Volume 17 — Montana Reports

Action to determine rights of several claimants to a particular fund. Motion by defendant bank to strike out portions of the answers of its codefendants was sustained by Hunt, J. Statement of the case by the justice delivering the opinion.

Conviction for assault with intent to commit murder. The defendant was tried before Woody, J. There is no provision in the Criminal Practice Act authorizing a defendant to be charged, tried or convicted as an accessory before the fact. Nor is there any provision contained therein authorizing one who, not being present, aids and encourages the commission of the crime, being tried in any other character than that of principal.

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

Judgment was rendered for the respondent below by Blake, J. Statement of the case by the justice delivering the opinion. Relator avers that it is a foreign fire insurance corporation, with its principal place of business in Aix-la-Chapelle, Germany; that, desiring to do business in Montana, and to. avail itself of the rights conferred upon foreign corporations by sections 669 and 670, tit. 4, c. 1, Civ.

<p>Appeal from, Eighth Judicial District, Cascade County.</p> <p>Conviction for grand larceny. The defendant was tried before Benton, J.</p>

Petition for a writ of mandamus to compel the issuance of a laundry license. Judgment was rendered for the relator below by Blake, J. Statement of the case by the justice delivering the opinion. This is an appeal from the judgment of the district court upon an application for a writ of mandate requiring the appellant to accept $10 as a license fee from the respondent, and to issue to respondent a license to conduct a laundry.

Action for damages for breach of contract. Judgment was rendered for plaintiff below by Buck, J. Statement of the case by the justice delivering the opinion. This is an action for damages for the alleged breach of a contract.

Prosecution for violation of section 600, chapter IX of the Penal Code prohibiting gambling. The defendant was tried before Blake, J. and acquitted. The Constitution, section 12, article VII, declares that acts approved by the governor do not become laws until signed by him.

Original Proceeding. Application for a writ of mandate to compel the state treasurer to pay to the treasurer of the agricultural college the proceeds from the sale of certain bonds. Statement of the case by the justice delivering the opinion. This matter is for hearing on the return of an alternative writ of mcwidarrms. It appears by the affidavit-of the relator that he is the treasurer of the agricultural college of the state, and that the respondent is the state treasurer.

Action to determine bhe constitutionality of the act of March 6, 1891. The case was tried before McHatton, J., on an agreed statement of facts. Defendant had judgment below. Statement of the case by the justice delivering the opinion. The case was tried in the court below on an agreed statement of facts.

Replevin to recover possession of a stock of merchandise alleged to have been obtained by false representations. The cause was tried before Speer, J., who rendered judgment for the plaintiff. Statement of the case by the justice delivering the opinion. Respondent was a business house in Chicago.

<p> Appeal from Second Judicial District, Silver Bow County. </p> <p>Actions of replevin. Judgment in each case was rendered in favor of the plaintiffs below by McHatton, J.</p>

Action to -foreclose a mechanic’s lien. The demurrer of the defendant railroad company was sustained by McHatton, J. Statement of the case by the justice delivering the opinion. This is an action on an account, and to foreclose a mechanic’ s lien. The defendant the Butte, Anaconda & Pacific Railway Company demurred to the complaint. The demurrer was sustained, and judgment entered for that defendant. Plaintiff appeals.

Action to recover commission on sales. The cause' was tried before McHatton, J. Plaintiff had judgment below. Statement of the case by the justice delivering the opinion. This is an action on account. Plaintiff, who was the agent for the defendant in the sale of its goods in this state, sues for §299, which he claims is due and owing from defendant as commission on sales made by him of the defendant’s goods.

Appeal froyn Second Judicial District, Silver Bow County. Action by the state to recover a forfeiture. Judgment was rendered for the plaintiff below by McHatton, J. ■ Statement of the case by the justice delivering the opinion. The object of this action is to recover the sum of $500, and interest, alleged to be due by way of forfeiture or penalty from the defendants to the state.

Action to recover the value of ore. The cause was tried before McHatton, J. Plaintiff had judgment below. Statement of the case by the justice delivering the opinion. The respondents own an undivided two-thirds interest in the Niagara quartz lode mining claim. The appellant William A. Clark owns the other one-third in said claim. The appellants own the Black Rock quartz lode mining claim.

Original Proceeding. Attachment for contempt. Statement of the case by the justice delivering the opinion. On the 30th day of October last, the attorney general of the state filed in this court an affidavit, werein it is shown: That there were then pending in this court three cases, entitled respectively, “The State of Montanan.

Action for slander. Defendant’s demurrer to the complaint was sustained by Woody, J. We find no statute in Montana punishing adultery or fornication or common prostitution, and we admit that at common law, words to be actionáble, must impute to plaintiff an indictable offense; or must impute to him a contagious or infectious disease tending to exclude him from society; or are spoken of him in the way of his office, profession or trade. (Odgers on Libel and Slander, 1 Am.

Judgment was rendered for certain of the plaintiffs by McHatton, J. Statement of the case by the justice delivering the opinion. This is an action in the nature of ejectment. It was commenced July 31, 1882. Since that date there have been various changes in the parties, and upon this trial, which took place February 10, 1893, the plaintiffs were E. C. Chambers, M. J. Connell, J. A. Murray and Sarah F. Murray, H. S. Clark and Laura Clark.

Plaintiff’s motion to retax costs was granted by Armstrong, J. Statement of- the ease by the justice delivering the opinion. Judgment in this case was .originally in favor of Maxey et al. It was affirmed in 11 Mont. 81.

Ejectment. 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 ejectment. The plaintiff claims title by virtue of a United States patent issued to his grantors on January 31, 1883, for the Hesperus lode claim. The action was commenced October 7, 1892.

Partition. Judgment was rendered for the defendants below by Speer, J. Statement of the case by the justice delivering the opinion. This action is brought for the partition of certain real estate situated in Silver Bow county. It appears from the record that plaintiff, Mathes, and defendants Nissler and Stolte, and one Herman Otten, located the land in controversy as a placer mining claim in April, 1886 and on the 5th day of August, 1889, a patent was issued to them therefor.

Intervention. Plaintiff’s demurrer to the complaint in intervention was sustained by Armstrong, J. Statement of the case by the justice delivering the opinion. Plaintiff, Safely, commenced this action against the sheriff, demanding that he pay to him money in his (the sheriff’s) hands, collected by the sheriff on a judgment which had been assigned by the judgment creditor, R. L. Noe, to this plaintiff.

<p> Appeal from. Ninth Judicial District, Gallatin County. </p> <p>Action on an account. Judgment was rendered for the defendants below by Armstrong, J.</p>

Action for damages for personal injuries. The case was tried before Benton, 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 for damages for personal injuries. The canse was tried before Speer, 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 an administrator to require the transfer to him of bank stock standing in the name of the intestate. The cause was tried before McHatton, J. Defendants had judgment below. Held: as the following extract of the minutes will show : ‘‘ Present: Andrew J. Davis, by proxy to J. E. Davis, Hiram Knowles and A. J. Davis, Jr. On motion, Hiram Knowles was chosen chairman, and Andrew J. Davis, Jr., secretary.

Action for services rendered. Judgment was rendered for plaintiff below by Henry, J. Statement of the case by the justice delivering the opinion. The plaintiff brought this action to recover $2112 for work, labor, and services as a farm hand performed for the defendant.

Appeal Jrom Second Judicial District, Silver Dow County. Action to recover possession of a stock of mortgaged mercbandise. The cause was tried before Speer, J. Plaintiff had judgment below. Statement of the case by the justice delivering the opinion.

<p>• Appeal from, Eighth Judicial District, Cascade Comity.</p> <p>Conviction for felony. The defendant was tried before Benton, J.</p>

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

Action to recover purchase price of real property sold under void execution. Judgment on the pleadings was rendered for the plaintiff below by McHatton, J. Statement of the case by the justice delivering the opinion.

Action on bond. The cause was tried before McHatton, J. Plaintiff had judgment below. The violation of the contract by the plaintiff had the effect of wholly releasing and discharging the defendant from any liability on the bond. (24 Am. & Eng. Ency. of Law, 749; Miller v. Stewart, 9 Wheat. 680; Barnes v. Barrows, 61 N. Y. 42.) A waiver is the relinquishment of a known right. (Pence v. Lang don, 99 U. S. 681; Bennedo v. Mutual Life Ins. Co., 105.

Original proceeding. Application for writ of certiorari. Statement of the case by the court.

<p>Agbebd Case — Appeal—When an agreed ease, submitted under section 468 Code of Civil Procedure (1887) fails to show what the controversy is between the parties, or that there is any real controversy between them, the answering or deciding the question submitted to the court, does not constitute an enforceable or appealable order or judgment.</p>

Action for damages for personal injuries. The case was tried before Benton, J. Plaintiff had judgment below. Statement of the case by the justice delivering the opinion. Action to recover for personal injuries. The defendant is a corporation, operating an electric street railway line in Great Falls.

Action to recover possession of a mining claim and for the forfeiture of a lease. Plaintiff’s motion for a new trial was granted by Speer, J. Statement of the case by the justice delivering the opinion. This is an action to recover possession of the Estella lode mining claim, situated in Silver Bow county, and to have declared forfeited a certain lease of said mine executed by plaintiff to defendant.

Action by surety. Judgment on demurrer to the answer was rendered for the plaintiff below by Hunt, J. Statement of the case by the justice delivering the opinion. Plaintiff, as alleged, surety for defendant, brought this action for money paid out for his principal.

. Action for damages for ■ personal injuries. The cause was tried before Benton, J. Plaintiff had judgment below. I. Plaintiff was clearly guilty of contributory negligence, both in his attempt to mount an advancing car by standing be-' tween the rails, and in his failure to discover the bent condition of the brake staff, if the condition of the latter had any • thing to do with causing his fall.

Action to recover for goods sold. Judgment was rendered for the defendants below by Hunt, J. Statement of the case by the justice delivering the opinion. The plaintiffs brought their action to recover the value of goods, wares, and merchandise, alleged to have been sold to the defendants. The defendants in their answer admitted the delivery of the goods to them, but denied that the sale was, as counsel expressed it, a straight sale.

Action to recover commission for negotiating a sale of cattle. Judgment was rendered for the defendant below by Milburn, J. Statement of the case by the justice delivering the opinion.

<p>Application for a writ of certiorari to review the action of the district court of the Third judicial district in adjudging relator insane.</p>

Action to recover for professional services. Judgment was rendered for the defendant below by Hunt, J. - Statement of the case by the justice delivering the opinion. The plaintiff brought this action to recover on quantmm meruit for professional services rendered to the defendant in trying a lawsuit. He sued for §1,000. There seems to be no dispute but that this sum was reasonable.

Conviction for murder in the second degree. The defend-' ant was tried before Showers, J. The continuance should have been granted, and a refusal to grant a continuance upon a proper showing is ground for reversal. , (United States v. Fox, 3 Mont. 517, § 253 Code Civil Proceed.; Territory v. Davis, 10 Pac. 359; Territory v. Kinney, 9 Pac. 599; State v. Hand, 31 Pac. 146; Sutton v. People, 10 N. E. 376.) It was obligatory on the state to call the persons who were witnesses of…

Action for damages for death. The cause ivas tried before Hunt J. Defendant had judgment below. Statement of the case by the justice delivering the opinion. The plaintiff here, as administratrix and personal representative of John J. Thompson, deceased, brought this action, for the benefit of his heirs at law, to recover damages by reason of the death of deceased, alleged to have been caused by the negligence of the defendant. The verdict of the jury was for the defendant.

Action on promissory notes. Judgment on the pleadings was íendered for the plaintiff below by Henry, J. Statement of the case by the justice delivering the opinion. This action was brought by the plaintiff against the defendants upon two promissory notes made payable to plaintiff, and one promissory note payable to John T. Wood, and indorsed to plaintiff. All the notes were signed by the defendants as administrators of the estate of Jonas Higgins, deceased.

Original proceeding. Application for a writ of mandamus to compel the state board of examiners to endorse and transmit to tbe state auditor claims against tbe bounty fund.

<p>Injunction — Actiore on bond — Damages—Mtorn/y’s fees— An attorney’s fee paid to procure the dissolution of a temporary injunction.is recoverable as an item of damages in an action on the injunction bond;' but when the fee is paid for services in the entire case and the'services are not separated so as to show how much of the fee, if any, was paid specially for procuring the dissolution of the injunction, it is not recoverable. (Creek v. McManus, 13 Mont. 152, distinguished.)</p> <p>Same — Damages -Evidence. — In an action on an injunction bond it is admissible to show that other causes than the injunction produced the damage complained of.</p> <p>Same — Damages—Value of work. — Whether or not certain work was rendered valueless by the issuance of an injunction temporarily restraining its completion is a question of fact for the jury.</p>

Action on an official bond. Judgment was rendered for the defendants by McHatton, J., on demurrer to the complaint. Statement of the case by the justice delivering the opinion. The plaintiff recovered a judgment against the defendant Lytle for damages by reason of an unlawful seizure by Lytle, as constable, of personal property belonging to plaintiff. The seizure by the constable was made in an action in which persons other than this plaintiff were defendants.

Adverse suit. The cause was tried before Speer, J. Plaintiffs had judgment below. Statement of the case by the justice delivering the opinion. The defendants made application in the United States land office for patent upon the Ramsdell quartz lode mining claim. The plaintiffs, Murray et al., filed their adverse claim in the land office, and then commenced this action.

Appeal from Third Judicial District, Granite Gounty. Appeal from the allowance by county commissioners of a claim against the county. Judgment dismissing the appeal was rendered for tbe defendants by Woody, J., sitting in place of Brantley, J.

Ejectment. The cause was tried before Armstrong, J. Defendant had judgment below. The description in the complaint is so defective as to be void for uncertainty.

Action on promissory note. Judgment on the pleadings was rendered for the defendant by Speer, J. Statement of the case by the justice delivering the opinion. The plaintiff sued the defendant on a promissory note. Defendant concedes that the complaint was perfectly good.

<p>Appeal from Second Judicial District, Silver Bow County.</p> <p>Action on promissory note. The case was tried before Mc-ÜATTon, J. Plaintiff had judgment below.</p>

Action on an account. Judgment was rendered for the plaintiff below by Speer, J. It is within the discretion of the court under section 22 of the Code of Civil Procedure (1887), to allow a person to be substituted upon application, and when the court is satisfied that such person has had transferred to him the cause of action pending, it makes the order of substitution, as in this case. (Moss v. Shear, 30 Cal. 476; Cama/rilloY.

Defendant’s motion to vacate the judgment was granted by Speer, J. Statement of the case by the justice delivering the opinion. This is an appeal from an order of the district court setting aside the default of the defendant, and the judgment in favor of plaintiff in pursuance to that default. There are a number of questions which have been argued upon the appeal, among them the claim that the summons in this case was insufficient.

Action for services rendered. Judgment by default. Defendant’s motion to vacate the default was denied by Speer, J. Statement of the case by the justice delivering the opinion. This is an appeal from an order of the district court denying the defendant’s motion to open a default. Among other grounds relied upon for opening the default was alleged excusable neglect by the defendant.

<p>Justice Coubt — Pleading assignment of account — In an action upon an assigned account the complaint should plead the assignment although the action be instituted in . a justice court.</p>

<p>Aepeai, — Confession of error — Judgment on demurrer. — In ejectment where the answer denied specifically all the material allegations of the complaint and undertook to set up title in the defendants, to which a demurrer alleging generally that the answer did not state facts sufficient to constitute a defense is sustained, and one of plaintiff’s counsel in this court confesses the error, the ease will be reversed without further examination.</p>

<p>Appeal from Second Judicial District, Silver Bow Gou/nty.</p> <p>Action to enforce personal liability of trustee of a corporation. Defendant’s demurrer to the complaint was sustained by McHatton, J.</p>

<p>Appeal — Divided court. — On appeal, a divided court affirms the judgment.</p>

Foreclosure of mortgage. Plaintiff’s motion, after judgment, for a writ of assistance was denied by Speer, J. Statement of the case by the justice delivering the opinion. Plaintiff appeals from an order of the district court refusing to issue, at his request, a writ of assistance for the recovery of certain real estate in the possession of one of the defendants, Sarah Milne.

Action on contract.' The cause was tried before Showers, J. Plaintiff had judgment below. Statement of the case by the justice delivering the opinion. Plaintiff sues the defendants to recover the sum of $3,000, alleged to be due upon a contract for the payment of a commission by defendants to plaintiff, for the procuring a purchaser and effecting the sale of the Lucas Mine, owned by the defendants, and situated in Madison county.

<p>Ckimiiíai, Law — Improper remarks of counsel — Review on appeal. — To authorize the supreme court to review improper language used by the prosecuting attorney in argument to the jury, the defendant should have moved to strike out the objectionable remarks, or have requested the court to director instruct the jury to disregard them and have preserved his motion or request, with the ruling of the court thereon, in a bill of exceptions, and an exception to such language, without requesting or securing a ruling of the court thereon, is insufficient, since error cannot be predicated upon the mere silence of the court.</p> <p>Same — Same—Jury.—The trial court should, of its own motion, direct the jury to disregard a remark by the prosecuting attorney in argument to them that if they improperly convicted the defendant of murder in the first degree he would have his redress in the supreme court.</p> <p>Same — Trial—Harmless error. — Where a witness when called by the state gives evidence which was excluded when called by the defense, there is no error of which the defendant can complain.</p> <p>Same — Homicide—Evidence—Bes gestae. — On a trial for murder where it had been shown that the defendant had left the house where the killing afterwards took place and had returned to the front door, evidence that the deceased and other witnesses who saw defendant coming, exclaimed: “There he comes with a gun,” is admissible as part of the res gestae.</p>

<p>Cer.tiob.aki — Remedy by appeal. — Wliere it appears by the return to a writ of certiorari issued by this court to a justice of the peace, that the relator had applied to the district court for a similar writ and that the ease had been heard and a judgment entered quashing the writ, the writ issued from this court will be dismissed, since the relator’s proper remedy is by appeal from the judgment of the district court. (State ex rel. Johnson v. Gase, 14 Mont. 520, cited.)</p>

Action for an injunction to restrain mining upon the disputed portion of a vein, and for damages. Plaintiff’s application for a temporary injunction Was granted by Speer, J. Statement of the case by the justice delivering the opinion. This is an appeal from an order of the district court, granting a temporary injunction in favor of plaintiff and against defendant pending the final determination of the case. Each party is a mining company operating m the Butte district.

Original proceeding. Application by member of state capitol commission for mandamus to compel the state auditor to draw a warrant on the state capítol building fund in settlement of relator’s claim for compensation. Statement of the case by the justice delivering the opinion.

Original Proceeding. Application for writ of mandamas to compel the secretary of state to file a certificate of,the increase of the capital stock of a corporation. The filing of the certificate of the increase of the capital stock in the office of the secretary of state was provided for by section 808 of the Civil Code.

<p>Frivolous Appeal — Record—Docket fee. — Where there is nothing in the record on appeal to show upon what the district court acted in making an order refusing to tax a $25 docket fee upon retaxing costs, and the case is submitted without argument, the order will he affirmed and a penalty added for a frivolous appeal.</p>

<p>Appeal from First Judicial District, Lewis and Cla/rhe County.</p> <p>Action against corporation. Plaintiff took judgment by default. Defendant’s motion to vacate the judgment was denied by Blake, J.</p> <p>Statement of the case by the Justice delivering the opinion.</p> <p>Judgment by default in this case was -entered in favor of plaintiff. No appearance was made by the defendant, but after default and judgment the defendant áppeared specially, and only for the purpose of moving to set aside the default and judgment. The motion was based upon the summons, and return of the sheriff. No objection was made to the summons itself, but defendant claimed that it was not served as the law directs. The defendant is a corporation organized under the laws of this state.</p> <p>The return of the sheriff was as follows:</p> <p>“State of Montana, County of Lewis and Clarke. Office of the Sheriff.</p> <p>‘ ‘I hereby certify that I received the within summons on the 7th day of Jan., A. D. 1895, and personally served the same on the 7th day of January, A. D., 1895, upon T. E. Collins, a trustee, being the defendant named in said summons, by delivering to said T. E. Collins, trustee, personally, for said defendant, in the said county of Lewis and Clarke, a copy of said summons, having been unable to find any other officer of said company or corporation within this county.</p> <p>“J. Henry Jurgens, Sheriff, by C. H. Martien, Deputy Sheriff.</p> <p>“Dated Helena, Montana, January 7th, 1895.</p> <p>“[Indorsed]. Filed Jan. 7th, 1895. John Bean, Clerk.”</p> <p>The court having denied the motion to set aside the default and judgment, the defendant appeals.</p>

<p>Stjpbeme Court — Rules—Short causes. — Rule VII, 4a, of the supreme court allowing cases to be placed on the short cause docket, when counsel stipulate that in their opinion the cause can be fully presented in an argument of fifteen minutes to the side, is not intended to embrace cases which counsel stipulated may be argued in fifteen minutes, but contemplates cases which may be “fully presented” in that time, and where, upon an inspection of the record it appears that this cannot be done, the cause will be remanded to its regular place on the calendar.</p>

<p> Appeal from, Eighth Judicial District, Cascade County. </p>

Injunction to restrain school trustees from carrying out .an order changing text books -and from completing a contract for ' supplying the new. books. Judgment was rendered for the plaintiff below by McHatton, J. Statement of the case by the justice delivering the opinion. The plaintiff is a resident and taxpayer in school district No. 1 of Silver Bow county. The defendants constitute the board of trustees of said school district.

Action to recover value of timber cut by defendant on plaintiff’s homestead. The cause was tried before Woody, J. Plaintiff had judgment below. Statement of the case by the justice delivering the opinion.

Action to have deeds canceled as fraudulent. The cause was tried before Blake, J., who directed a judgment for plaintiff. Statement of the case by the justice delivering the opinion. On the 29th day of August, 1892, the plaintiff herein recovered a judgment against the defendant, Jacob Gerhold,' for $541.70 and costs. An execution was issued, and returned by the sheriff wholly unsatisfied.

Assumpsit. Judgment was rendered for the defendant below by Milburn, J., on motion for nonsuit. Statement of the case by the justice delivering the opinion. The plaintiff brought this action for $310.68 for money alleged to be loaned and advanced by plaintiff to defendant • at the special instance and request of the defendant.

Original Proceeding. Mandamus to state treasurer to compel him to register a warrant issued by the arid land commission. Statement of the case by the -justice delivering the opinion. This is a proceeding against Wright, as state treasurer; to compel him to register a warrant drawn by the arid land commission. Kelator’s petition alleges the appointment of the arid land commission, pursuant to the act of the legislature, approved March 18, 1895, concerning state arid lands.

Action for dissolution of a partnership and an accounting. The cause was tried before McHatton, J., without a jury. Plaintiff had judgment below. Statement of the case by the justice delivering the opinion. The principal relief sought in the action was an accounting and dissolution of a partnership alleged to have existed be-plaintiff and B. J. Fine, defendant, for the purpose of working, leasing and bonding the Shonbar and Mary Ann mining claims.

<p> Appeal from Third Judicial District, Deer Lodge County. </p> <p>Claim and Delivery. Defendant’s motion to vacate the judgment and default was denied by Brantley, J.</p>

Injunction to restrain the opening of a county road. Defendant’s motion to dissolve the temporary injunction was granted by Du Bose, J. Statement of the case by the justice delivering the opinion. Plaintiff, it is alleged, owns the E. -J of the S. W. and the W. of the S. E. x of section 18, and is in the lawful possession of the E. of the N. W. J of said section, all in township 13 N., range 12 E., in Fergus county.