Volume 27 — Montana Reports

Brantly, Judge. ActioN by Phil. J. Harrington against the Butte & Boston Mining Company, impleaded with John A. Leggat. There was judgment for plaintiff, and from an order granting a new trial planitiff appeals.

B. Leslie, Judge. ActioN by J. T. Armingfon, P. M. Collins, Lavina A. Collins and Leonie E. Barker against H. L. Steile and Dan Mc-Kinnon. From an order granting a temporary injunction, defendants appeal. 1. Parol evidence is admissible to> establish a contemporaneous oral agreement which induced the execution of a written contract, although it may change, vary or reform the instrument. (Thomas et al. v. Loose et al., 114 Pa. St. 35, 6 Atl. 326; Cullmans v. Lindsay, 114 Pa.

II. Loud, Judge. Injunction bjr W. A. Jordan and others against W. W. Andrus and others. From an order dissolving an interlocutory injunction, plaintiffs appeal. It. is claimed by appellants that the indebtedness of the city on July 1, 1901, was $22,500.

INJUNCTION bj William L. Farlin against William L. Hill, county treasurer of Silver Bow county, to restrain the selling •of property for a sewer assessment. From an order dissolving a restraining order and refusing an injunction, plaintiff appeals.

; J. B. Leslie, Judge. ■ ActioN by John T. Campbell against the city of Great Falls. Thure was a judgment for plaintiff, and from an order denying a new trial defendant appeals.

Certiorari by tbe state, on tbe relation of Mary Ann Hurley, for tbe annulment of an order entered by E. W. Hamey, judge, quashing an execution in relator’s favor for tbe costs of an appeal.

K. Armstrong, Judge. Action by J. A. Riddell and another against the Peck-Williamson Heating & Ventilating Company. Erom a judgment for plaintiffs, defendant appeals. The covenants went to the whole consideration on both sides. They were mutual conditions the one precedent to the other.

In the matter of the petition of William Broadbent and John Donaldson for a certificate of probable canse for their appeals. William Beoadbbnt and.James McDonald were convicted of the crime of grand larceny in the district court of Dawson county. Erom the judgment of conviction and an order refusing them a new trial, they appealed. Application for a certificate of probable cause presented to Me. Justice Pigott at chambers.

In the matter of the petition of G-eorge A. McDonald for a stay of proceedings. GeoRge A. McDonald was convicted of the crime of grand larceny in the district court of Silver Bow county. Erom the judgment of conviction be bas appealed. Application for a stay of proceedings under tbe judgment pending settlement of bill of exceptions presented to Mb. Chieb Justice Beantly at chambers.

<p>Executors — Rejection of Glam — Suit on Note — Waiver.</p> <p>1. The iact that an executor rejects a note presented as a claim against the estate does not authorize suit on the note before its maturity.</p> <p>2. The consent by defendant in an action on a note, commenced before its maturity, to the filing of a substituted complaint after the maturity of the note and the filing of an answer does not estop him from relying on the premature bringing of the action as a defense.</p>

<p> Appeal from District Court, Yelloivstone County; C. H. Loud, Judge. </p> <p>EoRCtbijd detainer by Edward B. Kennedy against William Dickie. From a judgment for plaintiff, defendant appeals-.</p>

Smith, Judge. Action by Ered. Beinhom against L. S. Griswold. From a judgment for plaintiff, defendant appeals. The issue is negligence. Held: he could not recover. This is stronger than the trespass cases-, plaintiff being a licensee by agreement. A person having a poisonous tree on his land is not liable for injury to trespassing cattle. (Pointing v. Noakes, 10 Rep-. 265, 2 Q. B. 281; see also McNeer v. Boone, 52 Ill.

Action by Oarr, Ryder & Adams Gompany against Floyd ^ Closser and another. Judgment for plaintiff, and from an order granting a new trial plaintiff appeals.

<p>Appeal from District Court, Silver Bow County; John Lindsay, Judge.</p> <p>ActioN by Frank Boucher against Joseph Barsalou and another. From' a judgment for plaintiff, defendants appeal.</p>

C. Riddel l and others, as tbe board of medical examiners of the state of Montana, against the district court of the First judicial district, department No. 2, in and for Lewis and Clarke county.

W. Har-ney, Judge. • ActioN by Miles Finlen against F. Augustus Heinze and others. From a judgment in favor of defendants, plaintiff appeals, and asks for an injunction to preserve the subject to litigation pending appeal. STATEMENT OE TIIE CASE.

Whit of supervisory control, on the relation of Wakenpan Sutton, to tbe district court of the Second judicial district, and William Clancy, a judge thereof.

Application by J. Boyle and others for a writ of supervisory control to the district court of the Second judicial district and the Honorable William Clancy, judge thereof, and an-^ other, to annul an order adjudging applicants in contempt.

<p>ON MOTION FOR, REHEARING.</p> <p>Motion for rehearing.</p>

ActioN by Robert N. Rand against Louis Kipp and Henry Kipp', co-partners doing business as Kipp Brothers. Judgment for plaintiff, and from an order granting defendants’ motion for a new trial, plaintiff appeals. Surprise at the testimony of a witness is not ground for a new trial unless it can be shown that such testimony w>as not true, or that the evidence to be produced on another trial is such as will probably secure a different result. (People v. Jocelyn, 29 Cal. 562;.

H. Woody, Judge. ActioN by tbe McDermott Mining Company against Peter S. McDermott, as administrator of tbe estate of Michael McDer-mott, deceased,- and others. Prom a judgment for defendants, and from an order denying a new trial, plaintiff appeals. Tbe question on tbe construction of Section 267 is not new in this state. Tbe question was discussed in Meyendorf v. Froh-ner, 3 Mont. 282.

<p>An order, “Demurrer herein * * * sustained, and, plaintiff not desiring to amend complaint, judgment is # * * entered in favor of defendants and against plaintiff for costs of suit,” does not distinctly show that the rights of the parties are thereby finally determined, and therefore is not appealable. •</p>

<p>Appeal from District Court, Silver Bow County; John Lindsay, Judge.</p> <p>ActioN by Cora E. Ramsey against P. H. Burns, justice of tbe peace, and others. Judgment for plaintiff. Defendants appeal.</p>

<p> Appeal from District Court, Silver Bow County; William Clancy, Judge. </p> <p>ActioN by tbe Anaconda Copper Mining Company against F. Augustus Heinze and others. From an order denying a temporary injunction, plaintiff appeals.</p>

<p>Elections — District Judge — Filing Certificates of Nomination.</p> <p>under Political Code, Sec. 1312, tbe certificate of nomination of a candidate for district judge of a district containing only one county is, like tbat of a county officer, to be filed with the clerk of the county.</p>

<p>Application for writs of mandate, on the relation of J ames J, McCrath, and Ben. Sampson, to George M. Hays, secretary of state of Montana;. Denied.</p>

K. Prescott, to review an order of the district court of the Third judicial district refusing to dismiss an appeal from a justice’s court.

<p>ApplicatioN by William Newton for reinstatement as an attorney.</p>

ApplicatioN by the state, on relation of M. P. Gilchrist, for mandamus against John Weston, as county clerk and recorder of Silver Row county, Montana, to compel respondent to place relatoras name on the ballot to be voted at the November, 1902, election, as a Democratic candidate for election as district judge. STATEMENT OP TI-IE CASE. Application for writ of mandamus.

ApplicatioN by the state, on the relation of James Donovan, attorney general,' for a writ of mandamusi to compel J. B. Led-widge, stenographer of the district court of the Second judicial district in and for the county of Silver Bow, to- furnish a transcript of certain proceedings.

Appeal from District CourtLewis and Clarice County; J. M. Clements, Judge. Action by the Helena Water Works Company against tbe city of Helena and others. Erom a judgment in favor of defendants, plaintiff appeals.

ActioN by Aclolpb Wetzstein against P. A. Largey and others. Prom a judgment in favor of defendants, and from an order denying a new trial, plaintiff appeals. Whenever a person, without the consent of the owner, receives a legal title which he seeks to withhold, he is guilty of sufficient fraud to constitute himself a trastee of such title for the owner. (Turner v. Sawyer, 150 IT.

<p>Appeal from District Court> Silver Bow County; William Clancy, Judge.</p> <p>Ekank CoNNORs, alias E. J. Wade, was convicted of an assault in the second degree, and appeals.</p>

B. Mc-Clemán, Judge. GeoRGe A. McDonald was convicted of the crime o'f grand larceny. From the order denying his motion for a new trial and from the judgment he appeals. As the prosecution in this case was under the provision of an act of the Montana legislature, approved February 23, 1897, amending Section 883 of the Penal Code of .this state, relating to grand larceny, it was immaterial what was the value of the horses described in the information.

Motions to Dismiss Appeals. Appeal from District Court, Silver Bow County; B. W. Har-ney, Judge. PeogeediNgs for the distribution of tbe estate of Andrew J. Davis, deceased, by Henry A. Root and others, against John H. Levson, administrator with the will annexed, and another. From a decree ordering the distribution, and from an order denying a new trial, defendants ap-peal.

B. Leslie, Judge. i ActioN by George Cobban against Samuel Heclden. From a judgment for defendant and .order denying a new trial, plaintiff appeals. STATEMENT OE THE. CASE. Action to recover possession of a parcel of ground included witbin tbe boundaries of tbe Summit Valley placer mining claim.

II. Mclniire, Judge. Action for wrongful attachment by Jerome D. Hayes against the Union Mercantile Company, Theodore Fuhrken, and Louis Hillebrecht. From a judgment against defendants Union Mercantile Company and Hillebrecht, they appeal.

Application- for writs of supervisory control, cerliorm'i, and mandamus by tlie state, on tlie relation of John S. Harris, as administrator of the estate of Eobert G. Ingersoll, deceased, to review the rulings of the district court of the Second judicial district of Montana for Silver Bow county, and the judge thereof, sustaining objections to the introduction o-f evidence on tlie ground that the complaint failed to state facts to constitute a cause of action, dismissing the…

<p>Appeal from District Court, Cascade County; J. B. Leslie, Judge.</p> <p>Aechie Burrell was convicted of false prétenses, and he appeals.</p>

ActioN by tbe -Montana Ore Purchasing Company against tbe Boston & Montana Consolidated Copper & Silver Mining Company. Prom a judgment in favor of plaintiff and an order denying a new trial, defendant appeals. Tbe equity action is ancillary to the law action originally begun and joined with it, and tbe dismissal or abatement of tbe law action ipso' facto dismissed or abated tbe equity action.

<p>Appeal from District Court, Broadwater County; TF. L. Holloway, Judge.</p> <p>ThoMas Tights was convicted of murder in the second degree, and appeals.</p>

<p> Appeal from District Court, Custer County; O. II. Loud., Judge. </p> <p>Wixxiam BiioadbeNt and James Donaldson were convicted of grand larceny, and appeal.</p>

Petition by the state of Montana, on the relation of Arthur J. Shores, for a writ of supervisory control, to compel the district court of the Second judicial district and another to1 grant a postponement of disbarment proceedings.

Attorney — Disbarment—Fraudulent Admission — Forged Letter of Recommendation. Held: that it was ground for the ■ disbarment of an attorney that, coming from another state and applying for admission, he presented with his application a letter of recommendation to which he had forged the name of a local firm, though he testified that he was so well acquainted with the firm that he had no doubt of their approving his…

B. Leslie, Judge. Camele Pekes was convicted of statutory rape, and appeals.

Injunction by Silas K. King and another against Pat Mullins and others. Prom an order denying the injunction, plaintiffs appeal. STATEMENT OE THE CASE. Appeal from an order denying an injunction. The action was brought to obtain a judgment against the defendants for a trespass upon a portion of the Columbia clay placer mining claim, situate in Silver Bow county.

<p>Appeal from District Court, Madison CountyM. H. Parker, Judge.</p> <p>Aotion by William Walker and others against M. PL Pennington and others. Prom a judgment for defendants, plaintiffs appeal.</p>

ActioN by the state of Montana, against Dennis C. Courtney, as administrator of the estate of Thomas F. Courtney, deceased. From a judgment for plaintiff, defendant appeals. In the title to House Bill 162 the specific changes proposed are designated.

Suit by Lyman M. Harley and another against tbe Montana Ore Purchasing Company and others. Prom an order granting a temporary injunction, defendants appeal.

<p> Appeal from District Court, Silver Bow County; William Clancy, Judge. </p> <p>Actiow by the Bntte Consolidated Mining Company against Louis Frank and Charles B. Lowenson. From an order granting an injunction pendente lite, defendants appeal.</p>

M. Clements, Judge. Action by the state against tbe Rocky Mountain Bell Telephone Company. Erom a judgment in favor of defendant, plaintiff appeals.

<p> Appeal from District Court, Cascade County; J. B. Leslie, Judye. </p> <p>ActioN by A. J. Briggs against T. E. Collins and others. From a judgment for defendants, plaintiff appeals.</p>

K. Cheadle, Judge. Suit to enjoin a tax sale of personalty by J. A. Walsli and another, partners as Walsh & Walsh, against Janies M. Croft, as county treasurer of Fergus county. From an order dissolving an injunction pendente lite, plaintiffs appeal.

Appeal from District Court, Silver Bow County ; William Clancy, Judge. Suit by tbe Montana Ore Purchasing Company and another against the Boston & Montana Consolidated Copper & Silver Mining Company. Prom an order granting a temporary injunction, defendant appeals.

ApplicatioN by the state, on tbe relation of James Donovan, for a writ of review directed to tbe district court of the First judicial district, department No. 2, in and for the county of lewis and Clarke. Heard on return of tbe district court.

<p>Interstate Commerce — Regulation—Occupation Tax — Validity.</p> <p>An express company transacting interstate and intrastate business is not liable for an occupation tax, under Political Code, Section 4074, imposing such a tax on “any carrier” transmitting goods “from one place to another,” since the statute, not making any discrimination between local and interstate business, contravenes the federal constitution, giving congress sole power to regulate interstate commerce.</p> <p>Me. Justice Milbukn., dissenting.</p>

Action by James TL Maloney and others against Silas E. King and others to determine the ownership of certain ore bodies. From a judgment in favor of plaintiffs, defendants appeal. On motion for an injunction pending appeal.

Appeal from District Court, Silver Bov> County; D. W. Har-ney, Pudge. ActioN by the Boston & Montana Consolidated Copper & Silver Mining Company against the Montana Ore Purchasing Company and others. From an order denying an injunction, plaintiff appeals.

Smith, Judge. Application by the Mutual Life Insurance Company of New York for injunction against Charles U. Martien, an assessor of taxes, to restrain defendant from collecting taxes from plaintiff. From an order granting the injunction, defendant appeals.

Certiorari by the state, on relation of the Boston & Montana Consolidated Copper & Silver Mining Company, to compel the District Court of the Second Judicial District for the county of Silver Boav, and William Clancy, the judge thereof, to set aside an order made for an examination of books and papers of defendant in an action by Patrick Mullins against relator.

McGleman> Judge. Llewellyn L. Relees was convicted of manslaughter, and appeals. STATEMENT OE THE CASE. The defendant was charged by information with the crime of murder, and a trial had upon his plea of not guilty resulted in a verdict of manslaughter. Judgment was thereupon entered fixing his punishment at hard labor in the state prison for a term of ten years. He has appealed from the judgment and an order denying him a new trial.

Action by E'cLward L. Mahoney against the Butte Hardware Company.

K. Armstrong, Judge. Action by W. A. Stotesbury against C. B. Power, doing business as tbe Belgrade Elevator Company. From a judgment for plaintiff, and from an order denying him a new trial, defendant appeals. Tbe delivery of tbe 125,000 pounds,. “more or less,’7 being subject to tbe option and call of Mr. Power, tbe delivery and acceptance of tbe 17,805 pounds was a compliance witb tbe terms of tbe contract.

District Court, Silver Bow County; E. W. Harney, Judge. .Bill by Lee Mantle against the Speculator' Mining Com-. pany. for an accounting of ore extracted, and for an injunction restraining defendant’s further operation of a mine. From an order granting an injunction pendente lite, defendant appeals. STATEMENT OE THE CASE.

Action to revive a judgment, brought by H. D. Haupt, George H.' O'asey, and J. C. Robinson against Elias Simington, William Sinitb, John A. White, Enos Carman, and James Me-Donald. Judgment for plaintiffs* and defendant McDonald appeals.

<p>Appeal frpm District Court, Custer County; C. R. Loud,, Judge.</p> <p>ActioN by T. J. Porter, administrator of Mary Eussell, deceased, against James B. Hawkins, a sheriff of Custer county. Judgment for plaintiff, and defendant appeals.</p>

W. Har-ney, Judge. PROCEEDINGS on petition of Henry A. Boot and otters, for the partial distribution of the estate of Andreiv J. Davis, deceased. Erom a decree directing such partial distribution, and from an order denying a new trial, John H. Leyson, administrator with the will annexed, and another, appeal.

District Court, Silver Bow County>; William Clancy, Judge. AotioN by John Hughes and others, executors of the will of Stephen Hughes, deceased, against Thomas Eowan and others. Judgment for plaintiffs. From, the judgment and from an order denying a motion for a new trial, defendant Eowan appeals.

Smith, Judge. Action by JLou Metz against the city of Bntte. From a judgment for plaintiff, and from an order denying’ a motion .for a new trial, defendant appeals. If there was a dangerous defect in the sidewalk on thp street at the point complained, of it was due to the fact that the plan adopted by the defendant for the construction of the sidewalk was dangerous and unsafe, for the sidewalk existed at the time of the injury as originally constructed.

ActioN by John- P. Reins against Silas P. King. From a judgment in favor of plaintiff, and from an order overruling’ a motion to strike out plaintiff’s memorandum of costs, defendant appeals.

ON Motion to Dismiss Appeals. Appeal from, District Gourt, Silver Bow~ County; William Clancy, Judge. ActioN by F. H. Butler against John McCormick. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Motion to dismiss tbe appeals.

ActioN by George H. Casey and others against T. Thieviege and others. J udgment for plaintiffs. From the judgment and from an order denying a new trial, defendants appeal.

. Appeal from District Court/ Silver Bow County; William Clancy, Judge. Action by J. A. Elliott and another against E, W. Martin and others. From a judgment for defendants and an order denying a new trial, plaintiffs appeal. Upon the defendants rested the burden of proof to establish, by a preponderance of the evidence, the agreement which they plead in defense, and the court should have, so- instnicted the jury.

Smith, Judge. Certiorari by tbe state, on relation of S. J. Reynolds, against E. J. Laurendean, as justice of tbe peace, to review a justice’s judgment. From a judgment vacating and setting aside tbe judgment, defendant appeals.

<p> Appeal from District Court, Cascade Countyj J. B. Leslie, Judge. </p> <p>ActioN by Barbara A. Goon, administratrix of Jonathan Goon, deceased, against I. 0. Proctor and Lucy D. Pinney. Decree for defendants, and plaintiff appeals.</p> <p>Cited: Stwrr v. Beck, 133 IT. S. 541, 10 Sup-. Court Pep. 350; Broder v. Water Co., 101 IT. S. 276; Williams v. Harter, 121 Cal. 48; Witherspoon v. Duncan, 4 Wall. 218; Blacks Pomeroy on Water Bights, Sec. 30; Curtis v. La Orange Water Co., 20 Ore. 34; Thompson on Homesteads and Exemptions, 231; Wilson v. Proctor, 28 Minn. 16; Shemliffer v. The Peerless Mill Co., 18 Kan. 24; Perrin v. Merrick,- 41 N. T. 319; Richardson v. Palmer, 25 Mo. App. 480; Schouler’s Ex. and A dm.; Sec. 242; Meyendorf et al. v. Frohner et al., 3 Mont. 321.</p>

3. Par- . her, Judge. ActioN for personal injuries by Thomas Cain against the Gold Mountain Mining Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. When the facts are undisputed the effect of the testimony is a question of law, unless reasonable men might fairly draw different conclusions from the testimony. (Olsen v. Ry. Go., 9 IJtah, 129 ; Bunnel v. Ry. Go., 44 Pac.

<p>Lode Mining Property — Deeds—Extralateral Bights — Action to Quiet Title — Constitution—Jury Trial — Appeal—Deeds —Construction—Finding of Trial Court — Conclusweness.</p> <p>1. where plaintiff — in or out of possession of real property — brings an action under Code of Civil Procedure, Section 1310, against a defendant not in possession, such action is cognizable in a court of equity only and neither party is entitled to a trial by jury as a matter of right, unless defendant, where plaintiff is in possession, raises by appropriate allegations a purely legal issue upon the right.to the possession, founded on an assertion of a legal title.</p> <p>2. Where plaintiff has title to and possession of the surface of a lode mining claim containing the apex of a vein with extralateral rights extending under the surface of a lode mining claim owned by and in possession of defendant, plaintiff, — under Revised Statutes, U. S., Section 2322, must be deemed to be in possession of all parts of said vein to which he has title, notwithstanding the presumption in favor of defendant’s title to and right to the possession of everything beneath his surface.</p> <p>3. The conclusion reached by the trial court as to the effect of a deed is not binding on the court on appeal, where the facts surrounding its execution are not controverted.</p> <p>4. Held, that, in view of the surrounding circumstances, .the grantors in a certain deed to a portion of a lode mining claim, which conveyed portion embraced parts of apices of veins with extralateral rights, intended to convey to the grantees conventional apices of said veins with all the rights ' thereon extralaterally which the grantors had.</p> <p>On Rehearing.</p> <p>Former opinion (27 Montana, 288, 70 Pac. 1114) modified.</p>

<p>Original — Writ of Supervisory Control.</p>

<p>Original- — Alternative Writ of Mandate.</p>

<p>Original — Writ of Prohibition.</p>

<p> Appeal from District Court, Silver Bow County; B. W. Harney, Judge. </p> <p>On motion to dismiss appeal.</p>

<p>Original- — Writ of Supervisory Control.</p> <p>On motion to- tax costs.</p>

<p>Original — Mandamus.</p> <p>On motion to tax costs.</p>

<p>Appeal from District Gourb, Silver Bow Gounty; E. W. Harney, Judge.</p> <p>On application for an injunction, and on motion for a stay.</p>