Volume 18 — Montana Reports

CoNVigtioN for manslaughter. The defendant was tried before Benton, J. Statement of the case by the justice delivering the opinion. The defendant was indicted for murder in the first degree, and convicted of manslaughter, in the killing of one Frank Bixby, in Cascade county, on August 18, 1895. He appeals from the final judgment of conviction. The information charges that the killing was done with a rifle.

Action for services rendered. Judgment was for the defendant. Plaintiff’s motion for a new trial was granted by Brantley, J. Statement of the case by the justice delivering the opinion. The plaintiff brought this action in quantum meruit for wages which he alleged to be due to him from the defendant for services performed by him as its superintendent, and also for the sum of $235, money expended by plaintiff for defendant. The case was tried to a jury.

<p>Fokeclosuris — Mechanic’s Man — Equity issue — Findings—New trial — In an action for the foreclosure of a mechanic’s lien filed against a building, the interior of which the plaintiff had papered, where the only controversy was as to the number of rolls of paper hung, which involved the question as to whether a roll of paper meant deducting anything for waste or not, findings of the jury upon these questions were not advisory merely, since there was no'equity issue involved, and therefore a motion to set them aside was properly denied. And when in such ease the evidence upon which the findings were based was conflicting, and it could not be said that the jury did not have testimony justifying their findings, an order denying a new trial will not be disturbed. Q</p>

Action to reform deed. The cause was tried before Du Bose, J., without a jury. Plaintiffs had' judgment below. Statement of the case by the justice delivering the opinion. This is an action to reform a conveyance to certain real estate.

Action on promissory notes. The cause was tried before Woody, J. Defendant had judgment below. Statement of the case by the court. This is a suit on three promissory notes. cThe answer admits the execution of the notes, and alleges that they were given in consideration of the purchase by defendant of certain improvements on real estate belonging to one Gr. A. Bennett; that said improvements were sold to defendant by L. J. Warner, the agent of said Gr.

<p>Appeal — Appearance through disha/rred attorney. — Where an appellant’s only appe ar anee in the supreme court is by the brief of an attorney who, since the appeal, has been disbarred for dishonorable and unprofessional conduct, the appeal will not be considered and the judgment therefore affirmed.</p>

Judgment was rendered for the defendant below by Armstrong, J. Statement of the case by the justice delivering the opinion.

Foreclosure of mortgage. Judgment was rendered for the plaintiff below by Henry, J. Statement of the case by the justice delivering the opinion. The plaintiff obtained judgment against the defendants for §13,334 upon a promissory note, and also for the foreclosure of a mortgage • upon certain real estate, given by the defendants to secure said note. A better view of the facts of the case will be obtained by referring to the case of Gassert v. Black, 11 Mont. 185.

<p>Railroads — Bight of way — Public land — Ejectment—Mere prior possession of land, which is afterwards included in a grant by congress to a railroad of a right of way of 200 feet on each side of the center of its track, is insufficient to maintain ejectment as against the railroad.</p> <p>Same — Use of-riyhtofway. — Occupancy of land within the right of way of a railroad company under a license from the company, by which the licensee was permitted to cultivate the same on condition of maintaining lawful fences and keeping the land free from combustible materials, is a use of that portion of the right of way by the railroad.</p>

Creditor’s Bill. Defendant’s demurrer was sustained by Armstrong, J. Statement of the case by the justice delivering the opinion. This is an action in equity, seeking to reach, and have applied to a judgment, assets and property alleged to be fraudulently disposed of and concealed. A demurrer to the complaint was sustained, and judgment accordingly entered for the defendants. Plaintiff appeals.

CoNvictioN for murder in the first degree. The defendant was tried before Blake, J. I. Where a party moves for a new trial on the ground of misconduct on the part of the jury, which took place during the trial, he must aver in his motioD, and show affirmatively that he and his counsel were ignorant, until after the jury had retired, of the fact of such misconduct.

Oeiginal Peoceeding. Application for writ of mandamus to compel the secretary of state to file a copy of relator's charter and other papers required by law to be filed by foreign corporations. Statement of the case by the justice delivering the opinion. The plaintiff, the Travelers’ Insurance Company, is an insurance corporation, organized and existing by special act of the general assembly of the state of Connecticut.

Original Proceeding. Application for writ of mcmdamm to compel secretary of state to file relator’s certificate desig nating an agent to receive process. Statement of the case by the justice delivering the opinion The petitioner is an insurance corporation, organized an existing under the laws of the state of New York.

. Appeal from Fifth Judicial District, Jefferson County. Mandamus to compel the issuance of a sheriff’s deed at the expiration of six months from the sale of mortgaged premises under a decree of foreclosure. The writ was denied by Showers, J. Statement of the case by the justice delivering the opinion. This is an appeal from the judgment of the district court rendered in favor of the respondent, upon dismissing the relator’s application for a writ of mandamus.

Action on official bond of county assessor. Defendant’s demurrer to the complaint was overruled by Henry, J., and judgment entered for plaintiff. Statement of the case by the justice delivering the opinion. This is an appeal by the defendants from a judgment entered against them upon the overruling of their demurrer to the complaint. The question therefore is, does the complaint state a cause of action? Defendant Gardner was assessor of Meagher county.

ACTION on a bond. Judgment was rendered for the plaintiff below by Heney, J. Statement of the case by the justice delivering the opinion.

<p>Appeai< — Remitting judgment to prevent new trial. — In an action for damages for removing timber from respondent’s land where the jury returned a verdict of $800 in two items, one for $600, the value of the timber, and one for $200 the damages to the land, and a new trial was directed on appeal because the appellate court was unable to determine to what extent elements upon which the proof was legally insufficient entered into the latter finding,"the judgment will be modified on rehearing by reducing it $200 upon the offer of the respondent to wholly remit that portion of the verdict.</p>

Action for professional services. The cause was tried before Du Bose, J. Plaintiff had judgment below. Statement of the case by the justice delivering the opinion. Action to recover for professional services.

Action to recover a license fee. Judgment was rendered for the defendant below by Speer, J., on demurrer to the complaint. Statement of the case by the justice delivering the opinion. The state appeals from a judgment rendered against it upon ■the sustaining of defendant’s demurrer to the complaint.

Action in guardian’s bond. Judgment was rendered for the defendants below by Shower*, J., on demurrer to the complaint. Held: that the office of the guardian, as to the property, after the death of the ward, was simply that of a custodian, with the one duty to turn over the assets at once to the person or persons entitled to receive them. (Lawson’s Rights, Remedies and Practice, Yol. 11, 859. Schouler on Domestic Relations, 312; Am. & Eng. Enc. of Law, Yol.

Ninth Judicial District, Gallatim, County. ActioN by member of building and loan association to recover subscriptions paid in Judgment was rendered for the plaintiff below by Armstrong, J., on demurrer to the complaint. Statement of the case by the justice delivering the opinion. The defendant appeals from a judgment entered against it upon the overruling of its demurrer to the complaint.

<p>Constitutional Law— Railroads — ZiaMlity to employe. — Section 697, Piftli Division of the Compiled Statutes, declaring the liability of the corporation to an employe injured through the negligence of his superior to be the same as if the employe were a passenger, being originally part of an act for the incorporation of railroad companies in the territory, and having application only to corporations created under such act, imposes upon domestic railroad companies a burden not imposed upon foreign railroad companies operating within the state and was therefore annulled by the adoption of the state constitution, in which (§ li. Article XV) foreign corporations are prohibited from enjoying within the state any greater privileges than enjoyed by like corporations created under the laws of the state.</p> <p>Same — Self executing provisions— Section 11, Article XV of the constitution, declaring in eliect that domestic corporations shall not be discriminated against in the enjoyment or possession of rights and privileges that may be accorded to foreign corporations of like character, is self executing as a prohibition, but not as an affirmative imposition upon, or seeurement to, foreign companies of the rights or privileges only accorded by state laws to domestic companies.</p>

Injunction. Plaintiff’s application for a temporary injunction was granted by Buck, J. I. One tenant in common of a mine has the right to work it, on failure of his cotenants to work it. (a) At common law he has the right to work it (and take all the profits).

Action on promissory note. The cause was tried before Henry, J. Plaintiff had judgment below. Statement of the case by the justice delivering the opinion. This is an action on a promissory note. The execution of the note is admitted.

ElectioN Contest. Judgment was rendered by Milburn, J., declaring the election void as to both parties. Statement of the case by the justice delivering the opinion. The plaintiff, Gillespie, seeks to contest the election of Henry Dion, the defendant and contestee, to the office of county treasurer for Dawson county.

<p>See syllabus and opinion in Gillespie v. Dion, ante, page 183.</p>

MaNdamus. The writ was made peremptory by Speer, J. Statement of the case by the justice delivering the opinion. Mandamus to compel the respondent, defendant, to turn on the water for general use at a certain house in Butte.

Action in adverse claim. The case was tried before Henhy, J. Plaintiff had judgment below. Statement of the case by the justice delivering the opinion. This is an adverse claim suit, brought under section 2326 of the Revised Statutes of the United States, to determine the right of possession to certain premises in conflict. Plaintiffs’ adverse claim is founded upon a quartz location called the “ Grafton Lode,” made May 12, 1891.

ActioN to determine priority of water rights. The canse was tried before McHattok, J. Defendants had judgment below. Statement of the case by the justice delivering the opinion. This action was instituted by Harry Gassert, in his lifetime, to determine the right to the use of the waters of Brown’s gulch and its tributaries, in Silver Bow county, between the parties to this suit.

AotioN by tax payers to enjoin the county commissioners, clerk and treasurer, from issuing bonds. Decree was entered for the plaintiffs below by W. S. Hartman, Esq., special judge. Statement of the case by the justice delivering the opinion.

<p>S ee syllabus and opinion in Hoffman v. Board of Commissioners of Gallatin County, ante, page 224.</p>

Action for damages for constructing and maintaining ditches across plaintiff’s land. Judgment was rendered for the defendant below by Du Bose, J. Statement of the case by the justice delivering the opinion.

Action to recover for services rendered. Plaintiffs bad judgment below. Defendant’s motion for a new trial was granted by McHatton, J. Statement of the case by the justice delivering the opinion. Plaintiffs, who are partners, bring this suit to recover of the defendants commission for the sale of stock owned by defendants in the Silver Bow Hydraulic Mining Company.

' Action to quiet title. An order was made by Milburn, J., refusing to entertain the action for want of jurisdiction. Statement of the case by the justice delivering the opinion. Plaintiff pleads that he is the owner of lots 9 and 10 in block 66 of Miles City; that he became the owner of said lots on March 3, 1894, by tax deed duly made and executed, and delivered to plaintiff, by the treasurer of Custer county. The tax deed is made part of the complaint.

ActioN to vacate a fraudulent judgment and to compel conveyance of an interest in mining premises. A decree was rendered for the plaintiff below by Woody, J. Statement of the case by the justice delivering the opinion.

The writ was granted by Buck, J. Statement of the case by the justice delivering the opinion. Proceeding for writ of certiorari. The affidavit for the writ in this case shows that on the 17th day of March, 1894, Suesser & Aichele, co-partners, commenced a suit in respondent’s court against J. B. Simpson, the husband of relatrix, for $25.25 on an account; that summons was issued against J. B. Simpson in said suit.

Action on a fire insurance policy, Defendant’s motion for a nonsuit was granted by Benton, J. This is an action on a contract of fire insurance.

Action to recover purchase price of land on failure of title. Judgment, on the pleadings, was rendered for tbe plaintiff below by Armstrong, J.

<p>See syllabus and opinion in Moore y. Northern Pacific Railroad Company, ante, page 290</p>

Action for damages for personal injuries. The cause was tried before McHatton, J. Plaintiff had judgment below. Statement of the case by the justice delivering the opinion. This was an action brought by plaintiff against the defendant to recover damages from the defendant company, alleged to have been sustained on account of defendant’s negligence. Plaintiff was a laborer in the service of the defendant when he was injured.

<p> Appeal from Ninth Judicial Dishdct, Gallatin Cou/nfy. </p>

<p>Pueadikg — Scandalous matter — Prosecution under city ordinance. — A complaint for vagrancy under a city ordinance should not he dismissed because the charging part of the complaint concludes with scandalous matter, but such matter should be stricken out where the complaint, independently of the objectionable matter, sufficiently sets forth the offense.</p>

Action on claims against an estate. Defendant’s demurrer to the complaint was sustained by McHation, J. Statement of the case by the justice delivering the opinion.

Probate Proceeding. An order directing a partial distribution of the estate was made by McHattoN, J. Statement of the case by the justice delivering the opinion. This is an appeal by Anna M. Phillips, as executrix of the will of Geo. W. Phillips, deceased. Mary A. Snively, a legatee, under the will of Geo. W. Phillips, and Henry Camp, acting for several other legatees, applied to the court for a partial distribution.

ActioN by intervening creditor to determine priority of attachment liens. Tiie case was tried before Henry, J. Plaintiff had judgment below. Statement of the case by the justice delivering the opinion. This is an action by attachment, commenced in the district court of Meagher county, by the plaintiff against the defendants, on the 29th day of January, 1894, to recover the sum of $34,763.78 on certain promissory notes.

Action by judgment creditor. Judgment on the pleadings was rendered for the plaintiff below by Hunt, J. Statement of the case by the justice delivering the opinion. This is an appeal from a judgment rendered upon the pleadings, and also an appeal from an order refusing to open the default of defendant Welch.

ActioN for money had and received. The cause was tried before Brantly, J. Statement of the case by the justice delivering the opinion. Action for money had and received. The plaintiff bank alleges that the defendant and respondent, Barnes, received from the Granite Mountain Mining Company the sum of $226.18, to and for the use of the plaintiff bank. The case was tried to the court.without a jury.

Appeal f'tom Eiq1~th Judicial District, Cascade County. ACTION for conversion. The cause 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 the alleged conversion of personal property.

<p>Appeal from First Judicial District, Lewis and Olarlte Gounty.</p> <p>Foreclosure of mortgage. The intervenor’s complaint was dismissed by Blake, J.</p>

\n Action on promissory note. Judgment was rendered for tbe plaintiff below by Buck, J. Statement of tbe case by tbe justice delivering tbe opinion. The plaintiff sued the defendants upon a promissory note for $8,000 made by defendants to plaintiff.

<p>New Teial — Instructions—Specification of error. — A specification of error, which states that the court misdirected the jury in a material matter ol law, by giving to the jury certain instructions, described by number, because said instructions did not state the law correctly and were not applicable to the case, is too general to permit the review of tile instructions on appeal. (Woods v. Berry, 7 Mont. 196, cited.)</p> <p>Sam k — Notice of motion — Amendment—An amended notice of motion for a new trial, filed after the time for serving the notice of intention has expired, is too late to cure a defect in the original notice.</p> <p>Same — Amended notice — New specification of error. — Where an original notice of motion for a new trial specifies no error in a particular instruction the notice cannot be amended so as to specify error in such instruction, for this would not be the amendment of anything contained in the original notice but the introduction of a wholly new specification. (Gillespie v. Dion, ante, page 183; Barbour v. Briscoe, 8 Mont. 214, cited.)</p>

ActioN for damages. Defendant’s motion for a new trial was denied by Showers, J. Statement of the case by the justice delivering the opinion. The plaintiffs sued the defendant to recover damages alleged to have been caused by the appellant’s Brown’s, trespass upon an irrigating ditch, by reason of which trespass plaintiffs were prevented from irrigating their crops in the spring and summer of 1893.

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

ActioN on promissory note. The cause was tried before McHatton, J. Defendant had judgment below. Statement of the case by the justice delivering the opinion. Action on a promissory note made by the defendant, Loeber, to William Schneider or order, for $350, dated October 8, 1891, and due on or before November 8, 1891.

Action on promissory note. Judgment was rendered for the defendant below by Henby, J. Statement of the case by the justice delivering the opinion.

<p>Taxation — of way through Indian reservation — Yellowstone County — 'By the act of congress of February 12,1889, granting to the Bighorn Southern Railroad Company a right of way through the Crow Indian reservation, the land embraced within such right of way was thereby segregated and thrown open to settlement within the meaning of the act of March 5,1885 (Laws Mont.) declaring that all of a defined portion of such reservation that may hereafter be segregated and .thrown open for settlement shall form part of Yellowstone county, and therefore.'so much oftsaid right of way as is embraced within such defined portions of the reservation is properly taxable in Yellowstone county.</p>

Contract. The cause was tried before Du Bose, J. Plaintiff had judgment below. Statement of the case by the-justice delivering the opinion.

EepleviN. Judgment was rendered for the plaintiff below, by Buok, J. Statement of the case by the justice delivering the opinion. Defendants appeal from a judgment rendered in favor of plaintiff upon the sustaining of plaintiff’s demurrer to the answer. The action is replevin.

Action for damages for personal injuries. Defendant’s motion for a new trial was denied by MoHatton, J. Statement of the case by the justice delivering the opinion. Action to recover damages for personal injuries sustained by plaintiff John O’Donnell (now deceased), by reason of bis falling into a cellar belonging to the defendant, and abutting a sidewalk in Butte.

Appeal jrom Tenth Judicial District, Fergus County. Plaintiff’s motion to retax costs on return of remittitur was granted by Du Bose, J. Statement of the case by the justice delivering the opinion. Upon the original trial in the district court, plaintiff had judgment. Defendants appealed. The judgment was reversed. (14 Mont. 405.) Upon the return of the remittitur, defendants filed in the district court their memorandum of costs.

Action on bond. Defendant’s motion for a new trial was denied by McHatton, J. Statement of the case by the justice delivering the opinion. On June 4, 1892, the plaintiff, a foreign insurance company, appointed the defendant William J. Crittenden its agent. This agency continued until August 30, 1893, upon which date Crittenden rendered an account to the plaintiff, showing that he had received 1878.20 as agent, which he had not paid over to the plaintiff.

ActioN on contract. Judgment was rendered for the plaintiff below by Speer, J. Statement of the case by the .justice delivering the opinion. The plaintiff brought this action to recover $2,500, alleged to be due by the defendant under the terms of a contract entered into between plaintiff and defendant, and to recover one-fourth of the profits under the contract referred to.

Action to enjoin interference with water right. Judgment was rendered for the defendant below by Bkasítly, J. Statement of the case by the justice delivering the opinion. This was an action brought to restrain the defendant from interfering with an alleged water right of the plaintiffs. The case was tried to the court without a jury. Findings were made upon which judgment was entered for the defendant.

Action for a penalty. Judgment was rendered for the defendants below by McHatton, J. Statement of the case by the justice delivering the opinion. Upon the sustaining of the defendants’ demurrer to the complaint, judgment was rendered in their favor, and the plaintiff appeals.

<p> Appeal from Seventh Judicial District, Yellowstone County. </p> <p>Ejectment. Judgment was rendered for the defendant below by Milburn, J.</p>

Action for reformation and foreclosure of mortgage. Judgment was rendered for the intervenor by Brantley, J. Statement of the case by the justice delivering the opinion. The plaintiff in this case appeals from a judgment rendered in favor of the intervenor, L. H. Sinclair. The plaintiff, Hannah Baker, commenced the action to foreclose a mortgage against J. H. Bartlett and wife. The Bartletts defaulted. Sinclair filed a complaint in intervention.

Oeiginal Peoceeding. Action to enjoin opening of a registration office prior to the second Tuesday of October, 1896. Statement of the case by the justice delivering the opinion. Original proceeding.

Action by assignee for conversion. Judgment was rendered for the plaintiff below by McHatton, J. Statement of the case by the justice delivering the opinion. The plaintiff, Anna Rosenstein, brought this action as the assignee for the benefit of the creditors of Isadore Rosenstein. She sued the defendants, who were, ■ respectively, a justice of the peace and a constable of Silver Bow county.

Action on account. Defendant’s motion to dissolve the attachment was denied by Speek, J. Statement of the case by the justice delivering the opinion.

Original Proceeding. — Application for a writ of certiorari to review the action of the State Board of Equalization, consisting of the governor, secretary of state, state treasurer, state auditor and attorney general, in increasing the total valuation of property returned to it by the assessors and county boards of equalization of the several counties. Statement of the case by the justice delivering the opinion. The relators are resident taxpayers in the state of Montana.

ORIGINAL Proceeding. Application for a writ of certiorari to review an order of the district court directing the relator as special administrator to pay an indebtedness of the estate. Statement of the case by the justice delivering the opinion. H. B,.

ActioN on promissory note. Judgment whs rendered for the plaintiff below by McHatton, J. Statement of'the case by the justice delivering the opinion. The plaintiff and the defendant Olds together signed a promissory note payable to the Silver Bow National Bank of Butte. After renewals of the note, the plaintiff was obliged to pay the same. He then brought this action against all these defendants.

<p>Negligence — Fellow servants — Railroads—A laborer employed by and acting under the orders of a section foreman on a railroad, who is injured by the negligence of the foreman in not warning him of the approach of a yard engine, and the negligence of the engineer of the yard engine in operating his engine at dusk without using the whistle or bell and without a headlight, is a fellow servant with such foreman and engineer, and therefore the railroad company is not liable for the injuries resulting from their negligence. (Qoodwell v. Montana Central Railway Company, ante, 293, cited.)</p>

Action to annul certain conveyances as fraudulent. Judgment was rendered for the defendants below by Armstrong, J. Statement of the case by the justice delivering the opinion. This is an action to set aside a conveyance made by defendant Burk to defendant DeLong to certain real estate in Galla-tin county, and also a chattel mortgage to certain personal property made by said Burk to said DeLong for alleged fraud in the execution of said instruments.

ORIGINAL Proceeding. Application for an injunction. Statement of the case by the justice delivering the opinion.

Action on sheriff’s bond. The cause was tried before Henry, J. Plaintiff bad judgment below. Statement of the case by tbe justice delivering the opinion. Tbe plaintiff Maddox, and intervenor Gaddis, obtained a judgment in this case in the year 1888. That judgment was affirmed by the territorial supreme court (9 Mont. 126.) On writ of error from the supreme court of the United States the judgment of the territorial supreme court was reversed.

Conversion. Judgment was rendered for the plaintiff below by Milburn, J. Statement of the case by the justice delivering the opinion. This is an action for damages for the alleged conversion of personal property. It is alleged in the complaint that the sheep in question were purchased by E. E. Batchelor, as trustee of the plaintiff bank.

<p>Appeal jrorn Eighth Judicial District, Cascade County.</p> <p>Action to foreclose mechanic’s lien. Judgment was rendered for the defendants below by Benton, J.</p>

Action to foreclose a mechanic’s lien. Judgment was rendered for the plaintiff below by Speer, J. Statement of the case by the justice delivering the opinion. This is an action by Murray Bros., co-partners, to foreclose a mechanic’s lien on certain property formerly owned by the defendant Swanson, and to have the claims or liens of the other defendants declared inferior to the lien of plaintiffs.

Action to determine the liability of the city for repairs on a bridge within the city limits. Submitted on an agreed statement of facts. J udgment was rendered for the county by Benton, J. Statement of the case by the court. The controversy for determination is whether the city of Great Falls or the county of Cascade is liable to repair and maintain a wagon bridge spanning the Missouri river in that city.

<p>Elections — Nomination by petition — A list of persons cannot be placed upon the official ballot as candidates of a so-called Silver Republican party upon a petition filed with the county clerk nominating such persons for their respective offices as candidates of such party. (State exrel. Woody v. Botwitt, ante, 602, cited.)</p> <p>Samb — Nomination by certificate of a committee— The nomination of a list of persons as candidates of a so-called Silver Republican party by a certificate filed with the county clerk purporting to certify their nomination as by the central committee of the Silver Republican party is ineffectual where no convention held by such party had ever delegated this power to a committee. (State ex rel. Pigott v. Benton, 13 Mont. 306, cited.)</p> <p>Same-Nomination by members of a political club. — A. certificate purporting upon its face to be that of a county convention of the Silver Republican party and nominating a county ticket composed of Republicans, Silver Republicans, Democrats and Populists, is insufficient to authorize the placing of their ¿names upon the official ballot, where it appeared that the nominations were in fact made at a meeting of some fifty members of a Silver Republican club having four hundred members ; that the officers signing the certificates were the presiding officer and secretary of the club ; that no primaries were ever held ; no call for a conventioh ever made; nor any person ever elected as a delegate to a convention, or notice given that a convention was to be held, — since such proceedings were not those of an organized assemblage of delegates representing a political party within the meaning of section 1310 of the Political Code.</p> <p>Equity — Prayer fir judgment — The judgment in an equity case is not controlled by the prayer for relief. (Davis v. Davis, 9 Mont. 268; Kleinschmidt v. Steele, 15 Mont. 188, cited.)</p>

<p>Oeiginau Peoceeding. Petition for an injunction.</p>

<p>OeigiNal Proceeding. Petition for an injunction.</p>

<p>Elections — Conventions—Goutending factions. — 'Where tiie regularly elected delegates to a republican county convention upon assembling were unable to agree on an organization, whereupon a portion of the delegates withdrew and assembling at another place, nominated a county ticket and adopted the name of the Silver Republican party, but without any intention of forming a new party, but for the purpose of designating the party for and as a principle only, and to prevent confusion in the identity of the two tickets the court will not inferiere at the instance of one faction to restrain the county clerk from placing on the official ballot the ticket nominated by the other faction. Such a contention in the ranks of regularly elected delegates will be left to the electors to determine.</p>

<p>Original Proceeding. Petition for an injunction.</p>

<p>See syllabus and opinion in State ex rel. Matts v. Reek, ante, page 557.</p>

<p>Oeiginal Peoceeding. Petition for an injunction.</p>

<p>ORIGINAL Proceeding. Petition for injunction.</p>

Action to recover money paid by plaintiff as surety for defendants. Judgment on the pleadings was rendered for the defendants below by McHatton, J.

Action for conversion. The cause was tried before Henrv, J., without a jury. Judgment was rendered for the plaintiff below. Statement of the case by the justice delivering the opinion. This action grows out of the alleged conversion by the defendants of chattels mortgaged to the plaintiff and the inter-venors. Burchard & Pierse, merchants at Neihart, becoming involved, on July 3d 1893, executed a chattel mortgage to one Atkinson to secure a note for $4,100.

Action to recover for services. Judgment was rendered for the defendant below by McHatton, J. Statement of the case by the justice delivering the opinion. By this action- plaintiff seeks to recover of the defendant the sum of $1,750, claimed to be a balance due plaintiff for his services as superintendent of the mining and milling operations of the defendant in Idaho and Montana. The answer admits the services, but denies the value thereof, and also pleads a counterclaim.

Action on sheriff’s bond. Judgment was rendered for the plaintiff and intervenor below by Henry, J. Plaintiff appeals from the judgment in favor of the intervenor. Respondent should not have been permitted to intervene. (Horny. Volcano Water Co., 13 Cal. 62; Smithy. Gale, 144 U. S. 509; Lewis v. Harwood, 28 Minn. 428; Speyer v. Ihmels, 21 Cal. 287; Gradwohl v. Harris, 29 Cal. 154; Stich v. Dickenson, 38 Cal. 611; Pomeroy on Rem. § 423-431; note to Drown v. Saul, 19 Am.

Petition for letters of administration. Orders granting the petition of the public administrator and denying the petition of a person nominated by the decedent’s widow were made by Woody, J. Statement of the case by the justice delivering the opinion. John P. Stewart died intestate at Missoula county, on March 24th, 1895. He left an estate valued at about $15,000. There survived him his wife, aged sixteen years, and one minor child.