Volume 40 — Montana Reports

<p>Personal Injuries—Coal Mines—Master and Servant—Buies— Failure to Promulgate—Contributory Negligence—Assumpr tion of Bisk—Vice-principal—Fellow-servants—Promise to Warn—District Judges—Disqualification—New Trial Order.</p> <p>District Judges—Disqualification—New Trial Order-—Power of Substituted Judge.</p> <p>1. Where a district judge, after trying a cause, deemed himself disqualified from acting upon a motion for a new trial, and called upon a judge of another district to sit in his place for that purpose, the latter bad the same power in the premises as the judge who called him.</p> <p>Personal Injuries—Master and Servant—Rules—Failure to Promulgate— Issues.</p> <p>2. Where, in an action by a coal miner for injuries sustained in defendant company’s mine, plaintiff’s allegation, couched in general terms, that defendant was negligent in not providing rules governing the setting off of blasts, had not been assailed nor any objection made to the introduction of testimony, which had to do only with the questiou -whether any rules at all were in force, and not with the nature and scope of any particular rules which should have been promulgated, defendant could not complain that the issue was submitted to the jury.</p> <p>Same—Foreman—Failure to Warn Servant—Assumption of Risk—Rules.</p> <p>3. Plaintiff who, while working in a coal mine, heard blasts going off in an adjoining room so close to where he was employed that he became apprehensive of his safety and informed the general foreman in charge of the mine, but was assured by him that there was no danger and that he (the foreman) would warn him before any shots were fired, and who, without sueh warning, was seriously injured by a subsequent blast, cannot be held to have known, appreciated and assumed the risk incident to working without rules regulating the getting off of blasts.</p> <p>Same—Contributory Negligence—Question for Jury.</p> <p>4. The question whether plaintiff, in remaining at work after becoming aware that shots were being fired in close proximity to him, knew and appreciated the danger of his position at the time he was injured, and therefore was guilty of contributory negligence or assumed the risk, in view of the surrounding facts and circumstances, was for the jury to determine.</p> <p>Same—Vice-principal—Fellow-servants.</p> <p>5. Defendant company’s foreman, who had general supervision over its mine and plenary authority to hire and discharge employees, was a vice-principal and not a fellow-servant of plaintiff.</p> <p>Same—Failure to Warn—Vice-principal—Power to Bind Principal.</p> <p>6. Held, that a general foreman, who was in full ehargo and control of defendant company’s coal mining operations, had authority to induce plaintiff to continue at work in a room In the mine which had become dangerous by reason of blasting in an adjoining room (with knowledge of which the foreman was chargeable), by a promise that he would notify him (plaintiff) in time to avoid any danger from subsequent blasts; and that in so promising he represented the defendant as its vice-principal, and made it liable for injuries resulting from his failure to keep such promise.</p>

<p>Original application, by the state, on relation of H. S. Hepner, county attorney for Lewis and Clark county, for a writ of supervisory control to the district court of the first judicial district for the county of Lewis and Clark, and James M. Clements, a Judge thereof.</p>

<p>Mines and Mining—Adverse Suit—Declaratory Statements— Evidence—Forfeiture—Burden of Proof—Monuments — Description—Sufficiency.</p> <p>Mining Claims'—Metes and Bounds—Declaratory Statement—Evidence.</p> <p>1. While section. 1477, Fifth Div., Compiled Statutes 1887,—the statute in force at the time the location in controversy was made,—did not require the declaratory statement to contain a description of the metes and bounds of the claim, yet where it did contain such a description, and, the monuments having entirely disappeared, there were not any evidences from which it was possible to determine the boundaries of the claim, located about seventeen years before the controversy arose, the trial court did not err in holding that the descriptive calls of distances in the sworn statement were controlling, rather than the oral testimony of the locator as to his recollection of them.</p> <p>Same—Discovery—Sufficiency.</p> <p>2. A discovery shaft, through the center of which one of the end lines of the claim ran, was sufficient to support the location; and the fact that an adjoining claim was thereafter so laid out as to overlap the former and inelude the shaft, could not impair the prior location, but operated only to avoid the subsequent location to the extent of the conflict.</p> <p>Same—Discovery—When Void.</p> <p>3. A lode location, the discovery upon which was made within the boundaries of an adjoining prior location, was void.</p> <p>Same—Forfeiture—Burden of Proof.</p> <p>4. The burden of proving, by clear and convincing evidence, the forfeiture of a quartz lode mining claim for nonperformance of the annual representation work, rests upon him who alleges it.</p> <p>Same—Discovery—When Void.</p> <p>5. Where a location was based upon a discovery within the confines of one of an alleged contiguous group of three claims, and therefore invalid, the question whether work done upon one of the group represented all of them was of no concern to the locator of the invalid claim.</p> <p>Same—Declaratory Statement—Description of Claim—Sufficiency.</p> <p>6. A description of a lode mining claim, in the declaratory statement, with reference to natural objects or permanent monuments, which, when reasonably construed, in -view of the surrounding circumstances, imparts notice to subsequent locators that the particular portion of ground has been located, is sufficient for the purpose of identification.</p> <p>Same.</p> <p>7. A declaratory statement referred, among other things, to a racetrack, a little over a mile from the location, as a means of identification. The track at that time (about seventeen years before trial of an adverse suit) was an inclosed and substantial structure, and its location was then, as well as after its removal and when the trial was had, well known. Held, that the trial court did not err in its decision that the reference was sufficient.</p>

<p> Contracts—Breach—Trial—Continuance—District Judges—Disqualification—Change of Venue—Waiver—Evidence—Hearsay—Directed Verdict. </p> <p>Trial'—'Continuance—Absent Witness—Insufficient Showing of Diligence.</p> <p>1. A continuance asked for by defendant on the ground that one of its material witnesses, who then was, and for some months before had been, a nonresident of the state, was unable to attend on account of illness, was properly denied, where the cause Jjad been at issue for several months and where the moving party had failed to make any showing of diligence to secure the evidence of the witness by deposition.</p> <p>Same—Disqualification of Judges—Change of Venue—Waiver.</p> <p>2. Where defendant had filed an affidavit disqualifying a district judge, and with it a motion that the cause be transferred to some other district for trial (which motion, however, had never been called to the attention of the judge for official action), but thereafter permitted it to be set for hearing in the court in which it was commenced, and then consented to having it reset, knowing that arrangements were being made to call in a judge from another district, and upon the arrival of such judge asked for a postponement because of the absence of a witness, without referring to the motion to transfer, it waived the right to have the cause transferred and could not thereafter assert that the judge who tried it was without jurisdiction.</p> <p>Same—Evidence—Exclusion—Bill of Exceptions—Record.</p> <p>3. The action of the court in excluding a letter offered in evidence will not be reviewed unless the writing is incorporated in a bill of exceptions.</p> <p>Same—Evidence—Motion to Strike—Discretion.</p> <p>4. Obiter: The district court may, in its discretion, strike out incompetent evidence which had been admitted without objection.</p> <p>Same—Evidence—Hearsay—Timely Ob j ection.</p> <p>5. An affidavit of counsel, made in support of a motion for a continuance (which was denied), averring the facts to which an absent witness would testify if present, was incompetent, as hearsay, in the absence of an admission by the adverse party that the witness would testify as alleged; and an objection to its admissibility, after it had been partially read, was timely.</p> <p>Same—Evidence—Erroneous Admission—Curing Error.</p> <p>6. Where the only evidence offered in behalf of defendant was an affidavit, which was incompetent as hearsay, and an objection to which had been erroneously overruled, the court’s action, in subsequently directing a verdict in favor of plaintiff, was equivalent to striking it out and cured the error theretofore committed in overruling the objection; hence defendant suffered no prejudice.</p> <p>Same—Directing Verdiet—When Proper.</p> <p>7. Where the evidence of the plaintiff in support of his claim was clear and satisfactory, and that of defendant consisted of an affidavit which was hearsay, a case was presented in which, under section 6761, Revised Codes, the court was authorized to direct a verdiet in plaintiff’s favor.</p>

<p> Promissory Notes—Services—Quantum Meruit—Nonsuit—Estoppel—Nonresident Witnesses—Evidence—Admissibility. </p> <p>Contracts—Services—Nonsuit.</p> <p>1. Nonsuit as to one of three causes of action, which alleged that plaintiff had performed services for defendant at the latter’s special instance and request at a stipulated sum, was properly granted, where plaintiff himself had testified that there was no agreement relative to compensation and that he expected none, but that the work he did was done as defendant’s partner, and, as such, he was entitled to his share of the profits.</p> <p>Quantum Mermt—Work and Labor—Evidence—Nonsuit.</p> <p>2. Where in an aetion to recover on a quantum meruit for services alleged to have been rendered in the promotion of a mining deal, plaintiff, a miner, had testified that he took no part in promoting it, and the only testimony on the question of the reasonable value of the services was his opinion that they were worth $25,000-, which opinion was not based upon any knowledge as to the value of the services of a promoter but upon a claim of partnership with defendant in the transaction, nonsuit should have been granted.</p> <p>Promissory Notes—Pleading and Proof—Incompetent Evidence.</p> <p>3. In an action on a promissory note claimed to have been given in compensation of services performed by plaintiff in the sale of certain mining claims, the only defenses interposed to which were that the note had been given on condition, which had failed, and that plaintiff had never accepted it, evidence as to what the latter’s services were reasonably worth and what defendant had received for disposing of the claims was incompetent and immaterial.</p> <p>Estoppel by Record—Pleading.</p> <p>4. An estoppel by record must be pleaded, if there is an opportunity to do so.</p> <p>Pleading and Proof—Estoppel by Record—Variance.</p> <p>5. Where an answer was drawn upon the theory that plaintiff was es-topped by a judgment in a former action, the estoppel pleaded could not be supported by evidence showing that he was estopped by an election of remedies.</p> <p>Nonresident Witnesses—Evidence—Transcript of Former Trial—Admissibility.</p> <p>6. Where plaintiff was one of two plaintiffs, and defendant was one of two defendants in a former action, and in a subsequent one the subject matter in controversy was the same as that litigated in the first, testimony given in the former one by a witness absent from the state at the time of the second trial was competent, under section 7887, Revised Codes, precise nominal identity of all parties not being essential.</p>

<p>Revenues — State Purposes — Taxation — Rate—Constitution— Self-executing Provisions—Legislature—Powers.</p> <p>Revenues—State Purposes—Taxation—Legislative Powers.</p> <p>1. For ordinary purposes tbe legislature may not convene oftener than once in two years; therefore, since the making of provision for the support and maintenance of the state government is one of the ordinary functions of government, the power vested in the legislative assembly to levy a uniform rate of taxation upon all property in the state for that purpose must be exercised in regular session.</p> <p>Constitution—Self-exeeuting Provisions.</p> <p>2. A constitutional provision is self-executing if it supplies a sufficient rule by which the right given may be enjoyed and protected, or the duty imposed enforced; and is not self-exeeuting when it merely indicates principles without laying down rules by which they may be given the force of law.</p> <p>Revenues—Taxation—Rate of Levy—Legislature—Powers—Constitution.</p> <p>3. Seld, that the provision of section 9, Article XII of the state Constitution, that when the taxable property in the state shall amount to $300,000,000, the rate of taxation for state purposes shall never thereafter exceed one and one-half mills on each dollar of valuation, is not self-executing, in the sense that when the taxable property reaches the above amount, after the levy has been fixed by the legislature at two and one-half mills, the present lawful rate, the rate is ipso faeto reduced to one and one-half mills; but such reduction becomes operative only upon legislative aetion had at regular session.</p>

<p>Criminal Law — Poolselling and Podhmáking— Constitutional Law—Evidence—Sufficiency—Admissibility.</p> <p>Poolselling and Bookmaking—Constitution—Special Privileges and Immunities.</p> <p>1. Held, that Chapter 92, Laws of 1909, making it unlawful to record or register or to aid or abet in recording, reporting or registering any bet or wager upon races held without the state, and which, among other things, allows betting on speed contests held within racetrack or fairground inelosures in this state, for thirty days in first class counties and fourteen days in other counties, is not in contravention of the provision of the Constitution (Art. Ill, sec. 11) prohibiting the irrevocable granting of any special privileges, franchises or immunities.</p> <p>Same—Constitution—Equal Protection of Laws—Who may not Invoke Provision.</p> <p>2. One charged with having aided and abetted in recording, reporting and registering a bet on a horserace held without the state, contrary to the provisions of Chapter 92, Laws of 1909, may not call the constitutionality of the Act in question, on the ground that its provisions having to do with speed contests within the state, are a denial of the equal protection of the laws (Fourteenth Amendment, Federal Constitution), and local or special in their character (Constitution of Montana, Art. Y, see. 26). The effect of those parts of the Act dealing with contests held within the state was of no concern to defendant.</p> <p>Same—Evidence—Sufficiency.</p> <p>3. Evidence held sufficient to show that defendant, the manager of a telegraph company which had been organized shortly after the Act (Chapter 92, Laws 1909) prohibiting the recording or reporting of horseraces held outside the state went into effect, was guilty of a violation of the statute.</p> <p>Same—Evidence—Admissibility.</p> <p>4. Testimony showing the physical conditions in and about the building where defendant conducted the telegraph business of his company, both before and after its installation in the place where the violation of the anti-poolroom law (Chapter 92, Laws 1909) occurred, as well as 1 testimony concerning any and all acts of the company and the defendant in the conduct of its business, was properly admitted.</p>

<p> Criminal Law—Poolselling and Boohmdking—Evidence—Sufficiency—Admissibility. </p> <p>Poolselling and Bookmaking—Evidence—Sufficiency.</p> <p>1. Evidence held sufficient to show that defendant was guilty of a violation of the anti-poolroom law (Chapter 92, Laws 1909), by aiding and abetting in the making of bets on horseraces held outside the state.</p> <p>Same—Conspiracy—Evidence—Admissibility.</p> <p>2. The acts done and words spoken by defendant’s confederates in the' execution of a plan which had for its purpose an evasion of Chapter 92, Laws of 1909, forbidding bookmaking and poolselling, both before and after the date on which the offense charged against defendant was, alleged to have been committed, were admissible in evidence.</p> <p>Same—Like Offenses—Evidence—When Admissible.</p> <p>3. Evidence of the commission of like offenses as the one for which defendant was on trial was admissible for the purpose of showing his act to have been a part of a system or general plan pursued by him in. evading the law.</p>

<p>Criminal Law—Burglary—Evidence—Sufficiency—Possession of Stolen Property —Larceny — Verdict — Conclusiveness — Instructions.</p> <p>Larceny—Possession of Stolen Property—Evidence—Sufficiency.</p> <p>1. The mere possession of stolen property is not alone sufficient to convict the possessor of a larceny of it; but where this fact is supplemented by others inconsistent with the idea that his possession is honest, such as refusal to account for it, or the giving of a fictitious name, or the like, a case is made sufficient to go to the jury.</p> <p>Burglary—Possession of Stolen Property—Evidence—Effect.</p> <p>2. Proof of the fact that defendant, on trial for burglary, soon after the commission of the crime had the stolen property in his possession, together with circumstances showing guilty conduct, is presumptive evidence, not only of the larceny, but also of the burglarious means employed in obtaining the property.</p> <p>Same—Evidence—Alibi—Verdict—Gonelusiveness.</p> <p>3. Where the state had made a prima facie ease against defendant for burglary, the jury’s verdict finding him guilty will not be. disturbed on appeal, notwithstanding several of his witnesses had given testimony tending to show an alibi. It was within the jury’s province to disbelieve such witnesses.</p> <p>Same—Instructions—Presumptions.</p> <p>4. The presumption obtains that the jury obeyed the court’s instruction that they should draw no adverse inference from the fact that defendant did not offer himself as a witness.</p> <p>Same—Verdict—When not Contrary to Law—Instructions.</p> <p>5. Where the question of the guilt or innocence of the defendant did not rest alone upon his possession of property charged to have been burglariously taken by him, but also upon facts and circumstances showing that the larceny could not have been committed without a felonious entry, a verdict of guilty cannot be said to have been contrary to the law as declared in an instruction that the mere possession of the property, without other incriminating circumstances, would not alone warrant a conviction.</p>

<p>Criminal Law—Attempts—Infamous Crime Against Nature—Punishment — Extent—-Costs of Prosecution—Instructions— Review.</p> <p>Infamous Crime Against Nature—Attempt—Punishment.</p> <p>1. Section 8895, Eevised Codes, provides that one found guilty of an attempt to commit a felony shall be punishable, where no provision is made by law for punishment, by imprisonment in the state prison for a term not to exceed one-half the longest term prescribed upon a conviction of the offense attempted. Section 8359 declares that one guilty of the infamous crime against nature is punishable by imprisonment for a term not less than five years; and under section 8902 the district court has power to extend the penalty to life imprisonment or to any number of years not less than that prescribed. Beld, under these sections, that the court had authority to fix the punishment of one found guilty of an attempt to commit the infamous crime against nature, at fifteen years, since in its discretion it could have sentenced defendant, if guilty of the infamous crime itself, to a term of thirty years, and hence eould with propriety fix one-half that term upon conviction for the attempt.</p> <p>Criminal Law—Costs of Prosecution—-When not Recoverable.</p> <p>2. In the absence of a statute permitting it, the imposition of costs, incident to the prosecution, as part of the penalty for the commission of crime, is error.</p> <p>Same—Improper Judgment—Modification.</p> <p>3. A judgment of conviction for crime, which erroneously included’ payment by defendant of the costs of prosecution, is not on that account void as a whole; but the same may, under section 9417, Revised Codes, be modified by striking therefrom the provision as to costs, and, as so modified, be allowed to stand.</p> <p>Same—Instructions—Appeal—Review.</p> <p>4. Where defendant fails to make objection to any portion of the-charge or to any action of the trial court in its settlement during trial, he will not, on appeal, be heard to complain of error therein or of any omission by the court to submit any special instruction.</p>

<p> Criminal Law—Gaming—Evidence—Insufficiency—Information —Appeal—Review. </p> <p>Criminal Law—Appeal—Eeview.</p> <p>1. To make the refusal of the trial court to direct a verdict of acquittal reviéwable on appeal, it was not necessary that the ruling should first have been presented to that court on a motion for a new trial and an exception preserved to the order denying the motion.</p> <p>Same—Gaming—Information—Evidence—Insufficiency.</p> <p>2. Where an information charged defendant with unlawfully permitting a game of draw-poker to be played upon his premises, and there was no evidence whatever as to what, if any, game was being played, the court should have withdrawn, the case from the jury and directed a verdict of acquittal.</p> <p>Same—Jury—Disregard of Instructions—New Trial.</p> <p>3. Failure, on the part of the jury, to heed the court’s instructions, insufficient to warrant the granting of a new trial.</p> <p>Same—Gaming—Information—Sufficiency.</p> <p>4. An information charging defendant with permitting a game of chance to be played upon his premises, contrary to the provisions of section 8416, Revised Codes, was not defective because it failed to set-forth the names of the persons permitted to play.</p> <p>Same—Admission of Evidence—"Prejudicial Error.</p> <p>5. It was prejudicial error to allow the state, while attempting to-prove the ownership of the saloon in which defendant was charged to have permitted gambling, to show that a homicide had taken place-therein at some time prior to the offense for which he was on trial.</p>

<p> Partnership—What Constitutes—Evidence—Insufficiency—Appeal—Review in Equity Cases. </p> <p>Equity—Appeal—Eiudiugs—Review.</p> <p>1. The rule that the supreme court will on appeal, in equity cases, determine whether the evidence preponderates against the findings of the trial court, is applicable only where there is a controversy as to the facts; hence it has not any application where the facts are admitted by defendant’s failure to introduce any testimony.</p> <p>Partnership—What Constitutes.</p> <p>2. To constitute a partnership, there must not only be such a community of interest as empowers each partner to make contracts, incur liabilities and dispose of its property, but also a community of ownership in the profits.</p> <p>Same—Sharing of Profits.</p> <p>3. The sharing of profits is not a conclusive test of a partnership.</p> <p>Same—Evidence—Insufficiency.</p> <p>4. Where the evidence showed that, while mining property had been acquired in the names of two persons, there was no community of title, but each held an undivided individual interest therein; that neither had, or assumed to have, authority to dispose of the interest of the other; and that, when any portion thereof was sold, each received payment as for an individual interest and disposed of the proceeds as he saw fit, the transactions between the parties did not constitute them partners.</p> <p>Same—Powers of Surviving Partner.</p> <p>5. The surviving member of a partnership may expend the firm’s funds in protecting its property.</p>

<p> Railroads—Carrier and Passenger—Special Contracts—Construction—Coupon Tickets—Agency—Estoppel—Time Limit—Burden of Proof—Evidence—Insufficiency—Excessive Damages. </p> <p>Railroads—Carrier aud Passenger—Coupon Tickets—Acceptance—Signature.</p> <p>1. By accepting a coupon railway ticket, purchased for Mm and signed by another, plaintiff, in an action to recover damages for being ejected from defendant company’s train for the alleged reason that the time limit of the ticket had expired, assented to all the terms and conditions contained in it, as fully as if he had read them and signed the ticket Mmself; it was, therefore, error to permit Mm to testify that he had not signed it.</p> <p>Same—Coupon Tickets—Agency of Issuing Road—Estoppel—Evidence.</p> <p>2. Where defendant railway company had repeatedly accepted coupon tickets, similar to the one held by plaintiff, and the only objection urged by its conductor to the ticket presented by plaintiff having been that its time limit had expired, it was estopped to deny the agency of the company issuing it.</p> <p>Same—Coupon Tickets—Continuous Passage—Meaning of Condition.</p> <p>3. By agreeing to the provision, contained in a coupon ticket which routed plaintiff over a number of connecting railway lines, “Good for one continuous passage,” he consented to the condition that he was not entitled to any stop-over privileges from any one of the lines, but would continue his journey uninterruptedly after beginning it upon any one of the roads.</p> <p>Same—Coupon Tickets—Nature of Contract—Delays.</p> <p>4. A coupon railway ticket which calls for transportation over a number of connecting lines constitutes a separate and distinct contract between the passenger and each of the different carriers over whose line the coupon furnishes passage; therefore, defendant company, whose line was the last link in the chain of transportation, could not be held responsible for delays occasioned by any other line, which prevented plaintiff from presenting his ticket witMn the time limited therein.</p> <p>Same—Coupon Tickets—Time Limit Unreasonable—Burden of Proof.</p> <p>5. Plaintiff, who relied upon a coupon ticket which upon its face had expired when offered for transportation, had the burden of proving that the time limit stated therein was unreasonable and insufficient to enable him to complete his journey.</p> <p>Same—Coupon Tickets—Time Limit—Construction.</p> <p>6. Under a provision in a coupon railway ticket that it would not be accepted for passage unless used to destination before midnight of a certain day, presentation thereof to the last carrier over whose line it called for transportation, before the hour named, was sufficient, though the journey could not be completed until after that hour.</p> <p>Same—Coupon Tickets—Time Limit—Delaj's—Evidence.</p> <p>7. Evidence held to show that but for certain unexplained delays during plaintiff’s journey over a number of connecting railroads, for which defendant company was in nowise responsible, the time limit expressed in a coupon ticket entitling plaintiff to carriage from New York City to Butte was sufficient to enable him to complete his journey.</p> <p>Same—Ejection from Train—Excessive Damages.</p> <p>8. Where the only elements of damage left by the instructions of the court for the jury’s consideration, were plaintiff’s wounded feelings for being ejected from defendant railway company’s train because the time limit stated in his coupon ticket had expired when presented for transportation, and the discomfort suffered from hunger and cold during one night whieh he was compelled to spend at defendant’s depot, a verdict in his favor for $750 was excessive.</p> <p>Appeal—Assignments of Error.—Briefs—Waiver.</p> <p>9. Assignments of error which are not argued in appellant’s brief will be deemed to have been waived.</p>

<p>School Districts—Clerks—Powers—Claims Against District—• New Trial—Premature Notice—Waiver—Hearsay Testimony.</p> <p>New Trial—Premature Notice—Waiver.</p> <p>1. Seld, that where a notice of intention to move for a new trial was served and filed before entry of judgment, the opposing party waived the point that the notice was premature, by stipulating with movant that the latter might have additional time in which to file his bill of exceptions in support of his motion, by thereafter accepting service thereof without objection, and by raising no objection at the argument, other than that there had been delay in calling it up.</p> <p>Sehool Districts—Clerks—-Powers—Claims Against District.</p> <p>2. A clerk of a school district not having any authority under section 869, Revised Codes, prescribing his duties, to receive orders on his district for the payment of.money, and not being a member of the board of trustees (see. 871), the presentation of such a claim to him was nugatory, and his assurances that the same would be paid did not bind the board.</p> <p>Same—Claims Against District—Hearsay Testimony.</p> <p>3. Where a claim was presented to a clerk of a school district, his letter to the claimant, stating that it had been presented to the board for consideration, and that it would be paid, was hearsay, not an official notification, and not binding on the school district; the clerk had never been authorized by the board to make any such statement.</p>

<p>Criminal Law—Forgery—Cross-examination — Nonprejudicial Error—County Attorney—Misconduct.</p> <p>Criminal Law—Forgery — Cross-examination — Improper Questions — Nonprejudicial Error.</p> <p>1. While it was error to permit the county attorney to ask defendant, charged with forgery, whether he had not been in trouble of a similar character before at a certain time and place, it was rendered nonprejudicial by his positive answer in the negative.</p> <p>Same—Nonprejudicial Error—Reversal.</p> <p>2. A judgment of conviction will not be reversed for error in the trial proceedings, unless it has prejudiced, or tended to prejudice, defendant in respect to a substantial right. (Revised Codes, secs. 9415, 9548.)</p> <p>Same—Evidence—Objections—When too Late.</p> <p>3. An objection, made to a question after the witness has answered, comes too late, unless the answer was given before counsel had an opportunity to object.</p> <p>Same—Overruling Objections—When not Error.</p> <p>4. Where none of a series of questions, asked defendant on cross-examination, were answered, error cannot be predicated upon the action of the court in' overruling objections to them.</p> <p>Same—Cross-examination—Scope.</p> <p>5. When accused goes upon the witness-stand in Ms own behalf and denies the commission of the crime with which he stands charged, he may properly be cross-examined, not only as to all facts stated by him on his direct examination, but also as to all others either directly or indirectly connected with them.</p> <p>Same—Evidence—County Attorney'—Misconduct—What Constitutes.</p> <p>6. In order to constitute the mere asking of questions, in a criminal prosecution, such misconduct on the part of the prosecuting attorney as to require reversal of a judgment of conviction, they must have been so far improper that it would amount to an impeachment of his legal learning to say that he did not know that they were manifestly improper and wholly unjustifiable.</p> <p>Same—Evidence—County Attorney—Misconduct—Instructions.</p> <p>7. Where objections to certain questions, asked defendant and his wife by the county attorney, had been sustained, an instruction to the jury requested by the prosecuting attorney himself, not to pay any attention to what they had heard with reference to the questions, and a further one that in arriving at their verdict they should entirely disregard any statement of counsel as to any fact proof of which had not been admitted or ordered stricken, sufficiently guarded the rights of accused.</p>

<p>Probate Proceedings—Public Administrators—Revocation of Letters—Foreign Heirs—Petition—Sufficiency—Evidence— Pleadings—Amendment During Trial—Discretion.</p> <p>Public Administrator—Revocation of Letters—Foreign Heirs—Petition— Sufficiency.</p> <p>1. Held, that where the mother of an intestate who resided in a foreign country, made written request for the appointment of the person named therein, as administrator of her son’s estate, but before its receipt and filing in court, letters of administration had been granted to the public administrator, such request impliedly authorized the person thus nominated to take the necessary steps to secure the removal of the public administrator, and that, therefore, it was not neeessary for the petition of the nominee, asking for the revocation of letters: held by the public administrator, to show on its face that the mother herself had requested revocation.</p> <p>Same—Petition—Sufficiency—Waiver.</p> <p>2. In the absence of an objection in the district court to the sufficiency of the allegations in a petition looking to the revocation of' letters of administration, the pleading will be held sufficient on appeal.</p> <p>Same—Request for Appointment—Evidence—Formal Offer—When Unnecessary.</p> <p>3. Where a written request by decedent’s mother, residing in a foreign country, for the appointment of a certain person as administrator of her son’s estate, was entitled in the court and cause and addressed to the judge of the court—thus virtually constituting a. pleading—and an affidavit as to the identity of the party making-the request executed before an officer authorized to administer oaths outside of the United States, were a part of the record in the ease- and thus before the court, it was unnecessary to formally offer them, in evidence.</p> <p>Same—Pleadings—Amendment During Trial—Discretion.</p> <p>4. The court did not abuse its discretion in allowing petitioner, after the conclusion of the testimony, to file a reply denying that he was a partner of decedent during his lifetime, where during the proceedings he had orally denied such allegation in the answer, and the testimony showed that the relation of partnership did not exist, and where prejudice to defendant was not apparent.</p>

<p> •Contracts—Persons Bound—Construction—Parol Evidence—Inadmissibility. </p> <p>■Contracts—Construction—Parties—Persons Bound.</p> <p>1. At the time the contract in question was executed plaintiff held, and had a lien on, certain property of F., who was also indebted to the corporations mentioned in the contract, and they had begun actions against F. with a view of satisfying any judgments obtained out of the property in plaintiff’s possession. The contract recited that it was made between such corporations and defendant, that such corporations had commenced actions against F. for certain moneys, ete., and that defendant had paid to such corporations and to plaintiff a certain sum, and gave his note for the remainder of the amount due to them and plaintiff from F., and provided that such corporations thereby sold and assigned to defendant all of their claims, together with the contracts, drafts, etc., delivered to them by F. as security for the indebtedness sued on, and agreed to prosecute such actions and all other actions necessary for defendant’s protection the same as if the assignments had not been made, and further agreed to assign the judgments procured to defendant if the prosecutions were successful, or purchase F.’s property then subjected to lien, if sold, and turn it over to defendant. The contract was signed by the corporations and defendant, and under their signature was written, “We hereby consent to the above contract,” followed by plaintiff’s signature. Held, that plaintiff’s only obligation was not to obstruct the parties bound thereby in carrying out the agreement, which was to have defendant assume F.’s indebtedness to the corporations, and transfer to him their rights in prosecuting the actions, so as to realize out of the property on which plaintiff had a lien, sufficient to satisfy the claims of the corporations and discharge the note given plaintiff, and plaintiff was not bound to transfer to defendant its claim against F. or prosecute it for defendant or surrender defendant’s note in case the actions against F. were not successfully prosecuted by the corporations.</p> <p>Same—Parties—Parol Evidence—Inadmissibi lity.</p> <p>2. Where there was nothing in a contract signed by a third party which showed a consideration affecting him or inducing him to become a party to it, or an intent on his part to be bound as surety for or joint promisor with one of the parties efficiently bound, parol evidence may not be resorted to for the purpose of furnishing the basis of an inference that he was or was not bound.</p>

<p> Conversion—Complaint—Sufficiency—Fraudulent Conveyances ■—Personal Property—Immediate Delivery. </p> <p>Conversion—Complaint—Sufficiency.</p> <p>1. The allegation in a complaint in an aetion to recover damages for tbe conversion of property seized and sold by defendant, as sheriff, on attachment, that at the time of the seizure plaintiff’s predecessors were the owners and in possession of it and continued to be theirs until sale thereof by defendant, was sufficient.</p> <p>-Same—Personal Property-—Fraudulent Conveyances—Immediate Delivery— What may Constitute.</p> <p>2. Held, that delivery of the key to a warehouse, standing on leased ground, which, together with its contents, consisting of heavy machinery, lumber, etc., had been sold to plaintiff in an action in conversion, constituted a sufficient delivery of the property sold, so as to prevent the presumption that the sale was fraudulent, the vendor not having exercised any act of ownership or control over any of the property thereafter.</p> <p>■Sales—Personal Property—Delivery—Attaching Creditors.</p> <p>3. A bona fide sale of personal property, though not accompanied by an immediate delivery, was not void as to an' attaching creditor of the vendor, where the vendee took and retained actual possession of it before the institution of the attachment suit.</p>

<p><Contract of Employment—Nonsuit—When Order Premature— Evidence.</p> <p>Nonsuit—When Order Premature.</p> <p>1. While the district court may, at any time it becomes apparent from plaintiff’s testimony that he cannot recover in any event, order a nonsuit, it was error to so direct in an action on a contract of employment, before plaintiff had rested his ease, and where he had positively testified that he had been employed by defendant and had performed his part of the agreement, thus establishing his prima facie right to recover.</p> <p>Same—What Deemed Proved.</p> <p>2. Upon a motion for a nonsuit those facts will be deemed proved which the evidence tends to prove.</p>

<p>Mortgages—Action to Redeem—Venue—Jurisdiction—Waiver—1 Writ of Prohibition.</p> <p>Mortgages—Redemption—Nature of Action.</p> <p>1. An action, tbe complaint in wbich alleged that plaintiff had executed a mortgage upon his real property to secure a loan; that defendant mortgagee had advanced only a small portion of said loan but fraudulently claimed the whole amount to be due; that plaintiff was ready and willing to pay the sum actually advanced, with interest; and that the mortgage constituted a cloud upon his title; and then prayed that defendant be required to accept the amount actually due in full payment of the mortgage; that plaintiff’s title be quieted, etc., was to redeem from the mortgage, and hence one in personam,.</p> <p>Same—Redemption—Change of Venue—Waiver—Jurisdiction.</p> <p>2. Held, on application for writ of prohibition, that while an action to redeem from a mortgage on real property should have been brought in the county in which the mortgagee resided (Revised Codes, sec. 6504), yet where it was instituted iu the county in whieh the mortgagor had his residence, but defendant failed to ask for a change of venue to his home county, as he could have done under section 6505, the court in which the suit was commenced had jurisdiction to try it.</p>

In the Matter of tbe Estate of Horace A. Noyes, deceased. J. S. Noyes, as plaintiff, appeared and contested a writing offered by Sarah. Gerard, defendant, for probate as decedent’s last will. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Under the evidence in this case all of the statutory requirements were complied with in the execution of the instrument in question.

In the Matter of the estate of Horace A. Noyes, deceased. Contest by plaintiff, John S. Noyes, of a writing filed by defendant, Sarah Gerard, with a petition to probate it as the holographic will of deceased. From a judgment for plaintiff defendant appeals. Statement oe the Case, by the Justice Delivering the Opinion.

<p>Default Judgment — Setting Aside — Discretion — Excusable Neglect.</p> <p>1. Where, from the showing made on a motion to set aside a default judgment, it appeared that after argument on a motion to quash service of process the district judge had suggested to defendant’s ■counsel personally that the matter be submitted to his successor in office, to which counsel consented; that the judge also stated from the bench (whether in counsel’s presence or not did not appear), that the motion to quash would be decided shortly; and that unknown to ■counsel the motion had been overruled and default entered, the •court did not abuse its discretion in opening' the default, especially in view of a rule of court which, while not giving counsel an absolute right to receive notice of any action of the court, might well have led him to believe that he would be notified of the overruling of his motion.</p>

<p>Appeal—New Trial—Dismissal—Power of Supreme Court— Nonsuit—Remand to District Court—Disposition of Cause— Mandamus—Discretion.</p> <p>Supreme Court—New Trial—Statutory Provisions.</p> <p>1. - The provision of section 6253, Eevised Codes, that the supreme court, in granting a new trial, must in its decision “pass upon and determine all the questions of law involved in the case, presented upon such appeal, and necessary to the final determination of the case,” is not binding upon that court.</p> <p>Appeal—Nonsuit—How Order Eeviewable.</p> <p>2. The question presented on a motion for nonsuit is one of law, and an adverse ruling thereon may be reviewed on appeal from the judgment as well as on appeal from an order denying a new trial.</p> <p>Nonsuit—Dismissal by Supreme Court—-When.</p> <p>3. Where plaintiff has had one fair opportunity to make out his cause of action, but failed to introduce evidence of a fact material to recovery, and his case is not supplemented by defendant, so that non-suit should have been granted, the supreme court on appeal will dismiss the cause with a view to putting an end to litigation.</p> <p>Same—Eemand to District Court—New Trial—Dismissal—Discretion.</p> <p>4. Where the supreme court had reversed a judgment in favor of plaintiff because he had failed to prove a fact essential to recovery, and remanded the cause without specific direction either to retry or dismiss it, the district court was vested with a legal discretion to take such action, not inconsistent with the order made, as seemed wise and proper under the circumstances.</p> <p>Same—Mandamus—Discretion.</p> <p>5. Since mandamus will not issue unless relator shows a clear, legal right to have a particular act or duty performed by defendant, and the right to exercise discretion is inconsistent with absolute duty, the district court may not be coerced by writ of mandate to dismiss a cause under the circumstances set forth in paragraph 4 above.</p>

<p>Personal Injuries—Master and Servant—Mines and Mining— Explosives — Negligence — Fellow-servants — Pleading—Evidence—Hearsay—Assumption of Risk—Instructions—Promulgation and Enforcement of Rules.</p> <p>Issues—Proof—Complaint—Amendment.</p> <p>1. Where evidence, though not strictly within the issues made by the pleadings, is admitted without objection, the complaint will be treated, on appeal, as if it had been amended so as to make its admission proper.</p> <p>Personal Injuries—Negligence of Fellow-servants—Pleading.</p> <p>2. The defense that a personal injury was brought about by the negligence of plaintiff’s fellow-servants must be pleaded.</p> <p>Same—Mines—Explosions—Evidence—Hearsay.</p> <p>3. Where a witness in an action to recover damages for the death of a workman in a mine, alleged to have been caused by defendant company’s negligence in storing a large quantity of explosives in the workings, had testified that he had seen five or six boxes of powder in the magazine a few minutes before the explosion_ and that two boxes were there all that day, that he had himself hauled four boxes there, but did not know who had taken them off the car and put them in the magazine, his further statement that “it must have been the loaders; they told me there were four boxes,” cannot be said to have rendered his testimony that he hauled four boxes to the magazine inadmissible as hearsay as depending for its truth or falsity upon the veracity of the loaders, but would seem to have been given as lending emphasis to his statement rather than indicating the source of his knowledge.</p> <p>Same—Mines—Duty of Master—Safe Place to Work.</p> <p>4. A mining company must use reasonable care to provide its employees with a reasonably safe place in which to work, due regard being had to the nature and place of the employment and the agencies used in its operations.</p> <p>Same—Mines—Safe Place to Work—Jury Question.</p> <p>5. Held, that the question whether defendant mining company, under all the circumstances disclosed by the evidence, exercised reasonable care to provide decedent with a safe place in which to work, was one for the jury to decide.</p> <p>Same—Mines—-Explosions—Proximate Cause—Liability of Master.</p> <p>6. If defendant company was guilty of negligence in storing dynamite in dangerous quantities in the workings of its mine, and knew or, by the exercise of ordinary care, ought to have known that caps (a high explosive) were being kept with it, and but for such negligence the accident would not have occurred, it could not escape liability on the ground that there was not any evidence as to the immediate cause of the explosion, the deceased not having in any manner contributed to causing it; therefore an instruction that verdict should be for defendant in case the jury should be unable to find such cause was properly refused.</p> <p>Same—Eellow-servants—Liability of Master.</p> <p>7. Under the conditions set forth in paragraph 6 above, defendant would be liable even though the negligence of a fellow-servant of deceased had brought about the explosion, or if the cause thereof could not be attributed to the negligence of anyone.</p> <p>Same—Assumption and Appreciation of Bisk—Improper Instruction.</p> <p>8. An instruction on the assumption of risk, whieh ignored the element of appreciation of the risk by decedent, a laborer unaccustomed to handling explosives and whose duties did not call him near a magazine in a mine, the powder stored in which exploded and killed him while working some forty feet away, was properly refused.</p> <p>Same—Master and Servant—Buies—Promulgation and Enforcement.</p> <p>9. Defendant company’s duty toward its servants was not fully discharged by the mere promulgation of a rule against the keeping of dynamite and caps together; it was also under obligation to see that the rule was faithfully obeyed.</p> <p>Same—Master and Servant—Buies—Enforcement—Jury Question.</p> <p>10. The question whether defendant mining company in the exercise of ordinary care ought to have known that its rule against the keeping of powder and caps together was not being observed, was one for the jury, where the evidence showed that for a month or more prior to an explosion by which plaintiff's intestate was killed there had been a flagrant disregard of such rule.</p>

In the Matter of the estate of Horace A. Noyes, deceased. .J. S. Noyes, as plaintiff, contested a writing offered by Sarah Gerard, defendant, for probate as the last will of the deceased. From a judgment denying probate, defendant appeals. Statement of the Case, by the Justice Delivering the Opinion.

<p>Criminal Law—Burglary—Information—Sufficiency,—Waiver— Evidence—Admissibility—Cross-examination.</p> <p>Burglary.—Information—Sufficiency.</p> <p>1. ' An information setting forth that defendant “did willfully, unlawfully, feloniously, intentionally and burglariously” enter a certain building “with intent in him * * * to commit lareeny,”' was not open to the objection that it failed to allege that the building was one which he1 had no lawful right to enter. The pleading sufficiently negatived the idea that he had such right.</p> <p>Same—Information—Defects—Waiver.</p> <p>2. Defendant’s failure to raise, by special demurrer, the question, that an information charged two distinct offenses constituted a waiver of such objection.</p> <p>Same—Escape—Evidence—Admissibility.</p> <p>3. Testimony that defendant, charged with burglary, attempted to escape from the officers after his arrest, was properly admitted.</p> <p>Same—Evidence—Objection—When too Late.</p> <p>4. After a question had been answered, repeated and again answered, an objection to it was too late.</p> <p>Same—Evidence—Answers.—Eorm of—Harmless Error.</p> <p>5. Where a witness’ answers, taken as a whole, were explicit and fully met the questions propounded to him by defendant’s counsel on cross-examination, the court’s action in permitting him to answer in his own way rather than by “yes” and “no,” did not constitute reversible error, prejudice to accused not being apparent.</p> <p>Same—Defendant’s Cross-examination—Latitude.</p> <p>6. In a criminal prosecution, where defendant goes upon the witness-stand in his own behalf, and denies the commission of the offense, a very wide latitude is allowed in his cross-examination.</p> <p>Same—Evidence—Cross-examination—Scope.</p> <p>7. The cross-examination of a witness may extend not only to all matters stated in his original examination, but to all others, either direetly or indirectly connected with them,, which tend to enlighten the jury upon the question at issue.</p> <p>Same—Cross-examination—Nonprejudicial Error.</p> <p>8. Even though the court permitted defendant’s witnesses to. be asked; questions on cross-examination which might more properly have been omitted, yet.they having been directed to- the movements of one jointly informed against with defendant, who had been granted a separate trial, and the evidence thus elicited not having tended in any wise to discredit defendant, he was not injured thereby, and will not be heard to insist that its admission was prejudicial error.</p>

<p> Condemnation Proceedings—Appeal to District Court—Award by Jury—Judgment—Interest. </p> <p>1. Prom the award made by commissioners in condemnation proceed1-ings, an appeal was taken to the district court. The jury there returned a verdict in favor of defendants for an amount in excess of the award by the commissioners. No instruction had been given them as to the allowance of interest. The court entered judgment, adding: interest at eight per cent per annum from the date of the order admitting plaintiff company into possession of the property. Heldr that the matter of interest was one regulated by statute (Revised Codes, sec. 7342), with which the jury could not properly have anything to do, there not having been any disputed question of fact relating to it, and that therefore the court in its judgment correctly added interest.</p>

Action by the Billings Sugar Company and others against J. W. Fish, county treasurer, and others. From a judgment for defendants, and from an order denying a new trial, plaintiffs appeal. In addition to the authorities noted by the court in its opinion upon the question whether the Act in question is in conflict with, and violative of, the state Constitution, counsel for appellants cite the following: In re Byers, 72 N. Y. 1, 28 Am.

<p>Mines and Mining—Adverse Suit—Representation Work—Forfeiture—Who may not' Complain—Incomplete Relocation— Resumption of Work—Effect.</p> <p>Mining Claims—Incomplete Relocation—Resumption of Work—Effect.</p> <p>1. The location of a quartz lode mining claim consists of a number of independent acts, all of which must be performed before a legal location can be said to exist, and the last act that may be done does not relate back; hence, where defendant in an adverse suit had resumed work in good faith (U. S. Rev. Stats., see. 2324), upon the claim in controversy, before plaintiffs by their second amended declaratory statement (the original and first amended statements having been insufficient) completed a legal location, the finding of the court that defendant had forfeited his claim by nonperformance of the annual representation work was erroneous.</p> <p>'Same—Forfeitures—How Viewed by Law.</p> <p>2. The law does not favor forfeitures, therefore every reasonable doubt will be resolved in favor of the validity of a mining claim as against the assertion of a forfeiture.</p> <p>Same—Representation Work—Nonperformance—Who may not Complain.</p> <p>3. Only the government or a subsequent locator of a mining claim can complain of a failure on the part of a prior claimant to do the annual representation work, and the latter only in the event he himself has taken all the requisite steps to complete a valid location; hence where defendant in an adverse suit had in good faith resumed work, before plaintiffs had completed a legal location, his previous delinquency, in omitting to do the annual work for any one year, was of no concern to them.</p>

<p> Mandamus—Cities and Towns—Police Force—Civil Service-Statutes—Violation—Reduction of Force—When Permissible-—Good Faith—Findings—Request—When tobe Made—When Findings Unnecessary. </p> <p>Trial—Findings—Bequest—When to be Made.</p> <p>1. The district court cannot be put in error for failing to make special findings on a request made nearly two weeks after the cause hacK been taken under advisement. In order to render it the imperative duty of the court to make such findings, request for same must be made at the time the cause is submitted for decision.</p> <p>Same—Findings—When Unnecessary.</p> <p>2. Where the facts in a cause tried to the court were not disputed, but the evidence introduced practically amounted to an agreed statement, formal findings were unnecessary.</p> <p>Mandamus—When Writ will Issue.</p> <p>3. The writ of mandate does not lie unless it appears that relator has a clear, legal right in himself to have a particular act or duty performed by respondent.</p> <p>Cities and Towns—Police Force—“Policeman”—“Patrolman”—Definition.</p> <p>4. Meld, that the terms “policeman” and “patrolman” are synonymous, and mean one who patrols a certain beat for the protection of property, for the arrest of offenders, and sees that the peace is kept.</p> <p>Same—Powers.</p> <p>5. Municipalities have only such powers as are expressly conferred upon them by the statute creating them, and such as are necessarily implied or are indispensable for the proper accomplishment of the purpose of their organization, and any reasonable doubt as to the existence of any power must be resolved against the corporation, and the power denied.</p> <p>Same—Police Force—Civil Service Statutes—Removal of Policemen—When Illegal.</p> <p>6. While, in the absence of restrictions contained in a civil service statute, a city having the power to create an office, thus protected, has also the implied power to abolish it, as when its finances require it; yet if there is an eligible list from which appointments must be made, such as is provided for by the Police Commission Bill (Laws 1907, Chap. 136; Revised Codes, secs. 3£D4^3317), those members of the force relieved from duty must be relegated to that list, with the right to be returned to active service when the exigencies require it. Therefore, an ordinance the purpose of which was absolutely and finally to remove a police officer from the force after appointment under Chapter 136, supra, without putting him on the eligible list, was void.</p> <p>Same—Reduction of Force—When Permissible—Good Faith.</p> <p>7. Where a city government by ordinance attempts to reduce the police force, the members of which have been appointed under a civil service police statute, by the terms of whieh they are entitled to hold during good behavior or until they become incapacitated for further performance of their duties, for the alleged reason that the city finances- require such action, it must proceed in good faith; otherwise such an ordinance will be held void.</p> <p>Same—Reduction of Force—Laek of Good Faith—Invalidity of Ordinance.</p> <p>8. The police force of a city, appointed under the provisions of the Police Commission Bill (Chapter 136, Laws 1907), was by ordinance reduced in number, for alleged economical reasons. Subsequently others were appointed as special policemen to fill the places of those discharged, at an expense substantially equal to that which would have been incurred if those discharged had been retained. Meld, on mandamus, that the ordinance was void for lack of good- faith in enacting it. Its effect was by indirection to nullify the provisions of the statute and defeat the purpose for which it was enacted.</p> <p>(Mb. Justice Holloway dissenting.)</p>

<p>Cities and Towns—Police Department—Civil Service Statutes— Police Captain—Member-.of Force—Mandamus—Laches.</p> <p>Cities and Towns—Police Department—Captain—Civil Service Statute.</p> <p>1. Meld, that a police captain is a “policeman,” and that upon appointment, after having served the probationary term of six months, under the metropolitan police law (Laws of 1907, Chap. 136; Revised Codes, sees. 3304-3317), which Act makes no distinction between officers or members of different rank relative to their duties as policemen, and requires all to be selected and appointed in the same manner,, he is seeure from removal from office except as provided in the Act.</p> <p>Mandamus—Laches—When Writ may Issue.</p> <p>2. 'While the writ of mandate may be denied where there has been a long delay in making the application, in the absence of any excuse' or explanation, the propriety of issuing it in any particular case must be determined upon the facts of that ease; and if the delay has not resulted in prejudice to the rights of the adverse party, and the relief sought does not depend upon doubtful and disputed questions of' fact, the writ may go.</p> <p>Same.</p> <p>3. Relator, and certain other members of the defendant city’s police force, after appointment under the provisions of the Police Commission Bill (Laws 1907, Chap. 136), were removed from office contrary to-the provisions of said Aet. One of the latter instituted mandamus proceedings to compel his reinstatement, relator and the other ousted members agreeing to assist him in the payment of the necessary expenses incident to the prosecution of the action, upon the assumption-that its determination would adjudicate the rights of all. When it became apparent that this result would not follow,, the relator, about: ten months after his removal, commenced separate proceedings in mandamus. Held, under the rule stated in paragraph 2 above, that the delay in instituting the proceedings could not prejudice the rights of defendant and that the district court properly assumed jurisdiction.</p> <p>(Me. Justice Holloway dissenting.)</p>

Appeals from District Court, Lewis and Clark County; Frank Henry, Judge of the Sixth Judicial District, presiding. Applications for mandamus by the state, on the relation of William F. Bossier and George Farnam, against Frank J. Edwards, as mayor of the city of Helena, Montana. From judgments awarding the writ and denying defendant’s motion for •a new trial, defendant appeals. Causes submitted on briefs and oral argument in causes' numbered 2752 and 2799, ante, pp. 287, 313.

<p> Default Judgments—Setting Aside—Affidavit of Merits—Overruling of Demurrer—Notice—When Unnecessary. </p> <p>Default Judgment—Vacation—Overruling of Demurrer—Notice—When Unnecessary.</p> <p>1. Where the minutes of the court showed that counsel, who asked the vacation of a default judgment entered upon his failure to answer within a given time after the overruling of a demurrer to the complaint, was present when the demurrer was overruled, notice to him of the decision of the court was not required. (Revised Codes, see. 6594.)</p> <p>;Same—Affidavit of Merits—Answer—When Insufficient.</p> <p>2. Assuming that an answer may supply the place of an affidavit of merits in aid of a motion to vacate a default judgment, such a pleading which was in effect a general denial and did not set forth the facts upon which defendant relied to defeat plaintiff’s claim, so as to enable tbe court to determine whether he had a prima facie defense-upon the merits and that the granting of the relief would be in, furtherance of justice (Revised Codes, see. 6589), was insufficient to-warrant the granting of the motion.</p> <p>Same—Excusable Neglect—Insufficient Showing.</p> <p>3. The court erred in ordering the vacation of a default judgment,, asked for on the ground of excusable neglect, upon affidavits showing that defendant’s counsel had no recollection of its demurrer to the complaint having been submitted to the court without argument, as, shown by the minutes, or of a ruling thereon, or of the- allowance of a specified time for answer; that the first intimation counsel, had of the default was the day after its entry, and that in every case in. which they were interested counsel took certain precautions to prevent a default. The affidavits were insufficient.</p>

Robert Vanella was convicted of murder in the second degree, and from the judgment and an order denying his motion for a new trial, he appeals. The evidence is insufficient to support the verdict.

Appeal from District Court, Silver Bow County; Michael Donlan, Judge. Action by C. M. Parr against John Webb. From an order •granting defendant’s motion to set aside a default judgment, plaintiff appeals.

<p>Divorce—Nature of Action—Public Policy—Conviction of Felony—Limitations—Default of Defendant—Denial of Belief— When Proper.</p> <p>Divorce—Nature of Action—Public Policy.</p> <p>1. An action for divorce is not a mere controversy between private .parties, but one in which the state is interested as an adverse party, so far as to oppose the granting of a decree unless a case is made which comes within the rules prescribed by the statute.</p> <p>Sama—Conviction for Felony—Default of Defendant—Statutory Limitation —Denial of Relief—When Proper.</p> <p>2. Where the complaint in an action for divoree, asked for on the ground that defendant had been convicted of a felony, showed that two years had elapsed since conviction, and, in the absence of any excuse for the delay in bringing suit, the court, notwithstanding defendant’s default, properly denied the divoree sua sponte, under section 3670, Revised Codes, which provides that when the action is not commenced within two years after conviction, relief must be denied.</p>

. M. Clements, Judge. Mandamus by the state, on the relation of Henry Hay, Jr.r against J. J. Hindson and others, county commissioners of Lewis and Clark county, to compel the allowance and payment of a claim of relator. From a judgment awarding a peremptory-writ, defendants appeal. Cause submitted oh briefs of counsel.

<p> District Courts—Jurisdiction—Nonresidents—General Appear - cunee—What Constitutes—Prohibition. </p> <p>General Appearance—What Constitutes.</p> <p>1. Where defendants, after a denial of their motion to dismiss the action, asked for and were granted time in which to answer to the merits, their request for time constituted a general appearance, the effect and seope of which could not be limited by a statement of counsel that he desired the record to show that his appearance was special.</p> <p>'Courts—Jurisdiction—Extent.</p> <p>2. The jurisdiction of the courts of a state is coextensive with its sovereignty, which is limited only by the territory of the state, and attaches to all property and persons within the limits thereof.</p> <p>District Courts—Jurisdiction—Nonresidents—Prohibition.</p> <p>3. All the. parties to an action on a promissory note, executed and payable in a sister state, were nonresidents of Montana. Money belonging to one of defendants, in the hands of a third party in this state, having been attached, and a motion to release same from levy as well as one to dismiss the action having been denied, such defendant made application for writ of prohibition, on the ground that the district court had not jurisdiction to try the cause. Beld, that that court was clothed with jurisdiction over the subject matter of the action, notwithstanding both plaintiff and defendants were residents of, and the note was payable in, another state; and that, having acquired jurisdiction over the persons of defendants by their voluntary general appearance, as set forth in paragraph 1 above, it had power to proceed and try the cause.</p>

<p> 'Claim and Delivery—Pleadings—General Denial—Verdict—Insufficiency—Appeal. </p> <p>«Claim and Delivery—Pleadings—General Denial.</p> <p>1. Where plaintiff in a claim and delivery action relies on general allegations of ownership and right to possession of the property in question, a general denial puts in issue both the right of property and the right of possession, as well as all other allegations of the complaint.</p> <p>¡Same—Complaint—Essentials.</p> <p>2. In order that the complaint in claim and delivery state a cause of action, it must not only allege ownership or right of possession in plaintiff, but also that defendant wrongfully seized and detained the property in controversy.</p> <p>¡Same—Verdict—Insufficiency.</p> <p>3. The verdict in an action in claim and delivery must pass upon and be responsive to all the issues presented by the pleadings; hence where the jury merely found that, at the time the action was commenced •and when the trial was had, plaintiffs were the owners and entitled ¡to the possession of the property in dispute, fixing its value, but failed to find upon the issue whether defendant wrongfully took and detained it from plaintiffs, the verdict was insufficient.</p> <p>¡Same—Insufficient Verdict—Review.</p> <p>4. Failure of the verdict to find upon all the issues raised by the pleadings in a claim and delivery action is not a formal defect in it, but one of substance; the result is a mistrial, and the question •of the insufficiency of the verdict may be raised for the first time on ■appeal.</p>

John B. McClernan, Judge. Action by W. E. McAllister against Alexander McDonald and! William Pelette, copartners as McDonald & Pelette. Plaintiff' had judgment, from which and an order denying a new trial defendants appeal.

L. Calla-way; Judge. Action by William Galvin against John O’Gorman. From a judgment for plaintiff, and an order denying his motion for a new trial, defendant appeals. Under the evidence there is no mutual, open and current account in this case. The evidence shows no reciprocal demands between the parties, which is necessary in order for it to have been mutual, open and current. (Fraylor v. Sonora Min. Co., 17 Cal. 594; Flynn v. Seale, 2 Cal.

Action by R. N. Rand against the Butte Electric Railway Company, and others. From a judgment for plaintiff and an ■order denying defendants’ motion for a new trial, they appeal. A person on whose premises a public officer is appointed for duty is not liable for the damage resulting from the acts of such public police officer acting within the scope of his duty, '.even in cases where the salary is paid by the person who owns the property.

M. Bourquin, Judge. Action by Silver Bow County against William E. Davies and the American Bonding Company of Baltimore. Judgment for plaintiff, and defendants appeal. The act of the deputy clerk was not the proximate cause of the loss to which the county may have been subjected by the payment of these certificates.

■Appeal from, District Court, Silver Bow County; John B. Mc-Clérnan, Judge. Action by Swend Carlson against the Stone-Ordean-Wells Company. From a judgment for plaintiff, and from an order denying a new trial, .defendant appeals.

<p>•Cities and Towns—Changing Street Grades—Damage to Property—Ordinances—Evidence—Admissibility—Appeal — What not Beviewable.</p> <p>Appeal—Questions not Beviewable.</p> <p>1. Appellant will not be heard to call in question the correctness of a ruling of the district court on the admissibility of certain evidence, upon a ground different from that urged in the trial court.</p> <p>Cities and Towns—Changing Street Grades—Evidence—Admissibility.</p> <p>2. Where defendant city, in an action for damages caused to plaintiff’s house and lot by raising the street grade in front thereof after he had erected the building, failed to prove that the house was built subsequent to the enactment of certain ordinances establishing the street grades, it was not in a position to complain, on appeal, of a ruling of the trial court refusing to admit such ordinances in evidence; if the house was erected prior to their enactment, the ordinances were immaterial, whereas, if proven to have been constructed subsequent to their passage, they might properly have been offered in evidence.</p>

<p> Appeal from District Court, Silver Bow County; John B. Mc-Clernan, Judge. </p> <p>Action by William John Stone against tbe City of Butte. Judgment for plaintiff. Defendant appeals.</p>

<p> Appeal—Errors not Beviewable. </p> <p>1. A point withdrawn from the consideration of the trial court by counsel may not be relied upon on appeal.</p>

<p> Appeal from the District Court, Silver Bow County; Jeremiah J. Lynch, Judge. </p> <p>Action by Wilfred H. Flaherty, by Laura S. Flaherty, his guardian ad litem, against the Butte Electric Railway Company and another. From a judgment for plaintiff and from an order denying a new trial, defendants appeal.</p> <p>The provision of section 6485, Bevised Codes, is exclusive, and authorizes the father to maintain a suit in his own name for damages suffered by the child through the wrongful act or neglect of another. (See Gardner v. Kellogg, 23 Minn. 463; Buechner v. Columbia Shoe Go., 60 Minn. 477, 62 N. W. 817; Lathrop v. Schutte, 61 Minn. 196, 63 N. W. 493.)</p> <p>The doctrine of imputed negligence has been applied by this court in the case of Whittaker v. Helena, 14 Mont. 124, 43 Am. St. Bep. 621, 35 Pac. 904, where the negligence of a driver was imputed to a friend driving with him, so as to bar a recovery. It is the duty of parents to shield young children from danger, and if, by his own carelessness and neglect of the duty of protection, the parent contributes to an injury to the child, he is in pari delicto with the negligent defendant, and there can be no recovery for such injury. (Johnson v. Heading By., 160 Pa. 647, 40 Am. St. Bep. 752, 28 Atl. 1001; Grant v. Fitch-burg, 160 Mass. 16, 39 Am. St. Bep. 449, 35 N. E. 84; Western Union Tel. Co. v. Hoffman, 80 Tex. 420, 26 Am. St. Bep. 759, 15 S. W. 1048; Casey v. Smith, 152 Mass. 294, 23 Am. St. Bep. 842, 25 N. E. 734, 9 L. B. A. 259; Callaghan v. Bean, 9 Allen (Mass.), 401; Dudley v. Westcott, 18 N. Y. Supp. 130; Cornovski v. St. Louis Tr. Co., 207 Mo. 263, 106 S. W. 51; Hartfield v. Boper, 21 "Wend. 615, 34 Am. Dec. 273; Weil v. Dry Dock Co., 119 N. Y. 147, 23 N. E. 487; Kyne v. Wilmington etc. By. Co., 8 I-Ioust. (Del.) 185, 14 Atl. 992; McMahon v. N. C. By. Co., 39 Md. 438; Baltimore C. P. By. Co. v. McDonnell, 43 Md. 534; Smith v. Atchison etc. By. Co., 25 Kan. 738; s. e., 28 Kan. 541; Daly V. Hinz, 113 Cal. 366, 45 Pac. 693; Fitzgerald v. 8. ivi. etc. Co., 29 Minn. 336, 43 Am. Bep. 212, 13 N. W. 168; Toner v. 8. & C. C. S. By. Co., 109 Ky. 41, 58 S. W. 439; Davis v. Seaboard By. Co., 136 N. C. 115, 48 S. E. 591; Thomas v. C. M. & St. P. Co., 114 Iowa, 169, 86 N. W. 259; Leslie v. Lewiston, 62 Me. 468; Brown v. European etc. By. Co., 58 Me. 384.) The reason assigned for the rule in most of the eases is, that the child stands in such a relation of privity to the negligent parent, guardian or custodian, as exists in law between a master and servant, and principal and agent, and that the maxim, “Qui facit per alium facit per se,” is directly applicable.</p> <p>It appears from the complaint that the act of negligence upon which the plaintiff relies for his recovery, and without which, according to the allegation, the injury would not have been inflicted, was the act of one only of the defendants, to-wit, Le Sage. Since, however, the plaintiff has generally characterized his cause of action by alleging a general and concurrent negligence in which both of the defendants joined, he, by later on showing that the injury resulted, if at all, from the act of only one of the defendants, has pleaded himself out of court.</p> <p>By alleging a joint and concurrent negligence on the part of the two defendants, the plaintiff thereby elected to assume the burden of showing an active and concurrent negligence actually participated in by both defendants; and a. failure to prove such combined action resulting in the injury complained of amounts to a fatal failure of proof and a bar to plaintiff’s recovery. (Eorsell v. Pittsburgh & Mont. Copper Co., 38 Mont. 403, 100 Pac. 218.)</p> <p>Where a plaintiff goes out of his way to allege a specific ground of negligence upon which he bases his recovery, he is absolutely bound to sustain that ground, or he must fail of his recovery. (Pierce v. Great Falls etc. By. Co., 22 Mont. 448, 56 Pac. 867; Hoshins v. Northern Pacific By. Co. (Mont.), 102 Pac. 988.)</p> <p>Where an infant suddenly runs upon a railway track in front of a moving ear, which is under reasonable control and is stopped within a very short distance, the defendant company cannot be held liable for injury to the ohild. The fact of injury is not enough. Negligence of the company must be shown. (See Boiler v. -Sutter St. By. Go., 66 Cal. 230, 5 Pae. 108; Boland v. Missouri B. Co., 36 Mo. 484; Miller v. St. Charles St. By. Co., 114 La. 409, 38 South. ,401; Adams y. Nassau El. Co., 58 N. Y. Supp. 543; Meyer v. Midland Pac. By. Co., 2 Neb. 319; Little Bock etc. y. Cullen, 54 Ark. 431, 16 S. W. 169; Galveston etc. Co. v. Chambers, 73 Tex. 296, 11 S. W. 279; Chicago etc. Co. v. Becker, 76 111. 25; Barkley v. Missouri Pac. By. Co., 96 Mo. 367, 9 S. W. 793; Culberson v. Crescent City By. Co., 48 La. Ann. 1376, 20 South. 902; Mirschman v. Dry Dock etc. Co., 61 N. Y. Supp. 304; Fletcher v. Scranton Traction Co., 185 Pa. 147, 39 Atl. 837.)</p> <p>We regard the allegations in the complaint, that “had Le Sage shut off the electric current, etc., the injuries would not have been inflicted, ’ ’ as mere negative allegations; they are hypothetical statements, amounting to negations, stated after the positive elements of a cause of action had been fully set forth. It cannot be denied that we had fully stated a cause of action up to the words, “that had Le Sage shut off, etc.” As we regard the negative allegations referred to, and upon which opposing counsel so much rely, they amount merely to a statement that Le Sage had the means at hand to stop the ear had he made use of them, his inattention and carelessness keeping him from using them.</p> <p>The circumstances all show that this is not a ease coming within the rule contended for by opposing counsel, as to a child suddenly coming upon a track, in front of a rapidly moving car, but is a ease of gross negligence on the part of the defendant Le Sage, who says that he was following a rule of the company in being thus grossly negligent. (See Thompson on Negligence, secs. 1424-1428; Shearman & Redfield on Negligence, 5th ed., secs. 485b and 485c, and note; Nugent v. Metropolitan By. Go., 17 App. Div. 582, 45 N. Y. Supp. .596; Goldstein v. Dry Dock etc. •Co., 35 Mise. Rep. 200, 71 N. Y. Supp. 477; Ehrman v. Brooklyn By. Co., 14 N. Y. Supp. 336.) The case of Soiurba v. Bailway Co., 87 App. Div. 614, 84 N. Y. Supp. 85, is different as to other facts, from the case at bar, but it shows the importance of the element principally characterizing that case, and absent in the case at bar, to-wit, the stress laid by the courts upon the attention to business of the driver or motorman.</p> <p>The rule as to contributory negligence of the parent or guardian being imputed to the child does- not apply in cases of gross negligence on the part of defendant. (Thompson on Negligence, sec. 299, and supplement.) It is not negligence per se to permit a child to escape or go unattended upon the street. (Id., sec, 324.) The negligence, if any, of a parent or guardian, under the weight of authority, will not be imputed to the child, where the child is of tender years, as in this case. (4 Current Law, p. 778; Bishop’s Noncontraet Law, sec. 582; Thompson on Negligence, secs. 289-311.) An examination of the cases will show that the doctrine of Hartjield v. Roper has been rejected gradually in most'states. (City of Evansville v. Senhenn, 151 Ind. 42, 68 Am. St. Rep. 218, 47 N. E. 634, 51 N. E. 88, 41 L. R. A. 728; Heldmaier v. Taman, 188 111. 283, 58 N. E. 960; Chicago •etc. v. Tuohy, 196 111. 410, 63 N. E. 997, 58 L. R. A. 270; Matt-son v. Minnesota By. Co., 95 Minn. 477, 111 Am. St. Rep. 483, 104 N. W. 443, 70 L. R. A. 503, 5 Am. & Eng. Ann. Cas. 498, note; Neff v. Cameron, 18 L. R. A., n. s., 320, note; Atchison T. ><& 8. Co. v. Calhoun, 18 Okl. 75, 89 Pae. 207, 11 Am. & Eng. Ann. Cas. 681; Davis v. Seaboard Air Line Co., 136 N. C. 115, 48 S. E. 591, 1 Am. & Eng. Ann. Cas. 214; Chicago etc. v. Wil•cox, 138 111. 370, 27 N. E. 899, 21 L. R. A. 76.) A child of such age as the plaintiff could not even form a concept. The maxim, J‘Qui facit per aUum facit per se,” could only have application as between reasoning beings. The relation of principal and agent, as such, does not exist between parent and child. (Shear-man & Redfield on Negligence, 5th ed., sec. 144.)</p> <p>Upon the question as to pleading and proving damages as to injuries to a child of such tender years as plaintiff, we respectfully refer to 13 Cyc. 147, note 45; Schmitz v. St. Louis & I. M. By. Co., 119 Mo. 256, 24 S. W. 472, 23 L. R. A. 250; Watson on Personal Injuries, 532, 538, 539, 638, 639, 619, 620; Wellmeyer v. St. Louis Trans. Co., 198 Mo. 527, 95 S. W. 925; McDermott v. Severe, 202 U. S. 600, 26 Sup. Ct. 709, 50 L. ed. 1162. Mental suffering arising from disfigurement of person, and the consciousness and contemplation of the same, are proper elements of damages, and the same need not be pleaded distinctly and specially if the nature of the disfigurement be shown. (Watson on Personal Injuries, p. 539, and cases cited.)</p>

Appeal from District Court, Jefferson County; J. B, Poindexter, Judge. Action by Christopher Voelker against the Golden Curry Consolidated Mining Company and another. From an order setting aside a default judgment, defendants appeal.

<p> Logs and Logging—Liens—Foreclosure—Waiver of Lien—Action on Contract—Judgments—Variance—Actions—Form. </p> <p>Actions—Form Immaterial.</p> <p>1. Under the Codes, it does not matter in what form an action is brought or that the complaint contains allegations not appropriate to the purpose sought to be attained; but if upon any view of the pleading the plaintiff is entitled to recover, relief may not be denied him.</p> <p>Logs and Logging—Liens—-Waiver—Action on Contract—Judgment.</p> <p>2. Where plaintiff’s complaint in an action to foreclose a logger’s lien, under section 5829, Revised Codes, alleged all the facts necessary to recover for his services performed in sawing the lumber under an express contract, he was properly. allowed to waive his lien and proceed against the defendant for a personal judgment for the amount claimed to be due under the contract.</p> <p>Same—Action Against Several Defendants—Judgment Against One.</p> <p>3. Though plaintiff had in his complaint alleged a common liability of all of defendants joined in the action, whereas the evidence disclosed a contract with only one of them, he was nevertheless, under sections 6711 and 6712, Revised Codes, entitled to judgment against him who •was shown to be liable; and the court properly refused to direct a verdict for all of defendants, asked for on the ground of variance amounting to a failure of proof.</p>

B. Mc-Clernan, Judge. Quo Warranto by the state, on the relation of E. W. Wynne-, against John J. Qninn, to determine the title to the office of chief' of police of the city of Butte. From a judgment for defendant, relator appeals.

R. C. Stew Action by Walter Sprague against the Northern Pacific Eailway Company. Held: as a matter of law, that the failure to do so constitutes contributory negligence. It is likewise well established, however, that where the stopping, looking and listening would be unavailing there is no duty to either stop, look or listen. (See Peck v. Oregon Short Line B. Co., 25 Utah, 21, 69 Pae. 153; Metcalf v. Central Vermont By.

Action by Frank Bliss against J. H. Wolcott. From an order granting plaintiff’s motion for a new trial, defendant appeals.

Action by H. B. Palmer against the city of Helena and others. From an order directing issuance of an injunction as prayed for by plaintiff, defendants appeal. A city’s right to provide itself with light is expressly conferred by subdivisions 5 and 7, section 3259, Eevised Codes.

District Court, Silver Bow County; Geo. M. B our quin, Judge. Action by Charles Osterholm against the Boston and Montana Consolidated Copper and Silver Mining Company. Judgment for plaintiff, and defendant appeals from it and an order denying it a new trial.

Leandek Duncan was convicted of operating and conducting a gambling game, and he appeals from the judgment and an order denying him a new trial. The court erred in permitting the county attorney to amend the information. The amendment was to a matter of substance and not of form. So much so, in fact, that it had the effect of changing the entire charge in the information.

Meyers, Judge. Action by Henry Schwindt against the Lane Potter Lumber-Company, Limited. Judgment for plaintiff, and defendant appeals from it and an order denying a new trial.

Meyers, Judge. Action by Neil Lane and others against the Lane Potter Lumber -Company, Limited, and another. From a judgment for plaintiffs and an order denying a new trial, defendant named .appeals. The Act in question contains more than one subject, and is in violation of section 23 of Article Y of the Constitution. The title is ambiguous and uncertain, the subject is not clearly expressed.

E. Erickson, Judge. Action by Thomas Quirk against George Rich. There was a decree substantially for defendant. From an order denying a new trial, plaintiff appeals. The instrument on which the defendant bases his claim in the trial court is not a conveyance of any water right or of any water.

M. Clements, Judge. W. C. Clemens was informed against for a misdemeanor, and, from a judgment dismissing the information on demurrer, tbe •state appeals.

M. Clements, Judge. William Rees was convicted of second degree murder, and from the judgment and an order denying him a new trial- he appeals. We find no allegation in this information that there existed any duty on the part of defendant to care for or protect the deceased from the inclemency of the weather, nor any allegation of any relationship between defendant and deceased from which such duty would arise under the law.

MeCiernan, Judge. Action by Ben Baker and another against the Bntte Water •Company. From a judgment for defendant rendered on sustaining a general demurrer to the complaint, plaintiffs appeal.

B. Winstonr Judge. Action by Amelia Curn against John Perkins. Judgment for defendant, and he appeals from an order granting plaintiff a new trial. A party relying upon a service of notice by mail must show a strict compliance with the provisions of the statute in making service.

'Appeal from, District Court, Deer Lodge County; W. R. C. Stewart, Judge of the Ninth Judicial District, presiding. Action by J. B. Reynolds against John Fitzpatrick and another, as sheriff and deputy sheriff, respectively, of Deer Lodge county. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Lynch, Judge, Action by A. B. Cummings against the Reins Copper Company and another. From a judgment for plaintiff and from an order denying their motions for a new trial, defendants appeal. This evidence was wholly insufficient to support a verdict in favor of the plaintiff. It was incumbent on plaintiff to show that the injury is the proximate result of the negligence alleged.

<p>Original application for writ of mandate.</p>