Volume 14 — Montana Reports

Action for divorce. Plaintiff’s application for alimony pendente lite was granted by Buck, J. The affidavit of appellant is both evidence and a pleading in the nature of an answer, so far as the motion for alimony is concerned. The statement that the law of Russia prohibited the marriage of a minor is in the nature of a confession and avoidance.

<p> Appeal from Second Judicial District, Silver Bow County. </p> <p>Action for divorce. Decree was rendered for the plaintiff below by Pemberton, J.</p>

<p>Application for the disbarment of an attorney.</p>

Action to enjoin collection of, and to vacate, a judgment. The cause was tried before Milbuen, J., who rendered judgment for plaintiff;

Action on appeal bond: Judgment was rendered for the plaintiff below by Woody, J. I. As a general rule á surety may set up in an action against him any legal or equitable defense which would have been available to his principal, and may introduce any evidence tending to maintain such defense.

Ejectment. Judgment on the pleadings was rendered for the plaintiff below by Hunt, J; Statement of the case by Mr. Justice Harwood: There is but one question involved in this appeal, namely, what effect ought to be given to plaintiff’s plea of former adjudication, set up in bar of defendant’s cross-complaint interposed in this action?

<p>Appeals—Motion for change of venue—How reviewed.—An order denying a motion for a change of yenue is reyiewable on appeal without a bill of exceptions or a statement. If the papers on which the motion was made are properly certified to this court, as provided by section 438 of the Code of Civil Procedure, that is sufficient. (Granite Mountain Mining Go. v. Weinstein, 7 Mont. 346; Barber v. Briscoe, 8 Mont. 214; Arnold y. Sinclair, 12 Mont. 260, cited.)</p>

<p>Schemes—Appeal bond—Defenses.—A surety upon an appeal bond cannot maintain in bar to an action upon the bond that his cosurety was in reality the . principal, and that he had signed the bond upon the agreement of such cosurety to saye him harmless, and that the plaintiff, knowing said facts, had compromised with his said cosurety for one-half of the obligation, and released him from further liability.</p>

<p> Appeal from Third Judicial District, Deer Lodge County. </p> <p>Conviction for an assault. Defendant was tried before Brantley, J.</p>

<p> Appeal from Sixth Judicial District, Meagher County. </p> <p>On motion to dismiss appeal.</p>

<p>New Tbials—Time for taking appeal.—An appeal from an order granting motion for a new trial, not taken within sixty days from the filing of the order, as required by section 421 of the Code of Civil Procedure, will be dismissed on motion.</p> <p>Appealable Oedeb.—An order granting a motion for judgment on the pleadings is not appealable.</p>

<p>Appeal—New trial.—An order granting a new trial will not be reversed on appeal when, upon consideration of the evidence and assignments, no abuse of discretion appears.</p>

<p>Attachment— Waiver of lien—Appeal.—An attaching creditor does not waive his attachment lien by taking judgment and selling the attached property under execution, while an appeal from an order dissolving the attachment is pending and undetermined.</p> <p>Same—Same—Surviving partner—Statutory construction.—The amendment of section 229 of the Probate Practice Act (Sess. Laws 1889, p. 146), requiring a surviving partner to settle the affairs of the partnership without delay, “ treating all creditors alike, and giving no preference to any, except such as are made so by mortgage, pledge, or lien,” enacted prior to a sale of partnership property under execution, cannot be construed to abrogate an attachment lien acquired thereon priorato its passage, as such construction would render it retroactive.</p> <p>Cbeditob’s Binn—Supplementary proceedings—Judgment lien__A creditor’s bill to enforce a judgment lien against property claimed by defendants under a judicial sale need not be preceded by proceedings supplementary to execution, as such summary process is applicable to the discovery of property subject to execution, concealed or withheld by the debtor or others in collusion with him without pretense of substantial right, and not to cases where the attitude of the parties to the property in controversy is fully understood.</p>

<p>Attachment—Waiver of lien.—An attaching creditor does not abandon his attachment by taking judgment and selling under execution the attached premises while an appeal from an order dissolving the attachment is pending and undetermined.</p> <p>Appeal—Matters not reviewable.—A question of practice relating to the regularity of an appeal from an order dissolving an attachment, and which appeal was entertained and determined, will not be reviewed by this court several years later on an appeal by one attacking in a subsequent action the title of the attaching creditor.</p>

Action for trespass. The cause was tried before Galbraith, J. Plaintiff had judgment below. I. In the ease at bar eight individuals, not united in interest, attempted to locate eight placer claims, while they had made discovery of gold upon but one of such claims, or, in other words, gold was found in but one place on the entire tract.

Action for claim and delivery. The cause was tried before Buck, J. Defendant had judgment below. Two important allegations of the complaint are left wholly undenied, namely, that at the time the representations were made Barker was insolvent, and that he knew it. The investigation is, therefore, narrowed to two inquiries, Did Barker make the representations, and did plaintiffs rely on them?

Action to annul fraudulent conveyance. Judgment was rendered for plaintiff below by McHatton, J. I. It is a well-settled rule of law, that one who alleges actual fraud against another must prove the fraud as alleged, and that relief will not be granted upon the proof of constructive fraud, or upon proof of any other fraud than that alleged in the complaint.

On motion to strike from the record the statement on motion for a new trial. Where the language of an order is “ time extended to” a certain date the language is clearly exclusive of that date.

The cause was tried before Buck, J., who denied defendant’s motion for new trial.

Action on bond. The cause was tried before Benton, J. Plaintiff had judgment below. There is a great diversity of judicial opinion as to whether an action can be maintained against the sureties upon a bond where the principal has failed to sign. In the case of Ney v. Orr, 2 Mont. 559, this court held that a bond unsigned by the principal whose name appeared in the body of the instrument as such was an incomplete instrument.

Action upon an account. Judgment was rendered for the plaintiff below by Brantley, J. Plaintiff’s motion for new trial granted.

Action for damages against a sheriff for failure to execute a writ of attachment. Tried before Hunt, J., on agreed case. Defendant had judgment below. The main points to be decided are: Was a written prceeipe to- respondent necessary, in strict compliance with section 188 of the Code of Civil Procedure, to secure the service of garnishments under appellant’s writ of attachment?

Action for an accounting against an executor. The cause was tried before Buck, J., who rendered a decree for petitioners. I. We admit at the outset that an executor or trustee must make no profit or gain to himself of any kind, upon or out of the funds in his hands as such executor or trustee. It is so declared in our statute, and the statute but expresses in definite words the effect of numerous decisions.

<p> Appeal from, First Judicial District, Leivis and Clarke County. </p> <p>Action on bond. Judgment was rendered for the plaintiff below by Buck, J.</p>

<p>Original proceeding. Application for writ of mandamus.</p>

Plaintiff’s motion for the nunc pro tunc entry of the judgment rendered in Parrott v. Hungelburger, 9 Mont. 526, was denied by Durfee, J. I. When a judgment has been rendered in a cause it becomes the duty of the clerk to make a record entry of it in an official book kept for that purpose. (1 Black on Judgments, § 110; Keene v. Welsh, 8 Mont. 309; Code Civ. Proc.j § 30-1, Comp. Stats.) II.

Action against an administrator. J udgment was rendered for the defendant below by Milburn, J. The facts alleged in paragraph 2 of plaintiff's complaint, in connection with all the facts set forth in the other allegations of the complaint, work an estoppel against the defendant in this action, and against the estate of Leighton, to the extent that this defendant as administrator is not now at liberty to question the balance presented to him for allowance by the plaintiff…

<p> Appeal from Sixth Judicial District, Park County. </p> <p>Action on promissory note. Defendant’s motion to dissolve attachment denied by Henry, J.</p>

Action for damages. Judgment was rendered for defendant below by Hunt, J., on demurrer. Statement of the case by Mr. Justice De Witt: This action is against the defendant McNally as building inspector, and against his sureties upon his official bond as such inspector. Separate demurrers of McNally and his sureties, respectively, were sustained.

Action by board of medical examiners to revoke the license of a physician. On motion for an order fixing supersedeas bond and staying operation of the judgment pending an appeal.

Proceedings by creditors to contest an allowed ^ claim against an estate. The contested claim was disallowed by Armstrong, J. Statement of the case by the justice delivering the opinion: Nixon and Crave, creditors of the estate, protested against the allowance of the claim of Mendenhall, a creditor. The district court sustained the protest, and disallowed the Mendenhall claim. Mendenhall and the administrator appeal.

Action in rem. Judgment was rendered for plaintiff below by Armstrong, J. On motion to dismiss appeal.

Ejectment. The cause was tried before Armstrong, ,T. Plaintiff had judgment below. The court erred in permitting the reading from the records of deeds by the witness Vaill, and in allowing the certified copies to be filed, as the testimony showed the originals to be in. the possession of the plaintiff at the time of trial.

Ejectment to recover possession of town lots upon the surface of a mining claim. Held: and acting and claiming under no other title, will be presumed to have placed the improvements upon the premises upon the strength of that title, if not conclusive evidence of that fact, and the adoption of the acts of McCure by Sutton’s actions, which are only reconcilable with such adoption, under such circumstances likewise bind…

Action to enjoin the opening of a county road. Judgment was rendered for the defendants below by Armstrong, J., on demurrer to the complaint.

<p>Appeal—Motion dissolving attachment—Record.—A statement will not ba stricken from a record on appeal from an order overruling a motion to dissolve an attachment, upon the ground that it was not served within the time required by statute for the preparation and service of statements on appeal, where the statement, while not required on such an appeal, contained all the papers necessary to properly present for review the order complained of.</p>

Action for damages and an injunction. The cause was tried before William H. Bickford, Esq., special judge, sitting in.place of Woody, J. Plaintiff had judgment below.

Plaintiff’s motion to dismiss the appeal was grauted by Benton, J., sitting in place of Armstrong, J. Statement of the case by the justice delivering the opinion: This action was originally commenced in a court of the justice of the peace. Judgment was rendered in favor of plaintiff March 13,1893. Defendant in due time gave notice of appeal, and filed a bond upon appeal.

<p> Appeal from Seventh Judicial District, Custer County. </p> <p>Action to remove a cloud upon title.- Judgment was rendered for the plaintiff below by Minburn, J.</p>

Ejectment. The cause Was tried before Hunt, J. Plaintiff had judgment below. A deed of assignment containing a general description of the property assigned is sufficient to pass the title to real estate. In the following authorities deeds, mortgages, and assignments for the benefit of creditors have all been discussed. (Wilson v. Boyce, 92 U. S. 320-25; Brashear v. West, 7 Pet. 608-14; Pettigrew v. Dobbelaar, 63 Cal. 396; Bids v. O’Donnell, 3 Cal. 59; 58 Am.

Action to enforce dower. The cause was tried before Buck, J. Defendant had judgment below.

<p>Aepbobbiations—Transfer of unused portion to general fund.—When the legislature appropriates specific sums of money for each of the two ensuing fiscal years to be used in the construction of a state prison, and only a small portion of the fund is used during the first year, the unused portion of the appropriation did not thereby lapse so as to authorize the state auditor, at the expiration of the first fiscal year, to transfer it, together with the appropriation for the second fiBcal year, to the general fund of the state.</p>

<p>Appeal—Dismissal—Findings—Briefs.—An appeal will not be dismissed for failure of appellants to except to findings or to ask for further findings; nor to file briefs within the time required by the rules of this court.</p>

<p>Nonsuit.—AfterJ.the overruling of a motion for nonsuit plaintiff’s case is entitled to any support supplied by the evidence offered on behalf of the defendant. (Sweeney v. Gh'eat Falls etc. By. Go., 11 Mont. 531; McKay v. Montana Union By. Go., 13 Mont. 15, cited.)</p> <p>Meohanio’s Lien—Subcontractors.—In an action by subcontractors to foreclose a lien, proof that the owner paid the contractor without showing that the subcontractors received payment is insufficient to defeat the lien, as the owner in order to protect his property should have seen that the subcontractors were paid for their work within the contract price.</p>

Action by assignee of debt. Attaching creditor intervenes and defends. Judgment was rendered for plaintiff below by Galbraith, J. Statement of the case by Mr. Justice De Witt. In October, 1891, Hill et al., defendants, were indebted in the sum of two hundred and ninety-seven dollars and eighty-six cents, to one O. Rivard.

<p>New Tbiae—Filing statement.—.A statement on motion for a new trial which was not filed after settlement as required by subdivision 3 of section 298 of the Code of Civil Procedure will not be stricken from the record on appeal where it was filed with the clerk before settlement, used upon the hearing of the motion, and thereafter remained as a file of the court.</p> <p>Same—Settlement of statement.—A statement on motion for a new trial will not be stricken from the record upon the alleged ground that it was not presented to the judge who tried the case, or delivered to the clerk for the judge to settle and sign within ten days after service of the proposed amendments, where it appeared that after the statement and amendments thereto were filed both were presented to the judge and settled in the presence of respective counsel.</p> <p>Same—Settlement of statement—Waiver of objection.—The appearance and taking part in the settlement of a statement on motion for a new trial by counsel for respondent constitutes a waiver of objection to the sufficiency of appellant’s notice of intention to apply for the settlement thereof.</p>

Action to recover delinquent subscription to a fund. The cause was tried before Benton, J. Defendant had judgment below. I. The defendant does not claim to have revoked his subscription, if at all, prior to the time the opera-house company, relying upon the same, with others, had let the contract for the building of the opera-house and incurred liability thereby to an amount exceeding the total of the subscriptions.

Action upon an injunction bond. The cause was tried before Marshall, J., who denied defendant’s motion for a new trial. The complaint should state that the plaintiff has paid his attorney’s fee.

<p> Appealfrom First Judicial District, Lewis and Clarke County. </p> <p>On motion to dismiss appeal.</p>

Action in equity to redeem from a chattel mortgage. Defendant’s demurrer to the complaint was sustained by Mil-burn, J. I. A mortgagor may maintain his suit in equity to redeem from a chattel mortgage after conditions broken, and after possession is taken of the mortgaged property by the mortgagee or his assignee. (Jones on Chattel Mortgages, § 801; 8 Am. & Eng. Ency. of Law, 200; Heyland v. Badger, 35 Cal. 404; Brown v. Bement, 8 Johns. 96; 3 Am. & Eng.

<p>Pleadins—Counterclaim.—Under sections 89 and 90 of the Code of Civil Procedure, permitting a defendant, by answer, to plead an existing counterclaim as new matter constituting a defense, it is error for the court to permit defendant by amendment to plead acounterclaim maturing after the action is commenced.</p>

Action on a lease. The cause was tried before Buck, J., who directed a verdict for plaintiff. An agreement for a lease will not be enforced if its conditions are unperformed or broken by the landlord. (1 Taylor’s Landlord and Tenant, § 388; Tomilinson v. Day, 2 Brod. & B. 681.) A tenant whose rent is payable monthly under a general holding or a void parol lease will hold from month to month. (Hurd v. Whitsett, 4 Col. 77; Western Union Tel.

Action for forcible entry and unlawful detainer. The cause was tried before Dukfee, J. Plaintiff had judgment below. The evidence conclusively shows that the defendant, or his agents, were in constant possession of the property, although frequently absent for a short time. That during such absence George Plaisted went upon the premises. That upon his return the defendant again took possession, without force.

Ejectment to recover possession of town lots. The cause was tried before Buck, J. Plaintiff had_ judgment below. Some evidence was given from which it might be inferred that the deed may have been destroyed, but unless the evidence is conclusive of destruction, proof of search must be made.

<p>Original Proceeding. Application for writ of mandate.</p>

I. The act is constitutional. The right to engage in the occupation or business of keeping a beer hall, and engaging in the sale of liquor where women are employed for the purposes of the business therein carried on is not an inherent right of citizens. (Mg parte Christensen, 85 Cal. 213; Mx parte Sing Lee, 96 Cal. 359; 31 Am. St. Rep. 218; In re Maguire, 57 Cal. 605, 610; 40 Am. Rep. 125; Mx parte Filehlin, 96 Cal. 360; 31 Am.

Action for divorce. Defendant’s motion to vacate the judgment was denied by Durfee, J. Statement of the case by the court. This is an action for divorce, commenced by filing complaint March 23, 1892, in the third judicial district court in and for Deer Lodge county, the plaintiff alleging that he was a resident of that county. It appears that defendant was at the city of La Crosse, Wisconsin, at the time of the commencement of the action.

<p>Alimony—Order not reviewable on certiorari or habeas corpus.—An order requiring the payment of alimony by a defendant in a divorce case ia a j udgment from which an appeal will lie, and therefore neither certiorari nor habeas corpus are available to review the action of the court in imprisoning the defendant for contempt in disobedience of such order.</p> <p>Same—Remedy where party unable to pay.—One who has become unable to pay alimony adjudged against him in a divorce case may institute proceedings seeking a modification of the judgment under section 1004, division 5, Compiled Statutes, allowing the court from time to time to make such alterations in the allowance of alimony as shall appear reasonable and just.</p>

Eighth Judicial District, Cascade County. Conviction for larceny.

Action for accounting and to rescind a sale. The cause was tried before Du Bose, J. Plaintiff had judgment below. I. A member of a copartnership may, without the consent of his copartner, dispose of the partnership property for the purpose of discharging the partnership debts, there being no assets on hand with which such debts can otherwise be paid.

Defendants’ motion to vacate the judgment was granted by Benton, J. Judgment will not be set aside without affidavit of excusable neglect or inadvertence and also .of merits. (Lamb v. Gas-ton etc. Co., 1 Mont. 64; 3 Estee’s Pleadings, 362; Bailey v. Taaffe, 29 Cal. 424.) The only excuse respondents attempt to set up is the negligence of their attorney.

Special proceeding instituted before tlie state board of medical examiners to revoke defendant’s license to practice medicine and surgery. The board convicted defendant of unprofessional, dishonorable, and immoral conduct, and revoked his license. Defendant appealed to the district court. The cause was tried before Buck and Hunt, JJ., sitting concurrently, who rendered a judgment revoking defendant’s license.

<p>Physicians and Shegeons—Conviction for practicing without a license—Appeal. A conviction for practicing medicine without a license will be set aside where it appeared that the defendant’s license had been revoked by the state board of medical examiners and by the district court, and that defendant’s conviction was had pending an appeal to the supreme court, which reversed the judgment of the district court revoking his license.</p>

Original Proceeding. Certiorari to review a judgment imposing both fine and imprisonment for an offense for which only a fine was authorized.

Original Proceeding. Application for writ of prohibition to restrain a district judge from trying a proceeding to remove an administratrix. Judge Woody was disqualified to act as judge in the matter. He has a claim against the eat ate, and is interested therein. (Hawes on Jurisdiction, § 35; Stochwell v. Township Board etc., 22 Mich. 342; Pearce v. Atwood, 13 Mass. 340; Hall v. Thayer, 105 Mass. 219; 7 Am.

Appeal from Second Judicial District, Silver Bow County. Conviction for sale of liquor in a place where women are employed. Defendants were tried before Speer, J.

Action to enforce tax lien upon personal property. Tried before Hunt, J., upon an agreed case. Plaintiff had judgment below. Taxes become a lien on property only by force of positive and direct legislation. (State v. O’Neill, 55 N. J. 1/. 58.

Appeal from, Second Judicial District, Silver Bow County. Conviction for sale of liquor in place where women are employed. Defendants were tried before Speer, J.

Appealfrom, First Judicial District, Lewis and Clarke County. Action upon contract. Judgment was rendered for plaintiff below by Hunt, J. Statement of the case by the justice delivering the opinion: This is an appeal from the judgment, upon which the only contention made is that the complaint does not support the judgment.

Original proceeding. Application for writ of mandate to compel a district court to entertain a petition to open a private road across a mining claim.

Conviction for violation of a city ordinance. Defendant was tried before Armstrong, J. The complaint is insufficient in charging that the defendant did transact and engage in the business or profession of a lawyer. The offense is charged in the alternative or disjunctive manner. To say that one transacts and engages in the business of a lawyer is not synonymous with saying that one transacts and engages in the profession of a lawyer.

Action to determine priority of water rights. The cause was tried before Buce:, J., who rendered a decree for plaintiffs.

Foreclosure. Demurrer to answer of defendant Mantle was sustained by Buck, J. Statement of the case by the court:' The sole question involved in this appeal is whether the allegations of the separate answer on the part of the defendant Mantle are sufficient to constitute a defense.

<p>Water Rights—Judgment—Findings.—In an action to determine priority of water rights findings that a defendant became entitled to his right by an appropriation at a given date, that plaintiff had obtained a right to a less amount of water by a later appropriation, and that plaintiff had held the amount of such appropriation through adverse possession as against defendant, are inconsistent, and will not support a judgment awarding plaintiff the amount of his later appropriation.</p>

Action to recover the value of stock sold to defendant, and to recover tbe amount of plaintiff’s note which defendant had assumed aud agreed to pay. The cause was tried before Hunt, J. Plaintiff had judgment below. I. The first question presented for the consideration of the court is, Are the allegations of the complaint, upon which the first cause of action is based, supported by the evidence?

Judgment dismissing the writ was rendered by Mabshall, J. Statement of the case by the justice delivering the opinion: This case comes here on an appeal from a judgment of the district court which dismissed an application for a writ of certiorari against a justice of the peace, and affirmed a judgment of that justice.

The defendant, Robert A. Anderson, informed against as Robert Field, was convicted of murder in the first degree. Defendant’s motion for a new trial was denied by Henry, J. I. The declarations of the juror Rich as to what occurred in the jury-room are inadmissible to impeach the verdict. (.State v. Richmond, 42 La. Ann. 299; State v. McNamara, 100 Mo. 100; Palmer v. State, 65 N. H. 221; Peoples. Stimer, 82 Mich. 17; Bevere v. State, 5 Ohio Cir. Ct. 378; 12 Am. & Eng.

<p> Appeal from Tenth Judicial District, Chotean Covmty. </p> <p>Conviction for murder in the first degree. The defendant was tried before Du Bose, J.</p>

Action to foreclose a mortgage. The cause was tried before Ruck, J. Plaintiff obtained a decree adjudging defendant’s title by foreclosure sale under a mechanic’s lien, subsequent to plaintiff’s mortgage, both as to the improvement as well as the land.

Action on promissory note. Judgment on the pleadings was rendered for the plaintiff below by Henry, J. The complaint states enough to… Held: Haight v. Joyce, 2 Cal. 65; 56 Am. Dec. 311; Palmer v. Goodwin, 5 Cal. 459; Poorman v. Mills, 35 Cal. 118; 95 Am. Dee. 90; James v. Chalmers, 6 N. Y. 209; Magee v. Badger, 34 N. Y. 247; 90 Am. Dec. 691; Welch v. Sage, 47 N. Y. 146; 7 Am. Rep. 423; Seybel v. Nat. Currency Bank, 54 N. Y. 288; 13 Am. Rep. 583; Mechanics and Traderd Nat.

Original proceeding. Application for writ of certiorari to review action of the eighth judicial district court in appointing a receiver of… Held: bears a close resemblance to a creditor’s bill for the enforcement of a judgment, and there would be no impropriety in granting an injunction and a receiver upon the same grounds as in cases of creditors’ bills.” (High on Receivers, § 409.) “If a creditor has a lien or charge upon the property of the debtor, even though his demand…