Volume 12 — Montana Reports

Ejectment. The cause was tried before Galbraith, J. Defendant had j udgment below. I. No mere claim of right founded on a verbal contract can constitute adverse possession. The possession is presumed to follow the legal title which is admitted to be in the plaintiff.

Appeal from, Third Judicial District, Deer Lodge County. Action on criminal recognizance. The defendants’ demurrer was sustained and judgment rendered in their favor by Durfee, J.

Action to set aside tax sale. Defendants’ demurrer was sustained and judgment entered in their favor by Armstrong, J. There is no uncertainty in the complaint. From the facts alleged it is but a question of mathematics to ascertain what is the amount claimed as due for taxes on personal property, and penalties thereon. {Sullivan v. Dunphy, 4 Mont. 499; Chum~ asero v. Potts, 2 Mont. 281; Daniels v. Andes Ins.

Action for damages for personal injuries. The cause was tried before Hunt, J. Plaintiff had judgment below. I. It was error to deny defendant’s motion for a nonsuit. (a) The rule is universal that in an action charging negligence there must be some evidence adduced by the plaintiff to prove the same. This was not done in this ease.

Original proceeding. Application for peremptory writ of prohibition. By the Constitution of this State probate jurisdiction is conferred upon the District Courts, and this jurisdiction is no longer limited and special in character; and hence all the rules applicable to judgments as to their validity and unimpeachable character, which apply to courts of general jurisdiction, apply equally in matters of probate before the District Courts.

<p>Appeal — Practice—Alteration of transcript — Buies of Supreme Court. — Where an appellant who has been given leave to file a brief upon a point of practice suggested by this court, or to dismiss his appeal without prejudice, fails to avail himself of such privileges, but having obtained permission to take the transcript from the clerk’s office for the purpose of making amendments or a new record, which permission he understood to authorize such use of the papers as he deemed proper, thereafter returns it with alterations made by the removal of certain pages and the substitution of other papers, and transforms it from a statement on appeal into a statement on motion for a new trial under the original covers and filings, so as to satisfy the point raised by the court, it is a reconstruction of the record unauthorized by the rules and practice of this court, and the appeal will be dismissed. (Citing rules 11 and 23. De Witt, J., dissenting, and placing a different construction upon the facts, as to which see his opinion.)</p>

<p>L&bceny — Property stolen in another country — Proofs__In order to support a-conviction for larceny under section 85, fourth division of the Compiled Statutes, where the indictment charged that the goods were feloniously stolen in Canada and afterwards brought into a certain county of this State where the defendant did feloniously steal them, it is not necessary for the State to prove by the laws of Canada that the taking of the property was “feloniously stealing” in that country, as the term “ feloniously” as used in the indictment must be defined according to the statute of this State. The laws of Canada are not an element of the offense charged against the defendant. (De Witt, J., dissenting.)</p>

Action for an injunction. Defendant’s demurrer to tbe complaint was sustained by Hunt, J. I. The respondent, being a foreign corporation, can only have existence in this State by virtue of interstate comity. (Copper Manuf. Co, v. Ferguson, 113 U. S. 727; Powder River Cattle Co. v. Custer County, 9 Mont. 145; 8 Am. & Eng.

<p>Cbiminax, Law— Complaint under city ordinance. — Section 107, fifth division of the Compiled Statutes, providing that in criminal prosecutions under city ordinances it shall be sufficient to state in the complaint the title of the ordinance, without reciting the same at length, is mandatory, and a complaint made thereunder which neither recites any part of the ordinance nor states its title will not support a conviction.</p>

Defendant's demurrer to the complaint was sustained by Hunt, J. There are two main propositions to be considered: First. Held: independent of statute, they had the right to entertain suits for maintenance, and in these same States, statutes have been enacted allowing such to be maintained, as in California, Maryland, North Carolina; thus, instead of enacting a new law, or creating a new right, the statute simply recognized a right then existing and…

Action upon promissory note. Plaintiff had judgment by default and appeals from an order by Buck, J., vacating the judgment. As to the sufficiency of the summons, counsel cites Dyas v. Keaton, 3 Mont. 495; Hemson v. Decker, 29 How. Pr. 385; Brown v. Baton, 37 How. Pr. 325; McCoun v. A. Y. The statement in the summons in this case is no notice of the amount of the judgment to be taken; it is not in compliance with the. law, and the court obtains no jurisdiction of the person.

Action for damages. The cause was tried before Durfee, J. Plaintiff had judgment below. This action is based upon the statute in force prior to the Act of March 2, 1891, and comes clearly within the rule laid down in the case of Bielenberg v. Montana Union Ry. Co. 8 Mont. 271.

Probate proceeding. Appeal by William Kane from an order appointing a guardian of his person and estate, made by the clerk of the District Court under the Act of March 6,1891, conferring additional powers on clerks of District Courts in vacation. The authority of the clerk in this matter is claimed by the respondent to exist under and by virtue of the Act of March 6, 1891, Daws of 1891, page 219.

Application to the board of medical examiners for a certificate to practice medicine.

Action for damages. Defendant’s motion for a nonsuit was granted by Benton, J. The negligence of the foreman was the negligence of the defendant company. (Kelley v. Cable Co. 7 Mont. 80.) The foreman is presumed to have been familiar with the dangers ordinarily accompanying the business, and to have known the length of time within which the blast would naturally explode. (Smith v. Peninsular Car Works, 60 Mich. 501; 1 Am.

Action against the commissioners of Missoula County to restrain the issue of county bonds. Defendant’s demurrer to the complaint was sustained by Marshall, J.

Information for keeping a room where faro was dealt and played, without first obtaining a license. Defendant was tried before Hunt, J.

Information for attempt to commit an assault with a deadly weapon. Defendant’s motion for an instruction to acquit was granted by Durfee, J. Statement of the facts prepared by the judge delivering the opinion. The information in this ease was for an attempt to commit an assault with a deadly weapon, with the intent to commit a violent injury upon the person of George W. Nelson.

<p>Cbxminal Law — Embezzlement—Statutory construction. — An information for embezzlement, which charges that the defendant as an agent and servant while in the service and employment of B. received “for and in the name and on account of” said B. a certain sum of money, is sufficient under section 92, fourth division of the Compiled Statutes, providing that if any agent, servant, or other person “who shall have received or been entrusted with any money .... from or by Ms” principal or employer, shall embezzle the same, he shall be punished for felonious stealing; and it is not necessary that the information charge that the defendant received the money directly from B. in order to constitute the offense.</p>

The cause was tried before Durfee, J. Defendant had judgment below. Statement of the case prepared by the judge delivering the opinion. The verdict and judgment were against the plaintiffs in this action.

Appeal from Second Judicial District, Silver Bow County. Action to recover for cutting and hauling logs. The cause was tried before Pemberton, J. Plaintiff had judgment below.

<p>Appeal — Judgment of dismissal. — An appeal taken from a judgment dismissing an action without prejudice, will not be entertained by this court where it appears that after such dismissal another suit was commenced upon the same cause of action which is still pending, and the issues between the parties could not be determined by a decision on the appeal. {Slate ex ret. Begeman v. Napton, 10 Mont. 369, cited.)</p>

Action for dissolution of copartnership and an accounting. The cause was tried before Benton, J., who rendered a decree for the plaintiff. Statement of the facts, prepared by the judge delivering the opinion.

Condemnation proceeding. Defendant appeals from an order by Galbraith, J., denying its motion to set aside the award of the arbitrators and for a new trial.

<p>Appeal from Fifth Judicial District, Madison County.</p> <p>Foreclosure. Plaintiff’s demurrer to defendant’s answer was sustained by Galbraith, J„</p>

Conviction for an assault with intent to commit murder. The defendant was tried before Du Bose, J. A failure to follow the statutory provisions as to the selection, impaneling and swearing of jurors is fatal. (Rapalje on Criminal Procedure, § 210; 1 Tex.

<p>Cbiminai, Pbaotice —Record on appeal — Notice of motion for new trial. — Although a full copy of the notice oí motion for a new trial is not contained in the transcript, a statement in a hill of exceptions contained therein, that defendant gave notice that he would move for a new trial and that the notice was upon the same grounds as are set forth in the motion for a new trial, which motion was in writing and is contained in full in the transcript and sets forth the error . relied upon, may be construed to state in effect that the notice was given and filed as provided by sections 355 and 356 of the Criminal Practice Act. (State v. Fry, 10 Mont. 407, distinguished.)</p> <p>Cbiminal Law — Circumstantial evidence — Degree of certainty required. — The same degree of' certainty is required to warrant a conviction on circumstantial evidence as when the evidence is direct, and the jury being required in all criminal cases to be satisfied beyond a reasonable doubt of the guilt of the defendant, an instruction in such case that the circumstances should be such as to produce nearly the same degree of certainty as that which arises from direct testimony, is error.</p>

<p> Appeal from Eighth Judicial District, Cascade County. </p> <p>Defendant was tried before Benton, J.</p>

<p>Appeals — Reversal .of judgment of acquittal. — When a judgment of acquittal is reversed on appeal it is proper for this court, under section 404 of the Criminal Practice Act, to remand the case to the District Court for a new trial, where the defendant may then, if he desires, plead former acquittal in bar of such new trial.</p>

Action on adverse claim to determine right of possession of mining premises. The cause was tried before McHatton, J. Plaintiffs had judgment below. The court instructed the jury that it was not necessary that labor done upon a claim to represent it be actually paid for. If labor of sufficient value be done on a claim, within a given year, that is sufficient, even if it be not paid for, the payment being a matter between the laborer and the owners.

Appeal from Fifth Judicial District, Jefferson County. Judgment was rendered for the defendant below by Galbraith, J. Ou motion to strike testimony from transcript.

Action for foreclosure of mechanics’ lien, tried before Hunt, J. Plaintiff had judgment below. I. 'be plaintiff seeks °to recover for extra work done and performed upon the building without showing a compliance with the terms of the contract sued upon.

First Judicial District, Lends and Clarice County. Action to cancel a deed and declare a trust. Decree was given for plaintiff by Hunt, J. Statement of facts, prepared opinion. by the judge delivering the r The appeal is from the judgment entered by the trial court, and the assignments of error are predicated on the pleadings and the findings which constitute part of the judgment roll.

Appealfrom Ninth Judicial District, Gallatin Cownty. Conviction for assault with intent to commit murder.

Action to quiet title to water right, and for an injunction. Defendant’s motion to dissolve injunction was denied by Henry, J. As water must be appropriated for a beneficial purpose, so it must be used in the furtherance of that purpose. It cannot be ascertained from plaintiff’s complaint what was the nature, character, or the extent of the use alleged by him.

Action brought under section 356, chapter xi. of the Code of Civil Procedure, relating to proceedings supplementary to execution, and authorizing suit to be brought by judgment creditors against a… Held: and no meeting of the stockholders of the said incorporation was ever held. “ 5. That shares of stock in said corporation were issued to said Henry Boesman, Charles Boesman, and Richard Boesman, and to no one else.

<p>Appeal — Undertaking.—An undertaking on appeal which provides for the payment by appellants of all damages and costs which may be awarded against them on the appeal, but omits the words “ or on a dismissal thereof,” is defective but not void, and a motion to dismiss the appeal for such defect will be denied where a new and sufficient undertaking is filed before the motion is heard. (Stapleton v. Pease, 2 Mont. 508; Pierse v. Miles, 6 Mont. 519; Territory v. Milroy, 7 Mont. 559, cited.)</p>

Action upon an insurance policy. The cause was tried before Milburn, J. Plaintiff had judgment below. Statement of facts, prepared by the judge delivering the opinion.

Nonsuit granted and judgment rendered tliereon for defendant by Milburn, J. I. Defendant having failed to deny plaintiff’s allegations relative to the defendant being a corporation, it must be deemed to have admitted it.

Action upon an adverse claim to determine right to possession of mining premises. Nonsuit granted, and judgment entered for defendant by Milburn, J. After the evidence of the plaintiffs had been introduced and their case closed, the court of its own motion found for the defendant for the reasons: First. That the court did not have jurisdiction. Second.

<p>Taxation — Schools— Courtly commissioners — Levy to pay judgment. —Under tbe Constitution and statutes of this State, relating to revenue and schools, tbe commissioners of a county bave power to levy a tax on tbe taxable property of a school district within their county, to satisfy a judgment against tbe trustees of such district, where tbe funds under tbe control of such district are insufficient to pay tbe same, and mandamus will lie to compel such levy without a statute expressly authorizing county commissioners to mate an assessment for such purposes.</p> <p>Same — Mandamus—Assessmentroll—County commissioners. — Tbe board of county commissioners are responsible for tbe correctness of the assessment roll, which record should contain’the information essential to enable the board to levy a special tax upon the property of a school district, and it is therefore no defense to an application for a writ of mandate commanding the levy of a special tax to satisfy a judgment against tbe trustees of a district, that tbe amount of taxable property within such district cannot be ascertained from an inspection of the assessment roll.</p>

Action to vacate judicial sale. Judgment was rendered for defendant on demurrer by Buck;, J. I. The first ground presented for setting aside the sale was inadequacy of consideration so gross as to shock the conscience.

‘ Plaintiff had judgment below, and appeals from an order by Marshall, J., vacating an execution sale. Statements of facts, prepared by the judge delivering the opinion. This is an appeal from a special order, made after final judgment. The order was one setting aside an execution sale of personal property.

An injunction ivas granted by Marshall, J., restraining defendant from disposing of the property purchased at the execution sale, which was vacated in Bernard v. Herzoq, ante, page 519.

Actions to foreclose mechanic’s liens. Judgment was rendered for the plaintiffs below by Henry, J. An account is “a list of items of debts and credits with their respective dates.” (Burrill’s Law Diet. p. 22, title “Account.”) A reference to the liens shows that in no case do they contaiu an account. There is no detailed statement of the demands: only a statement setting down in a round sum what plaintiff claims as the balance due.

<p>Pleading — Statute of Limitations — Defects cured by answering over. — A complaint in an action on a note, appearing on its face to be barred by limitation, which alleges the indorsement on the note of the receipt of a certain sum, without a direct averment that the maker had paid any sum thereon, is bad on demurrer, but such defect is cured by answering over, and a trial of the issue framed by a denial of the payment purported by the indorsement.</p> <p>Negotiable Instruments — Dart payment — When holder must allow credit.— When the holder of a note receives from the maker thereof a draft, properly indorsed, with the understanding that he will collect the same and credit the payment on the note, he is bound to allow the credit, unless upon the failure of the drawee to pay the draft he give due notice of its dishonor to his indorser.</p>

<p>Elections — Duties of canvassing board — Regularity of nomination — Prohibition. — A county board of canvassers has no authority to inquire into the validity of a certificate of nomination of a nominee for office, and therefore, where the election returns are genuine and properly certified, prohibition will not lie to restrain the board from canvassing such returns and counting the vote cast for such person, as required by sections 4 and 6, pages 301, 302, Laws of the Second Session, upon the ground that the nomination was invalid.</p>

Conviction for an assault with intent to murder. Defendant was tried before Pemberton, J. The eleventh subdivision of section 287, Criminal Practice Act, provides that if a juror state that he has formed or expressed an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine such juror as to the ground of such opinion, and if it appear to have been founded upon reading newspaper statements, communications, comments, or reports, or…

Appeal from, Third Judicial District, Jefferson County-. Action to foreclose mechanic’s liens against mining premises. Judgment was rendered for plaintiffs below by Galbraith, J.

Action to determine priority of water rights, and for an injunction. The cause was tried before Galbraith, J. Statement of facts, prepared by the judge delivering the opinion.

Action upon a promissory note and for an accounting. Defendant’s demurrer to the complaint was sustained by Milburn, J. Statement of the facts, prepared by the judge delivering the opinion. The complaint sets forth the following instrument in writing:— “$15,000. Billings, Mont., December 18, 1889. “ Three years after date, for value received, I promise to pay Omar Hoskins fifteen thousand dollars, with interest at the rate of ten (10) per cent per annum from date.

Action for damages for personal injuries. Plaintiff appeals from an order by Benton, J., granting defendant’s motion to vacate a default and judgment. Statement of tbe facts, prepared by the judge delivering the opinion. The plaintiff appeals from an order setting aside a judgment by default, which judgment was in favor of plaintiff, and against defendant, for the sum of five thousand dollars and costs.

Action to restrain by injunction a sale of real estate by a city treasurer to enforce the collection of a municipal tax. Plaintiff appeals from an order by Buck, J., refusing to grant a temporary injunction. I. The legislative assembly has the right to revoke and repeal the provisions of charters granted to municipal corporations.

Action for purchase price of land. The cause was tried before Durfee, J. Plaintiff had judgment below. The facts shown by the testimony do not constitute a delivery of the deed from Helm. [Bank of Healdsburg v. Bailhache, 65 Cal. 327; Bishop on Contracts, § 359.) Delivery is a question of intent, and is often a question of fact for the jury.

Action for damages for conversion of mortgaged chattels by an officer. The cause was tried before Durfee, J. Plaintiff had judgment below. Statement of tne case prepared by the judge delivering the opinion. This action received consideration by this court on a former appeal, reported in 11 Mont. 451, wherein it was determined that certain merchandise claimed to have been covered by the mortgage in question was not subject thereto, for reasons set forth in that opinion.

<p>Appeals — Sufficiency of pleadings, —After verdict for defendant, matter of defense in an answer cannot be attacked for the first time on appeal for alleged insufficiency, where such matter was neither demurred to or denied in the replication. {Raymond v. Wimsette, ante, p. 551, cited.)</p>