Volume 16 — Montana Reports

Injunction. Judgment was rendered for the plaintiff below by Speer, J. Statement of the case by the justice delivering the opinion. Injunction. The plaintiff is the owner of lots 13 and 14, in block 38, in the city of Butte. These lots are occupied by a meat market and saloon. The property abuts upon Broadway and an alley running through said block.

Judgment against ’defendant by default was set aside by Brantley, J. Statement of the case by the justice delivering the opinion. Held: at which time and place he ascertained that the demurrer was still pending, and the clerk informed him that no business would be transacted by the court until after the general election, which was to be held in November, and that he (the clerk) was then preparing notices to send to jurors that their attendance would not be required…

Appeal from Second Judicial District, Silver Bow Goumty. Action on an account for work and labor. Judgment was rendered for the plaintiff below by McHatton, J.

Ejectment to recover possession of a mining claim. Judgment was rendered for the plaintiff below by Durfee, J. Statement of the case by the justice delivering the opinion. This is an action of ejectment brought to recover possession of the George mining claim, in Deer Lodge county, and for damages for rents and the wrongful withholding of the possession thereof.

Action for damages for personal injuries. Defendant had judgment below. Plaintiff’s motion for a new trial was denied by Buck, J. Statement of the case by the justice delivering the opinion.

Action to remove cloud upon title. Judgment was rendered for the plaintiff below by McHatton, J. Statement of the case by the justice delivering the opinion. ' This is an action in the .nature of one to remove a cloud from the title of plaintiff to certain real estate. On December 9, 1891, the defendant, the bank, commenced an action in the district court against Frederick H. Shepherd, the husband of this plaintiff, praying judgment for the sum of $10,000 and interest.

Conviction for an assault. The defendant was tried before Showers, J. Statement of the case by justice delivering*the opinion. The defendant appeals from a judgment of the district court entered October 16, 1893, adjudging him guilty of the crime of assault, and sentencing him to pay a fine of five dollars and costs.

Election Contest. Judgment was rendered by Brantley, J., declaring the election void. Statement of the case by the justice delivering the opinion. This is an election contest, a statutory proceeding brought by E. S. Stackpole, asking that it be determined that he, and not D. F. Hallahan, was elected treasurer of Deer Lodge county, at the general election in November, 189é. It was determined by the district court that neither Stackpole or Hallahan was elected.

<p>Appeal from Second Judicial District, Silver Bow County.</p> <p>Action for an accounting. Judgment was rendered for the defendant below by Speer, J.</p>

Action for foreclosure of mechanic’s lien. Judgment was rendered for the plaintiff below by Hunt, J. Statement of the case by the justice delivering the opinion. This is an action to foreclose a mechanic’s lien. The issues were tried with a jury.

Action on a promissory note. Judgment was rendered for the plaintiff below by McHatton, J. Statement of the case by the justice delivering the opinion. Suit upon promissory note made by John E. Rickards, defendant, on February 26, 188é, to the order of the Continental Oil & Transportation Company. The note was due January 1, 1890. The Continental Oil & Transportation Company indorsed the note to Samuel Theodore.

Action to recover for services rendered. The case was tried before C. M. Crutchfield, Esq., judge pro tem, sitting-in place of Woody, J. Plaintiff had judgment below. A director is not entitled, in the absence of agreement, to any compensation for services rendered outside his duties as a director.

<p> Appeal from, Eighth Judicial District, Cascade County. </p> <p>Judgment on the pleadings was rendered for the plaintiff below by Benton; J.</p>

<p>Claim and Delivery — Verdict.—Under section 277 oí the Code of Civil Procedure a failure to find all the facts that should be found by a jury in an action for the recovery of specific personal property does not invalidate the verdict. (Miles v. Edsall, 7 Mont. 185, cited.)</p> <p>Same — Verdict in alternative — Judgment—In replevin a judgment may be rendered for the return of the property under a verdict, — “We, the jury, find for the defendants.” The failure of the jury to find a verdict in the alternative is not a matter of which the plaintiff can complain, since upon a general verdict in such case an order for the return of the property follows as a matter of course. (Anderson, v. O’Laughlin, 1 Mont. 81; Lavell v. Lowry. 5 Mont. 498, cited.)</p>

Dependant’s motion to set aside a default and judgment was-granted by McHatton, J: Statement of the case by the justice delivering the opinion. This is an appeal from the order of the district court granting a motion to open a default. The facts upon which the motion was granted are as follows: Complaint was filed July 31, 1882. The demurrer of the city of Butte was filed January 12, 1884.

■Appeal from Second Judicial District, Silver Bow Bounty* Action upon an acceptance. Judgment was rendered for plaintiffs below by McHatton, J. Statement of the case by the justice delivering the opinion. This is an action upon a bill of exchange, called by the witnesses an ‘ ‘order. ’ ’ It appears that a firm by the name of McGuire & Anderson repaired a house for one James W. Frost, the defendant’s intestate.

Ejectment to recover mining ground. Defendant’s motion for a new trial was denied by McHatton; J. Statement of the case by the justice delivering the opinion. Ejectment for mining ground. Plaintiff claimed the property involved under placer patents. Defendants claimed certain portions of the ground under and by virtue of a quartz location made upon veins which defendants claim were known to exist at the date of the application for the placer patents.

Action against a city to recover taxes paid. Judgment of nonsuit was rendered for the defendant by McHatton, J. Statement of the case by the justice delivering the opinion. Plaintiff sues to recover from the defendant §51,028.50, paid July 28, 1891, by her to the defendant, on a special assessment for sewer tax.

Action for libel. Plaintiff’s motion for a new trial was granted by McHatton, J. Statement of the case by the justice delivering the opinion. This is an appeal from an order granting a new trial. The action was for libel. The libel declared upon was the alleged false and malicious publication in a merchant’s protective association of the following : “ Copyrighted by Andrews and Olds.

Action to foreclose lien. A decree was rendered for plaintiffs below, by Showers, J., and modified on appeal: 15 Mont. 20. The directions to modify the judgment not being complied with the plaintiff appeals. It was the duty of the lower court upon the filing of the remittitur to obey the mandate of the Supreme Court and enter judgment in accordance with the opinion expressed in the cause.

<p>Attorneys —Disbarment—Alteration of decree. — In proceedings to disbar an attorney, a finding tliat an attorney interlined matter in a decree entirely changing its effect and witb a corrupt purpose, is supported by evidence that when the decree was examined by two attorneys for the party affected by the alteration immediately before it was signed, it contained no interlineations; that another attorney who had testified in defendant’s favor as to the time of making the interlineations, had stated upon being told that the decree was signed in open court, that if that was so he could do the respondent no good; that the decree was filed by defendant upon a peremptory order of the court after he had retained it for four months; and that after receiving intimation of disbarment proceedings had filed a motion to vacate or correct the decree, although he had been discharged as attorney for the plaintiff.</p> <p>Same — Same—Defrauding client. — A finding that certain notes were not delivered to respondent in payment for professional services and were without consideration, is sustained by evidence that a client of respondent, to defeat the collection of the costs of a criminal prosecution in which he had been convicted, had, upon the suggestion of respondent, executed to him the notes, secured by a mortgage, which were to be deposited in a bank subject to their jointorders; that respondent had then beenpaidfor his services and had given his client a receipt in full; that he deposited the notes in bank with the exception of one for $600 which, with the mortgage, he negotiated to an innocent purchaser; that when the client demanded the notes respondent gave him an order on the bank and told him he could not release the mortgage without having it present, but saying nothing about making claim to the note or mortgage until the client wrote him that they were not in the bank, when he replied that he would release the mortgage when the client paid the note.</p> <p>Sam ¶: — Same—Question presented by disbarment proceedings. — A charge or conviction of crime is not a prerequisite to proceedings for the disbarment of an attorney. The question presented by such proceedings is not whether the respondent is guilty of a crime of which he has been or ought to be convicted, but whether under all the facts of the case, he is a fit person to be permitted to practice as an attorney.</p> <p>Same — Competency of witness. — One who entered into a corrupt scheme with an attorney to defeat the collection by the county of the costs of a criminal prosecution against the former, may, in proceedings to disbar the attorney, testify as to the details of the scheme.</p>

<p>■■ On motion for rehearing.</p>

Conviction for forgery. Defendant was tried before Speer, J. A person commits forgery who, personating another, fraudulently, writes his name. (Bishop’s Criminal Law, Vol. 2, § 585.) Where a check comes into the hands of a person, who knows that it is not intended for him and that person endorses it with the fraudulent purpose of getting the money, he is guilty of forgery. (United States v. Long, 30 Fed. 678 — 80; Ltcmchy. State, 51 N. W. (Neb.) 755; Bishop Crim.

<p>Appeais — ConJlictin evidence — Where there is a substantial conflict in the testimony the appellate court will not disturb the verdict.</p>

Mandamus to compel state furnishing board to award a contract for printing codes to a particular bidder. Statement of the case by the justice delivering the opinion. The matter before us is a decision upon the return of an alternative writ of mandamus.

Action for damages for causing the death of plaintiff’s intestate. The case was tried before McHatton, J. Plaintiff had judgment below. Statement of the case by the justice delivering the opinion.

Suit upon adverse claim. Defendants’ motion for a new trial was denied by Henry, J. The test of a discovery, whether or not it contains valuable mineral deposits, is the willingness of the locator to expend his time and money in further development of the same.

<p> Appeal from First Judicial District, Lewis and Glarhe County. </p> <p>Action to foreclose mechanics’ lien. Judgment was rendered for plaintiffs below by Buck,</p>

Appealfrom, Fifth Judicial District, Jefferson County. Action to quiet title to mining premises. The cause was tried before Showers, J. The plaintiff had judgment below.

Action to recover statutory penalty for collecting illegal fees. Judgment was rendered for the defendant on the pleadings by Showers, J. Statement of the case by the justice delivering the opinion. This action (consisting of two actions consolidated) is brought by plaintiff under section 9, page 241, Laws 1891, against defendant, who was a justice of the peace, for recovery of ten times the amount of certain fees received by the justice, not specifically provided for by law.

Action to quiet title to mining property. Plaintiffs’ motion for a new trial was denied by Buck, J. Statement of the case by the justice delivering the opinion. This action was brought by plaintiffs to quiet their alleged title to certain mining premises. They claim the premises under the location of the Bose Cleveland claim. The defendant was asserting title to the ground under the location of the Clements claim.

<p>Mechanics’ Lien — Parties defendant — Agency—Pleading and proof. — When plaintiff, in an action to foreclose a mechanics’ lien, allege d a contract with the defendant for the work sued for, but proved a contract with another person not a party to the action and between whom and defendant no agency existed, a non-suit should have been granted.</p> <p>Same — Parties defendant — Personal judgment. — In an action to foreclose a mechanics’ lien the party with whom the plaintiff contracted is a necessary party to the suit and the only party against whom the plaintiff is entitled to a personal judgment. (Duignan v. Montana Club, ante, page 189, cited.)</p> <p>Appeal — Review of evidence — Errors of law. — It is no objection to the review of evidence contained in a statement on appeal that the appeal was not taken within sixty days from the rendition of judgment as required by section 421 of the Code of Civil Procedure, where the evidence is examined for the purpose of determining errors of law presented by the record, — as the refusal of a nonsuit and the giving of instructions.</p>

Action to enjoin the enforcement of a judgment. The cause was tried before Armstrong, J. The plaintiff had judgment below. Statement of the case by the justice delivering the opinion.

Appeal from Sixth Judicial District, Meagher Goumty. Adverse suit. Judgment was rendered for the defendant below by Henry, J., sustaining a demurrer to the complaint.

Action to recover for goods sold. Defendants’ motion to dissolve the attachment was granted by DuBose, J. Statement of the case by the justice delivering the opinion. Suit in attachment. On July 28, 1893, the appellants, merchants in Minneapolis, Minn., instituted suit against respondents, merchants atKalispell, Mont., to recover $4,016.40, due for goods sold and delivered, and for the sum of $950.55, to become due on September 11, 1893.

<p> Appeal from Tenth Judicial District, Flathead Oov/nty. </p> <p>Dependant’s motion to dissolve the attachment was denied by DuBose, J.</p>

<p> Appeal from Fifth Judicial District, Jefferson County. </p> <p>Action to quiet title to a mining claim. Defendants motion for a nonsuit was granted by Showers, J.</p>

Action on promissory note. Plaintiff’s motion for judgYnent on the pleadings was sustained by McHatton, J. Statement of the case by the justice delivering the opinion. This is an action on two promissory notes.

The writ was denied by Benton, J. Statement of the case by the justice delivering the opinion. Mandamus. Relator applied to the district court for an alternative writ of mandate commanding the board of county commissioners of Cascade county to adjust, settle, audit, and order a warrant drawn for the payment of a judgment duly recovered by relator against defendant in the district court of Cascade county, for $100 and costs, on Nov. 7, 1891.

Statement of the case by the j ustice delivering the opinion.

The writ is granted by Benton, J. Statement of the case by the justice delivering the opinion. This is a proceeding for a writ of mamda/nms. In its affidavit the relator alleges that it is the owner of the following warrant: “No. 2,604. Great Falls, Mont., April 6th, 1895.

Action of replevin. Defendants’ demurrer to the complaint was sustained by Showers, J. Statement of the case by the justice delivering the opinion. The plaintiffs brought this action in replevin, seeking the return of certain personal property. They allege that they sold and delivered the property to the defendant the Poindexter Commercial Company. They allege that said defendant obtained said sale and delivery by false representations as to its solvency.

Action to recover the consideration named in a deed. Judgment was rendered for the plaintiffs below by McHatton, J. Statement of the case prepared by the justice delivering the opinion. Suit by plaintiffs against defendant, in the justice’s court, to recover the sum of §200, alleged to be due for the price of the surface ground of certain lots conveyed by plaintiffs to defendant, and which, it is alleged, was the price agreed upon for such conveyance.

<p> Appeal from Fourth Judicial District, Missoula County. </p> <p>Plaintiffs’ motion for a change of venue was granted by ■Woody, J.</p>

<p>Appeal from Tenth Judicial District, Chotecm County.</p> <p>Conversion. Defendant’s motion for a new trial was granted by DuBose, J.</p>

<p>AppBAit — JRecord—Dismissal.—Appeals, both from a judgment and from a special order made thereafter, will be dismissed without prejudice where there is no judgment in the record and it does not appear that there was a'judgment entered which could be supplied under suggestion of diminution of the record.</p>

Appeal from First Judicial District, Lewis and Gla/rke Oounty. Certiorari to review order of'justice of the peace in granting new trial. Judgment was rendered for the relator below by Buck, J.

Action for damages for breach of contract. Judgment was rendered for the defendants below by Armstrong, J. Plaintiffs were entitled to deliver within a reasonable time under the circumstances. (Newmark on Sales, § 332; 2 Benjamin on Sales, § 1027; Tiedeman on Sales, § 100; 5 Wait’s A. and D., § 24, p. 568.) Tender can be made by bill of lading. (5 Wait’s A. and D., §§ 27, 30, 33, p. 572; 2 Schouller Per.

Action for money paid. The cause was tried before Woody, J. Plaintiff had judgment below. Statement of the case by the justice delivering the opinion. The plaintiff and respondent, a broker at St. Louis, Mo., on or about the 22d of September, 1891, purchased for the defendant 500 shares of the Elizabeth Mining Company stock, for which he advanced §962.50.

Action on fire insurance policy. Defendant’s motion for judgment on special findings was granted by Hunt, J. Statement of the case by the justice delivering the opinion. This is an action on an insurance policy. On the 3d day of June, 1892, the defendant, through its agents, issued its policy to the plaintiff in the sum of $600.

Action for debt. The case was tried before Buck, J. Defendants had judgment below. Statement of the case by the justice delivering the opinion. This is an action for debt, brought against the respondents, Tacoma Mining Company and W. B. Bust. The indebtedness is that of defendant the mining company.

Action to recover for services rendered. Plaintiff had judgment below. Defendant’s motion for a new trial was denied by Hunt, J. Performance by plaintiff having been rendered impossible by the act of the defendant, plaintiff not being in fault, he may recover upon a qua/ntum, meruit. {LLelem v. Wilson, 28 Am. Dec. 336; Duncan v. Baker, 21 Kan. 99; Bishop on Contracts, §§.1441 to 1447; 3 Am. and Eng.

<p>Appeal from First Judicial District, Lewis and Cla/rke County.</p> <p>Action for debt. Judgment was rendered for plaintiff below by Buck, J.</p>

Action for damages. Plaintiff had judgment below. Defendants’ motion for a new trial was denied by Woody, J. In February, 1877, a law was passed by the legislature of the territory of Montana, covering generally the subjects of dams and reservoirs, providing for an examination into their sufficiency, trial by jury, without cost or expense to the complainant, in cases where his complaint was sustained, and with ample provisions for the abatement of the nuisance, etc. (Page…

<p>Tbespass — Possession^-TownsUe.—Where plaintiff in trespass had sold the land, but was remaining in possession by permission of his grantee, a townsite company which had regularly platted it as part of a townsite, his possession is sufficient to maintain the action as against a naked trespassor who enters without claim or color of title.</p>

<p>Appeal from, Fifth Judicial District, Jefferson County.</p> <p>Conviction for murder in the first degree. The defendant was tried before Showers, J.</p>

Injunction to restrain county commissioners from carrying out a contract. Judgment was rendered for tbe plaintiff below by Henry, J. Statement of the case by the justice delivering the opinion.

<p>New TuiaXj — Parol evidence to vary written contract. — It is error to admit parol evidence to vary the terms o{ a written contract, and, if admitted, the error is not corrected hy an instruction to the jury to disregard it, if the verdict was in fact influenced thereby and a new trial should be granted notwithstanding such instruction. (Fisher v. Briscoe, 10 Mont. 124, cited.)</p> <p>Same — Prejudicial error — Misleading instruction. — -The plaintiff sued the defendant to recover a sum claimed to be due for hay and other personal property sold by him to the defendant. The latter in his answer denied the indebtedness and set up a counterclaim. It appeared that the respective parties were copartners in the sheep business and that this copartnership continued to do business for nearly a year when it was dissolved by a written agreement entered into between the parties. The plaintiff in his replication to the defendant’s counterclaim, alleged an agreement to pay the defendant $40 per month as a herder from and after the date of the dissolution of said copartnership, but the court instructed the jury that the plaintiff’s replication alleged that under the agreement of dissolution “the defendant was to receive $40 per month,” from a date anterior to the partnership entered into between the parties. Held, that this instruction was a wrong interpretation of the plaintiff’s replication, that it was misleading and therefore prejudicial to the plaintiff, and that a new trial should have been granted.</p>

Action for damages for flooding land. Judgment was rendered for the plaintiff below by Benton, J. Statement of the case by the justice delivering the opinion. The plaintiff recovered judgment for $611 for damages caused by defendant flooding his land while driving logs on Deep ci’eek. The defendant appeals from the judgment, and from an order denying a new trial.

First Judicial District, Lewis and Clarke County. Conviction for forgery. Held: in this: That the said informations do not charge the defendant with the offense for which he was held to answer, or any other offense disclosed before the committing magistrate, said defendant being charged by complaint before the committing magistrate for forging an order for the payment of moneys of the city of Helena to one J.…

Injunction to restrain the carrying out of a street paving contract. Defendants’ motion for a nonsuit was sustained by Benton, J.

Appeal from Fifth Judicial District, Jefferson County. Action on a promissory note. Plaintiff had judgment below. Motion of defendant King for a new trial was denied by Showers, J.

Action to determine priority of water rights. Judgment was rendered for the defendants below on the special findings by Showers, J. Statement of the case by the justice delivering the opinion. This action was brought by the plaintiff to determine his right, as against the defendants, to the use of 200 inches of the waters of Crow creek for the purposes of irrigation.

Action to recover for goods sold. Judgment by default was rendered for the plaintiff below by McHatton, J., and defendant’s motions to vacate the default and dissolve the attachment denied. Statement of the case by the justice delivering the opinion. Plaintiff alleges that it was a corporation by the name of the S. C. Herbst Importing Company.

<p> Appeal from Seventh Judicial District, Yellowstone County. </p> <p>Judgment was rendered for the defendants below by Mil-burn, J.</p>

Action on a promissory note and to foreclose a deed of trust. Judgment was rendered for the plaintiff below by Mc-Hatton, J.

<p> Appeal from Eighth Judicial District, Cascade County. </p> <p>Action for goods sold. Plaintiff’s motion for a new trial was granted by Benton, J.</p>

Action to have an assignment declared fraudulent. The cause was tried before Hunt and Buck, JJ., sitting concurrently. Judgment was rendered for the plaintiff below. Statement of the case by the justice delivering the opinion. The nature of this action will appear fully by the complaint therein, which pleading we have deemed best to insert in this statement in full. After the close of the trial, the court allowed the plaintiff to amend its complaint.

<p>Appeal from Seventh Judicial District, Custer County.</p> <p>Action for damages. Defendant’s motion for new trial was granted by Milburn, J.</p>

<p> Appeal from Seventh Judicial District, Yellowstone County. </p> <p>Application for issuance of letters testamentary. The application was denied by Milburn, J.</p>

Action for breach of contract. Judgment was rendered for the plaintiff below by Benton, J. Statement of the case by the court. Action in contract. On January 28, 1892, McDonald & Brand, as a firm, executed a contract with defendant. By the terms of the agreement McDonald & Brand were to carry on a boarding and mess house for the defendant for the period of one year, or until January 28, 1893.

<p>Wabbaety — New trial^Sufficieney of evidence —In an action for a breach of warranty of the quality of paint sold, the granting of a new trial after verdict for defendant was proper where it appeared that the paint, shortly after being put on certain roofs curled, up, cracked and blew off; that the roofs were dry and in proper condition to receive the paint; that it was properly put on, and that good paint when properly put on a roof in suitable condition to receive it w'ould not curl up or blow off.</p>

Action for services rendered. Judgment was rendered for the plaintiff below by Woody, J. Statement of the case by the justice delivering the opinion. This is an appeal from a judgment in favor of the plaintiff, and from an order denying defendant’s motion for a new trial. Both parties are physicians in the city of Missoula.

Action by the county surveyor, to recover from the county his expenses while making a survey. Judgment was rendered for the defendant below by Henry, J. Statement of the case by the justice delivering the opinion. The appellant brought this action against the board of county commissioners of Meagher county to recover for certain expenses laid out by him while making a survey, as county surveyor, upon the order of the county commissioners.

Action for damages for personal injuries. The case was tried before Hunt, J. Plaintiff had judgment below. Statement of the case by the justice delivering the opinion. This is an action for damages for personal injuries.

Action by a railroad company to condemn portions of the right of way of another railroad. Judgment was rendered for the plaintiff below by McHatton, J. Statement of the case by the justice delivering the opinion. The plaintiff is a railroad corporation, duly incorporated under the laws of Montana. The defendant the Montana Union Railway Company is also incorporated under the laws of Montana. The other defendants are organized under the laws of other states.

Action by a railroad company to obtain an order permitting it to cross the tracks of another road. Judgment was rendered for the plaintiff below by Brantley, J.

Action against assignee for benefit of creditors on wage workers claim. Judgment was rendered for the plaintiff below by Brantley, J. Statement of the case by the justice delivering the opinion. This appeal stands upon the judgment roll, and the documents in the roll which are pertinent to this decision are the complaint, answer, findings, and judgment. The complaint sets up that the defendants Meyer Wise, Charles Wise, Edward I. Goodkind, and A. L. Goodkind were copartners.

<p>Agbebd Statement oe Facts — Amendment.—Where the appellate court had reversed a judgment rendered for defendant in an action tried upon an agreed statement of facts, from which the amount and date of plaintiff’s recovery had been omitted by inadvertance of counsel, the trial court may permit the statement to be amended by inserting the amount and date of plaintiff’s recovery, — no proof or inquiry being necessary to ascertain them, and their insertion not changing the terms of the statement or the understanding of the parties.</p>

<p>Criminal Practice — Leave to file information — Revocation.—The district court may properly revoke its leave given to the county attorney to file an information against a county commissioner, charging him with extortion, where it appeared upon motion to set aside the information, that the grand jury had investigated the defendant’s conduct, and, while finding that illegal payments had been'made to him, found no indictment, and no showing was made by the county attorney either at the time of the filing of the information or at the time of defendant’s motion, that the ease was a proper one for further prosecution. (State v. Brett, ante, page 360, cited.)</p>

<p> Appeal from, Thvrd Judicial District, Granite County. </p> <p>Information for extortion. Defendant’s motion to set aside the information was granted by Brantley, J.</p>

Conviction for grand larceny. The defendant was tried before Brantley, J. It was error to admit testimony as to acts and declarations of Fred Byers or Jones or either of them, not done or made in the presence of appellant for the reason that at the time of the introduction of the testimony no prima facie case of conspiracy had been made out by the state.

<p>Taxation — Assessment.—An assessment is completed when the persons and property to be taxed have been listed and the sums which are to constitute the basis of an apportionment have been estimated.</p> <p>Same — Completion of assessment by city. — Under a statute (Political Code, §§ 4872, 4862) requiring city councils, on the second Monday in August of each year, to determine by resolution the amount of city taxes to be levied and assessed by the city for the current year, and making the county assessment the basis of taxation, the assessment of property in a city is not completed until the date of the resolution of the city council fixing and levying the amount of taxes to be levied and assessed for such year.</p> <p>Same — Extending city taxes on tax list. — Where the assessment of property in a city was not completed until the second Monday of August, 1895, the assessment is not within § 4017 of the Political Code (adopted July 1, 1895,) providing that all taxes assessed before that code took effect must be collected under the laws in force at the time the assessment was made, and therefore it is the duty of the city treasurer, and not of the county clerk, to extend the city taxes on the county tax list, as provided by §§ 4867,4868,4872 of the Political Code.</p>

<p>Ai'PEAiAiVeM) trial^Notice — Specification of errors. — Appeals are matters of statutory . regulation, with which there must be a substantial compliance in order to confer jurisdiction, and therefore, a notice of intention to move for a new trial which fails to specify the particular errors relied upon as required by section 356, Third Division of the Compiled Statutes, is insufficient, and a written motion for new trial, specifying the errors relied upon, served and filed contemporaneously with the notice, cannot be construed as a notice of intention to move, so as to cure the defect. (State v. Fry, 10 Mont. 407; Courtright v. Perkins, 2 Mont. 404; Territory v. Hanna, 5Mont.247; State v. Gibbs, 10 Mont. 210; State v. Horthrup, 18 Mont. 534, cited.)</p> <p>New Tkiae — Notice—Stipulation.—The absence of a proper notice of intention to move for a new trial is not cured by a stipulation to the effect that the bill of exceptions and papers considered by the court and used on motion for a new trial, be settled, allowed and considered as a bill of exceptions on appeal.</p> <p>Same — Notice-Waiver.—Failure of a notice of intention to move for a new trial to specify the particular errors relied upon is not waived by a motion to strike it out upon other grounds. {Gregg v. Garrett, 13 Mont. 13, cited.)</p> <p>Same — Order denying — Review on appeal. — While an order denying a new trial is an intermediate order or decision within section 394, Third Division of the Compiled Statutes, so as to entitle it to be reviewed on an appeal from the judgment, the errors enumerated in section 354, Id., as grounds for a new trial must be first called to the attention of the district court on motion for new trial in order that the trial court may have an opportunity to correct its own errors.</p> <p>Same — Review on appeal — Change of venue — Challenge to jurors. — Under section 354, Third Division of the Compiled Statutes, providing that a new trial may be granted when there has been any abuse of discretion, alleged errors in denying a change of venue and in overruling challenges to jurors will not be reviewed by the appellate court without a motion for a new trial having been made.</p>

<p>Appeal from Fourth Judicial District, Bmalli County.</p> <p>Conviction for grand larceny. The defendant Clement P. Whaley was tried before Woody, J.</p>

<p>Appeal from, 1 ourth Judicial District, Ha/oalli County.</p> <p>Conviction for grand larceny. The defendant Matthew L. Whaley was tried before Woody, J.</p>

The demurrer and motion to vacate the default of the defendant Coyle were overruled by Buck, J. Statement of the case by the justice delivering the opinion. This is an appeal from a judgment rendered upon the overruling of defendants’ demurrer to the complaint, and also an appeal from a special order made after judgment denying the motion of defendant Sarah J. Coyle to set aside the judgment ■ in the case. The complaint was filed October 10, 1893.