Volume 11 — Montana Reports

Contestants’ motion for a change of venue was denied by McHatton, J. Appellants contend that upon the facts thus disclosed the judge was biased and prejudiced against them, and on that account a change of venue should have been granted, and cite the following authorities: Code Civ. Proe. 2d subd. § 62, p. 72, 2d subd. § 63, p. 73, and § 110, Prob. Prac. Act.

Action to establish priority in water right and for an injunction. The cause was tried before Benton, J. Plaintiff had judgment below. Does the conveyance of land “ with all appurtenances55 convey a water right that is situated off from the land conveyed ? A water right is real estate, and is of the same character and grade as any other real estate. (Barkley v. Tieleke, 2 Mont. 59.) Things equal to their principal cannot pass as appurtenant to it.

Defendant’s motion for a new trial was- denied a hearing by Benton, J. Statement of facts, prepared by the judge delivering the opinion. On a trial of this case January 27, 1891, a verdict was returned in favor of plaintiff, on which a judgment on the same day was entered for plaintiff against defendent for seven thousand five hundred dollars. On February 2, 1891, the defendant filed and served its notice of intention to move for a new trial.

Action on promissory notes, the payment of which was alleged to have been assumed by defendants Shober and Adams by virtue of their acceptance of a declaration of trust. Their demurrer to the complaint was sustained by Hunt, J. .

<p>New Tbial — Appeal—Findings of fact. — An order granting a new trial upon tlie ground of insufficiency of evidence to support tlie judgment, which was rendered upon findings of fact, will not be disturbed on appeal, under the rule that a finding of facts must stand if there is evidence to support it, as such rule applies to appellate but not to trial courts.</p>

Action for specific performance of a contract for the sale of lands. The cause was tried before Buck, J. Plaintiff bad judgment below. I. The bonds in suit are identical in terms and language, except as to parties, dates, penalty, premises, and considerations with the bond involved in the case of Kleinschmidt v. Kleinschmidt, 9 Mont. 477. Upon the authority of this case the contracts proven are not such as entitle the plaintiff to a decree of conveyance. II.

Defendant’s motion to discharge the attachment was sustained by Buck, J. Statement of facts, prepared by the judge delivering the opinion. The plaintiffs in the District Court commenced their action against the defendant upon a money demand. They sued out a writ of attachment, as allowed by law. In pursuance to said writ the sheriff garnished, in the manner provided by the statute, the board of school trustees of school district No. 1.

Original proceeding. Application for a writ of habeas corpus. I. The police court of Butte had no jurisdiction to enter judgment fining the petitioner, or ordering his commitment in default of payment. There is no inherent power in inferior .courts to punish contempts not committed in the immediate .view or presence of the court or judge, and such authority as they may exercise in those cases is conferred and regulated by statute.

The cause was tried before Hunt, J. Defendant Richter had judgment below. In the course of the trial before a jury, Mr. T. H. Kleinsehmidt, being upon the stand, and having testified that he was assistant cashier of the bank at all times material to the suit, an offer was made to charge the bank with knowledge of the withdrawal, by showing that notice of the withdrawal had been brought home personally to T. H. Kleinschmidt in the course of his personal business with the firm.

Action to recover for services rendered. The cause was tried before Jas. P. Lewis, special judge, sitting in place of Benton, J. Plaintiffs had judgment below. Statement of the case prepared by the judge delivering the opinion. The complaint in this action is for work, labor, and services rendered by plaintiffs for defendants, at their request, in drilling a well for defendants to a depth of 230 feet.

<p>PnEADiNa — Judgment of Justice’s Court. —In pleading a judgment of a Justice’s Court, the pleader must either aver that the judgment was “ duly given or made,” as permitted by section 103 of the Code of Civil Procedure, or the facts conferring jurisdiction upon the Justice’s Court must be alleged and proved. (Harmon v. Comstock Horse & Cattle Co. 9 Mont. 243, affirmed.)</p>

Appeal from, Mghth Judicial District, Cascade County. Action to recover possession of land. The canse was tried before Benton, J. The defendant had judgment below.

<p>Pbactice — Belief from judgment. — Where a defendant in an action for unlawful detainer fails to file a written answer in the Justice’s Court as required by section769 of the Code of Civil Procedure, and judgment by default is taken against him after his time to answer had been extended seven times, and on appeal to the District Court judgment on the pleadings is rendered against him for want of an answer, an order of the latter court denying his motion to set aside the judgment and for leave to answer will be affirmed on appeal where no showing had been made of surprise, inadvertence, or excusable neglect nor proper relief sought in the Justice’s Court.</p>

Action to recover possession of a mining claim. The cause was tried before Galbraith, J. Plaintiff had judgment below. If respondent resumed work in 1890 he should have performed one hundred dollars’ worth of work, and to the extent as required by law. {Lacey v. Woodward, 25 Pac.

Defendants’ petition for the probate of a will was denied by Milburn, J. 1. Held: that where a testator declared his intention to revoke his will, this was not a revocation, for the reason that it was to be done in the future.

Action to dissolve a mining partnership and for an accounting. The cause was tried before Galbraith, J., without a jury. Plaintiff had judgment below.

Action of ejectment. Defendant’s demurrer to the complaint was sustained by Marshall, J. It appears from plaintiff’s complaint that he entered into possession of the lot of land described in said complaint, having legal title thereto, and the general rule is that if a person so enters into his lands his seisin is not bounded by his actual occupancy, but is held to be co-extensive with his title, and as it appears from the face of the complaint that plaintiff from the date of…

The cause was tried before Galbraith, J. Plaintiff had judgment below. An attorney by virtue of his employment cannot bind his client to any liability for the sheriff’s fees in question. (1 Lawson’s Rights, Remedies, and Practice, § 171, p. 286.) This being a claim by a sheriff for keeper’s fees he cannot recover, never having had them taxed in either of the original actions, and never having demanded his fees in advance.

Original proceeding. Application for a writ of habeas corpus by James A. MacKnight, imprisoned for contempt by the District Court of the Second Judicial District, Silver Bow County, McHatton, J. The judge of the District Court of Silver Bow County caused an attachment to issue out of that court, requiring petitioner to show cause why he should not be punished for contempt for publishing the article in question.

’ Action for cancellation of a deed. The cause was tried before Galbraith, J. Plaintiff had judgment below. I. A party seeking to rescind a contract on the ground of fraud must, as a condition precedent to his right to commence •or maintain his action therefor, make, or offer to make, full restitution to the other party.

Action for damages and injunction. Temporary restraining order dissolved by Buck, J. Statement of the case by the judge delivering the opinion. On the complaint filed, the plaintiffs obtained from the judge of the District Court a temporary restraining order. The -defendants moved to discharge the order, on affidavits by them filed, and on the complaint. The order was discharged, from which plaintiffs appeal to this court.

<p>Appeal from First Judicial District, Lewis and Clarice County.</p> <p>Action for damages and injunction. A temporary injunction was granted by Buck, J.</p>

Action to recover possession of a building. Defendants’ motion for a nonsuit was granted by (xAlbbaith, J. Even though it should be conceded in this case that respondents can rely upon questions raised in their motion for a nonsuit which were overruled by the court, yet it seems clear from the authorities that the question as to whether this structure was a chattel or a part of the realty, and whether defendants were in possession at the time of the levy of the attachment,…

<p>PLBABiua — Review on appeal. — An objection to an averment in a complaint as ambiguous cannot be taken advantage of in this court for the first time where the objectionable pleading is not so uncertain or ambiguous but that its reasonable intendment may be gathered from its terms, and its defects were cured by proof upon the trial.</p> <p>Bailboads — Right of way — Damage.—Under section 719, fifth division of the Compiled Statutes, providing in substance that any railroad company failing to keep their track free from dead grass, weeds, or any combustible material, “shall be liable for any damages which may occur from fire emanating from operating the railroad, and a neglect to comply with the provisions of this chapter in keeping clear any railroad track.....” it is error to charge the jury, in effect, that upon such failure the statute “ makes them liable for any damage that may occur from any fire emanating from operating the railroad,” as such instruction leaves out of consideration the question as to the agency of the dead grass or combustible matter in the destruction of the property.</p> <p>Same — Same—Same.—In an action against a railroad company for damages alleged to have resulted from fire communicated to plaintiff’s property by the agency of combustible material upon their right of way, it is error to refuse an instruction to the effect that the defendant is not liable in such case, unless it be shown that there was a sufficiency of combustible material upon the right of way at the place where the fire started as to indicate danger from fire to common prudence. (Diamond v. Northern Raeific R. B. Go. 6 Mont. 580, cited.)</p>

Action to determine the right to the possession of mining premises. The cause was tried before Blake, C. J. The plaintiff had judgment below. Statement of the case by the judge delivering the opinion. This action is a contest between claimants of mineral lands ■upon the public domain of the United States. Defendant applied to the government for a patent to the Maskelyne quartz lode mining claim.

Action to foreclose a mortgage. A demurrer to the answer and cross-complaint was sustained by Henry, J. Statement of the case by the judge delivering the opinion. The District Court sustained a demurrer to the defendants’ answer and cross-complaint. Judgment then followed for the plaintiff. The sufficiency of the defendants’ pleading is therefore the question on review.

Petition to vacate an order directing the issuance of letters of administration.

<p> Appeal from Second Judicial District, Silver Dow Cov/nty. </p> <p>Appeal from an order by McHatton, J., refusing to hear a motion.</p>

<p>Ohahoe of Venue. — Where the complaint is silent as to the place where the contract sued on was to be performed, and the defendant upon appearing demure and moves for a change of the place of trial to the county of his residence, which is resisted on the ground of convenience of witnesses, it is error for the court to deny the motion without prejudice to its renewal after answer filed, as the defendant’s right to a change of venue must be determined by the conditions existing at the time he first appears in the action, and the convenience of witnesses as a ground for retaining the action in the county where it was commenced cannot be considered until after answer. (Yore v. Murphy, 19 Mont. 30i, cited.)</p>

Original proceeding. Application for a writ of mandate. Statement of the case by the judge delivering the opinion. The petition is for a writ of mandate requiring the' judge of the Third Judicial District to grant a change of venue in an action in which the petitioner is defendant and James E. Durfee is plaintiff. The said James E. Durfee obtained against said Granite Mountain Mining Company a judgment by default. Defendant filed a motion asking to have the default opened.

Original proceeding. Application for a writ of ceriiorarL Statement of the case by the judge delivering the opinion. Michael D. Hayes and P. M. Hayes recovered a judgment in the First Judicial District Court against Henry J. Hayes, the amount of which was paid into court, and remains there. Afterwards the Bank of Minnesota recovered a judgment against Michael D. Hayes and Henry Hayes.

<p>Cbiminai, Law — RoVbery—Evidence.—Evidence reviewed, and held sufficient to support a convictiou for robbery.</p>

Action for goods sold and delivered. The cause was tried before McHatton, J. Plaintiffs had judgment below. Statement of the case by the judge delivering the opinion. The complaint is for lumber, of the value of $751.56, sold and delivered by plaintiffs to defendants at defendants’ request. The answer denies that defendants bought said lumber, or any part of it, or that it was ever delivered to them, or that they promised to pay for it.

Action to recover money expended for the use of the defendant. The cause was tried before McHatton, J. Plaintiff had judgment below. The plaintiff sues upon an agreement which the defendant contends is void as against public policy. A sheriff or any public officer has no more right to claim extra compensation for his deputies than he would if he himself had performed the services.

<p> Appeal from Seventh Judicial District, Dawson County. </p> <p>Application for a writ of mandate. The writ was denied by Milbuen, J.</p>

Action for forcible entry and unlawful detainer. The cause was tried before W. H. Trippet, Special Judge, sitting in place of Durfee, J. Defendant had judgment below.

The judgment of the Justice’s Court was annulled by Mo Hatton, J., upon a writ of certiorari. Statement of the case by Mr. Justice De Witt.

Action to recover for services. Plaintiff had judgment below. Defendant’s motion for a new trial was denied by Henry, J. While it is true that the appellate court acts with the greatest caution in reviewing the verdict of a jury for insufficiency of the evidence, yet its power to review and reverse that verdict is well settled, and one of the safeguards thrown around litigants.

<p>Contracts— Construction — Lease—Mechanic’s lien. —A contract between the proprietor of a mine and a third person, which provides that the latter is to make ■certain developments, the nature of which are specifically set forth, using the proprietor’s machinery and timber, and may then mine so much of the ore as he may desire, in a designated manner, and to receive as full compensation for ■such developments a certain percentage of the net returns of the ore, and which also provides that a failure to keep said mine in active operation for a space of five days in any one month shall operate as an abandonment of the contract at the option of the proprietor, and that all liabilities incurred in any one month shall be discharged before the 15th of the ensuing month, the contract being limited to a year, is a lease, and being such, no lien is created against the mine in favor of one who labors for the lessee, as under the provisions of the mechanic’s lien law the interests of proprietors in leased premises cannot be ■charged with liens for labor performed for the benefit of lessees.</p>

Action on bill of exchange. Judgment was rendered for the plaintiff by Hunt, J. I. The bill of exchange declared on contains the following clause: “ The parties hereto agree to pay all attorneys’ fees in case of suit on this paper.” We think the weight of authority is that stipulations for attorneys’ fees in ease of suit in notes or bills are void, as being stipulations for a penalty, against public policy, and as attempts to evade the usury laws.

Action to determine the right to the possession of mining premises. The cause was tried before E. W. Cole, Special Judge, sitting in place of Durfee, J, Defendant appeals from an order granting plaintiff’s motion for a new trial. The court based his granting of the motion for a new trial upon the ground that the evidence was not sufficient to justify the verdict.

Action to determine the right to the possession of mining premises. The cause was tried before Galbraith, J. Defendant had judgment below.

Action to recover wages from assignee of insolvent debtor. The cause was tried before Henry, J., upon an agreed statement of facts. Plaintiff had judgment below. Held: a part of which was secured by other makers and indorsers, who were solvent, which fund was as much for the benefit of said signers and indorsers, as for the appellant and the mortgagor, and thereby creating a trust fund for the above mentioned purposes.

Indictment for assault and battery. The indictment was quashed by Galbbaith, J. Statement of the case by the judge delivering the opinion. This action is a criminal prosecution against the respondents, commenced originally in the District Court, by the presentment of an indictment by the grand jury, charging the offense of assault and battery.

Action to determine the right to the possession of mining premises. The cause was tried before Durpee, J. Defendant had judgment below.

Action to determine the right to the use of the waters of a stream. The cause was tried before Durfee, J., without a jury. Certain of the defendants appeal from the judgment. The ownership of the ditch in question was divided into twenty-four parts, each part being represented by a share. This would make such owners tenants in common of the ditch and of the right to use the water flowing therein. (McConnell v„ Denver, 35 Cal. 365; 95 Am.

Action to enforce a vendor’s lien. The cause was tried before McHatton, J. Plaintiffs bad judgment below. The plaintiffs, although satisfied with the bargain, after learning that Lloyd was to receive more than they had asked or received, insist that they are entitled to their proportionate share of whatever Lloyd was to receive from the sale over and above the amount specified in the deed and agreement.

Action to determine the constitutionality of a certain statute. The cause was tried before McIíatton, J., upon an agreed case. Plaintiff had judgment below.

Action for conversion. Judgment by default was taken against the defendant below. The action brought by the plaintiff is an action sounding in tort for damage and not on a contract, expressed or implied.

Action for damages and an injunction. The cause was tried before Durfee, J., without a jury. Defendant had judgment below. Statement of the case by the judge delivering the opinion. The action is for damages, and for an injunction restraining the defendant from using certain waters claimed by the plaintiff.

The defendant was tried before McHatton J. Before appellant could have practiced “ contrary to the provisions of the act,” having first obtained his certificate, which he then possessed, it must have been lawfully revoked upon due and sufficient notice first given,.and an opportunity to appellant to defend his right. The proof for the State concedes that this was not done; therefore the motion for nonsuit should likewise have been granted.

Appeal from Fifth Judicial District, Jefferson County. Action for an injunction. The cause was tried before Galbraith, J., without a jury. Plaintiffs had judgment below.

<p>Aveeai, — Becord—Specification of errors. — An order of the court below overruling a motion for a new trial cannot be reviewed on appeal where no specification of errors or bill of exceptions is contained in the transcript. (Taykr v. Bolter, 2 Mont. 476; Bass v. Bulcer, 6 Mont. 442; Baymond v. Thexton, ? Mont. 299, cited.)</p>

Action for damages for the diversion of water. The cause was tried before Dureee, J. Plaintiff had judgment below. Statement of the case by the judge delivering the opinion. The plaintiff brought his action for damages for the taking and diversion of water claimed by him. He also asked that the defendants be enjoined from interfering with his water right.

Action on official bond of a constable. The cause was tried-before Durfee, J. Plaintiff had judgment below, A chattel mortgage of a stock of goods, used in the way of retail trade, and where the mortgagor is allowed to continue in the possession of the property, and to sell the goods in the usual course of trade, is in law fraudulent and void, as against the creditors of the mortgagor, no matter whether the parties intended any actual fraud or not.

Actiou for the recovery of the possession of mortgaged property. The cause was tried before Buck, J. Defendant Schlesinger had judgment below. Upon the trial the court instructed the jury as follows:— “1.

<p>Baikroads — Negligence—Injury to stock. — In an action against a railroad company to recover for injuries to stock, the admissions of an agent of the company, acting within the scope of his authority and with knowledge of the circumstances, that he had ordered the animal killed and the beef sold for the benefit of the company, and the receipt of the proceeds of such sale by the company, establish a prima facie case of the admission of negligence by the company, under section 717, fifth division of the Compiled Statutes, providing that in case of injury to stock the body of the animal injured shall belong to the company unless the owner thereof shall elect to take the same in lieu or in part payment of damages. (De Witt, J., dissenting.)</p>

Action to recover for the publication of a copy of a proposed State constitution. Judgment on demurrer was rendered for the defendant by Milbttrn, J. Statement of the case by the judge delivering the opinion. This action is brought by appellant to recover compensation from respondents, the commissioners of Yellowstone County, for publishing in appellant’s daily newspaper, in said county, a certified copy of a proposed constitution.

Action for tbe purchase price of sheep. The cause was tried before Milburn, J. Defendant had judgment below. I. Evidence of what part of the band of sheep sold for is relevant, material, and proper on cross-examination when the issue is a question of damages for an alleged breach of warranty. The respondent is bound to account for the value of the chattel sold, and not only for the purpose for which he purchased it, but for any purpose whatever.

Ninth Judicial District, Gallatin Comty. ■Action for damages. Judgment was rendered for the plaintiffs below by Diddell, J. The first matter to be considered in this ease is the force and effect of the verdict, and the alleged judgment rendered on the 24th of June, 1889, and which has been brought into the case ,by a suggestion of a diminution of the record made by the re-= .spondents.

Action for damages for personal injuries. The cause was tried before Benton, J. The plaintiff had judgment below. I. The judgment should be reversed because the plaintiff wholly failed to prove the negligence alleged in the complaint, or any negligence on the part of the defendant.

The order was made by Hunt, J., after final judgment for plaintiff. Statement of the case by the judge delivering the opinion. This is an appeal from a special order made after final judgment. (Hayes v. District Court, ante, p. 225.) See that case for a statement of the facts. The case was then before us on a writ of certiorari. That writ having been dismissed, the defendant has now appealed from the order at that time complained of.

Original proceeding. Application for a writ of mandate* On motion to strike from the answer. The question for the consideration of the court is, whether State warrants, duly issued by the proper authorities, and presented to the State treasurer, and not paid for want of funds, draw interest; and if they do draw interest, whether that interest is payable out of any funds in the State treasury, without a specific appropriation being made therefor.

Original proceeding. Application for a writ of mandate» I. The Act of March 8, 1889 (16th Sess. p. 218), is an “appropriation” within the meaning of the provisions of the Constitution. (§ 34, art. v. and § 10, art. xii.; State v. Kenney, 10 Mont. 533; State v. Kenney, 10. Mont. 485; State v. Hickman, 9 Mont. 370; Ristine v. State, 20 Ind. 328; Carr v. State, 127 Ind. 204; 22 Am.

The cause was tried before Benton, J. Plaintiff had judgment below. On motion of the respondent to dismiss the appeal. Statement of the case by the judge delivering the opinion. This is an action to declare a copartnership dissolved, and for an accounting. The complaint alleges that in August, 1887, plaintiff and defendant, at Port Arthur, Canada, entered into a copartnership for the business of dealing in wines, liquors, and cigars at the city of Great Falls, Montana.

Appeal from Sixth Judicial District, Meagher County. Action on covenants of warranty in a deed. Defendant’s demurrer was overruled and judgment rendered for plaintiff by Henry, J.

Petition for the probate of a will. Petition was denied by Milbtjrn, J. Statement of the case by the judge delivering the opinion. This case was before us at the June term, 1891, and the decision is reported ante, page 99. The report of that decision may be referred to as a statement of the case on this appeal, so far as it goes. We then sent the ease back to the District Court for a trial.

Action for debt. The cause was tried before Dubeee, J. Defendant had judgment below. I. A gift from the husband to the wife of property exempt from execution is not a fraud upon the creditors of the husband. (Robb v. Brewer, 60 Iowa, 539; Pike v. Miles, 23 Wis. 164; 99 Am. Dec. 148, and note.) II. The purpose of exemption of wages of a laboring man ■is to enable husbands to support their families, and such exemption laws should be liberally construed.