Volume 15 — Montana Reports

Actiou for damages for death by wrongful act. Judgment was entered for defendant on nonsuit by Benton, J. Plaintiffs were as much entitled to show the condition of the ditch as to show that Soyer was killed in the ditch. (Comp. Stats., div. 5, § 642, subd. 1.) All the acts and declarations of deceased touching birth of children and his marriage were admissible, and were the best evidence of the fact. (Comp.

Action for divorce. Defendant was committed for contempt for nonpayment of alimony and attorneys’ fees. His petition to vacate the order requiring such payment was dismissed.

ORIGINAL Proceeding. Application for writ of mandate to compel a county clerk to file certificates of nomination for the office of county commissioners, prior to general election of 1894. Held: and that at such assemblage the three relators were duly nominated for.such office of county commissioner. The formal acts of making the certificate of nomination by the proper officers of the convention are set forth in the petition.

Action to foreclose mechanic’s lien. The cause was tried before Showers, J. Decree for plaintiff. The answers stated a defense to the right of plaintiff to a lien. (Pelton v. Minah Con. Min. Co., 11 Mont. 281; Bloch v. Murray, 12 Mont. 545.) Under the Montana statute no contract of a tenant can give the right of lien.

<p>Constitutional Law — Special legislation — Location of seat of government. — The act of March 6,1891, entitled “An act providing for the submission of the question of the permanent location of the seat of government,” operates alike and uniformly upon all persons and places brought within its purview, and is not open to the objection that it is special legislation, and, therefore, unconstitutional and void.</p> <p>Mandamus — Performance of ministerial duties. — where an officer’s duty is a simple, defined duty, purely ministerial, arising under circumstances admitted or proved to exist, and imposed by law, and he refuses performance in advance of the time fixed by law therefor, mandamus will at once lie to compel a performance at the proper time; and the court will not wait to determine whether or not he should perform until some future time when litigation arose, and when it was too late to require the performance of the defined duty. (Hab-wood, J., dissenting.)</p>

Appeal from First Judicial District, Lewis and Clarice County. Ejectment to recover possession of town lots. The cause was tried before Buck, J. Plaintiffs had judgment below.

ActioN for the specific performance of a contract. Held: not entitled to specific performance, the court will retain the. action for the purpose of allowing him compensation.

Bastaedy proceeding. The cause was tried before Heney, J. Defendant had judgment below. Statement of the case by the justice delivering the opinion: This is a proceeding brought under chapter 11 of the General Laws, entitled “Bastards,” seeking to charge respondent with the paternity of the bastard child of relator, and for the relief provided in said chapter 11. On a trial in the district court verdict and judgment were for defendant. Pelatrix appeals from the judgment.

ORIGINAL proceeding. Application for writ of certiorari, and also for writ of habeas corpus. Action of the court below ordered to be annulled, and the petitioner in the writ of habeas corpus to be discharged from custody. The failure to file accounts was not a cause for the removal or suspension of relator as executrix. (In re Moore, 83 Cal. 586; Cleland v. Bideman, 5 La. Ann. 564; Succession of Head, 28 La.

<p>Appealable Obdek — Taxation of costs. — An order entered on motion to retax the costs of an appeal to the supreme court upon return of the remittitur is a special order made after final judgment, and therefore appealable. (Bader v. Nottngliam, 2 Mont. 157; Orr v. Haskell, 2 Mont. 350; First Nat. Hank v. Neill, 13 Mont. 377, distinguished.)</p>

Eoreclosure of mortgage. Judgment was rendered for the defendants below by Moody, J., on demurrer to the complaint. Statement of the case by the justice delivering the opinion: This is an action seeking to foreclose a mortgage given by the defendant Ida L. Smith, an infant, through her guardian, John P. Smith, her father. A demurrer to the complaint was sustained, and plaintiff appeals from the judgment.

ActioN for damages for personal injuries. Judgment was rendered for the defendant below by Hunt, J., on demurrer to the complaint. . I. Whether employees are fellow-servants is a question of fact for the jury. (Black on Proof and Pleading in Accident Cases, 106; Chicago etc. R. R. Co. v. Moranda, 93 Ill. 576; Wabash etc. R. R. Co. v. Mahaffee, 16 Bradw. 290; Rooney v. Com. Trans. 10 Daly, 241; Illinois etc. R. R. Co. v. Mor-gansten, 106 Ill. 216; 108 Ill. 576; 4 Ill.

<p> Appeal from, Second Judicial District, Silver Bow County. </p> <p>On motion to dismiss appeal.</p>

Petition for the disallowance of a bequest. Judgment was rendered for the petitioner below by Buck, J. Statement of the case by the justice delivering the opinion: This is an appeal by the Home Mission Society of the German Lutheran Church from the judgment of the district court, which declares void a bequest attempted to be made to appellant by the last will and testament of Charlotte Schmidt, deceased.

Action to enjoin the diversion of water. Judgment was rendered for the defendant below by Buck, J., sitting in place of Armstrong, J. Statement of the case by Mr. Justice Harwood: By this action plaintiff seeks to enjoin defendant from diverting all the waters of Lyman creek, described in the complaint, situate in Gallatin county, and conveying the same into a reservoir, and thence to the city of Bozeman for the use of the inhabitants thereof; whereby plaintiff alleges that…

Action to enjoin the issuance of school bonds. Held: at which a very few of the electors of the district voted, but at which a large majority of the votes cast was iu favor of the issuance of the bonds. The trustees thereupon prepared the bonds, and are about to deliver them to a purchaser.

A motion to quash the writ was sustained by Du Bose, J., and judgment was entered dismissing the proceeding. I. The proceeding was prosecuted “ in the name of the real party in interest,” as required by section 4 of the Code of Civil Procedure. The state of Montana is the plaintiff, and it and the child are the real parties in interest.

<p>Appeal — Jurisdiction of appellate court. — Appeals are matter of statutory regulation, and there must be a substantial compliance with the statute in order to confer jurisdiction upon the appellate court. The appellant is charged with the duty of perfecting his appeal in the manner provided by law, and error in this regard affects the jurisdiction of the appellate court. (Territory v. Hanna, 5 Mont. 247; Courtright v. Berkins, 2 Mont. 404; State v. Gibbs, 10 Mont. 210; State v. Northrup, 13 Mont. 534, cited.)</p> <p>Same — Specification of error — Criminal appeal. — "When a specification of error is required in a civil case such specification is absolutely essential in order that the court may review the error complained of. In a criminal case the notice of motion for a new trial is the specification of error, and in analogy to the decisions in civil cases as to specifications, if the notice of motion does not specify the error, it will not be considered. (Raymond v. Tuexton, 7 Mont. 804; Territory v. Jtehberg, 6 Mont. 467.)</p> <p>Same — Practice on application for new trial in criminal case — Misdirection by court to jury. — under sections 355 and 356 of the Criminal Practice Act the application for a new trial must be made upon motion, and written notice of motion must be filed within a given time. If the application is made upon the ground that the court has misdirected the jury upon a material matter of law the application must be made upon a bill of exceptions, or upon the minutes of the court, “and the notice of motion must state particularly the error upon which the party making the application relies”; and this is required, notwithstanding the act of September 13, 1887, which provides that the charge and instructions given by the court to the jury are deemed excepted to, and that no exception need he taken thereto, nor any hill of exceptions filed. This statute does not, ipso facto, make the instructions a bill of exceptions, hut, in order to bring them before the court for review, they must be embodied in a bili of exceptions or statement. (Kleinschmidt v. McDermott, 12 Mont. 309, cited.)</p> <p>Same — (Evidence in criminal case — Credibility of witness. — Where the defendant testifies on his own behalf it is competent and material to show, en cross-examination, that he had been convicted of a felony, in order to discredit him, and to attack his credibility.</p> <p>Same — Objection to evidence — Relevancy. — Where the evidence sought to be deduced from the question is pertinent to any phase of the case, and the only ground of objection to the evidence is its immateriality and irrelevancy, its admission is properly allowed.</p> <p>Same — Same—Stating grounds of objection. — On cross-examination of the defendant, who was a witness on his own behalf, he was asked whether he had ever been convicted of a felony. The question was objected to as “improper cross-examination, irrelevant, and immaterial,” and the courtoverruled the objection, instructing the witness that he might answer or not, at his election. Reid, no error; that the objection to the question was insufficient; and that in order to render objections to testimony available to a party on appeal they must state specifically the grounds of objection. (City of Selena v. Albertose, 8 Mont. 499; Territory v. McAndrews, 3 Mont. 161; Territory v. Bryson, 9 Mont. 32, cited.)</p> <p>Same — Procedure—Indorsement of names of witnesses on information. — Section 3, page 250, of the laws of 1891, second session, requires the names of all witnesses known to the prosecuting attorney to be indorsed upon each information at the time it is filed; “and at such time before the trial of any case, as the court may, by rule or otherwise, prescribe, he shall also indorse thereon the names of such other witnesses as shall then be known to him.” In the case at bar the prosecuting attorney asked, on the opening of the trial, to have the name of a witness indorsed on the information, stating what he intended to . prove by such witness. It appeared that the defendant’s counsel knew that the witness was to be called, and counsel were informed that the power of the court was at their disposal to obtain any witness they might desire to rebut the testimony of the proposed witness for the state, and it further appeared that they did obtain and examine a witness for this purpose. Held, that the defendant was not prejudiced by the admission of the testimony of such witness for the state, and no prejudice could be claimed in this regard by counsel for the defendant.</p>

Action to enjoin interference with water rights. The defendant’s demurrer to the complaint was sustained by Mil-burn, J. Statement of the facts prepared by the justice delivering the the opinion: The purpose of this action was to obtain a decree adjudging plaintiffs entitled to the use of twenty inches of the water flowing in defendant’s canal, or large irrigating ditch, as an appurtenance to the land of plaintiffs, which they purchased from defendant, and to enjoin…

<p>Eminent Domain — Just compensation for occupation of land by railroad. — Section 14 of article 3 of the state constitution provides that “private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for, the owner.” Where, under this constitutional provision, a railroad company pays a sum into court, on the award of damages made by commissioners as compensation for right of way for railroad purposes, this is to be regarded as a “just compensation,” although the owner has appealed from the award; and the granting of an order by the court allowing the railroad company possession and use of such right of way pending said appeal is within the jurisdiction of the court, and is justified.</p>

Action to recover the amount of a promissory note, in which action Brown intervened.

<p>Ejectment — Statute of limitations — Stare decisis. — The statute of limitations begins to run against a mining claim when the patent thereto has been issued, and not from the date of the register’s receipt. {King v. Thomas, 6 Mont. 409; Mayer v. Carothers, 14 Mont. 274, followed.!</p>

Appeal from Eighth Judicial District, Cascade County, ActioN for conversion. The cause was tried before Benton, J., and the defendants had judgment.

Actiom against an assignee for the benefit of creditors and his assignors. A demurrer to the complaint was sustained by HuNt, J. I. An assignment for the benefit of creditors is a trust, and the most appropriate remedy for enforcing the performance of all trusts is to be found in a court of equity. (First Cong.

Action to enjoin the collection of special school taxes. Judgment was rendered for the defendants below by Milburn, J. After the plaintiff has rested, the defendant’s motion to dismiss the case and for a verdict, on the ground that the complaint did not state a cause of action, comes too late, even if well taken in point of law.

CONVICTION for keeping a house of ill-fame. Defendant was tried before Heney, J. Statement of facts prepared by the justice delivering the opinion: The defendant was charged by information with having kept and maintained “ a certain house of ill-fame, commonly called a ‘bawdy house/ open to the public night and day for common bawdry, then and on said other days and times, there situate on Sixth street, in the city of Miles City, county of Custer, and state of Montana, and…

Action to have the defendants declared to be trustees of the plaintiff’s undivided one-third interest in a mining claim.

Action for the assault and battery. Judgment was rendered for the plaintiff by Benton, J. The exhibit admitted in evidence contains none of the elements of a judgment-roll, and objection to its admission was improperly overruled.

Action for the recovery of money. Judgment was rendered for the plaintiff by Benton, J. Statement of the case by the justice delivering the opinion: This action was brought by plaintiff to recover from defendant moneys which he was alleged to have obtained from her by fraudulent representations when acting as her agent.

Action on an indemnity bond. Judgment was rendered for the defendants by Milburn, J. Statement of the case by the justice delivering the opinion: This is an appeal from a judgment rendered in favor of defendants upon sustaining the demurrer to plaintiff's complaint. The question, therefore, before this court is whether the complaint stated a cause of action. The following facts appear in that pleading: The plaintiff was sheriff of Dawson county in 1888.

<p>Taxation — Powers of board of equalization. — The act of February 24, 1893 (3d sees., p. 64), amendatory of sections 58 and 59 of an act concerning revenue, approved March 6, 1891, provides a new mode for the appointment of appraisers, but did not alter or amend in any respects sections 60 and 61 of the act of 1891. Section 61 of this act gave the board of equalization the “ power, after giving notice in such manner as it may by rule prescribe, to increase or lower any assessment contained in the assessment-book,” and this power the board of equalization still has under the amended law.</p> <p>Same — Discretion of board of equalization — Certiorari.—An alleged abuse of discretion by the board of equalization, in raising, without sufficient evidence, the valuation of property assessed for taxeB, cannot be inquired into by the supreme court on writ of certiorari.</p>

Dependant’s motion to dissolve the injunction was denied by ARMSTRONG, J. Statement of the case by the justice delivering the opinion: Appeal from an order overruling a motion to dissolve an injunction issued upon the application of plaintiffs.

Action for rent. Judgment was rendered for the plaintiff by Buck, J. Statement of the case by the justice delivering the opinion: Blake sued Dick for one hundred and twenty dollars, rent due by Dick for certain premises, for the months of October, November, and December, 1891, under the terms of a lease made April 16,1891, wherein Blake leased a certain dwelling-house in the city of Helena to Dick, for one year from May 1, 1891, at a rental of forty dollars per month,…

<p>Appeal — Motion for new trial — Dismissal. —Under section 297 of the Code of Civil Procedure a motion for a new trial is made upon the minutes of the court or a bill of exceptions or a statement of the case, and where the record affirmatively discloses that no such papers were before the court on the hearing of the motion, an appeal from an order denying it will be dismissed.</p>

Silver Bow County. Adverse Suit Judgment was rendered for the defendants below by McHatton, J. Statement of the case by the justice délivering the opinion: The defendants' made an application to the United States land-office for a patent upon the St. Lawrence lode mining claim. The plaintiffs filed an adverse claim in the land-office, under the provisions of section 2326 of the United States Revised Statutes.

Action for dower. Judgment was rendered for the defendant by Buck, J. Statement of the case by the justice delivering the opinion: This is an action for dower.

Action to determine right to moneys garnished. The cause was tried before McHatton, J. Defendant had judgment below. Statement of the case by the justice delivering the opinion: This action was brought to determine the right of plaintiff to certain moneys garnished in an action by her against the defendant Francis E. W. Patten, and which moneys were claimed by the defendant Mary A. Patten as her property.

Action to try right to use of waters. Defendant’s motion for a new trial was denied by Durfee, J. Statement of the case by the judge delivering the opinion: This action was brought to try the right to the use of the waters of Spring or Alkali Slough creek of Deer Lodge, now Granite, county, a,nd for an injunction to prevent the party, to whom the right of tlie use of said waters does not belong, from diverting the same. There was a trial by jury.

ActioN for damages for personal injuries. Judgment was rendered for the plaintiff by McHatton, J. Statement of the case by the justice delivering the opinion: The judgment in this case was in favor of the plaintiff for four thousand five hundred dollars damages for injuries sustained by reason of the plaintiff falling into a cellar under the sidewalk on one of the streets of the defendant. The defendant appeals from the judgment and from an order denying a new trial.

Action for damages for personal injuries. Judgment was rendered by McHatton, J., for the plaintiff below. Statement of the case prepared by the justice delivering the opinion: This is an action for damages for personal injuries.

Action to enjoin the collection of taxes. Judgment was rendered for the defendant by Woody, J. Statement of the case by the justice delivering the opinion: This is an action for an injunction to enjoin the collection of taxes.

Ejectment. Judgment by default for the plaintiff. The defendant’s motion to recall the writ of restitution was granted by Woody, J. Statement of the case by the justice delivering the opinion: This is another appeal in the same case as that reported under the above title in 13 Montana, 406. On the former appeal we refused to reverse the order of the district court denying a motion to set aside the default of the defendant and the consequent judgment in favor of plaintiff.

<p>Appeal — Questions of sufficiency of evidence. — Where there ia no hill of exceptions in the record, nor motion for a new trial, and no order denying such a motion, an alleged error of the insufficiency of the evidence to sustain the finding of the jury and court -will not be considered. {Porter v. Clark, 6 Mont. 246; Aider Gulch Mining Go. v. Hayes, 6 Mont. 32, cited.) It is presumed in such case that the evidence supports the findings and judgment, and that the instructions were based upon testimony in the case. {Broadwater v. liichards, 4 Mont. 80; Princeton Min. Go. v. First Hat. Bank, 7 Mont. 530; hockey v. Boosky, 4 Mont. 457; Morse v. Swan, 2 Mont. 306; Twell v. Twell, 6 Mont. 19; Black v. Black,, 5 Mont. 15, cited.)</p> <p>"Water Bights — Transfer of interest in water ditch. — A water right is appurtenant to the land upon which it is used, and, unless abandonment is proved, a transfer of land with its appurtenances conveys the interest of the grantor in any ditch or water right necessary to the use and enjoyment of the land. {Tucker v. Jones, 8 Mont. 225; Sweetland v. Olsen, 11 Mont. 27, cited.)</p>

Judgment was rendered for the defendant by Henry, J. Statement of the case by the justice delivering the opinion: The appellant, who is the receiver of the Livingston National Bank, an insolvent corporation, applied to the district court for a writ of mandamus to require the defendant, who is treasurer of Park county, to pay a certain county warrant owned and held by said bank at the time it became insolvent and was placed in the hands of the receiver.

Statement of the case by the justice delivering the opinion. This is a writ of certiorari directed to the district court to review its action in appointing a receiver of the properties of two of the relators, viz., the Independent District Telegraph Company and the Citizens’ District Messenger and Burglar Alarm Telegraph Company, it being claimed by the relators that the district court acted in that matter without jurisdiction.

Action for the diversion of water. The defendants’ motion for a nonsuit was granted by Brantley, J. Statement of the case by the justice delivering the opinion: Plaintiff alleges in his complaint that he is the owner of a large tract of agricultural land situated in Deer Lodge county} that for the purpose of irrigating said land he and his predecessors in interest had appropriated all the waters of Willow* creek, and by means of ditches had conveyed the waters of said stream…

Action for money loaned and goods sold and delivered. Plaintiff had judgment below on default. Defendant’s motion to open default was granted by Durfee, J. Statement of the case by the justice delivering the opinion. Action for money loaned and goods sold and delivered. Default judgment entered against defendant. Defendant moved to set aside the default on the ground of excusable neglect.

<p>Kepmtvhí — Pleading—Negative implying an affirmative. — Where the complaint ia in replevin a denial in the answer in the conjunctive that defendant took “and” carried away the goods is not a denial that he took the goods, or a denial that he carried them away, and is bad as implying an affirmative of the allegation intended to be denied. (Karris v. Shontz, 1 Mont. 212; Toombs v. Eornbuckle, 1 Mont. 286; Power v. Own, 6 Mont. 5, cited.)</p> <p>Bases — Judgment on the pleadings. — where the complaint in replevin alleges the plaintiffs ownership and right to the possession of the goods, and this allegation is properly denied in the answer in the disjunctive, it is error to render judgment on the pleadings, though there be other faulty denials in the answer.</p> <p>Same — Sight to possession. — The right to the possession of personal property is essential in the plaintiff in an áction for claim and delivery. (Laubenheimer v. McDermott, 5 Mont. 517, cited.)</p>

Wile contest. Dismissal as for a default. The contestants’ motion to open the default was denied by McHatton, J. Statement of the case by the justice delivering the opinion: A. J. Davis died at Butte, Montana, March 11, 1890. His estate was of the estimated value of about four millions of dollars.

EjectmeNT. Judgment was rendered for the plaintiff by McHatton, J. Statement of the case by the justice delivering the opinion: This is an action in the nature of ejeetmeut. The complaint alleges the plaintiffs seizure in fee and right of possession to lots 5 and 6, block 6, in the Noyes and Upton addition to the city of Butte. It alleges ouster by the defendants, and damages, and demands possession and damages. The defendant Bier is the tenant of the defendant Hennessy.

Ejectment. Judgment was rendered for the plaintiff by Du Bose, J. Statement of the case by the justice delivering the opinion: A demurrer to the defendant’s answer was sustained, and judgment accordingly entered for plaintiff. The defendant appeals. The action is one in the nature of ejectment.

Conviction for burglary. The defendant was tried before Showers, J. Appellant’s attorney moved the court to instruct the jury to return a verdict of not guilty, basing this motion on the ground that the information charged the property burglarized to be the property of certain persons named, receivers of the Union Pacific Railway Company.

Action on injunction bond. Plaintiff had judgment below on default.

Action for money paid for the benefit of another. Judgment for plaintiff was rendered by Pemberton, J. Statement of the case by the justice delivering the opinion: This is an appeal by the board of county commissioners from a judgment in favor of plaintiff, the sheriff of that county, for money paid out for the services of a jailer and for a death watch for a prisoner under sentence of death. There was also an appeal from an order denying a new trial.

Action to have a deed declared a mortgage, and for an accounting. Plaintiffs’ motion for a new trial was denied by Showees, J. Statement of the case by the justice delivering the opinion: This action was brought by Bateman and wife, plaintiffs, against Raymond and wife, defendants, for the purpose of having a certain deed made by the Batemans to Winthrop Raymond declared to be a mortgage, and for an accounting between the parties.

Ejectment. Judgment was rendered for the defendant below by Buck, J. Statement of the case: This is an action in the nature of ejectment, by which plaintiff below sought possession of certain town lots in the city of Helena, and damages for their detention. The trial was by the court sitting without a jury. Judgment was for defendant. The plaintiff’s motion for new trial was denied. From this order the plaintiff appeals.

Proceeding to condemn land for railroad purposes. Held: that, in estimating damage to the premises taken, the value of the mineral contained therein should not be considered, and that such damages as might be occasioned by the difficulty of getting the mineral on account of the occupation of the surface by another were too remote to be estimated. {Searles v. Lackawanna etc. R. R. Co., 33…

Judgment was rendered for the plaintiff by McHatton, J., in the court below. Statement of the case by the justice delivering the opinion: The plaintiff and appellant, Holland, was, in 1891, the assessor of Silver Bow county.

Action concerning real estate. Defendants’ motion for a change of venue was denied by Woody, J. Statement of the case by the justice delivering the opinion: This is an appeal from an order of the district court refusing to grant defendants’ motion for a change of venue. The action was commenced February 4, 1893, in the district court of Missoula county. The subject of the action was real estate then situate in Missoula county.

Motion of executors to quash an order requiring them to make and file an inventory. Motion denied. Woody and Brantley, JJ.

Defendant was tried before Abm> stiiong, J. Statement of the case by the justice delivering the opinion: This is an appeal by the defendant from a judgment sentencing him to a term of fifteen months in the penitentiary. The record on appeal contains simply the information, the verdict, and the judgment. There was no demurrer to the information, or motion to quash the same. There was no motion for new trial and no motion in arrest of judgment.

Action for goods sold. Defendant’s motion for a nonsuit was granted by Brantley, J. Statement of the case by the justice delivering the opinion: Plaintiff sues the defendant for the balance due on a carload of apples, sold and delivered by plaintiff to defendant about October, 1891.

Action to recover money paid. Judgment was rendered for the plaintiffs by Milburn, J. Statement of the case by the justice delivering the opinion; The defendant in this action appeals from a judgment entered in favor of plaintiffs upon the overruling of defendant’s demurrer to the complaint. The demurrer was upon the ground that the complaint did not state facts sufficient to constitute a cause of action.

Action on a life insurance policy. Judgment was rendered for the defendant below by Buck, J. Statement of the case by the justice delivering the opinion: The defendant pleads that it conducted its insurance business in Montana iu 1889, 1890, and 1891, one Fred S. Dore-mus being the manager in Montana.

Conviction for forgery. Defendant's motion in arrest of judgment was sustained by Armstrong, J. Statement of the case by the justice delivering the opinion: This is an appeal by the state from an order of the district court arresting judgment in a case where the defendant had been found guilty under an information charging him with forgery. The motion in arrest of judgment was made upon the two statutory grounds: 1.

Action upon promissory notes. Judgment was rendered in favor of the plaintiffs by Buck, J. Statement of the case by the justice delivering the opinion: Action by plaintiffs to recover amounts due on four promissory notes made by defendant. One note for one hundred and ten dollars, and interest, was made and delivered May 1,1885, to the firm of Jurgens & Price.

Actiok for goods sold and delivered. Judgment was rendered for the plaintiff by McHatton, J. Statement of the case by the justice delivering the opinion: Appeal by defendants from an order denying their motion for new trial. The action was for one hundred and eighty-eight dollars and twenty cents, amount due for one car of potatoes sold and delivered to defendants. Defendants denied the sale and delivery, and the value of the potatoes.

<p>Apbeal — Bill of exceptions — Settlement.—An objection that the court had no jurisdiction to settle a bill of exceptions is waived by a party who is present and participates in the settlement without urging the objection. (McKay v. Montana ZTnion By. Co., 13 Mont. 15; Walsh v. Mueller, 14 Mont. 76, cited.)</p>

Appeal from Fifth Judicial District, Madison County. Information for larceny as bailee. The state’s demurrer to defendant’s plea of former acquittal was overruled by Showers, J.

Plaintiff’s motion for a new trial was denied by Armstrong, J. Statement of the case by the justice delivering the opinion: This action was brought by the plaintiff for the purpose of finally settling and determining the rights of itself and the twenty-two defendants in and to the use of the water of Middle creek in Gallatin county. (Comp.

Action for personal injuries. Judgment was rendered for the defendant below by Benton, J. I. The court erred in directing a verdict for the defendants. A direction of a verdict for the defendant at the close of the evidence is a nonsuit, within the meaning of section 242 of the Code of Civil Procedure.