Volume 24 — Montana Reports

Application in the name of the State of Montana, on the relation of Daniel Shields and another, as executors of the estate of James Tuohy, for a writ of certiorari to annul an order made by the district court of the Second judicial district. Statement op the Case.

K. Armstrong, Judge, Action by Pat Toohey against W. S. Campbell and another and B. Graham, intervenor, to establish an irrigation water right. From a judgment in favor of plaintiff, defendants appeal.

<p>Water Sights — Appropriation—Easement—Appurtenance to Land — Burden of Proof — •Mortgage—Abandonment— Sight to Possession.</p> <p>1. Where one rightfully in possession of nonriparian land under a contract with the owner appropriates water from the public domain, and conducts it by means of a ditch on the public domain to, and continuously uses it on, such land, he acquires title to the water right and ditch; and it does not become appurtenant to the land in the absence of a conveyance from the appropriator to the owner of the land, — but will pass under a mortgage by the appropriatorof the land and water right.</p> <p>2. Under the laws of Montana an appurtenance to land must be an easement. ■</p> <p>3. A water right when once appropriated includes and comprehends an easement.'</p> <p>4. A water right, legally acquired, is in the nature of an easement in gross, which according to circumstances may or may not be an easement annexed or attached to certain land as an appurtenance thereto.</p> <p>5. The legal title to the land upon which a water right lawfully acquired by appropriation on the public domain is used, or intended to be used, in no wise affects the appropiator’s title to the water right.</p> <p>6. Where one holds land by defective or inchoate title, and a servitude upon or an easement in it by a valid title, the servitude or easement is not extinguished by unity of possession.</p> <p>7. An easement can become legally attached to a parcel of land as appurtenant thereto only by unity of title in the same person to both the dominant estate and the easement claimed.</p> <p>8. The record on appeal in water right cases should contain a diagram of the situation of the ditches over which the litigation has arisen.</p> <p>9. One who asserts that a water right and'ditch are appurtenant to certain lands has the burden of proving it, and, if he claims title thereto, he must connect himself with the title of the prior appropriator.</p> <p>10. Section 1078 of the Civil Code cannot be construed to deprive one having merely a possessory right in land, who appropriates a water right from the public domain for use on such land, of his title to such water right and make it appurtenant to the land, the title whereof is in another, since such interpretation would be violative of Section 1882 of the Civil Code. ,</p> <p>11. Where one who has appropriated water from the public domain for use on land, of which he is in possession under a contract with the owners thereof, mortgages his water rights, he will not be deemed to have abandoned such rights, so as to defeat the mortgagee’s title.</p> <p>12. Where one having a right to the possession of land appropriates water from the public domain for use on such land, and subsequently mortgages such right, the fact that the mortgagee has not used the water will not defeat an action by him against the ow.ner of the land, or one in privity with him, to obtain possession of and use of such water right, since until foreclosure the mortgagee would have no right to possession.</p>

<p>Appeal — ; Undertaking on Appeal — Sureties.</p> <p>1. Appellant appealed from a final judgment and from an order denying its motion for a new trial, the appeal bond was conditioned that it should be void if appellant paid ah damages and costs awarded against it “on said appeals, or on a dismissal thereof” not exceeding the sum of $300; Held, that the undertaking was insufficient in that the words “or either of them” should have been inserted in each of the alternative conditions, and because of such omission the sureties were not liable upon said unaertaking unless both appeals should be affirmed or both dismissed.</p> <p>2. Sureties are entitled to stand upon the precise terms of the obligation assumed by them.</p>

Certiorari by the State, on relation of Thomas Flynn, against the District Court of the Fifth Judicial District of Montana, in and for Beaverhead County, Hon. H. M. Parker, Judge, L. J. Price, Clerk, and others, to review a judgment in contempt proceedings against relator.

II. Mclntire, Judge. Petition by one Zimmerman, public administrator, etc., for the revocation of letters of administration on the estate of William Craigie, deceased. From an order denying the application, petitioner appeals. The matter of the appointment of an administrator is in fieri until, and not completed till he has qualified as such administrator.

II. Loud, Judge. Otway Jackson was committed to jail in default of security to keep the peace, and from an order of the district court denying his application for certiorari to review such commitment, and from an order denying his application for release on habeas corpus, he appeals. Statement ce the Case.

II. Woody, Judge. Action by the Cole Manufacturing Company against Charles Morton and others. From a judgment for defendants, plaintiff appeals. Statement oe the Case. The plaintiff and appellant brought this action against the defendants and respondents upon a written undertaking.

F. Smith, Judge. Action by the Missoula Mercantile Company against E. C. O’Donnell, Johanna S. Peterson, Olif Peterson and another. From a judgment in favor of plaintiff, and from an order denying a new trial, defendants Olif and Johanna Peterson appeal. Statement of the Case. This is an action to foreclose a lien for materials furnished by plaintiff for the erection of a brick dwelling upon lots 1 and 2 in block 99 of the town of Kalispell, Flathead county.

Nelson Peterson was convicted of murder in the first degree, and appeals. Complaint is made by counsel for appellant to the action of the court in refusing to admit testimony on the part of the defendant showing former beating, cruelty and ill treatment of the defendant by the deceased, and error is assigned on account of the ruling of the court excluding this testimony.

Smith, Judge. Action by Ferdinand Westheimer and others against A. L. Goodkind and another for conversion. From a judgment in favor of defendants, and an order overruling a motion for a new trial, plaintiffs appeal. Statement of the Case. This action was brought to recover damages for the alleged conversion of personal property, the title to which is claimed by the plaintiffs under a sale thereof by one Reeves to them. The jury returned a verdict for the defendants.

<p>Appeal— Undertaking on Appeal — Insufficiency—Dismissal. of Appeal — New Bond — Failure to File — Excusable Neglect — Mechanics' liens — Attorney's Fees.</p> <p>1. Code of Civil Procedure, Section 1725, declares that an undertaking on appeal shall be to the effect that appellant shall pay all damages and costs awarded against him on the appeal, or a dismissal thereof; Section 1726 requires a distinct undertaking to secure a stay of execution pending appeal; and Section 1731 authorizes the two undertakings to be executed in the same instrument, at appellant’s option. Held, that where appellant’s undertaking on appeal omitted the alternative condition for a dismissal of the appeal, it was insufficient, and the defect could not be cured by inserting such provision in that part of the undertaking providing for a stay of execution.</p> <p>2. Code of Civil Procedure, Section 1740, declares that no appeal shall be dismissed for insufficiency of the undertaking, if a sufficient undertaking, approved by a justice of the supreme court, he filed before the hearing of the motion to dismiss. Held, tliat where appellant'failed to file a new undertaking, she could not prevent a dismissal of the appeal on the ground of excusable neglect, on her affidavit that she had no notice of the motion to dismiss the appeal, and that of her attorney that he notified a appellant’s husband that she should procure a new undertaking, and, because of the husband’s promise to inform her, the attorney made no further effort in the matter.</p> <p>3. Though counsel for respondent on dismissal of an appeal of a suit to foreclose a mechanic’s lien is entitled to a reasonable fee for his services in the appellate court by Code of Civil Procedure, Section 1863, such fees must be fixed and allowed by the » district court on the return of remittitur.</p>

<p>Appeal and Error — Appeal Bond — Sufficiency—Motion to Dismiss — l( Communis Error Facit Jus” — Defecti/oe Bond Reinstatement — Wew Bond.</p> <p>1. A single bond on appeal from a final judgment and from an order denying a new trial, conditioned to be void if appellant paid all damages and costs awarded against it on such appeals, or a dismissal thereof, is insufficient.</p> <p>2. Where a motion to dismiss an appeal has been made, for insufficiency of the appeal bond, the maxim, “Communis error facit jus,” does not apply, because a great many appeals during the past have been secured by undertakings equally as defective.</p> <p>3. Code of Civil Procedure, Sec. 1740, provides that an appeal may be dismissed if the appellant fails to furnish the requisite papers; and, where a motion to dismiss for failure to file sufficient bond on appeal has been submitted, the court cannot permit the filing of a sufficient bond, and reinstatement of the appeal thereby.</p>

<p>Injunction — Proceeding m Contempt — Insignificant Violation — Violation l>y Mistake — Affidavits—Pleading.</p> <p>1. An insignificant technical violation oí an injunction will not be punished as a contempt, where the violation was not with any intention to disobey the injunction.</p> <p>2. Where defendants’ foreman is instructed to run a drift in a westerly direction, and, through misunderstanding his orders, by mistake, runs it in an easterly direction, on plaintiff’s mining claim, and extracts ore therefrom, in violation of an injunction restraining defendants from mining and extracting ore from plaintiff’s mines, defendants are in contempt of court.</p> <p>3. One who would charge a contempt should aver directly, and not argumentatively, that the particular acts constituting contempt were done by the defendant, hence, proceedings in contempt for violating an injunction will be dismissed, where plaintiff’s affidavits charge argumentatively that defendant is guilty by stating that the acts complained of were not committed by plaintiff, nor by another named in the affidavits; leaving defendant’s guilt to be established by inference.</p>

<p>Injunction — Dissolution—Damages—Attorney’s Fees.</p> <p>An attorney’s fee expended in procuring a dissolution of a restraining order is contemplated Dy tlie bond given on the issuing of the injunction.)</p>

<p> Appeal from District Court, Custer County, C. H. Loud, Judge. </p> <p>Action by J. B. Cole and another against Jepp Ryan. From an order denying plaintiffs a new trial, they appeal.</p>

<p>Appeal — New Trial — Record on Appeal — Insufficiency of the Evidence to Justify Fundings — Implied Findings — Review.</p> <p>1. Where the record does not show that the statement on motion for a new trial eon- • tains all the evidence, an examination cannot be made, on appeal, of its alleged insufficiency to support a finding of fact.</p> <p>2. Where appellant claims that the trial court erred in its conclusions of law deduced from its findings of fact, but had failed to point out the particular defects in the findings made by the court, and to save his exceptions, as required by the Code of Civil Procedure, Section 1114, the Supreme Court will not examine into that question.</p> <p>3. Under the doctrine of implied findings prevalent in Montana, a judgment appealed from will not be reversed unless requests and exceptions were made and saved in accordance with the requirements of the Code of Civil Procedure.</p>

Action by the Butte & Boston Consolidated Mining Company against the Montana Ore Purchasing Company and others, to recover damages for wrongful removal of ore from a mine, and to restrain its further operation. From an order dissolving a temporary restraining order and denying an injunction pendente lite, plaintiff appeals. Order dissolving the restraining order affirmed, and order denying the injunction pendente lite Statement of the Case.

<p>Justice of the Peace — Docket—Judgment hy Default — Evidence — Jurisdiction.</p> <p>1. A judgment by default rendered by a justice o£ the peace in plaintiff’s favor when plaintiff fails to appear at the time set for the hearing of the case, is void for want of jurisdiction.</p> <p>2. The docket of a justice of the peace must show affirmatively facts necessary to confer jurisdiction.</p>

Complaint by the Boston & Montana Consolidated Copper & Silver Mining Company against the Montana Ore Purchasing Company and others. Erom an order vacating a temporary restraining order, the plaintiff appeals. Affirmed.

F. Armstrong, Judge. ' Action by Louis Dietrich against J. E. Martin and another on a redelivery bond given in attachment proceedings. From a judgment in favor of defendants, and an order overruling a motion for a new trial, plaintiff appeals.

Suit by James Forrester and John MacGinniss against the Boston & Montana Consolidated Copper & Silver Mining Company and others. From an order refusing to vacate an order appointing a receiver, defendants appeal.

<p>Taxation — State Board of Equalization — Powers—Constitution — Adoption of Provision from. Constitution of Another State — Interpretation.</p> <p>1. Under Constitution, Art. XII., Section 15, the state board of equalization is without power to increase or decrease the total valuation oí the property in the state as shown by the'abstracts transmitted to it by the county boards. (State ex rel. Wallace v. State Board of Equalization, 18 Mont. 473. Affirmed.)</p> <p>2. Under Constitution, Art. XII., Section 15, the state board of equalization is without power to increase or decrease the valuation of any specific class or classes of property above or below that fixed by the county boards as shown by the abstracts transmitted to the state board, — its authority being limited to raising or lowering the entire assessment of a county.</p> <p>3. Where, in construing a provision of the state constitution, it appears it was adopted from the constitution of another state, and that previous to such adoption the court of last resort of the parent state had placed on the provision an interpretation not clearly erroneous, the presumption is that the convention adopting the provision was conversant with, and designed to adopt, the interpretation given.</p>

Action by Peter Wastl against the Montana Union Railway Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Statement op the Case. This is an action for damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. A judgment for the plaintiff was reversed on a former appeal, and the cause was remanded for a new trial.

F. Smith, Judge. Assumpsit by Conrad National Bank of Kalispell against the Great Northern Railway Company to recover a balance on account of labor performed for defendant, and for board, food, and lodging, and goods, wares, and merchandise, furnished by plaintiff’s assignor to employes of defendant at its special instance and request. Defendant’s demurrer to the complaint was overruled, and judgment entered in favor of plaintiff, and defendant appeals.

Rrantly, Judge. Action by the A. M. Holter Hardware Company against the Ontario Mining Company and others to enforce a mechanic’s lien. From a judgment establishing a lien for part only of plaintiff’s claim, and of the claims of certain defendants, plaintiff and defendants J. P. Newton and Caird & Hawks-worth appeal. Cited: Alvord v. Hendrie, 2 Mont. 122; Fra/nkovisy.

BrantVy, Judge. Action by the A. M. Hotter Hardware Company against the Ontario Mining Company and others to enforce a mechanic’s lien. From a judgment denying a lien to defendant Continental Oil Company, it appeals.

Action by William McGuigan against John B. Hennessy. From a judgment for defendant, plaintiff appeals.

Drcmtly, Judge. Action by Peter Vincent against Gordon C. Vineyard and others to recover as assignor of a homestead mortgage. From a judgment in favor of the plaintiff, defendants appeal. Statement of the Case. This appeal is from a judgment entered in an action upon a note and mortgage made by the defendants Vineyard to one Carroll, and by him assigned to the plaintiff.

Brantly, Judge. Action by Daniel N. Dellinger against Gordon C. Vineyard and others, to determine the priorities between incumbrances upon real property. From a judgment in favor of defendants, plaintiff appeals.

B. Leslie, Judge. Action by G. H. Jay, as assignee of a teacher’s claim for services, against School District No. 1 of Cascade county. From a judgment overruling a demurrer to the complaint, defendant appeals. Statement of the Case. Action by plaintiff, G. H. Jay, as assignee of one Helen Edgerton, to recover the sum of $120 for the services of said Helen Edgerton as teacher in the public schools of School District No. 1, Cascade county, Mont.

On Motion to Dismiss Appeals. Appeal from District Court, Silver Bow County; John Lindsay, Judge. Action by Cora E. Ramsey against P. JEL Burns, as justice of the peace, and others. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.

On Motion to Dismiss Appeals. Appeal from District Court, Silver Bow County/ John Lindsay, Judge. Action by Elizabeth Coleman against Oliver N. Perry and others. From a judgment for plaintiff, and an order denying his motion for a new trial, defendant appeals.

<p>Application for certiorari by the state, on relation of B. L. Baker, against the Second Judicial District Court for Silver Bow county, and William Clancy, the judge thereof.</p>

<p> On Motions to Dismiss Appeals. </p>

Appeal prom District Court, Lewis a7id Ciarke County/ Ilewy N. Dlalte, Judge. Action in ejectment brought by T. C. Power and John B. Wilson against James Sla and Con. Kelly. From a judgment in favor of plaintiffs, defendants appeal. Statement oe the Case.

U. Parker, Judge. Action by L. C. Trent and S. V. Trent, partners as L. C. Trent & Co., against Henry L. Sherlock, for possession of personal property. From a judgment in favor of plaintiffs, and an order overruling a motion for a new trial, defendant appeals. Statement oe the Case. Action in claim and delivery.

3. Loud, Judge. Action by George R. Finch and others against Thomas Kent and wife. From a judgment in favor of plaintiffs, and from an order denying a new trial, defendants appeal. (Sumitted on briefs, without oral argument.)

Edward Mahoney was convicted of rape and he appeals. There were really two crimes charged in the information. Section 450 Criminal Code of the State defines Rape — to be— “an act of sexual intercourse under either of the following circumstances: Where the female is under the age of sixteen years.

Appeal Jrom District Court, Deer Lodge County; Theo. Brantly, Judge. Ejectment by Gr. W. Penn, and others against Claus Oldbauber. From a judgment in favor of defendant, and from an order denying a motion for a new trial, plaintiffs appeal. Statement oe the Case.

<p>Appeal and Error — Designation of Errors — Brief-—Argument — Dismissal of Appeal.</p> <p>Where Appellant fails to file a brief, or appear and make an argument after he has received notice of the time at which the cause has been set down for argument, he will be deemed to have abandoned his appeal, and the judgment appealed from will be affirmed, since it is incumbent on him to point out the errors relied on for a reversal.</p>

Action by Mary Ann Hurley against Patrick O’Neill. From a judgment in favor of defendant, and an order overruling a motion for a new trial, plaintiff appeals. On motion to dismiss the appeal as to the order denying a new trial. Dismissed.

Daniel Lucey was convicted of murder in the first degree, and he appeals. Statement of the Case. On July 1, 1899, in the district court of Silver Bow county, the defendant, Daniel Lucey, was found guilty of murder of the first degree, and on September 26, thereafter was condemned to death. From the judgment and an order denying him a new trial, he has appealed.

Application in the Supreme Court by Medora T. Ealeigh for writ of mandamus against the district court of the First judicial district to compel it to restore to its files a second contest to the probate of a will.

H. McLntire,. Judge. Action by Burt Monroe against Henry Cannon. From a judgment in favor of plaintiff, defendant appeals. Statement oe the Case.

On Motion to Dismiss Appeals. Appeal from District Court, Silner Bov) County, Joint Ijindsay, Judge. Action by Timothy Nolan against the Montana Central - Railway Company. From a judgment in favor of plaintiff, and an order denying a new trial, defendant appeals. Motion by plaintiff to dismiss the appeal.

Action by the State, on the relation of B. L. Baker, against the Second Judicial District Court in and for Silver Bow County, and the Hon. J ohn Lindsay, Judgs thereof, for certiorari.

Apoeal from, District Court Lewis and Clarice county; S. II. JLclutire, Judge. Action by J ohn AV. Wade against Lewis and Clarke county to recover mileage as county surveyor. Judgment for defendant, and plaintiff appeals.

<p>Criminal Law — Appeal from Judgment — Instructions — Record — Sufficiency—Review.</p> <p>The court in a criminal prosecution charged the jury that they were the exclusive judges of the evidence and its weight, and the credibility of the witnesses, and that they, on considering the evidence, might reject all or any testimony not supported or corroborated by other worthy and credible evidence. Held, that on appeal from the judgment, on the judgment roll, such instruction could be reviewed, though the record contained no evidence, since it was erroneous under any and every conceivable state of facts.</p>

On Motion to Dismiss Appeals. Appeals from District Court, Lewis and Clarhe County; Henry C. Smith, Judge. Action by Jennie Richter, individually and as guardian of Harry Richter and Florence Richter, miners, against the Eagle Life Association. From a judgment in favor of the plaintiff, and from an order denying a motion to vacate fhe same, defendant appeals.

’ C. Smith, Judge. Action by the World Package, Express & Messenger Company against the Trades Assembly and others to restrain defendants from interfering with plaintiff’s business. From an order dissolving a temporary injunction, and vacating an order to show cause, plaintiff appeals. Statement of the Case.

Cornue, against John Lindsay, Judge of the District Court of Silver Bow County. Statement of the Case. An alternative writ of prohibition was issued out of this Court commanding the Hon. John Lindsay, as Judge of the District Court of Silver Bow County, to desist from further proceedings in an action pending in that court wherein Ellen S. Cornue, the plaintiff in the present suit is the plaintiff, and Henry A. Boot, Andrew J. Davis, and others are the defendants.

<p>Injunction — Disobedience— Constructive Contempt —Affidavit of Facts — Refusal to Allow Defence — Certiorari.</p> <p>1. Code Civ. Proc. Sect. 2172, provides that, where a contempt is not committed in the court’s presence, an affidavit ot the facts shall be presented. Section 2173 authorizes the issuance of an order to show cause on such affidavit, and Sections 2178 and 2179 ■ provide that, when the person on whom the order to show cause was served appears, the court must investigate the charge and determine whether the person charged is guilty. Held, that it was improper to refuse to allow relator to move to dissolve a temporary Injunction, or to be heard in opposition to the motion to continue it, on the ground that he was in contempt for violating the injunction by posting notices on the property on which he was forbidden to go, when no contempt proceedings had been instituted against him and no opportunity was given him to defend himself in the matter.</p> <p>2. In all contempt proceedings — save for such as are committed in the court’s immediate presence — an affidavit is essential.</p> <p>3. In cases where the alleged contempt consists in the violation by a party of an order made in a civil suit still pending, such party is entitled to a separate and distinct notice of the contempt proceeding, in order that he may be afforded an opportunity to prepare his defense, — since every one has the inalienable right of being heard in his own defense.</p> <p>4. A non-appealable order, in the malting of which the court exceeded its jurisdiction, may be reviewed on certiorari.</p>

On Motion to Dismiss Appeals. Appeal from District Court, Deer Lodge County; Welling Nap ton, Judge. Action by F. S. Taney against Mary Yollenweidér. From a judgment in favor of plaintiff and from an order denying a new trial, defendant appealed. Motion^ to dismiss appeals.

On Motion to Dismiss Appeal. Appeal from District Court, Jefferson County, Henry C. Smith, Judge. Petition by Caroline Kelly for probate of the will of John D. Allport, deceased, to which Lillie Sue Farleigh and others filed objections. Contestants moved to dismiss proponent’s appeal from a judgment against her and an order denying a new trial.

Mandamus. — Original application by the state of Montana, on relation of Joseph Gehrett, against Joseph R. Wine, as registry agent of election district No. 1, in the county of Broadwater, for writ of mandate to compel the respondent to register the relator as a qualified voter.

Application by the State, on relation of Edward Scharnikow, for a writ of prohibition to prevent Thomas S. Hogan, secretary of state, from certifying the name of Welling Nap-ton as candidate for judge of the Third judicial district; and application by the state, on relation of J. M. Kennedy and others, for a writ of prohibition to prevent Martin Martin, county clerk of Deer Lodge county, from printing certain names in the column headed ‘ ‘Democratic’ ’ on the official ballot.

Original application by the state of Montana, on the relation of Edward Scharnikow, against Thomas S. Hogan, as secretary of state of the state of Montana, for writ of mandate to compel him to certify to the relator’s 'nomination. ¡Statement of the Case.

Original application for mandamus by the state, on relation of Edward Scharnikow, against Thomas S. Hogan, as secretary of the state of Montana, to compel defendant to certify relator’s nomination for the office of district judge. Granted.

Original application by the state of Montana, on the relation of J. M. Kennedy and others, against Martin Martin, as county clerk and recorder of Deer Lodge county, Montana, for a writ of mandate to compel him to file relators’ certificate of nomination. Statement of the Case.

Application by the state of Montana, on the relation of Charles W- Hoffman, for a peremptory writ of mandamus against A. E. Davidson, as registry agent of election district No. 13, in Gallatin county, requiring said defendant, as such registry agent, to register the plaintiff.

Original application for mandamus by the state, on the relation of L. D. Hatch and others, against Howard D. Smart, as county clerk and recorder of Ravalli county, to compel the printing of their names on the official ballot in the Democratic column.

Certiorari by the state, on the relation of B. L. Baker, against the Second Judicial District Court and another. On a dismissal of the proceedings, defendants made a motion to tax costs.

Mandamus by the state on the relation of the' Northern Pacific Railway Company, against C. H. Loud, as judge of the Seventh judicial district in and for Custer county.

Original application by the state on the relation of George A. Clarke for an injunction to restrain John E. Moran, county clerk and recorder of Silver Bow county, from printing upon the official ballot a ticket designated as the “Eight Hour Republican Party” ticket. Statement of the Case.

Original application by the state on the relation of Edward Lannen and others, for an injunction to restrain Daniel Arms, as county clerk and recorder of Granite county, from printing upon the official ballot a ticket designated as the ‘ ‘Bryan Democratic” ticket.

Certiorari by the state of Montana, on the relation of C. W. Allen, substituted for J. H. Duffy, to Welling Napton, judge of the district court of the Third judicial district of Montana for the county of Deer Lodge, to vacate an order requiring plaintiff in an action appealed from a justice’s court, in which he was appellee, to give bond required by statute to be given by a nonresident plaintiff.

Action by the Bennett Bros. Company against K. D. Tam. tí. F. Fitchett intervened. Judgment against plaintiff, and it appeals. Held: “The general doctrine of the American cases is not universally conceded, and there are many cases holding that, where chattels are sold and delivered conditionally, that the vendor’s right to the property will remain good as against the vendee and his voluntary assignee, but not as against a bona fide purchaser without notice. ” (3…

On Motion to Dismiss Appeals. Action by Rockwell King against the Pony Gold-Mining Company and others. Judgment for plaintiff. Defendants Henry Elling and another appeal. Plaintiff moves to dismiss appeals.

Action by the Charles Schatzlein Paint Company against Henry Godin and others. From a judgment of nonsuit and an order overruling its motion for a new trial, plaintiff appeals.

Smith, Judge. Application for injunction by the Parrot Silver & Copper Company, a corporation, against A. P. Heinze and others. From an order granting the same, defendants appeal.

Smith, Judge. Action by Edward Rehberg against Gus Greiser. Eroin a judgment for plaintiff, and from an order denying defendant’s motion for a new trial, defendant appeals.

Certiorari by the state, on the relation of Silas F. King and others, to the district court of the Second judicial district and the judges thereof. The action of the court was erroneous and in excess of the jurisdiction of the court. (Code of Civil Procedure, Sections 680, 685, 690, 691, 1004, First Ency. PI. & Pr. p. 775, Note 5; Wolsworth v. Johnson, 41 Cal. 61 and 63; Calaveras Co. v. Brochway, 30 Cal. 325; Colliery. Ervin, 3 Mont. 142; Ana. Min.

K. Armstrong, Judge. Action by J. F. Ogle and another against William Potter. There was a judgment for plaintiffs, and from an order granting a new trial plaintiffs appeal. Statement of the Case. This action was brought to obtain a dissolution of a co-partnership between plaintiffs and defendant, and an adjournment of the co-partnership accounts.

Appeal from District Court, Silver Bow County, William Clancy,„ Judge. Injunction by the Butte Consolidated Mining Company against Louis Frank and another. From an order refusing to modify an interlocutory injunction, defendants appeal.

<p>Corporations — Failure To Commence Business — Forfeiture of Charter— Constitutional Provisions— Construction — Estoppel.</p> <p>1. Under Rey. St. 1879, Secs. 244, 245, providing that on filing a required certificate the persons signing it shall he a body corporate, and may acquire realty necessary to carry on the operations named in the certificate, the failure of a mining company which has filed such certificate to holdany meetings of its stockholders, and omission to commence business, will not invalidate a conveyance of mining claims to the corporation ; for neither suehfailure nor omission dissolved the corporation, or invalidated the proceedings already taken, under which it became a corporation.</p> <p>•2. Const. 1889, art. 15, Section l, providing that all existing charters or grants of special or exclusive privileges under which the grantees shall not have organized or commenced business in good faith at its adoption shall thereafter have no validity, does not affect a mining company incorporated under general laws, though it had omitted to commence business prior to the adoption of such constitution, since such section only annulled private charters or special grants then existing, under which the corporations thereby authorized had not organized.</p> <p>3. Semble: In the absence of fraud, accident, and mistake, a grantor, having described his grantee as a corporation in a deed of conveyance, is estopped from denying that it was a corporation at that time.</p>

II. Mclntire, Judge. * Application by the State of Montana, on the relation of the Helena Water Works Company for a writ of mandamus against the city of Helena and the city council of the city of Helena. From a judgment on the pleadings in favor of defendants, plaintiff appeals. Statement of the Case.

Application by the State, on the relation of Fred White-side, for a writ of certiorari to review the action of the district court of Lewis and Clarke county in releasing George L. Bamsey on a writ of habeas corpus. Statement oe the Case. Original application for writ of certiorari.

Mandamus by the State of Montana, on the relation of Peter Dempsey, against the District Court of the Second Judicial District for Silver Bow County and others, to compel the stenographer of such court to furnish relator a transcript of record of his trial, and to compel the court to extend the time for settlement of bill of exceptions.

Action by Michael Egan against the Montana Central Railway Company and the Great Northern Railway Company. Erom an order denying plaintiff’s motion for a new trial and from a judgment for defendants, plaintiff appeals.

Action by James T. Murphy and another against George D. Patterson. From a judgment in favor of plaintiffs, defendant appeals. Statement of the Case. Action for dissolution of partnership and an accounting. Under stipulation of parties, cause was referred to David G. Brown as referee to take testimony, state an account between the partners, and report to the court testimony taken with certain findings of fact thereon.

Suit by John T. Murphy and others against George D. Patterson for the dissolution of a partnership and for an accounting. From an order confirming a receiver’s sale of partnership property, defendant appeals.