Volume 37 — Montana Reports

Bach, Judge. Action by Edward C. Russell against the Chicago, Burlington & Quincy Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals-

<p>Criminal Law — Rape—Witnesses — Credibility — Instructions—Applicability to Issues — Criminal Intent.</p> <p>Criminal Law — Appeal—Record—Instructions—Credibility of Witnesses— Presumptions.</p> <p>1. On appeal from the judgment in a criminal cause it will be presumed, in the absence of the evidence, that the giving of an instruction in the language of subdivision 3 of section 3390, Code of Civil Procedure, “that a witness false in one part of his testimony is to-be distrusted in others," was warranted by the case as submitted.</p> <p>Same.</p> <p>2. Nor was the above instruction erroneous for failure to insert the word “willfully" before the word “false," and the words “as to a material matter” after the word “testimony."</p> <p>Same — Rape—Instructions—Applicability.</p> <p>3. An instruction given in a prosecution for rape, that if it appeared that prosecutrix was under the age of sixteen years, and was not the wife of defendant when the intercourse took place, and that “such intercourse was had at any time within five years prior to the-filing of the information in this ease,” then a verdict of guilty should be returned, was not erroneous as allowing conviction for an act of' intercourse occurring after the date of the alleged offense and before the date of filing the information, since the words “such intercourse"' related to the act described in the information.</p> <p>Same.</p> <p>4. The above instruction was not objectionable as permitting a conviction for any act of intercourse had within five years of the, date-of filing the information, since, in the absence of the evidence from the record, the presumption must be indulged that the evidence adduced related to the act of intercourse charged in the information only, and that the instruction was applicable to the case made.</p> <p>Same — Intent—Instructions—Repetition Unnecessary.</p> <p>5. Where, in a prosecution for crime, an instruction had been given, that in the commission of the act charged in the information as having been done feloniously, the intent as alleged in the information must have been proven in order to warrant a conviction, the subject of criminal intent was sufficiently covered, and it was not necessary-to repeat the rule in subsequent instructions.</p>

C. Bach, Judge. Application for mandamus by Samuel T. Hauser and another, executors of the will of Ellen F. Hauser, against Sidney Miller, as clerk of the district court of Lewis and Clark county. From a judgment directing a writ to issue, defendant appeals.

<p>Appeal — Time for Taking — Jurisdiction—Dismissal—De Minimis Non Curat Lex — Remarks of Court — Harmless Error.</p> <p>Appeal — Time for Taking — Jurisdiction—Dismissal.</p> <p>1. An appeal from a judgment of the district court in a ease appealed to it from a justice's court, not taken within ninety days after entry of judgment as required by Laws of 1899, page 147, will be dismissed for lack of jurisdiction in the appellate court to entertain it.</p> <p>Same — Motion to Dismiss — Insufficient Notice — When Immaterial.</p> <p>2. Failure to give sufficient notice of a motion to dismiss an appeal on the ground that it was not taken in time is immaterial, since the question thus raised is jurisdictional and, therefore, may be raised at any time.</p> <p>Same — Error—De Minimis Non Curat Lex — Affirmance.</p> <p>3. Under the maxim de minimis non eurat lex, a judgment will not be reversed for errors operating to appellant’s prejudice in the sum of seventy-six cents only.</p> <p>Trial — Remarks of Gourt — When not Prejudicial.</p> <p>4. Remarks of the court, made at the close of defendant’s testimony, on a motion of plaintiff for a directed verdict, relative to the state of the case as then made, were not prejudicial where thereafter plaintiff introduced rebuttal testimony and the disputed questions were fairly submitted to the jury.</p>

<p> Appeal from District Court, Meagher County; E. K. Cheadle, Judge. </p> <p>Action by Josephine Manuel, as administratrix of Moses Manuel, deceased, against Sam and Jennie Scott. From an •order overruling a motion to set aside a judgment entered after default for want of an answer, defendants appeal.</p>

B. C. Stewart, Judge. Action by tbe state of Montana against Job B. Quantic to restrain interference with water appropriated by plaintiff. From a judgment for defendant, plaintiff appeals.

C. Bach, Judge. Action by Augustus N. Spratt against the Helena Power Transmission Company to restrain condemnation proceedings. From a judgment for defendant, plaintiff appeals. Also condemnation proceedings by the Helena Power Transmission Company against Augustus N. Spratt and others. From a judgment: for plaintiff, defendants appeal. Statement oe the Case by the Judge Delivering the Opinion.

<p>Mandamus — Stay of Execution — Discretion Upon Terms — Presumptions.</p> <p>Mandamus — Stay of Execution — Discretion—Presumptions.</p> <p>1. Held, on application for writ of mandate to compel a district judge to vacate an order granting a stay of execution pending the determination of a motion for new trial, that the petition, which failed to show what facts, if any, relative to the solvency of the movant were brought to the knowledge of the judge at the time the order was made, was insufficient to overeóme the presumption that official duty had been regularly pursued, and that the order complained of was the result of the exercise of a sound legal discretion.</p> <p>Stay of Execution — Upon Terms — Discretion.</p> <p>2. While the granting of a stay of proceedings after notice of motion for a new trial has been given rests in the discretion of the trial judge, sueh power should be exercised with caution and upon the exaction of some sort of security, except in cases where the ultimate satisfaction of the judgment is otherwise assured.</p> <p>Stay of Execution — Terms—Abuse of Discretion — Mmidamus.</p> <p>Stay of Execution — Abuse of Discretion — Mandanvus.</p> <p>1. Where a street railway company against whieh a money judgment had been recovered had presented no facts to the district court, as to its ability to respond to an execution, upon which to base an order staying execution pending determination of a motion for a new trial, the court in granting the application abused its discretion. Writ of mandate ordered issued to annul the order.</p> <p>Same — Erroneous Practice.</p> <p>2. The fact that a district court had for many years pursued the erroneous practice of granting a stay of execution upon the ex parte application of a party moving for new trial, without exacting security, contrary to the plain provisions of section 1175 of the Code of Civil Procedure, did not endow the practice with the force of law, no matter how long continued.</p> <p>Statutes — Contemporaneous Construction.</p> <p>3. Contemporaneous construction cannot abrogate a plain provision of law or fritter away its obvious sense.</p> <p>Stay of Execution — Solvency of Litigants — Judicial Notice. 4. In passing upon an application for a stay of execution pending tbe determination of a motion for new trial, tbe court may not take judicial notice of tbe solvency of tbe movant, but must, in granting it, base its order upon facts known from proceedings bad in tbe case or ascertained by tbe bearing of evidence in tbe usual way.</p>

<p>Railroads — Death—Negligence—“Turntable” Doctrine■ — Pleadings — Complaint—Trespassers—Burden of Proof.</p> <p>Railroads — Negligent Killing of Child — “Turntable” Doctrine — Complaint — Essentials.</p> <p>1. Employees of a railroad company deposited a worn-out car bottom side up on the sloping side of the track embankment, within the company’s yard limits, in sueh a way as to fall upon and cause the death of a child eleven years old, attracted thereto by its peculiar appearance. In an action against the company for damages plaintiff relied chiefly upon the doctrine of the “Turntable Case.” (Stout v. Sioux City 4" Pao. P. P. Co., Fed. Cas. No. 13,504, 2 Dill. 294.) Held, that in order to bring the action within the principles of that ea'se, it was necessary for plaintiff to allege and prove, not only that the car was especially attractive to children, but also that the child was too young to appreciate the danger, and that defendant knew, or in the exercise of ordinary care ought to have known, of its unusually attractive character.</p> <p>Same — Trespassers—Burden of Proof.</p> <p>2. The child mentioned in the foregoing paragraph having been, prima faoie, a trespasser upon defendant railroad company’s .property, the burden rested upon plaintiff to allege and prove that the trespass was excusable on account of the tender years of deceased, so as to bring the case within the doctrine of the “Turntable Case.”</p>

C. Bach, Judge. Action by Margaret Carlston against the St. Paul Fire & Marine Insurance Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Citing: Sterling v. German-Am. Ins. Co., 69 N. J. Eq. 339, 60 Atl. 200; Niagara Fire Ins. Co. v. Boon, 76 Ark. 153, 88 S. W. 915; American Central Ins. Co. y. Landau, 62 N. J. Eq. 73, 49 Atl. 738; Hall v. Norwalk Fire Ins. Co., 57 Conn. 105, 17 Atl. 356; Stout v. Phoenix Ins.

Action by N. B. Smith against the Billings Sugar Company. From a judgment for plaintiff, defendant appeals. The law requires that a complaint should furnish a criterion or basis for the determination of damages. Where the complaint alleges a breach of a contract, but does not furnish any basis for determining the amount of damages resulting therefrom, nominal damages only can be recovered.

<p>Ejectment — Mines—Lode and Placer Claims — -“Known” Vein or Lode — -Definition—Evidence—Admissibility—Review.</p> <p>Ejectment — Mining Claims — Evidence—Order of Proof.</p> <p>1. Plaintiffs, in an action in ejectment, owned a patented placer mining claim. After issuance of patent defendant located a quartz lode claim within the boundaries of the placer location, claiming a strip of land twenty-five feet in width on either side of the vein (U. S. Rev. Stats., sec. 2333). Plaintiffs introduced in evidence the patent and the record of deed from the patentees to them and rested. Defendant thereupon introduced one of the locators of the lode claim, who testified, over objection, to the character of the discovery made and the steps taken to complete the location. Held, that the evidence was not objectionable because introduced before it had been shown that the vein or lode was known to exist at the date of the application for the placer patent.</p> <p>Same — Order of Proof — Discretion—Review.</p> <p>2. The objection referred to in the foregoing paragraph went to the order of proof, which is within the discretionary control of the court, subject to review only in case of abuse of discretion.</p> <p>Same — Placer Claim — Patent—Location of Lode Claim — Rights of Locator.</p> <p>3. If the lode or vein located within the limits of plaintiffs’ placer claim was exeepted from the terms of their patent, it, together with twenty-five feet on either side thereof, was open to exploitation and location by any citizen of the United States (U. S. Rev. Stats., see. 2333), and, for the purpose of such exploitation, defendant was entitled to enter into possession of it.</p> <p>Same — Evidence—Character of Vein.</p> <p>4. Evidence of defendant in the above action touching the character, extent and value of the vein as apparent at the time he made his location within the boundaries of the plaeer claim, was properly admitted on the issue whether it was sueh a vein as would justify a location of it and the expenditure of labor and money for the purpose of developing and utilizing its contents. Evidence of what it contained at the date of the location was evidence of what its contents were at the time plaintiffs made application for patent to the placer claim.</p> <p>Same — Evidence—Representation Work — Harmless Error.</p> <p>5. The admission in evidence of affidavits showing that defendant had caused the annual representation work to be done from year to year after his lode location was made, but failing to disclose that sueh work had been performed on a strip fifty feet in width along the vein, was not prejudicial error, where it subsequently appeared by fair inference that all of the work had been done along the vein itself. The evidence was competent as showing good faith on the part of the locator.</p> <p>Same — Expert Testimony — Admissibility.</p> <p>6. On the issue whether the vein within the boundaries of plaintiffs’ plaeer claim was of sufficient value to justify exploitation and development so as to except it from the terms of the plaeer patent, the opinion of a practical miner, based on many years’ experience and observation in the district, and who was acquainted with the ground in controversy, that the claim could be worked, that the prospects were good and that the vein carried some mineral values, was admissible as bearing upon the conditions obtaining at the time the application for the plaeer patent was made.</p> <p>Same — “Vein or Lode” — Definition.</p> <p>7. Held, that the meaning given to the term “vein or lode,” as used in section 2320, U. S. Rev. Stats., must also be applied to that expression in section 2333.</p> <p>Same.</p> <p>8. An instruction defining “vein or lode” (H. S. Rev. Stats., sec. 2333) as “a body of mineral or mineral-bearing rock within defined boundaries in the general mass of the mountain, ’ ’ was correct.</p> <p>Same — “Known” Vein or Lode — Definition.</p> <p>9. The court correctly instructed the jury that a “known” vein or lode, within the meaning of section 2333, United States Revised Statutes, is one known to exist as a clearly ascertained vein, of sufficient extent to render the land more valuable on that account and to justify its exploitation for the extraction of mineral therefrom, and properly refused to charge that it was one sufficient in value to justify working it as a mine with profit without previous exploitation.</p> <p>Same — Known Vein or Lode — Question for Jury.</p> <p>10. The questions whether a vein was known to exist, within the boundaries of a placer claim at the date of the application for patent, as a clearly ascertained one, and whether it contained such values as made the ground more valuable on that account and justified exploitation, were for the jury.</p> <p>Same — Conflicting' Evidence — Review.</p> <p>11. A finding of the jury on the above questions when based on conflicting evidence, will not be disturbed on appeal.</p>

<p>Divorce — Default—Setting Aside — Attorneys—Excusable Neglect-Discretion — Affidavit of Merits.</p> <p>Divorce — Default—Setting Aside — Excusable Neglect — Discretion.</p> <p>1. The granting of a motion to set aside the verdict of the jury and defendant’s default in an action for divorce, on the ground of excusable neglect on the part of her attorney, held, not to have been abuse of discretion, where it appeared that the cause was the third set for hearing on a certain day; that it was at issue; that defendant with her counsel and witnesses were present on said day, ready for trial; that the second cause was then being tried; that defendant’s attorney, understanding from counsel in that cause that it would take all day to try it and desiring to go to a neighboring town on a matter of business, asked to have the divorce proceeding continued until' the next day; that the judge refused to do so, but that counsel thought he would “take a chance’’ and left; that he misconstrued a remark of the judge when indicating his purpose to depart; that the ease was reached during Ms absence, tried and a decree entered against Ms client.</p> <p>Same — Default—Affidavit of Merits — When Unnecessary.</p> <p>2. The above cause having been at issue and the defendant with her counsel and witnesses present on the day set for trial, ready to proceed, the court had the information that defendant claimed to have a meritorious defense, and therefore the necessity for filing an affidavit of merits did not exist.</p> <p>Judgment — Setting Aside.</p> <p>3. Quaere: May a judgment, after the trial of an issue regularly made by the pleadings, be set aside without a motion for a new trial?</p>

M. Bourquin, Judge. Action by Alpheus W. Knipe against the Anaconda Copper Mining Company and the Washoe Copper Company. The cause was dismissed as to the first defendant, and judgment was rendered in favor of the second defendant, and plaintiff appeals from an order denying him a new trial.

M. .Bourquin, Judge. Personal Injury action by Jeremiah P. Harrington against the ‘Butte, Anaconda & Pacific Eailway Company. From a judgment for plaintiff and from an order denying it a new trial, •defendant appeals. A child of tender years may be guilty of contributory negligence. (Krenzer v. Pittsburg C. 0. & St. L. By. Co., 151 Ind. •587, 68 Am. St. Rep. 252, 43 N. B. 649, 52 N. E. 220; Baltimore ■etc. Co. v. Breing, 25 Md. 378, 90 Am. Dec. 49; Trudell v. Grand Trunk By.

<p>Water Eights — Appropriation—Prior Eight — Doctrine of Delation.</p> <p>1. Prior to the enactment of the statute regulating the appropriation of water, plaintiff’s predecessor began the construction of a ditch on October 1, 1882. Defendant’s grantors commenced two ditches on September 1 and 5, 1882, respectively. Both prosecuted the work with reasonable diligence to completion and the actual using of water, plaintiff’s ditch, however, being completed before either of-defendant’s. Held, under the doctrine of “relation back,’’ that construction of the ditches of defendant having been begun before plaintiff’s •ditch, the former had the prior right, even though the ditch of the latter was completed first.</p>

<p>Personal Injuries — Cities and Towns — New Trial — Verdict Against Evidence — Discretion—Credibility of Witnesses.</p> <p>Personal Injuries — Cities and Towns — New Trial — Insufficiency of Evidence.</p> <p>1. In an action against a city to recover damages for injuries to a child, alleged to have been sustained by reason of a fall into an excavation adjoining a sidewalk, evidence reviewed, and held that the court was justified in granting a new-trial upon the ground of its insufficiency to warrant a verdict in favor of the plaintiff.</p> <p>"New Trial — Verdict Against Evidence — Duty of Court.</p> <p>2. It is the duty of the trial judge, if satisfied that a verdict was not warranted by the evidence, to set it aside on proper motion.</p> <p>;Same.</p> <p>3. Whether a new trial should be granted because the verdict is against the weight of the evidence lies within the sound legal discretion of the trial court, with the exercise of which the supreme court will not interfere on appeal.</p> <p>.Same — Verdict Against Evidence — Credibility of Witnesses.</p> <p>4. Where plaintiff’s right to recover damages from a city for personal injuries depended largely, if not entirely, on the testimony of a witness whose credibility was impaired in many material particulars by his own evidence on a prior trial, and the court determined that the witness was unworthy of belief, error was not committed in setting aside a verdict for plaintiff, nor was its action in so doing objectionable as invading the province of the jury.</p>

Bourquin, judge presiding, in finding John Webb guilty of contempt for unlawfully interfering with the proceedings of the court by attempting to improperly influence certain jurors. (Mr. Chief Justice Brantly dissenting in .part.)

Original Application by tbe state, on the relation of the city of Bntte, for a writ of supervisory control to the district court of the Second Judicial District and Honorable Michael Donlan, a judge thereof.

<p>Mines and Mining — Adverse Suits — Pleadings—Denials—Sufficiency — Foreign Corporations — Public Writings — Authentication — Evidence—De Facto Corporations — New Trial Motions —Practice—Amended Declaratory Statements — Admissibility.</p> <p>Pleadings — Denials—Information and Belief.</p> <p>1. Held, that an allegation in defendants’ answer that they “say defendants have not sufficient knowledge or information to form a belief as to matters and facts alleged” in a certain paragraph of the complaint, “and therefore deny the same,” was in substantial compliance with section 690, Code of Civil Procedure.</p> <p>Same.</p> <p>2. The provisions of section 690, Code of Civil Procedure, relative to denial on information and belief, apply to any and all allegations in a complaint; hence an allegation in the complaint of a corporation, that plaintiff was and is a corporation, was put in issue by such a denial.</p> <p>Foreign Corporations — Proof of Corporate Existence — Articles of Incorporation — Authentication—Insufficiency.</p> <p>3. Plaintiff mining corporation was organized in Arizona. A copy of its articles of incorporation, on file in the offiee of a county recorder of that territory was placed on file in the offiee of the territorial secretary, and by him a certified copy of the copy transmitted to the Secretary of State of Montana, who on request of plaintiff furnished a certified copy thereof to it, and this paper was offered in evidence to prove its corporate existence. The certificate o’f the county recorder, the supposed legal custodian of the original, was not authenticated as required by either section 906, United States Revised Statutes, or section 3206, Code of Civil Procedure. The certificate of the territorial secretary, as it appeared in the record, recited that the paper was a true transcript of the copy on file in his offiee, and that he had thereunto set his hand and affixed his official seal, fol: lowed by the word “seal,” without any impression thereof or anything to indicate that it was the great seal of the territory. Held, that the writing was not authenticated as required by law, and, therefore, inadmissible in evidence for the purpose indicated.</p> <p>¡Public Records — Proof—Statutes.</p> <p>4. Section 3207, Code of Civil Procedure, relating to proof of public records, refers to a public record of a private writing within the state, and not to public records of other states.</p> <p>Same — When United States Statute Binding.</p> <p>5. In the absence of a statute of this state defining the evidentiary value or effect of a copy of a record from another state, section 906, United States Revised Statutes, is binding on tbe courts of tbe state upon this question.</p> <p>Poreign Corporations — Proof of Corporate Existence — -Requisites.</p> <p>6. Since corporations are creatures of statute, the copy of the articles of incorporation referred to in paragraph 3 above, offered by plaintiff to prove its corporate existence, was properly excluded from evidence, in the absence of proof as to the provisions of the laws of Arizona authorizing plaintiff’s incorporation for mining purposes, of the manner of its incorporation, that the county recorder is the proper custodian of the original, or whether such laws authorize or require a certified copy of the articles to be filed in the ofS.ee of the Secretary of the territory of Arizona.</p> <p>Same — Statutes of Sister States — Judicial Notiee — Evidence.</p> <p>7. Inasmuch as, under section 906 of the United States Revised Statutes, a certified copy of a public record of another state or territory is entitled to only such faith and credit in the courts of this state as would be accorded to it in such foreign jurisdiction, and since in this state courts do not tate judicial notice of the statutory laws of a sister state or a territory, the certified copy of the articles of incorporation mentioned above was not competent evidence for any purpose in the absence of proof respecting the use of such copies as evidence in Arizona.</p> <p>De Facto Corporations — Proof of Existence — Essentials.</p> <p>8. In order to prove that a corporation de facto exists, it must be shown (1) that there is a law of the state or territory of- the corporation’s alleged existence authorizing the organization of such a corporation; (2) that a bona fide attempt has been made to effect such an organization; and (3) the actual user of the corporate powers or some of them, which might rightfully have been used had the corporation been regularly organized.</p> <p>New Trial Motions — Practice—Bills of Exceptions — Specifications of Error.</p> <p>9. Under Laws 1907, page 89, relating to the practice on motions for new trials, there is now no such thing as a statement on motion for a new trial; the motion must be made upon (a) affidavits, (b> the minutes of the court, or (c) upon a bill of exceptions settled as-provided by section 1155, Code of Civil Procedure, and a bill of exceptions is not required to contain any specifications of error. (Laws 1905, *p. 185.)</p> <p>.Evidence — Exclusion—Review.</p> <p>10. Where testimony, alleged to have been improperly excluded, is not incorporated in the record on appeal, the question of its improper exclusion cannot be reviewed.</p> <p>Mines and Mining — Adverse Suits — Declaratory Statements — Insufficiency-— Who may not Object.</p> <p>11. Where plaintiff in an adverse suit to a mining claim fails to-show any right to'the ground in controversy, he will not be heard to object that the defendants are not entitled to a patent because of the insufficiency of their declaratory statement.</p> <p>Same — Amended Declaratory Statements — Piling After Commencement of Trial — Evidence.</p> <p>12. The purpose of filing an amended declaratory statement of the location of a mining claim, authorized by Laws of 1901, page 56, being to cure defects in the original, it can confer no rights in the-premises which did not exist prior to the filing of the amended state-meat, but relates back to tbe first location; hence the efficacy of such a paper as evidence is not affected by the circumstance that it was not filed until after the trial of an adverse suit had commenced.</p>

<p>Supervisory Control — Reference—Boohs and Accounts — Inspection — Appeal.</p> <p>1. A writ of supervisory control will not be granted to compel the vacation of an order of reference made by the district court, in an action on a contract in which plaintiff claimed to be entitled to certain commissions and alleged that an examination of a long and complicated account was necessary to a determination of the cause,— before it had ascertained whether in fact a contract existed between the parties, where the return showed that plaintiff had already examined the books of the relator company at its invitation, that some of the books and accounts had been produced, though under protest, and examined before the referee, and where no claim was made that books or accounts not pertinent or material to the' inquiry were required to be produced. If.error was committed, the remedy was by appeal.</p>

<p>Contracts — Action for Breach — Fraud—Burden of Proof — Brokers — Agency—Instructions—Applicability to Issues.</p> <p>Contracts — Fraud—Defense—Burden of Proof.</p> <p>1. A contract admittedly valid on its face cannot be avoided by a party thereto on the ground of fraud, except by allegation and proof of facts showing that he was misled to his prejudice.</p> <p>Same — Brokers—Agency—Instructions.</p> <p>2. Where, in an action for breach _ of a contract to convey real estate, the evidence showed that defendant employed a broker to procure a purchaser, that the broker procured plaintiff who contracted to purchase the premises, that throughout the negotiations the plaintiff dealt with the broker as the agent of defendant, and tendered all payments to him as such, the court properly charged that plaintiff did not authorize the broker to act as her agent.</p> <p>Same — Proposals—Acceptance—Rejection—Instructions—Applicability to Issues.</p> <p>3. Where, in the action referred to above, the only triable issue presented by the pleadings ms whether defendant signed the contract with a full understanding of its terms, or whether he did so relying on certain false representations of the broker, the refusal of an instruction that if defendant revoked the proposal before the plaintiff unqualifiedly and absolutely accepted the same, verdict should be for defendant, was proper. The instruction was not applicable to the issues. The proposal to sell had beeome merged into the contract, signed by both parties, and was no longer open to acceptance or rejection.</p>

C. Bach, Judge. Action by the Helena Water Works Company against W. M. G. Settles, treasurer of Lewis and Clark county. From a judgment against plaintiff, it appeals. The right of the plaintiff to divert and use the waters of Ten Mile creek is an incorporeal hereditament, and has no existence or situs separate or apart from the stream at the points where the diversions are made. The water, after it is diverted into the pipe-line, becomes personal property.

<p>Tax Deeds — Validity—Counties—Competitive Bidders.</p> <p>■Tax Deeds — Recitals—Counties—Competitive Bidders.</p> <p>1. A statement in a deed conveying land sold to a county for taxes that the property was offered for sale “in accordance with law,” having been merely a statement of a conclusion of law, could impart no validity to the deed, where the plain recitals therein showed that the sale was had at publie auction at which the county was a competitive bidder, contrary to the provisions of section 3882, Political Code.</p> <p>Same.</p> <p>2. Where a county becomes a purchaser of property at a tax sale because there are no cash purchasers, the certificate of sale, as well as the deed, should show that there was no purchaser in good faith for the property on the first day the property was offered for sale, that when the property was thereafter offered, there was no purchaser in good faith for the same, and that the whole amount of the property assessed was struck off to the county as a purchaser, and should otherwise truthfully state the facts; hence, a tax deed to a county, which did not set out the facts showing why the sale was made to the county, and not to an individual purchaser, was insufficient, though it recited the matters required by law to be recited in a tax deed to an individual. (On rehearing. Aifirmed.)</p> <p>(For former opinion, see 36 Mont. 566, 93 Pac. 943.)</p>

<p> Appeal from District Court, Chouteau County; John W. Tat-ton, Judge. </p> <p>Action by J. A. Baiche against 'J. E. Morrison. (Judgment for defendant. Plaintiff appeals.</p>

J. Lynchs Judge. Action for an injunction by Barney McGillic against Joseph. A. Corby and others, as officers of the city of Butte. Defendants had judgment and plaintiff appeals.

<p>Life and Accident Insurance — Liability of Insurer — Evidence— Insufficiency — Burden of Proof.</p> <p>Life and Accident Insurance — Evidence—Insufficiency.</p> <p>1. A life and accident insurance policy provided, inter alia, for payment of a stipulated sum only in the event that injuries, effected solely through external, violent and accidental means, should directly and independently of all other causes result in death. Plaintiff’s wife (the insured), in stepping from a street-car, sustained an abrasion of her limb. She died from erysipelas. Evidence examined and held to show an absence of proof that the death of insured resulted from injuries as provided in the policy, or that the disease was communicated to her by the wound on her limb, or that the abrasion caused it to become manifest, and that therefore plaintiff was not entitled to recover.</p> <p>Same — Burden of Proof.</p> <p>2. Since actions on life and accident insurance policies are founded upon express contract, the burden rests upon plaintiff to prove, by some substantive testimony, that the event has occurred upon the happening of which the insurer has agreed to become liable.</p>

<p>Labor Unions — Boycott — Definition — Injunction — “Unfair” Circulars — Bight to Publish — Constitution.</p> <p>Labor Unions — Boycott—Definition.</p> <p>1. The term “boycott'' does not necessarily signify that those engaged in it employ violence, intimidation or other unlawful coercive means; but it may be correctly used in the sense of the act of a combination in refusing to have business dealings with another until he removes or ameliorates conditions which are deemed inimical to the welfare of the members of the combination or some of them, or grants concessions which are deemed to make for that purpose.</p> <p>Same — Combinations—Conspiracy.</p> <p>2. If an act done by one person is lawful, a combination of several persons to commit the same act does not make it unlawful, so as to render the members of the combination liable to a charge of conspiracy.</p> <p>Same — Boycott.—Injunction.</p> <p>3. Neld, that a labor organization may employ the boycott, as defined in paragraph 1 above, provided the means employed be not unlawful, in furtherance of the objects of its existence, even though financial loss results to the boycotted; and that injunction will not lie to enjoin its continuing in force.</p> <p>Injury — Definition.</p> <p>4. Injury, in its legal significance, means damage resulting from the violation of a legal right, and it is only the violation of such a right which renders an act wrongful in the eye of the law and makes it actionable.</p> <p>Labor Unions — Boycott—“Unfair’' Circular — Eight to Publish — Constitution.</p> <p>5. Under section 10, Article III of the Constitution, guaranteeing to every person the right to speak, write or publish whatever he will on any subject, being answerable, however, for a violation of the privilege, a court may not enjoin a labor organization from publishing a. circular calling upon all laboring men, and those in sympathy with organized labor, not to patronize a certain business house, characterized therein as “unfair,” even though the persons comprising the organization be insolvent, and an abuse of the liberty guaranteed by the Constitution may result in loss fox which there cannot be any adequate compensation.</p>

<p>Logs and Logging — Sale of Standing Timber — Deeds—Construction.</p> <p>Deeds — Construction—Intention of Parties.</p> <p>1. In construing the terms of a deed the court must, if possible, ascertain the intention of the parties to the sale as expressed by the deed.</p> <p>Dogs and Logging — Sale of Standing Timber — Limitation of Grant.</p> <p>2. Where standing timber is sold without the land, the timber to be removed within a specified time, the general rule is, that the sale is only of so much timber as is removed within that time, and such a contract confers no right to remove timber thereafter.</p> <p>Same.</p> <p>3. Defendant, in a suit to quiet title to lands, had sold to plaintiff the timber standing thereon, the deed providing,1 among other things, that such timber should be cut and removed within five years from the date of the instrument. At the expiration of the five-year period a part of the timber still remained uncut, and the court held that .defendant had no longer any right to it. Held, that the holding of the court was correct, and that the contention of defendant that the provision above amounted only to a covenant that the grantee would cut and remove the timber within the specified time, for a violation of which the grantor might maintain an action for damages, was untenable, but that the clause referred to limited the operation of the grant to the timber cut or removed within the five-year period.</p>

<p>Mines and Mining — Adverse Suits — Nonsuit—When Proper— Practice.</p> <p>Mines and Mining — Adverse Suits — Plaintiff’s Prima Facie Case — Requirements.</p> <p>1. In an adverse suit to determine the relative rights of the parties to patent to a quartz lode claim, the plaintiff must, in order to make out a prima facie case, show, in addition to the other requirements of the law, that at the time he made his location the ground was not covered by a prior location or, if his testimony discloses that a prior location had been made, that the claimant had forfeited his right to-the land by failure to comply with the law, or that the claim had been abandoned.</p> <p>Same — Adverse Suits — Nonsuit—When Proper.</p> <p>2. Nonsuit was properly granted in an adverse suit where plaintiff, in making out his prima facie case, not only failed to prove that the ground in controversy was open to location, but did show that there was some evidence upon the premises that the ground was claimed by someone else.</p> <p>Same — Adverse Suits — Proceedings After Nonsuit — Practice.</p> <p>3. After plaintiff in an adverse suit is nonsuited for failure to show that at the time of his attempted location the ground was subject to entry, he has no further right to participate in the trial, but is a stranger to the proceedings so far as defendant’s affirmative case is, concerned.</p> <p>Same — Adverse Suit — Proceedings After Nonsuit — Presumptions.</p> <p>4. While, in an adverse suit, after the granting of a nonsuit for failure of plaintiff to establish a prima facie case, the hearing of defendant’s ease became ex parte, the presumption nevertheless obtains that all proceedings were regular and the judgment for defendant correct-</p> <p>Courts — Practice.</p> <p>5. Courts must proceed according to established practice.</p>

<p>Dismissal — Default—Judgment—Failure to Enter — Statutes— Mandamus.</p> <p>Dismissal — “Final Submission” — Statutes. •</p> <p>1. Held, under the rule of noseitur a sotáis, that the words “final submission,” found in section 1004, Code of Civil Procedure, which provides that an action may be dismissed by the court when, after verdict or final submission, the party entitled to judgment neglects to demand and have the same entered for more than six months, mean a submission which is the equivalent of the return of a verdict, and refer to that state of the case when a judgment may rightfully be demanded as of course.</p> <p>Default — Eight to Judgment.</p> <p>2. A default is an admission of plaintiff’s case, stands in the place of a trial in a litigated action, has the same effect as a verdict, and is a final submission of the case as against the defaulting defendant; hence, upon default, plaintiff is entitled to judgment as of course, to the same extent as though defendant had defended and a verdict in favor of plaintiff had been returned upon the trial of the cause.</p> <p>Parties Defendant — Judgment Against One or More.</p> <p>3. Where several defendants are jointly and severally liable, the district court may, under section 1002, Code of Civil Procedure, enter judgment against one or more of them, leaving the action proceed against the others.</p> <p>Default — Failure to Enter Judgment — Dismissal—Excuse for Delay.</p> <p>4. The fact that another suit, upon the same causes of aetion and between the same parties, is pending in another state is not any excuse for failure to have a judgment entered within six months after the default of one of several defendants, so as to prevent a dismissal.</p> <p>Same — Failure to Answer — Waiver.</p> <p>5. Where one of the several defendants defaulted, the mere fact that one of his codefendants had set forth facts in his answer which, if true, constituted a complete defense for the nonanswering defendant as well as for the one answering, did not deprive the court of the right to enter a judgment by default, since by failure to answer he waived the right to assert a defense, and no one else could interpose it for him.</p> <p>Same — Failure to Enter Judgment — Dismissal—Discretion.</p> <p>6. Where a defaulted defendant presented a prima facie right to have the cause against him dismissed for failure of plaintiff to have judgment entered within six months after entry of default, and the plaintiff did not offer any valid exeuse why dismissal should not be had, there was not anything to put judicial discretion in motion (if such a motion was addressed to the court’s discretion), and the request for dismissal should have been granted.</p> <p>Discretion — How Put in Motion.</p> <p>7. Judicial discretion cannot be exercised unless there be facts and circumstances to put it in motion.</p> <p>Default — Failure to Enter Judgment — Dismissal—Mandatory Statute.</p> <p>8. Held, that the .provision of section 1004, Code of Civil Procedure, that an action “may” be dismissed by the court when after verdict or final submission the party entitled to judgment negleets to demand and have the same entered, is mandatory, and not a matter addressed to the discretion of the district court.</p> <p>Dismissal — End of Litigation — Policy of Law.</p> <p>9. The policy of the law is to put an end to litigation at the earliest possible moment.</p> <p>Default — Failure to Enter Judgment — Dismissal—Mandamus—When Proper Remedy.</p> <p>10. Where two and one-half years had elapsed since plaintiff, in an action against several defendants (some of whom were nonresidents of the state upon whom service of summons could not be had), was entitled to have judgment by default entered against one of them (a resident), but none had been demanded or entered, and where it appeared from the reeord that a considerable time would elapse before a final judgment could be entered, if it ever could be done, mandamus was the proper remedy to compel the court upon proper motion to dismiss the case against the defaulted defendant, since appeal from the final judgment in the case would not furnish that plain, speedy and adequate remedy contemplated by section 1962 of the Code of Civil Procedure.</p>

<p>Beal Property — Contract to Purchase — :Transfer of' Interest— Statute of Frauds.</p> <p>Real Property — Contract for Sale of — How Transferable.</p> <p>1. Where the creation of an interest must be evidenced by a writing, the transfer of that interest must likewise be so evidenced.</p> <p>Same — Contract for Sale of — Oral Transfer — Invalidity.</p> <p>2. P. entered into a written agreement with K. for the purchase of certain lands from the latter. Thereafter P. executed a power of attorney to his son, empowering the latter to sell, assign and deliver the contract ti> defendant MeV., on payment of $350. The attorney in fact transferred the contract orally to defendant, at the same time delivering to him the contract. K. thereafter refused to convey, and plaintiff brought suit to recover from defendant MeV. the sum of $350. The court granted a nonsuit. Selcl, that the action of the court was correct, inasmuch as the interest acquired by plaintiff under his contract with K. constituted an equity in the lands in question, the transfer of which was a grant of an interest in real property and which, under Civil Code, section 2185, could only be made in writing; and that therefore the verbal transfer by the attorney in fact, even though accompanied by delivery of the contract, did not effect a legal transfer.</p> <p>Things in Action — Oral Assignment — Sufficiency.</p> <p>3. Obiter: Under Civil Code, section 1351, things in action, or rights arising out of obligations, are assignable, without a writing, in every case in which a writing.is not expressly required by statute. Nonassignability is the exception.</p>

M. Bourquin, Judge. A. B. Clements was charged with willfully signing and verifying a false written report of the affairs of a foreign banking corporation. From an order directing an acquittal, the state appeals. A banking institution is not authorized to accept the individual notes of its directors and shares of stock of some other corporation as and for the capital stock of the bank; the authorities are to the contrary. (Civ. Code, sees. 570, 591; Criswell v. Montana Cent.

<p>Receivers — Vacation of Order Appointing — Appeal—Waiver— Appointment — Insufficient Grounds — Evidence — Review— Power of Appointment — Eow to he Exercised.</p> <p>Receivers — Appointment Without Notice — Vacation of Order — Renewal of Motion — Appeal—Waiver.</p> <p>1. Where, immediately after the vacation of an order appointing a receiver, without notice, plaintiff filed an amended complaint and made a second motion for the appointment of such an officer, and upon the hearing of that motion the faets in the case were disclosed to the court and the motion denied, she, by making the seeond motion and showing the 'facts, waived any right she may have had to complain of the action of the court in vacating the first order, even assuming that she had made allegations sufficient in her first complaint to entitle her to the appointment of a receiver without notice.</p> <p>Same — Refusal to Appoint — Trivial Grounds.</p> <p>2. On an application of a stockholder in a mercantile corporation for the appointment of a receiver for the concern a court of equity would not be justified in attaching any importance to such trivial matters, standing alone, as that an assistant manager had taken two skirts of the value of $5.50 each from the stock and had neglected to either pay for the same or have them charged to himself, that he had paid a personal claim of $1.80 out of the company’s funds without charging the same to his account, and that he appropriated a cord of wood of the value of $6.00, belonging to the corporation, without paying for it.</p> <p>Same — Appointment—Insufficient Grounds.</p> <p>3. The fact that the directors of a mercantile corporation disagreed among themselves as to the expediency of conducting the business on a cash or credit basis, was not sufficient to warrant a court in appointing a receiver.</p> <p>Corporations — Directors—Scope of Duty.</p> <p>4. Directors of a corporation, when acting within the scope of their authority, are bound only to the exercise of good faith and the use of their best judgment in the conduct of the affairs of the company.</p> <p>Receivers — Refusal to Appoint — Evidence—Review.</p> <p>5. Evidence examined and held, that the court did not abuse its discretion in refusing to appoint a receiver for a mercantile corporation on the application of a stockholder.</p> <p>Same-r-Power to Appoint — How to be Exercised.</p> <p>6. The power to appoint a receiver should be exerci&ed with great care and the utmost caution, and even upon a strong showing the authority must be used with conservatism and the remedy resorted to only in cases of emergency.</p>

<p>Personal Injuries — Railroads—Conflicting Evidence — Appeal— Review — Complaint — Amendment — Discretion — Theory of Case.</p> <p>Trial — Complaint—Amendment—Review.</p> <p>1. The propriety of permitting an amendment to the complaint, at-the close of plaintiff’s ease, in an action to recover damages from a railroad company for personal injuries, by changing the amount of the-demand from $2,000 to $6,000, alleged by appellant to have been asked for for the purpose of depriving defendant, a foreign corporation, of the right to remove the cause to the United States circuit court, will not be reviewed where no such objection was made in the district court and a ruling obtained thereon.</p> <p>Same — Complaint—Amendment—Harmless Error.</p> <p>2. The court’s action in allowing the amendment referred to in the-foregoing paragraph, if error, was harmless, where the verdict did not exceed the amount originally demanded.</p> <p>Same — Complaint-—Amendment—Propriety-—Presumptions.</p> <p>3. Where no showing was made to the district court that plaintiff, in-asking for the amendment above, resorted to a trick so as to deprive the corporation of its right to remove the cause, the court was justified in acting upon the presumption that the action was brought in good faith for the smaller amount, and asked for the amendment in order-to make the complaint conform to the proof.</p> <p>Same — Complaint—Amendment—Discretion.</p> <p>4. It Res within the discretion of the trial court to permit an amendment to the complaint, at the close of plaintiff’s ease, for the purpose-of making it conform to the proof, and error cannot be predicated, upon its action unless abuse is shown.</p> <p>Personal Injuries — Negligence—Presumptions—Burden of Proof.</p> <p>5. Where, in an action by a passenger against a railway company for personal injuries, the proof showed that plaintiff without contributory negligence was' injured by reason of a collision caused by the train running into an open switch, a presumption of negligence on the part of the defendant was created, making out a prima facie ease for plaintiff, and thereupon the burden was east upon defendant to overcome this presumption, by showing that its servants and employees were aeting with that high degree of skill and caution whieh the law imposes upon it.</p> <p>Same — Conflicting Evidence — Appeal—Review.</p> <p>6. Where the evidence adduced in a personal injury case is conflicting, and a new trial is not asked upon the ground that the verdict was excessive, the supreme court will aceept the verdict of the jury and the judgment of the district court on a re-examination of the evidence on the motion for new trial, as binding, both as to the general liability of the defendant and as to the amount of damages awarded.</p> <p>Same — Pain and Suffering — Apportionment of Damages — Evidence.</p> <p>7. Quaere: Must plaintiff, in an action to recover damages for personal injuries, more or less permanent in character and accompanied by pain and suffering, refrain, after the injury, from any active employment if the attendant activity aggravates the pain and suffering, and is he required to submit evidence to enable the jury to apportion the damage proximately caused by the injury and that whieh was caused by himself by resuming his ordinary vocation?</p> <p>Trial — Theory of Case — Acquiescence—Appeal.</p> <p>8. A party who has acquiesced in the trial of a cause upon a certain theory cannot insist, either on motion for new trial or on appeal, that the district court adopted a wrong theory.</p>

<p>Water Bights — Appeal—Notice—Adverse Parties — Decree—Removal of Water from.Water shed.</p> <p>Water Bights — Appea1—Presumptions.</p> <p>1. Where a decree in a water right suit awarded to two defendants a joint right, and one appealed from the judgment while the other did not, it .will be presumed that the non-appealing defendant was satisfied with the decree as it stood.</p> <p>Appeal — Notice—Adverse Parties.</p> <p>2. While under section 1721, Code of Civil Procedure, any party aggrieved may appeal, no matter whether the judgment be joint or several, he must serve with notice all other parties who are interested in opposing the relief which he seeks by his appeal, if they formally appeared in the action below, else his appeal will prove ineffectual.</p> <p>Same — Adverse Party — Definition.</p> <p>3. An adverse party, within the meaning of section 1724, Code of Civil Procedure, relative to the requirement that an appellant must serve the adverse party with notice of his intention to appeal, is one who has an interest in opposing the objeet sought to be accomplished by the appeal.</p> <p>Water Bights — Decree—Bemoval of Water from Watershed.</p> <p>4. A decree, in a water right suit, which does not specifically authorize a prior appropriator to take the water awarded him from its watershed permanently, must be construed as not giving that right.</p> <p>Same — D ecree — Appeal—N otice — Dismissal.</p> <p>5. In a suit to determine water rights, the court awarded to one of the defendants (a city) the same rights (theretofore used for agricultural purposes) as its predecessors had, but did not declare that defendant city had the right to take the water away from the watershed or basin of the main stream. Several codefendants appealed from the decree, but failed to serve certain nonappealing defendants with notice. Neld, that since the defendants not served with notice could only be detrimentally affeeted by any modification of the decree, they were adverse parties, entitled to notice, and that in the absence of notice, the appeal must be dismissed.</p>

L. Calla-way, Judge. Mandamus by tbe state, on tbe relation of Milton Bean, against Pbillip Lyons and others, as trustees of school district No. 35, Madison county. From a judgment for plaintiff, defendants appeal. Tbe school board bad no authority to occupy and conduct school in the old schoolhouse after September 24, 1907, while it remained upon the premises of Staudaher & Johnson.

K. Cheadle, Judge. 3. A. Mitton was convicted of the crime of forgery, and he appeals from the judgment and an order denying him a new trial. The amended information sets forth two offenses. The demurrer to the amended information should have been sustained. {People v. Tower, 135 N. T. 457, 32 N. E. 145; Territory v. Poulier, 8 Mont. 146, 19 Pac. 594; People v. Parker, 67 Mich. 222,11 Am. St. Rep. 578, 34 N. W. 720; State v. Wood, 13 Minn. 121; 9 Am. & Eng.

Mandamus by the state, on the relation of F. A. Henderson and another, against the board of state prison commissioners to compel defendants to sign and execute a contract with relators for the care of the inmates of the state prison.

M. Clements, Judge, W. R. Holland was convicted of unlawfully wearing the badge of an organization of which he was not a member, and appeals from the judgment. The statute under consideration is a clear attempt to delegate legislative functions to the orders or societies mentioned therein, for thereby it is left to them to declare by their constitutions, by-laws, rules and regulations who shall be and who shall not be misdemeanants.

K. Cheadle>, Judge. Action by Willard A. Long against E. R. Needbam for specific performance. From a judgment for defendant, entered on sustaining a demurrer to the complaint, plaintiff appeals. A valid contract for the sale of land may be embraced wholly in letters and telegrams concerning such land. (Pollock v_ Brainard, 26 Fed. 732; Hollis v. Burgess, 37 Kan. 487,15 Pac. 536; Eempner v. Cohn, 47 Ark. 519, 58 Am.

Action by Claud Earl Forquer, a minor, by C. F. Forquer, bis guardian ad litem, against tbe Slater Brick Company. Judgment for plaintiff, and defendant appeals from tbe judgment and an order denying it a new trial. Before negligence can be imputed to tbe appellant in not having tbe knives of tbe pugmill in question guarded, some evidence must be submitted tbat it is usual or customary to box them, or at least tbat it is practicable to do so.

Action by Marie Neary in ber own right as heir at law of James S. Neary, deceased, and as guardian of her minor children, against the Northern Pacific Railway and A. J. Frost, one of its locomotive engineers. Judgment for defendants, and plaintiffs appeal. Contributory negligence is no answer to a suit for a willful killing nor for a death occasioned by gross and wanton carelessness. It is no defense in the criminal law and it is no defensa in a civil action for damages.

Suit by Ellen E. Bowen against Malinda M. Webb to quiet title to an irrigation ditch. From a decree for plaintiff, and an order denying a new trial, defendant appeals.

Supervisory control by the state, on the relation of Winnifred A. McLean, against the district court of the second judicial district in and for Silver Bow county and the judges thereof, to annul a judgment.

B. Winston, Judge. Action by George Dackich against George Baricb and another, to recover on an undertaking given to secure the release of an attachment. From a judgment for plaintiff and from an order denying a new trial, defendants appeal. The amended complaint does not state a cause of action.

L. Calla-way, Judge. 'Action by Mary A. Sloan and others against Luella Byers and others. From a judgment on the pleadings in favor of defendants, plaintiffs appeal. Where interests are necessarily adverse and necessarily passed upon in one proceeding where the adverse claims are set out, the judgment acts as an estoppel of the points raised.

B. C. Stewart, Judge. Action by C. A. Mitchell against S. J. Y. B. Henderson. From a judgment for plaintiff, and from an order denying him a new trial, defendant appeals.

C. Bach, Judge. Action by T. C. Power & Bro. against W. P. Turner, -Jr. From a judgment for defendant and from an order denying it a new trial, plaintiff appeals. A person relying upon fraud must specifically plead the facts constituting the fraud. It is not sufficient to say that a party was guilty of fraud, or did a certain act fraudulently, but the facts constituting the fraud must be clearly and specifically set forth.

M. B our quin, Judge. Proceedings, by Mary Bush, for the probate of the will of Mary Miller, deceased. Ella Miller appeared as contestant and offered for probate a prior will. From a judgment denying probate, petitioner, Mary Bush, appeals. The same degree of mental capacity is not required to make out a will as is required in making out an ordinary contract. (Potts v. House, 6 Ga. 324, 50 Am. Dec. 329; Harrison v. Rowan, 3 Wash. C. C. 580, Fed. Cas.

Lynch, Judge. Action by Patrick Lebane against tbe Butte Electric Railway Company. From a judgment for plaintiff and an order denying a new trial, defendant appealed. Tbe court erred in refusing to instruct tbe jury to find a verdict for defendant. Tbe verdict was clearly against tbe evidenee.

B. Leslie, Judge. Action by Stephen Mitchell, by - William Mitchell, his guardian ad litem, against the Boston and Montana Consolidated Copper and Silver Mining Company. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. None of the six interrogatories submitted to the jury are such as come within the purview of section 1101 of the Code of Civil Procedure.

Certiorari by the state, on the relation of John 'It. Grice, against the district court of the second judicial district and George M. Bourquin, a judge thereof, to review an order to show cause why relator should not be punished for contempt of court. The power of courts to punish for contempt should only be exercised in the administration of justice, not to gratify any desire they may have to inflict punishment or to accomplish revenge. (State ex rel.

Lynch, Judge. Personal injury action by Guy Shane against the Bntte Electric Eailway Company. From a judgment for plaintiff, and an order denying it a new trial, defendant appeals.

<p> Appeal from District Court, Silver Bow County; Michael Donlan, Judge. </p> <p>On motion to dismiss appeals.</p>

<p>Original application for injunction.</p>