from 
the record that, at the time the oourti heard and determined the 
motion for a new trial, it discovered that it liad inadvertently, 
and through obvious mistake, found that the plaintiff was enti- 
tled to a one-half interest, instead of a three-eighths interest, 
in the {property referred to. It had overlooked the fact that a 
two-eighths interest had been sold by the parties to Tamkin, 
leaving only a three-eighths interest in the plaintiff. The court 
immediately, at the time above referred to, declared' its inten- 
tion to grant a new trial unless the plaintiff would consent to 
the amendment, and, the plaintiff so consenting, the motion for 
a new trial was denied, and the amendment made to show the 
facta We dci not see any error in the action of 
the court. Appellant has not cited any autliority sup- 
]>orting his contention that the court erred in this 
behalf. In Wunderlin v. Cadogan, 75 Cal. 617, 17 
Pac 713 (at i>agt^ 618, 75 Cal., and pege 714, 17 Pac), 
cited by appellant, the court, it is true, in passing upon the case 
before it, said: "The remedy for 'erroneous findings of fact is 
by motion for new trial. And the relief to be given upon such 
motion is the awarding of a new trial, to be had in regular 
course. It ie not proper for the court, ujpCHn a motion of that 
kind, to immediately render a contrary decision. These rules 
rest upon the theory that the modes in which a decision may be 
reviewed are prescribed by statute, and that the court has no 
power to substitute other modes in their place*" But the court, 
proceeding, remarked further: "The rules, however, do not 
prevent the court from correcting mere misprisions and orders 
improvidently and unintentionally entered." In Hcuwxhvrst 
V. Rath^eb, 119 Oal. 531, 51 Pac. 846, 63 Am. St Eep. 142, 
also citefl by appellant, the supreme court, referring to the fact 
that the lower court had found that the defendant had not exe- 
cuted a certain power of attorney, and after judgment had found 
to the contrary, held that "after findings have been 'filed, and 
judgment entered thereon, there is but one method by which 
those findings can be competently changed or modified, except 



28 Mont] Merrill v. Miller. 145 

fpierhape, in respect of a mere oleirical error or misprision." 
Misprision is the aet of misprising; misapprehension; miscon- 
ception ; mistake. The complaint in this case statee^ in effect, 
that the plaintiff was legal owner with the defendant in the 
properly, and, as we have stated above, the two parties sold and 
conveyed a two-eighths interest to one Tamkin. The evidence 
tends to show this sale to Tamkin, which is admitted in the 
answer, although, of course, the defendant denies that plaintiff 
had any title in the property, or that plaintiff procured such 
sale to be made. The error of the court in making the finding 
that the plaintiff was entitled' to a one-half interest in the pro]> 
erty certainly was made through a misapprehension and mis- 
take, obvious on the face of the record then before the court, 
and known to all the parties present at the time on the hearing 
of the motion for a new trial We are not aware of any holding 
by this court which would require the lower court to refuse to 
make the correction of so apparent an error, and to put the par- 
ties to the trouble and expense of a new trial, instead of cor- 
recting its conclusions of law, as was done. Further, it is well 
to note the fact that in the amended findings the court declared 
that the plaintiff was entitled to a less interest in the property 
than it had found to be his in the finding before it was amended. 
Assigned error No. 3 is that the court erred in permitting 
the complaint to be amended. We have stated supra what 
amendments were made. Amendments to pleadings should al- 
wrays be allowed, in the discretion of the court and in the interest 
of justice, upon such terms as may be just, and this may be done 
even after verdict and judgment, to make the pleadings corres- 
pond with the proof. {Montana Ore Purchasing Co, v. Boston 
& Montana Con. C. & S. Mining Co., 27 Mont at page 316, 
70 Pac at page 1123, and cases cited.) In this case the amend- 
ments appear to have been made before judgment, after the 
motion for a nonsuit had been denied. It does not appear that 
any hardship was worked to the defendant, or that he was in 
any wise surprised by the action of the court in allowing the 
amendments. The one question in the case is whether the de- 
voi. xxvm-io 



146 Merrill v. Miller. [Mar. T/03 

fendant was at the tinie of the oommencememt af the action 
trustee for the plaintifif for a three-eighths interest in the in- 
vention and patent rights, and one-half interest in the said $500, 
under an agreement between the parties. The amendment of 
which the defendant seriously complains was that by which the 
averment of the original complaint^ to the effect that the parties 
agreed "that they would apply for and proeuxe to be issued to 
them letters patent^'' was modified to read "that they would 
apply for and procure to be issued letters patent" The alleged 
agreement as to the ownership was not changed, in our opinion, 
by the alteration made* The alleged object was to get a patent 
for the use of the parties, and, if counsel had mistakenly rput 
into the complaint an averment that "they" would apply for 
and procure to be issued to them letters patent, whereas the un- 
learned plaintiff had understood that the defendant was to pro- 
cure the patent in his own name for the use of both, he assum- 
ing that the patent thus was to be issued to them — it not being 
unusual for persons engaged in business together to have all or 
part of the property of the concern in the name of one of the 
parties — ^the amendment would not be improper. Under the 
evidence and the [pleadings, we do not see any material or radical 
change, working injury to the defendant, in thi? amendment, 
and we do not see that the issue was changed. 

Our attention is not called to the fact that the court decreed 
that the plaintiff should recover $250 of the defendant — said 
sum being one-half of the $500, which, according to the alleged 
agreement, was to be used for a certain purpose by both parties 
. — ^whereas the court seems to have considered the sum' of $500 
to be a trust fund held by defendant for himself and plaintiff. 
!Nlo error of the court in this behalf having been assigned or 
treated byi defendant in his brief, we do not express any opinion 
as to the decree so far as it refers to the said sum of $250. 

The decree of the court below is modified in accordance with 
the views expressed in this opinion as to the matter of profits, 
and, as thus modified, is affirmed. 

Modified and affirmed. 



28 Mont] Taney v. Vollenweider, 147 

TANEY, Eespondent, v. VOLLENWEIDEE, Appellant. 

(No. 1,6«1.) 
(Submitted May l, 190B. Decided May 4, 1908.) 

Garnishment — Payment Into Court by Oarrdshee — Effect of 
Judgment — Jvstice of the Peace — Change of Venue — Statu- 
tory Provision — Costs. 

1. Where a garnishee paid into court, in answer to garnishment served upon 
her, the full amount of her indebtedness to the defendant in the proceed- 
ings, the Judgment recovered therein against him operated to fully dis- 
charge the garnishee's indebtedness. 

2. Where defendant, on being granted a change of venue, refused to pay the 
accrued costs as provided by Code of Civil Procedure, Section 1484, it was 
the duty of the Justice of the peace to proceed with the trial. 

Appeal from District Court, Deer Lodge County; Welling 
Napton, Judge. 

Action by P. S. Taney against Mary VoUenweider. From a 
judgment for plaintiff, and from an order denying a new trial, 
defendant appeals. Reversed. 

Messrs. Duffy & Casey, for Apfpellant 

Under Section 900, Code of Civil. Procedure, it was made the 
duty of this appellant to pay the mon^ into the justice's court 
as soon as she was served with garnishee process; it was also, 
under Section 1682, Code of Civil Procedure, the duty of the 
justice of the peace to receive the money. Ihe garnishee and 
appellant in this action should be .pjrotected from double lia- 
bility. (I>rake on Attachment, 6th Ed., Sees. 693, 699, 701, 
706 and 710 ; Maerden v. Wheeloch, 1 Mont 52 ; DoU v. Bout- 
well, 1 Allen, 286; Barrow v. West, 2» Pick. 270; Foster v. 
Jones, 15 Mass. 185; Holmes v, Bemsen, 4 Johns. Oh. 46; 
B. & 0. By. Co. V. May, 26 Ohio St 347 ; Johnson v. Care>y, 
2 OtaL 34; Sessions v. Stephens, 46 Am. Dec. 889.) 



148 Taney v, Vollenweidek. [Mar. T.'03 

Messrs. Walsh & James, for Eespondent 

The justice of the peace acted without jurisdiction in entering 
judgment, and the same is absolutely void. (State ex rel. Ken- 
yon V. Laurandeau, 53 Pac 536.) 

MR. JUSTIOB HOLLOWAY delivered the opinion of the 
court 

This action was commenced in the district court by the plain- 
tiff to recover the sum of $45 and to establish and foredoee a 
mechanic's, lien upon certain property in Anaconda, Montana. 
The oom(p|laint is in the usual fomu The denials in the answer 
raise no material issues. A^ an affirmative defense the defend- 
ant alleges that after she became indebted to this plaintiff, and 
before the oomm.encement of this action, she was served with a 
writ of attachment and notice of garnishment in an action in 
the justice of the peace court of 0. H. Williams, a justice of 
the peace of Anaconda township, wherein Frank Hall was 
plaintiff and this plaintiff, P. S. Taney, was defendant; that 
a judgment was recovered by Hall against Taney for $45.50 ; 
that an execution was issued thereon, a copy of which, with no- 
tice of garnishment^ was also served on this defendant; and 
that by reason of these facts, and the demand of the constable, 
she p«iid into that court the sum of $45, being the whole of her 
indebtedness to this plainjtiff. A reply was filed, which as- 
sumes to put in issue the allegations of this affirmative defense. 
XTpon the trial the defendant admitted that the plaintiff had 
performed the work for her as alleged in his complaint The 
plaintiff then offered in evidence the record of the county clerk's 
office showing the filing of his lien, and then rested. The de- 
fendant offered in evidence the records of the justice of the 
peace court showing the proceedings had in the case of HaU 
against Taney from the commencement of the action to the 
entry of judgment, all substantially as alleged in her answer. 
She also introduced in evidence the receipt for the money paid 
into court by her. "No rebuttal testimony was offered whatever, 



28 Mont] Tanby v. Voi^bnwbideb. 149 

and upon this record the district couart found in favor of the 
plaintifF^ and entered a money judgment for $45 and for costs, 
amounting to $6, and for $50 attorney's fees, No finding what- 
ever was made with reference to the lien claimed by the plain- 
tiff, and no provision is made in the judgment for the fore- 
dosure of such lien. From this judgment, and an order deny- 
ing defendant's motion for a new trial, she appeals. 

If, at the condusion of plaintiff's testimony, no further evi- 
dence had been offered, a prima fade case would have been made 
out in plaintiff's favor for the amount of his daim- However, 
the defendant offered in evidence record proof of the fact that 
she had paid into court, in answer to garnishment served upon 
her, $45, the full amount of her indebtedness to plaintiff; that 
such notice of garnishment had been served upon her before the 
commencement of this (piresent action ; and that a judgment was 
recovered in the justice of the peace court against this plaintiff. 
"So attempt was made to dispute these facts, and upon this show- 
ing we deem them proved. This defendant having paid into 
the justice of the peace court the full amount of her indebted- 
ness to this plaintiff upon the garnishment served upon her, and 
a judgment having been obtained against this plaintiff in that 
court, that judgment operated to fully discharge the indebted- 
ness from this defendant to the plaintiff herein, and she was, 
therefore, entitled to a judgment in her favor for costs. We 
do not understand how the district court can enter up a judg- 
ment, including attorney's fees, upon an open account for work 
and labor done and for material furnished, in the absence of 
any finding that (plaintiff is entitled to a lien (assuming that, 
in the event a lien was established, an attorney's fee might be 
recovered as a part of the costs). It appears from the record 
of the justice of the peace court that after defendant, Taney, ap- 
peared in that action, he moved for a change of venue, which 
i^as granted upbn the condition that he pay. the accrued costs, 
as provided by Section 1484 of the Code of Oivil Procedure. 
This he refused to do, and the justice proceeded to try the cause, 
and entered judgment against him. It is now urged here that 



150 Melton v. Mabtin, Adm'e. [Mar. T.'OS 

he did so mthout jurisdiction, and that the judgnient was, there- 
fore, void. This was doubtless the theory upon which the dia- 
triot court proceeded in this cause in finding for the plaintiff. 
It would be an anomalous position, indeed, for a party to a»- 
sume to say that he moved for a change of venue^ and refused 
to pay the fees required as a condition precedent to the justiotfs 
transmitting the (papers to another court, and then insist that 
the court of primary jurisdiction could not act further in the 
premises. We do not understand that a party by his wrongful 
act can secure such an advantageous position. Upon the refusal 
of Taney to pay the accrued costs as required by law, it was the 
duty of the justice of the peace to proceed with the trial. How»- 
ever, we cannot say that the testimony' introduced upon the trial 
of this cause was all that might be produced upon a new trial 
thereof. It is therefore ordered that the judgment and order 
appealed from be reversed, with directions to the district court 
to grant the defendant herein a new trial. 

Reversed and remanded. 



MELTON, Respondent, v. MAHTIN", Administratob, 
Appellant. 

(Ko. 1,551.) 
(Submitted April 28, 1908. Decided May 4, 1903.) 

Executors and Admimstrators — Claims Against Estate — Time 
for Presentment. 

Under the direct provisions of Code of CIyII Procedure, Section 2603, all claimB 
against the estate of a decedent must be presented within the time limited 
in the administrtor's notice to creditors, or they are barred foreTer, 
except when it appears by the affidavit of the claimant, to the satisfaction 
of the court, that he had no ndtice, by reas~on of being out of the state. 



28 Mont] Melton v. Martin, Adm'k. 151 

Appeal frond District Court, Gallatin County; F. K. Arm- 
strong. Judge. 

Action by John A. Melton against J. P. Martin, adminis- 
trator of James Dartis. From a judgment for plaintiff, defend- 
ant appeals. Eeversed. 

Messrs. Pierce & Pierce, for Appellant. 

Mr, John A. Luce, for Respondent 

MR. COMMISSIONER CLAYBERG prepared tJie opinion 
for the court 

This ig an appeal from a judgm^ent rendered against appel- 
lantj as administrator of the estate of James Dartics, deceased, 
upon a claim of respondent against said estate for moneys al- 
lied to have been paid to Dartis in his lifetime under a mis- 
take. It appears from the complaint that (plaintiff presented 
his daim to the defendant administrator March 8, 1899. The 
answer alleges that the first publication of notice to creditors 
was on February 9, 1898 ; that the value of the estate exceeded 
$10,000; and that plaintiff did not exhibit his claim "within 
ten months after the date of the first publication of said notice, 
nor was it made to appear at any time or at all, by the affidavit 
of claimant or at all, to the satisfaction of this court or the 
judge thereof, that the ]>laintiff had no notice of the time al- 
lowed hy said notice for the presentation of claims against said 
estate by reason of being out of the state or otherwise." This 
allegation w^as not denied by the replication, .*\nd therefore 
stands admitted. The case was tried upon an agreed statement 
of facts and "facts admitted by the pleadings." The ten months 
allowed by law after the first publication of notice to creditors 
had elapsed long before the claim was presented. Under Secr 
tion 2603, Code of Oivil Procedure, all claims must be prer 
sented within the time limited in the notice or they are barrtd 
forever, excefpt in cases when "it is made to appear by the affi- 



152 Melton v. Maktin, Adm'k. [Mar. T.'03 

davit of the claimant to the satisfaction of the court or judge 
that the claimant had no notice as provided in this Title, by 
reason of being out of the state." It is admitted, sm above stated, 
that no proof was adduced which would bring this claim within 
the above recited exception. Plaintiff, however, attempted to 
excuse noncompliance with this statute on the ground that the 
money had been paid by mistalce, and that he did not discover 
this mistake until after the ten months had expired. We are not 
satisfied from the pleadings and statement of facts that a mis- 
take ever existed, and, if it did, that plaintiff should not have 
discovered its existence within the time limited in the notice 
by the exercise of reasonable diligence. 

Counsel for respondent further seek to justify their action 
on the ground that deceased held the money paid as a trust fund, 
and therefore it was not necessary to present the claim to the 
estate; but the pleadings are barren of any such suggestion, or 
of the further necessary suggestion that the identical money 
could be traced into the hands of defendant Besides, this is 
not an action in equity to enforce a trust, but a suit at law to 
recover money "had and received,'' and the claim should have 
been presented to the administrator of the estate within ten 
months after the first publication of notice to creditors. 

We are therefore of the opinion that the judgment ap(pealed 
from ghould be reversed and remanded, and the court below 
should be directed to set aside the judgment appealed from, and 
enter judgment for the defendant for costs. 

Pek Curiam. — For the reasons stated in the forgoing opin- 
ion, the judgment appealed from is hereby reversed, and the 
cause remanded to the court below, with directions to set aside 
the judgment appealed from, and to enter judgment for the 
defendant for his costs. 



28 Mont] Dayton v. Ewart. 153 

DAYTON, Respondent, v. EWART, Appelijlnt. 

(No. 1,535.) 
(Submitted April 11, 1903. Decided May 4, 1908.) 

Exemptions — Earnings of Judgment Debtor — Gold Dust from 
Miners Placer Claim. 

Section 1222 (SnbdiTislon 7), Code of Civil Procedure, exempts to a placer 
miner the gold dust taken from his claim by his own labor within thirty 
days next preceding a levy of execution or attachment, when he is a poor 
man whose family resides In the state and depends for support upon his 
personal labor in working his mine, and the debt is not for the common 
necessaries of life. 

Appeal from District Court, Ravalli Covmiy; F. Woody, 
Judge. 

Action by L. H. Dayton against E. Ewart, as constable. 
Judgment for plaintiff, and defendant appeals. Affirmed. 

Mr. C. B. Calkins, for Appellant 

The legislature intended Section 1222 (Subdivision 7) for 
the ipiTotection of those whose labor is all the capital they pos- 
sess; those employed by others by the day, week, month or year, 
and those whose sole profit is what they get for their services. 
A man owning and operating a placer mine has other capital 
besides the labor he individually performs in working his claim ; 
in such case, his mine, water ditch, tools and appliances eonsti- 
tnte his capital whereby he derives his profit in the occupation 
which he follows. If a placer miner can claim exempt the gold 
dust which he washes from his mine for a period of thirty days, 
then one engaged in any occupation could invoke the protection 
of this statute, the farmer, merchant, professional man, banker 
and contractor. (Shelly v. Smith, 59 Iowa, 453 : Heehner v. 
Chave, 5 Pa, St. 115 ; Smith v. BrooTce, 49 Pa, St. 147.) 



154 Dayton v. Ewabt. [Mar. T.'OS 

Mr. S. G. Murray, and Mr. L. J. Knapp, for "Reepondent 

MR. GOMMISSIOlSrEE. CALLAWAY prepared the opinion 
for the court. 

Respondent oommenced this action in the district court of 
Ravalli county, Montana, to recover of appellant the value of 
certain gold dust Appellant joined issue by answer. The par- 
ties then submitted the case to the court upon an agreed state- 
ment of facts. From this statement it appears that respondent 
is, and has been for several years last past, a resident of this 
state, and the head of a family residing in this state ; that he is 
a miner, having the possessory title to a placer claim, which he 
has been working with his own water ditch, flume, pipe, tools, 
and other appliances; that he is a poor man, and that he and 
hia family depend for support upon what he can. get from work- 
ing this placer mine; that on Jime 30, 1899, in an action in 
which the firm of May Bros, were plaintiffs and respondent was 
defendant, the appellant^ who was then a constable of Stevens 
township, in said coimty, by virtue of a writ '>f attachment 
issued in said action, levied upon and took into his custody gold 
dust of the value of $63.20, the properly of respondent^ and 
which had been mined by him within thirty days next preced- 
ing tlie levy of the attachment. On July 5, lvS99, judgment by 
default was entered for the plaintiffs, execution was issued 
thereon, and the gold dust sold thereunder. Said judgment 
was obtained upon a jp-romissory note executed by appellant to 
May Bros, for cash loaned to him. 

Prior to the time of obtaining said judgment, and after the 
gold dust had been levied upon, respondent filed with appellant 
his affidavit, claiming the gold dust as exempt from- attachment 
or execution, as earnings for his personal- services rendered 
within thirty days next preceding the levy of the attachment. 
Upon appellant's refusal to release the same, respondent on 
July 24, 1899, commenced this suit Upon the statement of 
facts submitted, the court entered judgment for respondent, and 
from such judgment this appeal is prosecuted. 



28 Mont] Dayton v. Ewabt. 155 

The question for decision by this court is whether, under the 
facts presented, the respondent can successfully claim the gold 
dust mentioned as exempt from attachment and execution. 

We must look to Section 1222, Code of Civil Procedure!, for 
its solution. Subdivision 7 of thisi section provides that there 
shall be exempt from execution "the earnings of the judgment 
debtor for his personal services rendered at any time within 
thirty days next preceding the levy of execution or attachment, 
when it appears by the debtor's affidavit, or otherwise, that such 
earnings are necessary for the use of his family residing in this 
state, supported in whole or in part by his labor; but where 
debts are incurred by any such person, or his wife or family, 
for the common necessaries of life ; the one-half of sudi earn- 
ings above mentioned, are, nevertheless, subject to execution, 
garnishment or attachment to satisfy debts so incurred. '' 

At first glance it might seem that the word "earnings of the 
judgment debtor for his personal services rendered" contem- 
plate the reward paid to one for services rendered another. A 
technical construction of the statute would compel the adoption 
of sudi a meaning. Such construction would be at variance 
with the spirit of the constitution and laws of the state. Section 
4, Article XIX, of the Oonstitution, (provides that "the legis- 
lative assembly shall enact liberal homestead and exemption 
kws," and this court has held that statutes enacted in pursuance 
of this mandate should be liberally construed. (Ferguson v. 
Speith, 13 Mont. 487, 34 Pac 1020, 40 Am. St. Kep. 459.) 

The courts of the different states have encountered consider- 
able difficulty in construing exemption statutes, but all agree 
that such statutes are remedial, and must be construed with lib- 
erality. One difficulty seems to have been in arriving at the 
true meaning of the words "earnings^" "wages," "salary," and 
the lika The word "earn" means "to gain as a just return or 
reoompense by service, labor, or exertion." "Earnings" is "that 
whidh is earned." (See the Standard, Century, and Webster's 
Dictionaries.) 

In passing upon an exemption statutei, the supreme court of 



156 Dayton v. Ewart. f^ar. T/03 

Massachusetts said: "We are of opinion that the word 
'earnings' was used for the purpose of embracing a larger class 
of credits than would be included in the more oominon term 
Vages.' " (Jeriks v. Dyer, 102 Massw 235.) Tliis interpreta- 
tion has been generally adopted, (See Bouvier's^ Anderson's, 
and Black's Law Dictionaries.) 

Mr. Freeman, in his work on Eixecutions, Section 234, says: 
"Between the terms Vages' and 'salary' there is no material 
difference when they are applied to the subject here under con- 
sideration. The former term is commonly used to denote the 
comipensation of laborers, and the latter that of other persons 
of more permanent employment and more elevated stations. 
The term 'earnings' is more comprehensive than eillier of the 
others. It implies, as do they, that the sum due shall be claimed 
for the personal services of the claimant, and that it shall not 
include, to any substantial extent, recompense for materials fur- 
nished ; but earnings need not result from work done under the 
direction of another, nor from manual labor." 

Nor do the words "personal services rendered" necessarily 
contemplate that the services be rendered another. They may, 
in proper cases, mean the services which one renders to himself. 
The word "service" has different meanings. It may mean "an 
advantage conferred ; that which promotes interest or happiness ; 
benefit" (See Webster's and Standard Dictionaries.) One 
confers an advantage upon himself by striving for his own 
benefit, and looks upon his labor done in his own behalf as that 
which particularly furthers his interest and happiness. The 
word "render" sometimes means to "bestow or provide; fur- 
nish; to give in answer to requirement of duty or demand.** 
(Standard Dictionary.) One provides for himself and family, 
and does so in answer to one of the higjhest requirements of 
duty. 

In reading Section 1222, it appears that a miner has exempt 
from execution "his cabin or dwelling, sluices and pipes, hose, 
windlass, derricks, cars, pumps, tools, implements and appli- 
ances necessary for carrying on any kind of mining operations. 



28 Mont] Dayton v, Ewart. 157 

not exceeding in value the aggregate sum! of one thousand dol- 
lars," and so forth. Now, it may be inquired, can it be that the 
statute exempts all these, and yet does not exempt the reward 
won by their use, when necessary for the sutpport of the miner's 
family residing in this state ? or exempts to him his tools, and 
in the sanue breath deprives him of the fruits of his toil there- 
with, allowing his family to go in want ? Such a construction 
is clearly unreadonable, and demonstrates to us that, had the 
legislature intended to restrict the exemption granted, the word 
"wages" would have been employed, instead of the broader 
word "eamiilgs." 

Again, can it be ttat the legislative assembly desired to re- 
strict the exemption to those only who are the servants of others ? 
We think not. It has been the policy of our government since 
its beginning to foster that independence which follows a reli- 
ance upon one's own resouircea The courts of 'New York, in 
construing a similar exemption statute, have arrived at the same 
conclusion to which we have come. (See McSkimin v. Knowl- 
ton (CJom. PL), 14 N. Y. Supp. 283, and cases cited.) 

Testing the statute under consideration by the rules of con- 
struction provided by Section 4660 of the CSvil Code, we be- 
lieve we correctly declare the legislative intention. 

It must be remembered that in the case at bar it is conceded 
that the respondent is a poor maji, whose family depends for 
support upon his personal services in working his placer mine ; 
that the sum attached is necessary for the use of his family re- 
siding in this state ; that the gold dust was mined by respondent 
within thirty days next preceding the levy of attachment; and 
that the suit brought against him was not upon a debt incurred 
by him for the common necessaries of life. The court below, 
therefore, was correct in entering judgment for I'espondent. 

But, while a liberal construction of the exemption' laws should 
always be encouraged, it will be readily perceived that a too 
liberal construction thereof might lead to many abuses not con- 
templated by the lawmaking power, and we deem it proper to 
say that this case is determined and decided with reference to 



158 Dayton v. Ewakt. [Mar. T.'OS 

the facts presented only. "Eaoh case of this character must 
rest upon its own facts existing at the time in question." (Cush- 
ing V. Quigley, 11 Mont 577, 29 Pac 337.) 

In our opinion, the judgment should be affirmed. 

Per Curiam:. — ^For the reasons stated in the foregoing opin* 
ion, the judgment is affirmed. 

Mr. Justice Milburn: I dissent The part of Section 
1222 (Subsection 7) of the Code of Civil Procedure, under 
which the exemption is claimied, declares as exempt from levy 
"the earnings of the judgment debtor for his personal services 
rendered at any time within thirty days next preceding the levy 
of the execution or attachment^ when it appears * * * 
that such earnings are necessary for the use of his family * 

* * supported in whole or in part by his labor. * * *" 
I cannot understand that this section expresses or implies an 
intention on the part of the legislature to protect income from 
a private and independent business from levy, if such income 
be not for services rendered othera The words "earnings * 

* * for his personal services rendered" do not suggest to me 
any such idea. (Bouvier, Law Diet ; 22 Am, & Eng. Bn<gr. 
Law (Ed. 1893), 106.) If the legislature had intended to add 
to the e(xemptions of a placer miner the gold which he might get 
into his sluice boxes, it would have been very easy for it to say 
so. But it did not The legislature gives to the persons men- 
tioned in the first six subdivisions of Section 1222 certain ex- 
emptions, and then expressly declares that in addition to those 
exemptions the debtor may have also the exemption provided 
in Subsection 7 — ^ihat is to say, that any one of the personfl 
whose particular property is made exempt umder any one of the 
six subdivisions referred to may also render personal services 
to others and have the earnings therefor exempt The case of 
McSkmUn v. Knowlton (Com. PL), 14 K T. Supp. 283, relied 
upon in the commissioner's opinion, supra, is not, in my opin- 
ion, a wellK»nsidered case. I cannot find anything in it whidi 



28 Mont] Harris, Adu'r, v. Boot et al. 159 

supports the proposition^ that plajcer gold, taken out of the 
ground by a miner hy and for himself, is his earnings for per- 
sonal services rendered. The learned justice in that caBe states 
that his first impression was the same which I entertain, but 
he states that upon examination he found that ^^the courts have 
construed the term* 'personal service* to include earnings de- 
rived from a business, where the services are the chief factor 
in it" He seems to have had some difficulty in defining the 
words "personal service.'* So far as I can understand from 
what the justice says of them, the cases cited by him appear to 
have been cases in which services were rendered by the debtor 
tf. others, and, therefore, are not in point as sustaining the con- 
dnsion at which he finally arrived. 



HAKRIS, Administbator^ Appellant^ v. ROOT et al., ,^ ^^^, 
Respondents. '^^_3oi) 



28 159 

3 1 423 | 

(No. 1.925.) 28 ,^ 

3» 474 



(Submitted April 27, 1903. Decided May 11, 1903.) 

Attorneys — CorUingent Fees — Contract — Ahamdonment — 
Compensation — Compromise of Litigation — Receivers — Dis- 
charge — Appeal. 

1. A contract for the professional services of an attorney in contesting a 
will provided that "yonr fee, in case the will is defeated and our clients 
get their shares, shall be one hundred thousand dollars," etc. Afterwards 
a compromise was effected — ^the attorney taking part therein — and the 
contest was dismissed. Held^ that by the terms of the contract the attor- 
ney was only entitled to the stipulated fee in the event the will was actu- 
ally defeated, and in compromising the case the contract was abandoned, 
and recovery by the attorney, if at all, must be on a fftumtttm mervAt. 

2. OtMtiri An attorney, as such, has no authority to compromise a contro- 
versy for his client, — ^a general retainer in a case does not imply such au- 
thority; there must be special authority delegated for that purpose ,or 
a ratification by the client, otherwise the compromise agreement, as well 
as any Judgment entered in pursuance thereof, is void at the option of the 
dient 



160 Harris^ Adm'r^ v. Root et au [Mar. T/03 

S. Where a contract is for a stipulated fee contingent upon the performance 
of specific serrices by an attoniey, and said serrices are not performed, 
the measure of recovery by the attorney Is the value of the services actu- 
ally rendered, and not the amount of the stipulated fee, notwithstanding 
the .rendering of the specific services was prevented by the client, or by 
circumstances over which he had no control. 

4. In an action to recover for professional services rendered by an attorney 
tn contesting a will, the court, prior to the trial, appointed a receiver to 
receipt to the administrator of the decedent's estate for the defendants' 
shares therein, and to preserve them pending a termination of the action. 
Afterwards Judgment went ;for defendants. Eeld, proper to discharge the 
receiver pending an appeal. 

Appeal from District Court, SUver Bow County; E. W. Hcur- 
ney. Judge. 

Action by John S. Harris, as administrator of the estate of 
Robert G. IngersoU, deceased, against Henry, A. Root and 
others. From a judgment for defendants, and from two certain 
orders made after judgment, plaintiff appeala Affirmed. 

Statement of the Oase. 

In this action the plaintiff seeks to recover a judgment against 
the defendants Root and Coram for $95,000, a balance alleged 
to be due for legal services rendered- as attorney to the said de- 
fendants by Robert G. Ingersoll, plaintiff's intestate, with in- 
terest thereon from August 24, 1897. The right of recovery is 
bai>ed upon the following written agreement entered into be- 
tween th« parties: 

"Butte City, Mont, August 17, 1891. 

"R G. Ingersoll, Esq., Blxtte Cily, Montana— Sir: We 
agree that for your services in the contest of Maria OunnningB 
and Henry A. Root against the probate of the alleged will of 
A. J. Davis,^ deceased, rendered and to be rendered, that your 
fee, in case the will is defeated and our clients get their shares, 
shall be one hundred (100,000) thousand dollars, and that your 
expenses and disbursements shall be paid in any event 

"There is to be no personal obligation against J. A. Coram 
iii the. event that the interests represented by Henry A. Root 
are unsuccessful, and in no event is the said J. A Coram obli- 
gated except to pay sudi fee out of the funds secured from lie 



28 Mont] Harris^ Adm^b, v. Root et aju 161 

estate of A. J. Davia, deceased, by Maria Oummings, Lizzie S. 
Ladd, M. Iiouise Dunbar and Mra EUem S. Comae and Henry 

Root 

"Hbnby a. Root. 
"J. A. Coram." 

The claim is made that, while the services were rendered for 
Root and Maria Oummings, it was intended by the parties that 
they should also inure to the benefit of the defendants Eliza- 
beth S. Ladd, Marie Louise Dunbar, and Ellen S. Comue, wbo, 
in case the will should be defeated, would share in the distri- 
bution of the estate. 

It appears from the allegations of the complaint that previ- 
ous to the institution of the contest, and in order to provide 
means to prosecute the contest^ the defendants Oummings, Ladd, 
Dunbar, and Comue assigned to the defendants Root and Wells 
one-third of the interests claimed by them in the estate, in 
trust, to reimburse Root for the outlay necessary to procure 
counsel and to pay other expenses. It is further alleged that 
the defendant Coram acquired by assignment somfi interest in 
these shares, and also in the share of Root, the extent of which 
does not distinctly appear. Wells and the defendants other than 
those named are made parties in order that the amount received 
by Cummings, Ladd, Dunbar, Comuei, and Root, and the bal- 
ance due them upon final distribution, may be ascertained, and 
the judgnaent recovered be declared a lien thereon in the hands 
of Leyson, the administrator with the will annexed, to secure 
the payment of the judgment Andrew J. Davis died in 1890, 
and his estate has since that time been, and is now, in the course 
of administration by the district court of Silver Bow county. 
An account of the proceedings thfimn will be found by refer- 
ence to the opinions of this court, published under the title "In 
re Davis" Estate/' 27 Mont 235, 70 Pac: 721, and 27 Mbnt 
490, 71 Pac 757. The complaint herein sets them out with 
particularity, but they need not be repeated here. The allega- 
ticms necessary to an understanding of this controversy are, in 
substance, the following: That the first contest of the probate 
Vol xxviii-n 



162 Hakris^ Adm'e, v. Boot et al. fMar. T/03 

of the will was instituted by Boot and Cumnaings in the year 
1890; that these contestants were aided and assisted by iheir 
eodef endants Ladd^ Dunbar and Comue ; that, in order to >prose- 
cute the contest succeeef uUy, the services of Robert G. Inger- 
soll, an attorney at law of Dobbe Ferry, N. Y., were secured 
by the said Coram and Boot; that the contest was tried in 1891, 
but without result, because the jury disagreed; that pending 
the trial the contract was entered into by Boot and Coram, the 
latter becoming a party to it, because he had theretofore become 
entitled by assignment to certain interests in the shares of the 
contestants and their associates; that thereafter, on April 28, 
1893, while the contest was still pending and undetermined, the 
contestants^ with their associates, compromised the controversy 
with the proponent of the will by an agreement under the terms 
of which the contest was to be dismissed and the will admitted 
to probate ; that the compromise was carried into effect by pro- 
curing a decree to be entered by the court in March, 1895, un- 
der the provisions of which the contest was dismissed, the will 
was admitted to probate, and Boot^ Cummings, Ladd, Dunbar, 
and Oomue were declared entitled to certain distributive shares 
in the estate ; that theraf ter other contests were instituted by- 
other next of kin of the deceased, which were settled by a com- 
promise similar to that of April 28, 1893, to which all persons 
claiming an interest in the estate were parties, and in pursu- 
ance of which a decree was entered by the court on August 24, 
1897, dismissing the contested and finally settling and deter- 
mining all controversies between the* (proponent and the rival 
claimants, and declaring the shares to which each was entitled ; 
that the said decree became the basis of the distribution of the 
estate, and that the contestants Boot and Oummings became 
thereunder entitled to greater interests than they would have 
received had the wiU been finally defeated ; "that by virtue and 
as a result of the prosecution of said objections and contests of 
the validity of said writing so propounded for admission to pro- 
bate as the last wiU and testament of said Andrew J. Davis, 
deceased,'' the said oompromise contract and decree were pro- 



28 Mont] Haebis, Adm'b, v. Root et al. 163 

cured, and became effectual to ^eieai tke will, and to secure to 
the contestants and their aflsbciates all their rights as next of 
kin of A. J. Davis, deceased ; that the plaintiff's intestate, by 
procuring the contract and decree, fully discharged his obliga- 
tions under his contract, and kept and performed all the condi- 
tions thereof to be by him kept and performed ; that thereby 
there became due and he was entitled to have paid to him the 
full sum of $100,000 and his expenses as stipulated therein, 
but that no part thereof has been paid, excepit the sum of $5,- 
000, wherefore judgment is demanded for that amount, with 
interest from the date of the decree. 

Upon the issues made by the answers of the defendants, the 
cause came on for trial in the district court, sitting with a jury, 
on December 11, 1902. EVidence was offered by plaintiff in 
rapport of his allegations. This was objected to by the defend- 
ants Coram and Eoot, and the objection sustained by the court, 
on the ground that the complaint did not state a cause of action 
against them. The plaintiff having failed to amend, the jury 
was dischai^ed, and judgment ordered entered for the defend- 
ants. From the judgment the plaintiff has appealed. He has 
also appealed from an order, made after judgment, vacating an 
order made prior to the trial by which a receiver was appointed 
to receipt to the administrator of the 3>avis estate for the shares 
of Eoot and his associates, and to preserve them pending a ter- 
mination of this action, and also from an order subsequently 
made refusing to set aside the order just mentioned, and to re- 
tain the receiver pending the appeal from the judgment 

Mr. E. N. Harwood, and Mr. John Lindsay^ for Appellant. 

Did plaintiff's amended complaint state facts sufficient to 
constitute a cause of action ? The determination of this ques- 
tion requires an interpretation of the contract in the light of 
die facts and circumstances surrounding the subject and pur- 
pose thereof. The facts alleged in the complaint should be lib^ 
erally viewed to ascertain the intention of the parties. The 
court should have allowed plaintiff to prove all the facts and 



164 Harris, Adm'b, v. Eoot et ai* [Mar. T/03 

cipcfumstanceB surrounding and inhering in the transaction, 
which may properly be proved in support of the allegations of 
the complaint^ for as so illuminated the oontract is to be viewed, 
interpreted, and the intention of the parties asoertained and 
given effect. (Heldebrand v. Fogle, 20 Ohio, 147; 1 Green- 
leaf on Evidence^ Seca 277, 286; Donnell y. Humphreys, 1 
Mont. 526; Shreve v. Copper Bell Miming Co., 11 Mont 324; 
Truett V. Adams, 66 Oal. 221; Addison on Contracta, 846; 
Shore v. Wilson, 9 Olark & Fin. 569 ; Bareda v. SUsbee, 21 
How. 161 ; Nash v. Tovme, 5 Wall. 689 ; Anderson's Dikstion- 
ary, "Interpretation," 564 ; Anderson's Dictionaiy, "Construc- 
tion," 240; Laivrence v. McCalmonty 2 How. 447; Compiled 
Statutes, 1887, Code Qv. Proc. Sec. 632 ; Century Dictionary, 
"Defeat;" 2 Coke upon lit, Harg. IM. 236, Sea 384; Bou- 
vier's Law Diet, "Defeasance ;".Comyn'8 Dig., "Defeasance;" 

2 Bladcstone, Cam. 327 ; Simmons v. West Va. Ins. Co., 8 W. 
Va. 486 ; In re Davis' Estate, 71 Paa 757 ; Ooad v. Hart, 128 
Cal. 197, 60 Pac 761 ; Chester v. Jwmel et al., 5 N". T. Supp. 
809; Id., 26 N. E. 297; Marsh v. Holbrook (N, Y. Appeals), 

3 Abbt 176; FadrbanJcs v. Sargerd, 104 K Y. 108, 9 K E. 
870 ; Mahoney v. Bergin, 41 Oal. 423 ; Bdllaa'd v. Carr, 48 CaL 
74; Howard v. ThrocJcm>orton, 48 Oal. 482; Mathewson v. 
Fitch, 22 Oal 86; Thwrher v. Meves, 119 CaL 35; Topeha 
Water Co. v. Boot, 42 Paa 715 ; Moyer v. Cantieny, 41 Minn. 
242, 42 K W. 1060; Kersey v. Goff'Um, 77 Mo. 645 \Alcom v. 
Butler, 9 Tex. 56; Myers v. Crockett, 14 Tex. 257; Lamed v. 
Dubuque, 86 la, 166; Potter v. Ajax Mining Co., 19 Utah, 
421, 57 Pac 270; Majors v. Hickman, 2 Bibb (Ky.), 217; 
Mackall v. WUloughby, 167 U. S. 681, 42 L. Ed. 323 ; Stanton 
V. Em:bry, 93" U. S. 548, 23 L. Ed. 983; Taylor v. Bemis, 110 
TJ. S. 42, 28 L. Ed. 64; Anderson's Lawi Diet, "Oomjpiromiae," 
218; 25 Am. Eepts. 546, note; Frank v. Murray, 7 Mont 4,) 

Want of mutuality is no defense where the contract has been 
performed by one party thereto. (WUlard v. Jordan, 76 Mich. 
ISI, 42 N, W. 1085 ; Storm v. U. S:, 94 U. & 76, 24 L. Ed. 
42; Bobson v. Miss. River Log Co., 61 Fed. 983 (affirmed on 



28 Mont] Habris^ Adm'b, v. Root et al. 165 

appeal) ; Robson v. Miss. River Log Co., l'6 C. C. A. 400 ; 
Maihewson v. Fitch, 22 CaL 86; Joties v. Bnow, 64 Cal. 456; 
Bloom V. Hazzard, 104 OaL 310 ; Des Moines Valley R. R. v. 
Graft, 27 la. 99, 1 Am- Eep. 256 ; Foimtaine v. Baxley, 90 Ghu 
416, 17 S. E 1015 ; Marie v. Oaarison, 83 K Y. 14; Lancing 
V. FieeZ Co., 94 Mich. 272, 34 Am. St. Retp. 341 ; Machall v. 
WUloughby, 167 U. S. 681 ; Harlwnd v. Territory, 13 Pac 
457 ; Ballard v. Carr, 48 OaL 74 ; Howard v. Thtrochrrwrian, 
48 Cal. 482 ; Thurber v. Jlfevc^, 119 Cal. 35 ; Porfer v. A;aa? 
Ifiw. Co., 19 Utah, 421, 57 Pac. 270 ; Scott v. Jackson, 89 Cal. 
258; Swcdn v. Seamens, 9 Wall. 254.) 

This action ia founded upon a promise in writing, which 
states the consideration, aa f uUy so as an action based upon a 
promissory note, or letter of guaranty, given for labor, or credit, 
or things delivered, or to be delivered. (WaUcer v. Brown, 165 
U. S. 654, 41 L. Ei 865.) 

Even though in the adjudication of a case founded upon a 
contract, after one or more trials thereof, the court in the light 
of all the facts and circumstances, should hold that only a 
quantum mendt should be recovered the court would not then 
do what was done in this case. (Cox v. McLaughlin, 76 Cal. 
63; Walsh v. McKeen, 75 Cal. 521.) 

Mr. Charles R. Leonard, and Mr. M. S. Ounn, for Eespond- 
enta (except John H. Leyson, Administrator). 

MR CHIEF JUSTICE BEIANTLT, after stating the case, 
delivered the opinion of the court. 

1. The action of the court in sustaining the defendants' 
objection to the evidence jpiresenta for decision the question 
Aether the allegations in the complaint which we have stated 
in substance warrant recovery by the plaintiff. The complaint 
declares upon the contract, and unless it appears therefrom that 
the plaintiff's intestate fully performed the contract on his part, 
or facts and circumstances are alleged justifying a failure in 
any particular, a recovery cannot be had. The contract is clear 



166 Habbis, Adm^k, v. Eoot et ai^ [Mar. T/08 

and eccplicit in its termff, and it9 oondtmction involves na diffi- 
culty. To its language alone, therefore, mnst we look in order 
to find the intention of the partiee. (Oivil Code, Section 
2203.) Taking it by its four comers, and giving to its words 
their ordinary and popular sense (Civil Code, Section 2209), 
we find that Koot and Coram, undertook on their part to pay 
the exipenses of Mr. Ingersoll in any event, provided, of course, 
he performed the services stipulated for. Root was to pay the 
full amount of $100,000, in addition to expense money, in case 
the will should be defeated, and he and his clients should get 
their shares. Coram was bound by the same undertaking, ex- 
cept that the amount he was to be personally liable for was in 
no event to exceed the amount received by his clients, includ- 
ing Eoot ; that is, if they did not get anything, he was not to 
pay anything beyond expenses. It is therefore clear that as to 
him the intention was that he should not be bound except upon 
the happening of two oontingenciee, to-wit, that the will be de- 
f eaited, and his clients actually get their shares. In other words, 
the contest was to result in success, and the funds out of which 
only payment could be exacted were to be secured from the es' 
tate of Andrew J. Davis. The duty to pay devolved upon him 
only upon the hapfppning of these contingencies. There was 
included, also, the duty to devote the funds secured to that pur- 
pose. If he should not secure them, he was not compelled to 
pay from his own means. The obligation of Eoot was exactly 
the same, except that, if the funds secured from the estate 
should not be sufficient, he became personally liable for any 
balance. The explanation why the contract was so made is 
manifest The will had been offered- to probate, and a contest 
had been instituted by Eoot and Cummings which, if success- 
ful, would inure to the benefit of their associates. If it should 
prove a failure, they would get nothing, because, under the 
terms of the will, the proponent would get the whole estate, 
except the amount required to pay two or three small legacies. 
Coram was not interested in the estate. He was willing, how- 
ever, to become a party to the contract, provided he could share 



28 Mont] Harris^ Adm'r^ v. Root et al. 167 

in the result of a successful contest, and not be held in case of 
failure. Mr. IngersoU was willing to contribute to tihe enter- 
prise his experience and ability, upon a contingency, provided 
his share was made proportionately larger ; and be was willing 
to embody in the contract the provision that neither Root nor 
Coram should be liable, except upon a complete success of the 
enterprise through a contest, and the actual receipt by the con- 
testants and their associates of the shares to which they would 
thus become entitled. A judgment sustaining the contest would 
not be sufficient. The shares must be received. 

Coimsel for the defendants contended in the court below, and 
contend here, that this is the only construction of which the 
contract is susceptible, and that as the complaint itself shows 
that the contestants and their associates succeeded by means of 
a compromise of the litigation, in nc^tiating which Mr. In- 
gersoU took part, instead of by means of a contest, which Mr. 
IngersoU did not conduct to successful termination, the contract 
for the contingent fee was abandoned by the parties, and that 
a recovery against the defendants, if any may be had at all, 
must be upon a quantum meruit, for services other than those 
provided for by the contract. Counsel for plaintiff contends, 
however, that the compromise of the litigation by which the 
contestants obtained certain shares was pro tanto a defeat of 
the will; that under the decree the defendants have received 
and will receive amounts largely in excess of the simi due the 
estate of Mr. IngersoU, and that in any event the procurement 
of a final decree settling the contest, and ascertaining the shares 
to which the contestants are entitled, though such decree was 
brought about by a compromise, was a complete discharge by 
Mr. IngersoU of his obligations imder the contract; and that 
his estate is entitled to recover on the contract. 

We agree with the contention of the defendants An attor- 
ney, as such, has no authority to compromise a controversy of 
his client, no matter what may be the difficulties involved, nor 
however advantageous the result may be to the client. A gen- 
eral retainer in a case does not imply such authority, and, if a 



168 Harris, Adm'r, v. Root et al. [Mar. T/03 

oompromise of the controversy be made^ it must be made under 
special authority delegated for that purpose. Otherwise, and in 
the absence of a ratification by the client, the comprraiise agree- 
ment, as well as any judgment entered in pursuance of it, is 
void, at the option of the client (Holker v. Parker, 7 Oranch, 
436, 3 L. Ed. 396 ; Preston v. Hill, 50 Oal. 43, 19 Am. Eep. 
647 ; 3 Am. & Eng. Ency. of Law, 2d Ed., 358 ; Jubilee Placer 
Wn(], Co. V. Hossfeld, 20 Mont 234, 50 Pac 716.) Nor is this 
rule, which is sustained by the current of authority, ^changed 
or modified in any respect by Section 398 of the Code of Civil 
Procedure. (Preston v. HUl, svpra.) Mr. IngersoU could not, 
therefore, under the contract^ assume the authority to make any 
compromise of the contest. His duty required him to prosecute 
it, and he could not be held entitled to recover under his con- 
tract, short of a successful result of the controversy, followed 
by actual distribution to his clients. Additional authority was 
therefore necessary to this end, and, when this was conferred 
by his clients and accepted by him, there was a niutual aban- 
donment of the contract ; for the negotiations were not included 
among his duties under the contract, and when the compromise 
was consummated the contract could not be performed. This 
impossibility of performance was the result of the subsequent 
mutual arrangement between himi and his clients under and by 
virtue of which the oompromise was made. The services stipu- 
lated for under the contract were therefore never performed, 
and the contingent fee to be paid for them could not be recov- 
ered. The contract was entire, and nothing short of entire per^ 
formance would authorize a recovery upon it N^or would the 
case have been different, had the compromise been effected with- 
out the aid or consent of Mr. IngersoU, for, where the stipula- 
tion is for a contingent fee, no matter whether the rendering of 
the services is prevented by the client, or by circumstances over 
which he has no control, the measure of recovery by the attor- 
ney is the- value of the services actually rendered, and not the 
amount of the stipulated fee. These views, we think, are cor- 
rect upon principle, and are sustained by the weight of au- 



28 Mont] Harris, Adm'r, v. Eoot et al. 169 

thority. {Termey v. Berger, 93 K Y. 524, 45 Am. Rep. 263 ; 
French v. Cumiingham, 149 Ind. 632, 49 N. E. 797 ; Western 
Union Tel. Co. v. Semmes, 73 Md. 9, 20 AtL 127 : Polsley £ 
Son V. Anderson, 7 W. Va. 202, 23 Am- Eep. 613 ; Agnew v. 
Wdden, 84 Ala, 502, 4 South. 672 ; PemheHon v. Lockett, 21 
How. 267, 16 L. Ed. 137; 3 Am. & Eng. Ency. Law, 2d Ed., 
427, 431, and notes.) The all^ationa of the complaint fall 
veiy far short of showing an entire perf ormiance of the contract 
The action of the court, therefore, was correct in sustaining 
the objections to the introduction of evidence under the com- 
plaint, and in directing judgment upon the plaintiffs failure 
to amend. " \ ' 

2. The first order made after entry of judgment, though in 
fona an order vacating the appointment of a receiver, was 
quivalent to an order discharging the receiver, and was prop- 
erly made. Tte court had entered a final judgment It had 
lost jurisdiction of the case, "except for the purpose of enter- 
taining a motion for a new trial, or such other proceedings as 
might propjerly and lawfully be had, looking to a revision or 
correction of its action, or to enforce the decree as rendered. 
It had no authority, inherently or by statute, or by any rule of 
this court, to retain jurisdiction for any purpose pending the 
appeal." (Firden v. Heinze, 27 Mont 107, 69 Pac 829.) It 
was therefore the duty of the court to discharge the receiver, 
w-ho, after entry cf judgment, had no other functions to pei^ 
fonn. It necessarily follows that the court was also right in 
refusing to set aside the order just mentioned, and to retain 
the receiver pending appeal from the judgment 

The judgment and orders are affirmed. 

Aifirmed. 
Motion to modify opinion denied May 18, 1903. 




170 Reynolds v. Fitzpatkick et al. [Mar. T.'03 



REYNOLDS, Respondent, v. FITZPATRICK et al.. 
Appellants. 

(No. 1.653.) 
(Submitted April 29, 1903. Decided May 11, 1903.) 

1 28 170 ^^^^^^ Mortgage — Conversion of Mortgaged Property — De- 
js4o 694 fenses — Title in Third Person — Evidence — Hearsay — Ap- 
peal — Decision — Estoppel. 

1. Testimony, by a mortgagee of personalty, that the one who it was claimed 
had purchased it told him that the owners said the sale could be made if 
he, the mortgagee, was willing, was inadmissible as hearsay. 

2. Where on appeal, it appears that there was sufficient competent testimony 
to sustain the verdict, under proper instructions, and the record does not 
contain the instructions, it will be presumed that the court proi>erly in- 
structed the jury. 

3. To warrant the Introduction of the testimony of an absent witness, given 
upon a former trial, the party seeking to Introduce such testimony must 
preliminarily prove t&e fact of departure or absence of such witness by 
positive testimony, or by the existence of circumstances from which de- 
parture or absence can be reasonably inferred. 

4. A party offering the testimony of a witness on a former trial showed that 
a subpoena was issued, which was returned with the sheriff's indorsement 
that he could not find the witness, and the party testified that he heard 
that the witness lived at a certain place, and he had written his (the 
party's) daughter about it, who said she had' not heard of him In two 
years ; that he Inquired of a man In another place, who said that the wit- 
ness had gone to the Klondike, and inquired of other parties, who said 
they did not know where he was. Held error to admit the testimony on 
the former trial, as the proof failed to show that the witness was out of 
th« state, or, If so, it did not show that he might not have started a few 
day'b before trial. 

5. Testimony that a third person told plaintiff, who was seeking to Introduce 
the testimony of a witness given at a former trial, that said witness had 
gone to the Klondike, was hearsay. 

6. On a motion to introduce the testimony of a witness given on a former 
trial, the stenographer who officiated at the former trial was sworn, but 
did not testify that the transcript presented was a correct copy of the 
testimony as actually given. Held error to admit the testimony. 

7. Quaere: Whether the testimony of a witness given at a former trial can 
be proven by the notes of the official stenographer who fook It, or by a 
transcript of such notes. 

8. In an action for conversion the burden Is upon plaintiff to show either 
title or right of possession in himself. Proof on the part of defendant of 
title and possession In a third person would constitute an absolute defense 
to the action. 

9. In an action for conversion, plaintiff did not claim to be the owner of the 
property converted, but claimed the right to the Immediate possession 
thereof by reason of an alleged default in the terms of a verbal morts&ge 



2b Mont] Reynolds v, Fitzpatbiok et al, 171 

claimed by him to coyer tbe property. Beld error to exclude testimony 
that, prior to any assertion by plaintiff of his rights nnder the mortgage, 
the mortgagor, ^ho then had possession of the property, ha4 sold the same 
to a third person, -who had no notice of plaintiff's rights, as th&s «▼!- 
dence tended to show title In the third person, and therefore to defeat 
the action. 
10. A party Is estopped from claiming that he is not bound by a decision pro- 
cures by his own appeal and solicitation. 

Appeal from District Court, Deer Lodge County; Wellim^f 
Napton, Judge. 

Action by J. B. Reynolds against John Fitzpatrick and 
John Conley, as sheriff and deputy sheriff. From a judgment 
for plaintiff and from an order overruling a motion for a new 
trial, defendants appeal. Reversed. 

Mr. W, H. Trippet, for Appellants. 

Mr. H. R. Whitehill, for Respondent. 

MR. COMMISSIONER OIAYBERG prepared the opin^ 
ion for the court 

This case has heretofore been before the supreme court on 
appeal from a judgment of nonsuit, and was reversed and re- 
manded. (Reynolds v. FUzpatrick, 23 Mont. 52, 57 Pac. 452.) 

A trial of the case was then had in the court below, resulting 
in a verdict and judgment for the plaintiff. From this judg- 
ment, and from an order overruling a motion for a new trial, 
the defendant prosecutes this appeal. JST^ new or amended 
pleadings were filed after reversal by this court. 

A very full and complete statement of plaintiff's case, and 
the testimony adduced in his behalf upon the first trial, is found 
in the opinion of the court (23 Mont 52, 57 Pac. 452), which 
we adopt and refer to as a portion of the statement herein. It 
seems only necessary to add thereto the fact that, upon the re- 
trial of llie cajse, the plaintiff introduced additional testimony 
as to the value of the property, and the defendants introduced 
witnesses who also testified as to such value, and a witness who 



172 Keynoi*ds v. Fitzpatbick bt al. [Mar. T.'OS 

daimed to have been a bona fide pjurchaaer of the property in 
questian from one John A. Hall, who was in posdeseion thereof 
at the time of the levy of the attachments in question, claiming 
its ownership. 

The appellants assign four errors in their brief, as follows: 
(1) Refusal to strike out hearsay testiirnxmy. (2) Allowing 
plaintifPs witneeses to testify as to the value of the property, 
without proper qualification therefor. (3) Permitting the tes- 
timony of John A- Hall, who testified upon the former trial, to 
be read in evidence and considered by the jury, (4) Refusing 
to allow defendants to introduce proof of a sale of all the prop- 
erty in question by Hall to J. V. Collins, after the levy of the 
attachments in question. We shall consider these several as- 
signments of error seriatim. 

1. As to the first error assigned. The testimony, a part of 
which was sought to be stricken out, is as follows: "ISiTr. Hall 
met me down here on the street^ and said he was about to buy it 
out only if I waa satisfied. Clark told himi that if I was saticr 
fied they could make the trada * * * I did not hear the 
conversation, but he told me this." What dark told HaU was 
undoaibtedly the clearest kind of hearsay testimony, and, a sea- 
sonable objection having been made, should have been stricken 
out on motiooL. 

2. As to the second error assigned. There was sufficient 
competent testimony introduced before the jury upon whidi 
they might have rendered their verdict for the plaintiff, under 
pjroper instructions of the court The record does not contain 
these instructions, and we must presumje that the court below 
properly directed the jury as to the consideration of the teeti- 
mony adduced upon the different issues in the case. There was 
therefore no error upon these rulings. 

3. As to the third error assigned. It is claimed that this 
testimony was admissible under Section 3146 of the Code of 
Civil Procedure, which provides: "In conformity with the 
preceding provisions^ evidence may be given upon a trial of the 
following facts: * * * (8) The testimony of a witness 



28 Mont] Reynolds v. Fitzpatrick et al. 173 

deceased, or out of the jurisdiction, or unable to testify, given 
in a former action between the same parties, relating to the 
earns matter." 

It is very apparent that, before such testimony became com- 
petent and could have been introduced, the burden of proof was 
upon the plaintiff to show the existence of one of the conditions 
of Subdivision 8, supra, viz: (1) Thati the witness was dead; 
(2) that he was out of the jurisdiction; or (3) that he was un- 
able to testify. The only pfreliminary proof offered was : First, 
a subpoena issued on September 19, 1899, to the sheriff of Deer 
Lodge county, requiring the witness' presence in court on Sep- 
tember 23, 1899, which was returned by the sheriff to the effect 
that he had failed to find the witness; and, second, the testi- 
mony of plaintiff, which is as follows: "I will state what 
efforts I have made in endeavoring to discover the whereabouts 
of Kr. John A. Hall, who was a witness in the case the last 
tune it was tried. I wrote to my daughter at Twin Bridges; 
she knew him ; I wrote to Twin Bridgps because I heard he lived 
there ; that was his former residence, between there and Sheri- 
dan. She said she had not heard of him in two years. I also 
inquired of a man in Butte who said he knew him, and he told 
me that Hall had gone to the Klondika I also inquired here of 
McKinnon & McKay; they were acquainted with him; they 
said ihey would know where he was ; they had not hoard of him 
for a couple of years. I heard he had worked for them in the 
store formerly ; they said they had not heard of him for a couple 
of years, and could not tell where he was." 

This statute is but declaratory of the common law as an- 
nounced by the decisione of the highest courts of several of the 
states, and therefore we must be guided in its application by 
4e same rules as those applied by the common law in similar 
instances. We find, upon examination of the decisions, that a 
party seeking to introduce the testimony of a witness given upon 
a fonner trial is required to introduce preliminary evidence of 
the existence of the reasons for its introduction, and that, if it 
is fiou^t to be introduced because of the absence of the witness 



174 Reynolds v. Fitzpatrick: et al. [Mar. T.'03 

from thd jurisdiction of the court, the party seeking its intro- 
duction is required to show the fact of departure or absence by 
{positive testimony, or by the existence of such circum&tancee 
as would warrant the inference of departure or absence. In 
Baldwin v. St. Louis, K. & N. %. Co., 68 Iowa, 37, 25 K W. 
918, the supreme court of Iowa uses the following language: 
"The fact that the witness had left the state should have been 
established by the testimony of some one who knew the fact, or 
could testify to circumstances within hia knowledge which 
would justify the inference of such fact" (See, also, Augusta 
& 8. E. Go, V. Randall, 85 Ga, 297, 11 S. K 706: Mawich v. 
Elsey, 47 Mich. 10, 8 K W. 587, 10 K W. 57 ; Slusser, Taylor 
& Co. V. City of Burlington, 47 Iowa, 300 ; Wilder v. City of 
St. Paul, 12 Minn. 192.) 

The state of California has a statute similar to the above, 
under which the courts of that state have held that the witness 
miust be out of the state, and if he is within its borders, al- 
though at a point more than thirty miles distant from the place 
of trial, his testimony given at a former trial is not admissible. 
(Meyer v. Roth, 51 Cal. 582 ; Butcher v. Ya^a Valley Ry. Go,, 
56 Cal. 598.) 

In our opinion the record fails to disclose any positive testi- 
mony that the witness had departed from or was out of the state 
at the time of the trial, or the existence of any circum-jtances 
from which such departure or absence could be reasonable in- 
ferred. The only testimony even tending to show this fact is 
that of Reynolds, who says, "I also inquired of a man in Butte, 
who said he knew hiim, and he told me that Hall had gone to 
the Klondike." Plaintiff did not call this man as a witness, so 
that he could be cross-examined and the source of his informa- 
tion ascertained. The testimony given was not direct or posi- 
tive, but pure hearsay. Ifo circumstances were detailed from 
which the inference of the fact of departure or absence could be 
safely drawn. What the man said may have been mere rumor. 
Again, plaintiff does not disclose the date of said inquiries. It 
might have transpired, if Hall had gone to the Klondike, that 



28 Mont] Reynolds v. Fitzpateick et ai.. 175 

he only started a feiw days before the trial, and that ample op^ 
portunity might might have existed to subpoena him or to have 
taken his testimony anew, or that the time of such inquiry was 
so remote that he might have returned. AH the other testimony 
offered was to the effect that his whereabouts was unknown, and 
is entirely consistent with the fact that he was within the state. 
Plaintiff did not show that he made any effort to communicate 
with the witness at his last known residence. We are therefore 
satisfied that ipjaintiff did not make such showing as to warrant 
the introduction of Hall's testimony given on the former trial 
of the case. 

But again, even if proper proof had been presented to war- 
rant the introduction of thie testimony, it could not have been 
introduced without proof that it was actually given on the for- 
mer trial. The steaK^apher who oflSciated at the former trial 
was swoi (L He did not testify that the tra.nscript of the testi- 
mony presented and read in evidence was a correct copy of the 
testimony as actually given. So that the testimony as intro- 
duced was simply a copy of the evidence given upon the former 
trial, without proof of its oorreotnese. There is also a serious 
question as to whether the testimony of a witness given at a 
former trial can be proven by the notes of the official steno- 
grapher who took it, or by a transcript of such notea (Reid v. 
Eeid, 73 Cal. 206, 14 Pac. 781 ; Lifpscomb v. Lyon, 19 Neb. 
511, 27 N, W. 731.) But inasmuch as objection was not made 
on that ground, we do not decide its availability. 

4. As to the fourth error assigned. It must be remembered 
• that this action was for an alleged conversion of certain per- 
sonal property. The burden was upon the plaintiff to show 
either title or right of possession to the property resting in him- 
self. The right of possession was alleged and denied. Proof 
of title and possession of the property in a third person could 
he introduced, and, if satisfactory to the jury, would constitute 

an absolute defense to the action. (^Oallich v. Bordecmx, 22 
.Mont 476, 56 Pac 961, and cases cited.) Plaintiff did not 

daim to be the legal owner of the property, but claimed the 



176 Rbtnoij)s v. Fitzpatbick et al. [Mar. T/08 

right to the immediate poeseesion thereof because of an alleged 
default in the terms and conditions of a mortgage which he 
claimed to hold covering the property. 

A brief reference to the facts is necessary to understand the 
exact situation in regard to this question. Reynolds had there- 
tofore sold a part of the property in question to Maddox and 
Cflark, and had taken a chattel mortgage f rom« them to secure 
the payment of a note given by them for a portion of the pur- 
chase price. Hall, with the consent of Reynolds, purchased the 
property from Clark, the successor of Maddox and Clark. The 
supreme court, on the former appeal, held that by this purchase 
Hall became the owner of the property ; that by the agreement 
between Hall and Reynolds a new, verbal mortgage was given 
by Hall to Reynolds, which su/pierseded the Maddox and Olark 
mortgage by novation, and that the liability of Maddox and 
Clark was extinguished; that, after this new arrangement was 
Completed and Hall had taken possession of the property, the 
same was levied upon by creditors of Maddox and Clark ; that 
the mortgage from Maddox and Olark was void as to their 
creditors. Therefore the following situation existed : Hall was 
the owner and in possession of the property in question, sub- 
ject, as between himself and Reynolds, to a parol mortgage 
given by himself to Reynolds. This mortgage, under the terms 
of Section 3861 of the Civil Code, was void as against any sub- 
sequent purchaser of the property in good faith for value. De- 
fendants sought to show that Hall sold this property to one Col- 
lins for a valuable consideration, without notice or knowledge 
on the part of Collins of the existence of the verbal mortgage 
from Hall to Reynolds, and without notice of the claim of Rey- 
nolds, and therefore to a bona fide purchaser. This purchase 
was claimed to have been made prior to the commencement of 
this suiti, or t6 thiB assertion by Reynolds of his right under this 
parol mortgage by any action or process, and prior to any at*- 
tempt on his part to take possession of any of the property un- 
der the terms of the alleged mortgage. In our opinion such 
testimony was (Jompetent^ and, if established to the satisfaction 



28 Mont] McGlauflik v. Wobmser. , 177 

of the juiy, would have been an absolute defense to plaintiff's 
alleged cause of action. 

Counsel for appellants insist tliat the decision of the supreme 
court on the former appeal was erroneous, and that it is not 
the law of the case. While there may be serious doubt as to 
the correctness of either of these propositions, we do not deem 
it necessary to consider or decide the question upon this appeal. 
So far as plaintiff is concerned, he is estopped from asserting 
or claiming that he is not bound by that decision. It was pro- 
cured by his own appeal and solicitation, and he is now estopped 
to question it. (Newell v. Meyendorff, 9 Mont. 254, 23 Pac 
333, 8 L. R A. 440, 18 Am. St. Eep. 738.) We can therefore 
see no good reason why appellants should co^jitend that the for- 
mer ruling of the supreme court was erroneous or is not the law 
of the case, at least upon this appeal ; but by this language we 
do not desire to be understood that under proper circumstances 
^e would or would not consider these or like questions. 

We are therefore of the opinion that the decision of the court 
below should be reversed, and a new trial be granted. 

Per Oumam. — ^For the reasons stated in the foregoing opin- 
ion, the judgment of the court below is reversed, and a new 
trial granted. 

Mb. Chiep Justice Brantly was disqualified, and took no 
part in the decision. 



a* 177 

80 558 



McGLAUFLIlSr, Respo^^bent, v, WOEMSE'R, ..\ppellant. fi 422; 



28 177 
(No. 1,550.) • 36 81 



(Submitted April 28, 1903. Decided May 11, 1908.) jjj 



I Mechinics' Liens — Statutory Requirements — Compliance — (^ ^^ 

Burden of Proof — Pleading — Complaint — Sufficiency- 
I Costs — Witnesses — Mileage — Appeal — Review — Scope. 



A bnllding contract provided that aU payments should be made on the 
certificate of the architect that payments had become dae, and that final 

Vol. XXVIII— 12 



178 McGiiAUFLiN V. WoBMSEK. [Mar. T.'OS 

payment should be due when the work was completed and accepted. Held, 
that presentation of a certificate of the architect was a condition prece- 
dent to final payment. 

2. A complaint in an action to enforce a mechanic's lien must state that the 
necessary architect's certificate was gien or demanded, and, if refused, the 
reasofis why it should have been given, or, if waived, a statement of that 
fact. 

3. Code of Civil Procedure, Section 2181, relative to mechanics' liens, pro- 
vides the statutory steps which must be taken for its assertion. Held 
that, in an action to enforce a mechanics' lien, allegations showing com- 
plianace with Section 2131 are jurisdictional, and when denied must be 
proven as alleged, In order to authorize decree of foreclosure. 

4. Where, in a suit to enforce a mechanic's lien, no proof is made showing 
the existence of any lien, questions raised on appeal as to the extent or 
validity of the lien are not open to consideration. 

5. Political Code, Section 4648, provides that witnesses "attending" a trial 
are entitled to 10 cents a mile each way from their place of residence to 
the place of trial ; and Section 1866 provides that the party to whom costs 
are awarded is entitled to the mileage of witnesses, etc. Held, that a 
party to whom costs were awarded was entitled to mileage for witnesses 
who appeared and testified, irrespective of whether they were legally sub- 
poenaed. 

6. Quaere: Whether Siection 8304, Code of Civil Procedure, is constitutional? 

7. An order, made after Judgment, refusing to sign a bill of exceptions, can- 
not be considered on appeal from the judgment and from an order denying 
a new trial. 

Appeal from District Covrt, Sweet Grass Coxmiy; F rani- 
Henry, Judge, 

Suit by J. R. McGlauflin against Andrew Wormser to en- 
force a mechanic's lien. From a judgment for plaintiff, and 
from an order overruling a motion for a new trial, defendant 
appeals. Reversed. 

Mr, Eugene B. Hoffman, for Appellant. 

The court erred in overruling the defendant's motion to re- 
tax the costs. (Sections 3360, 3342, 1866, CJode of Civil Pro- 
cedure; Mylims v. St. L, F. S. <& U. R. Co. (Kan.), 1 Pac, 
619.) 

!N"d attorney fee can be allowed as a part of the costs in a case 
of this kind, and if permitted by our Code, the section permit- 
ting it is unconstitutional and void in that it violates Section 
6, Article III, Constitution of Montana, and Section 1, Article 
XIV, Amendments to the Constitution of the United States. 
This question was before this court in Wortman v. Kleinr 



28 Mont] McGlauflin v. Wobmser. 179 

Schmidt, 12 Mont 316, and while the majority of the court 
held the statute constitutional, Judge DeWitt filed a strong 
opinion urging that the provision, was unconstitutional. Since 
the decision in the Wortman Case, the question has come 
squarely before the Supreme Court of the United States in 
Gvlf C. <& S. F. R. Co. V. Ellis, 165 U. S. 150; see, also, Los 
Angelas C. M. Co. v. Campbell (Colo.), 56 Pac. 246; Bru- 
baker V. Bennett (Utah), 57 Pac. 170. 

The procuring and presenting of the certificate of the archi- 
tect were conditions precedent to payments, and waiver of such 
condition precedent must be shown by proofs of the most satis- 
factory kind, and will not be inferred from contradictory state- 
ments of the [parties. And the making of payments from time 
to time on the contract price will not constitute a waiver of 
such condition precedent. {Brown v. Winehill (Wash.), 28 
Pac. 1037; Wortman y. Kleinschmidi, 12 Mont 316.) 

The supreme court of Missouri in construing a statute quite 
similar to our own, has held that descriptions of the land, such 
05 that employed by the respondent here, were too indefinite 
and were not a complance with the statute, and that therefore 
theaiB was no lien created. (Mattla^k v. Lore, 32 Mo. 262; 
Williams v. Porter, 51 Mo. 441 ; Wright v. Beardsley, 69 Mo. 
548; Ransom v. Sheehan, 78 Mo. 668.) 

Mr. D. H. Kehoe, and Mr. Sidmey Fox, for Eespondent. 

ME. OOMMISSIOlsrEE CLAYBERG prepared the opinion 
for the court. 

This is an action brought to foreclose a mechanic's lien. At 
the trial of the case, after plaintiff had introduced his evidence, 
defendant mx>ved for a nonsuit, which the court overruled. 
Judgment followed for plaintiff. Defendant made a motion 
foT a new trial, which was overruled. He then appealed from 
this judgment and the order overruling the motion for a new 
trial 

1. The action is baaed upon a written contract entered into 



180 MoGi^AUFUN V. WoBMBER. [Mar. T.'OS 

between the parties for the oonstructioii of a dwelling house. 
It (pfTOvides that "all payments shall be made upon the written 
certificates of the architect to the effect that such payments have 
become due." It also provides that the different payments shall 
be made when certain work about the building is completed, 
and that the final payment shall be due "when the entire work 
is completed and accepted." By the terms of this contract, 
under the law, the obtaining and presentation of a certificate 
of the architect was a condition precedent to the final x>ayment 
on the contract becoming due. Therefore the complaint must 
state that such certificate w^s given or demanded, and, if re- 
fused, the reasons why it should have been given^ or, if waived, 
a statement of that fact. We find no allegation in the complaint 
to that effect. This being true, it is not sufficient to support 
the judgment given by the court below. The motion for non- 
suit made by the defendant should have been sustained upon 
this ground. {Michaelis v. Wolf, 136 HI. 68, 26 K E. 384; 
Hudson V. McCartney, 33 Wis. 331; Hardey v. Walker, 79 
Mich. 607, 8 L. R A. 207 ; Byrne v. Sisters of St Elizaheth, 
45 K J. Law, 213 ; BeTiarrell v. Quimby, 162 Mass. 571, 39 
K E. 407; Cox v. McLaughlm, 63 Cal. 196; Schmidt v. City 
of North Yahima, 12 Wash. 121, 40 Pac. 790.) 

2. But again, under the statutes of this state the plaintiff 
was bound to allege in his complaint, and show to the satisfac- 
tion of the court or jury, that he had com,plied with the pro- 
visions of Section 2131, Code of Civil Procedure. He makes 
the following allegation in his complaint: "Fourth. That on 
the 8th day of October, 1898, and within ninety days from the 
furnishing of such material and labor, the plaintiff, in order to 
secure and perfect a mechanic's lien for the money so due him 
as aforesaid, duly filed with the county clerk and recorder of 
Sweet Grass county, Montana, an affidavit containing an item- 
ized account of the amount and value of such labor and mate- 
rials, with all credits and offsets, and a description of the land 
on which such house was built, which was duly recorded in said 
county clerk and recorder's office, a copy of which lien, affidavit 



28 Mont] McGlauplin v. Wobmsbk. 181 

and account is hereto attached, and made a part of this com- 
plaint" The complaint also alleges that the property on which 
the house was constructed was situated in Sweet Grass county, 
Montana. To these allegations defendant interposed a general 
denial. He also interposed a specific denial as to the sufficiency 
of the description of the property against which the lien was 
claimed. These allegations and denials raised an issue neces- 
saiy to be submitted to the jury and passed ujpon by the court 
or jury before any decree or judgment could be entered in the 
suit 

The manner of perfecting a mechanic's lien consists of vari- 
ous steps, which are purely statutory, and, while the statute is 
in some respects remedial in its nature, and thus far should be 
construed liberally, it creates a new right, and the statutory 
proceedings by which this new right is perfected and enforced 
must be strictly followed. (Yerrick v. Biggins, 22 Mont 502- 
510, 57 Pac. 95.) Section 2130, Oode of Civil Procedure, 
specifies the instances in which a lien may be claimed. Section 
2131 provides the method by which it may be asserted, and 
specifies what constitutes a lien. If no lien is thus created, 
nonn can be enforced. Alle^rations of compliance with the terms 
of Section 2131 are, therefore, jurisdictional in an action to 
enforce a lien; and such allegations, when denied, must be 
proven as alleged, in order to authorize a decree of foreclosure 
of the lien. We have carefully searched the record, and fail to 
find any testimony even tending to prove the above allegations. 
There was, therefore, a failure to prove the existence of such 
facts as to give the court below jurisdiction to enter the decree 
appealed from. It must, therefore, be reversed. 

No proof having been made of the existence of any lien,^other 
questions raised by ajppellant as to the extent or validity of the 
lien claimed are not properly before us for consideration. 

3. Inasmuch as the case must be remanded for a new trial, 
and as the costs of the former mistrial will abide the final re- 
suit of the suit^ we deem it proper to consider the error assigned 



182 McGlauflin v. Wormser. [Mar. T.'03 

upon the action of the court below in refusing appellant's mo- 
tion to retax costs. 

The only items to which appellant objects are the items of 
mileage paid witnesses from Great Falls and Butte. The record 
does not disclose whether these witnesses were subpoenaed, but 
it is clearly shown that they were present and testified at the 
trial. Appellant insists that the amounts paid for their mile- 
age was not an item of costs "necessarily incurred in said ac- 
tion/' or properly chargeable against him. His counsel insists 
that under Section 3304, Code of Civil Procedure, a witness 
cannot be oomjpelled to attend a court out of the county in which 
he resides, unless the distance be less than thirty miles from his 
residence to the place of trial. He also insists that the deposi- 
tions of such witnesses should, have been taken under Section 
3342, Code of Civil Procedure. Section 4648 of the Political 
Code provides that witnesses ''attending" a trial aire entitled to 
ten cents per mile each way from their place of residence to 
the place of trial. Section 1866, C<xie of Civil Procedure, pro- 
vides : "A party to whom costs are awarded in an action is en- 
titled to include in his bill of costs his necessary disbursements 
as follows: The legal fees of witnesses, including mileage," 
etc. These witnesses attended court, and testified on the trial, 
and we think plaintiff was entitled to include their mileage in 
his statement of costs and disbursements, and that the court did 
not err in overruling the motion to retax the costs. 

There may be a somewhat serious question as to the constitu- 
tionality of Section 3304, supra. Section 11, Article VIII, of 
our Constitution, provides that the process of district courts 
"shall extend to all parts of the state." Section 3300, Code of 
Civil Procedure^ provides, "The process by which the attend- 
ance of a witness is required is by subpoena." If the process 
of the court through a subjpjoena extends to all parts of the state, 
it is difficult to understand how a witness could justify refusal 
to obey it, even though he resided out of the county, and more 
than thirty miles from the place of trial. We do not, however, 
desire to be understood as deciding this question, because it was 



28 Mont] YoDER V. RbynoI/Ds. 183 

not argued before the court, and its decision is not necessary to 
the decision of this case. 

4. One other error assigned in the brief is based upon the 
refusal of the court to settle and sign a certain bill of exceptions 
which appellant had prepared, served, and tendered to the court. 
The action of the court in refusing to sign the same was an or- 
der made after judgment, and to bring it to this? court for re- 
view an appeal must be taken from, such order. The appeal in 
this case is only from the judgment and the order overruling 
the motion for a new trial. 

We are of the opinion that the judgment and order apj>ealed 
from sliould l)e revorscd, the case reinandod and Ji now trial or- 
dored. 

Per Curiam.— For the reasons stated in the foregoing opin- 
ion, the judgment and order appealed from are reversed, the 
case remanded and a new trial ordered. 

Mr. Justice Holloway was disqualified, and took no part 
in the decision. 



YODER, Appeluvnt, v. REYNOLDS, Respondent. 

28 m\ 

(No. 1,544.) \'»mi 

(Submitted April 11, 1903. Decided May 11, 1903.) I » &8l( 

28 1831 
32 93 

Fraudulent Conveyances — AdmissihiUiy of Evidence — Objec-^^ -^^ . 
tions to Evidence — Motion to Strike Ovt Evidence — Waiver^ _ 7| 
— Instructions. 

1. Civil Code, Section 1372, provides that the good will of a business is 
property, transferable lilce any other. A debtor transferred his stoclc of 
goods by an Itemized bill of sale, which did not include the good will of 
the business. BeUL, on an issue of fraud towards creditors in the con- 
veyance, that evidence as to the value of the good will was inadmissible. 



184 YoDER V. Reynolds. [Mar. T/03 

2. Where a question asked a witness calls for evidence which is wholly inad- 
missible for any purpose, it is not error for the conrt to sustain a mere 
general objection to it. 

3. Where an offer of testimony includes that which is admissible with that 
which is not, and the competent and incompetent are blended together, it 
is not error for the court to sustain a mere general objection to its ad- 
mission. 

4. A party who permits incompetent testimony to go in without objection 
waives his right to object, and cannot move to strike it out. 

5. Where testimony is offered which may be competent upon the showing made, 
and therefore no objection is made to it, and its incompetency is after- 
wards developed ; or when incompetent testimony is volunteered by a wit- 
ness In response to a proper question, such testimony should be stricken 
out on motioD. 

6. On an Issue of fraud towards creditors in a debtor's conveyance, the court 
instructed that If a prior transfer from his partner to the debtor was 
made without consideration or secretly, or for any fraudulent purpose, or 
to allow the debtor to make the transfer in question with intent to de- 
fraud creditors of the partnership, then the conveyance in issue would be 
invalid. Held error, as permitting the conveyance to be invalidated though 
the grantee was an innocent purchaser for value. 

7. The court further Instructed that if the grantee was not at the time of 
the conveyance the legal or real owner of notes given by the debtor, the 
cancellation of which was the consideration for the conveyance, but the 
facts concerning the true ownership were concealed for the purpose of 
defeating partnership creditors, the conveyance would be void. It appeared 
that the notes were signed by the grantee, and given to a payee who after- 
wards became his wife. Held, that both instructions were, as a whole, 
erroneous, as telling the Jury, in effect, that the grantee did not have 
the right to secure himself by purchasing . the property in good faith, even 
though he was liable on thfe notes. 

8. The latter instruction was aiso erroneous, as it was immaterial to the 
creditors of the partnership whether the ownership of the notes was in 
the grantee or his wife. 

9. The court Instructed that if the prior transfer to the debtor from his 
partner was not made for value or in good faith, and was not disclosed to 
creditors, then It would not vest the title in the debtor alone, but, if the 
partnership or the debtor continued to carry on the business under the 
partnership name, then the conveyance would be void towards, creditors 
of the firm. Held error, as whether the transfer between the partners 
was fraudulent or not, It gave to the debtor the legal title, so as to enable 
him to give an absolutely good title to a bona fide purchaser. 

10. Instructions must be warranted oy the pleadings and evidence. 

11. Instructions should not be argumentative In form. 

12. It is error for the court in an Instruction to comment on the weight to 
be given the evidence of the parties to the action. 

13. It Is error for the court to ^Ive conflicting Instructions. 

14. In a suit for the conversion of personalty, and also damages for a trespass 
on realty possessed by plaintiff as a tenant, it is error to Instruct that the 
burden Is on the plaintiff to show his right to the possession of "the prop- 
erty In controversy," since, though the leasehold was In controversy, plain- 
tiff was — under the proofs ffflduced — entitled to nominal damages for the 
defendant's trespass thereon. 

15. Where a sheriff levies on personalty In defendant's warehouse, and remains 
In possession of the premises, defehdant is entitled to nominal damages, 
even though no special damage Is shown. 

16. It is error for the court in an Instruction to incorrectly state the initials 
of a party's name. 



28 Mont] YoDEB v. KjBYisroLDs. 185 

17. A court, in its Instrnctlons, should be brief and clear, it should not indulge 
in needless repetition and legal verbiage, nor should it attempt to give all 
the law extant upon the subject under consideration. 

Appeal from District Court, Silver Bow County; William 
\ Clancy, Judge. 

Action for conversion of personalty and for trespass on re- 
alty by A. X. Yoder against S. J. Reynolds. From an order 
refusing a new trial after judgment for defendant, plaintiff 
appeals. Reversed. 

Messrs. McBride & McBride, for Appellant. 

Under the law, as it existed in 1896, the first in time was 
first in right ; and plaintiff, by his diligence, obtained a prefer- 
ence which it was the duty of the court to protect. (Civil Code, 
Sees. 4483, 4513;- Bump on Fraudulent Conveyances, 183; 
Greene v. Tanner, 49 Mass. 411; Hubbard v. Taylor, 5 Mich. 
155.) 

In March, 1896, a creditor violated no rule of law when he 
took payment of his demand in good faith, although others were 
thereby deprived of all means of obtaining satisfaction of 
equally meritorious claims. (Gray v. St. John, 35 111. 222; 
Hill V. Bowman, 35 Mich. 101 ; Ames £ Frost v. Hcslrf, 10 
Mont. 188.) 

An instruction not based upon evidence in the case is erro- 
neous. (Brownell v. McCormiclc, 7 Mont. 12, 17; Kelley v. 
Cable Co., 7 Mont 20; WaJsh v. Mueller, 10 Mont 180; Good- 
hnd V. Gilliam, 10 Mont 385-388.) 

Instructions 5 and 6 are erroneous in that they are argument- 
ative, and purport to ex,pres8 the opinion of the court upon the 
eridence in the case; moreover, instruction 6 ignores entirely 
the rights of the plaintiff as a bona fide purchaser. (Wastl v. 
MorUana Union By. Co., 17 Mont 213 ; Knowles v. Nixon, 17 
Mont 473; State v. Gay, 18 Mont 61-62.) 

Conflicting instructions will not be sustained. {Kelley v. 
Cable Co., 7 Mont 70 ; \yalsli v. Mueller, 16 Mont 180.) 



186 ToDEB V. Ebywoij)S. [Mar. T/08 

As to the rule applicable to a case where partnership prop- 
erty has been applied to the payment of the individual debt of 
one of the partners, see, 'lluiskamp v. Moline Wagon Co., 121 
U. S. 310-323; Case v. Beauregard, 99 U. S.. lld-125 ;IIowe 
-V. Lawrence, 9 Oush. 553, 57 Am. Dec. 68, and oases there 
cited ; Locks v. Lewis, 124 Mass. 1. 

The right of a simple contract creditor of a partneiship to 
have the assets of the firm first applied to the payment of the 
firm debts does not amount to a lien upon the property, but is 
a mere equity, which vanishes when the partners part with their 
interest in the property. (Stahl v. Osmers, 31 Oregon, 199, 
49 Pac. 958.) 

Instruction No. 11 does not correctly state the law applicable 
to this ease, for the reason that there was no evidence of any 
bad faith on the part of either the seller or purchaser. (Curds 
V. Valiton, 3 Mont. 156.) 

A partner, as such, may, when his copartner has wholly aban- 
doned the business to him, dispose of the whole partnership 
property at once to a creditor. (Steinhart v. Fyhrw, 5 Mont. 
473, and cases cited; Code of Civil Procedure, Sec. 3232.) 

Messrs. F orb is & Matitson, and Mr. M. J. Cavanmigh, for 
Respondent 

Where there is evidence to support a finding or verdict it will 
not be disturbed by the appellate court although it may be 
claimed that it appears to be against the weight of evidence. 
{Merchants Bank v. Grccnliood, US ViowX. 430, 41 Pac. 250; 
OrrY. Haskell, 2 Mont. 228.) 

The contention of the appellant tJbat the verdict is not sus- 
tained by the evidence, cannot be considered on this appeal, for 
the reasons that his specifications as to the particulars in which 
the evidence fails to support the verdict are too vague and in- 
definite ; and besides the verdict might still stand if the lack of 
evidence he mentions was a fact (Zickler v. Deegari, 16 Mont^ 
200 ; Oriswold v. Boley, 1 Mont 553 ; Froman v. Patterson, 
10 Mont 107 : Bass v. Bnker, 6 Mont 442 ; Stafford v. Horn- 



28 Mont] ToDBR 17. Reynolds. 187 

buckle, 3 Mont. 493; First Nafl Bank v. Roberts, 9 Mont. 
333; Strasburger v. Beecher, 20 Mont. 145-49, p. 740.) 

This court will not set aside the order refusing to grant a new 
trial unless the lower court could have directed a verdict for 
plaintiff at the close of the case ; this cannot be done where there 
is a question as to the credibility of the evidence ; whether the 
facts be disputed or undisputed if different minds nmy honestly 
draw different conclusions, the case should be left with the jury. 
{Stephens v. 'Pendleton, 85 Mich. 137; FravJcenthall v. Gold- 
stein, 4A Mo. App. 180 ; Avary v. Perry Stove Mfg, Co,, 96 
Ak 406.) 

If the trial court could not have justly directed a verdict in 
favor of plaintiff at the close of this case, this court should not 
disturb the order for lack of evidence; it devolved upon the 
plaintiff to prove his title to the property ; the jury had the ex- 
clusive right to weigh and pass upon the credibility of his testi- 
mony ; therefore the jury could not have been properly deprived 
of tliis function by a direction for plaintiff. (PicJcel v. Is- 
grigg, 6 Fe<l. 676; Goodman v. Ford, 23 Miss. 592; Mavs v. 
Montgomery, 11 S. & R (Pa.), 329; Fritz v. Clarlc, 80 Ind. 
591; Penn. Mimng Co, v. Brady, 16 Mich. 332; Roheris v. 
Field, 27 Mich. 337.) 

Error in refusing or giving instructions will not authorize a 
reversal of the judgment where the verdict is manifestly right 
upon the whole caso. {Mann v. Iliggins, 83 Cal. %% ; O'Calla- 
haiiw Bcdie, 84 Cal. 489 ; Castagiw v. Carpenter, 14 Colo. 524 ; 
Wyman v. Filker, 18 Colo. 382.) 

It must have prejudiced some substantial right of appellant. 
{Low V. Woerlin, 77 Cal. 94; Freden^Jcs v. Judnh, 73 Cal. 
604; Qvdnn v. Quinn, 81 Cal. 14; Coddy v. Chicago, 5 Dak. 
97.) 

Where it appears that the jury were not misled the order will 
not be disturbed. {Chalmers v. Chalmers, 81 Cal. 81 ; Murray 
V. White, 82 Cal. 119.) 

Error in a detached phrase, sentence or section is not revef- 



188 YoDEB V. Kbynolds. [Mar. T.'03 

sible wheire it is so qualified by the remainder of the charge that, 
regarded as a whole, the law is Stated with substantial correct- 
ness. (Monnahan v. Pac. Roll. Mill, 81 Cal. 190; People v. 
Clark, 84 Cal. 573; BoseribucJc v. Baymer, 13 Cal. 451.) 

As to motives of parties to transfer, see, Power v. Alston, 93 
HI. 587 ; Phelps v. Curts, 80 111. 112 ; Morrison y. Bemis, 69 
ni. 537; Moore v. Wood, 100 111. 454; Show'n Bank v. Cutler, 
49 Me. 318. 

The doctrine of reputed ownership would entirely justify the 
jury in ignoring the transfer as claimed to have been made from 
Lorenzo Graehl to Hyrum GraehL {Ex pnrte flare, 1 Deac. 
16, 2 Mont. & A., 478, per Erskine, Ch. J. ; Ex parte Neiuton, 
I. M. D. & D. 252 ; Ex parte Hunter, 2 Eose, 382 ; Hogard v. 
McKinzie, 25 Beau. 493; WJdtnrum v. Leonard, 3 Pick. 177.) 

Lien of creditors on firm property is paramount to that of 
individual creditors though the latter attach first. {Todd v. 
LoraJi, 75 Pa. St 156; Chase v. Steel, 9 Cal. 64; Conroy v. 
Woods, 13 Cal. 626; Lindlcy v. Davis, 6 Mont 453.) 

ISTeither the court in its charge nor counsel in his request for 
instructions has any right to assume that the matter is proved 
merely because there is no conflict of testimony in legard to it; 
as there may be a question as to the weight and credit which' 
should be given to the testimony. {People v. Webster, 111 Cal. 
381 ; Barry v. Hoffman, 6 Md. 86 ; Soar v. Fuller, 71 Iowa, 
427 ; Bhodes v. Lowry, 54 Ala. 4.) 

If the order of the court can be supported upon any theory 
it will not be disturbed. {State v. Schnepel, 23 Mont 523.) 

Appellant claims that many of the instructions given at the 
request of the respondent were not warranted by evidence. This 
fact, if it were a fact, is not necessarily reversible error. Ex- 
cept it appear that the jury were misled by such instructions to 
the injury of apipellant, the order will not be reversed. {People 
V. Divine, 95 Cal. 227 ; Bara Avis Miming Co^ v. Bouscher, 9 
Colo. 385 ; People v. Cochran, 61 Cal. 548 ; Berry v. Missouri 
Pac,, 124 Mo. 223.) 



28 Mont] ToDER v. Reynolds. 189 

An instruction cannot be deemed erroneous if there be any 
evidence, however slight, upon which to base it. (Ooodell v. 
Bluff City Lum. Co., 57 Ark. 203 ; Saauyers v. Drake, 34 Mo. 
App. 472.) 

The mistake in the initials of the plaintiff, in instruction No. 
17, is not ground for reversal. (Salina M. & E. Co. v. Hoyne, 
(Kan. App.) 63 Pac. 660.) 

MR COMHISSIONTER OALLAWAY prepared the opin- 
ion for the court. 

In order to arrive at an understanding of the issues involved 
in this appeal, it is necessary to state the case somewhat in 
detail. 

It appears from the record that one Jacobson and Hyrum 
Graehl were engaged in the grocery business in Butte for some 
Tears prior to 1894 under the name of Jacobson & Graehl, and 
that Lorenzo Graehl bought Jacobson out, probably in 1894, 
and the firm then became Graehl & Graehl. On August 19. 
1890, H. Graehl and A. K Toder executed to Hattie C. Libby 
a note for $300, due in six months after date, and bearing in- 
terest at one per cent per month. On August 22, 1893, H. 
Graehl and A. X. Toder executed to Hattie C. Libby a note 
for $350, due in one year after date, ap'l liearing 
interest at one and one-half per cent, per month. On 
January 22, 1896, Graehl & Graehl and A. K Yoder 
executed to W. A. Clark & Broi a note for $300, due in sixty 
days after date, and bearing interest at one per cent, per 
month. At the time of the trial, Hattie C. Libby had become 
the wife of the plaintiff, Yoder. A bill of sale was introduced 
in evidence, which purports to have been executed by Lorenzo 
to Hyrum Graehl on March 6, 1896, and which conveys to Hy- 
rum all of Lorenzo's right, title and interest in the firm and 
business of Graehl & Graehl for a consideration of $500. After 
executing this bill of sale, Lorenzo went prospecting in Madi- 
son coimty, where he remained some six or seven months. On 



190 YoDBB V. Reynolds. [Max. T.'OS 

March 17, 1896, Hynim Graehl executed and delivered to the 
plaintiff, Toder, a bill of sale, whereby he conveyed all his 
"right, title, and interest in and to the following described per- 
sonal property," describing it in detail — such as "2,000 lbs. 
flour, 300 lbs. com meal, 300 lbs. bacon, 4 chests tea," etc No 
mention is made in this bill of sale of the good will of the busi- 
ness. The plaintiff testified: "On the I7th day of March I 
bought this stock of goods at 101 South Main street. I found 
H. Graehl in possession there. The consideration that I paid 
for that stock of goods was $1,100. I paid it by thobe notes and 
other money that he had borrowed up to that time." The Libby 
notes are indorsed as follows: "March 17, '96. Received pay- 
ment in full to date from A. N". Yoder. Hattie O. Libby." The 
W. A. Clark & Bro. note bears this writing on its fact: "Can- 
celed. Paid for stock. A. N. Toder." It is indorsed: "Pay 
to A. N. Yoder or order without recourse, W. A. Clark & Bro., 
per Alex. J. Johnston, Cash." When the bill of sale from Hy- 
rum Graehl to plaintiff was executed, one Joseph Gradil, a 
brother of Lorenzo and Hyrum, was present, and at the same 
time Hyrum sold and transferred to said Joseph Graehl all of 
the book accounts of the firm of Graehl & Graehl, When these 
legal documents were completed, plaintiff testified that he took 
possession immediately — ^it was then eleven o'clock at night — 
and placed Joseph Graehl in charge as his agent On the next 
day the defendant, who was then sheriff of Silver Bow county, 
acting under a writ of attachment issued in an action wherein 
A. F. Bray was plaintiff and the firm of Graehl & Graehl were 
d-ef endants, took possession of the stock of goods described in the 
bill of sale from Hyrum Graehl to plaintiff, and also took pos- 
session of plaintiff's storeroom. He demanded the keys of plain- 
tiff, and, upon receiving them, put the plaintiff out, locked the 
doors, and kept possession of the storeroom for about forty-five 
days. In due time Bray recovered judgment against the 
Graehls, had execution issued thereon, and the defendant, as 



28 Mont] YoDER v. Reynolds. 191 

such sheriff, sold tlie goods claimed by plaintiff in pursuance 
thereof. The plaintiff then began this suit. 

Plaintiff states his cause of action in two counts. The first 
is in the usual form of an action for damages for the wrongful 
conversion of personal property, the plaintiff praying for judg- 
ment against the defendant in the simi of $1,150. In the second 
cause of action the plaintiff alleges "that on the 18th day of 
March, 1896, he was. the owner and in possession, and entitled 
to the possession, of all the following described property, to- 
wit" Then follows a description of the personal property as 
shoT^Ti in his bill of sale, and then this allegation: "That on 
the said 18th day of March, 1896, plaintiff was then and there 
the owner of said stock of goods, and of a leasehold estate in and 
to the said storeroom and premises, and was engaged in a profit- 
able business in selling and dealing in groceries at retail at No. 
101 South Main street, Butte, Montana." Then, "that on the 
said 18th day of March, 1896, the defendant wrongfully and 
without the consent of plaintiff entered upon the said premises, 
and ousted and ejected plaintiff therefrom, and took possession 
of the said stock of goods, and wholly deprived plaintiff of his 
said stock of goods and of his said storeroom and place of busi- 
ness, and wholly destroyed plaintiff's said business^ to the dam- 
age of .plaintiff in the sum of one thousand dollars," 

The defendant denies generally the allegations of botia counts 
of plaintiff's complaint, and pleads justification as to each. He 
allies that, as the sheriff of Silver Bow countv, he took the 
personal property described in plaintiff's complaint under and 
by virtue of a writ of attachment issued out of the district court 
of his county in an action wherein A. F. "Br&j was plaintiff 
and the firm of Graehl & Graehl were defendants, ?^nd that all 
of the property so attached was the property of Graehl & Graehl 
at the time of the attachment ; "that the plaintiff herein. A, N. 
Toder, claims to have been entitled to the possession, and to 
have been the owner of all the said ppopierty attadied as afore- 
said, and described in the complaint herein, on said March 18, 



192 ToDER 17. Reynolds. [Mar. T.'03 

1896, by virtue of a preteided bill of sale of said property exe- 
cuted on said day to said A. N. Yoder by said Hyrum Qraehl, 
but defendant allies that the said pretended bill of ©ale was a 
covinous and fraudulent transfer, made without valid consider- 
ation in law, not accompanied by immediate aetual and contin- 
ued change of possession, and not an absolute transfer of said 
property as it pretended to be, but a transfer in trubt to secure 
said A. N". Yoder for an individual indebtedness of Hyrum 
Qraehl, contracted long prior to his partnership with Lorenzo 
Graehl as Graehl & Graehl, and with a secret understanding 
with said Yoder that, whatever of said property or its proceeds 
remained after .paying such individual indebtedness, buch. bal- 
ance should be paid to Graehl & Graehl, or revert to them as 
their property ; that said transfer was made with intent to hin- 
der, delay, and defraud the creditors of baid firm of Graehl & 
Graehl, and prevent the enforcement of their demands against 
Graehl & Graehl, and was such a conveyance as would hinder, 
delay, and defraud the creditors of the said Graehl & Graehl." 
In this affirmative defense no justification is attempted to be 
made by defendant for his possession of plaintiffs storeroom. 

The plaintiff, by replication, denies all the affirmative matter 
asserted in the answer. 

It is propier to suggest that the pleadings of the respective 
parties were treated by them as sufficient in the court below. 
Upon the trial the jury found for the defendant From an 
order denying plaintiffs motion for a new trial, he prosecutes 
this ap.peal. 

1. At the trial the plaintiff was asked: "Q. Do you know 
anything relative, to tlio value of the good ^vill of the biisinefts 
which you had purchased there on the I7th day of March ? A. 
Yes ; I think I do. Q. What was the good will of that busi- 
ness worth?'' This latter question was objected to "for the 
reason that it calls for a speculation and is too remote." The 
court sustained the objection, and plaintiff assigns error. The 
court's ruling was correct, but for other reasons than those 



28 Mont] YoDER v. R4EYNOLDS. 193 

urged. Ifo foundatioii was laid for any such evidence either 
in the pleadings or in the previous testimony of the plaintiff. 
The good willof a business is property, transferable like any 
other (Section 1372, Civil Code), but it does not appear that 
the plaintiff ever purchased the good will of the firm of Graehl 

6 Graehl. On the contrary, the plaintiff received from Hyrum 
Graehl an itemized- bill of sale, particularly specifying the 
property sold, and evidence could not be received to add to the 
terms of this writing, so as to show that the good will formed a 
part of the act of sale. (Heheri v. Dupaty, 42 La. Ann. 343, 

7 South. 580.) 

The question asked called for evidence which was wholly in- 
admissible for any purpose and it was therefore t;ubject to a 
mere general objection, which that urged was, in effect. 

2. The plaintiff was asked the following question: "Tak- 
ing into consideration the fact that you had a loasehold interest 
in that storeroom, and that you were deprived of the possession 
of the storeroom, and that you were deprived of a building to 
carry on* the business, by reason of the sheriff of Silver. Bow 
county, Montana, taking possession of that storeroom, what 
amount of damapre did you suffer by reason of the taking of 
the building and good will of the business and storeroom by the 
sheriff?" This was objected to "for the reason that such dam- 
age is merely speculative or prospective damage, and does not 
relate to the actual damage, and there has been no evidence 
offered tending to show that the business was carried on there at 
any profit, but, rather, at a loss." The court sustained the ob- 
jection, to which plaintiff takes exception. 

In this ruling the court did not err. The objection amounted 
to a mere general one. When an "offor of testimony includes 
that which is admissible with that which is not, and the compe- 
tent and incom,petent are blended together, it is not the duty of 
the court to separate the legal from the illegal, but the whole 
may be rejected when objection is made," and the party against 

Vol. XXVIII— IS 



194 YoDER V. Reynolds. [Mar. T.'03 

whom the ruling is made cannot complain because the objection 
is too general. (Jones on Evidence, Sec. 897.) 

3. The plaintiff complains because the court refused to 
strike out certain incompetent testimony of the witness Bray. 
An inspection of the record discloses the fact that the plaintiff 
sat by and allowed it to go to the jury without objection, and 
afterward moved to strike it out If the testimony had been 
favorable to plaintiff, presumably he would have been satisfied 
to allow it to remain. In permitting it to be adduci»d without 
objection, he took the chance of being injured, should it prove 
unfavorable. It is the settled law that one must object to im- 
proper testimony when it is offered, or abide the result The 
failure to object at the proper time waives the error. (Jones 
on Evidence, Sec. 898 ; Hughes v. Ward, 38 Kan. 452, 16 Pac. 
810; Cleveland C, C. & I. Ry. Co. v. Wyrumt, 134 Ind. 681, 
34 K E. 569; Dallmeyer v. Dallmeyer (Pa.), 16 Atl. 72; 
Chicago, St. L. & P. R. R. Co. v. Champion, 9 Ind. App. 510, 
36 K E. 221 ; Perkins v. BroMierd Quarry Co. (Com. PI.), 32 
N. T. Supp. 230; Haverly v. Elliott, 39 Tsfeb. 201, 57 N. W. 
1010 ; Vermillion Artesian Well, etc. Co. v. City of Vermillion, 
6 S. Dak. 466, 61 K W. 802.) An exception to this rule is that 
when testimony is offered which may be competent upon the 
showing made, and its incompetency is afterwards developed, 
either by the subsequent testimony of the witness, or upon his 
cross-examination, or when incompetent testimony is volun- 
teered by the witness in response to a proper question, it should 
be stricken out on motion. 

4. The court gave the jury the following instruction at the 
request of the defendant: (No. 1) "If you believe from the 
evidence that the alleged transfer of his interest in the partner- 
ship from Lorenzo Graehl to Hyrum Graehl was made without 
consideration or secretly, or for any fraudulent puirpose, or to 
allow said Hyrum Graehl to make a transfer of the partnership 
property to Toder upon the notes given in evidence, and with 
intent to hinder, delay, and defraud creditors of the partner- 



28 Mout] YoDBB V. Reynolds. 195 

ship in that way, then you must find that the bill of sale or 
transfer from Hyrum Graehl to A. N". Toder of the stock of 
goods afterwards attached was not a legal or Valid oonveyanoe, 
and did not prevent the levy of the attachment by the creditors. 
And if you find that the plaintiff, Toder, was not the legal or 
real owner of the notes introduced in evidence, at the time of 
the said transfer of the stock of goods, but the facts oonoeming 
the true ownership of said notes were concealed for the purpose 
or with the designed effect of defrauding or defeating creditors 
of said partnership, or^that the indebtedness evidenced by the 
said notes, or any of them, was the individual indebtedness of 
said Hyrum Graehl, and not of the partnership, and that the 
partnership still existed as to the creditors up to the time of 
such alleged sale, then you must disregard such transfer, as the 
same would not be supported, in law, under such facts, but 
would be void as to the rights of the creditors of said partner- 
shij);." This was error. This instruction practically told the 
jury that if Lorenzo Graehl had transferred his interest in the 
partnership to Hyrum without consideration or secretly, or for 
any fraudulent purpose, or to enable Hyrum to commit a fraud, 
then it should find against the plaintiff, even though he be an 
innocent purchaser in good faith, and for a valuable consider- 
ation. The bill of sale might have been fraudulent between the 
Graehls, but how could that have prejudiced the rights of one 
who knew nothing of such fraud ? This instruction also erro- 
neously told the jury, in effect, that the plaintiff did not have 
the right to secure himself by a bona fide purchase of the prop- 
erty, even though he was liable for the payment of the three 
notes introduced in evidence. 

Another ground of criticism of this instruction i.s that there 
was no evidence adduced by either plaintiff or defendant as to 
whether llie ownership of the not^ was concealed by any one. 
Instructions must be warranted by the pleadings and evidence. 
(Brownell v. McCorwdck, 7 Mont 12, 14 Pac. 651 ; Kelley v. 
Cable Co., 7 Mont 70, 14 Pac. 633 ; Walsh v. Mueller, 16 



196 YoDEB V. Ebtnolds. [Mar. T.'OS 

Mont 180, 40 Pac- 292 ; Goodkvnd v. Oillicmi, 19 Mont. 885, 
48 Pac. 548.) But we fail to see what difference it oonld nuake 
to the creditors of the firm of Graehl & Graehl whether the 
ownership of the notes was in the plaintiff or Hattio C. libby, 
so long as the firm was liable for the piayment thereof. 

5. Instruction No. 2 is erroneous because not warranted by 
the evidence. The alleged sale to plaintiff was made by Hyrum 
Graehl, and not by the firm of Graehl & Graehl. This is one 
of the undisputed facts in the case. 

6. We cannot approve of instruction No. 5. It is argu- 
mentative in fonn, and likely to prejudice the jury, * The prin- 
cip^les of law treated by it may be easily stated to the jury with- 
out resort to innuendo. 

7. In instruction No. 6 the court commented 02 the weight 
to be given the evidence of the parties to the action This was 
error. "The jury being the sole judges of the weight to be 
given to the testimony, the court should not tell them what par- 
ticular weight to give to any portion thereof." (State v. Olei/ni, 
17 Mont. 17, 41 Pac. 998, 31 L. R. A. 294, 52 Am, St Rep. 
655 ; Wastl v. Montana Union R. R. Co., 17 Mont 213, 42 Pac. 
772 ; Knowles v. Nixon, 17 Mont 473, 43 Pac 628 ; State v. 
Gay, 18 Mont 51, 44 Pac 411.) And while the court gave the 
true rule at the end of this somewhat lengthy instrnction, that 
did not remove or overcome the objectionable feature men- 
tioned ; as completed, different portions of the instruction are 
conflicting, and it is therefore misleading. 

8. Instruction No. 8 is as follows : "If you find from the 
evidence that the alleged sale from Lorenzo Graehl to Hyrum 
Graehl about March 6, 1896, was not miade for valuable con- 
sideration, or in good faith as to the creditors, and was not pub- 
lished or given notice of to the creditors, but remained secret, 
then you will not consider such transfer as vesting the- title to 
said property in Hyrum Graehl alone ; but if you find that tiie 
Graehls or Hyrum Graehl continued to carry on business at the 
same place in the same manner as before, under the name and 



28 Mont] YoDEB v. Reynolds. 197 

style of Graehl & Graehl^ tken a transfer from him alone to the 
plaintiff, Yoder, would not be valid as against the creditors of 
said firm." This is enpneous. Whethei* the bill of sale from 
Lorenzo to Hyrum was fraudulent or not, it conveyed to Hyrum 
the legal title to the property, so far as Lorenzo was concerned, 
and placed Hyrum in a position to give an absolutely good title 
to one purchasing in good faith, for a valuable consideration, 
and without notioe of existing defects. In order. to vitiate the 
sale from Hyrum Graehl to plaintiff, it was incumbent uppn the 
defendant to affirmatively connect the plaintiff with the fraud, 
if any there was. 

9. Instruction No. 9 is incorrect because not warranted by 
the evidence. That Lorenzo Graehl conveyed his interest in the 
partnership to Hyrum by bill of sale dated March 6, 1896, was 
conceded. Therefore this instruction is erroneous for the same 
reasons given as to instruction 8. 

10. Instruction No. 16 reads,, in part, as follows: "The 
jury is instructed that the burden of proof is on the plaintiff to 
stow by the preponderance or greater weight of the evidence 
his right to the possession of the property in controversy." In 
this instruction the court should not have used the words "the 
property in controversy." The plaintiff's leasehold interest in 
the storeroom was a part of the proiperty in controversy, and 
this the defendant did not levy upon. So far as the record is 
concerned, the defendant was a trespasser in the storeroom, of 
"which he retained possession for about forty-fivt* days. While 
there was no proof as to any special damage sustained by plain- 
tiff upon this branch of the case, he was, under the proofs ad- 
duced, entitled to nominal damages for the defendant's trespass. 

11. Defendant's instruction 17 is erroneous for the same 
reason assigned as to instruction No. 16. It should also have 
correctly stated the initials of plaintiff's name. 

12. The court instructed the jury at great length. Eighteen 
pages of the record are taken up by the instinictions. Whether 
they are all in the record, we do not know, but it appears to eon- 



198 Foley v. Kleinschmidt et al. [Mar. T/08 

tain over thirty of theriL Those before lis were not numbered 
by the conrt, and we have been obliged to designate them by the 
numbers given in appellant's brief. 

How the jury could have been aided in its labors by this mass 
of reading is conjectural. Aside from being of such great 
length, the instructions are replete with repetition and legal 
verbiageL Instructions are given to a jury to enlighten, not to 
confuse, it. The court should not attempt to instruct a jury as 
to all the law extant upon the particular subject under consider- 
ation. In the case at bar a few brief and dear instructions 
would have been ample to aid the jury in its investigations. 

For the reasons given, we are of the opinion that the order 
should be reversed, and the cause remanded for a new trial. 

Per Curiam. — ^For the reasons given in the foregoing opin- 
ion, the order is reversed, and the cause is remanded for a new 
trial. 



FOLEY, Administrator, Appellant, v. KLEINSCHMIDT 
et al.. Respondents. 

(No. 1,570.) 
(Submitted May 12, 1903. Decided May 13, 1903.) 

A ttorney — Compensation — Conditional Contract — Client's 
Dismissal of Appeal — Effect 

Where an attorney contracts to perform services in pending suits for a certain 
snm, a portion of whicn is to be paid In installments npon tbeir favorable 
termination, and sues upon the contract, the fact that adverse Judgments 
were rendered will defeat his recovery, though the client, on the advice 
of another attorney, dismissed appeals therefrom ; the proper remedy being 
to sue on a quantum meruit. 

Appeal from District Court, Lewis and Clarice CovmJty; 8. 
Mclntire, Judge. 



28 Mont] Foley v. Kleinschmidt et al. 199 

Action by B. H. Foley, as administrator of the estate of 
Rollin P. Blanchard, against Albert Kleansdunidt and others. 
From a judgment for defendants, entered on a nonsuit, and 
from an order denying a new trial, p-laintiff appeals. Affirmed. 

Mr. Charles J. Geier, for Appellant 

Mr. Massena Bullard, for Respondents. 

MR. CHIEF JUSTICE BRANTLY delivered the opinion 
of the court 

This action was brought to recover of the defendants a judg- 
ment for a balance alleged to be due plaintiff's intestate for legal 

services rendered by him for the defendants. The complaint 

\ 

?oiitains two causes of action. The first declares upon a con- 
tract in writing, under the termB of which the deceased under- 
took to prepare briefs in two certain causes, in which the de- 
fendants herein were defendants, for the stipulated sum of 
$750, $200 of which was to be paid down, and the balance in 
installments of $250 each, upon the determination of the tAvo 
causes, respectively, and entry of final judgments therein in 
favor of the defendants. The breach of the contract upon which 
recovery is claimed is alleged as follows : "That plaintiff well, 
promptly, and to defendants' entire satisfaction, prepared and 
furnished said briefs," and "that defendants, though often 
tnereto requested, have not paid said sum, or any part thereof, 
exceeding about $260." There is no allegation that said causes 
have been determined in favor of the defendants, or at all. The 
second cause of action is upon a quantum meruit for services 
rendered in the same causes at the request of the defendants, of 
the alleged value of $1,000, no part of which has been paid by 
the defendants. Judgment is demanded for the sum of $1,500. 
At the hearing the second cause of action was abandoned, evi- 
dence being offered in support of the first only. This evidence 
established without contradiction — though it w.\s made to ap- 



200 Foley v. Kleinschmidt et al. [Mar. T/03 

pear that the briefs had been prepared and furnished to the de- 
fendants in accordance with the terms of the contract. — that both 
of the causes mentioned in the contract had resulted in final 
judgments against the defendants ; that appeals had been taken^ 
therefrom to this court ; and that subsequently the appeals were 
dismissed by the defendants under the advice of other counsel 
regularly em,pJloyed in the causes. At the close of plaintiff's 
evidence, and upon motion of the defendants, a nonsuit was 
granted, and judgment entered in favor of the defendants for 
costs. From this judgment, and an, order denying a new trial, 
plaintiff appealed. The plaintiff having died pending his ap- 
peals, the present plaintiff, Bernard H. Foley, administrator, 
was substituted in his stead. 

Complaint is made that the district court erred in granting 
the motion for nonsuit and directing judgment for defendants. 
One of the grounds of the motion was that, under the terms of 
the contract, nothing was to be paid, besides the cash payment, 
except upon the entry of final judgment in one or both of the 
causes mentioned therein in favor of defendants, and that the 
evidence showed affirmatively that adverse judgments had been 
entered in both. The action of the district court was therefore 
correct The contract was an entire contract, anJ payment 
thereunder was due upon a contingency. No recovery could be 
had thereon without allegation and ,p,roof that the contingency 
provided for therein liad happened ; nor was the f^ituation aided 
in any way by the fact that the appeals to this court were dis- 
missed by the defendants themselves under the advice of other 
counsel in the causes, thus preventing the possibility of a favor- 
able judgment upon the determination of the appeals. If plain- 
tiff had any right to recover on the groimd that the happening 
of tlie contingency was prevented by the act of the defendants, 
he could still not recover upon the contract, but must be rele- 
gated to his action upon a quanium meruit for the value of the 
services actually rendered. This ease falls entirely within the 



28 Mont.] BoE v. Hawes et al. 201 

principle declared in Harris v. Boot (decided by this court at 
the present term), 28 Mont. — , 72 Pac. 429. 

There being no other error assigned which shows any merit, 
the judgment and ord^r must be affirmed. 

Affirmed. 



I 28 iOl\ 

80 m 



BOE, Appellant v. HAWES et al.. Respondents. 

(No. 1,571.) 

Appeai — Implied Finding — Record on Appeal — Preservation 
of Evidence — Review, 

In an action tried to the court, defendants denied all the allegations of the 
complaint and specially pleaded the statute of limitations. On appeal by 
plaintiff from the judgment, the only assigned error was that **the court 
erred in giving Judgment against appellant, for in so doing he evidently 
held the statute of limitations had run against the action." Heldj that as 
there was nothing in the record disclosing the reason why the court found 
and entered judgment in favor of defendants, it would be presumed — 
under the doctrine of implied findings — that the court found that the 
plaintiff failed to make out a prima facie case on the merits, hence, the 
evidence not being in the' record, the judgment must be affirmed. 

Appeal from District Conri, Flathead County; D. F. Smith, 
Judge. 

AcTiox by Christ Boe against Ira Hawes and others. From 
a judgment in favor of defendants, plaintiff appijals. Affirmed. 

Mr, David Ross, and Mr. F. Joe Rice, for Appellant. 

Per Cublam. — This action was brought against the defend- 
ants as sureties on the official bond of one Eugene M McCarthy, 
constable. In the answer to the plaintiff's complaint, defend- 
ants denied all the allegations thereof, and speeially pleaded 
the statute of limitations. The cause was tried to the court 
without a jury, and witnesses were sworn for the plaintiff. The 



202 CooMBE ET AL. V. Knox et al. [Mef. T/03 

court found for and eoatered judgmeiiit in favor of the defend- 
ants and against the plaintiff. The evidence is not in the record. 
Plaintiff appeals from the judgment 

The only assigned error is that "the court erred in giving 
judgment against appellant, for in so doing he evidently held 
the statute of limitations had run against the action." There 
i.^ not anything in the record disclosing the reason why the oourt 
found for and entered judgment in favor of the defendants. 
While not passing upon the question whether the court erred 
in its decision upon the point as to the statute of limitations — 
if it made one — we may and do say that, even if it erroneously 
found that the statute had run, it would not f'>llow that the 
judgment should be reversed, for the reason that the court may 
have found that the evidence of the plaintiff did not make out 
a prima facie case on the merits. 

Under the doctrine of implied findings which prevails in this 
state, it must be presumed that the court correctly found in 
favor of the defendants. 

There not being any of the evidence in the record, we cannot 
say that the court erred in finding for the defendants. 

Affirmed, 



COOMBE ET AL., Appellants, v, KNOX et al.. 
Respondents. 

(No. 1,572.) 
(Submitted May 13, 1903. Decided May 18, 1903.) 

Attorney's Lien — Foreclosure — Pleading 

In an action against McDonald, Knox, Maloney and Cobban to establish and 
enforce an attorney's lien the complaint alleered: that plaintiffs were em- 
ployed by McDonald, as her attorneys, to prosecute an action on her behalf 
against Knox in the district court; that they performed the services re- 



28 Mont] CooMBE bt al. v. Knox et al. 203 

quired of them, and obtained a Judgment in their client's fayor for 
(331.65; that such action had been tried in a Justice's court, and from a 
judgment rendered therein in favor of their client an appeal had been 
taken to the district court by the losing party ; that the ordinary under- 
taking had been given with the defendants Maloney and Cobban as sureties 
thereon; that for the services rendered by plaintiffs. $300 was a reason- 
able attorney's fee ; that no part thereof had been paid ; and that no part 
of the Judgment obtained by McDonald in the district court had ever been 
IMiid. To this complaint separate demurrers were interposed by the de- 
fendants, the grounds of which were: (1) Misjoinder of parties; (2) mis- 
Joinder of causes of action ; and (3) failure to state facts sufBdent to 
constitute a cause of action. Held, that the demurrers were not well 
taken. 

Appeal from District Court, Silver Bow County; John Li/ndr 
say, Judge. 

Action by R. Coombe and 0. M. Hall agaiai^t Mary Mc- 
Donald, Jessie C. Knox, J. H. Maloney and R. M. CJobban. 
The defendant McDonald made default From a judgment for 
costs entered in favor of defendants Knox, Maloney and Cob- 
ban, plaintiffs appeal. Eeversed. 

Mr, 0. M. Hall, for Appellants. 

Mr. C. D. Tillinghast, and Mr. John N. Kirh, for Hespond- 



MR. JUSTICE HOLLOW AY delivered the opdaion of the 
oourt. 

This action was brought by the appellants, who were plain- 
tiffs below, to establish and enforce an attorney's 1^'en. The 
eoitnplaint alleges that the plaintiffs were emplovcd by one 
Mary McDonald as her attorneys to prosecute a cause of action 
on her behalf against Jessie C. Knox, in the district court of 
Silver Bow county ; that they performed the services required 
of them and obtained a judgment in their client's favor for 
$331.65 ; that such action had been commenced and tried in a 
justice of the peace oourt, and from a judgment rendered there- 
in in favor of McDonald an appeal had been taken to the dis- 
trict court by the losing party ; and that the ordinary under- 



204 OooMBB ET AL. V. Knox et al. [Mar. T.'OS 

taking on appeal had been given, with the defendants Maloney 
and Cobban aB sureties thereon. A copy of such undertaking 
is attached to and made a part of the complaint, to only one 
paragraph of which it is necessary to make reference: '^e do 
further, in consideration thereof and the premises, jointly and 
severally undertake and promise * * * that she (appel- 
lant) will pay any judgment and costs that may le recovered 
against her in said action in the district court, not exceeding 
the sum of $300, to which amount we acknowledge ourselves 
jointly and severally bound. 

"J. H. Maloney, 
"R M. Cobban." 

The complaint then alleges that for the services rendered by 
these plaintiffs, $300 is a reasonable attorney's fee ; that no part 
of it has been paid ; and that no part of the judgment obtained 
by McDonald against Knox in the district court has ever been 
paid. The defendant McDonald made default. To the com- 
plaint a separate demurrer was interposed bv the defendant 
Knox, and a like separate demurrer by the defendants Maloney 
and Cobban. The grounds of the demurrers are: (1) Misjoin- 
der of parties defendant; (2) misjoinder of causes of action; 
and (3) that the complaint does not state facts sufficient to con- 
jititute a cause of action. These demurrers were by the court 
sustained and judgment for costs entered in favor of the de- 
fendants Knox, Malonev and Cobban, from which judgment 
this api)eal is prosecuted. 

Section 430 of the Code of Civil Prcxicduro provides : "The 
compensation of an attorney and counselor for his services is 
governed by agreement, express or implied, which is not re- 
strained l)y law. From the commencement of an action or the 
service of an answer containing a counterclaini, the attorney 
who appears for a party has a lien upon his client's cause of 
action or counterclaim, which attaches to a verdict, report, de- 
cision or judgment in his client's favor and the proceeds thereof 
in whose ever hands they may come ; and cannot be affected by 
any settlement between tlie pai'ties before or aft<*r judgment" 



28 Mont] CooMBE et al. v. Knox et ai*. 205 

The complaint, then, in so far at least as any criticism is made 
upon it .by respondents, does allege facts sufficient to show that 
the plaintiffs herein had a lien upon their client^s cause of ac- 
tion in McDonald v. Knox, which lien attached to th. judgment 
recovered by McDonald as soon as it was rendeied. 

The complaint also alleges that no part of the judgment has 
ever been paid an.d that its payment is secured by the appeal 
bond upon which Maloney and C!obban are sureties. It is not 
essential to the existence of the lien that the amount of the 
attorney fee should be definitely fixed. The amoiuit due must 
be alleged either by stating a fixed sunn or by averring the rea- 
s<-Tiable value of the services rendered, as is done in this in- 
stance. (4 Cyc. Law & Pro., 1022.) This is an equitable ac- 
tion, brought to foreclose a lien, and ever person interested in 
the subject-matter of the controversy is a proper pprty to the 
proceedings. Mrs. Knox, the judgment debtor, was properly 
made a party and is in no position to complain, for the payment 
of money into court by her, sufficient to satisfy this lien would 
operate to discharge, pro tcmto, her obligation to McDonald. 
The attorney seeking to enforce his lien may bring an independ- 
ent action against his client or the adverse party, or both. (4 
Cyc. Law & Pro., 1021, and cases cited.) 

Are Maloney and Cobban proper parties defendant? The 
lien granted by the statute operates as an equitable assignment 
of so much of the judgment as will satisfy the lien, und, for the 
purpose of securing payment, subrogates the aLtomey to the 
right of his client to that extent (4 Cyc. Law & Pro., 1005.) 
Any security, therefore, which the client has for the payment 
of his judgment, may be availed of for the benefit of the attor- 
ney. The appeal bond given by Knox, upon which Maloney 
and Cobban are sureties, was for the benefit of McDonald to 
secure the payment of her judgment ; and to the extent which 
that judgment is by operation of law equitably assigned to her 
attorneys, is the security for its payment liable 1o enforcement 
by such attorneys. In Claa-h v. Sullivan, 3 K D. 280, 55 N". 
W. 733, the same question was before the supreme court of 



206 CooMBE BT Ai*. V. Knox bt al. [Mar. T/08 

North Dakota, and it was there decided that the attomey^s lien 
extends not only to the judgment recovered by liis client, but 
attaches to any bond or undertaking given to secure 
ment of that judgment To the same effect are the d 
Leighton v. Serveson, 8 S. D. 350, 66 K W. 938 ; 
V. Lord, 36 Oregon, 412, 59 Pac. 710; Davidson v. 
ComWs, 26 Colo. 549, 59 Pac 46 ; Newbert v. Cm 
50 Me. 231, 79 Amu Dee. 612. There ^ 
no misjoinder of parties defendant Ntitiher - 
rny misjoinder of causes of acstion. In f^ 
is but one cause of action stated in the ( 
a cause of action upon the foreclosure of an attorney 
every sense analogous to the foreclosure of a mechani 
mortgage. In Elliott v. Leopard Mng. Co., 52 Cfll 
supreme court of California had before it a like cause 
"where the same relief wa^ sought and where a demu: 
fying the same grounds as those in the case at bar was inter- 
posed, and held that there was no misjoinder of causes of ac- 
tion or of parties defendant 

For the reasons stated the judgment is reversed and the cause 
remanded to the lower court with directions to ovPirrule the 
demurrer. 

Reversed and remanded. 



28 Mont.] In be Weston. 207 



In be WESTON. 
RYA]Sr, Contestant, v. WESTON, Contestee. j|^ 

(No. 1,927.) |130 538 

(Submitted March 19, 190S. Decided May 18, 1903. 

Constitution — Supreme Cmvrt — Jvrisdiciion — Original — 
Appellate — Supervisory Control — District Judges — Dis- 
qualification — Bias or Prejudice — Order Substituting One 
District Judge for Another, 

1. The Act of the Eighth legislative assembly, entitled "An Act to provide 
for the designation and appointment of a district Judge to temporarily 
hold conrt in another district than his own, and to perform the official 
duties of the district Judge of such district, where such Judge is biased 
or prejudiced or for any cause disqualified from performing the same" 
(Laws of 1903, Chapter 42), held to be unconstitutional. 

2. Constitution, Article III, Section 29, providing that "the provisions of this 
constitution are mandatory and prohibitory, unless by express words they 
are declared to be otherwise," is conclusive upon the legislature, and pre« 
vents the enactment of any law which has for its purpose the extension 
or limitation of the powers conferred by the constitution. 

3. The power to issue, hear, and determine the six original writs enumerated 
t Constitution, Art. VIII, Sec. 3), marks the limit of the original Jurisdic- 
tion of the supreme court. 

4. Under Constitution, Article YIII, the ordinary appellate power of the 
supreme court is limited to a review of the decision of the lower court, 
and a Judgment affirming, modifying or reversing such decision, — with the 
strictly ancillary power to issue, hear and determine such original and 
remedial writs as may be necessary or proper to the complete exercise of 
this appellate Jurisdiction. 

5. Under Constitution, Article VIII, Section 2, the power of supervisory con- 
trol is lodged in the supreme court sitting as an organized Judicial body, 
and such power operates only upon inferior courts; it cannot extend to 
or affect any other body or any individual or individuals. 

6. In the absence of a statute declaring bias or prejudice on the part of a 
Judge to be a disqualification, bias or prejudice does not constitute a dis- 
qualification. 

7. Under Constitution, Article IV, Section 1, the legislature cannot impose 
upon the supreme court, or its Justices, the performance of an act not 
Judicial in its character but purely ministerial or executive. 

8. Quaere: Has the supreme court, under its power of supervisory control, 
power to control a lower court, by prohibiting the Judge thereof from pro- 
ceeding with the trial of a cause, if it were made manifest that he was for 
any reason^ incapable of giving either of the parties a fair trial ? 

Election contest by Patrick V. Ryaa against John Weston, 
in which contestant instituted an original x>roceeding in the 



208 In re Weston. [Mar. T.'03 

supreme court under Chapter 42, Laws of 1903, for the ap- 
pointment of a district judge to temporarily hold court in the 
district in whidi the contest was commenced. Proceedings dis- 
missed. 

Statement of the Case. 

This is an original jpopooeeding instituted in this court by 
Patrick V. Kyan for the purpose of securing an order designat- 
ing a judge of some district other than the Second judicial dis- 
trict, to try and determine the contested election case of Ryan 
V. WestoTi. The proceeding is taken under the provisions of 
an Act of the Eighth legislative assembly^ of Montana, desig- 
nated as "Substitute for Senate Bill iS^'o. 71," entitled "An Act 
to provide for the designation and appointment of a district 
judge to temporarily hold court in another district than his own, 
and to perform the official duties of the district judge of such 
district where such judge is biased or prejudiced or for any 
cause disqualified from performing the same," which is as fol- 
lows : 

"Be it enacted by the Legislative Assembly of the state of 
Montana : 

"Section 1. When a party to a civil action or proceeding 
pending in any district court of the state has rearon or cause 
to believe that such party cannot obtain a fair and impartial 
trial or determination of sudi action or proceeding, or of any 
motion, or application therein made, by reason of the bias or 
prejudice arising from any cause, of the district judge presid- 
ing in the court, or any department thereof where such action, 
proceeding, motion or application is pending, or where such 
judge so presiding is, from any other, cause, disqualified from 
acting therein, such party or his attorney may first request the 
judge of the district court wherein such action, proceeding, 
motion or application is pending, to sign a petition addressed 
to, and asking, the supreme court, without atitiag grounds 
therefor, to designate and appoint a judge of some other ju- 



28 Mont] In be Weston. 209 

dicial district of this state to hear, try and determine such ac- 
tion, proceeding, motion or a^pjplication, and if such petition be 
signed by the district judge to whom the same is presented the 
supreme court shall on presentation, thereof make an order des- 
ignating and appointing the judge of some judicial district of 
this state to hear, try and determine such action, proceeding, 
motion or application as in this Act provided ; but if the district 
judge to whom such petition is presented refuses, or for the 
period of three days fails, to sign said petition, the party on 
whose behalf the same is presented may, by a petition verified 
by the affidavit of petitioner or his agent or attorney setting 
forth such bias or .prejudice or other grounds of disqualification 
and the facts upon which the same is based, and the failure or. 
refusal of the judge of the district court or department thereof 
wherein such action, proceeding, motion or application is pend- 
ing to sign a petition for the appointment of another judge as 
hereinabove provided, petition the supreme court, or the justices 
thereof, to designate and appoint a district judge* of some other 
judicial district of this state, to act in such cause ; and the su- 
preme court, or any two justices thereof, may upon a summary 
hearing of such petition in court or ehambers, with any further 
showing which may be by the court or justices deemed proper, 
make an order designating and appointing the judge of any 
judicial district of the state other than that in which such ac- 
tion, proceeding motion or application is pending, to appear in 
the district in which such action, proceeding, motion or appli- 
cation is pending, at some proper and convenient time and pre- 
side at the trial of such action, or other matter naentioned in 
the order, and to determine the same, and to do vrny and all ju- 
dicial acts neoeasary, .pjroper and lawful in and about the 
adjudication and determination thereof, and in and about ad- 
ministering proper relief therein with the same force and effect 
as if done or ordered by the judge of the district wherein such 
matter is pending. 

"Sec 2. Uipon such order being made and filed in the action 
or proceeding therein mentioned the judge or judges of the disr 
Vol. xxvin~i4 



210 In be Webtokt. [Mar. T.'OS 

trict court wherein soich action or proceeding is pei-ding shall 
not proceed further in such action or proceeding or try or de- 
cide the same, nor do any other judicial act therein except upon 
consent of the parties thereto or their attorneys in writing: 

"Sec. 3. The district judge designated and apjyointed in 
the order of the siipreme court in the cases in this Act provided 
shall have full power and authority to preside at the trial of and 
to try and decide such action, proceeding, motiori or application 
mentioned in such order and to do all acts and thmgs lawful 
and proper to be done, in court or at chambers, in and about 
the trial, adjudication, decision and granting and tidministering 
all proper and lawful remedies and relief and enforcing the 
same in said action, .proceeding, motion or application men- 
tioned in such order of the supreme court as could be done by 
a judge of the judicial district wherein such action, proceeding, 
motion or application is pending; and upon receiving a copy 
of such order of the supreme court it shall be the duty of the 
district judge therein designated and appointed, to appear at 
the county seat of the county in which such action, proceeding, 
motion <:«• application is pending, at some proper and convenient 
time and try the same, but if from any cause he should fail so 
to do, tho supreme court may by its order designate another dis^ 
trict judge to do the same, who shall be vested with like powers 
in such action, proceeding, motion or application: provided, 
that neither party shall petition the supreme court more than 
once in the same action or proceeding to designate and appoint 
another judge to act therein under the provision;! of this Act, 
except in oases where the district judge previously appointed 
to act therein has failed from any cause so to do. 

"Sec. 4. A district judge designated and appointed to hold 
court in another district pursuant to the provisions of this Act 
shall be paid his actual expenses, to be allowed by the state 
board of examiners and paid in the same manner tis his regular 
salary. 

"Sec. 5. This Act shall be in full force and oHFeot from and 
after its passage and approval." (Chapter 42, Laws of 1903.) 



I 



28 Mont] In be Weston. 211 

Upon the filing of the petition this court, on. its own motion, 
directed an order to be issued to the district judge in whose de- 
partment the case of Byan v. Weston is pending, and to the con- 
testee^ to show cause, if any they had, why the reKef prayed 
for should not be granted, and directed a hearing upon the 
return thereof. At the hearing counsel for the district judge 
and for the conteetee filed a motion to dismiss the proceedings, 
rpon the ground that substitute for Senate Bill ]S"o. 71 is mi- 
oonstitutional, and that this court has no jurisdiction to enter- 
tain the petition or to grant the relief prayed for. Upon this 
motion the questions involved were argued- and submitted for 
determination. 

Mr. W, E. Carroll, and Mr, E. N. Harwood, for Contestant. 



I Mr. Lewis P. Forestell, Messrs. Toole <& Bach, hr:A Messrs. 

Carpenter & Carpenter, for Contestee. 

; MB. JUSTICE HOLLOWAY, after stating the case, d^ 

j livered the opinion of the courts 

I "The source of all power vested in the supreme court is the 

constitution of the state, and in it must be found the measure 
of jurisdiction." The foregoing succinct statement taken from 
the brief of the petitioner in the proceedings No. 1,928 (In re 
Application of the Boston & MonJtana Consol. Copper & Silver 
Mvn. Co., 28 Mont. 221, 72 Pac. 1103), correctly lays the foun- 
dation for determination of the question involved in this contro- 
versy. The general rule, repeatedly affirmed and now well un- 
derstood, that the constitution of the United States represents 
a grant of power by the several states and the inhab.'tants there- 
of to the general govenrment, while the constitutions of the sevr 
eral states operate upon the lawmaking branches of those gov- 
ermnents as limitations of authority, must be underutood and 
considered in this connection with the qualification which our 
own state constitution has attached, that "the provisions of this 
constitution are mandatory and prohibitory, unlesb by express 



212 In be Weston. [Mar. T.'03 

words they axe declared to be otherwise." (Section 29, Article 
III, Constitution of Montana,) This declaration can have but 
one meaning — that, with reference to these subjeetc upon which 
the constitution assumes to speak, its declarations shall be con- 
clusive upon the legislature, and shall prevent the enactment of 
any law which has for its purpose the extension or limitation 
of the powers which they confer. An examination of our con- 
stitution discloses an attempt on the part of its framers to de- 
fine the jurisdiction of this court, and such definition must \>e 
accepted as a final declaration upon that subject: (1) The 
supreme court shall have appellate jurisdiction only, except as 
otherwise provided by this constitution (Section 2, Article 
VIII), and shall have power to issue, hear, and determine sudi 
original and remedial writs as may be necessary or proper to 
the complete exercise of its appellate jurisdiction (Seciion 3, 
Article VIII). (2) It shall have general supervisory control 
over all inferior courts, under such regulations and: limitations 
as may be prescribed by law. (Section 2, Article VIII.) (3) 
It shall have discretionary power to issue, hear and determine 
writs of haieas corpus, nuindamus, quo waaranto, certiorari, 
prohibition, and injunction. (Section 3, Article VIII.) 

For the purpose of this discussion, these are transposed, and, 
will be considered in this order: (1) original jurisdiction ; (2) 
appellate jurisdiction; and (3) supervisory jurisdiction. 

1. Original Jurisdiction. 

The power to issue, hear, and determine the six original writs 
enumerated above marks the limit of the original jurisdiction 
of this court* The scope and purpose of these writs i»re too well 
defined and understood to require particular attertion. They 
are essentially prerogative writs. They were so denominated 
at common law, and issued only on behalf of tho state; and, if 
used for private remedy, it was only upon leave granted, and 
then in the name of the state. They wer^ never preeumed to be 
ordinary writs applicable to private oontroversies, 9nd issuable 



38 Mont] In be Weston. 213 

as a matter of course. {Attorney Oerusral v. Railroad Compor 
nies, 35 Wis. 425 ; State ex rel. Claa-Jce v. Moron, 24 Mont. 
433, 63 Pac 390 ; Staie ex rel. Anaconda Copper Mining Co, 
et d. V. Dist. Court, 25 Mont. 621, 65 Paa 1020.) It can 
hardly be seriously contended that the exercise of the appoint- 
ing power sought to be conferred by the Act under considera- 
tion would fall within the purviewi of any one' of these writs, 
or within the original jurisdiction of this court Indeed, a 
direction of this court designating a nonresident judge to sit 
in lieu of the one complained of would not be a writ at all, but 
simply an order which might be signed by the justices them- 
selves, and which would not even require the seal of the court 
to authenticate it It may be true that, upon the failure of the 
re ident judge to sign a petition for his own displacement, the 
original jurisdiction of this court is sought to be invoked, or, 
in other wdrds^ in that instance the proceedings instituted in 
the supreme court. partake of the nature of original proceed- 
ings ; but, if so, the power of this court to act would have to be 
lodged somewhere, and be capable of definite determination. 
We must decline to employ any one of the original writs men- 
tioned above for the purposes of this Act The fact that the 
federal courts and certain state courts of last resort do make 
use of the writ of mandamus or certiorari for tLo purpose of 
general supervision of inferior courts will not justify us in de- 
flecting the p,urpose of those writs from well-defined channels, 
especially in view of the express grant of supervisory control 
to this court in plain and unmistakable terms, which, in the 
absence of legislative enactment defining the mode- of proceed- 
ing, may be exercised by means of such writ or process as for 
that purpose may be invented. 

2. Appfxlate Jurisdiction. 

Upon appeal to this court in the ordinary course of litigation, 
the full measure of relief which may be granted 's a review of 
the decision of the lower court and a judgment of this court 



214 In re Weston. [Mar. T/08 

affirming, modifying, or reversing the decision. Further than 
this we cannot go. (State ex rel, Whiteside v. Dis- 
trict Court, 24 Momt 539, 63 Pac. 396.) The Act in ques- 
tion, however, does not purport to invoke the appellate power 
of the supreme court Under its provisions eVx3ry litigant is 
given two opportunities to secure a nonresident judge to try his 
cause: First, upon the petition of the lesident judge himself; 
or, second, upon the petition of the litigant, addressed directly 
to this court, in case the resident judge refuses to sign the peti- 
tion. In the first instance the supremei court ha^ nc thing to do 
— ^no discretion to exercise, no deliberation to indulge, no judg- 
ment to form — ^but must make the ap(pointment In so doing 
we are not reviewing the action of the district judge, but merely 
acting on his suggestion or at his dictation. In the event the 
resident judge refuses or neglects to sign the petition, the only 
remedy sought by resort to this court is to have the eppointment 
made -without reference to his wishes. The Act does not assume 
to require the resident judge to sign the petition. He may do 
so or noit, but upon his refusal no error can be predicated ; and, 
if no error is charged, no review can be had. Tl cTi can, be no 
affirmance, modification, or revei-sal of the order of the resident 
judge, when none has been, mada If the Act revpiired him to 
do something, his refusal might be overcome by appropriate 
action, but a matter which is left purely to his discretion may 
not be controlled by the ordinary appellate powe? of this court. 
As an incident of and ancillary to the ordinary appellate juris- 
diction of the supreme court, the power has been conferred to 
issue, hear, and determine such original and remedial writs as 
may be necessary or proppr to the complete exercise of this ap- 
pellate jurisdiction. But this power is only auxiliary. An ac- 
tion must be in this court on appeal, or an appeal sought to be 
perfected, before this ancillary or subsidiary jurisdiction can 
be moved into activity for any purpose whatever, and then only 
in aid of such appellate jurisdiction. The very grant of this 
power implies, first, that an appeal has been or is sought to be 
perfected in this court; second, that the ordinary processes of 



eS Mont] In be Weston. 215 

appeal are inadequate ; and, third, that some writ known to the 
eommon law, or sudi as this court may invent, will complete 
or fully supplement the appellate power. 

3. Supervisory Jurisdiction. 

(a) "The supreme court shall have a general supervisory 
control. * * *" (Constitution, Sec. 2, Art. VIII.) By 
express terms the constitution has lodged this jurisdiction in 
the supreme court, sitting as an organized judicial body ; and, 
those terms being both mandatory and prohibitorj^, tliat jx>wer 
of general supervision cannot be conferred upon any other body 
or upon any individual or individuals. It cannot be added to, 
subtracted from, or taken away altogether. TesttKl ly this rule, 
the invalidity of the Act is too apparent for comment. It as- 
sumes to vest ih two of the justices of this court, sitting in 
chambers, full power and auttority to carry its p;rovisions into 
effect^ and to do any and all things which this court could do in 
the premises. The distinction betw^een a court and the judge 
or justices thereof is so well defined and so distinctly marked 
in the jurisprudence of this country that it call^ for no further 
comment here. If the objection no\v under consideration was 
the only one urged against the measure, we might el'minate the 
provisions conferring the appointing power upon the justices 
at chambers, and permit the remainder of the Act to stand. 

(b) "The supreme court shall have general suporx'isory con- 
trol over all inferior courts. * * *" (CSonstitution, Sec 

"2, Art, VIII.) The supervisory power of this court operates 
only upon inferior courts, not upon persons; and, under the 
rule of interpretation provided by the constitution itself, it can- 
not extend to or affect any other body or any individual or in- 
dividuals. It is manifest from the terms employed that the Act 
does not purport to affect the district court — does not intend to 
disarrange the judicial machinery or change the place of trial, 
which can only be effected by a change of venae — ^l)ut seeks 
merely to change the personnel of the presiding officer. The 



216 In re Webton. [Mar. T/03 

Aot is aimed at the individual, not at the oonstituent part of 
the lower court, for a change of judge would not change the 
court. For all judicial purposes it would remain the same 
after the change as before. (Hedrick v. Hedrick, 28 Ind. 
291.) 

(c) The supervisory power granted to this court is a co-ordi- 
nate power, and, as with its original and appellate jurisdiction, 
so with this. The powfer thus conferred will only be exercised 
after consideration, deliberation, and a judicial d€5termination 
of the merits of the controversy with reference to which it is 
sought to be invoked. It cannot be appealed to and a remedy 
had tinder it as a matter of course. Commenting upon the 
sweep of this power, this court, in State ex rel. Whiteside v. 
District Court, 24 Mont 562, 63 Pac 400, said: "As the ap- 
pellate jurisdiction was granted for the purpose of revision 
and correction, and the original jurisdiction under these writs 
was granted to enable us to render such relief as is appropriate 
under them, so the supervisory power was granted to meet 
emergencies to which those other powers and instrumentalities 
are not commenfiurate. It is independent of both, nr.d was de- 
signed to infringe upon the functions of neither. It has its 
OAvn appropriate functions, and, without undertfiking to define 
particularly what these functions are, we think one of them is 
to enable this court to control the course of litigation in the in- 
ferior courts where those courts are proceeding within their 
jurisdiction, but by a mistake of law, or wilful disregard of it, 
are doing a gross injustice, and there is. no appeal or the rem- 
edy by appeal is inadequate. Under such circumstances, the 
case being exigent, no relief could l)e granted under the other 
}x>wers of this court, and a denial of a speedy remedy would be 
tjnitaniount to a denial of justice. Cases may arise also where 
seme relief could be granted under some one of the other origi- 
nal writs named, but such relief would not be complete ajid 
adequate because of some error which could not be corrected 
by means of the limited fimctions of the particular writ, while 
the supervisory jyo-wer is unlimited in the means at our dis- 
posal for its appropriate exercise." 



28 Mont] In be Weston. 217 

The terms "supjervisory control' imply samething to super- 
vise as well as something to control, and thje exercise of judicial 
discretion or judgment on the part of this oourt; ^vhile the Ajct 
under consideration does not provide for the one nor permit 
the other. If the resident judge signs the petition to this court 
vpithout stating any ground whatever, this court must appoint 
another judge to take his place, whether he be disqualified or 
not N"o discretion is left to this oourt^ and no judicial action, 
is called for. The appointment must be made. If the resident 
judge refuses or neglects to sign the petition, the litigant him- 
self may apply to this court upon a petition setting forth the 
allegations of bias or prejudice on the part of the i^sident judge, 
and upon a summary hearing this court may appoint another 
judge to take his place; and that, too, without notice to the 
accused judge or opposing party litigant^ and without any hear- 
ing having been granted to either of them. The effect of such 
an appointment, though made summarily, is to deehre the resi- 
dent judge guilty of entertaining bias or prejudice to such an 
extent as to render the complaining litigant unable to secure a 
fair trial, and to mate such bias or prejudice oipv-rate as a dis- 
qualification of the resident judge. This we may not do, for 
tliis is not a legislative body. Nowhere in this Act, by express 
terms or by any fair implication, can it be said that bias or 
prejudice on the part of the resident judge is declared to be a 
disqualification, and we know of no other statute to that effect ; 
and, in the absence of such statutory declaration, bias or preju- 
dice does not constitute a disqualification in tins inrisdiction. 
This question was settled by this court in the early history of 
this state. (In re Davis' Estate, 11 Mont, 1, 27 Pac. 342.) 
In our judgment, the constitutional authority to entertain the 
petition or grant the relief pxayed for must be apparent, and 
in the absence of such authority we cannot act 

In addition to there being no constitutional authority under 
which this court can proceed, the Act is in violation and directly 
contravenes the provisions of Section 12 of Article VIII of the 
Constitution, which are that "any judge of thd dj^^trict court 



218 In be Weston. [Mar. T.'OS 

may hold court for any other district judge. * * *'' This 
section of the constitutio(n makes provision for the substitution 
of one judge for another, and must be held to be exclusive, at 
least until the authority vested in it has been exhausted. By 
analysis, ^ve reach the result: 

(1) The framers of our organic law saw fit to repose the 
power of substituting one district judge for another in the dis- 
trict judge himself, and upon his invitation any otlier district 
judge in the state may be called to take his place; and, if the 
invitation be accepted and acted upon, no authority can be 
found to deny such invited judge authority to proceed, and that, 
too, though he may reside in the same district as ^he one extend- 
ing the invitation. 

(2) It cannot be seriously contended that the purpose of the 
Act was to provide a mode of substitution in addition to the 
one prescribed by the constitution. This, clearly, cannot be 
done ; but^ if it could, such a result would lead to endless confu- 
sion. If, imder the provisions of this legislation, the supreme 
court should assume to act, and should by order designate the 
judge of the Fifth judicial district of this state to proceed "at 
some propjcr and convenient time" to Silver Bow county and 
try the contested election case of Ryan v. Weston, and, immedi- 
ately before this court made such order, the district judge in 
whose department that cause is now pending should invite one 
of the other judges of the Second judicial district to try the 
sr.me, and his invitation should be accepted and acted u]X)n, 
and the case tried and detennined by such invited judge under 
express authority conferred by the constitution, which clothes 
such invited judge with all the power and authority of the one 
whom he supplants, the anomalous, not to say ridiculous, posi- 
tion of this court and the judge designated by it under this leg- 
islative enactment would be too palpable for discussion. The 
resulting confusion would be intolerable. 

(3) Section 1 of the Act provides that, upon the failure or 
refusal of the^district judge to sign the petition asking for his 
own displacement, the supreme court or any two justices at 



28 Mont] In be Weston. 219 

chambera shall designate and apppint a judge **or unj judicial 
district of this state other than that in which such actioi;^ pro- 
ceeding, motion or application is pending, to appear * * * 
and preside at the trial of such action or other matter men- 
tMmed in the order and to determine the same.'' This provision 
emphasizes the fact that the judge appointed by this court must 
eome from some district other than the one in which the cause 
k pending, and in that respect contravenes the provisions of 
Section 12, above, which provides that any district judge may 
hold court for any other district judge, and shall do so when 
required by law ; and that, too, whether he come from another 
or from the same district. When the constitution uses the terms 
"any district judge may hold court, for any other dif^tiict judge," 
it means what it says, and cannot be tortured into excluding 
one of the judges of the First judicial district or two of the 
judges of the Second. 

Finally, the power sought to be conferred upon tliis court or 
two of its justices is not judicial in its character, but purely 
ministerial or executive, and invades another department of 
our state government, which may not bo done. Section 1, Arti- 
cle IV, of the Constitution, provides: **The powprs of the gov- 
ernment of this state are divided into throe distinct departments : 
The legislative, executive and judicial, and no perscm or collec- 
tion of persons charged with the exercise of ])Owers properly 
belonging to one of these departments shall exercise any powers 
properly belonging to either of the others, except as in this con- 
stitution expressly directed or ])ermittod." The orderly dis}X)- 
sition of the business of the state requires the faithful c>l>serv- 
ance of this constitutional mandate. "This court is placed by 
the constitution at the head of the judicial system of the state; 
from its judgments there is no appeal to any other state tribu- 
nal, and its determinations are binding upon the rest of the 
state judiciary. Tlie legislature cannot interfere with its ex- 
istence or supremacy ; nor can that body alter the n^ iure of its 
jurisdiction and duties.^' (People v. Richmond, IG Colo. 274, 
26 Pac. 929.) 



220 In jib Weston. [Mar. T/03 

However reluctant this court may be to declare unconstitu- 
tional .any measure which has received the sanction of the legis- 
lative department of our state government, we have to right to 
hesitate to do so when the invalidity of the Act is apparent, 
when direct attack is made upon it^ and we axe called upon to 
determine the question. 

Numerous other obgectianB are urged against the validity or 
policy of the measure, bul^ under the views herein expressed, 
we deem it unnecessary to consider them. 

The motion to dismiss the proceedings is sustained, and the 
proceedings are dismissed. 

Dismdssed. 

Mr. Chief Justice Brantly: I concur in the result 
reached by Mb. Justice Holloway, but, speaking for myself, 
do not wish to authorize the inference from anything said in 
the opinion that this court might not, under its power of super- 
visory control, arid independently of legislative yction, upon 
.proper application, prohibit a district judge from proceeding 
with the trial of a cause if it were made manifest that he was 
for any reason incapable of giving either of the parties a fair 
trial. Whether or not this court has such power iss a question 
which is not presented upon this application. I do not wish to 
bo understood as expressing any opinion as to whether this power 
does or does not exist, but do not think consideration of the 
question should be regarded as foreclosed. 

Me. Justice Milbuen: I concur in the opinion of Mr. 
Justice Hollo way; and in the conclusion reached by him ; but 
I wish to add that there should not be any inference drawn 
from the language of the opinion that, independently of the Act 
now declared invalid, tliis court has not any power to control a 
lower court, the judge of which is sitting in a cause in which he 
is biased and prejudiced. This question is still an open one, 
and as to it I do not express any opinion. 



28 Mont] Application B. & M. C. O. & S. M. Co. 221 



IN THE iiATTER OF THE APPLICATION OF THE ,_^^^. 

BOSTOI^ & monta:n'a consol. copper ^ ?lll 

& SILVER MINING CO. 

(No. 1.928.) 
(Submitted March 27, 1903. Decided May 18, 1903.) 
For Syllabus, see In re Weston, anie^ page 207. 

Obiginal .proceediing in the supreme court, under Chapter 
42, Laws of 1903. Proceedings dismissed. 

Mr. A. J. Shores, Mr. C. F. Kelley, and Messrs. Forbis & 
Evans, for Applicant. 

Messrs. McHatton & Cotter, and Mr. Charles E. Leonard, 
for Respondents. 

MR. JUSTICE HOLLOWAY delivered the opirion of the 
(xmrt 

This is an original applicsation to this coui-t for an order des- 
ignating a judge of some district other than, the Second judicial 
district, to try and determine a certain cause pending therein, 
entitled John McOinrms, Plaintiff v. Boston & Motitana Con- 
solidated Copper & Silver Mining Company, A. S. Bigelow, 
W. J. Ladd, Ed. C. Perkins^, Edwin S. Grew, Joseph S. Bige- 
low, Leonard Lemsohn, Frank Klepetko, Anudgarnafed Copper 
Company, William Scallon amd C. S. Batterman, Defemdants. 
The proceeding ia taken under the provisions of an Act of the ^ 
Eighth legislative assembly, designated as "Substitute for Sen- 
ate Bill No. 71" [Chapter 42, Laws of 1903]. Upon the filing 
of the petition this court, on its own motion, ordered the plaintiff 
in the court below and the districjt judge in whose department 
the above cause is pending, to appear and show cause, if any they 
had, why the prayer of the petitioners should not be granted. 
Upon return of that order, counsel for the plaintiff and for the 



222 * Baker v. Butte City Water Co. [Mar. T.*08 

diatrict judge appeared- and filed a motion to dismiss tlid pro- 
ceedings upon the ground that the Act entitled "Subttitute for 
Senate Bill No. 71" is unjeonstitutional, and that tlJs court has 
no jurisdiction to entertain the petition or to gi'ant the relief 
prayed for. 

The facts in this case and the principle involvad yro identical 
with those in No. 1,927, entitled Rycun v. Weston, this day de- 
cided by this court, atvte, 207, 72 Pac 512, and upon the au- 
thority of that case the motion to dismiss id sustained and tlie 
proceeding dismissed. 

Dismissed. 



28 
e30 

28 
f33 
34 


'222 
62 
270 


28 
35 


222 
333 


28 
40 
40 


222 
684 
586 



BAKER, Respondent, v. BUTTE CITY WATER CO., 
Appblli-ant. 

(No. 1,568.) 
(Submitted May 11, 1903. Decided May 20, 1903.) 

Appeal — Review — Exceptions — Siufficiency — General 
Verdict — Special Findings — Inconsistency — Mvrdng Claim 
— Location Notice — Evidence. 

1. Tbe supreme court cannot review the action of the court below in disre* 
garding one of the special findings of the Jury, where the party complain- 
ing does not specifically except thereto, but relies entirely upon an excep- 
tion to the entry of Judgment in favor of the other party. 

2. A motion for Judgment on the special findings is necessary ; otherwise 
Judgment will be entered on the general verdict as of course. In the ab- 
sence of such motion in the trial court, no question concerning the right 
to such Judgment can be raised on appeal. 

3. Since the legislature has the right to provide rules for the marking of the 
boundaries of mining- claims ; for a record of such location; and what 
the recorded paper must contain, — the court may rightly exclude a location 
notice which fails to conform to ttie statute. 

Appeal from District Cowrt, SUvet Bow County; John Lind- 
say, Judge. 



88 Mont] Baker v. Butte City Water Co. ' 223 

Action by Ben Baker against the Butte City Water Com- 
pany. Jiidgmeait for plaintiff. Defendant appeals. Affirmed. 

Messrs. Forbis & Evans, and Mr. T. Bailey Lee, for Appel- 
Unt. 

Mr. J. E. Healy, for Eespondent. 

MR. COMMISSIONER CLAYBEiRiG prepared the opinion 
for the court 

This was an action in ejectment. Plaintiff alleged ownership 
of the ipremises in question, an illegal ouster therefrom by de- 
fendant, and an unlawful withholding of the possession thus 
acquired. The defendant denied plaintiff's ownership and that 
the ouster was illegal. It then affirmatively alleged "that at all 
times mentioned in plaintiff's complaint it was, and now is, the 
owner of, in possession of, and entitled to the possession of, the 
premises described in plaintiff's complaint" The question of 
the possession of the premises was not, therefore, an issue in 
the case. 

Plaintiff testified without objection that defendant was in< 
possession of the property, and the court instructcil the jury as 
follows: "You are instructed- in this case that the defendant 
is in possession of the premises in dispute, and it devolves upon 
the plaintiff to establish by a preponderance of the testimiony 
his right to the possession of said premises by sliomng a valid 
location ; and, if he fails in this respect, your verdict must be 
for the defendant" 

At the close of the case the defendant requestf^d four special 
interrogatories to be submitted for findings by the jury, of which 
that marked "No. 1" was as follows : "Was the defendant in 
this action, the Butte City Water (Company, at the date of the 
conunencement of this action, in possession of the ground in 
controversy ?" The court complied with defendant's request in 
this r^ard. The record does not disclose whether plaintiff ob- 
jected to the submission of this question, but the statement and 



224 Baker v. Butte City Water Co. [Mar. T.'03 

bill of exceptions were prepared and presented by defendant, 
and settled in his behalf, and could not pjpoperly contain plain- 
tiff's objections or exceptions. (Westheimer v. Ooodkind, 24 
Mont 90, 60 Pac. 813.) So that no presumption can be in- 
dulged as to whether plaintiff objected or conflented to its sub- 
mission. It is very clear that die court ought n;ot to have sub- 
mitted this question to the jury, because it wps upon no 
issue involved in the c^se. The jury answered the question in 
the negative, and at the same time returned a general verdict 
for plaintiff, reciting therein "that the defendant withholds the 
possession of the same (the premises in dispute) from him.'' 
The record, therefore, discloses that the general verdict is in- 
consistent T\dth this special finding. After the i-endition of the 
verdict, plaintiff's attorney moved the court to enter judgment 
for plaintiff in accordance with the verdict of the jury, which 
motion, after a hearing, was sustained by the court. Defendant 
gave notice of intention to move for a new trial to be based upon 
^'affidavits to be filed and upon a statement of the case to be 
prepared and settled." A statement on motion for a new trial 
and bill of exceptions was then settled. The recoid does not 
disclose w^hether a motion for a new trial was ever made or 
passed uppn by the court. The appeal is taken from the judg- 
ment only. 

TTie first error assigned is : "The court erred in setting aside 
finding No. 1." We cannot consider this alleged error for the 
fallowing reasons : 

First. The record does not disclose either a specific objection 
or exception to the action of the court in that regard. The quesr 
t?on arose upon the hearing of plaintiff ^s motion for judgment 
upon the verdict. The court, in its ruling, stated : "This day 
motion to adopt findings and for judgment is argued by counsel, 
and by the court sustained, with the exception of finding No. 1, 
and judgment is ordered entered herein in accordance with said 
verdict" No objection to this action of the court in r^ard to 
the special finding is disclosed by the record. The only exoep 
tion we find, which, by any possible construction, u>uld be held 



28 Mont] Bakee v. Butte City Water Co. 225 

to refer to this aetion of the court, is stated as follows : "The 
court ordered judgment entered in favor of plaintiff and against 
defendant, to which action of the court, and the whole thereof, 
the defendant then and there duly excepted." In other words, 
counsel did not specifically object to the action of the court be- 
low in disregarding finding ^o. 1, and did not specifically ex- 
cept thereto, but relied entirely upon, an exception to the entry 
of judgment We do not think that this exception is sufficient 
to \?arrant consideration of the error assigned. 

Second. The record does not disclose that tlie defendant 
sought in any way or manner to take advantage of the incon- 
sistency of this finding No. 1 with the general verdict by mo- 
tion for judgment upon such finding notwithstanding the gen- 
eral verdict We do not believe that the court wa^ bound, in 
the absence of any action on the part of defendant indicating 
any reliance upon this finding, to give the defendant any benefit 
arising from its existence. How can we say that, if defendant 
had made a motion for judgment upon this findla^ disregard- 
ing the general verdict, it would not have been granted ? The 
following authorities hold directly, under statutes nlmost iden- 
tical with ours, that,^ in order to have the question of inconsist- 
ency between a special ^finding and general verdict considered 
or passed upon by the appellate coiirt, the party claiming such 
inconsistency must move the court below for judgment in his 
favor upon the special finding. {Tritlipo v. Lacy, 55 Ind. 
287; Toledo W. £ W. R. W. Co. v. Craft, 62 Ind. 396; Bart- 
Ictt V. P. C. & St. L. By, Co., 94 Ind. 281 ; North Western 
Mut. Fire Ins. C. v. BlankensMp, 94 Ind. 535, 48 Am. Kep. 
185; Carter & Bro. v. Mo. M. & L. Co., 6 Okl 11, 41 Pac. 
356.) The rule is stated by the text-writers as follows : "In 
order to obtain the advantage of special findings, a motion fon 
a judgment uixm them is necessary. ^^ (Thompson on Trials, 
Sec. 2696. "A motion for judgment on the aptccial findings is 
necessary, as otherwise the judgment will be enfo^'ced as a mat- 
ter of course upon the general verdict. In the absence of such 
a motion in the trial court, no question concerning the right to 

Vol. XXVIII— 15 



226 Baker v. Butte Oitt Watbb Co. [Mar, T.'OS 

such judgment can be raised on appeal." (20 Enc. PI. & Pr. 
375.) We agree with the doctrine here announced. 

The next error specified is that "the court erred in admitting 
the plaintiff's location notice of the Key Note." We have exam- 
ined the notice of location referred to, and the same seems to 
be r^ular in every respect, and in accordance with the pro- 
visions of the statute of this state. We, therefore, are of the 
opinion that the court correctly admitted it in evidenca 

The next error alleged is that "the court erred in excluding 
the location of defendant's Keyno claim." We have examined 
this notice of location, and are satisfied that it does not conform 
to the statute of the state of Montana, or with the construction 
thereof by this court in the case of Purdum v. Laddirij 23 Mont 
387, 59 Paa 153, The question as to the right of the legisla- 
tvre to provide rules for the marking of the boundaries of min- 
ing claims, and providing for a record of such IcKiation, and 
what the recorded paper must contain, has so long been recog- 
nized in this state, and has so many times been approved by this 
court^ that it would be useless to enter again! into any consider- 
ation of the questions so decided. We are satisfied, therefore, 
that the court did not err in excluding the location notice of 
the Keyno claim. 

All other errors specified in the brief have been waived, either 
in the brief itself or by counsel for the appellant in his argu- 
ment before the court. 

Finding no error in the record, we advise that the judgment 
apipealed from be affirmed. 

Per Oubiam. — ^For the reasons stated in the foregoing opin- 
ion, the judgment appealed from is affirmed. 



I Mont] State ex msl. Heinze v. Dist. Or. ' 227 



STATE EX REL HEINZE, Eelatob, v. DISTRICT COURT ^g .^, 
OF THE SECOND JUDICIAL DISTRICT ^J^ 

ET AL.^ RESPOin>ENT8. %Jm , 

^ 227 

32 H 

(No. 1,940.) 28 



(Submitted April 23, 1903. Peclded May 25, 1903.) 

Appeal— Orders Appealable —Time for Appeal— Special Pro- 
ceedings — Application for Receiver — Bill of Exceptions — 
Motions — Neit; Trials. 

1. Pending an action to settle a controversy as to the ownership of a mlnipg 
claim, a recelyer was appointed. On appeal the order of appointment was 
reversed. Thereafter, on January 17th, a hearing was had on the final 
report of the receiver, and at the conclusion thereof the court made an 
order fixing his compensation at a certain sum, and allowing him certain 
further sums for counsel and stenographer's fees. The order contained no 

. provision as to who should be charged with these allowances. Two days 
later the receiver. moved for an order requiring the plaintiff in the action 
to pay the allowances, and on January 31 st the motion was granted, and 
an order entered in the form of a final jrldgment against the plaintiff for 
the amount thereof. Held, that the order of January Slst, and not that 
of January 17th, was the appealable order. 

2. ^aSh application for the appointment of a receiver to work a mining claim 

pending a suit to settle a controversy as to the title thereto Is not a 
"special proceeding." within the meaning of the Code of Civil Procedure, 
Section 1722. which, as amended by Acts 1899, page 146, provides that 
an appeal may be taken from a final judgment in an action or special pro- 
ceeding within one year after the entry of judgment, but Is a provisional 
remedy, which may only be had In an action, and cannot be made except 
as ancillary to and a step in the action Itself. 

3. Code of Civil Procedure. Section 1723, as amended by the Act of 1899, 
provides that an appeal may be taken from a final judgment in an action 
or special proceeding within one year after the entry of judgment; from 
an order appointing or refusing to appoint a receiver, or giving directions 
with respect to a receivership, or refusing to vacate an order appointing 
or affecting a receiver, within sixty days after entry thereof. Pending 
an action to settle a controversy as to the ownership of a mining claim, 
a receiver was appointed to work the property. On appeal the order of 
appointment was reversed. Afterwards an order was entered In the nature 
of a final judgment against .the plaintiff in the action for the amount al- 
lowed the receiver for compensation, counsel fees, etc. Held to be a "final 
order in an action," and appealable within one year, and not an order 
"with respect to a receivership," appealable only for sixty days. 

4. It is Improper for the court to refuse to settle a bill of exceptions tendered 
in due time, for, while the appeal will lie whether the bill is made a part 
of the record or not, the papers and other evidence used on the hearing 
and the rulings on the objections cannot be of avail unless incorporated 
In a bill. 



^^ 30 



228 State ex rel. Heinzb v. Dist. Gt. [Mar. T.'OS 

5. A motion for a new trial does not He in a proceeding to settle the ac- 
counts of 41 receiver and to fix his compensation. 

6. A motion which does not ask for a decision of an issue of fact arising 
upon formal pleadings is not the subject of a motion for new trial. 

7. The court has no Jurisdiction to settle a statement and bill of exceptions 
In support of a motion for a new trial in a proceeding where such motion 
does not lie. 

Original application by the state, on the relation of Arthur 
P. Heinze, for a writ of mandate directed to William CJlancy, 
9^ judge of the Second judicial district court Granted in part 

Statement of the Case. 

Original application on the relation of Arthur P. Heinze for 
a writ of mandate to compel William Clancy, a3 judge of tie 
Second judicial district court, to settle a bill of exceptions, and 
also a statement and bill of exceptions to be used on motion for 
a new trial. The facts out of which the controversy arises are 
the following: The relator with others, on August 12, 1899, 
brooight an action in the district court of Silver Bow oounty 
against the Parrot Silver & Copper Mining Company. The 
purpose of the action Avas to settle a controversy as to the owner- 
ship of the Nipper lode mining claim, and in the meantime, and 
until the action could be determined, to restrain the defendant 
corppration from extracting and removing ore from the claim. 
This action was designated on the court calendar as cause No. 
8,087. The relator did not allege ownership in the claim, but 
joined in the action as lessee of the interests owned by the otter 
plaintiffs. While the action was pending, and on March 5, 
1900, the relator, having himself been enjoined from mining 
the property in an action brought by the defendant corporation, 
made application in cause No. 8,087 for the appointment of a 
receiver to mine the property, and to hold the proceeds pending 
the action, purposing by this means, if possible, to protect liis 
leasehold interest Uppn a hearing of this application the court 
appointed one Thomas McLaughlin receiver, and on May 16th 
the receiver entered into poeseaeion of the property, and oper- 
ated it until, upon appeal to this court, the order of appoint- 



98 Mont.] State ex bel. Heinze v. Dist. Ct. 

meat was reversecL (Hickey v. Paarot S. & C. Co,, 25 Mcmt 
164, 64 Pac. 330.) When the cause waa remaaded to the dis- 
trict court, the peoedver ceased operatiaiis under the order of 
appointment, and returned the poeeession of the orojjerty to the 
plaintiffs in the action. This he did on March 25, 1901. Dur- 
ing his ojpieratLonSy covering a period of about ten months, he 
filed monthly aooounts of his receipts and expenditures with 
the clerk of the court, but the relator did not at any time make 
any objection to them in any particular, though it appeared that 
the operations resulted in loss in the aggregate of $10,342.29. 
ihe defendant corporation filed obgections to each account. No 
order was made with reference to them, however, nor were any 
steps taken \o have them settled and a formal discharge of the 
receiver obtained, until May 28, 1902. On that day, under an 
order of the court, upon a stipulation by the receiver and the 
defendant, these accounts were referred to William K Carrollj^ 
Esq., as referee, for an adjustment of the disputed items. There- 
after the referee filed his report overruling all the objections. 
In the meantime the receiver filed his final report, in which he 
made a claim for compensation for himself and an allowance 
for counsel and stenographer's fees. On December 30th an 
order was made adopting the report of the referee. On Janu- 
aiy 8, 1903, a hearing waa had upon the final report of the re- 
ceiver and objections made thereto by the relator and his co- 
plaintiffs. The objections presented a controversy as to the 
amount of the compensation claimed by the receiver, as well as 
to compensation in any amount for the time subsequent to the 
date of the remittitur from this court, and as to any allownance 
for counsel and stenographer's fees covering the same period of 
tima Evidence as to the value of these services, both of the 
receiver and his counsel, was admitted over the objections of 
Ae relator, and his exceptions were noted. At the conclusion 
of the hearing, and on Januarv^' 17th, the court made an order 
fixing the compensation of the receiver at $16,000, less a pay- 
ment already made to him of $4,569, and allowing him $10,000 
for counsel fees covering the time after the annulment of the 



230 State ex bel. Heinze v. Dist. Ct. [Mar. T.'OS 

order of appointment An allowance of $125 for stenographer's 
fees during the time was also made. The order contained no 
provision as to whether the plaintiffs or the defendant, or any 
of them^ should be charged with these allowances. Thereupon, 
and within the time granted by the court for that purpose, coun- 
sel for relator prepared and served upon the receiver and the 
defendant his bill of exceptiona The court granted the re- 
ceiver time within which to propose amendments, but none were 
proposed. On April 11, 1903, within the ten days allowed by 
the statute, and after service and upon due notice to the receiver 
and the defendant, the bill wias presented to the judge for set- 
tlement Upon objection by the receiver and the defendant, 
the judge, William Clancy, refused to settle the till. The re- 
fusal was apparently based upon the theory that, if the order 
was appealable at all, the appeal should have been taken within 
sixty days from its entry, and,' this time having already elapsed 
without an appeal, the settlement of the bill would be nugatory. 
On January 19th the receiver, through his counsel, and upon 
notice to the relator, moved the court for an order directing and 
requiring the relator to pay the allowances fixed In the order of 
January 17th. This motion was granted, and on January 31st 
the court entered an order in the form of a final judgment 
against the relator for the amount of the allowanoefc*, aggregat- 
ing $21,556, and directing execution to issue therefor. Within 
ten days from this date the relator served upon oounrel for the 
receiver and for the defendant in cause 8,087 and filed with the 
clerk his notice of intention to move for a new trial, setting forth 
the statutory grounds of motion. Within the time allowed by 
the court, he served his bill of exceptions an4 statement in sup- 
port of the motion upon the defendant and the receiver. These 
.latter proposed no amendments. Thereupon, on April 15th, 
and within the ten days allowed after the time for amendments 
had expired, the bill and statement were, upon notice^ presented 
to the judge for settlement Objection was made to the settle- 
ments on the grounds, first, that the notice of intention had not 
been given in time ; second, that a motion for a new trial was 



28 Mont] State ex bsl. Hsinze v. Dist. Ct. 231 

not allowed by the statute; and, third, that, as the sixty days 
Avithin whidi an appeal would lie from the order had already 
expired, and no appeal had been taken, a settlement of the bill 
and statement would serve no useful purposa The judge sus- 
tained the objection, and declined to make the proper certificate 
of settlement 

Upon the filing of an affidavit setting forth these facts, an 
alternative writ was issued. The defendant judge appeared, 
and filed a demurrer raising a legal issue upon the sufficiency 
of the facts to warrant the relief sought. By consent an answer, 
was also filed, but without waiving the legal issue presented by 
the demurrer, and, after argument^ the matter was submitted. 

Mr. James M. Denny ^ for Relator. 

Messrs. Kirk & Olinton, and Mr. H. L. Maury, for Respond- 
ents. 

MR. CHIEF JUSTIOE BRANTLY, after stating the case, 
delivered the opinion of the court. 

The answer presents no miaterial issue of fact. We shall 
therefore consider the questions raised by the demurrer. These 
are: (1) Does an ajppeal lie from the order of January 31st 
as from a final judgment within one year from the date of entry, 
and, incidentally, was it the duty of the judge to settle the bill 
of exceptions presented on April 11th? (2) Under the pro- 
visions of the statute, does a motion for a new trial lie in a pro- 
ceeding to settle the accounts of a receiver and to fix his com- 
pensation ? 

1. Section 1722 of the Code of Civil Procedure, as amended 
by the Act of 1899 (page 146, Sees. Laws 1899), provides: 
"An appeal may be taken to the supreme court from a dis- 
trict court, in the following cases: (1) From a final judgment 
entered in an action or special proceeding commenced in a dis- 
trict court. * * * (2) * * * From an ordeir appoint- 
ing or refusing to appoint a receiver, or giving directions with 



State ex bei.. Heinze v. Dist. Or, [Mar. T*'08 

respect to a receivership^ or refusing to vacate an order appoint- 
ing or affecting a reoeiver." Section 1723, as amended by the 
same Act, provides that "an appeal may be taken from a final 
judgment in an action or special proceeding * * * within 
one year after the entry of judgment," and that an appeal may 
be taken from any of the orders mentioned in Subdivision 2 of 
Section 1722 within sixty days after the same is entered in the 
minutes of the court or filed with the clerk. 

Counsel for the defendant insist that, if the ordei for the re- 
view of which the bill of exceptions presented on April 11th ia 
intended to furnish the basis is appealable at all, the appeal 
must be taken within sixty days from the date of it, and that, 
as this was not done, the presiding judge may not be compelled 
to settle the bill, because, the time for appeal having expired, 
the settlement of the bill would be a useless act Counsel do not 
seem to have a clear notion as to whether the oi'der of January 
17th or that of January 31st iB the one from which the appeal 
may be taken. The whole proceeding in the court below seems 
to have been conducted by piecemeal. We are of the opinion 
that the time within which an appeal may be takcin began to 
run from the date of the final order in thej proceoding, namely, 
from January 31st. It was only upon the entry of this order 
that the parties to the controversy could ascertain what their 
rights were as declared by the court. The .proceedings had and 
orders made up to that time were intermediate, aiid, like the 
proceedings and orders upon the trial of an action, were merely 
the successive steps in the hearing which resulteil in the final 
order or judgment determining the rights of the parties. Hav- 
ing reached this conclusion, it is necessary to decide whether 
this order is a final judgment within the meaning of the first 
subdivision of Section 1722, or whetiier it is an order "giving 
directions with respect to a receivership," and falls in the list 
of orders enumerated in the second subdivision of that section. 
If it falls ^^'ithin the first category-, an appeal will lie within one 
year, under the first subdivision of Section 1723 ; otherwise the 



88 Mont] State ex keu Heinze v. Dist. Ct. 233 

aeoond subdivisioii of the latter section applies, and the time 
for appeal has long since elapeed. 

It will be noticed that the language of the first subdivisian is 
"from a final judgment in an action or special pix)C(>eding," and 
not "fromi the final judgment," etc Counsel ior the relator 
ai^es that the application for a receiver was a) special proceed- 
ing within the meaning of Sections 3470 and 3472 of the Code 
of Civil Procedure, and therefore that, the order being a final 
disposition of the receivership, the appeal comes within the pro- 
vision touching special prooeedingp. We do not tl-ink this the 
correct view. The appointment of a receiver is a provisional 
remedy, which may be had in an action, and cannot be made 
except as ancillary to and a step in the action itself. The ex- 
pression "special proceedings" has no reference to provisional 
remedies in actions at law or in equity, but to sudh proceedings 
as may be commenced independently of a pendinir action by 
petition or motion, upon notice, in order to obtain special relief. 
The provisions touching such proceedings axe found in Part 
ni (Sections 1930-3081) of the Code of Civil Procedure. Pro- 
visional remedies by way of injunction, receiverships, etc, are 
provided for in Part II (Sections 800-981) of that Code, and 
are incidental to formal actions brought in the ordinary way. 
We think, however, that the order falls clearly within the mean- 
ing of "a final judgment in an action," as used' in that section, 
and is not an order "with respect to a receivership." The ex- 
pression "mth respect to a receivership" has reference to an 
active receiver engaged in the discharge of his duties and the 
orders made directing him therein. The right of api>eial under 
this provision is granted to thei parties, and not to the receiver. 
Nor does it, we think, have reference to controversies arising 
between the .parties and the receiver as to his fees and allowances 
made by the court The fees of the receiver may be allowed as 
ocstsy and taxed against the losing party upon the entry of final 
judgment in the action. (State ex rel. Corrme v. Undsay, 24 
Mont 352, 61 Paa 883 ; Hutchinscnh v. IIampto7iy 1 Mont. 39 ; 
Ervin V. Collier, 2 Mont 605.) But tliis does not preclude the 



234 State ex bel. Hbinze v. Dist. Ct. [Mar. T/08 

court upon a discharge of the receiver before the ijondusion of 
the action, as was the case here, from fixing his compensation, 
and adjudging payment thereof against the party at whose in- 
stance he was wrongfully appointed ; othenvise the receiver, not 
having funds in his hands out of which his comprrusation could 
be paid, would be compelled to wait until the final determina- 
tion of the action before his compensation oould bo allowed and 
paid. This view, we think, is sound upon principle. The order 
of January 31st was, in effect, a final judgment, mfiking diapp- 
sition of the branoh of the case touching the receiA'crship, and 
as such, we think, an appeal will lie therefrom at any time with- 
in one year from the date of its entry. "A final judgment is 
not necessarily the last one in an action- A judgment that is 
conclusive of. any questioni in a case is final as to that question. 
The Code provides for an appeal from a final juslgment, not 
from the final judgment in an action." (Sharon v Sharon, 67 
Cal. 185, 7 Pac. 456, 635, 8 Pac. 709.) This case wiis an action 
for a divorce^ Pending the action an order was made granting 
the plaintiff alimony and counsel fees. The defendant appealed. 
On motion to dismiss the appeal the court keld the order ap- 
pealable imder the statute granting the right of appeal from a 
final judgment The same conclusion was announced by this 
court, and .the case of Sharon v. Sharon approved, in the case 
of In re Finkelstem, 13 Mont. 427, 34 Pac. 847, and in State 
ex rel Nixon v. District CovH, 14 Mont. 396, 40 Pac Q6, The 
oi-der under consideration, being in form and effect a final judg- 
ment, is entirely analogus to an order awarding plimony and 
counsel fees in divorce cases. The following cases involving 
questions touching the character and appealability of similar 
orders are in ppint, and, we think, conclusive: Ttiftlc v. Claflinj 
31 C. C. A. 419, 88 Fed. 122 ; Daniels v. Daniels, 9 Colo. 133, 
10 Pac 657; Chandler v. CusMng-Young Shingle Co., 13 
Wash. 89, 42 Pac. 549; Hecht v. Hecht, 28 Ark. 92; Trustees 
y. Oreenough, 105 U. S. 527, 26 L. Ed. 1157 ; Williams v. Mor- 
gan. 111 U. S. 684, 4 Sup. Ot, 638, 28 L. IM. 559 ; Paiierson 
V. Ward, 6 ]\\ Dak 359, 71 'N. W. 543 ; Hovey v McDonald, 
109 U. S. 150, 3 Sup. Ct. 136, 27 L. Ed. 888. 



28 Mont] State ex kbl. BDeinzb v. Dist. Or. 

On this branch of the case it remains to oonsider only whether 
the court should have settled the bill of exceptions tendered on 
April 11th. The relator was present at the hearing, and had 
interposed objectiona to the admission of evidence*. He had 
tiJcen exceptions to adverse rulings upon his objections, as well 
as to odier matters presented and determined against him. It 
appears from the facts stated in the affidavit that he proceeded 
^thin the time allowed by Section 1155 of the Code of Civil 
Procedure to have the bill settled, and made a part of the record, 
so as to make his exceptions available cm appeal This he. had 
a right to do under the express provisions of this section as to 
any ruling adverse to him durilug the trial to which he reserved 
exceptions. The court should have settled the bill, and a refusal 
to do so was tantamount to a denial of the right of appeal, for, 
though the appeal would lie whether the bill was made a part 
of the record or not, the papers and other evidence used on the 
hearing and the rulingjs of the court upon the objections of the 
relator could not be of avail unless incorporated in a bill. ( Cor- 
nish V. Floyd-Jones, 26 Mont 153, 66 Pac 838.) 

2. Does a motion for a new trial lie in the proceeding under 
consideration ? A new trial is a re-examination of r.n issue of 
fact (Code of CiviL Procedure, See. 1170.) The expression 
^*i86ue of fact," used in its broader sense, wonild include every 
issue of fact, whether arising upon formal pleadings or upon a 
motion. As used here, however, it ref era only to issu^ of fact 
raised by formal pleadings, as defined in Section 1033 of the 
Code of Civil Procedure. The definition here given clearly 
excludes issues arising upon affidavits or oral evidence used on 
motions- That this is so is made clear by Sections 1173, 1176, 
and other provisions touching new trials and appeals, all of 
which contemplate issues arising in actions. There is, there- 
fore, no authority in the Code for a motion for a new trial of a 
motion. In such case, if a rehearing in the same court of the 
matters involved in the motion is desired, the proper practice 
is to apply for leave to renew the motion. If the purpose is to 
have it reviewed on appeal, it is sufficient to present to the su- 



286 State bx rel. Hbinze v. Dist. Or. [Mar. T/08 

preme ooiirt the order, ^nth a bill of exceptions incorporating 
the ruling^ of which complaint is made. Therefore a motion 
which does not ask for a decision of an issue of fact arising upon 
formal pleadings is not the subject of a motion for a new trial. 
These are the vie\vs of the supreme court of California upon 
identical provisions toaiching new trials. {Harper v. HUdreth, 
99 Cal. 265, 33 Pac 1103.) We adopt and appiovo them. It 
necessarily follows that the courti was under no legal duty to 
settle the statement and bill of exceptions in suppoit of the mo- 
tion for a new trial. They \\nere not intended to make a part of 
the record the objections, rulings of the court thereon, and ex- 
ceptions reserved by the relator during the hearing under Sec- 
tion 1152 of the Code of Civil Procedure, as was the bill pre- 
sented on April 11th, but ^vere intended to preserve the same 
matters as the basis of a motion for a new trial under Section 
1173. The course of procedure adopted could be pursued only 
under the piPovisions of the latter secticm. Therefore, as the 
motion did not lie, the p,roceeding to settle the .statement and 
bill in support of the motion was a matter without the jurisdic- 
tion of the court, and! the settlement Avas properly denied. 

In so far as the application seeks a settlement of the statement 
and bill of exceptions in support of the motioni for a new trial 
it is denied- The peremptory writ will issue, however, direct- 
ing and requiring the district judge to settle and. make a part 
of the record the bill of exceptions presented for settlement on 
April 11th. 

Rehearing denied June 13, 1903. 



28 Mont] MuTH et al. v, Goddard et ax. 237 



MUTH ET AL., Respondents^ v. GODDAIID et al.. , 

I aj 237 

Appellants. \^ ^ 

(No. 1,914.) 
(Submitted April 27, 1903. Decided May 25, 1903.) 

Power of Attoitiey — Construction — Authoi%ty of Attorney — 
Trust Deed — Power of Sale — Right to Exercise — Effect of 
Death of Grajitor, 

1. An attorney in fact authorized to sell, convey, and mortgage the grantor's 
property may execute a trust deed conveying the grantor's iBdlvidual prop- 
erty as security for the payment of n debt due from a firm of which he 
is a partner. 

2 Where a person is liable on notes executed by a firm In payment of firm 
debts because a partner in the firm, a guaranty of the payment of the notes, 
executed by his attorney in fact, imposes no additional obligation. 

3. Under Code of Civil Procedure, Section 3821, providing that a power of 
sale may be conferred on. the mortgagee or any other person, to be exer- 
cised after a breach of the obligation for which the mortgage is security, 
and Code of Civil Procedure, Section 1203, declaring that, if a mortgage 
confers a power of sale after a breach, foreclosure may be had, an attorney 
in fact under a general power of attorney to sell, convey, and mortgage 
the grantor's property may secure the payment of his grantor's debt by 
executing a trust deed conveying the grantor's property, and authorizing 
the trustee or his successor in trust to sell the same in case of nonpayment 
of the indebtedness. 

4. Whether an attorney in fact under a i^eneral power of attorney may exe- 
cute a trust deed containing a stipulation for attorney's fees in case the 
deed is enforced by an action Is immaterial wnere the trustee In the deed 
sells the property under a power of sale therein granted. 

5. A trust deed, given as security for a debt, and containing a stipulation 
anthorizlng the trustee to sell the property after default, authorizes the 
trustee to exercise the power after the grantor's death ; it being a power 
coupled with an interest, and therefore not revoked by the grantor's death. 

6. Where a trust deed, given as security for a debt, conveys to him the legal 
title to the property therein described, and authorizes him to sell the same 
after default, the death of the grantor does not affect the trustee's right 

. to exercise the power of sale. 
7 Under Code of Ciril Procedure, Section 2603, authorizing the foreclosure 
of mortgages though the mortgagor Is dead, a trustee in a trust deed given 
as security for the payment of a debt, and authorizing him to sell the 
property after default, may, after the death of the grantor, exercise the 
power of sale without reference to the administration of the grantor's 
estate. 

Appeal from District Court, Leiuis amd Clarke County; 
J. M. Clements, Judge. 



238 MuTH ET AL. V. QoDDAKD ET AL. [Mar. T/03 

Suit by William Muth, as administrator of the estate of 
Albert G. Clarke, deceased, and others, against L. A. Goddard 
and others, to restrain defendants from selling lands described 
in a trust deed under the power of sale therein granted. From 
an order granting the injunction, defendants appeal. Eeversed. 

Statement of the Case. 

On the tenth day of October, 1890, Albert G. Clarke, Sr., 
was about to leave the state of Montana, to be absent during 
the winter, and on that day he executed to his son, Charles A. 
Clarke, the following power of attorney: 

"Know all men by these presents^ that I, Albert G. Clarke^ 
Sr., of Helena, Lewis and Clarke County, Montana, have made, 
ci'nstituted and appointed and by these presents do make, con- 
stitute and appoint Charles A. Clarke, of said city, county and 
state aforesaid, my true and lawful attorney for me and in my 
name, place and stead, and for my use and benefit to ask, de- 
mand, sue for, recover, collect and receive, all such sums of 
money, debts due, accounts, interest^ dividends, annuities and 
demands whatsoever as are now or shall hereafter become due, 
owing, payable or belonging to me, and have, use and take all 
lawful ways and means in my name or otherwise for the re- 
covery thereof by attachment, arrest, distress or otherwise, and 
to compromise and agree for the same and acquittances or other 
sufficient discharges of the same for me and in my name to 
make, seal and deliver; to grant, contract, agree for, purchase, 
receive and take, lands, tenements and hereditaments, and to 
accept the seisin- and possession of all lands and all debts and 
other assurances in the law therefor, and to lease, let, demise, 
bargain, sell, remise, release, convey, mortgage and hypothecate 
lands tenements, hereditaments upon such terms and condi- 
tions and under such covenants as he shall see fit^ also to bargain 
and agree for, buy, sell, mortgage, hypothecate and in any and 
every way and manner deal in and with goods, wares and 
merchandise, choses in action, and other property in possession 



r 



28 Mont] MuTH et al. v. Got>i>aiu> et al. 239 

or in action, and to make, do andl transact all and every kind 
of business of what nature and kind soever, and also for me, 
aDd in my name and as my act and deed to sign, seal, execute 
and deliver and acknowledge such deeds, leases and assignments 
of leases, covenants, indentures, agreements, mortgages, hypothe- 
cations, bills of lading, bills, bonds, notes, receipts, evidences 
of debt, releases and satisfactions of mortgage, judgments and 
other debts and such other instruments in writing of whatever 
kind and nature as may be necessary or proper in the premises ; 
giving and granting unto my said attorney full power and au- 
thority, to do and perform^ all and every act and thing whatr 
soever requisite and necessary to be done in or about the prem- 
ises, as fully to all intents and purposes as I might or could do 
if personally present, hereby ratifying and confirming all that 
my said attorney shall lawfully do or cause to be done by virtue 
0/ these presents/' 

Albert G. Clarke, Sr., never revoked this power, and it 
ceased to be operative only at his death. In November, 1899, 
Mr. Clarke, Sr., lay in his last sickness. For quite a long time 
he had been a member of the firm* of Raleigh & Clarke. This 
firm was then, November, 1899, owing about $35,000, about 
$23,000 of which sum was due the Union Bank & Trust Com- 
pany, of which George L. Ramsey was cashier. The firmi of 
Kaleigh & Clarke was unable to pay the bank anything upon 
tliis indebtedness, and Ramsey notified W. B. Raleigh, who, 
with Albert G. Clarke, Sr., composed the firm, "that, unless 
the matter was fixed up at once, he would attach Mr. Clarke," 
to which Raleigh replied that he (Raleigh) had made every 
effort, but was at the end of his resources. Raleigh then sent 
for Charles A. Clarke, and acquainted him with the situation. 
In the meantime the power of attorney was placed of record. 
Then followed a series of negotiations extending over a number 
of days. The result was that Raleigh turned over all his prop- 
erty to Albert G. Clarke, Sr. AlS he said, "I turned over 
everything that I had; the interest in Raleigh & Clarke and 
eveiything; made a clean sweep." He also, in the name of 



240 MUTII ET AJa. V. GODDARD ET AL. [MST. T/OS 

Ealeigh & Claxke, executed to the Union Bank & Trust Com- 
pany seven note® for the sunii of $5,000 each- These notes rep- 
resented the mpney already d*ue' the bank, and cash in hand 
which the bank advanced to pay thei other creditors of the firm. 
Charles A. Clarke then, assuming to act under his power of 
attorney, indorsed the notes as follows: "For value received, 
1 hereby guarantee the payment of the within notes at ma- 
turity, or at any time thereafter, with interest as specified, until 
paid, waiving demand, notice of nonpayment, and protests A. 
G. Clarke, by Charles A. Clarke, His Attorney in Fact" And, 
likewise acting as his father's attorney in fact, Charles A. 
Clarke thereupon executed to John H. Tucker, as trustee, and 
party of the second part, and the Union Bank & Trust Com- 
pany, party of the third part, a trust deed whereby he pur- 
ported to convey certain of his father's real estate for the pur- 
pose of securing the payment of the seven promissory notes 
aforesaid. In this deed of trust it was stated that the grantor 
"has granted, bargained, sold and conveyed, and does by these 
presents grant, bargain, sell, convey, and confirm, unto the said 
party of the second! part^ with full power of substitution to his 
suocesors in trust, and assigns, forever, the following described 
tiacts or parcels of land," etc It was provided in the trust 
deed' that in case of a default in the conditions thereof "the 
grantor herein does fully empowei* said trustee, original or sub- 
stituted, his suocesors or assigns^ and it is hereby made his 
special duty, at the request of the holders of the obligation se- 
cured hereby at any time made after default, as aforesaid, to 
take such steps as may be necessary for the collection of said 
debt, principal and interest, and to collect and sue for any 
rents due or to become due on said premises, and without pro- 
cess of law to enter upon and take possession of or let said 
premises, and either before or after said entry, when the trustee, 
his successors or assigns see fit, to sell the property herein con- 
veyed, or any part thereof, together or in parcels, at public 
auction, for cash or on credit, at a place, time, and after the 
advertisement by him given, substantially conforming to and 



28 Mont.] MuTH et al. v. Goddard et al. 241 

as required by law in the cases of sales on execution at the time 
oi the sale, and to eixecute and deliver to the purchaser or pur- 
chasers thereof good and sufficient deed or deeds in fee simple 
for the same, which shall vest the complete and unincumbered 
t'tle of the said property, and be a bar against the grantor here- 
iD, his heirs or assigns, and all persons claiming undei* them or 
any of them, of all right, interest, or claim in or to said prop- 
erty and all parts thereof. * '^ "^*" In the trust deed it was 
provided that an attorney's fee of five per cent, on the amount 
of the principal recovered should be a lien upon the property, 
akd be taxed and collected as are other cost-s, in case the condi- 
tions of the indenture be enforced by an action in court. 

All these negotiations were completed on December 16, 1899. 
On December 23 following Albert G. Clarke, Sr., died. In 
due time the seven notes were presented in the form of a claim 
against the estate of Albert G. Clarke, deceased, and allowed. 
Thereafter the said notes and tinist deed were assigned to one 
L A. Goddard. Some time after the m-aturity of the notes, 
Goddard, through his attorneys, Cullen, Day & Cullen, com- 
nenced to execute the power of sale contained in the trust deed. 
Thereupon William Muth, as administrator of the estate of 
Albert G. Clarke, deceased^ William H. Clarke, and Albert- 
G. Clarke, Jr. (the two Clarkes claiming to be entitled to the 
"whole of the residue of the said estate to the exclusion of their 
brother Charles A. Clarke), as plaintiffs, commenced this ac- 
tion against the said L. A. Goddard, Cullen, Day & Cullen, 
and Charles A. Clarke, as defendants, to enjoin the defendants 
from selling the lands described in the trust deed' under the 
power of sale, etc Upon the filing of the complaint a tempo- 
rsjy restraining order was issued, together with an order to 
show cause why the injunction should not be granted. 

Upon the hearing of the order to show cause the court en- 
tered its order g^-anting the injunction as prayed for. From 
ibis order the defendants appeal. 

Messrs. Cullen, Bay <& Cullen, for Appellants. 

Vol. XXVIII— 16 



24:i MUTH ET AL. V. QoDDABD ET AL. [Mar. T/03 

The power of attorney was broad and comprehensive enou^ 
to authorize C. A. Clarke to execute the deed of trust in queer 
tion. (Barr v. Schroeder, 32 Cal. 618; Wood v. McCcdne, 
(Ala.), 42 Am. Dec 613; Mechem on Agency, 1st Ed. Sec 6, 
304, 391 ; 18 Ahl & Eng. Ency. Law, 1st Ed. p. 873 ; Story 
on Agency, Sees. 61, 58, 69, 74; Marr v. Oiven (Me.), 39 Am. 
Dec 600 ; Posner v. Bayless, 59 Hd. 56 ; Reirdck v. Wheeler, 
4 McCrary, 119; Carson v. Smith (Minn.), 77 Am. Dec. 539; 
Burnett v. Boyd, 60 Miss. 627 ; 1 Am. & Eng. Ency. Law, 2d 
Ed, 1902 ; Wimberly v. Windham, 16 So. 23 ; Lamy v. Burr 
(Mo.), 88 Am. Dec 135; Heard v. Pierce, 54 Am. Dec 757; 
Benjamin v. Benjamm, 39 Am. Dec 384; Percy v. Hedrick, 
98 Am. Dec 774; Merchants^ Bamk v. Bavk, 44 Am. Dec. 
665; Foster v. Smith, 88 Am, Dec 604; Civil Code, Sees. 
3250, 1941.) 

Messrs. Walsh & Newman, and Messrs. Toole & Bach, for 
Respondents. 

Under the power of attorney, C. A. Clarke did not have 
authority to guarantee the payment of the notes of the firm of 
Raleigh & Clarke, and to execute the mortgage or deed of trust 
to secure that guaranty. {Nipple v. Hammond, 4 Colo. 211 ; 
Wolfley V. Rising, 8 Kan. 278 ; Bossiter v. Bossiter, 8 Wend. 
495 ; Batty v. Carswell, 2 Johns. 48 ; Bovndtree v. Davidson, 
18 K W. 518 ; Claflin v. C. J. Works, 11 S. K 721 ; Reynolds 
V. Terrel, 86 111. 576 ; N. Y. Iron Mine v. BamJc, 39 Mich. 644 ; 
.Oovldy v. Metcaif, 12 S. W. 830; Malloye v. Conhrough, 31 
Pac 622 ; Reinhart on Agency, SecB. 197-201 ; Bank v. Hope 
Mining Co., 3 Mont. 146 ; 1 Parsons on Notes and Bills, 107 ; 
Stavnback v. Read, 11 Gratt 281 ; Little Rock v. State Bank, 
3 Ark. 227; Story on' Agency, 7th Ed., Par. 165; Tate v. 
Evoffis, 7 Mo. 419; Mechanics' Bank v. Schaumberg, 38 Mo. 
228; Farmvngton S. B. v. Buzzell, 61 K H. 612; Qvlich v. 
Grover, 33 K J. Law, 463; Cuyler v. Hastings, 5 Hun. 559; 
King v. Sparks, 77 Ga. 285 ; Hutton v. Tovms, 6 Leigh, 47 ; 



28 Mont] MuTH bt ai*. v. Qoddan} et al. 243 

Wallace v. Bank of Mobile, 1 Ala. (K S.) 565; Kingsley v. 
BarJc, 3 Yerger, 106 ; Nichol v. Green, PecFs Rept 227 ; A<- 
I wood V. Mwnnmgs, 7 B. & Ores. 278 ; 1 Am. & Eng. Ency. 

j Law, 2d. Ed., p. 1000; Civil Ck)de, Sees. 3197, 2213; In re 

Kern's Estate, 35 Atl. 231 ; Witz v. Oray, 20 S. E. 1019 ; Bo^ 
hart V. Obeme, 13 Pac. 392 ; ^5^fe v. BuckwaXter, 16 Atl. 
849; Meehem on 'Agency, Sec. 274; Dodge v. Hopkins, 14 
Wis. 685 ; GiibeH v. iIow;e, 47 N. W. 643 ; Penfold v. Warner, 
55 K W. 6«0; Sullivan v. JfiZZer, ?4 S.W. 819; Johnston v. 
FrigrA^, 6 Cal. 373 ; Frost v. ^m</^ Cattle Co., 17 S. W. 52 ; 
Home V. Ingrahami, 16 N. K 868 ; Ferreira v. DePeiv, 17 How. 
Pr. 418 ; Brandt on Sureties & Guaranty, Par. 20 ; Bryan v. 
Berry, 6 Cal. 394 ; Durham v. Oddie, 14 Am- Dec. 190 ; Coul- 
ter V. Portland Trust Co., 26 Pac 565 ; Mora v. Murphy, 23 
Pac 63; Bates on Partnerahip, Par. 158, 159; Campbell v. 
Hastings, 29 Ark 512.) 

A power of sale of mortgaged premises on default, inserted 
in a mortgage, based on a valuable consideration, cannot be re- 
voked by any act or deed of the mortgagor ; but is revoked or 
ceases the instant of his death, and cannot thereafter be exe* 
cuted. (Kerr, Supplement to Wiltse on Foreclosure of Mort- 
gages, p. 1190; Johnson v. Johnson, 27 S. C. 309, 3 S. Ec 606 ; 
Lathrop V. Brown, 15 Ga. 312 ; Yates v. Prior, 11 Ark. 58 ; 
Jones on Mortgages, Sec 1794; Wilkins v. McOee, 13 S. E. 
84; Locket v. Hiil, Federal Cases, 8443.) 

Foreclosure under a power of sale is inconsistent with the 
probate law. (Code of Civil Procedure, Sees. 2603, 2610, 
2701 ; Robertson v. PaAd, 16 Tex. 472 ; McLayie v.. Paschal, 47 
Tex. 369; Black v. Rockman, 50 Tex. 94; Abney v. Pope, 52 
Tex. 228 ; Rogers v. Watson, 17 S. W. 29 ; Williams v. Wash- 
ington, 19 S. K 1.) 

The alleged trust deed provides fees for the trustee and at- 
U mey. This is beyond the scope of power imder the power of 
attorney. {Pac. Rolling Mills Co. v. Dayton, etc. Ry. Co., 5 
Fed. 852; Code of Civil Procedure, Sees. 3150, 3146; Fitz- 
gerald v. Hansen, 16 Mont 474.) 



244 MxjTH ET AL. V. GoDDABD BT Ajj. [Mar. T.'OS 

MR* COMMISSIONER OAUAWAY prepared the state- 
ment of die case and the opinion for the court. 

The following questions have 'been presented and argued by 
C4unsel: (1) Was Charles A. Clarke authorized by the power 
of attorney to execute the trust deed conveying his principals 
individual property to secure the notes of the firm ? And here- 
in, did he have the authority to include in the trust deed a 
power of sale, and a provision for an attorney's fee in case of 
foreclosure? (2) Can the power of sale be executed now that 
Albert G. Clarke, Sr., is dead ? We will treat these questions 
seriatim. 

1. Authorities in great number have been cited by counsel 
in discussing the right of Charles A. Clarke to execute the trust 
deed under the power of attorney above set forth. We have 
examined them; all, and also have made much independent re- 
search, in order to arrive at a correct solution of the proposi- 
tions involved ; but no case has been cited to or discovered by 
UH, which, construing a power of attorney like the one in ques- 
tion, decides any similar point. 

The instrument in question may be denominated an unre- 
stricted general power of attorney. It will be noticed that the 
donor of the power placed his agent in a position to perform 
almost every act that may ordinarily arise in the transaction of 
business. Practically the only limitation it contains is to the 
effect that the attorney must act for the principal's use and bene- 
fit. It must be presumed that in giving this power the prin- 
cipal understood the full meaning of the words he employed, 
and undiertook the risk to which he might be subjected in case 
his agent should carry the given power to its utmost limit Be- 
ing a business man, he must have known that the transactions 
of business do not always result in profit, and he therefore dele- 
gated to hia agent, his son, very extensive powers, including the 
authority to pledge his credit and mortgage his property. Being 
about to leave the state of Montana for the winter, and knowing 
that he could not personally attend to his business affairs, he 



28 Mont] MuTH et al. v. Qoddabd et ai*. 245 

c(»iifided in his sooa, and placed him in his stead. And the fidu- 
ciary relation then established continued until the donor died. 

'Ifuch of the business of the world is transacted by agents, 
or through agencies, representing their principals. It is a rule 
recognized by all the authorities that the acts of the agent, 
within the scope of his employment, are the acts of his princi- 
pal, and the latter is bound by them. * * * The rules 
governing the construction of written instruments generally 
are resorted to in construing powers of attorney. (18 Am. & 
Eng. Enc. Law (1st Ed.) p. 871.) The obvious meaning of 
the terms used is not to be restricted or extended by implication 
in the absence of necessity. Another well supported rule re- 
lating to powers of attorney is that the intention of the parties, 
ae ascertained by the language used, governs." (White v. Fur- 
geson, 29 Ind. App. 144, 64 K E. 49.) 
; "But it is said the power must be strictly construed. This may 

be true, but it does not require that it shall be so construed as 
to defeat the intention of the parties. Where the intention 
j fairly appears from the language employed, that intention 

I must control. A strained construction should never be given 

I to defeat that intention, nor to embrace in the power what wa^ 

not intended by the parties." (Ilemstreet v. Burdich, 90 111. 
444. And see Marr v. Oiven, 23 Me. 65, 39 Am. Dec. 600; 
Carson v. Smith, 5 Mlinn. 78, 77 Am. Dec. 539 ; Lamy v. Burr, 
36 Mo. 85, 88 Am. Dec 135 ; Posner v. Bayless, 59 Md. 56.) 
"If the writing be open to two constructions, one of which 
would uphold while the other would overthrow the contract, the 
former is, where possible, to be chosen." (Mechem on Agency, 
Sea 304.) And where third persons are concerned in cases of 
doubt, the general rule is that the words in the power are to be 
construed most strongly against the grantor. (Story on Agency, 
Sec. 74; Code of Civil Procedure, Sec. 3140.) 

Under a general ix)wer of atomey, however, the agent cannot 
lawfully do any act unless it be for the principal's use and bene- 
fit Thus he cannot la^'f ully act under it for the private bene- 



246 MUTH BT AI.. V. GrODDAKD ET AL. [Mar. T.'OS 

fit of himself or third persons. Belying on this principle, ooun- 
sel for plaintifFs. contend that under the authority granted 
Charles A. Clarke he oould not lawfully execute the trust deed ; 
not for the reason that the power of attorney is insuflScient in 
form to warrant his execution of it^ but because in so doing he 
was securing a debt of the partnership, and thus was not acting 
for the use and benefit of his principal- We do not agree with, 
counsel. Albert G. Clarke, Sr., as a member of the firm of 
Ealeigh & Clarke, was liable to third persons for all the obli- 
gations of the partnership. (Civil Code, Sees. 1941, 3250.) 
Now, where the principal was liable for every dollar of the in- 
debtedness of the partnership, and the partnership was unable 
to pay its debtsi, and the other partner had arrived at the end 
of his resources^ what would have been the result if the attorney 
in fact had neglected to take any action whatsoever? Obvi- 
ously, the result would have been that the creditors of the firm 
of Raleigh & Clarke would have instituted suits and levied at- 
tachments; merged their claims in judgments running against 
Albert G. Clarke, Sr., and W. B. Ealeigh ; issued and levied 
execution; sold all the firm property, and then a sufficient 
amount of Clarke's separate property to satisfy their demands. 
Indeed, the creditors might have levied upon the firm prop- 
erty and the individual property of Albert G. Clarke, Sr., 
simultaneously. Such action might have entailed great loss 
upon the solvent partner, Clarke; and it appears that thi^ state 
of affairs inevitably would have resulted had it not been for the 
prompt action of darkens attorney in fact, and, under these 
circumstances, it seems clear that he acted for his principal's 
use and benefit. Whether any benefit accrued to W. B. Raleigh 
by reason of the action of Charles A. Clarke as attorney in fact, 
it is unnecessary to inquire. Doubtless, when Albert G. Clarke, 
Sr., paid the debts of the firm, it relieved W. B. Raleigh to some 
extent, but did it change the status of Clarke, Sr., when 
he was i)ersonally liable for the payment of all of these debts, 
irrespective of any benefit which might or might not incident- 
ally accrue to W. B. Raleigh, his partner ? 



28 Mont] MuTH et al. v. GIoddai^d et al. 247 

j 

Upon this point plaintiffs say in their brief, "It is not pre- 
tended that Charles A- Clarke could, or attempted to, release 
Mr. Kaleigh from the liabilities of the firm." The cases cited 
by plaintiff which they assert sustain their contention that the 
attorney in fact of a general partner cannot mortgage his prin- 
I cipal's property to aecrure a partnership liability, even though 

I the principal is solely responsible therefor, are not in point. 

No case has been cited by them which states the proposition 
that under a general power of attorney an agent may- not mort- 
gage his principal's property in order to save the principal from 
loss. They mainly rely upon the language found iii Mechem 
on Agency, Sec. 307. We think counsel place a broader con- 
struction upon this section than was intended by the learned 
author. The section, read as an entirety, does not conflict with 
OUT views in this case, and an inspection of the cases cited in 
support of the text discloses this dearly. 

There can be no doubt that the attorney in fact, imless es- 
pedaUy authorized so to do, cannot bind the principal for the 
private benefit of the agent himself, or of third persons only. 
And while we purpose to discuss the applicabilit;y of the au- 
thorities cited in Mechem on Agency and by counsel to the 
question here involved, we suggest, in passing, this question: 
When Albert G. Clarke, Sr., was liable for all the debts of the 
finn of Raleigh & Clarke, and his individual property was 
about to be seized by attachment levied by creditors of the finn, 
did not the agent act in the sole, separate, and individual busi- 
ness of his principal when he took such action as prevented him 
from being thus greatly injured!? And just here it must be re- 
membered that Albert G. Clarke, Sr., was at this time the 
owner of all the property of Raleigh & Clarke, Raleigh, while 
still liable to the firm creditors, had transferred all his property 
to Clarke. 

The first case cited by Mr. Mechem in support of Sec- 
tion 307, supra, and discussed by counsel, is Stainhach v. 
Bead, 11 Grat 281, 62 Am. Dec. 648, in which it appears that 
the controversy arose over a bill of exchange which was not 



248 MuTH ET AL. V. GoDDARD ET AL. [Mar. T/08 

drawn in the business of the principal, bnt in that of the attor- 
ney in fact exclusively. Attwood v. Munnings, 7 B. & C. 278, 
i Eng. Rul. Cases, 364:, is a leading and much misquoted case. 
The defendant had given to his wife a power of attorney au- 
thorizing her to accept for him "such bill or bills of exchange 
as should be dirawn or charged on him by his agents or corres- 
pondents as occasion should require/' She accepted a bill of 
exchange whicl^ was not drawn by the principal's agent for that 
purpose ; in other words, tlie drawer of the bill of exdbange had 
no authority to draw it, nor was it within his ostensible au- 
thority. The court held that the wife, as attorney in fact, ex- 
ceeded her powder in accepting the bill, as the agent who drew 
it exceeded his in drawing it North River Bank v. Aymar, 
3 Hill, 262, was a case in which the attorney in fact executed 
notes for the accommodation of third persons, the notes having 
no connection with the principal's business. The notes were, 
however, drawn within the ostensible authority of the attorney 
in fact ; and, while they were held to be fraudulent as between 
the principal and the attorney in fact, nevertlieless they were 
held to bind the principal when in the hands of a bona fide 
holder. In the case of Camden Safe Deposit and Trust Co. v. 
Abbott, 44 X. J. Law, 257, the note in suit "was put forth for 
the personal benefit of the attorney, who converted its proceeds 
to his own use." In ^Vallace v. Branch Bank at Mobile, 1 Ala, 
(N". S.) 565, the attorney in fact was given authority "for the 
plaintiff and in his name to draw or indorse promissory notes," 
etc,, and the court said: "It is very clear that there is no ex- 
press delegation of authority to the attorney to draw or indorse 
notes for the mere accommodation of third persons ; such notes, 
though they might be drawn or indorsed in his name, certainly 
would not be for the principal himself. Gallagher's right to 
make and negotiate paper was not unlimited, but was to be 
restricted to a transaction in wliich the plaintiff at least had 
tlie semblance of interest," In Adams Express Co. v. Trego, 
35 Md. 47, it was held that a general superintendent of the 
express company, with authority to employ and discharge agents 



28 Mont] MuTH et ai.. v. Goddaiid et al. 249 

I and direct their oonduct, make oantracts, and exercise a general 
' supervision over the business of the company, had no power to 
license one of his employes, an assistant superintendent, to 
j engage in and carry on a businese in competition with and in- 
I jnrious to the express company. The court said, "The powers 
of an agent are to be exercised for the benefit of the principal 
I only, and not of the agent or of third paxtieB.'^ 

Plaintiffs also quote at length from^ Mechanics' Bank v. 
Schaumburg, 38 Mo. 228. In that case it appeared that Or- 
I leana C. Schaumburg and Martha A. Wills each gave to Johv 
W. Wills a power of attorney authorizing him "in her business, 
for her use, and in her name" to perform certain acts ; among 
others, "to borrow money and execute notes," Wilis was presi- 
dent of the Mechanics' Bank, to which institution he was in- 
debted in the sum of $45,000. As attorney in fact he executed 
notes in the joint names of his two principals for $85,000 to 
the cashier of the bank, who drew checks for the amounts in 
favor of Wills, and the latter immiediately deposited the same 
to his own credit in the bank. All of this money was used hy 
Wills for his private benefit. The bank knew that the loan was 
actually made to John W. Wills in his name, for his use, and in 
his business. The court correctly held that Wills' principals 
were not bound by such acts on the part of their agent. The 
court held in Ferreira v. Depem, 17 How. Prac 418, that the 
words employed in the power of attorney did not confer upon 
the attorney the right to transfer all the principal's pro]3erty to 
a trustee for the payment of his (the principal's) debts. In 
Johnston v. Wright, 6 Cal. 373, the principal authorized tlie 
attorney in fact "to settle and adjust all partnership debts, ac- 
counts, and demands, and all other accounts and demands now 
subsisting, or which may hereafter subsist, between me and 
any person or persons whomsoever," and, among other purposes, 
the power was given to execute releases. The attorney dis- 
charged a debt due the principal and two others jointly. In 
reaching its conclusion the court said: "In Attwaod v. Mun- 
nings, 7 Barn. & Cress. 279, the power was to endorse bills 'for 



250 MUTH ET AI.. V. QODDABD KT AL. [MeT. T.'OS 

the principal, in his name, and to his use,' and also to ^accept 
bills drawn, by his agents or correspondents/ In the suit upon 
a bill drawn by one of the partners of th.e principal for the 
benefit of the partnership, and accepted by the agent, it was 
held that the power extended only to the individual business 
of the principal, and not to his partnership affairs." It is ap- 
parent that the court did not understand the ruling in Aitwood 
V. Munnmgs, as no such decision was reached in that case. The 
Californa court then went on to say that, as the debt released 
Vras neither an individual nor a partnership debt, but a joint 
debt, the language of the power of attorney was not broad 
enougjh to authorize the attorney's act^ and said that, if the 
principal had personally executed the release, and had used 
only the language contained in the power of attorney, it would 
have been totally ineffectual to release the covenant on whidb 
the controversy rested. 

Whether the agents in the last two cases cited acted or as- 
si^med to act for the use and benefit of their respective princi- 
pals, we are unable to ascertain. All of the other authorities 
cited by plaintiffs will be found, upon examination, to treat of 
cases wherein the agent acted either for the private benefit of 
himself or third persons, or eke clearly transcended the au- 
thority granted him. 

In the power of attorney before us Charles A. Clarke is given 
authority "to sell, remise, release, convey, mortgage, and hy- 
pothecate lands, tenements, and hereditaments upon such termfi 
and conditions and under such covenants as he shall see fit." 
And also "to sign seal, execute, and deliver and acknowledge" 
such mortgages, hypothecations, bills, bonds, notes, receipts; 
evidences of debt, and "such other instruments in writing of 
whatever kind and nature as may be neoeesaiy or proper in the 
premises." Under the languge need, can it be successfully con- 
tended by any one that Charles A. Clarke had not the right to 
execute and deliver notes, mortgages, and hypothecations ? If 
lie could execute such, for what purpose would the instruments 
b© executed ? Certainly to secure debts on the part of the prin- 



28 Mont] MuTH et al.. v. Goddard et al. 251 

cipal. When the principal executed the power of attorney he 
must have contemplated that at some time it would be neoes- 
Baiy for his attorney in fact to cKeoute instruments in writing 
in recognition of debts owed by him, the principal ; otherwise, 
for what purpose were such words as we have last quoted in- 
serted in the power of attorney ? {Lwmy v. Burr, 36 Mo. 85, 
88 Am. Dee. 135.) If we were toi say that the attorney in fact 
had no right to execute notes, mortgages, and hypothecations, 
we might as well say that the principal never executed any 
power of attorney at alL We have heretofore shown that the 
debt secured by the trust deed in question was the principal's 
debt, and, after W. B. Raleigjh had executed the instruments 
conveying all of his property to Albert G. Clarke, Sr., the debt 
secured was practically the sole and individual debt of Glarke, 
as between himself and Ealeigh. The attorney in fact could 
not take a new partner into the firm of Ealeigh & Clarke, and 
leither could he dissolve the partnership under his power ; but 
when Ealeigh, the other partner, voluntarily turned over all of 
his property to Clarke, Clarke's attorney in fact, under the 
power given hin^ had the right to receive and protect it. 

Plaintiffs contend that Charles A. Clarke, as attorney in fact, 
had no jight to execute the guaranty which he indorsed upon the 
notes. As we view it, this guaranty was useless and nugatory. 
Albert G. Clarke, Sr., was already liable for the payment of 
the notes, and the guaranty executed on his behalf imposed upon 
him no additional obligations whatever, as it was in terms a 
guaranty of his own debt {In re Wm. H, Blunter & Co, (D. 
C), 13 Fed. 622.) The question, then, is, as Charles A. Clarke 
had the right as attorney in fact to secure the payment of the 
notes in question, did he have the right to execute the trust 
deed in controversy, including the power of sale ? Every gen- 
eral power implies every particular power necessary to its exer 
due or performance; in other words, "the authority to accom- 
plish a definito end carries with it the power to adopt the usual 
legal means to accomplish the object, Chitty on Contracts (Ed. 
1860), 236; Anderson v. Coordey, 21 Wend. 279." (Piercy 
V. Eednch, 2 W, Va. 468, 98 Am. Dec. 774.) 



252 MuTii ET AL. V, GrODDARD ET AL. [Mar. T/03 

In the case of First National Bank v. Bell S. & C. M. Co,, 
8 Mont 32, 19 Pac. 403, the court, speaking through Mr. Chief 
Justice McConnell, said : "While the exact boundary between 
mortgages with powers of sale, and deeds of trust, is not very 
clearly defined, we think the deed in question should be classed 
with the former. * * * But, from the view we take of it, wo 
do not think it important to determine to which class it technic- 
ally belongs. * * * ^A mortgage is a pledge or security 
for a debt^ w^hatever may be the form which the transaction 
tdkes, whether a simple mortgage deed in form, or a mortgage 
with a power of sale, or a deed in trust, or a deed absolute on its 
face, accompanied by an agreement in writing to reconvey or 
10 sell, or to do any other thing upon the payment of a certain 
simi of money. Courts of equity look upon it as a mortgage, 
and deal with it as such.' Perry on Trusts, Sec. 602d.'^ In 
reviewing and affirming this case the United States Supreme 
Court said : "The power of sale in the indenture, whether wc 
call it a deed of trust or a mortgage, does not change its char- 
acter as an instrument for the security of the indebtedness 
designated, but it is an additional authority to the grantee or 
mortgagee, and, if he does not choose to foreclose the mortgage 
by any of the ordinary methods provided by law, he can pro- 
ceed under the power added for the sale of the property to ob- 
tain payment of the indebtedness." (Bell S. & C, M. Co. v. 
First Nan Bank, 156 U. S. 470, 15 Sup. Ct. 440, 39 L. Ed. 
497.) Section 3821, Civil Code, provides: "A power of sale 
may be conferred by a mortgage upon the mortgagee or any 
other person, to be exercised after a breach of the obligation for 
which the mortgage is a security." Section 1293, Code of 
Civil Procedure, provides : "When a mortgage confers a power 
of sale, either upon tlie mortgagee or any other person, to be 
executed after a breach of the obligation for which the mortgage 
is a security, either an action may be maintained under this 
cl.apter to foreclose, or proceedings may be had under the pro- 
visions of the mortgage,'' We tiierefore conclude that Charles 
A. Clarke, as attorney in fact, had the right to execute a mort- 



28 Mont] MuTii et al,. v. Goddabd et al. 253 

gage in the. form, of a trust deed, containing a power of sale, 
just as he would have had the right to ecsecute a mortgage in 
the ordinary form. Creating a trustee with power of substi- 
tution to his successors in trust was not delegating a delegated 
power. In effect, it merely provided a means for obviating 
the appointment of a receiver and foreclosure by an action in 
court in case of a default by the principal. FurthcrnuTC, 
Charles A. Clarke under the trust deed conveyed away the 
whole legal title. His power over the property then ceased. 
His act was not a delegation of power, but an execution of the 
power conferred under the power of attorney. (Lamy v. Burr, 
supra,) 

It is also contended by plaintiffs that, even had Charles A. 
Clarke, as such attorney, the right to execute the trust deed in 
question, he had no right to include therein a provision for an 
attorney's fee. It is unnecessary for us to decide this question. 
The mortgage foreclosure was commenced under the power of 
sale therein contained, whereas it is distinctly specified in the 
trust deed that the attorney's fee shall be collected only if the 
mortgage be foreclosed by an action. Plaintiffs are therefore 
cc*mplaining of something which is not in controversy in this 
action. 

2. Can a power of sale be executed after the death of the 
mortgagor? The decisions are not in harmony as to whether 
such a power can be so executed, for the reason that some affirm 
and some deny the power to be one coupled with an interest 
If the power is one coupled with an interest, it can be executed 
after the death of the grantor; otherwise not. Chief Justice 
Marshall, in- Hunt v. Rovsmaniet's Admmistrators, 8 Wheat 
174, 5 L. Ed. 589, in speaking of such a power, uses the foUow- 
icg language : "We hold to be clear that the interest which can 
protect a power after the death of a person who creates it must 
be an interest in the thing itself. In other words, the power 
must be ingrafted on an estate in the thing. The words them- 
selves, would seem to import this meaning. 'A power coupled 
with an interest' is a power which accompanies or is connected 



254: MUTH BT AL. V. GoDDAKD BT AL. [Mar. T/08 

with an interest" In Bergen v. Bennett, 1 Gaines' Cases, 1, 
2 Am. Dea 281 — a leading case on this subject — -the court 
said : "It is admitted that a naked authority expires with the 
life of the person who gave it ; but a power coupled with an in- 
terest is not revoked by the death of the grantor. In my opin- 
ion, the power contained in the mortgage is of the latter descrip- 
tion. A* power simply collateral and without interest, or a 
naked power, is when, to a mere stranger, authority is given to 
disposing of an interest in which he had not before, nor hath 
by the instrument creating the power, any estate whatsoever. 
But when power is given to a person who derives, under the in- 
strument creating the power or otherwise, a present or future 
interest in the land, it is then a power relating to the land." 
It was said by our own court, in First National Bank v. Bell 
S, & C. M. Co., supra: "But the mortgagee has an interest in 
the land mortgaged. He* has a lien upon it for the security of 
his debt, and this will support the power of sale, and so couple it 
with an interest in the land that it becomes a part of the security 
and irrevocable." Says Mr. Jones, in his work on Mortgages 
(Section 1792) : "This being [a power] coupled with an in- 
terest in the estate cannot be revoked or suspended by the mort- 
gagor. Of course, after his death the power cannot be exercised 
in his name, but the authority to execute it in the name of the 
grantee continues." And see cases cited; Whitmore v. San 
Francisco Savings Union, 50 Cal. 146 ; More v. Calkins, 95 C5al- 
435, 30 Pac 583, 29 Am. St. Rep. 128. 

From the foregoing authorities it clearly appears to us that 
the power of sale included in the trust deed in question is a 
power coupled with an interest; but, irrespective of this, the 
legal title to the property having passed to the trustee and from 
the mortgagor, the death of the latter could in no wise affect 
the trustee's right to carry out the trust which the mortgagor 
tad reposed in him. 

It is argued, however, that foreclosing under a power of sale 
is inconsistent with our probate law, and that the moidtgagee 
should enforce his rights either through the regular course of 



88 Mont] Dtsuninck v. West Gal. Ikr. Co. 255 

administratioii or by foreclosure in court This argument can- 
not be maintained. ^^The law may suspend its own process. 
As it gives the process, it may regulate it But deeds of trust 
and mortgages with the power of sale arise from the consent and 
agreement of parties, and there is no propriety in depriving 
crtditors of the fruits of their foresight and caution.'* (Beatie 
V. Butler, 21 Mo. 313, 64 Am. Dec. 234.) The Texas eases 
cited by plaintiffs are not in point See In re HorsfalVs Estate, 
20 Mont 495, 52 Pac 199. It follows that the trustee or his 
successor in trust, having the legal title, could execute the power 
of sale (a power coupled with an interest) without reference 
to the administration of the mortgagor's estate, if he so elected. 
(Code of Civil Procedure, Section 2603.) 
In our opinion, the order should be reversed. 

Per Cubiam. — ^For the reasons given in the foregoing opin- 
icD, the order is reversed, and the cause remanded. ' 

Eehearing denied June 13, 1903. 



DEUNINCK ET AL., Appellants, v. WEST GALLATIN 
IRRIGATION COMPANY, Respondent. 

(No. 1,580.) 
(Submitted May 1« 1903. Decided May 25, 1903.) 

Damages — Contracts — Provision for Liquidated Damages — 
Validity — Burden of Proof. 

1 A contract bound the defendant, an Irrigation company, to furnish to 
plaintiff a certain amount of water during a certain season, and provided 
that, if the company should for any reason fail to deliver the water, it 
would return to plaintiff the money paid by him, and plaintiff agreed to 
accept the same,' and to release the company for any damage arising from 
such failure. Held to fall clearly within Section 224S, Code of Civil Pro- 
cedure, and to be void on its face to the extent of the liquidated damages 
agreed on in case of a breach. 



256 Deuninck v. West Gal. Ire. Co. [Mar. T.'OS 

2. Where a suit is brought on a contract for the actual — and not the liquidated 
— damages, it is for the defendant to show by proper answer and compe- 
tent proof that the contract for stipulated damages is valid under Code of 
Civil Procedure, Section 2244 ; such question cannot be presented to the 
court by demurrer to the complaint. 

Appeal from District Court, Gallatin County; F, K. Arm- 
strong, Judge, 

Action by D. E. Deuninck and another against the West 
Gallatin Irrigation Company. Judgment for defendant Plain- 
tiffs appeal. Keversed. 

Mi\ A, J. Walrath, Mr, W, R, C, Stewart, and Messrs. Hoi- 
lowoAj & Hoffman, for Appellants. 

The complaint states a cause of action, and was therefore 
good on general demurrer. {Jacobs Sultan Co, v. U, M, Co,, 
17 Mont 61; Code of Civil Procedure, Section 1003; Jessup 
V. Jessup, 34 ISr. E. 1017.) 

The contract falls squarely within the inhibition of Section 
2243, Civil Code, and is void to the extent that it atempts to 
fix the amount of damages for a breach of the contract in an- 
ticipation thereof. (Oreenleaf v, S. C, H. £ A, Works, 21 Pac. 
369 ; Easton v. Crcssen, 34 Pac. 622 ; Dretv v. Pedlar, 25 Pac 
749.) 

Even if the contract be not void in the particular above noted, 
still, the provision for the return of the money for a breach of 
the contract does not constitute liquidated damages, and plain- 
tiffs are entitled to recover whatever damages they actually suf- 
fered. (Pengra v. Wheeler, 34 Pac. 354; O'Keefe v. Dyer, 
20 Mont 477; C, S, N. Co, v. Wright, 6 Cal. 258; Potter v. 
Ahrens, 110 Cal. 681; Pacific Factory v. Adler, 90 Cal. 110.) 

In order to sustain the demurrer as to the third ground, the 
complaint must be both ambiguous and uncertain. {Kraner v. 
Halsey, 82 Cal. 209, 22 Paa 1137 ; WUhoit v. Cumwngham., 
87 Cal. 453, 25 Pac. 675 ; Greenbaum v. Taylor, 102 Cal. 624, 
36 Pac 957.) 



26 Mont] Deuninck v. West Gcal, Ire, Oo. ^ 267 

Messrs. Ilartman & HartmaUj for Respondent. 

Appellants must recover upon this contract if at all, and they 
are limited in their recovery by the terms of the contract. Ap- 
pellants insist in their brief that the contract is one for liqui- 
dated damages and hence void within the purview of Section 
2243 of the Civil Code. Respondent insists, first, that it is not 
such a contract, but that it is simply a contract reciting the 
probable inability of respondent to furnish water for irrigating 
purposes to appellants, and that in the event of such probable 
failure respondent is to return the money — $258 — which has 
been paid, and appellants are to hold harmless the said company 
for any loss or damage arising from its failure or inability to 
furnish said Avater or any part thereof as aforesaid ; and, second, 
that if the contract should be construed to be one for liquidated 
damages that it comes within the purview of Section 2244 of 
the Civil Code, in that it would be "impracticable or extremely 
difficult to fix the actual damages" which would accrue to ap- 
pellants by reason of the failure of respondents to comply with 
such contract 

A complaint must proceed upon some definite theory, and on 
that theory the plaintiff must succeed, or not succeed at all. 
The complaint cannot be made elastic so as to take form with 
the varying views of counsel. (Mescall v. Tully, 91 Ind. 96, p. 
99; State v. Foulhes, 94 Ind. 493, p. 498; M, S, & N, T. R. 
R, Co. V. McDonald, 21 Mich. 165, 4 Am. Rep. 466, p. 481-2; 
Salisbury v. Hoic, 87 K Y. 128, p. 131; Elliott's Gen. Prac 
Vol. 1, par. 87.) 

MR. COMIVIISSIOKER CIAYBERG prepared the opin- 
ion for the court. 

This is an action upon a wiritten contract, by which it is 
claimed that respondent agreed to furnish certain water to D. E. 
lieunind: for the purpose of irrigating 129 acres of his land. 
The complaint sets forth the contract^ and then alleges that, in 
reliance upon its terms, plaintiffs prepared their land for eulti- 
VoL xxvin— 17 



268 Deuninck v. West Gal. Irb. Co. [Mar. T.'OS 

vation, and planted crops ; that respondent failed to furnish the 
water contracted for, and that because thereof plaintiffs were 
damaged in the sum of $1,981.28. The respondent demurred 
to this complaint' on three distinct and separate grounds, but 
abandoned two of them upon the argument, and only insisted 
on the remaining one, which was "that the complaint does not 
state facts sufficient to constitute a cause of action." The de- 
D-urrer was sustined by the court below. Plaintiffs stood upon 
tbeir complaint, and judgment was entered in favor of defend- 
ant for its costs. Prom such judgment this appeal is taken. 

The contract sued uponis somewhat peculiar in its provisions, 
and for a better understanding of all its terms we quote it in 
full: 

"^Bozeman, Montana, June 20th, 1899. This is to certify: 
That the West Gallatin Irrigation Company has this day re- 
ceived from Eev. D. EL Deuninck the sum of Two Hundred 
and Fifty-Eight Dollars ($258.00) upon the following condi- 
tions, to-wit: Said West Gallatin Irrigation Company agrees 
to furnish to said D. E. Deuninck 129 inches of water for the 
irrigation of 129 acres of the land of said D. E. Deuninck, or 
any part of the same situate convenient for delivery for service 
from the ditch of the West Gallatin Irrigation Company, in the 
East % of Sec 24, T. 1 S., R. 3 East, said water to be fur- 
nished and delivered during the irrigating season of 1899. If, 
however, said company shall for any reason fail or be unable to 
deliver said water to said D. E. Deuninck, according to the 
terms hereof, it agrees and binds itself to return to said D. E. 
Deuninck — $258.00 — the amount of money so paid, and said 
D. E. Deuninck agrees to accept the same and to release and 
told harmless the said company for any loss or damage arising 
from its failure or inability to furnish said water or any part 
thereof as aforesaid. It being specifically understood and agreed 
between the parties hereto that the said West Gallatin Irrigation 
Company is liable, for various causes, to be unable to furnish 
the said water as herein set forth, and that in the event of such 
failure or inability to furnish the same and of damage accruing 



28 Mont] Deuninck v. West Gal. Irb. CJo. 259 

to said D. E. Defuninck by reason of such failure the said Two 
Hundred and Fifty-Eight Dollars ($258.00) constitute liqui- 
dated damages therefor and the payment thereof to the said D.. 
£. Seuninck shall constitute payment and settlement in full 
of such damages. In witness whereof the said D. K Deuninck 
has hereunto set his hand and seal, and the West Gallatin Irri- 
gation Company has caused its corporate name to be affixed by 
its manager, the day and year first above written. Executed in 
duplicate. Eev. D. E. Deuninck. [Seal.] (Signed) By E 
C. Kinney, General Manager." 

The questions argued all arise upon the construction of this 
contract, and the appropriateness and sufficiency of the allega- 
tions of the complaint as applied* to the contract when construed. 
Counsel for appellants contend: First, that this contract is 
void under the provision of Section 2243, Civil Code, to the 
extent that it attempts to fix the amount of damages for a breach 
thereof in anticipation of such breach ; and, second, if not void, 
the provisions for the return of the money in case of a breach 
of its terms do not constitute legal liquidated damages, as pro- 
vided in Section 2244, Civil Code, and claim that appellants 
2xe therefore entitled to recover whatever actual damage they 
have suffered because of the alleged breach thereof by respond- 
ent Counsel for respondent contend to the contrary upon both 
of these propositions. The two sections above referred to are 
as follows: 

"Sea 2243. Every contract by which the amount of damage 
to he paid, or other compensation, to be made, for a breach of an 
obligation, is determined in anticipation thereof, is to that: ex- 
tent void, except as expressly provided in the next section. 

"Sec. 2244. The parties to a contract may agree therein ijpxm 
an amount which shall be presumed to be the amount of damage 
sustained by a breach thereof, when, from the nature of the case, 
it would be impracticable or extremely difficult to fix the actual 
damage." 

It first becomes important to determine the character of the 
contract^ and ascertain whether it is one attempting to provldo 



260 DBUwmoK v. West Gai,. Ire. Go. [Mar. T/08 

. for liquidated damages in case of a breach of its terms by re^ 
spondent in anticipation thereof. It first recites the receipt of 
$258 by respondent from appellant Deunindc upon condition 
that respondent agrees to furnish him with 129 inches of water 
during the irrigating season of 1899 for the purpose of irrigating 
129 acres of land. Thus far it is plain, and needs no oonstriic- 
tion, and am.ounts to an absolute promise upon the part of the 
respondent, in consideration of $258 thus paid by Deuiiini'k, 
to furnish the water specified at the time stated. Thi^ com- 
prises the entire contract in so far as the furnishing of the water 
is concerned, for a breach of which the complaint was filed. It 
then attempts to provide for damages upon a breach thereof in 
the following language: "If, however, said company shall ^or 
any reason fail or be unable to deliver said water to said D. E. 
Deuninck, according to the terms hereof, it agrees and binds it- 
self to return to said D. E. Deuninck — $258.00 — the amount 
cf money so paid, and said D. E. Deuninck agrees to accept the 
same and to release and hold harmless the said company for any 
loss or damage arising from its failure or inability lo furnish 
said water or any part thereof as aforesaid." Then, as if neces- 
sary to make the above quoted clause more definite and certain, 
and to surely limit the liability of the respondent for a breach to 
the repayment of the consideration received therefor, we find the 
following clause : "It being specifically understood and agreed 
between the parties hereto that the said West Gallatin Irrigation 
Company is liable, for various causes, to be unable to furnish 
the said water as herein set forth, and that in the event of such 
failure or inability to furnish the same and of damage accruing 
to said D. K Deuninck by reason of such failure the said Two 
Hundred and Fifty-Eight Dollars ($258.00) constitute liqui- 
dated damages therefor and the payment thereof to the said D. 
E. Deuninck shall constitute payment and settlement in full of 
such damages." We see no legal distinction between the two 
clauses above quoted as to their purpose and effect Both were 
evidently intended! to accomplish the same purpose and produce 
the same result, viz., determining and fixing the amount of 



28 Mont] r>EUNiNCK v. West Gal. Ikb. Co. 261 

damages to be paid in case of a breach of the contract occurred. 
It seems that it was contemplated that a breach would probably 
occur, and respondent^ in anticipation of such breach, desired 
that the an^iount of damages which might accrue therefrom 
akould be limited to the amount of the oonsideration paid to it 
for such contract It will be noticed! that the contract is not one 
to furnish the water if the respondent is able so to do, and, if 
unable or prevented by any cause, to be excused therefrom, but 
it is one wliereby respondent agrees to furnish the amount of 
water specified absolutely, and at all events, with a provision 
that, if it fails so to do for any reason, it is only to be liable to 
the other contracting party for damages in an amount equal to 
the sum paid by him as a consideration for the contract. 

It seems to us, from a careful consideration of the contract, 
that it falls clearly within the provisions of Section 2243, supra, 
and is, therefore void to the extent of the liquidated damages 
agpeed upon in case of a breach. If the contract is void in law 
tci this extent, it is of the same legal effect as though such proi 
visions had been entirely omitted from its terms. It therefore 
was, in legal effect, a contract to furnish 129 inches of water 
during the irrigating season of 1899 for the purpose of irrigat- 
ing 129 acres of land. The complaint .was evidently framed 
upon this theory, and is clearly sufficient; 

As to the next contention, counsel for respondent claim that, 
even if it is a contract attempting to provide for liquidated 
damages for a breach, and is void to that extent^ under the pro- 
Tisions of Section 2243, supra, it is a good contract for liqui- 
dated damages under Section 2244, supra; that the suit should 
have been brought to recover such liquidated damages ; and, in- 
aimuch as the complaint is ijot framed on that theory, the de- 
murrer was properly sustained. Counsel seem to overlook the 
effect of Section 2243, supra, by which all contracts for liqui- 
dated damages are to that extent void, "except as provided in 
the next section." Therefore, if a suit be. brought on the con- 
tract for the actual, and not the liquidated, damages, defendant 
must show to the court as a matter of defense that it is errone- 



262 Dbuninok v. West Gal. Ibb. Co. [Mar. T.'03 

ously instituted. It must be shown to the court by proper plead- 
ings and competent proof that the contract falls within the pro- 
visions of Section 2244, supra. This does not depend entirely 
upon the contract itself. Facta must be pleaded and proven 
from which the court can say as a matter of law that the contract 
for liquidated damages is valid because "from the nature of the 
cajE»e it would be impracticable or extremely difficult to fix the 
aitual damages." The mere stipulations of the contract are in- 
sufficient for that purpose. (Patent Brick Co. v. Moore, 75 CaL 
205, 16 Pac 890; Pacific Factor Co. v. Adler, 90 Oal. 110, 27 
Pac. 36, 25 Am. St Rep. 102; Jack v. Svnsheimer, 125 CJal. 
563, 58 Pac 130; Long Beach, etc. v. Dodge, 135 Cal. 401, 67 
Pac 499.) It is therefore clear that a legal contract for stipu- 
lated damages, urged as a defense to a suit brought upon the 
contract to recover actual damages, cannot be presented* to the- 
court by demurrer to such complaint, but must be raised by an- 
swer alleging the existence of such facts as bring it clearly with- 
in Section 2244, swpra. 

We are of the opinion that the court below erred in overrul- 
ing said demurrer and entering judgment for defendant, and 
that the same should be reversed 

Per Cubiam. — ^For the reasons stated in the forgoing opin- 
ion, the judgment of the court below is reversed. 

Mb. Jitsticb Holloway was disqualified, and took no part 
in this decision. 



28 Mont] Frederick et al. v. McMahon. 263 



FREDEKIGK et al.. Appellants, v. McMAHON", 

' ' ' 28 3631 

Respondent. , I ^ ^^1 

(No. 1,583.) 
(Submitted May 15. 1903. Decided M^y 25. 1903.) 

Appeal — Bides of Supreme Court — Defective Record — Defect- 
ive Brief — Affirmance. 

Judcment below will be affirmed where the record and appellant's brief fall 
completely to comply with the requirements of the statutes and the Rnles 
of the Bnpreme Court 

Appeal from District Court, Cascade County; Dudley Du- 
Base, Judge. 

Action by W. EL Predierick and Thomaa A. Ray, partners 
doing bosinesB as Frederick & Ray, against Thomas McMahon. 
From a judgment in favor of defendant, and from an order 
overruling a motion for a new. trial, plaintiffs appeal. Affirmed. 

Mr. William Q. Downing, and Messrs. Toole & Bach, for 
Appellant& 

Mr. Ransom Cooper, for Respondent 

MR. COMMISSIONER OLATBEIRG prepared the opinion 
for the court 

The record and appellants' brief in this case so completely fail 
to comply with the requirements of the statutes and the rules 
of this courts that> under the cases of Cornish v. Floyd-Jones, 
26 Mont 158, 66 Pac. 838, Knobh v. Reed, 28 Mont 42, 72 
Pac; 304, and other numerous former dlecdsions of this court, 
none of the questions sought to be raised can be considered. 

We therefore advise that the judgment be affirmed. 

Per Cusiam. — ^For the reasons stated in the .forgoing opin- 
ion, the judgment in this case is affirmed. 



J?64 In re Weed. [Mar. T.'OS 



In »e weed. 

'.^"^ (No. 1.744.) 

(Submitted May 20, 1903. Decided May 25, 1903.) 

Attorney — Suspension from Practice — Reinstatement — Suffi- 
ciency of Petition, 

An attorney who has been suspended for two years for malpractice and criminal 
deceit, whereby he obtained money from a client, will, not be reinstated at 
the end of one year on a petition, signed by lawyers and citizens, reciting 
that he was suspended because he was Indebted to the client, and which 
does not express any regret for his culpable acts, or contain any assurance 
from him or the other petitioners that his future conduct will be upright. 

Original proceeding for the reinstatement of Elbert D. Weed 
as a member of the bar of the supreme court Reinstatement 
refused. 

Mr. Jos. Donovan, Attorney General, presented petition to 
court. 

MR JUSTICE MILBTJRN delivered tJie opinion of the 
ccurt. 

This matter is before us on the petition of Elbert D. Weed, 
and of others in his behalf, for his reinstatement as a member 
of the bar of this court. 

The court ordiered on May 26, 1902, that Mr. Weed be su^ 
pended from his office of attorney and counselor and deprived 
of the right to practice as such in the courts of Montana until 
the 26th day of May, 1904, at the expiration of which time he 
njigiht, under the terms of the order, upon proper petition, sup- 
ported by satisfactory evidence of good conduct meantime, be 
restored to the privileges of an attorney and counselor. Many 
persons join in praying that the petition of the applicant be 
granted. Many of these are law7ers of high standing, and others 
are persons of importance and prominenoe in the public service 
and in private life. It will not serve any useful purpose to state 



28 Mont] In be Weed. 265 

kerein at length, the reasons why Mr. Weed was subjected to dis- 
cipline. It will be sufficient to refer those who should know them 
to the opinions in In re Weed, 26 Mont 241, 507, 67 Pae. 308, 
68 Pac. 1115. 

Eeferring to In re Newton, 27 Mont 182, 70 Pac. 982, we 
find that a disbarred attorney was restored to the office of attor- 
ney and counselor upon it having been made to appear satisfac- 
torily to the court that the petitioner had, "since the order of 
disbarment, * * * lived an upright, honorable life; that 
in the estimation of his fellow citizens in the community in 
vhich he resides, and also of reputable memibers of the bar of 
this state, he is a fit person to be permitted to practice law in 
the state, and that he expresses the utmost contrition for his 
said offense.'' It is necessary that the applicant show much 
more than appears in the petition before us. He states that the 
order of suspension was made "by reason of a petition * * 
* and evidence given in support thereof by one Theodore 
Mayer, showing that the petitioner herein was indebted to said 
Mayer in a certain sum of money." Reading the opinion (26 
Mont. 507, 68 Pac. 1115), any one will see that the court did 
rot punish Mr. Weed for being indebted to Mr. Mayer. There 
has not been any such precedent ever established by this court, 
or by any other, so far as we are advised. If the very numerous 
signers of the petition in support of the application for rein- 
statement understood that the applicant was deprived of his 
office as attorney and counselor because he was indebted to 
Mayer, such understanding perhaps will account for the fact 
that so many recommended that the court permit him now to 
resume the practice of the profession of the law. 

The applicant does not mention or refer to any one of the 
diarges upon which he was found guilty ; he does not express 
any regret for any of his culpable acts; and we have, not any 
assurance from him or the other petitioners that his conduct 
hereafter will be as it should be, or in anywise different from 
what it was before his suspension. We affirm the reasons stated 



266 Hegaas v. Hegaas. [Mar. T/08 

ill the opinion reported heretofore (26 Mont. 507, 68 Pac* 
1115) when the order of suspension was made. 

Because the petition of the applicant does not state anything 
which shows that the appUcant has a just conception of the 
srrious nature of the several charges made and proven against 
him, or that he in any wise regrets having done any of the things 
which ha did, and because those who have joined in his petition 
dc not indicate in the slightest way that they understand why 
the order was made, or that the applicant fo«r reinstatement has 
repented of his errors, and further because we are of the opinion 
tliat the petition and the papers in support thereof would not 
be suflScient to induce favorable consideration even if the period 
of two years had expired, the application of Mr. Weed, made at 
the end of one year, is denied. 



HEGAAS, Appellant^ v. HBG-AAS, Respondent. 

(No. 1,587.) 
(Submitted May 26. 1908. Decided June 1, ISQt.) 

Setting Aside Default Judgment — Discretion of Trial Court — 
Appeal — Review. 

Since, under Code of Ciyil Procedure, Section 774, applications to set aside 
default judgments are addressed to the discretion of the trial court, its 
action thereon will not be interfered with unless a manifest abuse of dis- 
cretion is shown. 

Appeal from District Court, Missoula County; F. H. Woody, 
Judge. 

Action by Hans H. Hegaas against Enmia Hegaas. !Fjrom 
an order setting aside a default and judgment^ and permitting 
defendant to appear and defend^ plaintiff appeals. AfiBrmed. 

Messrs. Marshall & Stiff, for Appellant. 



88 Mont] ' SrrAjfTON v. Lewis. 267 

MR CHIEF JUSTICE BRANTLY delivered the opinion 
of the oourt 

Appeal from an order setting aside a default and judgment 
entered upon the failure of the defendant to appear and make 
defense- The service of summons was oonstructive, the defend- 
ant being a resident of the state of Washington at the time the 
action was brought The application was made upon, affidavits 
tending to show that the default and judgment were entered 
against the defendant through her excusable neglect in failing 
to interpose her defense within the time allowed by the statute. 
Under Section 774 of the Code of Civil Procedure such appli- 
cations are addressed to the discretion of the district court^ and^ 
in the absence of a manifest abuse of such discretion, this court 
will not interfere. We have examined' the affidavits filed by the 
defendant in support of her motion, and we are not able to say 
that the district court manifestly abused the discretion lodged 
ill it by the statute. The order complained of is affirmed. 

Affirmed. 



STANTON, Appbijlant, v. LEWIS, Respondent. 

(No. 1,686.) 
(Submitted May 26, 1003. Decided Jane 1, 1903.) 

Appeal — Transcript — Judgment Roll, 

tJnder Code of Civil Procedure, Section 1736, providing that on an appeal from 
a final Judgment the appellant must fnmlBh the court with a copy of the 
Judgment roll, the court, on appeal from a final Judgment, acquires no 
jurisdiction where the transcript contains no copy of any summons, proof 
of service, complaint, or other pleadings, constituting a part of the Judg- 
ment roll, within Section 1196. 

Appeal from District Court, Gallatin County^; F. K. Arm- 
strong, Judge. 



28 8671 
28 461 



268 State v. King. [Mar. T/08 

Action by E. F. Stanton against Ed. Lewis. From a judg- 
ment of the district court dismissing an appeal from a justice 
of liie peace, plaintiff appeals. Appeal dismissed. 

Mr, E. F. Stanton, in pro per. 

Mr. John A, Luce, for Eeepondent 

Per Curiam. — This is an appeal from a final judgment made 
and entered in the district court of Grallatin county upon the 
dismissal of an appeal to that court from the justice of lie pefice 
court. Section 1196 of the CJode of Civil Procedure specifies 
the papers which constitute the judgment roll. Section 1736 
of the same Cbde provides that on an appeal from a final judg- 
ment the appellant must furnish the court with a copy of the 
notice of appeal, of the judgment roll, and of any bill of excep- 
tions or statement in the case upon which the appellant relies. 
The transcript on appeal in this case contains no copy of any 
complaint, summons, proof of service, or of any other pleadings 
in the cause. There is therefore no judgment roll, within the 
meaning of Section 1196, eupra. The provisions of Section 
1736 are mandatory, and without the judgment roll this court 
has no jurisdiction to consider an appeal from a final judgment 

The appeal is therefore dismissed. 

Dismissed. 



STATE, Appellant^ v. KING, Respondent. 

(No. 1,944.) 
(Submitted May 26, 1908. Decided June 1. 1908.) 

Police Oflicer — Failure to Make Arrest — Crimmal Prosecution 
— Information — Constitutional Question — When Deter- 
md/ned. 



28 Mont] State v. King. 269 

1. Laws of 1903, Chapter CXI, Section 1, declares that It shall be the duty 
of every policeman or other peace officer, upon being informed by a citizen 
that any offense is being or is about to be committed within such officer's 
Jurisdiction, to immediately proceed to the place where the alleged offender 
is to be found, with the informant, if he so requests, and to arrest such 
offender, etc. Held, that an Information againist a policeman, alleging that 
he refused to proceed to the place where alleged offenders were to be found, 
was insufficient, the statute enjoining but one duty, which was to make an 
arrest, failure to perform which was the gist of tne officer's offense. 

2 A court will not pass upon the constitutionality of a statute unless it is 
absolutely necessary to a decision of the case. 

Appeal from District Court, Lewis and Clarice County; II, 
C. Smithj Judge, 

S. R. King was informed against for a violation of official 
duty as a policeman in failing to make an arrest, and on demur- 
rer to the information waa discharged, from which action of the 
court the state appeals. Affirmed. 

Mr. James Donovan, Attorney General, for the State. 

There are three duties which may be imposed upon a peace 
officer by House Bill 345 by any citizen of the state, and for 
failure to perform any one or more of them he is guilty of a 
violation of said law, as follows : ( 1 ) Upon receipt of the requi- 
site information to immediately and expeditiously proceed to 
the place where the alleged offender or offenders are to be found. 
(2) To proceed in company with the informant, if he so re- 
quests. (3) To arrest the alleged offender or offenders wher- 
ever they may be found. In the present information, the de- 
fendant is charged with a neglect to perform the first of these 
duties only, and that offense is clearly and without ambiguity 
stated in the information. It cannot be urged that the informa- 
tion is bad for failure to charge that the defendant refused to 
make an arrest, for, aa a matter of fact, he did not refuse to 
make an arrest, except by refusing to go to the place where the 
airest mi^t be made. By refusing to go to such place he clearly 
violated his duty as an officer, and under the provisions of said 
House Bill 345 liable to the penalty prescribed in Section 2 
thereof. 



270 State v. King. [Mar. T/08 

CbnstitutioBal provisions have not the slightest bearing upon 
the information in this case, although they might have if 
the information charged- the officer with a refusal to make an 
arrest, or if the question were raised by a person who might 
have been arrested by such officer, as^ for instance, in habeas 
corpus proceedings. {Nelson v. People, 33 111. 397.) 

The question of the constitutionality of a law cannot be 
raised by anyone not having an interest in the matter, or not 
being in point of fact affected by the act. (Oooley on Const. 
Lim., 196, and cases cited in note 3 ; 6 Am. & Eng. Ency. Law, 
p. 1090.) 

A question involving the constitutionality of a statute should 
bo determined only when it ia impossible to dispose of the case 
on its merits otherwise, and a court will be especially reluctant 
to investigate or determine the constitutionalily of a statute on 
preliminary motions * * *." (6 Am. & Eng. Ency Law, 
p. 1084, and cases cited in note 5 ; see, also, Cooley on Const 
LinL, p. 196; Nelson v. People, 33 111. 390; State v. Curler, 
67 Pac. 1075 (Nev.) ; MacGinnis v. Davis, 65 Pac. 364 (Ida.) 

On the prosecution of an officer for accepting a bribe for 
omitting to seize gambling devices, the officer cannot question 
the constitutionality of the statute authorizing the destruction 
of the property. {Newman v. People, 23 Colo. 300, 47 Pac 
278.) . ^ 

But assuming that the question can be raised by the defend- 
ant in this case by demurrer to the information, and conceding, 
for the sake of argument, that House Bill 345 is in conflict with 
the constitutional provisions invoked, in so far as said bill 
makes it the duty of the officer "to arrest such offender or of- 
fenders wherever they may be found," still we maintain that the 
bill is unconstitutional only to the extent that it is repugnant 
to the constitution. 

Where part only of a statute or section is unconstitutianal 
that part only is void, unless the other provisions are so depend- 
ent or connected that it cannot be presumed the legislature 
would have passed one without the other. (Sedgwick, Constr. 



28 Mont] State v. Kino. 271 

St. & Const. Law, p. 413, and cases cited; Sutherland, St. 
Constr. Sec 169 ; People v. Hill, 7 Gal. 97 ; Nelson v. People, 
33 HL 390 ; Commonwealth v. Hitchmgs, 5 Gray, 482 ; Mayor 
V. Dechart, 82 Md. 369 ; Mobile, etc. R. R. v. State, 29 Ala. 
573 ; Lynch v. Steamer Econonuif, 27 Wis. 69 ; State v. TTA^eJer^ 
25 Cbnn. 290 ; 6 Am. & Eng. Ency. Law, p. 1088.) 

'With the wisdom or expediency of a law the judiciary has 
nothing to do; such questions address themselves solely to the 
law-making department of the government" (6 Am. & Eng. 
Ency. Law, p. 1086.) 

When the statute is otherwise free from objections on consti- 
tutional grounds, the courts cannot avoid its application and 
enforcement because it is absurd or unreasonable, nor because, 
b their judgment, it is an unwise enactment (Ibid,, citing: 
Hint Biver Steamboat Co. v. Poster, 48 Am. Dec 248 ; Mei- 
chants' Union Barb Wire Co. v. Brown, 18 Kep. 591 ; see, also, 
CJooley, CJonst. Lim. p. 220.) 

It is not within the province of the judiciary to inquire into 
the motives actuating the law-making body. (Cooley, Const 
Lim. p. 220 ; 6 Am. & Eng. Ency. Law, p. 1087, and cases cited 
in note 5 ; Ex parte Newman, 9 Cal. 502 ; McCvlloch v. Siate, 
11 Ind. 424; Stockton, etc. R..R. Co. v. Stockton, 41 Cal. 147.) 

K it be argued that it would be a vain thing to require an 
officer to proceed to the place where the oflFense was being com- 
mitted without making it his duty to arrest the offenders if he 
sliould find them, and that the legislature would never have im- 
posed that duty upon the officer without also requiring him to 
make an arrest, and that, therefore, the act in question is not 
K'parable, then the reply is that when the officer reaches the 
point where the breach of the peace is alleged to be occurring, 
if he finds that his information is true and that the offense is 
being committed at that time, or is about to be oonmiitted, it is 
then his duty,*under Section 1632, to arrest the offenders with- 
out a warrant; and for a failure to make an arrest under each 
circumstance he is punishable, under Section 270, Penal Code, 
(3 Cyc. Law, p. 883, and cases cited in note 78.) 



272 State v. King. [Mar. T.'OS 

By the use of the word "arrest" the legislature undoubtedly 
intended it in its legal significance. The constitutional pro- 
visions cited do not contain the word "arrest," but use the words 
"unreasonable searches and seizures." The word "arrest" is 
defined by Section 1630, Penal Code, as "taking a person into 
custody in the case and in the manner authorized by law." That 
section further provides that "an arrest may be made by a peace 
ofiicer or by a private person." Substituting for the word "ar- 
rest," as used in the statute under consideration, the definition 
of that term^ we find that by House Bill 345 it is made the duty 
of the peace oflBcer "to take into custody in the manner author- 
ized by law such offender or offenders wherever they may be 
found." The law in question does not pretend to define either 
the case or the manner in which the arrest shall be made. It 
does not authorize, or pretend to authorize, the officer to arrest 
for an offense which has been committed, unless, of course, such 
offense is a felony and he has reasonable grounds for suspecting 
the person arrested to be the offender. There is no intent ap- 
parent on the part of the legislature to authorize or require the 
officer to arrest a person who may be pointed out by the inform- 
ant because the informant may not accompany the officer, and 
if he does accompany the officer it is only for the purpose of 
guiding him to the place where the offense is being committed 
or about to be committed. 

The presumption of a legislative intent to violate the consti- 
tution is never to be assumed if the language of the statute can 
be satisfied by a contrary construction. The application of this 
rule requires that wherever a statute is susceptible of two con- 
structions, of which one would make it unconstitutional and 
the other constitutional, the latter is to be adopted. (Endlich, 
Constr. St, 178, and cases cited.) 

Laws are presumed to be passed with deliberation and ^^dth 
knowledge of all existing laws on the subject. (Sutherland, St^ 
Const, Sections 137 and 333.) 

In interpreting any clause of a statute it should be construed 
in connection with eixisting laws and should be interpreted in 



28 Mont] State v. King. 273 

the light of the objects and pttrposea that the legislature had in 
view in its enactment. (Ter, v. Coram' rs Cascade Co,, 8 Mont. 
407; see, also, Section 15, Political Code.) 

It will be presiuned in construing a statute that the legisla- 
ture did not intend it to have an effect which would have ren- 
dered it unconstitutional. (GUlette v. Hibbard, 2 Mont. 415.) 

Every presumption is in favor of the constitutionality of a 
l<^slative enactment, and the judicial department will be justi- 
fied in pronouncing it unconstitutional only when it becomes 
a manifest usurpation of power. (G Am. & Eng. Ency. Law, 
p. 1086, and cases in note 1 ; Cooky, Const. Lim., p. 218.) 

The power of the judiciary to declare a statute unconstitu- 
t?onal should never be exerted except where the conflict between 
it and the constitution is palpable and incapable of reconcilia- 
tion. {Stockton, etc. R. R. Co, v. City of Stockton, 41 Oal. 
147.) 

The unconstitutionality of a statute must be clear and mani- 
fest before a court should declare it, so that w-here any reason- 
able doubt exists as to its constitutionality it should be upheld. 
(6 Ahl & Eng. Ency. Law, p. 1085 ; People v. Van Oaskin, 5 
Mont. 352 ; People v. Ry, Go,, 35 Cal. 606 ; Ex parte Newnum, 
9 Oal. 502.) 

"An intention to take away or destroy individual rights is 
never presumed, and to give effect to a design so unjust and so 
unreasonable would require the support of the most direct and 
explicit affirmation declarative of such intent." (6 Am. & Eng. 
Enc Law, p. 924.) 

Messrs. Nolan & Loeb, for Respondent. 

At common law, as a general rule, an arrest could not be 
made, without tvarrant, for an offense less than felony, except 
for bi^each of the peace. (3 Cyc, 880, citing: Robertson v. 
State, 29 So. 535 ; Commomvealth v. Wright, 158 Mass. 149, 
88 If. E. 82, 35 Am. St. Rep. 475, 19 L. R A. 206; Scott v. 
&dndge, 154 Mass. 25, 27 K E. 677, 12 L. R A. 879; C(mr 

Vol XXVIII-18 



State v. King. [Mar. T/08 

Action by R F. Stanton against Ed. Lewis. From a judg- 
ment of the district court dismissing an appeal from a justice 
of the peace, plaintiff appeals. Appeal dismissed. 

Mr, E, F. Stanton^ in pro per, 

Mr. John A. Luce, for Respondent 

Per Cukiam. — This is an appeal from a final judgment made 
and entered in the district court of Gallatin county upon the 
dismissal of an appeal to that oourt from the justice of the peace 
court. Section 1196 of the Oode of Civil Procedure specifies 
the papers which constitute the judgment roll. Section 1736 
of the same Code provides that on an appeal from a final judg- 
ment the appellant must furnish the court with a copy of the 
notice of appeal, of the judgment roll, and of any bill of excep- 
tions or statement in the case upon which the appellant relies. 
The transcript on appeal in this case contains no copy of any 
complaint, summons, proof of service, or of any other pleadings 
in the cause. There is therefore no judgment roll, within the 
meaning of Section 1196, euprti. The provisions of Section 
1736 are mandatory, and without the judgment roll this court 
has no jurisdiction to consider an appeal from a final judgment 

The appeal is therefore dismissed. 

Dismissed, 



STATE, Appellant, v. KING, Respondent. 

<No. 1.944.) 
(Submitted May 25. 1906. Decided June 1. 1908.) 

Police Officer — Failure to Make Arrest — Criminal Prosecution 
— Information — Constitutional Question — When Deter- 
mined. 



28 Mont] State v. King. 269 

1. LawB of 1903, Chapter CXI, Section 1, declares that it shall be the duty 
of every policeman or other peace oflQcer, upon being informed by a citizen 
that any offense Is being or Is about to be committed within such officer's 
jnrlsdlctlen, to immediately proceed to the place where the alleged offender 
is to be found, with the informant, if he so requests, and to arrest such 
offender, etc. Heldj that an information against a policeman, alleging that 
he refused to proceed to the place where alleged offenders were to be found, 
was insufficient, the statute enjoining but one duty, which was to make an 
arrest, failure to perform which was the gist of tne officer's offense. 

2 A court will not pass upon the constitutionality of a statute unless it is 
absolutely necessary to a decision of the case. 

Appeal from District Court, Lewis and Clarke County; II, 
C, Smith, Judge. 

S. R. King was informed against for a violation of ofiScial 
duty as a policeman in failing to make an arrest, and on demur- 
rer to the information was discharged, from which action of the 
ccurt the state appeals. Affirmed. 

Mr, James Donovan, Attorney General, for the State. 

There are three duties which may be imposed upon a peace 
officer by House Bill 345 by any citizen of the state, and for 
failure to perform any one or more of them he is guilty of a 
violation of said law, as follows : (1) Upon receipt of the requi- 
site information to immediately and expeditiously proceed to 
the place where the alleged offender or offenders are to be f oimd. 
(2) To proceed in company with the informant, if he so re- 
quests. (3) To arrest the alleged offender or offenders wher- 
ever they may be found. In the present information, the de- 
fendant is charged with a neglect to perform the first of these 
duties only, and that offense is clearly and without ambiguity 
stated in the information. It cannot be urged that the informa- 
tion is bad for failure to charge that the defendant refused to 
make an arrest, for, as a matter of fact, he did not refuse to 
make an arrest, except by refusing to go to the place where the 
arrest might be made. By refusing to go to such place he clearly 
violated his duly as an officer, and imder the provisions of said 
House Bill 345 liable to the penalty prescribed in Section 2 
ftereof. 



2^6 State v. Kino. [Max. T/03 

ted, by any person or persons, within tiie limits of such officer's 
jurisdiction, to immediately and expeditiously proceed to the 
place where the alleged offender or offenders are to be found, 
in company with the informiant, if he so requests, and to arrest 
si.ch offender or offenders wherever they may be found." 

The first question is whether the information states a public 
offense, imder the terms of tlie above Act. We find upon exami- 
nation of the Act that it attempts to impose an official duty on 
the part of peace officers, and provides a punishment for neglect 
or violation of the same. What is the duty thus imposed, and 
is a violation of such duty alleged in the information ? 

A careful reading discloses that the Act seeks to impose the 
duty upon peace officers, when "informed by any citizen of this 
state that any offense against the laws of this state is being com- 
mitted or is about to be committed, * * * to immediately 
and expeditiously proceed to the place where the alleged offend- 
ers are to be found," and to arrest them. 

It is perceived that the duty is not alone to proceed "imme- 
diately and expeditiously to the place where the alleged of- 
fenders are to be found," but also to arrest theuL Were it not 
for the insertion of the words "immediately and expeditiously" 
the only duty imposed would be the arrest^ because of. the im- 
possibility of making an arrest without going to the place where 
the offenders are to be found. These words evidently were in- 
sc rted only for the purpose of compelling prompt action on the 
part of the officer. 

Counsel for the state argues that this Act imposes three sev- 
eral and distinct duties upon peace officers, as follows: "(1) 
Upon receipt of the requisite information, to immediately and 
expeditiously proceed to the place where the alleged offender or 
offenders are to be found; (2) to proceed in company with, the 
informant, if he so requests; (3) to arrest the alleged offender 
or offenders wherever they may be found." We cannot agree 
with counsel's contention. We are firmly of the opinion Aat 
the purpose of the statute is to provide for the arrest of the of- 
fender, and the making of such arrest is the ultimate duty im- 



28 Mont] State v. King. 27T 

posed. This duty consists of several steps or acts, and these 
steps or acts are each, and all parts and portions of this ultimate 
duty. None of them are separate or distinct duties in them- 
aelves, and therefore a violation of one or more of them, except 
possibly the final one, can be punished only upon an alleged 
yiolation of the duty to arrest The public offense declared by 
the statute is the violation of this ultimate duly. 

It appears from the information that the violation of duty 
chained is "that the said S. R. King did then and there will- 
fully and -wrongfully fail, neglect, and refuse to immediately 
and expeditiously, or at all, proceed to the Capital Music Hall, 
or to the place where said alleged offender or offenders were to 
be found." This is not sufficient, because it only charges a vio- 
lation of one of the steps preliminary to the ultimate duty.- 
We are therefore clearly of the opinion that the facts stated in 
the information do not constitute a public offense, and that the 
demurrer was properly sustained. 

We shall not consider tbe questions raised as to the constitu- 
tionality of the Act It is well-settled law that a court will not 
pass upon the constitutionality of any Act of the) legislature 
unless it is absolutely necessary to a decision of the case. It is 
not necessary here, and we do not even intimate an opinion upcv^ 
this question. 

We are of the opinion that the demurrer was properly sus- 
tained, and that the judgment of the court below should be 
affirmed. 

Pee Curiam. — ^For the reasons stated in the foregoing opin- 
ion, the judgment of the lower court is hereby affirmed. 




278 Wbstben Eanches v. Custer Co. [Mar. T.'OS 



WESTERN RANCHES, Limited^ Appellant, v. COUNTY 
OF OUSTER^ Respondent. 

(No. 1.577.) 
Submitted May 15, 1903. Decided June 1, 1908.) 

Taxation — Board of Equalization — Increase m Assessment — 
Necessity of Notice — Waiver — Property Not Owned by Tax- 
payer — Action for Restitution — Propriety of Remedy — 
Constitutionality of Staiute — Sufficiency of Title. 

1 Under Political Code, Section 8789, providing that persons interested must 
be notified by letter, at least ten days before action Is taken, of tbe day 
when an Increase in a tax assessment will be considered by the board of 
county commissioners sitting as a board of equalization, the ten-day notice 
is jurisdictional. 

2. Failure to give a taxpayer the ten-day notice of a proposed increase in his 
assessment, required by Political Code, Section 3789, is not waived by his 
subsequently appearing and securing a reduction of the Increased assess- 
ment 

3. A tax cannot be lawfully levied against a person for property which he does 
not own. 

4. Political Code, Section 4023, authorizes an Injunction to restrain the col- 
lection of an illegal or unauthorized tax. Section 4024 provides that 
in all cases "of levy of taxes,'* etc., deemed unlawful by the property 
owner, he may, under protest, pay such tax, and thereupon sue to recover 
it. Section 4026 provides that this remedy shall supersede injunction and 
all other remedies which might be invoked to prevent the collection of 
taxes alleged to be irregularly "levied or demanded," etc Held, that Sec- 
tion 4024, being construed with Section 4026, is not restricted to caaes 
in which the levy is assailed as unlawful, but suit thereunder might be 
brought where an assessment was void, notwithstanding Section 4023. 

5. Under Political Code, Section 5185, providing that if any of the acta enu- 
merated in such Code are inconsistent with any acts passed by the Fourth 
legislative assembly the latter shall control, Sections 4024 and 4026, pro- 
viding a special remedy by suit for the recovery of illegal taxes, being 
part of the special act approved March 18, 1895, will control, in case of 
conflict, Section 4028, authorizing injunction; the latter section having 
been recommended by the code conmiisslon. 

6 An increase in an assessment by the assessor in obedience to a void order 
of the board of equalization cannot be justified under Political Code, Sec- 
tions 3701, 4014, under which the assessor may assess at any time prop- 
erty which has escaped taxation. 

7. Political Code, Sections 4024-402$, providing a remedy by action for the 
recovery of Illegal taxes, were contained in an act approved March 18, 
1895, and entitled "An Act providing for unlawful levy and collection of 
public revenue." Constitution, Article V, Section 23, requires the sublect- 
matter of acts to be clearly expressed In their titles." Held, that the act 
of March 18, 1895, was not unconstitutional, the words '^providing for un- 
lawful levy," etc., being construed as meaning "providing a remedy for 
unlawful levy," etc. 



28 Mont] Western Ranches v. Custer Co. 279 

Appeal from District Court, Custer County; C. H. Loud, 
Judge, 

Action by the Western Eianches, Limited, against the 
County of Custer. From a judgment for defendant, entered 
on sustaining a demurrer to the complaint, plaintiff appeals. 
Eeversed. 

Statement op the Case by the Commissioner Preparing 

the Opinion. 

This action was commenced by plaintiff to recover of the 
defendant the sum of $975.63 for taxes paid under protest 
After stating the corporate existence of plaintiff and defendant, 
it is allied in the amended complaint that the only property 
the plaintiff owned, claimed, controlled, managed, or possessed 
at 12 o^clock m. on the first Monday of March, 1896, or at any 
other time during said year, which was situated in the county 
of Ouster or elsewhere in the state of Montana, consisted of 
200 head of horses and 1,000 head of stock cattle; that said 
cattle, on the 1st day of March, and at all times during the said 
year, were not worth or of a cash value to exceed $17 per head, 
and that during all such time the horses were not worth or of a 
cash value to exceed $15 per head ; that between the first Mon- 
day of March, 1896, and the second Monday in July, 1896, the 
ai-ycssor assessed to the plaintiff 1,000 head of stock cattle at a 
valuation of $17 per head, but that the oommissioners of Custer 
county, sitting as a board of equalization, on the 20th day of 
July, 1896, "without notifying this plaintiff, arid without this 
plaintiff being present or having any knowledge thereof, and 
\vithout giving this plaintiff an opportunity to be heard, and 
without jurisdiction, or right, or authority so to do, and without 
any investigation or hearing any evidence as to the property of 
plaintiff, determined that the assessment to this plaintiff of 
1,000 head of stock cattle as aforesaid was incorrect and incom- 
plete, and thereupon increased said assessment, and directed 



380 Westben Ranches v. Ccsteb Co. [Mar, T.'OS 

the said assessor to assess to this plaintiff, in addition to the 
assessment theretofore made, 300 head of beef cattle at a valu- 
ation of $25 per head ; 4,000 head of stock cattle at a valuation 
of $17 per head; 300 saddle and work horses at a valuation of 
$20 per head; ranch improvements at a valuation of $100; 
wagons and harness at a valuation of $150 ; making a total of 
$149,350, which, together with the previous assessment, made 
a total of $166,350, which assessment the assessor thereupon 
made pursuant to. and in accordance witli said direction." 

On the 6th day of August, 1896, the plaintiff appeared be- 
fore the board of equalization, and made written application for 
a reduction of the amount of property assessed, and for a reduc- 
tion of the valuation placed upon the horses, but the board re- 
fused to reduce or correct the assessment, except to the extent 
of changing and reducing the number of head of stock cattle 
to 2,750, and the number of beef cattle to 1,000, and the num- 
ber of saddle horses to 200, but entirely abated and canceled 
the assessment on account of ranch improvements, wagons and 
harness. For the purpose of preventing the seizure and sale of 
p]aintiff^s property, plaintiff, to satisfy the tax which it claimed 
was illegal, upon the demand of the treasurer of the county, 
paid the same under written protest upon the 7th day of Decem- 
ber, 1896, to the extent of $1,325.63, but, claiming at the time 
that the sum of $975.63 was an invalid and illegal tax, notified 
the treasurer that it would institute an action against the county 
to recover the latter sum, with interset thereon, and costs. 

The defendant demurred to this complaint on the ground that 
ii does not state facts sufficient to constitute a cause of action. 
This demurrer was sustained, and judgment entered thereon 
dismissing the complaint, and for costs, from which plaintiff 
appeals. 

Mr. C. R. MiddletoTL, and Mr, M. S. Qunn, for Appellant 

Mr. James Donovan, for Respondent. 

:STR. COMMISSIONER CALLAWAY prepared the opin- 
ion for the court. 



28 Mont] Western Kanchbs v. Custer Co. 281 

1. In oausing plaintiff's assessment to be increased, the 
board of oonnty coaxonissioners, sitting as a board of equaliza- 
tion, assumed to act under Section. 3789 of the Political Code, 
whidi reads as follows: '^During the session of the board of 
ooontj commissioners it miay direct the assessor to assess any 
taxable property that has escaped* assessment, or to add to the 
amount, number or quantity of property when a false or incom- 
plete list has been rendered, and to make and enter new assess- 
ments (at the same time canceling previous entries) when any 
assessment made by him is deemied by the board so incomplete 
as to render doubtful the collection of the tax; but the clerk 
must notify all persons interested, by letter deposited in the 
pcstoffice, postpaid, and addre&sed to the person interested, at 
least ten days before action is taken, of the day fixed when the 
matter will be investigated." 

It is patent that the board had no jurisdiction to increase the 
plaintiffs assessment without first giving the ten-days' notice 
provided by statute. In Western Ranches v. Custer County 
(C. C), 89 Fed. 577, Judge Knowles, in passing upon the 
above-quoted section, said: "Did the failure to give the notice 
before the listing of the property invalidate the tax ? I think 
it did. The notice required by this section was for the protec- 
tion of the taxpayer, and intended to give him a hearing before 
the listing of his property in a supplemental list, and was juris- 
dictional. Without such notice the board of equalization has 
no right to order the assessor to make the supplemental list. 
(Cooley, Tax'n (2d Ed.), 362-366; Frerich v. Edwards, 13 
Wall. 506, 20 L. Ed. 702; Pcmder River Cattle Co, v. Board 
of Commissioners of Cugtcr Co. (C. C), 45 Fed. 323; Dykes 
V. Mortgage Co., 2 Kan. App. 217, 43 Pac 268.)" And see 
Commissioners v. New York Mvrwng Co., 76 Md. 549, 25 Atl. 
864; Myers v. Baltimore County, 83 Md. 385, 35 Atl. 144, 34 
L. R A. 309, 55 Am. St. Rep. 349 ; Commissioners v. Lang, 
h Kan. 284; Topeka Water Supply Co. v. Roberts, 45 Kan. 
363, 25 Pac. 855. 

The failure to give plaintiff the required notice having ren- 



282 Westben Eanchbs v. Ouster Co. [Mar. T.'OS 

dered the tax illegal because the board had acquired bo juris- 
diction to act with reference thereto, the fact that the plaintiff 
voluntarily appeared on August 8th, and asked a reduction of 
its assessment, which was partially granted, did not obviate or 
waive the want of jurisdiction in the board's original action. 
This question was not raised in Cosier v. McMillan, 22 Mont 
484, 56 Paa 965, cited by defendant. Plaintiff was seeking 
a reduction of its assessment, and therefore properly appeared 
before the board to ask the same. {Banreti v. Sharvnon, 19 
Mont 397, 48 Pac. 746.) 

But, without reference to the ill^al action of the board,- it 
appears from the complaint that the plaintiff was assessed for 
a large amount of property of which it was not the owner. It 
is fundamental that a tax cannot be lawfully levied against a 
person for property which he does not own. 

2. The defendant contends, however, that Section 4024, 
Political Code, which provides that "in all cases of levy of taxes, 
licenses or other demands for public revenue, which is deemed 
unlawful by the party whose property is thus taxed or from 
whom such tax or license is demanded or enforced, such party 
may pay under protest such tax or license, or any part thereof 
deemed unlawful, to the officers designated and authorized by 
IriW to collect the same ; and thereupon the party so paying or 
his legal representative may bring an action in any court of 
competent jurisdiction against the officer to whom said tax or 
license was paid or against the county or municipality on whose 
Ix'half the same was collected, to recover such tax or license or 
pay any portion thereof paid under protest" — applies only to 
cases in which the levy of taxes' is deemed unlawful, and does 
not apply to cases where the taac or the collection of it is com- 
plained of. It is argued that, where the tax is illegal, or is not 
authorized by law, the collection of it must be restrained under 
the provisions of Section 4023, or else must be recovered after 
a payment made under duress. 

We do not think this argument is sound. This section must 
be read together with Section 4026, which is as follows : "The 



28 Mont] Westbkn Eanohbs v. Oustbb Co. 288 

remedy thereby [hereby] provided shall supersede the remedy 
of injunction and all other remedies which migbt ])e invoked 
to prevent the collection of taxee or licenses alleged to be irregu- 
larly levied or demanded except in unusual cases where the 
remedy hereby provided is deemed by the court to be inade- 
quate." The words "levy of taxes, licenses or other demands 
for public revenue" in Section 4024 are to be construed with 
the words "levied or demanded" in Section 4026. Section 4023 
was recommended by the code commission, and adopted as part 
of the Political Code. Sections 4024 and 4026 were part of a 
special Act, which was approved March 18, 1895, and, if there 
be any conflict between Section 4023 and Sections 4024 and 
4026, the latter sections control. (Section 5185, Political 
Code.) Speaking of Sections 4024 and 4026, supra. Judge 
Knowles said: "These sections provide a remedy for the collec- 
tion of money paid for or on account of an ill^al tax to the 
treasurer or tax collector of any county or municipality of this 
slate. * * * This is a special statute, and is intended to 
give an exclusive remedy, except in unusual cases, where there 
is a dispute as to the legality of the tax between a taxpayer and 
a county or municipality. (End. Inter. St Sec. 154.) When 
a special and exclusive remedy is given by a statute, we look 
alone to it, and are required to follow it" (Western Ranches 
V Custer County, supra.) This is in accordance with our views, 
and we think the plaintiff pursued the proper remedy in paying 
the taxes demanded under protest, and afterwards bringing suit 
to recover them. 

3. It is insisted by the defendant that under Sections 3701 
and 4014 of the Political Code .the assessor may assess property 
which has escaped taxation at any time, and therefore the as- 
sessment levied upon plaintiff's property can be sustained under 
such sections. But this position is not maintainable for the 
reason that the record shows the action of the assessor to have 
leen based upon the order of the board of equalization ; and f ur- 
tiier shows that the property sought to be assessed did not escape 



ift84 Westken Ranches v. Custbb Co. [Mar. T.'OS. 

taxation for the reason that, in so far as the plaintiff is oon- 
cemedy it wad not in existence. 

4. Defendant further contends that Sections 4024, 4025, 
and 4026 are iinconstitutionaL Theee sections were enacted 
in the form of Senate Bill No. 69, whidi was approved Marc^ 
18, 1895, and was entitled "An Act providing for unlawftil 
levy and collection of public revenue." It is argued that this 
title does not comply with Section 23 of ArticIeV of the CJon- 
stitution, which provides: "No bill, except general appropria- 
tion bills and bills for the codification and general revision of 
the laws shall be passed containing more than one subject which 
shall be clearly expressed in its title ; but if any subject shall 
be embraced in any act whi6h shall not be expressed in the title, 
such act shall be void only as to so mudi thereof as shall not 
bo so expressed." The purpose of this section was to prevent 
surprise and fraud in legislation, and generally to inform every 
one of the subject under consideration. This court, speaking 
through Mr. Justice Milbum, in State v. Courtivey, 27 Mont. 
878, 71 Pac. 308, held that this section should receive a liberal 
construction, and the general rule is that "courts will not pro- 
nounce a statute imconstitutional unless it is clearly so, and 
both the statutes and the constitutional provisions with which 
Uioy are claimed to be in conflict will be liberally construed 
with a view to sustaining legislative action." See note to Crooks- 
ten V. County Commissioners, 79 Am. St. Rep. 453, and cases 
cited (s. c. 79 Minn. 283, 82 K W. 586). "If the title of an 
Act is single, and directs the mind to the subject of the law 
in a way calculated' to direct the attention truly to the matter 
which is proposed to be legislated upon, the object of the pro- 
vision is satisfied." {Mobile Trdnsportaiion Co, v. City of 
Mobile, 128 Ala, 335, 30 South. 645, 86 Am. St Kep. 143.) 

Testing the Act in question by these rules, it is manifest that 
the legislature enacted a law concerning the unlawful levy and 
ocllection of public revenue. The subjects included in the bill 
are all germane to the imlawful levy and collection of public 
revenue. Neither tlie legislature nor the public could have been 



28M<Mit] 'Western Ranches v. Oustbr Co. 286 

DiiBled by the title of the Act. Any other! interpretation of the 
language employed would be absiurd. The author of the bill 
d:d not happily frame its titla Probably he intended to say, 
"An Act providing a remedy for the unlawful levy and coUee- 
tion of public revenue," but, aside from conjecture, he did 
express this meaning in the title of the bill. By reference to 
the Century Dictionary, the word "provide" will be found to 
be defined as follows: "To take measures for counteracting or 
escaping something; often followed by 'against' or 'for;' " and 
the word "for" as follows: "In relation to; with respect or 
regard to; as affects or concerns; as regards." Therefore the 
title in controversy clearly reads, "An Act providing with re- 
spect to [or as concerns] unlawful levy and collection of public 
revenue," and easily comes within the intent and meaning of 
the constitutional provision. 

It thus appears that the action of the board of county com- 
missioners in raising the assessment upon plaintiff's property 
was illegal for two reasons: first, that it had no jurisdibtion 
to act without first giving the ten days' notice provided by law ; 
aBd, second, that it assumed to assess property which the plain- 
tiff did not own. The plaintiff, having paid its tax under pro- 
test, agreeably to the provisions of the sections supra, and hav- 
ing thereafter brought this suit, is entitled to recover upon the 
showing made by the complaint. 

In our opinion, the judgment sbould be reversed, and the 
cause remanded, with directions to overrule the demurrer. 

Peb Curiam. — ^For the reasons given in the foregoing opin- 
ion, the judgment is reversed, and the cause remanded, with 
directions to overrule the demurrer. 

Me. Justice Milburn^ being disqualified in this case^ takes 
no part in this decision. 



286 Matadoe L. & C. Ck). v. Custeb Go; [Mar. T/08 



MATADOR lAND & CATTLE COMPANY, Appellant, 
V. COUNTY OF CUSTEE, Respondent. 

(No. 1,578.) 
(Submitted May 15, 1908. Decided June 1, 1903.) 

Taxation — Board of Equalization — Increase vn Assessment — 
Sufficiency of Notice. 

Political Code, Section 3780, requires the board of county commissionera to 
meet as a board of equalization on the third Monday of July, and con- 
tinue in session from time to time not later than the second Monday In 
August. Section 3789 requires a ten-day notice to be given by mail to 
persons interested of a contemplated increase in a tax assessment by the 
board of equalization. Held, that a notice mailed August 8th was void, 
the functions of the board as a board of equalization expiring on the second 
Monday of August, which was the 10th of the month. 

Appeal from District Court, Custer County; G. H. Loud, 
Judge. 

Action by the Matador Land & Cattle Company against the 
County of Custer. From a judgment for defendant, entered 
OE sustaining a demurrer to the complaint, plaintiff appeals. 
Reversed. 

Mr. C. R. Middleton, and Mr. M. 8. Ounn, for Appellant. 

Mr. James Donovan, Attorney General, for Eespondent 

MR COMMISSIONER CALLAWAY prepared the opin- 
ion for the court 

As this case and Western Ranches v. County of Cutter, 28 
Mont. 278, 72 Pac. 669, decided this day, were heard together 
and as the main questions involved in both cases are the samfe, 
the decision in that case applies to this^ so far as the two cases 
ere similar. The only difference seems to be that in the Western 
Ranches Case the board of equalization utterly failed to give 



28 Mont] Matadob L. & C. C!o. v. Custer Co. 287 

the plaintiff any notice, while in the case at bar the board on 
August 8, 1896, gave the plaintiff notice to appear on Septem- 
ber 8th following, when the plaintiff might make such legal ob- 
jections as it might desire, and when the board would take final 
action on the assessment The plaintiff appeared, and asked 
the board to reduce the asseaement made, but the board refused 
80 to do. On August 8th the board could not have given the 
plaintiff the ten days' notice required by Section 3789 of the 
Political Code, as its functions as a board of equalization ex- 
pired on the second Monday of August, which was on the 10th 
of the month. Section 3780 of the Palitical Code reads as fol- 
lows: "The board of county commissioners is the county board 
of equalization and must meet on the third Monday of July in 
eech year, to examine the assessment book and equalize the as- 
sessment of property in the county. It must continue in session 
for that purpose from time to time until the business of equali- 
zation is disposed of, but not later than the second Monday in 
August" While boards of equalization are provided for in the 
ccnstitution, their periods of life are prescribed by the legis- 
lature, and they cannot hold for any other or longer period than 
the legislature has fixed. So, when the board of equalization of 
Custer county adjourned on the second Monday of August, 
1896, its term of existence for that year absolutely expired. 
{State V. Centred Pacific Railroad Co., 21 Nev. 270, 30 Pac. 
693; State ex rel. Evans v. McOinnis, 34 Ind. 452 ; Yocum v. 
First Nat'l Bank, 144 Ind. 272, 43 K E. 231.) 

It follows that the judgment should be reversed, and the cause 
remanded, with directions to overrule the demurrer. 

Per Curiam. — ^For the reasons given in the forgoing opin- 
ion, the judgment is reversed, and the cause remanded, with 
directions to overrule the demurrer. 

Mr. Justice Milburn^ being disqualified, took no part in 
tkis decision. 



288 Stanford i;. Coram et al. [Mar. T/OS 



STANFORD, Respondent, v. CORAM et al.. Defendants ; 
CORAM, ' Appellant. 

(No. 1,919.) 
(Submitted May 14, 1903. Decided Jane 1, 1903.) 

Judgments — Interest — Constitutional Law. 

1. civil Code, Section 2588, provides that a Judgment shall bear Interest at 
the rate of 10 per cent, per annum. Laws of 1899, p. 116, amends Section 
2588 so as to reduce the Interest to 8 per cent., repeals all acts In conliict 
with It, and provides that It shall take effect from and after Its approval. 
Held, that a judgment rendered prior to the date when the amendment 
went into effect bore 10 per cent. Interest until that date, and only 8 per 
cent, thereafter. 

2. A statute changing the rate of Interest which a Judgment shall bear after 
entry is not unconstitutional as affecting a contract right within the mean- 
ing of Section 10, Article I, of the Constitution of the United States, and 
Section 11, Article III, of the Constitution of Montana. 

Appeal from District Court, Cascade County; J. B. Leslie, 
Judge, 

» Action by James T. Stanford, as receiver of the Korth- 
western jS^ational Bank of Great Falls, against Joseph A. Coram 
and another. From an order denying the motion of defendants 
to compel plaintiff to satisfy the judgment rendered in his fa- 
vor, Joseph A. Coram, appeals. Reversed. 

Mr. M. S. Gunn, for Appellant. 

In the case of Morley v. Lake Shore & Mich. S.> R. Co., 146 
U. S. 162, it was decided that the legislature of a state has the 
power to reduce the rate of interest on existing judgments. See, 
also, O'Brien v. Young, 95 N. Y. 428; Wyommg National 
Bank v. Brou^, 61 Pac 465, S. O. 75 Am. St. Eep. 935 ; Pal- 
mer V. Laberee, 63 Pac 216. It is held in these cases that a 
judgment is not a contract, and that the right to recover interest 
is a statutory right, and such holding is made the basis of the 
decisions. That the right to recover interest is a statutory right. 



28 Mont] Stanford v. Cobam ibt ai*. 289 

see^ also, Isaacs v. McA^ndrew, 1 Mont 437 ; Palmer v. Mvrray, 
8 Mont 174. That a judgment is not a contract, see, also, 1 
Black, Judgments (2d Ed.), Sees. 7, 8, 9, 10. 

As a judgment is not a contract and interest is a creature of 
the statute, it necessarily follows that the legislature may change 
the rate of interest on existing judgments. When the amend- 
atory act, approved February 28, 1899, went into effect, it oper- 
ated to repeal and render nugatory Section 2588 of the Civil 
Code. After such repeal the right to interest was dependent 
solely upon the amendatory act. 

Mr. M. M. Lyter, and Mr. A. C. OomUey, for Respondents. 

Sedgwick, in his work on the Construction of Statutes and 
Constitutions (2d Ed.), after stating that retrospective or retro- 
active statutes, independently of certain exceptions, are within 
the scope of the legislative authority, yet says that "such laws, 
as a general rule, are objectionable, and the judiciary will give 
all laws a prospective operation only, unless their language is 
80 dear as not to be susceptible of any other construction." 
(Page 173.) Again he says: "The courts refuse to give stat- 
utes a retroactive construction unless the intention is so dear 
and positive as by no possibility to admit of any other con- 
struction." (Page 166.) 

Though the legislature may have the power to make a law 
operate retrospectively, it must clearly appear that such was 
the intention, the presumption being that it was intended to 
operate on future transactions. (Oooley, Const. Lim., 370; 
Wade, Retr. Laws, Sec. 34; Duval v. Maiome, 14 Grat 24; 
Mvrdoch v. Framklin Ins. Co., 10 S. E. 777 ; Wathins v. Glenn 
(Kan.), 40 Paa 816; Auffmordt v. Radn, 102 U. S. 620.) 

The foregoing principle was followed in the cases cited be- 
low, the court in the first named case saying: "When demands 
are finally merged into judgments, subsequent changes by law 
of the rates of interest will not affect such judgments, unless 
the statutes so declare." {Missottri Pac. R. R. Co. v. Patton 
Vol. xxvm-is 



290 Stanford v. Coram bt ai. [Mar. T/08 

(Te(i.)> 35 S. W. 477; Saunders v. Carroll, 12 La. An. 79S.) 

The following additional cases hold that it is not in the power 
of the legislature to alter the rate of interest to which a creditor 
if entitled upon his pre-existing judgment: Cox v. Marlatt, 
36 K J. L. 389 ; Johnson v. Butler, 2 la. 535 ; Bochwell v. 
Eutler (Colo.), 17 L. R A. 611 ; Shaa^e^ v. Morgan Co., 4A UL 
App. 346; Bond v. Dolby (ISTeb.), 23 N. W. 351 ; Freeman cm 
Judgments, Sees. 217, 441. 

Some very pertinent and interesting observations upon the 
Morley decision, and also references to other decisions of the 
Supreme Court of the United States, are found in the case of 
Bettrrum v. Crowley (Wash.), 40 Lw R A. 815. 

The Supreme Court of the United States has^ however, in the 
crse of Texas & Pacific Railway Co., 149 U. S. 237, 37 L. Ed. 
717, virtually repudiated the doctrine laid down in the Morley 
Case. See, also, as bearing somewhat on principles involved, 
Barnitz v. Beverly, 163 U. S. 118, 41 L. Ed. 93, followed in 
State V. Gilliam, 18 Mont 109. 

That the judgment did not express the rate of interest is of 
no moment^ for, as stated in ArrUs v. Smith, 41 U. S., 16 Pet 
303, 311, "interest upon a judgment, secured by positive law, 
is as much a part of the judgment as if expressed in it'' 

MR. COMMISSIOinER POORMAN prepared the opinion 
for the court 

In this action judgment was entered for the plaintiff and 
against the defendants on the 3d day of December, 1898. On 
the 24th day of March, 1902, the defendant Coram paid to the 
plaintiff on account of said judgment the full amount of the 
principal sum thereof, with interest thereon at the rate of 10 
per cent per annum Tintil the 28th day of February, 1899, and 
at the rate of 8 per cent per annum from that date imtil the 
date of payment The plaintiff acknowledged partial satisfac- 
tion of the judgment, and the appellant proceeded by motion 
db provided by Section 1201, Code of (Svil Procedure, for an 



28 Mont] Stanfobd v. Ck>BAM et ai^. 291 

order requiring the plaintiff to satisfy the judgment in full. It 
vas stipulated that, if the plaintiff was only entitled to collect 
u'terest on said judgment at the rate of 8 per cent per annum 
from the 28th day of February, 1899, said judgment was paid 
in full ; otherwise there was a balance due. This motion was 
overruled. The appeal is from the order of the court overrul- 
ing the motion. 

The error assigned in this case is that the court erred in de- 
ciding that the judgment had not been paid in full and in over- 
ruling defendant's motion. It appears from the statement and 
the stipulation that the full amount of the judgment, with in- 
terest thereon at the rate of 10 per cent, until the 28th of Feb- 
ruary, 1899, and at the rate of 8 per cent per annum there- 
after has been paid.; The question presented is whether the Act 
of the legislature approved February 28, 1899, reducing the 
rate of interest from 10 per cent per annum to 8 per cent per 
annum, relates to and affects the interest due on this judgment 
Section 2588, Civil CJode, in force at the time this judgment 
was rendered, provided that "interest is payable on judgments 
recovered in the courts of this state at the rate of ten per cent 
per annum, and no greater rate, but such interest must not be 
compounded in any manner or form." This section of the stat- 
ute was amended by an Act approved February 28, 1899 (Laws 
of 1899, p. 125), so as to read as follows: "Interest is payable 
on judgments recovered in the courts of this state at the rate of 
e!ght per cent per annum, and no greater rate, but such inter- 
est must not be compounded in any manner or form." This 
amendatory Act further provides: "Sea 2. All Acts and parts 
of Acts in conflict herewith are hereby repealed." "Sec. 3. 
This Act shall take effect and be in full force from and after 
its approval" 

A judgment in a civil case is a judicial determination of 
ri^ts existing between parties, or by one party and against the 
other. It does not create any new rights. It only deflnee and 
determines what rights already exist The right to have a judg- 
ment enforced is not inherent in the judgment itself. This 



292 Stanfobd v. Cobam bt ai*. [Mar. T/08 

right and authority come f romi other provisions of law. The 
judgment is itself a creation of law. It bears no interest unless 
granted by legislative enactment It is in the nature of a con- 
tiact, but is not a contract within the meaning of Section 10, 
Article I, of the Constitution of the United States, 
and Section 11, Article III, of the Constitution of 
the State of Montana. It lacks the element of consent neces- 
sajy to a contract. It is in invikum as to the losing party. The 
contract between the parties is voluntarily surrendered and can- 
celed by merger in the judgment, and ceases to exist It is no 
longer looked to for any purpose except aa evidence supporting 
the judgment There is no longer any contract for the payment 
of either principal or interest A party is not entitled to inter- 
est merely because he has a judgment, bujb solely because the 
legislature, in its discretion, has said he may charge interest 
It is an arbitrary right Parties appealing to the law can take 
only what the law awards them. It may be true that parties 
entering into contracts or appealing to the courts have in mind 
the fact that any judgment obtained will draw interest at the 
rate then fixed by the legislatura It is likewise true that th^ 
have notice of the inherent power of the legislature to change 
this rate, or to annul it altogether, and such enactments are not 
retroactive or retrospective so long as they do not interfere with 
the collection of interest already accrued. Laws changing the 
rate of interest apply to accounts with respect to which no 
agreement exists as to interest Then why do they not apply to 
jt^dgments when a judgment is not a contract, and the interest 
tLereon is not the result of agreement between the parties ? The 
rjte of interest is fixed by the legislature without reference to 
the contract on which the action is founded, and without regard 
to the will or assent of the parties to the action. The judgment 
creditor is entitled to the interest prescribed by law during the 
judgment debtor's default in payment "Where the transaction 
ii5 not based upon any assent of parties, it cannot be said that 
any faith is pledged with respect to it^ and no cause arises for 
the operation of the constitutional prohibition." This law now 



28 Monlv] Stanfobd v. Ck>BAM bt al. 293 

under oonsideratioii is a general law. A; citizen can have no 
vested right in a general law which can preclude it8 amendment 
or repeal^ and there is no implied promise on the part of the 
state to protect its citizens against incidental injury occasioned 
by dianges in the law. (Coolej's CSonstitutional limitations 
(6th Ed.), 848.) 

In the case of Morley y. Lake Shore BaUtuay Ca^ 146 IT. S. 
on page 169, 18 Snp. Ot 67, 86 L Ed, 925, the Supreme Court 
of the United States, following the decision in O'Brien v. Toimg 
et d., 95 N. T. 428, 47 Am, Rep. 64, in considering the same 
question here under discussion, uses this language: ^^It is con- 
tended * * * that the judgment is itself a contract, and 
ii-dudes within the scope of its obligation the duly to pay inter- 
est thereon. As we have seen, it is doubtless the duty of the 
defendant to pay the interest that shall accrue on the judgment 
if such interest be prescribed by statute; but such duty is cre- 
ated by the statute, and not by the agreement of the parties^ and 
the judgment is not itself a contract within the meaning of the 
constitutional provision invoked by the plaintiff in error. The 
most important elements of a contract are wanting. There is no 
aggregatio merMum. The defendant has not voluntarily as- 
sented or promised to pay. 'A judgment is in no sense a con- 
tract or agreement between the parties.' " The court then holds 
that a legislative enactment reducing interest on all judgments 
applied to a judgment then existing. 

The Supreme C5durt of Wyoming, in the case of Wtfommg 
National Bank v. Brown, 7 Wyoming, on page 502 (53 Pac. 
on page 292, 61 Paa 465, 75 Am. St Eep. on page 939), says: 
"An act reducing the rate of interest which judgments shaU 
bear, passed after the rendition of the judgment, is a conclusive 
determination by the legislature that the damages accruing to 
the judgment creditor by being deprived of the use of the 
amount due are measured by a lower rate of interest during the 
period subsequent to the taking effect of the act than from the 
rendition of the judgment up to that time. If this view is cor- 
rect, the plaintiff in this case has received all damages which 



294 Stanford v. Coram et al. [Mar. T.*03 

accraed while its judgmeiit remained -unpaid, and none of its 
rights have been destroyed or interfered with by legislation. 
The defendants' obligation to pay interest being simply that 
which the law imposed, they discharged that obligation by pay- 
11 g what the law exacted." 

In the case of Palmer et al. v. Laberee et al., 23 Wash. 409, 
63 Pac. 220, the supreme court holds that a law reducing the 
rate of interest on judgments applies to judgments rendered 
prior to the passage of the Act and then existing. 

Where the contract between the parties provides that interest 
shall be computed at a certain rate until payment is made, a 
question might arise not presented by the Record in this case, 
and on which no opinion is here expressed. 

We have examined the cases cited by respondent as modify- 
ing the decision in the Morley Case, and find that the same are 
not inconsistent with the doctrine announced in that case. 

The principles involved in this case are so thoroughly dis- 
cuosed in the cases cited that further comment here is unneces- 
sary. We are of the opinion that the Act of the legislature of 
February 28, 1899, reducing interest on all judgments, applies 
from the date of its approval to this judgnuent, and that the 
ocurt erred in overruling defendant's motion; and that, ina^ 
much as the stipulatipn and record show that the full amount 
due on this judgment has been paid, this cause should be re- 
manded to the district court, with directions to set aside the 
order made overruling defendant's motion, and to enter an 
order sustaining said motion. 

Pbb Curiam. — ^For the reasons given in the foregoing opin- 
ion, it is ordered that this cause be remanded to the district 
court, with directions to that court to set aside the order here- 
tofore made overruling the defendant's motion for an order re- 
quiring the plaintiff to satisfy the judgment in full, and to en- 
ter an order sustaining said motion. 



28 Mont] CoBTLBY V. Dttnn. 295 

OONLEY, Rbspowdbnt, v. DUNN, Appellant. 

(No. 1,570.) 
(Submitted May 15, 1008. Decided June 1, 1008.) 

Replevin — Judgment, Verdict and Complaint — Conformity — 
Appeal. 

Where, In an action In claim and delivery, tne Judgment contains a description 
of the property different from tliat found in either the complaint or the 
▼erdlct, the Judgment will, on appeal, be reversed. 

Appeal from District Court, Ca/rbon County; Frank Henry, 
Judge. 

Action by Sena Conley against John Dunn. Verdict and 
judgment for plaintiff; from which judgment and from an 
order denying a new trial, defendant appeals. Judgment re- 
versed. 

Mr. Oeorge W. Pierson, and Mr, Oeorge H. Bailey, for Ap- 
pellant. 

MR COMMISSIONEIl POORMAN prepared the opinion 
for the court. 

This is an action in claim and delivery. Verdict and judg- 
iTJcnt for plaintifF, from which judgment^ and the order of the 
ouurt overruling the defendant's motion for a new trial, this 
appeal is prosecuted. 

The plaintiff, in her complaint, alleges that she "was the 
owner and entitled to the possession, and was in the possession,^' 
of "six oows branded G U T on the right ribs and E — 6 on the 
kft hip; five cows branded W A on the right ribs and E — 6 on 
Ac left ribs; one cow branded E-— 6 on the left ribs hip; all 
ol said cattle of the value of $iO each ; eight yearling heif ere 
and steers branded E— ^ on the left hip, of the value of $25 



CoNLEY V. Dunn. [Mar. T/03 

eacli; six calves branded E — 6 on tbe left hip; and two un- 
brandod calves, of the value of $18 each; one span of work 
horses, each animal branded V on the left shoulder, valued at 
$120; one gelding branded 'N on the left shoulder, of the value 
of $4:0." The answer filed denies the ownership and right of 
possession of the plaintiff, sets up title in a third party, and 
claims justification for seizing the property Tinder the terms of 
a chattel mortgage executed by such third party ; the defendant 
being at the time sheriff of the county where the property was 
seized and the action tried. A trial by jury was had, and the 
following verdict returned: ^We, the jury in the above-enti- 
tJed action, find the issues for the plaintiff, for the return of 
five oowB branded W. A. on right ribs, and E — 6 on left hip ; 
one cow branded E — 6 on left hip; one calf unbranded; one 
gelding branded N". on left shoulder; 6 yearlings branded E — 6 
on left hip; 6 cows branded G. U. T. on right ribs and E — 6 
on left hip; the property described in the complaint; and, in 
case a delivery cannot be had, then for the sum of $728.32, the 
value thereof." The judgment entered contains what purports 
to be a oopy of the verdict, and further on contains this state- 
ment: "It is ordered adjudged and decreed that the defendant 
return to the plaintiff the above-entitled property, or, in case 
said return cannot be made," etc. 

The description of the property as given in the complaint 
differs from that stated in the copy of the verdict found in the 
record, while the copy of the verdict incorporated in the judg- 
ment contains a description different from that found in either 
the complaint or the former copy of the verdict As. to some of 
the property these descriptions are the same, but as to other 
items there is a radical difference. In the complaint appears 
this description: "Five cows branded W A on the right ribe 
and E-— 6 on the left ribs." In the verdict the description 
reads, "5 cows branded W. A. on right ribs and E — 6 on left 
hip." The judgment reads, "5 cows branded E — 6 on right 
r?b8 and E — 6 on left hip." The pleadings do not contain any 
reference to cattle branded E — 6 on right ribs and E — 6 on left 



28 Mont] Nelson v. Gt. Nobthebn Ry. Co. 297 

lip. These various descriptions may or may not refer to the 
same animfils. A clerical error may have been committed in 
making the copies. We cannot indulge in preeumptions in 
those matters. The record before us imports verily, and we are 
lx)und thereby. The verdict does not support the judgment, 
and the complaint does not support either verdict or judgment 
For this reason the judgment of the district court should be 
reversed. 

It is contended that the verdict is insufficient, that it is not 
responsive to the issues, that it does not find upon the question 
of ownership as to the property awarded to plaintiff, that it 
ccntains no finding as to either ownership or right of possession 
of the properly not awarded to plaintifF, and that it is in the 
alternative. A9 it is not probable that these alleged defects will 
appear upon another trial, it is not deemed necessary to pass 
upon them hera 

We reconmiend that the judgment appealed from be reversed. 

Peb Ctteiam. — ^For the reasons stated in the foregoing opin- 
ion, the judgment and order appealed from are reversed, and 
the cause remianded, with directions to the district court to 
grant the defendant a new trial. 



28 297 
80 267 

NELSON", Respondent, v. GEEAT NORTHERN RAIL- Ig m 
WAT COMPANY, Appblulnt. i^^l 

I 29 86 
(No. 1,522.) g JJJl 

(Submitted April 15, 1908. Decided June 1, 1903.) 

Carriers — Trwmportation of Stack — Delay — Liability — Comr 
plaint — Allegations — Naiwre of Action — Common-Law 
Duties — Limitations by Special Contract — Validity — Evi- 
dence — Burden of Proof — Instructions — Measure of Lia- 
bility — Double Damages — Verdict — Conflicting Evidence- 
Review. 



28 


297: 


35 


71!: 


86 


811- 


28 


21 


37 




1*28 


29^' 


41 


834 


41 


335 


41 


492 



28 297 
40 412 



298 Nbxbon v. Qt. Nobthbrn Ry. Co. [Mar. T.'OS 

I. ActloDB on contracts and actions in tort cannot be united. 

'2. The complaint in an action against a carrier for yiolatlons of a special 
contract of shipment must set out the contract eitl^er in sutistance or la 
TUieo verba, and must declare upon it. 

3. The complaint in an action in tort against a carrier for a breach of its 
common-law duties in the shipment of goods must allege facts which will 
show, not only the rights of the shipper, but the duties of the carrier ai 
well. 

4. A complaint, in an action brought to recover damages claimed to htLve been 
sustained by the plaintiff as a shipper of live stock over defendants rail- 
road, examined, and held to state a cause of action in tort. 

5 Where a common carrier, accepting property for transportation, commits a 
breach of its common-law duties, the shipper may maintain an action in 
tort therefor, though the carrier recelyes the property under a special con- 
tract limiting Its liability; the carrier in accepting the shipment accepting 
it with the obligations Imposed by law, and the special contract merely 
constituting a defense in so far as the exemptions from liability which it 
creates are yalid must be pleaded as a defense, and the burden of proof 
rests on the defendant to establish it. 

6. Where the special contract entered into between the shipper and the carrier 
fa railroad company) provides tliat the shipper shall attend, water, and 
feed the Uye stock shipped, such contract relieves the carrier from all duty 
and obligation respecting such matters, but does not relieve it of the duty 
imposed by law of properly handling Its trains, and of affording reasonable 
facilities for enabling the shipper to give the live stock proper care and 
attention. 

7. In tort against a common carrier for delay in the transportation of sheep 
the shipper could show the condition of the sheep at the time of their 
shipment, and, whether evidence of the treatment and food received by the 
sheep immediately prior to the shipment was a correct way to show this 
condition or not, defendant was not prejudiced by such evidence, admitted 
without objection, where the court charged the jury not to consider any 
damages sustained prior to the loading of the sheep on the carrier's cars. 

8 Where a contract for the transportation of sheep by a common carrier 
fixes a valuation on the sheep per head, the measure of the liability of the 
carrier for damages resulting from a breach of its duties causing injury 
to the sheep is the amount of the actual damage not exceeding the stipu- 
lated valuation per head. 

9. Under Civil Code. Sections 2876. 2877, 2912, a common carrier cannot by 
special contract limit Its liability for delay in the transportation of prop- 
erty arising from its own or its servants* negligence. 

10. Where a statute Is taken from another state it Is taken subject to the in- 
terpretation placed upon it by the courts of that state, and this doctrine 
applies when a portion of the common law is enacted as a part of the 
statute. 

II. Where property delivered to a carrier for transportation is injured as a 
result of negligent delay on the carrier's part, the shipper, free from negli- 
gence on his part, is entitled to compensation for the damages sustained 
by reason of sucn delay. 

12. Where animals delivered to a common carrier for transportation are In- 
jured during the transportation, and there is no evidence to snow that the 
animals were Injured from an inherent want of vitality, or by reason of 
injuries Inflicted on each other, or by unavoidable accident, tl&e carrier has 
the burden of proving that the injuries were occasioned by some other 
cause than its own negligence, though the shipper accompanies the ship- 
ment. 

13. In an action against a common carrier for injuries to sheep transported 
by it caused by its negligent delay in their transportation and by exposing 



28 Mont] Nelson v. Gt. NoETniatN Ry. C5o. 299 

them to levere weather, defendant's witnesses testified that they Informed 
plaintiff at the time of shipment that the worst blizzard ever known was 
prevailing along its line of road. Plaintiff denied receiying this informa- 
tion. Meld, that the evidence warranted an instruction that if the carrier, 
at the time of accepting the shipment, knew of the storm along its line, 
and did not inform plaintiff thereof, it conid not excuse the delay by show- 
ing that its track was obstructed by snow blockades. 

14. A common carrier receiving property for transportation with knowledge 
of the existence of an obstruction on its road, and without informing the 
flbipper, cannot offer the obstruction as an excuse for net making a 
X»-Dmpt delivery thereof, though the obstruction is the act of Ck>d; and 
it is bound to take notice of the signs of approaching danger liable to 
create obstructions, if any are known to it. 

15. A special contract with a railroad company for the transportation of 
property required that in case of loss or claim for damages the shipper 
should give notice in writing to it. The railroad received information of 
the injury to the property by letter, and the railroad department called 
for information regarding the same shortly after the shipment was made. 
Held, a sufficient notice wnen not objected to. 

10. Where the evidence is conflicting, the verdict, or finding, will not be dis- 
turbed. 

17. In an action against a common carrier for injuries to sheep transported 
by it, caused by negligent delay in their transportation and by exposing 
them to severe weather, the shipper testified that there was a shrinkage 
of the sheep during the transportation of 38 pounds per head, or 25 pounds 
In excess of a reasonable shrinkage; that it was necessary to feed them 
four days at the nlace of delivery before selling them, while feeding them 
once only might iave been necessary if they had been delivered in good 
condition ; that the cost of so feeding them was $240, and the cost of one 
feeding was $40; that the sheep were weighed before and after they were 
fed this extra $200 worth of food. It did not appear which of these 
weights was taken as the basis of calculation in ascertaining the shrink- 
age. Held, that an instruction authorizing a recovery of the expenses for 
feeding rendered necessary by reason of the condition of the sheep at the 
place of delivery was erroneous, as allowing double damages. 

Appeal from District Cowrt, Lewis and Clarice County; H. 
C. Smithy Judge. 

Action by H. H. Nelson against the Great Northern Rail- 
-way Company. From a judgment for plaintiff, and from an 
order overruling defendant's motion for a nefw trial, defendant 
Appeals. Eieversed, unless plaintiff consents to modification by 
deducting certain sum from amount recovered. 

Mr. J. Parker Yeazey, for Appellant 

As to the nature of the complaint, and the cause of action set 
up therein, see Hutchinson cm Carriers, Sees. 738-747; Cily 
of Oreai Falls v. Hanks, 21 Mont 83 ; Stark v. Wellma/n, 96 



300 Nelson v. Gt. Northeen Ry. C5o. [Mar. T.'OS 

Oal. 400; Scmford v. Am. Dist. Tel. Co., 34 N. Y. Supp. 144; 
RothscMd V. Grand Trwnk Ry. Co., 10 K Y. Supp. 36. 

In the oourt beloi^ the plaintiff broadly contended that it was 
never necetsary for the shipper to dedare in the first instance 
iipcn the contract of shipment; that the shipper might always 
corut upon a breach of duly imposed by law ; that if any actual 
contract were pleaded and shown by the defendant to exist the 
same could never defeat the plaintifiPs action in such case. It 
was conceded and so ruled by the court that the plaintiff could 
not recover contrary to the valid provisions of such contract, 
when the latter was admitted or proven, but contended that be 
might recover in so far as upon the merits of thj& whole trans- 
action he would have been authorized to recover had the con- 
tract been set up in the complaint instead of in the answer. 
This view, as applied to the facts of this case, violates funda- 
mental rules of the law of pleading. It involves an abandon- 
ment of the ground of liability upon which the action was rested 
and the substitution of another therefor. In other words^ a 
departure from fact to fact and from law to law. Every cause 
of action must be rested upon l^ome duty shown to exist and a 
breach of the same. Legal identity of the cause of action estal>- 
lished by the evidence and that pleaded must be preserved or 
there is a fatal variance. The substitution of a new ground of 
liability in point of law for that upon which the complaint is 
founded is a departure. {Union Pac. v. Weyler, 15 Sup. C5ourt 
Eep. 879.) 

A common carrier is ordinarily liable as an insurer. This 
liability and the extent of it is defined in Section 2910 of our 
Civil Code. Where the shipper accompanies the shipment the 
rule of the common law is very well expressed in the case of 
St. Louis I. M. & S. By. Co. v. Weakly, 8 S. W. Rep. 140, and 
the language of Section 2910 shows clearly that there is no 
intent to abrogate this rule. {Railroad Co. v. Hedger, 9 Bush. 
645, 651 ; ClarTc v. Railway Co., 64 Mo. 441, 448 ; Harvey v. 
Rose, 26 Ark. 3; Railway Co. v. Reynolds, 8 Kan. 623, 641.) 

In the case at bar examination of the contract will disclose 



28 Mont] Nelson v. Qt. Northbbn Ey. Oo. 3Q1 

that it undertakes to regulate the damages to some extent by 
fixing the value of the property and establishes a condition pre- 
cedent to the institution of any suit for the recovery of dam- 
ages; that it imposes upon the plaintiff the performance of 
certain duties which are ordinarily imposed by law upon the 
defendant; that it relieves the defendant from liability as an 
insurer; and, as I think, that it relieves the defendant from 
liability for the ordinary negligence of defendant, its agents, 
servants and employes. (HcUl^ Executor, v. Pa. Co., 90 Ind. 
459, 16 Am. & Eng. R R Co., 165 ; Bartlett v. P. C. & 8t. L, 
By. Co., 94 Ind. 281 ; 18 Am. & Eng. R. R. Oases, 549 ; Kim- 
hall V. Rutland, etc. Ry. Co., 26 Vt. 247, 62 Am. Dec. 567; 
Kewell et al. v. Nicholson et al., 17 Mont 389, 43 Pac. 180 : 
A'. Y. Mfg. Go. v. III. Gent. Ry. Go., 3 Wallace, 107, Book 18. 
70 and 73, U. S. ; Austin v. Manchester, etc. Ry. Go.', 5 Ency. 
L & Eq. 829 ; Ray, Negligence of Imposed Duties, Freight Car- 
riers, p. 95-96 ; Latham v. Rutley, 2 Barn. & C. 20 ; Austin v. 
Manchester 8. & L. Go., 15 Jur. 670; DaA)idson v. Graham, 
2 Ohio St 131; Ferguson v. Gappeau, 6 Harr. & J. 394; 
Stump V. Hutchinson, 11 Pa, 533 ; India/napolis, etc. R. R. Go. 
V. Bemmey, 13. Ind. 518 ; JejfersonvUle, etc. R. R. Go. v. Wor- 
knd, 50 Ind. 339 ; Hall v. Pa. Go., 90 Ind. 459 ; Lake Shore, 
etc. Ry. Go. v. Bennett, 89 Ind. 457.) 

The stipulation in the contract as to value was valid in law 
and affected the amount of plaintiff's recovery. {Hart v. Pa. 
By. Co., 112 U. S. 331-345; Pierce v. So. Pac. Ry. Go., 52 
Pac. 302; Ells v. St. Louis, etc. Ry. Go., 52 Fei 903.) 

The contract stipulation for exemption from damages susr 
tfiined by delay relieves the carrier from liability for the ordi- 
nary negligence of itself or employes. (Gragin v. N. Y. O. 
B.R. Go., 51 K T. 61.) \ 

Even at the common law, where it appears as a fact that the 
damages were immediately caused by an act of God or the pub- 
lic enemy, there is then no presumption of negligence upon the 
part of the carrier. Such facts being found, the carrier is not 
liable unless guilty of negligence, and negligence of the de- 



80a Nelson v. Gt. Nobtheen Ry. C!o. [Mar. T,'08 

f endant being the gist of the plaintiff's cause of action, it must 
be established by him. (Railway Co. v. Beeves, 10 WalL 189- 
190; Davis v. Wabash, etc. By. Co., 1 S. W. 327; St. Louis, 
etc. By. Co. v. Weakly, 8 S. W. 141.) 

Where a special contract is entered into by which the carrier 
is relieved from its liability as an insurer as to damage occur- 
ring through specified causes and the evidence shows the dam- 
age to have been sustained by one of the enumerated causes, the 
burden is upon the shipper to show negligence upon the part 
of the carrier. (Lamb et al. v. Camden & Amboy By. Co., 46 
K T. 272; Cochran v. Densmore, 49 K T. 276.) 

Instruction number seven violates a rule of practice and is 
also open to the further objection that it is positively erroneous 
in its statement of the matters which may be considered by the 
jury in determining the question of negligence^ The 'instruc- 
tion is bad because of its comment upon the evidence and the 
manner in which certain facts, or alleged facts, are culled out 
fiom a mass of other facts in the case and given special promi- 
nence. (Wastl V. Montana Union By. Co., 42 Pac. 773 ; Hul- 
huH V. Boaz, 23 S. W, 447.) 

A verdict should have been directed for the defendant for 
the reason that no compliance on the part of the plaintiff was 
shown with the stipulation of the contract requiring him to 
give notice in writing of his clainu Irrespective of the statute 
the stipulation is perfectly valid at the common law. {Express 
Co. V. Caldwell, 21 Wall. 264; Sprague v. Mo. Pac. By. Co., 
8 Pac. 465; Wichita & W. By. Co. v. Koch, 28 Pac 1018; 
Louisville, etc. By. Co. v. Widman, 37 N. R 554; Express Co. 
V. Harris, 51 Ind. 127; Insurance Co. v. Duke, 43 Ind. 418; 
Railway Co. v. Morris, 16 Am. Eng« R Oases, 259.) 

Mr. O. M. Nelson, Mr. W. O. Downing, and Mr. H. G. Mc- 
Intire, for Respondent 

The complaint in this action is one on the case. (Bowers v. 
B. & D. B. B. Co., 107 K O. 721 ; Bideoui v. If. L. 8. & W. 
B. Co., 81 Wis. 237; Brown v. C. M. & St. P. B. Co., 54 Wis. 



28 Mont] Nelson v. Qt. Nobthebn Ry. Co. 303 

842; Nelson v. Harrington, 72 Wis. 591; Wood v. C. M. & St. 
r. By. Co., 32 Wis. 398 ; 8mith v. C. & N. W. By. Co., 49 
Wis. 443 ; Stockton v. Bishop, 45 U. S. 155 ; Flynn v. H. B. 
B. B. Co., 6 How. Pr. 308 ; Bank of Orange v. Brown, 3 Wend. 
158; Heil v. St. L. I. M. & S. By. Co., 16 Mo. App. 363.) 

There are certain limitations and eixceptiona to defendant's 
ccmmon-law liability. If it desires to avail itself of them it 
must plead and prove them in defense. The special contract 
merely extends these limitations and exceptions, which it must 
take advantage of in the same manner as it takes advantage of 
those created for it by the law itself. The fact that it has cre- 
ated them, instead of the law, does not change the rule. (Hutch- 
irson on Carriers, 2d Ed., Sees. 748, 749 ; 3 Ency. PI. & Pr. p. 
823; Clark v. S. L. K. C. & N. W. By. Co., 64 Mo. 440; M. 
St. P. & S. S. M. By. Co. v. Home Ins. Co., 64 Minn. 61; 
Nicoll V. E. T. V. & Qt. By. Co., 89 Ga. 260 ; Witting v. St. L. 
d 8. F. By. Co., 28 Mo. App. 110; Oxley v. St. L. etc. By. Co., 
65 Mo. 629; W. St. L. etc. By. Co. v. Pratt, 15 111. App. 177; 
CoUs V. Louisville, etc. By. Co., 41 IlL App. 606 ; Arnold v. 
I. C. B. B. Co., 83 111. 273 ; I. C. B. B. Co. v. Phellps, 4 IlL 
App. 238 ; W. St. L. & P. By. Co. v. McCasland, 11 111. App. 
491; Wiggins Ferry Co. v. Blakenum, 54 HI. 201; City of 
Champagne, v. McMwrray, 76 111. 358 ; W. St. L. & P. By. Co. 
V. Black, 11 111. App. 465; Mechalitsche v. Wells Fargo Co., 
118 CaL 687.) 

''Where the stipulation limits the liability of the carrier in 
any event to a named sum, in case of loss of the property 
shipped, and no loss occurs, but the property is injured, the 
ahipper is entitled to recover damages for the injury up to the 
amount named, although the injured property may still be valu- 
able. The effect of the stiplation is not to fix a limit in case 
of loss and a proportionate limit in case of injury, but to fix an 
amount which shall be the limit of recovery, whether for loss 
or for injury." (5 Am. & Eng. Enc^. of Law, 2d Ed. p. 835 ; 
Spames v. Bailroad, 91 Tenn. 516; Haai v. Pa. B. B. Co., 
112 U. S. ZZl'yShea v. M. Si. P. etc. By. Co., 63 Minn. 228.) 



804 Nelson v. Gt. Northern Ry. Oo. [Mar. T.'OS 

"The rule is unquestioned that it is as much a part of the 
common carrier's duty to carry and deliver with reasonable 
promptness, as it is to receive and carry." (5 Am, & Eng. 
Ency. of Law, 2d Ed. 244.) "A reasonable time is such a time 
as a man of ordinary diligence and dispatch would require for 
the transportation of his own goods under similar circum- 
stances." (5 Am, & Bug. Ency. of Law, 2d Ed. 246.) "The 
question as to what is such Teasonable time is, therefore, under 
ordinary ciroumstances> for the jury to determine." (5 Am. 
& Eng. Ency. of Law, 2d E<i. 247.) "The character of the 
property being carried is an important circumstance in deter- 
mining what is a reasonable time, and owing to the harmful 
results likely to follow the tardy transportation of cattle or 
other live stock, carriers of such property are held to a stricter 
measure of duty than carriers of merchandise." (5 Am. & 
Eng. Ency. of Law, 2d Ed. 460.) "The general rule is that 
a carrier cannot limit his liability for delay, except by special 
contract with the shipx)er, and that in no event can it limit its 
liability for delay resulting from its own negligence." (5 Am. 
& Eng. Eiicy. of Law, 2d Ed. 268; A. T. & 8. F. By. Co. v. 
Dittman, 3 Kan. App. 459 ; Branch v. W. R. B. Co., 88 N. C. 
573 ; Pierce v. 8. P. By. Co., 47 Pac. Eep. 876 ; Leonard v. 
Chicago B. B. Co., 54 Mo. App. 293.) 

The rule that the carrier may not limit his liability for delay 
arising from his negligence follows from the general rule that 
the carrier may not limit his liability as against his negligence 
of any description, — a rule which prevails in the federal and 
in all the state courts, except those of New York (which alone 
permits the carrier to limit his liability against his own negli- 
gence), and of Illinois and Wisconsin, which permit the car- 
rier to limit his liability except against his gross negligence. 
(6 Am. & Eng. Ency. of L&w, 2d Ki. 288, 307, 308, 313 and 
316.) 

The common carrier may not by contract confine his liability 
to damages resulting from his gross negligence, or from his 
willful negligence. (5 Am'. & Eng. Ency. of Law, 2d Ed. 459 ; 



88 Mont] Neuok v. Gt. Nobthx&n By. Go. 306 

N. Y. R. R. V. Lockwood, 17 Wall. 357 ; Shriver v. Sioux City 
K. R. Co., 24 Minn. 506 ; MouLton v. St P. Ry. Co., 31 Minn. 
85; Hutchinson on Carriers, Sees 260 and 263 ; Alabama R. R. 
y. Thorns, 83 Ala, 343 ; Railway Co. v. Harris, 67 Tex. 166 ; 
Root V. Ry. Co., 83 Hun. Ill; Orby v. Ry. Co., 65 Mo. 632; 
Bead v. Ry. Co., 60 Mo. 199.) 

Defendant suggests that a presumption of negligence on its 
part cannot obtain in this case, as that only applies in cases 
where the defendant has complete control of the shipment, 
while in this case the shipper was to accompany and control it. 
This is not the law. (A. T. <& S. F. Ry. Co. v. Dittman, 3 Kan. 
App. 4:69 ; Leonard v. C. R. R. Co., 54 Mo. x\pp. 293.) 

The court did not err in giving instruction No. 6%. (Hutch- 
inson on Carriers, 2d Ed. Sees. 292, 310, 311 ; 5 Am. & Eng. 
Eney. of Law, 2d Ed. page 430; Corbett v. Si. P. M. & 0. Ry. 
Co., 86 Wis. 82; Maghee v. C. & A. T. Co., 45 K Y. 512; 
McOraw v. Baltvniore R. R. Co., 18 W. Va. 361 ; Hewitt v. 
Chicago R. Co., 63 la. 611; Lamont v. R. R. Co., 9 Heisk 
(Tenn.), 58 ; Fox v. R. R. Co., 148 Mass. 220; 5 Am. & Eng. 
Ency. of Law, 2d Ed. 255 ; Express Co. v. Jackson, 92 Tenn. 
326.) 

Defendant's contention that plaintiff is not entitled to re- 
cover by reason of failure to give notice in writing of his claim 
fcr the injuries complained of, is not well founded. (5 Am. 
& Eng. Ency. of Law, 2d Ed. 324, 326 ; Westcott v. Fargo, 61 
N. Y. 542; Central Co. v. Pichett, 87 Ga. 734; Wabash Ry. 
v. Brown, 152 111. 484; Hess v. N. P. Ry., 40 Mo. App. 202; 
B. & 0. R. V. Cooper, 66 Miss. 558; Kansas R. v. Ayers, 63 
Ark. 331; Owen v. Louisville R., 87 Ky. 626.) 

MR. COMMISSIOKER POORMAN prepared the opinion 
for the court 

This action is brought to reoover damages claimed to have 
been sustained by the plaintiff as a shipper of live stock over 
defendant's line of railroad. The pleadings filed by the parties 
Vol. xxfvin-M 



806 Nelson v. Gt. Nobthbbn Ry. Go. [Mar. T/08 

ere substantially as follows, in so far as it is necessary to con- 
sider the saine and the questions raised in this case: 

The first three allegations of the complaint are to the effect : 
That plaintiff is a resident of Montana, That defendant is a 
corporation duly incorporated, . and was at the time operating 
a line of railroad from the city of St. Paul westward through 
the states of Dakota and Montana into the city of Seattle. That 
the defendant was a common carrier, transporting merchandise 
and live stock, for hire, over said line of road, and over other 
lines of road between the city of St. Paul, Minn., and Chicago, 
111. (4) That it was the duty of defendant to provide suitable 
cars for the transportation of live stock when requested so to 
do. (5) That prior to the 16th day of November, 1896, the 
defendant promised, as such common carrier, to provide cars 
and to transport for plaintiff from Oulbertson, Mont, to Chi- 
cago, HI., 2,889 head of sheep on said day. (6) That at Cul- 
bertson, on November 16, 1896, the plaintiff delivered to de- 
fendant the said sheep, and that the same were in sound and 
marketable condition; that the defendant then and there re- 
ceived the same as such common carrier, and promised, for a 
certain reward, to transport the same to the city of Chicago. 
(7) That defendant, as such common carrier, promised to trans- 
port the said sheep with all due and reasonable speed, and with- 
in the usual and customary time required for such transporta- 
tion. (8) That it was the duty of defendant, as such common 
Ciirrier, to complete said transportation within four days, and 
that the same could have been done with the exercise of due 
and reasonable diligence. (9) That defendant, in disregard of 
its duties as such common carrier, willfully, wrongfully, and 
negligently kept and detained said sheep at said Culbertson 
until the 26th day of November, 1896. (10) That on Novem- 
ber 26, 1896, a violent storm was prevailing along the line of 
said railway, which was known to the defendant; that it was 
then known to the defendant that it could not safely transport 
and carry said sheep, and that defendant's line of road was 
obstructed and blockaded ; that defendant willfully, negligently, 



28 Mont] Nelson v. Qt. Nokthbew Ry. Co. 30T 

and wrongfully caused the said sheep to be loaded into its cars 
at Culbertsonj of which the plaintiff had no notice or knowl- 
edga (11) That defendant, disregarding its duties as such 
common carrier, willfully, wrongfully negligently, and care- 
lessly delayed the said sheep and the train from time to time 
along said route, and wrongfully and negligently exposed the 
8f;me to severe cold weather, and negligently refused and failed 
to protect said sheep. (12) Said sheep, being so improperly 
afid unnecessarily delayed by the negligent acts of defendant, 
never reached said city of Chicago, but were delivered to plain- 
tiff at South St. Paul. (13) That by reason of the careless and 
negligent acts of defendant 40 of said sheep died, and that they 
were worth $3.15 per head at the point of shipment (14) 
That the balance of said sheep, by reason of the negligence of 
. defendant, suffered very great injury, and were reduced in 
value^ to the plaintiff's damage in the sum of $4,052.67. (15) 
That plaintiff was damaged in the sum of $396 by reason of 
the extra care and expenses in caring for said sheep, and that 
said expense was occasioned solely by the negligence of the de- 
fendant (16) That by reason of the willful, wrongful, and 
negligent omissions of defendant, plaintiff was damaged in the 
sum of $4,574.67. Plaintiff prays judgment for said sum. 

To this complaint the defendant filed an answer admitting 
the allegations of the first three paragraphs, and denying in 
U4a paragraphs 5, 6, 7, 8 and 9. Defendant further admitted 
the occurrence of the storm referred to in the complaint, and 
that its line of road was obstructed between Oulbertson and 
St, Paul, but alleges -that the same was known to plaintiff at 
the time said sheep were loaded ; denies that defendant loaded 
the sheep, but alleges same were loaded by plaintiff. The 
special contract is then set up in the answer entered into be- 
tween the parties on the day of shipment, providing in substance 
as follows : Admitting the receipt of the sheep by the defend- 
ant upon the terms and conditions of this contract, and that the 
syme were accepted by the shipper as just and reasonable 'in 
consideration that the first party will transport the live stock 



808 Nelson v. Qt. Nobthbbn Ry. Oo. [Mar. T/as 

at the rate named, and furnish transportation as provided in 
the regulations. (1) "That said railway company shall not be 
liable for the loss or death of, or for any injuries received by, 
any such stock, unless the same is immediately caused by the 
actionable negligence of said company, its agents, servants, or 
employes." (2) That said party agrees to load, unload, and 
reload at his own expense and risk, and to feed, water and tend 
the same at his own expense and risk, while in the stockyards of 
defendant awaiting shipment, or while the cars are at feed in g 
or transfer points. (3) Said second party assumes all risk of 
loss resulting from the failure of defendant to water said sheep 
when such failure is caused by the freezing of water pipes, and 
a&sumes all risk of damage from any failure in feeding, water- 
ing, or tending said stock, of whatsoever nature or kind, not 
resulting from negligence of defendant. (5) Said second party 
accepts the cars provided for transporting said stock as being 
spfiScient therefor, and assimies all risk of damage by reason 
of delay in such transportation not resulting from the willful 
negligence of the said railway company or its agents. (6) 
In case of loss or claim for damage said second party shall give 
notice in writing to defendant within fifteen days after such 
less or damage has occurred. (7) "And it is hereby further 
agreed that the value of the live stock so transported under this 
contract shall not exceed the following mentioned sums : Each 
sheep two and 50-100 dollars ; such valuation being that where- 
on the rate of compensation to; the railway company for its ser^ 
vices and risk connected with said property is based." (8) Such 
values being the true values of such live stodc, and this contract 
being entered into relying upon such values so given, as being 
the just and true values. (10) Provides that defendant shall 
not be liable beyond the line of its own railway, and that this 
contract shall inure to the benefit of each and every camear 
beyond the route of said first party; and that shippers are re- 
quired to state actual value at the time and place of shipment 
In ease of loss the company will only be liable for the value so 
given. Defendant further alleges that this was the only ooti- 



98 Mont} Nelson v. Qt. NoBTHEKir By. Oo. 800 

tract entered into relative to the shipment of said stocky and 
that the same was accepted under the terms of said contract; 
bat that it was finally agreed that the sheep should be delivered 
to plaintiff at South St. Paul, instead of at Chicago. Defend- 
ant further allied that it fully complied with and performed 
all the terms and conditions of said contract^ that it was not 
guilty of negligence in any manner, and that the injury and 
death of said sheep were caused by the negligence of the plain- 
tiff. Defendant then sets up a counterclaim of $160 as advance 
charges for hay alleged to have been furnished in the feeding 
of said sheep. Defendant further alleged that in pursuance of 
said contract it furnished free transportation for four men to 
accompany said sheep and to care for the same. 

To this answer the plaintiff filed a replication denying the 
facts therein stated. 

At the trial of the case special questions were submitted to 
the jury, on which they found: (a) That the injury to the 
sheep in question was attributable to the fact that they were 
exposed to cold and stormy weather, (b) That said injury was 
ccused by such exposure, (c) That the same was attributable 
to the negligence of defendant, (d) That defendant did not 
notify plaintiff of the prevalence of a storm along the line of 
its railway, (e) That when the sheep reached South St. Paul 
they had not shrunk or suffered materially from lack of food, 
(f ) That the train dispatcher was guilty of gross negligence in 
delaying the train at Williston. 

A verdict was rendered for plaintiff for $2,4^4.67. Judg- 
ment was entered thereon. From this judgment and the order 
of the court overruling defendant's motion for a new trial de- 
fendant appeals. 

It was established at the trial that plaintiff did load the sheep 
on the cars at Culbertson, that he did enter into the contract 
set up in defendant's answer, and that the sheep were turned 
over to him at South St. Paul with his consent. 

1. The trial court held this complaint to be one in tort, 
nither than on contract, and permitted plaintiff to introduce 



810 Nelson v. Gt. Nokthbbjt Ey, C5o. [Mar. T/08 

^videniee to establish a cause of action upon that theory. This 
the defendant assigns as error, claiming that the complaint 
6ets up a special contract, and that the action is one ex con- 
ttactu, and not ex delicto. 

This objection strikes at the very foundation of the action, 
ard will be first considered. That actions on contract and ac- 
tions in tort cannot be united is elementary. The one is based 
upon the violation of a contract made by the parties thereto; 
the other is based upon the violation of duties and obligations 
determined, not from the formi or contents of any contract, but 
from the policy of the law. If this complaint is based upon a 
private contract, of which the parties, and not the policy of the 
law, are the authors, this action must fail, for no such private 
contract was proved. And in this we are considering the com- 
plaint alone, and not the subsequent pleadings. In actions by 
a shipper against a common carrier for violations of a special 
contract of shipment, it is necessary for the complaint to set 
out the contract either in substance or in haec verba, and to 
declare upon it. And where the action is in tort, based upon a 
violation of the carrier's common-law duty, it is still necessary 
for the plaintiff to state facts which show, not only his rights, 
but the duties of the carrier, in the premises, before he can 
complain of any breach of duty on the part of the carrier. Both 
tliese forms of action are, in effect, based upon violations of 
contracts. The one upon the violation of an express contract 
made by the parties themselves is called an action "ex con- 
tractu/' and where it is sought to combine in the same action 
charges against the carrier for violations of a special contract 
and also for violations of his common-law duties, the action is 
called ''ex delicto quasi ex contractu/^ The other form of ac- 
tion, based upon violations of the implied contract declared by 
law, is called an action ''ex delicto/' or in tort^ 

It is frequently difficult to determine from an examination 
of the complaint whether the action is on contract or in tort; 
that is, whether it is meant to charge the carrier with a viola- 
tion of the express contract made by the parties, or a violation 



28 Mont] Nelson v. Gt. Northern Ey. C5o. gll 

of the implied contract made by the law. The statute, in abol- 
ishing all forms, and requiring actions to be brought on the 
"facts constituting the cause of action," have increased, rather 
than diminished, this difiSculty, by removing the guide fur- 
nished by the indicia of the common-law forms. The implied 
contract created and declared by law relative to the duties and 
liabilities of a common carrier is so complete within itself that 
there is little necessity for any additional contract between the 
parties, unless the carrier desires to limit his liability ; and so 
usual is it for shippers to rely upon this contract created by law 
in actions against carriers that it has been held that "tort is the 
natural and habitual foundation of an action for the breach of 
the ordinary contract of carriage, and the declaration will be 
so construed unless the facts of the case clearly show that the 
plaintiff has elected to sue on the contract" (Whittenton Mfg. 
Co. V. Memphis & 0. R. P. Co. (0. C), 21 Fed. 896, and cases 
there cited. ) 

The question here under consideration was discussed at some 
length in the case of Nen> Jersey Nav. Co. v. Merchants' Bank, 
G How. 344, 12 L. Ed. 465, and the general result there reached 
was that, notwithstanding there was in that case a suit founded 
upon a special contract of carriage, yet in the very nature of 
the action it was such that, essentially, whatever its fonn, it 
was founded in tort. 

In Bryant v. Herbert, 3 C. P. Div. 189, the same rules of 
discrimination were applied in testing the fonu of an action, 
but with a contrary result. Justic Hammond, in commenting 
or. the decisions in the last two cases cited, says : "These two 
cases establish that in solving a question like this we are to look 
to the requisite nature of the remedy the plaintiff is entitled to 
OB the fact he states, rather than any form his declaration may 
assume ; though, of course, we cannot wholly disregard the form 
of the declaration." (^YhUte7^ton M. Co. v. M. 0. B. P. Co., 
svpra.) 

It has been decided that a mere avennent of a promise, or 
the use of the words "agreed, understood, or promised," does 



819 NuMON V. Or. Nobthbbn Ry. Oo. [Mar. T/08 

not make the dedaration one in contract; but the averment 
must be one of promise, and a joonsideration therefor, to make 
it a count on contract (WhUtenion M, Co. v. M. 0. B. P. Co., 
svpra; 3 Enc. P. & P. 822,) 

There may be an averment of a consideration for assuming 
the duty imposed by law as a matter of inducement, and as 
showing a compliance by the shipper with his duty in this re- 
gard, for the carrier is under no obligation to transport goods 
gratuitously. Wherever the gravamen of the complaint is solely 
for a neglect of duty imposed upon the carrier by law, the ac- 
tion is in tort. And even where there is a special contract vary- 
ing and limiting the carrier's common-law liability, the plaintiff 
has an eleci:ion to bring his action on the contract or to sue in 
tort for damages for negligence. (3 Enc. P. & P. 821, 822, 
and cases cited.) 

There can be no imcertaijity. as to the cause of action set forth 
in this complaint. It is based upon a violation of the defend- 
ant's duties as a common carrier. The complaint is given in 
substance in the statement of facts, and, when examined in the 
l?ght of the authorities herein cited, we believe that but one 
conclusion can be reached. C5omplaints similarly drawn have 
been held to state causes of action ex delicto in the following 
cases: Bowers v. B, £ D, R. li, Co., 107 K O. 721, 12 S. E. 
452 ; Rideotd v. .¥.. L. S. & 17. R. Co., 81 Wis. 237, 51 K W. 
430 ; Nelson, v. Harrington, 72 Wis. 591, 40 X. W. 228, 1 L. 
n. A. 719, 7 Am. St. Eep. 900; Smith v. C. & N. W. Ry. Co., 
49 Wis. 443, 5 X. W. 240; Stockton v. Bishop, 4 How. 155, 
11 L. Ed. 918 ; Fhjnn v. //. R. R. R. Co., 6 How. Prac. 308. 

2. The appellant claims that the court erred in not sustain- 
ing its contention tliat there is a variance l>etween the cause of 
iiction pleaded and that proved. This contention is based upon 
the theory that the defendant, being charged with liability 
growing out of a breach of its common-law duties, and the court 
having found that the sjx^cial contract pleaded in defendant's 
answer covering this shipment was entered into by the parties, 
the plaintiff cannot recover, as to permit plaintiff to do so would 



SSMont] Nelson v. Gt. IN'obthebn Ry. Co. 818 

eonstitute a material variance between the cause of action plead- 
ed and the one proved ; that it would be a departure from fact 
t<i fact and from law to law — ^that is, that the plaintiff, in recov- 
ering, would be recovering upon the special contract set up in 
the answer, instead of the implied one pleaded in the complaint. 
As before stated, the policy of the law declares a contract be- 
tween the shipper and carrier which is complete within itself. 
Tliis contract, thus declared, is ever present. True, it may be 
modified by special agrcx^ment, but modified only. It cannot 
l»e ^vholly annulled. It is the policy of the law, growing out 
of the character and necessity of the employment of the common 
<^ji»Tiev. It is equally binding upon the shipper and carrier, 
anil cannot be modified except as permitted by provisions of law. 
Ordinarily, a written contract between parties includes the en- 
tire subicct-matter, and furnishes the whole measure of liability 
and obl-gation upon each side. But this is not necessavilv so 
in the case of a contract between a shipper and a carrier, and it 
is seldom that a written contract can cover the whole subject- 
matter of their respective rights and obligations, for the reason 
that duties are imj)osed by law upon the carrier which cannot 
be affected by stipulation. The special contract may touch upon 
only a few of the grounds upon which an action may be based, 
and such is the case with the special contract set out in tlie an- 
swer. It does not, if such could be done, change or attempt to 
change the relation from common carrier to private carrier. 
Suppose the special contract entered into between the shipper 
and the carrier provides that the shipper shall attend, water, 
and feed the stock. This relieves the carrier from all duty and . 
obligation respecting these particular matters, but does not re- 
heve it of the duty imposed by law of properly handling its 
tiains, and of affording reasonable facilities for enabling the 
shipper to give the stock proper care and attention. The carrier, 
tl rough its negligence, either ordinary or gross, does not handle 
its trains in a proper manner, does not afford these facilities, 
and damage results therefrom. In such a case, must the shipper 
bring his action on the special contract ? Can he maintain an 



314 Xelson v. Gt. Noetheen Ey. Go. [Mar. T/08 

action on the contract for the violation of duties with respect to 
which the contract is wholly silent ? The answer to this latter 
question is obvious. The shipper could not maintain an action 
for the violation of certain terms and provisions of a contract 
pnless those terms and provisions were a part of the contract, 
and under the theory advanced by the appellant he coxild not 
maintain an action on the case for the reason that a special con- 
tiact existed. He would, therefore, have no redress. Every 
cause of action must rest upon somje duty shown to exist and a 
bleach of the same. Where the action is based upon the viola- 
tion of the tenns of a special contract, defendant cannot be held 
liable for any acts of commission or omission not therein in- 
corporated or included. Consequently there could be no breach 
of duty. To give the shipper any right of action in such a case, 
it would be necessary that the special contract be to that extent 
ignored. The carrier must be charged with the violation, not 
of the terms of a special contract, but with the violation of the 
duties imposed upon it by law. A carrier, in accepting ship- 
ments, always accepts them subject to the liabilities imposed 
by law. The only way in which it can at all vary or limit this 
liability is by special contract. The effect of the special con- 
tract is, therefore, merely to create and define certain cases and 
conditions under which its full common-law liability shall not 
attach. The special contract is the evidence of such exception, 
and to the extent to which it is valid constitutes a defense, and 
as such must, therefore, be pleaded" as a defense; the burden 
of proof resting on the defendant to establish it {Atchison, 
Topelca & S. F. Railroad Co, v. DUmars, 3 Kan. App. 459, 43 
Pac. 833.) The plaintiff consequently recovers from the de- 
fendant, if recovery is had, by reason of its common-law lia- 
bility as a carrier, notwithstanding the special contract, unless 
the defendant shall, as a matter of defense, show that it has 
escaj)ed its common-law liability under and by reason of the 
contract. 

The special contract is pleaded as a defense, and not in bar. 
We are aware that the decisions on this question are somewhat 



28Mo»t] Nelson v. Qt. Noethern By. Co, 315 

ar variance, but believe the better rule to be that the existence 
of a special contract for the shipment of live stock, with stipu- 
lations therein exempting the carrier from certain liabilities, 
is no obstacle to the maintenance of an action in tort, based upon 
the violations of the carrier's common-law liabilities, and that 
the plaintiff has an election to bring his action on the contract 
cr in tort for damages arising from a violation of the carrier's 
duties. {Nicoll v. East Tenn. etc. Ry. Co,, 89 Ga. 260, 15 S. 
E. 309 ; 3 Enc P. & P. 823 ; Witting v. St Louis & 8. F. Ry. 
Co., 28 Mo. >App. 110; Coles & Co. v. Louisville, etc. Railroad 
Co., 41 111. App. 607 ; Arnold v. /. C. R. R. Co., 83 111. 273, 25 
Am. Eep. 386; Clarh v. St. Louis, etc. Ry. Co., 64 Mo. 440; 
Minneapolis, St. P. etc. Ry. Co. v. Home Ins. Co., 64 Minn. 
61, 66 K W. 132 ; Hutchinson, Carriers, Sees. 748, 749 ; City 
of Champaign v. McMurray, 76 111. 358 ; Michalitschke v. 
Wells, Fargo & Co,, 118 Cal. 687, 50 Pac 847.) 

3. Defendant next assigns as error the refusal to give its 
requested instructions Nos. 1, 2, 3, and 4. Evidence was ad- 
mitted relative to the agreement or duty of the defendant to 
provide cars on the 16th day of November, 1896, for transport- 
ing the sheep, and as to the care and feed of the sheep at Cul- 
bertson between that day and the time of shipment on Novem- 
ber 26th ; and also as to the conversation had between the plain- 
tiff and one J. W. Donovan, train dispatcher at Great Falls. 
ITiis testimony was permitted to go in without objection, until 
the plaintiff, then testifying as a witness in his own behalf, was 
asked as to whether, while at Culbertson,, he was put to any 
expense in connection with the keeping and care of the sheep 
that would not have been incurred had the shipment been made 
88 soon as they wei'e delivered there. This evidence was ob- 
jected to, and the court then held the action to be in tort, and 
that defendant was not liable for any loss or damage prior to 
the day when the sheep were loaded on defendant's carsw Sub- 
sequent to this ruling the court permitted plaintiff, over the 
objection of the defendant, to testify as to damages sustained 
by reason of the shrinkage of the sheep while at Culbertson, 



816 Nelson v. Gt. Northern Rt. Co. [Mar. T.'OS 

and prior to November 26th, the date of loading; the plaintiff 
testifying that he had suffered damage in the sum of $356.12 
by reason of such shrinkage. On cross-examination counsel for 
defendant asked the witness substantially the same questions 
relative to his conversation with Donovan, and as to the care 
and feed of the sheep at Culbertson prior to the day of ship- 
ment. 

These requested instructions are, in substance: (1) That 
defendant never agreed to have cars at Culbeii:son on November 
16th. (2) That defendant was not charged with any duty to 
have cara at Culbertson on November 16th, and the jury can- 
not allow plaintiff damages by reason of the failure of defendant 
to furnish cars on that day. (3) The defendant was not to 
blame for shrinkage prior to November 26th, and is not re- 
sponsible therefor. (4) That the evidence does not justify re- 
covery of damage on account of any act of defendant prior to the 
time of loading. The court refused to give these instructions, but, 
in lieu thereof, instructed the jury as follows: "You will disre- 
gard the claim of the plaintiff of $356.12 for damages alleged 
to have been sustained by the sheep while at Culbertson, as 
plaintiff cannot recover for that under the allegations of this 
complaint." This instruction withdrew from the consideration 
of the jury all dam^age sustained prior to the loading of the 
sheep on the defendant's cars, and was, in our judgment, amply 
sufEcient to protect the defendant, and to inform the jury that 
the plaintiff was not entitled to anything on account of expense 
or shrinkage while the sheep were at Culbertson. 

Defendant claims that it was iacting on the theory that the 
action was on contract, and was misled thereby, and permitted 
the evidence to go in without objection. Conceding this to be 
a fact, plaintiff cannot be prejudiced by reason of defendant's 
error in taking the wrong theory of the case. The plaintiff had 
a right to show the condition of these sheep at the time they 
were shipped. Introducing evidence as to the treatment and 
food received immediately prior to the shipment was one way 
of showing it>. Whether the correct way or not, it was done 



28 Mont] Nelson v. Qt. Nobthbeut Ry. C5o. 817 

\rithout objection, and we fail to understand how defendant 
was prejudiced thereby under this instruction. 

4. The action of the court in giving its instructions Nos. 
12, 13, and 15, and in refusing to give defendant's requested 
instructions Xos. 10, 11, and 13, is next assigned as error. The 
icstructions given were framed upon the theory that, notvdth- 
standing the valuation of $2.50 per head, placed upon the sheep 
at the point of shipment by paragraph 7 of the special contract,' 
plaintifif was entitled to recover the full amount of damage sus- 
tained by reason of injury, not exceeding that amount per head. 

At common law the carrier is liable for the full amount of 
the damage resulting from his negligence. This liability m?y 
be limited by an express agreement made between the shipper 
and the carrier at the time of the delivery of the goods for trans- 
portation, provided the limitation be such as the law can recog- 
nize as reasonable, and not inconsistent with sound public pol- 
icy. (HartY, Pa, E. R. Co., 112 U. S. 331, 5 Sup. Ct. 151, 
28 L Ed. 717; Express Co. v. Caldwell, 21 Wall. 264, 22 L. 
Ed. 556 ; 8qm/re et al. v. N. Y. Cen. R. R. Co., 98 Mass. 244, 
93 Am. Dec 162.) And where the parties have, by stipulation, 
fixed upon a value of the property, such stipulation has the 
effect of limiting the liability of the carrier, and is, to that ex- 
tent, a defense to an action for damages. 

The value of the stock at the place of shipment and its value 
af the place of destination may be, and usually are, different 
The costs of transportation paid by the shipper would seem to 
indicate that in such amount, at least, the stock had a greater 
value at the place of destination ; else there would be little mx)- 
tive in making the shipment at all. The uncertainty of market 
conditions renders it difficult, if not impossible, to fix with pre- 
cision the valu,e the stock will have when the place of destina- 
tion is reached. The value then agreed upon, unless the stipu- 
lation provides otherwise, has reference to the time and place 
of shipment This value so fixed, whether for the purpose of 
obtaining shipping rights and concessions or as the true value 



818 Nelson v. Ghr. Northern Ky. C5o. [Mar. T.'OS 

of the property, has, in the absence of limitations thereto, the 
effect of fixing the limit to the carrier's liability, whether from 
loss or injury. No question is made as to the liability of the 
carrier for the full value of the property so fixed in case of total 
loss, but it is claimed that in case of injury the carrier is -.iable 
for only a proportion of the amount, taking the stipulated value 
as the basis of calculation. To say that the phrases "loss of 
, property'\and "injury to property^' have the same signification, 
is to declare them synonymous, when in fact they are not. The 
one means a total destruction or loss of property, the other 
means a partial loss or destruction; and in the case of injury 
a value may yet remain in the property equal to or exceeding 
the stipulated value. The freight paid by the shipper may equal 
the fixed value at the point of shipment^ while the increase or 
decrease in the market value of the stock pending the shipment 
may materially affect the value at the time the same passes into 
the hands of the consignee. The two cases are so dissimilar 
tLat the rules for the assessment of damages can hardly be the 
spme and preserve equity between the parties. 

As to whether a contract may provide that the carrier shall 
be liable only for the fixed value in case of total loss without 
a refund of the freight paid, is not here discussed or decided. 
The general rule on this subject is thus stated in the fifth vol- 
ume (2d Ed.) of the American and English Encyclopedia of 
Law, at page 335 : . "Where the stipulation limits the liability 
of the carrier in any event to a nanued sum in case of loss of the 
property shipped, and no loss occurs, but the property is in- 
jured, the shipper is entitled to recover damages for the injury 
up to the amount named, although the injured property may 
still be valuable. The effect of the stipulation is not to fix a 
limit in case of loss and a proportionate limit in case of injury, 
but to fix an amount which shall be the limit of recovery, 
whether for loss or injury." 

In Stames v. Railroad, 91 Tenn. 516, 19 S. W. 675, the con- 
tract under which the shipment was made contained the follow- 
ing stipulation : "And it is further agreed that> should damage 



28 Mont] Nelson v. Gt. Noethben Ry. Co. 819 

occur for whiok the said party of the first part may be liable, 
tbe value at the place and date of shipment shall govern the set- 
tlement, in which the amount daimied shall not exceed for a 
stallion or jack $200, for a horse or mule $100, which amounts 
it is agreed are as mnch as such stock as are herein agreed to 
be transported are reasonably worth." The court held : "The 
stipulation limited the liability of the defendant to $100 (horse 
or mule) for each animal injured or killed, and that they should 
as&ess the damage according to the real injury caused by the 
carrier's negligence, in no any instance exceeding $100 per 
head." It adds: "The question is not Vhat did each animal 
biing in the market in its injured condition V but rather, ^U> 
vhat extent and in what amount not above $100 was it damaged 
C'' rough the fault of the defendant; not what value is left in the 
aEimal, but what elements of value were wrongfully taken 
away V * * * The agreement is that the carrier shall not 
be Uable for more than the hundred dollars in case of damage ; 
not that no liability shall attach if the horse, though injured, 
should sell for as much as that sum. The true measure of lia- 
bility under the contract is the amount of actual damage result- 
ing from the negligence of the carrier, in no ca^e to exceed the 
sum stipulated. This is the most natural and reasonable con- 
struction of the contract; it is fair and just to both parties. A 
shipper will not be heard to claim or recover for damage or loss, 
however great, in excess of amount named in the bill of lading 
as the agreed value ; nor will the carrier be allowed to deny lia- 
bility for actual damages up to that amount. The carrier must 
respond for negligence up to that amount, but no further." 

In HaH v. Pa. R. R. Co,, 112 U. S. 331, 6 Sup. Ct 151, 
28 L. Ed. 717, the contract of shipment contained a clause to 
the effect that the carrier assumed a liability on the stock to 
the extent of $200 per head for each horse or mule shipped. 
One of the horses shipped was killed, another was injured. The 
trial court charged the jury that: "It is competent for a ship- 
per, by entering into a written contract, to stipulate the vahie 
of his property, and to limit the amount of his recovery in case 



320 Nelson v. Gt. Nobthbrn Rt. Co. [Mar. T.'08 

it is lost. This is the plain agreement that the recovery shall 
not exceed the sum of $200 each for horses." This charge was 
siii^tained, the supreme court saying: "The limitation as to 
value has no tendency to exempt from liability for negligence. 
•)f * ^ rjr^Q carrier is bound to respond in that value for 
negligence. The compensation for carriage is based on that 
value. The shipper is estopped from saying that the value is 
greater. The articles have no greater value for the purposes 
of the contract of transportation between the parties to that 
contract. The carrier must respond for negligence up to that 
amount." 

In St. L. I. M, & S. By. Co. v. Lesser, 46 Ark. 236, it was 
held proper to insert in the contract of shipment the provision 
tbat in case of injury or partial loss the amount of damages 
claimed should not exceed the same proportion. The contract 
before us contains no such provision, and does not contain any 
provision from which it can be reasonably inferred that such 
was the intention of the parties. 

We believe the true rule of damages in such cases to be that 
Lid down in the decisions quoted and as contained in the in- 
structions of the court now under consideration, and this we 
believe to be the doctrine of the federal courts as well as those 
of almost all of the states. (Hart v. Pa. By. Co., 112 TJ. S. 
331, 6 Sup. Ct. 151, 28 L. Ed. 717, and cases there cited.) 

(a) Appellant further claims that the court's instructions 
No. 13, found on page 130 of the record, and No. 15, on page 
134 thereof, are inconsistent with each other. These instruc- 
tions are merely explanatory of each other, and are not in con- 
flict Both are based upon the theory that for injury caused 
by the negligence of defendant plaintiff could recover for liie 
full amount of injury sustained, not exceeding $2.50 per head, 
notwithstanding some value might still be left in the injured 
property. Requested instruction No. 13 is the same as the 
c(.urt's instruction No. 16, except as modified in aoeordance 
with the rule of law above stated; and requested instruction 
No. 11 is the same as the court's instruction No. 14, except the 



28 Mont] Xelson v. Gt. Northern Ry. Co. 321 ^ 

words "gross negligence" are replaced by the word "negligence" 
in the instruction given. Defendant's requested instruction 
No. 10 is the same as the instruction given by the court in ]!f o. 
12, except that in the instruction given the words "in case of 
loss" occur at the end thereof after the words "agreed value;" 
and, as these modifications accord with the view of the law 
herein taken, these requested instructions were properly re- 
fused. 

5. Instructions Nos. 14, 15, and 18 were requested by the 
defendant on the theory that the contract relieved the defend- 
ant from liability resulting from delay, even though caused by 
its ordinary negligence. The court refused to give these in- 
structions, and the defendant brings the question to this court. 

Before inquiring into the precise terms of the special contract 
cf shipment, it may be well to first consider the proposition as 
U) whether it is permissible, under the law, for a carrier to 
limit his liability to such an extent that he may relieve himself 
from damages resulting from his own negligence, in the matter 
of delay. The statute of this state permits a carrier to limit 
his common-law liability to the extent therein stated. Section 
2876, Civil Code, provides: "The obligations of a common 
carrier cannot be limited by general notice on his part, but may 
be limited by special contract." This section standing alone 
would seem to confer upon the carrier the right by special con- 
tract to limit his liability, even when guilty of gross negligence. 
Section 2877 of the same Code, however, provides : "A common 
carrier cannot be exonerated by any agreement made in antici- 
pation thereof from- liability for the gross negligence, fraud, or 
vrillful wrong of himself or his servants." This section limits 
the general power given the carrier by the preceding section. 
Thetc two sections, construed together, give to the carrier the 
light by special contract to provide against liability in all cases 
except when it arises from his gross negligence, fraud, or will- 
ful wrong. Section 2912 of the Civil Code further provides: 
"A common carrier is liable for delay only when it is caused 
by his want of ordinary care and diligence." If this latter sec- 

Vol. XXVIII-21 



'822 Nelson v. Gt. Nobthben Ry. Co. [Mar. T.'OS 

tion is to be construed with the other two, it is a further limi- 
tation upon the power of the carrier to contract away his lia- 
tility. If it is not so construed, it would be hard to define the 
object of the legislature in enacting it, for it is only declaratory 
of rules of law already universally recognized by the courts. 

It is a fundamental principle and universal rule that where 
a statute is taken from another state it is taken subject to the 
iLterpretation placed upon it by the courts of that state, and in 
principle it is difficult to understand why the same doctrine 
shoujd not apply when a portion of the common law is enacted 
as a part of the statute. In Baker v. Baker, 13 Cal. 87, it was 
held that "a statute in affirmance of the common law is to be 
amstrued as was the rule by that law." This rule of construc- 
tion would, perhaps, be modified by the statutory provisions 
til at all statutes are to be liberally construed, with a view to 
effect their objects and to promote justice. (Section 4, Polit- 
ical Code; Section 4652, Civil Code.) 

The very nature and necessity of the common carrier^s em- 
ployment, the enormity of the carrying trade, materially affect 
the vital interests of the entire country, and as such give to the 
])ublic an interest in the rules and laws which should govern 
such employment. The interests of the parties primarily af- 
fected — that is, the shipper and the carrier — in any particular 
instance must be held to be subordinate to the welfare of the 
state and the community at large. The establishment of rules 
which will conserve the interests of the state and community, 
as well as the parties, is a matter of public policy ; and the par- 
ties directly interested cannot be permitted, by special agree- 
ment or otherwise^ to contract away these rules of law estalx- 
lished for the conservation of public polity. 

The general rule of law bearing upon this subject is stated in 
5th Am. & Eng. Ency. Law (2d Ed.), 258: "The general rule 
is that a carrier cannot limit his liability for delay except by 
a special contract with the shipper, and that in no event can it 
limit its liability for delay resulting from its own negligence.** 
(Atchison, T. & 8. F. B. B. Co. v. Ditmars, 3 Kan. App. 459, 



28 Mont] Nelson v. Gt.^ Nobtheen Ry. Co. 828 

43 Pac 833 j Branch v. Wilmington, etc. B. B. Co., 88 N. C. 
573; Pierce v. Southern Pac. Co., 120 Cal. 156, 47 Pac. 876, 
40 L. R A. 350; Leonard v. Chicago & Alton By. Co., 54 
Mo. App. 293.) In the latter case the court says: "The de- 
fendant is not to be allowed the benefit of a stipulation protect- 
ing it from its own negligence." The policy seems to be, as 
was expressed in Bosenfield v. Peoria, etc. By. Co., 103 Ind. 
123, 2 N. E. 346, 53 Am. Eep. 500, "The law will not allow 
a common carrier to contract to be safely negligent." The com- 
mon carrier may not by contract confine his liability to damages 
resulting from his gross negligence, or from his willful negli- 
gence with respect to matters of delay. (5 Am. & Eng. Ency. 
Law (2d Ed.), 459 ; Shriver v. £ioux City B. B. Co., 24 Minn. 
508, 31 Am. Eep. 353 ; Oxley v. By. Co.^ 65 Mo. loc cit. 632 ; 
Boot V. N. Y. £ N. E. B. B. Co., 83 Hun. Ill, 31 N. Y. Supp. 
357; Missouri Pac. By. Co. v. Harris, 67 Tex. 166, 2 S. W. 
674; Alabama, etc. B. B. Co. v. Thomas, 83 Ala, 343, 3 South. 
802; Hutchinson on Carriers, Sees. 260-263; Moulton v. St. 
Paul By. Co., 31 Minn. 85, 16 N. W. 497, 47 Am. Eep. 781.) 

In HaH v. Pa. B. B. Co,. 112 U. S. 338, 5 Sup. Ct 151, 28 
L. Ed. 717, the court says: "It is the law of this court that a 
cimmon carrier may, by special contract, limit his common-law 
liability ; but that he cannot stipulate for exemption from the 
a^nsequences of his own negligence and that of his servants. 
{New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 
12 L. Ed. 465 ; York Co. v .Central B. B. Co., 3 Wall. 107, 
18 L. Ed. 170 ; Bailroad Co. v. Lockwood, 17 Wall. 357, 21 L. 
Ed. 627 ; Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556 ; 
B. B. Co. V. Pratt, 22 Wall. 123, 22 L. Ed. 827 ; Bank of Ken- 
tvcky V. Adams Exp. Co., 93 U. S. 174, 23 L. Ed 872 ; Bail- 
read Co. V. Stevens, 95 U. S. 655, 24 L. Ed. 535.)" 

In Bailroad Co. v. Lockwood, 17 Wall, 357, the court laid 
down the following propositions: "(1) A common carrier can- 
not lawfully stipulate for exemption from responsibility when 
such exemption is not just and reasonable in the eye of the law, 
(2) It is not just and reasonable in the eye of the law for a 



824 Nexson v. Gt. Noethbbn Ry. Co. [Mar. T.'03 

common carrier to stipulate for exemption from responsibility 
for the negligence of himself or his servants." 

The power of the common carrier to limit his liability by 
reasonable special contract has long been recognized. The stat- 
utes of 17 & 18 Vict. c. 31, par. 7, provides, in substance, that 
the carrier may make such special contracts only as shall be 
judged to be just and reasonable by thp court before which the 
question may arise. {Peeh v. North Staffordshire R. E. Co., 
10 II. L. Cas. 473 ; Gregory v. West Midland R, R. Co,, 2 H. 
& C. 944. ) But no contract is reasonable that is subversive of 
public policy. Section 2912 of the Civil Code is equivalent to 
saying that a common carrier shall be liable for damages result- 
ing from delays caused by its want of ordinary care and dili- 
gence ; that is, for ordinary negligence. This being a legislative 
declaration as to when the common carrier shall be liable for 
delay, it cannot be abridged by special contract. It is a legis- 
lative limitation ujx>n the previous general power given to con- 
tract This rule that the common carrier may not limit his 
liability for delay arising from his own negligence prevails in 
the federal, and, it is believed, in all the state, courts, except 
tliose of i^ew York (which permit the carrier to limit his lia- 
bility against his own negligence), and of Illinois and Wiscon- 
sin, which permit the carrier to limit his liability except against 
Lis gross negligence. The handling of the defendant's trains 
was a matter peculiarly within the power of the defendant. 
The shipper could exercise no control. He was bound to await 
the wdll and action of the carrier; and, if his stock was injured 
i\c a result of negligent delay on the part of the carrie:, he is, 
in the absence of negligence or fault on his part, entitled to 
reasonable compensation for such damages as he may have suf- 
fered by reason of loss or injury to his stock. 

The terms of the special contract in this case with reference 
to the subject now \mder consideration are somewhat ambigu- 
ous, but the view of the law here taken renders it unnecessary 
to enter into any further discussion with reference to this con- 
tract on this subject. The court committed no error in refusing 
to give the instructions requested. 



28 Mont] Nelson t?. Gt. Northern Ry. Co. 325 

6. The court, by its instruction No. 6, told the jury, in 
substance, that if the evidence did not show that the sheep in 
question died or were injured from some inherent want of 
vitality, or by reason of injuries inflicted upon each other, or 
by unavoidable accident, the defendant company would be lia- 
ble, unless it established by a preponderance of the evidence 
that the death or injury was occasioned from some other cause 
tLan its negligence; that, in the absence of such proof, the law 
would presume negligence on the part of the carrier. 

The defendant contends that, inasmuch as the agents of 
plaintiff accompanied this shipment, the burden was on the 
plaintiff to show the cause of the death and injury. This po- 
sition of the defendant is untenable under the facts of this case. 
The fact that the shipper accompanies the stock can have no 
greater effect than to relieve the carrier as an insurer when the 
loss or injury is shown to fall within the exception named in 
the special contract; but in this case the complaint declares 
upon the carrier's common-law liability. Any exception con- 
tained in the special contract limiting this liability is 
a matter of defense, and the burden is upon the defendant to 
show that it falls within the exception. The presence of the 
shipper or his agents upon the train transporting the stock 
could not of itself have the effect of delaying the train, and 
avid not affect the question of negligence on the p^art of the 
carrier in the matter of delay. It was the duty of the defend- 
ant to afford the shipper proper facilities for watering, feeding, 
ttnding, and caring for the stock, and to transport the stock 
with reasonable diligence, and with aa little delay as practica- 
ble. (Edwards on Bailments (2d. Ed.), par. 581, and note.) 
We also cite in this connection Atchison^ T. & S. F, R. R, Co, 
V. Ditmars, 3 Kan. App.'459, 43 Pac. 833 ; Leonard v. Chicago 
& Alton Ry. Co,, 54 Mo. App. 293 ; 22 Am: Law Rev. 214 et 
seq; Witting v. St L. & S, F. Ry. Co., 101 Mo. 634, 14 S. W. 
743, 10 L. R A. 602, 20 Am. St. Rep. 636. 

If the presence of the shipper or his agents, or their acts or 
conduct, had the effect of preventing the defendant from in 



326 Nelson v. Gt. Northern Ry. Co. [Mar. T/03 

any manner fulfilling or discharging its duties as a common 
carrier, the burden of proving those matters was on the defend- 
ant 

Under the facts in this case,, and other instructions given, we 
find no error in this instruction. 

7. Another instruction given is as follows: "The court 
further instructs you that if you find from the evidence that an 
obstruction of the defendant's road by a snow blockade or other- 
wise existed at any point at the time these sheep were loaded, 
which would interfere with the prompt and safe carrying aul 
delivery of these sheep, and which was known to the defendant, 
and the sheep were accepted by the defendant for shipment 
without informing the plaintiff of the state of affairs, the de- 
fendant cannot offer the obstruction as an excuse for failure to 
deliver promptly, even though the obstruction was the act of 
God. Having undertaken to take the shipment with full knowl- 
edge of the facts, its liability as a common carrier attached. 
It was bound to take notice of the signs of approaching danger 
if any were known to it, and, if the danger was of such a char- 
acter as reasonably to awaken apprehension at a time when the 
facilities and means of escape from danger were within their 
control, they were bound to use such means for the safely of 
the property intrusted to their care.'* 

The appellant complains of this instruction for the reasons 
(1) there is no evidence to base it upon; (2) that it is an erro- 
neous statement of the law. 

The record contains evidence as to the prevalenoe of a storm 
at the time this shipment was made; that the probability of 
obstruction was discussed, defendant's witnesses testifying 
that they informed plaintiff at the time of shipment that the 
worst blizzard ever known was prevailing in North Dakota 
along the line of defendant's road. The receipt of this informa- 
tion was denied by plaintiff, and the question as to the existence 
and severity of the storm and the dangers attendant upon the 
shipment became and was one of the issues in the case. 



'28 Mont] Nelson v. Grr. Northern Ry. Oo. 327 

As to the second objection made by defendant to this instruc- 
tion, we can only say that we find no error, but believe the same 
if) state correctly the law as applicable to this case. The gen- 
eral rule governing this matter is expressed in Lamont v. Nash- 
ville R. R. Co., 9 Heisk. (Tenn.), 58, in which the court says: 
'*lhe company were bound to take notice of the signs of ap- 
proaching danger, and, if of such a character as reasonably to 
awaken apprehension at a time when the facilities and means 
of escape from the danger were within their control, they were 
lound to use such means for the safety of the property intrusted 
to their care." Further sustaining this general projwsition of 
law, we cite the following authorities: Fox v. Boston & M, R. 
R. Co., 148 Mass. 220, 19 N. K 222, 1 L. R. A. 702; Cprbett 
V. Chicago, St. Paul, M. & 0. R. R. Co., 86 Wis. 82, 56 K W. 
327; Hewett v. Chicago Ry. Co., 63 Iowa, 611, 19 K W. 790 ; 
5 Am. & Eng. Ency. Law"(2d Ed.), 255 ; Express Co, v. Jach- 
8cn, 92 Tenn. 326, 21 S. W. 666. 

8. We have examined the other instructions given as well 
a** refused, and find no error in the action of the court with re- 
spect thereto, excepting the last part of instruction No. 15, 
found on page 134 of the record, which V^ill be further consid- 
ered. 

The objection made as to the conversation of plaintiff with 
Superintendent Hale is not well taken, as this evidence had a 
direct bearing upon the question of negligence. 'Not can the 
objection be sustained that defendant had not received the no- 
tice specified in paragraph 6 of the special contract. The 
record, however, shows that such information was given to the 
defendant by letter, and that the railroad department called for 
information regarding it shortly after the shipment was made. 
This was a sufficient notice, unless objection was made thereto 
by defendant; and it does not appear from the record in the 
case that any such objection was made. A general discussion 
of this subject is found in the authorities cited. (^Central R. 
R. Co. v. Pichett, 87 Ga, 734, 13 S. E. 750; Wahash Ry. Co, 
V. Brown, 152 111. 484, 39 K E. 273; Hess v. M. Pac. Ry., 



328 Nelson v. Gt. Northern Ry. Co. [Mar. T/03 

40 Mo. App. 202 ; 5. (fi 0. Express Co, v. Cooper, 66 Miss. 
558, 6 South. 327, 14 Am. St. Eep. 6S6; Kansas & Arh. V. R 
R. Co, V. Ayers, 63 Ark. 331, 38 S. W. 515; Owen v. Louis- 
ville & N. R, R, Co,, 87 Ky. 626, 9 S. W. 698.) 

The counterclaim of defendant was submitted to the jury, 
and they were told by the court in its instruction No. 17 : "If 
your verdict upon the plaintiff's case is in favor of the plaintiff, 
you should deduct tJiis amount, if plaintiff's established claim 
is large enough; otherwise you should find a verdict for the 
defendant for the balance or for its whole counterclaim.'' No 
special finding was asked or made with respect to the counter- 
claim of defendant, and it is impossible to ascertain from an 
examination of the record whether the jury wholly disregarded 
defendant's claimj or whether it allowed it in full, and deducted 
il from the amount of the verdict returned for the plaintiff. 

The further contention made by the defendant that the evi- 
dence is insufficient to sustain the verdict cannot be sustained, 
for the reason that the testimony is conflicting on all points at 
iirsue, and this court has repeatedly held that in such a case it 
will not disturb the verdict or findings. The credibility and 
weight to bo given to the testimony of witnesses is a question 
exclusively witjiin the province of the jury, and the appellate 
court, in case of substantial conflict, has no power to disturb 
the findings thereon. This court cannot try the case dc novo, 
and thus invade the province of the trial court by passing u]K>n 
disputed questions of fact and the credibility of witnesses. 
{Baxter v. Hamilton, 20 Mont. 334, 51 Pac. 265; Barneit v. 
Brown, 18 Mont. 369, 45 Pac. 554; Merchants Nafl Bank v. 
GreenJiood, 16 Mont. 431, 41 Pac. 250, 851; Chicago Title & 
Trust Co, V. O'Marr, 25 Mont. 242, 64 Pac. 506 ; ^Yastl v. 
Mont, Union Ry. Co,, 24 Mont, 159, 61 Pac. 9 ; State v. How- 
ell, 26 Mont. 4, m Pac. 291; State v. Ford, 26 Mont. 2, 66 
Pac. 293 ; State v. Hurst, 23 Mont, 484, 59 Pac. 911 ; State v. 
A.llen, 23 Mont 118, 57 Pac. 725.) 

9. Plaintiff, in his tosimony, stated that after leaving Cul- 
bertson the shrinkage of the sheep was 33 pounds per head, or 



28 Mont] Xelson v, Gt. Northern Ey. Co. 329 

25 pounds in excess of reasonable shrinkage, causing a damage 
of three cents a pound through the loss of weight ; and that, if 
the sheep had arrived at South St Paul in good condition, it 
might have been necessary to feed them once before selling, 
but in the condition in which they were it was necessary to feed 
tl em four days before selling. The witness was then asked 
what the cost was of so feeding the sheep. This was objected 
tc by the defendant as immaterial, and as not suggcsing the 
proper measure of damages. This objection was overruled, and 
defendant excepted. The plaintiff, in answer to the question, 
slated that he expended for feeding the sheep in South St. Paul 
$240 ; that the cost of one feeding of the sheep wx)uld have been 
$40. The court, in instruction No. 15, found on page 134 of 
the record, used this language: ^'Plaintiff is entitled to recover 
such expenses in the way of feed as he was put to by reason of 
the condition of the animals in question on the arrival at their 
place of destination." Plaintiff further testified that ^'the sheep 
were weighed before and after they were fed this $200 worth 
of hay," but nowhere in the record does it appear which of 
these weights was taken as the basis of calculation in asccrtain- 
irg the shrinkage. The burden of proving damage in this re- 
gard was on the plaintiff. From his testimony the inferenco 
may be drawn that the sheep were weighed after they had been 
fed once, and that the cost of the first feeding, which he deemed 
to be necessary, was $40, and that he was damaged in the simi 
of $200 by reason of the extra feeding. This evidence on the 
part of plaintiff was imcontradicted, and the court in that part 
of the instruction given practically told the jurj'' to allow this 
item of damages. If the weight of the sheep taken before the 
f(^ding of this $200 worth of hay was used as the basis of com- 
parison in calculating the shrinkage, it is easy to see that allow- 
ing the $200 damage would be a double assessment of damages 
against the defendant; and as the burden of proving this dam- 
age, if any, was on the plaintiff, and his evidence failing to 
establish it, it was error in the court to so instruct the jury. 
It must be presumed that the jury allowed this damage, and 
that it is a part of the verdict rendered. The excess of damages 



380 ' IfixsoN V. Gt. Noethbrn Ry. Co. [Mar. T.'OS 

allowed, however, is capable of definite ascertainment, and the 
judgment rendered may, therefore, be corrected without an- 
other trial. 

Upon a thorough examination of the entire case and the law 
bearing thereon, we are unable to find any material error other 
than that just mentioned. We therefore reconunend that the 
case be remanded to the district court, with directions to grant 
a new trial, unless within thirty days after the filing of the 
remittitur from this court the plaintiff file with the clerk his 
consent in writing that the judgment be modified by deducting 
from the amount thereof the sum of $200, in accordance with 
the views herein expressed, in which event, and upon the entry 
of the judgment as modified, the judgment and order appealed 
from be afiirmed. We further recommend that, if such 
consent in writing be filed, and the judgment be modified, then 
appellant shall recover one-third of the costs of this appeal; 
otherwise, the appellant shall recover all the costs of the appeal. 

Peb Curiam. — ^For the reasons given in the foregoing opin- 
ion it is ordered that this cause be remanded to the district 
court, with directions to grant a new trial, unless within thirty 
days after the filing of the remittitur from this court the plain- 
tiff file with the clerk his consent in writing that the judgment 
b(* modified by deducting from the amount thereof the sum of 
$200, and upon the entry of the judgment as modified the judg- 
ment and order appealed from be affirmed ; that, if such consent 
in writing be filed, and the judgment be modified, then appel- 
lant shall recover one-third of the costs of this appeal, other- 
wise the appellant shall recover all the costs of the appeal. 



CASES DETERMINED 



IN THE 



SUPREME COURT 



AT THE 



JUNE TERM, 1903. 

The Hon. Theo. Brantly, Chief Justice. 

The Hon. George R. Milburn, ) 

V Associate Justices. 
The Hon. William L. Holloway, ) 



Commissioners: 

Hon. John B. Clayberq, 
Hon. Lew L. Callaway, 
Hon. W. H. Poorman. 



GEMMELL, Appellant^ v. SWAIN" et al.^ Respondents. 

(•No. 1,585.) 
(Submitted May 25, 1903. Decided June 3, 1903.) 

Mines — Location — Necessity of Discovery — Trespass — Inr 
junction, 

1. Bey. St. U. S. Section 2320 (U. S. Comp. St. 1901, p. 1424), relating to 
the location of mining claims on public lands of the United States, pro- 
Tides that no location shall be made until the discovery of the vein or lode 
within the limits of the claim located. Held, that one who had entered 
on a vacant 20-acre tract, and had begun prospecting shafts, but had made 

(»31) 



332 Gemmell v. Swain et al. [June T.'03 

no discovery, could not enjoin a trespass on the tract ; he not alleging that 
the trespass was upon the ground surrounding his shafts, and of which 
he was in the actual occupancy., 

2 The fact that he had posted notices of location would not enlarge his rights. 

3 The fact that the trespassers had enjoined him from continuing work, and 
he had secured a reversal of the decree, was immaterial. 

Appeal from District Courts Silver Bow County; William 
Clancy, Jvdge, 

Suit by George Genimell against John Swain and others. 
From a judgment for defenants, plaintiff appeals. Affirmed. 

Statement of the Case. 

This action was commenced in the district court by the appel- 
lant, who was plaintiff below, to secure an injunction restraining 
the defendants from entering upon, sinking "shafts, running 
tunnels, discovering or attempting to discover veins of mineral 
in certain designated lands. The complaint alleges that on 
December 19, 1899, a portion of section 17, townshij) 3 N., 
range 7 W., to the extent of 20 acres, was vacant, uninclosed, 
and unimproved mineral lands of the United States; that on 
that date the plaintiff, having reason to believe and believing 
that veins or lodes of rock in place, bearing gold, silver, cop- 
per, and other precious metals, existed therein, entered upon 
the above described land for the purpose of prospecting for 
and making discovery of such veins, and of locating the ground ; 
that he proceeded to sink three shafts, but, before he made dis- 
covery of any such veins or lodes, he was enjoined by the dis- 
trict court in an action entitled "Ilarley et al. v. M. 0. P. Co, 
et al/' from further prosecuting his search ; that he then posted 
at each of said shafts a written notice that ho claimed the ground 
about each shaft to the extent of 750 feet east^ 750 feet west, 
300 feet north, and 300 feet south from the point where the 
rotice was posted ; that the plaintiffs in that action then imme- 
diately went upon the land, and commenced work for the pur- 
pose of making discovery of veins containing such precious 
metals, and of locating the ground. The plaintiff sought an in- 



28 Mont] Gemmell t'. Swain et al. 383 

junction restraining the defendants from further proceeding 
with such work. An order to show cause and a temporary re- 
straining order were issued, but, before a hearing was had upon 
the order to show cause, the defendants Harley, Butte & Boston 
Company, and Boston & Montana Company filed a demurrer 
to the complaint^ which was by the court sustained; and, the 
plaintiff refusing to amend, the restraining order was dissolved, 
an injunction refused, and a judgment for costs entered against 
the plaintiff, from which this appeal is taken. 

Mr. Gearge M. Bourqum, and Mr, M. 8. Gunn, for Ai)]iel- 
lant 

The first question is: What, if any, right has a qualified 
locator in the actual possession of public mineral la.nd while 
seeking in good faith to discover a lode therein and make a loca- 
tion thereof ; and, second, if he has any rights, will they be pro- 
tected in equity ? The law is well settled in regard to the rights 
of one in the possession of public mineral land. (1 Lindley on 
Mines^ Sec. 219.) The fact that the title is in the United 
States makes no difference. (Eev. Statutes TJ. S. Sec. 910.) 
ITie actual possession of lands will defeat the right to preempt 
the same lands by another person. (Atherton v. Fowler, 96 U. 
S. 513 ; Hosmer v. Wallace, 97 TJ. S. 575 ; Trenx)uth v. San 
Francisco, 100 U. S. 251; Davis v. Scott, 56 Cal. 165; Smer 
V. Duggan, 56 Cal. 257; McBrown v. Morris, 59 Cal. 64; Er- 
hardt v. Boaro, 113 U. S. 527.) The courts have applied these 
same principles to the public mineral lands of the United 
States. (Noyes v. Black, 4 Mont. 527-535 ; Gartlie v. Ilart, 
15 Pac. 93 ; Grossman v. Pendenj, 8 Fed. 693 ; Field v. Grey, 
25 Pac. 793; Brandt v. Wlheaton, 52 Cal. 430-434; North 
Noonday Co. v. Orient Co., 11 Fed. 125; English v. Johnson, 
17 Cal. 107 ; Table Co. v. Stranalian, 20 Cal. 209 ; Iless v. 
Winder, 30 Cal. 355 ; Rogers v. Coopey, 7 Nev. 219 ; Campbell 
V. RarJcifi, 99 U. S. 262 ; Phoenix M. & M. Co. v. Lawrence, 
55 Cal. 143; Lebanon M. Co. v. Coiu Rep. Co., 6 Colo. 380; 
Weese v. Barher, 7 Colo. 178.) 



884: Gbmmbll v. Swain et ai^ [June T/08 

Appellant being in the actual occupancy of unoccupied public 
mineral land, under the above authorities, could protect Bilch 
possession as against the defendants who were mere intruders. 
If appellant had a possession which the law would protect him 
in as against defendants, it seems to us equally clear that under 
the circumstances of this case equity will protect him in such 
lights for the following reasons: 

1. The rights of appellant under his possession were to pro- 
ceed to a proper discovery and location of quartz claims. 

2. Defendants are endeavoring to destroy these rights by 
fraudulent acts: (a) By enjoining appellant from proceeding 
to make a discovery and location; and (b) Pending that in- 
junction, going upon the ground and seeking to make a dis- 
covery and location thereof themselves. 

Under the authorities above cited the rule is well settled that 
appellant might have maintained trespass against the defend- 
ants, based upon his actual possession. The rule is equally 
well settled that a trespass will be enjoined when irreparable 
injury is disclosed. In such case any interference which in- 
jures or destroys the substance of the estate is irreparable. Here 
the injury goes to the loss of the entire estate. Under appel- 
lant's possession he had a right to proceed to a discovery and 
location of the premises as quartz claims, and to obtaiin the title 
thereto. If defendants are allowed to go upon the land, while 
appellant is thus enjoined, and make a discovery and location 
of the ground, they will deprive appellant of all his right grow- 
ing out of his possession, and therefore of the ground itself. 
Equity will protect a right even though no damages are alleged 
or proven. (Moore v. Water Works, 8 Pac. 816; Mott v. Ew- 
ing, 27 Pac 194; Kellogg v. King, 46 Pac. 166; Bettman v. 
Harness, 36 L. R A. 566.) 

Again, the theory of an injunction in a trespass case is that 
the court will hold the premises in statu quo until the final de- 
termination of the controversy. (Johnson v. Hall, 9 S. E. 783 ; 
Haight v. Lima, 36 Wis. 355 ; Beach on Injunctions, Sees. 109 
and 112 ; N. P. R, R. v. City of Spokane, 52 Fed. 428-430.) 



28 Mont] Gbmmbll v. Swain bt al. 335 

> Messrs. Forbis & Evans, and Mr. T. Badley Lee, for Re- 
spondents. 

MR. JUSTICE HOLLOWAT, after stating the case, de- 
livered the opinion of the court. 

The only question for determination is whether the complaint 
states facts sufficient to entitle the plaintiff to an injunction. 
The complaint, upon its face, shows that the land in dispute 
•was vacant, uninclosed, and unimproved mineral land of the 
United States; that the plaintiff went upon it, and was pros- 
pecting for veins of mineral-bearing rock, when he was en- 
joined. He had made no discovery, and consequently no loca- 
tion had been made, and none could be, for a location can rest 
only upon an actual discovery of such vein or lode. {Haus- 
vjirth V. Butcher, 4 Mont. 299, 1 Pac 714 ; Section 2320, Rev. 
St U. S. [U. S. Comp. St. 1901, p. 1424].) He was simply 
a prospector upon the public domain, with the bare, naked pos- 
session of the ground immediately about the three shafts where 
he was prosecuting his work. His possession was only such as 
iz characterized in the law as possessio pedis, and c^uld not be 
enlarged to mclude the entire 20-acre tract, or the whole amount 
of ground which he might have claimed under one or more 
quartz locations. Until discovery is made, no right of posses- 
sion to any definite portion of the public mineral lands can even 
be initiated. Until that is done, the prospector's rights are 
confined to the ground in his actual possession, and until that 
possession is disturbed no right of action accrues, and even then 
no injunction would issue to restrain a mere trespass — certainly 
not in the absence of some showing of irreparable injury or the 
insolvency of the trespasser. 

No contention is made that the work done by the defendants 
in prospecting this ground was done in or about any one of the 
shafts where plaintiff was prosecuting his work when enjoined, 
or that the work done by the defendants in any manner inter- 
fered with the work done by the plaintiff. The fact that plain- 



336 State ex bel. Power v. Napton. [June T. '03 

tiff posted a notice at each of his shafts did not create any new- 
right in him, or enlarge the right he already had. A notice of 
location (for sucli these notices purported to be) posted u^wn 
mineral land before discovery is made is an absolute nullity. 
{Upton V. Larkin, 5 Mont. 600, 6 Pac. 66; Section 2320, Rev. 
St. U. S. [U. S. Comp. St 1901, p. 1424].) The mere fact 
that the plaintiff was enjoined from continuing his work, and 
that, too, wrongfully, as determined by this court {llarley v. 
M, 0, P. Co,, 27 Mont 388, 71 Pac 407), did not alter the 
relative rights of the parties, or entitle the appellant here to an 
injunction in this action. Competing prospectors cannot make 
use of the writ of injunction to secure priority of discovery or 
li cation on, or apparent superiority of right to, a mining claim. 
We are of the opinion that the complaint does not state facts 
sufficient to entitle the appellant to an injunction, and that the 
district court committed no error in sustaining the demurrer. 
The judgment is affirmed. 

Affirmed, 



STATE EX REL. POWER et al.. Relators, v. NAPTON, 

Respondent. 

(No. 1,948.) 
(Submitted May 23, 1903. Decided June 6, 1003.) 

Referees — Bill of Exceptions — Duty of Counsel to Incorporate 
Evidence — "Exceptions." 

1 I'nder Code of Civil Procedure, Section 1152, It is the duty of counsel to 
incorporate In their bill of exceptions so much of the evidence in substance, 
as Is necessary to explain the objection and exception reserved thereon, 
and a referee is justified in refusing to settle a bill which recites, "The 
following testimony was taken before the referee: (Clerk will here insert 
testimony)." 

2. Under the provisions of the Code of Civil Procedure, the term "exception" 
has an extended signification, there being exceptions on the ground of in- 
sufficiency of the evidence, as well as exceptions on the ground of error In 
law. 



28 Mont] State ex bbl. Power v. Napton. 837 

3 Bemhle: After a referee has filed his report, he may file corrections of 
manlfeit clerical errors in his report, without another reference of the 
case for the purpose of permitting him to make them. 

Appucation for mandaimis by the state, on the relation of 
W. I. Power and Thomas Trevaille, against H. P. ISTapton, 
referee. Dismissed. 

Mr. George A. Maywood, and Mr, D. M. Dvrfee, for Rela- 
tors. 

Mr. W. L. Brown, and Messrs. Word & Word, for Respond- 
ent. 

MR. OHIEOP JTTSTIOE BRAIJ^TLT delivered the opinion 
of the court. 

Application for writ of rnmidamus. On March 11, 1902, 
in a cause entitled ''Power et al. v. Patten/' pending in the dis^ 
trict court of the Third judicial district in and for Granite 
county, brought for the purpose of dissolving a partnership 
between the plaintiffs and the defendant and for a settlement 
of the partnership accounts, H. P. N'apton, Esq., was by the 
court appointed referee to hear and decide all the issues in- 
volved, and to report findings and a judgment thereon. The 
referee heard the evidence, and made his findings and conclu- 
sions of law, showing a balance due defendant, and on February 
18, 1903, his report embodying them was filed with the clerk. 
On the following day the clerk notified counsel for both parties 
of the decision of the referee. On March 12 th the referee filed 
with the clerk a paper entitled "Correction of Report of 
Referee," calling the attention of the court to certain "clerical" 
eiTors appearing in the findings of fact, and recommending 
that they be corrected by the court On March 13th the court 
overruled plaintiff's objection to the report, and directed a 
decree to be entered in accordance with the report, after making 
the correction suggested by the referee. On March 20th counsel 
for plaintiffs served and filed their notice of intention to move 
Vol. xxvin-a 



338 State ex rel. Powbb v. Napton. [JiineT/OS 

for a new trial embodying all the statutory grounds. On March 
28th they served upon counsel for defendant a draft of their 
proposed bill of exceptions. Amendments were proposed, but 
with a reservation that objection would be made to settlement 
on the ground that the notice of intention had not been served 
in time. The bill with the amendments was then, upon due 
notice, presented to the referee for settlement Counsel for the 
defendant objected to the settlement on the ground that the no- 
tice had not been served in time, and also ujwn the further 
ground, among others, that the bill as presented was not pre- 
pared in "manner, form, and isubstance" as required by Section 
1152 of the Code of Civil Procedure, in that it questions the 
sufficiency of the evidence to sustain the findings of the referee, 
while it contains no statement of the case, but simply refers to 
the evidence heard by the referee. The portion of the bill re- 
ferred to contains the following : "After the filing of said order 
(of reference), to-wit, between the 29th day of April and the 3d 
day of May, 1902, the following testimony was taken before the 
referee: (Clerk will here insert testimony.)" The referee, 
after a hearing, but without giving any reason, refused to settle 
the bill, and at once notified counsel of his action. Thereupon 
connsel for plaintiffs applied to this court for a writ of man- 
dnmiis to compel the referee to make the settlement. 

Upon the return of the alternative writ two questions were 
argued and submitted, namely: (1) Whether the notice of in- 
tention was served and filed within ten days after notice of the 
de<:ision of the referee, and, incidentally, whether the ten days 
for giving the notice under the statute (Code of Civil Proced- 
ure, Sec. 1173) began to run from the date of notice of filing 
of the report on February 18th, or whether it began to run 
from the date of the corrected report on March 12th; and (2) 
whether, conceding that the notice was given in time, the bill 
-wap proposed in such form that it was the duty of the referee 
to scMtle it 

Under the view we have taken of this case, it will not be nee- 
efsary to decide the first question submitted. The errors cf«r- 



^Mont] State ex rei^. Powbe v. Naptok. 

rcpted consisted of a substitution in the findings of fact of the 
name of one of the plaintiffs for that of the defendant where it 
was obvious that the referee had intended to use the name of 
such plaintiff, and in the footings of the items of account by 
which the amount of the judgment recommended was less by 
$150 than it should have been, this being entirely clear from 
an inspection of the items. We doubt whether the corrections 
were not properly made without another reference of the case 
for the purpose of permitting the referee to make them. TJut, 
be this as it may, the bill as presented to the referee was not in 
such form that he was required to settle it. Under Section 1152 
of the Code of Civil Procedure it was the duty of counsel to 
incorporate in their bill so much of the evidence, in substance, 
as was necessary to explain the objection and exception reserved 
thereon. Under this section reference may be made to the docu- 
ments on file in the action when such reference will sufficiently 
present the objection and exception relied on; and, so far as 
these are concerned, the bill may be presented for settlement 
in skeleton form. But this provision does not apply to the evi- 
dence, for the obvious reason that the evidence introduced upon 
the hearing must be reproduced from the stenographer's notes, 
and settled by the judge or referee, in order that the record may 
conform to the truth. To produce the evidence is the duty of 
the party desiring to preserve it in the record to be used on his 
motion or upon appeal. The determination of what evidence 
was introduced on the trial, and the reduction of it to proper 
form, may not be left to the clerk, for the clerk may not be al- 
lowed to Jotermine what evidence was used, or whether the form 
in which it is sought to be incorporated in the bill meets the 
requirements of the statute. Hence the bill as presented by the 
plaintiffs was not such in form or substance as to meet the re- 
quirements of the statute. This has been declared to be the 
rule by the Supreme Court of California under a statute con- 
taining identical provisions, and we think the cases decided by 
that court are clearly correct {People v. Oetty, 49 Cal. 581 ; 
Frazer v. Superior Court, 62 Cal. 49; Valleau v. Superior 



340 Cook v. Gallatin Bailboab Co. [June T/Q3 

Court, 62 Cal. 290.) Section 1173 of the Code of Civil Pro- 
wdnre, in relation to a bill of exceptions or statement on mo- 
tion for new trial, contains no such provision as that referred 
to in Section 1152, supra, with reference to the contents of the 
bill or statement Yet that provision unquestionably applies 
to such a bill or statement, for the reason that the term "excep- 
tion'^ ^'has an extended signification, there being exceptions on 
the ground of insufficiency of the evidence as well as exceptions 
on the ground of error in law." (Hayne on New Trial and 
Appeal, Sec 156.) 

The bill presented by the plaintiffs was not a proper one, and 
the referee was justified in disregarding it The alternative 
writ is therefore set aside, and the application dismissed. 

Dismissed, 



28 340 



COOK BT al.. Respondents, v. GALLATIN EAILROAD 

COMPANY ET AL., Appellants; WALTZ 

ET AL., Interveners. 

(No. 1,556.) 
(Submitted April 30, 1003. Decided Jnne 6. 1903.) 

Mechanics' Liens — Foreclosure — Amended Complaint — Re- 
fusal to Permit Demurrer — Engineer's Estimate — Iw^peachr 
ment — Admissibility of Evidence — Instructions in Chancery 
Case — Review of Error — Intervention — Notice of Lien — 
Owner's Name — Claim for Money — Rides of Supreme Court 
— Briefs — Assignments of Error. 

1. The refusal to permit defendants to demur to a complaint amended after 
the Jury is sworn Is not ^onnd for reversal, where no ^ound for the de- 
murrer was stated, nor any written demurrer offered, and the complaint 
seems to have stated a cause of action. 

2. Though, in a mechanic's lien foreclosure, plaintiffs declare on a contract 
under which a settlement was to be had on a final estimate of defendants' 
superintendent of construction, and defendants deny that plalntlflii have 



2S Mont] Cook v. Qaja^tin Bailboad Go. 341 

compiled with tlie contract, yet, where both parties on the trial seek to 
Impeach the superintendent's estimate, the defendants cannot complain 
that the admission of plaintiffs' evidence of Its Inaccuracy, was error. 

3. Where defendants In a mechanic's Hen foreclosure themselves seek to Im- 
peach their superintendent's estimate of the work, the admission of hear- 
say evidence of his statements that his estimate was erroneous Is 
harmless error. 

4. In a mechanic's lien foreclosure, a witness' testimony that a certain person 
made calculations as to the amount of work done, and dictated them to him, 
is Insufficient to warrant the Introduction of such estimates. 

5. Since a suit to foreclose a mechanic's Hen Is a proceeding In chancery, the 
jury's findings are only advisory, and error in Instructing them is not re- 
viewable. 

6 Under Code ot Civil Procedure, Section 2131, requiring notice of a me- 
chanic's lien to be filed in the county clerk's office, and Section 2132, re- 
quiring that the clerk's abstract shall contain the name of the person 
against whose property the lien Is filed, the filing of notice of a lien upon 
the property of the Yellowstone Park Railway Company and the Yellow- 
stone Park Railroad Company will not warrant intervention in a mechanic's 
Hen foreclosure against the Gallatin Railroad Company, though the com- 
plaint In Intervention alleges, on information and belief, that the corpo- 
rations are substantially the same. 

7. Merely a money demand against a defendant in a mechanic's lien fore- 
closure will not warrant Intervention therein, though plaintiffs consent 
thereto. 

8- Assignments of error in appellants' brief which fail to comply with the 
rules of the supreme court, will not be considered. 

Where the overruling of a motion Is assigned as error, and the language 
of the motion as It appears In the transcript Is not the language of the 
assignment and does not convey the same idea, the assignment will not be 
considered. 

10. Where the record falls to show that the court ruled upon an offer of testi- 
mony, an assignment based upon the exclusion of such testimony will not 
be considered. 

Appeal from District Court, Gallatin County; F. K, Arm- 
strong. Judge. 

AcTioK- by Andrew B. Cook and Martin Woldson, partners 
doing business under the firm name of Cook & Woldson, against 
tbe Gallatin Railroad Company and another, in which J. B. 
Waltz and P. L. Reece, partners under the firm name of Waltz 
& Reece, intervene. From a decree for plaintiffs and inter- 
veners, and from an order overruling a motion for a new trial, 
aefendants appeal. Modified. 

. Mr. John A. Luce, for Appellants. 

The lien, exhibit "A," was based upon the contract and not 
upon a quantum meruit. The plaintiffs could not recover both 



342 Cook v. Gallatin Uailboad Go. [June T.'OS 

upon the expressed contract and the implied contract. The 
complaint was certainly demurrable for uncertainty, it was 
demurrable for want of facts and for uncertainty in the descrip- 
tion of the property sought to be foreclosed and in other par- 
ticulars, the defendant has a right to demur and can not be 
rebtricted to an answer merely where a complaint is amended. 
He pleads de novo. {Frich v. Manhattan R. Co., 15 Daly (N. 
Y.), 479, 24 Abb. N. Cas. 81; Harriott v. Wells, 9 Bosw. (N. 
1 .), 631 ; Speake v. Prewitt, 6 Texas, 252 ; Cleveland v. Cohrs, 
13 S. Car. 397 ; Shaw v. Brovm, 42 Miss. 309 ; State v. Green, 

4 Gill & J. (Md.), 381.) 

It was error for the court to allow the plaintiffs to attempt to 
discredit the final estimate which they themselves had intro- 
duced in evidence over the objection of the defendants; the 
decision of the superintendent of construction was final and 
binding and conclusive upon both parties to the contract, unless 
some fraud or collusion was alleged against him. (U. 8. v. 
Robesony 9 Pet 319; Construction Co. v. Stout, 8 Colo. 61; 
Butler v. Tucker, 24 Wend. 449; Myer v. Pac. Construction 
Co., 27 Pac. 584 ; Bickle v. Irvine, 9 Mont 251 ; 9 Eiic PL 
k Pr. pages 684-689 ; Queen v. Hepburn, 7 Cranch, 291 ; Rice 
on Evidence (Civil), Vol. I, Sees. 93-95, 211; Vai^k v. Jack- 
son, 2 Wend. 166, 201; Thompson v. Blanchard, 4 N. T. 303, 
311; WUliams v. Sargent, 46 N. Y. 481-483; Fordham v. 
Smith, 46 N. Y. 683 ; Code of Civil Procedure, Sees. 3378- 
3380 ; U. S. v. Jones, 3 Wash. C. C, 209 ; Lawrence v. Barker, 

5 Wend. 301-305 ; Smith v. Briggs, 3 Denio, 74 ; Loup v. CdL 
S. R. R. Co., 63 Cal. 97, 102 ; Herrick v. Belknap, 27 Vt 673 ; 
Smith V. Brady, 17 K Y 173-177 ; Pres. of D. & H. Canal Co. 
V. Penn Coal Co., 50 K Y. 250-271 ; Denver & N. 0. Const. 
Co. V. Stout, 5 Pac. 627-631 ; Hudson v. McCartney, 33 Wis. 
331.) 

It was necessary to allege and prove the performance of the 
contract before any mechanic's lien could be filed or recovery 
had. (Smith v. Brady, 17 K Y. 173; Loup v. Cal. 8. R. R. 
Co., 63 Cal. 97-102; 13 Ena PL & Pr. 978, and cases cited; 



28 Mont] Cook v. Gallatin Eaileoab Go. 348 

Jacques v. Morris, 2 E. D. Smith, 639 ; Franklin v. Schultz, 
(Mont.), 57 Pac 103Y; Harmon v. Ashmead, 60 C5al. 439; 
Jackson v. Cleveland, 19 Wis. 400.) 

The plaintiffs could not abandon the contract and sue upon 
a quantum meruit, (^Carroll v. Craine, 9 111. 563; M alone v. 
Big Flat Gravel Company, 18 Pac 772 ; Wilson v. Bind, 45 
Pae. 695 ; Reed v. Norton, 26 PacL 767 ; 15 Enc PI. & Pr. 
1002, 1003, and cases cited.) 

The plaintiffs should have been required to elect upon which 
cause of action they would stand. (Scofield v. Miltimore, 74 
Wis. 194, Opin. 198, 199 ; Dewey v. Fifield, 2 Wis. 73 ; Deane 
et al V. Wheeler, 2 Wis. 224.) 

The failure of plaintiffs to pay Waltz & Eeece was proof of 
failure on the part of the plaintiffs to complete the contract and 
to furnish the labor, material, etc, thereunder. (Cockrill v. 
Davie, 14 Mont. 131-135.) 

The plaintiff should not have been allowed to recover any 
lEore than the amount shown by Mr. WiswelFs estimate which 
was made conclusive by the contract (Story, Equity Juris- 
prudence, Sec. 1457.) 

There is a variance between the contract alleged by plaintiffs 
ill the lien and in the body of the complaint and that which was 
proved on the trial. Furthermore the contract was not pleaded 
in the complaint or in the lien either according to its legal effect, 
or in Jiaec verba. (Sec. 747-748, O. C. P. ; Quick v. Clark, 7 
Mont. 731; Jones v. Shuey, 40 Pac. 17; Eaton v. Malabeta, 
92 Gal. 75.) 

The lien filed does not contain a correct description of tho 
property to be charged. It does not show in what township, 
section, range or subdivision any part of the line or right of w^ay 
or road bed is situated, nor does it show the width or dimensions 
of the road bed or of the right of way or how said land Vas to 
be covered or taken. No property could be identified by the 
description. The description might cover any piece of land 
v?hatever that might run in a southeasterly direction from the 
station at Mountain Side. The lien was void for uncertainty. 



344 Cook v. Gallatin Railroad Co. [June T.'OS 

(Sections 2131, 2132, 2133, C. C. P. ; Kellogg v. Littell & 
Smythe Mfg. Co., 25 Pac 461-462 ; Ooodrich Lumber Co. v. 
Davie, 13 Mont 76 ; Rawson v. Sheehan, 78 Mo. 668 ; PUlz v. 
Killingsworth, 20 Oregon, 432 ; Tumey v. Scuimders, 5 HL 527 ; 
Crawfordville v. Barr, 65 Ind. 367 ; Munger v. Oreen, 20 Ind. 
38 ; Short v. Ames, 121 Pa. St 530 ; McCarty v. Van Etien, 
4 Minn. 461 ; Penrose v. Calkins, 19 Pac 641 ; Willamette 
Steam Mill & Lwrnhcr Co. v. Kremer et dl., 24 Pac. 1026 ; Mt. 
Tacoma Mfg. Co. v. Cultum, 32 Pao. 95.) 

There was no evidence introduced to show the ownership of 
the right of way and the land which was sought to he con- 
demned. It was necessary for them to prove the ownership of 
the lands in addition to the road bed. It was admitted that 
defendant owned the road bed, but there was no admission as 
to the right of way. The road bed is the bed or foundation for 
the superstructure of a railroad. To entitle plaintiffs to a judg- 
ment of foreclosure it was necessary for them to prove the owti- 
crship of the right of way as well as this superstructure. {Nel- 
son V. Clerf, 30 Pac. 71G; San Francisco v. Central Pac. Rail- 
road, 63 Cal. 4G9 ; San Francisco, etc. v. Board of Equalization, 
60 Cal. 1234; Santa Clara Co. v. Southern Pac. R. R. Co., 118 
U. S. 395 ; Front St. Cable Ry. Co. v. Johnson, 25 Pac. 1084 ; 
Morehouse v. Collins, 31 Pac. 295 ; Kellogg v. Littell Mfg. Co., 
25 Pac 461, and cases cited 462 ; Santa Cruz Rpch Pavement 
Co. V: Lyons, 48 Pac 1097 ; Williams v. Vanderbilt, 145 111. 
238, S. C. 21 L. R A. 489 ; Munster v. Doyle, 50 111. App. 
672.) 

The lien filed was further fatally defective in not stating the 
time, terms and conditions of the contract under which the work 
was done and materials furnished. (Hooper v. Flood, 54 Cal. 
218.) 

The interveners must stand or fall upon the lien filed and 
tliis can not be aided by averments. (Goss v. Strelitz, 54 Cal. 
640.) 

Messrs. Ilartman & Hartman, and Mr. M. S. Gunn, for Re- 
spondents. 



28 Mont,] Cook v. Gaixatin Railsoad Co. 345 

There are some twenty-eight errors specified in the appel- 
lants' brief, but of all these errors only a few can be considered 
by this courts under its rules and decisions. The decisions of 
this court hold api)ellants strictly to the requirements of the 
rules, and that a failure to comply with Rule 10 warrants the 
court in refusing to consider the errors charged. (State v. Shcpp- 
hard, 23 Mont. 323; State v. Allen, 23 Mont. 118; McCleary 
V. Crowley, 22 Mont. 245-247 ; Babcock v. Caldwell, 22 Mont. 
460-462; Gibson v. Hubbard, 22 Mont. 517; Anderson v. Carl- 
son, 23 Mont. 43 ; Smith v. Denniff, 23 Mont 65-67 ; State v. 
SheppJvard, 23 Mont. 323-327 ; Missoida Mer. Co. v. O'DonneU 
60 Pac. 594 ; Cole v. Ryan, 60 Pac. 991 ; Schaizlein Paint Co. 
V. Godin, 62 Pac. 819 ; Rehberg v. Greiser, 62 Pac. 820 ; Pat- 
terson V. Pfonts, 64 Pac. 222.) 

The action was for the foreclosure of a lien mentioned in the 
complaint, and was, therefore, an equitable action and the ver- 
dict of the jury was simply advisory to the court (Mochon v. 
Stdlivan, 1 Mont 470 ; Simonton v. Kelly, 1 Mont. 483 ; Riale 
V. Ronsh, 1 Mont. 474 ; Davis v. Alvord, 94 U. S. 545 ; Sanford 
\\ Gates, Townsend Co., 21 Mont 277; Basey v. Gallagher, 20 
Wall. 670; Mantle v. Noyes, 5 Mont 274.) 

It being an equitable action, and the verdict of the jury being 
simply advisory to the court, no error can be considered by this 
court which is predicated on the instructions of the court below 
to the jury, either in giving instructions or in refusing instruc- 
tions presented. (Lawlor v. Kemper, 20 Mont 13; Hoggin v. 
Saile, 23 Mont 375 ; Sweetser v. Dobbins, 65 Cal. 529 ; Schnei- 
der v. Brown, 85 Cal. 205 ; Riley v. Mariinclli, 97 Cal. 575 ; 
Richardson v. City of Eureka, 110 Cal. 441.) 

The record does not show that the instructions requested and 
refused were signed by counsel.. (Section 1080, Subd. 7, C. C. 
P. ; Darnell v. Sallee, 34 N. E. 1020 ; Buchart v. Ell, 36 K E. 
762 ; Bank v. Bennett, 36 K E. 551 ; Railway Co. v. Mitchell, 
26 S. W. 154; Railway Co. v. Hobbs, 43 K K 479; School- 
field V. Honle, 13 Colo. 394.) 



346 Cook v. Gallatin Eailboad Co. [June T.'OS 

The testimony upon all contested points was conflicting and 
this court will not, therefore, consider the question as to the 
insufficiency of the testimony to sustain the decree of the court 
below. (Ingalls v. Austirij 8 Mont. 333; Reardon v. Patter- 
son, 19 Mont. 231 ; Mclntyre v. McCabe, 19 Mont 338 ; Har- 
rington V. B, & B. M. Co., 19 Mont. 411 ; Nyhart v. Penning- 
ten, 20 Mont. 161; Baxter v., Hamilton, 20 Mont 327; Oallor 
gher v. Cornelius, 23 Mont. 27; State v. Allen, 23 Mont 118; 
O'Rourhe v. Sherman, 23 Mont 310 ; Noyes v. Boss, 23 Mont 
425; State v. Hurst, 23 Mont 484.) 

Common counts are admissible under a system of Code plead- 
ing. (Hosley v. Black, 28 N. Y. 438 ; Cattagnino v. Balletta, 
82 Cal. 250 1 Farron v. Sherwood, 17 K Y. 227; Pleasant v. 
Samuels, 45 Pac. 998 ; Oalvin v. MacM. & M. Co,, 14 Mont 
508 ; Nyhart v. Pennington, 50 Pac 413.) 

Where work and labor have been performed or done under 
a special contract, which has been fully executed by the plain- 
tiflF, and nothing remains to be done except the payment of 
money which is due, a recovery may be had on a quantum, 
meruit. (Farron v. Sherwood, 17 N. Y. 227; Stuckey v. 
Hardy, 41 N. K 606; Shepard v. Mills, 50 K E. 709; Moore 
V. Mfg. Co., 20 S. W. 975 ; Castagnino v. Balletta, 82 Cal. 250 ; 
Electric Co. v. Berg, 30 S. W. 454; Higgins v. Railroad Co., 
66 N. Y. 604 ; Railroad Co. v. Donovan, 65 K W. 583 ; Devec- 
mon V. Shaw, 9 Am. St Rep. 422; Ludlow v. Dole, 62 K Y. 
617 ; Gambril v. Schooley, 43 Atl. 918 ; Ingle v. Jones, 2 Wall. 
1 ; Note to Cutter v. Powell, 2 Smith's Lead. Cases, 41 ; Lane 
v. Adams, 19 111. 167 ; Tunnison v. Field, 21 111. 108 ; Comhs 
v. Steele, 80 111. 101 ; Fowler v. Deakman, 84 111. 130 ; Davis 
V. Badders, 10 So. Rep. 422 ; Board of Commissioners v. Oib- 
son, 63 K E. 892.) 

Appellants contend that the procuring of the certificate of 
the superintendent of construction of the road that the work was 
completed, was a condition precedent to the right of payment, 
and that plaintiffs should have alleged in their complaint the 
procurement of this certificate or made allegations showing a 



28 Mont] Cook v. Gallatin Eaileoad Co. 347 

legal reason why it had not been obtained. As to this point we 
say, that where the contract has been completed and the action 
is brought on the qiiantum meruit no such allegation need be 
contained in the complaint and the plaintiff can make proof of 
the facts necessary to establish his claim without any special 
allegation. (Elevator Co. v. Clark, 80 Fed. 705; Higgins v. 
Railroad Co., 66 N. Y. 604 ; Castagnina v. Balletta, 82 Cal. 
260; Combs v. Steele, 80 111. 101 ; Fowler v. Deahman, 84 111. 
ISO; Davis v. Badders, 10 So. Eep. 422.) 

The final estimate is conclusive that the contract was com- 
pleted. (Wyckoff V. Meyers; 44 K Y. 143; 29 Am. & Eng. 
Ency. Law, pp. 937 and 938.) 

Even if the court committed error as to interveners' second 
cause of action, it should not be sufficient to reverse the entire 
judgment^ but this court would have the right and it would 
be its duty to so modify the judgment against the appellants 
as to cure any error on account of the second cause of action of 
interveners. {Ramsdell v. Clark, 20 Mont 103.) 

This court cannot review the action of a lower court in re- 
fusing an application for a new trial in an equity case unless 
it appears that all or substantially all of the evidence introduced 
at the trial is contained in the record. {Baker v. Ray, 2 Russ. 
75; Watt v. Starke, 101 U. S. 247 ; Booth v. Blundell, 19 Ves. 
600; Still V. Saunders, 8 Cal. 281; Currie v. ikf. C. Ry. Co,, 
24 Mont. 123 ; T. C. Power & Bro. v. Stocking, 26 Mont. 478 ; 
Merchants' Nat'l Bank v. Greenhood, 16 Mont. 395, p. 450 et 
seq.; M. 0. P. Co. v. B. & B. C. M. Co., 25 Mont 427.) 

MR JUSTICE MILBUKNT delivered the opinion of the 
court 

This is a suit for the foreclosure of a lien upon the property 
of the defendant railroad company, with intervention by the 
interveners named in the title of the cause. 

It has been very difficult to get a correct idea of the pleadings 
and of the theory upon which the case was tried, as the plead- 



348 Cook v. GALLATm Railroad Co. [June T.'03 

ings were not as skillfully drawn as they might have been, and 
because the brief of the appellants fails to c5omply with the rules 
of the court in some particulars, thus requiring us to rely upon 
our own research in some parts, and causing us to fail to dis- 
cover appellants' meaning in other places, and, further, because 
the argument is involved, going from one point to another with- 
out any attempt to take up and discuss the points in the order 
in which they are indicated in the assignmait of alleged errors. 
Plaintiffs filed in the ofiice of the county clerk a notice of lien, 
and brought an action to foreclose the lien, declaring upon a 
contract in writing, in which, among other things, it was stipu- 
L:ted that the parties thereto should settle upon the final esti- 
mate of the superintendent of construction of the defendant 
railroad company. Plaintiffs averred that they had complied 
with the terms of the contract, and that under its terms they 
were entitled to a balance of $13,252.82, with atcomey's fees 
and costs. After a jury was sworn, plaintiffs, with leave, 
amended their complaint by adding a paragraph declaring the 
reasonable worth of all of the labor done to be the sum of $30,- 
022.82. There does not seem to have been any objection to this 
amendment, which was made after the second amended answer, 
upon which defendants relied on the trial, had been filed. The 
defendants asked leave to interpose a demurrer to the complaint 
as amended, but the record fails to disclose that they stated upon 
what grounds they wished to demur, or that they offered any 
demurrer in writing to the court. Upon the trial the plaintiffs, 
for the purpose of showing that the work had been completed, 
ijDtroduced in evidence the "final estimate" of one Wiswell, who 
was the superintendent of construction of the defendant com- 
pany. Examination of the complaint, the answer, and of this 
estimate, which appears in full in the record, makes it certain 
that the plaintiffs claimed and introduced proof to show that 
they had excavated and removed cubic vards of solid rock and 
loose rock largely in excess of the number of cubic yards stated 
ill the Wiswell estimate, and that the defendant company denied 
on the trial that the number of cubic yards of solid rock and 



28 Mont] Cook v. Gallatin Bailboad Oo. 349 

loose rode removed by plaintiflFs was as great as claimed by plain- 
tiffs or stated in the said estimate, and introduced proof to sup- 
port their contention. 

The interyeners, having filed two notices of lien, asked that 
as to one cause of action they be allowed a lien, with provision 
for a deficiency judgment against plaintiffs; and, as to the sec- 
ond cause of action, without any reference to any claim against 
plaintiffs^ they asked for a lien on the property of the defend- 
aLts. The notice of lien first mentioned in the bill of interven- 
tion, referring to plaintiffs, declared the name of the owner of 
the property upon which they sought a lien to be th^ Yellow- 
stone Park Railway. In the other notice set out in connection 
with their second cause of action, without any reference therein 
to plaintiffs, interveners describe the owner to be the Yellow- 
stone Park Eailroad Company. Defendants demurred to the 
complaint in intervention, and to each cause of action therein 
set forth ; one ground being that it did not, as a whole, or as to 
either cause of action, state facts sufficient to constitute a cause 
of action. This demurrer was overruled. The plaintiffs admit- 
ted all that interveners claimed, except as to the amount alleged 
to be due, and as to this they admitted all except a small sum. 
The court brought in a jury to advise it. The jury found for 
plaintiffs, assessing the damages at $14,077.37. The court found 
and entered its decree in favor of plaintiffs and interveners; 
adjudging liens upon all the property of the defendants as 
prayed, and directing that the property be sold to satisfy the 
liens. The defendants appeal from the decree, and from an 
order overruling a motion for a new trial*. 

Twenty-eight assignments of error are in the brief, one of 
them not being numbered. 

1. Defendants declare that the court erred in refusing to 
allow ihem to interpose a demurrer to the plaintiffs' complaint 
as amended, and in compelling defendants to answer immedi- 
ately the same. While this appears to be two points in one, tho 
only point apparently argued and relied upon is that the court 
erred in refusing to allow a demurrer to be interposed to the 



850 CJooK V. Gallatin Railroad Co. [June T.'OS 

complaint as amended ; it having been amended after the jury 
were sworn by adding a paragraph to the effect that the work 
and the labor done were reasonably worth the sum of $30,- 
022.82. The record does not show that the demurrants stated 
any ground to the court why the answer as amended was de- 
murrable. If a demurrer in writing was offered, it has not been 
pointed out in the record. The complaint seems to state a cause 
ol action, and we cannot hold that the court erred as assigned. 

It does not appear that the defendants asked leave to amend 
their answer, or suggested that they wished to do so. 

2. The 2d, 3d, 4th, and 5th assignments of alleged error 
refer to the court's action in permitting the introduction of -testi- 
mony showdng or tending to show that the "final estimate" made 
by the superintendent of construction, Wiswell, was inaccurate 
ac? to the classifications of the rock and earth removed. The 
fifth assignment we do not notice, except so far as it may be 
covered by the remarks made in this paragraph, for the reason 
that it does not make any reference to any page of the record, 
and contains several assignments merged in one. We do not 
find that the court erred in permitting the appellants to intro- 
duce evidence to show the quantities of rock, loose rock, earth, 
etc., which were actually removed under the contract, and that 
the statement of Wiswell was not true. The case was tried by 
each party on the assumption that the statement of Wiswell was 
not correct, and that it had not been considered by either party 
as the basis of settlement The plaintiflFs said it showed too 
little work done under some classifications, and the defendants 
declared that it showed too much done under the same heads. 
It having been repudiated by each party in open court upon the 
record, it does not seem to us that any prejudice could result 
iu admitting the testimony which was introduced by each side 
It is true that plaintiffs declared in their complaint upon a con- 
tract in writing, under the terms of which they could not be 
paid until a final estimate had been made ; and it is also true 
that the plaintiffs did not in their complaint, avoid or attack 
the truth of the final estimate which was made. It also appears 



28 Mcnt] Cook v. Gatj.atik Eailboad Co. 351 

that the defendants denied that the plaintiffs had complied with 
the terms of the contract. But the case having been tried and 
submitted in the court below upon the theory that the "final 
estimate" was not true, appellants cannot now maintain that, 
lender the complaint, evidence was not admissible to show that 
the final statement was false. Such evidence as may have been 
hearsay as to Wiswell having said that his final estimate was 
false could not be prejudicial, as defendants themselves de- 
clared that the said estimate was not true. 

3. As to assignments 6, 7, 8, and 9, we need only say that 
they are not stated as the rules requira We cannot separate 
and number assignments where they are merged, and we cannot 
himt through transcripts where there are not any refertrtes to 
pcges thereof. 

4. It is assigned that the court erred in refusing "the motion 
of defendants to compel the plaintiffs to elect whether they 
Twoiild stand upon the implied contract alleged in the complaint 
or upon the express contract, and to dismiss the action for the 
foreclosure of the lien." Eeferejice to the transcript at the page 
indicated shows that the defendant did not make this motion. 
The language of the motion as it appears in the transcript is 
not the language of the assignment, and does not convey the 
Siime idea- Therefore we do not find that the court erred as 
assigned. 

6. In assignment numbered 11, appellants say that "it was 
error to refuse the offer of proof made as to the classification of 
James M. Robertson, and to refuse to allow the witness Boyce 
to identify a statement of his classification so that it could be 
offered in evidence." Examination of the parts of the record 
referred to shows that the court made three rulings against the 
appellants. To which of the three the assignment refers, we do 
not know. The assignment does not conform to the rules, in 
that the same is a merger. We will say, however, that it seems 
t»i be an attempt to prove by Boyce that one Robertson made 
certain calculations as to the amount of work done, and dictated 
them to Boyce, and that appellants offered to introduce classi- 



352 Cook v. Qai-latin Railroad C!o. [June T.'03 

ficatians thus maxie to show that their own (Wiswell's) final 
statement was inaccurate. They were objected to as irrelevant, 
immaterial, and incompetent, and because there was not any- 
thing before the court to show that the data given by Robertson 
to Boyce were correct. We think the court was right in exclud- 
ing the evidence. Robertson was not a witness on this trial, and 
there was not any legal reason advanced why his data should 
have been introduced in the way intended by the appellants. 
Moreover, as we have said, it was admitted by both sides that 
WiswelVs statement was jiot correct 

6. Referring to the twelfth assignment, we find that counsel 
assembles three alleged errors without setting them out "sepa- 
rately and particularly," as the rules require. Counsel makes 
a "point of law to be discussed," to-wit, was certain evidence 
properly rebuttal, or should it have been offered in chief ? This 
point is raised by the assignment of the three alleged errors. 
We cannot consider what is not properly presented, and there- 
fore we do not find the court in error as suggested. Besides, the 
order of proof is largely in the discretion of the court. 

7. As to assignments numbered 13 to 22, inclusive, relating 
to the instructions to the jury, refused or given, we need not 
make any remarks, as the case was one for the final judgment 
of the chancellor, to whom the findings of the jury were only 
advisory. The statement contained in Marsh v. Morgan, 18 
Mont. 19, which was a suit for foreclosure of a mechanic's lien, 
that the case therein considered was not an equity case, for the 
reason that there was not any equity issue, is opposed to the 
holding of this court from the time of the organization thereof 
up to the date of the adoption of the constitution, and there is 
not anything in that instrument which changes the rule. A suit 
to foreclose a mechanic's lien is a proceeding in chancery to be 
enforced in conformity with the established rules and principles 
governing proceedings in chancery. (Mochon v. SuLlivan-, 1 
Mont. 470 ; Simonion v. Kelly, 1 Mont 483 ;Riale v. Rottsh, 1 
Mont 474; Cvmow v. Blue Oravel Co., 68 Cal. 262; Mont. 
Ore Pur, Co. v. B. & M. C. C. £ 8. M. Co., 27 Mont 288, 70 



9.b Mont.] Cook v. Gallatin Railboad Co. 353 

Fac. 1114; Williams v. Unconipahgre Canal Co., 13 Colo. 469, 
22 Pac 806, and citations.) 

8. Assignment numbered 28 need not be considered. 

9. We cannot see that it was error, as alleged in assignment 
numbered 24, for the court to sustain the objection of the plain- 
tiffs to the question, "What have you to say as to whether the 
clearing and finishing of the contract * * * has been com- 
pleted by the plaintiffs ?" If defendants wished to make a rec- 
ord of error, they should have told the court what they expected 
tt prove by the witness, and offered to prove it, and take excep- 
tion to. the ruling of the court upon such offer, if it w^ere ad- 
verse. So counsel seemed to think, and they did make the offer ; 
but, so far as we can find from the record, the court did not 
make any ruling upon it, and the matter seems to have been 
dropped without any further effort to get a ruling upon the 
offer. In the argument in the brief it is stated that the court 
excluded the testimony offered. The record does not show that 
the court excluded any such testimony, for it did not make any 
ruling upon the offer, as we have said above. We cannot sfiy 
that the court erred as alleged. 

10. Was it "error for the court to find for the plaintiffs," 
as assigned in assignment numbered 25 ? The argument in the 
brief not treating of the assignments seriatim, and in many 
parts thereof not being clear as to what points are discussed, 
we have found very great difficulty in collating the several sen- 
tences and paragraphs which are intended to express the vie^vs 
of counsel as to this and other alleged errors. Such an assign- 
ment as the one numbered 25 does not point out or specify any 
particular finding or decision of the court as erroneous. 

11. We take up now assignnient numbered 26. Appellants 
say that the court erred in overruling the demurrer of defend- 
ants to the interveners' complaint. The complaint in interven- 
tion declares upon contracts with the Gallatin Railroad Com- 
pany, and a notice of lien upon the property of the Yellowstone 
Park Railway Company, a corporation, and another notice of 
lien upon the property of the Yellowstone Park Railroad Com- 

Vol. XXVIII-23 . A . 



354: Cook v. Gallatin Railroad Co. [ Jnne T.'OS 

pany, a corporation. The complaint in intei:vention also says, 
upon information and belief, that the Yellowstone Park Rail- 
road Company and the Gallatin Railroad Company are the same 
a rporation, or substantially the same corporation, and that the 
Yellowstone Park Railway and the Gallatin Railroad Company 
are the same corporation, or substantially the same. 

Before taking up and considering the several grounds of the 
demurrer to this complaint in intervention, it is necessary to set 
forth more particularly the allegations contained in the com- 
plaint Interveners allege in their first cause of action that be- 
tween August 25 and November 17, 1898, they performed work 
and labor for the defendant Gallatin Railroad Company (de- 
scribing it), which work and labor was done at the special in- 
stance and request of the plaintiffs, Cook & Woldson. In their 
second cause of action they say that between September 1 and 
November 15, 1898, they performed certain work and furnished 
certain material to the defendant Gallatin Railroad Company 
at its special instance and request, and that the reasonable value 
thereof ($490.93) has been due and owing to the interveners 
from the Gallatin Railroad Company since November 15, 1898. 
The interveners pray judgment upon their first cause of action 
for the sum of $5,293.47, with interest and attomey^s fees, and 
that they may have a deficiency judgment against the plaintiffs 
if the property be not sold for enough to pay the full amount of 
their claim (in other words, they apparently want judgment 
against the defendants, and a deficiency judgment against the 
plaintiffs) ; and upon the second cause of action they pray for 
judgment for $490.93, with interest and attorney's fees, with a 
hen on the property described, and, in the event that the claim 
of plaintiffs "be established upon the property above mentioned, 
then in that event, that the proceeds derived from the sale of 
said property shall be shared equally, pro rata, according to the 
re pective amounts so found due plaintiffs and interveners, in 
case the said proceeds arising from the sale of said property be 
insufficient to pay said plaintiffs and interveners' claims in full 
* * *." Of course, the prayer is not part of the complaint; 



?8 Jront.] Cook v. Gallatin Railroad Co. 355 ^ 

and it, in part, is introduced herein only for what it is worth, 
to aid us in arriving at some understanding as to what the com- 
plaint in intervention means. Defendants demurred to the 
complaint in intervention upon the ground, among others, that 
il did not state facts sufficient to constitute a cause of action. 
The demurrer attacked the first cause of action upon the ground, 
among others, that it did not state facts sufficient to constitute 
a cause of action, and the second cause of action upon the like 
ground, among others. 

We think the demurrer should have been sustained on the 
ground that the complaint did not state facts sufficient to con- 
stitute a cause of action ; that is, that there was a want of any 
reason or ground for intervention in the suit. It is apparent 
from an examination of all the averments of the complaint in 
the first cause of action that the interveners never made any 
bargain with the Gallatin Railroad' Company, although they 
may have done so with some other company ; and it is obvious 
that there is not any basis for a lien in favor of the interveners 
against the property of the defendant company, for that it is 
not named in either of the alleged notices, and, further, not 
having any such basis, the alleged fact that they have a cause 
of action at law for a money judgment against the defendants, 
or one of them, is not of itself sufficient to warrant intervention 
in the suit of plaintiffs to foreclose a lien, however willing the 
plaintiffs may be to permit the interveners to come in. It is 
possible to assume from the complaint that the interveners in- 
tended to allege that they were subcontractors of the plaintiffs 
as to the first cause of action, but, considering the complaint 
with the notices of lien attached thereto, there is not a sufficient 
statement of a cause of action for the establishment of a lien 
upon any property belonging to the defendants. In Missoula 
Mercantile Company v. O'Donnell, 24 Mont. 65-75, 60 Pac 
594, 991, the chief justice, speaking for the court, said that it 
is incumbent upon the claimant to insert the owner's name in 
the notice of lien which the law requires to be filed in the office 
of the county clerk. (Section 2131, Code of Civil Procedure.) 



356 CJooK V. Gallatin Railroad Co. [June T. '03 

The abstract made by the county clerk (Section 2132, Code of 
Civil Procedure) must contain "the name of the person * * 
* against whose property the lien is filed." It is no hardship 
til at the claimant shall be required to insert ihe name of the 
owner in the notice, says this court in the opinion cited 
above. "The claimant is bound to know for whom he works, 
01 for whose benefit he is bestowing his materials. If he as- 
sumes the risk without inquiry suflScient to enable him to pre- 
serve his rights, it is his own fault. The statute gives him 
ample time to inform himself. Though the statute is remedial 
in character, its requirements must be complied with. {Black 
V. AppoloTiio, 1 Mont. 342.)" M. M, Co. v. O'Donnell, supra. 
Omission of the name of the owner whose interest is to be 
charged cannot be supplied by the complaint. (Phillips, Mech. 
I^ens, 345.) 

For the foregoing reasons, and under the authority of Mis- 
soula Mercantile Co. v. O'Donnell, supra, and the cases cited 
by the chief justice therein, and (as to the alleged second cause 
of action) because the having of a right of action against a de- 
fendant (in a certain cause commenced by another) for the 
recovery of money, merely, without a right of lien, is not ground 
or reason for intervention in a cause brought by another party 
against stad defendant, we conclude that the demurrer as to each 
of the alleged causes of action should have been sustained. 

For the reasons last above stated, it was error to find for the 
interveners, as stated in assignment numbered 27. 

The decree, for the reasons stated, must, and is, modified by 
striking out so much thereof as finds for, and decrees any lien 
in favor of, the interveners, and as modified is affirmed. The 
interveners will pay one-half of the costs of appeal. 

Modified and Affirmed. 

Mr. Justice Hollow ay, having been of counsel in the court 
below, takes no part in the decision or in this opinion. 



28 3lont] Spbncek et xl. v^ Mungus bt al. 357 



SPENCER ET AL., Appellants, v. MUNGUS bt al., -^-— 
Respondents. ^ ^*' 

(i^o. 1,590.) 
(Submitted May 28, 1003. Decided June 6, 1903.) 

Costs-^ Allowance to Defendant — Order — Right of Appeal. 

1. An order, after final Judgment for defendant, refusing to disallow his 
costs, is reviewable on appeal from the Judgment, and not on an independent 
appeal ; the costs being a part of the Judgment. 

2. Code of Civil Procedure, Section 1851, allows costs, of course, to the plain- • 
tiff, on his recovering a Judgment In excess of $50 in «n action for money 
or damages. Section 1852 provides that costs must be allowed, of course, 
to the defendant, upon a Judgment in his favor. Seciton 1853 provides that 
no costs can be allowed in an action for the recovery of money or damages 
when the plaintiff fails to recover more than |50. • Held, that costs were 
properly allowed defendant on his recovering |35 under a counterclaim. 

Appeal from District Court, Granite County; Welling Nap- 
ten, Judge. 

Action by John A. Spencer and C. C. Spencer, copartners 
under the firm name of John A. Spencer & Son, against Mike 
Mungus and A. Blazina, copartners under the firm name of A. 
Blazina & Co. Judgment for defendants, and plaintiffs appeal. 
Affirmed. 

Statement of the Case. 

This action was commenced in the district court of Granite 
county by the appellants (plaintiffs below) to recover the sum 
of $1,118.66, alleged to be due from the defendants for goods, 
wares and merchandise sold by the plaintiffs to them between 
May, 18.98, and December, 1899. Defendants filed an answer 
denying the material allegations of the complaint, and, by way 
of counterclaim, sought to recover judgment against the plain- 
tiffs for $1,492.98, alleged to be due for moneys loaned and 
goods sold to and for work done for them by the defendants dur- 
ing the two years next prior to the date of the filing of the an- 



358 Spkncer et al. v. Mungus et al. [June T.'03 

swer. All tlie allegations of the counterclaim were denied by 
the reply. The cause was tried to a jury, which returned a ver- 
dict in favor of the defendants for $35. From the judgment 
entered thereon for the amount of the verdict, and including 
the defendants' costs, the plaintiffs appeal. The notice of appeal 
states that the appellants also appeal from an order of the dis- 
trict court refusing to strike out and disallow the defendants' 
costs. 

Mr. Josidh 8hull, and Mr, W. E. Moore, for Appellants. 

Messrs. Durfee & Brown, and Mr. George A. May wood, for 
Kespondents. 

ItR. JUSTICE HOLLOWAY, after stating the case, deliv- 
ered the opinion of the court 

The appellants apparently proceeded upon the theory that the 
order of the district court refusing to disallow the defendants' 
costs was an order made after final judgment, and appealable 
as such. But costs are a part of the judgment, and, in contem- 
plation of law, are settled before being incorporated in the judg- 
ment, and any order made with reference thereto is reviewable 
upon the appeal from the final judgment {Mont. Ore Pur. Co. 
v. Boston & Montcma C. C. & 8. M. Co., 27 Mont 288, 70 Pac. 
1114.) 

The only error assigned is the action of the district court in 
including in the judgment the defendants' costs. It is con- 
tended that no costs can be allowed in this action, for the reason 
that neither party recovered more than $60. So much of the 
Ck)de of Civil Procedure as is necessary to be considered in a 
determination of this question is as follows : 

"Sec. 1851. Costs are allowed, of course, to the plaintiff, 
upon a judgment in his favor, in the following cases ; * * * 
(3) In an action for the recovery of money or damages, exclu- 
sive of interest, when plaintiff recovers over fifty dollars. 



28 Mont] Spencer kt al. v. AIuncjus et al. 359 

"Sec 1852. Costs must be allowed, of course, to tJie defend- 
ant, upon a judgment in his favor in the actions mentioned in 
the next preceding section. * * * 

"Sec 1853. * * * But no costs can be allowed in an ac- 
tion for the recovery of money or damages when the plaintiff 
fails to recover more than fifty dollars. * * *" 

Under Section 1851, above, costs are allowed to the plaintiff 
only upon two conditions : First, that he prevails in the action ; 
and, second, that his recovery exceeds $50. Under Section 1852, 
costs are allowed to the defendant upon a judgment in his favor, 
whether it be upon a general. verdict which merely defeats the 
plaintiff's right of recovery, or for a definite amount in his favor, 
however small the amount may be. (Davis v. Hurgren, 125 
Cal. 48, 57 Pac 684; Dows v. Glas'pel, 4 N. D. 251, 60 K W. 
60.) Under Section 1853, which is the corollary of the other 
two, neither party is allowed costs when the plaintiff prevails 
in the action, but his recovery does not exceed $50. This is the 
construction placed upon a like provision by the Supreme Court 
of California in Anthony v. Grand, 101 Cal. 235, 35 Pac 859. 
In that case the plaintiff prevailed, but recovered less than. the 
amount necessary to carry costs, and the defendant contended 
tliat in that event he (defendant) should recover his costs. In 
disposing of the question the court said > "Our statute provides 
that 'no costs can be allowed in an action for the recovery of 
money or damages when the plaintiff recovers less than three 
hundred dollars.' (Code Civil Procedure, Sec 1025.) This 
evidently applies to both parties to the action, and forbids the 
recovery of costs by either of them." 

In this case the defendants recovered judgment, and, under 
the provisions of Section 1852, above, are entitled to have in- 
cluded in that judgment their costs. The provisions of Section 
1853, above, have no application whatever to the facts of this 
case. That section only applies when the plaintiff 
recovers judgment, but the amount of . his recovery 
does not exceed $50. Costs are the creatures of statute They 
were not allowed at all, eo nomme, at common law; and the 



360 Williams v. CJommissionebs. [JuiieT/03 

particular items of expense incident to a trial which may be 
denominated costs, as well as the conditions prescribed under 
which they may be allowed to one party or another, are subject 
to legislative change and control in consonance with the pro- 
visions of the state constitution. {Mont, Ore. Pur. Co. v. Bos- 
ton & Montcma C. C. & 8. Min Co., abova) 

The appeal from the order refusing to disallow the defend- 
ants' costs is dismissed, and the judgment affirmed. 

Affirmed. 



WILLIAMS ET AL., Appellants, v. BOARD OF COMMIS- 
' MISSIONERS OF BROADWATER COUNTY 
ET AL., Respondents. 

(No. 1,602.) 
(Submitted June 1. 1003. Decided June 8. 1903.) 

County Coinmiss loners — Powers — Contracts — Snits — Em- 
j)loying Counsel — County Not a Party. 

1. A contract with an attorney for his services, entered into by the chairman 
of the board of county commissioners. Individually, is not binding on the 
county, where the first and only action of the board with reference thereto, 
is the allowing of a portion of the attorney's claim for lesral services ren- 
dered in pursuance of the contract, since the commissioners have power to 
bind tne county only where they act as a legal entity. 

2 If under Political Code, Section 4230, the board of county commissioners 
has power to employ counsel (which is not decided), it has none whatever 
to employ counsel to prosecute a suit by an employe of the board against 
an officer of the county, where the county is not a party to the suit. 

Appeal from District Court, Broadwater County; F. K. Arm- 
stromj. Judge. 

E. A. Carleton prcBsented a claim to the board of countv 
commissioners of Broadwater county. From the action of the 
board in allowing part of the claim, David T. Williams and 



28 Mont] Williams v. Commissionehs. 361 

other taxpayers appealed to the district court, which rendered 
judgment against appellants; from which judgment, and from 
an order denying a motion for a new trial, they appeal. Ee- 
versed. 

Mr. E, H. Goodman, for Appellants. 

The board of county commissioners must cause to he kept in 
suitable books a record of all their official acts. (Sec. 4219, 
Political Code.) To prove these official acts the records them- 
selves would undoubtedly be the best evidence. (Sees. 3208 
and 3204, Code of Civil Procedure; Belk v. Meagher, 3 Mont. 
65.) 

"Boards of commissioners are the general public agents by 
which the powers of coimties are exercised, but, being creatures 
of statute, they can exercise only such powers as are expressly 
conferred upon them, or are necessary to the performance of 
their public trusts and duties." (Am. & Eng. Ency. of Law 
(2d Ed.), Vol. 7, p. 976, and note; Thomas v. Sndth, 1 Mont. 
1; Morris v. Multnomah Co., 18 Ora 163.) 

"A grant of powers to such corporation must be strictly con- 
strued." (Anu & Eng Eiicy. of Law (2d Ed.), Vol. 7, p. 976, 
note 3.) 

"A board of county commissioners can act only when con- 
vened as a board in legal session, either regular, adjourned, or 
special, as may be provided by statute." (Am. & Eng. Ency. 
of Law (2d Ed.), Vol. 7, p. 979, and note; Eigemann v. Posy 
Co., 82 Ind. 413 ; Paola, etc. R. Co. v. Anderson Co., 16 Kan. 
303; Anderson Co. v. Paola, etc. R. Co., 20 Kan. 534; Hamil- 
ton Courdy v. Webb, 47 Kan. 104; Willis v. Webb, 27 Pac. 
825.) 

We are willing to concede that county commissioners can 
employ counsel to prosecute or defend an action to which tlie 
ccunty is a party, but it is conceded that the county Avas not a 
party to the cases of Coad v. Lambert. No necessity for the 
employment of Carleton was shown. (Miller v. Board of Com- 
missioners, 35 Pac. 712.) 



362 Williams v. Commissioneks. [JuneT/03 

Even when commissioners employ counsel other than the 
county attorney to prosecute or defend an action to which the 
county is a party, this must be done at a regular or special 
meeting of the board. The employment must be the act of the 
legal entity: the "board," and not the act of the individuals 
constituting the board. As county commissioners are but agents 
of the county, they cannot delegate their powers to another 
agent, particularly in cases where the exercise of their powers 
involves reason and discussion. "The board of county com- 
missioners of a county cannot delegate its powers * * * 
to obtain attorneys to manage the prosecution of suits to which 
the coimty is a party, nor to abdicate its control of such a suit." 
(House V. Los Angeles Co.j 104 CaL 79 ; Smith v. Los Angelrs 
Co., 99 Cal. 628 ; Scollay v. County of Butte, 67 Cal. 240 ) 
(^ounty commissioners, if authorized by statute (and not otber- 
wise) may appoint an agent to discharge ministerial duties? not 
calling for the exercise of reason or discussion, but cannot go 
beyond this and delegate to others, duties, the discharge of 
which, calling for the exercise of reason and discretion, are 
legarded as public trusts. (House v. Los Angeles Co., 104 Cal. 
79 ; People v. Town of Linden, 107 Cal. 94; Scollay v. Covnty 
of Butte, 67 Cal. 249.) 

"Contracts made by public officers, as county commissioners 
of a county, obtain validity only by force of the law^ authoriz- 
ing their making, and persons contracting with such officers 
are charged with knowledge of their lawful power and the ex- 
tent of their authority." Any contract beyond the scope of the 
corporate power is void. (Lebcher v. Commissioners of Custer 
Co., 9 Mont. 315 ; Parr v. Village of Greenbush, 72 N. Y.472 ; 
1 Dillon on Municipal Corporations, 457; Zoltman v. San 
Francisco, 20 Cal. 105; Morris v. Multnomah Co., 18 Orfe. 
163; State v. Superior Court, etc., 4 Wash. 34.) 

Commissioners in allowing bills cannot act arbitrarily, but 
must be controlled by legal considerations. {David v. Commis- 
sioners, 4 Mont. 292.) 



28 Mont] Williams v. Commissioners. 363 

By SuM. 15 of Section 4230, Political Code, the power of 
the commissioners is expressly limited to the direction and con- 
trol of suits to which the county is a party. 

It was claimed by respondents in the court below that the 
allowance of Carleton's bill by the commissioners ratified the 
contract and that in consequence of such ratification the county 
became liable. If the county had been beneficially interested 
and the contract was one within the scope of the authority of 
the commissioners, and not void, the commissioners by accept- 
ing the benefits arising therefrom, if any, might ratify a legal 
ccntract made by an unauthorized agent, but simply ordering 
the bill paid would not be a ratification, neither would it be 
** accepting the benefits arising from the contract" To hold 
that the allowance of an illegal claim against a county is a rati- 
fication of the contract on which the claim was based, would 
he holding that the power of county commissioners is unlimited 
by any legal consideration in matters of this kind. 

"A void indebtedness against the county can only be made 
valid by legislative authority." (Hunt v. Fawcett, 8 Wash. 
399.) 

"A claim will not be enforced against a county unless it is 
authorized by some plain provision of law." (State v. Superior 
Court, etc., 4 Wash. 34.) 

Claims against the county which are legally chargeable alone 
can be allowed by the supervisors. (Linden v. Case, 46 Cal. 
171; Foster v. Caiman, 10 Cal. 278; SecL 4285, Political 
Code.) 

A contract void at its inception cannot be legalized by ratifi- 
cation. (Hunt V. Fawcett, 8 Wash. 399 ; Smith v. Los Angeles 
Co., 99 Cal. 628 ; Zottnum v. San Fra/ncisco, 20 Cal. 97.) 

MR. COMMISSIONER CALLAWAY prepared the opin- 
ion for the court. 

It appears from the record that the board of county commis- 
sioners of Broadwater county, at a special meeting held in 



364 Williams v. (^mmissioners. [June T. '03 

January, 1899, employed George Lambert and another to index 
the records of their county, and ordered the county clerk to give 
Lambert and associate access to his office and to the records 
therein. This the county clerk, upon the advice of the county 
attorney, refused to do. After the adjournment of the board 
Dumen, its chairman, met Lambert upon the street^ and di- 
rected him to employ coimsel for the purpose of bringing an 
action' against the coimty clerk, saying that the county would 
pay the bill. The board of county commissioners, while in ses- 
sion, never authorized Lambert, or any otiier person, to employ 
counsel. Under the direction given^ Lambert employed E. A. 
Oarleton, and Dumen afterwards saw Carleton concerning it. 
Application was then made to the district courts in behalf of 
Lambert, for a writ of mandate to compel the county clerk to 
give the desired afecess to hist office and records. The case finally 
reached the supreme court, where the application of Lambert 
was denied, on the ground that his contract with the board was 
void. (State ex rel. Lamhert v. Coad, 23 Mont. 131, 67 Pac. 
1092.) Thereafter Cai'leton presented his account against 
Lroadwater county, claiming the sum of $356.50 "for legal 
services and expenses in the conduct of the cases of Lambert v. 
Good and Coad v. Lambert, which cases were tried in the dis- 
trict court of Broadwater county and the supreme court of the 
state." During their September, 1899, session, the board al- 
lowed Carleton one-half of his claim. From this action David 
T. Williams and other taxpayers of Broadwater county appealed 
to the district court, which rendered judgment against appel- 
lants, and ordered the board to pay Carleton's bill as theretofore 
allowed. From such judgment, and an order denying a motion 
for a new trial, Williams and others appeal to this court. 

From the foregoing facts it will be seen that the board of 
county commissioners of Broadwater county did not employ, or 
authorize any one to employ, Carleton. 

"Each county must have a board of county commissioners 
consisting of three members." (Political Code, Sec. 4210.) 
"All meetings of the board must be public, and the books, 



28 Mont] Williams v. Commissioners. 366 

records, and accounts must be kept at the dffice of the clerk, 
open at all times for public inspection, free of charge." (Id. 
See. 4216.) The board must hold four regular sessions each 
year, at the coimty seat (Id. Sec. 4220.) "If at any time 
after the adjournment of a regular meeting the business of the 
county requires a meeting of the board, a special meeting may 
be ordered by a iiiajority of the board. The order must be 
entered of record, and five days' notice thereof must by the 
clerk be given to each member not joining in the order. The 
order must specify the business to be transacted, and none other 
than that specified must be transacted at such special meeting." 
{Id. Sec. 4215.) 

This board, having supervision over the official conduct of 
all county officers, and generally over all county business, is 
one of considerable dignity and power; and the statutes con- 
template that its meetings shall be held and conducted in an 
orderly and businesslike way. To bind the county by its con- 
tracts, it must act as an entity, and within the scope of its au- 
thority. Its members may not, discharge its important govern- 
mental functions by casual sittings on drygoods boxes, or by 
accidental meetings on the public streets; and its chairman, 
unless lawfully authorized by the board to do some act, or acts, 
haj no more power than has any other member of the board. 
The statutes do not vest the power of the county in three com- 
missioners acting individauUy, but in them as a single board ; 
and the board can act only when legally convened. (Paola & 
Fall River RaUwwy Co. v. Commissioners, 16 Kan. 302 ; 7 Am. 
k Eng. Ency. Law (2d Ed.), 979.) And its minutes should 
be kept in such manner as to give true and correct infoniiation 
to all inquiring concerning county affairs. 

As shown by its minutes, the first and only action ever taken 
by the board with reference to Carleton's services was Avhen it 
ordered a portion of his claim paid. 

But, had the contract between Carleton and the board been 
entered into in a regular manner, yet it was void. The board 
has power "to direct and control the prosecution and defense 



£9 SS 



366 Stevens et al. t'. Curran et al. [JuneT/03 

of all suits to which the county is a party." (Political Code, 
Sec. 4230.) If it has power to employ counsel under this stat- 
ute, which we do not decide, it has none whatever so to do in 
a case to which the county is not a party. It must not exceed 
the authority vested in it by statute. (State ex rel, Lambert v. 
Coad, 23 Mont. 131, 67 Pac 1092 ; Lebcher v. Board of Comr 
missioners of Cvster County, 9 Mont. 315, 23 Pac. 713.) It 
16 conceded that Broadwater county was not a party to the ac- 
tions in which Carleton rendered the services in question. 

We are therefore of the opinion that the judgment and order 
should be reversed, and the cause remanded. 

Per Curiam. — For the reasons given in the foregoing opin- 
ion, the judgment and order are reversed, and the cause re- 
manded. 



STEVENS ET AL., Respondents, v. CURRAN et al.. 
Appellants. 

(No. 1,591.) 
(Submitted May 29, 1908. Decided June 8. 1903.) 

Chattel Mortgages — Possession by Mortgagor — Effect — Fraud- 
ulent Mortgage — Rights of Purchasers — Lien — Conversion 
— Demand — Complaint, 

1 Findings of fact by a trial court, based on conflicting evidence, will not be 
disturbed on appeal. 

2. Where a chattel mortgagee permitted the mortgagor to retain pOBsession 
of the goods, and to sell and dispose of them without accounting for the 
proceeds to the mortgagee, the mortgage was fraudulent as to creditors 
and subsequent purchasers from the mortgagor in good faith. 

3. Where it was claimed that a chattel mortgage was void as to subsequent 
purchasers of the goods mortgaged, by reason of the fact that the mortgagor 
was permuted to remain In possession and sell the goods without account- 
ing to the mortgagee, extjioRic evidence was admissible to show the condi- 
tions actually existing and the conduct of the parties with reference to the 
mortgaged property. 



^S Mont. J Stevens ET al. v. Cukkan et al. 367 

4 Where plain tiiFs purchased certain goods covered by a chattel mortgage 
from the mortgagor, and retained actual possession of them, and the court 
foimd that the sale to plaintiffs was valid. It was not oecessary for plHin- 
tlffs to obtain a Judgment or levy an attachment on the goods as a condi- 
tion precedent to their right to assail the mortgage In an action against 
the sheriff for seizing the goods thereunder. 

5 Where the act of a sheriff In seizing goods under a mortgage from plain- 
tiffs, who were purchesers thereof from the chattel mortgagor, was wrong- 
ful in the beginning, no demand was necessary to entitle plalntitts to sue 
the sheriff for conversion of the goods. 

6 In an action for conversion, an allegation that defendants converted anu 
disposed of the property to their own use is an allegation of fact sufficient, 
in the absence of a special demurrer, to sustain a Judgment for plaintiff. 

7. In determining .e rlgnts of third persons, the Instrument and the conduct 
of the parties thereto must be looked to, irrespective of the intention of 
the mortgagor or mortgagee. 

Appeal from District Court, Missoula County; F. K. Woody, 
Jtidge. 

Action by A. M. Stevens and others against D. T. Curran, 
sheriflF, and others. From a judgment in favor of plaintiflFs, 
aud from an order overruling a motion for a new trial, defend- 
ants appeal. Affirmed. 

Mr. W. J. Stephens, for Appellants. 

The sheriff can justify the taking of this property under pro- 
cess and is not liable without a demand for the return of the 
property before suit. Process regular is always justification 
-without demand. Where the taking i^ tortious no demand is 
necessary. But the taking of property under Section 3872 of 
the Civil Code is not tortious. By that section the officer is 
commanded and it is made his duty to take the property de- 
scribed in the mortgage wherever found, not confined even from 
the defendant, but wherever found. He acts under the mort- 
gage just as he would under a writ of replevin. In both in- 
stances there is a taking of specific chattels by authority of law, 
and in discharge of his duty. If the officer takes property in 
replevin, he is under the statute. Civil Procedure, Sec. 854, 
entitled to a demand by the claimant 

Because the plaintiff brings an action of trover instead of 
replevin, it does not change the nature of things. One action 



368 Stevens et al. v. Curran et ax. [June T/03 

for the wrongful taking of specific articles and the other dam- 
ages for the wrongful taking of the same chattels. In both in- 
stances the unlawful or wrongful tiiking is the gist of the action. 
It is laid dowtn as a rule by some courts that in an action for 
the recovery of personal property, the plaintiff makes his case 
when he shows title or right of possession in himself, and an 
unlawful* detention by the defendant, but in all these cases the 
rule is only applied when a third party, not an officer acting 
under special process against the thing, takes and detains the 
property. Voss v. Whitney, 7 Mont. 385, holds that taking pos- 
session of mortgage chattels is an official taking. On demand 
general, see Daniel v. Oorham, 6 Cal. 44 ; Taylor v. Seymour, 
6 Id, 512 ; RUley v. Bcannell, 12 Id. 73 ; Bacon v. Robson, 53 
Id, 399 ; Laurence v. Coyne, 62 Id. 124. And on justification 
by an officer, see BaXlis et oi. v. Montgomery et ah, 50 N". Y. 
Eep. 353. A\sOy Mamdng, Bowman & Co. v. Kenruinet et al., 
73 K Y. Rep. 4^0; Fleming v. Wells, 65 Oal. 366; Laurence v. 
Coyne, 62 Id. 124. 

Again, the plaintiffs are not in a position to attack the mort- 
gage for fraud as creditors or subsequent purchasers for value. 
A general creditor whose claim is not merged in a judgment 
cannot attack the mortgage for fraud. {People's Savings Bank 
v. Bates, 120 U. S. Sup. Ct. Rep. 556; Gesry et al. v. Geery 
e^ al, 63 K Y. 253 ; Southard v. Benner, 72 Id. 424; Jones el 
al. V. Graham, 77 Id. 628; Clute v. Steele, 6 Nev. 335.) 

"Not can they do so as subsequent purchasers. The statutory 
use of the words subsequent purchaser means a subsequent pur- 
chaser in good faith, that is for a valuable consideration witli- 
out notice. There must be a new consideration at the time of 
the transfer and not merely a settlement of a pre-existing in- 
debtedness. {Kohl V. Lynn, 34 Mich. 360; Jones et al. v. Gra- 
ham, 77 K Y. 628 ; People's Saivings Bank v. Bates, 120 U. S. 
556, and cases cited; Clute'v. Steele, 6 Nev. 335.) 

Under out statute fraudulent intent is a question of fact and 
not one of law. Being a question of fact, that issue should have 
been raised by the pleadings. The pleadings raise no such issue : 



28 Mont.] Stevens et al. v. Curkan et al. 869 

hence no extrinsic evidence should have been admitted on the 
question. {Territory v. Virginia Road Co,, 2 Mont. 100, 101, 
109, ^d cases cited therein ; also, Purcy v. Sabin, 10 Oal. 28 ; 
Jerome v. Stehbins, 14 Id, 457 ; Green v. Palmer, 15 Id, 415 ; 
Tessot V. Darling, 9 Id, 285; Levinson, v. Schwartz, 22 Id. 
229.) 

Jf r. /. M, Dixon, for Respondents. 

MR, OOMMISSIONEU POORMAN prepared the opinion 
for the court 

This is an action in conversion, originally commenced in a 
justice court of Missoula county, and taken by appeal to the 
district court of said county, where a trial was had by the court 
sitting without a jury, and judgment was rendered for plain- 
tiffs. From this judgment, and the order of the court overrul- 
ing a motion for a new trial, the defendants appeal. 

The findings of fact made by the trial court are to the effect 
that one Mae Carrier, who was at that time engaged in the mer- 
cantile business at the city of Missoula, borrowed $500 from 
defendant W. J. Stephens, for which she gave her promissory 
note, and at the same time executed as security for payment of 
said note a chattel mortgage on her stock of merchandise, with 
a provision that the mortgage should extend to certain other 
articles of merchandise and store fixtures to be thereafter pur- 
chased by the mortgagor; that the mortgage further provided 
that the mortgagor might remain in possession of the mort- 
gaged property and carefully use the same, but that she should 
not sell or dispose of said property, or any part thereof, or allow 
it to be taken from her possession by legal process or otherwise ; 
that the mortgagor, after the execution of the moi-tgage, re- 
mained in the possession of the stock of merchandise, and sold 
and disposed of the same in the usual course of trade, and pur- 
chased other goods, and added to the stock in her store; that the 
defendant Stephens had full knowledge of the sale of the mer- 
chandise, and knew of the manner in which the mortgagor was 

Vol. XXVIII-24 



370 Stevens bt al. v. Curban bt ai*. [June T.'OS 

conducting the business and disposing of the merchandise, and 
tt.at he made no objection to the same, but acquiesced therein; 
that no provision was made in the mortgage for an accounting 
by the mortgagor for any of the proceeds of the property sold, 
and that no part of the proceeds was applied to the payment of 
the debt secured by the mortgage, except the payment of the 
interest on the note ; that the mortgagor, after the execution of 
the mortgage, continued, with the knowledge of defendant Ste- 
phens, to conduct the business and to sell the goods in the same 
manner as though the mortgage had not been executed ; that the 
plaintiffs purchased from the said mortgagor, while she was 
so conducting the business, certain goods, wares and merchan- 
dise, and by their agent took actukl possession of the goods so 
purchased; that while they were in such possession, and after 
such purchase had been completed, the defendants Curran and 
Violette, acting as the sheriff and undersheriff of- the county, 
and over the protest of the plaintiffs, took the goods from the 
plaintiffs under said chattel mortgage, at the request of the de- 
fendant Stephens, the mortgagee. At the time of the seizure 
the plaintiffs notified the sheriff that the mortgage was void as 
to the goods so purchased by them, but were informed by the 
sheriff that his duty required him to take possession of the 
goods, and that they could bring suit against him or defendant 
Stephens to recover the same. It further appears from the 
record that the sheriff is still holding these goods. 

The findings of the court are based either upon admissions 
by the parties, or upon evidence with respect to which there is 
substantial conflict; and, as has been repeatedly held by the 
supreme court of this state, cannot be disturbed under such cir- 
cumstances. (Merchants^ Nat'l Bank v. Oreenhood, 16 Mont. 
430, 41 Pac. 250, 851; Sanford v. Gates, Townsend <& Co., 
21 Mont. 288, 53 Pac. Y49.) 

It is claimed by the respondents that the mortgage is fraudu- 
lent, as to creditors and subsequent purchasers in good faith, 
by reason of the mortgagor being permitted to remain in poo- 
session of the goods, and to sell and dispose of them without 



28 Mont] Stevens et ai.. v. Cubran et al. 371 

iraking an accounting to the mortgagea The appellants con- 
tend that the mortgage is valid on its face, and that by its terms 
the sheriff had the right to seize the goods, and that respondents 
could not attack the mortgage until they had first obtained a 
judgment, and that a demand on the sheriff was necessary be- 
fore an action could be maintained. 

In Rocheleau v. Boyle, 11 Mont, on page 469, and 28 Pac, 
on page 878, the court, in passing on the question as to the val- 
idity of a mortgage, where the mortgagor remained in possesr 
sion and disposed of the goods, says : "If a mortgage of goods 
be made, as provided by statute, leaving possession with the 
mortgagor, and it be understood, agreed, or knowingly permit- 
ted (for, if it is knowingly permitted, it is understood and 
agreed) to the mortgagor to place the mortgaged goods on sale, 
not subject to the mortgage, to be sold, carried away, or con- 
sumed, and to use the proceeds without reference to the mort- 
gage, this arrangement annuls every vital element of the mort- 
gage, so far as concerns the goods to which such arrangement or 
permission extends. The mortgage, under such circumstances, 
becomes a mere sham, a mere appearance, a delusion, asserting 
ir form what is not in fact, as admitted by the conduct of the 
parties. The possession does not remain. Nor does the prop- 
erty remain. It is 'shifted over to those who will come and buy, 
and is carried away without respect to the mortgage j * * * 
and we think there ought to be no hesitation in holding the 
mortgage void as to property so dealt with, or, in other words, 
that such property is put out from under such mortgage by the 
conduct of the^ parties in relation to it." This is in effect a Hold- 
ing that the mortgage, while valid as between the parties, has 
by the conduct of the parties been released as to the property 
sold by the mortgagor. 

Extrinsic evidence is admissible to show conditions actually 
existing, and the conduct of the parties with reference to the 
mortgaged property. It is true, the statute has been slightly 
changed since the decision in Rocheleau v. Boyle, but no change 
tas been made conflicting with the doctrine announced in that 



372 Stevens bt at., v. Curkan et al. [June T.'OS 

case, as above quoted.' It is likewise true that a prowling cred- 
itor cannot attack a conveyance or sale on the ground of fraud ; 
but, whenever the creditor acquires a lien on the goods, he may 
then attack the conveyance or the sale, in the protection of his 
lien and his rights. 

The plaintiffs claim these goods as purchasers. They ob- 
tained tictual possession of thenu The sale to them was de- 
clared by the court to be valid, and under such oircumstanoes 
it was not necessary for them to obtain judgment or levy an at- 
tachment as a condition precedent to assailing the mortgage. 
{Westheimer v. Ooodkind, 24 Mont 90, 60 Pac 813.) 

Had this mortgage contained a provision that the mortgagor 
was to accoimt to the mortgagee for the proceeds of sales made, 
the doctrine as announced in Noyes v. Ross, 23 Mont 425, 59 
Pac. 367, 47 T R A. 400, 75 Am. St E,ep. 543, might apply; 
but the mortgage contains no such provision, nor does the evi- 
dence establish that there was any agreement or understanding 
that there should be any such accounting, or that any account- 
ing ever was made. 

The taking by the sheriff of these goods from the purchasers, 
the plaintiffs, was wrongful in the beginning, and in an action 
of this kind, and under such circumstances, a demand is not 
necessary prior to the bringing of suit 

In Daggett v. Oray, 110 Gal. on page 171, 42 Pac. on page 
568, which was an action in conversion, the court says: "If 
the relation of the defendant to the property is such that a pre- 
vious demand is essential in order to establish conversion -on 
his part, proof of such demand must be made at the trial ; but 
the demand need not be alleged. The allegation that the de- 
fendants 'converted and disposed of the property to their own 
use' is the allegation of a fact sufficient, in the absence of a 
special demurrer, to sustain a judgment Upon the trial of an 
issue, on this averment, the plaintiff would be at liberty to in- 
troduce evidence of a demand and refusal, if such evidence 
were sufficient or necessary to establish the conversion ; and he 
would also, under this averment, be authorized to offer evidence 



28 MonU] Dahlman v. Dahlman et ai- 373 

tLat the defendants had sold or otherwise dealt with the prop- 
erty in repudiation of the daim of the plaintiff." The com- 
plaint in this action contains this specific allegation, and comes 
clearly wihin the decision in the case jnst quoted. (See, also, 
21 Enc. P. & P. 1083.) 

There is no contention made in this case that there was any 
intent on the part of the defendants or the. mortgagor to de- 
fraud creditors or subsequent purchasers; but the instrument 
and the conduct of the parties thereto must be looked to in de- 
termining the rights of third persons, irrespective of the inten- 
tion of the mortgagor or the mortgagee. The mortgagee's in- 
tention undoubtedly was to assist the mortgagor, and to enable 
her to carry on her business and to add to her stock of goods 
and he probably relied more upon her ability to pay than he did 
upon enforcing payment under and by virtue of the terms of 
tis mortgage. His good intention in the matter is not ques- 
tioned, but the principles of law involved have been so long es- 
tablished that we cannot recommend that the court now disturb 
thenL 

We are therefore of the opinion that this judgment should be 
affirmed^ 

Per Cubiam. — For the reasons given in the foregoing opin- 
ion, the judgment of the court below is affirmed. 



DAHLMAN, Appellant, v. DAHLMAN et al.. 



Respondents. 


28 873 

«28 380 


(No. 1,593.) 


28 373 
36 519 


(Submitted June 1, 1003. Decided June 15, 1903.) 





Descent and Distribution — Bights of Widow — Heir of Hus- 
band — Doiver — Election — Merger, 



374 Dahlman v. Dahlman et al, [June T/03 

The wife's right to dower or election under Sections 228 and 236 (Civil Code), 
are separate from her rights as an heir of her husband under Section 
1852. and hence the fact that she participated in the distribution of the 
estate as an heir of her husband does not .constitute a waiver of the right 
of election to take one-half of the residue after payment of debts, under 
Section 286. 

Appeal from District Court, Jefferson Comity; M. H. 
Parker, Judge. 

Action by Anna Dahlman against Emil Dahlman and an- 
other. From a judgment in favor of defendants, plaintiff ax>- 
peals. Reversed. 

Statement of the Case. 

This proceeding was instituted by the plaintiff, the widow 
cf Henry Dahlman, deceased, under Section 3070-3081 of the 
Code of Civil Procedure, for the purpose of having allotted 
to her dower in the estate of her husband in accordance with 
the provisions of Sections 228-244: of the Civil Code, relating 
to dower. Upon the pleadings filed in the district court, which 
crnsist of a complaint, answer, and replication, no issues of fact 
arise. That court, after consideration of the material facts 
therein alleged and admitted, rendered and caused to be en- 
tered a judgment in favor of the defendants, holding, in effect, 
that the widow, under the facts stated, cannot claim one-half 
of the entire estate of her deceased husband by right of succes- 
sion under Section 1852 of the Civil Code, and at the same time 
have the benefit of dower, or her election in lieu thereof, as pro- 
vided in Section 236 of the same Coda 

The facts necessary to an imderstanding of the controversy 
are the following: Henry Dahlman died intestate in Jefferson 
aunty on February 15, 1899, leaving surviving him his widow, 
the plaintiff, and his father and mother, the defendants. There 
were no children nor grandchildren. The plaintiff was ap- 
pointed administratrix, and, after qualifying, proceeded to the 
discharge of her duties. The estate consisted of a large amount 
of real and personal property. A portion of the real estate was 



28 Mont] Dahlman v, Dahlman et al, 375 

in mines, which, at the death of the intestate, were, and since 
that time have been, paying dividends. The fund accumulated 
from that source amounts to $4,664.14 now in the hands of the 
administratrix. . After stating these facts, the complaint al- 
leges: That the plaintiff has not assigned, waived, nor relin- 
quished, nor in any manner abandoned, her dower in the said 
lands, or her interest in the rents, issues, and profits thereof ; 
that her interest therein has not been assigned or set over to 
her ; that she is entitled to and demands and elects to take one- 
half of the said lands, with the rents^ issues, and profits tliere- 
of accruing since the death of her husband, absolutely and in 
her own right, subject to the payment of the debts of the estate, 
as provided in Section 236 of the Civil Code, without preju- 
dice to her rights as heir of her husband in the residue of the 
estate; and that the plaintiff has demanded of the defendants 
that her interest in the said lands and the accrued rents, issues, 
and profits thereof be set over to her, but that the defendants 
have refused her said demands, or to give their consent that the 
court having jurisdiction of the administration of the estate 
may accord to her her rights in the premises. It is admitted 
that there has been a partial distribution of the estate, and that 
the plaintiff shared therein, taking a one-half interest in the 
portion distributed by virtue of her right as heir of her husband. 
As before stated, upon these facts the court held that by 
virtue of her participation in the distribution of the estate as 
heir of her husband she thereby waived her right of election 
to take one-half of the residue of the estate as dower under the 
provisions of Section 236 of the Civil Code, mipra. From the 
judgment rendered, the plaintiff has appealed. 

Messrs. Walsh & Newm-an, for Appellant. 

Mr. George F, Cowan, and Mr. A. J. Craven, for Respond- 
ents. 

MIL CHIEF JUSTICE BRANTLY, after making the 
foregoing statement, delivered the opinion of the court. 



3Y6 Dahlman v. Dahlman bt al. [June T.'03 

The only question submitted to this court for decision is 
whether, when the husband di^s intestate, without children or 
grandchildren living surviving his widow and one or both pa- 
rents, the widow is entitled to one-half of the estate under the 
statute relating to succession, in addition to her right of dower, 
or election in lieu thereof, under Section 236 of the Civil Code, 
supra. The solution of this question depends upon a construc- 
tion of Sections 228, 236, and 1852, supra, in the light of other 
provisions of the Code touching the subjects to which these sec- 
tions relate. These provisions are the following: 

"Sec. 228. A widow shall be endowed of the third part of all 
lands whereof her husband was seized of an estate of inheritance 
at any time during the marriage, unless the same shall have 
been relinquished in legal form.. When a wife joins with her 
husband in the execution of any conveyance of land, she thereby 
relinquishes her inchoate right, and shall not thereafter have 
dower therein, except in case of sale under mortgage signed and 
executed by herself and husband she shall have a right of dower 
in the surplus. Equitable estates shall be subject to the widow's 
dower, and all real estate of every description, contracted for 
by the husband during his lifetime, the title to which may be 
completed after his decease.'' 

"Sec. 236. If a husband die, leaving a widow, but no chil- 
dren, nor descendants of children, such widow may, if she elect, 
have, in lieu of her dower in the estate of which her husband 
died seized, whether the same shall have been assigned or not, 
absolutely and in her own right^ as if she were sole, one-half of 
all the real estate which shall remain after the payment of all 
just debts and claims against the deceased husband: provided, 
that, in ease dower in such estate shall have been already as- 
signed, she shall make such new election within two months 
after being notified of the payment of suQh claims and debts." 

"Sec. 1852. When any person having title to any estate not 
limited by marriage contract, dies wdthout disposing of the es- 
tate by will, it is succeeded to and must be distributed, unless 
otherwise expressly provided in this Code and the Code of Civil 



28 Mont] Daiilman r. Dahlman et al. 377 

Procedure, subject to the payment of his debts, in the following 
manner: * * * (2) If the decedent leave no issue, the 
estate goes one-half to the surviving husband or wife, and the 
other to the decedent's father and mother in equal shares, and 
if either be dead, the whole of said half goes to the other. * *'' 
It will be observed that Chapter HI, Title I, Part III, Di- 
vision 1, of the Code of which Sections 228 and 236 are a part, 
tieats exclusively of the obligations, rights, and duties of the 
husband and wife, including the dower rights of the wife. The 
express provision of Section 228 is that she shall be endowed 
of the third part of all lands wherein her husband was seized 
ol an estate of inheritance at any time during the marriage, in- 
cluding equitable and all other estates in land of whatever de- 
scription. This provision is without restriction or limitation. 
It attaches to all lands falling within the description, unless the 
wife shall have relinquished her right in legal form. This may 
be done only by her deed executed and duly acknowledged in 
conformity with the law, or by the acceptance by her of a devise 
or bequest under the will of her husband under Section 234, or 
by a jointure settled upon her, with her assent, by her husband, 
before the marriage, under the provisions of Sections 239 and 
240. Title VII, Part IV, Division II, of which Section 1852 
forms a part, deals exclusively with the subject of succession, 
aud neither has nor purports to have anything to do with the 
rights, duties, and obligations of the husband and wife. The 
aims and purposes had in view by the legislature in enacting 
tbese different parts of the Code and the specific provisions 
therein are Avholly separate and distinct from each other. The 
former recognizes tlie common-law right of dower. At the same 
time it extends this right to estates to which it did not attach 
at the common law, and enlarges the wife's right by the election 
granted to her under Section 236. By this provision she has 
the absolute right to take in fee, in lieu of the common-law 
dower, one-half of all the real estate, subject to the payment of 
debts lawfully dpe from the estate. This estate falls to her, not 
as heir, or by will of her husband, but by virtue of her marital 



378 Dahlman v. Dahlman et al. [June T/08 

right, and without regard to the law relating to the rights of 
heirs, or to any will made by the husband. After the right has 
become fixed by the death of the husband, she can assert it de- 
spite the rights of creditors, heirs, or any person whomsoever; 
and the only restriction upon the right of election granted under 
Section 236 is that there be no children or grandchildren, and 
that, in case she chooses the second alternative, the rights of 
the creditors must first be satisfied. The provisions of Title 
VII, referred to, have to do with the rights of heirs only, and 
the course of succession to property where the owner dies with- 
out a will. This title grants to the widow the right of succes- 
sion, and this right given to her rests upon exactly the same 
ground as that of any other heir. Nor does any provision there- 
in impose, directly or by implication, any condition or restric- 
tion upon the right of dower. The two rights, though conferred 
by statute, rest upon different principles, and exist independ- 
ently of each other; and the right of election given the widow 
under the circumstances contemplated by Section 236 has no 
connection with the right to take as heir one-half of the residue 
of the estate, real and personal, after the claims of creditors are 
satisfied. It is true that when the fee to her portion in lands 
has vested in her under the right of succession, the dower right 
in such property is pro tanto merged in the fee; but this in no 
wige affects her right to dower in the residue of the estate. This 
descends to the heirs subject to her rights, and, though she falls 
within the class of those who, under the statute, are denominated 
"heirs,*' this does not affect her rights conferred by the provis- 
ions of other sections which have no connection whatever with 
the law of succession. It follows that the district court was in 
eiror in holding as it did. 

The judgment is reversed, and the cause is remanded, with 
directions to proceed according to the views herein expressed. 



38 Mont] In ke Dahlman's Estate. 379 

In KB DAHLMAN'S ESTATE. 

(No. 1,607.) 
(Submitted June 1. 1908. Decided June 15, 1903.) 

Probate — Jurisdiction of Court — Dower, 

When a court Is exercising Its^ probate jurisdiction. It has no power with refer- 
ence to dower, and can make no orders affecting a widow's dower right. 

Appeal from District Court, Jefferson County; M. H. Par- 
ker, Judge. 

Anna Dahlman appeals from an order of final distribution 
it the estate of Henry Dahlman. Affirmed. 

Messrs. Walsh & Newman, for Appellant 

Mr. George F. Cowan, and Mr. A. J. Craven, for Respond- 
ents. 

MR. CHIEF JUSTIOE BRANTLY delivered the opinion 
of the (K>urt. 

This matter comes before this court upon an appeal from an 
order of final distribution. At the time the order was made, 
Anna Dahlman, appellant in her own right, requested that the 
court embody in it a statement that it was made without preju- 
dice to her rights under the provisions of the Civil Code relat- 
iLg to dower, and her right of election in lieu thereof under 
Section 236 of that Code. This the court refused to do, be- 
cause the judge was of the opinion that^ having elected to share 
in the estate as heir under the statutes relating to succession 
(Civil Code, Section 1852 et seq.)y the api)ellant had thereby 
waived her claim to dower. 

Whether the court erred in refusing to embody in the order 
this reservation is the only question upon which a decision is 



380 Greene v. Montana. Bbewing Co. [June T/08 

sought The rights of the appellant in the premises were set- 
tled and determined by this court in the case of Dahlman v. 
Dahlman (this day decided), wrde p. 373, 72 Pac 748. We are 
of the opinion that she suffered no prejudice by the order as 
niada We have not been able to find any provision in the Title 
(Title XII) of the Code of Civil Procedure relating to probate 
proceedings, giving to the court, when sitting in probate, juris- 
diction of any matter touching the admeasurement of dower^ 
The jurisdiction upon this subject is conferred upon the court 
as a court of general jurisdiction, and it must be invoked by an 
independent action under the provisions of Title XIII of the 
Code of Civil Procedure. The remedy therein provided is, we 
think, exclusive. The court, when exercising its probate juris- 
diction, has, therefore, no power with reference to dower, and 
no order which it may make touching the distribution of prop- 
erty during the course of administration ca;n, of itself, affect 
the right of dower in any lands to which the right has attached, 
or any election which the widow has with reference to it She 
may bring her action to have her dower allotted to her, notwith- 
standing the order of distribution makes no mention of her 
right This being the case, the court committed no error in mak- 
ing the order, though the reason for its action in the premises 
was not correct. The order is therefore affirmed. 

Affirmed. 



28 380| 
832 I06' 



GREENE, Respondent, v, MONTANA BREWING COM- 
PANY, Appellant. 

(No. 1,599.) 
(Submitted June 1, 1903. Decided June 15, 1903.) 

haiikrupicy — Preferences — Knowledge of Creditor — Jndg- 
m-enis — Satisfaction Before Bankruptcy — Proceeds of Execu- 
tion Sale — Recovery by Trustee — Complaint — Appeal — 
Transcript — Unnecessary Matter — Dismissal of Appexd — 
Cost of Printing — Rides of Supreme Court 



28 Mont.] Qbbbne v, Montana Bkewing Co. 381 

1 Bankruptcy Act (Act of Congress July 1. 1898), Section 60b, provides that 
If a bankrupt shall haye giycu a preference within four months before the 
flllng of the petition, or after filing the petition and before adjudication, 
and the person receiving it shall have had reasonable cause to believe that 
it was Intended thereby to give a preference, it shall be voidable by the 
trustee, etc. Held, that where a petition to avoid an alleged preference 
failed to allege that the preferred creditor had reasonable cause to believe 
that the bankrupt by suffering Judgment to be recovered Intended to give 
such creditor a preference, within the meaning of the bankruptcy act, it 
was insufficient, since the burden of proof was on the petitioner to sustain 
such proposition. 

2. Bankruptcy Act (Act of Congress July 1, 1898), Section 67f, provides that 
certain liens, Including Judgment Hens obtained through legal proceedings 
against an Insolvent within four months prior to the filing of a bankruptcy 
petition against him, in case he is adjudged a bankrupt, shall be void, and 
the property affected shall pass to the trustee. Held, that such section 
affects only the lien of a Judgment recovered within four months before 
the filing of a bankruptcy petition, and not the Judgm«nt itself, and 
hence, where property had been sold under execution, And the Judgment 
satisfied, before the filing of the petition, there was no Judgment lien 
which could be released, within such section, and the trustee was' not 
entitled to recover against the creditor thereunder th« proceeds of the 
property so sold. 

3. The unnecessary Incorporation of formal parts of pleadings, writs, and 
other papers in the transcript on appeal. In violation of Supreme Court 
Rule VII, is not ground for dismissal of the appeal. 

4 Where appellant unnecessarily incori>orated formal parts of pleadings, 
writs and other papers in the transcript on appeal in violation of Su- 
preme Court Bule VII, he was not entitled to recover the expense of 
printing that portion of the transcript so incorporated. 

Aj>i)eal from District Court, Cascade County; J. B. Leslie , 
Judge, 

Action by Howard S. Greene, as trustee in bankniptcy of 
Chris Peterson, against the Montana Brewing Company. From 
a judgment in favor of plaintiff, defendant appeals. Reversed. 

Statement of the Case. 

This is an action in conversion brought by a trustee in bank- 
niptcy against the Montana Brewing Company to recover the 
sum of $534.25. The complaint alleges that on August 17, 
1899, the Montana Brewing Company commenced certain ac- 
tions against one Chris Peterson ; that writs of attachment were 
issued, and certain i)ersonal property belonging to Peterson 
seized thereunder; that judgments were recovered by the brew- 
ing company against Peterson, executions issued, and on August 
28, 1899, the attached property was sold for $534.25, and the 



Geeene v. Montana Beewinq Co. [June T/03 

money realized from such sale was paid over to the judgment 
creditor in satisfaction of its judgments, pro tanto, at least; 
that on October 31, 1899, a petition in involuntary bankruptcy 
■was filed against Peterson in the United States District CJourt 
for Montana, and on December 18, 1899, he was adjudged a 
bankrupt; that on January 2, 1900, the plaintiff (respondent), 
Greene, was appointed trustee of such bankrupt estate. To this 
complaint a demurrer was interposed on the ground that the 
complaint does not state facts sufficient to constitute a cause of 
action. The demurrer was overruled, and the defendant (ap- 
pellant) answered. On the trial the defendant objected to the 
introductioii of any evidence on the part of the plaintiff, upon 
the ground that the complaint does not state facts sufficient to 
constitute a cause of action. This objection was overruled. The 
trial court instructed the jury to return a verdict in favor of the 
plaintiff for the amount of his demand, and from a judgment 
entered for the amount of the verdict this defendant appeals. 

Mr, William O. Downing, for Appellant 

The complaint in this case fails to state a cause of action 
against the defendant, and the court ought not to have overruled 
the demurrer to the complaint 

"To entitle an assignee in bankruptcy to successfully attack 
a preference given to the creditor, as being in fraud of the bank- 
ruptcy law, he must bring himself entirely within the statutory 
provisions." (Annibal Assignee, etc. v. Heacock, 2nd Federal, 
page 169; In re Eggert, 98 Fed. 843.) 

"The burden of showng that a creditor of the bankrupt has 
acquired an illegal preference, is upon the assignee seeking to 
avail himself of that fact. He must show, by a fair preponder^ 
ance of proof, that the debtor was insolvent, or in contemplation 
of insolvency ; that the security was designed to give a prefer- 
ence, and that the creditor had a reasonable cause to believe the 
insolvency and knew the security was designed to give a prefer^ 
ence." {Grain v. Penny, 2d Fed. page 18; Black on Bank- 



28 MonU] Gbeene v. Montana Brewing Co. 383 

mptcy, 1898, page 189, and cases cited; In re Nelson, 98 Fed. 
page 76 ; Samuel V. Mays et al. v. Frederick A. Fritton, 20th 
Wallace, 414-420; Clarke v. Iselin, 21st Wallace, page 360- 
378; In re Blair, 4 Am. Bankruptcy Kepts. 220; Collier on 
Bankruptcy, 3d Ed., 346-347 ; Levor v. Seiter, 8 Am, Bank- 
ruptcy Eepts. 459; see, also, 102 Fed. 987.) 

Mr. Oeorge fl". Stanton, for Respondent 

The first error assigned is that the court committed error in 
overruling the appellant's demurrer to the complaint. This de- 
murrer was based upon the alleged ground that the complaint 
failed to state facts sufficient to constitute a cause of action. 
The complaint sets forth concisely all the facts out of which this 
controversy has grown, and any other all^ations in the com- 
plaint would have been surplusage. Perhaps the easiest way 
to answer the appellant's contention respecting the alleged error 
committed in overruling the demurrer is to quote the language 
of the learned district judge found in his memorandum at the 
foot of the order overruling the demurrer, which memorandiun 
is as follows : "The foregoing order is based upon the provisions 
of Section 67 of the Bankruptcy Act, and Subdivision F of said 
section, which provides, among other things, that all judgments 
obtained through legal proceedings against a person who is in- 
solvent at any time within four months prior to the filing of a 
petition in bankruptcy against him shall be deemed null and 
void in case he is adjudged a bankrupt. In the case at bar the 
judgment was recovered within four months prior to the judg- 
ment debtor being adjudged a bankrupt Under the provisions 
of said subdivision of said section, the judgment is declared to 
be a nullity. This section has been held to be in full force in 
the case In re Richards, reported in 96 Fed. Eep. 935; In re 
Vaiighan, 97 Fed. Kep. 560 ; In re Higgins, 97 Fed. Kep. 775. 
By Section 70 of the Bankruptcy Act the trustee is vested by 
operation of law with the title of the bankrupt as of the date 
he was adjudged a bankrupt with all the powers which the bank- 



384 Gbbene V, Montana Bbbwing Co. [June T/OS 

rupt might have exercised for his own benefit The judgment 
of the defendant against the bankrupt Peterson by operation of 
law being a nullity, the trustee under the' foregoing provisions 
would have full power to recover the proceeds arising from the 
enforcement of such void judgment This seems to be the con- 
struction of the Bankruptcy Act touching the question involve .1 
in this case by the federal courts. In re Kermey, 97 Fed. Rep. 
557, the court says: ^This provision (referring to Subdivision 
r of Section 67) shows incontestably that no preference can be 
acquired by levy and sale within four months of filing the pe- 
tition in bankruptcy ; but that though the bona fide purchaser 
at the sale will be protected, the proceeds must stand in lieu of 
the property sold, and that the judgment creditor's right under 
such levy will pass to the trustee in bankruptcy.' The same 
conclusion substantially is reached in In re Hammond, 98 Fed. 
Eep. at top of page 863 ; see, also. In re Franks, 96 Fed. Rep. 
635 ; In re Felle Rath, 95 Fed. Rep. 121." 

MR. JUSTICE HOLI-OWAY, after making the foregoing 
statement, delivered the opinion of the court 

The plaintiff must recover, if at all, by virtue of Section 60b 
or Section 67f of the Bankruptcy Act of 1898 (Act July 1, 
1898, c. 541, 30 Stat 562, 565 [U. S. Comp. St 1901, pp. 
3445, 3450] ) ; and the complaint must bo tested by thie pro- 
vibions of those seotions, which are as follows : 

"Sec. 60b. If a bankrupt shall have given a preference with- 
in four months before the filing of a petition, or after the filing 
of the petition and before the adjudication, and the person re- 
ceiving it, or to be benefited thereby, or his agent acting therein, 
shall have had reasonable cause to believe that it was intended 
thereby to give a preference, it shall be voidable by the trustee, 
and he may recover the property or its value from such person. 

"Sec 67f. That all levies, judgments^ attachments, or other 
liens, obtained through legal proceedings, against a person who 
is insolvent, at any time within four months prior to the filing 



r 



28 Mont] Greene v. Montana Bbbwino Co. 385 

of a petition in bankruptcy against him, shall be deemed null 
and void in case he is adjudged a bankrupt, and the property 
affected by the levy, judgment, attachment, or other lien shall 
be deemed wholly discharged and released from the same, and 
shall pass to the trustee as a part of the estate of the bankrupt. 

Under the terms of Section 60b, above, not every preference 
is voidable at the election of the trustee, but only such as shall 
have been given within four months before the filing of the pe- 
tition in bankruptcy, or after its filing and before adjudication, 
and wherein the person receiving the preference, or to be bene- 
fited thereby, shall have had reasonable cause to believe that it 
was intended to give such preference. In order, then, that the 
mistee shall prevail, he nwifit show, first, that the preference 
was given within four months before the filing of the petition ; 
and, second, that the Montana Brewing Company had reason- 
able cause to believe that Peterson, in suffering judgments to 
be recovered against him in August, 1899, intended thereby to 
give appellant a preference, within the meaning of the Bank- 
ruptcy Act ; and the burden of proof is upon the trustee to susr 
tain both of these propositions. (Levor v. Seiter, 8 Am. Bankr. 
R. 459, 74 K Y. Supp. 499.) If theee facts must be proved 
in order to entitle the trustee to recover, the facts must be al- 
leged in his complaint, in order to admit the proof ; and, in the 
absence of the all^ation that the Montana Brewing Company 
had reasonable cause to believe a preference was intended, the 
ccmplaint fails to state a cause of action under Section 60b. 

Section 67f provides that certain liens including judg- 
ment liens obtained through l^al proceedings against 
an insolvent within four months prior to the filing 
of the petition in bankruptcy, shall, in case he is ad- 
judged a bankrupt, be void, and the property affected shall be 
discharged from the same, and shall pass to the trustee for the 
benefit of the bankrupt estate. It is not the judgment which 
becomes void, but the lien of the judgment becomes ineffective 
to longer hold the property, and it passes to the trustee. Such 

Vol. XXVIII~25 



886 Gbe£I^& V, ttonfTA^^A BsBWiiri} Co. [Jimd T.'Ot 

ia the manifest meaning of the sectian, when considered as a 
whole. In fact, the snbjectrmatter of the section is liens j not 
judgments, {In re Pease, 4 Am. Bankr. R. 547.) 

The complaint alleges that prior to the filing of the petition 
in bankruptcy the property of Peterson had been sold undeF 
execution, had gone into the hands of innocent third parties, 
and the money had been paid to the judgment creditor in satia- 
f f ction of its judgments. When the petition in bankruptcy was 
filed, then, there was no property of the bankrupt estate subject 
to a judgment lien which could be released from the same, or 
which could pass to the trustee for the benefit of the bankrupt 
estate. The judgment had been satisfied, and the matter en- 
tirely closed, before any bankruptcy proceedings were initiated, 
and the provisions of Section 67f therefore have no application 
whatever to the facts of this case. In Levor v. Beiter, above, 
tho same state of facts was presented as in the case at bar ; and 
the Supreme Court of New York held that the trustee could not 
recover under Section 60b, for failure to prove that the judg- 
ment creditor of the bankrupt had reasonable cause to believe 
that the bankrupt, by suffering judgment to be taken against 
him, intended thereby to give a preference, and further held 
that, as the money had been paid over to the judgment creditor 
before the bankruptcy proceedings were instituted, the provifi- 
icns of Section 67f did not apply. 

There is nothing in the views herein expressed which eon^ 
flicts with the decisions in In re Kenney (D. C), 96 Fed 427, 
or In re Blair (D. C), 102 Fed. 987. 

We have, therefore, a case which does not fall within the pro- 
visions of Section 67f , and a complaint which does not state facts 
sufficient to constitute a eause of action under the provisions ti. 
Section 60b. 

A motion to dismiss this appeal has been interposed upon 'die 
giound that the appellant has violated Rule VII of the rtllett 
of this court in incorporating in the transcript the formal parlto 
oi' the pleadings, writs, and other papers, when no question 
arises in Tespect to 1^ same, and in ineerporating in the tnm- 



S8 Mont] BuiXABD t;. Smith. 387 

script exhibits used in the trial court, when no question of any 
character is predicated upon them. There are other grounds of 
the motion which it is not necessary to consider. In so far as 
Subdivision 5 of Rule VII has been violated by incorporating 
in the transcript mere formal parts of papers, the appellant will 
not be permitted to recover as part of his costs the expense of 
printing that portion of the transcript thus encumbered. At 
least one-third of the expense of printing the transcript was un- 
recessarily incurred. The motion to dismiss the appeal is de- 
nied. 

The judgment is reversed. The appellant will recover only 
two-thirds the expense of printing the transcript in this case, 
together with such other costs as by law he is entitled to recover. 

Rehearing denied, July 14, 1908. 



BULLARD, Appellant^ v. SMITH, Respondent. 

(No. 1,588.) 
(Submitted May 27. 1903. Decided June 10, 1903.) 

Vromissoiy Notes — Negotiability — Provisions for Attorney's 
Fees — Amendment of Statide Affecting Negotiability — Con^ 
stitutionality — Retroactive Operation — Consideration — 
Duress — Burden of Proof — Evidence — Witnesses — Im- 
peachment — Insti^ctions. 

1. liaws of 1899, page 115, amending Section 3886, Civil Code, so as to permit 
a negotiable Instrument to contain a provision for reasonable attorney 
fee, was prospective In Its operation only, and did not make negotiable * 
note, given before Its passage, which was non-negotiable by reason of Its 
containing a provision for attorney's fees. 

2. The clrcumstancea under which a contract Is made, or the intent of tiie 
parties existing at the time, are only material when the contract Is ambign- 
one in some of Its terms. 

3. ▲ party cannot Impeach an opposing witness by Introducing evidence con- 
tradictory of testimony elicited from him for the first time on dross- 
ejcunlnatloB* 



^1\ 



388 BuLLARD V. Smiths [June T.'03 

4- Where, oa asking a question, coansel, in response to a query by tlie court 
stated the purpose of the testimony sought to be brought out, he was 
precluded from thereafter claiming a different purpose. 

5. Alleged error in failing to require a witness to answer a question, which 
he refused to answer on the ground that it involved a privileged com- 
munication from a client, was not cause for reversal, where the evidence 
sought to be elicited was Inadmissible, though no objection was made at 
the time. 

6 Where plaintiff believed that certain property had been stolen from him. 
and that defendant was connected with the theft, and the latter gave a 
note to plaintiff for the damages occasioned by the theft, there was a 
sufficient consideration for the note. 

7. Evidence considered, and held insufficient to sustain a jury finding that 

the note sued on was executed under duress. - 

8. The giving of an instruction having no foundation in the evidence is error. 

9. When a suit is brought by an indorsee or assignee of a non-negotiable note, 
the burden of proof is upon him to show that the note was originally issued 
upon valuable consideration, and that he Is a bona fide holder thereof, but 
the burden does not also rest upon him to show that no other defense ex- 
ists to the note. 

10. In an action on a note, the burden of proving duress is on defendant. 

AppeaZ from District Court, Custer County; C, H. Loud, 
Judge. 

ApTioN by W. HL BuUard against H. A. Smith. From a 
judgment for defendant, and from an order denying a new trial, 
plaintiff appeals. Reversed. 

Mr. Sydney Banner, and Mr. T. J. Porter, for Appellant 

The note in suit is negotiable, because the Act of 1899, amend- 
ing Section 3996, Civil Code, is remedial, to be liberally con- 
strued, and is properly applicable to the note in suit (Black 
on Interpretation of Laws, pp. 261-263, 307-312; Ins. Co. v. 
Talbot, 3 Am. St Eep. 655 ; Bamk v. Fuqua, 11 Mont 282 ; 
Wilson S. M. Co. v. Moreno, 7 Fed. 806 ; Salisbury v. Stewart, 
62 Am. St Rep. 934 ; Williams v. Flowers, 24 Am. St Rep. 
772 ; Montgomery v. Crossthwaiie, 24 Am. St Rep. 832 ; Shen- 
andoah Bank v. Marsh, 48 Am. St. Rep. 381 ; Sperry v. Horr, 
32 Iowa, 104 ; Carriere v. Mintmnfi, 5 Cal. 435 ; Monroe v. Fohl, 
72 Cal. 571 ; White v. Allatt, 87 Cal. 248 ; BaHon v. Farmers* 
Bank, 122 111. 352 ; Bank of British North America v. Ellis. 
2 Fed. Rep. 48 ; Bank of Colfax v. Anglin, 33 Pac. 1056 ; 
Seaion v. Scovill, 26 Am. Rep. 779 ; 1 Daniel, Neg. Inst (3d 



28 Mont] BxiixiiBD v. Smith. 389 

I Ed.), p. 70 ; Black, Interpretation of Laws, pp. 252, 254, 261-3, 
266-7 ; Sutherland, Stat Const Sees. 206, 207, 408, 409, 482 ; 
U. P. Ry. Co. V. De Busk, 13 Am. St Eep. 221 ; Lane v. White, 
21 AU. 437 ; JtidUns v. Taffe, 27 Paa 221 ; Dobbins v. Batik, 
112 111. 553 ; Jackson v. Warren, 32 111. 339 ; Smith v. Stevens, 
82 111. 554; HucUer v. Golden, 36 N. Y. 4:4:6; People v. Spicer, 
99 K Y. 225 ; Ctdlerton v. Mead, 22 Cal. 98 ; Qvackenbosh v. 
Keed, 102 Cal. 494; Fisher v. Hervey, 6 Colo. 16.) 

The Act of March 3, 1899, is entitled to be judged by the 
general rules of construction independent of Section 4651 of the 
Civil Godew An act of the legislature cannot control the acts 
01 subsequent legislatures, nor bind them, nor prevail over their 
intention. (1 Oooley's Blackstone, 90; In re Madeira Irrig. 
Dist., 92 Cal. 296.) Nor can it be logically contended that this 
cc Lclusion is obnoxious to the principle of the int^rity of con- 
tiacts or that it violates any vested rights. No man has a vested 
right in a rule of procedure ; legislatures may change the pro- 
ceedings of courts to suit their convenience, and unless such 
change acts as an absolute denial of all rights it is not open to 
complaint (Sutherland, Statutory Construction, Sec. 483, et 
ciL) The following cases are analogous to the case at bar and 
are decisive of this question, in our opinion: Tompkins v. 
Forestal, 55 N. W. 813 (Minn.) ; Jackson v. Lamphire, 3 Pe- 
ters, 280 ; Saiterlee v. Matthewson, 2 Peters, 406 ; Sampeyreac 
V. U. S., 7 Peters, 220; Eii^ell v. Daggs, 108 U. S. 150; Gross 
V. U. S. Mortgage Co., 108 IT. S. 488 ; Mason v. Haile, 12 
Wheaton, 370 ; Drehman v. Stifel, 8 Wall. 595, affirming 97 
Am. Dec. 268 ; Insurance Co. v. Talbot, 3 Am. St Rep. 655 ; 
Gage v. Stewart, 11 Am. St Hep. 116; Wistar v. Foster, 24 
Am. St Eep. 241 ; Summers v. Mitchell, 30 Am. St Eep. 106 ; 
Shields v. Clifton, Hill Land Co,, 45 Am, St Eep. 704 ; Donley 
V. Pittsburgh, 30 Am. St Eep. 738 ; Whitney v. Pittsburgh, 
30 Am. St Eep. 740 ; Belleview v. Peacock, 25 Am. St Eep. 
55; Richman v. Muscatine Co., 14 Am. St Eep. 308; Judkins 
V. Taife, 27 Pac. 221; Oullakanv. Sweeney, 79 Cal. 537; Gor- 
don V. San Diego, 101 Cal. 522 ; Dunne v. Mastick, 50 Cal. 



S90 BuLLABD V. SMErt. [June T.'OS 

244 ; Cummings v. Howardj 68 Cal. 508 ; Dentzel v, Waldie, 
30 Cal. 139 ; Wood v. Westboroiigh, 140 Mass. 403 ; Simmons 
V. Hanover, 23 Pick. 192-3 ; Kempton v. Saunders, 130 Mass. 
236 ; Lyman v. B. & W. B. B. Co., 4 Gushing, 288 ; Taie v. 
Stoolzfoos, 16 Am. Dec. 546; Duaneshwgh v. Jenkins, 57 N. 
Y. 191 ; People v. Supervisors, 70 N. Y. 233 ; Fan Bensselaer 
V. Snyder, 13 N. Y. 299; Morse v. GowfcZ, 1 Kernan (K Y.), 
281 ; Stocking v. ffim^, 3 Denio (K Y.), 274 ; CoTifcey v. Hart, 
14 K Y. 22. See, also, Civil Code, Sees. 4240, 2204, 4604; 
Manderville v. Bank, 9 Cranch, 9 ; 1 Daniel's Negotiable In- 
struments (3d Ed.), Sees. 106-107; 1 Randolph on Commercial 
Paper, Sec. 177. 

Statements made by a client to his attorney in the presence 
of third parties, or to third parties in the presence of his attor- 
ney, are not privileged because they have by the act of the client 
been given publicity. (Saiierlee v. Bliss, 35 Cal. 507 ; Chirac 
v. Beinicker, 11 Wheat 280; 1 Greenleaf on Evidence, Sec. 
245 ; 3 J(>nes on Evidence, Sec 770 and note 14 ; 3 Jones on 
Evidence, Sec 774; Weeks on Attorneys, Sec. 151, pp. 280- 
282 ; Weeks on Attorneys, Sec. 159, p. 289 ; Note to 15 Am. St 
Bep. 818 et cit,; Micheai v. Foil, 6 Am. St Rep. 577 ; Ooodwin 
Gas Co. Appeal, 1 Am. St Rep. 696; House v. House, 1 Am. 
St Rep. 570; Cady v. ^Yalker, 4 Am. St Rep. 834.) 

The court having sustained an objection to the competency 
of the witness based upon his supposed professional relationship 
with the defendant, it became of no moment what were the terms 
of the offer of proof, or whether any offer was made. It will 
bo presumed under these circimistances that the testimony was 
material, comi>etent and relevant to the issue. (McGinniss v. 
State, 31 Pac 978; Oivens v. Frank, 53 Pac 282.) 

The instruction of the court upon the question of the con- 
sideration of the note Avas erroneous. (Beath v. Chapoton, 115 
Mich. 506 ; Thorn v. Pinkham, 84 Maine, 101 ; Mascolo v. Man- 
tesanto, 29 Am. St Rep. 170.) 

Mere threats, to ^vhich no one pays serious attention, which 
put no one in fear, which arouse no just apprehension, are not 



28 Mont,] J^uiXABD t?. Smith. 391 

8ufl5cient to avoid a contract {Baarett v. Mahnken, 71 Am. St. 
Bep. 953; 6 Am. & Eng. Ency. Law (Ist Ed.), p. 64 et cit; 
Adams y. Stringer, 78 Ind. 175.) 

If there be no reason for the prosecution, one threatened un- 
justly has his remedy at law, and if there be reason for the 
prosecution, then the threat of such is not a threat of unlawful 
imprisonment, and the holding out to one of the alternative of 
prosecution or fair dealing does not constitute duress and will 
not avoid a contract (Beath v. Chapoton, 115 Mich. 506 et 
cit.; Wolff V. Blxilim, 60 Am. St Rep. 115 ; TJiom r. Pinhham, 
84 Maine, 101; Mascolo v. Moniesanto, 29 Am- St Rep. 170; 
6 Am. & Eng. Ency. Law (1st Ed.), pp. G2, 69, 70 et cit.; 
Town Council v. Buitieit, 34 Ala. 400; Kimpp v. Hyde, 60 
Barb. (X. Y.), 80; Buchanan v. SaJilein, 9 Mo. App. 533; 
Compton V. Bunker Hill Bank, 96 111. 301.) 

Mr. George W, Myers, for Respondent. 

An interpretation that would construe the Act of March 3, 
1899, to be remedial would also have to hold that said Act was 
retroactive, which would be in violation of the mandatory and 
prohibitive language of the constitution. (Constitution of 
Montana, Art. TIT, Sec. 11 ; Robinson v. Magce, 9 Oal. 81 ; 
People v. Bond. 10 Cal. 1G2, 572; Garland v. Leivis, 26 Cat 
46; People v. Senler, 28 Cal. 506. Sec notes imder Sec. 10, 
Art I, Constitution U. S. ; Dewey v. Lamhicr, 7 Cal. 347 ; 
Colmi v. Davis^ 20 Cal. 195; Billings v. Hall, 7. Cal. 1; Tuo- 
leume Ecdemplion Co. v. Sedgewick, 15 Cal. 515; Hibemia 
S. & L. Soc, v. Hayes, 56 Cal. 303; Pignaz v. Burnett, 119 
Cal. 157.) 

The note in suit is a non-negotiable note, made so by the pro- 
visions of the Civil Code which were in force at the time the 
note was made. (Civil Code, Sees. 3091, 3992, 3994, 3996, 
3997; Adams v. Senians, 82 Cal. 636; Stadlcr et al v. First 
National Bank of Helena, 22 Mont 190; -Banfc v. Babcock, 94 
Cal. 96; Bank v. Basuier, 12 C. C. A, 517, 65 Fed. 58.) 



392 BuLLABD V. Smith. [June T.'03 

When a legislature borrows a statute from another state, the 
legislature will ordinarily be presumed to have adopted the 
statute with the interpretation theretofore given it by the otmrts 
of that state. (Stadler v. First Nat'l Bank, 22 Mont 190; 
First Nai'l Bank v. Bell 8. & C. Miru Co., 8 Mont 32 ; Terri- 
tory V. Sears, 2 Mont 324 ; Stackpole v. Halldhan, 16 Mont. 
40; Staie v. O'Brien, 18 Mont 1, 43 Pac 1091; Murray v. 
Heinze, 17 Mont 353, 42 Pac. 1057, and 43 Pac 714; State 
V. Buite City Water Co., 18 Mont 199 ; Largey v. Chapman, 
18 Mont 563.) 

An attorney cannot without the consent of his client be re- 
quired to answer any questions respecting communications made 
by his client to him^ or upon advice given by the attorney to 
his client in the course of professional employment (Code of 
Civil Procedure, Sec. 3163, Subd. 3 ; 1 Greenl. Ev. (13th Ed,), 
Sec 240 and cases there cited, also See. 243 ; Oray v. Fox, 97 
Am. Dec 416 ; Jones on Law of Ev. Sees. 766, 767, and cases 
cited ; Detnch v. Mitchell, 92 Am. Dec. 101 ; Bartk of Utica v. 
Mersereau, 49 Am. Dec. 221.) 

A witness cannot be impeached as to collateral or immaterial 
matter brought out on cross-examination. (Denver Tramway 
Co. V. Oivc7is, 36 Pac. 853; Mullen v. McKim, 45 Pac. 417; 
1 Greenl. Sec 462 et seq.; Jordam, v. McKirmey, 144 Mass. 
438 ; Famum v. Farnum, 13 Gray, 508 ; Kaler v. Builders' Ins. 
Co., 120 Mass. 333 ; Trambing v. Cal Nav. etc. Co., 121 Cal. 
144; BarUey v. Copeland, 86 CaL 488 ; People v. Dye, 75 Cal. 
112.) 

To sustain an exception to the rejection of evidence counsel 
should make his offer in such plain and unequivocal terms as 
to leave no room for doubt as to what is intended. If he leaves 
the offer fairly opon to two constructions, he cannot insist in a 
court of review^ on the construction most favorable to himself, 
unless it is justly inferrable that he was so understood by the 
judge who rejected tlie evidence. (Palmer v. McMaster, 10 
Mont. 398 ; Chamberlain v. Vance, 51 Cal. 75 ; Smith v. East 
Branch Co.. 54 CaL 164; Schroder v. Smith, 74 Oal. 459.) 



\ 



28 Mont] BuLLABD v. Smith. 

If our theory of the case is correct and the note in suit is a 
non-negotiable note, then it is not only incumbent upon appel- 
lant to show by a preponderance of the evidence that the note 
in suit was made by defendant Smith to Donaldson, for a good 
and valuable consideration, but also to establish by a preponder- 
ance of the evidence, all the propositions upon which his case 
rests. (Bradner on Ev. Sec. 4, p. 343 ; Wilder v. Cmvles, 100 
Mass. 487; Rossiter v. Loeher, 18 Mont. 372; Harrington v. 
B. & M. Co., 19 Mont 411 ; Wilder v. Coivles, 4 Brown, 100 
Mass. 487; Scott v. Wood, 81 Cal. 398, cited 21 Nev. 349; 
Tlvamlvng v. Duffey, 14 Mont 567; Vosburgh v. Diefendorf, 
119 ISr. Y. 357; 2 Greenl. on Ev. Sec. 172; Munroe v. Cooper, 
5 Pick. 412 ; First Nat'l Bank v. Oreen, 43 N. Y. 298 ; Smith 
V. Livingston, 111 Mass. 342.) 

To compound a crime is to agree not to prosecute it when the 

party so agreeing knows it to have been committed. (Penal 

Code, Sec. 280; 2 Wharton, Grim. Law (8th Ed.), Sec 1559; 

4: Blackstone's Com. 124-136.) Notes given by the maker for 

the purpose of stifling prosecution by the payee, of a criminal 

charge made by them against a third person, are invalid and 

unenforceable. (Leggatt v. Brovm, 29 Ont. Rep. 530; Com- 

monwedlth v. Pease, 16 Mass. 91; Ream v. Sauvian, 43 Pac. 

982; First Nat'l Bank v. Oreeg, 1 Mo. A. Repr. 293; Murphy 

V. Boitomer, 40 .Mo. 67 ; Cheltenham F. B. Co. v. Cook, 44 Mo. 

29; Oiven v. Oreen, 45 S. W. 84; McCormick Harvesting Co. 

V. jfi/Z^r, 74 N. W. 1061 ; Sylvester-Bleckley Co. v. Goodwin, 

^^iZep. 3.) 

' not incimibent upon defendant to establish by a pre- 
ft^ oi all the evidence that he was actually put in fear 
k M^ /-/^^ ^^^ grand larceny or of death or of bodily harm. 
Of /^ j^y(r^ ^^ plaintiff to make out his case by a preponder- 
) r ^J^ ^idence and to entirely overcome the presumptions 
^^W 4^^ f,}x^ evidence produced by defendant (Rossiter 

\\r Y^ ^ont 372; Vosburgh v. Diefendorf, 119 K Y. 



894 BuLLAKD V. Smith. [June T/08 

Where the evidence is conflicting, an order denying a new 
trial will not be reversed on the ground that the evidence does 
not justify the verdict. {Bechstead v. M. U. By. Co., 19 Mont 
147; Harrington v. B. & B. M. Co., 19 Mont 411; Crystal 
Lake Ice Co. v. McAvlay, 75 Cal. 631 ; Reardon v. Patterson, 
19 Mont 231 ; Ray v. Cowan, 18 Mont 259 ; Mclntyre v. Mc- 
Cabe, 19 Mont 333; Antoine Co. v. Ridge Co., 23 Cal. 219; 
Maithai v. Matthai, 49 Cal. 90 ; Kinna v. Horn, 1 Mont 598 : 
Barry v. Covghlin, 90 Cal. 220; Crosset v. Whelan, 4:4: Cal. 
200; Heinlen v. Heilbum, 97 Cal. 101; jBeary v. JBwiZer, 95 
Cal. 206 ; ^yiison v. Fitch, 41 Cal. 363 ; Johnson v. ^rowm, 
115 Cal. 694.) 

MR COMMISSIONER CLAYBERG prepared the opin- 
ion for the court. 

Action on promissory note dated November 29, 1898, for 
$1,000, made, executed and delivered by respondent to one 
James Donaldson, and transfeiTed to appellant for a valuable 
consideration before maturity. The note in question was in 
the following form: '^Miles City, Montana, Nov. 29, 1898. 
$1,000.00. Sixty days, without grace after date I promise to 
pay to the order of James Donaldson, one thousand dollars, at 
the First National Bank of Miles City, with interest at ten (10) 
per cent, per annum from and after M. until paid, for value 
received with attorney's fees in addition to other costs in case 
the holder is obliged to enforce payment at law. H. A. Smith. 
The State National Bank. No. 13,282. [Five revenue stamps 
— a one, two two's, one five, one ten.]" Indorsed on face: 
''Protested tliis 28th day of January, 1899, for nonpayment. 
Jno. E. De Carle, Notary Public" Indorsed on back: "Pay 
to W. H. Bullard. James Donaldson. Pay State National 
Bank or order. W. H. Bullard." 

The complaint contained the ordinary allegations in a suit 
on a promissory note. The answer, after certain denials of al- 
legations of plaintiff's complaint, alleged affirmatively that 



28 Mont] BuLi^ABD V. Smith. 885 

Donaldson, by duress, force, and threats, compelled the execu- 
tion of the note; that it was without consideration, and thai; 
Donaldson knew that fact; that plaintiff knew that the note 
was void at the time of its purchase ; and that he was not a hona 
fide holder. The replication denied all these affirmative allega- 
tions, and alleged that the note was executed voluntarily in part 
settlement of an existing indebtedness. Upon a trial of the 
issues thus raised, a great amount of testimony was introduced, 
all of which is set forth in the trianscript. Plaintiff made a 
prima facie case on the trial by thfe introduction of the note, 
proof of a purchase before maturity, and proof of the reasonable 
valiie of the attorney's fees provided for in the note, and then 
rested. Defendant was sworn as a witness in his own behalf, 
and testified to facts which his counsel insists show that the note 
was given imder duress, and then rested. Plaintiff then intro- 
duced testimony tending to show that he purchased the note 
prior to maturity for $900 cash, and that the note was givf-n 
Donaldson voluntarily, and in consideration of damages he had 
suffered because of the theft of certain of his sheep, with which 
it was insisted defendant was connected. 

1. The first question to be considered by this court is 
whether the note sued upon was negotiable. The court below 
held it to be nonnegotiable, and it followed from such holding 
that the defendant was entitled to make proof of each and every 
defense which he might have asserted, had the suit been brought 
by Donaldson, the original payee of the note. If the note was 
negotiable, and it appeared that plaintiff obtained it prior to 
maturity, for a valuable consideration, and without notice of 
the defenses which the defendant might have interposed against 
the original payee, he was entitled to recover. 

Prior to the passage of the CJode of 1895, notes of this char- 
acter were negotiable, {Bank of Commerce v. Fuqua, 11 Mont 
285, 28 Pac. 291, 14 L. R A. 588, 28 Am. St Rep. 461.) By 
Sections 3991 to 399Y, Civil Code, thej were made nonnego- 
tiable. Section 3992 provides: "A negotiable instrument must 
be made payable in money only, and without any condition not 



396 BuLLAKD v. Smith. [June T.'03 

certain of fulfillment." Section 3997 provides: "A negotiable 
instrument must not contain mj other contract than such as is 
specified in this article." Section 3996 provides: "A negotia- 
ble instrument may contain a pledge of collateral security, with 
authority to dispose thereof." By virtue of these provisions of 
the statute, the supreme court held in the case of Stadler v. First 
National Bank of Helena, 22 Mont 190, 56 Pac. Ill, 74 Am. 
St Eep. 582, that no instrument was negotiable which con- 
tained a contract to i>ay attorney's fees, because of Section 
3997, and because a contract of that character is not mentioned 
in the statute. By the statute of 1895, making such notes non- 
negotiable, the legislature provided, in effect, that the maker 
of a note might plead defenses of the character asserted here 
in a suit brought by an indorsee or assignee of the note. Thus 
the statute of 1895 created a defense which the maker might 
for the first time in this state plead in a suit brought upon a note 
similar to the one in question by an indorsee or holder thereof. 
There is no doubt but that the legislature had power to pass this 
Act, and that it was constitutional in every regard. 

The decision of Stadler v. Bank, supra, was rendered on Feb- 
ruary 20, 1899. The legislature of Montana was then in session, 
and passed an Act amending Section 3996 so as to read as fol- 
lows : "A negotiable instrument may contain a pledge of col- 
lateral security with authority to dispose thereof, also a pro- 
vision for reasonable attorney fee or both." By Section 2 of 
the same Act, the legislature further provided, "All Acts and 
parts of Act^ inconsistent herewith are hereby repealed." (Laws 
of 1899, p. 124.) By this action of the legislature, notes which 
under the statute of 1895, as construed by this court in Stadler 
v. Bank, supra, were nonnegotiable, were made negotiable. In 
effect, the legislature took away from the maker of a note a de- 
fense which he was allowed to assert only by virtue of the pro- 
vision of the Code of 1895. 

There is no prohibition in our constitution against retrospect- 
ive legislation, other than that which is stated in Section 11, 
Article III, which is as follows: "No ex post facto law, nor 



28 Mont] BuLUkBD v. Smith. 397 

law impairing the obligation of contracts, or making any irro- 
vocable grant of special privileges, franchises or immunities 
shall be passed by the legislative assembly." It follows that 
the legislature was therefore nntrammeled and free, in so far 
as constitutional provisions were concerned, to pass any retro- 
spective laws which did not violate the obligations of contracts 
or interfere with any vested rights. 

While there is no constitutional provision against retrospect- 
ive legislation, the Civil Code, of 1895, in which the sections 
above quoted are found, contains these provisions : 

"Sec 4650. This Code takes effect at twelve o'clock noon 
on the first day of July, 1895. 

"Sec. 4651. No part of it is retroactive unless expressly so 
declared." 

We find similar provisions in the Political Code and Code of 
Civil Procedure, passed at the same time. 

We are therefore called upon to construe the amendment to 
Section 3996, passed by the legislature of 1899, in connection 
with Section 4651, Code of 1895. By the last-mentioned section 
the power of the legislature to enact retroactive or retrospective 
laws is recognized, but a limitation is placed upon the exercise 
of such power, by requiring that, in case of the passage of such 
Acts, they must be expressly declared to be retroactive in their 
operation. We do not find in the amendment of 1899 any ex- 
press declaration mentioned in Section 4651, that the Act should 
be retroactive in its operation. A general rule of construction 
of statutes is that the meaning and intent of the l^slature must. 
be arrived at and enforced. ( United States v. Hartwell, 6 
Wall. 385, 18 L. Ed. 830.) In order to arrive at this legislative 
intent, we must investigate the histoi'y of the passage of the 
Act of 1899. Upon examination of the original bill on file in 
the office of the secretary of state, we find the following facts : 

On January 23, 1899, this Act was introduced in the senate 
as Senate Bill Wo. 36, in the following form: 



898 Buii^AED V. Smith. [June T.'OS 

"A Bill for an Act to amend Section 3996, Title XV, Chap^ 
ter 1, Artide 1, of the Civil Code of the State of Montana, re- 
lating to negotiable instruments. 

"Be it enacted by the Legislative Assembly of the State of 
Montana : 

"Section 1. That Section 3996, Title XV, Chapter 1, Arti- 
cle I, of the Civil Code of the State of Montana, be amended 
so as to read as follows: Section 3996. A negotiable instru- 
ment may contain a pledge of collateral security with the au- 
thority to dispose thereof, also a provision for reasonable attor^ 
ney fee, or both.'^ 

On February 6th it was considered by the committee of the 
whole, and amended as follows : "After the word both *and the 
negotiability of all promissory notes and instruments outstand- 
ing, and the terms and conditions thereof unfulfilled, at the time 
this Act takes effect shall be determined and governed by the 
provisions hereof. Section 2. All Acts and parts of Acts in- 
consistent herewith are hereby repealed.' '' 

On February 7th it was passed as amended. It was then re- 
ferred to the house, where the following action was taken : On 
February 16th it was reported back by the judiciary committee 
with an amendment striking out the words "and the negotia- 
bility of all promissory notes and instruments outstanding and 
the termB and conditions thereof unfulfilled at the time this 
Act takes effect shall be determined and governed by the pro- 
visions hereof." On February 24th it was passed by the house 
as amended therein. It was then transmitted to the senate 
February 2Yth, in the senate, the house amendments were con- 
curred in, and the bill was passed and signed. 

It thus conclusively appears from the l^slative history of 
the Act of 1899 that the legislative intent was to make the Act 
prospective in its operation only. Section 4651 not only applies 
to the Code of which it is a part, but to all amendments to such 
Code thereafter made. (Central Pac. R. R. Co. v. ShcLckleford, 
63 Oal. 261 ; Teralia Land and Water Co. v. Shaffer, 116 CaL 
518, 48 Pac. 613, 58 Am. St, Eep. 194; Dodge v. Nevada Na- 



98 Mont] Btri^^ABD v. Smith. 899 

tional Bank, 109 Fed. 726, 48 C. C. A. 626 ; Ely v. Holton, 15 
N. Y. 595.) 

The point urged by counsel for appellant^ that one legislature 
cannot limit the power of a subsequent legislature, is not ma- 
terial to this case. The only limitation claimed is based upon 
the provisions of Section 4651. It is apparent from an exami- 
nation of this section that it does not seek or purport to limit 
the power of future legislatures to pass retroactive laws, but 
merely provides a condition which must be conformed to when 
by the passage of such Acts it is intended to render them retro- 
active in operation. 

We therefore conclude that the note was nonnegotiable, and 
was not made negotiable by the Act of 1899. 

This conclusion renders it unnecessary to consider the ques- 
tion whether or not, if the legislature had intended to make the 
Act of 1899 retroactive in its operation, it would have been open 
to the objection that it impairs the operation of contracts. 

Counsel for appellant claim that the note was rendered ne- 
gotiable imder the provisions of Sections 2204, 4240, and 4604 
of the Civil Code. We do not find anything in either of these 
sections, nor in the chapter of the Code upon the interpretation 
of contracts, which is referred to in Section 4240, which au- 
thorizes us to hold that the note in question is negotiable. The 
language of the note is plain and unambiguous, and seems to 
express clearly the intention of the parties when it was made. 
It is a well-settled' rule of law that the circumstances under 
which a contract is made, or the intent of the parties existing 
at that time, are only material when the contract is ambiguous 
in some of its terms. If it is plain and unambiguous, it needs 
no construction, and it is the duty of the court to enforce the 
contract as made by the parties. It is not alleged or claimed 
in any of the pleadings that the intention of the parties to the 
note was not fully and fairly expressed therein, or that the de- 
fendant waived, or intended to waive, any benefit conferred hy 
law upon bam. 



400 BuLLABD V. Smith. [June T/03 

2. It is next claimed that tbe court erred in not requiring 
witness Geo. R, Milburn to answer the following question: 
^* Whose attorney were you at that time?" The witness declined 
to answer the question because to do so might violate his obli- 
gation as an attorney. Thereupon counsel for appellant maxie 
an offer in writing of what he proposed to prove by the witness, 
which was in the following language : "'^Plaintiff offers to prove 
by this witness, Milburn, that he was the attorney of H. A. 
Smith, the defendant herein, at the time of the trial of the case 
of the State against Broadbent, and that he was not discharged 
as such attorney for said Smith either on October 25, 1898, or 
on November 25, 1898, or before the trial of the said State 
against Broadbent, or at all. This evidence is offered in con- 
tradiction of the testimony of said defendant, Smith." After 
the offer had been made, the court asked : "Is there any objec- 
tion to the offer ?" To which counsel for the defendant replied : 
"We haven't any i>articular objection, so far as we are con- 
cerned, to the offer." This offer was then shown to the witness, 
and the court propoimded to him the following question : "What 
do you say to the court now ? Do you feel that, by giving testis 
mony in conformity with the offer which you have read, it would 
violate your obligation as an attorney ?" To which the witness 
answered: "I would say this, if your honor please: Without 
the express i>ersonal consent of Mr. Smith for me to give what 
may be legal and proper evidence in response to that offer, I 
shall decline to do so." Whereupon the court said : "The court 
will not compel you to do so, then." 

Counsel for appellant only argues the alleged .error of the 
court in not requiring the witness to answer the question, and 
makes no reference to the ruling of the court upon the offer. 
There is no doubt but the question asked was 'objectionable upon 
the ground that it sought to contradict the defendant as to his 
statements made while on tlie witness stand. This is conclu- 
sively shown by the reply of appellant's counsel to the question 
of the court, viz., "What is the object of the testimony ?" "The 
object of the testimony is this: Smith testified upon the stand 



28 Mont.] BuLLAEB v. Smith. 401 

that Judge Milbum had been hia attorney ; that he had hired 
him somewhere about the 16th or 20th of October; that he had 
discharged him on the 25th of October. This question is pre- 
liminary, for the purpose and simply by way of contradiction 
of Mr. Smith." A reference to the record discloses that the 
testimony of defendant which it was sought to thus contradict 
was brought out on cross-examination by plaintiff's counsel. 
N"o reference is made to any question of the employment of an 
attorney by defendant in his direct examination. So that this 
cross-examination was clearly upon a collateral matter. The 
rule is well settled that a witness cannot be contradicted as to 
collateral matters brought out upon cross-examination. (Gbeen- 
leaf on Evidence, Sec 462 et seq,) 

Counsel say that the question was "preliminary, for the pur- 
pose and simply by way of contradiction of Mr. Smith." True, 
such purpose was apparent, but the question was in no sense 
preliminary to such purpose. If the witness had answered the 
question by saying that he was Mr. Smith's attorney at that 
time, this would have been a direct contradiction of Smith's 
testimony, and, as such, would have been inadmissible. Coun- 
sel for appellant, in his argument, very ingeniously maintains 
that this question was merely preliminary to a purpose to ad- 
duce testimony from the witness tending "to show that Smith 
had in the presence of Judge Milburn, at various times, admit- 
ted his complicity in the larceny to Donaldson, and had made 
repeated offers of settlement." Such purpose was not disclosed 
in the offer of testimony made, and the law does not permit 
counsel to thus play "fast and loose." He offered to prove by 
the witness certain facts. By this offer he confined such facts 
to the contradiction of the testimony of defendant. He cannot 
now be allowed to enlarge or extend the scope of such offer be- 
yond the limits then placed upon it. But even if he could, such 
testimony would have been absolutely inadmissible, because no 
foundation was laid by the original examination of defendant 
We are therefore of the opinion that if error was committed by 
the court in this regard, which we do not decide, it was not re- 
versible etror. 

Vol. XXVIII— 28 V 



402 BuLLAKD V. Smith. * [June T.'03 

3. Did the evidence disclose a sufficient consideration for 
the note in question ? The burden of proof was upon the plain- 
tiff in the suit to show by a preponderance of the evidence that 
the note was given by respondent to Donaldson upon a good and 
valuable consideration. Thii3 consideration was claimed by 
Donaldson to rest upon the following facts, viz. : In the latter 
part of September, 1898, some horses and a largt number of 
sheep were stolen from him. He claims that among the sheep 
stolen were a large number of ewes, with their lambs ; that, upon 
making a search for these ewes and lambs, he found a portion 
of the ewes at a point some thirty-five miles distant from his 
ranch, from which they had been stolen ; that he was told by 
respondent, who aided in the search, that the lambs were on his 
ranch with a band of sheep, and that they were turned over to 
him, as he supposed, as his share of lambs from a band of sheep 
belonging to him or his wife, which one Broadbent was running 
on shares. Donaldson proceeded to respondent's ranch, and 
560 of these lambs were turned over to him. He claims that he 
did not receive back the entire number of sheep and lambs which 
had been stolen from him. He then caused the arrest of Broad- 
bent and two other men, by the names of Beatty and Hand. It 
seems that Beatty, while confined upon this arrest, confessed 
to the theft of the sheep and lambs, and implicated respondent 
in such theft Immediately upon the discovery of this, Donald- 
son saw respondent, and told him of Beatty's disclosure, and 
accused him of complicity. Whereupon, according to the testi- 
mony of Donaldson, respondent wanted to settle with him, and 
they concluded a tentative arrangement, which is denied by re- 
spondent. Broadbent was tried at Glendive the latter part of 
November, 1898. Donaldson, becoming satisfied during the 
trial that Broadbent would probably be acquitted, demanded of 
respondent a settlement of his damages caused by the theft 
Upon this settlement, respondent gave Donaldson the note in 
question, together with others. As to the circumstances of this 
settlement, Donaldson's testimony and that of respondent is 
entirely irreconcilable, but of this we shall speak later. 



28 Mont] BuLLARP t). Smith. 403 

In regard to the consideration of this note and the others, it 
is suifficient to say that from the evidence it conclusively appears 
that certain sheep had heen stolen from I>onald8on ; that he be- 
lieved respondent was connected in some way with this theft, 
and was therefore liable. for the damages occasioned thereby; 
that he. took the note in question, in part settlement of these 
damages, from respondent. Under these facts, it true, there 
can be no doubt but that a good and valuable consideration ex- 
isted for the note. 

4. Kespondent claims that the notes were given under du- 
ress, and. therefore are void. 

The defense of duress or menace is based upon the proposi- 
tion that the consent of the party to the contract over whom it 
was exercised was not free. 

Section 2112 of the Oivil Code provides: 

* 'An apparent consent is not real or free when obtained 
through (1) duress; (2) menace; (3) fraud; (4) undue in- 
fluence; or (5) mistake." 

Sections 2114 and 2115 provide as follows: 

•^SeC' 2114. Duress consists in (1) unlawful confinement of 
the person of the party, or of the husband or wife of such party, 
or of an- ancestor, descendant, or adopted child of such party, 
husband or wife; (2.) unlawful detention of the property of 
any such person; or (3) confinement of such person, lawful in 
form, but fraudulently obtained, or fraudulently made unjustly 
harassing or oppressive." 

"Sec. 2115. Menace consists in a threat (1) of such duress 
as is specified in subdivisions 1 and 3 of the last section; (2) 
of unlawful and violent injury to the person or property of 
any such person, as is specified in the last section ; or (3) of in- 
jury to the character of any such person." 

According to respondent's testimony, on November 29, 1898, 
while he and Donaldson were at Glendive, attending the trial 
of Broadbent, as witnesses, Donaldson came to his room and 
dfemajnded of him a complete settlement of the damages occa- 
sioned \>y the theft of the sheep, as above stated. His Evidence 



404 BuLLAED V. Smith. [June T.^08 

does not disclose that any warrant had been issued against re- 
spondent, upon which he might have been arrested for the theft, 
or complicity therein. Donaldson threatened r^pondent at that 
conversation that, if the settlement was not made, he (Donald- 
son) would cause respondent's arrest Eespondent says: "I 
didn't suppose, under my own course, I could be arrested. Still, 
I had nothing to fear, and after he had made three threats of 
having me arrested, and so on, and I still said I w:ouldn't do 
anything of the kind, and ordered him again out of my room, 
he got up and walked to the door and says, ^I will not leave this 
room until I get this thing fixed as I want it, and neither will 
you.' " It thus appears by respondent's own testimony that he 
had no fear of arrest He then continues: "And he put his 
hand down under his vest and he drew a six-shooter up like that ; 
didn't draw it below Kke that Under the circumstanoea, the 
man was in a passion — he had passion and whiskey mixed to- 
gether; and I honestly believe that, if I had not made those 
notes as I did, that he would have attempted to murder me in 
that room." Again he says, on cross-examination: "Dooald- 
son said tiiat Broadbent was going to get loose, and he wasn't 
going to get anything out of him, and he was going to mak^ me 
put it up. He said he was going to make m/e put up the amount 
of $7,000. I asked him what it was for, and he said that he 
had lost the sheep, and that he had a cinch on me; and I told 
him the best thing he could do, then, was to go ahead and find 
out. We argued the point awhile. I don't just remember what 
was said while we were arguing the question. I know that we 
talked about the sheep that he said he had lost, and about the 
condition they were in, and so on. He claimed that he had lost 
2,000, and didn't know whether he had lost them out of the one 
band or the other. Well, after we argued awhile there, he con- 
eluded that he would take these lambs of Broadbent'a that be- 
longed to me and $3,000 in cash. He thought he was getting it 
up pretty steep, I suppose, is what induced him to come down 
from $7,000 to $3,000. He admitted as much, anyway. I said 
I would give it to him. Well, he goes around there awhile, and 



26 Mont] Bi7LLABi> v. Smith. 406 . 

when I told him to go out of the room he said he would go out 
when ho got ready, and he went ,to the door, and I think he 
turned the key in it — ^I am not positive of that — and he pulled 
out a gun, and said if I didn't make these notes to satisfy him, 
and fix this thing up so he oould get his own, I would never get 
out of that room. He was standing with his back against the 
door. I was sitting on the bed. We were probably nine or ten 
feet apart He did not point the gun at me. He had it pulled 
from under the waistband of his pants, and had it in his hand. 
He made no demonstration with it towards me with the gun. 
Other than that he drew it out * * * I didn't make the 
notes at the mouth of the pistol at all. After I consented he 
stood there and said, Will you make these notes now, or not?' 
and I said that^ 'under the circumstances, I believe I will be 
obliged to,' and he put his gun away then. I don't know what 
efFect this had — ^his threats — on me physically. They had the 
effect of getting the notes. I don't think it disturbed me phys^ 
ically very much. I don't know as I was exactly afraid of him, 
but I believe that he would have executed his threats if I had not 
eomplied with them. * * * It did not put me in a tr^?mulous 
sweat I am not of a nervous disposition. My nerves were 
good and steady then. * * * j ^ag ^Qt nervous at all at 
the time I made the notes ; had nothing to fear as long as I com- 
plied with his request When I executed them I was not in 
fear." 

In respondent's testimony, which, by the way, was all the 
testimony given at the trial upon the question of menace or 
duress, we do not find any denial of his connection with or com- 
plicity in the theft, and he bases duress solely upon the fact 
that Donaldson drew a revolver, and said respondent should not 
leave the room until the matter was settled ; yet he says, "I did 
not make the notes at the mouth of a pistol at all," and "when 
I executed them I was not in fear." He places the entire 
ground of menace upon the threats of Donaldson to have him 
arrested for tJie theft of the sheep ; yet he nowhere says or even 
intimates that he claimed or insisted in any manner to Donald- 



406 BuLi^ED t\ Smith. [June T.'03 

feon that he was not guilty of complicity in or connection mth 
such theft* In tibis connection it is important to refer to the 
Jact that Donaldson absolutely and unequivocally denies that 
he ever was in respondent's room at Glendive during the Broad- 
bent trial, except on the night of the 27th of November; that 
the conversation related by respondent ever occurred; that he 
had a revolver on his person at that time, or that he ever "pulled 
it'' on respondent His testimony further discloses that from 
the time of Beatty's confession, and his detailing the substance 
thereof to respondent, respondent evinced great anxiety to have 
the entire matter settled, and importuned him (Donaldson) 
almost daily for such purpose. He further says that on Octo- 
ber 31, 1898, which was subsequent to the confession of Beatty, 
the respondent gave him in cash, in part settlement of the trans- 
action, $1,000. He details on cross-examination circumstances 
of the receipt of this money, as follows: "I got this $1,000 
for damages done, and he asked me for this note in case this 
should be found out, and he would give me this money. He 
says, ^If this is found out, they will know that I was in the 
sheep-stealing.' He says, ^ After this thing blows over, I will 
give you the note. * * *' i had the $1,000 before he 
asked that of me. He asked me to do it, and I signed it I 
gave him his way all the way through. * * * I signed that 
note after I had had the money, o!r after it was supposed to be 
turned over to me. I don't know which. Before we left the 
room I signed it" Respondent acknowledged that he gave Don- 
aldson the $1,000 and took his note^ and during the trial of the 
case offered the note in evidence, but insists that it was for 
money loaned to him at that data This note is dated October 
31, 1898. 

The law relative to duress at common law — and it is not ma- 
terially changed by our statute — is well stated by Judge Walton 
in the case of HUbom v. Buckndm, 78 Me. 482-485, 7 Atl. 272; 
57 Am. Eep. 816: In that case the defendants had lost large 
quantities of meal from their mill, and they had obtained such 
proof as satisfied them that the plaintiff, in collusion with the 



2S Mont.] BuLLARD v. Smith. 407 

miller, had taken much, if not the whole^ of it After negotia- 
tions the plaintiff paid the defendant $1,075 in cafih,^and gave 
a secured note for the further sum of $425. Afterwards plains 
tiff brought suit to recover the sum of $1,075 so paid from the 
defendant The court said: "The plaintiff was at no time 
arrested. He was not in express terms threatened with arrest 
It may be true, as contended by his counsel, that he was made 
to believe that he would be arrested if he did not settle, but no 
direct threats of arrest were made. But suppose such threats 
had been made — suppose that, instead of leaving it to inference, 
he had been told in so many words that if he did. not settle he 
would be prosecuted both civilly and criminally — still, such 
threats under the circumstances disclosed in this case, would 
not constitute duress. It is not duress for one who believes that 
he has been wronged to threaten the wrongdoer with a civil suit 
And if the wrong includes a violation of the criminal law, it is 
not duress to threaten him with a criminal prosecution. It is 
not to be supposed that a man smarting under a sense of wrong 
and injury, such as the defendants in this case had suffered, 
will not use some such threats. It is not in .human nature to 
exercise such restraint It is unreasonable to expect it, and the 
law does not require it The law regards it as the duty of every 
one who knows of the commission of a crime to take measures 
to have the offender brought to justice, and it does not involve 
itself in the absurdity of making it unlawful for one to express 
to the offender an intention of doing what the law makes it his 
duty to do. Tliere can be no doubt that the defendants believed, 
and had reason to believe, that they were sufferers by the plain- 
tiff's wrong. By collusion with their miller, he had taken their 
corn or meal without their knowledge or consent^ and had not 
accounted to them for it. He knew better than they how much 
he had taken. He consented to pay them one thousand and sev- 
enty-five dollars, and, in the opinion of the court, the evidence 
fails to disclose any legal or equitable ground for his recovering 
it back." 

In the case of Higgins v. Brown, 78 Me. 473, 5 Atl. 269, the 



408 BuiXATO V. Smith- [Juae T/03 

court holds that mere threats of criminal prosecution, wh&Bi no 
warrant haB been issued or proceeding commejiced, do not con- 
stitute duress. The court say : "There is not any evidence of 
threats, of impending danger, or personal violence. The threats, 
as stated by the defendant himself, amounted to nothing more 
than that the plaintiff was going to commence criminal pro- 
ceedings. These threats were not connected with any prosecu- 
tion then pending. No warrant had been issued, or proceedings 
commenced. Assuming the testimony of the defendant to be 
true, he does not exhibit such a state of affairs as would consti- 
tute duress according to the well-settled rules of law." 

The question as to whether respondent was acting under 
duress in the morning of November 29th, because of Donald- 
son's acts with reference to the revolver, becomes immaterial 
in this case, because an examination of the record discloses the 
fact that the note sued upon was not given by the respondent 
on the morning of November 29th, but later on the same day, 
and under other circumstances, as disclosed by respondent in 
his testimony, as follows: ."In the evening he came back into 
my room after supper, somewhere about seven o'clock on the 
saime day, aad said that he wanted the notes made, so that he 
could realize money readily for them ; and I said the same as 
I did in the morning that I had no ready money, and that I 
wouldn't have anything more to do witJi it; and he made the 
same threats as he made in the morning — threatened to prose- 
cute me and everything as he did in the first place, with the 
exception of exhibiting the gun — and he also held out the propo- 
sition that, if I would give him- ready cash, I could make it 
$500 less. I couldn't see any particular harm in changing it 
then, even if I had had it in my own way, but I says I had the 
same threats held over mB that I did in the morning, and I 
changed the $2,000 note. I gave him one note — ^this note here 
— ^for $1,000, due in 60 days, and I gave him another, for $500, 
due in two years, bearing 5 per cent, interest after maturity, 
and the agreement was that he would return the $2,000 note 
over for this one and the $500 note." Donaldson testifies to 



38 ICont] BuLULBD v. Smith. 409 

the fact that the notes given by Smith on the morning of the 
29tli of November were not satisfactory to him, and that he 
took them back to him in the evening, surrendered them, and 
took new noteis, one of which new notes is the note sued upon. 
So that it appears conclusively from the evidence of respondent 
that the only duress exercised against him in the evening of 
Xovember 29th, when the note in question was given, was the 
same threats which he testifies were made to him in the morning 
of the 29th. He admits that in the evening no gun '*was pulled,^' 
and no threat of taking his life was made. 

Other significant circumstances were disclosed by the testi- 
mony: Respondent testifies that the threats and duress exer- 
cised on the morning of the 29th were in a room in a hotel in 
ihe town of Glendive. Respondent does not disclose that Le 
made any outcry, or sought in any way or manner to obtain 
assistance to relieve him from conceived danger. Again, he 
says, although he had many friends in Glendive, whom he saw 
immediately after the alleged duress in the room on the morn- 
ing of November 29th, he did not tell any of them about what 
had occurred. He says that the only person with whom, he 
consulted was his attorney at Miles City, after he had returned 
from Glendive It seems singular to us that, under all these 
circumstances, if his testimony of the transaction is true, he 
should have kept absolutely silent about it 

We are satisfied, from all the evidence introduced in the 
court below, that there is not sufficient evidence to sustain the 
verdict on the proposition that the note in question was made 
under duress or threats. 

6. The court chai^d the jury as follows: "You are fur- 
ther instructed that if you should find from a preponderance of 
the evidence that there was some sheep stolen from the said 
Donaldson, and that the said Smith was connected with the 
larceny of the said sheep, and that the said Donaldson did not 
recover all of his sheep, and was damaged by reason of the lar- 
ceny, such damage might form a legal consideration for a prom- 
issory note ; but you are further instructed that if you find from 



410 Btju-abd v. Smith. [June T/03 

the evidence that there was connected with the same tiransaction 
a promise, either expressed or implied, on the part of Donald- 
son, not to prosecute or have the defendant, Smithy arrested, 
then such promise, whether expressed or implied, would vitiate 
and render null and void the entire transaction, and the note 
would then be without legal consideration, and it woald be your 
duty to find for the defendant" 

It appears that after the jury had retired, and before return- 
ing their verdict^ they made a request in writing for further in- 
structions, as follows: 

"The definition or meaning of the words 'expressed or tm- 
plied/ " 

Whereupon the court further instructed the jury as follows: 

" 'Expressed^ means stated or declared in direct terms. That 
which is made definitely known in direct terms> and not left to 
implication. It is a rule that, when a matter or thing is ex- 
pressed, it ceases to be implied by law. 

" ^Implied' is defined as contained in substance or essence, or 
by fair and reasonable inference or deduction, but not actually 
expressed; deducible by fair and reasonable inference." 

The first part of the charge above quoted is correct, but we 
do not believe that the evidence adduced on the trial warranted 
the modification thereof found in the latter part of the charge 
quoted. We do not find in the evidence, after a careful and 
conscientious search, that any promise on the part of Donald- 
son that he would not prosecute, or have the defendant. Smith, 
arrested, was shown in any way or manner. Even the testi- 
mony of respondent does not disclose a scintilla of evidence 
tending to show that Donaldson promised him that, if the set- 
tlement was made, the respondent would not be prosecuted or 
arrested. Nor does it show any language or acts on the part 
of Donaldson from which such promise could be in any wise 
implied. So that, from all the testimony given in the case^ we 
are of the opinion that the latter part of the charge above quoted 
was not based upon any testimony introduced at the trial, and 
was therefore erroneous. It is quite apparent that the jury con- 



28 Mont] ^ BuLULRD v. Smith. 411 

sidered the erroneous part of this instruction in their delibera- 
tions, and it is impossible to determine to what extent the ver- 
dict was influenced thereby. 

6. The further question for consideration is as to the charge 
of the court upon the burden of proof. The charge, as given, 
contains no direct or separate instruction as to the burden of 
proof upon the defense pleaded — ^that the note in suit was exe- 
cuted under duress. By instruction No. 4 the jury was told 
that it devolved upon plaintiff to show not only that he secured 
the note in good faith and for a valuable consideration, but also 
that the note was made by defendant for a good and valuable 
consideration. Instruction No. 6 was in the following form: 
"The jury are further instructed that the burden of proof in 
this class of cases is always upon the party holding the affirma- 
tive. That would be upon the plaintiff in this action. And you 
are instructed that any matter asserted by one party and denied 
by the other can only be proved in law by a preponderance of 
the evidence. If you find that the evidence bearing upon the 
plaintiff's case is evenly balanced, or that it preponderates in 
favor of the defendant, then the plaintiff cannot recover, and 
you should find in favor of the defendant." The court refused 
plaintiff's instructions Nos. 'V and "i," requested upon the 
question of duress ; being misled, possibly, by the language of 
this court in the case of Rossiter v. Loeber, 18 Mont. 372, 46 
Pac. 660. 

By this action we are led to believe that, in the view of the 
court below, the burden was upon the plaintiff to show by a pre- 
ponderance of evidence, in addition to the matters specified in 
instruction No. 4, or as included therein, that the note sued 
upon was executed without duress. In this view the court was, 
in our opinion, wrong, but blamelessly so, because of the some^- 
what careless and inaccurate language of this court used in the 
case of Rossiter v, Loeber, supra. There is no doubt but that, 
when a suit is brought by an indorsee or assignee of a nonnego- 
tiable'note, the burden of proof is upon him to show that the 
n6te was originally issued upon a valuable consideration, and 



418 BuiXASD V. Smitk. [June T.'03 

that he is a bona fide holder thereof; but, in our judgment, 
there is no warrant in the law for holding that the burden is 
also upon him to show that no other defense existed to the note. 
This court, in Roasiter v. Loeber, supra, said: ^Written 
obligations, whether for a debt due or not, made under such cir- 
cumstances, will not be enforced ^t the instance of the person 
who takes them with notice of the circumstances connected with 
their inception, as plaintiff in this case clearly did, if the maker 
plead and prove such duress as a valid defense. Duress having 
been proved on the trial, the question of no consideration is im- 
material to the further discussion of the case. Accordingly it 
was error in the district court to instruct that it was incumbent 
upon the defendant to establish his defense of duress and com- 
pulsion cmd want of consideration by a preponderance of the 
evidence, and, if he failed to do so, plaintiff should recover. 
He was not bound to prove both such defenses. Either, if es- 
tablished, would defeat a recovery by plaintiff." Thus far no 
poiisunderstanding of what this court meant could arise, but 
from the following language, which was merely by way of dic- 
tum, some confusion might, and doubtless would, arise : '^What 
we have heretofore laid down, namely, that the burden of prov- 
ing that plaintiff was a holder in good faith was always upon 
.him, relieved defendant of establishing the defense of duress 
by a preponderance of evidence. It was always upon plaintiff 
alone, who acquired this note subject to the defenses which 
might be interposed by defendant against iia payment, to prove 
his bona fides, to entitle him to recover." The opinion in that 
case, upon careful examination, does not disclose the fact that 
plaintiff introduced, or even offered, any evidence tending to 
show that he purchased the note for a valuable consideration 
in the regular course of business; and it does disclose that he 
acquired the same with full knowledge of the dui'tsss practiced 
upon the defendant. So that the presumption which attaches 
to a holder in good faith for a valuable consideration, without 
notice of defenses, did not arise. Speaking generally, duress, 
like fraud, may be pleaded as a defense to a contract; but the 



38 Mont] Small v. Rakestbaw. 413 

burden of proving such defense by a preponderance of the evi- 
dence is upon the party alleging it, except under special circum- 
stances, none of which appear in this case. Therefore, if the 
holdings announced in this opinion are in conflict with those 
announced in Rossiter v. Locber, supra, that case is overruled 
to the extent of such conflict. 

Many other errors are relied upon, but we believe tliat suffi- 
cient has been said to fully present our views of the entire case 
in such manner as to enable the court below to try the case cor- 
rectly. 

We recommend that the judgment and order appealed from 
be reversed. 

Per Curiam. — For the reasons given in the foregoing opin- 
ion, the judgment and order apx)ealed from are reversed, and 
the cause remanded. 

Mr. Justice Milburn, disqualified. 



'SMALL, Appellant, v. EAKESTEAW, Respondent. 

(No. 1,592.) 
(SDbmitted May 29, 1903. Decided June 10, 1903.) 

Pvhlic Lands — Homestead — Residence — Decision by Land 
Department — Review by the Courts — Patents — Trustee — 
Evidence. 

1 A residence for voting purposes in another precinct than that in which 
land is situated precludes an entryman from claiming residence at the 
same time on the land for homestead purposes. 

2. The question ot an entryman's residence upon the land and the bona fides 
of his settlement thereon is one of fact the determination of which by the 
officers of the land department is conclusive upon the courts, in the ab- 
sence of fraud or imposition. 

3. It not appearipg that the secretary of the interior, in holding that one 
claiming under the homestead law had not complied therewith ,as to resi- 



28 


413 


30 


403 


80 


401 


28 


413 


f34 


219 


34 


354 


34 


355 


f34 


356 



414 Small v. Rakestbaw. [June T.'03 

dence, had no other eTidence before him than that he had a residence for 
voting purposes In another precinct, It cannot be said that his decision 
was on an erroneous construction of the law, so as to allow Interference 
by a court, even if his holding .that residence for voting purposes in one 
precinct precluded his claiming residence at the same time on land in 
another precinct for homestead purposes was wrong. 
4 That the holder of the legal title under a patent may be adjudged to hold 
It as trustee for plaintiff, because of an erroneous ruling of the land de- 
partment, it is necessary to sbow not only that defendant was not entitled 
to the patent, but that plaintiff was so entitled. 

Appeal from District Court, Flathead County; D. F. Smith, 
Judge. 

Action by Walter W. Small against Samuel O. Rakestraw. 
Judgement for defendant. Plaintiff appeals. Affirmed. 

Messrs. Foot & Pom^roy, for Appellants. 

A court of equity will not permit a nonjudicial or a quasi- 
judicial officer, in any proceedings before him, by the miscon- 
struction of any law, to take property from one person, under 
the law entitled to it, and give it to another. . {Johnson v. Tows- 
ley, 13 Wall. 72; Sanford v,.Sanford, 139 U. S. 642; Havdey 
V. Diller, 178 U. S. 476, 20 Sup. Ct Rep. 986; Baldwin v. 
Starks, 107 U. S. 463, 465, 27 L. Ed. 526, 2 Sup. Ct Rep. 
473; Gomclhis v. Kessel, 128 U. S. 456, 461, 32 L. Ed. 482, 
9 Sup. Ct. Rep. 122; Quinhy v. Conlon, 104 U. S. 420, 426, 
26 L. Ed. 800, 802; Rector v. Gibbon, 111 U. S. 276, 4 Sup. 
Ct. Rep. 605, 612 ; Bemier v. Bernier, 147 U. S. 242, 13 Sup. 
Ct. 244, 246; Northern. Pac. R. Co. v. Colburn, 164 U. S. 
383, 17 Sup. Ct Rep. 98 ; Northern Pacific R. Co. v. McCor- 
mich, 19 C. C. A. 165, 167 ; United States v. Northern Pacific 
R. Co., 37 C. C. A. 290, 296 ; ISTote 2 in Eartman v. Warren, 
22 C. C. A. 40 ; Hartman v. Smith, 7 Mont 19-29 ; Colburn v. 
Northern Pac. R. Co., 13 Mont 476 ; Moore v. N. P. R. Co., 
18 Mont 290; Murray v. Mont. Lumber & M. Co., 25 Mont 

14.) 

Voting in a different precinct from that in which the land is 
locjited may be an illegal act, and as such subject the entryman 



28 Mont.] Small v. Eakestraw. 415 

to punishment for illegal voting, but it does not necessarily 
work a forfeiture of his established place of residence or prop- 
erty rights. (Spaulding v. Steele (Mich.), 88 N. W. 627; 
Dickenson v. Inhabitants of Brookline (Mass.), 63 N. E; 331; 
Hoscall V. Hafford (Tenn.), 65 S. W. 423 ; California v. Sevoy, 
9L.D. 142.) 

A residence once established or acquired is presumed to con- 
timie until it is shown to have been changed. (5 Ency. Law 
(1st Ed.), p. 865, paragraph 4, note 1 ; 6 Ency. Law (1st Ed.), 
p. 123 and notes; Vol. I, Rice on Evidence, p. 85, citing Milchr 
ell V. United States, 88 U. S., 21 Wall. 350, 22 L. Ed. 584; 
Wharton on Evidence, Vol. 2, Sec. 1285, p. 465.) 

Before abandonment can be established, change of residence 
must be clearly shown. The most important and the all neces- 
sary element in establishing or changing a residence is the in- 
tention of the party. With this must be coupled the act . The 
union of the two is indispensable. This rule is recognized by 
the department in the case of Anderson v. Anderson, 5 L. D. 
6, 7, and in William Penrose, 5 L. D. 179. v"To constitute 
the new domicile two things are indispensable: First, 
residence in the new locality; and, second, the in- 
tention . to remain there. The change cannot be except 
facto et animo. Both are alike necessary. Either without the 
other is insufficient." (Mitchell v. United States, 88 U. S. 
21 Wall. 350, 22 L. Ed. 584, 588.) The place where a person 
lives and makes his home in his domicile. (Id.) The land 
department has recognized that domicile and residence are con- 
vertible terms in the decision of Secretary Lamar In re James 
Woodlcy, 4 L. D. 198, 200. 

"A settlement cannot be made upon public lands already 
occupied; as against existing occupants, the settlement of an- 
other is ineffectual to establish a preemptive right Such is 
the purport of the decisions in Atherton v. Fowler, 96 U. S. 
513, XXIV, 732, and Hosmer v. Wallace, 97 U. S. 575, 
XXIV, 1130." (Quinby v. Conlon, 104 U. S. 420-427, 26 L. 
Ed. 800-801.) The findings are that the plaintiff and the man 



416 Smali. v. Rakbstkaw. [June T/03 

sent by him tx> cultivate the land were driven from it by de- 
fendant in the year 1891. "One who occupies public land 
against the will and over the protest of one having a homestead 
entry upon such land is a trespasser/' (Glover v. Swartz, 58 
Pac. (Okla,) 943, 944, and many cases therein cited.) "An 
adverse claimant will not be allowed to take advantage of his 
own wrongful acts in preventing an entryman from maintain- 
ing a continuous residence." (Secretary Smith in Johnston v. 
Harris, 20 L. Ed. 183 ; VaugJum v. Oammon, 27 L. D. 438, 
444.) A court of equity will decree that the defendant holds 
the legal title as trustee for the plaintiff. (Stark v. Starr, 73 
U. S., 6 Wall. 102, 18 L. Ed. 925; Cornelius v. Kessel, Bald- 
v)in V. Stark, Hawley v. Diller, RecUyr v. Gibbon, Quinby v. 
C onion, and numerous other cases cited supra,) 

MK. COMMISSIONER CALLAWAY prepared the opin- 
ion for the court. 

On demurrer to complaint. The substance of the complaint 
is that in a contest for a tract of land between the plaintiff here, 
Walter W. Small, and the defendant here, Samuel O. Rake- 
straw, before the land department, the secretary of the interior 
erroneously decided in favor of Rakestraw, and that, had it not 
been for the wrongful acts of the defendant, and the erroneous 
ruling of the secretary, patent for the land would have issued to 
plaintiff. The prayer of the complaint is that the defendant 
shall be decreed to hold the title to the land in trust for the 
plaintiff, and convey it to him. To this complaint the defend- 
ant interposed a demurrer, alleging that "the court has no juris- 
diction of the cause, or the subject-matter thereof," and that 
the complaint does not state facts suiBcient to constitute a cause 
of action. The court sustained the demurrer, and, the plaintiff 
refusing to amend, judgment was entered for defendant for 
costs. From this judgment, the plaintiff appeals. 

Plaintiff alleges that he settled upon the land in controversy 
during the latter part of the year 1886, and resided thereon 



^8 Mont] Small v. Rakesthaw. 417 

• 
continuously until after he submitted final proof upon his home- 
stead claim to the land department The lands becanje subject 
to entry on August 16, 1891, under the laws of the United 
States, and on the day following the plaintiff entered the same 
under the homestead law, and on January 26, 1892, made final 
proof in furtherance of such entry. March 26, 1892, Hake- 
straw filed an affidavit of contest against appellant's homestead 
entry, charging that Small had failed to comply with the United 
States law as. to residence. The hearing was had before the 
register and receiver of the local land office, which resulted in 
favor of Eakestraw. Small thereupon appealed to the commis- 
sioner of the general land office, who found in his favor, and 
ordered the contest dismissed. Rakestraw then appealed to the 
secretary of the interior, who reversed the decision of the com- 
missioner, and ordered SmalPs homestead entry canceled. In 
giving hi^ opinion, the secretary said : "Plaintiff filed his affi- 
davit of contest against the defendant's homestead entry, charg- 
ing that the entryman had failed to comply with the law as to 
residence. The testimony of Small himself is that he never 
voted in the prednct in which his homi^tead entry lies, but did 
vote at other points, a long distance from his homestead, at least 
twice during the time he- claims he was seeking to maintain 
residence upon the land. He runs a carpenter shop in town, 
and, to use his own words, 'determined to return to the ranch 
only often enough to keep a good showing of habitation.' His 
excuse for that was that the plaintiff threatened him with vio- 
lence if he undertook to stay on the land. Without passing 
upon any other question, it is enough to say that a residence 
for voting purposes in another precinct from the land precludes 
an entryman from claiming residence at the same time on the 
land for homestead purposes. (George T. Bvms, 4 Li D. 62; 
Hart V. McHugh, 17 L. D. 176 ; Edtum-ds v. Ford and O'Conr 
nor, decided June 18, 1894. )'' 

Plaintiff contends that, in saying "a residence for voting 
purposes in another precinct from the land precludes the entry- 
man from daimdng residence at the same time on the land for 

Vol. XXVTn-27 



418 Small v. Rakestkaw. [June T/03 

homestead purposes," the secretary committed such "a gross 
mistake and misapplication and misconstruction of the law'' 
as brings this case within the rule that whenever it is made to 
appear to a court of equity that the officers of the land depart- 
ment have issued a patent to the wrong person by reason of a 
mistaken application of the law to the facts in the case, the 
court will, in a proper proceeding, interfere, and control the 
determination of the department so as to- secure the just rights 
of the parties injuriously affected. In coming to his determi- 
nation as to the plaintiff's residence upon the land, and the bona 
fides of his settlement thereon, the secretary passed upon ques^ 
tions of fact, whereof he was the exclusive judge, in the ab- 
sence of fraud or imposition, and neither is shown in this case. 

Plaintiff says that the secretary was in error in drawing a 
conclusive presumption of abandonment from the fact that 
plaintiff voted in Granite and Bonner, precincts other than the 
one in which his homestead claim was. Granite is in another 
county. What other evidence touching the question of plain- 
tiff's residence for voting purposes may have been before the 
secretary, we do not know, as it does not appear from the com- 
plaint that the only facts before him on that subject were those 
relating -to plaintiff's voting at Granite and Bonner. The quea- 
tion of residence is one of fact (McHarry v. Stewart (Cal.), 
35 Pac 141 ; StewaH v. McHarry, 159 U. S. 643, 16 Sup. Ct 
117, 40 L. Ed. 290.) 

From the facts liefore him, the secretary decided that the 
plaintiff had not resided upon his homestead continuously for 
the five years prior to January 26, 1892. On the contrary, be 
found that the plaintiff had established a residence elsewhere 
for voting purposes during that time. And we think the secre- 
tary's statement that ^'a residence for voting purposes in an- 
other precinct from the land precludes an entryman from claim- 
ing residence at the same time on the land for homestead pur- 
poses" is correct Whether the secretary erred in his finding 
upon the facts submitted to him is immaterial in this inquiry. 
It makes no difference what our conclusion on the subject might 



28 Mont.] Small v. Eakesteaw. 419 

be. (:Bohall v. Dilla, 114 U. S. 47, 5 Sup. Ct 782, 29 L. Ed. 
61.) 

"The oflBcers of the land department are specially designated 
by law to receive, consider, and pass upon proofs presented with 
. respect to settlements upon the public lands, with a view to se^ 
cure rights of pre-emption. If they err in the construction of 
the law applicable to any case, or if fraud is practiced upon 
them, or they themselves are chargeable with fraudulent prac- 
tices, their rulings may be reviewed and annulled by the courts 
when a controversy arises between private parties, founded upon 
their decisions; but, for merfe errors of judgment upon the 
weight of evidence in a contested case before them, the only 
remedy is by appeal from one officer to another of the depart- 
ment" (Shepley v. Cowan, 91 U. S. 340, 23 L. Ed. 424, 
quoted in Moore v. Bobbins, 96 U. S. 530, 24 L. Ed. 848.) 

In Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct 249, 29, L. Ei 
570, Mr. Justice Field, speaking for the court, said: "Without 
going into any detail of the evidence presented to the commis- 
sioner and the secretary of the interior, but taking the general 
statement of its nature, which we have given, it is clear that 
their attention was drawn by it to the character of the settle- 
ment of Johnson, and that they considered whether his entry 
was made to acquire a home for himself or for his son-in-law, 
whether his residence had been sufficiently personal and con- 
tinuous to save and perfect any right, if in fact he had ever 
initiated and, and whether or not he had abandoned the land. 
The findings of the secretary upon any of these matters must be 
taken as conclusive, in the absence of any fraud and imposition 
such as we have mentioned. Upon this point it is only neces- 
sary to refer to the cases where this conclusive character of the 
action of the department upon matters of fact cognizable by it 
has been expressly affirmed. Johnson v. Towsley, 13 Wall. 72, 
20 L. Ed. 485 ; Shepley v. Cowan, 91 U. S. 330, 340, 23 L. Ed. 
424; Moore v. Bobbins, 96 U. S. 530, 535, 24 L. Ed. 848; 
Quinby v. Covdan, 104 U. S. 420, 426, 26 L. Ed. 800 ; Smelt- 
ing Co. v. Kemp, 104 U. S. 636, 640, 26 L. Ei 875; Steel v. 



420 Smaul v. Eakbstraw. [June T/03 

Smeltmg Co., 106 U. S. 447, 450, 27 L. Ed. 226." (And see 
Murray v. Montana Lwmher & Mamifacturmg Co., 25 Mont 
14, 63 Pac 719; Sanford v. Sanford, 139 U. S. 642, 11 Sup. 
Ct. 666, 35 Lu Ed. 290.) 

"It would lead to endless litigation and be fruitful of evil, 
if a supervisory power were vested in the courts over the action 
of the numerous officers of the land department, on mere ques- 
tions of fact presented for their consideration-" {Quimby v. 
Cordan, 104 U. S. 430, 26 L. Ed. 800.) 

The following language in Moore v. Northern Pacific RaU- 
road Company, 18 Mont 290, 45 Pac 215, is applicable to this 
case: "Counsel for appellant contends that decisions of the 
secretary of the interior, made solely on the construction of the 
law, may be attacked in this proceeding; but it nowhere ap- 
pears that the land contest between plaintiff and defendant was 
determined by the secretary of the interior upon a construction 
of the law only. As far as the record shows, the secretary 
passed upon the facts, and we cannot say that his decision was 
arrived at from a construction of the law only. Decisions are 
generally rendered upon a consideration of both law and facts." 
(See Power v. Sla, 24 Mont 243, 61 Pac 468.) 

The plaintiff contends, however, that a settlement cannot be 
made upon public lands already occupied, and therefore the 
defendant had no right to obtain the patent, for the reason that 
he initiated his claim to the land in controversy by trespass 
upon the plaintiff. In answer to this contention, we quote the 
following from the opinion of the court in BohaLl v. Dtlla, 
supra: "To charge the holder of the legal titie to land under 
a patent of the United States, as a trustee of another, and to 
compel him te transfer the title, the claimant must present such 
a case as will show that he himseslf was entitled to the patent 
from the gpvemmjent, and that, in consequence of erroneous 
rulings of the officers of the land department upon the law ap- 
plicable to the facts found, it was refused to him. It is not 
sufficient to show that there may have been error in adjudging 
the title to the patentee. It must appear that by the law, prop- 



28 Mont] Fabijbigh bt al. v. Keli-ey. 421 

erly administered, the title should have been awarded to the 
claimant. (Smelting Co. v. Kemp, 104 U. & 636, 647, 26 L. 
Ed. 875 ; Baggs v. Merced Minvng Co,, 14 Cal. 279, 363-) It is 
therefore immaterial for the decision of this case what oxer 
judgment may be upon the conclusions of those officers as to thr 
possession of the patentee." 

We are of the opinion that the complaint does not state facts 
sufficient to invoke the action of a court of equity, and there- 
fore the judgment should be affirmed. 

Pee Curiam. — For the reasons given in the foregoing opin- 
ion, the judgment is affirmed. 



FARLEIGH et al.. Respondents, v. KELLEY, 
Appeli^ant. 

(No. 1,573.) 
(Submitted May 14, 1003. Decided Jane 19, 1903.) 

Wills — Probate — Contest — Burden of Proof — Right to Open 
and Close — Evidence — Conspiracy — SubscHhing Witness — 
Absence fronrn State — Impeaclmvent. 

1 Under Code of Ciyll Procedure, Section 2340, in a will contest, the contes- 
ants have the burden of proof, and are entitled to open and close. 

2. In a will contest, where contestants alleged that petitioner and others 
conspired to defraud contestants out of their rights as heirs of deceased, 
and, pursuant to such conspiracy, had forged the will sought to be pro- 
bated, evidence that, before this will was offered for probate, petitioner 
had procured her appointment as administratrix of deceased's estate, 
falsely alleging that she was his only heir, and, while acting as such ad- 
ministratrix, had sold a large portion of the property of the estate to her 
husband, and that contestants had instituted an action to have such pro- 
ceedings and sale set aside, was admissible, under Code of Civil Procedure, 
Section 2340. 

3. On the probate of a will, where the subscribing witnesses are out of the 
state, evidence that they had made statements contradictory of the facts 
contained in the attestation clause, and evidence that the reputation of 
such subscribing witnesses for honesty and integrity is bad, is admissible. 




422 Faeleigh et al. v. Kelley. [June T/03 

4. In a will contest, where contestants had alleged that petitioner and others 
had conspired to defraud them of their rights as heirs of deceased, evi- 
dence that petitioner's hasband, who was acting as her agent with refer- ■ 
ence to the estate, had asked the clerk of the district court to write to one 
of contestants, in answer lo an inquiry as to the estate, that the property 
was not very yaluable, and that petitioner had written a letter to the in- 
quiring heir, stating that the estate had been settled and the property left 
to petitioner, was adtmlssible, as tending to prove the charge of con- 
spiracy. 

6. In a will contest, evidence that one of the subscribing witnesses had, 
some years after the execution of the will, brought the document to 
witness and explained his possession of it, was inadmissible. 

6. Extrajudicial declarations, not under oath, corroborating testimony given 
in court, cannot be received. 

7. Where evidence is offered as a whole, and part of it is incompetent, the 
exclusion of all of it is not error. 

8. In a will contest, evidence that witness had, prior to the date of the trial, 
met one of the subscribing witnesses of the alleged will, who said that a 
certain person had given him money with which to leave the state, and 
that he was going to leave, and that the person who had advanced the 
money had contracted with contestants to buy whatever interest in certain 
property they acquired from the estate, was Inadmissible; the absence of 
the subscribing witness having been already sufficiently accounted for. 

Appeal from District Court, Jefferson Courdy; Henry C 
Smith, Judge. 

Petition by Caroline V. Kelley for the probate of an instru^ 
ment purporting to be the last will of John D. AUport, de- 
ceased, to which Lillie Sue Farleigh and others filed objections 
as contestants. From an order overruling a motion for a new 
trial, petitioner appeals. AflSrmed. 

Statement of the Case. 

On July 3, 1899, the appellant, Caroline V. Kelley, filed in 
the district court of Jefferson county her petition for the pro- 
bate of an instrument in writing purporting to be the last will 
of John D. Allport, deceased, and to have been executed October 
18, 1895. The petition sets forth the jurisdictional facts ; al- 
leges that the property left by the deceased was approximately 
of the value of $26,000; that petitioner is a sister of deceased; 
and then gives the names and residences of other relatives. By 
the terms of the alleged will, the petitioner is made sole legatee, 
and nominated executrix without bonds. On July 29, 1899, 
respondents filed their written grounds of opposition to the 



2S Mont.] Fableigh et al. v. Kelley. 423 

probate of the alleged will. These grounds are that the prof- 
fered instrument is not the will of JoLn D. Allport, and that 
he never made a will, but died intestate. It is then alleged that 
the contestants Lillian Sue Farleigh and Mary A. Miller are 
sisters of deceased; that the contestant Devincy Allport is a 
brother of deceased ; that contestant Frances C. TVellman is a 
daughter and only heir of Calista Coolidge, deceased, who was 
a sister of John D. Allport; and that the contestants are enti- 
tled to share in the estate. As a further ground of contest, the 
contestants then set forth facts which they claim show a con- 
spiracy on the part of the petitioner and other parties to them 
unknown to cheat and defraud the contestants out of their in- 
terests. in Allport^s estate. It is alleged that, for the purpose 
of carrying out this conspiracy, immediately after the death of 
Allport, which occurred November 26, 1895, the petitioner, 
Caroline V. Kelley, who then resided in Denver, Colorado, 
came to Montana and filed her petition for letters of adminis- 
tration of the estate of Allport, in which she falsely alleged 
that she was the only heir of the deceased ; that she thus fraudu- 
lently procured letters of administration to be issued to her as 
administratrix ; that appraisers were appointed to appraise the 
property belonging to such estate, and that the petitioner falsely 
withheld from them the knowledge that certain valuable mining 
claims situated in Jefferson and Silver Bow counties belonged 
to such estate ; that she procured an order for the sale of certain 
real property belonging to the estate to bo mode, and under 
such order she sold nearly all the property to her husband, 
George H. Kelley; that she procured an order of partial dis- 
tribution to bo made, upon the hearing for which she again 
falsely claimed to be the only heir of the deceeased, to whom all 
of the estate thus distributed was transferred; that these con- 
testants then discovered the facts above set forth, and, upon 
filing their petition alleging their relationship to the deceased 
and their interest in his estate, the petitioner, Caroline V. 
Kelley, admitted such relationship and interest, and the decree 
of distribution was set aside ; that thereafter the said Caroline 



424 Fabi-eigh et al. v. Kelley. [June T/03 

V. Kelley, in furtherance of the conspiracy charged, procured 
to be forged a writing purporting to be the last will of John 
D. Allport, deceased, and commenced proceedings to have the 
same admitted to probate (in this alleged will these contestants 
were not mentioned at all, and were excluded from sharing in 
the estate) ; that these contestants filed their protest to the pro- 
bate of the same; that issues were joined, and ihe cause set for 
trial to a jury, but before the conclusion of the trial the petition 
v/as, on the application of petitioner, withdrawn, and the pro- 
ceedings dismissed; that thereafter such petitioner and others 
to contestants unknown, in furtherance of such conspiracy, 
procured to be forged the writing dated October 18, 1895, pur- 
porting to be the last will of said Allport, by the terms of which 
the said Caroline V. Kelley was made sole legatee, and nomi- 
nated executrix without bonds. To these written objections 
the petitioner filed a reply (so called), denying all the material 
allegations contained in the written opposition. The cause 
came on for trial before the court and a jury, and upon appli- 
cation of contestants, and over the objections of the petitioner, 
the court ruled that the contestants had the burden of proof, 
and should open and close, after the petitioner had made formal 
proof of the execution of the alleged will, and that the contest- 
ants had the right to open and close the argument to the jury. 

In answer to the several special interrogatories propounded, 
the jury found against the petitioner, and declared that the 
instrument offered was not the will of John D. Allport. From 
an order overruling petitioner's motion for a new trial, this 
appeal is taken. 

Mr. T, J, ^Valsh, Mr. B. IT. Giles, and Mr. George F. Cowan, 
for Appellant. 

In a will contest the right of the proponent to open and close 
the case to the jury is established by an almost unbroken line 
of American authorities. Whether the proceedings are for a 
proof of the will in "solemn form," after it has been admitted 



28 Mont] Farleigh et ai.. v. Kblley. 426 

to probate in "common form," whether by bill in chancery 
after it is formally admitted by the probate court, or whether 
it takes the form of a "contest," such as is provided for by our 
statute, seems to make little difference. {Hubbard v. Hubbard, 
7 Oregon, 42 ; 12 Ency. PI. & Pr. 197 ; 1 Greenleaf on Evi- 
dence, 77 ; 1 Thompson on Trials, 239 ; Bailey on' Onus Pro- 
bandi, 389 ; Rice on Am. Probate T^w, 54 ; Horner's Probate 
Law, 71 ; BrooJcs v. Barrett, 7 Pick. 94 ; SeebrocJc v. Fcdaura, 
30 Xeb. 424; Hard^j v. Merrill, 56 X. H. 227; Taff v. Hos- 
mer, 14 Mich. 309 ; Patten v. Cilley, 42 Atl. 47 ; Roger v. 
Thomas, 1 B. Mon. 930; Taylor v. Cox, 153 111. 22()-231; 
Mayo V. Jones, 78 N. C. 402 ; Comstoch v. Society, 8 Conn. 
254; Sec. 1080, Code of Civil Procedure, as amended by Act 
of March 1, 1897, Laws of 1897, page 241; McCutcheon v. 
hoggins (Ala.), 19 So. 810; Woodruff v. Hundley (Ala.), 32 
So. 570; Jarmson v. Jamison (Del.), 3 Houst 112; Rich v. 
Lemmons (D. C), 15 App. Ct. 507; Potts v. House, 6 Ga. 
324; Thompson v. Bennett, 194 111. 57; Morell v. Morell, 157 
Ind. 179; Crowninshield v. Crownvnshield, 67 Mass. 524; 
Kempsey v. McGinniss, 21 Mich. 147; Anlcin v. WecJcerly, 19 
Mich. 502 ; Harvey v. Heirs of Sullins, 56 Mo. 373 ; Board- 
man V. Woodman, 47 N. IL 120 ; Syne v. Boughton, 85 N. C. 
367 ; Brown v. Griffith, 11 Ohio St. 329 ; Banning v. Banning, 
12 Ohio St. 437; Runyan v. Price, 15 Ohio St. 1; Nicols v. 
Kershjier, 20 W. Va.-253; Keir v. Lunsford, 31 W. Va. 659, 
S. C. 8, S. E. 493 ; Kaine v. Trustees, 5 K. W. 838 ; Aultman 
V. Falkum, 47 Minn. 414; Carpenter v. First Nat'l Bank, 
199 111. 352 ; Bradley v. Brady (III), 50 X. E 124.) 

The denial of the right of opening and closing a case to the 
jury constitutes reversible error. (Tobin v. Jenkins, 29 Ark. 
151 ; Mann v. Scott, 32 Ark. 593 ; Manseur v. Implem£nt Co,, 
61 Ark. 627 ; Royce v. Gazan, 76 Ga. 79 ; Sohn v. Jervis, 101 
Ind. 573; Peed et al, v. Brennan, 89 Ind. 252; CraJbtree v. 
Aicfei5on,.93 Ky. 338; Lucas v. J/un^, 91 Ky. 279; Wrighfs 
Admr, v. N. W. etc. Ins. Co., 91 Ky. 208 ; Abot v. Sugura, 6 
Martin, X. S. 73; Johnson v. Josephs, 75 Me. 544; Edelen 



426 Faeleigh et al. v. Kelley. [June T.'03 

Admr. v. Edelen, 6 Md. 288; Spaidding v. Hood, 8 Gush. 602 j 
Robson V. Harrison J 11 Gush. 40; Hickman v. Layne, 
47 Neb. 177; Rea y. Bishop, 41 Neb. 202; MUlerd 
et ah V. Thorn, 56 N. Y. 402; Murray v. 7n5- 
(7o., 85 N. Y. 236; Consehjea et al. v. /Sw/^, 103 N. T. 604; 
Hudson V. lFe/i€ringf^07i, 79 N. C. 3; Stewart v. Bledsoe, 85 
N. C. 473; Addison v. Duncan, 35 S. C. 165; Bennett v. San- 
di'/er, 15 S. G. 165 ; ^farwfcrs v. Bridges, 67 Tex. 93 ; 12. 12. Co. 
V. S^ran^, 4 Wash. 311; Hall v. Dairy Co., 15 Wash. 542; 
Sammons v. Haiwers, 25 W. Va. 678.) 

Messrs. Waish & Newman, Mr. Robert B. Smith, and Mr. 
Charles R. Leonard, for Eespondents. 

The court did not err in granting the contestants the right 
to open and close. (Code of Civil Procedure, Sec. 2340, div. 
4 ; Code of Civil Procedure, Sec. 1080, as amended by Act of 
March 1, 1897; In re Doyle, 73 Cal. 564, 15 Pac. 125; Allen 
V. GHffin, 65 Wis. 529, 35 N. W. 21 ; McCulloch v. Campbell, 
5. S. W. 590; Underbill on Wills, Sec. 165, p. 231; McDonald 
V. McDonald, 41 N. R 336 ; Patten v. Cilly, 42 Atl. 47 ; Schoff 
V. Laithe, 58 N. H. 503 ; Rogers v. Kendrich, 63 N. H. 335 ; 
Manufacturing Co, v. Head, 59 N. H. 332 ; Hilliard v. Beattie, 
50 N. H. 462 ; Scott v. Hull, 8 Conn. 296, p. 303 ; Blume v. 
Hartman, 8 Atl. 219.) 

The discretion of the court in granting or refusing the right 
to open and close, is not reviewable on appeal, and is not re- 
versible error. (Marshall v. Am. Express Co., 7 Wis. 1 ; 
Kaime v. Trustees Yillage of Ormo (Wis.), 5 N. W. 838; 
Eldcrhin v. ^Yiswell (Wis.), 21 N. W. 541; Austin v. Austin, 
45 Wis. 526; Yicle v. German Ins. Co., 26 la. 9; Preston v. 
Walker, 26 la. 205; Smiih v. Cooper, 9 la. 379; Woodward 
V. Lavcrty, 14 la. 383 ; White v. Adams, 77 la. 295 ; Van Horn 
V. Smith, 59 la, 142; Dent v. Smith, 53 la. 262; Delaware v. 
Duncat, 48 la. 488; Ashurst v. Grub, 4^1 la. 353; Aultman v. 
FalJcum, 47 Minn. 414; Carpenter v. First Nat'l Bank of 



28 Mont.] Fakleigh et al. v. Kelley. 427 

Joliel 119 111. 352; Park v. Durham, ,85 111. 569; Valley v. 
Teewalt, 79 Va. 421 ; Day v. Woodworth, 13 How. 363 ; Hall 
V. Feare, 92 TJ. S. 728; Lancaster v. Collins, 115 U. S. 222; 
Scott V. £faH, 8 Conn. 303 ; Florence 0. R. Co. v. Farrar, 109 
Fed. 254 ; Cheeh v. Watson, 90 K C. 307 ; Moore v. Brown, 
6 S. R 833; 5mt77i v. Fullenweider, 19 Pac. 314; Bradley v. 
5rady (111.), 50 N. R 124; Nash's PI. & Pr., 2d Nash, 972.) 

ME, JUSTICE HOLLOWAY, after stating the case, de- 
livered the opinion of the court 

1. Had the contestants the right to open and close the case ? 
It is considered by the petitioner that so long as she was re- 
quired to make some proof in the first instance, even though 
it be formal in character, and only such as she would be required 
to make in case no contest had been inaugurated, she was en- 
titled to open and close the case, and in deciding against this 
contention the district court committed prejudicial error. 

Whatever may be the rule in other jurisdictions, where pe- 
culiar statutory provisions have entered into the determination 
of the question, there can scarcely be any serious controversy 
as to the proper practice in this state. If the issues to be tried 
were raised upon the allegations of the petition for probate, 
and the objections made thereto in the written opposition of 
contestants, it would then seem reasonable that the burden 
would be cast upon the petitioner to maintain by a fair 
preponderance of the evidence the allegations of her petition, 
and this burden would carry with it the right to open and close, 
but such is not the case. The proceedings for the contest of a 
will (before probate) are provided for in Sections 2340-2346 
of the Code of Civil Procedure. Paraphrased, Section 2340 
would' read: The contestants must file written grounds of 
opposition to the will offered, and serve a copy on the petitioner, 
who may demur thereto upon any grounds for which a demurrer 
to a complaint in a civil action may be interposed. If the de- 
murrer be sustained, the contestants may amend their written 



428 Farleigh et al. v. Kelley. [June T/03 

opposition. If petitioner's demurrer be overruled, she may 
file her answer traversing or otherwise obviating or avoiding 
the allegations of the written opposition, and the issues of fact 
raised by these two pleadings — (1) the written grounds of 
opposition, and (2) the petitioner's answer thereto — and none 
others, must be tried, by a jury if demanded ; and upon such 
trial the contestants are the plaintiffs, and the petitioner is the 
defendant 

The issues to be tried, then, are raised by the allegations of 
the plaintiffs' (contestants') written grounds of opposition or 
complaint, and the defendant's (petitioner's) answer thereto. 
Thus the actual trial of the contest is not initiated until the 
proffered will is before the court (not the jury) upon the formal 
proof necessary to the probate of an uncontested will. The 
very fact that the petitioner's answer need be nothing more 
than a general denial of the allegations contained in the written 
grounds of opposition emphasizes the evident intention of the 
legislature that the contestants shall have the laboring oar 
throughout the trial. Xo other construction can be given to 
the language of Section 2340, above, and the plain meaning 
of the terms employed, be preserved. 

The contestants are the plaintiffs. They have the burden 
of proof imposed upon them, and with that they have the right 
to open and close. (Section 1080, Code of Civil Procedure, as 
amended by Act Fifth Legislative Assembly, approved March 
1, 1897 [Laws of 1879, p. 241].) Section 1312 of the Cali- 
fornia Code of Civil Procedure is in terms identical with Sec- 
tion 2340, above, and received a construction in In re Doyle's 
Estate, 73 Cal. 564, 15 Pac. 125, in which Temple, J., concur- 
ring, said : "The same procedure is made applicable to a con- 
test after the will has been admitted to probate as before. In 
both, the contestant has the laboring oar, as though he is at- 
tacking something which he must overcome by affirmative proof. 
Under such circumstances, I think the theory of the statute 
must be that the contest begins after the petitioner has made 
his prima facie case. In such case the burden would naturally 



28 Mont] Faklbigh et al. v. Kbllby. 429 

be on the contestant, and all the provisions consistent and har- 
monious." 

2. Contestants were permitted to make proof of the pro- 
ceedings had in the administration of AUport's estate, of the 
attempt to probate the former will, of the transfer by Caroline 
V. Kelley to her husband, Greorge H. Kelley, of a large portion 
of the property belonging to the estate, and of the proceedings 
instituted in the district court to recover such property back 
into the estate. Of this complaint is now made. 

We are of the opinion that the evidence was properly ad- 
mitted. Under Section 2340, above, the issues formed upon 
the contest of a will may involve the competency of the testator, 
his freedom from duress, etc, the due execution of the will, 
or any other question substantially affecting the validity of the 
will. In this instance the pleadings put in issue the due exe- 
cution and attestation of the will offered, and the question of 
the existence of a conspiracy formed by the petitioner and un- 
known parties to defraud the contestants out of their interests 
in the estate by successive attempts to have the property trans- 
ferred to the petitioner, and, when all efforts had failed, by 
forging, or procuring to be forged, the alleged will offered for 
probate. The petitioner interposed a motion to strike out all 
allegations with reference to the conspiracy charged, but no 
error is predicated upon the court's denial of the motion, and 
no question is made as to the sufficiency of the pleading. 

The evidence offered tended to prove the allegations of the 
written opposition ; tended to show the improbability that the 
will in controversy is genuine, and to disclose the motives of 
the petitioner in offering it. It cannot be said that the only 
possible issues which can arise upon the contest of jl will are 
such as involve the competency of the decedent to make a will, 
or his freedom from duress, menace, fraud, or undue influence, 
or the due execution or attestation of the will itself, for, if this 
be so. Subdivision 4 of Section 2340, above, is meaningless. 
Any question, other than these just enumerated, which affects 



424 Fableigh et al. v. Kelley. [June T.'03 

V, Kelley, in furtherance of the conspiracy charged, procured 
to be forged a writing purporting to be the last will of John 
D. Allport, deceased, and commenced proceedings to have the 
same admitted to probate (in this alleged will these contestants 
were not mentioned at all, and were excluded from sharing in 
the estate) ; that these contestants filed their protest to the pro- 
bate of the same; that issues were joined, and the cause set for 
trial to a jury, but before the conclusion of the trial the petition 
\vas, on the application of petitioner, withdrawn, and the pro- 
ceedings dismissed ; that thereafter such petitioner and others 
to contestants unknown, in furtherance of such conspiracy, 
procured to be forged the writing dated October 18, 1895, pur- 
porting to be the last will of said Allport, by the terms of which 
the said Caroline V. Kelley was made sole legatee, and nomi- 
nated executrix without bonds. To these written objections 
the petitioner filed a reply (so called), denying all the material 
allegations contained in the written opposition. The cause 
came on for trial before the court and a jury, and upon appli- 
cation of contestants, and over the objections of the petitioner, 
the court ruled that the contestants had the burden of proof, 
and should open and close, after the petitioner had made formal 
proof of the execution of the alleged will, and that the contest- 
ants had the right to open and close the argument to the jury. 

In answer to the several special interrogatories propounded, 
the jury found against the petitioner, and declared that the 
instrument offered was not the will of John D. Allport. From 
an order overruling petitioner's motion for a new trial, this 
appeal is taken. 

Mr. T. J. ^^aZs/^, Mr. B. IL Giles, and Mr. George F. Cowan, 
for Appellant. 

In a will contest the right of the proponent to open and close 
the case to the jury is established by an almost unbroken line 
of American authorities. Whether the proceedings are for a 
proof of the will in "solemn form," after it has been admitted 



28 Mont] Faiuleigh et ax. v. Kblley. 425 

to probate in "common form," whether by bill in chancery 
after it is formally admitted by the probate court, or whether 
it takes the form of a "contest," such as is provided for by our 
statute, seems to make little difference. (Hubbard v. Hubbard, 
7 Oregon, 42 ; 12 Ency. PI. & Pr. 197 ; 1 Greenleaf on Evi- 
dence, 77 ; 1 Thompson on Trials, 239 ; Bailey on' Onus Pro- 
handi, 389 ; Rice on Am. Probate Law, 54 ; Horner's Probate 
Law, 71 ; Broolcs v. Barrett, 7 Pick. 94 ; Scebrock v. Fcdawa, 
30 Xeb. 424; Hardy v. Merrill, 56 N. H. 227; Tajf v. Hos- 
mer, 14 Mich. 309 ; Patten v. Cilley, 42 Atl. 47 ; Roger v. 
Thomas, 1 B. Mon. 930; Taylor v. Cox, 153 111. 22()-231; 
Mayo V. Jones, 78 X. C. 402 ; Comstock v. Society, 8 Conn. 
254; Sec. 1080, Code of Civil Procedure, as amended by Act 
of March 1, 1897, Laws of 1897, page 241; McCutcheon v. 
Loggins (Ala.), 19 So. 810; Woodruff v. Hundley (Ala.), 32 
So. 570; Jamdson v. Jamison (Del.), 3 Houst 112; Rich v. 
Lemmons (D. C), 15 App. Ct. 507; Potts v. House, 6 Ga. 
324; Thompson v. Bennett, 194 111. 57; Morell v. Morell, 157 
Ind. 179; Crowninshield v. Crownvnshield, 67 Mass. 524; 
Kempsey v. McGvnniss, 21 Mich. 147 ; Ankin v. Weckerly, 19 
Mich. 502; Harvey v. Heirs of Sullins, 56 Mo. 373; Board- 
man V. Woodman, 47 X. H. 120 ; Syne v. Boughton, 85 N. C. 
367 ; Brown v. Griffith, 11 Ohio St. 329 ; Banning v. Banning, 
12 Ohio St. 437; Runyan v. PnVc, 15 Ohio St. 1; Nicols v. 
Kershncr, 20 W. Va.-253; Zm- v. Limsford, 31 W. Va. 659, 
S. C. 8, S. E. 493 ; Kaine v. Trustees, 5 N. W. 838 ; Aultman 
V. Falkum, 47 Minn. 414; Carpenter v. jFtrs^ iVo-fJ Sanfc, 
199 111. S52; Bradley v. B7'ady (111.), 50 K E. 124.) 

The denial of the right of opening and closing a case to the 
jury constitutes reversible error. (Tobin v. Jenkins, 29 Ark. 
151 ; Mann v. Scott, 32 Ark. 593 ; Manseur v. Implement Co., 
61 Ark. 627 ; Royce v. Gazan, 76 Ga. 79 ; Sohn v. Jervis, 101 
Ind. 573; Peed et al. v. Brennan, 89 Ind. 252; Crahtree v. 
Atchison, %Z Ky. 338; I^xco^ v. Hunt, 91 Ky. 279; WrigMs 
Admr. v. A^. W. etc. Ins. Co., 91 Ky. 208 ; Ahot v. Sugura, 5 
Martin, X. S. 73; Johnson v. Josephs, 75 Me. 544; Edelen 



432 Fableigh et al. v. E^bllby. [June T/03 

The petitioner may not have the benefit of the testimony of 
two witnesses to the facts that at the time of the execution of 
the will the testator subscribed the same in their presence, and 
declared it to be his last will and testament, without having 
such witnesses subject to be discredited or impeached. If this 
was not so, and the appellant's contention prevailed, no contest 
could be successfully waged against a will offered under such 
circumstances, for it would be practically impossible to dis- 
prove by other evidence the facts, or at least some of the facts, 
set forth in the attestation clause, or necessary to the due execu- 
tion of the will ; and, if not disproved, then the facts would stand 
as actually proved by the testimony of two witnesses not only 
entitled to full credit, but who cannot be impeached. (Section 
3120, Code of Civil Procedure.) "The subscribing witnesses 
are subject to the same rules as to contradiction and impeach- 
ment as other witnesses." (Abbott's Trial Ev. (2d Ed.) 142.) 

4. Complaint is also made that the court erred in admitting 
evidence of statements made by George H. Kelley to Henry G. 
Kickerta, then clerk of the district court Before making this 
proof, the contestants had called the petitioner, Caroline V. 
Kelley, who testified that in all that was done by her husband, 
George H. Kelley, with reference to this estate, he was acting 
for her, and as her agent. Evidence had also been introduced 
of the transfer of a large portion of the property belonging to 
the estate by the petitioner to her husband, and of the efforts 
required to secure its reconveyance to the estate. As further 
evidence of the collusion and conspiracy charged, the contest- 
ants called Eickerts, who testified that, while the estate was in 
course of administration, he had received a communication fTX>m 
the husband of the contestant Farleigh, making inquiry with 
reference to the property left by AUport ; that George H. Kelley 
came to him, and asked that he (Kelley) be permitted to an- 
swer the letter, and, upon a refusal of that request, asked Rick- 
erts to say to Farleigh that the property consisted principally 
of real estate in the town of Basin, and was not very valuable. 
The objection interposed to this testimony was that it was in- 



28 Mont.] Fableigh bt al. v. Kellby. 433 

competent, immaterial and irrelevant Upon the issue of a 
conspiracy to deprive these contestants of participating in the 
Allport estate, this evidence, as well as the letter written by the 
petitioner to Farleigh, telling him that Allport's estate had been 
settled, and the property left to her, was relevant and properly 
admitted — ^the declarations of George H. Kell^, as of a co- 
conspirator, or as the petitioner's agent; and those contained 
in the letter of the petitioner, as circumstances tending to prove 
such conspiracy. 

5. Upon the trial the petitioner sought to prove by the wit- 
ness Nichols that in May, 1899, the subscribing witness Greigei^ 
ich had come to his ofiBce and handed to him the will in contro- 
versy, at the same time explaining the circumstances under 
which he had held possession of the document from the time of 
its alleged execution. The substance of Geigerich's statement 
to Nichols was that in October, 1895, Allport had executed the' 
will, and gone with Geigerich to the ofiBce of the Butte Hard- 
ware Company to leave the instrument with one Kirby; that 
Kirby was not in, and Allport then handed it to Geigerich and 
asked him to deliver it to Kirby ; that he (Geigerich) put the 
will away, and forgot about it until May, 1899, when he went 
to get a paper from a box in which he kept valuable papers, and 
discovered the will and brought it to Nichols. The offer to 
prove these declarations by the witness Nichols was excluded. 

As we have heretofore seen, Geigerich was, to all intents and 
purposes, a witness in court, testifying under oath that the facts 
recited in the attestation clause actually occurred as therein set 
forth, and the reason for the rule which now excludes these 
declarations made by him to Nichols is that his declarations not 
made under oath cannot strengthen the testimony which he has 
given under oath. The issue involved was the genuineness of 
the alleged' will, and* to permit declarations of the absent sub- 
scribing witness in support of the validity of the will to be re- 
ceived in evidence for any purpose whatever would be to re- 
verse the rule of evidence which has long ago become well set- 
tled — that extrajudicial declarations, not under oath, corrobo- 

Vol. XXVIII-28 



4:34 Fableigh bt al. v. Kelley. [June T.'OS 

rating testimony given in court, cannot be received. Whatever 
exceptions there may be to this rule have no application to the 
facts of this case. 

The declarations of Geigerich were hearsay, and notably so 
are his declarations of declarations made to him by AUport 
But it is contended that they should have been received as a 
part of the res gestae. They were made nearly four years after 
the alleged will purports to have been executed, and cannot, 
therefore, be said to characterize or explain the principal fact, 
viz., the execution of the will. As to that, they are narrations 
of a past transaction, and, as such, inadmissible. 

But it is contended that they characterize and tend to explain 
the possession of the will, and for that purpose, at least, were 
admissible. The evidence was offered en masse — ^the offer waa 
an entirety; and along with the declarations of Geigerich, ex- 
plaining his possession, were the declarations made to him by 
AUport, and these, as offered, were incompetent under any phase 
of the case. So long, then, as the offer included evidence in- 
' competent, coupled with that which may have been competent^ 
the court committed no error in excluding the offer in its en- 
tirety. It was not the duty of the court to separate the compe- 
tent from the incompetent matter, and admit the one and ex- 
clude the other. It properly passed upon the offer as made^ and 
was not required to do for counsel that which he should have 
done for himself. (Yoder v. Reynolds, 28 Mont 183, 72 Pac 
417 ; Clarh v. Ryrni, 95 Ala. 406, 11 South. 22 ; First National 
Bank v. North, 2 S. D. 480, 51 K W. 96 ; Thompson on Trials^ 
678.) 

6. Complaint is made that the court excluded the testimony 
of James T. Finlen. By this witness it was sought to show that, 
some time prior to the date of the trial, Finlen met Geigerich, 
who said he was going to leave Montana ; that one Heinze had 
given him money with which to leave. This testimony was ex- 
cluded, and the petitioner then offered to prove that the con- 
testants had contraeted. with Heinze to sell to him whatever in- 



28 Mont] WiLsoir v. FiCKwauNa kt aju 435 

terests they acquired in the Minnie Healy mine from Allport^s 
estate. This offered testimony was also excluded. 

We cannot conceive of any theory of the case upon which this 
testimony would be competent or material. It is idle to urge 
now that at least it tended to account for the absence of the sub- 
scribing witness Geigerich, as required by Section 2343 above. 
It was offered at the last stage of the trial, long after proof suffi- 
cient to satisfy the court as to the absence of the subscribing 
witnesses had been made, and their handwriting identified. The 
evidence was incompetent and immaterial, and was properly 
excluded. 

We have examined the other errors assigned, and find no 
merit in them. The order overruling petitioner's motion for a 
new trial is affirmed. 

Affirmed. 

Mb. OnrBF Justice Brajsttly: I concur. 

Mb. Justice Milbubn: I concur, although I do not agree 
with Mr. Justice Holloway in all that is said in Sections 5 
and 6 of the opinion. 



\ 28 435! 

WILSON, Appei-lant, v. PICKERING et ajj., Iji ^^\ 

Eespondents. 

(No. 1,595.) 
(Submitted May 28, 1903. Decided Jane 22, 1903.) 

Mortgages — Discharge — Renewal of Note — Effect — Limita- 
tions — Amendment of Statute — Retroactive Effect — Code 
Provisions. 

1. A note secured by mortgage fell due June 11, 1886, and by the statute In 
force at that tim« action thereon would be outlawed in six yean. Act 



486 Wilson v. PiOKBRmo bt ai^ [June T/03 

1889 (SesB. Laws 1889, p. 172) extended the period within which actions 
might be brought on written instruments, to eight years, but expressly 
provided that the Act should not affect causes of action accrued prior to its 
passage. Code of Civil Procedure, Section 557, provide that the llmitar 
tions prescribed therein shall not apply to causes of action which have 
become barred by existing statutes. Held, that the act of 1889 and the 
limitations prescribed In the Code had no application to the note in suit, 
but it was governed by the law in force at its maturity. 

2. Civil Code, Section 3842, providing that a mortgage can be created, re- 
newed, or extended only by writing with the formalities required in the case 
of a grant of real property, since it did not take effect until July 1, 1895, 
and since by Section 4651 no part of the Civil Code is retroactive unless 
expressly so declared, has no application to a mortgage renewed by exten- 
sion of the note which It secured in 1890. 

3. The statute, if retroactive, would have been an unconstitutional impairment 
of the validity of the contract of renewal. 

4. A mortgage secures a debt, and not the evidence thereof, and no change in 
the form of the evidence or renewal thereof can operate to discharge the 
mortgage, in the absence of an express agreement or a plain numlfestation 
of intention that it shall do so. 

5. The maker of a note secured by a mortgage, who renews the note, has the 
burden of proving that it was the intention of the parties that such re- 
newal should not extend the mortgage. 

6 The maker of a note executed a mortgage to secure it. After maturity of 
the note, it was renewed. After the maturity of the renewal note, it was 
again renewed, and a mortgage was given by the maker on other land than 
that covered in the first mortgage. The maker, at the time of executing 
the second mortgage, was requested to execute a new mortgage covering 
the property described in the first, but this he declined to do, requesting, 
however, that the mortgagor bring suit to foreclose the first mortgage. 
Held, insufficient to overcome, as a matter of law, the presumption that 
the renewal of the note extended the first mortgage. 

Appeal from District Court, Broadumter County; F. K. 
Armstronag, Judge. 

Action by E T. Wilson, as receiver of the First National 
Bank of Helena, against John G. Pickering and others. From 
a judgment granting insufficient relief, plaintiff appeals. Re- 
versed. 

Statement of the Case by the Commissioner Pkeparing 

THE Ot>inion. 

This case was tried on an agreed statement of facts, from 
which it appears that on December 11, 1885, defendant Jolm 
G. Pickering executed and delivered to the First National Bank 
of Helena his promissory note for the sum of $9,902.06, due 
six months after date, with interest at the rate of 1^ per cent. 



28 Mont] WHiSON v, PiOKBsrcra bt al. 4a7 

per month after maturity -until paid. At the same time the 
defendant John G. Pickering and TTannah Pickering, his wife, 
executed and deKvered to the bank their certain mortage on 
the real estate therein described as "additional security to secure 
the payment of $3,000^' of this note. On December 20, 1886, 
defendant John G. Pickering executed and delivered to said 
bank his promissory note for the sum of $10,068.59, due in one 
year, with interest at the rate of ll^ per cent per month from 
date until paid. On January 20, 1888, defendant John G. 
Pickering executed and delivered to said bank his promissory 
note for the sum of $1,510.20, due in one year, with interest 
at the rate of 1^ per cent per month after maturity until paid. 
At the date of the last-named note the defendants Pickering 
(and his wife) executed to the bank a mortgage on certain other 
real estate, conditioned for the payment of the last two named 
notes. At the time this last mortgage was executed, defendants 
were asked by the bank to execute a new mortgage covering the 
property described in the first mortgage to secure the $3,000 
included in the renewal indebtedness. This the defendants 
declined to do, and the defendant John G. Pickering then told 
the bank to commence foreclosure proceedings on the mortgage 
executed December 11, 1885. On February 8, 1890, the de- 
fendant John G. Pickering, without the knowledge or consent 
of the defendant Hannah Pickering, executed and delivered to 
the bank his promissory note for the sum of $13,509.58, due 
one year after date, with interest at the rate of one per cent 
per month after date until paid. Subsequently, and on the 
12th day of April, 1895, one T. H. Kleinschmidt and Mary M. 
Kleinschmidt, liis wife, "with the consent and by and under 
the direction of the said John G. Pickering, and for the further 
and additional security for the payment of the last-named note, 
executed and delivered to the bank" a deed to certain real estate, 
the title to which said T. H. Kleinschmidt then held in trust 
for defendant John G. Pickering. Defendant John G. Picker- 
ing paid on the last-named note the sum of $1,642.10 as prin- 
cipal, and the further sum of $1,621.20 as interest It further 



438 WiiJSON V. PiCKERiwo ET AX,. [ June T/03 

ajipears that the original indebtedness of $9,902.06 was, with 
the interest, carried along and included in the several notes sub- 
sequently executed, and that the $3,000 to secure the payment 
of which the first mortgage was executed was included in and 
constituted a part of the sum due plaintiff at the time suit was 
commenced. On December 27, 1897, at the time this action was 
commenced, it was admitted that there was due plaintiff from 
defendant John G. Pickering the sum of $11,867.48, with in- 
terest thereon at the rate of 12 per cent per annum from Feb- 
ruary 7, 1891. 

Plaintiff asked for judgment for this amount, that the deed 
from Kleinschmidt to the bank be declared a mortgage, and for 
the foreclosure of all the mortgages named in the complaint, 
and the sale of the premises therein described. 

The defendants interposed the plea of the statute of limita- 
tions as to the mortgage executed December 11, 1885, and de- 
nied that it was the intention that the renewal of the notes 
should operate as a renewal of the former mortgage liens. 

At the trial the court found plaintiff to be entitled to the 
relief demanded, except as to the foreclosure of the mortgage 
dated December 11, 1885, which was found to be barred by the 
statute of lipiitations. Judgment was entered in accordance 
with the findings, and from the judgment so entered plaintiff 
appeals. 

Mr. C. B, Nolan, for Appellant. 

Mr, C. n, Baldwin, and Mr. J. H. Shoher, for Eesponclents. 

MR> COMMISSIOlSnER POORMAN prepared the opinion 
for the court 

1. The only question presented for consideration on this 
appeal is whether the court erred in holding that the mortgage 
dated December 11, 1885, was barred by the statutes of limi- 
tation at the time of the commencement of this suit The period 
prescribed by the statute at the time the right of action accrued 



28 Mont] Wilson v. PiOKBEuro bt ai^ 489 

on the note described in that mortgage was six years. This note 
fell due June June 11, 1886, and the right of action thereon 
was barred June 11, 1892, unless extended by some means or 
agreement outside of the instrument itself. 

The Act of 1889 (Session Laws 1889, p. 172) extended the 
period within which action might be brought on a written in- 
strument to eight years, but expressly provided that the Act 
ahould not affect causes of action which had accrued prior to its 
passage. The right of action on this first note having accrued 
prior to that time, it was not affected by this Act; and, the 
statute of limitation having fully nm, unless tolled, prior to the 
time when the Codes of 1895 took effect, the status of the case 
is not affected by the Codes. (First Div. Comp, St 1887, Sec. 
42 ; Sess. Laws 1889, p. 172 ; Code Civ. Proc Sees. 512, 557, 
8456 ; Political Code, Sec 9 ; Sherman v. Nason, 25 Mont 283, 
64 Pac. 768; Ouiterman v. Wishon, 21 Mont 458, 54 Pac. 
666.) The last case Qited further decides that the statute of 
limitation does not confer a vested right, to that extent modify- 
ing the decision in Gillette v. Hibbardj 3 Mont 417, by estab- 
lishing the doctrine that limitation Acts affect the remedy and 
not the right 

2. Counsel for respondent contends that the provisions of 
Section 3842 of the Civil Code apply to this case. That section 
provides that a mortgage "can be created, renewed or extended 
only by writing, with the formalities required in the case of a 
grant of real property." This statute is direct and certain, and 
admits of but one interpretation. A mortgage lien since its 
approval cannot be created, renewed or extended in contraven- 
tion of its provisions. (Wells v. Harter, 56 Cal. 342; London 
& 8, F, Bank v. Bandmann, 120 Cal. 220, 52 Pac 583, 65 Am. 
St Eep. 179. ) This statute, however, did not take effect or be- 
come law until July 1, 1895, while the last renewal of the note 
in the case before us was executed February 8, 1890. If at the 
last-named date the renewal of a note, a^ a matter of law, ex- 
tended or renewed a mortgage lien given to secure the indebted- 
ness evidenced by the former note, such extension or renewal 



440 Wilson v. Pickbeustg bt al. [June T.'03 

became and wa% at the time of tbe enactment of Section 3842, 
supra, a valid, subsisting contract, and the legislature could not 
impair its obligation by an enactment subsequent to the execu- 
tion of such contract (Cooley, Const Lim. (6th Ed.) 328.) 
And, if a renewal of the note did not toll the statute of limita- 
tion, the plaintiff's right of action was barred thereby June 11, 
1892, six years from the date when the first note became due. 
In either events the section above quoted can have no application 
to the facts of this case. No part of the Civil Code is retroact- 
ive unless expressly so declared. (Civil Code, Sec. 4651.) 

3. A mortgage does not create an estate in real projjerty. 
It is a mere security for the payment of a debt It is an inci- 
dent to that which it secures. (Evil v. Diehl, 21 Mont 71, 
52Pac. 782.) 

The general doctrine appears to be that a mortgage secures a 
debt or obligation, and not the evidence of it^ and no change in 
the form of the evidence or time of payment can operate to dis- 
charge the mortgage. So long as the debt secured remains un- 
paid, the renewal of the evidence of the debt will not impair 
the lien of the mortgage. The mortgage is barred only when the 
debt is barred. (Lent v. Morrill, 25 Cal. 492 ; Vick v. Smith, 
83 K C. 80 ; Kerr v. Lydecker, 51 Ohio St 240, 37 K K 267, 
23 L. R A. 842; 15 Am. & Eng. Ency. Law (1st Ed.), 869; 
Balch V. Arnold, 9 Wyo. on page 36, 59 Pac. on page 438; 
Crawford v. Hazelrigg, 117 Ind. 69, 18 K E. 603, 2 L. R A. 
139; Dumell v. Terstegge, 85 Am. Dec 466.) To this latter 
case is appended a monographic note, containing a large col- 
lection of cases, and a full discussion of the above principles. 

This general rule is modified to the extent that a court of 
equity will, on the presentation of a proper case, protect the 
intervening rights of third parties, and that the parties to the 
mortgage may, at the time of renewing the note, by express 
agreement, or a plain manifestation of a contrary intention, 
negative the presumption that the renewal of the note renews 
the mortgage lien ; but the burden of proof is on the party assert- 
ing such proposition to show that it was not the intention that 



28 Mont] WnJSON v. PiOKBBnsro bt ai-. 441 

such renewal of the note should renew or extend the mortgage. 
(Brown v. Dunchel, 46 Mich. 29, 8 N. W. 537 ; Oliphvni v. 
Eckerley, 36 Ark. 69 ; Vick v. Smithy supra; California Batik 
V. Brooks, 126 CaL 198, 59 Pac. 302 ; Barber v. Babel, 36 Cal. 
11.) 

4. At the time defendants executed the second mortgage, 
on January 20, 1888, to secure the payment of the note of that 
date, and of the note dated December 20, 1886, there was some 
discussion relative to the former mortgage, and the defendants 
were asked to give a new mortgage covering the same property 
described in the first mortgage. Mrs. Pickering refused to exe- 
cute such new mortgage, and John G. Pickering refused to exe^ 
cute the same for the reason that his wife would not join him; 
but at the same time he requested the plaintiff to bring suit to 
foreclose this first mortgage. The facts presented in the agreed 
statement are not of themselves sufficient as a matter of law to 
repel the presumption that it was the intention of the parties 
that the execution of the new note and the new mortgage on 
other property should extend the lien of the former mortgage. 

No question is raised with reference to the inchoate interest 
of the wife in the trust estate under the deed from the railroad 
company to Kleinschmidt We therefore do not discuss that 
question. 

On a consideration of the whole case, we are of the opinion 
that the judgment appealed from should be reversed, and the 
cause remanded, with direction to the district court to grant a 
new trial. 

Per Curiam. — For the reasons given in the foregoing opin- 
ion, the judgment is reversed, and the cause remanded for a 
new trial. 



442 WBiaHT BT Ai*. V. Matthews. [June T/03 



u m WRIGHT et ai.. Appellants, v. MATHEWS, Eespondent. 

28 i^ 

^ 416 <No. 1,604.) 

(Submitted June 16, 1903. Decided June 22, 1003.) 

New Trial — Settling Statemevi — Preseniation to Judge — Expi- 
ration of Time — Effect. 

1. Under Code of Civil Procedure, Section 1173, providing that, if the amend- 
ments to the statement op motion for a new trial prepared by the adverse 
party are not adopted, the proposed statement and amendments shall» within 
ten days thereafter, be presented by the moving party to the Judge, or 
delivered to the clerk for the Judge, the court must disregard, on appeal. 
the statement and all questions sought to be presented thereby, when th« 
moving party has failed to comply with such requirement. 

2. Where the courts order overruling a motion for a new trial does not indi- 
cate the particular ground on which it was made, every legitimate intend- 
ment will be Indulged to support It. 

3. Where the statement on motion for new trial and the defendant's pro- 
posed amendments were not presented to the Judge within the ten days 
allowed by Code of Civil Procedure, Section 1173, It was proper to aettlt 
the same, and deny the motion for new trial. 

Appeal from District CouH, Fergus County; Dudley Du 
Bose, Judge. 

Action by Frank R Wright and others against Eoyal B. 
Mathews, From a judgment in favor of defendant, and an 
order denying their motion for a new trial, plaintiffs appeal. 
AiSrmed. 

Mr. James Donovan, for Appellants. 

Messrs. Cort & Worden, for Eespondent 

MR. JUSTICE HOLLOWAY delivered the opinion of the 

court 

This was an adverse suit instituted in the district court of 
Fergus county, Montana, pursuant to Section 2326 of the Ee- 
vised Statutes of the United States (U. S. Comp. St. 1901, p. 



I 



28 Mont] Wright et ai^ v. Matthews. 443 

1430), to determine the relative rights of the parties to^certain 
mineral lands covered by conflicting claims. Upon the plead- 
ings issues were joined, and the cause tried to the court and a 
jury. At the close of plaintiffs' case, upon motion of the de- 
fendant, the court granted a nonsuit, and entered a judgment 
in favor of the defendant for costs, from which judgment and 
an order denying their motion for a new trial the plaintiffs 
appeal. 

The respondent insists that the motion for new trial was 
property denied, for the reason that the proposed statement on 
motion for new trial and the amendments offered thereto were 
not presented to the judge for settlement, or left with the clerk 
for the judge, within the time allowed by law or the order of 
the court The record discloses that a decision was rendered in 
flie cause on the 7th day of September, 1899, and on that day 
the plaintiffs were granted thirty days in addition to the time 
allowed by law to prepare, serve and file their statement on 
motion ior new trial. The statement was served on defendant 
on October 9th, and on October 17tli defendant prepared and 
served upon the plaintiffs his amendments thereto. Nothing 
further was done until October 30th, when the proposed state- 
ment^ with the amendments, were filed with the district clerk, 
and on October 31st the plaintiffs notified the defendant that 
they would not accept his proposed amendments. On Novem- 
ber 11th plaintiffs gave notice that they would call the matter 
up for settlement on November 16th. The defendant thereupon 
filed and served written objection to the settlement of the pro- 
posed statement upon the ground that such statement and amend- 
ments offered thereto were not presented by the moving parties 
to the judge, or delivered to the clerk of the court for the judge, 
within ten days after the date upon which the amendments were 
served upon them. This objection was by the court considered 
and overruled, but incorporated in and made part of the state- 
ment, and such statement was thereupon settled. On March 24, 
1900, the court overruled plaintiffs^ motion for a new trial. 

Section 1173 of the Code of Civil Procedure provides: "See. 
1173. * * * (3) If the motion is to be made upon a state- 



4:4:4: WsiaHT BT Ai*. V. Matthbws. [June T/03 

ment of the case, the moving party must, within ten days after 
service of the notice, or such further time as the court in which 
the action is pending or the judge thereof may allow, prepare 
a draft of the statement and serve the same, or a copy thereof, 
upon the adverse party. If such proposed statement be not 
agreed to by the adverse party, he must, within ten days there- 
after, prepiare amendments thereto and serve the same, or a copy 
thereof, upon the moving party. If the amendments be * * 
* not adopted, the proposed statement and amendments shall, 
within ten days thereafter, be presented by the moving party 
to the judge, upon five days^ notice to the adverse party, or de- 
livered to the clerk of the court for the judge. ^^ The record, 
then, discloses that the plaintifls did not comply with the re- 
quirements of this section, in this: that they did not, within ten 
days after October 17th, present the proposed statement and 
amendments to the judge, or leave them with the clerk for the 
judge. *'A motion for a new trial is a statutory remedy, and can 
only be invoked in the manner, within the time, and upon the 
grounds provided for in the statutes." (Ogle v. Potter, 24 Mont 
601, 62 Pac. 920.) 

The question raised here is analogous to one where the state- 
ment is not served within the time provided by law or the order 
of the court, and it has become the settled doctrine in this state 
that a disregard by the moving party of the plain requirements 
of Section 1173, supra, will defeat his right to have the state- 
ment considered for any purpose. 

The order of the district court overruling the motion for a 
new trial does not indicate the particular ground upon which 
it was made, and it is not necessary that it should, for. every 
legitimate intendment will be indulged in favor of the order. 
If it can be supported for any reason, it will be done. {Beach 
V. Spoharue B. & W. Co., 25 Mont 367, 65 Pac. 106.) 

When the statement and proposed amendments, with defend- 
ant's objection, were presented to the district judge, he could 
properly refuse to settle the statement, or he could settle the 
same, and deny the motion for a new trial. In this instance 



28 Mont] State ex rel. Weinstein Co. v. Dist. Or. 445 

he followed the latter cpurse, and in so doing committed no er- 
ror. (Sweeney v. Great Falls & C. By. Co., 11 Mont 84, 27 
Pac 347; Pomer y.' Lenoir, 22.Mont 169, 56 Pac. 106; Beach 
V. Spokane B. & W. Co., supra; Bums v. Napton, 26 Momt 
360, 68 Pac. 17; Stromberg-Midlins Co. .v. Dist. Coturt, 28 
Mont 123, 72 Pac. 412.) 

This disposes of the appeal from the order overruling the 
motion for a new trial, for, under the circumstances presented 
by the record, "this court must disregard the statement and all 
questions sought to be presented thereby." (Power v. Lenoir, 
supra.) 

There is in the record before us for consideration then only 
the judgment roll, and an examination of that discloses no error. 

The judgment and order appealed from are affirmed. 

Affirmed. 



STATE EX eel. WEINSTEIN CO., Eelatoe, v. DISTEICT 
COURT OF THE PIEST JUDICIAL DIS- 
TRICT et al.. Respondents. 

(No. 1,949.) 
(Submitted May 23, 1903. Decided June 29, 1903.) 

Claim and Delivery — Parties — Substitution — Appealable Or- 
ders — Certiorari. 

1. In an action in claim and delivery, the court, under Code of Civil Pro- 
cedure, Section 688, cannot make an order substituting in place of tbe 
defendant a claimant of the property, on the application of the defendant 
who has no control over the property (because of its previous delivery to 
the sheriff), and no power to deliver It on the court's order. 

2 In order that certiorari may lie, three requisites are indispensable, namely : 
excess of Jurisdiction; absence of the right of appeal; and lack of any 
other plain, speedy, and adequate remedy. 

3. Under Session Laws 1899, p. 185, amending Code of Civil Procedure, Sec- 
tion 1722, and providing for an appeal from a final judgment, an order 
substituting a claimant of property, on application of defendant in a claim 
and delivery action, in lieu of defendant, Is not a final determination from 
which an appeal is allowable. 



44:6 State ex kei^. Wbiwstein Co. v, Dist. Ct. [June T.'Oli 

4. Under Code of Civil Procedure, Section 1742, providing that on appeal 
from a Judgment the court may review any intermediate order or decision 
excepted to which involves the merits or necessarily affects the Judgment, 
an intermediate order substituting a claimant of property for defendant 
in a claim and delivery action may be reviewed on appeal from the final 
Judgment, on exception reserved, and hence certiorari will not lie to have 
the order annulled as in excess of Jurisdiction. 

Original application for certiorari by the state, on the rela- 
tion of the Weinstein Company, to the district court of the First 
judicial district and Hon. J, M. Clements, a judge thereof, to 
have an order annulled as in excess of jurisdiction. Dismissed. 

Messrs, Nolan & Loeb, for Kelator. 

Messrs. McConnell & McCormell, for Respondents. 

MR CHIEF JUSTICE BRANTLY delivered the opinion 
of the court. 

Certiorari to the district court of Lewis and Clarke county. 
On May 9, 1903, the relator brought an action in that court in 
claim and delivery against one Thomas Travis to recover the 
possession of certain dry goods, hardware and jewelry. The 
complaint is in the ordinary form, alleging title and right of 
possession in plaintiff. It further alleges "that the defendant 
became possessed of the said goods and chattels, and 
wrongfully detains the same from the plaintiff," and 
has refused to return them to the plaintiff, though 
demand has been made for them, to the damage of 
plaintiff in the sum of $100 . The prayer is for a 
return of the property, or for the sum of $300 in case return 
cannot be had, and for $100 damages. Upon the filing of the 
complaint, the relator, desiring to have the property delivered 
to it, made the affidavit required by the statute and delivered 
the same, with proper indorsement thereon, to the sheriff, ac- 
companied by a good and sufficient undertaking in double the 
value of the property alleged in the complaint Thereupon the 
sheriff took the property from the defendant. On May ISth, 
after notice to the relator, the plaintiff in the action, and to one 



28 Mont] State ex eei-, WErersTEiir Co. v. Dist. Or. 447 

Paul A. Tomcheck, the defendant applied to the court for an 
order substituting the said Paul A. Tomcheck as defendant in 
the action in his stead, and discharging him from liability. The 
application was supported by an aflBdavit to the effect that the 
defendant neither had nor claimed an interest in the property, 
and that the said Tomcheck, without collusion on his part, had 
also made demand upon him for the property, claiming to be 
the owner of it After argument by counsel for relator and the 
said Travis, counsel for the latter also representing Tomcheck, 
the court made an order discharging the defendant from lia* 
bility to either claimant and substituting Tomcheck as defend- 
ant in the action. At the time the order was made the property 
was in the possession of the sheriff, and this fact appeared from 
the affidavit of Travis. This proceeding was thereupon insti- 
tuted to have the order annulled as in excess of jurisdiction. 

The defendant in this proceeding has interposed a motion to 
quash the writ, on the grounds that the district court had juris- 
diction to make the order, and that the relator has a plain, speedy 
and adequate remedy by appeaL 

1. Did the district court have jurisdiction to make the order ? 
The application was made under Section 588 of the Code of 
Civil Procedure, which, so far as applicable to this case, de- 
clares: 

''Sec 588. A defendant against whom an action is pending 
upon a contract, or for specific personal property, may at any 
tim/B before answer, upon affidavit that a person not a party to 
the action makes against him, and without any collusion with 
him, a demand upon such contract^ or for such property, upon 
notice to such person and the adverse party, apply to the court 
for an order to substitute such person in his place, and discharge 
him from liability to either party, on his depositing in court 
the amount claimed on the contract, or delivering the property, 
or its value, to such person as the court may direct ; and the court 
may, in its discretion, make the order. * * *" 

Whether the order shall be made is lodged in the sound dis- 
<aretion of the court having jurisdiction of the action. To move 



448 State ex bel Weinstein Co v. Dist. Or. [June T.'O-^ 

this discretion, however, it is indispensably necessary that cer- 
tain facts exist and are made to appear in the affidavit These 
are: (1) That an action is pending and the applicant is the 
defendant; (2) that the person sought to be substituted is a 
stranger to the action; (3) that such third person has made a 
claim upon the defendant for the property or fund in contro- 
versy, without collusion with the defendant, which necessarily 
implies that the defendant has no interest in the property or 
fund ; and (4) that the applicant is able and stands ready to 
pay into court the amount of the fund or to deliver the property 
or its value to such person as the court may direct At the time 
the application was made it was not in the power of Travis to 
deliver the property under the order of the court ; indeed, the 
order made is silent as to the disposition of the property for the 
time being, the court evidently entertaining the view that, as it 
was in the possession of the sheriff, it was not necessaray to 
make any order with reference to it In oider to have the bene- 
fit of the statute, Travis should have availed himself of the privi- 
lege granted him under Section 849 of the Code of Civil Pro- 
cedure, and regained possession from the sheriff, thus enabling 
the court, in making the order, to put the plaintiff in the action 
and the substituted defendant in the same relative positions in 
which the plaintiff and he himself were at the beginning of the 
action. When the order was made, the defendant had no con- 
trol of the property. It was in the hands of the sheriff, ready- 
to be delivered to the plaintiff in case the option granted by 
Section 849, supra, was not exercised by the defendant The 
court could not make any order with reference to a disposition 
of it; in fact, it had no jurisdiction to make any order with 
reference to it, nor to control the disposition of it in any way, 
except to render a final judgm^it in regard to it at the condu- 
sion of the action. Though the statute grants the right to the 
order upon a proper showing, the showing made must meet all 
of its substantial requirements; otherwise, the court has no 
power to make the order. (Edgerton v. Boss, 6 Abb. Prac 
190; Vosburgh v. Huntington, 15 Abb. Prac 254; PeTham 



28 Mont.] State ex eel Weinstbin Co v. Dist. Ct. 449 

HSd Elevating Co, v. BaggaUy (City Ct. N. Y.), 12 N. Y. 
Supp. 219.) It must follow, therefore, that the order in ques- 
tion here was made in excess of jurisdiction. 

2. Is the order appealable ? If so, or if there is any other 
adequate remedy, certiorari will not lie to review it; for, in 
order tliat this remedy may avail, three requisites are indis- 
pensable, namely, excess of jurisdiction, absence of the right 
of appeal, and lack of any other plain, speedy and adequate 
remedy. (Section 1941, Code Civ. Proc. ; State ex rel. King 
V. Dist, Court, 24 Mont. 494, G2 Pac. 820 ; State ex rel. White- 
side V. District Court, 24 Mont. 539, 63 Pac. 395.) 

The defendant contends that the order is a final judgment, 
and is appealable under the provisions of Subdivision 1 of Sec- 
tion 1722, as amended by the Act of 1899 (Sess. Laws 1899, 
page 146). This contention rests upon the assumption that it 
is a final detennination of the rights of the parties so far as 
concerns the relator and Travis. With this view we do not 
agree. The order has none of the essential characteristics of 
a final judgment. It is not to be executed by a writ or other 
process ; nor is any act required of any of the parties by the 
doing of which he will be injured in the meantime, in the sense, 
at least, that he will be finally deprived of any substantial per- 
sonal or property right, or suffer an invasion thereof, unless 
he can prosecute an appeal directly from the order itself. Prom 
this point of view it does not fall within the principle of the 
ease of State ex rel, Heinze v. District Court, 28 Mont. 227, 72 
Pac. 613, but is merely an interlocutory or intermediate order, 
and falls within the class of orders which may be reviewed upon 
appeal from the final judgment in the case, upon exception re- 
served, under Section 1742 of the Code of Civil Procedure; 
otherwise, this and all similar orders, incidentally determinative 
of some right of a party to an action, must be held to be final 
judgments, within the definition of that term as laid down in 
Section 1000 of the Code of Civil Procedure. Therefore no 
direct appeal lies under Section 1722, supra. 

Vol. XXVIII-29 



450 State ex rel Weinstein Co' v. Dist. Ct. [June T.'O;) 

It remains to inquire whether there is any other adequate 
remedy. In our judgment there is. In case it turns out upon 
final judgment that the plaintiff has suffered a prejudice, or 
has been aggrieved by a failure to obtain all his rights in the 
premises, he may appeal from the final judgment, whereupon 
this court, having the order before it upon exception, may re- 
view it under Section 1742, supra. For the time being the 
result is, perhaps, inconvenience and delay, but not more than 
may be the result of any other intermediate order made during 
the progress of any case before a trial is finally reached on the 
merits. Xor does this case fall within the exception recognized 
by this court in State ex rel. A. C. M. Co\ v. Dist Court, 26 
Mont. 396, 68 Pac. 570, 69 Pac 103/State ex rel B, & M. C. 
C. & S, M. Co. v. Dist Court, 27 Mont. 441. 71 Pac. 602, and 
similar cases, in which interlocutory orders have been annulled 
by the writ of certiorari. In this class of cases, though the par- 
ticular order may be reviewed upon appeal from the final judg- 
ment, such review is inadequate, for the reason that all the in- 
jury which the complaining party may suffer will have been 
done long before revieiw can be reached upon appeal from the 
final judgment. 

It follows that, though the order was in excess of jurisdiction, 
the remedy by appeal from the final judgment is inadequate, 
and the writ should have been denied. The writ is therefore 
quashed, and the proceeding dismissed. 

Dismissed. 



28 Mont.] Wetzstein v. B. & M. C. C. & S. Mx Co. 451 



WETZSTEIX, Appellant, v, BOSTON" & MONTAI^A g f^\ 
CONSOLIDATED COPPER & SILVER MIN"- T^^ 



IXG COMPANY, Respondent. 

(No. 1,618.) 
(Submitted June 19, 1903. Decided July 1, 1903.) 

Actions — Dcviurrer — Anotlier Action Pending — ApiJeal — 
Identity of Parties — Same Cause of Action. 

1. Where a complaint shows that a former action, between the same parties 
and for the same cause, Is before the supreme court undetermined on ap- 
peal, a demurrer Is properly sustained thereto. 

2. The action Is between the same parties when It appears from the complaint 
that the defendant In the action Is the successor in interest of the defend- 
ant In a former action. 

:i. The action is for the same cause. If based on the same assertion of title as 
In a former action, though the plaintiff In the subsetiuent action prays for 
an injunction, the appointment of a receiver, and for an accounting, where 
he was entitled to such relief as to the Injuntlon and receiver in the for- 
mer action, and falls to state facts sufficient to constitute a cause of ac- 
tion for an accounting, by not averring a demand for an accounting and a 
denial thereof by defendant. 



41 



Aj^peal from District Court, Silver Boiv County; John Lind- 
say, Judge, 

Action by Adolpli Wetzstein against tho Boston & Montana 
Consolidated Copper & Silver Mining Company. From a judg- 
ment in favor of defendant, plaintiif appeals. Affirmed. 

Messrs, McHatton & Cotter, and Messrs. Toole & Bach, for 
Appellant. 

The former action does not constitute any bar to or abate- 
ment of this action ; until the final determination of the former 
action, the plaintiff had a right to institute and maintain this 
action. (Code of Civil Proc. Sees. 1895, 1893; Murray v. 
Greene, G4 Cal. 369 ; Harris v. Barnhart, 97 Cal. 54G, 32 Pac, 
589 ; Naftzger v. Gregg, 99 Cal. 83 ; Broivn v. Camphell, 100 
Cal. 036 ; Estate of Blythe, 99 Cal. 472 ; Storey v. Storey & 



452 Wetzsteix v, B. & M. C. C. & S. M. Co. [June T/03 

Isliam Co., 100 Cal. 41 ; Montana Mining Co. TAd. v. Sf. Louis 
M. <e S. Co., 58 Pac. 870.) 

The plaintiff's position is that he is a cotenant with the de- 
fendant; that the defendant denies his title, and has ousted and 
exchided and still excludes him from the common property. 
Xt common law a tenant in common had^lie right to enter upon 
the whole and every part of the property. {Carpenter v. ^Veh- 
ster, 27 Cal. 544-540; Tevis v. Hicks, 38 Cal. 234-238; Free- 
man on Cotenancy, 87.) In all cases a tenant in common can 
sue his cotenant. (Section 580, Code Civil Procedure of Mon- 
tana.) Under the Act of February 28, 1899, Laws of Mon- 
tana, Sixth Session, page 134, the plaintiff has a right to main- 
tain this action. Under the circumstances alleged in the com- 
plaint he is entitled thereiuider to the relief prayed. 

An action in equity for an accoimting is a proper one. (11 
Aiu. k Eng. Ency. Law, p. 1131, note 2; Ward v. Ward, 29 L. 
R. A. 449, note; Gage v. Gage, 28 L R A. 849; Fitzgerald v. 
Clark, 17 Mont. 100; McCord v. Oakland Q. M. Co., 04 Cal. 
134; Clay v. Field, 115 U. S. 260; Steivart v. Stewart, 63 X. 
W. 880; .1. C. M. Co. v. B. & B. Co., 17 Mont. 519.) 

Messrs. Forbis cC Evans, for Respondents. 

Cited : 1 Kncy. PI. & Pr. pp. 750-752, and cases cited ; Van 
Fleet on Former Adjudication, Sees. 1077, 1086; Crane v. 
Larson, 15 Pac. 326; Ilolloway v. Holloivay, 103 Mo. 274; 
Mantle v. Speculator Mining Co., 71 Pac. 665; 1 Ency. PI. & 
Pr. pp. 703, 98 ; Midlen v. Mullock, 22 Kan. 598 ; Colt v. Part- 
ridge, 7 Met. 579 ; Damon v. Denny, 54 Conn. 253 ; Code of 
Civil Proc. Sec. 950 ; French Bank Case, 53 Cal. 553 ; Magau- 
ran v. Tiffany, 02 How. Pr. 251 ; Perry v. Foster, 62 How. Pr. 
228 ; Jolly v. Bryan, 86 K C. 457. 

MR JUSTICE HOLLOW AY delivered the opinion of the 
court. 

This action was commenced in the district court of Silver 
Bow county, Montana, to secure a decree establishing plaintiflPs 



28 Mont] Wetzstein v. B. & M. C. C. & S. M. Co. 458 

title to an undivided one-fourth interest in the Comanche min- 
ing claim, to have the defendant declared to hold the same as 
trustee for the benefit of the plaintiff, to compel the conveyance 
of such interest to him, to secure the appointment of a re- 
ceiver to work the property, an injunction to restrain defendant 
from converting to its own use ores taken from plaintiff's al- 
leged one-fourth interest in the claim, and for an accounting 
by the defendant for ores extracted from the claim from the time 
it came into possession of the same. The complaint sets forth 
at length the history of the Comanche mining claim, and, among 
other things, alleges that it was located in 1879 by Turner and 
Upton; that Largey, Zenor and Bielenberg succeeded to Tur- 
ner's interest ; that Upton conveyed a one-fourth interest in the 
claim to Tong, and afterwards a one-fourth interest to H. L, 
Frank, who conveyed the same to this plaintiff; that, while 
Upton continued to own a one-fourth interest in the property, 
Tong, Largey, Zenor and Bielenberg wrongfully and fraudu- 
lently, and with intent to acquire for themselves the right to 
Upton's undivided one-fourth interest in the claim, made appli- 
cation for patent, and in said application fraudulently omitted 
and excluded Upton's name ; that they received a patent, organ- 
ized the Comanche Mining Company, and assumed to convey 
the entire property to such company, which had actual notice 
of plaintiff's alleged claim of interest therein ; that this plain- 
tiff in 1894 commenced an action in the district court of Silver 
Bow county against the Comanche Mining Company, Largey, 
Zenor, Bielenberg, Warren and Tong, to have them declared 
trustees of an undivided one-fourth interest in the property for 
his benefit, and to require a conveyance of such interest to him ; 
that on the date of the commencement of such action plaintiff 
filed with the county clerk and recorder of Silver Bow county, 
where the property was located, a notice of lis pendens; that 
such action was tried on its merits, and a decree entered ad- 
judging that this plaintiff had no right, title or interest in the 
property whatever; that from such decree and an order denying 
his motion for a new trial he appealed to the supreme court; 



454 Wetzstein v, B. & M. C. C. & S. M. Co. [June T.'03 

that such appeal was still pending undetermined in the supreme 
court at tibe date of the commencement of this action; that, in 
addition to the notice conveyed by the notice of lis pendens, 
this defendant had actual notice of the claim of this plaintiff, 
but, notwithstanding such notice, in 1896 it assumed to pur- 
chase from the Comanche Mining Company the entire property, 
and immediately thereafter went into possession and commenced 
to Extract large quantities of ore from the same. To this com- 
plaint the defendant interposed a demurrer upon the following, 
among other, grounds: (2) That another action is pending 
between the same parties for the same cause; and (3) that the 
complaint does not state facts sufficient to constitute a cause of 
actioii. This demurrer was by the court sustained, and, the 
plaintiff declining to amend, judgment was entered in favor of 
defendant for its Costs, from which this appeal is prosecuted. 

Section 680 of the Code of Civil Procedure provides that a 
demurrer may be interposed to a complaint upon the following 
ground: "(3) That there is another action pending between 
the same partieis for the same causa" In order to invoke suc- 
cessfully this ground of demurrer, it must appear from the face 
of the complaint (1) that another action is pending, (2) that it 
is between the same parties, and (3) that it is for the same 
cause. 

1. Section 1895 of the Code of Civil Procedure provides 
that an action is pending from the commencement thereof until 
the final determination on appeal, or until the time for appeal 
has expired, unless the judgment has been sooner satisfied. It 
appears from the complaint that at the date of the commence- 
ment of this action the former action was before the supreme 
court undetermined on appeal, and was therefore then pending 
within the meaning of Subdivision 3 of Section 680, supra. 
This is the view taken of a like provision by the Supreme Court 
of California in Fish v. Atkinson, 71 Gal. 452, 10 Pac. 374, 
12 Pac. 498. 

2. The plaintiff in each action is admittedly the same. It 
appears from the complaint that the defendant in this action 



28 Mont.] Wetzstein v, B. & M. C. G. & S. M. Co. 455 

is the successor in interest of the defendants in the former ac- 
tion; that it purchased the property pending such litigation, 
and, in addition to the knowledge brought home to it by the 
notice of lis pendens, it had actual notice of plaintiff's claim of 
interest at the date it purchased the property, and this success- 
ive interest or relationship to the same right of property con- 
stituted this defendant a privy of the defendants in the former 
action. The very purix)se of lis pendens is, and indeed the very 
purpose which the plaintiff must have had in filing such notice 
was, to bind any subsequent purchasers, by the decree which he 
might obtain in the action, to the same extent as though actually 
parties to the litigation; and the reason of the rule that the 
term "parties," as used in Subdivision 3 of Section 680, supra, 
includes privies, then becomes apparent, and this we understand 
the rule to be. (1 Oyc. 33 ; 21 Ency. Law (2d Ed.), 602 ; Crane 
V. Larsen, 15 Ore. 345, 15 Pac. 326; Holloway v. Holloway, 
103 Mo. 274, 15 S. W. 536.) Applying this test, it is obvious 
that the parties to this and the former action are the same within 
the meaning of Section 680, above. 

3. Was the former action for the same cause as the present 
one ? That action was brought to have the defendants declared 
to hold an undivided one-fourth interest in the C^omanche claim 
in trust for the plaintiff, and, primarily, the present action is 
brought for the same purpose and to secure the same result. 
The claim made by the plaintiff in each action is the same, 
based u|X)n the same assertion of title, and none other. As in- 
cidents to this j)rimary relief, and dependent absolutely upon 
this particular claim of title, the plaintiff in this action asks 
for an injunction, the appointment of a receiver, and an ac- 
counting. The general rule for determining the question now 
under consideration is, if in the former action a judgment had 
been obtained upon the merits, and that judgment had become 
final, it could be pleaded in bar of this action. (1 Cyc. 28; 
Damon v. Denny, 54 Conn. 253, 7 Atl. 400; Mullen v. Mullock, 
22 Kan. 598.) Or, stated in other words, could the plaintiff 
in the former action have obtainetl all the relief which he al- 



4r)(> Wetzstein v. B. & M. C. O. & S. M.^Oo. [June T.'03 

leges he is entitled to in the present action ? If so, he will be 
required to exhaust his remedy in that action, and will not be 
permitted to harass or annoy the defendant by maintaining this 
one. There is reason for this rule; for, if the plaintiff failed 
in the former action and was declared to have bo interest what- 
ever in the property, then he could not maintain this action, 
and the decree in the former would be an absolute bar to this, 
for his claim of right is based upon the same alleged title in each 
instance. If he prevailed in the former action, the defendant 
in this one, having purchased wdth actual knowledge of his al- 
leged claim, would be hound by such decree to the extent, at 
least, which it established the plaintiff's interest in the prop- 
erty and afforded him ancillary relief by way of injunction or 
the appointment of a receiver, and therefore, under such cir- 
cimistances, this action to that extent would be entirely useless ; 
for, if he is entitled to an injunction or the appointment of a 
receiver in this action, he was equally entitled to such relief in 
his former suit. 

But it is contended that the plaintiff is entitled to an account- 
ing by the defendant company for ores extracted since it canie 
into possession of the property, and to that extent, at least, the 
causes of action are not the same. This gives rise to the inquiry : 
Does the complaint state facts sufficient to constitute a cause of 
action for an accounting? It is conceded that the defendant is 
the owner of an undivided three-fourths interest in the claim in 
controversy, and therefore no wrong can bo imputed to its pos- 
session of the common property. In order to change the char- 
acter of such occupation, the plaintiff must have been wrong*- 
f ully denied participation in the fruits of the mining operations 
carried on to the extent of his interest If he had received his 
alleged share of the proceeds no complaint could be made upon 
this branch of the case, or, if he knew or had the means of know- 
ing just what such share actually amounted to, he would have 
no cause of action for an accounting ; for the law does not as- 
sume to do for parties that which they may rightfully do for 
themselves, and particularly does not encourage needless con- 
troversies in the courts. 



2S Mont.] Cornell et al. v, Matthews et al. 457 

The gist of an action for an accounting is the inability of 
the plaintiff to procure the same himself, and the refusal of the 
defendant to render such accounting to him ; and this suggests 
the rule, general in its application, though apparently seldom 
ajinounced, that a demand by the plaintiff for an accounting 
and a denial thereof by the defendant are necessary prerequi- 
sites to be pleaded and proved, in order to maintain an action 
for an accounting. (1 Ency. PI. & Pr. 98; Jolly v. Brycm, 
86 X. C. 457; Smith v. Lawrence, 26 Conn. 468; South/ivorth 
V. Smith, 27 Conn. 355, 71 Am. Dec. 72 ; Kemvicott v. Leavitt, 
37 111. App. 435.) In the absence of an allegation of demand 
and refusal, we are of the opinion that the complaint does not 
state facts sufficient to constitute a cause of action for an ac- 
counting, and, as the plaintiff could have obtained in the former 
action all other relief which he claims for himself in this, we 
hold that at the date of the commencement of this action the 
former action was then pending between the same parties for 
the same cause, and in sustaining the demurrer the lower court 
committed no error. The judgment is affirmed. 

Affirmed. 



CORXBLL ET al.. Appellants, v. MATTHEWS et al.. 

Respondents. 

(No. 1.622.) 
(SnbmItte<^June 1ft, 1903. Decided July 9, 1903.) 

Appecd — Record — Certified Copies of Papers. 

1. Under Code of Civil Procedure, Section 1738, declaring that, on an ap- 
peal from an order granting a new trial, the appellant must furnish 
the court with a copy of a notice of appeal, of the order appealed from, 
and of the papers designated In Setction 1176, etc., the court can only 
consider "copies" of the papers referred to; and hence a record on ap- 
peal, composed of original papers withdrawn from the files of the dis- 
trict court, will not support an api^eal. 

2. The supreme court has no Jurisdiction of an appeal unless the record 
on appeal conforms to the requirements of the statute. 



458 CoBJ^ELL ET AL. i\ Matthews et ai.. [June T.'03' 

Appeal from District Court, Lewis and Clarke County; S. H^ 
Mclniire, Judge, 

Action by J. R. Cornell and another against Lyman A^ 
Matthews and another. From an order granting a new'trial^ 
plaintiffs appeal. Appeal dismissed. 

Mr, xWhert I. Loeh, for Appellants. 

Mr. T, J. Walsh, for Respondents. 

MR. CHIEF JUSTICE BRANTLY delivered the opinion 
of the court. 

This action was brought by plaintiffs for the purpose of per- 
petually enjoining defendants from obstructing or otherwise 
interfering with a right of way which plaintiffs claim to have 
over the lands of the defendants. The district court foimd for 
the plaintiffs, and directed the injunction to issue as prayed. 
The defendants thereupon moved for a new trial. From the 
order granting it the plaintiffs have appealed. 

Xone of the questions submitted by appellants may be con- 
sidered or decided, because of the condition of the record filed 
in this court Besides a copy of the notice of appeal and the 
index, it consists only of the original bill of exceptions settled 
by the district court gi*anting the order. This has embodied in 
it the original statement prepared by defendants and settled by 
the court in support of the motion. It thus appears that the 
entire record, with the exception of the notice and index, is 
made up of original papers which have been withdrawn from 
the files of the district court. Section 1736 of the Code of Civil 
Procedure provides that, "on an appeal from a final judgment, 
the appellant must furnish the court with a copy of the notice 
of appeal, of the judgment roll, and of any bill of exceptions 
or statement in the case" upon which he relies. Section 1738 
declares that, on appeal from an order granting or refusing a 
new trial, the appellant must furnish the court with a copy of 



28 Mont] CoRNEXrL et al. v. Matthews et al. 45^ 

the notice of appeal, of the order appealed from, and of the 
papers designated in Section 1176. This latter section enumer- 
ates the papers which shall constitute the record on appeal from 
aii order granting or refusing a new trial. It is manifest from 
these provisions, when taken together with Sections 1739 and 
1740, that the record presented to this court must consist of 
certified copies, instead of the original pai)ers constituting the 
files of the district court. The reason underlying these pro- 
visions is also manifest The records of the district court must 
remain permanently on file with the clerk, except when original 
exhibits which have been made a part of the record in that court 
may be certified to this court under the rule. (Rule VII.) 
Even in these cases such exhibits are required to remain per- 
manently among the files of this court only when bound in the 
record. When not bound in the record, they may be witharawn 
and returned to the files of the district court, where they belong. 
Everything else, however, becomes a part of the records of this 
courts and must remain in the custody of the clerk. Such being 
the case, only records properly certified up by copy can law- 
fully become and remain constituent parts of the records of 
this court ; otherwise, important parts of the records of the vari- 
ous district courts throughout the state would become incorpo- 
rated in the records of this court, and to this extent the character 
of those courts as courts of record would be destroyed. 

From these considerations it follows that the record in this 
case is not such a one as that this court may consider or deter- 
mine any question sought to be presented by it. It is of no con- 
sequence whether the files of the district court are incorporated 
in the record on appeal by the implied consent of parties or by 
permission of the judge of the district court, as seems to have 
been the case here. Furthermore, this court has no jurisdiction 
of the appeal, unless the requirements of these statutory pro- 
visions have been observed. Its appellate jurisdiction may be 
exercised only under limitations and regulations prescribed by 
law touching the time within which and the mode by which 
appeals may be taken. (Constitution, Article VIII, Sec. 3; 



.460 Beck et al. v, Holland et al. [JuneT/03 

State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 Pac, 
396 ; Finlen v. Heinze, 27 Mont. 107, 69 Pac. 829 ; Firden v. 
Heinze, 27 Mont. 123, 70 Pac. 517.) The provisions of the 
statute above referred to define the mode by which appeals may 
bo effectually taken to this court, and are mandatory. (Feather- 
man v. Granite County, 28 Mont. 462, 72 Pac. 972.) * 

The appeal must therefore be dismissed. It is so ordered. 
It is further ordered that the clerk of this court return to the 
clerk of the district court the bill of exceptions, after detaching 
therefrom the cover, the index, the copy of the notice of appeal, 
and the certificate. 

Dismissed. 



BECK ET AL., Appellants, v. HOLLAND bt al.. 
Respondents. 

(No. 1,627.) 
(Submitted June 22, 1903. Decided July 9, 1903.) 

Appeal — Record — Sufficiency. 

A record on appeal, consisting only of a bill of exceptions, notice of appeal, 
and certificate of the clerk, and which does not purport to contain a gerti- 
filed copy of the Judgment roll as such, part of the papers const! tuUns 
which are contained in the bill of exceptions, the existence of others merely 
being recited therein, is insufficient to give the court jurisdiction. 

Appeal from District Court, Silver Bow County; William 
Clancy, Judge. 

Action hy J. F. Beck and others against John G, Holland 
and another. From a judgment for defendants, plaintiffs ap- 
peal. Dismissed. 

Mr. B. S. Thresher, for Appellants, 

Mr. Edwin M. Lamb, and Mr. J. L. Templeman, for Re- 
spondents. 



28 Mont.] Beck et at., v. Holland et al. 461 

MR COMMISSIONER CIAYBERG prepared the opin- 
ion for the court. 

The record in this ciise consists onlj of a hill of exceptions, 
notice of appeal, and certificate of the clerk, and does not pur- 
port to contain a certified copy of the judgment roll as such. 
Tlie hill of exceptions contains copies of a portion of the papers 
constituting the judgment roll, and merely recites the existence 
of others. We have lately decided that such a record is insuffi- 
cient to give the court jurisdiction. (Featherman v. Granite 
Qounly, 28 Mont. 462, 72 Pac. 972.) 

Wo therefore are of the opinion that the appeal should be 
dismissed. 

Per Curiam. — For the reasons stated in the foregoing opin- 
ion, the appeal is dismissed. 

Mr. Justice Holloway : The record recites that from the 
date of the commencement of this action to the date of judgment 
a numl)er of changes of parties had been made by the court ;• 
but the record nowhere contains copies of the orders relating to 
such changes. Section 1196, Code of Civil Procedure, specifies 
what papers shall constitute the judgment roll, and, among 
others, are copies of orders relating to change of parties. In the 
absence of these, the judgment roll is not complete, or, in other 
words, no judgnient roll is before this court, and we have no 
jurisdiction to consider the appeal on its merits. {Stanton v. 
Lewis, 28 Mont. 267, 72 Pac. 658.) For this reason I concur 
in a dismissal. 

Rehearing granted October 9, 1903. 



462 



Featherman v. Granite County. [June T.'03 



28 462 

38 460 

28 579 

28 58n 



28 462 

30 74 

80 818 

«aO 820 

eaO 821 

80 409 



88 462 



28 462 

35 584 

636 66 



FEATHERMAN et al.. Respondents, v. GRAjSTITE 
COUNTY, Appellant. 

(No. 1,605.) 
(Submitted June 17, 1903. Decided July 9, 1903.) 

Appeals — Jurisdiction of Supreme Court — Statutory Regula- 
tions — Record on Appeal — Judgment Roll — Certificate — 
Sufficiency — Bill of Exceptions, 

1. Under Constitution, Article VIII, Sections 2, 3, 15, the supreme court has 
jurisdiction to entertain appeals or writs of error only when the statutory 
requirements have been complied with. 

2 Under Code of Civil Procedure, Section 1736, providing that on appeal from 
a final Judgment, appellant must furnish the court with a copy of the 
notice of appeal, judgment roll, and bill of exceptions, or statement in tli« 
case, the presence of a copy of the Judgment roll in the record is Jurisdic- 
tional, and without it the court cannot consider any question on the appeal. 

3. Under Code of Civil Procedure, Section 1739, providing that the copies of 
papers to be furnished on appeal must be certified to be correct by the 
clerk or attorneys, on appeal from a final judgment it must be certified that 
the record contains a true copy of the Judgment roll. A certificate which 
only states that the transcript contains true