Volume 13 — Montana Reports

<p>Counties — Appeal from allowance of claim by county commissioners — Warrants— Mandamus. — Where a tax-payer has taken an appeal to the District Court from an allowance by a board of county commissioners of a claim against a eonnty, as permitted by sections 764, 765, fifth division of the Compiled Statutes, and thereafter a judgment by default is rendered by such court upon the failure of the board to appear, adjudging such claim illegal and setting aside the allowance of the same, without a trial or inquiry of any character respecting its merits, such judgment is unauthorized and constitutes no defense to an application for a writ of mandamus to compel the payment by the county treasurer of a warrant issued in payment of such claim, as the statute relating to appeals in such cases, not requiring notice of the appeal to be given to the holder of the warrant, contemplates that the District Court will review the proceedings of the board of county commissioners. Habwood, J„ concurs in the issuance of the writ, holding that the judgment declaring the claim void solely for the default of the board of county commissioners was unwarranted, as such board, having no interest in supporting the claim, was not the real party in interest or the proper party respondent or defendant. De Witt, J., concurs in the issuanoe of the writ, holding that the District Court acquired no jurisdiction of the appeal, in that the notice of appeal required to be served upon the clerk of the board was only filed with him, and that such filing was not a service. (Citing Teiritory v. Hanna, 5 Mont. 246; State v. Gibbs, 10 Mont. 210.)</p>

<p>New Teial — Notice of intention. — Where a notice of intention to move for anew trial fails to state whether the motion will be made upon affidavits, or the minutes of the court, or a bill of exceptions, or a statement of tbe case as required by section 298 of the Code of Civil Procedure, an appeal from an order denying the motion will be dismissed in the absence of a waiver of such defect by the adverse party.</p> <p>Same — Notice of motion— Waiver of defective notice. —The mere appearance of respondent’s counsel when a motion for a new trial based upon a defective notice is heard does not amount to a waiver of the defects apparent in the notice, and in the absence of anything in the record showing a waiver thereof, an appeal from' an order denying the motion will be dismissed.</p> <p>Claim and Deliveey — Pleading—Statute of Frauds. —Where both parties in an action of claim and delivery alleged in the answer and replication the existence of an agreement concerning the cutting of grass upon plaintiff’s land, and set forth the terms of such agreement without substantial difference, raising an issue only as to whether the defendant cut the grass within a reasonable time, an objection by plaintiff to the reception of proof as to any agreement whereby defendant claimed the hay, in that such agreement was not in writing and being for an interest in land was void under the Statute of Frauds, was properly overruled, for even if such objection were tenable under pleadings raising an issue thereon, it could not be interposed by plaintiff after admitting the agreement by verified replication.</p>

Appeal frCfm, Seeond Judicial District, Silver Bow County. Action for damages for personal injuries. Judgment was entered on a verdict directed for defendant by McHatton, J. On motion to strike testimony from the record on appeal.

Original proceeding. Application for alternative writ of, mandate to compel the county board of canvassers of Choteau County to reconvene and canvass and count the election returns from Box Elder Precinct and to deliver to relator a certificate of his election as a member of the legislative assembly.

Appeal from Eighth Judicial District, County of Cascade. Action to enjoin sale and delivery of city bonds. Tried on agreed case before Benton, J. Defendant had judgment below.

Action on contract. The cause was tried before Hunt, J. Plaintiff had judgment below. Statement of facts prepared by the judge delivering the opinion. In December, 1886, the defendant, Albert Kleinschmidt, and one Henry Klein were interested in a contract for the construction of the Helena, Boulder Valley and Butte Railroad. Each of said persons owned one sixth of that contract.

Action for wrongful attachment. Judgment was rendered for defendants below by Henry, J. White and Platt were proper parties defendant (Code Civ.

Action on an account and to foreclose mechanic’s lien. Judgment on demurrer was rendered for the defendants below by Benton, J. Statement of facts prepared by the judge delivering the opinion. By this action it is sought to obtain a judgment for an accouut, and to foreclose a lien for lumber and material for a building, supplied by the plaintiff. The defendant Gelsthorpe is the owner.

Action on promissory note. Judgment was rendered for the plaintiff below by McHatton, J. Statement of facts prepared by the judge delivering the opinion. This is an action to enforce payment of a promissory note.

Action to foreclose mechanic’s lien. Judgment was rendered for defendants below by Benton, J. The objection that “the statutes of Montana, under which this lien is supposed to have been filed, do not provide a lien for a sub-coutractor unless that sub-contractor has a contract relation with the owner of the property,” was fully decided by this court in Merrigan v. English, 9 Mont. 113, and needs no further discussion. The lien account was sufficiently itemized. {School Dist.

Ejectment. The cause was tried. before Armstrong, J., without a jury. Defendants had judgment below. There was no delivery of the deed to the property in question to the grantees, or either of them, prior to the death of the grantor, or at all, as shown by the evidence. (Devlin on Deeds, §§ 79, 283; Fisher v. Hall, 41 N. Y. 423; Prutsman v. Baker, 30 Wis. 644; 11 Am.

Action to set aside an assignment made for the benefit of creditors. Assignee’s demurrer to the complaint was sustained by Benton, J.,'and judgment for costs rendered against plaintiff.

Conviction for uttering a forged instrument. Defendant was tried before Armstrong-, J. Statement of facts prepared by the judge delivering the opinion. This is an appeal by the defendant from a judgment upon a conviction for uttering, publishing, and passing an alleged forged instrument.

<p>Cbihiinai. Law — Larceny by bailee of horse — When not punishable as grand larceny — Statutory construction. — The bailee of a horse, who converts it with intent to steal, and is tried and convicted under section 93 of the Criminal Laws, providing that if any bailee of property convert the same to his own use with intent to steal, he shall be guilty of grand or petit larceny according to the amount or value of the property converted, can not be punished for grand larceny where the value of the horse as alleged is less than fifty dollars, although section 78 of the Criminal Laws makes the stealing of a horse of whatever value grand larceny. Said statutes being highly penal the rule of strict construction applies, and, in the absence of any qualifying words in section 93 as “nature” or “character” of property, so as to make the offense and punishment the same under both sections, said section 93 is susceptible of no construction under which the defendant could be convicted.</p>

Conversion. The cause was tried before MoHatton, J. Plaintiff had judgment below. Statement of facts, prepared by the judge delivering the opinion. This action is for damages for the alleged conversion of personal property. The plaintiff claimed to own the property by purchase from Brennan and Company.

<p>. New Trial — Sufficiently of evidence — Abuse of discretion. — It is an abuse of discretion for the trial court to set aside a verdict for plaintiff and grant a new trial for insufficiency of evidence in a suit to recover a balance of an account, where it appeared that the account had been running over a year during which time numerous payments were made; that defendant was a sole trader and that the goods were delivered to and consumed by her employees at her places of business, which facts were not disputed, except that the payments were by her husband who appeared from the evidence to be acting as her agent.</p>

Action to annul sheriff’s deed. Defendants’ demurrer to the complaint was sustained by Henry, J. Reversed. The judgment rendered against appellant in the case of Sullivan v. Choate, was a nullity, because the seal of the district court was not affixed to the summons.

Writ was granted by Galbraith, J. Statement of facts prepared by the judge delivering the opinion. Held: such election constituted no defense to the writ: He consequently issued the writ. From the judgment issuing the same this appeal is taken.

Action for an accounting and injunction. Defendant’s motion to dissolve the injunction was refused by Galbraith, J. Statement of facts prepared by tbe judge delivering the opinion. This appeal is from an order refusing to dissolve an injunction.

Action upon an injunction bond. Judgment was rendered for the defendants below by Armstrong, J. Statement of facts, prepared by the judge delivering the opinion. The plaintiff brought this action to recover against the defendants damages for the alleged wrongful issuance of an injunction.

<p> Appeal from, Seventh Judicial District, Custer County. </p> <p>Conviction for murder in the first degree. Defendant was tried before Milburn, J.</p>

<p> Appeal from Seventh Judicial District, Yellowstone County. </p> <p>Conviction for murder. Defendant was tried before Mil-burn, J.</p>

Action for conversion. Judgment was rendered for plaintiff below by Buck, J. I. The court below held that section 1439, the so-called Emancipation Act, repealed the Statute of 1872. It is true that section 1440 declares as follows: “All laws or portions of laws inconsistent with the foregoing (§ 1439) are hereby repealed”; but that does not of itself repeal the statutes in question.

Action for damages for creating a nuisance. The cause was tried before McHatton, J. Verdict for plaintiff for one dollar, for which with costs judgment was rendered.

Conversion. Judgment was rendered for the plaintiff below by Dureee, J. The objection to the judgment was wholly as to the sufficiency of the affidavit for publication of summons. If the affidavit is good, assuming that it can be considered on a collateral attack, then there is a-good judgment; if bad, then an invalid judgment.

Action to compel reconveyance of land and for an accounting for profits. The cause was tried before McHatton, J. Plaintiff had judgment below. Statement of facts, prepared by the judge delivering the opinion. This action was brought by plaintiff to compel the reconveyance of real estate from defendant to her, alleged to have been obtained from plaintiff by fraud, also for an accounting for profits realized by defendant in sales of portions of the premises.

Action upon an account. The cause was tried before Buck ánd Hunt, JJ., sitting concurrently. Plaintiffs had judgment below. Statement of the case prepared by the judge delivering the opinion. The plaintiffs brought this action to recover judgment for one thousand two hundred and eighty-three dollars and fifty cents, on account of goods sold and delivered to defendant, a corporation. There was an unexpired credit upon the account.

Claim and delivery. The case was tried before McHatton, J., without a jury. Plaintiffs had judgment below. Reversed. Statement of facts prepared by the judge delivering the opinion; - This action is in replevin for the recovery of certain barrels of whisky. The plaintiffs are creditors of defendant Cordell. Defendant Sutton is the assignee for the benefit of the creditors of said Cordell.

Action for an injunction. An order dissolving the injunction was granted by Buck, J. I. The contract gave to the appellant the exclusive right to pave and curb Main street in front of the lots of defendants, and having this exclusive right, manifestly his remedy was an injunction, provided his contract was valid, and he had no adequate remedy at law. ■ II. The allegations of the complaint are to be taken as true.

Plaintiff’s application for a writ of prohibition commanding a justice of the peace to refrain from hearing a motion to set aside a default and judgment… Held: however, that such courts could not set aside a judgment by default. (See People v. Lynde, 8 Cow. 133.) Under the same statute it was held that although a court of record could correct a mistake in a judgment entered, that a justice of the peace could not do so. (See People v. Delaware Com. Pleas, 18 Wend. 558.) II.

<p>Appeal — Record-Failure to sliow error. — A judgment will be affirmed where there is nothing before the appellate court but the judgment-roll, upon which no error appears or is suggested, and a bill of exceptions, which is merely a skeleton containing a direction to insert matter therein, which is neither inserted nor in the record by reference</p>

<p> Appeal from Eighth Judicial District, Cascade Comity, </p> <p>Action for damages. The cause was tried before Benton, J. Plaintiff had judgment below.</p>

<p> Appeal from First Judicial District, Lewis and Clarice County. </p> <p>Action on promissory note. Judgment was rendered for plaintiffs below by Buck, J.</p>

Action for an injunction. Defendant’s demurrer was sustained by Buck, J. I. The defendant having purchased the old company’s property and franchise, and assumed the contract while plaintiffs were using tlieir service-pipe thereunder, is directly bound by the obligations of such contraet. (Coffman v. Robbins, 8 Or. 278, 284; Pomeroy’s Specific Performance of Contracts, § 493.) II.

Action for the price of goods sold. The cause was tried before Henry, J. In addition to the absolute right of a wife to pledge her husband’s credit for the purchase of necessaries, there is given to the wife the presumptive agency to procure such articles as are usual and proper for her supervision of their domestic affairs.

Original proceeding. Application for a writ of certiorari to review action of justice of the peace in declaring a defendant’s bail forfeited. Statement of the case by Mr. Justice Harwood.

The defendants were tried before Milburn, J. Statement of the case by the justice delivering the opinion: This is an appeal by the state. The defendants were acquitted. The state excepted to an instruction given by the court, and, reserving the question of law, now prosecutes this appeal. (Criminal Practice Act, § 396.) The information was for burglary.

Conviction for larceny. The defendant was tried before Woody, J. Statement of the case by the justice delivering the opinion: The appellant, the defendant, appeals from a judgment rendered upon a conviction on the charge of grand larceny. Upon the trial the prosecuting witness was absent. His name was Charles Peterson. He was the person who owned the money which was the subject of the larceny, and from whose possession it was taken.

Appeal front First Judicial District, Lewis and Clarke County. Action to quiet title. Judgment on the pleadings in favor of plaintiff was rendered by Buck, J. Statement of tlie case by Mr. Justice Harwood.

Action to foreclose mechanic’s lien. The cause was tried before Durfee, J. Defendants had judgment below. Statement of the case by Mr. Justice Harwood. — This action was brought to obtain judgment, and foreclose a lien to enforce payment, for materials furnished and used in the construction of a certain house in the village of Champion, Deer Lodge county.

Action for personal injuries. The cause was tried before Benton, J., who directed a verdict for defendant. I. It was error for the trial court to allow respondent to amend its amended answer while the jury was being impaneled. Respondent filed no affidavit, showed no cause for amending, gave no notice to the adverse party, and no terms were imposed as a condition therefor. (Code Civ.

Action on bill of exchange. Demurrer to defendant’s answer was sustained by Buck, J., and judgment rendered for plaintiff. The other facts fully appear in the following statement by De Witt, J. The defendant appeals from a judgment rendered upon the sustaining of plaintiff’s demurrer to the answer. The complaint alleges that on November 27, 1889, defendant accepted a bill of exchange drawn by the plaintiff for $850, at thirty days from that date.

<p>Appeal — New trial. — When an appeal is taken from the entire judgment and order of the trial court refusing a new trial, a reversal of the judgment and order requires a new trial of all the issues as if the case had never been tried.</p> <p>Appeal — New trial — Conflicting evidence. — The ruling of the trial court upon a motion for a new trial will not be disturbed on appeal where the evidence is conflicting and no abuse of judicial discretion appears upon a consideration of the whole record.</p>

Habeas corpus by a wife to obtain possession of her infant child from her husband. Judgment was rendered for relator by Armstrong, J. I. The court below erred in giving the custody of the child to its mother as against the father. (Church on Habeas Corpus, §§ 113, 438-54; Matter of Wollstonecraft, 4 Johns. Ch. 79; Commonwealth v. Smith, 1 Brewst. 347; State v. Bratton, 15 Am.

Action for usurpation of office. The cause was tried before Armstrong, J., sitting in place of Benton, J., disqualified. Judgment for respondent on nonsuit. Held: would you have known of it? A. I think I might. Q,. Were you a member of the county committee that called it? A. No, sir. Q. Were you a member of the county committee that did appoint. A. No, sir. Q,. Did the convention appoint a county committee?

Original proceediug. Application for writ of certiorari to review action of district court in punishing relator for contempt. Statement of the case by the justice delivering the opinion: This is an application for a writ of certiorari to review the action of the fourth judicial district court in fining relator for an alleged contempt of court. Relator was attached for contempt, and a hearing was had, at which evidence was introduced.

Action to quiet title. Judgment was rendered for the plaintiff below by McHatton, J. Statement of the case by the justice delivering the opinion : This action is to quiet title as to the two thirty-seconds undivided interest in the Yellow Jack mining claim. The defendants Schwab, Cummings, Hauser, and Fitchen were owners of the claim, and made application for patent therefor.

Action on bond. Judgment on the pleadings was rendered for the plaintiff' by Hunt, J. Statement of the case by the justice delivering the opinion. Tliis action is commenced by plaintiff, as constable, against the defendants, who were sureties on an undertaking to indemnify plaintiff, as constable, for holding property which he had seized on an attachment, and which was claimed by persons other than the defendant in the attachment suit.

Conviction for practicing medicine without a certificate from the board of medical examiners. Defendant’s motion to retax costs was granted by Galbraith, J. Statement of the case by the justice delivering the opinion. This is an appeal by the state on the question of law reserved. (Crim. Proc. Act., § 396.) Defendant pleaded guilty on an information charging him with practicing medicine without a certificate from the state board of medical examiners.

Original proceeding. Application for writ of mandate to compel the district court to reinstate an appeal which it had dismissed.

Action by judgment creditor against garnishee. Judgment was rendered for the defendant below by Hunt, J. Statement of the case by the justice delivering the opinion. The plaintiff herein is a judgment creditor of the defendant Henry Neill. It brings this action to obtain moneys which it claims are in the hands of defendant, the board of county commissioners, and which belong to its judgment debtor, Henry Neill.

Conviction for conspiracy. Defendants were tried before Milburn, J. Statement of the case by the justice delivering the opinion:. William Davis, John Donnelly, and Patrick Reddy were convicted upon an information charging them, jointly, with the misdemeanor of conspiracy. (Crim. Law, § 132.) Davis alone appeals from the judgment. The appellant demanded a separate trial. This was denied by the court, and the defendants were tried jointly.

Defendant’s motion for a new trial was granted by McIIatton, J. Statement of the case by the justice delivering the opinion. The plaintiff appeals from an order granting a new trial. The verdict and the judgment were in favor of the plaintiff for $167.63. The defendant moved for a new trial upon one ground only, to wit: “ Misconduct of the jury.” (Code Civ.

Appeal from Fourth Judicial District, Missoula County. Action for forcible entry and unlawful detainer. Judgment was rendered for the plaintiff below by Woody, J.

Prosecution for costs. The cause was tried before Durfee, J., who granted defendant’s motion in arrest of judgment.' Statement of the case by the justice delivering the opinion. This is an appeal by the state from the order of the district court arresting judgment rendered for costs against a complaining witness in a prosecution for a misdemeanor. (Crim. Pr. Act, § 394.) The case originally was State v. Slaughter, for petit larceny, commenced and tried in the justice’s court.

Conviction for assault. Defendant was tried before Benton, J. Statement of the case by the justice delivering the opinion.

<p> Appeal from Fourth Judicial District, Missoula County. </p> <p>On motion to strike from the transcript the statement on appeal.</p> <p>Motion denied.</p>

Original proceeding. Application for writ of certiorari. Judgment for respondent. Statement of tlie case by the justice delivering the opinion. This is an application for a writ of certiorari against the justice of the peace to review his action in giving judgment on the pleadings in the case of H. J. Simons, administrator of the estate of A. O. Simons, against J. A. Carter, the relator herein.

Ejectment. PJaintiff Lad judgment below on default. Defendant’s motion to open default was denied by Durpee, J. Statement of the case by Mr. Justice Harwood. This case stands for review on appeal from the judgment, and from an order entered after judgment overruling appellants’ motion to set aside and vacate the judgment and open the default therein entered against defendants.

Action for personal injuries. The cause was tried before Dtjreee, J. Defendant had judgment below. Statement of the case by the justice delivering the opinion. The pleadings and contentious in this case are so fully set forth in the reports of the case on the former appeals that it is not now necessary to do more than refer to those reports.

<p>Certiorari to review action of second judicial district court in appointing a receiver for relator’s property. Order was made by McHatton, J.</p>

<p>Habeas Coopus — Costs.—One who invokes the writ of habeas corpus, without meritorious cause, may be properly taxed with the costs of the proceedings under § 506 of the Code of Civil Procedure. (State ex rel. Newell v. Newell, ante, page 302, cited.)</p>

On motion of the attorney general for an order requiring the clerk of the supreme court to file the transcript in an appeal by the state without first receiving the fee therefor.

Original proceeding. Application for writ of Ikibeas corpus and certiorari in aid thereof to review proceedings of district court, resulting in the commitment of relator for contempt in refusing to obey an order for the payment of alimony.

Defendant’s motion to dissolve the attachment was denied by Armstrong, J. The defendant should have had an opportunity to either give a bond or deposit the money to prevent a levy of the writ of attachment. The writ should have been served upon the defendant before its levy.

Plaintiff’s motion for leave to issue execution was granted by Milburn, J. I. The fact that the execution was not returned can, of course, be shown, but the fact as to its being satisfied, or otherwise, can only be shown by the return of the officer, which is conclusive as between the parties. (7 Am. & Eng.

Action for debt. Judgment was rendered for tlie plaintiff below by Hunt, J. The common-law disability of husband and wife to enter into contracts had not been removed previous to the passage of the act approved March 3, 1887 (Comp. Stats. Mont., § 1439), on which plaintiff relies. (Herron v. Frost, 9 Mont. 308.) Section 1439 does not, nor was not intended to, apply to or regulate the contract rights of married women.

Defendant’s motion to vacate and set aside the judgment was denied by Armstrong, J. I. No statute in any jurisdiction authorizes the taking of more than one final judgment in any case, and without some statutory authority the power of the court to render a judgment is exhausted after it has been once exercised. It is not necessary, however, to establish by authority the invalidity of the judgment of the district court of Gallatin county, rendered by Judge Henry.

Action for money had and received. Judgment was rendered for the plaintiff below by Henry, J. Statement of the case by the justice delivering the opinion. This action is brought by plaintiffs to recover money alleged to have been had and received by defendants, and belonging to plaintiffs. The facts are as follows: Mentor Wetzstein, the husband of Sophia, and Allan R. Joy, the husband of Hattie M., are joined as parties with their respective wives.

Foreclosure. Judgment was rendered for the plaintiff below ■ by Benton, J. Statement of the case by Mr. Justice Harwood.

Original proceeding. Application for writ of mandate to compel the state auditor to issue a warrant for the amount of a reward offered for the conviction of criminals.

<p> Appeal from Fourth Judicial District, Missoula County. </p> <p>Ejectment. Judgment was rendered for plaintiff below by Woody, J.</p>

Plaintiff’s motion for a new trial was denied by Benton, J. On appeal appellant’s motion to strike supplemental transcript from the files was denied, and respondents’ motion to strike tbe statement on motion for a new trial from the record was granted.

Appeal front Ninth Judicial District, Gallatin County. Action to recover purchase price of land. Plaintiff’s demurrer to the answer was sustained by Armstrong, J. Statement of facts prepared by the justice delivering the opinion. This action is brought to recover five hundred and sixty-seven dollars and forty cents, with interest, paid by respondent to appellant upon a certain contract for the sale of lands.

Ejectment. The cause was tried before Armstrong, J., without a jury. Defendants had judgment below. Statement of the case prepared by the justice delivering the opinion.

<p> Appeal from Fourth Judicial District, Missoula County. </p> <p>Claim and delivery. The cause was tried before Marshall, J. Plaintiff had judgment below.</p>

<p>New Tkial — Notice of intention— Withdrawal of motion. — Upon a motion for a new trial tlie notice of intention to move is the foundation of the proceeding, and a formal written motion is not essential; therefore, where a written motion has been made, its withdrawal and the substitution of another after the time . for filing a notice had expired does not constitute, in effect, a withdrawal of the notice of intention to move so as to operate as an abandonment of the proceeding. (Wallace v. Lewis, 9 Mont. 399; Fabian v. Collins, 2 Mont. 510, cited.)</p> <p>Same — Consent to order — Construction of stipulation. — The submission of a motion for a new trial by consent, without argument, accompanied by a statement by the moving party that the court might pass upon said motion then and there without taking time to consider the same, and that so far as defendant was concerned the motion might then and there be overruled, is not such a consent to the order ovenuling the motion as would justify this court in refusing to review the order as one entered by consent of the party affected thereby, where It appeared that the remarks were made in view of the fact that the questions involved had theretofore been argued and considered, and appellant understood his time for appealing was about to expire.</p>

Forcible entry and detainer. Judgment was rendered for the defendant below by Buck, J., on motion for nonsuit. A lorcible entry and detainer is a violent taking and keeping possession by one, of any lands and tenements occupied by another, by means of threats, force, or arms and without authority of law. (8 Am. & Eng. Ency of Law, 101.) The law implies that an unauthorized entry upon the premises of another is made with force, and no evidence of such force is required.

Action to determine the right of possession to mining property. The cause was tried before McHatton, J. Plaintiffs had judgment below. I. The court erred in overruling defendant’s motion to strike out the amended complaint.

Indictment for murder. Defendant’s motion for a new trial was granted by Henry, J. I. Tiie third subdivision of section 396 of the third division of the Compiled Statutes of Montana, which relates to appeals by the territory in criminal cases upon questions of law reserved by the state, is in contravention of the constitution of the United States and of the state of Montana, which provides that no person shall be twice placed in jeopardy for the same offense.

Relator’s application for a writ of habeas corpus was denied by Henry, J. Statement of tbe case by Mr. Justice De Witt. Relator in this case is the same person who is respondent in the case of State v. Northrup, ante, page 522. See that case for the general facts. Relator was arraigned November 34, 1892, upon an information charging murder. On November 23d he was tried, and the jury disagreed. Relator was then remanded to the custody of the sheriff, respondent herein.

Action to enjoin collection of taxes. Judgment was rendered for the defendants below by Hunt, J. Statement of the case by the justice delivering the opinion: This action was brought by the plaintiff against the county of Lewis and Clarke, and the treasurer thereof, praying for a judgment that the assessment of general taxes against certain real estate of plaintiff, and the levy of said taxes, be adjudged to be void, and that the said treasurer be enjoined from selling said…