Volume 26 — Montana Reports

<p> Appeal from District Court, Lewis & Clarice County; Henry C. Smith, Judge. </p> <p>Augustus W. Foed wasi convicted of rape, and be appeals.</p>

<p>Appeal from District Court, Silver Bow County; William Clancy, Judge.</p> <p>George Johnson was convicted of robbery, and he appeals.</p>

Joseph Shaeee was convicted of murder in the first degree, and from the judgment and from an order denying a new trial he appeals. The court instructed the jury, defining murder in the first and second degree, in the language of the statute. Is such definition of murder in second degree in language of statute sufficient? Appellant maintains this is insufficient, citing State v. Baker, 13 Mont. 161, and cases cited therein.

Mandamus by the state, on tbe relation of the Eobert Mitchell Furniture Company, to Joseph K. Toole, governor, and others, constituting the state furnishing board, to compel respondents to sign a formal contract for the furnishing of supplies to the state by relator. There was a demurrer to the petition and a motion to quash the writ, which were overruled, and answers and a reply were then filed. STATEMENT OE THE CASE BY MR. JuSTICE PlGOTT.

<p>On MotioN to Dismiss Appeal.</p> <p>Appeal from District Court, Custer County; C. H. Loud, Judge.</p> <p>Proceedings by W. A. Jordan and others against W. W. Andrus and others. Prom a judgment in defendants’ favor, plaintiffs appeal.</p>

ON MOTION TO DISMISS ApPExYL. Appéal from District Court, Gallatin County; Henry C. Smith, Judge. AotioN by Thomas Michener against W. J. Eransham, sheriff of Gallatin county. From a judgment in favor cf plaintiff and from an order denying a new trial, defendant appealed. Motion to dismiss appeal.

ON Motion to Dismiss Appeals. Appeal from District Court, Cascade County; J. B. Leslie, Judge. ActioN by Ida May Shadville against Marcella S. Barker and another, hair's of Edwin J. Barker, deceased. Erom a judgment in favor of defendants, and from an order denying a new trial, plaintiff appeals.

AotioN by Frank Habn against Jobn W. James and Leon Beaudry. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Motion to dismiss the appeal from the order denying a new trial.

<p>Criminal Law — Homicide—Self-Defense—Evidence—Previous Threats — Instructions — Presumption — Appeal — Preservation of Error.</p> <p>1. Where, oa a trial for murder, in which the accused pleaded self-defense, it was shown that the deceased had previously threatened the accused, an instruction directing the Jury to disregard such prior threats unless the accused at the time of the killing was actually assailed, or believed he was in great bodily danger, was erroneous.</p> <p>2. On a prosecution for murder, where the defendant pleaded self-defense, the court instructed that threats by the deceased against the defendant should not be considered unless the defendant was actually assailed, or believed, ■he was In great bodily danger. This instruction was followed by another, authorizing me consideration of any threats the deceased may have made against the defendant, to enable the jury to determine defendant’s acts or the deceased s motives. Helé, that the instructions were conflicting, and constituted reversible error.</p> <p>3. An error is presumptively prejudicial to the defeated party, and the presumption is rebutted only when it appears that it either was not or could nor have been injurious</p> <p>4. where there was evidence tending to show defendant guilty of murder in the first degree, of murder in the second degree, and of manslaughter, it is the duty of the court to instruct explicitly that a verdict for manslaughter may be returned, manslaughter not being a degree of murder.</p> <p>5. The' fact that the accused endeavored to show that the killing was done in self-defense does not render an instruction authorizing a conviction of manslaughter unnecessary.</p> <p>6. On a second trial for murder it was not error to read the testimony of a deceased witness, including an erroneous ruling of the court on the evidence, where no objection to the reading of the ruling was raised at the time.</p> <p>7. Errors not excepted to in the court, below cannot be reviewed on appeal.</p>

H. Barret, state treasurer. An alternative wait was issued, and defendant moved to quash the writ and to dismiss the petition.

<p>Larceny — Evidence—Sufficiency—Appeal—New Trial.</p> <p>1. where an order granting a new trial is silent as to the grounds on which it is based, it will be affirmed, if it can be justified on any ground on which the motion was predicated.</p> <p>2. Where there is a substantial conflict in the evidence the action of the trial court in granting or denying an application for a new trial on the ground that the evidence is insufficient to justify the verdict, or that the verdict is contrary to the evidence, will not be disturbed on appeal.</p> <p>3. Where there is no substantial evidence to support the verdict it is the duty of the trial court, as a matter of law, to vacate and set aside the verdict, and if it refuse to do so its action will be held erroneous.</p> <p>4. On a prosecution for grand larceny, that accused and others were following the itineraries of political speakers under a conspiracy to commit larceny, and that' at a political gathering the prosecuting witness carried his purse in his left hand in his pocket, and, while in a crowd, feeling a tuggmg at his left arm, recognized accused and an associate standing at his left, and after going a distance of three blocks he discovered his purse was missing, is insufficient to justify a conviction of accused for the particular larceny.</p>

<p> Appeal from District Court, Deer Lodge County, Theodore Brcmtly, Judge. ■ ■ - </p> <p>Action by J. E. Spelman against the Gold Coin Mining and Milling Company. Erom a judgment for defendant, plaintiff appeals.</p>

<p>Foreign Corporations — Principal and Agent — Mining Companies — President — Powers — Delegation of Powers — Supeñntendent — Unauthorized Acts — Ratification ■ — • Evidence — Instructions.</p> <p>1. A creditor of a mining' company sought to have its president execute a bill of sale for certain machinery purchased from defendants. The president refused, but referred the creditor to the company’s superintendent, who executed such bill, signing it as manager of the company. The directors of the company, with the exception of the president, resided in another state, and the president had the general management of Its affairs within the state. The creditor testified that he informed the president that the bill had been executed, and that the president knew the character of the transaction, but did not want it known that he was cognizant of the transaction, and that he was in the immediate vicinity when the creditor took possession of the property. Defendants sued, and attached the machinery' as the property of the company. Held, that the evidence of the ratification of the bill of sale by the corporation was sufficient to justify the court in submitting that question to the jury, together with the bill of sale.</p> <p>2. Independent of any ratification, the bill of sale was void, and not voidable, and the defendant was entitled to raise the question of its validity.</p> <p>3. On the admission of the bill of sale, together with the evidence of ratification, defendant was entitled to have the jury instructed that they should not consider the contract as prima faeie the act of the corporation; though it purported on its face to be executed by the manager on behalf of the corporation.</p> <p>4. A contract made ior his principal by an agent,' but, entirely without the scope of his authority, is no more binding, until ratification, than if made by a stranger.</p>

Action by Samson Beer against Lonis Lieneman and Charles Scbmidt. Erom a judgment in favor of the plaintiff and an order denying a new trial, the defendants appeal.

• Appeal from District Court, Silver Bow County; Willia/m Clancy, Judge. Peoceedings by Mary E. Hughes against Charles W. Good-ale, as guardian of Francis Arthur Linforth and Geraldine Linforth. -From a judgment for defendaant, plaintiff appeals.. Statement op the Case.

<p>Criminal Law — Homicide—Prosecution—Assistant Counsel— County Attorney — Evidence—Threats—Requested Instructions.</p> <p>1. Political Code, gees. 4318, 4319, providing that county officers, except epunty commissioners and justices of the peace, may appoint necessary deputies fop the prorppt discharge of the duties of the offices, have no appji-cation to the appointment by the court of counsel to assist a county attorney in prosecuting persons charged with crime.</p> <p>■2. Where a criminal cause is removed to another county, the attorney of the county to which the cause is removed must prosecute it.</p> <p>•3. The statutes declaring who shall be charged with the duty of prosecuting persons charged with crime does not exclude power in the court to appoint counsel from members of the bar to assist in the prosecution.</p> <p>4. In trial for murder it appeared that deceased had threatened to kill “any Missourian m the employ of V. who undertook to move hay on High Tower ranch,” and had made other threats against Missourians so employed, and that defendant was a Missourian, and employed on said ranch; but the evidence also showed that at the time defendant struck the fatal blow he was not in immediate danger, but that he went up to deceased, who was standing in a threatening attitude over a friend of defendant, who was "not shown to be a Missourian, and who was on top of, and was fighting with, a friend of the deceased. Held, that- it was not error to refuse to instruct that the jury should take such threats into consideration in determining the nature of the attack made on defendant’s friend, and what was the purpose of deceased and his friend in making such attack.</p> <p>5. A court should not be captious or hypercritical and refuse an important requested instruction solely on the ground of verbal inaccuracy; still it is not the duty of the court to undertake, in all cases, the labor necessary to prepare and rewrite defective requested instructions which if correctly states might well be given in the charge.</p> <p>Mr. Justice Pigott dissenting in part.</p>

<p>Application for a writ of certiorari by the state, on relation of the State Board of Medical Examiners, against the Eirst 'Judicial District Court, Department No. 2, in and for Lewis and Clarke County, to annul an order allowing a petitioner to practice medicine pending an appeal.</p>

Brantly, Judge. AotioN by George A. Snook against the City of Anaconda. From a judgment for plaintiff, defendant appeals. I. The court erred in ovewuling the demurrer to the complaint. One of the grounds stated is: “That the complaint does not state facts sufficient to constitute a cause of action.” As will be seen on an examination; of the complaint and statement of the case.

<p>Cities — Defective Streets — Liability of City — Contributory Negligence — -Evidence—Exceptions—Appeal—Review.</p> <p>1. A city is liable for injuries resulting from its negligently permitting its streets to be and remain in a dangerous condition.</p> <p>2. The fact that Political Code, Sec. 5036, declares that every city is responsible. for injuries to property within its limits by mobs or riots, does not . indicate a legislative intent to exempt cities from liability for all other torts.</p> <p>3. Where a bowlder remains in a city street for many months, constituting a dangerous obstruction, a finding that the city was negligent in so permitting the obstruction to continue is justified.</p> <p>4. where no exception is taken to the ruling of the court in admitting evidence over defendant’s objection, the error, if any, cannot be reviewed on appeal.</p> <p>5. under Compiled Statutes 1887, General Laws, Fifth Division, Sec. 320, providing that the fee of streets shown on a city plat shall be vested in the city for the use of the public, a city which by ordinance has accepted and has improved such a street, when sued for injury resulting from a defect in the street, cannot escape liability by denying that the locality is a street.</p> <p>6. Where plaintiff was injured by collision with a bowlder in an unlighted city street, which had been used and traveled for years, while he was driving slowly along the center of the street on a dark night, — he having no knowledge of the bowlder, — such act was not contributory negligence.</p> <p>7. Removal of the bowlder by the city after the accident was not evidence of negligence in failing to remove it before that time, 'but was relevant as tending to show that the point where the accident occurred was in a street over which the citv had assumed control and hence was under obligation to repair.</p>

Action by the Boston and Montana Consolidated Copper and Silver Mining Company against the Montana Ore Purchasing Company and others. Erom an order denying' plaintiff’s application for an injunction pendente lite, plaintiff appeals. The introduction in evidence of the pleadings and of the judgment and decree was plainly error.

FI. Mclntire, Judge. ActioN by. F. E. Cornish, and others against E. H. Floyd-Jones (Substituted for A. J. Steele), receiver of the National Loan & Savings TJnion. From an order denying an application to have certain loans declared preferred claims, plaintiffs appeal.

Action by Joseph King against Alvin Lincoln. From a judgment for plaintiff, and from an order denying a new trial,, defendant appeals.

H. Woody, Judge. Action by Charles L. Cowell against Albert May and George May, co-partners under the firm name and style of May Brothers. Erom a judgment in favor of plaintiff, defendants appeal.

B. Leslie, Judge. Action by W. N. Porter and B. W. Porter, partners doing business under the firm name of Porter Brothers, against the… Held: “A default admits the facts alleged against the defendant to be true but does not admit that those facts constitute a cause of action, so, if upon default it be found that tbe facts alleged do no give a right of recovery, final judgment should not be entered against the defendant” We believe the principles are so well settled that we…

K. Armstrong, Judge. Action by T. S. Kirk and another against H. B. Baker and others. Erom a judgment in favor of plaintiffs, and from an order denying a new trial, defendants appeal. ■

Suit by Adolph Wetzstein against tbe Boston & Montana Consolidated Copper & Silver Mining Company. From an order granting tbe plaintiff an injunction pendente lite, restraining tbe defendant from operating its mines) tbe defendant appeals.

On Motion to Dismiss Appeals. Appeal from District Court, Deer Dodge County j Welling Napton, Judge. ActioN by Anna M. Threlkeld against George B. O’Neal. Judgment was rendered in favor of plaintiff, and defendant appealed therefrom and from an order denying a new trial.

ActioN by Nannie Matusevitz against Lillie R. Hughes, ad-ministratrix of the estate of S. J. Reynolds, deceased. Thei*e was judgment for defendant, and from an order denying a new trial the plaintiff appeals.

K. Armstrong, Judge. AotioN by C. A. Whipple and H. D. Taylor against J. 0. Stuart for an accounting between the parties as partners. From a judgment in favor of plaintiffs, defendant appeals.

<p>Contempt— Certiorari — Application— Copy of Order Complained of — Rules of Supreme Court — To Whom Writ to he Directed — Dismissal—Costs.</p> <p>1. Where an affidavit applying for a writ of review does not set forth a copy of the order complained of, as required by Rule II of the Supreme Court, nor state any reason for such noncompliance, the application will be denied.</p> <p>2. Where the order sought to be annulled by certiorwri was made by the district court and not by its judge, a writ directed to its judge will be quashed, upon motion.</p> <p>3. Under the provisions of the Code of Civil Procedure, on the dismissal, at cost of relator, of a writ of review to review an order in a contempt proceeding, such proceeding being special, defendant is entitled to the fee paid by him for the judgment and minute entries included in nis return, and also for the expense of making the transcript, excepting certain pages consisting merely of recitals by defendant.</p>

B. Leslie, Judge. ActioN by O. C. Wyman, G. H. Partridge and S. D. Coy-kenda'll, copartners, doing business linder 'the'firm name and style of of Wyman, Partridge '& Company, against Andrei? Jensen, and P. P. Atkinson,-individually and as assignee of Andrew Jensen.

ProceediNG for tlie disbarment of Elbert D. Weed, on accusations filed by Tbeodoire A. Mayer. The accused filed written •objections to the sufficiency of the charges.

Appeal from District Court, Silver Boiv County; John Lindsay, Judge. ActioN by Patrick J. Brophy against Patrick Downey and wife. From an order granting a new: trial after a nonsuit,, defendants appeal.

<p>Appeal — Review—Affirmance.</p> <p>In this case, the judgment appealed from being affirmed, the supreme court refrained from encumbering the reports with the discussion and decision of questions raised by the specifications of error finally relied upon which present no new or doubtful points of law.</p>

J. Melt aitón, Judge. ; Action by P. A. Largey against Lee Mantle, defendant, and William Owsley, intervenor. Erom a judgment for defendant, and from orders denying a new trial, plaintiff and intervenor appeal.

ActioN by F. Augustus Heinze, and the Johnstown Mining Company, a corporation, against the Boston & Montana Consolidated Copper & Silver Mining Company, a corporation. From an order granting an injunction pendente, lite, the defendant appeals.

<p>On Motion to Dismiss Appeal.</p> <p> Appeal from District Court, Lewis and Clarice County; J. M. Clements, Judge. </p> <p>Suit by Patrick M.' Murray against the Northern Pacific Railway Company. From an order taxing, costs, defendant appeals.</p>

<p> Appeal from District Court, Silver Bow County; John Lindsay, Judge. </p> <p>ActioN by Mary Ann Hurley against Patrick O’Neill. Judgment for defendant. Plaintiff appeals.</p>

AtplicatioN for a writ of supervisory control by tbe state, on the relation of James Donovan, attorney general, against the Second judicial district court in and for the county of Silver Bow.

ON MotioN to Dismiss Appeals. Appeal from District Court, Cascade Oountyj J. B. Leshe, -Judge. PROCEEDING to settle tbe estate of Edwin J. Barker, deceased. Order settling tbe account of David L. S. Barker as administrator, disallowing certain objected items, and directing tbe administrator to turn over tbe assets to Marcella Barker, appointed special administratrix, and tbe administrator appeals.

<p>Appeal from District Court, Cascade County; J. B. Leslie, Judge.</p> <p>ActioN by James T. Stanford, as receiver of tlie Northwestern National Dank of Great Falls, Mont., against Joseph A. Coram and another. Judgment for plaintiff, and defendant Joseph A. Coram appeals.</p>

<p>Criminal Law — Murder — Principals ■ — ■ Accessories — Evidence — Admissibility—Testimony of Defendant — Weight— Instructions — Statutory Construction.</p> <p>1. where a witness in a homicide case, who is impeachable as an accomplice, details certain incriminating statements made by the defendant before the commission of the crime, and states that he repeated the conversations to others, his testimony as to when he did so is relevant and admissible on behalf of the state as introductory of evidence which may be adduced to show whether the witness was an accomplice.</p> <p>2. where evidence objected to as irrelevant is held on appeal to be relevant for a certain purpose, it is unnecessary to determine its relevancy for other purposes.</p> <p>3. The distinction recognized by the common law between principals and accessories before the fact is, by Penal Code, Sec. 41, abolished in Montana.</p> <p>4. Evidence reviewed and Held sufficient to establish the fact that defendant— though not in person present when deceased was murdered — advised and encouraged the commission of the murder, and hence sufficient to render the defendant a principal under Penal Code, Sec. 41.</p> <p>5. Evidence of the act or declaration of a conspirator which relates to the conspiracy may, after proof of the conspiracy, be given against his co-conspirator.</p> <p>6. An instruction requested by defendant, that, to warrant a verdict on a criminal charge on circumstantial evidence alone, the circumstances must be such as to produce “nearly” the same degree of certainty as that which arises from direct testimony, and sufficient to exclude all reasonable doubt of guilt, is bad, in being qualified by the word “nearly,” and. is properly refused.</p> <p>7. A refusal of requested instructions presenting correct propositions of law is not erroneous, when the substance thereof is embraced in ‘ the general charge.</p> <p>8. Section 2442 of the Penal Code provides that the jury in judging of the defendant’s credibility and the weight to be given to his testimony may take into consideration the fact that he is the defendant, and the nature and enormity of the crime of which he is accused. Held, that an instruction giving Section 2442, but which uses the word “must” in place of the statutory word “may,” is not erroneous, even though Section' 2442 of the Penal Code of 1895 changed the word “shall” of the theretofore existing law to “may.”</p> <p>9. A mere change in the words of a revision will not be deemed a change in the law unless it manifestly appears that such was the intention of the legislature.</p>

H. Parker, Judge. INJUNCTION by Plora E. Craver against I. B. Stapp'. Prom an order dissolving an interlocutory injunction, tbe plaintiff appeals. Subdivision II, Sec. 871, Code of Civil Procedure, provides for tbe granting and issuance of an injunction where great or irreparable injury would result. It might be argued that the-acts of tbe respondent were only trespasses and an action at law7 would be tbe proper remedy.

H. Mclntire, Judge. ActioN by Stephen F. Whalen and James S. Grant, partners as Whalen & Grant, against William Harrison. From a judgment in favor of plaintiffs, defendant appeals. The demurrer to' the first cause of action should have been sustained. The objection to the introduction of tetstimony on the first cause of action should have been sustained.

F. Smith, Judge. Jaimes B. SteveNSON was convicted of grand larceny, and from tbe judgment and an order denying bim a new trial be appeals. Tbe testimony corroborative of that of Jacobson was insufficient to convict Stevenson with tbe commission of tbe offense as charged. (Sec. 2089 of tbe Penal Code; Wharton’s Criminal Evidence, 9th Edition, pages 379, 380; State v. Scott, 42 Pac. 1; Poscoe, Criminal Evidence, Yol.

B. Mc-Clernan, Judge. T. O. TowNer was convicted of gambling, and appeals. Tbe title of tbe act of 1897 declares its enactment to be for tbe purpose of repealing “all laws in conflict witb tbis act.” Section 2224 being a law, and in conflict witb tbe act, is by tbe title and Section 11 of tbe act repealed; and thereupon ceased to exist so' far as tbe law of gambling is concerned.

Smith, Judge. Elmer E. WoodmaN was convicted of running a nickel in the slot machine in violation of the law, and be appeals. The law under consideration is unconstitutional, for the reason that it is class legislation.

Oat Motion to Dismiss Appeals. Appeal from District Court, Silver Bow County; John Lindsay, Judge. Proceedings by Mary Madigan against P. S. Harrington, executor of James M. Reilly, deceased, and others, to revoke the probate of a will. From a judgment for defendants, and from an order refusing a new trial, plaintiff appeals.

<p>Bill of Dxcepiiotis — Settlement.</p> <p>Where a proposed bill of exceptions and amendments proposed by the adverse party, but not adopted, were neither presented to tae judge within ten days after the proposed amendments were served, nor delivered to the clerk for him within that time, as Code of Civil Procedure, Sec. 1155, requires, the court properly refused to settle the bill, the time not having been extended, and no excuse for the delay being shown.</p>

Application by J. Boyle and others for habeas corpus to sucure their release from custody under a commitment for violation of a restraining order, and, in aid thereof, certiorari by the state, on the relation of J. Boyle and others, to the district court of the Second judicial district for the county of Silver Bow, and the Honorable William Clancy, judge thereof.

Certiorari by the state, on tlie relation of David L. S. Barker, to review an order of the district court- of the Eighth. judicial district cf Montana in and for Cascade county.

OeigiNal mandamus by the state, on tlie relation of Miles Finlen, against the district court of the Second judicial district of Montana and others.

Certiorari by the state, on the relation of John II. Leyson, administrator of the estate of A. J. Davis, deceased, against the district court of the Second judicial district of the state of Montana, and E. W. Ilarney, judge thereof.

C. Smith, Judge. ActioN by AVilliam Kranicli against the Helena Consolidated AVater Company. From a judgment for defendant, plaintiff appeals. Motion to strike the bill of exceptions from the record.

<p>Appeal — Undertaking on Appeal — Time of Tiling — Notice of Appeal — Service by Mail.</p> <p>1. under Code of Civil Procedure, Sec. 1724, an undertaking on appeal— unless waived — must befiled within five days of the service of the notice on the adverse party, and not within five days from the filing of the notice with the clex-k, if the filing occurs after the date of such service.</p> <p>2. The time of filing the undertaking on appeal is not extended by the provisions of Section 1833 of the Code of Civil Procedure, in a case in which the appellee resides at a distance and service of the notice of appeal is made through the mails.</p>

ActioN by T. C. Power & Brother, a corporation, against John T. Murphy, Henry L. Chipman, George D. Patterson and Louisa Patterson. Prom a judgment for plaintiff and an order denying a new trial, defendants Murphy and Chipman appeal.

Maxda.mt's by the state, on the relation of -Tames McGinniss, against AY. II. II. Dickinson, clerk and recorder of Missoula county. Prom a. judgment for defendant, relator appeals.

Wiut of certiorari on the relation of the Anaconda Copper Mining Company, against the district court of the Second judicial district in and for the county of Silver Bow and William' Clancy, judge Thereof, to review an order allowing inspection and survey of the underground workings of a mine. STATEMENT OF TILE CASE.

Certiorari by the state, on the relation of the Anaconda Copper Mining Company, against the district court of the Second judicial district, and tbe Hon. William Clancy, -judga thereof, to review an order made by the court.

Os Mottos' to Disarms Appeals. Aiipeal from District Court, Cascade County; J. B. Leslie Judge. Action- by W. S. Frary against William R. Dwyer. From a judgment in favor of defendant, and from an order denying, a motion for a new trial, plaintiff appeals. Motion by defendant to dismiss the appeals.

ORIGINAL petition for a writ of supervisory Control, Ily F. Augustus }Ieinze and others, against the district court of die Second judiCial district and another.

F. Smithy Judge. INjuxctioN by L. Tinkel against W. H. Griffin and others, board of county commissioners of Flathead county, to restrain a bond issue.

Gertiorari by tbe state, on the relation of Charles Geyman, against the district court of the Second judicial district of Montana, Hon. E. W. Harney, judge thereof, to review an order made by the court.

IT. Par-leer, Judge. ActioN by Martin Cummings against tlie Helena & Livingston Smelting A Reduction Company. From a judgment in favor of defendant, plaintiff appeals. On tbe review of a motion for nonsuit, everything which the evidence tended to prove will be assumed to be true by the appellate tribunal. (Creek v.' McManus, 13 Mont. 157; Wetz-stein v. Joy, ib. 444; Mayer v. Carothers, 14 ib. 288; State ex rel.

M. Clements, Judge. CONDEMNATION proceedings for tlie purpose of establishing, a water supply system by the city of Helena against Hugh J. Rogan, the Ames Realty Company, and others. From a judgment for defendant the Ames Realty Company, plaintiff appeals. Statement oj? the (’ase. • This cause is before us on appeal from the judgment of the district court in favor of the defendant Ames Realty Company and against the plaintiff.

Suit to set' aside a fraudulent conveyance by T. C. Power & Bro. and another against Winfield S. Stocking and others. From a judgment against certain defendants, they appeal.

• AeplicatioN by Charles L. Geyman and others for a writ under the supervisory power of the supreme court to vacate an order for the inspection of a litigated mining claim, made in an action by Joseph T. Carroll and others against the Geyman Mining Company and others.

Application eok Stay of Peooeedings. Appeal from- Dish-id Court, Silver Bow County; William Clancy, Judge. Action by -Fames IL Maloney and others against Silas E. •King and others. From an order restraining defendants from entering or mining on a certain claim, they appealed. Application for stay of proceedings pending appeal.

ON jMctfon to Modify Pekpetual INjuNotion. Appeal from District Court, Silver Dow County; William Clancy, Judge. Action by John II. Maloney and others against Silas P. King and others. Judgment was rendered for plaintiffs, and the defendants appealed. Motion .to stay a perpetual injunction till the' determination of the appeal.

<p>Appeal — Rules of the Supreme (Jourl — Defective Brief— Dismissal.</p> <p>An appeal wherein the appellant’s brief contains no assignment of the errors relied on, as is required by Subdivision “b” of Rule X of the Supreme Court, will be dismissed on' respondent’s motion.</p>

II. Woody, Judge. ActioN by James Warren against J. L. Humble and others. Eroni a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Appeal from judgment dismissed, and order denying a new trial

M. Pierce, Judge pro tern. Injunction by Oyntliia E. Alexander against William J. Fransliam, sheriff, to restrain an execution sale. From á judgment for defendant, plaintiff appeals. 1.

AotioN by the Charles Sehatzlein Paint Company against C. S. Passmore, doing business as Passmore & Co. Prom a judgment for plaintiff, and from an order denying a new trial, defendant appeals. The complaint does not state facts sufficient to constitute a cause’of action. It is a settled rule of pleading that performance by plaintiff: of conditions precedent must be alleged. (4 Enc. PI & Prac. 628, and cases cited; Loup v. Cal. 8. Ry.

<p>'Appeal from District Court, Missoula, County; F. 77. Woody, Judge.</p> <p>ActioN by Charles A. Stillinger against Michael Pablo and another, as executors of Charles Allard, deceased. Prom a judgment of nonsuit, plaintiff appeals.</p>

<p>On Motion to Dismiss Appeal.</p> <p> Appeal from District Court, Silver Bow County; William Clancy, Judge. </p> <p>Petee, Dempsey was convicted of murder, and appeals.</p>

<p>PROCEEDINGS foi' tlie disbarment of Elbert D. Weed, as attorney.</p>

B. Leslie, Judeje. Action by Susan/ E. Cbowen against Louis G-. Plielps and Timotby E. Collins. From a judgment of nonsuit, plaintiff appeals. Tlie statute of frauds cannot be invoked in! this case because of the very familiar rule that the statute is only intended to prevent frauds, and the party intending to claim the benefit of the statute must deny the transaction or contract and cannot admit it and then claim that it was void because not in writing.

Divoece suit by John R. Bordeaux against Ella F. Bordeaux. A decree was rendered for plaintiff, and a new trial denied, and defendant appealed. Original application by defendant for an allowance of temporary alimony and suit money.

Divorce suit by John E. Bordeaux against Ellen E. Bordeaux. A decree was entered for plaintiff, from which defemd-.ant appealed, and made application, to the trial court for an allowance for suit money, which was allowed, and plaintiff appeals. Original application by defendant for suit money.

Divorce suit by Jolin R. Bordeaux against Ella E. Bordeaux. A decree was rendered for plaintiff, and a neiw trial •denied, and defendant appealed. Original application by defendant for an allowance of temporary alimony and suit money.

Mandamus by the state, on relation of Prank Moshner,. against Edmund Wright, clerk of the district court of Fergus county. From a judgment for relator, defendant appeals. The duty of the clerk to issue the alias is not clear; nor is it an act which the law specially enjoins upon him, hence the writ of mandate is not the proper remedy. (Code of Civil Procedure, Secs. 2136, 1290, 1961.) That there are other plain, speedy and adequate remedies there can be no doubt.

<p> Appeal from District Court, Silver Bow County. </p> <p>Application for an injunction pending the appeal.</p>

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

<p>Appeal from District Court, Silver Bow County.</p> <p>On the application of J. 0. Bender.</p>

<p>Appeal from District Court, Silver Bow County.</p> <p>On| motion to strike, and to dismiss appeal.</p>

Habeas curpus. Certiorari. Application of Wakeman Sutton for writ of habeas corpus and for writ of certiorari in aid thereof to the district court of the Second judicial district and William Clancy, Judge.

<p> Appeal from District Court, Cascade County. </p>

<p>Habeas corpus — Certiorari.</p>