Volume 25 — Montana Reports

Certiorari by tbe state, on tbe relation of Silas F. King and others, to tbe District Court of tbe Second Judicial District and tbe judge thereof. Motion for retaxation of costs.

Action by James A. Talbott against E. Augustus Heinze, as administrator of the estate of James Larkin, deceased. Erom a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

<p>Criminal Law — Grand Larceny — Evidence—Instructions.</p> <p>1. Evidence, in a prosecution for a grand larceny, reviewed, and held, insufficient to convict the defendant, since it raised no more than a suspicion of the alleged guilt of the defendant.</p> <p>2. In a prosecution for grand larceny, an instruction that “in this ease cere is n,o allegation in the information that the property was in excess of fifty dollars ; therefore it must have been taken from the person of the said G., or else defendant must be found not guilty,” — though not perspicuous, correctly stated the law, when considered with other instructions defining grand larceny.</p>

Ejectment by James A. Murray and Home Investment and [Realty Co. against tbe Montana Lumber & Manufacturing Company. From a judgment in favor of the defendant, and from an order denying a new trial, the plaintiffs appeal. Statement oe the Case. Action in ejectment to recover possession of a portion of the [Railroad lode mining’ claim, situate in Silver Bow county, and designated as mineral entry No. 1,594.

Peremptory mandamus by tbe Montana Oie Purchasing Company and others against John Lindsay, as Judge of the Second Judicial District Court of the State of Montana. Motion to quash alternative writ granted, and demurrer to application for peremptory writ sustained.

<p>Appeal — Defective Brief— Dismissal.-</p> <p>An appeal will be dismissed where the statement of the case in appellant’s brief fails to comply with the requirement of Subdivision “a” of Section 3 of Rule X of the Supreme Court.</p>

<p>Supreme Court — Writ of Supervisory Control.</p> <p>Under Constitution, Art. VIII, Sec. 2, giving tbe Supreme Court a general supervisory control over all inferior courts, a writ of supervisory control will not be granted to command a district court to sustain a motion for judgment on tbe pleaumgs, since tbe party has a remedy if be should finally be defeated in tbe action.</p>

Writ op review an the relation of Mary Ellen Kelly against the Second Judicial District Court of the State of Montana, in and for the County of Silver Bow, and the Honorable John Lindsay, Judge, to review an order in probate.

<p>Promissory Notes — Principal and Surety — Judgments.</p> <p>Compiled Statutes, Fifth Division, Sec. 1293 (Code of Civil Procedure of 1895, Sec. 1001,/, refers to the rendition of judgments upon obligations the makers of which signed in fact as principal and surety, and not to judgments upon those on which the makers are all principals; it applies also to cases in which the parties whose rights are- to be determined are before the court, and not to cases in which judgment is sought, at the option of the plaintiff, against one of the obligors.</p>

The evidence established that the defendants F. Augustas Ileinze and Arthur P. Ileinze had long prior to the commencement of this action entered into the actual occupancy of portions of the Tramway and Snohomish lode claims, which were not at the time in the occupancy of the plaintiff, or any one else, and that they had run drifts and made underground workings at much expense for the purpose of extracting ore from said claims, and were engaged in extracting ores therefrom in…

Appeal from District Court, Silver Bow County; John Lindsay, Judge. Action by tlie Caplice Commercial Company against Terence Cassidy and others to foreclose a mortgage. Erom a judgment for plaintiff, defendants appeal.

<p>Appeal from District Caurt, Silver Bow County; John Lindsay, Judge.</p> <p>Action to quiet title by Adolpb Wetzstein against the Boston & Montana Consolidated Copper & Silver Mining Company. From an order denying an injunction pendente lite, plaintiff appeals.</p>

<p>Application for leave to file a petition for- a rehearing on the question of the qualification of F. Augustus Heinze as surety on a bond. Application denied.</p>

Action by E. Augustus Heinze and another against Carl Kleinschmidt, administrator of the estate of John D. Allport, deceased, and others. Erom an order appointing a receiver certain defendants appeal. Statement oe the Case. On January 22, 1900, the plaintiffs began their action in the district court of the Second judicial district to obtain a decree of sale for the purpose of partition of the Minnie Healy (patented) lode claim, situate in Silver Bow county.

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.

Brantly, Judge. Action by Philip Harrington and others against Prank D. Smith and others. Prom an order granting a new trial after a verdict in their favor, plaintiffs appeal.

<p>Mandamus — Supreme Court — Original Jurisdiction — State Warrants — Assignment — Negotiability —1 Acceptance at Par — Interest —• Constitutional Latv — Contracts—Impairment of Obligation.</p> <p>1. Where the state treasurer refused to pay interest on certain warrants drawn on the school of mines building fund, directed by statute to be paid therefrom, the meré fact that it was a state officer refusing to perform a ministerial duty was not á sufficient reason for invoking the original jurisdiction of the Supreme Court by an application for mandamus.</p> <p>2. In the future, applications to the Supreme Court for writs of mandate must “set forth * * * the reasons which render it necessary that the writ should issue originally from this Court” (Rule II, Subdivision 2).</p> <p>3. Where contractors were paid for state work by warrants drawn on a certain fund in the state treasury, and were entitled to iuterest thereon after presentatidh, the assignees of such contractors succeeded to all their rights, notwithstanding the warrants were non-negotiable, and were entitled to interest on the warrants.</p> <p>4. Where contractors working for the state agreed to accept warrants on a certain fund at par, and in full payment for the work, such acceptance did not preclude their statutory right to interest on the warrants, but merely bound them to accept such warrants at their face value.</p> <p>5. Under Constitution, Art. Ill, Sec. 11, the legislature can no more impair the obligation of a contract entered into by the state than it can the obligation of a confitact made between individuals.</p> <p>6. A statute which changes thd terms of an agreement by imposing new conditions, or dispensing with those expressed or implied, is repugnant to the Constitution as being a law impairing the obligation of a contract; and the degree of impairment is immaterial.</p> <p>7. Where a contract was made with reference to Political Code, Sec. 1601, which provided that, if’certain state warrants to be issued in payment of work on the state school of mines building could not be paid on presentation for lack of money in the state school of mines building fund, out of which mey were to be paid, they should bear interest at the rate of 7 per cent, per annum from the date of presentation, Laws of 1897, p. 124, repealing Political Code, Sec. 1601, was void as to such contract, being in conflict with Constitution of the United States, Art. I, Sec. 10, forbidding the impairment of the obligation' of contracts by state legislation, and Constitution of Montana, Art. Ill, Sec. 2, to the same effect; hence the holder was entitled to interest on such warrants.</p>

<p>Petitions of W. Y. Pemberton and William Scallon, Esqs., and Walter Cooper et al. for the reinstatement of John B. Wellcome as a member .of the bar of the Supreme Court of the State of Montana.</p>

<p>Contracts — Specific Performance — Dower Interest of Wife.</p> <p>Where it is sought to compel specific performance of a contract to convey, and it appears that defendant’s wife did not join in said contract, the decree for specific performance will require a conveyance by said defendant reserving to his wife whatever right of dower she may have in the land.</p>

<p>Injunction — Restraining Order — Appeal—Supersedeas—Stare Decisis — Order to Show Cause — Time for Hearing — Reasonableness — Abuse of Discretion.</p> <p>1. Code of Civil Procedure, Sec. 1722, as amended February 28, 1899, provides that an appeal may b'e taken from an order granting or dissolving an injunction or refusing to grant or dissolve an injunction. Held, that the Supreme Court has no jurisdiction to grant an order of supersedeas to stay a temporary restraining order pending the hearing of an order to show cause why an injunction should not be issued, as there is no appeal from a temporary restraining order. (Mb. Justice Pigott dissenting.)</p> <p>2. In matters of practice the rule of stare decisis does not control, as it is proper to establish a correct and legal practice, if error has been committed in a former opinion of the court, provided it is apparent that no substantial injury will be sulfered by litigants by reason of reliance upon the precedent.</p> <p>3. Where a temporary restraining order, pending the hearing of an order to show cause why an injunction should not issue, was against a mining company, and suspended the operation of valuable property, it was an abuse of discretion to stay the hearing on the order to show cause six weeks from the issuance of the temporary restraining order, as it was unreasonable to suspend the operation of the mine for so long a period.</p> <p>4. It is only in exceptional cases that a restraining order should issue without requiring a bond.</p>

Suit by the Parrot Silver & Copper Company against A. P. IIeinze and others to determine the title to ore bodies beneath the surface of plaintiff’s mining claim, and for injunction pendente lite to restrain defendants from removing ore therefrom. From an order granting the injunction, defendants appeal.

On Motion to Strike. Appeal from District Court, Deer Lodge County; Welling Napton, Judge. Action by the Carr, Byder & Adams Company against Eloyd Closser and another. Bindings in favor of plaintiff were entered, and from an order granting a new trial the plaintiff appeals. On motion to strike out from the transcript notice of intention to move for a new trial.

Woody, Judge. Action by B. Morris against II. W. McLaughlin, as sheriff of Missoula county, and another. From a judgment for plaintiff on appeal from a justice, and an order denying a new trial, defendants appeal. In the light of all the decisions of the courts in construing the law embraced within the provisions of Section 4491, the instructions complained of were erroneous and certainly highly prejudicial to the interests of the defendants and appellants herein.

W. Harney, Judge. Action by Simon Hauswirth against Henry Mueller and others, as trustees of School District No. 1, Silver Bow County, Montana. From a judgment in favor of defendants, plaintiff appeals. The only point made by appellant is with reference to the sufficiency of the notice of the election called in pusuance of the resolution of the school trustees.

<p>Appeal — Rules of the Supreme Court — Briefs—Specifications of Error — Dismissal—Affirmance.</p> <p>When the appellant’s brief is not in substantial conformity with the Rules of the Supreme Court, the appeal will be dismissed on motion of the respondent ; in the absence of such motion the Court will affirm the order or judgment appealed from.</p>

Action by Michael Hickey and others against the Parrot Silver & Copper Company. Prom an order appointing- a receiver of certain property claimed by both parties, defendant appeals. The petitioner in this case was entitled to the appointment of a receiver under the peculiar facts of the case, and to protect his interest as lessee.

Action by James E. Maloney and. others against Silas E. King and Wakeman Sutton, impleaded with Marcus Daly and others. From an order granting an interlocutory injunction, defendants King and Sutton appeal.

B. Leslie, Judge. Action by Emel Freeman against tbe Sand Conlee Coal Company. From a judgment in favor of tbe defendant and an order denying a motion for new trial, plaintiff appeals.

Application by the state of Montana, on the relation of Silas F.' King and others, for mandamus against the Second judicial district court and the judges thereof. It is sufficient answer to the first subdivision of plaintiff’s objection, to call the attention of the Court to the fact that the rule which is referred to in said subdivision does not provide a penalty for a failure to serve and file the affidavits with motion.

On Motion to Strike. Appeal from, District Court, Lewis and- Clarke County; •Henry C. Smith, Judge. Action by S. L. Conklin against W. E. Cullen. Judgment for defendant, and plaintiff appeals. Motion to strike part of tbe transcript as not part of the record.

<p>Counterclaim — Replication—Appeal—-Assignment of Errors— Review.</p> <p>1. In a suit ón a note, defendant set up as a counterclaim the amount taxed by the court for his legal services on a mortgage foreclosure. Plaintiff’s replication, alleged that it had been agreed between them that whenever, on • a foreclosure sale, plaintiff purchased the property, defendant should receive one-half of the attorney’s fee as taxed by the court, and that the other half should go to the plaintiff; that plaintiff had purchased under the foreclosure in question; and that one-lTalf of the fee allowed h‘ad been credited on the note. Heldy that it was error to strike that part of plaintiff’s replication relative to the agreement, on the ground that it was against public policy, since if the contract was immoral, and had been executed, the plaintiff had a right to show the facts in defense of the counterclaim.</p> <p>2. Where, on appeal, the plaintiff contended that the evidence did not support the finding as to a sum due defendant, and the objection in the record was made as to a certain finding, which disclosed that the jury in that finding did not undertake in any way to determine the amount due defendant, the appellate court could not review the matter.</p>

Application- for writ of mandate by the state, on tbe relation. of Mrs. M. A. Sackett, against tbe clerk of tbe district court of tbe Third judicial district for Deer Lodge county. Senate Bill No. 8d changes tbe name of Deer Lodge County to Daly County. The first proposition involves the interpretation of the word “places,” and the construction to be placed upon the clause of the constitution when considered in its application to Senate Bill No. 84.

Smith, Judge. Action by the Chicago Title & Trust Company ag'ainst James J. O’Marr and others. Ralph Brown and others intervened. Erom a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.

<p>Restraining Order — Appeal—Injunction.</p> <p>Code of Civil Procedure, Sec. 1722, as amended February 28¡ 1899, providing tbat an appeal may be taken from an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction, does not authorize an appeal from a temporary restraining order pending the hearing of an order to show cause why an injunction pendente Ute should not be issued.</p>

<p>Mining Claims — Location — Forfeiture — Evidence — Instructions — Relocation—Notice of Location — Amendment—• Resumption of Worle by First Locator.</p> <p>1. Plaintiff based his title to a mining claim on a location made in 1877, and there was evidence that a third person had located the ground in 1876; but he testified that he never did any work thereon except “to represent the gulch,” and there was no other evidence that he ever did any work after his location, while there was some evidence that work had been done on the ground in 1869, but that none was done thereafter until plaintiff located the claim. The court instructed that, if such person located the claim at the time stated, plaintiff could acquire no title by his location, unless such person had abandoned the claim. Selll that this was misleading, since there might have been a forfeiture found by reason of such-person’s failure to represent the claim.</p> <p>2. Abandonment, as applied to mining claims held by location merely, takes place only when the locator voluntarily leaves his claim to be appropriated by tne next comer, and regardless of what may become of it in the future.</p> <p>3. A forfeiture takes place by operation of law, without regard to the intention of the appropriator, whenever he, — having neglected to make the required annual expenditure upon the claim within the time allowed, — fails tb preserve his right by resuming work thereon before a complete re-location by ’ another. ,</p> <p>4. In the absence of a statute making additional requirements, or a local rule or custom, a compliance with the statutes of the United States (as to discovery and marking of the boundaries of mining claims) is sufficient.</p> <p>5. Whether the evidence shows a valid location is a question of fact for the jury, — and not a matter of law for the court to decide.</p> <p>6. Forfeiture is a question of fact for the jury upon the evidence to decide.</p> <p>7. Where a mining claim on which plaintiff had located was relocated by defendant, but the notice filed by him was defective, and it was s{iown that, before it was properly remedied by an amended notice, plaintiff had performed work on the mine, it was error to instruct that on a suspension of work the right to resume was lost, where a qualified relocator enters and initiates a location, and a resumption of work between the initiatory and final acts of location is of no avail, since the acts required in the location of a claim are distinct, and all must be performed before a legal location exists.</p> <p>8. Plaintiff located a mining claim on ground which a third person had located the year before. Subsequently defendant entered and filed a notice of location on the same claim, but owing to defects therein he afterwards filed an amended notice, and meanwhile plaintiff had resumed work. Held, that as there was a question as to whether the claim by the third person was a valid and subsisting one when plaintiff entered, in which case plaintiff’s location was void and defendant’s title was good, the amended notice filed by defendant was admissible in evidence.</p>

<p> Appeal from District Court, Yellowstone County; C. 3. Loud, Judge. </p> <p>Action by the Yellowstone National Bank of Billings against E. EE. Gagnon. Erom a judgment in favor of defendant, plaintiff appeals.</p>

B. Leslie, Judge. Action by Libbie T. Ackley against tbe Phenix Insurance Company of Brooklyn, N. Y. Prom a judgment for plaintiff,' and from an order refusing a new trial, defendant appeals.

<p>Limitations — Statutory Change — Limitations Already Running — Unreasonable Limitation — Suit Within Reasonable Time — Ap>p ea l — Reversal—R emand.</p> <p>1. Laws oí 1889, p. 172, provides that au action on an account, not Hounded on a written instrument signed by the party chargeable therewith, shall be commenced within five years. Code of Civil Procedure, Sec. 514, Subd. 1, which took effect July 1, 1895, declares that actions of that nature shall be commenced within three years. Section 3456 provides that, when a limitation prescribed in any existing statute has begun to run before the Code takes effect, the time which has already run shall be deemed part of the time prescribed as such limitation by the Code. Held, that suit commenced December 29, 1897, on an open account not founded on a writing, due December 31, 1892, was barred by limitations, notwithstanding the period of six months after July, 1895, allowed by the Code within which to commence suit, was unreasonably short, since suit was not commenced within a reasonable time thereafter.</p> <p>2. Upon the reversal of a judgment the Supreme Court will remand the cause for a new trial.</p> <p>3. The only exceptions which may be considered on appeal are those preserved by the appellant.</p>

■C. Smith, Judge. Action by li. H. Asliley against the Rocky Mountain Beil Telephone Company, for damages caused by a breach of contract in removing a telephone rented to plaintiff. From a judgment in favor of plaintiff, and from an order denying a motion for new trial, the defendant appeals. In the original contract no place ivas designated where the rentals should be paid.

F. Smith, Judge. Action by J oseph Kipp against J. Silverman and Sol Cohen, co-partners, and others. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Woody, Judge. Action by Janies E. Stevens against Ravalli county to recover compensation for county printing. Erom a judgment in favor of plaintiff for less tban tlie relief demanded, and from an order denying a new trial, plaintiff appeals. This Court lias repeatedly laid down tlie principle tliat where there is evidence to support a finding or verdict as an appellate court it will not disturb the verdict or finding.

B. Leslie, Judge. Action by John Burke against tlie Inter-State Saving’s & Loan Association for an accounting and to quiet title. From a judgment for defendant, plaintiff appeals.

B. Leslie, Judge. Action by Mose Anderson against W. W. Cook and another for the diversion of water. From a judgment in favor of the plaintiff, and from an order denying’ a motion for a new trial, the defendants appeal.

<p>Appeal — Briefs—Affirmance.</p> <p>Where no brief is filed and submitted to the appellate court, nor any oral argument made pointing out any of the matters on which appellants rely for relief, the judgment will be affirmed.</p>

<p>Mines — Patents — Judgments—Liens—Unpatented Claims— - Abandonment — Pleading—Quitclaim Deed — Appeal.</p> <p>1. An unpatentecl mining claim being real estate, a judgment lien attaches, to it, under Code of Civil Procedure, Sec. 1197, declaring that from the time a judgment is docketed it becomes a lien on all real property of the judgment debtor.</p> <p>2. A judgment lien on an unpatented mining claim is not lost by the transfer in writing of the claim by the judgment debtor, on the ground that such transfer is an abandonment thereof, since the transfer in writing of an unpatented claim does not amount to an abandonment.</p> <p>3. Rev. St. U. S. Sec. 2332, declares that nothing in the chapter of the Revised Statutes relative to the locating, holding or procuring of titles to mining claims and to adverse claims, etc., shall be deemed to impair any. lien which may have attached in any way to any mining claim prior to the issuance of the patent. Held, that a judgment creditor having a lien on an unpatented mining claim was not obliged to adverse the claim of the locator under the United States statutes providing for the filing of adverse claims against one seeking a patent for a mining claim on the public domain. But after execution levied and officer’s deed made and delivered, the purchaser should adverse, because the lien is gone as a lien.</p> <p>4. A quitclaim deed implies a doubtful title in the grantor, and it should not be held to pass anything more than a doubtful title.</p> <p>5. A complaint alleged that plaintiff had a docketed judgment against R., and that certain unpatented mining claims were conveyed by deed absolute from D. to R., who on the same day gave a quitclaim deed to h\, and that the property was sold to plaintiff at judgment sale. If. was in the possession of the property at the time the quitclaim deed was made. J-Ieldj that there being neither an allegation that R. ever owned any of the property, nor that If. ever got any property or title from him, and there being an implication of doubt as to the title from R., owing to his having given a quitclaim deed to one in possession, the complaint -was insufficient to sustain a suit on the theory that the judgment sale of the land to plaintiff transferred to him title to the claims.</p> <p>«6. If the act of the trial court in sustaining a demurrer was right, such act must, on appeal, be sustained, notwithstanding the trial court may have, in sustaining the demurrer, done so for a wrong reason.</p> <p>7. A judgment may be affirmed for a substantial defect in the complaint, although counsel in their briefs and arguments are silent as to such defect (Mr. Justice Pigott dissenting).</p>

Mandamus by the state, on the relation of Janies Donovan, attorney general, against the district court of the Second judicial district of the state of Montana and E. W. Harney, one of its judges. Motion by defendants to quash an alternative writ. The state of Montana is not entitled to' take possession of the estate of a decedent until five years after his death. (2d Vol.

Smith, Judge. Action by Calvin Beacli, an insane person, by Elizur Beach, his guardian, and others, against the Spokane Ranch & Water Company. From an order striking out the statement on motion for a new trial, and from an order denying a new trial, defendant appeals.

Smith, Judge. Action by Calvin Beach, an insane person, by Elizur Beach, his guardian, and others, against the Spokane Banch & Water Company. Erom a judgment for plaintiffs, defendant appeals.

<p>Insane Persons — Injuries— Asylums-, — Negligence—Pleading.</p> <p>Under Code of Civil Procedure, Sec. 745, providing tliat, in pleading a judgment of a court, it may be stated to have been duly given or made, a complaint alleging that an insane person was “so declared by a court of competent jurisdiction,” and “was duly committed to the insane asylum,” does not show the duty of the keeper of the asylum to receive and keep such person, under Political Code, Sec. 2808, providing that the insane person, together with the order of the judge and certificate of the physicians, must be delivered to the keeper of the asylum, since the allegation does not show the name of the court or that any order was made or delivered to the keeper.</p>

II. Mclntire, Judge. Action by Lou M. Robinson against J ames H. Mills, as receiver of the Helena Consolidated Water Company. From a judgment in favor of the plaintiff, and from an order denying a motion for a new trial, the defendant appeals. Statement oe the (Ase.’ Action for damages caused by a defect in a street in the city of Helena.

Action by Philip P. Leonard against the city of Bntte. Erom a judgment for plaintiff, and an order denying a new trial, defendant appeals.

<p>Costs — Disallowance—Tender or Payment of Part of Sum Due,' After Suit Brought — Finding for Plaintiff — Stipulations.</p> <p>1. Where defendant paid $1,095 after suit brought, and in a stipulation admitted a balance due plaintiff of $6.64, but made no offer to allow judgment for that amount, it was error to refuse plaintiff a judgment for costs on his obtaining judgment for the $6.64, under Code of Civil Pro- * cedure, Sec. 1851, providing that costs are allowed of course to plaintiff on a judgment in his favor, in an action to recover money or damages, exclusive of interest, where he recovers over $50.</p> <p>2. Tender or payment after suit brought, to be effectual to prevent further costs, must be of the sum due, with costs accrued up to that time, and interest, if interest be due.</p>

Action to foreclose a mortgage by J. W. Shackletoii against the Allen Chapel African Methodist Episcopal Church, S. V. Kemper and another. From a judgment in favor of defendants Kemper, plaintiff appeals.

Appeal from District Court, Silver Bow County; John- Lindsay, Judge. Action by tlie Montana Ore Purchasing Company against the Bntte & Boston Consolidated Mining Company and others. From an order refusing- a preliminary injunction, plaintiff appeals.

A.ppeal from District Court, Silver Bow County J John Lindsay,. Judge. Suit by Mollie Withers against S. V. Kemper aiul others. From a decree in favor of plaintiff, defendants appeal. Testimony concerning loss of papers is immaterial until it is first shown that the paper in controversy was among then.. To ¡Drove the loss of any document it is first necessary to prove its previous existence1.

<p> Appeal from District Court, Silver Bow County; John Lindsay, Judge. </p> <p>Action by Erank Boucher against Joseph Barsalou. From, a judgment in favor of plaintiff, defendant appeals.</p>

Woody, Jlodge. Action by Van R. Ferrell against L M. Evans and others. From a judgment for defendants and an order denying a new trial, -plaintiff appeals. Statement oe tile Case.

TI. Parker, Judge. Actions by Angus McDonald and by Toan D. Cooney against flio American National Bank. Held: under the terms of the seventh subdivision of the- agreement quoted above, that the defendant bank undertook the duty of ascertaining the amount due from Miller to McDonald and Cooney on account of the purchase price of the mine, and that it undertook to pay out of the funds deposited for that purpose the sums so found due them.

II. Par-Tier, Judge. Proceeding by the Helena & Livingston Smelting & Reduction Company against John Lynch and another to condemn a right of way for á ditch and flume. From the judgment assessing the damages, the plaintiff appeals.

Application by the state, on the relation of the Anaconda Copper Mining Company and another, for a writ of supervisory control directing the judge of the district court of the Second judicial district of Silver Bow county and another to reverse an order issued in proceedings therein.

Proceedings by Patrick Mullins against the Butte Hardware Company and C. H. Nickel and others for the partition of a mining claim. Prom a judgment and from orders denying the motion for a new trial, plaintiff and defendant the Butte Hardware Company appeal.

B. Leslie, Judge. Action by Patrick Sweeney against tbe Montana Central . Railway Company. From a judgment for plaintiff and from an order denying a new trial defendant appeals. Statement ox tiie Case. This cause is on appeal from tbe order of tbe district court denying a motion for a new trial and from the judgment for plaintiff. Tbe action is for damages resulting from trespass.

<p>Original proceeding in disbarment.</p>

<p>Appeal from District Court, Silver Bota County.</p>

<p>Appeal from District Court, Deer Lodge County.</p> <p>Motion to dismiss appeal.</p>

<p>Original application for writ of supervisory control.</p>

- Application of appellant for an order staying the injunction order appealed from and all proceedings thereunder pending appeal, and motion of respondent to- dismiss the petition of the appellant.